Auelua v Ministry of Transport [2009] NSWADT 134

CITATION: Auelua v Ministry of Transport [2009] NSWADT 134

DIVISION: General Division

APPLICANT Tauese Auelua PARTIES: RESPONDENT Ministry of Transport

FILE NUMBER: 083370

HEARING DATES: 4 March 2009, 23 March 2009

SUBMISSIONS CLOSED: 23 March 2009

EXTEMPORE DECISION DATE: 23 March 2009 BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Passenger Transport Act - taxi driver - suspension of authority - costs

Passenger Transport Act 1990 LEGISLATION CITED : Passenger Transport Regulation 2007 Administrative Decisions Tribunal Act 1997

APPLICANT In person REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: 1. The decision under review is affirmed 2. Mr Auelua is to pay an amount of $342 towards the Ministry's costs of these proceedings.

REASONS FOR DECISION 1 Mr Auelua has held an authority to drive taxi-cabs under the Passenger Transport Act 1990 ("the Act") since 1992. In September 2008 the Director-General of the Ministry of Transport ("the Ministry") decided to suspend Mr Auelua's authority until he attended and successfully completed 'Module 2 (Regulations) and Module 3 (Customer Care) of an approved taxi driver-training program'. 2 Mr Auelua applied to the Tribunal for review of that determination. 3 The matter came before me on 18 December 2008. At that time I determined to deal with the matter in the absence of an internal review and granted a stay of the determination. The matter came before me for hearing on 4 March 2009. On that date I adjourned the matter because Mr Auelua asserted that the criminal history on which the Ministry relied was incomplete. He stated that the report failed to refer to matters that had been set aside by the District Court. The matter came back before me for further hearing on 23 March 2009. On that occasion I affirmed the Ministry's determination, ordered Mr Auelua to pay an amount of $342 towards the Ministry's costs and I gave brief reasons for my decision. At Mr Auelua's request I now publish more comprehensive reasons for my decision. Applicable Legislation 4 Division 5 in Part 4 of the Act makes provision for authorisation to drive taxi-cabs. The purpose of an authorisation is set out in section 33 of the Act: (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. 5 The decision to suspend the applicant's authority was made under section 33F of the Act, which provides as follows: 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. 6 Clause 43(1)(b) of the Passenger Transport Regulation 2007 ("the Regulation") provides: "43 Training of drivers (1) The driver of a public passenger vehicle must, whenever reasonably required to do so by the Director-General, undertake and satisfactorily complete (or pass an examination in respect of) any one or more of the following training courses, being a training course approved by the Director-General and conducted by a registered training organisation: … (b) a public passenger vehicle driver training refresher course". 7 Clause 44 of the Regulation provides: "44 Driver to notify Director-General of alleged offence (1) The driver of a public passenger vehicle must, in accordance with this clause, furnish the Director-General with written details of the following: (a) any alleged offence (other than a parking offence) with which the driver is charged by a police officer, (b) any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle. …" 8 Section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides: "88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. …" The Ministry's Evidence and submissions 9 The Ministry filed and served a copy of its file in relation to Mr Auelua. The Ministry also relies on the criminal record information in relation to Mr Auelua that it obtained from the NSW Police Force. The Ministry's file indicates a number of complaints that have been brought against Mr Auelua. Complaints were made against Mr Auelua concerning demanding more/other than prescribed fare, driving in an unsafe manner, incivility or impropriety, and abusive and threatening behaviour. 10 Mr Auelua has also been issued with infringement notices in relation to an alleged failure to provide his driver authority card for inspection and for a failure to comply with the requirement's of a Ministry officer on duty at Sydney airport. Mr Auelua has been issued with a reminder in relation to those notices. 11 The criminal record information indicates that a number of charges have been brought against Mr Auelua. In 1998 he was fined and disqualified from driving for "refuse to submit to breath analysis as directed" and "driver state false name" In 2000 he was convicted of "drive with middle range PCA". In 2003 he was convicted and fined in relation to charges for "behave in offensive manner in/near public place/school" and "resist officer in execution of duty". Two Local Court convictions were confirmed on appeal to the District Court, albeit with a reduced penalty. In 1999 and 2001 the District Court found him guilty without proceeding to a conviction for "assault occasioning actual bodily harm". 12 Officers of the Ministry formed the view that Mr Auelua would benefit from retraining at an accredited taxi school and completion of an anger management course. He was issued with a warning letter and requested to undertake retraining. When he failed to complete the retraining his authority was suspended. 13 In addition to the complaints and the criminal history, Mr Wozniak referred to applications for renewal of his authority that Mr Auelua completed in April 2002 and March 2005, in which he failed to declare the convictions. In response to a specific question as to whether he had been convicted of any criminal offences since the authority was issued or last renewed, or if any criminal charges were pending Mr Auelua ticked a box to indicate the answer 'No'. Mr Wozniak submitted that this is contrary to the requirements of clause 44 of the Regulation. 14 Clause 44 of the Regulation requires that the driver of a public passenger vehicle must undertake retraining whenever reasonably required to do so by the Director-General. Mr Wozniak further submitted that on the basis of the material before the Tribunal, I could be satisfied that it is reasonable to require Mr Auelua to undertake the retraining as directed. 15 The Ministry contends that until Mr Auelua undertakes the retraining, the Tribunal could not attest that he meets the standards required to be a taxi driver. Therefore, the correct and preferable decision is that his authority be suspended until such time as he undertakes and satisfactorily completes the retraining. 16 Mr Wozniak also sought costs in relation to the hearing on 23 March 2009 and the summons issued to obtain the criminal record information in relation to Mr Auelua from the NSW Police Force. . On 4 March 2009 he put Mr Auelua on notice that he would make that application for costs if the criminal record information in relation to Mr Auelua was no different to that available at the hearing on 4 March 2009. 17 Mr Wozniak submitted that the current circumstances fall within those envisaged by section 88(1A)(a)(iv) of the ADT Act. He asserted that the hearing was only held on 23 March 2009 because Mr Auelua argued that the criminal record information that was available on 4 March 2009 was inaccurate. As a consequence of the position that Mr Auelua adopted on 4 March 2009, the Ministry incurred the expense of issuing the summons to the NSW Police Force to obtain an updated criminal record report and the expense of attending the further hearing on 23 March 2009. Mr Auelua's Evidence and submissions 18 Mr Auelua attended the hearing, gave evidence and was cross-examined. He said that officers of the Ministry working at Sydney airport had bullied him and he contends that officers of the Ministry have treated him unfairly in regard to the directions that they have given him. He stated that he adopted the position that he has taken as a consequence of that unfairness. He said that the attitude of some of the officers of the Ministry inflames situations and gives rise to disputes that would otherwise be avoided. 19 He contends that the Ministry should not have accepted complaints about him that were not in writing and that he should have been given a copy of those complaints. He said that it is the nature of the industry that people complain about taxi drivers every day. As a taxi driver he has no control over which people ring up and complain. However, he said that the complainants should be required to lodge a written complaint to make a complaint official, so that a driver has a chance to defend themselves from those allegations. 20 He asserts that complaints were referred to the Ministry from an individual working in the Taxis Combined company in circumstances where they should not have been referred. He contends that she made those referrals because of her personal animosity towards him. He contends that there is conspiracy between that woman and one of the Ministry's officers. 21 He asserts that the approach taken towards handling of complaints by the Ministry and by the taxi company is not consistent. He said that infringement notices have been issued for some complaints but not given for others. He suggests that he has been treated unfairly in this regard and that where a complaint has been received, his side of the story has been ignored. 22 Mr Auelua argued that when he elected to have an infringement notice dealt with by the court, those people who had complained about him were not called to give evidence in court, and therefore he thought that was the end of the issue. 23 He also asserted that in regard to one of the matters heard by the Local Court his solicitor had entered a plea of guilty contrary to his instructions. 24 On 4 March 2009 Mr Auelua argued that the criminal record information on which the Ministry relied was inaccurate. He also argued that it presents an incomplete picture because it does not include references to charges that were withdrawn and does not list charge that were dismissed. He said that the record should not just indicate the negative aspects of his history but should show the positives as well. However, he was unable to identify any matters that were not addressed by the material filed by the Ministry. 25 Mr Auelua resisted Mr Wozniak's application for costs. He pointed to the reminder notices that he had received after the hearing on 4 March 2009 and argued that they relate to an issue that had not been raised at the hearing on 4 March 2009. He did not dispute Mr Wozniak's assertion that the updated criminal record report obtained from the NSW Police Force did not identify any new matters. He nevertheless asserts that it would be unfair to award costs to the Ministry in these circumstances. Consideration and Findings 26 The issue for determination is whether or not the decision that was taken by the Ministry to suspend Mr Auelua's driver authority until such time as he undertakes a taxi driver re-training programme is the correct one. I think it is. 27 All the evidence that I have before me suggests that Mr Auelua lacks sufficient understanding of what is required of a taxi driver. I think that it is this lack of understanding that has lead to conduct that has brought him to the attention of officers of the Ministry. It seems to me that it is likely that the attitude that he has adopted towards some officers of the Ministry has inflamed situations. It may well be that the attitude of some of the officers of the Ministry also inflames situations and gives rise to disputes that would otherwise be avoided, however that is not a matter for consideration in this case. 28 Complaints to the Ministry are in many forms; some of them come officially, directly from passengers. Some are by way of telephone and some are referred from taxi companies. The Ministry has to assess the complaints that it receives and to determine the best approach to be taken in regard to them. A driver's attitude towards complaints received from passengers is significant to how a matter progresses. 29 The Ministry's file shows a history of interaction with Mr Auelua in regard to complaints. The complaints are on the lower end of the scale of seriousness however it seems to me that they are a consequence of Mr Auelua's lack of understanding of how the industry operates and of how he should relate to officers within the Ministry and to his passengers. 30 Mr Auelua's failure to notify the Ministry of the charges against him and any convictions at the time he renewed his authority also suggests that he does not understand the requirements of clause 44 of the Regulation. 31 On the available evidence I am unable to attest that Mr Auelua has sufficient responsibility and aptitude to drive a taxi-cab in accordance with the conditions under which the taxi-cab service is operated and in accordance with law and custom. 32 For these reasons, it is my opinion that Mr Auelua should undertake some retraining and I am satisfied that it is reasonable to require him to undertake the retraining that the Ministry directed. The retraining will focus his mind on what is actually required by the legislation and by the scheme that is in operation. 33 I have heard and considered what Mr Auelua has told me. I do not agree with him. I agree with the Ministry's determination and the reasons that they have given for their determination. Mr Auelua should not continue driving until he has completed the retraining. Therefore, my decision is to affirm the Ministry's determination. 34 In regard to Mr Wozniak's application for costs I agree that the matter could have been finalised on 4 March 2009. The matter only returned on 23 March 2009 because Mr Auelua disputed the accuracy of the criminal record report. The updated report did not identify any new matters. 35 Section 88 of the ADT Act gives the Tribunal power to award costs. Mr Wozniak submitted that the current circumstances fall within those envisaged by section 88(1A)(a)(iv) of the ADT Act. He contends that Mr Auelua caused an unnecessary adjournment and that the Ministry incurred the expense of issuing the summons to the NSW Police Force to obtain an updated criminal record report in relation to Mr Auelua and the expense of attending the further hearing on 23 March 2009. 36 I agree with that submission. The transcript of the hearing on 4 March 2009 shows clearly that Mr Auelua indicated that some of the matters that are recorded against him had been successfully appealed to the District Court. The updated criminal record report does not support that assertion. 37 I am satisfied that it is fair to make an award of costs in favour of the Ministry in relation to the proceedings on 23 March 2009. Mr Auelua caused an unnecessary adjournment and that has put the Ministry to an expense that it need not have incurred. In my view, Mr Auelua should pay for one hour of the Ministry's costs in attending the hearing on 23 March 2009 i.e. $261.00. 38 Mr Auelua should also pay the amount of $81.00 towards the Ministry's costs of obtaining an updated criminal record. It was not necessary to obtain that updated record and it was only obtained because of Mr Auelua's assertion that the earlier record was inaccurate. Orders 1. The decision under review is affirmed. 2. Mr Auelua is to pay an amount of $342 towards the Ministry's costs of these proceedings.