CITATION: Georgiou v Ministry of Transport [2007] NSWADT 123 DIVISION: General Division APPLICANT PARTIES: Emil Georgiou RESPONDENT Ministry of Transport FILE NUMBER: 063449 HEARING DATES: 22 March 2007 SUBMISSIONS CLOSED: 22 March 2007 DATE OF DECISION: 12 June 2007 BEFORE: Molony P - 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 Abdou -v- Director General, Department of Transport [1999] NSWADT 98 Askin v Director General, Department of Transport [2003] NSWADT 110 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Chaudharry v Director General, Ministry of Transport [20061 NSWADT 20 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Haideri -v- Director General, Department of Transport [1999] NSWADT 61 Jawad v Director General, Department of Transport [2003] NSWADT 55 Kent v Ministry of Transport [2007] NSWADT 37 Hopkins v Ministry of Transport; [2006] NSWADT 338 CASES CITED: Lal -v- Director-General, Department of Transport [2001] NSWADT 74 Lo -v- Director General, Department of Transport [2002] NSWADT 101 Marino v Director General, Ministry of Transport [2005] NSWADT 53 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Mohammed -v- Director-General, Department of Transport [2000] NSWADT 47 Ratay -v- Director General, Department of Transport [2003] NSWADT 40 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Saddick v- Director General, Department of Transport [2002] NSWADT 88 Sikder -v- Director General, Department of Transport [2002] NSWADT 148 Taylor v Director-General, Department of Transport (GD) [2001] NSWADTAP 29 Tehrani -v- Director General, Department of Transport [2003] NSWADT 31 Tirta v Ministry of Transport [2006] NSWADT 65 APPLICANT J Shaw, Solicitor REPRESENTATION: RESPONDENT A Wozniak, Solicitor ORDERS: The decision of the Administrator to cancel Mr Georgiou's driver authority is affirmed. REASONS FOR DECISION Background 1 Emil Georgiou is a 58 year old married man with three adult children. He has been driving taxis in Sydney since 1983, on a full time basis. 2 Throughout those many years, up to 2006, there have been a total of seven complaints made about Mr Georgiou's conduct as a taxi-driver. Two of these date back to 1993 and involved allegations of overcharging a passenger in one case, and refusing a fare in the other. The Administrator's records show that Mr Georgiou was reprimanded in respect of both. Two other complaints related to smoking in a cab (of which one included a complaint of incivility), in 1996 and 2003, for which he was again reprimanded. In 1999 there a complaint that he was rude to a wheelchair bound passenger, in respect of which he was counselled. 3 Two of the complaints involved allegations that Mr Georgiou had made improper and inappropriate sexual references in conversations with passengers. The first of these occurred 31 December 1995, when it was alleged by a female passenger that Mr Georgiou had, in front of her daughter, proposed that they go to her house and have sex, for which he would pay. There is no evidence that this complaint was drawn to Mr Georgiou's attention at that time, or of any action, apart from the recording of the complaint, being taken. 4 The second complaint related events which were said to take place on 29 September 2003 when it was alleged that Mr Georgiou "made sexual references" to a female passenger "throughout the duration of the journey." Mr Georgiou denied these allegations. A statement by the female passenger asserts that the driver persisted in discussing sexual matters and made comments such as "I like 69." The passenger said that she did not engage in this conversation, that she felt uncomfortable, but did not ask the driver to stop. When interviewed about these allegations on 24 October 2003 Mr Georgiou denied he ever had spoken to a passenger in such a manner, and could not remember the specific incident. 5 A show cause notice was issued on 5 December 2003 calling on Mr Georgiou to show why his authority should not be cancelled. Via his solicitors Mr Georgiou made submissions in which he denied the incident on 29 September 2003 and responded to the allegations relating to his earlier record. The Administrator concluded that the evidence "suggests strongly of impropriety on the part of Mr Georgiou." There was, however, insufficient evidence to support a cancellation. Instead, Mr Georgiou was required to complete "Customer Care Module 4 an approved taxi training program." This he did in February 2004. 6 After receiving proof of Mr Georgiou's completion of this course the Administrator wrote to him on 17 February 2004 warning that in the event of further complaints his licence may be suspended or cancelled. 7 On 25 September 2006 a further complaint of sexually inappropriate behaviour was made against Mr Georgiou by a 17 year old female passenger in respect of a journey which took place on 22 September 2006. A statement was obtained from the passenger, and Mr Georgiou was interviewed in respect of her allegations. 8 The passenger alleged that at approximately 9.00am she booked a Premier taxi to pick her up from her home address. Upon entering the taxi she observed that the driver was smoking a cigarette. When she got into the taxi she had a packet of cigarettes in her lap, and the driver told her that she could smoke. She did so. As the cab pulled away she told her boyfriend, who had seen her to the cab, that she loved him. The driver said he did not say that to his wife anymore. There was not much said during the journey until they reached Sunnyholt Road. She said that the driver then started talking about gay and lesbian people, saying how he didn't understand how two guys can kiss. He then told her that if you use a lot of lubricant and slipped the penis softly into the bum it wouldn't hurt. He then asked if she ever tried anal sex. She said she did not respond to the drivers comments. At this point she was approaching her destination and no other conversation took place. She then paid the fare with her credit card and left the taxi. As she did so she noted the drivers number (6996). She said she was shocked by the driver's comments and did not participate in the conversation. 9 Mr Georgiou was interviewed by Compliance Officer Hope about these events on 11 October 2006. In the course of that interview the following interchange took place: "I said: Were you driving taxi-cab T611 on Friday 22 September 2006 at approximately 9am? He said: 9am in the morning, yes. I said: I will now read to you the complaint, again cautioning you that you are not obliged to say or do anything unless you wish, do you understand? He said: yes I said: Do you recall this journey? He said: I don't remember anything like that. I said: Do you recall accepting a radio booking from Seven Hills to Blacktown? He said: I don't remember I probably did. I said: Do you wish to respond to the allegations? He said: Of course, but I can't remember this journey I said: What do you have to say about this incident? He said: I don't know she is lying. I said: Do you recall having any conversation relating to sexual matters with any female passenger in the last 4 weeks ? He said: No. I said: "The female passenger states that you said to her that you no longer tell your wife that you love her anymore. What do you have to say about that? He said: She lies I said: The female passenger states that you talked about gay and lesbian people, is this true? He said: No I said: The female passenger states that when you spoke about gay and lesbian people you said that you couldn't understand how they can kiss, what do you have to say about that? He said: I don't remember anything about that, why are you asking these questions. I said: The female passenger states that you then started talking about how if you used a lot of lubricant and slipped the penis softly in the bum that it wouldn't hurt? What do you have to say about that? He said: I don't remember about all this conversation, I'm not a gay or lesbian. I said The female passenger states that you asked her if she had ever tried anal sex before? What do you have to say about that? He said: I don't know what the word anal sex means it is the first time I hear it. I said: It means having intercourse through the bum. I said: The female passenger also states that you were smoking a cigarette in the taxi during the journey, What do you have to say about that ? He said: I sometimes smoke in the taxi when I have no passengers. I said: Do you smoke in the taxi whilst you have passengers? He said: No. I said: The female passenger states that you told her that she could also have a cigarette, is this true? He said: I probably did a lot of people ask if they can have a cigarette I sometimes say yes, depends if they are drunk. I said: Are you aware that it is an offence to smoke in a taxi? He said: I know that it is an offence. I said: Do you wish say anything else in relation to this matter? He said: I have nothing to say what could I say. 10 A show cause notice was issued in November 2006 calling on Mr Georgiou to show why his authority should not be cancelled. Mr Georgiou made submissions in response to that notice and submitted a statement of his own and a series of character references. In his statement Mr Georgiou said: "I have had time to recollect particulars of the journey I do many journeys during the course of a working day. Sometimes the journeys are very short, and people and events are difficult to recall instantaneously. I recall that I drove to a property at Seven Hills. There was a male and a female waiting near the roadway. I was not smoking. I drove close to where they were standing. The male and the female kissed and I heard the words "I Love you", which I believe were said by the female. The female got in the front seat of the taxicab. I put the taxicab in motion and I said in a happy tone "He must be a lucky boy. I wish my wife would tell me she loves me" The female laughed and she said to me "Is it okay if I smoke?" I said "Do you mind if I join you?" We both smoked. Nothing was said as I drove along Sunnyholt Road. As I approached the end of Sunnyholt Road she said to me words in or to the following effect. "I left home when I was 15 years old, and I have known my boyfriend for the last 6 months. I do not live with him. I flat with this gay guy. It's better to live with a gay because he won't touch me". Whilst she said this to me I only said "yeah" at intervals. When she finished the above conversation I said words in or to the following effect. "I don't know how gays and lesbians kiss one another. I don't know how gays do it. They must use a lot of lubrication". The female replied "Must be". No other words were said between us. The journey was completed in a normal manner, and the female paid the fare and she left the taxicab, in the same way that hundreds or other passengers leave, with a goodbye and thankyou. I deny that I said the words alleged in the statement dated 28/9/2006 about "slipping the penis softly in the bum that it wouldn't hurt". I deny that "I turned to (her) and said "(has she) ever tried anal sex before". I deny that I initiated any conversation about gays. The female passenger raised the subject in a conversational manner, and I gave one response at the end of the conversation, again in a conversational manner and in no way did I turn to her and speak whilst I was driving. I admit I talk to passengers if they wish to talk. Passengers often initiate conversations with me ranging from politics, sports, entertainment and leisure." 11 On 15 December 2007 the Administrator determined to cancel Mr Georgiou taxi driver's authority on the basis that he is not a fit and proper person to hold an authority, is not of good repute, and does not have sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom. 12 Mr Georgiou sought an internal review of that decision. The decision was affirmed on internal review on 10 January 2007. The Internal review officer determined that Mr Georgiou is not a fit and proper person to hold an authority. 13 Mr Georgiou sought a stay of the decision to cancel his authority. A stay was granted by the Tribunal on 16 January 2007. Issues 14 In order to reach the correct and preferable decision in regard to Mr Georgiou's conduct it is necessary to: i. Decide whether I accept Mr Georgiou's version of the events of 22 September 2006 or those advanced by his female passenger. Mr Georgiou conceded that on his own version of what occurred his conduct was inappropriate. If the passenger's version of the events is accepted, Mr Georgiou's conduct goes well beyond that description, and can be characterised as serious and uninvited sexual harassment. ii. Consider submissions made by Mr Georgiou's solicitor as to whether or not the hardship suffered by Mr Georgiou as a result of the cancellation of his driver's authority is a factor to be taken into account in considering whether or not to cancel his driver's authority. iii. Determine whether, in the light of those conclusions and Mr Georgiou's history as a driver, he is fit and proper person to hold a taxi authority under the Passenger Transport Act 1990. The Events of 22 September 2006 15 In response to a question from me, Mr Shaw said that Mr Georgiou conceded that the conversation he says he had with the female passenger on 22 September 2006 was inappropriate. On his own version, Mr Georgiou commented without invitation on an intimate exchange between the passenger and her male friend. Later, in response to a statement by his passenger that she flats with a "gay guy", he responded with an uncalled for comment as to sexual relations between homosexual couples. These comments were entirely out of context with what the passenger had said about her flat mate not touching her because he is "gay." 16 Mr Georgiou's version of events is in marked contrast with his denials in the record of interview of any conversation remotely resembling that alleged by the female passenger. In that record of interview he initially said he could not remember the journey and then proceeded to specifically deny all the allegations made by the passenger, apart from admitting that he sometimes smokes in a taxi when he has no passengers. He said he did not remember any conversations about gays or lesbians. He denied knowing what anal sex means. 17 Mr Georgiou's explanation of the difference in his recollection between the time of the record of interview and his statement, made seven to eight weeks later, is that he had time to recollect the events. I have significant difficulty with this explanation. One would expect that Mr Georgiou's recollection of the events of 22 September 2006 would have been fresher at the time of the record of interview. The inconsistency between his outright denials and lack of memory, at the time of the record of interview, and the precise and careful concessions he makes in his statement, made after he had time to consider the complaint in detail, stretches credulity. In contrast the female passenger volunteered her complaint by phone, and shortly thereafter made a consistent and detailed statement. 18 Applying the Briginshaw standard (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) I am comfortably satisfied that I should accept the female passenger's statement as a correct statement of the events that occurred during that taxi journey. Mr Georgiou's initial blanket denials followed by a change in his recollection of those events leave me entirely unconvinced. I do not accept his version of those events. Hardship 19 Section 33 of the Passenger Transport Act 1990 empowers the Director-General to issue authorities to drive taxi-cabs. Sub-section (3) sets out the purpose of such an authority: "(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." Section 33F provides that the Director-General may, having regard to the purpose of authorities, vary, suspend or cancel an authority. 20 Mr Shaw for Mr Georgiou submitted that the Tribunal, standing in the shoes of the Director-General when reviewing a decision to cancel and driver's authority, could and should take hardship to the Applicant into account when exercising the discretion to cancel an authority. Mr Wozniak who appeared for the Administrator took issue with this. 21 There are a considerable number of decisions of the Tribunal dealing with cancellation of driver authorities in which it has been said that hardship is not a relevant consideration. These include: Kent v Administrator of Transport [2007] NSWADT 37, Hopkins v Administrator of Transport; [2006] NSWADT 338, Tirta v Administrator of Transport [2006] NSWADT 65, Chaudharry v Director General, Administrator of Transport [20061 NSWADT 20, Marino v Director General, Administrator of Transport [2005] NSWADT 53, Askin v Director General, Department of Transport [2003] NSWADT 110, Jawad v Director General, Department of Transport [2003] NSWADT 55, Ratay -v- Director General, Department of Transport [2003] NSWADT 40, Tehrani -v- Director General, Department of Transport [2003] NSWADT 31, Lo -v- Director General, Department of Transport [2002] NSWADT 101, Saddick v- Director General, Department of Transport [2002] NSWADT 88, Lal -v- Director-General, Department of Transport [2001] NSWADT 74, and Mohammed -v- Director-General, Department of Transport [2000] NSWADT 47. In each of these cases there is no clear exposition as to why hardship is irrelevant. 22 At Appeal Panel level the relevance of hardship was considered in Taylor v Director-General, Department of Transport (GD) [2001] NSWADTAP 29. The Appeal Panel said: "60 The Tribunal in this case did not act on a wrong principle or fail to take into account some material consideration. The appellant put to the Appeal Panel that the Tribunal did not take into account hardship to Mr Taylor in coming to its decision. Under the heading "Decision" the Tribunal notes that "This decision is regrettable in that it effectively brings to an end Mr Taylor's life-long career as a driver." We agree that the question of hardship was not a consideration which the Tribunal took into account in reaching its decision, but in our view, the Tribunal was not bound to do so. The focus of the legislation is on the public interest in ensuring that drivers are reputable and of good character. 61 Despite the appellant's submission to the contrary, the fact that the Magistrate acquitted Mr Taylor was a consideration relevant to the question of fitness and propriety which the Tribunal took into account. At paragraph 43 of the decision, the Tribunal specifically said "I have regard to the findings of the learned Magistrate." At paragraph 35 of the decision, the Tribunal quoted the Magistrate's finding that it was equally tenable that Mr Taylor had either given the child "a clip around the back of the ear" or that the "contact was accidental". Consequently the findings of the Magistrate, which are a relevant consideration, were taken into account. 62 The third matter which Mr Beech Jones submitted that the Tribunal did not take into account was that the administrator suspended two authorities. We have mentioned above at paragraph 5 that the Tribunal referred generically to the authorities as "Mr Taylor's authority to drive a public passenger vehicle." While the Tribunal did not differentiate between the two kinds of authority in his decision, we are satisfied that his decision relates to both authorities and that the same test applies to each authority. 63 On the basis of these conclusions we agree with the respondent's submission that the Tribunal was correct to proceed on the basis that an adverse finding on the issue of either reputation or fitness and propriety, was a sufficient basis on which to determine whether the administrator had made the correct decision. Section 11(2) states that the purpose of an authority is to attest that the person is of good repute and in all other respect a fit and proper person to be the driver of a public passenger vehicle. If either reputation or fitness and propriety cannot be attested to, the authority will not fulfil its purpose. Other considerations may be relevant in the circumstances of a particular case, but the Tribunal is not bound to take them into account." 23 Thus if, when considering a decision to cancel a drivers authority, a decision maker concludes that he or she is no longer satisfied of any of the matters which s.33 provides an authority attests to (good repute, fitness and propriety, and responsibility and aptitude), then that is sufficient to ground a decision to cancel the authority, because it is no longer able to fulfil its purpose. While undoubtedly relevant, financial hardship is not a factor the decision maker is bound to take into account in those circumstances, because the conclusion that the authority can no longer fulfil its purpose requires cancellation. Fit and Proper 24 The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380: 'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' 25 In the past the Tribunal and the Appeal Panel have frequently cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P: '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 of the applicant's criminal record and what he has done ... to rehabilitate himself, would object to the applicant as the driver of the taxi.' 26 In Farquharson -v- Director General, Department of Transport [1999] NSWADT 53, at [36] O'Connor DCJ said: 'In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence.' 27 The fact that offences with which a person is charged occurred in the regulated environment may have a greater impact upon that consideration than those that occur outside that environment: Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 28 In Mr Georgiou's case the Administrator relied not only on the events of 22 September 2006 as being sufficient to justify the decision to cancel, but also on Mr Georgiou's complaints history. "The nature, seriousness and frequency of any complaints made against the applicant" are relevant factors in such an assessment: Saadieh v Director General, Department of Transport [1999] NSWADT 68. 29 In Haideri -v- Director General, Department of Transport [1999] NSWADT 61 the Tribunal considered the case of a taxi driver who was convicted of failing to behave in an orderly manner and with civility and impropriety towards a passenger under section 24(b) of the Passenger Transport (Taxi-Cab Services) Regulation 1995. The driver had spoken to the passenger in a sexually explicit manner and propositioned her. In affirming the decision to cancel the driver's authority Hennessey DP said at [24]: "The findings of fact by the Local Court, which the Tribunal has accepted, are sufficient to establish that the applicant has not behaved in an orderly manner or with civility and propriety. I would go further than this. The applicant's conduct constitutes a serious case of sexual harassment. In my view, the public would be justifiably outraged if they knew that a taxi was being driven by a person found to have behaved in such a manner. Because the applicant denied that he engaged in such conduct, he has not pointed to any matter which would tend to put this behaviour in a different light." 30 In Abdou -v- Director General, Department of Transport [1999] NSWADT 98 the taxi-driver had been convicted of an act indecency when he placed his hand on the breast of a female passenger. Wilson JM at [15] referred to the decision on Haideri and concurred with the sentiment that: "… where an applicant's conduct constitutes a serious case of sexual harassment the public would be justifiably outraged if they knew a taxi was being driven by a person found to have behaved in such a manner. In that case the sexual harassment consisted only of verbal indications of sexual activities that the driver desired to engage in. The more so in this case where the actions went past the verbal and to the physical and resulted in a criminal conviction." 31 In Sikder -v- Director General, Department of Transport [2002] NSWADT 148 the complaints related to a taxi driver who had engaged "in a pattern of conduct, especially in relation to female passengers, which displays rudeness, dishonesty and the use of sexual innuendo." The Tribunal observed that at [31], "These characteristics are totally unacceptable to the travelling public." 32 Accepting as I do the female passenger's version of the events of 22 September 2006 I can only echo the words of the Deputy President in Hadieri and conclude that Mr Georgiou's words on that day constitute a serious case of sexual harassment. I have no doubt that a reasonable member of the public apprised of the facts would have no confidence in Mr Georgiou as the driver of a taxi. On that basis I am satisfied that he is not a fit and proper person to hold an authority to drive a taxi-cab. 33 Additionally, an examination of Mr Georgiou complaints records shows that he has been the subject of two similar complaints in the past. The first complaint was never put to him, and in my view should be disregarded. 34 With the second complaint, he denied the allegation and could not remember the passenger concerned. The conduct complained of was similar to that which occurred in September last year. In her statement that passenger did not identify Mr Georgiou but she did identify his cab. Following that incident, Mr Georgiou was required to undergo training in customer care and was warned that any repetition would see his authority in peril. It is apparent that, irrespective of his denial of earlier misconduct, Mr Georgiou did not take the warning or his training to heart. I consider that knowing this history a reasonable member of the public apprised of the facts would be have their lack of confidence in Mr Georgiou as a driver reinforced. 35 Mr Shaw for Mr Georgiou argued that his subsequent good behaviour should be taken into account and indicated Mr Georgiou's willingness to undertake further training. Mr Wozniak for the Administrator argued that Mr Georgiou had already undergone further training, and had been warned, explicitly against conduct of this sort, before the events of 22 September 2006. He submitted that Mr Georgiou had already been given his chance. I agree. 36 Because I am not satisfied that Mr Georgiou is a fit and proper person to hold a taxi-cab authority I consider that the correct and preferable decision was to cancel his authority. Conclusion 37 Mr Georgiou engaged in a highly inappropriate and uninvited discussion of matters of an explicit sexual nature with a young, female passenger on 22 September 2006. He had previously been required to undergo further training following a similar allegation, and had been warned of the consequences if a similar complaint were substantiated. Mr Georgiou's conduct on 22 September 2006 is so serious that a reasonable member of the public, knowing what he had done, would have grave concerns should he continue to drive a taxi-cab. I am therefore satisfied that Mr Georgiou is not a fit and proper person to hold a taxi-cab authority. 38 As a result of that conclusion it is not necessary to consider the other issues concerning which the parties made submissions. Order 39 The decision of the Administrator to cancel Mr Georgiou's driver authority is confirmed. 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.