CITATION: Adamski -v- Director General, Department of Transport [2002] NSWADT 156 DIVISION: General Division APPLICANT PARTIES: Witek Adamski RESPONDENT Director General, Department of Transport FILE NUMBER: 013259 HEARING DATES: 04/04/02, 31/05/02 SUBMISSIONS CLOSED: 05/31/2002 DATE OF DECISION: 09/04/2002 BEFORE: Montgomery S - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Passenger Transport (Taxi-Cab) Regulation 2001 Passenger Transport Act 1990 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354 Azar -v- Director General, Department of Transport [2001] NSWADT 219 Caska v Director General of New South Wales Department of Transport [2001] NSWSC 205 CASES CITED: Maythisathit v Registrar of Motor Vehicles (1996) ACT 165 Ghachame -v- Director General, Department of Transport [2000] NSWADT 113 Singh v Director General, Department of Transport [1999] NSWADT 96 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Saadieh v Director General, Department of Transport [1999] NSWADT 68 APPLICANT REPRESENTATION: I Abelitis, solicitor RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director-General of the Department of Transport to cancel the Taxi Driver Authority No. AP8140 held by Mr. Witek Adamski is affirmed. Background 1 These proceedings relate to a determination made by the Director General, Department of Transport ("the Director General") to cancel the Taxi Driver Authority No. AP8140 held by Mr. Witek Adamski ("Mr. Adamski"). Mr Adamski was advised of the decision by letter dated 2 October 2001, signed by Mr Frank Malone, Manager Compliance with the Taxi & Hire Car Bureau, Department of Transport ("the Department"). 2 Mr Adamski is a taxi driver. He is 44 years of age, has a dependant child and has no other source of income. He is in poor health and asserts that his likelihood of obtaining alternative employment is remote. He has a long career as a taxi driver and is understandably concerned to ensure that the decision by the Director General to cancel his authority is the correct preferable one having regard to all the relevant material and law. 3 The Director General's decision was made following the issue of a Notice to Show Cause on 13 September 2001. The Notice to Show Cause enclosed a Statement of Reasons upon which the Director-General relied. These reasons included references to Mr Adamski's criminal conviction for "maliciously destroy or damage property" in October 1997 and a history of complaints against Mr Adamski in relation to his Taxi Driver Authority. The complaint history referred to a series of incidents between January 1995 and August 2001. The Director-General's reasons referred to the following complaints: "Complaint History 17/08/2001 Fail to drive by shortest practicable route (complaint 31860):- A complaint was received by the Department of Transport from a male passenger who was conveyed in a taxi driven by the holder of taxi authority AP8140 from. Qantas Domestic Terminal to Castlereagh Street, Sydney. The passenger stated that at the destination of the journey the driver charged him $31.80 plus $3.30 toll fee. The passenger believes the fare was excessive as a colleague made the same trip in a taxi and was only charged $22. The driver was later identified as Witek Adamski. 01/08/2001 Warning letter issued:- At the completion of Mr Adamski undertaking the Customer Care module at a accredited taxi school Mr Adamski was issued with a warning letter stating that if further complaints or breaches of the Passenger Transport Act is recorded the Department may suspend or cancel his Public Passenger Vehicle Drivers Authority. 27/07/2001 Fail/Refuse to accept hire when for hire (complaint 31720):- A complaint was received by the Department of Transport from a female passenger who attempted to hire a taxi driven by the holder of taxi authority AP8140 from Kent Street, Sydney to The Rocks. The intending passenger stated that when she hailed the taxi she requested the driver to take her to The Rocks. The driver replied "northern suburbs only". The passenger asked the driver to drop her off at The Rocks on the way to the northern suburbs. The driver refused. The driver was later identified as Witek Adamski. 30/04/2001 Retraining:- As a result of various complaints lodged against Mr Adamski the Department of Transport directed Mr Adamski to undertake further training in Customer Care at an accredited taxi school. 19/12/2000 Fail/Refuse to accept hire when for hire/Incivility and Impropriety (complaint 30009):- A complaint was received by the Department of Transport from a female passenger who attempted to hire taxi T382 from Impulse Airline taxi rank to Alexandria. When the intending passenger informed the driver of her destination the driver refused telling her to take another taxi. When the passenger got out of the taxi there were no other taxis on the rank. The passenger then got back into the taxi and the driver began offensively screaming at the passenger telling her he was booked. When the passenger again got out of the taxi a few minutes later the driver drove off without any passengers. The driver was later identified as Witek Adamski. 08/12/2000 Incivility and Impropriety (complaint number 30181):- A complaint was received by the Department of Transport from a Concierge of a Sydney Hotel. The Concierge stated that the driver of taxi T382 went into the hotel and asked him to call the passengers that had booked a taxi. As it was late the Concierge did not telephone the passengers. The driver then became abusive. The driver was later identified as Witek Adamski. 28/06/2000 Fail/Refuse to accept hire when for hire (complaint 28708):- A complaint was received by the Department of Transport from a male passenger who attempted to hire taxi T382 from Chifley Sq, City taxi rank to Telopea. When the intending passenger informed the driver of his destination the driver refused telling him to get out of taxi because he is finishing his shift at 9pm. The driver was later identified as Witek Adamski. 17/03/1999 Fail/Refuse to accept hire when for hire (complaint 28708):- A complaint was received by the Department of Transport from a male passenger who booked a taxi to pick him up from Pruniers Restaurant at Woollahra to Waterloo. A taxi driven by the holder of taxi authority AP8140 arrived and the passenger entered the taxi. When the intending passenger informed the driver of his destination the driver refused telling him he would not take him there. The driver was later identified as Witek Adamski. 14/07/1997 Incivility and Impropriety (complaint number 30181):- A complaint was received by the Department of Transport from an employee of Aboriginal Education who was conveyed in taxi T4426 from the City to the Airport via Uni Lodge Hotel. The passenger stated that during the journey he asked the driver directions to Redfern. The driver then began making racial comments about Aboriginals such as "Redfern what do you want to know that for, it's full of Abo's" "your from an Abo lot " "all Abo's should be shot" "they should do with them what they did over in Tasmania and shoot the lot" "I am not racist, I just hate Abo's". The passenger felt distressed and took the driver's comments as a personal attack on himself. The driver was later identified as Witek Adamski. 15/10/1996 Fail/Refuse to accept hire when for hire/Physical abuse or intimidation (complaint 19106):- A complaint was received by the Department of Transport from a female passenger who attempted to hire taxi T4426 from the Airport taxi rank to Kings Cross. When the intending passenger informed the driver of her destination the driver refused and was intimidating. The driver was later identified as Witek Adamski. 22/09/1995 Fail to display I.D card. Driving in a dangerous manner (complaint 16356):- A complaint was received by the Department of Transport from a male passenger who was conveyed in taxi T4426 from Wentworth Hotel, Sydney to Parramatta. The passenger stated that the driver almost hit several pedestrians in the city. The driver was accelerating and braking heavily in bumper to bumper traffic. The passenger further stated that the driver was not displaying his authority. The driver was later identified as Witek Adamski. 17/01/1995 Incivility and Impropriety (complaint number 15138):- A complaint was received by the Department of Transport from a female motorist regarding an incident that occurred in Chatswood with the driver of taxi T4426. The motorist stated that the driver of taxi T4426 gesticulated rudely at her. When the motorist beeped her horn at the taxi driver he followed her for some distance and continued with being rude. The driver was later identified as Witek Adamski." 4 By letter dated 22 September 2001, Mr Adamski made submissions in relation to the matters referred to in the Notice to Show Cause. His submissions provided: "In my defence I can state that I have never been aggressive or rude towards passengers. However I feel threatened by intoxicated or abusive people who behave unreasonable and/or expect unreasonable things, and as such, at times, respond in an impulsive manner. As some passengers view taxi drivers as easy targets to be picked upon, and behave in most disrespectable way towards the driver. The close proximity to the driver, the relationship of hiring a cab - with a "servant" to follow instructions - and anonymity of the passenger can lead to customer frustration over petty things. The actual complaint procedure favours customers over drivers, and they know it, and abuse the privilege, by either exaggerating or presenting incorrect testimonies. It must be remembered that the profession of a taxi driver is difficult in itself; one must constantly judge and look out for road conditions, plan the shortest route, deal with passenger(s) and, above all, smile. Moreover, having contact on a daily basis with varied clientele can sometimes lead to exchanges of opinion over minor matters, as is the case in my situation. Since no driver is perfect at all times, one can easily breach the fine line between outstanding customer service, and one which is viewed by the passenger as less than adequate. In essence, passengers who have made complaints against me in the past picked upon my foreign accent and passive nature. They view me as an easy target to firstly, argue over situations where I committed an error and was not given sufficient opportunity to explain and apologise. Secondly, to make complaints, thus express their power over me, in addition, to satisfying their thirst for vengeance. Every day, I deal with customers who are themselves stressed, angry, and frustrated; literally, they are looking for a fight. The suggested course of action by the Department of Transport would automatically sentence me to reliance on social welfare in order to survive. It is a well-known fact that social security means poverty. Furthermore, since I am forty-three years of age, without any other qualifications, skills and/or training, finding other employment is difficult, if not impossible. Taxi driving is all I know and what makes my life worth living. I have made mistakes in the past, but I have learned from them. This, I belief, makes me a better professional, a valuable member of the profession. All I ask is for another chance to clean my record and prove that giving a person an opportunity to substantiate what they promise to do is not a mistake. Taking my taxi licence, not only sentences me to a miserable life, it also affects, in a negative way, my only daughter Katherine (age 14). She is a young girl and the monthly maintenance of $500.00 I contribute towards her education and living expenses means she receives a better chance in life than what I received." 5 A decision was subsequently taken to cancel Mr Adamski's driver's authority and Mr Adamski was notified of that decision by letter dated 2 October 2001 from Mr. Frank Malone Manager, Compliance. That letter is stated to be on behalf of the Director-General. The reasons for this decision were set out in the Statement of Reasons attached to the letter. The Statement of Reasons was in similar form to the reasons provided with the Notice to Show Cause. It referred to Mr Adamski's criminal history and complaint history as set out above and also provided: "Applicable Law Section 33F of the Passenger Transport Act allows the Director-General to suspend or cancel a driver's authority having regard to the purpose of that authority. The purpose is set out in section 33(3) of that Act. This means that, for the purpose of your case: The purpose of an authority under this Division 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 law and custom. The Reasoning Process that lead to the Decision · To be of 'good repute and in all other aspects a fit and proper person' to drive a public passenger vehicle the community must have confidence that a driver would behave with propriety at all times, when driving a public passenger vehicle. · Under the Taxi Driver Authorisation Standards, to continue to be authorised a driver must: Behave in an orderly manner and with civility and propriety toward any passenger, intending passenger or authorised officer. The fact that you have had several complaints which directly relate to conduct contrary to the before mentioned standards, casts grave doubts about your fitness to hold a public passenger vehicle drivers authority and of your ability to carry out the duties and responsibilities of the position according to law and custom. A taxi driver has a continuing responsibility to ensure that he or she is of 'good repute' and a 'fit and proper person'. Given the similarity of the matters raised in this Statement of Reasons, it is not unreasonable to assume that future passengers may find it unacceptable to be in a taxi-cab driven by a driver with a growing complaint record. The fact that Mr Adamski had been arrested, charged and convicted of Maliciously destroy or damage indicates that he is not of good repute and in all other respects 'a fit and proper person to drive a public passenger vehicle. Based on the above facts and law, it can no longer be attested that you are considered to meet the required standards for authorisation as a taxi-cab driver." 6 On 3 October 2001 Mr Adamski lodged an application for an internal review of the Director-General's decision. In his application for review, Mr Adamski provided information in relation to the incidents referred to in the Director-General's Statement of Reasons. Mr Adamski provided the following explanations: "1. EXPLANATION OF THE COMPLAINTS RAISED 17/08/2001 Complaint 31860 On 17/08/01 I picked up a passenger from Qantas Domestic to the City around 1.30 PM. Before we departed I have asked him which way he would like to go. He replied" the quickest possible way, by Eastern Distributor". The trip I took is as follows: Eastern Distributor, then left into Macquarie St., then right into James St., then left into Elizabeth St., then right into Market St., and left into Castlereagh St., to arrive at the address of 169 Castlereagh Inn. The trip cost $28.80 plus $3.30 (for Eastern Distributor Toll), a total of $31.20. I am willing to prove that the abovementioned trip will cost the same amount of money if taken under the same circumstances and time. 27/07/2001 Complaint 31720 On that day I have received a phone call from one of my regular customers. I was supposed to pick him up from North Sydney. I was at Kent St. when I received a call. As I proceeded I switched my sign roof off. I noticed a lady hailing me, so I stopped and said that I was on the way to North Sydney (Optus Centre) and I can take her there if she wants. She wanted to go to the Rocks. So I apologised that I cannot go there, as I was in a hurry. 19/12/2000 Complaint 30009 On that day I have received a phone call at 4.15, PM, from one of my regular clients (his name is John and lives at 52 McKintosh St. in St. Ives), to pick him up from the Impulse Country Connection at Mascot Airport. I have arrived there at 5.45 PM. I wasn't standing at the rank and I had my sign off. While I was waiting a lady approached me and asked me if I was free. I said that I was waiting for a passenger, who was coming from Port Macquarie. Then she said that she wanted to go to Alexandria. I answered that I cannot take her as I am waiting for my customer. That lady was never inside my taxi. Then I waited until 6.30 PM (the flight was delayed), and picked up my customer. 08/12/2000 Complaint 30181 On that day I was in City North East. I have received a radio job to pick up passengers from 2 Bond St. (Bond Apartments). I arrived there after 5 minutes. I asked the Concierge where they were and he told me that they have left already. I was upset (because I have wasted my time) and I told him that next time if something like that happens he should either keep the passenger there or cancel the job. I was never abusive at that time; I have only raised my voice. 28/06/2001 Complaint 28708 On that day, at 8.45 PM I was standing at the traffic lights (intersection of Elizabeth St. & Bent St. – I was never on the rank and my sign was off). A man approached me and asked me if I would take him to Telopea. I answered that I was going home, because I was sick (I had gastric). So I have refused the job. If I were well I would never refuse this job, as it paid $45. 17/03/1999 Complaint 28708 Driving along Ocean St. Woollahra, near the Pruniers Restaurant I was stopped by a woman who wanted me to take her to Waterloo. She said she booked 3 taxis already (There was a big group of people) and only 2 of them arrived and she didn't want to wait any more for the 3rd one. I have refused this job, because I was not that 3rd taxi. I want to be loyal towards other taxi drivers. 15/10/1996 Complaint 19106 Unfortunately I am unable to recall that incident, but I would never refuse a job from Airport to Kings Cross, which is worth about $23. 22/09/1995 Complaint 16356 On that day I picked up a passenger from Wentworth Hotel at Sydney to go to Parramatta. It was about 4.30 PM. There were never any incidents of nearly hitting any pedestrians. The traffic was bumper to bumper and I was moving slowly and was never heavily accelerating or breaking. 17/01/1995 Complaint 15138 At about 3.30 PM I received a job from City to Chatswood (Zenith Centre). I was standing on the intersection of Pacific Hwy & Victoria Rd., turning to the right. The lady was standing on my left middle lane (there is no turn to the right from that lane). As I started to turn she was beeping at me to let her in, but it was too late. So I made a sign of resignation with my hands, as if to say "sorry, I cannot do anything now". Between Pacific Hwy & Railway Station she beeped me on several occasions, but I have never reacted to that. All along she was travelling behind me and never in front of me. I could not gesticulate rudely because I had passengers in my taxi." 7 The internal review was undertaken on 25 October 2001 by Ms Coralie Moller, Senior Operations Officer, on behalf of the Director-General. In reaching her decision, Ms Moller's relied on the same material as Mr. Malone. In her letter to Mr Adamski advising of her decision she stated: "It is confirmed that the initial decision to cancel your taxi-cab driver authority was the appropriate course of action. The reasoning process that lead to the decision: · You did not provide any relevant additional information in your application that would demonstrate that the Facts, Evidence and Material listed in the attached Statement of Reasons are incorrect. The Facts, Evidence and Material listed in the attached Statement of Reasons indicates that you do not meet the requirements of Section 33 (3) of the Passenger Transport Act 1990, having regard to the purpose of an authority. An additional complaint dated 24 August 2001 has been lodged against you. (Annexure A)" 8 The Statement of Reasons provided following the internal review was in essentially the same form as that for the initial decision. The additional complaint contained in Annexure A was: "24/08/2001 Complaint 31922: A complaint was received by the Department of Transport that a customer got into a vacant taxi at Clarence Street, Sydney to go to Rushcutters Bay when your taxi T382 pulled immediately in from of the hired taxi. You refused to move causing traffic to be held up for about 5 minutes. As a result ABC Taxis suspended you from the radio network for 20 hours and counselled regarding your responsibilities under the Passenger Transport (Taxi-cab Services) Regulation 1995." Reviewable decision 9 The Tribunal has jurisdiction to determine an application for review of a reviewable decision. The reviewable decision is the decision to cancel Mr Adamski's authority to drive a taxi-cab, taken by the Director General's delegate Ms Coralie Moller. The decision was advised to Mr Adamski by letter received on 30 October 2001. 10 On 30 October 2001 Mr Adamski lodged an application with the Tribunal for a review of the Director General's decision. He also sought an urgent stay of the decision. The matter of the stay came before the Deputy President of this Tribunal on 1 November 2001. The stay was granted to remain in force pending the outcome of this matter. 11 The matter came before the Tribunal for hearing on 4 April 2002 but was adjourned when it was revealed that Mr Adamski's licence had been cancelled due to non-payment of a fine. The stay was lifted temporarily pending payment of the fine and the reinstatement of Mr Adamski's licence. Nature of proceedings 12 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 13 These are not adversarial proceedings in which Mr Adamski carries an onus of proof. By making the application, Mr Adamski triggers a process of merits review by the Tribunal. Mr Adamski does not take on the responsibility of having to prove a case, nor does he cause the Director-General to have to prove a case. Mr Adamski and the Director-General are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 14 Section 63(1) of the ADT Act provides: "63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." 15 The Tribunal makes its own decision in place of the Director-General's, and "there is no presumption that the decision of the administrator is correct" ( McDonald v Director General of Social Security (1984) 1 FCR 354 at 357). 16 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357). Requirements to be met 17 The issue for this Tribunal is: what is the correct and preferable decision? The Act sets out the applicable law. Section 33F of the Act enables the Department to suspend or cancel an authority to drive a public passenger vehicle, having regard to the purpose for which the authority is held. 18 Section 33 (3) of the Act provides: "(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." 19 The decision to be made is whether Mr Adamski can be 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 "have sufficient responsibility and aptitude to drive a taxi-cab in accordance with the conditions under which the taxi-cab service concerned is operated; and in accordance with law and custom" such that an authority can attest to that status. 20 It is clear from the correspondence and the Department's file that the Director General decided that an authority would attest to neither Mr Adamski's good repute, sufficient responsibility nor aptitude to be the driver of a taxi-cab. Evidence 21 The Department's file was put in evidence and the Director General relied on the documents contained within that file. 22 Mr Adamski presented evidence on his own behalf. Written testimonials and medical reports were also provided in support of Mr Adamski's application. Mr Adamski's case 23 As noted above, the Director General issued of a Notice to Show Cause on 13 September 2001. Mr Adamski conceded many of the issues raised in the Notice to Show Cause, however he challenged the accuracy of some of the facts relating to some of those matters. Mr Adamski made submissions in relation to the matters referred to in the Notice by letter dated 22 September 2001. His case before the Tribunal, while it dealt with issues not referred to in his letter of 22 September 2001, was of a similar nature. 24 At the hearing, Mr Adamski gave oral evidence and also provided written submissions in support of his case. His submissions provided: "I provide the following further material in support of my Application:- As to Complaint 30009 of 19/12/2000 On or about 6 or 7 December, 2001 I attended at 52 McKintosh Street, St Ives in order to obtain a statement from John a regular client, who I assumed resided at that address. I proposed to obtain a corroborating statement for that part of my explanation which would have been within his knowledge. I was advised by a male occupant aged in his mid 20's that John did not resided at that address. I also enquired at adjoining premises but no one appeared to know of him. I had driven John to or near that address on at least three separate occasions. As to Complaint 31720 of 27/07/2001 I have attended at the Optus Centre 101 Miller Street, North Sydney on 11 or 12 occasions in an endeavour to locate my customer to obtain a statement confirming the matters as set out in my Explanation in respect of the complaint of such date. I attended on the 11, 12, 13, 27, 28, and 29 of December, 2001 and 2, 3, and 4 January 2002 as well as several other days the dates of which I am not certain. On the days I so attended I waited for about 15 minutes each time at various times between 3.30 pm and 5.30 pm but was unable to recognise him leaving the building. I also am unable to recall his name, though he only told me his Christian name. As to Complaint 31860 of 17/08/2001 In order to corroborate my contention that the fare from the Qantas Domestic Terminal to Castlereagh Street, Sydney is in the order of $25.00 to $31.00 I have requested of a number of taxi drivers that they provide me with a written statement as to their opinion as to the quantum of such fare. The response that I invariably received was that either they did not wish to become involved, or alternatively they were prepared to give an oral opinion but not in writing. I stand by my statement that on 17 August 2001, being a Friday, at about 1.30 pm, when there is increased traffic, the fare was $31.00. On the day in question the traffic was heavier than usual. The only explanation that I can offer, as to why the passenger's colleague was charged a lesser amount is that the journey that was undertaken was on a different day and/or a different time when there was less traffic. On the 15th Of January, 2002 I had three (3) fares from the Qantas Domestic Terminal to Castlereagh Street, Sydney. The first one was at 3.30 pm and the fare was $28.50 including the toll of $3.50. The second was to Castlereagh and Park Streets, at 4.20 pm and the fare was $31.50 including toll. The third was at 6.30 pm to Castlereagh and Bathurst Streets, and the fare was $38.00 including toll. In respect to the last trip, there was very heavy traffic before the toll gates, the whole trip taking longer than 35 minutes, whereas usually it takes 15 to 20 minutes. As to Complaint 31922 of 24/08/2001 At the time of the alleged complaint I had been driving along Clarence Street, near the intersection with Erskine Street in the City. As I was approaching the intersection, I noticed a prospective passenger hailing me. At this time I was about 50 metres away. As I slowed another ABC taxi over-took me and stopped abruptly in front of me and took the fare. I then proceeded to go past the taxi and stopped behind a Volvo sedan which was also turning left into Erskine Street. Due to the volume of traffic in Erskine Street, neither the Volvo nor I were able to turn and we remained stationary for about 2 to 3 minutes until the traffic cleared. It appeared that the taxi behind me wanted to get out from behind me, but was unable to do so as he had moved up to my bumper and was unable to either go around because or reverse as there was a vehicle behind." 25 Mr Adamski's written submissions also addressed the circumstances leading to his conviction for malicious damage to property. He emphasised that the events arose while he was driving his own vehicle and not a taxi. Notwithstanding that he considered that he was not guilty of the offence, he wanted to get the matter over and done with and after initially pleading not guilty to the charges he changed is plea to guilty. 26 In support of his argument that he was a person of good repute, Mr Adamski referred the Tribunal to several testimonials provided on his behalf. It appears that most of the authors of those testimonials were aware of these proceedings. 27 In a statement from Ms Anna Dototo dated 29/10/2001, Ms Dototo stated that she has been a regular customer of Mr. Adamski for about 4 to 5 years. She requires his services at least twice a month. In a statement dated 30 October, 2001 from Mr Bruce Connell stated that he has used Mr Adamski as his taxi driver for the past two years. Both Ms Dototo and Mr Connell indicated that they had found Mr Adamski a courteous and safe driver. Each expressed surprise that Mr. Adamski's Authority was cancelled and indicated that they could not understand why that was the case. 28 Several other testimonials were provided on behalf of Mr Adamski by present and former employers and colleagues. Mr Abul Helaluddin stated that he has known Mr Adamski for the past six years and that Mr Adamski started to drive taxi for him from 11 September 2001. During this period he has found Mr Adamski reliable and courteous. 29 In a statement dated 10 December, 2001 Mr Stephen Karrasch stated that Mr Adamski has been a regular driver for his company and himself for over two years. Mr Karrasch stated that he finds Mr Adamski very reliable, prompt and efficient and a steady driver who always presents himself in a friendly, neat way. 30 Mr Adrzej Piszak stated that he has known Mr Adamski since 1982. From 1988 to 1993 he employed Mr Adamski as a casual taxi driver. During that time Mr Adamski proved to be a responsible and helpful worker. Mr Piszak stated that he never had any complaints from the customers due to Mr Adamski's job performance. 31 In a statement dated 14 December, 2001 Mr Attila Gunesch declared that Mr Adamski drove his taxi for about nine years. Mr Gunesch considered that Mr Adamski is a credit to the taxi industry. His knowledge of all parts of the taxi business is excellent and he is a jovial and courteous person. 32 Mr Adamski also referred to two certificates provided by Dr. Maciej Mazurek. In the first of those certificates dated 31 October, 2001 Dr. Mazurek stated: "This is to certify that Mr Adamski is grossly overweight and his weight interferes with his ability to perform certain tasks. As a result of weight of over 130kg Mr Adamski is unfit for any employment which would require him to stand for more than brief periods of time. His mobility is also restricted and he would be unsuitable for employment requiring walking distances. He has been a taxi driver for 14 years now. This type of employment is appropriate and comfortable for the patient." 33 Dr. Mazurek also provided a more detailed report dated 14 January, 2002. In that report Dr. Mazurek stated: "Mr Dominic Adamski has been my patient since 21st of November 2000. He presented with symptoms of depressive illness. This was caused by family matters where Mr Adamski was unable to see his daughter and his ex-wife was actively interfering with their relationship. It was also the time of major health issues for the patient including angina and malignant hypertension. He has remained in a state of emotional crisis for over 12 months. The separation from his daughter and maintenance payments' arrears have had a major impact on his mental health and Mr Adamski has sought medical attention at that time. I have been involved in multiple counselling sessions with the patient between September 2000 and November 2001. The patient has made excellent progress. Mr Adamski suffers with morbid obesity. Working as a taxi driver agrees with this condition as the patient is not required to walk distances or stand for prolonged periods of time. Cancellation of Mr Adamski's Taxi Driver's Authority would have a profound negative impact on his ability to gain employment and his financial viability. His health and psychological issues are resolving now and he has responded very well to therapy. It is my opinion that the complaints against Mr Adamski have been caused by the above circumstance resulting in psychological unrest and depression. The patient has recovered now and has learnt to deal with the stress issues. I think that it is very unlikely that incidents of upsetting passengers and other motorists will ever take place again. I think that Mr Adamski is fit to work as a taxi driver." Submissions on behalf of Mr Adamski 34 Mr. Abelitis made detailed submissions on behalf of Mr Adamski. He argued that there has to be parity applicable in relation to any penalties that are imposed by the Director General and also in the ultimate decision by the Tribunal. In comparison with the Director General's d3cision to cancel Mr Adamski's authority, Mr. Abelitis referred to the decision in Azar -v- Director General, Department of Transport [2001] NSWADT 219. He argued that in that particular case the applicant had quite a colourful history. In some respects it was similar to that of Mr Adamski in that there were complaints received from passengers, a lengthy RTA record and failure to report his traffic offences. However, in Azar there were additional grounds of sexual harassment. The Director General's decision in Azar was made on 12 September 2001 and the Director General's decision in this case was made on 2 October 2001, a difference of 3 weeks. In Azar's case, he was only suspended for a period of 3 months. In Mr Adamski's case, his Driver Authority was cancelled. A penalty comparable to that in Azar's case would be more appropriate. 35 Mr. Abelitis also argued that Mr Adamski has already been penalised in relation to the complaint of 14 July 1997. Mr Adamski has been dealt with by way of a suspension and also he has been dealt with by the Local Court in the sense that he was fined. It would be contrary to the principles of natural justice for Mr Adamski to be penalised again. He submitted that it would be inappropriate for the Director General to rely on that complaint again in the circumstances. The complaints to be considered by the Tribunal should be limited to those from 17 March 1999 onwards. 36 With respect to those complaints, Mr. Abelitis submitted that, notwithstanding the fact that the rules of evidence are not strictly applied in the Tribunal, the Tribunal should place limited weight on the evidence that has been adduced by the Director General because he did not see fit to call any of the complainants. The Tribunal could assume a weakness in the Director General's case from the fact that the Director General didn't call any of the complainants. He suggested that the complainants may not have been prepared to come and give their evidence before the Tribunal, and be subjected to scrutiny as to the truthfulness of their evidence. In any event, the weight of the complaints has substantially diminished because they are not subject to challenge. 37 Mr. Abelitis submitted that there are numerous authorities for the principle that where the Director General only relies on written complaints, they should be challenged and should not be given the weight that the Director General would like them to be given. In this regard he referred to the decision in Azar referred to above and decisions that the presiding Member relied on including Caska v Director General of New South Wales Department of Transport [2001] NSWSC 205. 38 Mr. Abelitis urged the Tribunal to adopt this approach because of the implications of the Tribunal's decision. The ramifications of the decision can be very serious to Mr Adamski because his livelihood is at risk. Should he lose his Taxi Driver's Authority, he would be unlikely to obtain any alternate employment because of his physical condition. 39 In relation to the complaints generally Mr. Abelitis submitted that Mr Adamski has taken steps to remedy his behaviour. He has obtained professional treatment so that conduct of the nature complained of is not repeated. Mr. Abelitis submitted that Mr Adamski has been successful in his steps to remedy his behaviour because there have not been any further complaints since the last complaint of August 2001. Mr Adamski is no longer on medication and Mr. Abelitis suggested that perhaps that might be the explanation why his manner and character in driving a taxi has changed. 40 Mr. Abelitis referred to the decision of the ACT Administrative Appeals Tribunal in a matter of Maythisathit v Registrar of Motor Vehicles (1996) ACT 165. In that particular case, the President defined and applied the test in respect of a person being of fit and proper character to hold a taxi driver's authority as: "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". 41 Mr. Abelitis argued that, in this particular instance, taking into consideration the difficulties that Mr Adamski has had in the past and his personal idiosyncrasies, a member of the public so travelling and so knowing all the factual circumstances would not object and would be prepared to have Mr Adamski as a taxi driver. The Director General's case 42 The Director General relied on the chronology of events outlined above as justification for the action that has been taken. It is not disputed that the complaints outlined above were made. Under cross-examination Mr Adamski's recollection of some events was shown to be unsound. The Director General argued that the similarity of those complaints and the fact of Mr Adamski's criminal history raise doubt as to Mr Adamski's fitness to be the driver of a taxi-cab. 43 Mr. Wozniak also referred to evidence that shows that after the adjournment of these proceedings on 4 April 2002 Mr Adamski continued to drive despite having been informed that his Driver Authority had been cancelled. The stay that was in force on that day was lifted until Mr Adamski had notified the Director General that the outstanding fine had been paid. Notwithstanding the fact that Mr Adamski had been advised that the stay had been lifted and therefore the cancellation of his Driver Authority remained effective, he drove a taxi that very same day. Mr. Wozniak argued that this fact alone confirms the Director General's views. 44 With respect to Mr Abelitis' submission that there must be parity in the penalties applied by both the Director General and the Tribunal, Mr. Wozniak argued that parity is not relevant in determining these matters. He referred to the decision of Ghachame -v- Director General, Department of Transport [2000] NSWADT 113 as authority for the principle that the real question for determination by the Tribunal is whether Mr Adamski has the requisite character, reputation, responsibility and aptitude to be the holder of a Taxi Driver Authority. 45 Mr. Wozniak argued that when Mr Adamski walked out of the Tribunal knowing full well that he didn't have a driver's authority, and nevertheless drove his taxi he demonstrated that he does not possess the responsibility and aptitude to drive a taxi in this State. 46 Mr. Wozniak also argued that Mr Adamski's failure to notify the Department of his offences is a serious matter for consideration by the Tribunal. Each applicant for a driver's authority agrees to inform the Department of any relevant offences. Clause 36 of the Passenger Transport (Taxi-Cab Services) Regulation 2001 in force since 1 September 2001 provides for significant penalty if a driver fails to advise the Director General within 7 days. That Clause provides: "36 Driver to notify Director-General of alleged offence (1) The driver of a taxi-cab must, in accordance with this clause, furnish the Director-General with written details of the following: (a) any alleged offence (other than a parking offence) with which the driver is charged by a police officer, (b) any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle. Maximum penalty: 10 penalty units. (2) If, on the commencement of this clause: (a) proceedings against a driver of a taxi-cab in respect of an offence referred to in subclause (1) (a) are pending -details of the charge are to be furnished within 48 hours after that commencement, unless the driver of the taxi-cab is acquitted of the charge within 24 hours after that commencement, or (b) a penalty notice of the kind referred to in subclause (1) (b) is in force against a driver of a taxi-cab - details of the penalty notice are to be furnished within 48 hours after that commencement. (3) In the case of a charge that is laid by a police officer, or a penalty notice relating to the driving of a motor vehicle that is issued, on or after the commencement of this clause (other than a charge or a penalty notice in respect of a parking offence), the details are to be furnished within 7 days after the laying of the charge or the issue of the notice." 47 In summary, the Director General's case is that there is sufficient evidence before the Tribunal to conclude that the correct and preferable decision has been made. Even if all the complaints were set aside, there is sufficient reason to cancel Mr Adamski's driver's authority. Finding 48 As indicated above the Director-General formed the view that Mr Adamski is not of good repute and in all other respects a fit and proper person to drive a taxi-cab. The issue for determination by the Tribunal is whether that is the correct and preferable decision. 49 In this application, I have considered all of the evidence including the oral evidence presented before the Tribunal. In particular I have had regard to the following issues: · the number and the nature of the complaints against Mr Adamski which formed the basis of the Director General's decision; · the fact that the complainants were not called to give evidence before the Tribunal; · Mr Adamski's written submissions in relation to the complaints made against him; · Mr Adamski's oral evidence in relation to the complaints made against him; · Mr Adamski's admissions in relation to some of the offences; · the medical reports provided on Mr Adamski's behalf; · the testimonials provided on Mr Adamski's behalf; · the potential consequences of the decision to cancel Mr Adamski's driver's authority; and · the lack of parity between the Director-General's decision which is the subject of these proceedings and other decisions taken by the Director-General. 50 I note Mr Adamski's concerns with respect to the issue of parity of penalties. I also accept Mr Abelitis' submission that there appears to be inconsistency and incongruity in respect of various decisions made by delegates of the Director-General. Notwithstanding that view, the Tribunal's role is to determine whether the decision of the Director-General in the circumstances of this particular matter was the correct and preferable decision. 51 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. Different circumstances will justify different penalties. I do not accept that the relative severity of penalties applied in other cases has any bearing on this matter. 52 To paraphrase the views expressed by the Deputy President of this Tribunal in the matter of Ghachame -v- Director General, Department of Transport [2000] NSWADT 113, the real question is whether Mr Adamski has the requisite character, reputation, responsibility and aptitude to meet the public's reasonable expectations of taxi drivers. 53 Section 33(3) of the Act provides that an authority attests that the holder is of good repute and is a fit and proper person to be the driver of a taxi-cab. An assessment of whether a person is "fit and proper" involves different considerations from those relevant to "good repute": Singh v Director General, Department of Transport [1999] NSWADT 96 at paragraphs 25 to 28; Farquharson v Director General, Department of Transport [1999] NSWADT 53 at paragraph 27. Even though Mr Adamski is of good repute, he may not be a fit and proper person for the particular purpose of driving a taxi-cab. 54 The Tribunal is usually guided by the views of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at para 63 where he observed 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." From the same authority, per Toohey and Gaudron JJ at para 36, it is clear that the question to be asked is whether a person is fit and proper "to undertake the activities in question". In the present matter the activity in question is the driving of a taxi-cab. 55 Considerations generally in relation to fitness and propriety have been set out by the Tribunal in, among other decisions, Saadieh v Director General, Department of Transport [1999] NSWADT 68 at paragraph 17 where the Deputy President stated. "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." 56 In this matter, the criminal offences for which Mr Adamski has been convicted were relatively minor. The conviction upon which the Director General relies was recorded in 1997 and Mr Adamski has not re-offended. 57 The complaints made against Mr Adamski are set out above. While they vary in their nature and seriousness, the frequency of the complaints is of concern. I note Mr Abelitis' submission that less weight should be given to those complaints because the complainants were not called to give evidence before the Tribunal. I also note the submission that the complaints to be considered by the Tribunal should be limited to those from 17 March 1999 onwards. I do not agree with those submissions. 58 In the circumstances in this case I am satisfied that Mr Adamski has been made aware of the complaints against him and has been given a reasonable opportunity to address the allegations. In my opinion the complaint record indicates a pattern of behaviour that is unacceptable for the holder of an authority to drive a taxi-cab. 59 I note that under cross-examination Mr Adamski's recollection of some events was shown to be at variance with other evidence presented by the Director-General. I am not satisfied that the explanations provided by Mr Adamski are sufficient to lead me to the conclusion that the complaints should be disregarded. I agree with the Director-General's opinion that the combined effect of those complaints is that it is not unreasonable to assume that future passengers may find it unacceptable to be in a taxi-cab driven by a driver with such a complaint record. 60 Mr Adamski's driving record is poor. As indicated above, the hearing was adjourned because his licence had been cancelled as a consequence of the non-payment of a fine. It can also be seen from the complaint record that some of the complaints raised issues with respect to Mr Adamski's driving. 61 Several testimonials have been presented on behalf of Mr Adamski. These testimonials provide some insight into Mr Adamski's reputation in the taxi industry. They indicate that he is well-regarded among several of his peers. No evidence was provided with respect to Mr Adamski's reputation in the wider community. 62 In Saadieh at paragraph 18 the Deputy President identified several relevant considerations for assessing the likelihood that a person will re-offend: "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." 63 The best evidence available to the Tribunal with respect to these issues can be found in the reports provided by Dr Mazurek. These reports provide some insight into Mr Adamski's circumstances during the period in which the complaints were made. It is clear that during this period Mr Adamski was suffering significant health problems and it is probable that those problems impacted on his work. The complaints against Mr Adamski have occurred at a time when he was suffering psychological unrest and depression. 64 Dr Mazurek's reports also give some indication of the efforts Mr Adamski has made to rehabilitate himself. Dr Mazurek states that in his opinion Mr Adamski "has recovered now and has learnt to deal with the stress issues. I think that it is very unlikely that incidents of upsetting passengers and other motorists will ever take place again. I think that Mr Adamski is fit to work as a taxi driver." 65 I do not share Dr Mazurek's confidence in Mr Adamski. In my opinion, too little time has passed since the incidents outlined in the complaint history to be confident that Mr Adamski can be considered to have the requisite character, reputation, responsibility and aptitude to meet the public's reasonable expectations of taxi drivers. I agree with Mr Wozniak's submission that when Mr Adamski continued to drive despite having been informed that his Driver Authority had been cancelled he demonstrated that he does not have sufficient responsibility and aptitude to drive a taxi-cab in accordance with the conditions under which the taxi-cab service concerned is operated. 66 Mr Adamski did not admit responsibility for many of the incidents that lead to the complaints and in my opinion has not shown genuine remorse. While I accept that cancellation of his Driver Authority will have serious effects on Mr Adamski's ability to cope financially, the public interest must take precedence over his personal circumstances. 67 In my opinion the director-general's decision to cancel Mr Adamski's Taxi Driver Authority was the correct and preferable decision. It follows that the decision should be affirmed. 68 As indicated above, I am not satisfied that a sufficient period has passed to be confident that Mr Adamski is able to apply the requisite responsibility and aptitude to meet the public's reasonable expectations of taxi drivers. However, if Mr Adamski re-applies for a Driver Authority and he is able to show that he has continued to receive treatment for his health problems and if he can satisfy the Director-General that these health problems are unlikely to further impact on his work, then I recommend that the Director-General look favourably upon that application. Orders The decision of the Director-General of the Department of Transport to cancel the Taxi Driver Authority No. AP8140 held by Mr. Witek Adamski 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.