CITATION: Gomes v Department of Transport and Infrastructure [2010] NSWADT 318 DIVISION: General Division APPLICANT Paul Gomes PARTIES: RESPONDENT Department of Transport & Infrastructure FILE NUMBER: 103179 HEARING DATES: 7 September 2010, 21 October 2010, 8 December 2010 EXTEMPORE DECISION DATE: 8 December 2010 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Passenger Transport Act - Taxi driver - cancellation of authority Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Passenger Transport Act 1990 Passenger Transport Regulations 2007 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Blair v Curran [1939] 62 CLR 531 Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 CASES CITED: Maythisathit and Registrar of Motor Vehicles [1996] ACT 165Gomes v Ministry of Transport [2008] NSWADT 303 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 Sobey v Commercial and Private Agents Board 20 SASR 70. APPLICANT B Quinn, barrister REPRESENTATION: RESPONDENT A Wozniak, solicitor ORDERS: The decision is affirmed. Reasons for Decision 1 The Applicant holds an authority to drive a taxi-cab under the Passenger Transport Act 1990 ("the Act"). He was first issued with an authority in July 2005. Since that time there have been 23 complaints registered against his authority. 2 By a Notice of Decision dated 22 July 2010 a delegate of the respondent advised the applicant that the respondent had determined to cancel the applicant's driver authority. 3 This determination followed the issue of a Notice to Show Cause to the applicant. The Notice to Show Cause, dated 1 July 2010, invited to the applicant to make submissions in relation to a number of matters set out in the attached Statement of Reasons. The applicant had provided written submissions in reply to that invitation and these were taken into account as part of the determination process. The decision was confirmed on internal review. 4 The applicant applied to the Tribunal for review of the determination to cancel his driver authority and applied for a stay of the decision under section 60(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). On 16 August 2010 I granted a stay of the decision to cancel the applicant's authority. The substantive matter came before me for hearing on 7 September 2010 and was ultimately finalised on 8 December 2010. On that day I affirmed the determination to cancel the applicant's driver authority. Power of Tribunal and test to be applied 5 The Tribunal's power to review the decision to cancel the applicant's driver authority is pursuant to section 52 of the Act. When reviewing that decision, the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the ADT Act. 6 The test to be applied is whether, having regard to the purpose of the authority, the decision to cancel is the correct decision. Section 33F of the Act allows the Director General to suspend or cancel a driver's authority having regard to the purpose of an authority. The purpose of the authority, as set out in section 33 of the Act, 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. 7 The Tribunal must be satisfied 'on the balance of probabilities' before making a finding of fact. Although not bound by the rules of evidence, the Tribunal must only act on evidence that is sufficiently relevant and reliable: ADT Act, s 73(2) and Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33. The gravity of the matters alleged is relevant when determining whether an allegations has been made out: Evidence Act 1995, s 142. Background 8 The applicant's driver authority was cancelled in July 2008 due to the number of passenger complaints which had been submitted against him. Most of those complaints alleged that the applicant had demanded more or other than prescribed fare. On review by this Tribunal, I set aside the cancellation of the applicant's driver authority and substituted a decision suspending that authority for a period of three months: Gomes v Ministry of Transport [2008] NSWADT 303 ("the earlier decision"). The complaint history is set out in the earlier decision. 9 The applicant regained his driver authority in February 2009. He subsequently became the subject of further complaints. The reasons for decision summarised those complaints as follows: 21 March 2010 CFI: 49742 Customer Complaint: Demanding more/other than prescribed fare; Sexual Harassment A complaint was received from a male passenger who hailed taxi T2764 from Kings Cross to Gladesville. The passenger states that the driver refused to travel along Anzac Bridge, Victoria Road to Gladesville as requested and went via the Harbour Bridge and Lane Cove which resulted in an excessive fare. The passenger further alleges that during the journey the driver made sexual remarks about his wife and fell asleep at the wheel. ... 17 January 2010 CFI: 48752 Customer Complaint: Verbal abuse or threat; Demanding more/other than prescribed fare, A complaint was received from a male passenger who travelled in taxi T157 from the Airport to Rosebery. The passenger states upon arriving at the destination the metered fare showed $38.15. The passenger states that he questioned the driver, as he usually pays between $16.24 and the driver became aggressive and verbally abused him. ... 26 November 2009 CFI: 47658 Customer Complaint: Demanding more/other than prescribed fare. A complaint was received from a female passenger who travelled in taxi-cab T157 from the Airport to Dulwich Hill. The passenger states that the driver went the long route. Upon arriving at the destination the fare came to $36.00 however the passenger states that fare is usually $30.00. The passenger then gave the driver a $50.00 note and he gave $10.00 change and told her the additional charge of $4.00 was for using the airport rank. ... 28 November 2009 CFI: 47626 Customer Complaint: Refusal of a fare/hire when for hire. A complaint was received from a female passenger who attempted to hail taxi-cab T157 from Woollahra to travel Bondi Junction. The complainant states that after informing the driver of her destination the driver refused and drove away. ... 26 November 2009 CFI: 4761 5 Customer Complaint: Driving in an unsafe manner. A complaint was received from a male passenger who was conveyed in a taxi driven by the holder of authority no. GP6605 from the Intercontinental Hotel, Sydney to Pyrmont. The passenger states the driver drove too fast and went through two red lights. Passenger further alleges that the driver was talking on his mobile phone for half the journey. ... 10 October 2009 CFI: 46761 Customer Complaint: Demanding more/other than prescribed fare; Failure to provide reasonable assistance to customer A complaint was received from a male passenger who travelled in taxi T157 from Milsons Point to the Airport. The passenger states that he and his fiancée hailed taxi T157 and observed another passenger already in the taxi. The passenger states that the driver then attempted to kick the first passenger out by telling her that he was already booked. The complainant states that the first passenger was dropped off at her destination at Star City Casino and the driver requested that she pay the metered fare of $32.00 plus toll money for the bridge and then demanded a further amount of $5.00 or $10.00 for Cross City Tunnel fees. The passenger states that upon arriving at their destination the driver attempted to charge them the full metered fare of $59.00 plus bridge tolls. The passenger states that he refused to pay the full fare and the driver became angry and refused to give their luggage until the amount was paid. ... 9 October 2009 CFI: 46679 Customer Complaint: Demanding more/other than prescribed fare. A complaint was received from a female passenger who travelled in taxicab T4498 from the City to Paddington. The passenger states that she hired taxi T4498 from Liverpool Street taxi rank. Upon entering the taxi the driver turned the meter off. At the destination the passenger paid the driver $30.00 and believes that she may have been overcharged for the journey. ... 1 October 2009 CFI: 46524 Customer Complaint: Demand more/other than prescribed fare. A complaint was received from a female passenger who attempted to hire taxi cab T4498. The complainant states that she attempted to hire taxi T4498 from Birkenhead Point taxi rank and after informing the driver of her destination, the driver asked how much she wanted to pay. The complainant states she did not continue with the conversation and did not get into the taxi. ... 25 February 2009 CFI: 43139 Customer Complaint: Refusal of a fare/hire when for hire. A complaint was received from a female passenger who attempted to hire taxi cab T4859. Complainant states that taxi T4859 was the first available vehicle on the rank and was approached by a customer and was refused. The complainant further states that the driver was approached a second passenger and they were refused as well. ... 10 As a result of complaints received, in February 2010 the applicant was directed to attend and successfully complete a Customer Care and Rules and Regulations course at an approved taxi driver training program. Following completion of the course he was issued a warning letter informing him that any further complaints may result in the variation, suspension or cancellation of his authority to drive a taxi. The authority was suspended on 26 March 2010 after the 21 March 2010 complaint was received. 11 The applicant has disputed each of the complaints. He asserted that the allegations made against him are false. 12 The respondent relies on two volumes in which the various complaints are recorded. Those volumes also record the steps taken by the respondent in relation to the complaints, including communications with the applicant and a record of interview conducted with the applicant on 12 February 2010. 13 The respondent also relies on the evidence of Dane Drayton who was the complainant in regard to the alleged incident on 10 October 2009. Mr Drayton appeared by phone and gave evidence consistent with that in his complaint. He maintained that his complaint was not so much about the fare that he was charged but rather it was about the applicant's conduct towards the female passenger who the applicant tried to eject from the cab, the argument that occurred and what happened at the end of the journey. 14 Mr Wozniak, the solicitor for the respondent, seeks to rely on all the complaints, not just those received since the earlier decision. He submits that the Tribunal is not estopped from taking those matters into account. He argues that if that were the case, any driver who came before the Tribunal and had an authority cancelled could reapply the next day and none of the matters considered by the Tribunal could be taken into account. He submits that that would be a ridiculous situation. 15 Mr Wozniak also submits that the applicant has failed to comply with the requirement under clause 44 of the Passenger Transport Regulation 2007 ("the Regulations") which requires that the driver of a public passenger vehicle must furnish the Director-General with written details of any alleged offence (other than a parking offence) with which the driver is charged by a police officer, and 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. 16 Mr Wozniak also submits that clause 161(1)(c) of the Regulations provides that the driver of a taxi must set the taxi-meter in motion as soon as the taxi-cab is hired and must keep the taxi-meter in motion during any hiring. It is an offence to turn the meter off at any time during a journey. He refers to a record of interview in which the applicant was asked about a complaint that he had turned off his meter and may have overcharged the passenger. The applicant agreed that he was aware that it was an offence to turn off the meter but said that he had turned the meter off because the passenger had told him to do so. Mr Wozniak questions the likelihood that the passenger would want a meter turned off, because they would have no idea as to what the fare would be at the end of the journey. 17 Mr Wozniak submits that this is a case where the applicant has been given two opportunities for retraining; once by the Tribunal and once again by the respondent after a series of complaints. He argues that a third opportunities for retraining is pointless. 18 He points to the evidence of a large number of complaints, over a period of time. He submits that the complaints are not of a trivial nature. They concern fares, refusal of fares and turning off a meter. He refers to the decision in Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] – [18] where 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: "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." 19 Mr Wozniak submits that this is a case where the applicant has been before the Tribunal, has been retrained twice, and yet the complaints have kept coming. Mr Wozniak submits that the applicant is not a fit and proper person to be the driver of a taxi-cab. He says that there's no evidence from the applicant to the contrary. The matter was adjourned to allow the applicant the opportunity to bring some evidence and he has not done so. 20 Mr Quinn, the applicant's barrister, raised the question of issue estoppel in relation to the matters that were before the Tribunal in the earlier decision. 21 In relation to those complaints Mr Quinn further submitted that none of the complaints were ever thoroughly investigated and none were of a serious nature. In the earlier decision the determination to cancel the applicant's authority was set aside and he was suspended for a period of three months. Those matters are again before the Tribunal in relation to the decision that is the subject of these proceedings. He submitted that the applicant is being punished twice for the same complaints: In support of that submission he referred to comments by Dixon J in Blair v Curran [1939] 62 CLR 531. Dixon J stated at pages 531-2: A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties…The estoppel covers only those matters which the prior judgment…necessarily established as the legal foundation or justification of its conclusion,… Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. 22 Mr Quinn submitted that a member of the public travelling in a taxi driven by the applicant and being aware of the incidents known to the respondent would not object to the applicant being authorised to drive a taxi. 23 He argued that it would appear that the complaints have been instigated by persons for petty reasons and that such complaints are one of the consequences of being a taxi driver. The applicant has always advised the respondent that the taxi he drives has a CCTV camera in it and he has advised the respondent to review the CCTV footage in relation to the complaints. It seems that the respondent has not viewed the CCTV footage in relation to any of the complaints. 24 The matter before the Tribunal has arisen because a further complaint was received following the 11 March 2010 warning letter informing the applicant that any further complaints may result in variation, suspension or cancellation of his authority. 25 Mr Quinn submitted that the complaint received on 21 March 2010 appears vexatious. Again, the respondent has not viewed the CCTV footage in relation to the complaint. He says that, as a consequence of being a taxi driver, the applicant is vulnerable to all types of unsubstantiated complaints and assaults by customers. Evidence was presented of one such recent assault on the applicant. 26 In relation to the complaint history, Mr Quinn reiterated that the fact that complaints have been made is not evidence as to the truth of those complaints. None of the complaints have been thoroughly investigated and no findings have been made. 27 In relation to the issue of whether the applicant is a fit and proper person to hold a taxi authority, Mr Quinn asked the Tribunal to take into account the large number of people that not only praise what the applicant has done but feel comfortable in the manner that he has carried out his job. 28 In relation to the factors referred to in Saadieh v Director General Department of Transport Mr Quinn noted that the applicant has no criminal history, and there have been no complaints of dishonesty or violence. 29 In relation to the issue of the nature, seriousness and frequency of any complaints made against the applicant, Mr Quinn submitted that 13 of the 23 complaints have already been dealt with and that it would appear to be unjust to deal with the 23 complaints together. 30 Mr Quinn also submitted that the complaints are not of a serious nature. He argued that they are at the lower end of being petty. A lot of them resulted from people complaining about the cost. Some of the costs vary between $3 and $4. Some of the costs relate to extra fees that are added into the fare, for example, fees of crossing the Harbour Bridge and the $3 fee for going to the airport. 31 In relation to the issue of the applicant's driving record and the applicant's reputation in the community Mr Quinn submitted that there are a large number of recommendations by people that have had dealings with the applicant as a taxi driver. He says that it is likely that the applicant will re-offend and be the subject of further complaints or commit further traffic offences because that it is the consequence of driving a taxi. 32 Mr Quinn submitted that several considerations are relevant in assessing the last factor. These include the length of time since the offences were committed or complaints made; the circumstances in which the offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows general remorse; the efforts the applicant has made to rehabilitate himself or herself during the time and any change in the applicant's circumstances such as increased support from friends, family or profession. 33 Applying these factors to the present case the applicant has a number of unsubstantiated complaints which have not been investigated thoroughly. All the complaints appear to be of a misunderstanding by customers to the customs of the taxi industry. There is no other evidence of the applicant's reputation. 34 Mr Quinn submitted that in view of the evidence before the Tribunal the decision under review should be set aside. Alternatively, he asks that the applicant be suspended for a short period or required to undertake some course of education. Discussion 35 The Tribunal's role is to decide what the correct and preferable decision is having regard to the material then before it. The respondent contends that the applicant is not a fit and proper person to be the driver of a taxi-cab. It is necessary to consider that issue. 36 I note that Mr Quinn has submitted that I am unable to consider the complaints that were made against the applicant prior to the earlier decision. I am inclined to agree with Mr Wozniak that issue estoppel cannot apply in these matters. However, it is not necessary that I determine that issue for the purposes of my decision because I will concentrate on what has happened since the earlier decision. 37 In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380, Chief Justice Mason explained that: 'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' 38 Toohey and Gaudron JJ said at 380: "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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." 39 A person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127. Knowledge, ability, moral integrity and the rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. 40 In Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry: `Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry. 41 In the past, the Tribunal has cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done ... to rehabilitate himself, would object to the applicant as the driver of the taxi." 42 Mr Quinn has submitted that a member of the public travelling in a taxi driven by the applicant and being aware of the incidents known to the respondent would not object to the applicant being authorised to drive a taxi. I disagree. 43 It seems to me that this is a situation where the applicant has already been before the Tribunal, where a number of matters were considered, and on that occasion he was given the benefit of unsubstantiated allegations. The decision then was to suspend his authority and to have him undertake retraining which, I understand, he has done. 44 Since then there have been a number of additional complaints and, again, a number of those have not been investigated. 45 Mr Quinn has submitted that the complaints are trivial. While I do not agree that the complaints are trivial, I accept that some of the complaints could be categorised as minor or less serious. They are not at the high end of the scale of seriousness. 46 I accept Mr Quinn's submission in regard to the difficulties that are faced by taxi drivers and accept that they need to deal with difficult customers and that there are often trivial complaints. 47 I note that in early 2010 the applicant was required to undertake retraining in relation to the complaints received following the earlier decision. It seems to me is that he has not benefited from the opportunities that he has had to undertake retraining. He was given the opportunity to refamiliarise himself with his obligations and move forward with a clear understanding of what was required from him. The retraining does not seem to have achieved what was intended. 48 It is apparent that the applicant has failed in his obligations in regard to switching off his meter. He has also failed to comply with the requirement under clause 44 of the Regulations. 49 I accept the evidence given by Mr Drayton in regard to the incident on 10 October 2009. In my view, the applicant's conduct on that occasion demonstrates his lack of understanding of his obligations as a taxi driver. His lack of insight into the incident and his conduct suggests that it is likely that such conduct would reoccur if he is permitted to continue in the industry. 50 There has been a consistent pattern of complaints about overcharging and linked to that is the pattern of complaints about switching off the meter. These are complaints related to fundamental obligations on a taxi driver. That pattern that should not be allowed to continue and I think that if some serious action is not taken now it will continue. The applicant was given the opportunity to change his ways and he has not done so. 51 I essentially agree with the reasons that have been provided in the Minister's decision. In light of the fact that he has already had two opportunities to undertake retraining, I doubt that another opportunity would resolve these issues. Nor do I think that a suspension would focus his mind in the way that I think is necessary. In my view, the applicant would benefit from some time out of the industry. That will allow him to focus his mind on what is actually required of somebody working in this industry and take whatever steps that are going to be necessary for him to achieve that. 52 In my view, the correct and preferable decision is to cancel his authority. Accordingly, the respondent's decision should be upheld. Order The decision 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. 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