Ismail -v- The Director-General, NSW Department of Transport [1999] NSWADT 79

CITATION: Ismail -v- The Director-General, NSW Department of Transport [1999] NSWADT 79

DIVISION: General

APPLICANT: Mohammad Faisal Ismail

RESPONDENT: The Director-General, NSW Department of Transport

FILE NUMBER: 993111

HEARING DATES: 08/30/1999

SUBMISSIONS CLOSED: 08/30/1999

DATE OF DECISION: 7 September 1999

G Fleming - Judicial Member BEFORE:

PRIMARY LEGISLATION: Passenger Transport Act 1990

APPLICATION: Review of decision to refuse to issue taxi-cab authority -

MATTER FOR DECISION: Principal matter

Applicant: In person REPRESENTATION: Respondent: A Wozniak, solicitor, Smythe & Mallam

ORDERS: 1. Decision of the Director General is affirmed

THE APPLICATION 1 This is an application by Mohammad Faisal Ismail ('the Applicant') for review of a decision by the Director General, NSW Department of Transport ('the Respondent'), to refuse to issue him with an authority to drive taxi-cabs. 2 The application for the authority was lodged with the Respondent on 24 December 1998. It was originally refused on 22 March 1999 by a delegate of the Respondent. The Applicant sought internal review of the decision and on 14 May 1999 the decision was affirmed. The Applicant applied to this Tribunal on 1 June 1999. 3 The Respondent refused the application on the ground that the Applicant was not a 'fit and proper person' to hold an authority to drive taxi cabs. This is the issue for determination in this case. THE RELEVANT LAW 4 The Tribunal has jurisdiction to hear this matter pursuant to section 38 of the Administrative Decisions Tribunal Act 1997 and section 52(1) of the Passenger Transport Act 1990 (NSW) ('the Act'). 5 Section 12 of the Act gives the Director General a discretion to grant authorities, having regard to the purpose of that authority. Sub-section 11(2) sets out the purpose of an authority in the following terms: 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. 6 This Tribunal has previously considered the operation of these provisions in the matter of Armani v Director General, Department of Transport [1999] NSWADT 20. In that case the Deputy President said the an administrator, in this case the Director General's delegate, has a wide discretion to grant or refuse a taxi authority but that the decision must be made in the context of the responsibilities and community expectations of taxi drivers. . . . 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." 7 The Tribunal must decide whether the Director General's delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law. The Tribunal has the power to affirm, vary or set aside the decision. (Administrative Decisions Tribunal Act 1997 s 63) THE EVIDENCE 8 The Respondent has provided the Tribunal with a copy of the Departmental file in relation to the Applicant pursuant to section 58 of the Administrative Decisions Tribunal Act 1997. A hearing was held in this matter on 30 August 1999 and the Applicant attended. The Respondent was represented by Mr Wozniak, solicitor. The Tribunal was assisted by an interpreter in the Arabic language. 9 The Statement of Reasons for the original decision to refuse Mr Ismail the authority sets out certain facts in relation to the application as follows; Mr Ismail has previously held taxi cab authority, issued on 13 June 1995. This authority was suspended on 24 January 1997 on the basis of Mr Ismail's conviction for driving while his license was cancelled. He has not held an authority to drive a taxi since that time. On 1 October 1996 Mr Ismail's drivers licence was cancelled for three months due to the fact that he had exceeded the allowable demerit points. He was advised that he had an option to apply immediately for a provisional license which he did no 4 November 1996. His licence was again cancelled on 3 December 1996 as he had failed to pay the fines for which he had lost the demerit points. On 31 October 1996 Mr Ismail was arrested for driving while his licence was cancelled. On 13 January 1997 Mr Ismail attended the Local Court in Downing Street, Sydney, where his licence was disqualified by a Magistrate for a period of six months. On 14 January 1997 Mr Ismail attended the Roads and Traffic Authority and lodged an application for a drivers licence. On that application he did not answer the questions "Have you been convicted of any offence involving a motor vehicle in the last 10 years?" and " Are there any charges against you for any offence involving a motor vehicle?". The license was granted however it was later cancelled as it should not have been issued when Mr Ismail was the subject of a six month disqualification. On 24 January 1997 Mr Ismail's authority to drive a taxi was suspended on the basis of his conviction for driving while his license was cancelled. On 29 January 1997 the suspension of the authority was revoked when Mr Ismail produced a drivers licence to the Department which was issued on 14 January 1997. On 26 May 1997 the taxi cab authority was again suspended on the ground that Mr Ismail failed to submit a public vehicle medical review and because his drivers license was cancelled on 21 May 1997. In June 1997 and in October 1997 Mr Ismail was again charged and fined for driving offences. He was driving a taxi on at least one of these occasions. On 8 December 1997 Mr Ismail applied for and was given a drivers licence. On 16 March 1998 the applicants authority to drive taxi-cabs was cancelled on the grounds of his driving record and a customer complaint of 13 October 1997. The Applicant appealed against the cancellation however it was upheld by the Local Court on 17 April 1998. The Appeal was dismissed and the decision of the Director General was affirmed. On 20 April 1998 a fresh application for an authority to drive taxi cabs was made by Mr Ismail. This was refused on 8 May 1998 on the grounds of the Applicants driving record. This application was heard at the same time as an appeal against a further cancellation of Mr Ismail's drivers license due to excess demerit points. Mr Ismail failed to have the cancellation overturned and was disqualifed from driving for six months from 14 August 1998. Mr Ismail withdrew the appeal concerning the taxi authority and the Local Court dismissed the matter on 14 August 1998. On 21 August 1998 another application for an authority to drive a taxi cab was made. This was refused on 1 October 1998 on the same grounds. On 22 December 1998 a third application for an authority to drive a taxi cab was made. This was refused on 22 March 1999 on the same grounds and is the subject of this application to the Tribunal. Mr Ismail has, in summary, the following traffic record; 1987. Exceed Speed Limit -fine $80. 1995 Exceed Speed Limit -fine $200 1996. Disobey Traffic Lights-fine $184. Exceed Speed Limit -fine $165