CITATION: Ratay -v- Director General, Department of Transport [2003] NSWADT 40 DIVISION: General Division APPLICANT PARTIES: Peter Ratay RESPONDENT Director General, Department of Transport FILE NUMBER: 023257 HEARING DATES: 21/01/03 SUBMISSIONS CLOSED: 01/21/2003 DATE OF DECISION: 03/04/2003 BEFORE: Molony P - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - cancellation of authority - Passenger Transport Act - taxi operator - cancellation of accreditation - Taxi driver - cancellation of authority - Taxi operator - cancellation of accreditation MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 CASES CITED: Saadieh v Director General, Department of Transport [1999] NSWADT 68 Barrett -v- Director-General, Department of Transport [2000] NSWADT 183 Taylor -v- Director General, Department of Transport [2001] NSWADTAP 29 APPLICANT REPRESENTATION: J O'Sullivan, barrister RESPONDENT A Wozniak, solicitor ORDERS: 1. The Tribunal affirms the decisions the cancel Mr Ratay's operators licences and drivers accreditation. Introduction 1 This is an appeal by Mr Peter Ratay against decisions made by a delegate of the Director-General of the Department of Transport ('the Administrator') to cancel Mr Ratay's taxi operators accreditations, and his authority to drive a taxi. The decision with respect to Mr Ratay's authority to drive a taxi was made on 19 November 2002, with the rest of the decisions being made on 20 November 2002. Mr Ratay sought an internal review of the decisions. On 16 December 2002, the internal review was completed and the original decision was affirmed. Pursuant to s.52 of the Passenger Transport Act 1990 (the 'PT Act'), Mr Ratay appealed to the Tribunal against the decision of the Administrator. 2 The PT Act sets out various forms of authority or accreditation required to operate a service, or work as a driver, in the passenger transport industry. With respect to each type of authority or accreditation, the Act contains provisions governing the purposes of, the mechanisms for granting, and the power of the Administrator to cancel or suspend that authority or accreditation. With respect to the authorities and accreditations held by Mr Ratay the following provisions of the PT Act applied. Type of Authority Purpose of Power to Authority Cancel or Suspend Taxi-cab Operators s.31 s.31F Accreditations (3) Authority to drive a taxi-cab s.33 s.33F 3 While the purposes of a taxi operators accreditation and that of an authority to drive a taxi differ, to reflect the operational requirements of those roles, both share the purpose of attesting that the person is, "considered to be of good repute and in all other respects fit and proper" for their role. The Administrator is empowered by the relevant provisions of the Act to, at any time, cancel or suspend an accreditation or authority having, "regard to the purpose of accreditation". It was because Mr Ratay was no longer considered to satisfy the common requirements as to being of 'good repute' and 'fit and proper' for his roles, that his operator accreditations and drivers authority were cancelled, albeit under different, but similar, provisions of the PT Act. 4 The Administrator's reasons for reaching the decision to cancel Mr Ratay's accreditations and authorities arises from him pleading guilty in the Woy Woy Local Court on 5 November 2002 to a charge that he: Between about 4 December 2001 and 31 December at Green Point in the State of New South Wales, did make 50 statements that were false in a material particular that were capable of being used in connection with a claim for payment for treatment under Part V of the Veteran's Entitlement Act 1986. The statements concerned were Department of Veterans Affairs ('DVA') taxi dockets which Mr Ratay admitted altering, by increasing the fares payable. 5 The internal review officer in affirming the decisions to cancel wrote: The evidence presented was that Mr Ratay had been involved in 50 instances of fraudulently altering documents. While Mr Ratay claims the amounts of money involved were minor and that his crime was a misdemeanour, it would be irresponsible of the Department not to take full action against an individual who has admitted to committing 50 acts of Fraud, whatever the amount involved. Community confidence in public transport demands that taxi operators will be scrupulous in their financial dealings. The investigation and subsequent Court ruling indicate that Mr Ratay has not been scrupulous on the 50 occasions cited. ... Evidence 6 The Tribunal had before it the following documentary evidence: Document Exhibit Tendered No By A fax dated 22 October 2002 from 1 Applicant Barry Phillip of the National Fraud Control Unit, DVA to the DOT attaching: - Copy letter dated 30 August 2002 from Commonwealth DPP - Copy information - Copy Statement of Facts Four duplicate DOT files numbered A Respondent 3778, 3779, 6099 and 20889 (the material required by s.58 of the Administrative Decisions Act 1997 ) A bundle of documents containing: 2 Applicant - Statements of Mr Ratay dated 28 February 2002 and 2 March 2002 - Letter from Mr Ratay dated 14 January 2003 - Statement of Barry Phillip of the National Fraud Control Unit, DVA dated 20 January 2003 - Confidential Psychological dated 23 December 2003 from Simon Matthews - Letter from Mrs Maureen Ratay dated 7 January 2003 - Letter dated 27 may 1998 from Department of Transport to Combined District Radio Cabs Co-operative Ltd advising of Mr Ratay's appointment as a Taxi Industry Enforcement Officer - 29 references as to Mr Ratay's good character (the details of which were read into the record) 7 It was conceded by the Mr Ratay's counsel, that Mr Ratay had been engaged in the practice of defrauding the DVA by altering their taxi dockets, for a period of 'about six months' before his apprehension. Mr Ratay had admitted this in his record of interview with Barry Phillip of the National Fraud Control Unit, DVA. It was also conceded that Mr Ratay had repaid to the DVA an agreed amount of $5,893.00. 8 Mr Ratay gave evidence to the Tribunal. He told the Tribunal that he had been in the taxi business for 16 years. He operated five taxis and one hire car. He has been a director of Central Coast Taxis, the regional taxi co-operative he works with, and its Chairman for the last four years. He has had to resign his position with Central Coast Taxis because of the charges being laid against him. Mr Ratay said that in 1998 he was appointed by the Department of Transport ('DOT') as a Taxi Industry Enforcement Officer for Central Coast Taxis. In his years in the business, Mr Ratay said that he had been audited by the Australian Tax Office twice and by the DOT. Aside from a few minor criticisms by the DOT, his business had passed all audits. 9 Mr Ratay told the Tribunal that he was responsible for processing all the taxi vouchers and credit card transactions generated by his taxis. Over the past two years, there has been an average of 1500 such transactions a month. Mr Ratay said that over time he had become aware that local hire car operators were receiving the lion's share of the DVA's local work. Central Coast Taxis had complained to both the DVA and local politicians about this: all to no avail. Mr Ratay said that out of a sense of frustration he started altering DVA dockets. 10 He said that when he was initially approached about the altered taxi dockets on 27 February 2001 he denied any knowledge of them. His conscience got the better of him, however, and that night he wrote an undated letter to Mr Philip in which he confessed his responsibility. He expressed regret and concern at his own actions, and the impact they would have on his family. He had also told his family what he done. He said he had not done it for the money: he did not need the money. The next day Mr Ratay rang Mr Phillip, and later made a statement in which he made full admissions. He cooperated fully with the DVA investigation. 11 Mr Ratay said that he knew what he did was wrong. He said he has no criminal record, and has committed no other offences. Mr Ratay assured the Tribunal he would not do it again. Mr Ratay said he had pleaded guilty to the charge in the Woy Woy Local Court, and that the Magistrate had adjourned the proceedings to the Community Aid Panel. The Panel had required him to do 15 hours community service, which he had completed, and the proceeding was due to go back before the Magistrate for final determination on 18 February 2003. 12 Mr Ratay told the Tribunal that throughout his time in the industry he had always taken efforts to try to return things people left in taxis. He referred to three specific instances which are also referred to in the character references which from part of Exhibit 2. The first involves the efforts he went to when he found that Ben Gilbey had left his wallet in Mr Ratay's cab (letter from Ben & Lesley Gilbey dated 28 November 2002). The second was his return of a National Bank credit card he found in his taxi (letter from Neil Hirt, National Bank dated 7 January 2003). The third involved another wallet left in the taxi, where Mr Ratay found a card for the owners solicitor in the wallet and arranged its return (letter from Thang Dan dated 28 November 2002). I note that each instance occurred in the time leading up to the Tribunal hearing. 13 Mr Ratay told the Tribunal about the consequences his family had suffered as a result of the decisions to cancel his operator's accreditation and drivers authority. His operator's accreditations had been transferred to his wife at a cost of some $78,000.00. His wife was now trying to operate the business, with the part-time assistance of his sons, who have businesses of their own. She was having difficulties doing so, especially getting male taxi drivers to accept directions from her. 14 With respect to the numerous references he had produced as to his good reputation, Mr Ratay said that he had told each person who supplied him with a reference what he had done, and why he needed the references. 15 Mr Ratay agreed in cross-examination that the majority of taxi clients using DVA taxi dockets were elderly and sick people. He denied the suggestion that such people were easy prey for frauds, because of their poor memories, and that was why he had altered their dockets. He commented that if that were his motivation he could have targeted taxi-subsidy clients, who have a similar profile. He had altered DVA taxi documents because of the frustration he felt with the DVA. He agreed that he was aware that by committing these offences he was putting his operators accreditations and drivers authority in peril. 16 Under cross-examination, Mr Ratay agreed that he had deliberately altered the DVA taxi dockets. It was put to him that, with respect to the 50 dockets, he had pleaded guilty to altering, the average amount by which the taxi fare was increased was $10.00. He said some were for less. He was asked whether the amount he had repaid of approximately $5,800.00 was, in the light of the $10.00 average, an indication of the number of dockets he had altered. He denied this. He admitted to altering 90 dockets in December 2001. In October and November of that year, he said he altered between 10 and 15 dockets each month. In the months preceding that, he would not have altered more than five dockets per month. It was put to him that this meant he had altered at least 140 DVA taxi dockets. He agreed. 17 In response to questions from me, Mr Ratay said that as an employer in the taxi industry he had terminated the employment of drivers who had been overcharging. When asked to explain why his frustration with the DVA had led to him taking the extra step of altering DVA taxi dockets, he could not explain, other than to say it was, 'crazy'. Findings 18 In reality, there is little factual dispute in this matter. On Mr Ratay's own evidence I am satisfied that he had altered a minimum of 140 DVA taxi dockets over a period of six months, in implementing a deliberate and conscious decision to target and defraud the DVA. I am unable, on the evidence, to precisely quantify the number of occasions on which Mr Ratay altered DVA dockets. The amount he repaid to the DVA by agreement, when considered in the light of the amounts he pleaded guilty to altering 50 dockets by, suggests that there were a large number of dockets altered by Mr Ratay. I gained the distinct impression, when Mr Ratay was giving his evidence that he was anxious to minimise the number of dockets he had altered, while maximizing his contrition. Discussion 19 The Administrator put its case on the basis that Mr Ratay is not a 'fit and proper' person to hold an operators licence and drivers authority. What is 'fit and proper' will vary depending on the nature and purposes of the role being considered. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Chief Justice Mason said at 380: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 20 In Farquharson -v- Director General, Department of Transport [1999] NSWADT 53, O'Connor DCJ, President, said: 27 A taxi driver has a continuing responsibility to ensure that he is of "good repute" and a "fit and proper person". Clearly, the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character. The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J). 36 In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence. 37 A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165. The applicant sought review of a refusal to grant a taxi driver's licence, the refusal being based on a criminal record revealing a number of convictions for offences involving dishonesty. The application was successful. The Tribunal was satisfied that the context that had given rise to the convictions, a gambling addiction, had been successfully addressed. It was satisfied as to the genuineness of the applicant's desire to rehabilitate himself. In the course of its decision the Tribunal (Professor LJ Curtis, President) put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing in this way, at [12]: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi." 21 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Deputy President Hennessey said: 17. ... there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: - the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; - the nature, seriousness and frequency of any complaints made against the applicant; - the applicant's driving record; - the applicant's reputation in the community; and - the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 22 In Mr Ratay's case the real issue is whether the seriousness of the offences to which he has pleaded guilty, and which he admitted committing to the Tribunal, are such that he is not a fit and proper person to hold operators accreditations and a drivers authority. There is no suggestion that his driving record or client complaints justify the cancellations. The offences he committed involve a minimum of 140 instances of the fraudulent alteration of DVA dockets, over a period of six months. They are offences directly related to his roles in the passenger transport industry. His explanation for this conduct, as arising from his frustration with the DVA, does not justify or explain the fact that he engaged in a targeted and deliberate fraud of a significant client. 23 Mr Ratay is insistent that these offences represent a once off event, and will not be repeated. He and his family have suffered significant hardship because of the cancellations. Hardship, however, is not a factor which the PT Act says can be taken into account when considering a decision to cancel or suspend a licence or accreditation: Saadieh v Director General, Department of Transport [1999] NSWADT 68. The criteria to be considered by the decision maker is that set out in the legislation. 24 It was conceded that it appeared that the Local Court was likely to take a relatively lenient view when dealing with Mr Ratay for the offence. The Tribunal, however, must form its own view of the seriousness of the offences from the perspective of determining whether Mr Ratay is of good repute and is a fit and proper person to hold an operators licence or drivers accreditation: Barrett -v- Director-General, Department of Transport [2000] NSWADT 183 at paragraphs 48 and 49. While the facts under consideration may be similar, the purposes, objects and criteria underlying a consideration of Mr Ratay's conduct for the purpose of the criminal law by a Court, and those underlying a consideration of a decision by an administrator as to whether he is of good repute and is a fit and proper person to hold an operators accreditation or drivers authority, are fundamentally different. 25 A psychologists report, dated 23 December 2002, concerning Mr Ratay from Mr Simon Matthews was produced to the Tribunal. In that report Mr Matthews concluded: Mr Ratay presents as man (sic) committed to his business, family and community, who attempted to take advantage of a payment system, motivated apparently, by anger and frustration at a perceived injustice. He has apparently cooperated fully with the investigation into his fraud, not attempting to conceal any of his actions, nor shift responsibility to others or away from himself. He has made full restitution and more to DVA and has complied with the Community Service order as given by the local Community Aid Panel. He has operated his taxi business, apparently successfully, for 15 years and was previously well regarded by industry colleagues, clients and others with whom he came into contact. He is strongly motivated to not behave in such a way again. I did not find this report of assistance. It provided no basis for understanding why Mr Ratay followed the course he did. It pointed to no underlying social, health or psychological problems which might make Mr Ratay's actions easier to understand. By use of the word 'attempted' when describing Mr Ratay's fraud, the report seemed to minimise the seriousness of Mr Ratay's conduct. In all, it did not cast any new light on the issues. 26 Mr Ratay produced a large number of character references from persons who, I accept, were aware of the nature of the offences he has committed. Each asserts his trustworthiness and reputation within his local community. While I accept that these are evidence going to the issue of 'good repute' they do not, in my view, assist him in overcoming the difficulties he faces when the issue of whether he is a 'fit and proper' person is considered. 27 When one puts oneself in the position of a member of the public using a taxi operated or driven by Mr Ratay, and asks whether, knowing what Mr Ratay has done and what has happened to him since, they would object to him as an operator or driver, the conclusion one reaches is that they would object. Mr Ratay has engaged in a six month, continuing fraud of a targeted client in an industry where honesty is required. A member of the public would be justifiably concerned at the prospect of having to deal with Mr Ratay in those circumstances. 28 Further, it needs to be borne in mind that Mr Ratay committed these offences while holding positions of responsibility and respect in the local taxi industry. He was expected to be an example of probity and best practice to others. He was not. That, in my opinion, highlights and broadens the nature of the dishonesty and breach of trust inherent in his conduct, and is a further reason why a member of the public would not wish to deal with him. The fact the he is contrite would not, in my view, change that assessment. 29 In my opinion, the decision of the Administrator to cancel Mr Ratay's operator's licenses and drivers certificate was the correct and preferable decision. 30 Mr O'Sullivan, for Mr Ratay, submitted that if I was not minded to set aside the Administrator's decision I should consider suspending, rather than cancelling, Mr Ratay's accreditations and authority. This led to a short debate as to whether, in the light of the decision in Taylor -v- Director General, Department of Transport [2001] NSWADTAP 29, the Tribunal had the power to make such a decision. Given that I have concluded that the correct and preferable decision was to cancel Mr Ratay's accreditations and authority, I need not enter into that debate. Decision 31 The Tribunal affirms the decisions to cancel Mr Ratay's operators licences and drivers accreditation. 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.