CITATION: Eshaghi v Director General, Department of Transport [2002] NSWADT 3 DIVISION: General Division APPLICANT PARTIES: Ali Eshaghi RESPONDENT Director General, Department of Transport FILE NUMBER: 013186 HEARING DATES: 13/12/01 SUBMISSIONS CLOSED: 12/13/2001 DATE OF DECISION: 01/17/2002 BEFORE: Hennessy N (Deputy President) APPLICATION: Passenger Transport Act - taxi driver - cancellation of authority - Passenger Transport Act - taxi operator - cancellation of accreditation - Taxi driver - cancellation of authority - Taxi operator - cancellation of accreditation MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Crimes Act 1900 Passenger Transport Act 1990 Passenger Transport Amendment Act 2000 Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374 Farquharson v Director-General, Department of Transport [1999] NSWADT 53 CASES CITED: Maythisathit v Register of Motor Vehicles [1996] ACTAAT 165 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Singh v Director General, Department of Transport [1999] NSWADT 96 Re T and Director of Youth and Community Services [1980] 1 NSWLR 392 (Waddell J) APPLICANT REPRESENTATION: No appearance RESPONDENT A Wozniak, solicitor ORDERS: 1. The Director General's decision to cancel Mr Eshaghi's taxi driver authority is affirmed; 2. The Director General's decision to cancel Mr Eshaghi's operator accreditation is affirmed. Introduction 1 This is an application by Mr Eshaghi for review of two decisions by the Director-General, Department of Transport (Director-General). The first decision was to cancel Mr Eshaghi's taxi-cab driver authority and the second decision was to cancel Mr Eshaghi's taxi-cab operator accreditation. The Director-General made the decisions pursuant to the Passenger Transport Act 1990 (the PT Act) on the basis that Mr Eshaghi had purchased stolen cabcharge vouchers from a passenger and fraudulently completed them and submitted them for payment. History of the proceedings 2 On 21 August 2001 both parties attended a directions hearing. The matter was set down for hearing on 22 October 2001. Mr Eshaghi failed to attend on that day and the hearing was adjourned until 13 December 2001. By letter dated 22 October 2001 the Registrar informed Mr Eshaghi of the new hearing date. Mr Eshaghi failed to attend the hearing on 13 December 2001. Mr Wozniak, representing the Director-General, informed the Tribunal that Mr Eshaghi had been convicted in the Local Court on 23 November 2001 of 32 offences under s.178BB of the Crimes Act 1900. These offences related to the fraudulent submission of cabcharge vouchers. Mr Eshaghi did not appear in the Local Court and there is now an outstanding warrant for his arrest. In light of Mr Eshaghi's non-appearance in the present proceedings, it is necessary to determine how to proceed with this matter. Hearing in the absence of the applicant 3 The rules of procedural fairness provide that a party has a right to be heard and should be given a reasonable opportunity to present their case. This is reflected in section 70 of the Administrative Decisions Tribunal Act 1997 (ADT Act). It provides: The Tribunal must ensure that every party to proceedings before the Tribunal is given a reasonable opportunity: to present the party's case (whether at hearing or otherwise), and to make submissions in relation to the issues in the proceedings. 4 I am satisfied that Mr Eshaghi has been given a reasonable opportunity to present his case and to make submissions in relation to the issues in these proceedings. Mr Eshaghi was aware that the matter was set down for hearing on 22 October 2001. He was informed of the adjournment of the hearing to December 13 2001. Mr Eshaghi has not contacted the Tribunal with any explanation for his non-appearance. As a reasonable opportunity has been afforded to Mr Eshaghi to present his case and make submissions it is now appropriate to determine the matter in his absence. Jurisdiction 5 The Tribunal has jurisdiction to hear this matter pursuant to s 52(1) of the PT Act. That section provides that a person whose application has been refused or whose accreditation, authority or authorisation has been varied, suspended or cancelled, may apply to the Tribunal for a review of that decision. Background 6 Mr Eshaghi applied for and was issued with a Public Passenger Vehicle Driver's Authority (taxi authority) in 1990. It was renewed in 1992 and again in 1998. There was no evidence of when Mr Eshaghi received his Public Passenger Vehicle Operator Accreditation (operator accreditation). 7 In December 2000, two passengers offered to sell Mr Eshaghi a number of cabcharge vouchers (also referred to as cabcharge dockets). Mr Eshaghi phoned Premier Cabs to ask whether the vouchers were stolen. Premier Cabs referred Mr Eshaghi to Cabcharge Australia Ltd (Cabcharge). An officer of Cabcharge told him that the vouchers were not stolen. Mr Eshaghi then bought the cabcharge vouchers for $25 each, completed the details on the vouchers and submitted them for payment between 7 December 2001 and 20 January 2001. In most cases, Mr Eshaghi had not undertaken the journey specified on the cabcharge voucher. It subsequently came to the attention of Cabcharge and Premier Cabs that the cabcharge vouchers submitted by Mr Eshaghi were in fact stolen. 8 Mr Ted Robertson, a Senior Enforcement Officer at Premier Cabs, interviewed Mr Eshaghi informally on 14 March 2001. A formal interview took place on 27 April 2001. In these interviews Mr Eshaghi admitted to submitting cabcharge vouchers for journeys which he did not undertake. 9 On 2 May 2001 the Director-General suspended Mr Eshaghi's taxi authority. The statement of reasons attached to the notice listed misuse of cabcharge and two separate customer complaints as the basis for the suspension. On the same day, the Director-General issued Mr Eshaghi with a "Notice to Show Cause" as to why his taxi authority should not be cancelled. 10 The following day, 3 May 2001, the Director-General issued Mr Eshaghi with a "Notice to Show Cause" as to why his operator accreditation should not be cancelled. The statement of reasons cited cabcharge misuse as the sole reason for the Notice. 11 On 17 May 2001 Mr Eshaghi's wife handed in his authority. She informed the Director-General that Mr Eshaghi had left Australia on 13 May 2001 for one month. On his return Mr Eshaghi was given until 15 June 2001 to make submissions as to why his operator accreditation should not be cancelled. 12 Mr Eshaghi sought an internal review of the decision to suspend his taxi authority and by letter dated 13 June 2001 made submissions in respect of the suspension of his authority and the two notices to show cause. Mr Eshaghi's submissions addressed the alleged cabcharge misuse and the two customer complaints. In the absence of any oral evidence his explanation in this submission provides useful evidence of his version of events. I have always believed buying and selling Cabcharge are a common occurrence in the Taxi industry. Taxi base buys Cabcharge from drivers, drivers selling cabchagres (sic) to other drivers, drivers selling Cabcharge to some petrol stations to obtain gas and other goods and of course all involves a commission/reduction. In early January 2001 I was approached by a passenger, offering cabcharges for sale. Based on the fact that buying and selling cabcharges are a common practice in the cab industry, I agreed to it. I even called the Cabcharge Company and Premier taxi base to ascertain that there was nothing wrong with the dockets. ie fake or stolen. Both companies advised me that they had no reports on any stolen or fake dockets. It was only in April (three months later) that the Cabcharge Company and the premier cab announced that there were stolen cabcharges in circulation and put out a memo listing 32 companies with stolen cabcharges. I believe the blame partially lies with the companies involved for not notifying the companies immediately, or if they did, why cabcharge company did not act on it by notifying the cab companies and drivers as soon as possible? I would like to reiterate that at no time I knowingly bought and sold stolen cabcharges. (emphasis in original) 13 By letter dated 27 June 2001 Mr Eshaghi was advised that the outcome of the internal review was that the original decision to suspend his taxi authority was set aside, and was substituted with a decision to cancel his taxi authority. By letter dated 5 July 2001 Mr Eshaghi was advised of the Director-General's decision to cancel his operator accreditation. A further statement of reasons accompanied the notice of cancellation. Issues and legislation 14 Changes to the legislation. The statement of reasons accompanying the notices of cancellation of the taxi authority and the operator accreditation sets out the legislation in force at the time the decisions were made. These notices were dated 27 June 2001 and 5 July 2001 respectively. On 1 September 2001 the Passenger Transport Amendment Act 2000 (PT Amendment Act) amended the PT Act in relation to public passenger services carried on by means of taxi-cabs and private hire vehicles. The Explanatory Note indicates that the object was to amend the PT Act and provide a revised legislative basis for the taxi-cab and hire car industries, and to make various machinery amendments. 15 The current legislative provisions are identical to the old provisions in relation to the test for cancelling a taxi authority and an operator accreditation. It makes no difference whether the original or amended provisions apply. In general, when conducting a merits review of an administrative decision the relevant law is the law at the time the decision is being reviewed: Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374. Accordingly, I have applied the current legislative provisions in determining this application. Decision to cancel taxi-cab driver authority. Section 33F of the PT Act gives the Director-General power to cancel a taxi authority. That provision states: Having regard to the purpose of an authorisation, the Director-General may at any time vary, suspend or cancel any person's authority under this Division. 16 The purpose of an authority is set out in s.33(3) of the PT Act which provides: 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 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. 17 Decision to cancel taxi-cab operator accreditation. Section 31F of the PT Act is the provision that gives the Director-General power to cancel an operator accreditation. That provision states: (1) Having regard to the purpose of accreditation under this Division, the Director-General may at any time vary, suspend or cancel any person's accreditation under this Division. (2) Without limiting subsection (1), the Director-General may vary, suspend or cancel a person's accreditation under this Division: (a) for failure to comply with a service requirement imposed by the taxi-cab network with which the operator is affiliated, but only if the Director-General is satisfied that the requirement is reasonable and necessary to enable the network to comply with its obligations imposed by or under this Act, and (b) for failure to comply with a service standard requiring compliance with the applicable contract determination, and (c) for failure to pay a financial sanction imposed under the standards under this Division. (3) The accreditation of a corporation is automatically cancelled when there is no designated director or manager. 18 The purpose of an accreditation is set out in s.31(2) of the PT Act which provides: The purpose of accreditation under this Division is to attest: (a) that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service, and (b) that the accredited person has demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to: (i) financial viability, and (ii) safety of drivers, passengers and the public, and (iii) vehicle maintenance, to the degree and in the manner required in respect of services of the kind specified in the accreditation. (3) The appropriate requirements are: (a) such requirements as may be prescribed by the regulations, and (b) the standards determined under section 31E. 19 Issue. The Tribunal must determine whether the Director-General made the correct and preferable decisions in cancelling Mr Eshaghi's taxi authority and operator accreditation. At issue is whether the Mr Eshaghi is considered a person of "good repute" and in all other respects a "fit and proper person" to be the holder of a taxi cab driver authority: s.33(3)(a) of the PT Act. The same issue arises in determining whether Mr Eshaghi's operator accreditation should be cancelled: s.31(2)(a) of the PT Act. Evidence 20 The material before the Tribunal consists of Mr Eshaghi's application filed 25 July 2001 and the Director-General's file. Set out below is a short description of the relevant documents in the Director-General's file: 1. Mr Eshaghi's applications for taxi driver authority and renewals. 2. Various documents regarding customer complaints. Five separate complaints including failure to afford reasonable assistance and incivility in 1993; soliciting a passenger in 1994; late for booking and failure to drive by shortest practicable route in 1994; and assault of a passenger in 1999. 3. Photocopies of cabcharge vouchers filled in with Mr Eshaghi's name and various dates in December 2000 and January 2001, under authorisation AS0196. The account names and numbers on the vouchers include Telstra -Ersops Payroll Services (515004), Citigold Jewellery (71940), Japan Airlines Company Ltd (25022329) and Trust for Justin John McMahon (75926). 4. A two page document titled "Premier Cabs Operator Update- 28th March 2001 Fraudulent Blue Dockets". The second page is a list of 33 names and account numbers including Citigold Jewellery (account no. 719402), Japan Airlines (25022329), Telstra-Ersops (515004) and Trust for Justin (75926). The concluding paragraph of this update states: Finally, we wish to highlight that the attempted submission of fraud dockets is a criminal offence and carries serious consequences. Operators and drivers who knowingly attempt to pass fraud dockets through this Network will have their service agreements terminated immediately and action will be commenced by the Company to recover the full amount of the loss. The Company will also advise the Department of Transport (who may cancel all taxi driving qualifications and accreditations), and hand the matter to the Police for prosecution. 5. Statement by Ted Robertson dated 6 April 2001. The statement is an account of an interview that took place between Mr Robertson and Mr Eshaghi. Mr Eshaghi was shown the vouchers and admitted that he had written his name and authorisation number on the vouchers. Mr Eshaghi said that he purchased the vouchers from two passengers, both male, who may have been Indian, Pakistani or Sri Lankan. They represented themselves as two gentlemen working for multi national companies who would rather use their private vehicles than cabcharge vouchers and offered to sell them to him for $25 each. Mr Eshaghi claimed that two of the vouchers were for jobs he had completed. 6. Record of interview dated 27 April 2001 between Premier Cabs Operations Officer A. Flintham and Mr Eshaghi. The record interview is signed and dated by both Mr Eshaghi and the interviewing officer. The record shows that Mr Eshaghi was taken through a series of labelled cabcharge vouchers and asked whether he presented them for payment and whether any money was received. The four cabcharge account names are Citigold Jewellery, Telstra Ersops, Trust for Justin, and Japan Airlines. In the majority of instances Mr Eshaghi admitted to submitting the vouchers for payment. The following is an extract from the record of interview: Q.7 I want you to go to the voucher marked A, the participant name on that appears to be CITIGOLD JEWELLERY, Pty Ltd T/A Grand Jewellery. Do you agree that your name and authority appears on the voucher? Yes. Q.8 Did you carry out this hiring? At the beginning I take this cab charge I pick up two guys from Mt Durrit (sic) taxi rank to Strathfield and the guy offering me actually both of them that have a cab charge from the company where they work and they never used it because they used their private car. Is it possible to pay some of that amount we can use it and put it on the cab charge and I said "no" I said no and what the company they said "its three different companies we work for them and we are friends and that's it" and I said "is that stolen" and they said "no we work for that company". I said "give me your phone number and I will call you back" and they said ok no problem but can you give me your number" and I call you and give you my phone number. And I said what's wrong with it I give you my phone number and you give me your phone number and the guy said to me I'm getting a new phone number that's why I'm going to give you the right one. And the guy that was sitting in the back who gave me all the cab charges after this day. He gave me his phone number. Then I rang Premier the next day. Q.9. This is the next day after the initial meeting? That's right Continue Q.8 I rang to the premier network and I ask do have any record of the stolen cab charge. They put me through to someone and I can't remember his name. I talked to that guy and he said "no we don't and if you like just ring the Cabcharge Company and he gave me the phone number of the Cabcharge Company. And I contacted to the cabcharge company and a lady was answering and I asked her about the stolen cab charge and she said just hold the line and I am going to put you through to another gentleman and he will help you. I asked him do you have any record for a stolen cab charge or something and he said no we don't. Then I contacted with this guy who gave me the phone number. I said if anything happen to this cab charge it is your responsibility. He was asking for thirty dollars each and I said no twenty-five. I bought it from him and paid him and I asked him the date you have to tell me the date you can use this. He signed you have sign these dockets for me. He said I'm going to sign the docket myself and my friends will sign their day dockets. And anyway some of those dockets were blank. Not many just. And just wrote it down and sign it myself. Not many just a few. And the guy who sign it for me. I still have seven at home I didn't use them when I found out they were stolen. 7. Mr Eshaghi's submissions dated 13 June 2001. Findings 21 Customer complaints. Two of the complaints recorded in the Director General's file are referred to in the statement of reasons cancelling Mr Eshaghi's taxi authority. These complaints were made in 1993 and 1994. The respondent did not bring any additional evidence in relation to these complaints. Given the hearsay nature of this evidence, I have not taken these complaints into account in determining this application. 22 Cabcharge misuse. I am satisfied that Mr Eshaghi purchased cabcharge vouchers from a passenger for $25 each. I accept that Mr Eshaghi made inquiries about whether the vouchers were stolen and, on the basis of the advice he received, was of the opinion that they were not stolen. When he was satisfied that the vouchers were not stolen, he completed false details on the vouchers indicating that journeys which had not been undertaken, had been undertaken. He then submitted the cabcharge vouchers for payment. While journeys had been undertaken for some of the vouchers, the vast majority of vouchers submitted for payment related to fictitious journeys. 23 The only inference I can draw from Mr Eshaghi's inquiries about whether the dockets had been stolen is that he was attempting to avoid detection for fraudulent use of the dockets. His thinking must have been that if there was no record of the dockets having been stolen then there was less likelihood that his fraud would be detected. I do not accept that Mr Eshaghi believed that it was lawful to submit dockets with fictitious journeys as long as the dockets themselves were not stolen. 24 I find that Mr Eshaghi bought the vouchers for $25 each. He then entered amounts greater than $25 on the vouchers and submitted them for payment. It is clear that Mr Eshaghi was fabricating journey details in order to collect money to which he was not entitled. Reasons and Decision 25 The meaning of the terms "good repute" and "fit and proper person" have been considered in several cases decided by this Tribunal. President O'Connor made the following statement at [27] in Farquharson v Director-General, Department of Transport [1999] NSWADT 53: A taxi driver has a continuing responsibility to ensure that he is of 'good repute' and a 'fit and proper' person. Clearly the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character. The concepts of 'good repute' and 'fit and proper person' involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others in the community or not: see for a detailed discussion, Re T and Director of Youth and Community Services [1980] 1 NSWLR 392 (Waddell J). 26 As stated by O'Connor DCJ in Farquharson at [36] "in exercising its responsibilities for passenger transport regulation the administrator must take into account the likely perceptions of the travelling public". He went on to state with approval the following test of 'fit and proper' character as stated by Professor Curtis, President of the ACT Administrative Decisions Tribunal in Maythisathit v Register of Motor Vehicles [1996] ACTAAT 165: One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi. 27 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, I 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 a taxi authority. The factors relevant to these proceedings are: o the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; o the applicant's reputation in the community; and o the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 28 Mr Eshaghi has been convicted of obtaining money by a false or misleading statement under s178BB of the Crimes Act 1900. Evidence of a conviction for a criminal office is prima facie evidence of bad repute: see Singh v Director General, Department of Transport [1999] NSWADT 96. No references or other material was provided in support of Mr Eshaghi's good repute and on 13 December 2001 there was a warrant outstanding for his arrest. In those circumstances, I find that he is not of "good repute." 29 The offences for which Mr Eshaghi was convicted relate directly to his activities as a taxi driver and operator. The cabcharge system is one which allows ease of payment for taxi-cab passengers and companies whose employees use taxis. It is a system that should be used in good faith by both passengers and taxi-drivers. Mr Eshaghi has clearly behaved in bad faith by buying blank cabcharge vouchers and submitting them for journeys which were never undertaken. 30 He has not acknowledged the seriousness of the matters nor shown any remorse for his conduct. This behaviour raises serious doubt about Mr Eshaghi's honesty and integrity. I am satisfied that the Applicant is not a person of good repute, nor is he a fit and proper person to drive or operate a taxi. Orders 1. The decision of the Director-General to cancel Mr Eshaghi's taxi-cab driver authority is affirmed. 2. The decision of the Director-General to cancel Mr Eshaghi's taxi-cab operator accreditation is affirmed. 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