Sara -v- Director General, Department of Transport [2003] NSWADT 157

CITATION: Sara -v- Director General, Department of Transport [2003] NSWADT 157 DIVISION: General Division APPLICANT PARTIES: Adib Sara RESPONDENT Director General, Department of Transport FILE NUMBER: 033045 HEARING DATES: 30/04/03, 06/05/03 & 15/05/03 SUBMISSIONS CLOSED: 05/15/2003 DATE OF DECISION: 06/18/2003

BEFORE: Higgins S - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: Orders made on 15 May 2003; 1. The decision under review is affirmed.

Ex tempore 1 On 21 February 2003, Mr Adib Sara, whom I will refer to as Mr Sara in this decision, filed an application seeking review of the decision of the Director-General of the Department of Transport, whom I will refer to as the Director-General, to cancel his taxi driver authority that had been issued to him under the Passenger Transport Act 1900. 2 The grounds relied on by the Director-General in making his decision was a complaint relating to several incidents during the period May 2001 to May 2002 by submitting Cab Charge dockets for fares which were not in accordance with the details on the dockets. Each of the Cab Charge dockets were in the name of Nationwide News Pty Limited and were presented to Mr Sara by Ms Lamba, an employee of the company. It was Ms Lamba who made a written statement alleging that she, without authority, had given Mr Sara a company Cab Charge docket in circumstances to which she was not entitled to. 3 On 20 November 2002, the Director-General issued a notice to show cause to Mr Sara in order for him to make submissions as to why his driver authority should not be cancelled. The notice was accompanied by a statement of reasons which provided details of the allegations that had been made against him. 4 On 5 December 2002, Mr Sara, through his solicitor, wrote to the Director-General denying the allegations. He stated that he had known Ms Lamba for about two years and she had become a regular customer in that time. He also stated that he believed she was entitled to present the Cab Charge dockets for the trips she had made. He also stated that there were three or possibly four occasions when he had waited for Ms Lamba for a considerable period of time and she gave him a Cab Charge docket in payment for his time. He also stated that he had been driving a taxi for 39 years and during this time, no complaint had ever been made against him. 5 On 14 January 2003, the Director-General issued a notice of cancellation, which was accompanied by a statement of reasons. Mr Sara sought an internal review of the Director-General's decision, which was completed on 24 January 2003. The Director-General's decision to cancel Mr Sara's taxi authority was affirmed following the internal review and Mr Sara has had his driver authority cancelled since that date. 6 The Tribunal's jurisdiction to hear Mr Sara's application arises from section 52(1) of the Passenger Transport Act 1990 and section 38 of the Administrative Decisions Tribunal Act 1997. Mr Sara's application was heard over several days on 30 April and 6 and 15 May 2003. On each of these days, he was unrepresented but assisted by his brother who also works in the industry. 7 The Passenger Transport Act 1900 sets out a regulative scheme for operators and drivers of public passenger transport services. This includes taxi driver authorities. The objectives of the Act are set out in section 4, which provides, as far as is relevant, as follows: s. 4 The objectives of this Act are to require accreditation by the Director-General of operators and drivers involved in public passenger transport service - (e) To encourage public passenger services which meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. 8 Division 5 of Part 4 of the Passenger Transport Act 1900 sets out the procedure and requirements for the authorisation of a taxi driver authority. Section 33F in this division provides that the Director-General may, at any time, vary, suspend or cancel any person's taxi driver authority. That section provides as follows: s. 33F Having regard to the purpose of authorisation under this division, the Director-General may, at any time, vary, suspend or cancel any person's authority under this division. 9 The purpose of authorisation under Division 5 of Part 4 of the Act is set out in subsection 33(3) of the Passenger Transport Act. That subsection provides as follows – and the introductory words are: s. 33(3) A person 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 …– 10 I won't re-state the rest of the section as it is not relevant to this application. 11 Mr Wozniak, on behalf of the Director-General tendered into evidence the Department's file, which had previously been filed and served. That file contained a copy of a signed statement of Ms Lamba and the Cab Charge dockets to which she referred in her statement. The statement was dated 3 June 2002. 12 The Department's file also contained a transcript of a record of interview between Mr Sara and two officers of the Department, Mr Hallahan and Miss Mathison, on Thursday 12 September 2002. At the request of Mr Sara, the Department made Mr Hallahan available for cross-examination on 30 April 2003. 13 Mr Sara had also requested that Ms Lamba be made available for cross-examination, however she was not available for the hearing on 30 April 2003. Mr Wozniak tendered into evidence an affidavit of service of a summons addressed to Ms Lamba to attend to give evidence on that day. The summons was served on 16 April 2003 on a male person at her home address, who advised that she was overseas and not contactable for three weeks. Mr Wozniak advised the Tribunal that he had made enquiries subsequent to the summons being served and had been advised that Ms Lamba was not returning to Australia until 8 May 2003. 14 With the agreement of Mr Sara, the Tribunal commenced the hearing of the matter on that day. On 6 May 2003, Mr Wozniak, on behalf of the Director-General called Mr Valdis Voldemaris Sermusklis, a senior service officer of Taxi Combined Services. Mr Sermusklis gave evidence about the global positioning system, which I will refer to as the GPS in the remainder of this decision, which is used by Taxi Combined Services. As a result of his evidence, the Tribunal requested Mr Sermusklis to prepare certain documents from the GPS in relation to a selection of the Cab Charge documents that were the subject of the application. 15 On 15 May 2003, Mr Wozniak tendered into evidence a statement of Mr Hallahan dated 12 May 2003 which related to the GPS documentation that had been produced by Mr Sermusklis as requested by the Tribunal. Mr Wozniak also advised the Tribunal that Ms Lamba had returned to Australia and was available to give evidence. 16 On 30 April 2003, Mr Sara tendered into evidence five written references. Four of these are from regular customers of his taxi service and the other one is from the general manager of RSL Cabs. 17 On 30 April 2003, Mr Sara gave oral evidence and was cross-examined by Mr Wozniak. Mr Joseph Sara, the owner of the taxi driven by Mr Sara, also gave oral evidence on this day. His evidence was to the effect that he has never received any complaints about Mr Sara nor has he received any complaints in regard to Cab Charge dockets or any other dockets that had been presented for payment by Mr Sara, the applicant. 18 I have examined and considered all the evidence that has been tendered and I propose only to deal with those which are of greatest significance. First I'll deal with Mr Sara's evidence. Mr Sara's evidence included the following: (a) He had known Ms Lamba for about two years. He met here when she hired his taxi to take her from the Surry Hills office of Nationwide News Pty Limited to her home at Quakers Hill. On this occasion, she handed him a pre-prepared Cab Charge docket that stated that the journey was from Blacktown to Quakers Hill. As he had taken her from Surry Hills, he said he could not accept the docket as it was incorrect. In response, she altered the pick up details to Surry Hills and initialled the change. He then accepted the docket on the understanding that she was authorised to make this particular change. (b) After this time, he became her regular driver on the evenings she worked at Nationwide News. They struck up a friendship and he gave her his mobile telephone number so that she could phone him to tell him when she was finishing work. Over time, their friendship developed to such an extent that he would have a meal with her and even bought her a birthday present. (c) On some occasions, Ms Lamba would telephone and ask him to pick her up from a place other than her workplace. Again, he believed that she was authorised to do this. (d) During 2002, Ms Lamba sometimes had Mr Sara wait three quarters of an hour only to be told that she had brought in her car and would not need a taxi that particular evening. On these occasions, Mr Sara said to her that he had been waiting for a long time and that he needed to be paid for his time. In response, Ms Lamba gave Mr Sara a Cab Charge docket, which she signed and entered the amount that was normally paid for a taxi fare from Surry Hill to Quakers Hill. This amount was $90. He stated it represented his waiting time. (e) Mr Sara stated that this occurred on three to four occasions, however he denied that he had accepted Cab Charge dockets from Ms Lamba for trips he never did and cashed in those dockets for the usual fare and paid Ms Lamba a portion of that amount for petrol money. 19 Ms Lamba's oral evidence and the evidence in her signed statement included the following: (a) She had met Mr Sara in 2000 at about the time of the Olympics. She found him to be a safe driver and was able to trust him so she used him as her regular driver until the end of May 2002. (b) During this time, she was employed as a journalist with Nationwide News Pty Limited. She worked on a Monday, Tuesday, Wednesday, Friday and Sunday evening. As she finished work late in the evening, she was entitled to get a taxi home and if she wanted one, she would request being issued with a company Cab Charge docket. On making such a request, she would be issued with a pre-prepared Cab Charge docket, which contained the details of the name of the company and the journey. In her case, the journey was either from Blacktown or Surry Hills to Quakers Hill. (c) She became friendly with Mr Sara and had his mobile telephone number so that she could call him and let him know when she finished work. There were usually taxis outside the Surry Hill office, but she had come to trust Mr Sara and thought he was a safe driver so she always used his taxi if he was working. She found him so reliable that she even gave his number to a number of friends. (d) On some occasions, usually a Friday evening, she would call Mr Sara and ask him to pick her up from a place other than the Surry Hills office as she would go out after work. She believed she was entitled to do this and always lead Mr Sara to believe that she was entitled to do so. (e) On some occasions, she would present Mr Sara with a Cab Charge docket that stated that the start of the journey was Blacktown. She would always change this to Surry Hills if this was where her journey commenced. She had discussed this with her manager who informed her she was entitled to do this. (f) During May 2002, her mother had broken her arm and was unable to drive her car, so Ms Lamba or her brother used the car. Ms Lamba would use her mother's car and drive to work in it. On the first occasion, she drove to work she did not tell Mr Sara that she did not need a taxi and when she finished work, Mr Sara was waiting for her as usual. When she saw him, she said to him that she did not need a taxi as she had her mother's car. Mr Sara then drove her to her mother's car, which was parked at the back of the building. He also said to Ms Lamba that as she was entitled to a Cab Charge docket, she should use it so that she could pay for petrol. He said she should give him the docket and he would give her some money for the petrol. (g) At the time, Ms Lamba was upset with her employer who had promised to transfer her to New York. This had not eventuated, even though she had worked long hours and most weekends. As a result of this, she felt that the company owed her something so when she saw the opportunity presented to her by Mr Sara, she decided to take it and, as a result, has learnt a valuable lesson. She did not at any stage consider what consequences this may have had for Mr Sara. (h) After Mr Sara had made the suggestion to her, she requested and was issued with a Cab Charge docket and she gave it to Mr Sara after signing it and putting in the amount for the usual fare. This she continued to do on a regular basis until 30 May 2002 when she was dismissed from her employment. It was not every night that she worked that she took her mother's car, but she thought it was about 80 per cent of these. (i) She is 26 years of age and takes full responsibility for her actions and does not lay any responsibility on Mr Sara. She has repaid all the monies owing to the company as a result of her unauthorised conduct. (j) She has never given Mr Sara nor has Mr Sara asked for a Cab Charge docket for waiting time. 20 Mr Sermusklis gave evidence that the GPS is a system whereby Taxi Combined Services are able to identify where a particular taxi is located. It is a system that is operated via satellite, however historical records of the location of taxis are only retained for those incidents where the taxi driver has activated his or her meter or has logged on to the system via the computer on the dashboard of the taxi. 21 That is, if someone wanted to know at this particular time where a particular taxi is located, the GPS system will be able to identify this within a small area range. However, if someone subsequently wants to know where the taxi was located at this particular time, the GPS historical records will only be able to tell that person where the taxi was located the last time the taxi driver had activated his or her meter or logged on. If this occurred half an hour before, the historical record would not necessarily give an accurate record of where the taxi was located. Similarly, once a taxi has logged off, the GPS records do not contain a historical record of where the taxi was located. 22 Mr Sermusklis was requested to produce GPS records in respect of about 30 Cab Charge dockets that are the subject of this application. These documents were produced and Mr Hallahan examined the documents and found that there were six occasions where the GPS records did not match the details of the Cab Charge docket. That is, the Cab Charge docket stated that Mr Sara was travelling from Surry Hills to Quakers Hill during a particular time, yet the GPS records show that Mr Sara's taxi cab, during that time, was in a place other than travelling from Surry Hills to Quakers Hill. The particular dockets related to the period late April into May of 2002. Some of the GPS records did not relate to a time that Mr Sara was driving the cab and the remaining GPS records indicated that Mr Sara had logged off the system prior to the times stated on the corresponding Cab Charge docket. Accordingly, there are no historical GPS records for these trips. 23 The issues in this case are primarily factual. In respect of the allegation that Mr Sara accepted Cab Charge dockets for trips that did not emanate from Surry Hills, I make no adverse findings against Mr Sara as Ms Lamba clearly lead him to believe that she was authorised to use her Cab Charge dockets on these occasions. 24 In respect of the allegation that Mr Sara accepted a Cab Charge docket for trips he did not do, I find that Mr Sara did, in fact, accept and process such dockets. I make this finding on the basis of Ms Lamba's evidence that is corroborated by the six GPS records that were identified by Mr Hallahan in his statement. 25 I make no finding as to whether this was Mr Sara's idea or that of Ms Lamba. However, I do find Ms Lamba's evidence difficult to accept in this regard. She clearly had a grievance against her employer and wanted to back at them in some way. What is of significance is that Mr Sara accepted such Cab Charge dockets when he knew he was not entitled to them. 26 Having regard to Mr Sara's conduct, the question is whether the Director-General and, in this case, the Tribunal can attest to Mr Sara being considered a person of "good repute" and in all other respects a "fit and proper person" to be authorised to drive a taxi cab. This means that the Tribunal must assess the evidence as to Mr Sara's reputation and also whether he is a fit and proper person in the relevant sense. Furthermore, both need to be satisfied. 27 In respect of his reputation, I will not recite the many cases in which the Tribunal has already set out what is meant by "good repute" in the context of the Passenger Transport Act. In this case, Mr Sara has relied on five references to establish his reputation. None of the references, however, make any reference to the allegations that have been made against him. They all, however, do state that they consider Mr Sara to be a man of honour and also trustworthy. Unfortunately, as they do not make any reference to the allegations, which are currently before the Tribunal, I cannot give them very much weight. 28 Even if Mr Sara were to be found to be a person of good repute, it must also be found that he is otherwise a "fit and proper" person to be responsible as a driver of a taxi cab. Again, I will not repeat all the previous decisions, which are relied on by the Tribunal in respect of the meaning of a "fit and proper" person. 29 In this case, Mr Sara's conduct in respect of accepting and depositing Cab Charge dockets to which he was not entitled are serious and the Tribunal is of the view that the Director-General's decision is the correct and preferred decision. It would, however, also indicate that it notes that Mr Sara has a record of 39 years as a taxi driver with no complaints having been made against him. 30 This particular incident is an isolated incident for a relatively short period of time and this should be taken into account in the event Mr Sara makes a re-application for a driver authority. However, the circumstances of his conduct in respect of these Cab Charge dockets, in my opinion, are serious and warrant the cancellation of his driver authority. I order that the decision of the Director-General is affirmed.