Touma v Ministry of Transport [2009] NSWADT 213

CITATION: Touma v Ministry of Transport [2009] NSWADT 213

DIVISION: General Division

APPLICANT Boutros Touma PARTIES: RESPONDENT Ministry of Transport

FILE NUMBER: 093124

HEARING DATES: 9 July 2009

SUBMISSIONS CLOSED: 9 July 2009

DATE OF DECISION: 12 August 2009

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Private hire vehicle – cancellation of Accreditation – cancellation of Driver Authority

LEGISLATION CITED : Passenger Transport Act 1990 Passenger Transport Regulation 2007

Health Care Complaints Commission v Litchfield, Matter No. CA40748/96 Kaikaty v Ministry of Transport [2005] NSWADT 135 CASES CITED: Kumar v Ministry of Transport [2009] NSWADT 114 Loye v Director General, Department of Transport [2000] NSWADT 145 Saadieh v Director General, Department of Transport [1999] NSW ADT 68

APPLICANT D Catts, solicitor REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 Mr Touma, the Applicant in these proceedings, holds a Private Hire Vehicle Accreditation and Driver Authority under the Passenger Transport Act 1990 ("the Act"). He has held his Driver Authority since April 2008 and his Accreditation since February 2009. He does not own or operate his own vehicle. 2 He has driven a hire car since May 2008 and undertakes between 20 and 40 jobs per week. Approximately 60-70% of these jobs are either to or from the Sydney airports. 3 It is not in dispute that in the time he has been driving a hire car the Applicant has received from the Ministry of Transport ("the Ministry") a number of infringement notices for "tout or solicit for passengers". Infringement notice dated 29 August 2008, 10 April 2009 and 4 May 2009 alleged that the Applicant was observed touting or soliciting for passengers inside the Sydney Airport Precinct and each imposed a penalty of $5,000. A further infringement notice issued by the Ministry was withdrawn after discussion between the parties. The Ministry has also issued the Applicant with infringement notices in relation to driving a hire car after his Driver Authority was cancelled. 4 In April 2009 the Ministry issued the Applicant with a 'Show Cause Notice' and invited him to provide submissions as to why his Driver Authority and Accreditation should not be cancelled. The Applicant submitted a response to the Show Cause Notice whereby he stated that he was new to the industry and had a lot to learn about the industry. He stated that he would abide by the rules and regulations in the future. 5 The Ministry determined to cancel the Applicant's Driver Authority and his Accreditation. He was advised of that determination by Notice dated 5 May 2009. 6 The Applicant has applied to the Tribunal for external review of the Ministry's determination. Applicable legislation 7 Section 38 of the Act empowers the Director General to accredit persons for the purpose of carrying on private hire vehicle services. Section 38(2) provides relevantly: (2) The purpose of accreditation under this Division is to attest: (a) that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a private hire vehicle service, and (b) that the accredited person has demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to: (i) financial viability, and (ii) safety of drivers, passengers and the public, and (iii) vehicle maintenance, to the degree and in the manner required in respect of services of the kind specified in the accreditation. … 8 Section 38D provides relevantly: 38D Conditions of accreditation (1) An accreditation under this Division is subject to: (a) the conditions prescribed by the regulations, and (b) such additional conditions as the Director-General, having regard to the purpose of accreditation under this Division, may impose on the accreditation. (2) Conditions imposed by the Director-General may be varied (whether by amendment, addition, revocation or suspension of one or more conditions) by the Director-General from time to time by notice served on the accredited person. (3) An accredited private hire vehicle operator who contravenes a condition of the operator's accreditation is guilty of an offence. 9 Section 38E provides relevantly: 38E Variation, suspension or cancellation of accreditation (1) Having regard to the purpose of accreditation under this Division, the Director-General may at any time vary, suspend or cancel any person's accreditation under this Division. (2) The accreditation of a corporation is automatically cancelled when there is no designated director or manager. 10 Section 40 of the Act empowers the Director General to authorise persons to drive private hire vehicles. Section 40(3) provides relevantly: (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 private hire vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle: (i) in accordance with the conditions under which the private hire vehicle service concerned is operated, and (ii) in accordance with law and custom. 11 Section 40D provides relevantly: 40D Conditions of authority (1) An authority under this Division is subject to: (a) the conditions prescribed by the regulations, and (b) such additional conditions as the Director-General, having regard to the purpose of authorisation under this Division, may impose on the authority. (2) Conditions imposed by the Director-General may be varied (whether by amendment, addition, revocation or suspension of one or more conditions) by the Director-General from time to time by notice served on the authorised person. (3) An authorised private hire vehicle driver who contravenes a condition of the driver's authority is guilty of an offence. … 12 Section 40E of the Act provides 40E Variation, suspension or cancellation of authority Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authority under this Division. 13 Clause 233 of the Passenger Transport Regulation 2007 ("the Regulation") provides: 233 No touting or soliciting for passengers or hirings (1) A person must not tout or solicit for passengers for, or for a hiring of, a public passenger vehicle. Maximum penalty: 50 penalty units (in the case of an offence committed in the Sydney Airport precinct) or 5 penalty units (in any other case). (2) The operator or driver of a public passenger vehicle must not, by the operator's or driver's employee, agent or contractor, tout or solicit for passengers for, or for a hiring of, a public passenger vehicle. Maximum penalty: 50 penalty units (in the case of an offence committed in the Sydney Airport precinct) or 5 penalty units (in any other case). The Ministry's case 14 The Ministry's decision to cancel the applicant's Driver Authority and Accreditation was based on three infringement notices issued in relation to breaches of the Regulation. 15 The Ministry relies on its files in relation to the Applicant's Driver Authority and his Accreditation, a statement by Mr Tony Mansour, a Compliance Officer with the Ministry, and oral evidence by Compliance Officers Mr Scott Watson, Mr Charlie Rosiello and Mr Ajit Nagpal. 16 Mr Mansour was unavailable to attend the hearing. Mr Nagpal, Mr Watson and Mr Rosiello each attended the hearing and were available to be cross-examined. Tony Mansour's evidence 17 Mr Mansour is a Compliance Officer with the Ministry. He stated that at about 7.30pm on 5 May 2009 he and Mr Watson were at the Sydney International Airport. He observed the Applicant standing beside a hire car, walked to where the Applicant was standing and had a conversation with him concerning the fact that his authority to drive a hire car was cancelled. He stated that he then informed the Applicant of his rights to appeal the decision and advised him that once he had completed his current job he must not transport any further passengers. Scott Watson's evidence 18 Mr Watson confirmed Mr Mansour's evidence of the discussion with the Applicant on 5 May 2009. Mr Watson also gave evidence of an incident at the Sydney International Airport Terminal on 10 April 2009. He stated that he observed the Applicant soliciting for passengers inside the terminal and subsequently spoken to the Applicant about it. He issued an infringement notice for the offence of 'Tout or Solicit for Passengers inside the Sydney Airport Precinct'. His evidence is that the Applicant approached a female and a male passenger and asked 'Do you want a taxi?' He denied the Applicant had used the words 'Do you want transport?' 19 The Ministry also relies on a document prepared by Mr Watson that sets out the hire car journeys that the Applicant had performed after his authority to drive a hire car was cancelled and before a stay was put in place. The Ministry asserts that during the period of cancellation, the Applicant performed thirty-four journeys without the appropriate driver authority. Charlie Rosiello's evidence 20 Mr Rosiello gave evidence of an incident at the Sydney International Airport Terminal on 4 May 2009. He stated that he started work at 6am and immediately observed the Applicant soliciting for passengers inside the terminal and subsequently spoken to the Applicant about it. He issued an infringement notice for the offence of 'Tout or Solicit for Passengers inside the Sydney Airport Precinct'. His evidence is that the Applicant approached passengers and asked 'Do you want a taxi?' 21 Mr Rosiello stated that he heard the discussion between the Applicant and the passengers and had told the Applicant to leave the premises or he would call the police. He agree that he refused to allow the Applicant to approach the passengers to get their details so that he could have witnesses to contradict Mr Rosiello's version of events. He asserted it was not necessary to allow the Applicant to approach the passengers as he had heard the conversation. Ajit Nagpal's evidence 22 Mr Nagpal gave evidence that he was conducting routine checks of hire car ranks at the Sydney Airport arrivals court on 8 May 2009 when he observed the Applicant driving a hire car. He requested that the Applicant produce his Driver Authority and he then recorded the details from the Authority. The following day he undertook a check of the Applicant's details and discovered that the Driver Authority had been cancelled. As the Applicant did not hold a current Driver Authority he was issued an infringement notice for the offence of 'unauthorised person drive hire car'. The Applicant's case 23 The Applicant relies on his own evidence and a number of testimonials that attest to his good character. While it is apparent that some of the authors of those testimonials were aware that the Applicant wishes to drive a hire car, none of the testimonials specifically address the issues before the Tribunal. 24 The Applicant provided an affidavit in which he addressed the issues raised in the Ministry's determination. His evidence is that he understood that the infringement notice issued on 29 August 2008 had been withdrawn. He subsequently conceded that is not the case. 25 The Applicant indicated that he has made application to the Court in regard to the infringement notice dated 10 April 2009 and that he intends to plead guilty. He concedes that he committed the offence but asserts that in doing so he was acting out of character. 26 The Applicant indicated that he intends to plead not guilty to the alleged offence referred to in an infringement notice concerning the incident at the Sydney International Airport Terminal on 4 May 2009. He denies that he touted or solicited for passengers on that day and disputes Mr Rosiello's version of the incident. He stated that he had merely had a conversation with passengers in regard to how much luggage they had and that he said 'You need a van to transport all this luggage'. He denied offering to carry them in his hire car. 27 He said that when he was confronted by Mr Rosiello and accused of touting he had denied the allegation and said to Mr Rosiello words to the effect: 'Let's go back and ask them' and 'I want to go back and ask them because they will tell you the truth, that I didn't ask them for transport'. He then walked to his car and got out his authority and gave it to Mr Rosiello, who took down his details. He then started walking towards where the passengers had been and Mr Rosiello said to him 'If you don't leave the airport I am going to call the Police'. He said that he left to avoid further trouble. However, he contends that as a consequence of Mr Rosiello's actions he was unable to obtain evidence that would disprove the alleged offence. 28 Under cross-examination the Applicant agree that he spoke with Mr Mansour on 5 May 2009 but denied that he was told that the decision to cancel his Drivers Authority was effective immediately and that he could not transport any further passengers. He indicated that he received notice of the determination to cancel his Driver Authority on or about the weekend of 9/10 May 2009. On 11 May 2009 he rang the Ministry to discuss the Notice to Show Cause and the Notice of Cancellation. He could not speak to anybody who could assist him and so he left a message requesting that somebody contact him urgently. No one contacted him that day and he rang again at 9 am on 12 May 2009. He was told to immediately hand in his Drivers Authority and he did so. 29 He concedes that he continued to drive after receiving the notice and said that he did so because he believed that he had 28 days to appeal the determination. He did not disagree with Mr Wozniak's assertion that the notice stated that he was required to immediately return his authority to the Ministry and that it also warned him that it is an offence to drive a public passenger vehicle without an authority. 30 His evidence is that he did not intend to commit any offences and that it was a mistake that he regrets. He contends that he should be allowed to continue driving. Submissions 31 Mr Wozniak submitted that the evidence of the Ministry's officers should be accepted. He submits that the evidence shows that the Applicant ignored the notice that his Driver Authority had been cancelled and the advice he was given by the Ministry's officers and continued to drive a hire car. He submits that the Applicant had no excuse for continuing to drive after he had received the notice of cancellation. 32 He pointed to the fact that the Applicant had had been given three infringement notices each of which imposed a penalty of $5,000. He said that the penalty is the second highest provided for by the legislation – the only offence that attracts a higher penalty is that of driving without an authority. 33 Mr Wozniak opposed the suggestion that the Tribunal should impose conditions that would allow the Applicant to continue to hold his Authority. In this regard Mr Wozniak referred to the New South Wales Court of Appeal decision in Health Care Complaints Commission v Litchfield, Matter No. CA40748/96 (8 August 1997). In that matter the Court held that the necessity for imposing a condition on the appellant's registration (that the doctor only saw female patients with a chaperone) demonstrated he was unfit to practice medicine and in those circumstances the only appropriate orders was one dismissing the appeal. 34 Mr Wozniak submitted that the same situation exists in this matter. Should the Tribunal determine that the Applicant could hold his authority subject to conditions, then not only would such conditions become difficult to enforce but it would also demonstrate that the Tribunal itself has concerns. 35 Mr Wozniak urged caution in attributing weight to the testimonials provided on behalf of the Applicant that do not specifically address the issues with which the Tribunal is concerned, and submits that they are of little use. In support of that submission he referred to the views expressed by Judicial Member Rice in Loye v Director General, Department of Transport [2000] NSWADT 145. 36 Mr Catts referred to a number of decisions in which this Tribunal has considered the criteria to be met. In particular he referred to my decision in Kaikaty v Ministry of Transport [2005] NSWADT 135 and the authorities to which I referred in that matter. He submitted that the Applicant has either met or not breached each of the criteria. He further submitted that those authorities that are against the Applicant could be distinguished on their facts. 37 He submits that it is clear from Saadieh v Director General, Department of Transport [1999] NSW ADT 68 that the overriding consideration is 'what is best for the travelling public?' He says that the frequency of the Applicant's breaches would not give the travelling public cause for concern nor would it suggest that the Applicant is not a fit and proper person to continue to hold a Driver Authority. Mr Catts referred to a number of testimonials that indicate that the Applicant is a person of good repute. 38 He submits that it is apparent from the facts in Kumar v Ministry of Transport [2009] NSWADT 114 that the Ministry allows 'one free kick' before taking action. He submits that after almost a year the Ministry has not taken any action in relation to the infringement notice dated 29 August 2008. The Applicant has admitted that he was soliciting for passengers on 10 April 2009 and he denies the alleged incident on 4 May 2009. Mr Catts submits that in the circumstances the Applicant should be permitted to retain his Authority. He further submitted that the Applicant would consent to the imposition of conditions on his Driver Authority. Consideration 39 It is not in dispute that the Applicant has received three infringement notices each of which imposes a penalty of $5000 for the alleged offence of touting or soliciting for passengers and further notices for the alleged offence of driving a hire car after his Driver Authority was cancelled. The Applicant has admitted the April 2009 offence and has denied the 4 May 2009. He explains the August 2008 incident as being the result of his inexperience in the industry. 40 The Applicant has disputed Mr Rosiello's account of the incident on 4 May 2009 and he has questioned the accuracy of Mr Mansour's account of the conversation on 5 May 2009. 41 Mr Rosiello conceded that on 4 May 2009 he prevented the Applicant from speaking with the passengers who would have been in a position to confirm or deny his assertions in regard to the conversation that he had with them. The Applicant proposes to plead not guilty to that alleged offence. In the circumstances I do not make any finding against the Applicant in regard to the incident on 4 May 2009. 42 Mr Mansour was not available for cross-examination however Mr Watson gave evidence of the circumstances in which the conversation between Mr Mansour and the Applicant on 5 May 2009 took place. I note that the Applicant's command of the English language is not strong and that he had the assistance of an interpreter for the purposes of the hearing. It is possible that this factor affected his understanding of what Mr Mansour told him. Nevertheless, in my view it is unlikely that following the conversation with Mr Mansour the Applicant would not have been aware that his Driver Authority had been cancelled. It is possible, though unlikely, that he might have left the conversation thinking that he would receive written notice of the cancellation and that he could continue to drive a hire car until he received that notice. 43 The Applicant conceded that he received written notice of the cancellation on about 9 or 10 May 2009. He agreed that he read the correspondence and did not suggest that he had difficulty in understanding its contents. Nevertheless, he continued to drive his hire car until 12 May 2009. It appears that he did so knowing that his Driver Authority had been cancelled. 44 In my view, the circumstances of this matter suggest that the Applicant has very little understanding of the obligations imposed on a hire car driver by the scheme under which he has been working. In order for me to allow him to continue to hold a Driver Authority I must be able to attest that he is considered to have sufficient responsibility and aptitude to drive a private hire vehicle in accordance with the applicable conditions and in accordance with law and custom. I am unable to attest to that fact. 45 In my view, the Applicant should not be permitted to hold a Driver Authority until he is able to satisfy the Ministry that he has acquired sufficient knowledge and understanding of the legislative requirements to be able to meet those requirements. Without that knowledge and understanding he would be unable to comply with his undertaking to abide by the rules and regulations in the future. This view also applies to the Applicant's Private Hire Vehicle Accreditation. 46 I note the testimonials provided on the Applicant's behalf. I accept that he is probably a person of good repute. It is not necessary that I determine whether or not the Applicant is a fit and proper person to hold a Driver Authority or an Accreditation. 47 It is my view that the Ministry made the correct and preferable decisions in cancelling the Applicant's Driver Authority and Accreditation. Accordingly, that determination should be affirmed. Order The decision under review is affirmed.