Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Rowe v Roads & Maritime Services [2012] NSWADT 281 Hearing dates: 30 October 2012 Decision date: 30 October 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The decision is affirmed in so far as it relates to Mr Rowe's taxi driver authority. 2. The decision is set aside in so far as it relates to Mr Rowes Authority to drive a hire car. In its place the decision is made that the authority to drive a hire car is reinstated. Catchwords: Authority to drive a taxi cab - Authority to drive a a private hire vehicle - cancellation - fit and proper person Legislation Cited: Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: Assi v Director General Transport NSW [2012] NSWADT 7 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 Category: Principal judgment Parties: James Rowe (Applicant) Roads & Maritime Services (Respondent) Representation: Counsel I Latham (Applicant) Smythe Wozniak (Respondent) File Number(s): 123102 reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Mr Rowe ("the Applicant") has held authorities under the Passenger Transport Act 1990 ("the Act") that have authorised him to drive a taxi cab and a private hire vehicle. 2In May 2012 Roads & Maritime Services ("the Respondent") made the determination to cancel those authorities pursuant to sections 33F and 40E of the Act. The Applicant has applied to the Tribunal for external review of that determination. 3In the Statement of Reasons provided in relation to the determination the decision maker stated: You have been issued with an infringement by the NSW Police Force for carrying out a private hire vehicle service that was not pre booked in accordance with the Passenger Transport Regulation 2007. ... The Reasoning process that led to the decision As the delegate of [Transport for NSW (TfNSW)], [Roads and Maritime Services (RMS)] has a continuing obligation under the Passenger Transport Act 1990, to ensure that persons authorised to drive public passenger vehicles are fit and proper persons with sufficient responsibility and aptitude to drive the vehicle in accordance with the conditions and standards under which the vehicle concerned is operated and in accordance with law and custom. You were previously issued with a private hire vehicle authority (10 November 2012) and re-issued with your taxi-cab authority (2 February 2012) after the cancelled of your taxi-cab authority in November 2009. The cancellation in 2009 was based upon your complaints history and your convictions, 27 October 2009, where you were sentenced as following: -in relation to dockets in 2006, convicted of 174 offences and placed on a Bond pursuant to Section 9, to be of good behaviour for two (2) years. -In relation to the balance of the offences (322) you were convicted and sentenced to periodic detention of 8 months with non-parole period of 6 months. (111) You were further ordered to make yourself available to be fingerprinted and to pay professional coasts of $6000.00. RMS had taken into consideration the outcome of your Administrative Decisions Tribunal (ADT) hearing in July 2011 with respect to the cancellation of your taxi-cab authority and the recommendation set forth by the ADT which resulted in the issuing of your private hire vehicle authority and subsequently the re-issuing of your taxi-cab authority. During the process of the issuing of these authorities you were provided with a warning letter 10 November 2011 advising that if you were to come to any further adverse notice this may result in the suspension or cancellation of your driver authorities. ... In view of the offence recorded, the delegate can no longer attest to you being a fit and proper person for the purposes of the Passenger Transport Act, 1990 with respect to your continuing disregard for the law. Accordingly the determination has been made to cancel your authorisation to drive public passenger vehicles. 4The prior history referred to in the Statement of Reasons is not in dispute. Applicable Law 5Section 33 of the Act states: 33 Authorities ... (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. 6Section 33F of the Act states: 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. 7Section 4 of the Act states: 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 ... 8Section 40 of the Act states: 40 Authorities (1) RMS may, by the issue of authorities under this Division, authorise persons to drive private hire vehicles, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised private hire vehicle driver". (2) A person who drives a private hire vehicle is guilty of an offence unless the person is an authorised private hire vehicle 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 private hire vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle: (i) in accordance with the conditions under which the private hire vehicle service concerned is operated, and (ii) in accordance with law and custom. ... 9Section 40E of the Act states: 40E Variation, suspension or cancellation of authority Having regard to the purpose of authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division. 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. 13The Tribunal has considered these legislative provisions in numerous decision. A useful review of the authorities was provided in the case of Assi v Director General Transport NSW [2012] NSWADT 7. In Assi Judicial Member Huntsman reviewed a number of those authorities and stated in paragraphs [30] - [36]: 30. In 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 Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199: 7........The purposes of a taxi drivers authority are set out is s 33(3)..... 8.The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. 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.' 9. The Tribunal and the Appeal Panel have frequently 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.' ....... 12. In contrast to character, reputation as Waddell J explained in Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 389: "...is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence, 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore, a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 etseq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character. ..... 14.In Re T Waddell J (at 399) discussed how reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that: ...evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation." 31. In the case of Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal cited Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393: A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession. . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation. 32. A decision of the Appeal Panel of the Tribunal: Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 also provides useful guidance: 38 Good Repute: The approach to be adopted in considering 'good repute' is well explained by Waddell J in Re T. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. '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 can not 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. ... 42 The question which the Director-General must ask, as we see it, is whether the travelling public would be prepared to place their trust in a driver with Z's background, and past and recent offence history, even if satisfied that there is no longer a significant risk of sexual reoffence? 43 In the past, the Tribunal and the Appeal Panel 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."' 33. The Appeal Panel of the Tribunal in a recent case considered the role of the "perception of the public" in decisions about whether an applicant is a "fit and proper person". The Appeal Panel of the Tribunal in the case of Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 reviewed relevant authorities and concluded: When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public 34. The Appeal Panel's decision in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) was subject of comment by the President of the Tribunal, Judge K P O'Connor, in the case of Nasour v Director-General, Transport NSW [2011] NSWADT 91 (4 May 2011): In that case [Farquharson] I went on to look at the question of how then might the administrator go about forming a view as to 'repute and character'. The reasons referred to taking into account the views that might be formed by a reasonable member of the travelling public; and have been read as allowing the views of the travelling public to be used in the assessment of character. The Appeal Panel recently held in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) that the views of the travelling public are not a relevant consideration when assessing character. What is involved in the assessment of character is an objective evaluation of the person's fitness to continue to undertake the regulated occupation having regard to the relevant material. The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson , as extracted above. The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known. However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)). A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13]. A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'. 35. Further guidance was offered by the Tribunal in the case Saadieh v Director General, Department of Transport [1999] NSWADT 68 as to assessing a person's fitness to be authorised to drive a taxi-cab. The Tribunal then observed: 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. 18. In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the Applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the Applicant has made to rehabilitate himself or herself during that time and; any change in the Applicant's circumstances such as increased support from friends, family or professional service providers. 36. The assessment of whether the applicant is a "fit and proper person" was also considered in the case of Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205 (Simpson J): 42 By s 11(2)(a) the holder of an authority is required to have two attributes: he/she is to be considered "to be of good repute" and "in all other respects a fit and proper person to be the driver of a public passenger vehicle". The magistrate was conscious of the concession that Mr Caska's "good repute" was not challenged and was not in issue. The question he correctly identified for himself was whether he was "in all other respects a fit and proper person to be the driver of a public passenger vehicle". He in fact enunciated this test explicitly. 14As noted above, the Applicant does not dispute the record of offences and infringements to which the Respondent has referred. Mr Latham, counsel for the Applicant, submits that there are two questions that need to be answered. The first is whether the infringement admitted shows that the Applicant was not a fit and proper person (or of good repute) at the time. The second is whether the Tribunal is entitled to consider that he is now a fit and proper person (or a person of good repute). 15Mr Latham referred to the factors set out in Saadieh v Director General, Department of Transport that are set out above. Mr Latham submits that the most recent infringement is at the very lowest end of the range of criminality. He says that the Applicant pleaded guilty to the infringement. It involves no victim and no aggravating circumstances. 16In relation to complaints made against the Applicant, Mr Latham submits that the complaints are isolated, relatively trivial and they are spread over 10 years. He says that the Applicant's driving record is reasonable. 17In relation to the Applicant's reputation in the community, he points to a number of testimonials that speak highly of the Applicant's reputation. 18The Applicant accepts that he has been guilty of crimes of dishonesty in the past and the Tribunal has dealt with those matters. The Applicant has been driving for some 5 months since most recent infringement. There have not been any further incidents of this kind. Mr Latham submits that the Applicant has displayed contrition both in terms of his guilty plea and his written statement and that the Tribunal should not change its earlier findings on the basis of this infringement alone. 19Mr Wozniak, solicitor for the Respondent, points to the Applicant's long history of offences regarding fraudulently submitting TTS dockets. 20Mr Wozniak also referred to proceedings in the Tribunal in relation to the Applicant's unsuccessful attempt to obtain a hire care authority in 2011. That authority was subsequently issued. The Applicant also obtained a taxi driver authority but Mr Wozniak asserted that the taxi authority was issued in error. 21The Respondent contends that the Applicant's fraud offences are significant and demonstrated a systematic abuse of the system. The system is designed to aid disabled people and the Applicant abused that system. There was evidence before the earlier Tribunal that the Applicant had been aware that his conduct was wrong and he only stopped because he was caught. Mr Wozniak submitted that no other matter that has been before the Tribunal was on the scale of the Applicant's offences. The Respondent contends that the Applicant should not be permitted to hold a taxi authority as a consequence of those offences. Mr Wozniak submitted that insufficient time had past for the Tribunal to be able to be confident that the Applicant is a fit and proper person to hold the authority. Findings 22The facts in this matter are not in dispute. The issue to be determined is narrow. I need to weigh the seriousness of the Applicant's offences - the fact that over a long period of time the Applicant engaged in a systematic exercise to defraud the system that is designed to assist the disabled - against the time that has passed since the offences occurred and the fact that the Applicant has had an authority for six months or so and in that time he has an unblemished record. 23I have taken into account the factors that were outlined in Saadieh v Director General, Department of Transport and referred to above. The factors are to be balanced in the context of the objects of the legislation and purpose of an authority. The ultimate decision to be reached is whether or not Mr Rowe could be held out to the public as somebody who should be able to hold an authority. 24In my view, the two authorities are to be regarded separately. As I understand it, the Respondent contends that the Applicant should not be permitted to hold a taxi authority but does not oppose the Applicant holding a hire car driver authority. 25I agree with that position. 26In my view, the seriousness of the Applicant's offences is such that more time would be needed before that balance is weighed in Mr Rowe's favour. I am not able to suggest how much longer he should remain out of the industry but I anticipate that it would likely be a year or more before I would consider that sufficient time had past since the offences for him to be considered to be a fit and proper person to be the driver of a taxi-cab. 27Because of the nature of the industry, I see the risk to the public as lower in regard to the use of hire cars that that in regard to taxi use. While the scope for fraud still exists in the use of hire cars it is much lower than it is with taxi use. 28In my view, Mr Rowe should be permitted to continue to drive hire cars, but for the foreseeable future, he should not be permitted to continue to drive taxis. Orders 1. The decision is affirmed in so far as it relates to Mr Rowe's taxi driver authority. 2. The decision is set aside in so far as it relates to Mr Rowe's Authority to drive a hire car. In its place the decision is made that the authority to drive a hire car is reinstated. ********** Amendments 28 February 2013 - Typographical error, "not" included Amended paragraphs: 28 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: 04 March 2013