Ghachame -v- Director General, Department of Transport [2000] NSWADT 113

CITATION: Ghachame -v- Director General, Department of Transport [2000] NSWADT 113 DIVISION: General Division APPLICANT Ali Ghachame PARTIES: RESPONDENT Director General, Department of Transport FILE NUMBER: 003112 HEARING DATES: 11/08/00 SUBMISSIONS CLOSED: 08/11/2000 DATE OF DECISION: 08/17/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: Passenger Transport Act - taxi driver - grant of authority - Taxi driver - grant of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 CASES CITED: REPRESENTATION: N Mayell, barrister A Woznizk, solicitor ORDERS: Decision of Director General to refuse to grant the applicant an authority to drive a public passenger vehicle is affirmed.

REASONS FOR DECISION Introduction 1 Mr Ghachame first obtained an authority to drive taxis on 10 October 1990. On 8 January 1999 a delegate of the Director General of the Department of Transport cancelled his authority. The reasons for this cancellation was an admission that he knowingly allowed his network personal identification number (PIN) to be used by another driver as well as the history of passenger complaints against him and his traffic record. 2 Mr Ghachame applied for a new authority on 30 December 1999. That application was refused and an internal review was carried out on 16 February 2000. In summary, while it was conceded that the offences were not "extremely serious," Mr Ghachame's complaint history and infringement history persuaded the Director General's delegate to come to the view that he could not "attest" that he was a fit and proper person to hold a public passenger authority. 3 It is the decision made on internal review that is under consideration by the Tribunal. Relevant legislation 4 The Passenger Transport Act 1990 (the Act) regulates the granting of authorities to taxi drivers. Section 12(1) states that: Having regard to the purpose of an authority, the Director-General may grant authorities to persons applying for them. 5 Sub-section 11(2) sets out the purpose of an authority in the following terms: 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 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. 6 The issue in this case is whether the Director General made the correct and preferable decision in deciding that it could not be attested that Mr Ghachame meets the requirements in s 11(2). Evidence 7 Mr Ghachame was born in Lebanon and came to Australia in 1987. He began working as a taxi driver in 1990. The relevant evidence in relation to his history as a taxi driver since that date is set out chronologically below. For ease of reference I have labelled each incident numerically. Mr Ghachame's traffic record is dealt with separately. 8 Incident No 1. The first complaint recorded in the file against Mr Ghachame relates to an incident on 7 October 1992. The details recorded on the "Department of Transport Passenger Transport Management System" are as follows: Driving in an unsafe manner. Driver to be counselled. 9 In a letter of 13 November 1992, to the complainant, the taxi company stated that the driver was interviewed but he did not remember this particular hiring. In oral evidence, Mr Ghachame denied knowing anything about the circumstances of this complaint. 10 Incident No 2. The "Department of Transport Passenger Transport Management System" recorded a complaint of touting in relation to a journey on 9 August 1993. The details recorded are as follows: Driver touted for passengers without complainant's consent. No ID displayed. When asked for same refused. Also intimidated passenger with the threat of dumping her on roadway. 11 In a letter to the complainant dated 11 November 1993, the taxi company stated that: "The driver of the above taxi has admitted the complaint, however, he stated he did ask the complainant if she would allow multiple hiring due to the number of passengers waiting and lack of taxis. He denied threatening her and was given a tip at the end of the hiring." 12 In oral evidence Mr Ghachame said he could not remember anything about this incident as it was 7 years ago. 13 Incident No 3. Mr Ghachame was issued with an infringement notice by the Department for an incident which occurred on 6 August 1994. The Notice stated as follows: Observed walking inside southern end of Ansett terminal, observing his actions he was saying "Sutherland- St George Area" in a clear voice. I approached. Disclosed ID and said "Why St George- Sutherland area?" He said " I do work in this Area." I said, "Are you available for hiring?" He said "I'm waiting for my cousin." I said "What is his name? Driver hesitated and said "My cousin." Infringement issued and driver ripped infringement and threw it at me." 14 In oral evidence, Mr Ghachame said he already had a passenger in the taxi and was just asking if anyone else was going that way. 15 Incident No 4. Mr Ghachame received an Infringement Notice from the Department in relation to an incident on 10 August 1994. The notice states that: Woman and baby approached driver No 1 cab, woman going to Impulse Airline (flight facilities) Driver refused fare. Told lady just up the road. Woman in hurry to connect with flight. I approached driver who suddenly accelerated cab and drove off. I obtained details approx 5.30 pm from driver at Ansett terminal when dropping off a hiring. 16 Mr Ghachame said in oral evidence that he couldn't recall this incident but that he may have refused the hiring because of the need for a baby capsule. 17 On 12 December 1994, the Department issued a show cause notice to Mr Ghachame. There is some evidence on the file that Mr Ghachame may have had further complaints made against him or infringement notices issued. For example in a letter of 21 June 1993 the taxi company wrote to the Department saying that "this is the fourth occasion that this driver has come under notice for the same offence in the last month. He has received two infringement notices from the DOT and FAC and one from an Industry Enforcement Officer." There is no other evidence of these incidents on the file. 18 On 20 December 1994 Mr Ghachame wrote to the Department apologising for his carelessness and promising to change his ways. He added that "if I am able to be given another chance I will certainly prove my case and if I have any further problems which I will guarantee not to, will accept the cancellation of my Authority Number." 19 On 1 March 1995, the Department wrote to Mr Ghachame advising him that his representations had been taken into account and that his authority would not be suspended or cancelled but he was given a Final Warning as to the need for strict compliance with the Regulations. The letter concluded that "I am obliged to inform you that should you come to adverse notice of the Department of Transport again, your Public Passenger Vehicle Driver's Authority may immediately be suspended or cancelled." 20 Incident No 5. The Department of Transport Passenger Transport Management System records a complaint by a passenger in relation to a journey on 15 January 1996. The details recorded were as follows: Driving along harbour bridge driver used mobile phone. 21 A letter dated 2 February 1996 from the network to the complainant states in part that: The driver has been spoken to, admitted using the mobile phone whilst driving and has been counselled regarding this offence. 22 Mr Ghachame said in oral evidence that he was answering a call, not making a call, and he thought that he could do so under the Regulations. Mr Ghachame agreed that he was counselled about the incident over the radio by the taxi company. 23 Incident No 6. In his evidence in chief, Mr Ghachame spoke of an incident in June 1996. The Department's chronology shows that there was a complaint made in relation to driving in a dangerous manner on 15 June 1996. I could not find any other evidence of such a complaint in the file. Mr Ghachame said in oral evidence that he was driving down Southern Cross Drive at 7.30 am and there was heavy traffic. He said he could not have been going more than about 40 kph. He denied cutting in or doing anything wrong. He volunteered that perhaps the passenger did not like his face. 24 Incident No 7. "The Department of Transport Passenger Transport Management System" records a complaint from a passenger in relation to a proposed journey from the International Airport to Marrickville on 31 August 1996. The details recorded were as follows: Taxi refused to take fare, said it was too short. Driver very annoyed, would not take fare. Driver resorted to 'flagging down" another cab to take passenger. Passenger says this is not fair on other drivers. 25 A letter dated 8 January 1997 in response to this complaint from RSL to the complainant states in part that: I have been able to identify the driver of the taxi at the time of the incident you cite but he has not responded to any requests to attend this office to discuss the matter. 26 In oral evidence, Mr Ghachame said that he was at the airport at about 2.00 pm and that he could not accept a fare to the North Shore because he had to be back at Hurstville by 3.00 pm. 27 Incident No 8. "The Department of Transport Passenger Transport Management System" records a complaint made by a motorist in relation to a journey on 26 August 1997. The details recorded are as follows: Driving very dangerously, ran complainant off road twice then given the finger signs. Chopped somebody else off. No indicators used, arm dangling out of window. Spoke to Miranda police. 28 The General Manager of the taxi company wrote a letter to the complainant dated 26 September 1997 which said, in part, that: I have interviewed the driver concerned. He agrees that his behaviour on that occasion whilst instigated by another incident was disgraceful and inexcusable and he extends his sincere apology. The driver has been reprimanded and the incident recorded on his driver's file in this Network. 29 In oral evidence Mr Ghachame said he couldn't remember saying that and that "I am under stress all the time because of long hours." 30 Mr Ghachame's driver's licence was cancelled for the period from 20 March 1998 to 21 September 1998 because of a traffic infringement while he was on a provisional licence. 31 Incident No 9. On 30 June 1998, the Local Court found Mr Ghachame guilty of two offences, namely "Fail to Produce Authority" in breach of Regulation 19(2) and "Leaving Drivers Seat Without Reasonable Cause" in breach of Regulation 25. The only evidence of these incidents is a letter on the file from the solicitors acting on behalf of the Department reporting the outcome of the proceedings. 32 Mr Ghachame offered an explanation that he forgot to put his authority card on display. He said the officials never accept any excuse and he did not want to pay a $150 fine. 33 Incident No 10. Mr Ghachame received an infringement notice from the Department of Transport and was fined $150.00 for "smoking while in taxi" on 6 October 1998. Mr Ghachame said in oral evidence that he did not know about the no smoking regulations at that time. 34 Incident No 11. An RSL Customer Complaint Form records the following information relating to a journey on 17 October 1998 from the International Airport to Greystanes: Lady and 2 friends picked up cab from airport and for most of the ride home driver was rubbing their legs. Didn't have a bubble so kept reaching round. He was continuously asked to stop and his response was I am only being friendly. 35 The complainants also wrote to the Department on 25 November 1998 saying, in part, that: My friend and I were both sitting in the back seat of the taxi, and during our journey the driver continually reached over into the back seat and touched our legs with his hand. We asked on numerous occasions to stop touching us and he said he was only being friendly, so we just tried to move to avoid his hand. 36 A memorandum dated 2 December 1998 records that: Mr Ghachame was interviewed over the above complaint, he denied the allegations, however he stated that he may have brushed one of the passenger's legs whilst he was looking for his street directory on the back floor. 37 In a letter dated 3 January 1999, Mr Ghachame's responded to the complaint in the following way: When I picked up the two female passengers at the International Airport, they said that the fare would be very expensive and they asked me how they could get a discount on the fare. By their conversation and manner, I believed they were being very friendly towards me and encouraged me to be friendly to them. The passengers did not object to this and they encouraged me to do so. The passengers did not complain at the time but were very friendly towards me for the whole journey. I now know that I misunderstood the situation and regret the incident. 38 In relation to this letter, Mr Ghachame said it was written by an RSL Manager on his behalf. He said he read through the letter and signed it but he does not agree with its contents. Mr Ghachame said he made a big mistake to allow the RSL Manager to write the letter for him. 39 Mr Ghachame said in oral evidence that the street directory which was between the two front seats, slipped down onto the floor of the back seat when he pulled off. He said he reached back to pick up the directory and "accidentally touched the leg" of one of the passengers. He said that the two women were complaining about the expense and asked for a discount. He told them he could not give them a discount. He said they might have complained about him because he refused to give them a discount. 40 Incident No 12. The history of this incident is not entirely clear from the documentary or the oral evidence. The Department alleges that Mr Ghachame knowingly allowed his network personal identification number (PIN) to be used by another taxi driver on 12 and 13 June 1998. At that time, Mr Ghachame did not have a valid driver's licence. In a letter of 3 January 1999 Mr Ghachame wrote to the Department that: I deny driving a taxi whilst my licence was cancelled. I do admit that I gave my pin number to a friend who worked one shift using it. On one other occasion I signed into the radio network for approximately 10 minutes to show a friend how to use the radio. 41 Mr Ghachame said in oral evidence that he enters his PIN into the computer at the start of a shift. He said that on the day in question (presumably 12 June 1998) he and a group of friends were at someone's house and another friend, who was also a taxi driver, came to the house to have a break from driving. Mr Ghachame says that he went out to his friend's taxi about 6 or 7 o'clock at night, or maybe earlier, and entered his PIN number into the computer to see how many jobs were listed on the computer. He says he did this out of curiosity to see how busy it was. He said he forgot to sign off and his friend drove the taxi using his PIN number. He rang his friend the next day at about 10 or 11 o'clock in the morning and told him to sign off because his PIN number was still entered. The friend said he had already signed off. Mr Ghachame says he was never charged for this offence. The printed statistics of the driver's activities in relation to Mr Ghachame's PIN show that the PIN was entered at 22.48, that is 10.48 in the evening. 42 Traffic record. Mr G's traffic offences are a matter of record and are not denied. He has been given a total of 17 infringement notices since January 1990. The infringements include: not wearing a seat belt; speeding; disobeying traffic lights and making unlawful U turns. He has lost his points on four occasions which has resulted in period without a licence. 43 Mr Ghachame provided several references as to his good character. Findings of fact 44 On the basis of the file and the oral evidence, 12 alleged incidents were identified. I need to make findings in relation to these incidents before proceeding to determine whether the Department was right to have lost confidence in Mr Ghachame's fitness to drive a taxi. 45 The first incident related to driving in an unsafe manner. No details of the alleged circumstances are apparent from the file nor was any other evidence provided. Mr Ghachame denied any recollection of the alleged incident at the time. There is insufficient evidence in relation to this incident for me to take it into account. 46 There is no direct evidence, either written or oral, from the complainant in relation to the second incident. While Mr Ghachame remembers this incident, his version is different from that recorded on the file. Again there is insufficient evidence which would persuade me to find that this incident occurred as recorded in the file. 47 There is direct written evidence from the relevant officer in relation to the third incident. That account details the words allegedly spoken by the officer and by Mr Ghachame at the time. In oral evidence, Mr Ghachame gave a different account of his actions than was recorded by the officer at the time. In these circumstances I am prepared to accept the written account of the officer as a true account of what occurred. 48 The fourth incident also involved an infringement notice from an officer who recorded details of the incident at the time. Given Mr Ghachame's unlikely excuse in oral evidence that the woman might have wanted a taxi with a baby capsule, I am prepared to accept the officer's record as an accurate account of this incident. 49 Mr Ghachame did not deny using a mobile phone while driving and I find that he did so. 50 In the absence of any direct evidence of the nature of the allegations relevant to the sixth incident, I have not taken that incident into account. 51 The seventh incident was based on a complaint from a passenger going to Marrickville that the driver refused to take her fare because the distance was too short. Apparently Mr Ghachame did not respond to requests from the taxi company to attend an interview about this matter. In oral evidence he gave an account of being at the airport at about 2.00 pm and said that he could not accept the fare because the passenger wanted to go to the North Shore and he had to be back at Hurstville by 3.00 pm. Given the discrepancy in relation to destinations I am not satisfied that Mr Ghachame was referring to the same incident. As there is no satisfactory explanation from Mr Ghachame either on the file or in oral evidence in relation to this incident, I am prepared to accept the details recorded in the file as an accurate account of what happened. 52 Documents in the file suggest that the applicant accepted the substance of a complaint of dangerous driving and giving "the finger sign". Although he couldn't remember agreeing to the substance of the complaint he did not deny that it had occurred and I accept the complainant's account of the incident. 53 Mr Ghachame was convicted for "Fail to Produce Authority" and "Leave Drivers Seat Without Reasonable Cause." There is no evidence of the circumstances of these offences recorded on the file, nor did Mr Ghachame's oral evidence enlighten me on this point. 54 I accept that Mr Ghachame was smoking while in the taxi on 6 October 1998. 55 The incident alleging that Mr Ghachame continually touched the legs of two female passengers is based on a letter from one of the women. Initially Mr Ghachame denied the allegation but said that he may have brushed one of the women's legs while reaching for a street directory. This is the same explanation that Mr Ghachame offered in oral evidence. I am not inclined to accept that this is a truthful account because Mr Ghachame signed a letter written by a taxi company official, which gave a different impression of the incident. If the version about the street directory is true, then Mr Ghachame would not have signed a letter indicating a different explanation with no mention of the street directory. Consequently I am prepared to accept that this incident occurred as outlined by the woman in her letter of complaint. 56 I have come to a similar conclusion in relation to the unauthorised use of Mr Ghachame's PIN. The Department's records show that the PIN was used by another driver on a least one occasion. Mr Ghachame wrote a letter saying "I do admit that I gave my pin number to a friend who worked one shift using it." This is not consistent with his oral evidence which was that he put his PIN into the taxi because he was curious as to how busy it was. This is an extremely unlikely scenario as Mr Ghachame did not have a driver's licence at the time and was not driving taxis. Consequently I accept that Mr Ghachame knowingly allowed another driver to use his PIN on at least one occasion. Respondent's Submissions 57 According to Mr Wozniak, the most significant complaint is that Mr Ghachame continually touched the legs of two female passengers. In addition, he has been the recipient of numerous less serious complaints and infringement notices as well as 17 traffic offences over a period of 10 years. 58 He shows no sign of remorse and appears unable to change his ways despite a warning letter in 1994. After that letter he went on to accumulate two convictions a reprimand and four written complaints. Applicant's submissions 59 Mr Mayell submitted that Mr Ghachame has already been more than 18 months without an authority and it is too severe a punishment for him to continue to be deprived of his authority. Punishments are generally for a fixed period, according to Mr Mayell and even if the Director General's decision is upheld, the Tribunal should consider recommending that consideration be given to granting an authority in the future. 60 Mr Mayell also made the point that Mr Ghachame would have been prosecuted for assault in relation to touching the passenger's legs if there had been sufficient evidence supporting those allegations. 61 Finally, Mr Mayell submitted that Mr Ghachame has successfully obtained a security licence and since he is considered a fit and proper for that occupation, he should be considered to be a suitable taxi driver. Reasoning and decision 62 The provisions of the Act require that the Director General be able to attest that any person holding an authority is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. In addition, the Director General must be able to attest that the person has sufficient responsibility and aptitude to drive a taxi. 63 A question which arose in these proceedings is the punitive effect on Mr Ghachame of not granting him an authority. There are several avenues by which a taxi driver can be punished, including being issued with infringement notices, being temporarily suspended from driving and being prosecuted for breaches of the Regulations or of the criminal law. The ability to suspend, cancel or refuse to grant a person's licence, while having a punitive effect on a driver, is predominantly designed to protect the public. In Hoban v Davey (1972 1 NSWLR 59) Sugerman J at 63-6 and Mason JA at 72, characterised provisions under the Commercial Agents and Private Inquiry Agents Act 1963 in a similar way. Sugerman P said at 65 and 66 that: The scope and purpose of the Commercial Agents and Private Inquiry Agents Act , and in particular of the restrictions on licensing contained in s 10(10) thereof and the provisions for cancellation of licences and disqualification of the holders in ss 11-14, seem to be predominantly the protection of the public rather than the punishment of offenders. . . . In the Act at present in question either permanent disqualification or disqualification for a period specified by the court is available for matters which so obviously concern the protection of the public as that the agent is not of good fame and character or is not a fit and proper person to hold a licence. 64 On the basis of this analysis, I do not accept the applicant's submission that Mr Ghachame has been adequately punished for the incidents in question and that an authority should be re-issued on that basis. The real question is whether Mr Ghachame has the requisite character, reputation, responsibility and aptitude to meet the public's reasonable expectations of taxi drivers. 65 Two of the incidents which I have found proved against Mr Ghachame are of such a minor nature that they should not influence any decision I make. These incidents are smoking while in the taxi and using a mobile phone. Both are minor, one-off breaches which, on the evidence, have not been repeated. 66 Three of the incidents involve touting for extra passengers or refusing short journeys. Again these are relatively minor offences, but nevertheless must be weighed in the balance when considering Mr Ghachame's fitness to hold an authority. 67 Two of the incidents involve abuse of either a passenger or an official. These are more serious offences which again, must be weighed together with the other incidents. 68 One of the incidents involves dangerous driving. In addition Mr Ghachame has an unfavourable traffic record. 69 The incident involving touching the legs of two passengers is the most serious. The public does not expect to have to tolerate this kind of behaviour. The incident with the PIN suggests that Mr Ghachame is not entirely honest in his conduct as a taxi driver. 70 The final consideration is Mr Ghachame's inability to change his ways after a clear warning in 1994. He understood that he may lose his authority if he breached Regulations or behaved or drove in an inappropriate manner. 71 There are several factors which, in combination, lead me to conclude that the Director General's decision to refuse Mr G's application for an authority should be affirmed. These factors are: * a history of complaints and infringements; * a less than satisfactory traffic record; * a finding of sexual harassment; * Mr G's inability to accept responsibility for his conduct or show remorse; and his proven inability to change his ways