Appeal Panel - Internal CITATION: Kumar v Ministry of Transport [2006] NSWADTAP 68 APPELLANT PARTIES: Raj Kumar RESPONDENT Ministry of Transport FILE NUMBER: 069058 HEARING DATES: 14/12/06 SUBMISSIONS CLOSED: 12/14/2006 DATE OF DECISION: 12/22/2006 BEFORE: O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Blake C - Non Judicial Member CATCHWORDS: finding contrary to evidence MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 063128 DATE OF DECISION UNDER APPEAL: 09/05/2006 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 CASES CITED: Kumar v Ministry of Transport [2006] NSWADT 259 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 APPELLANT In person REPRESENTATION: RESPONDENT A Wozniak, solicitor, Smythe Wozniak Solicitors ORDERS: The appeal is allowed in part. The suspension is reduced by one month. REASONS FOR DECISION 1 Mr Kumar holds a taxi driver authority under the Passenger Transport Act 1990 (the Act). The respondent administrator cancelled the authority (internal review determination made 29 March 2006). The applicant applied to the Tribunal for review. The decision was stayed pending hearing of the application for review in the Tribunal. The Tribunal varied the decision of the administrator substituting a suspension of six months. That decision was made on 5 September 2006: see Kumar v Ministry of Transport [2006] NSWADT 259. 2 Mr Kumar now appeals against the decision. There is no stay in force. So he has already served over 3 months of the suspension period. 3 The appeal is made under ss 112, 113 of the Administrative Decisions Tribunal Act 1997. An appeal may be made as of right on a 'question of law' and leave may be granted by the Appeal Panel to extend the appeal to the merits. 4 For the reasons which follow, our decision is that the appeal should be allowed in part and the suspension reduced by one month. This will permit Mr Kumar to return to the road on 5 February 2007. 5 Mr Kumar's overall record since being granted a driver authority in 2001 is poor. This is the second time that the administrator has disciplined Mr Kumar. In 2004, following receipt of 19 complaints in the three years since Mr Kumar had received his authority, the administrator suspended him. Mr Kumar was required to undertake retraining in Taxi Driver Knowledge and in Rules and Regulations. In November 2004 the Tribunal affirmed the administrator's decision. Mr Kumar completed the retraining in March 2005. 6 Many of the 19 complaints related to overcharging by reason of using the overnight tariff, Tariff 2, rather than the lower Tariff 1 which applies in the ordinary day. Some of the complaints contained allegations of dangerous driving, not taking the most direct route and rudeness. 7 On this occasion the administrator took action on the basis of the following additional complaints against Mr Kumar: two complaints made 1 October 2004 and 5 October 2004 for demanding more than the prescribed fare; complaint dated 24 January 2006 (assault and incivility); on 24 February 2006, driving a taxi-cab in contravention of a condition of the taxi-cab's licence (being to operate only between 12 pm and 5 am) and infringing required standards in other respects, giving rise to the issuance of an infringement notice and payment of a fine of $750; and a further complaint, 21 March 2006 (fail to drive by shortest practical route). The administrator concluded that Mr Kumar could no longer be regarded as a person who possessed the attribute of 'good repute' or was a person who could otherwise be regarded as a 'fit and proper' person to hold an authority (see Act s 33). Accordingly, the licence was cancelled. 8 In the proceedings in the Tribunal the two complaints of 1 and 5 October 2004 were not actively considered. The reason for this would appear to be that they belonged to the period before Mr Kumar underwent retraining. These complaints had to do with applying the wrong tariff. Mr Kumar states that the meter he uses has now been set in a way that ensures that Tariff 2 is not used outside the permitted hours. The Tribunal accepted this explanation. We refer further to this matter later in these reasons. 9 The hearing before the Tribunal examined the other matters. Most of the hearing time was spent dealing with the assault and incivility complaint, one of great seriousness. There was a physical altercation between Mr Kumar and a passenger. The passenger lodged a complaint with the administrator. He also lodged a complaint with the police, but did not pursue it. No criminal charges were laid. Mr Kumar's evidence is that he lodged a complaint with the police, but that has not led to any action against the passenger. 10 Ultimately the Tribunal decided not to have regard to the event of 24 January 2006 and excluded it from its consideration: see para [40] of its reasons. In the course of reaching that conclusion the Tribunal referred to various reservations it had about aspects of Mr Kumar's evidence relating to his conduct in the aftermath of that incident. 11 The Tribunal then went on to look at the remainder of the grounds relied upon by the administrator. As noted earlier, these grounds included Mr Kumar's history prior to the disciplinary action of 2004 as well as his complaint history since. 12 The critical part of the Tribunal's reasons commences at para [41]: '41 I am however satisfied that it is probable that there is some merit in the complaints of overcharging made against Mr Kumar. I accept that the majority of those complaints date to before he was required to undertake retraining. The most recent complaint lodged on 21 March 2006 is that he failed to drive by shortest practical route. I am satisfied that it is probable that the complaint has some merit notwithstanding that he disputes it. It seems to me that it is implausible that Mr Kumar would have agreed to waive the fare if the complaint was without any merit. 42 I do not accept Mr Kumar's explanation for the times when he drove his taxi outside the authorised period. In my view, these are serious breaches of the legislation and warranted action against his authority. 43 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] the Tribunal's Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority as follows: "17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; the nature, seriousness and frequency of any complaints made against the applicant; the applicant's driving record; the applicant's reputation in the community; and the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 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." 44 In my view, the evidence shows that Mr Kumar has been the subject of numerous complaints almost from the time he commenced driving a taxi. They are generally related to overcharging or failing to travel by the most direct route. These are serious complaints. 45 I am satisfied that Mr Kumar has probably resolved the issue of overcharging as a result of using the wrong tariff by replacing the meter in his taxi. The issue of operating his taxi outside the authorised period has been resolved by changing the status of his taxi from a night-time taxi to a full-time taxi. It therefore seems unlikely that these types of complaint will re-occur. 46 The issue of failing to travel by the most direct route is more troublesome. Mr Kumar has previously been required to undertake retraining and that does not appear to have resolved the issue. In the circumstances it is my view the likelihood that Mr Kumar will re-offend, or be the subject of further complaints is unacceptably high. It will remain so unless his geographical knowledge is improved significantly. For this reason I do not consider that he has sufficient aptitude to drive a taxi. I note that he has already undertaken retraining in regard to geographical knowledge. 47 It is my view that under these circumstances some action against Mr Kumar's authority is justified. I do not agree that the authority should be cancelled but rather that a period of suspension is warranted. In the circumstances it is my view that a six-month period of suspension is reasonable. I recommend that during the period of suspension he take steps to address the issue of his geographical knowledge and to generally familiarise himself with the rules and regulations under which taxi drivers are required to operate. 13 As to these conclusions, we are inclined to agree with one of Mr Kumar's criticisms. The complaint the Tribunal regarded as 'most troublesome' (failing to travel by the most direct route, made 21 March 2006) is not, we think, that clear-cut. 14 The Ministry's record (CFI ID 22750) is: 'GG4613 The caller complained on 21/03/06 from Pyrmont to the City the driver GG 4613 did not know the way to go. The claler (sic) stated as soon as she hopped in cab he asked her for directions. The caller stated they went all around the world to get to Bligh Street. The caller stated she was charged $17.00 forthe (sic) journey but the driver told her there would be no charge as long as she did not complain. The caller stated she was very late for a meeting which should not have happened.' [In light of the time details shown on the taxi voucher in evidence before the Tribunal (start 2.15 pm, finish 2.40 pm)and the time details shown on the Ministry's taxi complaint registration system (2:42:25 pm), it would seem that the complaint was lodged straight after the trip ended.] 15 The pick-up point was Murray Street, Pyrmont on the western side of Darling Harbour, and the destination was Bligh Street, at the northern end of the Sydney CBD (approx 3 km by road). There was no evidence provided in the administrator's statement of reasons as to what the shortest practicable route would have been; and what the usual charge might be. Mr Wozniak, representing the administrator, confirmed to us that there was no evidence before the Tribunal as to what the most direct route would be; and what the usual charge might be. 16 Road arrangements in the Pyrmont area are complex, as are the traffic arrangements that affect the centre of the city. We have examined the current schedule of taxi charges (see http://www.transport.nsw.gov.au/taxi/fares.html). Our estimate is that the minimum fare for the trip would be about a $8.00-$9.00 ($2.90 flag-fall, plus $1.68 per km), not taking account of stoppage time (which is charged at 72.17 cents per minute). The fare charged suggests a journey that took about 20 to 25 minutes. In our view, this may not be an exceptional length of journey or charge in the (possibly) congested areas of the Sydney CBD. The complainant was not produced to give evidence as to the route followed. Mr Kumar says in his defence that he was obliged by the fact that he was in a left hand turn only lane in Murray Street at the pick-up point to follow the route that he did. He says that on the route he followed he ran into a traffic stoppage at the corner of Elizabeth and William Streets in the CBD, which is a few blocks south of Bligh Street. 17 He agreed that he offered to waive the fare as his passenger was upset. He had hoped if he waived the fare that she would not complain, for the reason that he feared what action might be taken against him if there were more complaints to the Ministry. He denied trying to stop her making a complaint. 18 The administrator's position is that the appeal should be dismissed because no errors of law in the underlying decision are revealed. The negative inferences drawn in relation to Mr Kumar's conduct on 21 March 2006 depended significantly on the premise that an overcharge had occurred and an unusual route was followed. We are not satisfied that this premise was established. 19 There was an absence of basic information as to what the shortest practicable route might be; and how much the charge would be likely to cost at that time of the day in the CBD. There is no evidence as to possible traffic conditions, or evidence directly from the passenger. 20 Were this part of a pattern of similar complaints in recent times, these objections would not be as strong. But on this occasion the Tribunal's decision turned substantially on its assessment of this one complaint. We are not satisfied that the negative inferences drawn by the Tribunal should have been drawn. 21 We accept that had the matters upon which the administrator originally took action been established, the order for cancellation would have been appropriate. But now we have a situation where the Tribunal reduced the cancellation to a six months' suspension, having substantially put to one side the assault and incivility incident. The penalty was primarily based on the adverse view it took of the complaint of 21 March 2006 and its indication of repetition of past misconduct. For the reasons we have given, we do not think that the complaint of 21 March 2006 can be accorded this degree of significance. 22 If this aspect of the Tribunal's findings is of lesser significance, and the very serious complaint of assault and incivility is not taken into account, then the primary matter negative to Mr Kumar (since he emerged from retraining in March 2005) is the events of 24 February 2006. We note that the Tribunal also gave some weight to concerns over aspects of his evidence in connection with the assault incident. 23 The following account of the events of 24 February 2006 is taken from the original reasons for decision of the administrator. This account has not been contested by Mr Kumar. 'On Friday 24 February 2006 you were observed by officers of the Ministry of Transport to pull up on a taxi rank at Qantas Domestic Terminal on Shiers Avenue Mascot. You were observed wearing a network shirt, however the shirt was creased, was dirty and had numerous coffee stains on the front of the shirt. You were also observed wearing grey board shorts and sand shoes. At the time you were driving taxi T9428, which has certain conditions attached to the license. The conditions are that the taxi-cab is available for hire only between the hours of 12 noon and 5 am only, every day of the year.' 24 These breaches of 24 February 2006 did warrant disciplinary action. 25 In our view, some reduction in the suspension should be made given the way the case against Mr Kumar now stands, with the grounds for disciplinary action largely confined to the incidents of 24 February 2006. In our view, a reduction of one month should be made, given our view that less weight must be accorded to the complaint of 21 March 2006 without better evidence. 26 We should indicate, moreover, that we have reservations in relation to Mr Kumar's aptitude to work in a regulated environment. First, we were deeply troubled by the contents of Mr Kumar's appeal submissions. They used language of the strongest and most abusive kind about compliance officers of the Ministry. This concern was put to him at hearing; and he responded basically that he was not a lawyer and did not know how better to express himself. We do not accept this explanation. There is, in our view, no justification for the use of such intemperate language. 27 We have doubts as to whether he accepts that he must take personal responsibility for how he behaves and how he expresses himself. In our view, he has a poor insight into the need to develop a more constructive and compliant relationship with the officials with whom he has to deal. In his oral submissions to us, he listed the various officials with whom he has to deal in a negative and hostile way (Ministry staff, parking officers, police, Airport security staff, taxi company managers and so on). 28 We have noted that a lot of the complaints in the past have made references to rudeness and argumentativeness. The community reposes great trust in drivers to be responsible, courteous and law-abiding. 29 We are unconvinced by his explanation given to the Tribunal below and to us suggesting that he has now fully solved the problem of overcharging and will not re-offend. So far as meter error is concerned, he sees that problem as having been fixed because his taxi now has technology, which, as we understand it, automatically links the time of day to the prescribed tariff. In our view the number of complaints that were made against Mr Kumar in the past on this score suggest that he had little regard to the need to make his own observations, and take personal responsibility, for ensuring that the tariff is set correctly. A driver would, we think, quickly develop an understanding of usual charges for usual routes. A driver would be well aware of the Tariff 1/Tariff 2 differential. There remains a real question as to Mr Kumar's honesty and integrity. The problem of overcharging is not solved simply by installing a machine. We have real doubts as to whether Mr Kumar is contrite or has any sense of remorse for his past misconduct. 30 He has now been suspended twice. He can, we think, expect little tolerance if he breaches standards in any serious way again. Order The appeal is allowed in part. The suspension is reduced by one month. 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