Askin v Director General, Department of Transport [2003] NSWADT 110

CITATION: Askin v Director General, Department of Transport [2003] NSWADT 110 DIVISION: General Division APPLICANT PARTIES: Selcuk Askin RESPONDENT Director General, Department of Transport FILE NUMBER: 023287 HEARING DATES: 29/01/2003 SUBMISSIONS CLOSED: 01/29/2003 DATE OF DECISION: 05/19/2003

BEFORE: Montgomery S - Judicial Member APPLICATION: Passenger Transport Act - public passenger vehicle - cancellation of authority - public passenger vehicle - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 CASES CITED: Saadieh v Director General Department of Transport [1999] NSWADT 68 Singh v Director General Department of Transport [1999] NSWADT96 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: 1. The Director General's decision to cancel Mr Askin's authority to drive a public passenger vehicle authority is affirmed.

Background 1 On 11 December 2002 Mr Askin lodged an application with the Tribunal for a review of a Decision of the Director General, Department of Transport to cancel his public passenger Driver Authority. The cancellation came about as a result of an incident that occurred on 23 July 2002 in which it is alleged that Mr Askin drove a bus in a dangerous manner and that his demeanour was highly unprofessional for a person that is in charge of a Public Passenger Vehicle. Mr Askin was issued with three infringement notices in relation to the incident. 2 A Police officer who observed the incident provided a report, which was referred to the Department of Transport. The Report stated: "BACKGROUND: About 7.50am on Tuesday the 23rd of July 2002, State Transit Authority Bus registration number MO-2846 was stopped on Glenayr Avenue, Bondi in relation to a traffic offence. The actual offence had a very high potential danger with the bus being driven on the incorrect side of raised median strip directly into the path of oncoming traffic. Immediately on speaking with Askin his demeanour was aggressive and impatient, yelling at Police all of this within hearing and view of about 20 passengers on the bus. An infringement notice was completed and when Askin was approached with this notice he began to yell out loudly, exit the bus and aggressively approach Police on the roadway waving his arms in the air towards Police indicating his aggression. Askin then snatched the infringement notice, drivers licence and Authority card from my hand, crumpled up the infringement notice and threw it down to the roadway. By this time there were a large number of onlookers on the footpath watching his behaviour and as it was in front of the bus, the passengers on board the bus could see what was occurring. Askin continued this behaviour yelling … Askin was informed he would be reported for the offence and given my details. I retrieved the infringement notice that Askin left upon the roadway, returned to the Police vehicle and left the area. A short time later whilst performing static enforcement upon Warners Avenue, Bondi I saw a bus approach my location. I then saw the defendant put his head close to the edge of the open driver's window and yell out something loudly at Police. I am not sure what he yelled out. At this time the bus was empty. Askin was not stopped on this occasion." 3 On 16 October 2002 Transport NSW issued Mr Askin with a "Notice to Show Cause". This Notice referred to the incident of 23 July 2002 and the infringement notices issued on that date. It informed Mr Askin that "as a result of information supplied to Transport NSW from the NSW Police Service, a review is to be held as to whether you are a fit and proper person to continue to hold public passenger vehicle driver authority". It invited Mr Askin to make submissions in relation to the review. 4 The Notice of Cancellation that the Director General issued is dated 22 November 2002. The Director General also provided Mr Askin with reasons for the decision to cancel his authority. Those reasons stated "The Reasoning Process that led to the decision The Department of Transport has a continuing obligation under the Passenger Transport Act 1990 to ensure only fit and proper persons drive public passenger vehicles. I have considered: (a) The nature, seriousness of the offence(s)noted; (b) The likelihood that you will be the subject of further complaints; (c) The fact that the Department has received no reply to the "Notice to Show Cause" letter forwarded to you on 16th October, 2002. I am not satisfied that you have sufficient responsibility and aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger vehicle is operated, or in accordance with law and custom. Your offence record is such that I cannot attest that you satisfy the requirements contained within Section 11 (2) Passenger Transport Act 1990. Having regard to all matters raised, and considering the interests and safety of the travelling public and the general public, I am not of the opinion that you are a fit and proper person to be the driver of a public passenger vehicle. Therefore, you do not meet the required standards for authorisation as the driver of a public passenger vehicle. Accordingly the determination has been made to immediately cancel your public passenger vehicle driver's authority." 5 Mr Askin applied for an internal review of the Director General's decision by letter dated 27 November 2002, pointing out he considered that the cancellation had come about as the result of some misunderstanding and communication breakdown. He indicated that he had appealed the infringement notices and that those matters were before the courts. He also stated: "I am totally rejecting the police version of the incident. I was driving express bus and I have got stuck behind this rubbish truck, which was blocking whole traffic some minutes. After waiting about 4-5 min, I carefully look around it. As soon as I did that a patrol officer has booked me for doing that and when I drew his attention about rubbish truck's violations of the rules he has issued another ticket "bus driver dos not-behave in civility"! While I was objecting and talking to him through driver's window the infringement notice fallen to the ground he immediately charged for the third one "littering"! I have not received your "Notice of Show Cause" letter as I have not received some of my periodical magazines/mails in October. There might have been either delivery or some other problem. I am quite exemplary, responsible and dedicated driver always helpful to the public and proud of it. These infringement notices were unfortunate incident result and out of my character. Driving is my sole earner and I also pay some maintenance for my daughter. To loose this will cause severe hardship on me." 6 Mr Askin lodged further submissions in relation to the internal review by letter dated 29 November 2002. In these submissions he elaborated on his version of the incident of 23 July 2002. He stated: "On 27th July, around 7.50 am I was doing Express bus X89 from Nth. Bondi to Bondi Junction and about 100 meters to the comers off Blair and Glenayr Sts. I got stuck behind a rubbish truck, which was halting and moving very slowly emptying bins. After waiting 4-5 minutes, considering my passengers were getting late their work, I after observing no traffic coming from the other street, safely, skilfully, took wide arc around the truck and overtook it. Since bus is a very long vehicle while I was doing that I slightly went over the very worn separation island, and stopped at the bus stop 15 meters away. Unfortunately this police patrol car was coming from a distance on Glenayr St. he signalled me, officer came out and given a ticket that it was dangerous etc. When I drew his attention to rubbish truck's violation of the rules he responded by saying that "they are allowed to do that". I said I had the traffic rules book with me and "show me the section stating that". I became upset ordered me to leave. I said to him "We are getting $17 an hour and sweating our ass off you are giving me this S164 ticket. It is very unfair. I'm not driving my Porsche or 4WD for fun. I'm carrying public passenger to their work". I asked his badge number as well as patrol car's plate no. He ignored me and I got out of the bus and wrote it myself. I was talking to him through driver side window and somehow ticket fallen to the asphalt. He shouted "littering". During this argument the second officer was in the car but somehow in their complaint letter he signed it as if he had heard everything! Later on when I returned the area for my second trip same officers were standing by their car in Warners Ave. indicating, pointing their fingers, and laughing at me." 7 The internal review was conducted on 6 December 2002 and the decision was affirmed. In affirming the original decision, the Director General's delegate stated: "INTERNAL REVIEW FINDINGS I have reviewed the facts, evidence and material available to me, and can confirm that the original decision to cancel Mr Selcuk Askin's Public Passenger Vehicle Driver Authority was justified. In determining Transport NSW's decision to cancel the Authority, I have taken into consideration the information contained in the application for an internal review submitted by Mr Askin. I am unable to find sufficient evidence from Mr Askin in the application that would constitute any reasoning to substitute the original decision. I have considered two personal statements provided by Mr Askin. I have noted his assertion that he did not receive the Notice To Show Cause issued by the Department. I have noted that Mr Askin's version of the events relating to the issue of the Infringement Notices differs (in part) from that contained in the report provided to the Department by the issuing police officer. I have noted that Mr Askin has elected to have the three matters determined by the Court. Of significant importance I have noted Mr Askin's admission in his personal statement that he allowed the bus he was driving at the time of the offences to partially cross the centre median strip of the road. I consider that this action demonstrates his disregard for abiding by law and custom and potentially placed the passengers travelling on the bus at risk from oncoming traffic, notwithstanding his assertion that there was no approaching traffic at the time. Having regard to the above and considering the interests and safety of the travelling public, I have determined that Selcuk Askin is not a person of good repute and in all other respects fit and proper to drive a public passenger vehicle. I cannot attest that he is fit and proper to hold a public passenger vehicle driver's authority in accordance with Section 11(2) of the Passenger Transport Act 1990." Applicable Legislation 8 Section 12 of the Passenger Transport Act 1990 ("the Act") gives the Director General a discretion to grant authorities, having regard to the purpose of that authority. Sub-section 11(2) of the Act sets out the purpose of an authority in the following terms: "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 public passenger vehicle; and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated; and (ii) in accordance with law and custom." 9 The Director-General may cancel an authority pursuant to section 14 of the Act which provides: "Variation, suspension or cancellation of authority 14. Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority." 10 The decision to be made is whether Mr. Askin can be considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and to have sufficient responsibility and aptitude to drive the vehicle to which the authority relates; in accordance with the conditions under which a public passenger service is operated and in accordance with law and custom such that an authority can attest to that status. 11 It is clear from the correspondence and the Department's file that the Director General decided that an authority would not attest that Mr. Askin is a fit and proper person or that he has sufficient responsibility or aptitude to be the driver of a public passenger vehicle. Evidence 12 The Department's file was put in evidence and the Director General relied on the documents contained within that file. The Director General also relied on a statement and evidence from Senior Constable Edward Schey and a statement from Senior Constable Lyndon Clarke. Mr. Askin gave evidence on his own behalf. Their evidence was consistent with the versions of events set out above. 13 Mr Askin conceded that he allowed the bus he was driving at the time of the offences to partially cross the centre median strip of the road. His primary argument is that the offence was not so serious as to justify cancellation of his authority. 14 The Director General's primary argument is that while the offence is serious and placed Mr Askin's passengers in danger, his conduct towards the police was totally inappropriate. A driver of a public passenger vehicle must show responsibility and aptitude and Mr Askin has failed to demonstrate this. The evidence from the police officers that attended the incident is that Mr Askin's conduct was totally unreasonable and that this was the main reason why the report was forwarded to the Department of Transport. Senior Constable Schey's evidence was that he regularly issued infringement notices but has never before notified the Department about a driver's behaviour. Mr. Wozniak argued that Mr Askin has only been driving buses for a relatively short period and therefore a suspension of his authority is not warranted. He has no good driving record that he can rely on to justify a suspension rather than a cancellation. Mr. Wozniak argued that Mr Askin is not a fit and proper person to be the holder of an authority because he cannot control his temper. Findings 15 The Tribunal has considered the concepts of "fit and proper" and "good repute" in previous cases (See Saadieh v Director General Department of Transport [1999] NSWADT 68; and Singh v Director General Department of Transport [1999] NSWADT 96) and I will not repeat that analysis here. 16 In Saadieh v Director General, Department of Transport the Tribunal's Deputy President set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain an authority. These factors were: - 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. 17 In this case, Mr Askin has been issued with infringement notices in relation to both his driving and his behaviour. These relate to a single incident. He has admitted the driving offence but points to events that lead to the offence as relevant circumstances. In this regard I accept the evidence given by Senior Constable Schey as an accurate account of the incident. 18 While this is a once off incident, it is my view that it is extremely serious. Mr Askin has placed his passengers at risk but of equal significance is his response to the police officers that attended the scene. 19 Mr Askin's driving record was put in evidence. This record indicates several offences since 1983 but does not highlight items of significance that would suggest that Mr Askin is not otherwise a reasonable driver. 20 The likelihood that the applicant will re-offend is always difficult to predict. Mr Askin has not provided any explanation for his conduct and therefore I have no basis on which I can assess this factor. Similarly, I have no reasonable basis for assessing Mr Askin's reputation in the community. 21 Mr Askin's financial hardship was not disputed. Financial hardship however is also not a relevant consideration when determining whether Mr Askin is a fit and proper person to hold an authority. 22 Having weighed the evidence, I am satisfied that the gravity of Mr Askin's conduct on 23 July 2002, and in particular his conduct towards the police on that day, outweighs the other relevant factors presented in his favour. 23 Having regard to all matters raised, and considering the interests and safety of the travelling public and the general public, I cannot be satisfied that Mr Askin is a fit and proper person to be the driver of a public passenger vehicle. It follows in my view that the correct and preferable decision is to cancel Mr. Askin's authority. Accordingly I affirm the Director General's decision. Orders 1. The Director General's decision to cancel Mr. Askin's authority to drive a public passenger vehicle is affirmed.