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 Negligent driving -fine $152 Disobey Traffic Lights-fine $195 Drive Offside Separation Line-fine $200 Unrestricted License lost on Demerit Points from 1 October 1996 until 2 January 1997. Probationary license issued then cancelled due to fine default. 1997. Drive after licence cancelled. Disqualification for six months from 13 January 1997. Disobey traffic lights fine $201 Exceed Speed limit fine $250 Exceed Speed Limit fine $112 1998 Exceed Speed Limit fine $179 Demerit Points Cancellation of license until 19 December 1998. The respondent also submit a history of complaints received in relation to the Applicant as follows; 1995 Two complaints- 1) Failure to accept hire , incivility and dangerous driving. RSL cabs advised that a severe reprimand was issued. 2) Drive unclean taxi and fail to drive by shortest route. Taxis Combined issued severe reprimand. 1997. One complaint of failure to drive by shortest route, failure to follow reasonable direction and dangerous driving. Taxis combined issued reprimand. 1998. Demand more than prescribed fare. RSL cabs cancelled applicants 'obligations as a taxi driver'. Police report of Applicant being argumentative and failing to follow police direction at a taxi rank. 10 The documents provided to the Tribunal by the Respondent contain correspondence addressed to RSL Cabs in relation to the two complaints in 1995. Computer records of the complaints are also on file. RSL cabs had written back to the Department stating that the "driver failed to respond to requests to be interviewed" and that the complaints were thus "dealt with in the drivers absence". 11 The Respondent submitted that at the time of the application for the authority to drive taxi cabs on 27 December 1998 the Applicant did not have a drivers license. He was not eligible to apply for a drivers licence until February 1999. 12 The Respondent submitted in summary that Mr Ismail has been dishonest in his dealings with authorities in relation to his drivers licence and to his applications for an authority to drive a taxi. The Respondent submitted that Mr Ismail has failed to discharge his onus to show that he can meet the requirements of Section 11 of the Act in that he is a person of 'good repute' and is a 'fit and proper person' to hold the authority sought. The fact that Mr Ismail has previously had a licence cancelled presents him with an even more difficult task in discharging this onus. 13 Mr Ismail gave oral evidence of the above matters to the Tribunal. The Tribunal found Mr Ismail to be at times contradictory and confused as to his answers to questions which were put to him. This confusion was not helped by the fact that the chronology of events set out in the Reasons for Decision of the Respondent was wrong as to several dates. There was also confusion in the correspondence and actions taken by the Respondent, due, according to the Respondent's representative, to the delay in communication between the Local Court, the Department of Transport and the RTA. It can take a number of weeks for information about action on a drivers licence to be transmitted to the Department of Transport. Information relevant to the continuance of an authority to drive a taxi may only become apparent to the Department of Transport upon an event causing the records to be checked. 14 Mr Ismail was further confused about the difference between a disqualification of his licence and a cancellation of his licence and the consequences of each. Mr Ismail told the Tribunal that he was given the choice of applying for a provisional licence after his cancellation in October 1996. He then thought, and told the Tribunal that he was so advised by the Chamber Magistrate on 13 January 1997, that he could similarly apply for a probationary licence on 14 January 1997 the day after he had been disqualified from holding a licence for six months by the Local Court. 15 Mr Ismail submitted that the complaints against him were minor and only three instances in the many passengers whom he has carried in his taxi. He initially told the Tribunal that he had known nothing of the complaints at the time when they were made and heard of them only later in relation to the cancellation of his authority to drive taxis. He then said that he had heard of them earlier. He disputed the complainants versions of events, saying that he had never overcharged on a fare, had not been rude or aggressive to anyone and that his cab was clean when he picked it up. He denied being aggressive to the police and said that they had misunderstood what was happening at the rank at the time of the alleged incidents. He submitted that the police report of his conduct at the taxi rank was untrue and that he did not behave in an unreasonable manner 16 Mr Ismail told the Tribunal that he had never completed a form knowing it to be untrue. He said that he had misunderstood the question on the application for a taxi authority (question 5) and this had led to him not filling it in correctly. He also said that the RTA knew of his driving record and therefore he didn't need to complete it on the form. 17 He stated that all his traffic fines are now paid. He acknowledges that his driving record is bad but told the Tribunal that he would be a better driver in the future. 18 Mr Ismail told the Tribunal in oral evidence that he needed an authority to drive taxi cabs as this was his only form of employment. He said that it is the only work which he is qualified to do. He has a family of four children and a wife to support and has no other source of income other than the 'New Start' allowance which he is now receiving and parenting and family payments which are made to his wife for the children. He has a son who has mild autism and he needs money to support his speech therapy and other needs. 19 Mr Ismail told the Tribunal denied that he had been driving a taxi while he was disqualified from holding a drivers licence. This is despite the fact that he was convicted of two traffic offences during that period, namely in June and November 1997. FINDINGS 20 The Tribunal has carefully considered the evidence in this matter. Mr Ismail is a forty five year old married man with four children. He is a geologist by training but has been unable to find work as a geologist in Australian and has been a taxi driver since 1995. 21 There are a number of points about which there is no disagreement and the Tribunal makes findings firstly in relation to those. The Tribunal accepts that Mr Ismail has the traffic record as stated in the evidence set out above. The Tribunal accepts that the complaints, as set out above, were made about Mr Ismail. The Tribunal accepts that the history of Mr Ismail's dealings with the Respondent in relation to applications for an authority to drive a taxi cab is as set out above. 22 The Tribunal must consider both whether the Applicant is of 'good repute', is in other respects a 'fit and proper person' to drive a taxi and whether he is 'considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates' in accordance with the authority to be granted and according to 'law and custom'. The Tribunal notes that the evidence relevant to these matters is. 23 At the time of lodgement of the Application Mr Ismail did not have sufficient aptitude or responsibility in relation to the authority to drive a taxi-cab as he did not hold a drivers license. At the date of the hearing he held an drivers licence which was issued on 16 February 1999. 24 The Tribunal has taken into account the fact that the Applicant held an authority to drive taxi-cabs for nearly two years prior to the suspension in 1997. The Applicant was the subject of only three complaints during this time however in the Tribunal's view these complaints were serious and in fact resulted in two reprimands. The Tribunal does not accept Mr Ismail's account of the circumstances of these complaints nor that he was not told of them at the time. The Tribunal accepts that Mr Ismail was counselled in relation to the complaints and that in fact he was denied access to the radio network of RSL cabs on at least one occasion which related to the complaint. Mr Ismail appeared to the Tribunal to have taken no responsibility at all for the issues raised by the complainants, either the police or the passengers. 25 Mr Ismail has a very poor driving history. It is not for the Tribunal to penalise Mr Ismail for these offences, they have been dealt with in the Local Court. What is relevant is that they show a pattern of disregard for the traffic laws and a refusal to accept the decision of the Court in relation to the cancellation of Mr Ismail's licence. 26 Despite the confusion which may have been caused to Mr Ismail through the distinction between a 'cancellation' and a 'disqualification' of his license the Tribunal does not accept that Mr Ismail was unaware that he was not allowed to drive a motor vehicle for six months from 13 January 1997. The Tribunal does not accept that Mr Ismail's failure to accurately complete a drivers licence application form on the following day, was either because he was confused or that he thought the RTA would know of his conviction anyway. The Tribunal is forced to the conclusion that Mr Ismail was prepared to take any steps he could to secure a drivers licence and not only to continue to drive a motor vehicle but to continue to drive a taxi without proper authority. 27 Mr Ismail told the Tribunal that he is an active member of the Lebanese Muslim Association and attends the Lakemba Mosque. He is not involved in any other community groups or associations. 28 The Tribunal has come to the view that Mr Ismail is not a 'fit and proper' person to hold an authority to drive a taxi cab. This conclusion is reached in light of the regulatory scheme and the purpose for which persons are required to hold an authority before driving a public vehicle. The community has a right to expect that taxi drivers are persons who, at least, are honest in their dealings and who are going to comply with the rules of the road. 29 Mr Ismail has had twelve driving offences over a period of about three years. His licence has been cancelled on two occasions and he has been disqualified on one occasion. He has been the subject of passenger and police complaints for which he shows no responsibility or contrition. The Tribunal accepts that in number these complaints are minimal when compared to the number of persons carried by Mr Ismail over that period. However in nature the complaints were not minor and related to aggressive and dishonest behaviour. Mr Ismail dishonestly applied for a drivers licence on the day after he had been disqualified from holding such a licence for six months. The Tribunal finds that he also dishonestly completed his application for that licence. 30 The Tribunal dealt with the licensing scheme for taxi drivers in the matter of Farquharson -v- Director General, Department of Transport [1999] NSWADT 53. In that case the President said; In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. . . A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165. 31 The Tribunal agrees with these comments. The Tribunal considers that the cumulative force of the evidence of Mr Ismail's driving record, conduct while disqualified, completion of the application form, failure to accept responsibility for any of the complaints against him and his less than frank evidence of these matters to the Tribunal is such that this application should be refused and that Mr Ismail should not be granted an authority to drive taxi cabs. 32 The decision of the Director General is therefore affirmed. 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