Brown -v- Director General, Department of Transport [2000] NSWADT 153

CITATION: Brown -v- Director General, Department of Transport [2000] NSWADT 153 DIVISION: General Division APPLICANT Nicholas Brown PARTIES: RESPONDENT Director General, Department of Transport FILE NUMBER: 003222 HEARING DATES: 05/09/2000 SUBMISSIONS CLOSED: 09/05/2000 DATE OF DECISION: 11/03/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: Passenger Transport Act - taxi driver - grant of authority - Taxi driver - grant of authority MATTER FOR DECISION: Principle matter LEGISLATION CITED : Passenger Transport Act 1990 CASES CITED: Australian Broadcasting Tribunal -v- Bond (1990) 170 CLR 321 Saadieh -v- Director General Department of Transport [1999] NSWADT 68 REPRESENTATION: In person A Wozniak, solicitor ORDERS: 1. The decision of the respondent to refuse the applicant's application for a public passenger vehicle authority to drive a taxi is set aside; 2. In substitution for that decision, a decision is made to grant the applicant a public passenger vehicle authority.

1 On 27 June 2000 Mr Nicholas Brown applied to the Tribunal for a review of a decision of the Director General, Department of Transport, refusing his application for a taxi authority. In summary, the reason for the refusal was that the nature and seriousness of his criminal record mean that Mr Brown is not a person of good repute or a fit and proper person to be the holder of a public passenger vehicle authority. Mr Brown admitted to a lengthy criminal and traffic record but said that he has now "turned the corner" and wants a flexible job so that he can continue to care for his 8 year old son who has been in his custody for nearly 12 months. Conduct of the hearing 2 The Tribunal heard the matter on 5 September 2000. On that day the Tribunal indicated to Mr Brown that it would be useful to have access to an up to date expert assessment from the Probation and Parole Office. Relying on its powers in s 73(5)(b), the Tribunal sought a report from that office, but they were unable to comply. The Tribunal did not pursue their inquiries any further but after the hearing, Mr Brown provided an additional reference from a fellow member of the church he attends. Refusal of application for authority 3 The reasons for the decision to refuse to grant Mr Brown a taxi authority were set out in a letter from the administrator to Mr Brown dated 13 June 2000. That letter said, in part, that the reasoning process which led to the decision was as follows: The nature and seriousness of the criminal convictions recorded against you indicates that you are not a person of good repute, and in all other respects a fit and proper person to be the holder of a public passenger vehicle authority as defined under Section 11(2)(a) and/or (b)(i) and (ii) of the Passenger Transport Act. The facts and information upon which the Department's decision was taken, and were made available for this review, cast grave doubt about your aptitude to drive a taxi-cab and your ability to meet the requirements of s 11(2)(a) and/or (b)(i) and (ii) of the Passenger Transport Act 1990. Your criminal record, combined with your traffic record shows that you do not have sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom. Evidence 4 Mr Brown has a lengthy record of traffic offences. He has been convicted of two offences of middle range Prescribed Concentration of Alcohol (PCA), two offences of driving while disqualified and one of driving while cancelled. He has seven other traffic offences relating to driving an unregistered or uninsured vehicle and having number plates calculated to deceive. He has also been convicted of at least eleven other offences including exceeding the speed limit and not giving a proper signal. Mr Brown said the last of these offences was committed over six years ago and he would never drink and drive now. 5 Mr Brown has also been convicted of numerous criminal offences. During the period from 1981 to 1989 he was convicted of at least 13 counts of possessing, smoking and cultivating Indian Hemp. On 18 September 1998, he was convicted of "goods in personal custody reasonably suspected of being stolen, supply prohibited drug, possession of prohibited drug and self administer prohibited drug." He was fined $600 altogether for these offences and subjected to periodic detention for 3 months. He was also given a recognisance under s 558 of the Crimes Act 1900 to be under the supervision of the NSW Probation Service for two years. 6 The Police Fact Sheet indicates that on 21 March 1998 plain clothes police entered a bar. They witnesses Mr Brown selling a bag of marijuana to another man for $20.00. Both men were arrested and searched. Police found 17 resealable plastic bags on Mr Brown each containing marijuana. The total weight of the marijuana in Mr Brown's possession was 14.4 grams. 7 In relation to the drug offences Mr Brown said that he used to smoke marijuana a lot but he doesn't smoke any more. He said he had "never touched any hard powders." Mr Brown attended a nine week drug rehabilitation course and was issued with a certificate of attendance on 15 December 1998. 8 On 4 January 1996 Mr Brown was convicted of assault occasioning actual bodily harm and was sentenced to 150 hours of community service. The Police Fact Sheet in relation to that incident indicates that Mr Brown had an argument with his ex de-facto partner. During the course of the argument he struck out at her with his right fist. The victim shielded herself with her right arm and Mr Brown struck her on the forearm a number of times. When Mr Brown came towards her again, the victim fell backwards striking her head on the floor. She had a blackened left eye, a lump on the right side of her head and a cut on her nose and left temple. When Mr Brown was interviewed by police he said "I just hit her with an egg lifter." 9 In relation to this offence, Mr Brown said in oral evidence that he is not a violent person but he "did hit his wife with a spatula and she got a tiny cut on her head, but it bled a lot. I've never been a thief or a pest on society." 10 On 3 November 1999, Mr Brown was convicted of maliciously destroying or damaging property and fined $1000. The fact sheet in relation to this offence indicates that Mr Brown was refused service in a bar because he was well affected by alcohol. He became aggressive and swiped at a glass that was sitting on the bar. The glass narrowly missed the barman. Mr Brown then picked up a bar stool and swung it across the bar. The stool hit a coffee machine causing parts of it to break. When police attended Mr Brown said "I'm sorry, I just lost it for one second." 11 In relation to this offence Mr Brown said in oral evidence that his wife rang him earlier in the day to say she was having an affair with his best friend. He went to the pub, got drunk and damaged a coffee machine. 12 Mr Brown says that he has now "turned the corner." The last offence he committed was in October 1999. He has attended church regularly for the last four months. He has completed the training to be a taxi driver and is currently doing a two month training course on computers. 13 He provided a reference from an elder in the Jehovah's Witness congregation who has driven taxis for 23 years. He said that Mr Brown "acknowledges he has made mistakes but is sincerely determined to do well, not only in his work but as a father and a Christian." 14 Mr Brown also relied on several other references. One was from the St Vincent de Paul Society from whom he had sought assistance in February 2000 after his son had come to live with him. The reference, from a Family Support Worker, states in part, that: Since Nicholas has been here, he has made every attempt possible to improve the quality of life for himself and his son. He started the taxi course with a positive idea that he would be able to work around the needs of his son. . . . We are aware of the offences listed and the reasons behind the rejection of his licence, however we ask that you review the decision as circumstances have changed in Nicholas's life. No offences have been committed since (his son) came into his full time care and his son is his main priority. Nicholas has presented to us as a concerned and caring parent . . . 15 A letter dated 29 May 2000 from the Principal of the school which Mr Brown's son attends states, in part, that: . . . (the boy's) father has developed a supportive relationship with teachers at the school. Legislation 16 Section 12 of the Passenger Transport Act 1989 (the Act) gives the Director General a discretion to grant authorities, 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. 17 The issue in this case is whether, in the light of the responsibilities and expectations of a taxi driver, the applicant is a "fit and proper person" to hold a taxi authority and whether he has "sufficient responsibility and aptitude" to drive a taxi. 18 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." 19 I have discussed the concepts of "fit and proper" and "good repute" in previous cases (See Saadieh -v- Director General Department of Transport [1999] NSWADT 68.) In that case, I set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain an authority. These factors were: · 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. Submissions 20 Mr Wozniak representing the Director General submitted that Mr Brown has a long string of traffic offences and some relatively minor criminal offences. The last offence was committed only 12 months ago in October 1999. In Mr Wozniak's submission there has not been enough time since the last conviction for Mr Brown to be able to prove that he has "turned the corner" as he claims. Reasons and decision 21 Mr Brown impressed me as a truthful witness and I accept his evidence. He has been convicted of numerous traffic offences and some relatively minor criminal offences. The Police Fact Sheets record a fuller version of events relating to the offences than Mr Brown gave, but in general, his evidence was consistent with those Fact Sheets. 22 His criminal convictions mean that his reputation in the community is less than perfect, however I believe that he is sincere when he says he has turned the corner in recent times. Although it is only 12 months since he was convicted of malicious damage to property, since that time he has conducted himself in a way which demonstrates his commitment to a responsible lifestyle and to providing for his son. This is supported by several character references. In addition, he has made considerable efforts to re-train himself and has not been involved in any criminal activity. 23 Mr Brown's traffic record is relevant to the question of whether he has sufficient responsibility and aptitude to drive a taxi in accordance with law and custom. During the period from December 1983 to March 1994 he committed 25 traffic offences. It has now been over six years since he has committed any traffic offences. He was disqualified from driving for at least 6 months of that period, but nevertheless he has a considerable infringement free period. 24 In all these circumstances I am satisfied that Mr Brown meets the requirements set out in s 11(2) of the Passenger Transport Act 1900 and that the decision to refuse a taxi authority should be set aside. Orders The decision of the respondent to refuse the applicant's application for a public passenger vehicle authority to drive a taxi is set aside. In substitution of that decision, a decision is made to grant the applicant a public passenger vehicle authority to drive a taxi.