Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ranjbar v Roads and Maritime Services [2018] NSWCATOD 204 Hearing dates: 23 January 2018 Date of orders: 15 February 2018 Decision date: 15 February 2018 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: The decision under review is affirmed Catchwords: PASSENGER TRANSPORT – refusal to renew wheelchair accessible taxi licence – applicant must satisfy RMS as to any matter RMS considers relevant – expectation of number of jobs performed per day – failure to meet performance levels Legislation Cited: Passenger Transport Act 1990 Passenger Transport (Taxi-Cab Services) Regulation 2001 Point to Point (Taxis and Hire Vehicles) Act 2016 Point to Point (Taxis and Hire Vehicles) Regulation 2017 Cases Cited: Howell v Macquarie University [2008] NSWCA 26 Huda v Roads and Maritime Services [2017] NSWCATOD 151 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Category: Principal judgment Parties: Alireza Ranjbar (Applicant) Roads and Maritime Services (Respondent) Representation: Alireza Ranjbar (Applicant) Smythe Wozniak (Respondent) File Number(s): 2017/00180172 REASONS FOR DECISION 1. This is an application by Mr Alireza Ranjbar for review of a decision refusing the renewal of a wheelchair accessible taxi licence in May 2017. His application was refused by Roads and Maritime Services (RMS) because RMS was not satisfied that priority was being given to passengers using wheelchairs, including compliance with an expectation that at least one wheelchair hiring would be completed per day. The wheelchair taxi scheme 1. A wheelchair accessible taxi (WAT) is a vehicle that has been specifically modified to accommodate safely at least one, and up to three wheelchairs and their users. Wheelchair accessible taxis are specifically licensed and, in order to support the operation of these services, licence fees for wheelchair accessible taxis were originally set at $1,000 but are now free. In contrast, RMS submitted that an ordinary taxi plate currently costs in excess of $220,000. 2. There is a designated booking service for wheelchair accessible taxis which is called Zero200. Drivers can also pick up passengers on the street and have other booking arrangements with regular passengers. The Handbook issued to all drivers using the Zero200 radio booking service states that drivers must not refuse a booking and must give preference to a person using a wheelchair. 3. NSW residents who are unable to use public transport because of a disability are entitled to use the Taxi Transport Subsidy Scheme (TTSS). TTSS covers fifty per cent of the total fare up to a maximum of $60 and participants are issued with a book of dockets to use when using taxis. An M50 docket is used by passengers who use wheelchairs as this permits the driver to claim an additional subsidy. All other passengers with a disability who are not required to use a wheelchair use an M40 docket. 4. Section 32B of the Passenger Transport Act 1990 required that the Applicant must meet any criteria set forth in the Regulations and must satisfy RMS as to any matter RMS considers relevant. Clause 56 of the Passenger Transport (Taxi-Cab Services) Regulation 2001 required that a WAT driver must give preference to a wheelchair user. 5. A new Act commenced in November 2017. Section 52 of the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW), gives the RMS power to grant or refuse to grant a licence for a taxi-cab. To be granted a licence an applicant must meet any criteria set out in the regulations and must satisfy RMS as to any matter RMS considers relevant. When a licence is granted, conditions can be imposed by RMS (s 54). 6. Mr Ranjbar previously applied for and was granted a licence for a wheelchair accessible taxi on 25 May 2016 for a period of 12 months. On 18 April 2017, Mr Ranjbar applied to renew the licence for a further 12 months. This application was refused. The decision to refuse the licence was affirmed on Internal Review. This is the decision subject of this application to the Tribunal. Evidence relevant to renewal of the licence 1. The Respondent's section 58 documents and employee statements provided an explanation of how the WAT scheme works. The RMS publishes a factsheet on its website, which details its procedures and policies in relation to renewing a wheelchair accessible taxi licence. The current one is dated 16 June 2017. The factsheet advises licence holders that they must give preference and priority to persons using wheelchairs and must complete a minimum number of M50 TTSS bookings per day as determined by RMS. 2. The factsheet states that, in determining whether a licence will be renewed, RMS will take into account the licence holder's performance over the past 12 months. RMS states that all licence holders are expected to complete at least one M50 TTSS booking per day, or 365 such bookings in the previous year. The statement of RMS employee Mr Paul Jancovich before the Tribunal asserted that this requirement or expectation has been in existence for many years and all wheelchair accessible taxi licence holders are expected to meet this performance level in any given year. 3. Ms Sharmila Sharma, the Internal Reviewer, provided a statement dated 25 August 2017. This statement confirmed these requirements. 4. While the fact sheet refers to completing at least one M50 TTSS booking per day, it is apparent from the evidence that the expectation is in relation to wheelchair hirings generally, including those hirings for which no M50 docket is used – such as M40 hirings. 5. RMS states that Mr Ranjbar did not satisfy the requirement that the taxi complete at least one wheelchair hiring per day during the currency of the last licence held by him. Data obtained from the TTSS Speedscan database showed that between 25 May 2016 and 10 May 2017, Mr Ranjbar's taxi completed either 41 or 45 M50 bookings. 6. On 12 May 2017, Mr Ranjbar was sent a Notice of Refusal to Reissue his licence number 108724 for Taxi number T8466. RMS stated that the reasons for this were that Mr Ranjbar's taxi T8466 had only completed 41 M50 bookings during the period 25 May 2016 to 10 May 2017. The requirement of every WAT vehicle was to complete at least one wheelchair hiring per day. T8466 had failed to show preference to "persons confined to a wheelchair." 7. Mr Ranjbar sought internal review of this decision. Mr Ranjbar provided the Internal Reviewer a 12 ½ A4 page document which he said was a copy of his logbook showing dates, names and suburbs. Mr Ranjbar said that this was a logbook of his trips in which he provided services as a wheelchair accessible taxi to people with disabilities. 8. The Internal Reviewer affirmed the original decision to decline Mr Ranjbar's application for the reissue of a WAT licence, based on his purported logbook jobs, RMS records and Speedscan data. The Internal Reviewer did not attach significant weight to the logbook copies as the source of the document was unknown; the document had handwritten notations; and the document had no reference to docket numbers which could be verified. The Internal Reviewer preferred to rely on the Speedscan data which indicated that only 45 TTSS wheelchair bookings were completed. The Internal Reviewer also noted that although the licence taxi plates T8466 were issued on 25 May 2016, Mr Ranjbar had not collected taxi plates until 24 June 2016. RMS had not been advised of any delay in getting the vehicle registered and therefore no change was made to the expiry date of the licence, 25 May 2017. Application to the Tribunal 1. In his application for review in the Tribunal, Mr Ranjbar set out the following concerns about the internal review decision. 1. His contract did not mention about any number of dockets. 2. He had completed only 10 months of the contract because he did not commence driving until after 24 June 2016. He had to return the plates after 24 May 2017. He had also had a month on leave in June to July 2016 and did not have anyone else to drive the cab. It should have been considered that there was only 10 months, not 12 months of opportunity and data. 3. He said he had tried to be available always for disabled people. He had never had any complaints. 4. Many of his WAT customers never had dockets to supply and he provided the services without collecting dockets. 5. The WAT radio never offered expected jobs. The number of offered jobs was very low. 6. The contract did not give a proper guideline in respect of the number of jobs or the recording system. 7. He had submitted his registration papers to show that he still had available registration for another month and should have been allowed to continue until 25 June 2017. However, the RMS did not bother to check with the RTA. They cancelled the contract very quickly. 8. Mr Ranjbar did not consider that the RMS data – the number of dockets - was reliable. 9. Mr Ranjbar stated that he was pushed and threatened to return the plates. He had to cancel his registration quickly and return the plates to avoid fines – depriving him of further opportunity to achieve the necessary number of services. 1. At the hearing before the Tribunal, Mr Ranjbar stated that there were no clear guidelines as to how many trips a WAT driver needed to undertake. The current document on the website was dated June 2017, but this post-dated the information available when he commenced the licence in May 2016. The requirements set out in his contract were that he would drive seven days a week and give priority to wheelchairs. 2. Mr Ranjbar said that he thought he had given 70% preference to WAT jobs. He requested that he be given at least a six months licence to demonstrate that he can achieve the appropriate statistics. 3. Mr Ranjbar estimated that he did 180 M50 jobs. He was unable to estimate how many M40 jobs he had undertaken. The M40 jobs don't get scanned. 4. Mr Ranjbar said that many of the M50 jobs did not have M50 dockets to provide and so the person paid with cash or Cabcharge. As a result, these jobs had not been considered by the Respondent. Some days the radio did not offer any M50 jobs - so it was not his fault. He noted that in the documents provided by the RMS, some other taxis had done fewer jobs than he had. He had also done M40 jobs which were not counted. He did not think that the Speedscan data used by the Respondent reflected his performance properly. It reflected only the M50 jobs and not the M40 jobs. He rejected the suggestion that he had refused many WAT jobs. He said that if he were getting luggage out of the boot this was being recorded as a job rejection when in fact he didn't know the job had been offered. Similarly, if he had stopped for a toilet break or to fill up with fuel, he wouldn't know a job had been offered. He also alleged that where a job was offered and rejected and offered again, this counted as multiple rejections of WAT work. 5. The Tribunal asked Mr Ranjbar to specify how many jobs he said were recorded in the logbook. He was unable to quantify these. He was also unable to explain the system and sequence for recording the jobs in the log. For example, it appeared that only the date and month, not the year were recorded on some pages. Mr Ranjbar said that he had commenced keeping the log when he was advised in March 2017 of the need to complete a certain number of jobs. However, it appeared that there were recordings commencing 24 October 2016. Mr Ranjbar stated that he had done many undocumented private bookings and hail jobs. In total, he estimated the taxi had done 184 wheelchair hirings 6. In his previous application for a WAT licence dated 18 April 2016, Mr Ranjbar stated that he intended to complete as many WAT hirings as possible each week. He intended to obtain the passengers to conduct this number of hirings through radio/WAT booking; through Premier taxi booking; through surrounding nursing home and aged care services; through apps, private booking, street hails and rank hails. He intended to operate the vehicle seven days a week. He stated that he would control and manage the operation of the taxicab. He said he would drive the WAT vehicle himself. 7. Mr Ranjbar's previous application also attached a letter dated 19 April 2016 from the Zero200 system. The letter stated that during the past 12 months he had been driving wheelchair taxi T812. The performance figures for Mr Ranjbar over the past 12 months stated that he had: * been offered 575 WATS jobs * completed 154 WATS jobs * rejected 215 WATS jobs. 1. The letter stated that in the 12 months prior to April 2016, Mr Ranjbar had undertaken 180 private jobs which can be verified by TTSS dockets submitted. These records indicated a total performance of 334 WAT bookings combined. 2. Mr Ranjbar said there are not enough jobs allocated by the Zero200 Network to permit each wheelchair taxi to complete one wheelchair hiring a day. 3. Mr Ranjbar stated that in future he would drive to Campbelltown to sit there and await wheelchair hirings. He stated he would keep records of all wheelchair jobs in future and asked to be given a chance to perform better. The Respondent's submissions 1. The Respondent submitted that there was nothing in the Regulations to the Act specifying how many jobs a WAT driver was to undertake. It was not a condition of a licence. There is, however, material on the Internet that states that a driver must undertake at least one WAT job per day. The application of 18 April 2016 made by Mr Ranjbar attached a letter from Zero200 network which stated that in the preceding year when Mr Ranjbar was driving another taxi, he had rejected 215 WAT jobs which was more than the 154 he had completed. The Respondent submitted that Mr Ranjbar would have been aware of the written requirement to complete a certain number of jobs. The statistics from the previous year showed a very high proportion of rejected jobs. Drivers must give preference to WAT jobs. 2. The Respondent submitted that the logbook pages could not be relied upon. Even if the logbook pages were accepted, the number of jobs asserted by Mr Ranjbar still fell short. 3. Mr Jancovich's statement stated that there are 633 wheelchair accessible taxis operating in Sydney. While many jobs are booked through Zero200 each week, it is insufficient for a driver to simply rely on that service for bookings. Drivers make private arrangements with clients or approach organisations with a substantial number of wheelchair users to obtain work. Mr Jancovich stated that a high majority of drivers meet or exceed the requirement of undertaking at least 365 wheelchair hirings a year. 4. RMS conceded that there would be some jobs undertaken by a wheelchair accessible taxi for which there is no M50 docket but maintained that this would be a minority of hirings. RMS contended that, because of the availability of the subsidy for wheelchair users, there would normally be a docket. 5. With respect to Mr Ranjbar's statement that he was unaware of the requirement to complete at least one wheelchair hiring a day, the Respondent submitted that the expectation had always been a part of the licensing regime and that Mr Ranjbar was well aware his taxi was required to complete a minimum number of such hirings. This was clear from the statements he made in his application in April 2016. 6. RMS submitted that, even if the Tribunal were to accept Mr Ranjbar's estimate of the number of wheelchair hirings done by the taxi concerned in this application, it would still fall far short of the expectation of one such hiring per day. Consideration Findings of Fact 1. The requirement to undertake at least one wheelchair hiring a day is not a condition of the WAT licence. There is, however, a well-known framework within which wheelchair accessible taxi licences operate and are renewed. This framework includes a requirement that at least one wheelchair hiring must be completed per day. This requirement is framed as being an expectation, no doubt to cover those circumstances where, for good reason, the licence holder is unable to complete one hiring each and every day. 2. The Tribunal is satisfied that this expectation has been in place for many years, is well known within the industry and that information about the requirements placed on wheelchair accessible taxi licence holders is readily available. The fact that the cost of such a licence was minimal and is now free, is a strong indication that applicants for the licence are well aware of its purpose. Requirement to complete one wheelchair user job per day 1. The Tribunal is satisfied that Mr Ranjbar was aware of the expectation. Mr Ranjbar's application for a licence in April 2016 demonstrates that he was aware that, as the holder of such a licence, he was required to give priority to wheelchair hirings and undertake a certain level of such work. The Tribunal is satisfied from the annexed Zero200 letter of 18 April 2016 that Mr Ranjbar was aware of the requirement to undertake a certain number of WAT jobs. 2. Mr Ranjbar has estimated that the taxi completed 184 wheelchair hirings during the year. He has, however, not provided any clear evidence to support this estimate even in circumstances where he could have done so. Mr Ranjbar attended a directions hearing at which he was directed to provide any evidence, including statements, documents and submissions. He filed no new material. 3. Even taking into account that Mr Ranjbar represented himself in these proceedings, it is clear he was on notice of the issues in this case and the need to satisfy the Tribunal that wheelchair hirings had been undertaken by the taxi in accordance with the requirements of the licence. 4. In these circumstances, the Tribunal is entitled to draw an inference that independent corroborative evidence of Mr Ranjbar's estimate of the number of hirings performed is not available (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Howell v Macquarie University [2008] NSWCA 26). 5. The Tribunal is therefore of the view that the number of wheelchair hirings undertaken by this taxi is probably more than the 45 for which M50 dockets are available. Mr Ranjbar estimated that he had 184 hirings. The Tribunal is satisfied that the number of wheelchair hirings performed during the year falls far short of the 365 expected by RMS. Even taking Mr Ranjbar's evidence at face value, the number of hirings performed is a little more than half that expected. 6. On the basis of the evidence submitted by both parties, the Tribunal is satisfied that Mr Ranjbar did not meet the requirement that he undertake one wheelchair hiring each day under his previous licence. RMS can only positively assert that 45 such hirings were completed, although it concedes there may be more for which there is no M50 docket. Requirement for preference to wheelchair users 1. No evidence was provided about the giving of preference to wheelchair users during the year from May 2016-2017 by the Respondent. Mr Ranjbar told the Tribunal that he gave preference to wheelchair user hirings – but did not provide documentary evidence of this. 2. The letter of April 2016 from Zero200 in relation to a previous taxi licence demonstrated that Mr Ranjbar had rejected more wheelchair jobs from Zero200 than he had accepted. Mr Ranjbar did not set out a strategy for how he would give wheelchair users preference in future. He did say he would drive to Campbelltown to sit there and await wheelchair hirings. It was not clear whether this would be for rank hails or Zero200 bookings. The Relevant Law 1. The Tribunal notes that when the internal review decision the subject of this application was made dated 31 May 2017, the previous Passenger Transport Act 1990 and Regulations were in force. Mr Ranjbar's application to the Tribunal was filed on 16 June 2017. In November 2017 a new Act came into force, the Point to Point Transport (Taxis and Hire Vehicles) Act 2016. 2. The Respondent submitted that the earlier Act and regulations applied to Mr Ranjbar's circumstances. 3. Section 32B of the Passenger Transport Act 1990 required that the Applicant must meet any criteria set forth in the Regulations and must satisfy RMS as to any matter RMS considers relevant. Clause 56 of the Passenger Transport (Taxi-Cab Services) Regulation 2001 required that a WAT driver must give preference to a wheelchair user. It is clear from the material provided that giving preference to wheelchair users and completing one WAT hiring per day were matters RMS considered relevant. 4. Section 52 of the newer Act, the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 provides that the Commissioner must not grant a licence unless satisfied that the Applicant meets any requirements specified by the Regulations. Clause 65 of the Regulations provides that a WAT driver must accept a hiring for a person using a wheelchair in preference to a hiring for a person not using a wheelchair. 5. In the year prior to April 2016 Mr Ranjbar is reported to have completed 334 WAT bookings. This is close to satisfying the requirement of completing one WAT job each day. However, in the following licence period of 10 months it appears that at most Mr Ranjbar completed 184 WAT jobs – falling far short of the average of one WAT job per day. The Tribunal cannot be satisfied that if the licence were issued, Mr Ranjbar would satisfy the requirement to average one WAT job per day. 6. In the 12 months preceding April 2016, it appears that Mr Ranjbar was offered 575 WAT jobs through Zero200. He completed 154 of those jobs offered and rejected 215. Given this rate of rejection, the Tribunal cannot be satisfied from this data that Mr Ranjbar would give preference to WAT jobs if he were to be given a licence 7. The Tribunal is not satisfied that Mr Ranjbar would meet requirements under either Act. Decision 1. In light of the above findings, the Tribunal is of the view that the decision to refuse to grant the licence is the correct and preferable decision and should therefore be affirmed. Orders 1. (1) The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 April 2023