Elias -v- Ministry of Transport [2004] NSWADT 211

CITATION: Elias -v- Ministry of Transport [2004] NSWADT 211 DIVISION: General Division APPLICANT PARTIES: George Elias RESPONDENT Ministry of Transport FILE NUMBER: 043024 HEARING DATES: 17/06/2004 SUBMISSIONS CLOSED: 06/17/2004 DATE OF DECISION: 09/28/2004

BEFORE: Rice S - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter International Covenant on Economic, Social and Cultural Rights LEGISLATION CITED : Passenger Transport (Taxi-Cab Services) Regulation 2001 Passenger Transport Act 1990 Coles -v- Director-General, Department of Transport [2001] NSWADT 23 Harel -v- Director General, Department of Transport [2002] NSWADT 249 Jones v Dunkel (1959) 101 CLR 298 CASES CITED: Kamara v Ministry of Transport (GD) [2004] NSWADTAP 31 Mulligan -v- Director General, Department of Transport [1999] NSWADT 126 R v Hollingshed (1993) 112 FLR 109 Reslan v TAC [2001] VCAT 213 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The decision of the administrator is set aside.

DECISION 1 For the reasons set out below, I set aside the decision of the Ministry. That means that Mr Elias's application is successful. History 2 Mr George Elias held an authority to drive a taxi cab. He has been a taxi cab driver since at least 1992. In early 2000 Mr Elias was diagnosed with diabetes. 3 On 10 August 1994 Mr Elias was issued with two infringement notices – one for failing to accept a hiring, and one for incivility. He was convicted and fined. Mr Elias says that the authorised officer's issuing of the notices "was to get back at me for giving him a hard time at the airport". 4 On 7 February 1997 Mr Elias was summonsed to attend court on a complaint that he had refused to carry a passenger. He was found guilty but no conviction was recorded. Mr Elias says that he refused to carry the passenger as the passenger wanted to pay with an 'M40' voucher without supporting identification. 5 On 9 July 1999 Mr Elias was issued with an infringement notice for failing to have his taxi painted in the taxi network's livery. He was convicted and fined. Mr Elias had objected, on the ground of expense, to the requirement that he repaint his taxi in the required colours. 6 On 27 July 2002 a passenger complained that Mr Elias had been threatening. Mr Elias received a warning. He admits that he raised his voice at the passenger, shouting at him to get out of the taxi. 7 On 13 March 2003 Mr Elias was issued with an infringement notice for failing to produce his authority card to an authorised officer. He was convicted and fined. Mr Elias says that he was concerned not to put his health at risk because of germs he might catch if his authority was handled by the officer. 8 On 10 March 2003 Mr Elias was found guilty on a charge of assault but no conviction was recorded, subject to his being of good behaviour for 12 months. Mr Elias did not tell the Department of Transport of this finding of guilt, in the belief that as no conviction was recorded he was not required to. The assault charge arose from a dispute with another driver in a taxi queue. 9 On 16 March 2003 Mr Elias failed to complete a hiring. He was interviewed and received a warning. Mr Elias notes that no action was taken. He says that he was unable to complete the hiring due to illness. 10 On 27 March 2003 Mr Elias is failed to produce his authority card to an authorised officer. He was subsequently summonsed to attend court, was convicted in his absence on 19 December 2003, and was fined. Mr Elias says that he understood from discussions with officers of the Department that there would be no action taken in relation to his alleged failure to produce his authority card. The summons was not issued until 21 May 2003, and Mr Elias says that he had no notice of the proceedings and was unaware of them until advised of the outcome. 11 On 26 August 2003 Mr Elias was summonsed to attend court for failing to produce his authority card to an authorised officer, for incivility, for failing to produce a worksheet for inspection, and for failing to comply with a direction. He was convicted and fined. Mr Elias says that he had a dispute with an authorised officer about the progress of a queue of taxis at Sydney Airport. The dispute led to the request from that officer that Mr Elias show his workbook and authority. His refusal to produce his authority was again, he says, because he was concerned not to put his health at risk. He agreed that he called the officers "arseholes" and denies that the called them "imbeciles". 12 On 11 December 2003 Mr Elias persistently activated the 'driver emergency' button during a driving shift without proper cause. Mr Elias says he did so as a protest against his suspension for the radio network. He says he had paid to be in the network but was suspended from it. He wanted to show that the network did not have the capacity it claims to have to respond to drivers' emergency calls. Argument 13 The Ministry relies on this history to say that Mr Elias is not a fit and proper person to hold an authority, is not of good repute, and does not have the responsibility and aptitude to hold an authority. 14 Throughout the Department's file are documents relating to Mr Elias and allegations concerning payments due from him. These documents are unfairly prejudicial to Mr Elias. The conduct referred is not relied on by the Ministry and was not put to Mr Elias during the hearing. I have not taken account of those documents or that alleged conduct in this decision. Driver's licence 15 Mr Elias revealed at the hearing that he does not have a current driver's licence – it was cancelled as a result of his failure to pay the fines imposed in his absence on 19 December 2003, and subsequent fines have been imposed. Since the hearing Mr Elias has provided to the Tribunal a copy of a letter dated 27 July 2004 to him from the State Revenue Office confirming that he has now been granted time to pay his fines by instalments, and that he is able to apply for the restriction against his holding a driver's licence to be lifted. That letter, and the arrangement entered into, is not relevant to this matter. 16 The Ministry says that without a drivers' licence Mr Elias is ineligible to hold an authority. That is not the case. A person's eligibility for an authority is not affected by the fact that they do not hold a driver's licence, although the circumstances in which they came to lose their licence my have a bearing on their eligibility for an authority (Kamara v Ministry of Transport (GD) [2004] NSWADTAP 31). Repute 17 The mere existence of a criminal record does not establish that a person is not of good repute, it merely raises the question (eg Coles -v- Director-General, Department of Transport [2001] NSWADT 23 at [8-9]). 18 The Ministry led no evidence to establish that Mr Elias is not of good repute. Mr Elias tendered a letter from an A. Saddick for whom he has driven taxis. Clearly the letter was written with the knowledge as well of the cancellation of Mr Elias's authority, although it is not stated whether it was written with knowledge of the circumstances of that cancellation. 19 Mr Elias also tendered a letter from his local State Parliamentary member, Mr Alan Ashton, who writes that "Mr Elias visited me and explained his situation concerning previous incidents while driving cabs and outstanding fines". Mr Ashton says "I would be confident that Mr Elias would not abuse any privilege the ADT may grant him in restoring his licence." 20 Mr Elias has been convicted and fined for nine infringements of the Passenger Transport Act 1990 ('PT Act'). Eight of those nine infringements arose out of his dealings on four occasions with authorised officers on duty at Sydney Airport. Two of the eight infringements were from one incident over 10 years ago, in 1994. I substantially discount them as being minor in nature and too long ago to be of relevance. Had there been consistent conduct of that nature in the meantime they might have assumed greater importance, but they arise from a single and largely isolated incident. 21 The remaining six infringements involving authorised officers arose from three occasions in 2003 – two in March and one in August. Each of the incidents in March resulted in an infringement notice for not producing an authority card for inspection. The incident in August resulted in four infringement notices, one of which was for not producing an authority card for inspection. The other three were for incivility, for failing to produce a worksheet for inspection, and for failing to comply with a direction. 22 Mr Elias's reason for failing to "produce" his card is that he showed it and was not required to hand it over. His reason for not handing over the card, though stated consistently to the officers and to me, is implausible. He says he is afraid of germs. He concedes that he handles passengers' money, drives another person's car and takes no other precautions against 'catching germs'. Mr Elias concedes that he has been engaged in a personal protest against what he sees to be unfair aspects of regulation of the taxi industry. I am satisfied that Mr Elias's refusal to hand over his authority card is an act of protest, not a precaution against germs. 23 Whatever his reason, Mr Elias insists that in showing his authority card without actually handing it over he complies with cl.35 Passenger Transport (Taxi-Cab Services) Regulation 2001 ('PT(TC) Reg') that requires him to "produce" his driver's authority card "for inspection on demand made by an authorised officer". While Mr Elias conceded that there is writing on the reverse of the card, the Ministry led no evidence as to what that writing was. I infer that had that evidence been led, it would not have assisted the Ministry's case that the writing on the reverse is of some import to an authorised officer when they demand to inspect the card (Jones v Dunkel (1959) 101 CLR 298 per Kitto J at 308; Windeyer J at 322). Mr Elias's uncontested evidence is that the expiry date of the authority is shown on the front of the card. 24 I think that the requirement that the card be produced "for inspection" carries with it a requirement that the authorised officer have the card in their own hands: inspection is an activity that requires a degree of examination that cannot be achieved through mere observation. Mr Elias has been convicted of breaching this requirement and I do not second guess or look behind those convictions. I note however that they are technical breaches, causing no harm or distress to passengers or the public, and indicating no breach of trust or lack of ability as a driver. 25 The low level of significance of these convictions for purposes of assessing repute is illustrated by the approach taken by an authorised officer who was, on balance, content with Mr Elias's merely showing his authority card and not handing it over. On 30 September 2003 Mr Elias had an encounter with an authorised officer at Sydney Airport. The officer asked Mr Elias to produce his authority and Mr Elias showed it to him without handing it over. The officer's notes record that Mr Elias told him about his concern not to catch germs. The officer noted that although he did not hand it over, Mr Elias did display his card. Accordingly, the officer notes "there was no offence committed". The Ministry took no action. 26 There were three further convictions from the incident in August 2003, all of them relating to the manner of Mr Elias's interaction with the authorised officers. In relation to handing over worksheets, Mr Elias makes the same 'catching germs' excuse, and the same 'producing for inspection' argument as he makes for his authority card. I am of the same view: that the excuse of not wanting to catch germs is implausible, and that the requirement to 'produce for inspection' in cl.38(2)(a) PT(TC) Reg means the worksheet must be handed over. 27 His incivility and failure to comply with a direction both arose from his angry exchange with the authorised officers. The officers say that there were members of the public who heard his angry shouting and use of the word "arseholes". I accept that this is so, although more than that – for example the resulting opinions any of the members of the public – was neither recorded by the officers nor the subject of evidence. The officers record that a number of taxi drivers, identified by authority number, were witness to the incident, but none was called to give evidence. Again I think that Mr Elias's particular dealing with these officers is put in some context by the subsequent account of another officer, who recorded that in his exchange with Mr Elias, Mr Elias, although angry, "never swore". The officer noted that Mr Elias had "a very poor attitude and his behaviour was very disturbing". The Department took no action in relation to this incident. 28 Mr Elias was convicted for an infringement for not painting his taxi the required colours. Mr Elias refused to do so because of what he thought was the unnecessary expense. There is no doubt that his refusal was a breach. It appears to have been a deliberate breach by way of protest. I place little weight on this as a matter bearing on his good repute. As is the case for the other convictions on the basis of infringements, the level of criminality is very low and would be seen to be so in the community. 29 Similarly the infringement for refusing to carry a passenger is of a low level of criminality; it was a strict liability offence in what uncontested circumstances that I accept were mitigating, and the magistrate saw it appropriate to record no conviction. 30 There remains the finding of guilt for assault. It is significant that the magistrate saw it appropriate to record no conviction, subject to Mr Elias's being of good behaviour. Mr Elias has not since been convicted of breaches of the Crimes Act 1900 although there were the subsequent summary proceedings under s60 of the PT ACT that I discuss above. The assault arose from an altercation Mr Elias had with another driver as to his place in the rank. 31 In all the circumstances, on the basis of there material before me, I am satisfied that Mr Elias is of good repute. Fit and proper 32 However the same conduct that led to the convictions gives rise to the Ministry's concerns about whether Mr Elias is a fit and proper person to hold an authority. 33 It follows from what I have said above that for the purpose of assessing his being a fit and proper person to hold an authority, I place little weight the nature, seriousness and frequency of the conduct for which Mr Elias has been convicted on the basis of infringements. There is a further point to be made about the seriousness of the conduct. Very little of the conduct involved passengers. Almost all of it arose from Mr Elias's grievances with the taxi industry and his own campaign of disobedience. The Ministry does not say that Mr Elias presents any danger to the travelling public, that he is untrustworthy, or that he did not have a long and relatively incident-free history of driving taxis until he began his protest. 34 In addition to the matters leading to convictions or findings of guilt, two complaints have been made by passengers about Mr Elias, one that he shouted and one that he failed to complete a hiring. Mr Elias admits the first, and his uncontested evidence as to the second is that he was ill. I give some weight to these complaints for purposes of assessing whether Mr Elias is a fit and proper person to hold an authority, but note that there are only two such complaints, one of which can be excused. 35 The Ministry does not rely on Mr Elias's driving record as raising concerns about his being a fit and proper person to hold an authority. That is appropriate in light of the significant time that has passed since the last driving infringement, which was in 1993. 36 As I canvassed above when addressing Mr Elias's repute, there is some evidence before me of Mr Elias's good reputation in the community, and no evidence of a poor reputation. 37 Finally I consider the likelihood that Mr Elias will re-offend, be the subject of further complaints or commit further offences. This is the most problematic of the issues facing Mr Elias. With respect to Mr Ashton I cannot put great weight on his confidence in Mr Elias, not knowing what Mr Ashton knew of Mr Elias and his history when he expressed that confidence. I assess the likelihood of Mr Elias's repeating the conduct on the basis of the evidence in these proceedings. 38 In these proceedings Mr Elias declined to give undertakings that would have given him a stay of the cancellation. He said that he couldn't undertake not to breach Regulations that he disagreed with. This is consistent with his having engaged in conduct that breached, or at times in his view pushed the limits of, the regulations by way of protest against the Regulations and other issues in the taxi industry. Clearly during 2003 Mr Elias was engaged in his own campaign that led to recurring infringements. 39 However, during the hearing I formed the very strong impression that Mr Elias has been shown the foolishness of his conduct, and that he now sees it as bravado that has served no purpose other than to cause him great difficulties. It is clear from his evidence that Mr Elias is now acutely aware of the desperate situation that he and his family are in as a result of his wilful actions. Because of his conduct his authority was cancelled and he was fined. Without the authority he has been unable to earn a living as a taxi driver. He has therefore been unable to pay the fines that he incurred and so has had his drivers licence cancelled. After maintaining a strong stand in defence of his conduct, Mr Elias's demeanour collapsed and he was, in my view, honest with himself and the Tribunal about his situation. 40 That his conduct has created a situation of great stress for him and his family is not a consideration in whether Mr Elias should hold an authority under the PT ACT. Mr Elias's acknowledgement of his situation in the course of the hearing impresses on me, however, the fairly low likelihood that he will engage in such wilful breach of the Regulations again. 41 In all the circumstances, on the basis of the material before me, I am satisfied that Mr Elias is now a fit and proper person to be the driver of a taxi cab. Responsibility and aptitude 42 The same conduct that led to the convictions gives rise to the Ministry's concerns about whether Mr Elias has the responsibility and aptitude to hold an authority. In the circumstances of this case the questions of 'fit and proper' and 'responsibility' converge. But for one further matter relied on by the Ministry, for the same reasons as I gave on the question of 'fit and proper' I am satisfied that Mr Elias has now the responsibility to be the driver of a taxi cab. 43 Mr Elias's repeated use of the emergency button as a means of protest was irresponsible. It happened on one occasion, and for the same reasons as I set out in relation to the likelihood of Mr Elias repeating his 'protest' behaviour generally, I do not think there is a high likelihood of his repeating this behaviour. 44 As to Mr Elias's 'aptitude', I understand that term to mean 'talent' or 'ability'. Like responsibility, it is a measures of a person's suitability to drive a taxi (Kamara). There is no evidence that Mr Elias does not have the necessary aptitude. In fact, his long driving history demonstrates that he has. Medical fitness 45 The Ministry relies on Mr Elias's failure to advise of his having been diagnosed with diabetes. The obligation in cl.44(3) of the PT(TC) Reg is, in so far as the driver is capable of doing so, to advise the Director-General within 48 hours of any change in their physical or mental condition that may affect their ability to drive taxi-cabs safely. 46 The matter I am considering is not a summary proceeding for a failure to comply with the PT Act or the PT(TC) Reg. Rather, the Ministry relies on what they say was Mr Elias's failure to comply as an indication of his not being a fit and proper person to hold an authority. Mr Elias admits he did not tell the Department "within 48 hours" of his diabetes diagnosis in 2000; it was probably not until the medical examination in 2002, if then, that the Department became aware. Mr Elias says that he assumed that his diabetes would be known to the Department from the biennial medical reports he submits to the Department. The Department's file does not contain any such reports after 1994. 47 Mr Elias has been on medication for his disability, and has not been adversely affected by it when driving. He agrees that he is now affected by it because of stress, and were he to have his authority now he would not drive until and unless he felt able. 48 I do not draw the inference invited by the Ministry that because Mr Elias failed to advise the Department as required by cl.44(3) PT(TC) Reg, he is not a fit and proper person. Mr Elias's ignorance of the requirement would not excuse him in criminal proceedings, but I take account of his understandable ignorance of the requirement in this matter, in light of his expectation that the biennial medical check ups would bring the diabetes to the Department's notice, and of his managing its effect on him such that his ability to drive has not been affected. 49 The Ministry relies as well on Mr Elias's diabetes itself as a ground for saying he is not a fit and proper person to hold an authority. It was submitted that the phrase "in all other respects" in s33(3) of the PT Act extends to include a person's capacity to do the job. I reject this interpretation of that phrase. The whole of the phrase is "considered to be of good repute and in all other respects a fit and proper person"; the term "in all other respects" occurs in the context of a judgement being made as to reputation and fitness and propriety. 50 The judgement is not an objective assessment of ability flowing from a medical condition. Objective criteria for the granting of an authority (see Kamara at [17]) are in cl.33 of the PT(TC) Reg, and include medical fitness (subcl.2(d)(ii)). Once an authority is granted it can be cancelled only "[h]aving regard to the purpose of the authorisation under the division" (s33F PT Act). The 'purpose', set out in s.33 PT ACT, is to attest to what the Appeal Panel in Kamara referred to generally as 'suitability', and do not include the objective requirements in cl.33 PT(TC) Reg. 51 It appears that the Ministry may not have the power to cancel a licence when a person does not have whatever medical fitness is considered necessary to be continue to hold an authority. In any event, in the absence of any evidence that Mr Elias is in fact not medically fit to hold an authority – and in light of he apparent uncertainty as to how that is to be measured – the question does not have to be answered in this matter. Correct and preferable decision 52 Accordingly I am of the view that the correct and preferable decision is that Mr Elias's authority should not be cancelled. It is appropriate therefore to set aside the decision to cancel Mr Elias's authority. 53 I note two further considerations that in my view support my decision, but are not in this matter necessary to it. Both relate to the fact that in proceedings such as these a person's livelihood is at stake. That being so it is appropriate to expect the evidence on which the Ministry relies to deprive a person of their livelihood to be strong enough to lead to a reasonable satisfaction, and to not be such as would meet a mere mechanical application of the 'balance of probability' standard (see, eg Reslan v TAC [2001] VCAT 213 and authorities cited there at [22], and in this Tribunal Mulligan -v- Director General, Department of Transport [1999] NSWADT 126; Harel -v- Director General, Department of Transport [2002] NSWADT 249). 54 Further, where, in a matter such as this, there is a discretion to be exercised that bears on a person's right to work as they choose, then the discretion ought be exercised having regard to Australia's international human rights obligations (see, eg R v Hollingshed (1993) 112 FLR 109 at 115). In a case such as this the obligation that Australia has taken on under the International Covenant on Economic, Social and Cultural Rights (ICESCR), is in Article 6, which recognises the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. Orders The decision of the administrator is set aside.