CITATION: Nikolovski v Ministry of Transport [2009] NSWADT 21 DIVISION: General Division APPLICANT Dimitar Nikolovski PARTIES: RESPONDENT Ministry of Transport FILE NUMBER: 083341 HEARING DATES: 23 January 2009 SUBMISSIONS CLOSED: 23 January 2009 DATE OF DECISION: 4 February 2009 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Cancellation of taxi authority, fit and proper person LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 CASES CITED: Gomes v Ministry of Transport [2008] NSWADT 303 Saadieh v Director General, Department of Transport [1999] NSWADT 68 APPLICANT J Gounder, solicitor REPRESENTATION: RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director General to cancel Mr Nickolovski's authority is affirmed. REASONS FOR DECISION Introduction 1 Mr Nickolovski is a 76-year-old man of Macedonian origin who says he has been driving taxis in Australia for about 35 years. On 8 October 2008 the Ministry of Transport cancelled his taxi driver authority. Another officer reviewed that decision and agreed with it. Mr Nickolovski applied to the Tribunal for an external review of the cancellation decision. On 25 November 2008 the Tribunal decided to allow him to continue to drive a taxi until it made a final decision. One passenger, Karina, gave evidence by phone. Mr Nickolovski did not give evidence. His version of events is recorded in the Ministry's file. Background 2 The earliest records held by the Ministry of Transport show that Mr Nickolovski applied for a taxi driver authority in 1991. Since that time at least 30 complaints have been lodged against him. The majority of complaints related to relatively minor incidents such as refusing to take passengers short distances, soliciting at bus stops, overcharging and incivility. Three of the complaints related to sexual harassment of female passengers. Nine of the 30 complaints were found not to have been justified mainly because there was a conflict between Mr Nickolovski's and the passenger's version of events. The taxi networks with which he was associated and the Ministry of Transport have warned him on several occasions. He has been to a re-training course. The incident which prompted the cancellation decision occurred in April 2008 when a 24-year-old woman complained of sexual harassment. While agreeing that he was driving a taxi on that date, Mr Nickolovski says he cannot remember that particular journey. He provided positive references from the owner of the taxi he drives and from an employee of Wilson's Traffic Control at Sydney Airport. Legal test 3 The Director General of the Ministry of Transport has the power to cancel a person's taxi driver authority having regard to the purpose of the authorisation: Passenger Transport Act 1990, section 33F. That purpose as stated in section 33(3) is two-fold: 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 taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom. 4 The meaning of the phrases "of good repute" and "fit and proper person" have been set out in numerous previous decisions of courts and of this Tribunal. The perceptions of the travelling public are relevant as are the nature, seriousness and frequency of complaints: Saadieh v Director General, Department of Transport [1999] NSWADT 68. The second requirement, that the person be considered to have sufficient responsibility and aptitude to drive a taxi, has received much less consideration. Its purpose is to ensure that even if a person is of good character and repute, they may nevertheless have insufficient responsibility or aptitude to drive a taxi. 5 A person whose authority has been cancelled can apply to the Tribunal for a review of that decision: Passenger Transport Act 1990, section 52. When determining that application the Tribunal is to decide what the "correct and preferable" decision is having regard to any relevant factual material and the law: Administrative Decisions Tribunal Act 1997 (ADT Act) section 63. The Tribunal may affirm, vary or set aside the Ministry's decision and make a decision in substitution for that decision. When doing so the Tribunal has all of the functions conferred by the Passenger Transport Act 1990 on the Director General of the Ministry: ADT Act, section 63. Issues 6 The issue in this case is whether Mr Nickolovski is of good repute and in all other respects a fit and proper person to be the driver of a taxi and whether he has sufficient responsibility and aptitude to do so. The answer to that question depends on how the Tribunal views the history of complaints against him and the opinions others hold about him. Complaints 7 The complaints against Mr Nickolovski can be divided into the following categories: (a) complaints about refusal/abuse for wanting to travel a short distance: 6/10/92 – reprimanded and warned 18/10/94 – reprimanded and counselled 19/11/95- reprimanded and counselled 2/12/97 – reprimanded and counselled (b) complaints about refusing a hiring/incivility 13/12/97 – reprimanded and counselled 12/9/99 – strongly counselled 12/12/03 – no action taken 4/8/04 – no action taken 2/8/05 – no action taken 13/4/06 – no action taken 14/2/07 - counselled (c) complaints about soliciting passengers from a bus stop or other area outside taxi stand 26/8/98 – severely reprimanded and warned 16/10/98 – interviewed and warned 10/01/03 – fined $5,000 (d) complaints about failure to take the most direct route 15/8/99 – interviewed and counselled - passenger refunded excess fare 2/10/07 – no action taken (e) complaints about over-charging 2/01/00 – no action taken 17/09/01- reprimanded 11/10/06 – no action taken 26/11/06 – no action taken (f) complaints of refusing to accept credit card 11/5/01 – no action taken 7/8/06 – no action taken (g) complaints about abusing a passenger 16/8/01 – driver not "pinned" into network; no further action 17/01/00- strongly counselled and referred to Ministry of Transport 20/10/06 – no action taken 28/02/08 – no action taken 16/3/08 – no action taken (h) complaints of driving in an unsafe manner 4/8/05 – no action taken 3/3/08 – no action taken (i) complaints of sexual harassment 18/5/04 – severe warning letter 22/3/06 – no further action 7/04/08 - cancellation of authority 8 Mr Nickolovski's complaint history also discloses that he has, for lengthy periods, not "pinned" or "logged" in to the network at the commencement of his shift. He says that he did not do so because he did not want to be connected to the radio, however the consequence was that he could not be positively identified as the driver of the taxi at a particular time. It is an offence to fail to observe the rules and by-laws of the network: Passenger Transport Regulation 2007, clause 140. One of the by-laws of the Combined Communications Network is that: Any taxi driver who fails to enter their driver identification number at the beginning of their shift shall be called before the Board of Directors, or its appointed delegate, and be counselled for the first offence. For any subsequent offence, a recommendation for the withdrawal of the taxi driver's accreditation shall be forwarded to the New South Wales Ministry of Transport. Sexual harassment complaints 9 The first complaint in May 2004 related to a journey in which a 52-year-old female passenger said that Mr Nickolovski asked questions about her private life, her husband and her children including whether her children were as pretty as her. He told stories of other passengers and their relationships with their partners. With the passenger's permission he detoured to a location to get the passenger's seat fixed and then asked her to lunch at his brother's house. While the passenger acknowledged that Mr Nickolovski did not mean any harm, she regarded the whole incident as being totally unacceptable and was "shaken up" by it. When interviewed Mr Nickolovski admitted that he asked the passenger to lunch but thought it hospitable to do so. The interviewer told Mr Nickolovski that it was inappropriate to ask personal questions and he must do nothing more or less than take passengers directly to their destination. The interviewer concluded that Mr Nickolovski was a genuinely kind and generous man who did not think he had done anything wrong. 10 The second complaint of sexual harassment related to a journey on 22 March 2006 when Mr Nickolovski was accused of remarking that Filipino girls were "good and juicy" and that he did not mind paying $200 to $300 a night if the girl was good. He said that "a pretty girl like you must need a man in your hotel each night". Mr Nickolovski is alleged to have asked the passenger her marital status and what time she had lunch. The passenger was not available to give further details as she did not live in Sydney. Mr Nickolovski said he could not recall the journey but would not talk to female passengers in that way. Mr Nickolovski was also advised in that interview that is was a breach of the Taxis Combined Services by-laws not to log on to the network. He admitted not having logged on for the last 2 years saying that while he knew he was required to do so he did not like the noise of the radio. He was reminded of his obligation to log on and warned that an infringement notice could be issued for this conduct. No further action was taken in relation to the complaint because of problems positively identifying Mr Nickolovski as the driver and the unwillingness of the passenger to provide further information. I have not taken this complaint into account in these proceedings. 11 "Karina", the passenger who complained that Mr Nickolovski had sexually harassed her in April 2008 gave evidence by phone to the Tribunal. I made an order pursuant to section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 prohibiting disclosure of her full name, address or any other material that identifies or may lead to her identification. She gave evidence that she is 24 years old and that she called a taxi from Central Station at about 7:55 a.m. on 7 April 2008. She sat in the front seat and told the driver she wanted to go to her workplace in Sussex Street. She described the driver as appearing to be 55 plus, grey-haired, larger build with a slight European accent. She said that he asked inappropriate questions including: "Do you like to go out drinking and dancing?" "Do you drink whisky?" "Where do you live?" "Do you have a boyfriend?" "Does your boyfriend look after you?" "Have you got brothers or sisters?" 12 Karina said the driver went on to outline stories of other female passengers he had picked up and their relationships. At one point referred to Karina as a "beautiful girl". On two separate occasions during the journey she said the driver reached out with his hand and held her wrist while laughing and smiling. She said she felt so uncomfortable that she took down the driver's details so that she could report what had happened. At the end of the trip Karina says she asked for a receipt and was given a handwritten cab charge docket. 13 When interviewed on 27 June 2008 by Ms Mathieson, an enforcement officer employed by the Ministry of Transport, Mr Nickolovski said he did not recall the journey and would never ask such questions or touch a female passenger on the wrist. The evidence that suggests that Mr Nickolovski was the driver of the taxi in which Karina was a passenger is as follows (a) The GPS print out produced by Taxis Combined Services for taxi-cab T 5479 identifies that vehicle engaging the meter at 8.07 am on 7 April 2008 between Lee St and Little Regent Street in the City and vacating the meter at 8.24 am in Sussex Street in the city. (b) The logged taxi activity sheet for T 5479 shows that the meter engaged at 8.06 on 7 April 2008 and returned to vacant at 8.24 am. (c) Mr Nickolovski does not deny driving T 5479 in the city on the date and time and question. (d) Karina produced a Taxis Combined Services receipt which she said the driver gave to her at the end of the journey which records the taxi number as T 5479. (e) Karina identified Mr Nickolovski as the driver from a photograph of him saying she was 95% sure it was him. 14 There are two circumstances which raise some doubt that Mr Nickolovski was the driver. When interviewing Mr Nickolovski, Ms Mathieson quoted the taxi in which Mr Nickolovski was driving as T3985. She says that that number was incorrect and that the correct number is T5479. Mr Nickolovski's authority number is AF7924. Karina recorded the authority number of the driver as AF 9742. Mr Wozniak, representing the Ministry of Transport submitted that Karina had accidentally transposed the last two numbers. 15 I am satisfied on the basis of all the evidence that Mr Nickolovski was the driver of the taxi that transported Karina from Central Station to Sussex Street on 27 June 2008. While it would have been preferable for the Ministry of Transport to have asked Karina to identify the driver from several photographs, the evidence linking Mr Nickolovski with the journey has been sufficiently corroborated by other means including the GPS records, the logged activity sheet, the cab charge receipt and Mr Nickolovski's admissions. I also accept Karina's evidence of the conversation that took place. That evidence was specific and credible. Karina's failure to object to Mr Nickolovski holding her wrist the first time does not reflect adversely on her credibility. She said she was a bit scared and felt uncomfortable so she did not say anything. In my view that reaction is entirely credible. Mr Nickolovski did not give a different version of events but merely said he could not remember the journey and would not have asked those questions or touched a female passenger. 16 The Ministry of Transport formally warned Mr Nickolovski that further complaints would result in suspension or cancellation of his authority on 19 October 1998, 28 July 2004 and 17 May 2006. In November 2006 the Ministry of Transport directed Mr Nickolovski to complete re-training on the regulations and customer service in order to retain his authority. He was warned again that any further complaint may result in his authority being reviewed. Pending charges 17 Mr Nickolovski has recently been charged with two offences: failing to accept a hiring immediately when offered (contrary to clause 146(1) of the Passenger Transport Regulation 2007) and failing at the request of an authorised officer to produce his authority card for inspection (contrary to clause 46). Those matter are yet to be determined by the Local Court and I have not taken them into account. References 18 Mr Nickolovski provided two references, one from Mr Anthony Haddad, the owner of the taxi which Mr Nickolovski drives and the other from Mr Greg Davis an employee of Wilson's Traffic Control at Sydney Airport. Both say that Mr Nickolovski is a "simple, kind and honest person" and that because he speaks little English there may have been a misunderstanding between himself the his passengers. Mr Haddad said that Mr Nickolovski is of very good character and he was happy to employ him as his driver. Mr Davis said that Mr Nickolovski is a professional and courteous driver who he admires and respects. Conclusion 19 On the basis of all the evidence I am satisfied that Mr Nickolovski is a person of good character and repute. He does not mean any harm. Nevertheless the complaint history outlined above and his consistent refusal to log into the network satisfies me that he does not have sufficient responsibility and aptitude to drive a taxi in accordance with law and custom. I am not satisfied that his language skills are a source of any misunderstanding between himself and other passengers. That comment by his referees is mere speculation which has no evidentiary basis. The complaints not involving allegations of sexual harassment are relatively minor. Many involve Mr Nickolovski attempting to manipulate the system so as to earn a few more dollars. The sexual harassment allegations are more serious, but are not of the most serious kind. Both passengers were justifiably distressed by his behaviour. 20 Despite being counselled, warned and threatened with cancellation on several occasions, Mr Nickolovski has not modified his behaviour. Even his attendance at a re-training course in 2006 failed to have sufficient impact to prevent him asking Karina personal questions about her boyfriend and touching her on the wrist. Given his complaint history, the only conclusion available is that Mr Nickolovski is, unfortunately, unable or unwilling to modify his behaviour. In those circumstances I cannot attest that he has sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom. I come to that conclusion reluctantly given the nature of the complaints about him. Nevertheless I am not satisfied that a period of re-training, such as that ordered recently in Gomes v Ministry of Transport [2008] NSWADT 303 would have the desired effect. Nor am I aware of any other measure that could reasonably be expected to modify Mr Nickolovski's behaviour. Order The decision of the Director General to cancel Mr Nickolovski'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.