CITATION: Lamb v Ministry of Transport [2005] NSWADT 82 DIVISION: General Division APPLICANT PARTIES: George Lamb RESPONDENT Director-General, Ministry of Transport FILE NUMBER: 043327 HEARING DATES: 22/02/2005 SUBMISSIONS CLOSED: 02/22/2005 DATE OF DECISION: 04/11/2005 BEFORE: Molony P - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter Passenger Transport (Taxi-Cab Services) Regulation 2001 Passenger Transport Act 1990 LEGISLATION CITED : Road Transport (Driver Licensing) Act 1998 Road Transport (Driver Licensing) Regulation 1999 Road Transport (General) Act 1999 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 CASES CITED: Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 Saadieh v Director General, Department of Transport [1999] NSWADT 68 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, Solicitor ORDERS: ORDERS MADE 22/02/2005; The Tribunal affirmed the decision of the Administrator made on 6 September 2004 to cancel Mr Lamb's taxi driver's authority. REASONS FOR DECISION Background 1 Mr George Lamb has driven taxis for many years. He is now 79 years old. The Director General of the Ministry of Transport ("the Administrator") on 28 July 2004 decided to cancel his taxi drivers authority because the Administrator was satisfied that Mr Lamb had been driving taxis while his drivers licence was suspended, and had failed to notify the Administrator of a series of penalty notices he had received for driving offences. The Administrator had asked Mr Lamb to show cause why this decision should not be made. He did not reply. 2 Mr Lamb sought an internal review of the decision to suspend his driver's authority. On 9 September 2004 the decision to cancel Mr Lamb's taxi driver's authority was confirmed on internal review. Mr Lamb then lodged this appeal against that decision on 5 September 2004. On 5 October 2004 he sought a stay of the decision pending determination of the appeal. On 7 October 2004 this was granted. 3 At the commencement of the hearing it was apparent that Mr Lamb was somewhat confused as to the nature of the stay order and its effect. This was added to by the fact that the Administrator has determined to prosecute Mr Lamb for a series of offences of driving a taxi when unauthorised to do so. Those prosecutions relate to the same circumstances which led to the decision to cancel Mr Lamb's authority, and are yet to be heard. A considerable time was spent explaining to Mr Lamb the nature of the stay order, the purpose of the present hearing before the Tribunal, and differentiating the present proceedings from the prosecutions. In the course of that discussion it became apparent that Mr Lamb had not read the material relied on by the Administrator, which had been served on him. I offered Mr Lamb an adjournment to read the material and seek advice about it, and to enable the prosecutions to be heard and determined, but he refused the opportunity and declined to read the Administrator's material. 4 Because I was concerned about Mr Lamb's level of understanding I asked Mr Wozniak who appeared for the Administrator to present the Administrator's case first, so that it was made clear to Mr Lamb what he had to meet. At the conclusion of the hearing I explained my decision to affirm the Administrator's decision to Mr Lamb as simply as possible, to ensure he understood why I had reached that decision. Mr Lamb has now sought written reasons for decision. These are those reasons. Driving While Licence Suspended 5 On 20 September 2001 Mr Lamb's driver's licence was suspended for fine default. According to the certificate issued unders.46 of the Road Transport (General) Act 1999 Mr Lamb was advised in writing of the decision to suspend his licence by notice dated 7 September 2001. 6 On 13 May 2003 Mr Lamb applied for and was issued with a replacement driver authority as he had lost his present one. He supplied a statutory declaration as to the circumstances of the loss dated 12 May 2003. A check of his traffic record was undertaken in the ordinary course of that process. It revealed that his licence was suspended. 7 On 14 May 2003 the Administrator wrote to Mr Lamb, at the same address as that to which the RTA had sent the notice of suspension, advising that a search of his traffic record revealed that his licence was suspended for fine default. A copy of the traffic record was attached for his information. The letter advised that clause 79(5) of the Passenger Transport (Taxi-cab Service) Regulation 2001 provided that his drivers authority had no effect while his licence was suspended, and that his authority was suspended until he again held a licence. It warned that driving a taxi without an authority was an offence. 8 Mr Lamb replied by letter dated 15 May 2003. He advised: My taxi driver's licence was suspended on 20.9.2001 for exceeding 12 points. On the same day I went to the RTA and requested that my licence not be suspended and applied for the 12 months of good behaviour, and was given to me. On the 20.9.2002 I had no offences and the RTA allowed me to continue driving. Since then I am holding my I.D. expiring 2004 plus my driving licence … and I owe nothing all fines paid. 9 On 16 May 2003 the Administrator replied to Mr Lamb's letter. The Administrator advised that a further check with the RTA had confirmed that his driver's licence was suspended. The letter confirmed that Mr Lamb's taxi driver's authority was suspended while he did not hold a drivers licence. The letter invited Mr Lamb to ring a departmental officer if he required assistance. 10 On 10 June 2003 Mr Lamb wrote to the Administrator as follows: … I have been advised by the RTA to request the State Debt Recovery Office to inform if any amount still owing to them since 2001. A letter forwarded to them waiting reply what is the outstanding amount so my suspension be moved from my licence and I get back to you. 11 On 26 May 2004, nearly a year later, Mr Lamb was advised by letter from the RTA that the restriction (suspension) on his licence had been lifted and that he could recommence driving. However, on 28 May 2004, a further decision to suspend his licence was made, this time on a demerit points basis. This decision was not implemented because Mr Lamb elected to take advantage of good behaviour conditions for a period of 12 months until 28 May 2005. His licence is presently subject to those conditions. 12 An examination of the RTA records shows that on 7 July 2001 the RTA determined to suspend Mr Lamb's driver's licence for the period 11 August 2001 to 11 November 2001 for exceeding permissible demerits. On 10 August 2001 it was determined not to implement that suspension, and good behaviour conditions were applied from 11 August 2001 to 11 August 2002. However, on 6 September 2001, a fresh and different decision to suspend Mr Lamb's driver's licence for fine default effective on 20 September 2001 was made. This is decision which Mr Lamb was notified of by the notice of 7 September 2001. The records also show that on 24 June 2002, 26 June 2002, 16 September 2003, 14 December 2003, 1 January 2004 and 5 May 2004 Mr Lamb was fined for exceeding the speed limit and on 17 October 2003 for disobeying traffic lights. 13 Mr Lamb did not advise the Administrator of these offences. On 26 November 2004 Mr Lamb's driver's authority came up for renewal. Mr lamb completed an application for a new authority in which he answered, "No", to the following question: Have you had any driving offences (not parking fines), that you have not told us about, since your authority was last issued or renewed? In completing that application Mr Lamb signed a declaration in which he declared the contents of the application to be true and correct. That was plainly not the case. 14 On 24 June 2004 the Administrator received a complaint about the driving, on that day, of driver AC2142 (Mr Lamb's authority number). The Administrator has also obtained and relies on Taxi Drivers Daily Worksheets completed and signed by Mr Lamb for the following dates: 2 May 2004, 3 May 2004, 4 May 2004, 5 May 2004, 6 May 2004, 7 May 2004, 9 May 2004, 10 May 2004, 11 May 2004, 12 May 2004, 13 May 2004, 14 May 2004, 16 May 2004, 17 May 2004, 18 May 2004, 19 May 2004, 20 May 2004, 21 May 2004, 24 May 2004 and 25 May 2004. There are also drivers sign on/sign off records for the period 20 September 2001 to 5 June 2003, covering some 48 closely typed pages. In addition there are Taxi Drivers Daily Worksheets completed and signed by Mr Lamb for the following dates: 6 August 2004, 13 August 2004, 20 August 2004, 27 August 2004, 3 September 2004, 10 September 2004, 17 September 2004, and 1 October 2004. 15 Mr Lamb did not dispute that he had driven a taxi while his licence was suspended. His first and primary argument was that the accusations levelled against him were all out of time, and the prosecutions could not be brought. I explained to Mr Lamb that I was not deciding the prosecutions. I made it clear that in reviewing the decision to cancel his taxi drivers authority the Tribunal was not restricted to considering allegations which are made within time, as the Local Court would be in hearing the charges levelled against him. It should also be noted that Mr Wozniak took issue with Mr Lamb's claim that the prosecutions are statute barred. That, however, is not a matter for me. 16 Mr Lamb confirmed that he had received the letters from the Administrator of 14 and 16 May 2003 and 28 July 2004. When asked why he continued to drive after being told his authority was suspended or cancelled Mr Lamb explained that he did not accept letters making decisions of that nature. For such decisions to be made it must be made by a "Court". 17 I was satisfied on the evidence that Mr Lamb drove a taxi while he was aware that both his drivers licence and his taxi drivers authority was suspended and from 15 May 2003 until 26 May 2004 when the business restriction was lifted. The letters from the Administrator of 14 and 16 May 2003 made this very clear to him, and his letter of 10 June 2003 is evidence that he understood the import of that information. I was satisfied, on the basis of the work sheets completed and signed by Mr Lamb, that he repeatedly drove a taxi while knowing that both his drivers licence and his taxi drivers authority was suspended in the period 2 May 2004 to 25 May 2004. 18 I was further satisfied that Mr Lamb was aware that his authority had been cancelled by the Administrator on 28 July 2004. The fact that he sought an internal review confirms this. I was satisfied that he knew that this decision had been affirmed on internal review on 9 September 2004, and that he knew that he should not drive a taxi while his authority was cancelled. His filing of this appeal and successful application to stay the decision pending the determination of the appeal confirms this. I was satisfied that despite this knowledge Mr Lamb drove a taxi without an authority on eight occasions between 6 August 2004 and 1 October 2004, as is demonstrated by his worksheets for those days. I note that he drove a taxi on 1 October 2004 and then applied for a stay of the decision to cancel on 5 October 2004. I regarded Mr Lamb's explanation that he did not accept decisions conveyed by letter from the Administrator because they were not made by the Court as poor excuse of no substance. Eligibility to hold an authority 19 Mr Wozniak submitted that in any case because Mr Lamb holds a licence conditioned on his good behaviour, rather than a full unrestricted licence, he was not eligible at the time of the hearing to apply for a taxi driver's authority, and was therefore not fit and proper. 20 Clause 33 of the Passenger Transport (Taxi-cab Service) Regulation 2001 provides: (1) The object of this clause is to set forth, for the purposes of Section 33B(2) of the Act, the criteria that an applicant for an authorisation to drive taxi-cabs must meet before the application is granted. (2) The applicant: (a) … (b) must hold a driver licence, and (b1) must have held for a total of at least 12 months in the 2 years immediately preceding the date of the application, an Australian driver licence, and (c) … (3) In this clause: "Australian driver licence" means: (a) a driver licence, or (b) a licence issued under a law in force in a State or internal Territory authorising the holder to drive a motor vehicle on a road or road related area, excluding a conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving), probationary licence, provisional licence, restricted licence and driver licence receipt. "driver licence" means a driver licence excluding a conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving), learner licence, probationary licence, provisional licence, restricted licence and driver licence receipt. 21 Mr Wozniak submitted that because Mr Lamb's present licence is conditioned on his good behaviour it is a conditional licence, and therefore not a driver's licence within the meaning of clause 33(3). 22 Section 16A of the Road Transport (Driver Licensing) Act 1998 provides that a person who has accumulated more than 12 demerit points in 3 years is ineligible to hold a licence for a specified period to be determined in accordance with the number of demerit points they have accumulated in that period. Sub-section (7) allows a person who has been given notice of ineligibility to elect, "as an alternative to undergoing the ineligibility period, to be of good behaviour for a period of 12 months from the day on which the licence ineligibility would otherwise have had effect." 23 Conditional licences are dealt with by clause 28 of the Road Transport (Driver Licensing) Regulation 1999, which provides: (1) A condition to which a driver licence is subject may be shown on the driver licence by means of a code or symbol. (2) If a condition is shown by a code or symbol, the driver licence must bear a note to the effect that the condition can be found out by inquiry of the Authority. (3) The Authority may require the holder of a conditional licence to carry, when driving, any notice issued by the Authority containing a full explanation of the conditions to which the licence is subject. (4) … (5) A code in Column 1 of the Table to this subclause may be used on a driver licence to indicate that the licence is subject to the condition set out in Column 2 opposite that code. … (6) A short description of a licence condition may be printed on a driver licence. Information provided by the RTA shows that Mr Lamb's licence is unrestricted but that good behaviour conditions apply. 24 I accepted that as a result Mr Lamb did not hold a driver licence within the meaning of Clause 33 of the Passenger Transport (Taxi-cab Service) Regulation 2001 because his licence is conditional. As a result clause 79(5) would operate to make his authority ineffective. That clause provides: A person's authority to drive taxi-cabs and driver's authority card do not have any effect, either for the purposes of Division 5 of Part 4 of the Act or for the purposes of this Regulation, while the person's driver licence is cancelled or suspended. I would add that even if that were not the case, Mr Lamb would also now be ineligible to apply for a licence under clause 33 of the Regulation both because he does not now hold an unconditional drivers licence and because he has not now, as a result of the suspensions, held a licence for a total of at least 12 months in the 2 years. Fit and proper person etc 25 Section 33(3) of the Passenger Transport Act 1990 provides that a drivers authority attest that: (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: Having regard to the purpose of authorisation under this Division, the Director General may at any time vary, suspend or cancel any person's authority under this Division. Mr Wozniak for the Administrator submitted that in the light of the evidence I could not be satisfied that Mr Lamb was a fit and proper person to hold a driver's authority, or that he had sufficient responsibility to drive a taxi-cab in accordance with law and custom. 26 In Farquharson -v- Director General, Department of Transport [1999] NSWADT 53, O'Connor DCJ, President, said: 27 A taxi driver has a continuing responsibility to ensure that he is of "good repute" and a "fit and proper person". Clearly, the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character. The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J). 36 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. 37 A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165. The applicant sought review of a refusal to grant a taxi driver's licence, the refusal being based on a criminal record revealing a number of convictions for offences involving dishonesty. The application was successful. The Tribunal was satisfied that the context that had given rise to the convictions, a gambling addiction, had been successfully addressed. It was satisfied as to the genuineness of the applicant's desire to rehabilitate himself. In the course of its decision the Tribunal (Professor LJ Curtis, President) put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing in this way, at [12]: "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 in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi." 27 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Deputy President Hennessey said: 17. … there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors 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 28 In Mr Lamb's case I found that he has repeatedly driven taxis when he knew that both his licence and his driver's authority were suspended, and has also repeatedly driven taxis when he knew his driver's authority was cancelled. These are serious breaches of the Passenger Transport Act 1990 and reflect poorly on his fitness to continue driving taxis. The left me with no confidence that he is likely have sufficient responsibility to drive taxis in accordance with law and custom. When viewed in the light of his significant history of driving offences, even when considered in the light of the fact that driving offences are somewhat of an occupational hazard for taxi drivers, both his fitness and responsibility are further diminished. The pattern of infringement of road traffic laws and of the regulations governing his driving is such that I considered that, were Mr Lamb authorised to drive taxis again, he is likely to commit further traffic offences and again disregard the regulations governing his driving. Mr Lamb statement that does not accept letters from the Administrator and requires a "Court" to decide matters relating to his authority, led me to conclude that he is also unlikely to comply with future decisions of the Administrator. Further, Mr Lamb failed to disclose details of his traffic offences in his last application to the Administrator and made a declaration which was not true about them. This merely reinforces my view that Mr Lamb is not candid and open in his dealings with the Administrator, and is unlikely to comply with the Administrator's requirements, or those of the legislation, in the future. 29 As a result I was satisfied that Mr Lamb is not a fit and proper person to hold a taxi drivers authority and that he does not have sufficient responsibility to drive a taxi in accordance with law and custom. He has demonstrated his inability to pay regard to regulatory requirements essential for holders of taxi driver's authorities, and a lack of candour in his dealings with the Administrator. For this reason I agreed that the Administrator had made the correct and preferable decision in deciding to cancel Mr Lamb's authority. 30 Further, I was satisfied that is not now a person who, because of his present licence and licence history since September 2001, would be eligible to apply for a drivers authority. I considered that both of these matters went to the question of whether Mr Lamb is a fit and proper person to hold an authority, and demonstrated that he was not fit to do so. Conclusion 31 As a result the Tribunal affirmed the decision of the Administrator made on 6 September 2004 to cancel Mr Lamb's taxi driver's authority. 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.