Al-Najjar v Ministry of Transport [2009] NSWADT 173

CITATION: Al-Najjar v Ministry of Transport [2009] NSWADT 173

DIVISION: General Division

APPLICANT Wail Al-Najjar PARTIES: REPSONDENT Ministry of Transport

FILE NUMBER: 093136

HEARING DATES: 23 June 2009

SUBMISSIONS CLOSED: 23 June 2009

DATE OF DECISION: 6 July 2009

BEFORE: Handley R - Deputy President

CATCHWORDS: Taxi driver – suspension of authority

LEGISLATION CITED : Passenger Transport Act 1990 Administrative Decisions Tribunal Act 1997

Farquharson v Director General, Department of Transport [1999] NSWADT 53 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Bidewy v Ministry of Transport [2008] NSWADT 314 CASES CITED: Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Lal v Director General, Department of Transport [2001] NSWADT 74 Maythisathit, Sivone and Registrar of Motor Vehicles [1996] ACTAAT 165 Eshaghi v Director General, Department of Transport [2002] NSWADT 3

APPLICANT W Nield, counsel REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: The decision under review is affirmed

REASONS FOR DECISION 1 Wail Al-Najjar (also referred to as 'the Applicant') has applied to the Tribunal for a review of a decision of the Director General of the Ministry of Transport ('the Respondent'), made under the Passenger Transport Act 1990, to suspend Mr Al-Najjar's taxi driver authority. Background 2 Mr Al-Najjar was granted a taxi driver authority in January 2006. Since that time, he has been the subject of 17 complaints recorded on the NSW Taxi Customer Feedback Management System, of which Legion Cabs found 10 to be justified. In a number of instances, Mr Al-Najjar claims not to have been given an opportunity to respond to the complaint. Following an interview on 3 February 2009 with a Ministry Compliance Officer regarding a complaint, Mr Al-Najjar was required to undertake a NSW Taxi Council 'Silver Seminar Training Course', which he completed on 17 March 2009. 3 On 13 February 2009, an incident took place at Sydney Airport in the course of which, it is alleged, Mr Al-Najjar assaulted a security officer. As a result, on 16 March 2009, he was charged with common assault. The matter is to be heard at Waverley Local Court on 14 September 2009. Mr Al-Najjar failed to notify the Ministry of the charge and, on 8 April 2009, the Ministry issued him with a formal warning letter. 4 On 7 May 2009, the Ministry received written notification from the NSW Police Fraud Squad that Mr Al-Najjar has been charged with two fraud-related offences, allegedly committed while performing his duties as a taxi driver, one of which involved a paying passenger. These charges are next due for mention in Waverley Local Court on 7 July 2009. 5 On 8 May 2009, a delegate of the Director General suspended Mr Al-Najjar's taxi driver authority. On 22 May 2009, Mr Al-Najjar applied to the Tribunal for a review of this decision and for an urgent stay. On 27 May 2009, the Tribunal granted a stay pending the outcome of these proceedings and, pursuant to s 55(3)(b) of the Administrative Decisions Tribunal Act 1997, determined to deal with the application in the absence of an internal review on the ground that it is necessary to protect Mr Al-Najjar's interests. A hearing was conducted on 23 June 2009. The Relevant Legislation 6 The relevant provisions of the Passenger Transport Act 1990 ('the PTA') are as follows: 33 Authorities (1) The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (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 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. 33F 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. The Respondent's Evidence 7 The Respondent provided the Tribunal with its file in relation to Mr Al-Najjar, together with correspondence between the Rice Marketing Board, Legion Cabs, Cabcharge and the Minister of Transport in relation to an alleged fraudulent charge for a taxi ride taken by the Chairman of the Board on 18 October 2006. It is alleged that the driver of the taxi changed the credit card slip to show a charge of $183.40 rather than $83.40. 8 Mr Wozniak arranged for three witnesses to give evidence by telephone at the hearing. The first witness, Matthew, gave evidence about a telephone complaint he made to the Ministry on 15 January 2009. He said he took a taxi from North Sydney to near Martin Place. The driver took Matthew's credit card in his right hand and put it down the right side of his seat for about a second, during which time the card was out of Matthew's sight. The driver then swiped the card in the credit card machine in the ordinary way. Matthew later received a call from his bank to alert him to an unauthorised use of his card at a time when his most recent use of the card had been to pay the taxi fare. Matthew informed the Ministry of the driver's number shown on his receipt for the fare. In cross-examination, Matthew said he was sitting in the front passenger seat at the time of the incident and agreed that he could not see if the driver had anything down to the right side of his seat. 9 The second witness, Gary, gave evidence about a telephone complaint he made to the Ministry on 19 October 2006. He caught a cab from the Domestic Terminal at Sydney Airport to his home in West Pymble. The fare was $77.30, which he paid using his credit card. Because he "felt uncomfortable" about the transaction, he checked his credit card statement and found that he had been debited $99.30. Gary obtained a copy of the credit card slip from his bank and found that the slip had been changed from $77.30 to $99.30. In cross-examination, Gary said when he completed the credit card slip, he wrote the numerical amount on the slip but did not insert the amount in words. The words had been added later. Gary acknowledged that he only catches cabs once or twice a year and is not very familiar with using cabs. He recalled that the taxi fare meter definitely said $77 and he made a note of the amount when he filled out the slip. Then, when he received his credit card statement, he checked this. Gary said the taxi driver "looked solidly built – maybe part Maori or Islander/Aboriginal". 10 The third witness, Renae, gave evidence about a telephone complaint she made to the Ministry about an incident on 29 November 2006. She caught a taxi from the Domestic Terminal at Sydney Airport to her home in Gordon. The fare was $78.60, which she paid with her credit card. When she received her credit card statement, this showed she had been charged $178.60. Renae checked with her bank and the taxi service, and obtained a copy of the receipt, which showed the amount of the fare had been altered by the addition of a 'one' in different handwriting, much more spindly than her writing. The receipt also said the journey included travelling back into the city from Gordon. Renae said she did not go into the city. She would not have done so because her son was at home at the time. Renae said she did not specifically look at the taxi fare meter, but recalled the fare being $78. She wrote the amount in figures on the credit card slip but probably did not write the amount in words. She has not looked at the docket recently, but the taxi company would have a copy of this. The Applicant's Evidence 11 Mr Al-Najjar provided statements dated 22 May 2009 and 17 June 2009 and gave evidence at the hearing. He said he had no opportunity to respond to the matters relied on by the Respondent in deciding to suspend his taxi driver authority. 12 Mr Al-Najjar stated that he has been charged on two counts of 'make/possess implements for making false instruments'. The Police found a machine in his taxi for copying credit cards. He has pleaded not guilty to the charges and strenuously denies the allegations made against him. He has no idea whether his taxi was involved. The matter is due for mention in court on 7 July 2009. Similarly, in relation to the charge of common assault arising out of an incident on 16 February 2009, he strenuously denies the allegations against him and has pleaded not guilty. The Airport security officer started the argument by being rude to him. This matter is due for hearing on 14 September 2009. 13 In relation to the 17 complaints, Mr Al-Najjar stated that only 10 were found to be justified. Of those 10, he has no specific recollection of the fares, and states that in five cases he was not contacted by Legion Cabs about the incident and therefore had no opportunity to respond to the complaint. In the case of all 10 complaints, he denies the allegations made, and responds as follows: first, in relation to the complaints made on 27 July 2006, 19 October 2006 and 29 November 2006, he states that if he was the driver on those occasions, he did not alter the docket in the manner alleged because he has never altered a docket in such fashion; second, in relation to the complaints made on 23 December 2006, 24 October 2007, 11 June 2008 and 18 September 2008, he denies he demanded exorbitant fares or a flat fare, or refused a fare; and, third, in relation to the complaints made on 29 August 2007, 15 July 2008 and 22 July 2008, he denies driving dangerously. 14 Mr Al-Najjar denied the allegation that he fraudulently used a credit card belonging to the Chairman of the Rice Marketing Board, stating that if he was the driver, he would never have altered the docket in the manner alleged because he has never altered a docket in such a fashion. Legion Cabs did not contact him about this incident. 15 Mr Al-Najjar said he knows the rules and regulations that apply to taxi drivers, having recently completed a refresher course. He always tries to follow the rules. However, he acknowledged that he had not notified the Ministry of the charges against him because he thought he only had to do so once the charges against him had been finalised following the court proceedings. Mr Al-Najjar said he is now aware that he must notify the Ministry of any incidents in which he is involved. He produced a 'Lost Property Receipt Form' evidencing the fact that, on 23 March 2009, he handed in a grey card holder found in his taxi. 16 Mr Al-Najjar said his wife is not working, having given birth to their first child on 18 May 2009. His income from taxi-driving is their sole source of financial support. He has significant ongoing financial commitments including mortgage payments of $700 per month. The Respondent's Submissions 17 Mr Wozniak referred to the decision in Farquharson v Director General, Department of Transport [1999] NSWADT 53 ('Farquharson'), at [30], where the President of the Tribunal, O'Connor DCJ, said: "The administrator is entitled to take account of the general circumstances giving rise to the charges, without being called on to examine the strengths and weaknesses of the prosecution case or the nature of any defences. Powers of suspension are, by their nature, designed to provide a temporary form of intervention pending further developments or further consideration or action by the administrator. A power of suspension, as compared to outright cancellation, does carry the (marginal) benefit for the licensee in not placing at risk the licence itself." 18 Mr Wozniak said the substance of many of the complaints is similar, involving the alteration of documents. He referred, for example, to the allegations made by the Chairman of the Rice Marketing Board to which the correspondence provided refers. Mr Wozniak noted that Mr Al-Najjar was first granted a taxi driver authority in January 2006 and has been taxi driving for a relatively short period of time. His licence was suspended from 13 June 2007 to 13 November 2007, and from 4 January 2008 to 4 April 2008, for various traffic offences. The complaints made against him are more by way of background. Of greater significance are the two serious fraud-related offences with which he has been charged and of which he failed to notify the Ministry. Mr Wozniak submitted that the suspension of Mr Al-Najjar's licence should remain until such time as the outstanding charges against him are resolved. 19 In reply to submissions made by Mr Nield, Mr Wozniak noted that no details have been provided as to Mr Al-Najjar's bail conditions. The Ministry only became aware of the fraud-related charges when notified by the Police. With regard to the Applicant's submissions as to his good character, there is no evidence of this other than an absence of prior convictions. It should be noted that the decision in Saadieh v Director General, Department of Transport [1999] NSWADT 68 ('Saadieh'), referred to by Mr Nield, concerned the cancellation, rather than the suspension of a taxi-cab authority. In Bidewy v Ministry of Transport [2008] NSWADT 314 ('Bidewy'), also referred to by Mr Nield, 12 months had elapsed since the date of the alleged offence. The Applicant's Submissions 20 Mr Nield provided the Tribunal with written submissions and addressed these at the hearing. He referred the Tribunal to the decision in Saadieh in relation to the matters to be taken into account when determining a person's fitness and suitability to hold a taxi-cab driver authority. Mr Nield noted that Mr Al-Najjar has pleaded not guilty to the criminal charges against him and has indicated his intention to defend those charges. At present, they are no more than untested allegations and it would be procedurally unfair and wrong on the merits to rely on these matters as a foundation for the suspension of his authority. This is especially so given the Ministry's own investigation of the matter led to no further action being taken in the light of the lack of evidence and Mr Al-Najjar's strenuous denials of wrongdoing. Mr Nield submitted that the principles in Bidewy also apply in this case and the suspension should be lifted pending the resolution of the pending charges. 21 In relation to Mr Al-Najjar's reporting obligations, Mr Nield said the Ministry were, in any event, aware of the charges. Mr Al-Najjar thought he was only obliged to report the matter to the Ministry if the charges were proved. Having recently completed a further training course, he is now aware of his obligations. 22 With regard to the complaints made against Mr Al-Najjar, it is important to note that only 10 of 17 complaints were found to be justified. Mr Nield submitted that a review of those found to be justified, and of the investigation and findings of Legion Cabs in relation to those complaints, indicates that real doubt should attach to those complaints. In five instances, Mr Al-Najjar was not afforded an opportunity to respond to the complaint and, even where he was able to respond, it was some months later and the evidence was not tested. In the case of the some of the fares he refused, the passenger was drunk and troublesome. In the case of other complaints, the complaint concerned a relatively minor matter such as the manner of driving or the refusal of short fares. Thus, Mr Nield submitted, the 'justified' complaints are really only untested allegations. 23 In relation to the complaint by the Chairman of the Rice Marketing Board, Mr Al-Najjar has no specific recollection of the fare, denies he would have ever altered a docket in the way alleged, and was never contacted by Legion Cabs about this incident. Given the Respondent's failure to produce the docket in question, the passage of time since the alleged incident and the lack of supporting evidence, this complaint should not be relied upon to support the Respondent's decision to suspend Mr Al-Najjar's authority. 24 Mr Nield referred to Mr Al-Najjar's driving record, noting that since 27 November 2006, he has only committed one traffic offence – that on 19 September 2008 of exceeding the speed limit by more than 15 km/h but not more than 30 km/h (school zone), a dramatic improvement on his early driving history. 25 Mr Nield said Mr Al-Najjar has no criminal record and is of good character and reputation in the community. He is a family man, supporting his wife and first child, and with significant financial commitments. Mr Al-Najjar denies any wrongdoing in relation to the outstanding charges and is on bail in relation to those charges. The likelihood of his engaging in any misconduct is very low. The bail conditions are a powerful means of ensuring the public has nothing to fear from the suspension of his driver authority being lifted, and the Tribunal should have confidence in his ongoing good conduct. Consideration 26 The Tribunal's role in these proceedings is to conduct a review of the Respondent's decision to suspend Mr Al-Najjar's taxi-cab driver authority, and to decide what is the correct and preferable decision taking into consideration all the relevant evidence before the Tribunal and having regard to the submissions of the parties. The Tribunal stands in the shoes of the Director General and may exercise his powers under the PTA: Administrative Decisions Tribunal Act 1997, s 63(1) and (2). Thus, I do not intend to address Mr Al-Najjar's and Mr Nield's comments concerning Mr Al-Najjar not having had an opportunity to respond to the allegations made against him in relation to the criminal charges before the decision to suspend his authority was made. He has now had that opportunity in the course of this review. 27 The Respondent has a broad power to suspend a taxi-cab driver authority pursuant to s 33F of the PTA. In Mr Al-Najjar's case, the decision to suspend his authority was made on 8 May 2009 on the ground that it could "no longer be attested that you meet the required standards for authorisation as a public passenger vehicle driver". These standards are referred to in s 33(3) of the PTA, quoted above. In particular, the authorised person must be "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 "have sufficient responsibility and aptitude to drive a taxi-cab". 28 The meaning of the phrase 'fit and proper person' was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at [9], where Dixon CJ, McTiernan and Webb JJ found the word 'fit', in relation to an office, to involve honesty, knowledge and ability. The meaning of the phrase 'fit and proper person' was also discussed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where Toohey and Gaudron JJ said, at [36]: "The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities." As their Honours recognised, at [66], whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed. 29 Mr Al-Najjar has been driving a taxi-cab since being granted an authority in January 2006. During that period, 17 complaints have been made against him, of which 10 have been found to be justified by Legion Cabs. As Mr Nield pointed out, Mr Al-Najjar's evidence is that he never had the opportunity to respond to five of those complaints. I also note he denies all the allegations of misconduct. However, I heard oral evidence from three of the complainants about alleged fraudulent acts by Mr Al-Najjar involving the use of their credit cards. Another complaint arose from an incident involving an alleged fraudulent charge to the credit card of the Chairman of the Rice Marketing Board, which appears never to have been satisfactorily resolved. 30 Apart from complaints, on 23 September 2007, Mr Al-Najjar received a penalty infringement notice for smoking in his taxi, and he has received warning letters from the Ministry on two occasions: on 3 October 2007, for failure to wear approved network uniform and failure to produce a worksheet; and, on 8 April 2009, for failure to notify the Ministry of the charge of common assault. 31 Mr Al-Najjar was charged with common assault arising from an incident at Sydney Airport on 16 February 2009, and, in May 2009, was also charged with two fraud-related offences – Mr Al-Najjar's evidence is that he has been charged with two counts of 'make/possess implements for making false instruments'. Mr Al-Najjar has pleaded not guilty to all charges. The common assault charge will be heard on 14 September 2009 and the fraud-related charges are next due for mention on 7 July 2009. 32 There is no evidence as to Mr Al-Najjar's character and reputation, except the evidence of his having returned a credit card holder found in his taxi and his lack of any previous criminal history. I note he is married and that his wife, who is not working and is financially dependent on him, has recently given birth to their first child. While I acknowledge the difficult financial situation facing Mr Al-Najjar as a result of the suspension, his financial circumstances are not a relevant consideration in this case: Lal v Director General, Department of Transport [2001] NSWADT 74, at [47]. 33 As Mr Wozniak pointed out, the decision in this case being a suspension – a temporary intervention pending the outcome of the charges laid against Mr Al-Najjar - the Tribunal may take into account the general circumstances giving rise to the charges against Mr Al-Najjar without examining the strengths and weaknesses of the prosecution or defence cases: Farquharson, at [30]. In Saadieh, a case dealing with the cancellation of a taxi-cab authority, Deputy President Hennessy, at [17], identified the factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi-cab driver authority. These include "the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted" and the "the nature, seriousness and frequency of any complaints made against the applicant". While recognising that Mr Al-Najjar's case does not involve the cancellation of an authority, these same factors are clearly relevant when reviewing a decision to suspend an authority. 34 When looking at the complaints made against Mr Al-Najjar, one cannot avoid noting that five complaints involve the alleged fraudulent alteration of a credit card slip, and I have heard evidence from three complainants about the incidents involving alleged fraudulent charges to their credit cards. While I acknowledge that Mr Al-Najjar disputes these allegations, in the light of the two recent fraud-related charges, and all these matters going to the issue of trust, which is an essential ingredient of the relationship between taxi driver and passenger, I am satisfied that a member of the public, knowing of these matters would object to Mr Al-Najjar continuing to hold a taxi-cab authority until the charges against have been resolved: Maythisathit, Sivone and Registrar of Motor Vehicles [1996] ACTAAT 165, at [12]; Eshaghi v Director General, Department of Transport [2002] NSWADT 3, at [29]. 35 Mr Nield submitted that the principles discussed in my decision in Bidewy apply in this case and, in the light of the stringent bail conditions to which Mr Al-Najjar is currently subject, the suspension should be lifted pending the resolution of the pending charges. In my view, the facts in Bidewy are materially different from those in the present case. In Bidewy, apart from the charge arising from the applicant allegedly using sexually explicit words to a passenger, which the applicant denied, he otherwise had a clean record. He had not been the subject of any complaints, there was evidence of his good character, and the Ministry took nine months from the time of interviewing the applicant about the alleged incident to decide to suspend his authority. 36 In my view, the evidence in Mr Al-Najjar's case is sufficient to raise serious concerns about whether he is a fit and proper person to hold an authority to drive a taxi-cab. It may be that the outcome of the charges laid against Mr Al-Najjar will lead to a conclusion that those concerns are not justified, in which case the suspension of his authority can be lifted. However, I am satisfied on the evidence currently before me that the correct and preferable decision is that Mr Al-Najjar's authority should be suspended pending the resolution of the criminal charges laid against him. Decision 37 The decision under review is affirmed.