Set aside by Appeal : CITATION: Kumar v Ministry of Transport [2006] NSWADT 259 DIVISION: General Division APPLICANT PARTIES: Raj Kumar RESPONDENT Ministry of Transport FILE NUMBER: 063128 HEARING DATES: 2/06/2006 SUBMISSIONS CLOSED: 06/16/2006 DATE OF DECISION: 09/05/2006 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 CASES CITED: Saadieh v Director-General, Department of Transport [1999] NSWADT 68 APPLICANT In person REPRESENTATION: RESPONDENT A Wozniak, Solicitor ORDERS: The decision under review is set aside. In its place I make the determination that Mr Kumar's authority is suspended for a period of six-months REASONS FOR DECISION 1 Mr Kumar is a taxi driver. He has been driving taxis since March 2001. His authority to be the driver of a public passenger vehicle (taxi-cab) is under the Passenger Transport Act 1990 ("the Act"). 2 By letter dated 22 March 2006 a delegate of the Director General of the Ministry advised Mr Kumar of the decision to cancel his authority to drive a taxi-cab. The decision was affirmed on an internal review and Mr Kumar has applied to the Tribunal for an external review of that determination. The Applicable Law 3 Section 33 of the Act provides in part: 33 Authorities (1) The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. (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: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom. 4 Section 33F of the Act provides: 33F Variation, suspension or cancellation of authority 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. 5 Section 33D of the Act provides that an authority is subject to the conditions prescribed by the Regulations and such additional conditions as the Director-General may impose on the licence. 6 The Passenger Transport (Taxi-cab Services) Regulation 2001 ("the Regulations") made pursuant to the Act governs the conduct of taxi-cab drivers. Clause 69 of the Regulations provides for the operation of a meter by a taxi-cab driver. Clause 43(1)(a) of the Regulations provides that the driver of a taxi-cab must not cause or allow the taxi-meter in the taxi-cab to display the night-time surcharge rate at a time when that rate is not applicable. The Ministry's case 7 The Ministry relies on the material contained in its file as supporting the decision under review. The Ministry's evidence comprises some 350 pages much of which deals with complaints against Mr Kumar and steps taken by the Ministry in relation to those complaints. Mr Kumar's authority was issued in March 2001 and there has been ongoing complaints to the Ministry ever since. Mr Wozniak, Solicitor for the Ministry, pointed some 19 complaints received against Mr Kumar, included in these is a complaint lodged on the first day that he drove a taxi-cab. 8 Mr Kumar was the subject of complaints alleging overcharging for fares and use of a meter in contravention of the Regulations. These matters were the subject of disciplinary action, which resulted in the Tribunal affirming the Ministry's determination to require Mr Kumar to undergo retraining on 'rules and regulations' and 'geographical knowledge'. Mr Kumar completed this retraining in March 2005. 9 Mr Wozniak submits that the test relevant to this matter is set out in section 11(2) of the Act. That section provides that the purpose of an authority is to attest 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 is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates. The Ministry contends that the evidence supports the view that it is unable to attest that Mr Kumar possesses these attributes. 10 Mr Wozniak submits that Mr Kumar's response to the allegations against him is uncertain. In a letter dated 31 August 2004 in which he sought an internal review of an earlier decision Mr Kumar says that he had not done anything wrong, not violated any rules and regulations and never overcharged. He suggested that the complaints against him might be related to the work of other taxi drivers. However, he subsequently conceded to applying the wrong tariff and was therefore overcharging passengers, and he offered an unconditional apology in relation to complaints about overcharging. 11 In 2004 the Ministry determined that Mr Kumar's authority should be cancelled but following representations by Mr Kumar, the determination was changed to allow Mr Kumar to undertake retraining. Mr Wozniak submits that notwithstanding that the cancellation of his authority was withdrawn, Mr Kumar did not get the message and the complaints continued. 12 Mr Wozniak also refers to an incident on 24 January 2006, which allegedly involved an assault by Mr Kumar on a passenger. The passenger went to the police and lodged a complaint against Mr Kumar and also complained to the Ministry. A copy of the Event record as recorded in the NSW Police Service COPS database is in evidence. It records that the complaint was lodged at 2pm and alleges that the incident occurred at approximately 11.15am. Mr Kumar said that the time of the incident was about midday. 13 Mr Kumar denied the assault allegation and says that he was the person who was assaulted. He says that he complained to the police the next day. On 1 February 2006 Mr Charlie Rosiello, a Ministry Compliance Officer, interviewed Mr Kumar in relation to the incident. The transcript of interview indicates that Mr Kumar told Mr Rosiello that he went to Kogarah police. Mr Wozniak referred to a memo written by Mr Rosiello on 7 February 2006 which states that he contacted the Kogarah police station and was told that there was no record of Mr Kumar making the complaint. 14 Mr Wozniak submits that even if Mr Kumar is correct, the Event record shows that he was again driving his taxi at a time when he was not permitted to do so. Mr Kumar has a night-time plate with restricted the operating times of his taxi to between 3pm and 3 am. 15 In February this year Mr Kumar was detected at Sydney airport at 9am and that he was out of uniform, and he was issued with a $750 fine. The explanation that he provided for being at the airport and out of uniform did not explain the fact that he was using his taxi outside the approved hours. 16 The most recent incident to which Mr Wozniak referred is a customer complaint received on 21 March 2006 in which the customer complained that Mr Kumar did not travel by the most direct route. The complainant said that Mr Kumar had indicated that he would not charge her if she did not complain, but she nevertheless did complain, as she had been late for a meeting. 17 Mr Wozniak referred to the decision in the matter of Saadieh v Director-General, Department of Transport [1999] NSWADT 68 in which the Deputy President of this Tribunal considered a number of factors that are relevant and should be taken into account in determining whether a person is suitably fit to obtain a taxi-driver authority. Those factors are the nature, seriousness, and frequency of any offences for which the person has been convicted; the nature, seriousness, and frequency of any complaints made against him; their driving record; their reputation in the community; and the likelihood that they will re-offend, be the subject of further complaints, or commit further offences. 18 He submits that the complaints have all occurred within the regulated activity. They all relate to honesty - use of tariff two over tariff one i.e. charging an extra 20% in the middle of the day; over-charging by taking the long route to the destination; and the use of the vehicle when it shouldn't be being used. As to the frequency, Mr Wozniak pointed some 19 complaints received against Mr Kumar. 19 Mr Wozniak says that the efforts that Mr Kumar has made to rehabilitate himself are relevant in assessing the likelihood that he will re-offend. He points to the fact that Mr Kumar has already undertaken retraining but since the retraining there have been three further complaints. He submits that given Mr Kumar's short history as a taxi-driver, the likelihood of his re-offending must be seen to be high. 20 Mr Wozniak says that little weight can be give to the testimonials provided with respect to Mr Kumar's reputation, as they make no reference to the extent of the complaints against him. 21 Mr Wozniak submits that Mr Kumar has been the subject of previous disciplinary action but he has not learnt from his experience and the Ministry can no longer attest that he 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. Mr Kumar's case 22 Mr Kumar appeared at the hearing and gave evidence in support of his application. He also filed detailed submissions in regard to each of the allegations brought against him. He says that the unconditional apology to which Mr Wozniak referred relates to his concern that a passenger might feel unhappy even if Mr Kumar considers that he had done nothing wrong. 23 Mr Kumar conceded that the use of the night-time tariff at a time when that rate is not applicable was an issue in the past but denies that this is still the case. He says that he installed an automatic meter in his taxi two years ago. The meter changes the tariff at specified time and cannot be manually adjusted. He is prepared to present it for inspection to any inspection station. A letter contained on the Ministry's file indicates that the meter was tested on 22 April 2004. 24 Mr Kumar also says that he has changed from a night-time taxi to a full time taxi. Accordingly, operation of his taxi outside the permitted period will not be an issue in the future. He says that he is prepared to accept any conditions on the authority short of cancellation. 25 Mr Kumar says that the majority of complaints against him were in his first three years of operation. There was a complaint free period of 18 months until January 2006. After that he was under close scrutiny by the Ministry and this explains action taken against him. 26 With respect to the alleged assault of a passenger on 24 January 2006, Mr Kumar denies threatening or assaulting the passenger. He says that the passenger refused to pay the fare, took his photo id and punched Mr Kumar in his face. Mr Kumar says that the next day the passenger retracted his complaint and said that he was not interested in pursuing any action. 27 Mr Kumar further states that he went to Rockdale police station but that the officer who attended to him was from Kogarah police station. He says that he lodged a complaint with Rockdale Police about the passenger for not paying any fare, punching him and for forcibly taking his authority card. He says that they took a report but when he said that he could not recognize the person and that he did not have a video clip of the incident, they said they could not start the investigation. Mr Kumar referred to a police event record that was recorded on 6 May 2006. The event record refers to Mr Kumar's account of the 24 January 2006 incident and his assertion that he had attended Rockdale police station to lodge a complaint on 25 January 2006. 28 Mr Kumar says that he provided an account of his efforts to report the incident to the police to Mr Rosiello by email dated March 13, 2006. He included what he says is a copy of that email in his submissions. The Ministry denies ever receiving that email. Nevertheless, it provides a reasonable summary of Mr Kumar's version of events: "I went to Rockdale police station twice. I went to report this whole incidence. Police officer name was A Martin. He told that he was from St George Kogarah. He gave his phone number as 0285667498. I have tried to contact the police officer, nobody answer the call. Kogarah police station phone 0285667499 told me that Martin will be available on Wednesday. I will go personally to see him on Wednesday. On the day of my report he did not show much interest in my complaint. He said "if the complaint is for fair evasion of seven dollars or forcibly taking ID Or some other things like that we weigh the complaints about more urgent work that we have. Though every complaint is important our work will never finish. You will never recover your photo ID or recover your fair. Your photo ID may well be in the bin." In front of me he wrote some thing in the daily dairy. He gave me phone number 131444 to ring and lodge the complaint of photo ID. When I found that Police officer had not properly treated my complaint then I did not had any other place to go. I was not interested in going beyond that." 29 Mr Kumar says that the Notice to Show Cause issued to him by the Ministry was unfair to him because it was based on a complaint from a miscreant who had not paid any fare, punched him and forcibly taken his authority card. 30 With respect to the alleged 21 March 2006 complaint that Mr Kumar did not travel by the most direct route, Mr Kumar denies that he said he would not charge the customer if she did not complain. He said that he told her that she need not pay the fare if she was not happy. He said that he apologised even though he thought he was absolutely right. 31 Mr Kumar asserts that he has been treated unfairly by officers of the Ministry. He contends that Mr Rosiello used the information available to him selectively. With respect to the transcript of interview that indicates that Mr Kumar told Mr Rosiello that he went to Kogarah police, Mr Kumar says that Mr Rosiello could have contacted him to clarify the answer and to ascertain the correct Police station where he had lodged his complaint but did not do so. He says that given the significance of the issue Mr Rosiello should have done that. Mr Kumar says that if Mr Rosiello had raised the issue, he would have gone to the police station and obtained evidence of having lodged the complaint. 32 Mr Kumar says that any concerns that the Ministry may have had in the past are no longer relevant and that the Tribunal can be satisfied that he is of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab. Accordingly the decision to cancel his authority should be set aside. Findings 33 The Ministry's power to cancel a driver authority is under section 33F of the Act. A person's authority may be varied, suspended or cancelled having regard to the purpose of authorisation. Section 33 of the Act provides that the purpose of an authority is to attest 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 in accordance with the conditions under which the taxi-cab service concerned is operated, and in accordance with law and custom. 34 The issue to be determined is whether or not, in view of the allegations against Mr Kumar and the effect they have on his reputation and the public's perception of his fitness to drive taxis, the Ministry's decision to cancel Mr Kumar's authority was the correct decision. 35 It is not in dispute that Mr Kumar has been the subject of numerous complaints or that the Ministry has taken disciplinary action against him in the past. Mr Kumar has provided an explanation with respect to the majority of the incidents raised by the Ministry and has disputed several allegations brought against him. 36 In particular Mr Kumar has denied the alleged assault of a passenger on 24 January 2006, and asserts that in fact he was the victim of an assault on that occasion. Mr Kumar says that he complained to the police about the incident the following day however the documentation obtained from the police does not record that complaint. That documentation indicates that he returned to Rockdale Police station on 6 May 2006 at which time the information that Mr Kumar provided was recorded and he was given an Event number. 37 There is no evidence to support Mr Kumar's assertion that the passenger retracted his complaint. The evidence merely indicates that the passenger was not interested in pursuing any action. 38 Mr Kumar was interviewed in relation to the incident on 1 February 2006. The transcript of interview indicates that Mr Kumar stated that he had complained to the police. Given the seriousness of the allegation it seems surprising that Mr Kumar did not pursue the matter with the police at that stage. He said that at the time he lodged his complaint with the police they were not prepared to act on his complaint because he did not know the identity of the passenger. However, after the interview on 1 February 2006 he should have been aware that the Ministry would have been able to supply that information to the police. Nevertheless he did not return to pursue the matter with the police until 6 May 2006 - after the decision to cancel his authority. 39 I note that on 13 March 2003 when he replied to the Notice to Show Cause issued by the Ministry Mr Kumar referred to the alleged assault incident but he did not make mention of having reported the incident to the police. Given the seriousness of the allegation this also seems surprising. 40 Nevertheless, in the absence of evidence from the passenger who alleged the assault by Mr Kumar, I make no adverse finding against Mr Kumar with respect to the incident. 41 I am however satisfied that it is probable that there is some merit in the complaints of overcharging made against Mr Kumar. I accept that the majority of those complaints date to before he was required to undertake retraining. The most recent complaint lodged on 21 March 2006 is that he failed to drive by shortest practical route. I am satisfied that it is probable that the complaint has some merit notwithstanding that he disputes it. It seems to me that it is implausible that Mr Kumar would have agreed to waive the fare if the complaint was without any merit. 42 I do not accept Mr Kumar's explanation for the times when he drove his taxi outside the authorised period. In my view, these are serious breaches of the legislation and warranted action against his authority. 43 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] the Tribunal's Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority as follows: "17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; the nature, seriousness and frequency of any complaints made against the applicant; the applicant's driving record; the applicant's reputation in the community; and the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 18 In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers." 44 In my view, the evidence shows that Mr Kumar has been the subject of numerous complaints almost from the time he commenced driving a taxi. They are generally related to overcharging or failing to travel by the most direct route. These are serious complaints. 45 I am satisfied that Mr Kumar has probably resolved the issue of overcharging as a result of using the wrong tariff by replacing the meter in his taxi. The issue of operating his taxi outside the authorised period has been resolved by changing the status of his taxi from a night-time taxi to a full-time taxi. It therefore seems unlikely that these types of complaint will re-occur. 46 The issue of failing to travel by the most direct route is more troublesome. Mr Kumar has previously been required to undertake retraining and that does not appear to have resolved the issue. In the circumstances it is my view the likelihood that Mr Kumar will re-offend, or be the subject of further complaints is unacceptably high. It will remain so unless his geographical knowledge is improved significantly. For this reason I do not consider that he has sufficient aptitude to drive a taxi. I note that he has already undertaken retraining in regard to geographical knowledge. 47 It is my view that under these circumstances some action against Mr Kumar's authority is justified. I do not agree that the authority should be cancelled but rather that a period of suspension is warranted. In the circumstances it is my view that a six-month period of suspension is reasonable. I recommend that during the period of suspension he take steps to address the issue of his geographical knowledge and to generally familiarise himself with the rules and regulations under which taxi drivers are required to operate. Order The decision under review is set aside. In its place I make the determination that Mr Kumar's authority is suspended for a period of six-months. 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.