Khamis v Director General, Ministry of Transport (GD) [2007] NSWADTAP 41

Appeal Panel - Internal

CITATION: Khamis v Director General, Ministry of Transport (GD) [2007] NSWADTAP 41

APPELLANT PARTIES: Michael Khamis RESPONDENT Director General, Ministry of Transport

FILE NUMBER: 079019

HEARING DATES: 6 August 2007

SUBMISSIONS CLOSED: 6 August 2007

DATE OF DECISION: 17 August 2007

BEFORE: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Antonios Z - Non Judicial Member

CATCHWORDS: Passenger Transport - Taxi Driver - Refusal of Authority - Unsatisfactory History

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 063204

DATE OF DECISION UNDER APPEAL: 04/04/2007

LEGISLATION CITED : Passenger Transport Act 1990

CASES CITED: Khamis v Director General, Ministry of Transport [2007] NSWADT 74 Khamis v Director General, Department of Transport [1999] NSWADT 103

APPELLANT In person REPRESENTATION: RESPONDENT A Wozniak, Smythe Wozniak

ORDERS: Appeal dismissed

REASONS FOR DECISION 1 The administrator of the Passenger Transport Act 1990 (the PT Act), the Director General of the Ministry of Transport, has refused the appellant's application for a taxi driver authority. The appellant applied to the Tribunal for review, and was unsuccessful. The Tribunal affirmed the decision: Khamis v Director General, Ministry of Transport [2007] NSWADT 74. The appellant now appeals to the Appeal Panel. 2 The appellant has held a driver authority in the past. He has a troubled disciplinary history. His history between 1994 and 1999 is the subject of an earlier Tribunal decision, Khamis v Director General, Department of Transport [1999] NSWADT 103. The decision now under appeal retraces that disciplinary history, and brings it up to date covering the period 1999-2006. The Director General restored his driver authority in 2001. It was cancelled again in 2004. In March 2006 the appellant lodged another application, and it is the Director General's refusal of that application that founds these proceedings. 3 Section 33 of the PT Act requires a person who drives a taxi-cab to hold an authority. The power to grant the authority is vested in the Director General. The Director General has refused the authority as he is unable to attest to the requirement of s 33(3)(a), i.e.: '(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 …' 4 The 1999 Tribunal decision, and the decision under appeal, refer to the frequent passenger complaints against Mr Khamis over his conduct towards them: aggressive, threatening and rude behaviour together with inappropriate sexual references, assault and erratic driving. 5 As at 1999 he had been given numerous warnings and had lost his authority on four occasions. The same pattern of complaints re-emerged in the 2003-2004 period after the Director General had again restored his authority. 6 In addition, in 1994 he was convicted of assault occasioning actual bodily harm on a fellow driver. The Director General also asserts that when the applicant delivered his response to a show cause notice in 2004 he became involved in an altercation with an officer, and behaved in an extremely aggressive and threatening manner. 7 The appellant relies on psychological counselling that he has been receiving regularly since 1999 to demonstrate that he has learnt the error of his ways, and can be relied upon to return to driving and not cause any more trouble. 8 At the appeal hearing, he appeared in person. He said that the only occupation he wanted to have was that of taxi driver. He spoke of how much he enjoyed the work. The Appeal Panel asked him whether he had given thought to engaging in other forms of commercial driving, such as courier work. He said he could not do that work because of the lifting and carrying involved. He had a bad back. He referred to his need to return to regular employment, so that he could support his family, comprising his wife and four children one of whom was disabled. At hearing he manifested a degree of stress, anger and frustration over his lot. He also tendered for consideration two documents of dubious authenticity, one purporting to be a reference from the Mayor of Rockdale and the other a reference from a doctor (neither letter on official letterhead, basic misspellings, colloquial expressions and phraseology common to both, same typeface). 9 The previous Tribunal decisions record the efforts that the appellant has made to rehabilitate his behaviour. They both report on counselling received from a psychologist, Mr Mattar. Mr Mattar's favourable assessments have led previously to restoration of the licence, but the applicant has continued to exhibit the same unsatisfactory behaviour. On the latest occasion the Director General arranged for him to be examined by a psychiatrist, Dr Potter. His report of December 2006 is set out at para [18] of the Tribunal's reasons. In our view, Dr Potter has provided a persuasive report. 10 The Director General is making a discretionary judgement. The relevant legal principles are expounded in the 1999 decision and the decision now under appeal. 11 By our estimate the appellant has lost his authority six times in the last 13 years. He has been unable, regrettably, to change or restrain the aspects of his personality that have caused abrasion with passengers and others on so many occasions. 12 Both driver and passenger must feel confident that each can trust the other. The State plays a key role, through the licensing system, in assuring passengers that a driver can be trusted and is competent. Civility between the driver and the passenger is an expected element of a taxi journey, involving as it does people who normally will be strangers to each other. The complaints made against Mr Khamis indicate, in our view, that he is frequently unable to judge the boundary that should exist between the driver and the passenger. Dr Potter's report suggests that this remains a problem. 13 We see no basis, either in law, or on the merits, for reversing the Tribunal's decision. 14 In our view, Mr Khamis must look to some other area of work for his future employment. Order Appeal dismissed.