Picon -v- Director General, Department of Transport [2002] NSWADT 96

CITATION: Picon -v- Director General, Department of Transport [2002] NSWADT 96 DIVISION: General Division APPLICANT PARTIES: Richard Picon RESPONDENT Director General, Department of Transport FILE NUMBER: 023044 HEARING DATES: 05/04/2002 SUBMISSIONS CLOSED: 04/05/2002 DATE OF DECISION: 06/06/2002

BEFORE: Montgomery S - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - suspension of authority - Taxi driver - suspension of authority MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Passenger Transport (Taxi-cab Services) Regulation 1995 Passenger Transport Act 1990 CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354 APPLICANT REPRESENTATION: K Poulos, solicitor RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director-General of the Department of Transport is varied. The Taxi Driver Authority No. DY3403 held by Mr Richard Picon is suspended for the period to 21 November 2002. If prior to 21 November 2002 Mr Picon provides the Department of Transport with documentary evidence that he has successfully completed the Rules & Regulations module of an approved taxi driver training program, the suspension is to be lifted from the date that the documentary evidence is provided.

Background 1 These proceedings relate to a determination made by the Director General, Department of Transport ("the Director General") to suspend the Taxi Driver Authority No. DY3403 held by Mr Richard Picon ("Mr Picon"). The Director General's decision was to suspend Mr Picon's authority to drive taxi-cabs for the period 22 February 2002 to 21 August 2002 inclusive. Mr Picon was advised of the decision by letter dated 15 February 2002, signed by Mr Frank Malone, Manager Compliance with the Taxi & Hire Car Bureau. 2 Mr Picon is a taxi driver. He is 35 years of age, has dependants and has no other source of income. He works as a taxi driver for around 12 hours per day, 6 days per week. He has a long career as a taxi driver and is understandably concerned to ensure that the decision by the Director General to suspend his authority is the correct preferable one having regard to all the relevant material and law. 3 The Director General's decision was made following the issue of a Notice to Show Cause on 29 November 2001. Mr Picon made submissions in relation to the matters by letter dated 6 December 2001. The Director General provided written reasons for the decision. Those reasons outlined a series of complaints against Mr Picon which had been recorded between December 1998 and September 2001. The subject matter of those complaints included soliciting for passengers, demanding more than the prescribed fare, refusing to accept a hire, and unauthorized multiple hire. 4 In February 1999 Mr Picon was interviewed by officers of the Department of Transport. He was warned that any future indiscretions may result in the Department taking action against him. On 8 February 1999 a letter was sent to Mr Picon in reference to a complaint against him concerning an incident on the 10 January 1999. That letter stated: "Due to the seriousness of the complaint, consideration has been given to the suspension and/or cancellation of your Taxi Drivers Authority No DY3403. In view of your previous good record as a driver of public passenger vehicles, no action will be taken against your Taxi Driver Authority No DY3403 on this occasion. However, you are warned that should the Department receive further complaints of a similar nature or you breach the Passenger Transport Regulations, the Traffic Act or a criminal conviction is recorded, the Department will suspend and/or cancel your Taxi Driver Authority." 5 No further complaints were recorded against Mr Picon during 1999 however in May 2000 an infringement notice was issued after an officer of the Department of Transport observed Mr Picon soliciting for passengers. Further complaints were received in July 2000, October 2000 and June 2001. 6 On 13 June 2001 a further letter was sent to Mr Picon. That letter was clearly identified as a "Final Warning Letter". That letter provided: "On Thursday 7 June 2001 at 9:13pm whilst driving taxi T3490 you were observed and spoken to by officers of the Taxi & Hire Car Bureau, at the Qantas Domestic Terminal, Shiers Ave Mascot for soliciting for passengers for a taxi. Clause 23 of the Passenger Transport (Taxi-cab Services) Regulations 1995 states the driver of a taxi-cab must not do any of the following: (b) solicit for passengers or for hiring. On this occasion the Bureau has determined a reprimand to be a suitable course of action in this instance. However, I also note that a previous warning letter was issued to you on the 8 February 1999 for a similar incident. Given this, you are hereby warned that should you again be observed breaching the Passenger Transport (Taxi-cab Services) Regulations 1995, an infringement notice will be issued and action may be taken to suspend or cancel your authority to drive a public passenger vehicle." 7 Notwithstanding the final warning letter of 13 June 2001, two further complaints were recorded against Mr Picon. On 30 August 2001 a complaint that Mr Picon had demanded more than the prescribed fare was recorded, and on 2 September 2001 a complaint that Mr Picon had multiple-hired without consent was recorded. 8 On 20 November 2001 Mr Picon was interviewed by officers of the Department of Transport in relation to the most recent complaints. As stated above, a Notice to Show Cause was issued to Mr Picon on 29 November 2001. A decision was subsequently taken to suspend Mr Picon's driver's authority and Mr Picon was notified of that decision by letter dated 15 February 2002. Reviewable decision 9 The reviewable decision is that of the Director General to suspend Mr Picon's authority to drive a taxi-cab, advised to Mr Picon by letter dated 15 February 2002. 10 On 20 February 2002 Mr Picon lodged an application with the Tribunal for a review of the Director General's decision. He also sought an urgent stay of the decision. The matter of the stay came before the Deputy President of this Tribunal on 25 February 2002. The stay was granted and remains in force pending the outcome of this matter. Nature of proceedings 11 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 12 These are not adversarial proceedings in which the applicant carries an onus of proof. The applicant, by making the application, triggers a process of merits review by the Tribunal. The applicant does not take on the responsibility of having to prove a case, nor does an applicant cause an administrator to have to prove a case. The applicant and the administrator are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 13 Section 63(1) of the ADT Act provides: "63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." 14 The Tribunal makes its own decision in place of the administrator's, and "there is no presumption that the decision of the administrator is correct" ( McDonald v Director General of Social Security (1984) 1 FCR 354 at 357). 15 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357). Requirements to be met 16 The issue for this Tribunal is: what is the correct and preferable decision? The Act sets out the applicable law. Section 33F of the Act enables the Department to suspend or cancel an authority to drive a public passenger vehicle, having regard to the purpose for which the authority is held. 17 Section 33 (3) of the Act provides: "(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 (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: