CITATION: Liu v Ministry of Transport [2007] NSWADT 244 DIVISION: General Division APPLICANT PARTIES: Leslie Liu RESPONDENT Ministry of Transport FILE NUMBER: 063446 HEARING DATES: 14 August 2007 SUBMISSIONS CLOSED: 14 August 2007 EXTEMPORE DECISION DATE: 14 August 2007 DATE OF DECISION: 5 October 2007 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 CASES CITED: Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 APPLICANT In person REPRESENTATION: RESPONDENT A Wozniak, solicitor ORDERS: The decision under review is affirmed REASONS FOR DECISION 1 Mr Liu has applied to the Tribunal for a review of a decision of the Director General, Ministry of Transport to cancel his authority to drive a taxi-cab. The trigger for the cancellation was that Mr Liu's had been the subject of numerous complaints from passengers. In addition, Mr Liu had been charged with the offence of indecent assault. He has subsequently been convicted of that offence. 2 An internal review of the decision to cancel his authority was carried out and the original decision was affirmed. 3 Mr Liu then sought an external review of the determination. The matter came before me for hearing on 14 August 2007. At the conclusion of the hearing I determined that the decision under review should be affirmed and I gave brief reasons for my decision. Mr Liu has requested written reasons for my decision and these reasons are provided in response to that request. The Applicable Law 4 Section 33 of the Passenger Transport Act 1990 ("the Act") provides: 33 Authorities (1) The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units. (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. (4) The regulations may create categories or grades of authorities. (5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a taxi-cab is being driven to a place to have it repaired or serviced. 5 Section 33F of the Act provides: 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. 6 Pursuant to Section 52(1) of the Act a person whose application has been refused or whose accreditation or authority has been varied, suspended or cancelled, may apply to this Tribunal for a review of that decision. 7 The issue in this case is whether the Ministry made the correct and preferable decision in cancelling Mr Liu's authority. The Ministry's case 8 Mr Liu has been the subject of numerous complaints as a taxi-cab driver. The Ministry's relies on its file relating to those complaints. The details relating to those complaints are set out in the statement of reasons for the original decision in the following terms: COMPLAINT HISTORY 24 July 2006 A complaint was received by Premier Taxi network from a female who stated that she caught taxi T3871 from the city to Alexandria. The complainant states that the driver was speeding and driving in an unsafe manner. Premier network has identified Leslie Liu driver's authority EX4709 as the driver of that vehicle. The Premier network interviewed you and advised you that you would never drive a Premier cab again. Premier forward this complaint to the Ministry for further investigation. 30 January 2006, a complaint was received by Taxis Combined network where the complainant caught taxi T3953 and stated that driver kept closing his eyes along the way, nearly crashing into a median strip. The complainant wanted to get out but the taxi kept going. Taxis combined has identified Leslie Liu Drivers authority EX4709 as the driver concerned and interviewed you. Taxis Combined were pursuing this matter but could no longer contact the complainant so no further action was taken. 25 January 2006 a complaint was received by Taxis Combined network where the complainant stated that he usually pays around $22.00 for a previous trip. This trip cost $26.70 and with the 10% surcharge for Eftpos the total was $29.64. It is alleged the driver took the long route -through William Street, Ocean Street, Old South Head Road to get to Bondi. When the complainant asked the driver why he just said 'it's on the meter' in a huff. Taxis Combined identified the taxi as T3232 and identified the driver as Leslie Liu driver's authority EX4709. The manager of the Taxi Combined Services enforcement area interviewed you about this complaint. You stated that he (sic) took the route as indicated by the passenger. No further action due to conflicting statements. 23 January 2006 a complaint was received by Taxis Combined network, the complainant stated that he caught taxi T3232 from the rank outside W Hotel at Woolloomooloo at 2310 on 23 January 2006 and was going to the corner of Maclay and Greenknowe at Potts Point: The usual fare is about $5.80. However the driver charged $8.70 Taxis Combined network identified Leslie Liu drivers authority EX4709 as the driver. Taxi Combined interviewed you over this incident and took no action due to conflicting statements. 12 December 2005 a complaint was received by Taxis Combined network, the complainant caught taxi T4531 and stated that the taxi driver became irritated with the complainant when she questioned why the meter suddenly jumped from 39.00 to 45.00 within the last 200 meters. The driver was also asked to provide a receipt for the electronic cabcharge card payment, as one was not provided. The driver refused to supply the requested receipt. Taxis Combined network identified Leslie Liu driver's authority EX4709 as the driver and interviewed you about this complaint. Taxis Combined reprimand you for failure to provide reasonable assistance to the customer and failure to issue a receipt on request. The demand more than the prescribed fare was not justified due to conflicting statements. 6 October 2005 a complaint was received by Taxis Combined network, the complainant caught taxi T3232 and observed drivers authority of "4709." The complainant believed he was overcharged for the journey undertaken. The usual fare is around $25.00 the driver on this occasion charged $35.00 Taxis Combined identified you as the driver. Taxi Combined interviewed you however did not pursue the matter any further. 4 October 2005 a complaint was received by Taxis Combined network, the complainant caught taxi T3232 and stated that he was picked up from City and taken to Mosman the fare is usually $25.00 at the most and this time the fare was $31.00. The complainant always takes the same route. Taxis Combined identified Leslie Liu drivers authority EX4709 as the driver. Taxis combined interviewed you and reprimanded you over the incident. 1 August 2005 a complaint was received by Taxis Combined network, the complainant caught taxi T1833 and stated he was in the taxi when the taxi sideswiped a parked car and broke the mirror. There was a loud scraping noise but the driver maintained that he merely nicked the other car. Taxis Combined identified Leslie Liu drivers authority EX4709 as the driver. Taxi Combined interviewed you but you denied the allegation however Taxis Combined reprimanded you over the incident. 25 July 2005 a complaint was received by Taxis Combined network, the complainant caught taxi T 1833 and stated that the driver nearly hit a car while driving along Parramatta Road and when that car tried to follow the taxi, the driver actually swerved trying to run him off the road. Taxis Combined identified Leslie Liu drivers authority EX4709 as the driver. Taxi Combined interviewed you over the Incident. You denied the allegations. Taxis combined reprimanded you for driving in an unsafe manner. 24 January 2005 a complaint was received by Taxis Combined network, the complainant stated that at approximately 1.30am on 24.1.05, the complainant hailed a taxi T5372 in Grosvenor Street and sat in the front seat and directed the driver to take her to Manly. During the course of the journey the complainant fell asleep and was awoken to find the driver touching the complainant's body inappropriately. The complainant paid the driver with Cabcharge card and after some dispute, obtained a receipt and left the cab. On arriving home, the complainant went to her bag to use her mobile phone which is housed in a special compartment, in order to make a call for support and found it missing Apart from the inappropriate sexual touching and the loss of her phone, the complainant knew from experience that the fare was excessive. Taxis Combined identified Leslie Liu drivers authority EX4709 as the driver. Taxi Combined interviewed you and did not take any action due to conflicting statements. 9 November 2004 a complaint was received by Taxis Combined network, the complainant caught taxi T 5372 and stated that the driver overcharged the complainant, usually the fare is $10.00 but this journey the fare was $14.90. Taxis Combined identified you as the driver and interviewed you over this incident. You could not recall the incident and no further action taken. 22 September 2004 a complaint was received by Taxis Combined network, the complainant caught taxi T9138 and stated that he (sic) takes a journey from Roseville to Cammeray every day it costs her around $12 and on this journey it was $16. It is also alleged that the driver was also speeding 90 in 60 zone. Taxis Combined identified Leslie Liu drivers authority EX4709 as the driver and interviewed Lui. You denied all the allegations, however Taxis Combined reprimanded you for demanding more than the prescribed fare and no action on the speeding allegation due to conflicting statements. 7 September 2004 a complaint was received by Taxis Combined network, the complainant caught taxi T3007 and stated that she was overcharged for the journey as the fare is usually $15 and this journey was $20. She paid by EFTPOS and she waited for the receipt and when she went to check the meter the driver had already cleared it. Taxis Combined identified Leslie Liu drivers authority EX4709 as the driver and interviewed Lui over this incident. You denied all the allegation however Taxis Combined reprimanded you for demanding more than the prescribed fare and took no action on the others due to conflicting statements. 8 August 2004 a complaint was received by Taxis Combined network, the complainant caught taxi T3007 and stated that the meter was $5 on arrival but then the driver hit the meter it was $6.15. The complainant stated that he gave the driver $11.10 and said give me $5 change. The complainant stated that the driver gave him $4 change. The complainant told the driver that he was going to report the driver and then the driver drove off with the door open. Taxis Combined identified Leslie Liu Drivers authority EX4709 as the driver. You were not interviewed in relation to this matter as Taxis Combined did not pursue the complaint. No action was recorded. 4 August 2004 a complaint was received by Taxis Combined network, the complainant stated that he hailed taxi, T3007; complainant alleges the meter was running too quickly. The usual fare is around $3.65 - $4.10 but for this journey the driver charged $6.00. Taxis Combined identified Leslie Liu EX4709 as the driver and interviewed you over this incident. You could not recall the incident and you claimed that you would never charge more than the metered fare. Taxis Combined reprimanded you over this breach. 22 September 2003 a complaint was received by Taxis Combined network, the complainant caught taxi T5372 and stated that he took a cab from Bondi Junction to his office in Foveaux Street. Upon approaching the set of lights before the building, the complainant glanced at the meter, which read $10.50, at the destination the driver turned off the meter completely and then asked the complainant for $14.00. The complainant told the driver that he thought he was mistaken as another 10 metres would not cost another 3.50, and the driver told the complainant that he should've also added a few extra dollars on because the complainant was paying with Cabcharge and that the complainant was getting it cheap. The complainant then told the driver that Cabcharge were the ones to add their extra percentage on not the driver. The driver then relented and asked the complainant for $12.00. Taxis Combined identified Leslie Liu drivers authority EX4709 as the driver. Taxis Combined did not pursue this due to conflicting statements. No action recorded. 1 June 2003 a complaint was received by RSL taxi network, the complainant caught taxi T7940 and stated that he hailed the taxi at Edgecliff Road Woollahra going to Jersey road Woollahra, complainant said the taxi was filthy he could not see the meter until the end of the journey when he was charged $7.60; complainant said his fare is never more than $6.00 maximum. The complainant said the driver had no identification showing RSL network identified Leslie Liu driver's authority EX4709 as the driver but did not pursue the incident. 9 On 13 April 2006 Mr Liu was charged with assault with act of indecency. This charge related to the incident recorded on 24 January 2005. Mr Liu was convicted of that offence. He has appealed the conviction but the appeal has not yet been determined. The Ministry contends that the conviction is sufficient reason to cancel the authority. However, Mr Wozniak argues that even if Mr Liu's appeal is successful, the complaint history. He has been charged with 17 offences in regard to driving a taxi after his authority was cancelled. Court Appearance Notices have been issued in relation to those charges. 10 Mr Wozniak contends that if Mr Liu is to be the holder of an authority it is necessary that the reviewer is able to attest to Mr Liu being of good repute and in all other respects fit and proper to drive a taxi-cab. He argues that in light of the evidence provided on behalf of the Ministry there can be no finding of good character except upon solid or substantial grounds. Mr Wozniak says that the complaint history demonstrates deficiencies in conduct over a period of time. These matters reflect poorly on Mr Liu's character and the Tribunal could not positively attest that Mr Liu is a person of 'good repute' within the meaning of section 33(3)(a) of the Act. Similarly it could not positively attest that Mr Liu is a fit and proper person to be authorised to drive a taxi-cab. 11 Mr Wozniak says that a member of the public, travelling in a taxi-cab driven by Mr Liu and being aware of all the matters known to the Tribunal, would object to Mr Liu being authorised to drive that taxi-cab. He submits that the Ministry made the correct and preferable decision in cancelling Mr Liu's authority and therefore it should be affirmed. Mr Liu's case 12 Mr Liu argues that he has provided an explanation in regard to the various complaints. He denies that he has ever charged higher than the metered fare. He also denied the allegations of unsafe driving. He points to a response that he provided to the Ministry in regard to the allegations that is contained within the Ministry's file. 13 Mr Liu also denies that he is guilty of the offence for which he has been convicted and says that he has appealed the conviction. He says that in light of the fact that the conviction is under appeal, that matter should no be used as a basis for cancellation of his authority. 14 Mr Liu relies on character references provided on his behalf by Mr James Zhou and Mr Michael Chan. Each indicated that he is a person of honesty and good character. Neither referred to his history of complaints or his conviction. Findings 15 The Ministry's power to cancel a driver authority is under section 33F of the Act. A person's authority may be varied, suspended or cancelled having regard to the purpose of authorisation. Section 33 of the Act provides that the purpose of an authority is to attest 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 in accordance with the conditions under which the taxi-cab service concerned is operated, and in accordance with law and custom. 16 The issue to be determined is whether or not, in view of Mr Liu's conviction and the other allegations against him and the effect they have on his reputation and the public's perception of his fitness to drive taxis, the Ministry's decision to cancel Mr Liu's authority was the correct decision. 17 It is not in dispute that Mr Liu has been convicted of an offence of indecent assault and that he has been the subject of numerous complaints. Mr Liu has provided an explanation with respect to the majority of the incidents raised by the Ministry and has disputed the allegations brought against him. He has also appealed against his conviction. 18 I am satisfied that it is probable that there is some merit in at least some of the complaints of overcharging made against Mr Liu, notwithstanding that he disputes them. However, even if there were no merit in any of those allegations, it is my view that the fact of his conviction is sufficient reason to cancel his authority. 19 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] – [18] the Tribunal's Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority as follows: "17 Taking into account the terms of the legislation and the case law interpreting similar provisions, 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. 18 In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers." 20 I accept that Mr Liu has been convicted of a serious offence. It is highly significant that the offence occurred while he was engaged in his role that is authorised by the authority that he is seeking to retain. 21 Mr Liu has also been subject of numerous, serious complaints. In my view the circumstances in which those complaints occurred and his lack of acceptance of any wrong doing suggest that it is likely that he would be the subject of further complaints if he was able to retain his authority. 22 In Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165 the President of the ACT Administrative Appeals Tribunal put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing this way: "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 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." 23 In the present circumstances that test can be applied appropriately with the relevant member of the public travelling in a taxi driven by Mr. Liu. On balance, it is my opinion that a member of the public, knowing Mr Liu's conduct would object to Mr. Liu being the taxi driver. In my view the nature and seriousness of Mr Liu's conduct outweighs the factors that are in Mr Liu's favour. 24 Having weighed the evidence, I am not satisfied that the travelling public would be comfortable with Mr. Liu as a taxi driver. At this point in time I cannot attest that Mr Liu is a fit and proper person to hold a licence. Order The decision under review is affirmed 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.