Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Menon v Director General, Transport NSW [2011] NSWADT 62 Hearing dates: 14 March 2011 Decision date: 28 March 2011 Before: C Huntsman, Judicial Member Decision: The Tribunal decided to affirm the decision Catchwords: Suspension of licence, medical assessments Legislation Cited: Sections 33(3) and 33F Passenger Transport Act 1990, section 63 Administrative Decisions Tribunal Category: Principal judgment Parties: Bill Raghwan Menon (Applicant) Director General,Transport NSW (Respondent) Representation: B Menon (Applicant in person) Smythe Wozniak Solicitors (Respondent) File Number(s): 103301 reasons for decision Background 1This was an application by Mr Menon, Applicant, for review of a decision of Transport New South Wales (the Respondent) to suspend the Applicant's driver authority. By letter dated 29 November 2010 the Applicant was advised of the Respondent's decision to suspend his public passenger vehicle driver authority (an authority to drive a taxi-cab). The Respondent advised that the Applicant had been recently requested to undergo a specialist medical examination in accordance with the medical standards for licensing and clinical management guidelines "Assessing Fitness to Drive Commercial Vehicle Drivers 2003" published by Austroads and the National Road Transport Commission. The examination resulted in a finding that the Applicant did not meet the medical standards as required and for this reason his authority to drive a public passenger vehicle was suspended, effective immediately. The written statement of reasons for the Respondent's decision, indicated that to facilitate the reinstatement of the Applicant's authority to drive a taxi-cab, the Respondent would require a report from the Applicant's neurologist outlining the Applicant's fitness to drive a public passenger vehicle in accordance with the commercial driver licensing medical standards. 2The Respondent notes that it is detailed in the Respondent's correspondence of 14 January 2011 to the Applicant, that the notice of suspension dated 29 November 2010 was issued by the Respondent after receiving a report from Professor Corbett indicating that the Applicant was not fit to be the holder of a commercial driver's license. Professor Corbett's report of 24 October 2010 notes that the Applicant has medical conditions of left internal capsular stroke with the right hemiparesis, diabetes type II, hyperlipidaemia, hypertension, diabetic retinopathy, and saccular aneurysm of the tip of the right internal carotid artery. On review Mr Menon was well with no new symptoms. Professor Corbett states that he confirmed the Applicant eyesight is significantly impaired, left 6/12, right 6/24. An MRI scan confirmed the aneurysm and that it was slightly more prominent than in 2006. A review by Dr Allen, Consultant Vascular Neurosurgeon, was recommended and Professor Corbett states that he does not think that the Applicant is fit for commercial driving, but can continue with private driving. Professor Corbett states: "His eyesight is marginal and the aneurysm is a contraindication to commercial driving". 3An application to the Tribunal by the Applicant for an urgent stay of the decision to suspend his driver authority resulted in a stay being granted on 11 January 2011, and it appears that this decision may have been largely based on a report from Dr Yiannikas. It was subsequently put to the Tribunal by the Respondent that Dr Yiannikas had not been advised of all medical details relevant to the Applicant's medical position, and the matter was relisted for hearing on 13 January 2011. On that date the previously granted stay of the decision to suspend the Applicant's taxi driver authority was rescinded. As a result the Applicant's taxi driver authority remains suspended. 4At a directions hearing held at the Tribunal on 25 January 2011, directions were made for the filing of further written material and the matter was listed for hearing on 14 March 2011. Evidence at the hearing 5On 14 March 2011 Mr Wozniak, solicitor, appeared for the Respondent and there was no appearance of the Applicant. Correspondence had been received from the Applicant, prior to the hearing date, this correspondence, addressed to the Tribunal, was dated 3 March 2011 and stated: I am writing in regards to the hearing set for my case on 14th March, 2011. At my last hearing, I was instructed to provide more recent and in-depth neurological reports pertaining to my condition. I have had the necessary assessments done. Included with this letter are the written evaluations by Dr Rodney Allen, Professor Alistair Corbett and his associate, Dr Rajat Lahoria. Today will be the 5th time I have travelled to Sydney City to provide paperwork or attend a hearing. I request that my next hearing be cancelled. I feel it is much easier and less time consuming for both parties to communicate via phone or mail from now on. Being involved in the Taxi business over 35 years, I felt that I've provided a valuable service to the community. I hope that you can be compassionate and understanding towards my situation and allow me to drive in a commercial capacity. 6Attached to the correspondence were the following documents: a report by Dr Lahoria, co-signed by Prof Corbett, of 28 February 2011; and a report by Dr Allen of 7 February 2011. The report of Dr Lahoria states that Mr Menon suffered a stroke in 2006 and has made good recovery with only mild right sided residual weakness. During investigations following the stroke, he was found to have a small aneurysm. With regards to the incidental finding of the aneurysm, he was reviewed by Dr Rodney Allen, neurosurgeon. Further examinations were conducted and Dr Lahoria noted that Dr Allen's opinion is that the annual risk of haemorrhage is quite low, approximately less than 0 .5% per year. Future risks are minimised as he is a non-smoker and his blood pressure is tight controlled. With regards to his diabetes retinopathy, he was reviewed by ophthalmologists and "from visual acuity point of view he qualifies to drive a taxi cab." Dr Lahoria's report of 28 February 2011 is addressed to the Roads and Traffic Authority and requests an assessment for the Applicant regarding his eligibility to drive a taxi cab. 7Mr Wozniak, solicitor for the Respondent, told the Tribunal that if the Applicant agrees to the assessment recommended by Dr Lahoria, then this will be organised quickly and a determination will be made as to whether the suspension can be lifted. Mr Wozniak noted that there was no longer an issue of visual impairment on the medical reports. 8Mr Wozniak, for the Respondent, provided a report by Dr Garvan, Occupational Physician, which stated: While the report would appear to clear him for work we will need Dr Allen to sign on the appropriate section of the Medical Specialist Assessment Report (the pink form) concerning Mr Menon's fitness to drive a public passenger vehicle....A practical driving test (taxi school) will also be required before we can advise fitness for a conditional driver authority. This was requested by Dr Lahoria in his report of 28/t2/2011. 9The Tribunal attempted to contact the Applicant by telephone during the hearing on 14 March 2011. The Tribunal was not successful in establishing contact. The Tribunal was seeking to discuss with the Applicant his correspondence of 3 March 2011 and to ascertain any further views which he would like the Tribunal to take into account. In particular the Tribunal wished to clarify the Applicant's intentions as expressed in his correspondence - the Tribunal was unsure whether the Applicant was seeking to withdraw his application for review, or requesting that there be a determination on the papers at the hearing, noting the Applicant's request that the hearing the cancelled, and also his comment that he sought the Tribunal consider his situation with compassion and understanding. However, the Tribunal was unable to establish contact with the Applicant during the hearing. Discussion of the Law and the evidence and Findings 10The Respondent made a decision to suspend the Applicant's authority pursuant to section 33F of the Passenger Transport Act 1990. This section provides that, having regard to the purpose of an authorisation, the Director-General may at any time vary, suspend or cancel any person's authorisation under this Division. Section 33(3) of the Passenger Transport Act 1990 provides, amongst other matters, that the purpose of an authority is to attest that the authorised person is of good repute and in all other respects a fit and proper person to be the driver of a taxicab; and that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxicab, in accordance with any relevant conditions and in accordance with law and custom. The Tribunal notes that the Respondent considered, having regard to the purpose of the authority, and the medical evidence about the Applicant's health/medical issues, that the Respondent was unable to attest that the Applicant is a fit and proper person, until such time as a satisfactory medical report is provided to the Respondent (refer statement of reasons attached to Respondent's correspondence of 29 November 2010). 11The Tribunal discussed with the representative for the Respondent the nature of the current proceedings. The current proceedings are the Applicant's application for review of the Respondent's decision to suspend his authority to drive a taxi-cab. On such an application for review, section 63 of the Administrative Decisions Tribunal Act 1977 (the Act) provides that the Tribunal is to decide what the correct and preferable decision is, having regard to the material before the Tribunal at the time of hearing/review, including any relevant factual material, and any applicable written or unwritten law. Section 63(3) of the Act provides that in determining the application for review, the Tribunal may affirm, vary, or set aside the Respondent' s decision (and make a decision in substitution for the decision set aside), or set aside the decision and remit the matter for reconsideration by the Respondent. 12The Tribunal notes that the Respondent's decision to suspend the Applicant's taxi driver authority was based on the medical opinion of Prof Corbett that the Applicant was not fit for medical reasons. At the time of the current hearing, further medical evidence has been obtained, and the question of fitness is still to be ultimately determined, however, progress has been made in presentation of further medical detail by the Applicant addressing the issue of his medical fitness to drive a public passenger vehicle. There is no evidence before the Tribunal at the time of this hearing, which would satisfy the Tribunal that the correct and preferable decision is to set aside the Respondent's decision to suspend the Applicant's authority to drive a taxi cab. As noted above in these reasons for decision, at the time that the Respondent notified the Applicant of the decision to suspend his driver authority, the Respondent also requested the Applicant to provide further information relating to his medical fitness. The Applicant is still in the process of providing such further information, and has very recently provided the report of Dr Lahoria. The Respondent's representative indicated to the Tribunal at the hearing that once such further information is provided, as recommended by Dr Lahoria and noted by Dr Garvan, the Respondent would consider lifting the suspension and would make a decision in relation to the suspension. 13The Tribunal's role is to decide what is the correct and preferable decision, on review of the Respondent's decision to suspend the Applicant's driver authority. The evidence before the Tribunal would not satisfy the Tribunal that the Respondent's decision to suspend the Applicant's driver authority should be set aside, as appears to be contended for by the Applicant. The recommendation of Dr Lahoria, who has provided a report in favour of the Applicant, is that further steps be undertaken to ascertain the Applicant's fitness (an assessment of his eligibility). The medical evidence obtained by the Respondent, from Dr Garvan, of 9 March 2011, notes this recommendation by Dr Lahoria and endorses it. Given this evidence the Tribunal could not be satisfied that the correct and preferable decision on the material before the Tribunal at the current time would be that the Respondent's decision be set aside, or varied, or remitted for reconsideration in accordance with specific directions/recommendations. The Tribunal is satisfied on current evidence that the decision of the Respondent, to suspend the Applicant's driver authority (while questions relating to his medical fitness to drive were resolved), is the correct and preferable decision. The Tribunal notes that, from the Applicant's point of view it appears that considerable progress has been made. The Tribunal notes the endorsement by the Applicant in his correspondence to the Tribunal of 3 March 2011 (set out above in these Reasons for Decision) of continuing communication with the Respondent by letter and e-mail, and observes that it would be appropriate for the Applicant to pursue such continuing communication to resolve outstanding matters relating to his driver authority. 14For the reasons discussed above the Tribunal affirms the decision. ********** 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. Decision last updated: 28 March 2011