Sikder -v- Director General, Department of Transport [2002] NSWADT 148

CITATION: Sikder -v- Director General, Department of Transport [2002] NSWADT 148 DIVISION: General Division APPLICANT PARTIES: Abdul Maleque Sikder RESPONDENT Director General, Department of Transport FILE NUMBER: 013280 HEARING DATES: 28/05/02 01/08/02 SUBMISSIONS CLOSED: 08/01/2002 DATE OF DECISION: 08/21/2002

BEFORE: Hennessy N (Deputy President) APPLICATION: Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Evidence Act 1995 Passenger Transport Act 1990 Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 CASES CITED: Melbourne v The Queen (1999) 198 CLR 1 Caska v The Director General Department of Transport [2001] NSWSC 205 Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The decision to cancel Mr Sikder's taxi authority is affirmed.

Introduction 1 On 15 October 2001, the Director General, Department of Transport (the Director General) cancelled Mr Sikder's taxi authority. On 11 December 2001, the Tribunal granted Mr Sikder a stay of this decision under s 60 of the Administrative Decisions Tribunal Act 1997 (ADT Act). The stay enabled Mr Sikder to continue driving a taxi pending the determination of his application by the Tribunal. 2 On 28 May 2002, the Tribunal heard the Department's evidence in this matter. As there was not enough time for Mr Sikder to give his evidence, the case was adjourned for further hearing on 1 August 2002. The Tribunal continued its order staying the operation of the decision to cancel Mr Sikder's authority. 3 On 31 May 2002, on the application of the Director General, the Tribunal revoked the stay of the decision. The reason for revoking the stay was that on 26 March 2002, Mr Sikder had been charged with indecent assault on a female passenger. Mr Sikder did not disclose to the Tribunal the fact that he had been charged with this offence at the hearing on 28 May 2002 or at any other time. The Department did not find out about the charge until after the hearing on 28 May 2002. 4 The charge of indecent assault on a female is listed for hearing in the Local Court on 4 November 2002. Mr Sikder has also been charged under the Passenger Transport Act 1990 (PT Act) for failing to disclose the charge to the Department. That matter is listed for mention in the Local Court on 6 September 2002. 5 At the hearing on 1 August 2002, Mr Sikder applied for an adjournment until after the charge in relation to indecent assault has been finalised. I refused that application on the ground that the question for this Tribunal is different from that which will be determined in any criminal proceedings. The question for the Tribunal is whether or not the Director General made the "correct and preferable decision" in cancelling Mr Sikder's taxi authority. The Tribunal's decision must be made on the basis of all relevant factual material. (See s 63 of the ADT Act.) However I appreciate that it may disadvantage Mr Sikder if he is required to give evidence about the circumstances surrounding the indecent assault allegations in the Tribunal prior to giving that evidence in the Local Court. For this reason, while the fact that Mr Sikder has been charged with indecent assault is a relevant factual material, I have not taken into account the alleged circumstances of that offence in determining the issue before me today. 6 In relation to Mr Sikder's evidence about whether he told the Department that he had been charged with an offence, I gave Mr Sikder a certificate pursuant to s 128 of the Evidence Act 1995 in respect of that evidence. Statutory provisions 7 Section 33A(1) of the Passenger Transport Act 1990 (PT Act) provides that a person may apply to the Director General for authorisation under this Division. Section 33B(1) and (2) provide that having regard to the purpose of authorisation, the Director-General may grant an application and authorise the applicant to drive a taxi, or may refuse the application. Under s 33 of the PT Act: (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 drives a taxi-cab is guilty of an offence unless the person taxi-cab driver". (2) A person who is an authorised taxi-cab driver. Maximum penalty 100 penalty units. (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 This provision means that there are essentially six elements which an applicant must satisfy before being granted an authority. They are: · that he is of good repute; · that he is in all other respects a fit and proper person to be the driver of a public passenger vehicle; · that he has sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated; · that he has sufficient responsibility to drive a public passenger vehicle in accordance with law and custom; · that he has sufficient aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger service operated; and · that he has sufficient aptitude to drive a public passenger vehicle in accordance with law and custom. Evidence 9 Mr Sikder first obtained a taxi authority in December 1998. At the time his authority was cancelled, he had been driving for approximately three years. During those three years, Mr Sikder was the subject of numerous complaints from passengers. The details of those complaints are set out below. 10 On 9 February 2000 the Department issued a final warning letter to Mr Sikder following four complaints over the period March to November 1999 involving two incidents of demanding more than the prescribed fare, one incident of lacking knowledge of major destinations and one incident of driving in a dangerous manner. 11 Mr Sikder says that he was only interviewed about two complaints in all the time he has been a taxi driver. The file suggests otherwise. File notes record that Mr Sikder was contacted in relation to each complaint and that he was interviewed in relation to most of them. For example, on 24 August 1999, a complaint was made that Mr Sikder charged a passenger $25 when the usual fare was $14. It was alleged that Mr Sikder took the wrong route. Mr Sikder was interviewed on 17 September 1999 in relation to that complaint. His response was that he could not remember the journey. 12 A further complaint on 9 November 1999 alleged that a passenger entered the taxi and advised Mr Sikder of her destination. Mr Sikder told her to get out, and when she refused, Mr Sikder said it would cost $20. He allegedly threatened to hit her and the passenger eventually got out of the taxi. Mr Sikder was interviewed and said that he was not for hire at the time because it was changeover time. 13 In a letter responding to a request by the Department that Mr Sikder "show cause" as to why his taxi authority should not be cancelled, Mr Sikder wrote that the following exchange took place between himself and the person interviewing him: I can cancel your authority anytime without any notice. He told him excuse me sir, you call me for an interview or to threat. If you treat me like that I will leave this palace (sic) and solve the matter at the Court. After that he asked me how do I own T 1995? I don't have authority to own a taxicab and its illegal. You could be fined $124,000.00 or tow years sentence to prison. Only he can help me if I tell him true. Then I said to him that this is another kind of threat. 14 Mr Malone, Complaints Manager with the Department, gave evidence that he interviewed Mr Sikder on 8 December 1999. He denied saying the words attributed to him by Sikder in his letter or that he threatened Mr Sikder in any way. 15 Following a final warning being given, a complaint was received on 10 March 2000 from a male passenger who was conveyed in a taxi from the City to Olympic Park. The complainant said that the driver asked him to sign the American Express docket and leave the amount empty as he would fill in the amount later. 16 When interviewed about this matter Mr Sikder said that he did not remember the incident, however at the hearing he said that he did remember the incident but it did not happen in the way alleged by the passenger. Mr Sikder said that he told the passenger to just fill in the date and the amount and sign it. Mr Sikder denies that he asked the passenger not to fill in the amount. 17 On 2 April 2000 a complaint was received from a passenger who alleged that Mr Sikder told her that she looked sexy and asked if she was feeling sexy. He asked her if she had had enough to drink and said if she hadn't they could go for a drink. Mr Sikder then allegedly said after a good night you have good sex and asked the passenger if she wanted to have sex. The whole time he had his hand on his crotch. Mr Sikder denies these allegations. 18 O 2 June 2001 a complaint was received from a female passenger travelling from the City to Randwick. The complainant wrote a letter to the Department and gave evidence by phone at the hearing on 28 May 2002. The passenger said that during a journey from work to home on 2 June 2001 just after midnight, the driver asked her personal questions such as "Are you married?" and "Do you have a boyfriend?" She told him she was Japanese. The passenger said that Mr Sikder then made the following comments: "I think Japanese girls are so sexy" and "I love Japanese girls". According to the passenger, Mr Sikder was turning around and looking her up and down even when he was driving. 19 The passenger told the Tribunal that at the end of the journey she asked for a receipt. The driver told her that issuing receipts for cab charges was against taxi company policy. Mr Sikder finally provided her with a receipt but it had the incorrect fare written on it. When the passenger told him that she found his attitude offensive and said she going to complain, he said "fuck off, bitch!" She left the passenger door open and when he got out of the car. Instead of closing the door and driving off, he started shouting and screaming at her. The passenger said that she did not want him to know exactly where she lived, so she hid behind a parked car, waiting until he left. 20 The passenger agreed that she was annoyed by Mr Sikder's manner and that she was angry when she got out of the taxi. She says she did not shut the door because she wanted to cause him some inconvenience. 21 Mr Sikder's version of events was that the passenger first asked him where he was from and he told her and asked her the same question. He denies making any comments about being sexy or loving Japanese women, as alleged by the passenger. Mr Sikder says that they had an argument about the issuing of a receipt, but says that he did not get out of the taxi. 22 On 29 April 2001 a complaint was received from an intending female passenger who attempted to hire a taxi driven by Mr Sikder. When the passenger hailed the taxi, it stopped and Mr Sikder said "You white piece of trash, you're all fucking trash." Mr Sikder denies this incident. 23 On 21 January 2002 a passenger on journey from a brothel in Stanmore to Surry Hills complained that the driver asked her a lot of questions about her work, her personal life and whether she had a husband at home who knew what she was doing. Mr Sikder denies these allegations. 24 Mr Sikder provided evidence that his wife is not in good health and that he is the only person in the family earning an income. He also provided references including one from Mr Anthony Haddad from Airport Taxi Base who said that Mr Sikder was one of their regular drivers and he never had any problems with him. "He is very quite, gentle and reliable. He bears moral and good character. I never hear him to use bad languages with others." Findings of fact 25 In relation to each of the complaints made against Mr Sikder I find that they occurred as alleged by the complainants. The passenger who gave evidence by phone impressed me as a credible witness who was extremely nervous and upset about Mr Sikder's comments. 26 Mr Sikder did not impress me as a person who was telling the whole truth about these incidents. He either denied that the incident occurred, said he couldn't remember the incident or gave a version of events which did not include any of the adverse allegations made by the complainants. 27 His evidence was inconsistent with that of at least nine other people who would have no reason to provide incorrect information about him. 28 Furthermore Mr Sikder applied for a stay of the Tribunal's order in circumstances where he admittedly knew that he was legally obliged to inform the Department of any criminal charges against him. He deliberately deceived both the Department and the Tribunal in relation to this matter. Reasons and Decision 29 Being a "fit and proper person" and of "good repute" are distinct concepts which must both be satisfied before an authority can fulfil its purpose. (Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392; Melbourne v The Queen (1999) 198 CLR 1 at 15.) This proposition was endorsed by the Supreme Court in Caska v The Director General Department of Transport [2001] NSWSC 205. 30 The meaning of the terms "fit and proper person" and "good repute" have been considered in several cases decided by this Tribunal. The Tribunal has frequently quoted the following passage from Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11): 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. (per Toohey and Gaudron JJ at 65) 31 The complaints against Mr Sikder relate directly to his activities as a taxi driver. He has engaged in a pattern of conduct, especially in relation to female passengers, which displays rudeness, dishonesty and the use of sexual innuendo. These characteristics are totally unacceptable to the travelling public. 32 On the basis of all the evidence, including Mr Sikder's references, I am satisfied that the Director General made the correct decision in cancelling Mr Sikder's taxi authority because he could not attest that Mr Sikder is a fit and proper person to have such an authority.