CITATION: Marino v Director General, Ministry of Transport [2005] NSWADT 53 DIVISION: General Division APPLICANT PARTIES: James Marino RESPONDENT Director General, Ministry of Transport FILE NUMBER: 043230 HEARING DATES: 24/01/2005 SUBMISSIONS CLOSED: 03/08/2005 DATE OF DECISION: 03/14/2005 BEFORE: Leal S - Judicial Member APPLICATION: Passenger Transport Act - private hire vehicle driver - cancellation of authority - Private hire vehicle driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport (Private Hire Vehicle Services) Regulation 2001 Passenger Transport Act 1990 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 CASES CITED: Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Lal v DG, Department of Transport [2001] NSWADT 74 McDonald v Director General of Social Security (1984) 1 FCR 354 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The Tribunal affirms the decision of the Director General, Ministry of Transport, to cancel Mr Marino's authority to drive a private hire vehicle REASONS FOR DECISION Introduction 1 Mr Marino, who was James Facchini until he changed his name by deed poll several years ago, was granted an authority to drive a private hire vehicle in 2001. This authority was cancelled in 2004 because Mr Marino had: i. falsely declared on his application form that he had never been prohibited from driving a motor vehicle in NSW, when, in fact, a driver's licence held by him in the name of James Facchini had previously been cancelled; and ii. continued to drive his hire car while it was unregistered and uninsured. 2 Mr Marino has applied to the Tribunal to review the decision to cancel his private hire vehicle cancellation. Review decision 3 In this case, the Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then affirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of the Director General, Ministry of Transport and there is no presumption that the decision of the Director General is correct. (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.) 4 The Director General of the Ministry of Transport has the power to cancel the authority of a private hire vehicle, having regard to its purpose, which 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 public passenger vehicle; and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates. (Section 14, Passenger Transport Act 1990); 5 The issue in this case, then, is whether the decision to cancel Mr Marino's private hire vehicle authority was the correct and preferable one, having regard to whether Mr Marino is a fit and proper person; whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a private hire vehicle. Fit and proper person 6 The term "fit and proper person" was discussed by Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63]. The Chief Justice said that: 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. 7 The discretion to cancel a person's authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted. (See Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156; Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321.) 8 In this case, an authority to drive a private hire vehicle can be granted under the Passenger Transport Act 1990, one of the objectives of which is to encourage public passenger services (which include private hire vehicle services) that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. 9 Mr Marino, who comes across as an articulate and intelligent man, gave oral evidence before the Tribunal. He agreed that, in his application for a private hire vehicle authority, he did not disclose that his driver's licence had previously been cancelled. He believed that he was not obliged to disclose this fact because the cancelled licence was in the name of James Facchini rather than James Marino. In response to the query as to why he had similarly failed to disclose his prior (minor) criminal convictions on the application form, he stated that his convictions were also in the name of James Facchini rather than in the name of James Marino and he believed he only had to disclose convictions in the name of Marino. 10 I do not accept Mr Marino's evidence that he believed that he had to disclose only those criminal convictions that he had received under the name James Marino. In the application form, the question concerning criminal convictions, clearly requests an applicant to "give details, including the full name under which you were convicted." 11 I similarly do not accept Mr Marino's evidence that he did not believe that he had to disclose his previous licence cancellation under the name of James Facchini. In his evidence, Mr Marino conceded that he had a copy of the Regulations which provide that any change of name should be disclosed to the Ministry of Transport within seven days. This disclosure requirement is contained in regulation 39 of the Passenger Transport (Private Hire Vehicle Services) Regulation 2001. Mr Marino did not make such a disclosure. Nor did he disclose his drivers licence cancellation in his earlier application for a private hire vehicle licence, which he made under the name of James Facchini. Given his prior history of failing to disclose required information, it is my view that the failure to disclose his licence cancellation on his application form in the name of James Marino was deliberate rather than inadvertent. Nevertheless, the application form in question would have been clearer had it contained a question under the personal details section asking whether an applicant had been known under any other name. 12 On Mr Marino's own admission, he drove an unregistered hire car on several occasions carrying passengers he knew would be uninsured if they were injured during the trip. The fact that Mr Marino drove with a "heightened awareness of the road conditions" does nothing to excuse the fact that by continuing to drive an unregistered hire vehicle, he showed a blatant disregard for the safety of his passengers. This is completely out of keeping with one of objectives of the Public Transport Act 1990, namely to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. 13 Mr Marino explains his behaviour by citing personal and financial difficulties and has told the Tribunal that he needs to retain his authority to meet his family and financial obligations. After the hearing, Mr Marino provided a statement to the Tribunal submitting that he remains a fit and proper person and a person of good repute, citing his assistance to the Department of Transport in relation to breaches of the Passenger Transport Act 1990 by other drivers. The Tribunal gave Mr Marion a further period of time within which to provide references in support of his application, however, no references have been provided. 14 In determining whether the Director General of the Ministry of Transport made the correct and preferable decision in this case, I cannot take into consideration the hardship to the applicant as a result of the decision. (Lal v DG, Department of Transport [2001] NSWADT 74) 15 Furthermore, the fact that Mr Marino has apparently been assisting the Department of Transport in relation to alleged breaches does not, in my view, lessen the seriousness of his own breaches. 16 The fact that, in addition to his failure to make adequate disclosures on his application for a public vehicle authority, Mr Marino continued to drive an unregistered hire vehicle lead me to the view that, at this stage, Mr Marino is not a fit and proper person to be the driver of a public passenger vehicle. In making this decision, I do not preclude the fact that Mr Marino may well be able to demonstrate that he has become is a fit and proper person in a future application to the Department of Transport. Good repute / Sufficient responsibility and aptitude to drive a hire car. 17 As I have determined that, at this stage, Mr Marino is not a fit and proper person to hold a private hire vehicle authority, it is not necessary for me to consider whether Mr Marino is of good repute or whether he has sufficient responsibility and aptitude to drive a hire car, in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom. Order 18 The Tribunal affirms the decision of the Director General, Ministry of Transport, to cancel Mr Marino's authority to drive a private hire vehicle. 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