Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Mattar v Roads and Maritime Services [2012] NSWADT 274 Hearing dates: 30 July and 9 October 2012 Decision date: 20 December 2012 Jurisdiction: General Division Before: Judicial Member C Huntsman Decision: The decision is affirmed Catchwords: Allegations of demanding more than prescribed fare and cabcharge fraud; whether fit and proper person; whether taxi driver authority should be cancelled Legislation Cited: Sections 33, 33F Passenger Transport Act 1990; section 63 Administrative Decision Tribunal Act 1997 Cases Cited: AJO v Director-General Department of Transport [2012] NSWADT 101 Category: Principal judgment Parties: Joe Mattar (Applicant) Roads and Maritime Services ( Respondent) Representation: J Mattar (Applicant, in person) Smythe Woznaik Legal (Respondent) File Number(s): 123081 REASONS FOR DECISION Background 1This was an application by Mr Mattar, the Applicant, for review of a decision of the Respondent, Roads and Maritime Services, to cancel his authorisation to drive taxicabs. On 6 March 2012 the Respondent made a decision which was notified to the Applicant by letter dated 8 March 2012. 19 March 2012 the Applicant applied for internal review of the decision. The Respondent on 5 April 2012 on internal review affirmed the decision. The Applicant then sought review by the Tribunal. 2It was stated by the Respondent in the internal review decision, that the Applicant's authorisation was cancelled because of his extensive complaints history. The Respondent alleged that the complaints history included a predominance of complaints, against the Applicant for demanding more than the prescribed fare. The Respondent notes that the Applicant was required to undertake retraining in 2009 because of the then number of complaints against him, and that complaints have continued to be made. The Respondent found that the extensive complaints history bears on the Applicant's reputation and indicates that he does not have sufficient responsibility to drive a public passenger vehicle in accordance with the law and custom. 3The Applicant was first issued with a taxi driver authority on 11 October 1994. The Respondent's case 4The Respondent's case was detailed in the written decision record of 6 March 2012, and in evidence presented at the hearing. The evidence at the hearing included oral evidence from witnesses including a customer/passenger, Mr Peter Baker, and documents contained in the Respondents file (section 58 documents). The Respondent also provided further documents under cover letter dated 27 August 2012, enclosing a statement of Mr Mikhael, who also gave oral evidence at the hearing; and a record of interview with the Applicant dated 7 August 2012. A written statement from an elderly witness, Ms Lehmann, was also provided. The Respondent made detailed oral submissions. 5In summary, the Respondent's case is that the complaint history indicates a number of complaints by customers that the Applicant has demanded excessive fares from the customer and/or falsified credit card/CabCharge receipts. The Respondent in particular relies on two recent complaints: by an elderly lady - Ms Lehmanm, and by Mr Peter Baker. Both these witnesses allege that the Applicant fraudulently charged them excessive fares - by debiting their credit card for significantly more that the fare. The Respondent relies on evidence presented by Mr Mikhael indicating that the Applicant is being investigated for fraudulent use/claims in relation to the EFT terminal used by him as a taxi driver. It is said that money is owed to GM tabs because GM cabs have been required to reimburse customers who have been overcharged by the Applicant. Records relating to the EFT terminals issued to the Applicant for use in receiving payments from customers as a taxi driver, were provided by the Respondent at the hearing. The Respondent's case is that there is a history of dishonesty which indicates that the Applicant is not a fit and proper person to be authorised to drive a public passenger vehicle. TheApplicant's case 6The Applicant provided written material: a statement by the Applicant, and a statement by his wife dated 20 September 2012. The Applicant, and his wife, Ms Cassarino, also provided oral evidence at the hearing. In summary the Applicant's case is that he has not overcharged customers and he is a fit and proper person. The Applicant does not recall a number of the complaints alleged against him by the Respondent, this is further detailed below. In relation to Ms Lehmann the Applicant states that this was an honest mistake and he did not intend to overcharge the passenger. In relation to Mr Baker the Applicant alternatively denied the incident, or did not recall the incident, or said it was an honest mistake. In relation to specific CabCharge receipts the Applicant indicates that his English is not good and that his children help fill in the paperwork, and so it is probable that a mistake has been made in that manner. In relation to the Respondent's case that the Applicant failed to declare traffic offences on his application for renewal of his taxi driver authorisation, the Applicant states that his wife has always filled in these forms for him because of his poor English writing skills. 7The Applicant states that he has been a taxi driver for over 20 years and that he treats customers with respect. The Applicant submits that he is a fit and proper person to be a taxi driver given his long history as a driver. In relation to the allegations of fraudulent cashing of dockets with GM cabs the Applicant states he has not done so. The Applicant's wife gave evidence that security measures and procedures in place at GM cabs are not as stringent as stated in the Respondent's evidence. She notes that during the period her husband was cashing dockets at GM cabs, Sydney airport, she, on at least three occasions, cashed dockets herself on behalf of her husband. On those occasions she handed over dockets which could have been at least 10 days worth of dockets at any one time. The Law 8The Passenger Transport Act 1990 provides: Section 33, Passenger Transport Act 1990 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". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units. (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. 4 Objects The objects of this Act are: (a) to require the accreditation or authorisation, by TfNSW, [Transport for NSW] of the operators of and drivers involved in public passenger services (other than ferry services), and ............. (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and (f) to encourage co-ordination of public transport services. 9The decision under review in the current proceedings is a decision to cancel the Applicant's taxi driver authority. Section 33F clearly provides that in making a cancellation decision regard is to be had to the purpose of the authority. The purpose of an authority is to attest to the matters set out in s33(3)(a)(b) of the Act, namely, to attest that the authorised person is: Of good repute; and A fit and proper person (to be so authorised); and Considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with law and custom; and in accordance with the conditions under which the taxi service is operated. 10Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 11A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker. 12Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 13In deciding this matter the Tribunal has also had regard to prior decisions of the Tribunal discussing the legislative requirements. . A useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 (25 May 2012) at paragraphs 24 to 35: 24.Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. 25.In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,Chief Justice Mason explained that, at 380: '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.' 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." 26.A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." 27.InSobey v Commercial and Private Agents Board 20 SASR 70 Walters J said: "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 28.Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth). 29.In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are: the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted; 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. 30.In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety. The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. .... The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this. 31.The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." 32.As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393: 'A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts." In Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained: "... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person." 33.In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character: "... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation." That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character: "... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279." Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained: 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards. 34.In the present case the regulated activity is that of a country school bus driver who regularly transports high school age children for long distances, for up to three hours each school day. When doing so, drivers are entrusted with ensuring the safety of the students and are responsible for regulating their behaviour in accordance with established policy. 35With respect to requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. I agree with the Agency that law and custom means more that simply the rules of the road applicable to bus drivers, but the lawful requirements and directions that must be observed by them. Custom includes industry standards, including applicable policies of the Agency relevant to the to an authority holder. 14The legislative provisions, and case law set out above, indicates that in deciding this matter I must have regard to the purpose of the authority, namely I must be able to attest to the Applicant's repute and fitness and propriety, and that he is considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with law and custom. I agree with the authorities set out above, that in consideringthe requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. In relation to fitness and propriety a number of matters are relevant, as the review of the authorities above indicates, and in particular regard should be had to the Applicant's honesty, knowledge and ability in the context of the role to be undertaken. In the present matter it is alleged that such honesty, knowledge and ability is not possessed by the Applicant - in his actions of charging passengers excessive fares. Assessment of the Applicant's fitness and propriety should also be made in the context of the objects of the Act (s4, set out above) as to meeting the reasonable expectations of the community for safe and reliable passenger transport services, The evidence and the Tribunal's findings 15The Applicant has been authorised to drive taxicabs since 1994. In May 2009 there was an investigation by the Respondent of a complaint against the Applicant and it was noted that there were a high level of complaints at that time. The Applicant was interviewed by compliance officers about one particular complaint and a direction that the Applicant undergo training, was made on 10 May 2009. It was stated that a reason for the direction to undergo training was the high level of complaints since March 2007, and this reason was stated in writing to the Applicant 16A record of interview, between officers of the Respondent and the Applicant, was conducted in relation to a specific complaint by a woman passenger said to have occurred on 10 January 2010. This complaint was denied by the Applicant. As the complainant did not pursue the complaint at that time, it was downgraded from sexual harassment to improper behaviour. The complaint investigator recommended "severe written warning issue" in February 2010 and a warning letter was subsequently sent by the Respondent to the Applicant. The warning letter referred to the recent interview which had been conducted and also referred to the Applicant's complaints history generally. 17On 29 March 2010 a record of interview was conducted with the Applicant to investigate a complaint that the Applicant had fraudulently received $110 by using a credit card belonging to a passenger, after he paid the fare in cash. The passenger alleged that the driver advised that his EFTPOS machine was not working and the customer then paid by use of cash. When he received his statement from his bank his card had been charged $110 for the fare. During the record of interview the Applicant is recorded as denying any recall of the journey in question. The Respondent's compliance officers record that they made a decision to not take any action after the record of interview because the complainant had not contacted police or provided further paperwork to the Respondent. 18A record of interview was conducted in relation to a complaint by Ms Lehmann of 13 December 2011, and Mr Peter Baker of 22 November 2011, about excessive fares being charged by improper use of customer credit cards. The Respondent provided GPS tracking evidence to show the route driven by the Applicant's taxi at the time of these two complaints 19The evidence of Mr Peter Baker was provided by written statement and oral evidence. Mr Peter Baker was a passenger in the Applicant's taxi on 22 November 2011. He was staying in hotel accommodation at the Stamford Hotel, Mascot. He booked a taxi, on that date, at 7am approximately, to go to the domestic airport, Mascot, from the front of the hotel. Mr Baker states that the journey took less than 10 minutes and on arrival at the destination the driver said that the fare was going to be $15. He told the driver he would need to use his credit card, the driver reached for an "old mechanical machine" to imprint the docket, and handed the docket to Mr Baker and asked him to sign. Mr Baker said he was suspicious of the driver and kept an eye on his bank account statements. He further stated that for all other taxi trips during his stay the modern EFT machines were used, and all the transactions from those machines were shown correctly on his bank account statement. On arrival home in in Adelaide Mr Baker checked his bank details and found an amount of $160.95 was deducted from his bank account, and he disputed the transaction with his bank. In his oral evidence at the hearing Mr Baker said he had good recollection of the journey and signing the credit card voucher at the end of the journey. He found it odd that the old manual machine was being used and felt suspicious. Mr Baker stated that the cost of the journey was usually between $9 and $12.The Respondent's file indicates that a complaint was made by Mr Baker, complaint number 68262. 20The Respondent's file provides GPS tracking records for the taxi driven by the Applicant on 22 November 2011 at the time of Mr Baker's fare -the recorded fare was of 9 minutes duration (folio 503). At folio 490 of the Respondent's file is a copy of a receipt, the receipt appears to be signed by Joe Mattar and the Respondent provides a record that the payment was claimed by Mr Mattar through GM cabs in the amount of $160.95. On the receipt it is stated that the fare is from Hornsby to Mascot and Hornsby is spelt "HORNSBEY". The receipt also clearly contains an imprint of Mr Bakers charge card. The claim is for taxi 9102 by Joe Matter. A worksheet on the Respondent's file, for taxi 9102, of 22 November 2011, indicates that the taxi is being driven by Joe Mattar in the period of Mr Baker's complaint of that date. During the record of interview conducted with the Applicant by the Respondent's officers the Applicant is recorded as stating that he does not recall this fare, the docket must be wrong, he also goes to the Stamford North Ryde and the fare would be about right for North Ryde. 21A written statement was provided by Ms Ann Lehmann, passenger, dated 7 February 2012. Miss Lehman states that she is 88 years of age. She is a pensioner. On 13 December 2011 she had a dental appointment in Park Street, Sydney, and after her appointment the receptionist of the dental surgery helped her to hail a taxi from Park Street. The journey did not take any longer than normal, and on arrival at her address the driver said that he did not possess any change, and requested she pay by credit card. She gave the driver her MasterCard. "I only have partial vision and I could not see how he processed my card. I signed the docket. I also gave the driver docket from my taxi transport subsidy. I also signed this docket but did not fill out the details." Ms Lehmann states that at the end of December 2011 her daughter checked her bank statement and discovered an amount of $186.48 was deducted from her bank account, and she disputed the transaction with the bank. The Respondent's file indicates that a complaint was subsequently made by Ms Lehmann's daughter (complaint 67935). The complaint was made on 16 December 2011. The complaint noted the credit card charge was $186.48 for a fare of approximately $15. 22In relation to the usual fare from Park Street/Elizabeth Street Sydney to Bellevue Hill (the fare taken by Ms Lehmann on that day) it is said (folio 491 of Respondent's file) that the usual fare is $22.67 (this is the fare before the application of any pensioner discount). The Respondent's file contains GPS tracking records of the fare indicating that the taxi was driven from Park/Elizabeth Street to Bellevue Hill directly, the fare was of 18 minutes duration, the credit card receipt for payment of the fare recorded Mr Mattar as the driver. The receipt/voucher for this passenger's fare recorded the trip as "MASCOT to HORNSBEY" at a fare of $168. During the record of interview when shown the documents/records relating to this fare the Applicant is recorded to have stated that he can't explain why the details on the docket are different and says the difference may be due to his children filling out the paperwork for him. He also stated that he relies on the passenger to fill out the detail. He recalls this passenger and recalls her signing the docket. 23A letter was sent dated 25 January 2012 by the Respondent to the Applicant to arrange a record of interview to discuss two recent complaints about charging more than the prescribed fare and notifying that the interview would also discuss the Applicant's history of complaints. 24Mr Mikhael gave evidence by way of a written statement and oral evidence. He was the operations manager at GM cabs for the last 3 to 4 years. A number of documents were referred to by Mr Michael in his evidence. The documents included the GM cabs EFTPOS contract for EFTPOS terminal 4502329, issued to the Applicant and signed by him on 17 April 2009. The documentary evidence included an EFTPOS return form dated 19 February 2010 stating a return of EFTPOS terminal number 304223004, and the issue of a replacement terminal number 4505550 to Mr Mattar. . The records presented by Mr Mikhael included Charge dockets/vouchers which appeared to be signed by the Applicant, and tax invoice/merchant copy receipts indicating the EFTPOS terminal used for the particular Charge docket and claim on GM cabs - some merchant copy receipts were for terminal number 4505550 and some were for terminal number 4502329, matching the EFTPOS terminals issued to the Applicant during the relevant periods. Documents indicating that the card member, or customer, had disputed the fare were also provided. In a statement Mr Michael states that the records indicate that Mr Mattar, the Applicant, has presented Charge dockets/ ETickets and credit card transactions to the payment system at GM cabs, and GM cabs have paid the face value of those dockets. Some of the transactions have been returned to the company as non-payment because of disputed transaction by credit card holders. Mr Michael says that Mr Mattar has not made any repayments despite requests by the company to do so and the debt amount owed by the Applicant to GM Cabs is over $2000. An examination of the copies of the CabCharge/E tickets/dockets indicate the driver's name, Joe Mattar, (the Applicant) on a number of the disputed dockets, and the taxi driver authorisation number is AR 5251 on some of the dockets, being the Applicant's taxi driver authorisation number. The Respondent relies on the EFTPOS terminal number on the processed payments, which matches the EFTPOS terminal issued to the Applicant in the period, rather than relying on all the details on the dockets (some dockets had different driver authorisation numbers, or taxi numbers). 25In response to this evidence the Applicant provided an additional written statement and oral evidence, and also relied on evidence by his wife, written and oral. He states that he did cash dockets and vouchers with GM Cabs and has little understanding of how the payments are processed nor why transactions are disputed months later. He cannot recall any of the documents produced as they date back to 2009 and 2010. He states he handed his EFTPOS terminal back to GM cabs approximately 18 months ago as he was not happy with this service. His only recently became aware of the amount claimed by GM cabs as owing to them. He is not satisfied that the disputed transactions were made by him. The Applicant's wife, Ms Cassario, states that when cashing dockets for her husband, on at least three occasions, sometimes over 10 days worth of dockets at one time, she was not asked for any identification nor asked what her association was to the driver. In her oral evidence she stated that she could not say with any precision the date when she cashed dockets but agreed that it would have been more than 18 months ago. She said that her husband returned the EFTP0S machine about 18 months ago. 26The Respondent submitted that the written evidence/documents as to the disputed transactions indicate that there are a number of disputed transactions by customers over a short period of time. There were disputed transactions in relation to the EFTPOS terminal 4502329 between April 2009 and February 2010, and from February 2010 to the middle of 2010 there were further disputed transactions for EFTPOS terminal 4505550. These disputed transactions in relation to use of these two EFTPOS terminals were in the period where the records indicate those EFTPOS terminals were issued to the Applicant. The date of the last disputed transaction was 1 June 2010. The Applicant and his wife rely on the fact that the terminals were returned 18 months ago. The evidence indicates that there have been no disputed transactions in the period since the terminals were returned. 27In relation to the Applicant's assertion in his written statement that he had been contacted by a staff member of GM Cabs seeking the return of his EFTPOS terminal Mr Mikhael gave evidence about this issue. He noted that the Applicant queried in his written statement why he would be asked to return the terminal so long after he had handed it back. Mr Michael said there was a general attempt by staff to get any unused terminals returned, and that the Applicant would have received requests prior to the one he referred to. However Mr Mikhael stated that there had been no transactions on that terminal for a significant period of time. He said the terminal had been "written off as lost" some months previously and they had also a notation recorded against the terminal, that the terminal was not to be recovered because it was used in fraud. Mr Mikhael also indicated that the terminal issued to the Applicant had been deactivated, however they would still try to recover the actual terminal as the hardware is worth something. Mr Mikhael also said that with the manual CabChargetransaction system they had experienced a lot of fraud but with the instant system the fraud was less. 28The Applicant maintained in his evidence to the Tribunal that the dockets were not lodged with GM Cabs by him, and that he had not charged passengers fraudulent amounts. He reiterated that from the beginning of the complaints investigation he had admitted to the old lady as a mistake (Ms Lehmann) and he also added that he admits to Mr Baker, who was "at the court" as a mistake "only those ones". The Tribunal notes that this is different evidence to that previously given by the Applicant - in his initial statement to the Tribunal he stated that he did not dispute the journey was as the customer claims even though he does not recall it. He can only assume that the wrong destination was completed on the docket at some stage, the amount would otherwise be correct for the journey stated (Mascot to Hornsby). He noted the customer should take responsibility for completing vouchers. In the record of interview with the Respondent he is recorded as stating that he cannot remember the journey and that he goes to the Stamford Mascot everyday as well as the Stamford North Ryde. In his evidence at the hearing the Applicant when shown the docket relating to Mr Baker said it was not his writing. He mentioned some dockets were completed by his daughters at home. Under Cross examination the Applicant agreed that the writing on the two dockets (for Mr Baker and Ms Lehmann) might be similar. It was put to the Applicant that he inserted "Hornsbey" on both dockets to make the journey appear a longer journey and he did not agree. He agreed that he benefited from the incorrect amount on the docket when he cashed the docket but did not agree that he had intentionally put an incorrect amount on the dockets. 29Under cross examination a number of other complaints recorded in the Respondent's file were put to the Applicant (in particular complaints recorded at folios 427, 428, 426, 425, 418, 417 and 437, 438) - complaints involving allegations of incorrect processing of cab charge or credit cards (in excess of the fare). Folio 425/426 involved an allegation of excessive fare and the docket recording incorrect details for the pick up, drop off location, driver and taxi number, the driver was interviewed, the driver was reprimanded and a refund of $20 and apology sent to passenger. In his written statement the Applicant says he does not recall this without paperwork, but queries that a $20 refund was obtained from him. At folio 418 the complaint is that the fare was $6.80 but the driver subsequently charged her credit card $59.72. Outcome recorded (folio 417) is that the driver made an error on EFTPOS and has refunded passenger. The Applicant's response in his written statement is that he does not recall this journey and has no documentation to refer to. He states he does not intentionally overcharge people and it could be an honest mistake. The complaint at folio 428/427 is that the customer's cab charge states $39 but his bank account was deducted $138.75. On investigation it was recorded as "justified" and that on the docket the taxi looks like T1347 but GM Cabs advised that the driver AR5251 (the Applicant's authorisation number) was paid that amount. The Applicant states that as taxi 1347 is an RSL cab this cannot be his transaction, he does not address however the finding that his driver authority is recorded as receiving the disputed payment. For the complaint recorded at folios 430/429 this involves double charging and overcharging and changing of details on the docket. The fare is normally $25 but the passenger alleges he was charged $51 and the second fare charged was $75.The Respondent's records indicated that the driver at the time was driver AR 5251. On investigation it appeared to the investigator that the same card had been used for the two fares. As the driver no longer worked for the network the passenger was advised to contact CabCharge and ask for the reversal of charge. In relation to this complaint the Applicant states he is not aware of the complaint, cannot recall and has no supporting documents or evidence provided to him by the Respondent. 30When these particular complaints were put to the Applicant during cross-examination he could not recall the incidents. The Applicant accepted that the Respondent kept records, but could not recall anything about a number of particular complaints or transactions. This was consistent with the Applicant's written statement dated 29 June 2012 where he referred to individual complaints of overcharging stating that he could not recall the incidents. The Applicant he did say during cross -examination "where's the proof that I was the driver". 31The Tribunal is satisfied on the evidence that there is a history of complaints being made against the Applicant in relation to charging excessive fares and/or charging customers' credit cards in excess of the fare. When investigated by the Respondent's officers some complaints were found as justified and "driver reprimanded" as detailed in paragraph 29 above. The Applicant in his evidence does not recall most of the complaints, including complaints where the Respondent's material evidences that the Applicant was contacted by complaints/investigation officers. 32In relation to the history of complaints the case law/authorities indicate that the Tribunal should consider the Applicant's honesty and responsibility, amongst other matters, including the history of complaints and the likelihood whether such conduct will re-occur, in determining whether the Applicant is a fit and proper person (refer paragraphs 9 - 14 above). The Tribunal is conscious of the fact that the Applicant's livelihood is in issue, and that the Tribunal has not heard directly from those who made a number of the complaints. However, the Tribunal heard witness testimony at the hearing from one complainant (Mr Baker) and also received a written witness statement from another, Ms Lehmann. Ms Lehmann, an elderly woman, was not called to give oral evidence at the hearing. Ms Lehmann's evidence and the Respondent's records in relation to her complaint (such as GPS tracking records of the taxi fare) are detailed above. 33The Tribunal also heard witness testimony from Mr Mikhael about a number of transactions conducted on EFTPOS terminals - and business records identified by Mr Mikhael indicate that those EFTPOS terminals were issued to the Applicant and in his custody and control at the time of the disputed transactions. The business records identified by Mr Mikhael included the contract for the one of the EFTPOS terminals, such contract clearly signed by the Applicant (terminal 329). The evidence supports the conclusion that the EFTPOS transactions were conducted by the Applicant - as they were conducted on terminals in his use and control in the relevant period. Further when he cashed the dockets he was the beneficiary of the payments. Even if the Tribunal were to consider the possibility (as contended in the evidence of the Applicant's wife) that someone other than the Applicant cashed the dockets, the Tribunal is still left with the evidence that the dockets were processed on the Applicant's EFTPOS machine, and charged the customer more than the fare (and in many cases substantially more). This is so regardless of who cashed the dockets. Although the Tribunal is not required to decide who was the beneficiary through cashing the dockets (given the Tribunal is satisfied that the EFTPOS machine in the Applicant's control processed the excessive fares thereby overcharging the passenger) the Tribunal finds it implausible that a number of dockets which would ordinarily be in the Applicant's possession ( and a number of which had the Applicant's details on the docket) would somehow be cashed for the benefit of a person other than the Applicant. 34The disputed transactions described by Mr Mikhael, in the Tribunal's view, evidence behaviour consistent with the complaints history - after the fare had been paid for by the passenger (either by card or cash) their card (credit card or cab charge voucher) was deducted for a larger amount than the fare. On a number of the dockets, including those subject of complaints in the complaints history detailed above, the Applicant's driver authority details were supplied or his name was written on the voucher. On other complaints, the details (taxi number or driver identification) had been changed on the receipts, but the Respondent wassatisfied as to the Applicant being the driver at the relevant time based on their records. The Applicant queried being the driver. However the Applicant did not dispute being the driver in relation to the two passengers who made complaints and provided detailed written statements (and one gave oral testimony at the hearing) - Mr Baker and Ms Lehmann. The Tribunal has therefore considered carefully the evidence provided by these two witnesses. 35Mr Baker's oral evidence was consistent with his written statement previously supplied, and also with his complaint to the Respondent, which was also proximate to the time of receiving his bank account statement. The evidence of Mr Baker supports a conclusion that he travelled in the Applicant's taxi from the Stamford hotel to the domestic airport, that Mr Baker is aware that the usual fare is $15, and when he received his bank statement he was charged well in excess of this amount as the sum of $160.95 was deducted. He gave evidence that he was suspicious because the driver used an old manual swipe machine to make the card payment and it had been Mr Baker's experience in taxis that a modern digital system was ordinarily in use. Because he was suspicious he kept an eye on his bank account statements. The Applicant gave an explanation for using the old manual machine - namely that the owner of the taxi which he drove required him to process receipts in a certain way. The Tribunal has no basis to reject Mr Baker's evidence - it was consistent with prior statements and was plausible. Under cross examination his evidence was not impugned in any way. The receipt for the journey, which had been subject to a claim for payment by a taxi driver, clearly had the imprint of Mr Baker's card however the details written on the receipt were for a journey from Hornsby to Mascot and Hornsby was spelt HORNSBEY. The amount written on the docket was "$145.00" and the drivers name on the docket was "J.Mattar". Mr Baker's evidence was that he scribbled $15 dollars on the docket at the time of the fare. 36The Applicant's evidence was not consistent - at interview he said he had no recollection, at hearing he initially did not agree with Mr Baker's account. He stated that the writing on the receipt was not his writing but also agreed that the writing was similar to the writing on the receipt for Ms Lehmann's fare; the Applicant later stated that he agreed with the account of "the old lady and the one at court" as "honest mistakes. The Tribunal finds that the evidence of the Applicant was inconsistent and prefers the evidence of Mr Baker which was consistent with other evidence before the Tribunal, and which was consistent with his initial complaint. The evidence of Ms Lehmann, although only in written form, and she was not subject to cross examination, was also consistent with the other evidence before the Tribunal (GPS tracking records and other records of the fare) and given the inconsistencies in the Applicant's evidence the Tribunal prefers Ms Lehmann's evidence to the Applicant's. In any event the Applicant does not dispute Ms Lehmann's evidence or offer any real explanation other than to state he made an honest mistake, as such Ms Lehmann's evidence is essentially uncontradicted. 37One of the explanations offered by the Applicant for the "honest mistake" was that his children completed paperwork for him. The Tribunal does not find it plausible that children would complete details such as the destination or the fare, or fill in the words "Mascot to Hornsbey" without being so directed. 38The Respondent's file also contains GPS records for the journeys by the two passengers - such records clearly indicate that the route taken by the Applicant's taxi was as detailed by the passengers (Mr Baker and Ms Lehmann) and was clearly not to Hornsby. The Respondent's records also provide evidence of the usual fare, which is significantly less than the fare charged (some $100 less in the case of each passenger). 39The Tribunal is satisfied that the Applicant overcharged Ms Lehmann and Mr Baker on the evidence overall. The evidence of the two passengers is consistent with the other available evidence (the GPS records of the actual route taken by the Applicant's taxi, the records as to the usual fare, and the copies of the cabcharge receipts showing fares charged in excess of $100 for destinations of "Hornsbey"). The Applicant had no plausible explanation other than "honest mistake" or that his children completed the receipts. Given the consistency of the accounts of the passengers with the other records before the Tribunal, and the plausibility and consistency of their evidence, then the Tribunal prefers the evidence of the passengers (Mr Baker and Ms Lehmann) to that of the Applicant. The Tribunal is therefore satisfied that the evidence establishes that the Applicant charged excessive fares and did so dishonestly by changing the details of the trip (to Hornsby) and the amount of the fare. 40The history of complaints indicates a history of passengers making complaints about similar dishonest conduct. Mr Mikhael's evidence is also to this effect. The authorities indicate the Tribunal is to consider the history of the complaints, and any improper conduct by the Applicant relevant to an assessment of whether he is a fit and proper person to be authorised to undertake the regulated activity. 41The Tribunal must be able to attest that the Applicant is a fit and proper person to be authorised to drive a taxi cab. The Tribunal considers that the evidence of Mr Baker and Mr Mikhael at the hearing, evidences dishonest conduct in overcharging passengers as detailed above. Such dishonest conduct occurred in the course of the Applicant performing the regulated activity of taxi driver. 42The authorities indicate the Tribunal should consider whether the Tribunal can attest to the Applicant being a fit and proper person to be authorised to drive a taxi cab. The authorities indicate that the Tribunal should consider whether the evidence supports a conclusion that the Applicant is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence, and also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public , as a person to be entrusted with the sort of work which the licence entails. It is established that fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. 43The Tribunal has focussed in this matter on whether the Applicant is a fit and proper person, the Tribunal notes that there is minimal evidence as to the Applicant's repute. The Applicant did not provide references as to his good repute, and there is insufficient evidence before the Tribunal about the Applicant's reputation which would indicate that he is of good repute. However there is significant evidence relevant to a determination of whether the Applicant is a fit and proper person, in particular evidence as to overcharging passengers and dishonesty in charging passengers excessive fares.The essential contract between a taxi driver and a passenger is for safe transport at the correct fare. Conduct of overcharging passengers, and in the present case by significant amounts, is dishonest conduct which goes to the core of the trust relationship between passenger and taxi driver. The evidence also indicated that such dishonest conduct by the Applicant extended to overcharging a vulnerable passenger - being an elderly woman who is vision impaired (Ms Lehmann). Given this evidence of dishonest conduct, while performing the role of taxi driver, then the Tribunal is unable to attest that the Applicant being a fit and proper person to be authorised to drive a taxi cab. 44The Tribunal considers, given the complaints history and the evidence of the witnesses in this matter, that the community would not have confidence that the improper conduct of the Applicant (overcharging passengers) would not re-occur. The Tribunal cannot attest that the Applicant has sufficient aptitude and responsibility to drive a taxi cab in accordance with law and custom; and in accordance with the conditions under which the taxi service is operated. 45For all the above reasons, on the evidence in this matter, the Tribunal is unable to attest that the Applicant is a fit and proper person. The Tribunal on review of a decision to cancel the Applicant's authority must apply the legislative provisions -and s33F of the Act provides that in a decision to cancel, regard must be had to the purpose of an authority. The purpose of an authority is to attest to the matters set out in s33(3)(a)(b) of the Act, namely, to attest that the authorised person is: of good repute; and a fit and proper person (to be so authorised); and, considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with law and custom; and in accordance with the conditions under which the taxi service is operated. As the Tribunal is unable, on the evidence in the present case, to so attest, as detailed above, then the correct and preferable decision, according to the law and the evidence, is to affirm the Respondent's decision to cancel the Applicant's authority. Accordingly the Tribunal so orders. ********** 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: 21 December 2012