Nasour v Director-General, Transport NSW [2011] NSWADT 91

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Nasour v Director-General, Transport NSW [2011] NSWADT 91 Hearing dates: 8 April 2011 Decision date: 04 May 2011 Before: Judge K P O'Connor, President Decision: The decision of the respondent is affirmed Catchwords: PASSENGER TRANSPORT - Taxi Driver Authority - Suspension - Serious Criminal Charges - Decision Affirmed Legislation Cited: Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Road Transport (Driver Licensing) Act 1998 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Chen v NSW Department of Transport and Infrastructure [2009] NSWADT 285 Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Hoballah v Department of Transport and Infrastructure [2010] NSWADT 294 Category: Principal judgment Parties: Ali Nasour (Applicant) Director-General, Transport NSW (Respondent) Representation: P Lander (Applicant) A Wozniak (Respondent) File Number(s): 113077

REasons for decision 1The review applicant Mr Ali Nasour is the holder of a taxi authority EK4104. On 25 March 2011 a delegate of the Director-General, Transport NSW (the administrator), notified him of his decision to suspend the authorisation immediately in accordance with s 33F of the Passenger Transport Act 1990 (the Act). 2Section 33F provides: '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.' 3As to the purpose of the authorisation, s 33 provides: (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. 4Administrator's Reasons . In the statement of reasons accompanying the notice, the delegate advised that, under data matching arrangements with the NSW Police, Transport NSW had discovered that he had been charged with the following offences: * Assault occasioning actual bodily harm * Common Assault, and * Use etc of an offensive weapon (a tyre lever) with intention to commit indictable offence. 5It added that advice received indicated that these offences took place whilst he was driving a taxi. 6The decision to suspend relied on both paragraphs (a) and (b) of s 33(3). He was no longer considered to be of good repute and nor in all other respects a fit and proper person to be the driver of a taxi-cab: para (a). He was considered not to have sufficient responsibility and aptitude to drive a taxi-cab: para (b). 7As to ground (a), the reasons asserted that '[T]he offences recorded show a betrayal of the confidence the community instils in the driver of a public passenger vehicle and demonstrates that you are not fit to hold a public passenger vehicle driver authority'. They continued: 'In view of the nature of your behaviour, the offences recorded, your failure to notify TNSW of any offence, the delegate ... can no longer attest to you being a fit & proper person for the purpose of the Passenger Transport Act 1990.' 8The decision stated that the suspension 'would remain in place until such time as the charges are finalised by the court and TNSW assesses the outcome of the matter or the authority expires.' 9Stay application . The applicant applied to the Tribunal on 1 April 2011 for an interim order under s 60 of the Administrative Decisions Tribunal Act 1997 (ADT Act) lifting the suspension pending the hearing of the criminal charges. I refused the application, but gave directions for an expedited hearing of the application for review itself. The hearing proceeded on 8 April 2011. I reserved my decision, and continued the suspension pending its publication and any further order. At the stay hearing the applicant's lawyer advised that a decision is awaited from the Director of Public Prosecutions as to whether the charges are to be the subject of an indictment; or referred to the Local Court for summary disposal. The applicant's intention is to plead not guilty. It is likely to be several months before any trial occurs. 10Material before Tribunal . The applicant relies on a number of testimonials going to his fame and character. The administrator has lodged, as required by s 58 of the ADT Act, all relevant material in its possession. It is made up of the Department's file, as well as the Police facts sheet and associated material in relation to the charges. The Department's file includes records of the applicant's traffic offence history.