Mikhael v Ministry of Transport [2006] NSWADT 11

CITATION: Mikhael v Ministry of Transport [2006] NSWADT 11

DIVISION: General Division

APPLICANT PARTIES: Latif Mikhael RESPONDENT Ministry of Transport

FILE NUMBER: 053338

HEARING DATES: 31/10/05

SUBMISSIONS CLOSED: 10/31/2005

DATE OF DECISION: 01/09/2006

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 : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165 CASES CITED: Paulus v Director General, Ministry of Transport [2004] NSWADT 175 Ratay -v- Director General, Department of Transport [2003] NSWADT 40 Saadieh v Director General, Department of Transport [1999] NSW ADT 68

APPLICANT D Carbone, solicitor REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: The decision under review is affirmed

REASONS FOR DECISION 1 Mr Mikhael is a Taxi driver who has held a driver authority since May 1994. In August 2005 the Ministry issued a notice for Mr Mikhael to Show Cause as to why the Ministry should not cancel his driver authority. This notice was issued after the Ministry received a complaint alleging Taxi Transport Subsidy Scheme ("TTSS") fraud. 2 The complainant alleged that Mr Mikhael took 9 dockets from the complainant's TTSS book. Mr Mikhael admitted to taking the TTSS dockets and indicated that he had done so to help the complainant with money as she was going on holidays. He also admitted that he has a gambling problem. 3 In September 2005 the Ministry determined to cancel Mr Mikhael's driver authority under section 33F of the Passenger Transport Act 1990. This decision was taken on the basis that it could no longer be attested that Mr Mikhael is considered to meet the required standards for authorisation as a taxi driver. 4 Mr Mikhael applied to the Tribunal for a review of the Ministry's determination to cancel his authority. The matter was heard and determined on 31 October 2005. At that time I affirmed the Ministry's determination and gave brief reasons for my decision. Mr Mikhael has requested written reasons for the decision and these reasons are provided in response to that request. The Ministry's Case 5 There is no dispute as to the facts of this matter. The Ministry asserts that it is clear from the facts that Mr Mikhael has failed to comply with the standards that are required for authorisation as a taxi driver. 6 Mr Wozniak points to a number of complaints that relate to the fares that Mr Mikhael charged his passengers. In March 2001 Mr Mikhael was warned in relation to complaints that he had demanded more than the prescribed fare. More recently the Ministry received a complaint that Mr Mikhael had duped an elderly passenger into handing over her TTSS docket book and had taken 9 dockets from the book. The passenger had complained to the Ministry on the same day. 7 Mr Wozniak stated that the Ministry elected not to prosecute Mr Mikhael in relation to this matter because it was likely that the complainant would be unable to attend as a witness on behalf of the Ministry due to her age and frailty. 8 Mr Wozniak has referred to a number of authorities that provide some guidance as to how the Tribunal has dealt with other drivers where the issue of fraud has been considered. He points to the decisions in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 as authority for the approach to be taken in determining the issue of a person's fitness and propriety. He submits that whether a person is fit and proper is a value judgment to be made based on consideration of the seriousness of the person's conduct, keeping in mind the activities that they will be engaged in if their authority is returned. In this context, Mr Wozniak contends that in light of Mr Mikhael's conduct he cannot be considered to have the qualities required of a taxi driver and therefore he is not a fit and proper person to hold the authority. 9 In Paulus v Director General, Ministry of Transport [2004] NSWADT 175 it was alleged that the applicant had falsified TTSS dockets and received payment as a result of the presentation of the falsified dockets. Mr Wozniak referred to paragraph 46 of the decision where Higgins JM stated: "46 In this case, the nature of the conduct engaged in by Mr Paulus is serious as it constituted dishonesty, which is contrary to one of the fundamental requirements of the fitness and propriety of a person to be accredited or authorised under the PT Act. While Mr Paulus' sentiment that he wanted to assist the elderly passenger is to be commended, he was clearly not motivated by this alone. He deliberately inserted false details on the TTSS dockets and the TTSS passenger and Mr Paulus received a benefit that they were not entitled to. Government resources are limited and where Government schemes, designed to subsidise those with special needs, are abused through dishonesty, it is those with these special needs who ultimately suffer." 10 Mr Wozniak submitted that it is particularly significant that Mr Mikhael's conduct occurred while he was carrying on the activity that is authorised by his driver authority. He referred to paragraph 46 of the decision in Ratay -v- Director General, Department of Transport [2003] NSWADT 40 where Molony JM stated: "22 In Mr Ratay's case the real issue is whether the seriousness of the offences to which he has pleaded guilty, and which he admitted committing to the Tribunal, are such that he is not a fit and proper person to hold operators accreditations and a drivers authority. There is no suggestion that his driving record or client complaints justify the cancellations. The offences he committed involve a minimum of 140 instances of the fraudulent alteration of DVA dockets, over a period of six months. They are offences directly related to his roles in the passenger transport industry. His explanation for this conduct, as arising from his frustration with the DVA, does not justify or explain the fact that he engaged in a targeted and deliberate fraud of a significant client." 11 Mr Wozniak further submitted that the Tribunal should note that in an interview on 15 August 2005 Mr Mikhael had indicated that he had a gambling problem, and that the money from the dockets went into gambling, and that there is no evidence that Mr Mikhael has been cured of that problem. In the circumstances he argues that the decision under review should be affirmed. Mr Mikhael's Case 12 Mr Mikhael has provided a number of testimonials that attest to his good character. He has also provided advice from a psychologist in relation to the problem gambling counselling that he has received. Mr Carbone submitted that the Tribunal should take these into consideration along with the fact that Mr Mikhael does not have a criminal record. 13 Mr Mikhael has acknowledged that he made an error of judgement in relation to the dockets and accepts that the incident is relevant to whether he is to be considered a fit and proper person to hold a driver authority. He conceded that he had a gambling problem and that the money from the dockets went into gambling but says that it was the second time that he had conveyed the complainant and she had given him her mobile phone number. He intended to perform the service for which he took the dockets and in fact was seeking payment in advance. He gave the assurance that it was a one off incident and it will not happen again. He also acknowledged the earlier incidents of overcharging. 14 Mr Carbone said that Mr Mikhael has overcome his gambling addiction and has purchased a home and has a mortgage. He is concerned about his future as he has been a taxi driver for over ten years and has no other trade. His financial position is dire. He is remorseful and this is reflected in his references. He has realised that he has made a grave and stupid error, however the cancellation of his authority is too harsh a penalty. Mr Carbone submitted that a more appropriate approach would be to place Mr Mikhael on probation for a period of 12 months and that if further problems arise in that period them it would be appropriate to cancel his authority. Findings 15 My view is that the decision that has been made is the correct and preferable one. I essentially agree with the arguments that Mr Wozniak has presented. 16 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] 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." 17 There is no issue in relation to Mr Mikhael's driving record and his references suggest that he is well regarded in the community. The question of the likelihood of his re-offending or be the subject of further complaints is not so clear. Mr Mikhael has expressed remorse in relation to his conduct and has provided a plausible explanation as to the link between his conduct and his gambling addiction. While I accept that Mr Mikhael's conduct was related to his gambling and that he has been receiving counselling in relation to his addiction, I cannot be confident that he has overcome that problem. In an interview that he undertook on 15 August 2005, which is after the date of the information provided by the Psychologist, Mr Mikhael stated: "Part of the reason I took the dockets was to help the lady because she was saving money the other part is I have a gambling problem." 18 Later in the interview he stated: "I had a gambling problem and the money from these dockets went into gambling but now I am okay" 19 I would require further information on this issue before I could be confident that Mr Mikhael's gambling addiction is no longer an issue. 20 While I accept that Mr Mikhael does not have a criminal record, the nature of the conduct engaged in by Mr Mikhael is serious. It is not simply a matter of an error of judgement. Mr Mikhael conceded that he was aware that the conduct was wrong. It constituted dishonesty, which is contrary to one of the fundamental requirements of the fitness and propriety of a person to be authorised as a taxi driver. It is highly significant that the conduct occurred while he was engaged in his role that is authorised by the authority that he is seeking to retain. 21 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." 22 In the present circumstances that test can be applied appropriately with the relevant member of the public travelling in a taxi driven by Mr. Mikhael. On balance, it is my opinion that a member of the public, knowing Mr Mikhael's conduct would object to Mr. Mikhael being the taxi driver. In my view the nature and seriousness of Mr Mikhael's conduct outweighs the factors that are in Mr Mikhael's favour. 23 Having weighed the evidence, I am not satisfied that sufficient time has passed for the travelling public to be comfortable with Mr. Mikhael as a taxi driver. At this point in time I cannot attest that Mr Mikhael is a fit and proper person to hold a licence. That may well change but at this point I cannot give that attestation and therefore I could not find otherwise. I am unable to provide any further guidance as to what period of time might be considered to be sufficient. Order The decision under review is affirmed