CITATION: Ku -v- Director General, Department of Transport [2001] NSWADT 218 DIVISION: General Division APPLICANT PARTIES: Paul Kusuma Ku RESPONDENT Director General, Department of Transport FILE NUMBER: 013235 HEARING DATES: 29/11/2001, 13/12/2001 SUBMISSIONS CLOSED: 12/13/2001 DATE OF DECISION: 12/18/2001 BEFORE: Montgomery S - Judicial Member APPLICATION: Passenger Transport Act - taxi operator - cancellation of accreditation - Taxi operator - cancellation of accreditation MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Crimes Act 1900 Passenger Transport Act 1990 Kioa -v- West (1985) 159 CLR 550 Williamson -v- Director General, Department of Transport [2001] NSWADT 3 CASES CITED: Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 Commissioner for Motor Transport v Darcy Francis Leo, NSW Supreme Court (McInerney J), 10 September 1986, unreported APPLICANT REPRESENTATION: D Burwood, barrister RESPONDENT A Wozniak, solicitor ORDERS: Order made 13 December 2001: The application to have the matter of compliance decided separately from the matter of the alleged bribery is refused. Background 1 This Application was brought by Paul Kusuma Ku ("the Applicant") in relation to a decision of the Director-General of the Department of Transport ("the Respondent") dated 21 September 2001. The Director-General decided to cancel the Taxi Operator Accreditation 252 in the name of Paul Kusuma Ku and Taxi Operator Accreditation 23699 in the name of Winner Taxi Cab Pty Ltd. The cancellation was to take effect from 6:00pm on Friday 12 October 2001. 2 Two grounds were given for the cancellation. Firstly, it was stated that vehicles operated under the Applicant's accreditation had been regularly found to be in a poor state of cleanliness and mechanical repair and with safety related defects. This was considered to be an indication of the Applicant's failure to comply with the Roadworthiness Assurance Guidelines and operator accreditation standards. 3 It was stated that the results of inspections undertaken jointly by the Department of Transport ("DOT") and the Roads and Traffic Authority's staff cast doubt on the safety of the Applicant's fleet, the effectiveness of his maintenance program and the accuracy of records he had supplied. The high number of defects notices issued to the Applicant's fleet was said to be not consistent with the maintenance program he claimed to have in place. 4 The second ground was based on the allegation that during the course of the Applicant's taxi-cabs being inspected at the Roads and Traffic Authority's Heavy Vehicle Inspection Station facility at Botany on 11 September 2001, the Applicant handed an officer of the DOT a catalogue which contained three plain white envelopes, and asked the officer to go easy on him. It was further alleged that when interviewed the Applicant made admissions that he had placed $500 in each envelope hoping that it would get the Departmental Officers to give him additional time and to go easy on him. 5 Charges have been brought against the Applicant in relation to the alleged bribery issue. The Applicant has entered a 'not guilty' plea to the charge of 'Corruptly give benefit to Agent' under s.249B Crimes Act (NSW) 1900. The police brief is to be served on or before 8 January 2002, the defendant's reply on or before 15 January 2002 and the matter is to be allocated a hearing date on 15 January 2002. 6 The Applicant sought an urgent stay of the Respondent's decision and the stay was granted on 11 October 2001. The stay was set to remain in place until the conclusion of the hearing of the matter. 7 The matter came before the Tribunal for hearing in November. The matter remained part-heard at that date and the stay was extended to remain in place until 13 December 2001. 8 At the commencement of the hearing on 13 December 2001, the Applicant brought an interim Application seeking orders that the matter of compliance be decided separately from the matter of the alleged bribery. The Applicant's Submissions 9 The Applicant submitted that the decision to separate the matters before the Tribunal is a discretion. A wide discretion for the Tribunal exists. The onus is on the Applicant to show that it is just and convenient that the application be granted. 10 The Applicant is not seeking a stay of the civil proceedings. Of the two grounds relied on by the Respondent, he seeks to have one ground decided immediately pending the resolution of the criminal matter in early 2002. 11 The Applicant relied on several grounds for the application: (a) There is no demonstrated prejudice to the Respondent; (b) The criminal proceedings are not distant from the civil proceedings and the Respondent is not precluded from further proceedings should the Applicant's accreditation application concerning compliance succeed; (c) If the Applicant's compliance proceedings fail and accreditation is cancelled the second ground of cancellation falls away; (d) The NSW DOT Taxi-Operator Accreditation Interim Application Package in its section dealing with Accreditation refers to 'Declaring Convictions and Charges' and states 'Criminal convictions may be examined by the DOT and considered in relation to the person's suitability to be an accredited operator'. Although the information refers to charges and convictions, only 'convictions' and not charges according to the DOT's own information, are 'examined' by the Department. (e) The case law indicates that accreditation cancellation decisions have been affirmed by the ADT where there has been a conviction or convictions recorded in the criminal proceedings eg: (i) Lloyd's case. (ii) Singh's case (iii) Saadieh's case (f) In the present matter the Applicant faces one charge to which he has pleaded not guilty. The outcome is unknown. The Applicant may change his plea, the charge may be dismissed, and the Applicant may be found guilty. There is no certainty that, should the allegation be dealt with at the same time as the compliance matter, the Tribunal will be in a position to assess the allegation with all of the evidence that will be before the criminal jurisdiction. For the sake of a few weeks the Tribunal will be required to form a view - should the matter be dealt with in tandem with the issue of compliance - ahead of the criminal proceedings without the benefit of all of the evidence, the final plea entered by the Applicant and the sentence should the matter proceed to a conviction. This is in contrast to the certainty afforded other Applicants where their applications have been determined on the basis of recorded convictions. This breaches the fundamental tenet of fairness in such proceedings by depriving the Applicant of being heard on the attempted bribery charge after the outcome of the criminal proceedings. (g) Brennan J in Kioa v West (1985) 159 CLR 550 at 627 stated: "What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonable and fairly. As the obligation to observe the principles of natural justice is not correlative to a common law right, but is a condition governing the exercise of a statutory power, the repository satisfies the condition by adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised. When the question for the court is whether the condition is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair." 12 It is not reasonable and fair that in the circumstances of the Applicant's particular case that the question of the allegation of attempted bribery be dealt with by the Tribunal ahead of pending criminal proceedings alongside the question of compliance. It is fair and reasonable that the compliance issue be dealt with separately and immediately for it is a discrete issue in its own right and does not overlap with the criminal allegation." 13 The separate determination of what is currently a criminal charge only is fair and reasonable in the light of the fact that in a relatively short space of time the charge will crystallise into an outcome (whether a conviction or dismissal) which will be a fact around which the Tribunal will be able to make a specific determination with certainty. This is in contrast to the situation where the Tribunal may make a finding at variance with the actual outcome of the pending criminal proceedings. 14 The prejudice to the Applicant of such a finding is demonstrable and highly prejudicial to the Applicant's livelihood. The Applicant has continued to operate a taxi service ever since the allegation was first made and continues three months later to do so. There is no evidence of prejudice to the Respondent or to the public interest as the Applicant continues to operate his fleet whilst the criminal charge is pending. 15 The short duration between the current hearing and the pending proceedings is a further ground for a separate determination and the lack of a protracted outcome reduces the inconvenience and prejudice to the Respondent. The Respondent's Submissions 16 Mr Wozniak for the Respondent submitted that it is expedient to determine all aspects of the matter at the same time. The Tribunal stands in the shoes of the Respondent and has the same powers as the Respondent. It is not the Tribunal's function to determine whether the Applicant is guilty of the bribery issue. The Tribunal is to determine whether the Applicant satisfies the criteria to hold his accreditation. 17 Mr Wozniak submitted that in making its determination the Tribunal may consider the serious nature of the charges which have been brought against the Applicant, and the circumstances in which those charges were brought. It is significant, in his submission, that the charges are directly related to the Applicant's accreditation in that it is alleged that the Applicant attempted to bribe a Departmental Officer in relation to an assessment of the Applicant's compliance with the regulations applicable to his accreditation. These issues are separate from the issue of whether or not the Applicant is found guilty of the charges brought. 18 Mr Wozniak referred the Tribunal to two authorities which address the Tribunals' power to consider charges brought against an applicant without the need to wait for a court determination of those charges. Those authorities are Williamson -v- Director General, Department of Transport [2001] NSWADT 3 and Farquharson -v- Director General, Department of Transport [1999] NSWADT 53. 19 In Farquharson at paragraphs 27 and 29, the President of the Tribunal, O'Connor J, made the following observation: "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 character" 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 or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J). " 20 In Williamson the Tribunal's Deputy President referred to the case of Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 (9 July 1999) in which the Tribunal's President, K P O'Connor DCJ, affirmed the Director General's decision to suspend a taxi authority. The circumstances of that case were that the applicant had been charged with two counts of soliciting a person to commit murder. The Deputy President observed that the President had drawn several conclusions in that case which are relevant to the proceedings in which she presided. Mr. Wozniak submitted that these conclusions are applicable to the present case. The Deputy President summarised these conclusions as follows: "it is not the Tribunal's role to determine the guilt or innocence of Mrs Williamson in relation to the charges against her or even the likelihood that she will be convicted or acquitted of those charges; the Tribunal's role is to determine, having regard to the seriousness of the charges and the circumstances of those charges, whether the Director General was justified in suspending the authorities; (See Commissioner for Motor Transport v Darcy Francis Leo, NSW Supreme Court (McInerney J), 10 September 1986, unreported.) while it is a tenet of the criminal law that a person is innocent until proven guilty, the PT Act allows for an authority to be suspended where the person is no longer considered to be of good repute and/or a fit and proper person to be the driver of a public passenger vehicle." 21 In Williamson at paragraph 22 the Deputy President observed that the Director General is not required to wait for the outcome of criminal or other proceedings before making a decision about suspension or cancellation of a person's authority. 22 Mr Wozniak submitted that the Deputy President's observation in relation to the Director General is also applicable to the Tribunal. Finding 23 I accept Mr Wozniak's submissions in relation to this issue. In my view, Williamson and Farquharson are an accurate statement of the law. It is not the Tribunal's role to determine the Applicant's guilt or innocence in relation to the charges against him or even the likelihood that he will be convicted or acquitted of those charges. In this matter, the Tribunal's role is to determine, having regard to the seriousness of the charges and the circumstances of those charges, whether the Director General was justified in cancelling the Applicant's Accreditation. 24 The Tribunal is not required to wait for the outcome of the criminal proceedings relating to the bribery charges brought against the Applicant before making a decision about the cancellation of the Applicant's Accreditation. 25 It is my view that the matter should proceed to determination. I am not satisfied that in adopting this approach the Applicant will be the subject of any lack of procedural fairness. Order 26 The application to have the matter of compliance decided separately from the matter of the alleged bribery is refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.