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: (i) in accordance with the conditions under which a public passenger service is operated; and (ii) in accordance with law and custom." 16 The decision to be made is whether Mr. Sterjovski can be 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" such that an authority can attest to that status. 17 It is clear from the correspondence and the Department's file that the Department decided that an authority would attest to neither Mr. Sterjovski's being of good repute, nor his fitness and propriety to be the driver of a public passenger vehicle. Evidence 18 The Department's file was put in evidence and the Department relied on the documents contained within that file. 19 Mr. Sterjovski presented evidence on his own behalf. Several written testimonials were provided in support of Mr. Sterjovski's application. The Department's case 20 Evidence of Mr. Sterjovski's not being of good repute is in the statement to police made by Paul Dries on 28 June 2001, and in the complaint referred by Rod Schneider to the Department on 29 June 2001 in relation to the same incident. Each of these documents is contained on the Department's file. 21 Mr. Wozniak for the Department also referred the Tribunal to a medical certificate issued by Dr. Mahesh Patel of the Wollongong Medical Centre which stated that Mr. Dries had presented for medical attention on 28 June 2001 with the following injuries: 1. Bruise over right forearm; 2. Bruise right jaw or and left eyebrow; 3. Small Bruise right back/hand 22 The complaint referred by Rod Schneider to the Department on 29 June 2001 indicated that the complainant, Mr. Dries, had advised that he had booked a taxi to go from 2 Hercules Street, Wollongong to Market & Thomas Streets, Wollongong on 28 June 2001 at 5:40 pm and arrived at 5:45 pm. The complainant stated that when he booked the service he informed the Operator that he only had a $50.00 note but when he told the taxi driver, the driver stated he had no change for $50.00. The metered fare was $3.80 plus $1.10 for the booking fee giving a total fare of $4.90. The complainant got out of the taxi, dropped off a parcel at the destination address and then walked around the corner to a shop to get change for the fare. During this time, the driver was shouting obscenities at him and when the complainant gave the driver the money, the driver got abusive, got out of the cab, punched the complainant and ripped his jacket. The complainant advised that he had reported the incident to the police and had two witnesses. 23 The Statement provided by Mr. Dries to the police is consistent with the information contained in the complaint referred to the Department by Rod Schneider but provided greater detail of the alleged incident. Mr. Dries stated that Mr. Sterjovski had obtained change before Mr. Dries had been able to do so but only offered Mr. Dries $42 change from the $50 note. Mr. Sterjovski had kept the meter running while Mr. Dries had gone to obtain change. 24 Mr. Dries had disputed Mr. Sterjovski right to the extra amount and sought the forty five dollars change. Mr. Sterjovski insisted that Mr. Dries pay the full fare. Mr. Sterjovski then got out of the car and he came around in front of Mr. Dries and demanded the fare. Mr. Dries assured him that he would pay the fare but Mr. Sterjovski grabbed him by the shirt, ordered him to get back in the car and tried to physically force him into the car. Mr. Sterjovski then punched his right fist into Mr. Dries' side three or four times, hit him once in the head and slammed the door. Mr. Dries waited till Mr. Sterjovski walked to the other side of the car, got out of the car and attempted to walk towards the Police station. Mr. Sterjovski caught up to him and punched him in the face twice. Mr. Dries tried to walk the opposite direction but again Mr. Sterjovski caught up to him and again punched him into his right side and into the right side of his face a few times. 25 Following this altercation Mr. Sterjovski again insisted that Mr. Dries pay the full fare. Mr. Dries then gave him the fifty dollars and Mr. Sterjovski gave him forty two dollars change. Mr. Sterjovski then punched him into his side again. Mr. Sterjovski then grabbed Mr. Dries and tried to swing him away from the car. Mr. Dries grabbed onto the antenna of the car and it bent. Mr. Sterjovski then punched him a few more times, got into the taxi and drove away. 26 Correspondence from the police to the Department suggests that the police had been unable to contact Mr. Sterjovski in relation to the events, and consequently a warrant was issued. 27 Mr. Sterjovski has no history of criminal offences, however charges have been laid in relation to the alleged assault and these are currently before the Wollongong Local Court. It was the initiation of those proceedings which raised for the Department a question as to Mr. Sterjovski's reputation. The existence of the criminal proceedings form part of the material to which I may have regard. The findings of the Local Court in the assault proceedings will be relevant both to Mr. Sterjovski's reputation and to his fitness and propriety. The Department would take those findings into account in assessing whether further action should be taken against Mr. Sterjovski or whether this suspension would be lifted. 28 Mr. Wozniak submitted that the Department was entitled to act on the material which was available to it at the time the determination to suspend Mr. Sterjovski's licence was made. The Department is under no obligation to wait until the Local Court matter is finalized prior to taking action against Mr. Sterjovski. On the basis of the information which was available to it at the time, the Department determined to suspend Mr. Sterjovski licence pending the outcome all the local court matter. If the assault charges are not proven, Mr. Sterjovski licence will be reinstated. If a conviction is recorded against Mr. Sterjovski then his licence will be cancelled. 29 In support of its submissions, the Department referred the Tribunal to the decision of this Tribunal, Judicial Member Foster presiding, in the matter of B v Director General, Department of Transport 2001 NSWADT 203 ("B"). In that matter the Judicial Member affirmed the Director General's determination to suspend B's authority to drive public passenger vehicles as a consequence of a complaint lodged against B which alleged that B had indecently assaulted a student. The director General stated in the reasons for the decision to suspend B's authority, that the serious nature of the allegations caused the Director General to doubt whether he could attest to B's good repute. The Judicial Member observed that B's reputation was at risk as a consequence of the complaints made, the investigation and resolution in due course. 30 The Judicial Member referred to the decision of the President of this Tribunal in the matter of Farquarson v Director General, Department of Transport 1999 NSWADTR 53 ("Farquarson") where the President stated at paragraph 20: "Regulatory schemes which provide for the issuance of licences on the basis of satisfaction as to a licensee's fitness and character usually include as part of their continuing oversight powers a power to suspend the licence for public interest reasons. Whilst it is the case that a person charged with a criminal offence must be presumed innocent until proven guilty it does not follow the consequences that lie outside the criminal law may be avoided. Civil consequences typically attached to the laying of criminal charges in various categories of public sector employment. Commonly, a public sector employee maybe stood down with or without pay depending on the statutory provisions. An Administrator of a licensing scheme would be expected to respond to advice that a regulated person had been charged with a serious criminal offence especially one arising out of circumstances that bear directly on the activity in relation to which the licence has been issued." 31 Further at paragraph 22 the President continued: "In considering whether to exercise any discretion to suspend or otherwise interfere with the licence an Administrator cannot reasonably be expected to inquire into the strength or weakness of the case against the licensee. Similarly a review tribunal cannot be expected together behind the information on which the Administrator has relied to the extent of examining the strengths and weaknesses of the prosecution case." 32 In the matter of B , Judicial Member Foster stated at paragraph 13: "The circumstances of the conduct alleged in the complaint are such that the conduct complaint all occurred during the performance of the applicant's licensed occupation." 33 The Department submitted that the circumstances of this matter are comparable to those in B , in that the alleged assault occurred in relation to Mr. Sterjovski's dealings with his passenger. The situation would be different if the alleged assault had occurred while Mr. Sterjovski was off-duty. However, the alleged assault occurred while Mr. Sterjovski was performing duties authorised by his licence, the alleged assault was a serious matter in which a complaint was lodged with the police and medical attention was sought by the passenger. These are issues which the Department could take into account in determining to suspend Mr. Sterjovski licence. 34 Mr. Wozniak submitted that is not appropriate for the Tribunal to consider the strengths or weaknesses of the case against Mr. Sterjovski. The Tribunal must determine whether the Department made the correct and preferable decision. He submitted that in the circumstances, the decision made by the Department was the correct decision. Mr. Sterjovski's case 35 Evidence of Mr. Sterjovski being of good repute comes from the written testimonials tendered on his behalf. Evidence of his being a fit and proper person to hold an authority comes from those documents, his own evidence, and his driving history. 36 Several written testimonials were provided in support of Mr. Sterjovski's application. These testimonials each stated that the author had known Mr. Sterjovski for some period of time and stated that he was a person of good repute. 37 Lube Panovski stated that he had known Mr. Sterjovski for several years, the last five as an employee. Mr. Sterjovski had shown himself to be an honest and hard-working person. He is a diligent employee, punctual, polite and courteous. 38 Nik Krkovski stated that he has been Mr. Sterjovski's customer for the past ten years. He has used Mr. Sterjovski services on a regular basis during that time. He referred to Mr. Sterjovski's honesty and stated that he had no hesitation in recommending Mr. Sterjovski. 39 L. Stefanovski presented a testimonial on behalf all the Macedonian Orthodox community or Wollongong. The testimonial states that the author has known Mr. Sterjovski through the Macedonian Orthodox community and that Mr. Sterjovski is a person of good character. 40 Elio Petrov provided a testimonial on behalf of the Fraternity Bowling and Recreation Club of Fairy Meadow. The author states that Mr. Sterjovski has been a polite and loyal patron of the club for seven years and is well-known and respected in the Wollongong area and has impressed with his honesty and trustworthiness. 41 Mr. Sterjovski gave evidence in support of his application, and provided an account of the event which lead to the charges relating to the alleged assault. 42 Mr. Sterjovski evidence is that he picked up the passenger, Mr. Dries, for a short trip to allow the passenger to drop off some equipment to a nearby workshop. The passenger did not have the correct fare and advised Mr. Sterjovski that he would need to obtain change. Mr. Sterjovski agreed to wait for the passenger while he went to get change for a $50 note to pay the $5 fare. 43 While Mr. Sterjovski waited for the passenger to obtain the change, the taxi meter continued to accrue the fare. When the passenger returned the fare had risen to $8. The passenger refused to pay more than the original $5 fare. A dispute arose during which each of the passenger and Mr. Sterjovski exchanged some physical contact and the passenger broke the taxi radio aerial. Following this exchange Mr. Sterjovski drove to a nearby police station with the intention of meeting the passenger there so that the issue could be discussed with the police. However, the passenger failed to attend the police station. Mr. Sterjovski searched the nearby area, failed to locate the passenger, and then returned to his work. 44 Mr. Sterjovski did not lodge a complaint with the police, nor take any other action in relation to the passenger. He stated that he made several attempts to contact the police in relation to the complaint lodged by Mr. Dries but had been unable to speak with the officer dealing with the issue. 45 Mr. Sterjovski submitted that he has not been found guilty of the assault charges and denies that he is guilty of those charges. It is therefore unfair to suspend his licence in circumstances where the charges may be dismissed. Finding 46 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 preliminary nature of the allegations and the fact that while charges have been laid in relation to the allegations of assault, no determination has been made in regard to those charges; - the seriousness of the conduct to which the allegations relate; - the fact that such conduct is alleged to have occurred in the performance of Mr. Sterjovski's licensed occupation; - the responsibility of the Department under section 11 of the Act and the Act's objects; - the interim nature of the decision to suspend; - Mr. Sterjovski's previous good character and the references provided on his behalf; - Mr. Sterjovski's denials of the allegations; and - the limited role the Tribunal has in reviewing the decision to suspend, and only that decision. 47 In my view, the authorities referred to by the Department provide a correct statement of the law. The material available to the Department, including the complaint made to the taxi company and the statement provided to the police, was material which the Department could reasonably take into account in deciding whether to take action in relation to Mr. Sterjovski's licence. I note that the medical report provided by Dr. Patel was not available to the Department until the matter came before the Tribunal in relation to an application for a stay of the Department's determination. Notwithstanding that fact, this is a matter which can be taken into account by the Tribunal. 48 On the basis of the material which was available to the Department, the obligations on the Department to make decisions in the public interest and for the protection of the travelling public, and the serious nature of the allegations, it was reasonably open to the Department to determine that serious questions had been raised in relation to Mr. Sterjovski's suitability to hold a taxi drivers licence. In those circumstances it was reasonable for the Department to determine that Mr. Sterjovski licence should be suspended pending the outcome of the Local Court matter. This view is reinforced by the existence of the report from Dr. Patel. In my view the Department's determination was the correct one. Order 49 Having considered all of the matters set out above, I make the following order: The decision of the Director General, Department of Transport, suspending Mr. Sterjovski's authority, 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.