CITATION: Haideri -v- Director General, Department of Transport [1999] NSWADT 61 DIVISION: General APPLICANT: Sayed Haideri also known as Sayed Hamdam RESPONDENT: Director General, Department of Transport FILE NUMBER: 993064 HEARING DATES: 08/02/1999 SUBMISSIONS CLOSED: 08/02/1999 DATE OF DECISION: 13 August 1999 N Hennessy - Deputy President BEFORE: PRIMARY LEGISLATION: Passenger Transport Act 1990 APPLICATION: Review of decision to suspend taxi-cab authority - MATTER FOR DECISION: Principal matter Applicant: In person REPRESENTATION: Respondent: Mr Wozniak, solicitor ORDERS: 1. The respondent's decision to cancel the applicant's taxi authority is affirmed. History of application 1 On 15 April 1999 the applicant, Mr Haideri, applied to the Tribunal for a review of the respondent's decision to cancel his authority to drive a taxi. 2 The applicant was convicted under s 24(b) of the Passenger Transport (Taxi-Cab Services) Regulation 1995 for failing to behave in an orderly manner and with civility and propriety towards a passenger. 3 On 5 February 1999 the respondent provided a Statement of Reasons in relation to the decision. That Statement of Reasons stated that: The Department relies on the following facts, evidence and material to make the decision to cancel your driver's authority no FK 3937 You were convicted at Parramatta Local Court on 14 December 1998 for failing to behave in an orderly manner and with civility and propriety towards a passenger under section 24(b) of the Passenger Transport (Taxi-Cab Services) Regulation 1995. The above behaviour occurred in you occupation as a taxi-driver. Section 14 of the Passenger Transport Act allows the Director-General to cancel a driver's authority having regard to the purpose of an authority. That purpose is set out in section 11 of that Act. This means that, for the purposes of your case: The purpose of an authority is to attest that an 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 that the authorised person is considered to have sufficient responsibility to drive the taxi-cab in accordance with law and custom. The fact that your offences were committed while you were engaged in your occupation as a taxi-driver means that you breached a duty of trust and may do so again in the future if you were authorised. The behaviour that led to your convictions showed that you did not have sufficient responsibility to drive the taxi-cab in accordance with law and custom. Based on the above facts and law it can no longer be attested that you are considered to meet the required standards for authorisation as a taxi-cab driver. 4 Pursuant to the Passenger Transport Act 1990 s 52(1) a person whose application has been refused or whose accreditation or authority has been varied, suspended or cancelled, may apply to the Administrative Decisions Tribunal for a review of that decision. Issues and Legislation 5 The Passenger Transport Act 1990 (NSW) s 14 gives that Director General power to cancel a licence: Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority. 6 The purpose of an authority is set out in s 11(2) which provides that: (2) 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. 7 The question in this case is whether the applicant fulfils the requirements of being a "fit and proper person" including being considered to be of good repute; and is considered to have sufficient responsibility and aptitude to drive a taxi. 8 Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that: 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. 9 "Repute" is defined in the Macquarie Dictionary (Third Edition) to mean "estimation in the view of others; reputation." 10 Being convicted of an offence does not automatically mean that the respondent must cancel the person's authority. Merits review cases at the federal level have found that ". . . where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based." (Saffron v FCT (No 2) (19991) 102 ALR 19; Ridley v Secretary, DSS (1993) 29 ALD 726 at 731). Pursuant to s 63 of the Administrative Decision Tribunal Act 1997 the Tribunal must decide whether the respondent made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law. Evidence 11 The transcript of evidence in the Local Court proceedings involving Mr Haideri was tendered in evidence. In brief the transcript contained evidence from Mr Edward Robertson, the accreditation and enforcement officer for Premier Cabs, Vanita James, an officer of the Department of Transport, and the passenger. The passenger gave evidence that while travelling in a taxi in which the applicant was the driver, he talked about sexually explicit matters. These matters included that a gay passenger had propositioned him in the taxi and about how "a man is meant to be with a woman." She also gave evidence that he said that "women are beautiful and women's breasts are beautiful" and "when a man and a woman have sex water comes out of the end of a man's penis, does the same happen for a woman?" She also testified that he said that "since we'd been talking about sex he'd gotten very excited and that his dick was standing up and that you know we should go somewhere and I should spend an hour with him . . ." 12 The transcript shows that the applicant denied that he mentioned anything about sex and that what really happened was that the passenger started to smoke in the cab. He then testified that "I tell her to stop the smoking and she couldn't stop. Later she also drank and drink some juice . . .and just I tell her to stop and . . . if you want to smoke I stop the cab and go outside finish you smoke and then come back. Later she told me "fuck off, what's the matter, what's the problem for you?" 13 The magistrate found the offence proven beyond reasonable doubt despite the fact that there were no other witnesses to the conversation. The magistrate found the passenger's account to be "overwhelming" and the defendant's explanation to be "trite" and "a deliberate attempt to create a motive for her to falsely accuse him rather than being an accurate description of what happened during the journey." The magistrate took into account that the applicant was giving evidence in English which is not his first language, although he did have the use of an interpreter. 14 In these proceedings Mr Haideri gave evidence through an Afghani interpreter that his version of events as set out in the transcript was true. He denied talking about sex and said his English was not good enough at that time to have had the conversation that the passenger said had taken place. When cross examined on this point Mr Haideri agreed that he had passed the language tests to qualify as a taxi driver but said that he was only asked a simple question. 15 Mr Haideri was also cross examined in relation to two other complaints made by passengers, one in February 1998 and the other in July 1998. They involved allegations that he did not take a passenger where he asked to go and the other involved a passenger alleging that he would not listen to directions and that he honked his horn in the middle of the night. Mr Haideri denied the substance of these allegations. 16 Mr Haideri said that "there must have been a mistake" when he filled in his Application for a Driving Authority on 9 November 1998. He agreed that he had answered Question 7 "Are there any charges pending against you for any criminal, traffic or other offence?" in the negative. At that time the applicant agreed that he had already been to the Local Court for directions hearings on two occasions and that the hearing was set down for 14 December 1998, four weeks after he signed the Application. 17 The applicant told the Tribunal that he now has another job and he does not need a taxi authority. However he said he has brought this application to clear his name and to avoid embarrassment if his family and community find out about the conviction. Mr Haideri said that he did not appeal against the Local Court's decision because he could not afford to do so. He said that he was feeling under stress because of the conviction and was taking medication. 18 Mr Haideri's brother, Mr Sayed Asef Haideri, gave evidence that he was a doctor in Afghanistan before migrating to Australia. He said that his brother is an "honest man and a hard worker." He also said that he is "polite and kind". He told the Tribunal that his brother had not told him anything about the complaint until after he rang him when he was a convicted in the Local Court. This witness also told the Tribunal that the story his brother told him was the same as the version he gave to the Local Court and the Tribunal. Discussion of evidence and findings of fact 19 Although a challenge can be made to the essential facts on which a conviction was based, the applicant presented no more evidence to the Tribunal in relation to the journey in question than he had to the Local Court. The evidence of the applicant's brother did not challenge the essential facts on which the conviction was based. It merely went to the applicant's credibility. Since the magistrate had the benefit of observing all the witnesses first hand and assessing their demeanour and their credibility, I accept the facts on which that conviction was based. 20 The applicant denied the substance of the other two complaints made against him by passengers. While I am satisfied that these two complaints were made, I did not have the benefit of hearing evidence from those complainants. In these circumstances I am not satisfied, on the balance of probabilities, that the facts alleged in those complaints occurred. 21 The applicant signed an Application for a Driving Authority denying that any criminal charges were pending against him. He said there "must have been a mistake." Given the applicant's poor English language skills, I am not satisfied that there was any dishonest intention in relation to the completion of this application. 22 Whether or not the applicant has another job or ever wishes to drive a taxi again is not relevant to my decision. Neither is the fact that the applicant's motive for bringing the application is to "clear his name" rather than have the cancellation decision reversed. Application of law and decision 23 The respondent's discretion to cancel a taxi authority is a broad one but must be informed by the purpose of the authority as set out in the Passenger Transport Act 1990 s 11. 24 To be "of good repute and in all other respects a fit and proper person" to drive a taxi the community must have confidence that the applicant would behave appropriately in relation to all passengers. The respondent submitted that the behaviour for which Mr Hairedi was convicted is not acceptable conduct for a taxi driver to engage in. The findings of fact by the Local Court, which the Tribunal has accepted, are sufficient to establish that the applicant has not behaved in an orderly manner or with civility and propriety. I would go further than this. The applicant's conduct constitutes a serious case of sexual harassment. In my view, the public would be justifiably outraged if they knew that a taxi was being driven by a person found to have behaved in such a manner. Because the applicant denied that he engaged in such conduct, he has not pointed to any matter which would tend to put this behaviour in a different light. 25 I am satisfied that the respondent has made the correct and preferable decision in cancelling the applicant's authority. Accordingly, pursuant to s 63 of the Administrative Decisions Tribunal Act 1997 I make the following orders; 26 The respondent's decision to cancel the applicant's taxi authority is affirmed. 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.