Sterjovski -v- Director General, Department of Transport [2002] NSWADT 10

CITATION: Sterjovski -v- Director General, Department of Transport [2002] NSWADT 10 DIVISION: General Division APPLICANT PARTIES: Krste Sterjovski RESPONDENT Director General, Department of Transport FILE NUMBER: 013302 HEARING DATES: 14/01/2002 SUBMISSIONS CLOSED: 01/14/2002 DATE OF DECISION: 01/30/2002

BEFORE: Montgomery S - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - suspension of authority - Taxi driver - suspension of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 CASES CITED: McDonald v Director General of Social Security (1984) 1 FCR 354 B v Director General, Department of Transport 2001 NSWADT 203 ("B") Farquarson v Director General, Department of Transport 1999 NSWADTR 53 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director General, Department of Transport, suspending Mr. Sterjovski's authority, is affirmed.

Background 1 These proceedings relate to a determination made by the Director General, Department of Transport ("the Department") to suspend the Taxi Driver Authority number AK8769 held by Mr. Krste Sterjovski ("Mr. Sterjovski"). In making the determination the Department relied on advice received from the New South Wales Police Service that a Warrant had been issued for Mr. Sterjovski's arrest as a result of an alleged assault which occurred on 28 June 2001, and on a complaint received by the Department that Mr. Sterjovski had become abusive and had physically assaulted a passenger. 2 Mr. Sterjovski is a taxi driver. He is 46 years of age, has dependants and has no other source of income. He has a long career as a taxi driver and is understandably concerned to ensure that the decision by the Department to suspend his authority is the correct and preferable one having regard to all the relevant material and law. 3 By letter dated 20 November 2001 the Department advised Mr. Sterjovski that it had determined to suspend his authority. 4 The Statement of Reasons advised that the Department has a continuing obligation under the Passenger Transport Act 1990 ("the Act") to ensure only fit and proper persons drive public passenger vehicles. The fact that the behaviour that led to the alleged assault and the warrant for Mr. Sterjovski's arrest occurred as a result of Mr. Sterjovski's employment as a taxi driver may mean that Mr. Sterjovski does not have sufficient responsibility to drive a taxi-cab in accordance with law and custom. Having regard to the matters raised, and considering the interests and safety of the travelling public, the Department could no longer attest that Mr. Sterjovski is considered to meet the required standards for authorisation as a taxi-cab driver. 5 Mr. Sterjovski applied for internal review of the Department's decision, and by letter dated 7 December 2001 the Department advised Mr. Sterjovski that the initial decision to suspend his authority was confirmed on review. 6 The Department advised that it considered it likely that a reasonable member of the travelling public would regard the offence of which Mr. Sterjovski is charged as sufficient to justify immediate action against his authority to drive a taxi-cab. It considered that a reasonable member of the travelling public would be outraged if they were to learn that their driver was to appear before a Local Court on a serious charge involving an offence said to have occurred whilst he was in control of a taxi-cab. 7 On review the Department's delegate confirmed the refusal of Mr. Sterjovski's application, saying that "[t]aking all relevant information into consideration, I cannot attest, at this time, that you are a person of good repute and in all respects a fit and proper person to be the driver of a taxi-cab." Reviewable decision 8 The reviewable decision is that of the Department to suspend Mr. Sterjovski's authority to drive a taxi-cab, advised to Mr. Sterjovski by letter dated 20 November 2001. 9 Mr. Sterjovski applied for review of that decision to this Tribunal by Application dated 11 December 2001. The matter was listed before the Deputy President on 14 December 2001 for a hearing of an urgent stay application. That stay was not granted. Nature of proceedings 10 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). 11 These are not adversarial proceedings in which the applicant carries an onus of proof. The applicant, by making the application, triggers a process of merits review by the Tribunal. The applicant does not take on the responsibility of having to prove a case, nor does an applicant cause an administrator to have to prove a case. The applicant and the administrator are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 12 Section 63(1) of the ADT Act provides that 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 any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the administrator'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). 13 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 14 The issue for this Tribunal is: what is the correct and preferable decision? The Act sets out the applicable law. Section 14 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. 15 Section 11(2) of the Act provides: "(2) 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: