Osman v Ministry of Transport (No 2) [2006] NSWADT 32

CITATION: Osman v Ministry of Transport (No 2) [2006] NSWADT 32

DIVISION: General Division

APPLICANT PARTIES: Mohamed Osman RESPONDENT Ministry of Transport

FILE NUMBER: 043128

HEARING DATES: 28/10/2005

SUBMISSIONS CLOSED: 10/28/2005

DATE OF DECISION: 02/02/2006

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

Elgammal-v- Director General, Department of Transport [1999] NSWADT 82 Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165 CASES CITED: Osman v Ministry of Transport [2005] NSWADT 142 Proudman v. Dayman (1941) 67 CLR 536 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 Williamson -v- Director General, Department of Transport [2001] NSWADT 3

APPLICANT N Mayell, Barrister REPRESENTATION: RESPONDENT A Wozniak, Solicitor

ORDERS: 1. The decision of the Ministry of Transport is set aside; 2. In its place I make the new determination that Mr. Osman's authority to drive a taxicab is suspended for a period of two months

REASONS FOR DECISION 1 Mr. Osman is seeking a review by the Tribunal of a decision of the Ministry of Transport to cancel his authority to drive a taxicab. 2 Mr. Osman was an accredited taxicab operator under the Passenger Transport Act 1990 ("the Act"). His accreditation was cancelled on 24 January 2000. The Director-General reasoned that the fact that Mr. Osman was bankrupt showed that he could not demonstrate the capacity to meet the government's standard of financial viability. Accordingly it could no longer be attested that he was considered to meet the standards required for accreditation as an operator. Mr. Osman's bankruptcy was annulled in August 2000. The consequences of the annulment were the subject of a preliminary decision in this matter. In Osman v Ministry of Transport [2005] NSWADT 142 I held that the annulment of Mr. Osman's bankruptcy does not operate retrospectively to cause the decision to cancel his accreditation to operate taxicabs to be ultra vires. 3 Mr. Osman was prosecuted on the basis of his continued operation of his taxi service after his accreditation was cancelled. On 13 February 2004, Mr. Osman was convicted of 99 offences of operating a taxi service without being accredited and total legal costs and fines of $106,039.00 were imposed. These convictions formed that basis of the decision to cancel Mr. Osman's authority to drive a taxicab. That decision is the subject of this application. The Ministry's Case 4 This matter has a history reaching back to a June 1999 decision to cancel Mr. Osman's operator accreditation because he had failed to meet the relevant taxi operator accreditation standards. Mr. Osman sought review of that decision in this Tribunal. The decision was stayed and reasons for the stay are set out in Elgammal-v- Director General, Department of Transport [1999] NSWADT 82. 5 In August 1999 the Director-General of the Department of Transport decided to rescind the June 1999 decision, however, Mr. Osman's operator accreditation was varied from 10 vehicles to a maximum of 3 vehicles. The matter was subsequently listed for hearing however prior to the date of hearing Mr. Osman was advised that his accreditation had been cancelled because he had become bankrupt. The Director General's delegate had formed the view that the fact that Mr. Osman was bankrupt showed that he could not demonstrate the capacity to meet the government's standard of financial viability. 6 Mr. Osman made an application for an internal review of that determination however the internal review was later withdrawn. Mr. Wozniak contends that at the time the decision was made, it was correct. When the bankruptcy was annulled in August 2000, Mr. Osman should have reapplied to the Ministry for his accreditation because the financial viability of an operator is an important factor in their accreditation. He would need to have proven to the Ministry that at that later time he was capable of satisfying the standards of financial viability, whether or not he was bankrupt. 7 Mr. Osman was charged with operating a taxi service on 99 occasions without being the holder of a taxi accreditation. In February 2004 Mr. Osman was convicted of those charges. He was fined $99,000, with $1,000 legal costs and $6,039 court costs. As a result the Ministry cancelled his driver authority. Mr. Osman was notified of the cancellation on 16 April 2004. Mr. Osman lodged an application for review of that determination with this Tribunal. The Tribunal as then constituted determined that the matter should proceed despite the fact that no internal review had been undertaken. On 11 May 2004 Mr. Osman was granted a stay of the cancellation until the date of determination. 8 On 3 May 2004 the Ministry received a complaint concerning the actions of the driver of a particular identified taxi and enquires conducted with the operator of taxi confirmed that Mr. Osman was the driver. Documents on which the Ministry relies indicate that during the period 16 April 2004 to 11 May 2004 Mr. Osman drove a taxi on 9 separate occasions. Mr. Wozniak contends that Mr. Osman should not have driven a taxi between the time he was notified of the cancellation and the time the stay was granted. 9 Mr. Wozniak referred the Tribunal to the decision in the matter of Williamson -v- Director General, Department of Transport [2001] NSWADT 3 and submitted that this is an authority for the principle that where there is evidence of breaches of the legislation governing conduct within this industry, it is not necessary for the Ministry to commence other proceedings against the holder of an authority before making a decision about suspension or cancellation of that person's authority. 10 Mr. Wozniak contends that in light of Mr. Osman's conduct he cannot be considered to be a fit and proper person to hold the authority. He concedes that given the passage of time since the incidents of driving without an authority occurred it may be that a suspension rather than a cancellation may be appropriate, however in the circumstances the Ministry's position is that the decision under review should be affirmed. Mr. Osman's Case 11 Mr. Mayell submitted that the evidence shows that Mr. Osman is not a fly-by-night cab driver. He has driven a cab for over 20 years and has not been the subject of a single complaint. He is employed to drive disabled persons to and from their homes or places of care. There is no dispute as to the history or the facts of this matter. The events that lead to his convictions arose from Workcover issues. He became bankrupt and sold his assets to meet a Workcover debt. The Ministry took action with respect to his operation on the basis of the bankruptcy but Mr. Osman continued to operate. He presented his cabs for inspection, attended a course as directed and did everything that was required of him. He was later prosecuted on the basis of operating without authority and was convicted in his absence. He continued to drive taxis and was subsequently issued with a notice that his authority was cancelled. The decision was based solely on the 99 offences and fines. 12 Mr. Osman has entered an arrangement with the State Debt Recovery Office and is meeting his commitments arising from the fines and costs imposed upon him at Parramatta Local Court. He relies on the income from taxi driving to meet his commitments. 13 Mr. Mayell referred to the Notice of Decision to Cancel Mr. Osman's authority dated 16 April 2005. In particular he referred to the part of that Notice that indicates Mr. Osman's review rights. The Notice states: "Review Rights You have rights of review with regard to this decision. You may seek an internal review in which another person within the Ministry will review this decision. If you wish to apply for an internal review you may do so by completing the attached form and returning it to the Ministry of Transport, Level 4, 16-18 Wentworth Avenue, Parramatta, 2150. You must do this within 28 days of receiving this letter. You will be informed of the result of the internal review within 21 days of your application being received by the Ministry. The reviewing officer may affirm, vary or set aside my decision. Applying for an internal review does not affect this decision. However, you may make an urgent application to the Administrative Decisions Tribunal (ADT) to stay this decision. For this purpose, the registry of the ADT can be contacted on 9223 4677. Once the internal review is completed, you may apply directly to the ADT for a review of that decision. Further information on this process will be set out in the letter informing you of the result of the internal." 14 Mr. Mayell contends that the letter is ambiguous and makes no suggestion that an application to the Administrative Decisions Tribunal does not affect the decision. He argued that Mr. Osman had made an honest and reasonable mistake in thinking that by making the application to the Tribunal he was then able to continue to drive a taxi. He referred to the decision in Proudman v Dayman (1941) 67 CLR 536 as authority for the general defence that an honest and reasonable mistake of fact, which, if true, would render the act innocent. 15 Mr. Mayell conceded that while Mr. Osman had brought his application to the Tribunal within a very short time after he was issued with the Notice of Decision to cancel his authority perhaps Mr. Osman should have acted sooner. However, he submitted that Mr. Osman was entitled to receive advice. 16 Mr. Osman relies on a number of testimonials that have been provided on his behalf. Each of those testimonials indicates that Mr. Osman is considered by the author to be a very honest, reliable and trustworthy person who is dedicated to his profession as a taxi driver and he is well respected in his community. 17 Mr. Mayell submitted that for the purposes of section 33F of the Act the Tribunal must be satisfied that Mr. Osman is not a fit and proper person to be the driver of a taxi-cab and that in the circumstances it would be most difficult to reach that conclusion. Findings 18 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. 19 The issue to be determined is whether or not, in view of the seriousness of the allegations against Mr. Osman 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. Osman's authority was the correct decision. 20 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." 21 It is not in dispute that Mr. Osman was prosecuted and convicted in relation to operating a taxi service without being accredited. Similarly, there is no doubt that during the period 16 April 2004 to 11 May 2004 Mr. Osman drove a taxi on 9 separate occasions without holding an authority to do so. These are seriousness offences. It is highly significant that these are offences under the Act. Mr. Osman has provided no explanation as to why he drove without an authority. I have difficulty in accepting that it was a result of a mistake. Mr. Osman had had previous dealings with the Tribunal and therefore he should have had some degree of understanding of the consequences of a cancellation notice and the procedure to obtain a stay. In my view it is implausible that Mr. Osman would have thought he was authorised to drive a taxi merely from having lodged an application for a stay. 22 There is no issue in relation to Mr. Osman's driving record and his references suggest that he is well regarded in the community. However, the question of the likelihood of his re-offending is not simple. In Mr. Osman's favour is that fact that a considerable period of time has passed since the stay was granted and there has been no suggestion that Mr. Osman has again come to the attention of the Ministry. 23 In Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165 the President of the ACT Administrative Appeals Tribunal put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing this way: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi." 24 In the present circumstances that test can be applied appropriately with the relevant member of the public travelling in a taxi driven by Mr. Osman. In my view the nature and seriousness of Mr. Osman's conduct outweighs the factors that are in Mr. Osman's favour. In my view, the appropriate order is one that will serve as a deterrent to future similar conduct. However on balance I think that the action taken by the Ministry is excessive in the light of all the factors. Accordingly, in my opinion, the decision to cancel Mr. Osman's authority to drive a taxicab is not the correct and preferred decision and it should be set aside. 25 In my view, the correct and preferable decision is that Mr. Osman's authority should be suspended for a period of two months. Order 1. The decision of the Ministry of Transport is set aside. 2. In its place I make the new determination that Mr. Osman's authority to drive a taxicab is suspended for a period of two months.