McKenzie -v- Director General, Department of Transport [2000] NSWADT 126

CITATION: McKenzie -v- Director General, Department of Transport [2000] NSWADT 126 DIVISION: General Division APPLICANT Phillip McKenzie PARTIES: RESPONDENT Director General, Department of Transport FILE NUMBER: 003017 HEARING DATES: 20/03/2000, 05/05/2000 SUBMISSIONS CLOSED: 07/05/2000 DATE OF DECISION: 09/06/2000

BEFORE: Britton A - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 Mulligan -v- Director General, Department of Transport [1999] NSWADT 126 Briginshaw -v- Briginshaw (1938) 60 CLR 336 Australian Broadcasting Tribunal -v- Bond (1990) 170 CLR 321 CASES CITED: Saadieh -v- Director General, Department of Transport [1999]NSWADT 68 Singh -v- Director General, Department of Transport [1999]NSWADT 96 Sakellis -v- Officer in Charge of Police, Paddington (1968) 88 WN 541 Ex parte Davis (1949) 50 SR (NSW 158 Re T and the Director of youth and cOMMUNITY sERVICES [1980] 1 NSWLR 392 APPLICANT REPRESENTATION: S McKenzie RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director General of the Department of Transport to cancel the applicant's taxi authority is set aside.

REASONS FOR DECISION 1 This decision concerns an application made by Phillip McKenzie for review of the decision by the Director General, NSW Department of Public Transport (the administrator), to cancel his authority to drive taxi-cabs. This decision is made under s14 of the Passenger Transport Act 1990 (the Act). 2 By way of notice dated 18 January 2000, a delegate of the administrator, advised the applicant of the decision to cancel his authority to drive taxi-cabs. An internal review affirmed the administrator's original decision. On 15 February 2000 Mr McKenzie filed an application in the Administrative Decisions Tribunal of NSW (the Tribunal) under the Act, ss52(1) for a review of the administrator's decision. 3 The issue for determination in this inquiry is whether the Director General's delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: Administrative Decisions Tribunal Act (NSW) 1997 (the Tribunal Act), s63(1). 4 The applicant was not legally represented. His brother, Stephen McKenzie, presented his case. Mr Wozniak represented the administrator and tendered the Department's file on Mr McKenzie. No witnesses were called by either party. Background 5 Mr McKenzie's taxi-cab authority was cancelled because of an incident involving a passenger on 13 September 1999. The Statement of Reasons attached to the administrator's 17 December 1999 notice of decision stated: The fact that the assault occurred while you were the driver of a taxi-cab and the victim was a passenger in that taxi-cab may mean that you are not a fit and proper person or have sufficient responsibility to drive a taxi cab. 6 On 15 November 1999 Mr McKenzie appeared before Waverley Local Court on a charge of common assault. A plea of not guilty was entered. He was convicted and placed on a good behaviour bond for twelve months. Mr McKenzie appealed against this decision. The District Court dismissed the appeal and placed Mr McKenzie on a two year bond. Relevant Legislation 7 Section 63 of the Tribunal Act provides: (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 8 Section 14 of the Act provides that 'Having regard to the purpose of an authority, the Director General may at any time vary, suspend or cancel any person's authority'. Sub-section 11(2) of the Act provides that the purpose of an authority 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: (i) in accordance with the conditions under which a public passenger service is operated; and (ii) in accordance with law and custom. 9 Section 4 of the Act sets out the objectives of the Act which include ' to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services': s4(e). 10 The Passenger Transport (Taxi-cab Services) Regulations 1995 (the Regulations) contains detailed regulations governing the conduct of taxi-cab drivers. These include: 24 Dress and conduct of drivers The driver of a taxi-cab must not fail to do the following: (b) behave in an orderly manner and with civility and propriety towards any passenger, intending passenger or authorised officer, 40 Fares for taxi-cabs (1) The driver of a taxi-cab must not demand more than the authorised fare for any hiring of the taxi-cab, except in respect of any portion of a journey travelled beyond the taxi-cab's area of operations. Maximum penalty: 5 penalty units. (1A) Subclause (1) does not apply to the hiring of a maxi-cab if the hirer has specifically requested the hiring to be carried out by means of a maxi-cab. (2) After the termination of a hiring, the hirer must pay to the driver of the taxi-cab the authorised fare for the hiring. Maximum penalty: 5 penalty units. (3) The driver of the taxi-cab must not, without reasonable cause, fail to offer the correct change if given money of greater value than the amount of the authorised fare for the hiring. Maximum penalty: 5 penalty units. Evidence and findings 11 On 13 September 1999 the applicant drove a passenger, Mrs Wang from Macquarie Street, Sydney to Randwick. Mr McKenzie switched off the meter at the end of the journey before the passenger had an opportunity to note the final fare. Mrs Wang complained. Mr McKenzie claimed he turned the meter off accidentally, while switching off the radio. A sign displayed in the cab requested passengers to advise the driver if excessive change was required. At the end of the journey Mrs Wang presented Mr McKenzie with a fifty dollar note which he was unable to change. An argument ensued. Mrs Wang claims Mr McKenzie racially abused her, saying 'You Asian pigs you should get out of this country.' 12 Mr McKenzie drove Mrs Wang to a shop a short distance away to obtain change. On her return to the cab she said words to the effect, 'I'll not pay you if you continue to insult me.' At this point Mr McKenzie left the driver's seat grabbing a bag carried by Mrs Wang. As a result, books carried by Mrs Wang in a brown paper bag fell to the ground. 13 Mrs Wang claimed Mr McKenzie threw three punches at her, one touching her lightly on the shoulder, the others missing her altogether. Mr McKenzie denies this and the allegation concerning racial abuse. 14 The presiding Magistrate was not persuaded that the prosecution had established beyond reasonable doubt that Mr McKenzie had (unsuccessfully) thrown punches at Mrs Wang. The Magistrate found 'the grabbing of the hand with such force that a bag was ripped and the contents fell to the ground', amounted to an assault. Having done so the Magistrate found it unnecessary to consider whether Mr McKenzie had racially abused Mrs Wang as alleged. Submissions on the evidence 15 Mr S McKenzie submits that his brother has been convicted of what he describes as a 'trivial' offence: 'A simple touching of the hand is sufficient to amount to common assault.' He points out that the Magistrate did not find that punches were thrown or racial slurs used. 16 Mr Wozniak submits that it is clear from the transcript of the Local Court proceedings that the Magistrate did not dismiss the matter as 'trivial'. 17 Mr Wozniak submits that the Tribunal is entitled to take into account the evidence of Mrs Wang in which she claimed that Mr McKenzie had thrown punches and racially abused her. While the Local Court was not satisfied that the criminal onus of proof had been discharged in relation to the alleged punches, the Tribunal, argues Mr Wozniak, in applying the civil standard of proof, is entitled to take these complaints into account. In relation to the claim of racial abuse, this complaint was not determined by the Local Court. Accordingly, submits Mr Wozniak, the Tribunal is free to make a finding on the evidence presented, which includes a statement from Mrs Wang. Findings 18 No material was presented to the Tribunal challenging the evidence that came before the Local Court in relation to this matter. The presiding Magistrate had the benefit of comparing the respective versions of events given by Mr McKenzie and his passenger. Unlike this Tribunal, the Local Court had the opportunity of hearing first hand the evidence of both Mr McKenzie and Mrs Wang. 19 Mr Wozniak is correct in his submission that this Tribunal in assessing evidence is not required to apply the criminal standard. This does not mean of course, that the Tribunal will automatically accept evidence rejected by a court applying the criminal onus of proof. This Tribunal has no way of assessing whether, had the civil standard applied, the Local Court would have accepted the evidence of Mrs Wang in relation to the alleged punches. 20 It is well established that in proceedings relating to a review of an occupational licence an administrative tribunal has significant flexibility in what matters it may take into account. However a proper evidentiary foundation must be found for any decision reached. (For a more detailed discussion see Mulligan v Director General, Department of Transport [1999] NSWADT 126 [at 16]). In assessing the claims of Mrs Wang, this Tribunal has taken into account the serious consequences of any adverse finding to Mr McKenzie and applied the Briginshaw standard per Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361). In other words there must be clear and unequivocal proof, on the balance of probabilities, that Mrs Wang was assaulted and abused in the manner as alleged. 21 In relation to the punching allegation I am not comfortably satisfied on the evidence before me that the evidentiary onus has been discharged. I note the comments of the presiding Magistrate who found it improbable that all three punches would have missed their intended victim. 22 The Local Court made no findings in relation to the allegation of racial abuse. Mrs Wang gave evidence at the Local Court proceedings that she was racially vilified; Mr McKenzie denies this; there is no evidence before the Tribunal to corroborate this complaint. The evidence before me is insufficient to support a finding that Mr McKenzie racially abused Mrs Wang. 23 While I am not comfortably satisfied on the evidence before me, that Mrs Wang's claims in relation to the racial slurs and the punching incident have been made out, I do not accept Mr S McKenzie's characterisation of the incident as 'trivial'. The presiding Magistrate found that 'there certainly was an assault in the grabbing of the hand with such force that a bag was ripped':[T at 3]. It is clear from the judgement that the Magistrate did not share Mr S McKenzie's assessment: It is difficult to have much sympathy for Mr McKenzie. I don't know whether it was because you are not suited to the job but it seems ridiculous for a person in a public position to end up in this situation fighting with a customer and over such a trivial issue really when it's all boiled down. It's nevertheless a serious matter. 24 I concur with this assessment. It is clear that Mr McKenzie over-reacted in a threatening manner. Licence history 25 In the course of the proceedings Mr McKenzie's length of service as a taxi driver was raised. On the first day of hearing Mr McKenzie gave evidence from the bar table that he had been driving cabs continuously since early 1972, with the exception of a four year break in the early 1980's. This is broadly consistent with Mr McKenzie's (undated) statement to the Administrator attached to his application for an internal review. 26 Mr Wozniak challenged this claim, stating that the Department's records showed that Mr McKenzie was first issued with an authority in 1995. 27 The parties were given an opportunity to provide further evidence on this issue. On the final day of hearing Mr S McKenzie submitted that his brother was unable to locate any historical records relating to his licence. A statutory declaration from former taxi-cab operator, Reginald Kermode, was tendered in evidence, stating that Mr McKenzie had driven during the period, 1970 to 1975. Mr S McKenzie revised the earlier submission put by his brother and said that his brother had driven from 1970 to 1975 and from 1995 until the cancellation of his authority in early 2000. 28 Mr Wozniak tendered correspondence from the Roads and Traffic Authority (RTA) which stated that the RTA held records on taxi cab licences from 1974; prior to that licence records were held by the (then) Department of Motor Transport; from 1990 separate driver's authorities were issued by the Department of Transport. These various records indicate that Mr McKenzie did hold a licence prior to 1974 but there are no records of the details of that licence. In summary Mr Wozniak submits that the records of the relevant authorities establish that Mr McKenzie held some form of taxi licence prior to 1974; no licence from 1974 to 1995; an application for a fresh authority was made in 1995. 29 No satisfactory explanation was offered to the Tribunal for the apparently inconsistent submissions made on behalf of Mr McKenzie, in relation to his length of service as a taxi driver. On the evidence presented, a number of scenarios are possible: Mr McKenzie drove during the period 1975 to 1995 without an appropriate authority; he misled the Tribunal and the administrator in claiming that he had driven for close to twenty years; his recollection of the past twenty years is faulty; or the records of the RTA and/or the Department of Transport are incomplete or inaccurate. 30 While I have some concerns that Mr McKenzie has been less than candid in relation to his history as a taxi driver, on the evidence before me I am reluctant to rely on the accuracy of the Department's records, especially for the period prior to 1990. Character References 31 A character reference provided by C Kessler Professor of Sociology, University of NSW was provided to the Tribunal attesting to Mr McKenzie's good character and standing within the community. Mr Kessler stated that Mr McKenzie was a respected member of the community and was active in a variety of social, charitable and welfare activities. His family is well regarded by the community. Conclusions 32 It is evident from the authorities that the concept of what constitutes a 'fit and proper person' is not capable of objective definition. Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] 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. 33 The meaning of the terms 'fit and proper' and 'good repute' has been canvassed at length in previous decisions of this Tribunal. See for example the decisions of Deputy President Hennessy in Saadieh v Director General Department of Transport [1999] NSWADT 68; and Singh v Director General Department of Transport [1999] NSWADT 96. 34 In Saadieh's case Deputy President Hennessy set out a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain and hold an authority. These 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. 35 As conceded by Mr Wozniak the incident involving Mrs Wang represents an aberration in Mr McKenzie's otherwise unblemished record as a taxi driver. Mrs Wang's complaint is the only complaint made to the Department concerning Mr McKenzie. 36 Mr McKenzie's driving record is good; his last offence was in September 1996 when he was charged for exceeding the speed limit by more than 15 but less than 30 kilometres. 37 I have some sympathy for Mr McKenzie given the situation that confronted him on 13 September 1999. The explanation offered to the Magistrate, that the switching off of the meter, which gave rise to the altercation, was not a premeditated act designed to deceive Mrs Wang is plausible. Mrs Wang chose to ignore the sign displayed in the cab requesting advance notice if significant change was required. Mr McKenzie was understandably annoyed when his passenger revealed at the conclusion of the journey that she did not have the correct fare. As a result, Mr McKenzie was forced to extend the journey without payment to obtain change. The existence of the sign in the cab suggests that such incidents are not uncommon. If such incidents were repeated during the course of a shift it is self-evident that a driver's income would be reduced. It is apparent from Mrs Wang's statement that the argument was not one-sided. 38 However Mr McKenzie's response to what he saw as Mrs Wang's belligerence was unreasonable: it is evident he lost control. While it may be argued that it is not unreasonable in certain situations for a taxi driver to express his/her annoyance to a passenger, any response involving an element of physical violence, however minimal, can only be seen as unacceptable. 39 In reaching the decision to revoke Mr McKenzie's authority the administrator properly gave considerable weight to the fact that Mr McKenzie is currently on a recognisance, which will not expire until December 2001. 40 A critical issue to be determined in this matter is whether Mr McKenzie can be said to meet the high standards set out in s 11 of the Act while he remains on a bond. 41 Mr Wozniak submits that Mr McKenzie's bond must be seen as highly relevant. Mr Wozniak referred the Tribunal to the judgement of Henchman J in Sakellis v Officer in Charge of Police, Paddington (1968) 88 W.N. 541: It would be difficult indeed to hold that a man who was convicted of breaking, entering and stealing could be regarded as a man of good character, even if it could be said that he was of good character at the present time.(at p 545 quoting Herron J in Ex parte Davis (1949) 50 SR (NSW) 158 at 167) 42 This case however is very different form one of breaking, entering and stealing, a much more serious offence. I accept that the bond is relevant in the sense argued by Mr Wozniak but also in another way. It is a significant deterrent for Mr McKenzie who is now in effect, on probation. Should he breach the bond, he faces the prospect of severe punishment by the Court. This is a significant incentive to behave impeccably. 43 Mr Wozniak also referred the Tribunal to the oft quoted judgement of Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 where the meaning of the term 'good repute' was discussed: A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession . . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation. 44 While I accept that a criminal record is prima facie evidence that a person is not of good repute and not a fit and proper person to hold an authority, I am not persuaded that a criminal record alone means that such finding is, in effect, mandatory. While Mr McKenzie's criminal record and recognizance cannot be ignored, these facts, of themselves, do not mean that the Tribunal (or administrator) is without discretion to take into account the range of factors referred to by Deputy President Hennessy in Saadieh. 45 In my opinion, when a mature person with a lengthy record of honesty and obedience to law and the requirements of propriety makes one error of judgement, this does not necessarily displace the presumption that he or she is a fit and proper person to drive a tax-cab. As Deputy President Hennessy has pointed out, all the circumstances must be taken into account, including his past good record.. 46 An act of personal violence is obviously a serious matter, but even on the facts found by the Local Court, this was a relatively minor assault. Had the Court found that punches were thrown or that they had been thrown and connected, the matter would have been far graver. Secondly, there is no pattern of misconduct of this sort or indeed any sort by Mr McKenzie. He has no other criminal history, nor any history of causing passengers to complain. Thirdly, he has a relatively good driving record. Fourthly, and most significantly, he has an excellent reputation within the wider community. Finally, given the fact that he has been prosecuted, convicted and punished for the matter which gives rise to these proceedings, it is unlikely that he will re-offend. The fact that, consequently, he lost his authority to drive taxis for a period, will also undoubtedly have the effect of deterring him from re-offending in this or in any other serious way. 47 It cannot be denied that the incident constituted a major lapse of judgement by Mr McKenzie. It could be said that if he was contrite, he ought to have pleaded guilty in the Local Court. Such an argument would have some force, but it must be noted that the allegation against him was that he had punched or attempted to punch Mrs Wang. This he denied, and was successful in denying when the matter was heard by the Magistrate. 48 In my opinion, while the administrator was clearly entitled to place a question mark over Mr McKenzie's fitness, in all the circumstances I am satisfied that that this one incident does not make him a person who is not fit to hold an authority. 49 Accordingly I set aside the decision under review.