Khamis v Director General, Ministry of Transport [2007] NSWADT 74

CITATION: Khamis v Director General, Ministry of Transport [2007] NSWADT 74

DIVISION: General Division

APPLICANT PARTIES: Michael Khamis RESPONDENT Director General, Ministry of Transport

FILE NUMBER: 063204

HEARING DATES: 11 September 2006

SUBMISSIONS CLOSED: 14 December 2006

DATE OF DECISION: 4 April 2007

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Passenger Transport Act - taxi driver - grant of authority - Taxi driver - grant of authority

MATTER FOR DECISION: Prinicpal matter

LEGISLATION CITED : Passenger Transport Act 1990

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Director-General, Department of Transport v Z [2002] NSWADT AP 37 Farquharson v Director-General, Department of Transport [1999] NSWADT 53 CASES CITED: Goody v Oldhams Press Ltd [1967] 1 QB 33 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Khamis v Director General, Department of Transport [1999] NSWADT 103 Re T v The Director of Youth & Community Services [1982] 1 NSWLR Singh v Director-General, Department of Transport [1999] NSWADT 9

APPLICANT In person REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: The decision of the respondent is affirmed

REASONS FOR DECISION Background 1 This is an application by Michael Khamis ('the applicant') seeking review of the decision of a delegate of the Director General of the Ministry of Transport ('the respondent') to refuse his application for a taxi driver authority under the Passenger Transport Act 1990 ('the PT Act'). 2 The grounds on which the application was refused were those set out in s.33B and 33 of the PT Act; namely that the delegate was not satisfied that the applicant was a person of good repute and otherwise a fit and proper person. 3 The application was heard on 11 September 2006, however the matter was adjourned in order to allow the applicant to obtain a more detailed report from his psychologist, Mr Onsy Mattar. That report was filed by the applicant on 8 September 2006, however due to its brevity the applicant was given leave to file a more comprehensive report. That report, dated 28 September 2006, was filed on 18 October 2006. Following the filing of this report the applicant, at the request of the respondent, saw Dr Brian F Potter a consultant psychiatrist nominated by the respondent. A report from Dr Potter was filed on 12 December 2006. When the matter was next listed for directions on 14 December 2006 the parties agreed that the Tribunal should make its determination on all the material before it. Relevant facts 4 The facts in this matter are not in dispute. What is in dispute is whether, on the basis of these underlying facts, the Tribunal, as was the respondent, is not satisfied that the applicant is a person of good repute and otherwise a fit and proper person. For the reasons set out below, the Tribunal is not satisfied in that regard. However, before setting out those reasons, it is necessary to set out in some detail the applicant's previous licensing history as this is not the first time he has been refused a taxi driver authority. He has in fact been the holder of such an authority previously, which has been cancelled a number of times. 5 The applicant was first granted an authority in May 1991 which, the Tribunal understands from the papers filed in these proceedings, expired on 2 May 1992. The applicant then re-applied for the issue of a further authority on 19 April 1993. He was granted such an authority which was subsequently cancelled on 23 March 1994. This authority was cancelled on the basis of three complaints received by the respondent from passengers in taxis driven by the applicant. The complaints all alleged aggressive behaviour by the applicant. One complaint was made by a fellow taxi driver and in respect to this complaint the applicant was convicted and sentenced. 6 The applicant unsuccessfully appealed this cancellation decision in the Local Court. However, six months later, on 19 October 1994, the applicant again applied for an authority. This authority was refused and three months later, on 2 February 1995, the applicant again made another application for an authority. This application was also refused and the applicant was again unsuccessful in having the decision of the respondent set aside in an appeal to the Local Court. 7 Almost one year later, on 3 January 1996, the applicant again applied for the issue of a taxi driver authority. He had at this time also secured a bus driver authority under the PT Act. On this occasion, on 15 January 1996, the applicant was issued with a taxi driver authority. In issuing that authority, the respondent also issued a warning to the applicant to the effect that if he came to further adverse notice to the respondent, consideration would be given to his continued fitness to hold the authority. The applicant held that authority until 29 November 1997 when the respondent again made a determination to cancel his authority. On this occasion, the cancellation was made on the basis of nine complaints that had been received by the respondent during 1996 and 1997. These complaints all related to the applicant's conduct while driving or in control of a taxi. They all involved allegations of aggressive, threatening and rude behaviour together with inappropriate sexual references, assault and erratic driving. On 10 September 1997, on being advised of the alleged assault, St George Cabs Co-Operative Limited warned the applicant about his conduct and suspended him from driving for 1,000 hours. 8 On 27 January 1998, the applicant again unsuccessfully appealed the decision to cancel his driver authority to the Local Court. On 1 May 1998 the applicant again re-applied for a taxi driver authority, which was refused. 9 On 19 November 1998 the applicant again unsuccessfully applied for the issue of a taxi driver authority. On this occasion the applicant sought external review of that decision to the Tribunal: see Khamis v Director General, Department of Transport [1999] NSWADT 103. 10 The Tribunal affirmed the decision of the respondent and at [35] the Tribunal made the following comment: '35 I believe there is an extremely high probability that the applicant, if granted a taxi authority, would continue to be the subject of complaints and infringement notices. He has been given numerous warnings about the complaints that have been lodged and has lost his licence on four occasions. He has repeatedly promised to change his ways but despite this, there is no evidence of any improvement in his conduct towards passengers or in his ability to obey the rules of the road.' 11 In the latter part of 1999, the applicant consulted his psychologist, Onsy Mattar, who had provided two written reports, dated 4 November 1999 and 16 December 1999. On the basis of these reports the applicant again applied for a taxi driver authority, which was refused. 12 On 17 February 2000, following receipt of a further report of Onsy Mattar, dated 5 February 2000, in which he stated that the applicant had received further treatment and did not need any further therapy, the respondent issued a taxi driver authority to the applicant. This authority was also issued with a final warning, which was formally acknowledged by the applicant. This authority was subsequently cancelled on 9 September 2004 following a show cause letter, dated 23 August 2004. This letter identified 16 further complaints that had been made against the applicant between May 2003 and July 2004. Once again, these complaints involved allegations of the applicant's erratic driving, his aggressive, abusive and rude behaviour and his inappropriate sexual remarks. The applicant responded to the show cause letter on the same day it was cancelled. In that response, the applicant denied the substance of the allegations. The respondent also contends that when the applicant provided his response to the show cause he became involved in an altercation with one of its officers and that the applicant behaved in an extremely aggressive and threatening manner. 13 On 28 March 2006, the applicant lodged another application for a taxi driver authority, which was refused. He them made an internal review application to which he attached a report of Onsy Mattar, dated 9 March 2006. In that report Onsy Mattar said that the applicant had undergone further treatment, that he had responded well and that 'he can cope better than before'. Onsy Matter also said that he did not consider there to be a risk if the applicant's taxi driver authority was restored. On review the respondent affirmed the original decision and it is that decision which is the subject of this application. Relevant legislation 14 The legislation applicable to the Director-General's decision, the subject of this application is set out in sub-section 34F(1) of the PT Act. That sub-section provides as follows: "34F(1) Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authorisation under this Division." 15 The purpose of an authority under the relevant Division (Division 5 of Part 4) is set out in sub-section 33(3) of the PT Act. That section, so far as is relevant, provides as follows: "33(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, …" Applicant's contentions 16 It is the applicant's contention that following further treatment by Mr Onsy Mattar, he was now a new man. He said that all the matters relied on by the respondent in support of his decision to refuse his application for an authority or to cancel his authority were past history. He is now 'cool and calm and can do his job properly and can serve the public'. He said he has learnt the hard way by not being able to work since September 2004. 17 In support of his contentions the applicant relied on the reports of Mr Onsy Mattar, including his subsequent reports dated 7 and 28 September 2006. In these reports Mr Onsy Mattar stated that in his opinion the applicant was: '… [responding] well to the treatment, and as a result he is enjoying good manners and good sense of responsibilities. He is also able to cope better when he is under pressure, I found him fit in dealing with pressure and managing his temper. He can deal with the public and he is fit for having a Taxi License.' Respondent's Contentions 18 The respondent on the other hand contended that the applicant's previous history as an authorised taxi driver was such to demonstrate that he was not a fit and proper person to be the holder of a taxi driver authority and that the Tribunal could not be satisfied that he is a changed man and will not engage in similar conduct in the future. In this regard it relied on the conclusions of Dr Potter who said the following: '[The applicant] is a 46 year old married man with four children and a grandchild. He gives the history of no problems, other than the need to have a psychiatric assessment in order to obtain the restitution of his taxi licence. He describes having had over 12 sessions of treatment with a psychologist who has helped him to become, a "changed" man and who has helped him with his stress. Within his history he dismisses and minimises any individual problems and any problems in his work or his relationships. When challenged with his history he blames others and takes no responsibility. He expects the listener to see the world in the same way that he does, without question. While his history and presentation does not attract any specific diagnosis he does meet the criteria for a Personality Disorder with immature and narcissistic traits. To be able to engage in and benefit from therapeutic help, it requires that an individual can see and acknowledge a problem, be troubled by it, and be prepared to do the hard work of acknowledging their problems and get appropriate help. Mr Khamis demonstrates no awareness and so no motivation to be able to address his personality difficulties. It is reasonable to expect that he will continue to behave in the manner in which he has demonstrated over many years. Given the stressful nature of taxi driving and the intensity of the contact with the general public, it will be of a disservice to Mr Khamis and to the general public if he continues working as a taxi driver or in any such responsible endeavour. Such work exposes him to anxiety he is unable to recognise and this anxiety will result in the behaviour documented.' Consideration 19 As mentioned above there are two aspects to the matter for determination in this application. The first aspect is whether the Director-General, and in this case the Tribunal, can attest to the applicant being considered to be of 'good repute'. The second aspect is whether the Tribunal, can attest to the applicant being considered to be a 'fit and proper person'. If only one aspect is satisfied then this is not enough, both must be satisfied. In this application it is the latter and not the former which is primarily in issue. Good repute 20 As to the meaning of 'good repute' in Director-General, Department of Transport v Z [2002] NSWADT AP 37 at [38], the Appeal Panel said: 'Good repute refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produced evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the "good repute" requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards'. 21 In that decision, at [20], the Appeal Panel cited with approval the following statement of Waddell J in Re T v The Director of Youth & Community Services [1982] 1 NSWLR 392 at 399: 'This definition ['reputation', Shorter Oxford Dictionary , 1973, 1083] makes it clear, as is the law, that a person's reputation is to be found in the estimate of his moral character entertained by some specific group of people, such as by 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'. 22 At [21], the Appeal Panel also cited with approval the following dicta of Lord Denning in Goody v Oldhams Press Ltd [1967] 1 QB 33 in relation to convictions: '[Previous convictions] stand in a class by themselves. They are the raw material from which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing. They must of course be relevant, in this sense, they must be convictions in the relevant sector of his life and have taken place within a relevant period such as to affect his current reputation…' 23 In this application, there are no previous convictions and on the basis of references provided by the applicant it would appear that he is a person of good repute. However, on the basis of my findings below, it is unnecessary for me to make a conclusive finding in this regard. Fitness and propriety 24 It is well established that an assessment of whether a person is 'fit and proper' involves different considerations from those relevant to 'good repute': Singh v Director-General, Department of Transport [1999] NSWADT 9 at 25 to 28, Farquharson v Director-General, Department of Transport [1999] NSWADT 53 at 27. 25 The Tribunal has also previously considered the meaning of the term 'a fit and proper person'. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] the Chief Justice Mason made the following statement in regard to the meaning of this term: '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 witness and propriety are under consideration.' 26 It is well established that the 'fitness and propriety' of a person must be considered in the context of what the person will be authorised to do if the licence is granted: see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321). And in doing so regard is to be had to the objectives of the legislation under which that licence will be issued. In this case the objectives are those set out in s.4 of the Passenger Transport Act 1990. Paragraph 4(e) provides that the objectives include the encouragement of 'public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services.' 27 While I do not doubt the applicant's sincerity in believing he is a changed man, I do not accept this to be the case having regard to the medical evidence and the fact that the applicant has not worked in any field since 2004. This latter fact shows that he has not exposed himself to the stresses of any form of a working environment. I agree with the respondent that the applicant's past history is one that demonstrates that he has acted inappropriately when driving a taxi. These occasions have involved serious digressions of what is acceptable and if the applicant contends that these were due to stresses at the time he needs to show that he can now deal with these stresses. This he has failed to do on this occasion. 28 I find the conclusions of Mr Onsy Mattar difficult to accept. His reports do not provide a history of the treatments the applicant has been given. Nor is it clear from the reports that Mr Onsy Mattar was fully appraised of the circumstances which caused him to loose his taxi driver authority. On the other hand, I accept the conclusions of Dr Potter. He has prepared a comprehensive report and while he has only seen the applicant on one occasion, his descriptions accord with the manner in which the applicant appeared before the Tribunal and as I have said the applicant has had no work experience so as to test his ability to cope with outside stresses. Once he has done so the respondent and Dr Potter may come to a different conclusion. 29 For the reasons set out above the Tribunal is of the view that the decision of the respondent is the correct and preferred decision and the Tribunal orders that the decision is affirmed.