CITATION: Bidewy v Ministry of Transport [2008] NSWADT 314 DIVISION: General Division APPLICANT B Bidewy PARTIES: RESPONDENT Ministry of Transport FILE NUMBER: 083330 HEARING DATES: 24 November 2008 SUBMISSIONS CLOSED: 24 November 2008 DATE OF DECISION: 27 November 2008 BEFORE: Handley R - Deputy President CATCHWORDS: Passenger Transport Act - taxi driver - suspension of authority LEGISLATION CITED : Passenger Transport Act 1990 Passenger Transport Regulations 2007 Gomes v Ministry of Transport [2008] NSWADT 303 CASES CITED: Saadieh v Director General, Department of Transport [1999] NSWADT 68 Haideri -v- Director General, Department of Transport [1999] NSWADT 61 Singh v Director-General, Department of Transport [1999] NSWADT 96 APPLICANT E Georges, solicitor REPRESENTATION: RESPONDENT A Wozniak, solicitor ORDERS: The decision under review is varied so that the suspension of the applicant's taxi driver authority is lifted from the date of this decision REASONS FOR DECISION 1 This matter involves an application by Barrack Bidewy for the review of a decision of the Director General of the Ministry of Transport ('the Ministry') to suspend Mr Bidewy's taxi driver authority. Background 2 Mr Bidewy, who is aged 35, came to Australia as a refugee from Iraq in 1999. He is married with four children aged between 2 and 14 years. His wife and children are financially dependent on him. Mr Bidewy was granted a taxi driver authority in July 2005. 3 On 12 December 2007, a passenger who claimed to have travelled in a taxi driven by Mr Bidewy, said that on 8 December 2007 he offered her a free ride if she gave him a "head job" or "hand job" or watched him masturbate. On 21 December 2007, Mr Bidewy attended an interview with the Ministry at which he denied the allegations made against him. On 15 January 2008, a compliance officer with the Ministry recommended that Mr Bidewy be prosecuted for breach of clause 35(b) of the Passenger Transport Regulation 2007 ('the 2007 Regulation'), which provides that the driver of a public passenger vehicle must: (b) behave in an orderly manner and with civility and propriety towards any passenger, intending passenger, driver of another public passenger vehicle or authorised officer, ... The maximum penalty for breach of the clause is 10 penalty units. 4 Mr Bidewy was duly charged and the matter was listed for hearing on 24 June 2008 at Parramatta Local Court. On that date the matter was adjourned for mention on 15 August 2008, when it was set down for hearing on 28 October 2008. The matter was subsequently listed for hearing at Manly Local Court on 5 February 2009. Mr Bidewy has pleaded 'not guilty' to the charge. 5 On 30 July 2008, Mr Bidewy was charged with assault occasioning actual bodily harm after a domestic argument with his wife. That charge was dismissed on 6 November 2008. 6 On 25 September 2008, the Ministry suspended Mr Bidewy's taxi driver authority pursuant to s 33F of the Passenger Transport Act 1990 ('the Act'), which provides that "the Director-General may at any time vary, suspend or cancel" such an authority. The stated grounds for the suspension were as follows: "The current allegation recorded against you casts grave doubts about your fitness to hold a public passenger vehicle authority and of your ability to carry out the duties and responsibilities of the position according to law and custom." 7 Section 33 of the Act states, relevantly: (1) The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (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. 8 On 30 September 2008, Mr Bidewy's solicitors applied for an internal review of this decision. On 17 October 2008, an internal review officer affirmed the decision. On 11 November 2008, Mr Bidewy lodged an application for a review of this decision by the Tribunal. Mr Bidewy's Evidence 9 Mr Bidewy gave evidence of his having worked as a taxi driver for three years and said that a complaint has never previously been made against him, nor has he received any warning from the Ministry in relation to his conduct. He has only ever been convicted of two traffic offences – in 2002 and 2008. Mr Bidewy strongly denies the allegations made against him currently before the Court. He has no clear recollection of the passenger who made the complaint. He said that when the Ministry interviewed him, there was no interpreter present. He was asked whether he read and understood English, to which he replied, "Read not really and understand 70%". 10 Mr Bidewy said that he is in financial hardship. His wife does not work and he has only ever worked as a taxi driver in Australia. He supports his wife and four children. He has to pay rent and school and child care expenses. He feels very weary and worn down by the court proceedings. Submissions 11 Mr Georges noted that Mr Bidewy has pleaded 'not guilty' to the charge against him, the maximum fine for which is currently $1,100. This is the first offence with which he has been charged under the Act and he has never previously received a warning letter from the Ministry in relation to his conduct. Mr Georges contended that Mr Bidewy is a good family man and the references he has provided attest to his being honest, hard working and of good character. Mr Georges noted that the Ministry waited nine months after having interviewed Mr Bidewy about the alleged incident before suspending his taxi driver authority. The likelihood of Mr Bidewy committing an offence of a similar kind to that alleged is very slim. 12 Mr Georges referred the Tribunal to the decision in Gomes v Ministry of Transport [2008] NSWADT 303 ('Gomes'), where, in the case of a person against whom there had been 13 complaints and who had been reprimanded by the Ministry, the Tribunal set aside the cancellation of the person's taxi driver authority and substituted a decision suspending that authority for a period of three months. The Tribunal referred to the factors that should be considered in determining a person's fitness and suitability to hold a taxi authority set out in Saadieh v Director General, Department of Transport [1999] NSWADT 68 ('Saadieh'), at [17] to [18]. 13 Mr Wozniak sought to distinguish the decision in Gomes, noting that there had been no charges brought against Mr Gomes in respect of the complaints. Mr Wozniak said that it is the nature and seriousness of the charge that is the relevant issue. It is not just a matter of the penalty, but the context in which the alleged incident occurred – in this instance, in the course of the regulated activity, and the relationship of the alleged conduct to the question of fitness and propriety. Mr Wozniak referred to a number of relevant Tribunal decisions including that of Haideri v Director General, Department of Transport [1999] NSWADT 61 ('Haideri'), a case that involved a taxi driver being convicted of failing to behave in an orderly manner and with civility and propriety, where the driver had been talking about sexually explicit matters to a passenger. At [24], Deputy President Hennessy said: "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 Deputy President was satisfied the respondent had made the correct and preferable decision in cancelling the applicant's authority. 14 Mr Wozniak submitted that the charge against Mr Bidewy is a serious one and the matter will be heard in a relatively short time – on 5 February 2009. Discussion 15 Pursuant to s 33F of the Act, the Director General "may at any time vary, suspend or cancel" a taxi driver authority. Section 33(3)(a) requires that such a taxi driver must be "of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab", and s 33(3)(b) requires that such a person must have "sufficient responsibility and aptitude to drive a taxi-cab ... in accordance with law and custom". 16 Deputy President Hennessy discussed the meaning of 'good repute' in Singh v Director-General, Department of Transport [1999] NSWADT 96: essentially, a person's reputation is how the community assesses the person's moral character. The Deputy President also discussed the factors to be considered when determining a person's suitability and fitness to obtain a taxi-cab authority, referring to her earlier decision in Saadieh, where she said, at [17], that these factors include: "the nature, seriousness and frequency of any criminal offences for which the applicant had 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; the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences." 17 The meaning of the phrase 'fit and proper person' was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at [9], where Dixon CJ, McTiernan and Webb JJ found the word 'fit', in relation to an office, to involve honesty, knowledge and ability. The meaning of the phrase 'fit and proper person' was also discussed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where Toohey and Gaudron JJ said at [36] of their judgment: "The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities." As their Honours recognised, at [66], whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed. 18 With regard to that context, the parties referred me, in particular, to the decisions in Haideri and Gomes. I note that the former case, where the Tribunal affirmed a decision to cancel a taxi driver authority, involved a conviction for incivility arising from sexually explicit words spoken to a passenger. The latter case, where the Tribunal set aside the cancellation of a taxi driver authority and substituted a suspension for three months, did not involve a conviction but, rather, a relatively large number of complaints made by passengers against a taxi driver. 19 In Mr Bidewy's case, there is a charge in relation to one incident involving alleged sexually explicit words spoken to the passenger, to which Mr Bidewy has pleaded not guilty, strongly denying the allegation made. The hearing of that matter, which has been delayed on a number of occasions, is listed for 5 February 2009. While I accept that in the context of regulating the conduct of taxi drivers, such conduct, if proved, is a serious matter, I note that in three years of taxi driving, Mr Bidewy otherwise has a clean record. He has supplied references from a doctor, a registered tax agent and the director of a proprietary limited company who all attest to his being a hard working, honest man of good character. 20 I also note that nine months passed from the time Mr Bidewy was interviewed by the Ministry in relation to the alleged incident – on 21 December 2007, to the time of the decision to suspend his authority on 25 September 2008. Two months have now passed since the time of that suspension. A final decision on Mr Bidewy's taxi driver authority will await the outcome of the hearing of the incivility charge on 5 February 2009, in over two months time. I find that Mr Bidewy's wife and four children are dependent upon him for financial support and accept that the suspension of his authority in circumstances where this is the only employment he knows in Australia, is causing him and his family financial difficulties. 21 In my view, the correct and preferable decision is to lift the suspension of Mr Bidewy's authority with immediate effect. With regard to the public interest, I am satisfied that it is very unlikely that Mr Bidewy would commit an offence of a similar kind to that alleged in the intervening period between now and the hearing on 5 February 2009. Decision 22 The decision under review is varied so that the suspension of the applicant's taxi driver authority is lifted from the date of this decision. 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.