Hayden v Ministry of Transport [2008] NSWADT 261

CITATION: Hayden v Ministry of Transport [2008] NSWADT 261

DIVISION: General Division

APPLICANT Andrew Lawrence Hayden PARTIES: RESPONDENT Ministry of Transport

FILE NUMBER: 083199

HEARING DATES: 10 September 2008

SUBMISSIONS CLOSED: 10 September 2008

DATE OF DECISION: 15 September 2008

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Passenger Transport Act - taxi driver - suspension of authority

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Director General, Ministry of Transport v Haider (GD) [2004] NSWADTAP 42 CASES CITED: Farquharson v Director General, Department of Transport [1999] NSWADT 53 Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Re T v Director of Youth & Community Services (1981) NSWLR 392

APPLICANT J Rowe, barrister REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: The decision to suspend the applicant's authority is affirmed.

REASONS FOR DECISION 1 The applicant is 40 years of age and holds a driver authority under the Passenger Transport Act 1990 ("the Act"). He has been driving taxis in for eight years. There is no evidence of complaints of any nature against him in regard to his work as a taxi driver. 2 By a Notice of Decision dated 18 June 2008 a delegate of the Director General of the Ministry of Transport advised the applicant that the respondent had determined to suspend his authorisation to drive taxi-cabs in accordance with section 33F of the Act. The decision to suspend his authority was taken as a result of the fact that he had been charged with the offence of sexual intercourse without consent. 3 The reasons for decision stated: "The reasoning process that lead to the decision The Delegate of the Director-General has to be satisfied that the holder of a taxi-cab driver authority is of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab. The laying of a serious criminal charge against Mr Hayden reflects on him meeting those criteria whilst the charge is outstanding. It is not appropriate for the Delegate of the Director-General whose responsibilities relate to tax -cab driver authorisation, to go behind the information supplied by NSW Police so as to examine the weight or otherwise of the Police case. In this case the Delegate of the Director-General has considered it in the public interest to exercise his authority under section 33F of the Passenger Transport Act to suspend Mr Hayden's taxi-cab driver authorisation. In this regard it is considered that being charged with sexual intercourse without consent means the Delegate of the Director-General can no longer attest to Mr Hayden's fitness to be the driver a taxi-cab whilst this charge is outstanding. In determining 'public interest' one has to formulate it in terms of the perceptions of 'a reasonable member of the travelling public'. It is likely that a reasonable member of the travelling public would regard the laying of such a serious criminal charge against Mr Hayden as sufficient to justify immediate action against his authorisation to driver a taxi-cab. This suspension will remain in place until such time as this charge is finalised by the court and the Ministry assess the outcome of the matter or the authority expires. Based on the above facts and law it has been determined to suspend your taxi-cab driver authorisation." 4 The applicant requested an internal review of the determination. The original determination was affirmed. The internal reviewer gave the following reasons for that determination: "Reasoning Process that led to the Decision I note that Mr Hayden has submitted his intent to defend the allegation made against him. However, an administrator must give heed to the public's expectation that the regulator of a licensing regime respond appropriately to the allegation of a criminal charge, particularly where a conviction may result in the imposition of a prison sentence. Pursuant to section 33F of the Act, in determining to suspend a driver authority, regard must be had to the purpose of authorisation. This requires me, as the internal reviewer, to be able to attest to Mr Hayden being of good repute and in all other respects fit and proper to drive a taxi-cab. Mr Hayden claims that his good character prior to the allegation being made must be taken into account, and I do so. However, the allegation of a criminal charge bears on the reputation of Mr Hayden and raises questions as to his character at this time. The concept of 'good repute' refers to the estimate that others possess as to the character of the individual. On the other hand whether a person is 'fit and proper' goes to the actual character of the person, a matter to be established objectively. In considering whether Mr Hayden is a person of 'good repute' I am entitled to take into account any material provided by Mr Hayden that supports his character, such as testimonials from neighbours or work colleagues; and form a view as to what the community's estimate would be of the person if they were aware of the material facts as available to me. Mr Hayden has not provided any testimonials or references to his good character. As stated above, I do note that Mr Hayden apparently has no other offences to my knowledge that would have previously impugned his reputation as a taxi driver, although in the absence of positive testimonials of persons who know him and are aware of the charge, I tend to afford his assertion of continuing good repute to be of little weight. I am entitled to form the view that a member of the community, being aware of the matters known to me, would consider Mr Hayden to be a person of low repute at this time. As such, I am unable to attest to Mr Hayden being a person of good repute. It is important to note that the suspension of the authorisation is not intended to deprive Mr Hayden of driving taxi-cabs for all time, but rather a reflection that pending determination of the charge by the court, his reputation will remain adversely affected. This is not a judgment on whether he is guilty or innocent of any offence and I am not required to consider or weigh the evidence as to the facts of the matter or whether he is currently on bail or the conditions of bail. As I am unable to attest that Mr Hayden is a person of good repute, it is unnecessary for me to determine whether Mr Hayden is a 'fit and proper person' to drive a taxi cab or to deal with the matters set out in section 33(3)(b) of the Act." 5 The applicant has sought an external review by the Tribunal. Applicable Legislation 6 The purpose of an authorisation is set out in section 33 of the Act: (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, 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. 7 Division 5 in Part 4 of the Act makes provision for authorisation to drive taxi-cabs. The decision to suspend the applicant's authority was made under section 33F of the Act, which provides as follows: 33F Variation, suspension or cancellation of authority 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. The Respondent's Evidence and submissions 8 The respondent filed and served a copy of its file in relation to the applicant. The respondent also relies on the police statement of facts, which sets out the allegations made against the applicant. 9 Mr Wozniak refers to principles set out by the Tribunal in the matters of Farquharson v Director General, Department of Transport [1999] NSWADT 53, and Director General, Ministry of Transport v Haider (GD) [2004] NSWADTAP 42. He submits that neither the respondent nor the Tribunal can go behind that information to the extent of examining the strength and weaknesses of the prosecution case. However, he contends that the respondent would be expected to respond to advice that a regulated person had been charged with a serious criminal offence. 10 Mr Wozniak concedes the applicant's prior unblemished record and that he can be regard as having been of good character. However, he argues that the objective seriousness of the charge raises the issue of the applicant's character. 11 Mr Wozniak also concedes that the applicant's references suggest that he is well regarded by their authors. He also concedes that it is unlikely that the charges will be heard before April 2009. 12 He says that the test to be applied is that referred to in Farquharson at paragraphs [36] – [37] where the Tribunal's President stated: 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." 13 He submits that in this matter a reasonable member of the travelling public who might travel in a taxi driven by the applicant would object to the applicant as the driver of that taxi. That being the case, he submits that the decision to suspend his authority should be affirmed. The Applicant's Evidence and submissions 14 The applicant asserts that he has never been convicted of a criminal offence. He has not been charged with any offence prior to this charge. The charge relates to an alleged incident in June 2008. The applicant has denied the allegations and has pleaded not guilty in the criminal proceedings arising from the charge. He has been granted bail. 15 The applicant relies on the outline of submissions that his solicitors provided in support of the request for an internal review of the determination. This stated: " Factors for Internal Review to consider 1. The current charge does not arise out of circumstances that directly bear on the activity in relation to which the applicant's taxi driver's licence was issued. 2. Whilst the Director General's Delegate has an entitlement to consider the serious charge, as may affect the applicant's "good repute", the Delegate's judgement should be reserved as to whether he is in a position to form a negative conclusion about the applicant's fitness and character pending evidence at committal trial and any subsequent verdict. The applicant acknowledges that the criteria for granting an authority to drive a taxi focuses on qualities and attributes personal to an applicant and that the continued possession of those qualities and attributes is necessary. However, pending a hearing of the charges, the Delegate should consider the above factors in favour of the applicant and in answering questions of good repute and character the Delegate should have looked at the broad picture and not simply rely on a single untested negative factor as being conclusive. 3. Whilst the granting of bail does not provide any indication as to the strength or otherwise of the prosecution's case, it does involve a broad assessment of the appropriateness of permitting an individual to remain free and part of the community pending trial, rather than being incarcerated. Given the bail conditions, the applicant in effect walks a tightrope until trial, as any breach whatsoever would result in incarceration and hence automatically deny the ability to use a taxi driver's licence. 4. The applicant disagrees that a reasonable member of the travelling public, informed of the outcome of the bail hearing, the conditions imposed and noting the objective nature of the charge along with the applicant's unblemished record to date (both criminally and as a taxi driver), should have any cause for alarm with the applicant operating a taxi pending any trial. 5. The applicant has to date been a person of unblemished good character. He is 40 years of age, has no previous criminal record and has a history of being a fit and proper person to hold a taxi driver's licence. 6. To date the applicant has, via his taxi driver's licence, pursued a regulated occupation for some eight (8) years without any adverse attention by the occupation administrators. 7. The applicant has never been the subject of any adverse compliant regarding the operation of his taxi cab, manner of driving (other than speeding tickets), his attitude to passengers, which includes adults of both sexes, along with children, pensioners, handicapped and disabled clients. 8. The applicant operates not only in the Cooma town area but conveys passengers on much longer trips to Canberra, Snowy Mountains Ski Resorts and adjacent local towns, 24 hours a day. 9. The applicant is Manager of the local taxi cooperative and has been for 4 years. 10. The applicant is a life long member of the Cooma community with very strong community and family ties. 11. The applicant is able to supply good written references from persons of high standing within the community. 12. The decision destroys the applicant's ability to earn a livelihood as a taxi driver in the period up to the finalisation of the police charges, which may be some months off, 13. The applicant acknowledges the charge is serious, however has legal advice it is without foundation and will be strenuously defended, 14. Police informant has been in a long term relationship with applicant and the alleged offence occurred with consent, 15. The applicant's legal representatives are bringing the matter for hearing ASAP. 16. When requested by police the applicant voluntarily attended the Police Station and consented to a buccal swab for DNA comparison purposes, 17. The applicant was not required to appear before a Magistrate for the granting of bail, which was granted by a Bail Sergeant without the need for any surety to be lodged by applicant or any other person. 18. Matter will be dealt with in the local court, but may take some considerable time to be heard, depending on delay with police brief of evidence, Applicant wishes matter to be dealt with at first possible opportunity on the basis of a plea of not guilty." 16 Mr Rowe, who appeared on behalf of the applicant, repeats those submissions. 17 The applicant provided references in support of his contention that he is well regarded in his community. References were provided by: Mr Mark Williams, Manager of Community Services & Environmental Health, Cooma Monaro Shire Council; Mr John Last, Solicitor and Barrister; Mr Chris Mould, South East Tile and Bathroom Centre; Ms Angie Introna, Catholic School Teacher; Mr Gary Coyne, Director of Cooma Radio Taxis; and Ms Jacki Allen, Medical and Dentist Receptionist. 18 Each of the authors of the references indicated that they have known the applicant for many years and that they are aware of the allegations and criminal charge that he now faces. The knowledge that he has been charged with a serious sexual offence does not change their assessment of his character and standing in the community. Each of the authors indicated that they consider that the applicant continues to enjoy a good reputation within the community. In their opinion the applicant continues to be a person of good repute and, in all respects, a fit and proper person to be able to drive a taxi cab, not withstanding the allegation and charge. 19 Mr Rowe also relies on a summary of phone records in relation to calls between the applicant and the alleged victim over a period of some 18 months. He also seeks to rely on the criminal history records of the applicant and the alleged victim. He argues that while the Tribunal is unable to consider the likelihood of the applicant being found guilty of any offence, it can look at all the circumstances in order to form a view as to whether a member of the community, being aware of those matters, would consider the applicant to be a person 'of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab'. 20 He submits that in this matter a reasonable member of the travelling public would not object to the applicant as the driver of a taxi in which they were a passenger. That being the case the decision to suspend his authority should be set aside. Consideration 21 The issue in this matter is whether the applicant 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. In reaching its decision the respondent relied on the fact that the applicant has been charged with the offence of sexual intercourse without consent. The respondent considers that based on the seriousness of that charge it is no longer in a position to attest to the applicant's character, as required when providing an authority under the Act. 22 The applicant has an unblemished record as a taxi driver and taxi operator. He has not ever been charged with any other criminal offence and is entitled to be presumed innocent until determined otherwise. 23 In Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 Wardell J. said: "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." 24 In Farquharson President O'Connor referred to Re T and Director of Youth & Community Services and said that: "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". 25 In Haider the Tribunal's Appeal Panel stated: "55 It is well established that 'good repute' refers to the estimate that others possess as to the character of an individual. On the other hand whether a person is 'fit and proper' goes to the actual character of the person, a matter to be established objectively. So it is possible that the estimate that the public holds as to the character of a person might be quite different from their actual character." 26 There is substantial evidence to attest that the applicant is considered to be of good repute. Each reference indicates that the author is aware of the allegations against the applicant and that he is held in high regard notwithstanding that knowledge. In light of those references I am satisfied that that the applicant is a person of 'good repute'. 27 The question of whether the applicant is a person of 'fit and proper' character remains. The assessment required here is one that concerns the applicant's intrinsic character. The issue of 'fit and proper' character was the subject of discussion in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Toohey and Gaudron JJ stated at 380: 'The expression "fit and proper", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in the activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not a fit and proper person to undertake the activities in question.' 28 Their Honours further stated at 388: '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.' 29 The activities in which the person will be engaged are relevant to consideration of whether he is a "fit and proper person": Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156-7. The likely perceptions of travelling members of the public are relevant in this consideration: Farquharson; Mavihisathit. 30 In the circumstances of this matter I agree with the respondent that the objective seriousness of the charge against the applicant is such that a reasonable member of the travelling public would object to the applicant as the driver of a taxi in which they were travelling as a passenger. The seriousness of the charge is sufficient in its own right to permit the respondent to suspend the authority. That being the case I am satisfied that the decision made was the "correct and preferable" one in the circumstances. Accordingly, the decision to suspend the applicant's authority should be affirmed. Order The decision to suspend the applicant's authority is affirmed.