Husain -v- Director General, Department of Transport [1999] NSWADT 136

CITATION: Husain -v- Director General, Department of Transport [1999] NSWADT 136

DIVISION: General

APPLICANT: Sayyed Rahil Husain

RESPONDENT: Director General, Department of Transport

FILE NUMBER: 993224

HEARING DATES: 11/12/1999

SUBMISSIONS CLOSED: 11/12/1999

DATE OF DECISION: 16 December 1999

N Hennessy - Deputy President BEFORE:

PRIMARY LEGISLATION: Passenger Transport Act 1990

APPLICATION: Review of decision to cancel taxi-cab authority -

MATTER FOR DECISION: Principal matter

Applicant: K Ramrakha, solicitor, Ramrakha Jenkins REPRESENTATION: Respondent: A Wozniak, solicitor, Smythe & Mallam

ORDERS: 1. Respondent's decision affirmed.

Background 1 On 30 September 1999 Mr Husain lodged an application with the Tribunal for a review of a decision made by the Director General of the Department of Transport (the administrator). That decision was to cancel Mr Husain's authority to drive taxi cabs because of concerns over his mental health. An internal review of that decision conducted on 30 June 1999, affirmed the original decision. 2 The first issue raised at the hearing was the fact that Mr Husain's application to the Tribunal was out of time. I gave oral reasons for accepting the application out of time pursuant to s 57(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Legislation and issues 3 Section 14 of the Passenger Transport Act 1990 allows the Director General to cancel a driver's authority having regard to the purpose of that authority. 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. 4 The issue in this case is whether, in the light of the responsibilities and expectations of a driver, Mr Husain is a "fit and proper person" to hold a taxi authority. Being a "fit and proper person" includes being of "good repute." Findings of fact 5 Mr Husain did not give any oral evidence but tendered a short statement. The main evidence in the proceedings consisted of three medical reports, the Department's file and three cassette tapes of conversations Mr Husain had with various taxi network employees over a period of two days in April 1998. Mr Husain did not dispute the Department's factual allegations. 6 Mr Husain had been driving taxis for approximately 14 months when two incidents occurred within two days. The first incident occurred on the evening of 2 April 1999 and the early hours of 3 April 1999 when the radio operator, "Kevin" recalled a job that had been given to Mr Husain. Tape recordings of several conversations Mr Husain had during the course of the evening were played at the hearing. 7 The tapes recorded Mr Husain firstly speaking to the radio operator who recalled the job and ascertaining that his name was Kevin. The second conversation recorded Mr Husain telephoning a supervisor in the radio room and asking for an explanation as to why the job had been recalled. Mr Husain shouted at the supervisor despite being requested to calm down. He then said that he was coming to the base to talk to the supervisor. 8 The next part of the tape records Mr Husain speaking to Kevin. He repeatedly shouted at Kevin words such as "I will kill you, I will not go home until I see you. Come out and see me. I will definitely kill you. You pulled the bread out of my hands." These words were shouted in an extremely aggressive and intimidating manner. 9 The fourth extract from the tape records another telephone call using the emergency line. He was asked why he was using the emergency line and eventually asked to be rung back. The last section on the tape records Mr Husain as using words such as "Is this Kevin? If you had any guts you would come out and see me. I want to kill you Kevin. I tell you bastard . . . I'm not going home. I will kill him. I will drink your blood." When Mr Husain was making these threats his tone of voice was very loud and intimidating. 10 The second incident occurred the next evening, 3 April 1999. The evidence discloses that on that night Mr Husain picked up a passenger from the city and took her to Austinmer. She made a complaint about Mr Husain's conduct in a Customer Complaint Form dated 6 April 1999. She said that she felt uncomfortable throughout the trip because the driver asked her to sit in the front with him and asked her to pay him whatever she thought the fare should be. She said that after dropping her off Mr Husain returned a few minutes later and knocked on the door and gave her his card. He then left but stayed parked in the driveway for 5-10 minutes. None of this evidence was contradicted by Mr Husain. 11 Later that night, at about 11.30 pm, Mr Husain rang the radio operator and complained that another driver had taken the passenger from the city to Austinmer when it should have been his booking. The tape of this conversation records Mr Husain shouting at the operator saying words such as "What the fuck are you talking about, you took away the job." The operator, who had also had conversations with Mr Husain the previous night, said she wasn't going to put up with his abuse and swearing. 12 Mr Husain did not give any evidence or offer any explanation as to why he rang and complained that someone else took the booking when he had taken the fare himself. He did concede, through his solicitor, that his behaviour was irrational and that "he was trying to test them." In the absence of any further explanation I find that Mr Husain's conduct was dishonest, irrational and intimidating. 13 Mr Husain was interviewed by network staff and was quoted by Fred Lukabyo in a file note following the interview as saying "He expressed some regret that what he had done may have been wrong but feels it was warranted under the circumstances." In another note on the file dated 8 April 1999 Mr Lukabyo, stated that: "Mr Husain first said that he was being treated by his doctor for mental illness then when questioned by Mr Biggs denied that and said that he was taking medication. He later said that the medication was for Blood Pressure but he did explain that, based on the medical evidence, namely reports from Dr Ho dated 29 May 1999 and Dr Ishrat Ali dated 21 October 1999 and 2 June 1999, there is no evidence that the applicant has a mental illness or impairment. 14 Mr Husain wrote an undated letter to the Department saying that "I can guarantee the Department of Transport that this incident is never going to happen again. I can also write an apology letter to the operator." He did write an undated letter of apology to the radio operator concerned apologising for his behaviour on the evening of 3 April 1990. Mr Husain provided medical evidence which I accept that he has no obvious mental illness. Application of law and decision 15 In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393) Waddell J stated that: 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. . . 16 Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that: "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." 17 Mr Husain did not provide any evidence of good repute such as character references. Whether or not he is a fit and proper person to hold a taxi authority is a value judgment that I must make. Conclusion 18 Mr Husain conducted himself in an extremely threatening and irrational manner on two separate occasions in April 1999. This behaviour was directed towards network employees. The behaviour of taxi drivers towards network employees is relevant to their fitness to hold a taxi authority. The network system cannot function effectively if drivers are threatening violence and being dishonest. 19 Mr Husain has apologised for his behaviour and 'guaranteed" the Department that it will not occur again. Given that Mr Husain has been unable to provide any rational explanation whatsoever for his outbursts, I do not accept that the behaviour will not occur again. 20 I have no hesitation based on all the evidence in concluding that Mr Hussain is not a fit and proper person to be the driver of a public passenger vehicle. Consequently the administrator's decision to cancel his authority is affirmed.