Underabi v Ministry of Transport [2008] NSWADT 349

CITATION: Underabi v Ministry of Transport [2008] NSWADT 349

DIVISION: General Division

APPLICANT Ghulam Haider Underabi PARTIES: RESPONDENT Ministry of Transport

FILE NUMBER: 083306

HEARING DATES: 10 December 2008

SUBMISSIONS CLOSED: 10 December 2008

EXTEMPORE DECISION DATE: 10 December 2008 BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Passenger Transport Act - taxi driver - cancellation of authority

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Passenger Transport Act 1990 Passenger Transport Regulation 2007

CASES CITED: Saadieh v Director General, Department of Transport [1999] NSW ADT 68

APPLICANT In person REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: The decision to cancel the applicant's authorisation to drive a taxi-cab is affirmed.

REASONS FOR DECISION Background 1 The applicant is highly qualified academically. He holds a Master of Environmental Science, Master of Science and Bachelor of Science and speaks several languages and has a long history as an academic at the Kabul University in Afghanistan. He also held a driver authority under the Passenger Transport Act 1990 ("the Act") and has worked as a taxi-driver for about three years. 2 By a Notice of Decision dated 26 September 200B a delegate of the Director General of the Ministry of Transport advised the applicant that the respondent had determined to cancel his driver authority. 3 Prior to the determination, the applicant was issued with a Notice to Show Cause why his driver authority should not be cancelled. The notice was issued as a consequence of the number of complaints received against him. In his three years as a taxi-cab driver he has incurred fourteen complaints. Two of those complaints were received after the Ministry had directed him to undergo remedial training with the aim of allowing him to help him interact with his passengers in a more appropriate manner and provide an improved customer service and he was warned of the possible consequences of incurring further justified complaints. 4 The applicant's solicitor provided a written response to the Notice to Show Cause. She submitted that of the fourteen complaints against the applicant, ten were not justified and that those that were justified do not warrant a cancellation of his driver authority. 5 In the statement of reasons provided to the applicant the delegate stated that the determination was made on the basis of the following: "The Director-General of the Ministry of Transport relies on the following facts, evidence and material when cancelling your driver's authority GP9900: On 24 September 2007 you attended the Ministry of Transport's Parramatta office in relation to your extensive complaints history. On 28 September 2007 you were directed to undergo retraining in the navigation and regulations modules of the TaxiCare Plus course. On 30 October 2007 you were sent a written warning advising you of the possible consequences of incurring further complaints as the driver of a taxi- On 11 April 2008 you incurred a further justified complaint. On 4 August 2008 you incurred a justified complaint of sexual harassment. Your Class C drivers licence was suspended from 7 June 2006 to 7 October 2006 due to excess demerit points. Your Class C drivers licence was suspended from 28 August 2007 to 28 November 2007 due to excess demerit points. You failed to advise the Ministry of Transport of the suspension of your drivers licence in June 2006 and August 2007. 6 The statement of reasons summarised the complaints lodged against the applicants as follows: "CFI 39073 - The complainant booked a taxi to take her from Ashfield to Glebe at about 9.45 am on 1 August 2008 and alleges that during the trip the male taxi driver was making 'lewd' remarks and at one point told her that he has two wives, one of whom 'sucks him off' and the other 'he fucks'. When contacted at a later date, the complainant also stated that the driver discussed penetrating his wife, told her (the complainant) that in his culture she would be 'worth nothing' and asked her questions about her relationship with her partner. You were identified as the driver of the taxi and interviewed by authorised officers of the Ministry of Transport on 27 August 2008. At interview you admitted to making comments similar to those alleged by the complainant. This complaint has been found to be justified. CFI 37005 - The complainant called on behalf of a passenger who hailed taxi T2764 in North Sydney at about 9 am and asked to be taken to the North Sydney Council chambers. The driver allegedly stated that he didn't know where this was and 'started blaming the taxi company.' The complainant stated that at one point the driver told the passenger to get out of the taxi and furthermore, the driver had failed to display his driver authority during the journey. You were identified as the driver and interviewed by a customer service officer of TCS. TCS found that the complaint relating to your failure to display your authority card was justified, however, found the other two issues ('Rude to customer' and 'Lack of street knowledge') to be unjustified. CFI 31418 - a passenger who travelled in taxi T7368 at about 8.45 am on 12 June 2007 alleges the driver deliberately failed to travel by the shortest practicable route in order to inflate the fare amount. The journey took place from Kensington to the city and as the passenger entered the taxi she asked that the driver go via the Eastern Distributor, repeating her request three times. Despite this, the driver travelled along Oxford, College, Elizabeth and Macquarie Streets, before finally reaching the Bridge Street destination. As a result, the passenger was late and paid a $22 plus credit card surcharge amount for the fare and states that she 'lost a potential job offer'. You were identified as the driver and the complaint was investigated by TCS, who subsequently finalised the complaint as 'Justified' with an action of reprimand. CFI 29650 - a passenger, who travelled from Surry Hills to the ABC in Harris Street, Ultimo alleges that the driver deliberately failed to travel by the shortest route in order to inflate the amount of the fare. The trip took place at about 8.40 am in taxi T2764 and the passenger claims that after she and the driver agreed that going to Wattle Street and then turning back was the best way to go the driver deliberately continued about 2 kms down Wattle Street. As a result, a trip which normally cost the passenger about $8 to $10 cost $28 due to the long detour down Wattle Street and the heavy peak hour traffic. Upon arriving at the destination, the driver complained to the passenger that he had not been given a tip. You were identified as the driver of the taxi and were interviewed in person by TCS customer service staff on 26 March 2007. TCS finalised this complaint as 'Not justified' with no action recorded. CFI 29546 - an intending passenger who had booked taxi T2764 for 5.15 am on 26 February 2007 lodged a complaint when the vehicle did not arrive until 5.50 am. You were identified as the driverT2764 and were interviewed by phone by TCS customer service staff on 20 March 2007. TCS finalised this complaint as 'Justified' with an action of reprimand. CFI 23543 - a passenger who travelled from McMahons Point to Sydney in taxi T3002 at about 8.15 am on 15 May 2006 alleges that the driver attempted to overcharge her. Upon reaching the city the driver stated that the cost 'was the flagfall plus the booking fee plus $3 for the bridge toll'. The passenger disputed this and the driver referred to the information sticker on the windscreen. The passenger stated that the fare was about $14.60 with a $1.40 booking fee and $3 bridge toll, totalling about $18, however, the driver told her it was $21 and when she again disputed this figure he indicated he would accept $20. You were identified as the driver and were interviewed by a TCS customer service officer by phone on 13 November 2006. TCS finalised this complaint as 'Not justified' with no action recorded. CFI 23478 - a motorist who observed taxi T3002 on the Eastern Distributor at about 7.50 am on 11 May 2006 complained that after the taxi driver paid the toll he cut across in front of him without indicating, causing the complainant to brake suddenly to avoid hitting the taxi. The taxi then turned into the complainant's lane without indicating and almost sideswiped the other car twice while travelling along Bridge Street. The complainant felt that the taxi driver had 'no respect for other drivers and his passenger's wellbeing' and indicated he would not use TCS 'in case I come across this driver'. You were identified as the driver of the taxi and were interviewed in person by TCS customer service staff on 27 July 2006. TCS finalised this complaint as 'Not justified' with no action recorded. CFI 23456 - an intending passenger who attempted to enter taxi T3002 at the Circular Quay rank at about 12.15 pm on 9 May 2006 complained that when she approached the driver and asked to be taken to Devonshire Street, Surry Hills that the driver asked her if that destination was in Sydney and also had extremely bad body odour. You were identified as the driver and were interviewed by phone by TCS customer service staff on 10 May 2006. TCS finalised this complaint as 'Not justified' with no action recorded. CFI 22005 - a passenger who travelled in taxi T3002 from Redfern to Darling Point at about 9.50 am on 15 February 2006 alleged the driver was not displaying his authority card and had no knowledge of how to get to the destination. The passenger also alleged that she had to give him directions and as they neared Darling Point the driver argued with her about the best way to go and said that she had directed him the wrong way. The passenger also alleges the driver asked her for a pen with which to write the receipt and then asked if he could keep her pen because 'passengers kept taking his'. You were identified as the driver at the time of the incident and were interviewed by phone by TCS customer service staff on 15 May 2006. TCS finalised the three individual issues comprising the complaint, 'Lack of street knowledge & major destinations', 'Fail to carry out punctual hire/late for booking' and 'Failure to display Driver Authority Card' as' Justified' with an action of 'Verbal warning'. CFI 21547 - an intending passenger who booked a taxi on 25 January 2006 subsequently attempted to cancel the booking, however, the taxi arrived while she was on the phone attempting to cancel. The passenger alleges that the driver told her she had to pay a 'leaving fee' of $25 and as she was by herself she didn't feel comfortable arguing so paid him $15 through Eftpos. You were identified as the driver of T3002, which had arrived to pick up the passenger, and were interviewed by phone, by TCS customer service staff on 6 February 2006. TCS finalised this complaint as 'Not justified' with no action recorded. CFI 20428 - a passenger who travelled from Devlin St, Ryde to Sydney at about 10 am on 7 December 2005 claims that the driver told her that the meter in taxi T1538 was running slow. Upon arrival at the destination the driver asked for $90, although the meter only read $57. You were identified as the driver and interviewed by phone by TCS customer service staff on 15 December 2005. TCS finalised this complaint as 'Not justified' with no action recorded. CFI 20197 - a passenger who booked taxi T1538 lodged a complaint when the vehicle did not arrive to pick him up after the booking had been accepted at 3.54 am on 30 November 2005. When taxi T1538 had still not turned up by 4.23 am the passenger phoned to rebook another car. You were identified as the driver of T1538 and were interviewed by phone by TCS customer service staff on 12 January 2006. TCS finalised this complaint as 'Not justified' with no action recorded. CFI 19882 - an intending passenger complained that the driver of taxi T1538 had refused the fare from Burwood rank at 11.30 am on 18 November 2005, stating that he had a radio booking. You were identified as the driver and were interviewed by TCS customer service staff on 19 November 2005. TCS finalised this complaint as 'Not justified' with no action recorded. CFI 19189 - A passenger, who travelled in taxi T1538 on 24 October 2005, alleged that the driver had no idea how to get from George Street, Sydney to North Sydney. The passenger claims that the driver went via the western suburbs, not across the Harbour Bridge and also travelled the wrong way down a one way street. The driver became confused when he was unable to find street signs and then went across the Anzac Bridge. The passenger stated the driver was apologetic, saying it was only his third week on the job. You were identified as the driver and were interviewed by TCS customer service staff on 26 October 2005. TCS finalised this complaint as 'Not justified' with no action recorded. …" 7 The respondent concluded that it could no longer attest that the applicant meets the required standards for authorisation as a public passenger vehicle driver. This conclusion was based on the number of justified complaints, the fact that the applicant had undergone retraining in October 2007 and been warned of the possible consequences of further justified complaints and the fact that further justified complaints had been received since that time. 8 The applicant applied to the Tribunal for review of the determination to cancel his driver authority. 9 The matter came before the Tribunal's Deputy President on 14 October 2008. At that time she determined to deal with the matter in the absence of an internal review and granted a stay of the Ministry's determination. 10 The matter came before me for hearing on 10 December 2008. On that date I determined to affirm the Ministry's determination and I gave brief reasons for my decision. At the applicant's request I now publish more comprehensive reasons for my decision. Relevant legislation 11 Division 5 in Part 4 of the Act makes provision for authorisation to drive taxi-cabs. The purpose of authorisation is set out in section 33 of the Act: 33 Authorities … (3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom. 12 The holder of an authority is also subject to the provisions of the Passenger Transport Regulation 2007 ("the Regulations"). Clause 29 of the Regulations provides: "29 Criteria for authorisation to drive public passenger vehicles (1) For the purposes of sections 12 (2), 33B (2) and 40B (2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in subclauses (2)-(4). (2) The applicant: … (e) must satisfy the Director-General that he or she: … (ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and (iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom. (4) In the case of an application for authorisation to drive taxi- cabs, the applicant must also: (a) have successfully completed a taxi-cab driver training course approved by the Director-General and conducted by a registered training organisation (or must have such competence as a driver of a taxi-cab as the Director- General considers appropriate), and … (iii) knowledge of this Regulation in so far as it relates to taxi-cabs and the driving of taxi- cabs, and …" 13 The decision to cancel the applicant's authority was made under section 33F of the Act, which provides as follows: 33F Variation, suspension or cancellation of authority Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authority under this Division. 14 Section 52(1) of the Act confers jurisdiction on the Tribunal to review a decision to cancel an authority. In reviewing this decision, the task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). The respondent's case 15 The respondent filed and served a copy of its file, which comprises 266 pages. The file contains documents in relation to the matters referred to in the determination and noted above and provides evidence of the complaints made against the applicant. It is not evidence as to the truth of those complaints. Mr Wozniak, the respondent's solicitor, referred to a number of documents in the file that relate to complaints made against the applicant and the steps taken by the respondent in relation to those complaints. 16 The respondent also relies on the evidence of Ms Erin Doyle who appeared by telephone and was subjected to cross-examination. Ms Doyle gave evidence that she was the complainant referred to in relation to complaint CFI 39073. On 1 August 2008 she had travelled in a taxi driven by the applicant and she subsequently complained about the applicant's conduct towards her. She confirmed that the applicant had conversed with her in the manner set out in the statement of reasons and stated that she considered that the conversation was inappropriate and that she had felt uncomfortable as a result of the applicant's conduct. She agreed that the applicant had not touched her nor had he asked her for sex. 17 Mr Wozniak submits that the Tribunal should be satisfied by Ms Doyle's account of the 1 August 2008 incident. He argues that the evidence shows that she made a complaint about the incident within a short period of time. She was adamant that the applicant's conversation was inappropriate. There is nothing to suggest that she had fabricated her account of the incident and she was clearly upset about what had happened. He submitted that even if Ms Doyle had misinterpreted the details of the applicant's conversation, it was inappropriate to have discussed the subject matter with a passenger. 18 Mr Wozniak further submits that the cancellation is justified by the totality of the incidents that are identified in the respondent's file. He argued that on the basis of the material before the Tribunal it could not be attested that the applicant meets the required standards for authorisation as a taxi driver. 19 Accordingly he says that the respondent's determination should be affirmed. The applicant's case 20 The applicant gave oral evidence at the hearing and was cross-examined. He also relies on a number of references that attest to his good character. It is apparent that each of the authors holds the applicant in high regard however it is unclear whether or not many of those authors are aware of the applicant's complaint history or the reasons for the determination to cancel his authority. 21 The applicant denied the majority of the allegations in the complaints. He accepted that in his first year as a taxi-driver he made many mistakes but said that he has incurred no further infringements after he was given a warning in October 2007. His case is essentially that set out in the response to the Notice to Show Cause. His solicitor wrote: "We submit the responses to the following complaints: 1. CFI 39073 This was a hire for thirty minutes. Our client claims that he did not harass the passenger. He claims that if the passenger did not like our client's behaviour then the passenger was at liberty to leave. The passenger questioned my client about his origins which may have been due to his accent. Our client responded to the passengers questions. The passenger has misinterpreted what my client has said to her. Our client does not have two wives as claimed by the passenger (see copy of our client's wife's statement). We submit that this is one person's word against the other. Our client drives for many female passengers, and there is only one complaint of such a nature, it does not mean that he is not of good repute and not a fit and proper person to be a taxi driver. 2. CFI 37005 The passenger from North Sydney hailed our client and asked him to take him to North Sydney Council but did not tell me the address. When our client asked him for the address the passenger instructed him to go to the left along Pacific Hwy. Our client left from Blue Street to PHWY. A distance from Miller Street the passenger said to my client "Where are you taking me Man?". Our client turned left and stopped in front of North Sydney Post Office to refer to the directory. The passenger called the company and said "I have got a Cab driver who doesn't know what to do". Our client told the passenger to be kind and stated that without telling him the address he did not know where to go to. Our client said to the passenger that either the passenger should give the address or let him use the directory to spot the location. Our client also told the passenger that if he does not like him then he can hire another taxi, our client opened the door for the passenger. The passenger then told our client to go to Miller Street. Within two minutes our client took him to his destination. Our client is a bailee driver, the card holder was broken. It is the duty of the taxi owner to fix it. Our client tried to fit the authority card in the broken holder but the authority holder kept falling, our client kept the Authority card in the directory. The passenger did not ask our client about the display of the authority card. Note: Just after dropping the passenger at his destination our client lodged the complaint against customer with Natasha at the Taxi Combined base. She said "you are not responsible, don't worry at all ". 3. CFI 31418 Our client does not fully remember this however he states that the $22 fare indicates that he took the passenger through the roads where traffic is not so heavy during peak hours to Bridge Street. Using the highway required use of South Dowling Street as well as Todman or Dacey Ave which would make the journey longer because of heavy traffic in South Dowling Street. Our client travelled from Kensington to Anzac Parade and then Flinders Street and Oxford Street, then College and Macquarie Streets. At no time did our client travel along Elizabeth Street. If the passenger had an interview then the passenger should have left home earlier. 4. CFI 29650 Our client does not remember this. Record of interview has not been provided. This was not justified. 5. CFI 23543 My client claims that he does not remember everything. However he remembers that this was a radio job. He was in Castle Hill rank. He was required to go long distance to Winston Hill pick the passenger and take her to the airport. He admits that he did refer to the directory which took time. It took him at least 20 minutes to drive and pick him. However he was able to catch his flight. My client claims that there was no ground for the passenger to make the complaint. 6. CFI 23543 Our client does not remember this. There is no record of interview provided. This was not justified. 7. CFI 23478 Our client does not remember this. Record of interview has not been provided. This was not justified. 8. CFI 23456 Our client does not remember this. Record of interview has not been provided. This was not justified. 9. CFI 22005 Our client does not remember this. Record of interview has not been provided. 10. CFI21547 Our client does not remember this. Record of interview has not been provided. This is not justified. 11. CFI 20428 Our client does not remember this. There is no record of interview provided. This was not justified. 12. CFI 20197 Our client does not remember this. There is no record of interview provided. This was not justified. 13. CFI 19882 Our claims that he had a radio job. There is no record of interview provided. This was not justified. 14. CFI 19189 Our client does not remember this. There is no record of interview provided. This was not justified. Traffic Infringements: These are mostly related to speeding and fines. Of the fourteen complaints ten complaints are not justified. We submit that there is not sufficient evidence to prove the four justified complaints, one is sexual harassment and the others are failed to travel by shortest route, not arriving on time, fail to carry out punctual hire/late for booking and failure to display authority card. These four complaints do not warrant a cancellation of the driver authority of our client. Our client has 12 driving points. He has not committed any criminal offence. ... We submit that based on the Bringinshaw principles that the four complaints which the Ministry has classified as 'justified" lacks evidence. Therefore we submit that our client's driver authority should be not be cancelled." 22 With respect to the incident with Ms Doyle on 1 August 2008, the applicant's evidence is that there was no inappropriate conversation. He stated that Ms Doyle had asked him about his experiences as a taxi driver, both good and bad, and that he had reported a conversation that he had had with another passenger who had told him that he had two wives. He said that the details that he had given to Ms Doyle were in the context of his explaining how a passenger had told him about how he had abused his wife. The story concerned the passenger and the passenger's wife. He said that Ms Doyle had misinterpreted what he had told her and had thought that he was telling her about his own circumstances. 23 He said that the comments that he had made with respect to how Ms Doyle would be regarded as 'worth nothing' in his culture was merely an attempt to explain the cultural differences. 24 He said that he did not consider that it was inappropriate to recount a bad experience or to explain cultural differences in response to a passenger's question. Nor did he consider that it would be inappropriate for another taxi-driver to have a similar conversation with his daughter if she were a passenger in their taxi. 25 The applicant asserts that there is no basis on which the Tribunal could conclude that his authority should be cancelled and accordingly the determination under review should be set aside. Findings 26 The respondent's decision was based on the view that it can no longer be attested that the applicant meets the required standards for authorisation as a taxi driver. This view was formed after consideration of the record of complaints made about the applicant and his traffic record. I am satisfied that the material on which the respondent relies accurately records those complaints and the applicant's traffic record. 27 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] – [18] the Tribunal's Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority as follows: "17 Taking into account the terms of the legislation and the case law interpreting similar provisions, 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. 28 The applicant has not been arrested or convicted of any criminal offences however several complaints have been made against him in a relative short period as a taxi driver. The applicant disputed the allegations made in many of those complaints. I have heard evidence from Ms Doyle but I have not heard from any of the earlier complainants. In the circumstances I am unable to form a view in relation to the earlier complaints. 29 In my view, Ms Doyle's allegations are serious. While the applicant does not specifically recall the incident with Ms Doyle on 1 August 2008, he does not dispute that he had a conversation with a passenger in which he relayed details of the kind referred to by Ms Doyle. In my view it is probable that a conversation of the kind referred to by Ms Doyle did take place. 30 The applicant's driving record is not good, albeit at the lower end of the scale in comparison with that of many taxi-drivers. 31 Though untested, the applicant's references suggest that he is well regarded by some in the community. 32 The question of the likelihood of the applicant re-offending or be the subject of further complaints must be considered. In my view, the fact that he continued to incur complaints after he had undergone retraining and been given a warning of the possible consequences if that occurred is significant. The nature of the conduct that Ms Doyle has alleged is of concern, as is the fact that the applicant fails to grasp the significance of the issue. 33 In my view the applicant's conversation with Ms Doyle on 1 August 2008 was inappropriate. Given the history of complaints against him and the warning previously given by the respondent it would be reasonable to expect that the applicant would have adapted his behaviour to avoid the possibility that passengers might consider his behaviour inappropriate. He undertook retraining in the navigation and regulations modules of the TaxiCare Plus course and he said that he has adapted his driving habits. His driving record seems to reflect that change. However, it seems that he has not adapted his behaviour towards his passengers or if he has attempted to do so he has not succeeded. 34 I agree with the applicant that it is likely that Ms Doyle misunderstood what he was relating to her during the trip on 1 August 2008. However, I accept that Ms Doyle was upset by the incident and she clearly found it difficult to recall the incident when giving her evidence at the hearing. Regardless of whether Ms Doyle misunderstood that the applicant's story concerned another passenger and not the applicant, in my view the conversation was inappropriate. The fact that the applicant fails to understand that it is inappropriate for a taxi driver to have such a conversation with a passenger suggests to me that it is likely that he will be the subject of further complaints. In my view he should not be permitted to drive a taxi until he is able to satisfy the Ministry that there is minimal risk of this type of conduct reoccurring. 35 In my view the nature and seriousness of the applicant's conduct outweighs the factors that are in his favour. It cannot be attested that the applicant meets the required standards for authorisation as a taxi driver. For this reason the decision to cancel his authority should be affirmed. 36 If he were to satisfactorily complete training modules on Customer Care and Regulations the Ministry may well take a different view should he choose to reapply in the future. However, for now the decision to cancel his authority should be affirmed. Decision The decision to cancel the applicant's authorisation to drive a taxi-cab is affirmed.