Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Gomes v Roads and Maritime Services [2013] NSWADT 187 Hearing dates: 26 March 2013, 1 May 2013 and 2 July 2013 Decision date: 02 July 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision is affirmed. Catchwords: Passenger Transport Act - Taxi driver - cancellation of authority Legislation Cited: Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Gomes v Department of Transport and Infrastructure [2010] NSWADT 318 Gomes v Ministry of Transport [2008] NSWADT 303 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 Category: Principal judgment Parties: Paul Gomes (Applicant) Roads and Maritime Services (Respondent) Representation: M Jools (Agent for the Applicant) Smythe Wozniak (Respondent) File Number(s): 133046 reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant has held an authority to drive a taxi-cab under the Passenger Transport Act 1990 ("the Act"). He was first issued with an authority in July 2005. Since that time there have been a number of complaints registered against his authority and at various times the Respondent has taken action against his authority. 2In 2008 the Applicant was successful in having the Respondent's decision to cancel his authorisation to drive a taxi-cab set aside: Gomes v Ministry of Transport [2008] NSWADT 303 3In December 2010 I affirmed the Respondent's decision to cancel the Applicant's authorisation to drive a taxi-cab: Gomes v Department of Transport and Infrastructure [2010] NSWADT 318. 4In April 2011 the Applicant made a new application for an authority to drive taxi-cabs. The Respondent refused that application and the Applicant sought external review in the Tribunal. On 21 March 2012 I affirmed the decision to refuse the application. On that occasion a solicitor, Mr Benjamin, represented the Applicant. The parties agreed on conditions that would apply to any future application by the Applicant. It was agreed that an authority would be issued, on the following conditions: "Upon the applicant: Undertaking and satisfactorily completing the mandatory taxi training programmes in an approved taxi school; and Passing the Sydney knowledge test; and Providing a satisfactory medical certificate; and Satisfying the mandatory criteria as to a driver licence, Such authority is to be an annual authority for a period of 3 years and thereafter to revert to the usual period of duration of driver authorities. The applicant acknowledges and understands that any further complaints or breaches of the Passenger Transport Act or Regulations will result in either the immediate cancellation or failure to renew his drivers authority." 5In May 2012 the Applicant made a new application for an authority to drive taxi-cabs. He had satisfied the conditions that were agreed before the Tribunal on 21 March 2012, and the Respondent granted the authority. 6After the issuing of this authority the Applicant became the subject of further complaints. In February 2013 the Respondent again determined to cancel the Applicant's authority. In the reasons provided for the decision, the Respondent's Manager, Compliance Public Passenger Services Compliance and Regulation referred to the complaints received since the authority had been issued on 24 May 2012 as follows: Since the re-issuing of your driver authority on the 24 May 2012 you have been the subject of six (6) complaints. The complaints are of similar nature to those previously lodged against you as follows: On 5 February 2013, TCS received a complaint relating to the driver of taxi-cab T3774 driving in a dangerous manner. The complainant stated he was driving home along Beecroft Road when taxi-cab T3774 suddenly swerved dangerously across lanes without indicating. The complainant stated when he pulled alongside the taxi he saw that the driver was counting money with both hands off the steering wheel. The driver subject of the complaint was identified by TCS as Paul Gomes, Driver's Authority GP6605. TCS investigated the matter. The above complaint shows a pattern of behaviour and is of concern to RMS. On 14 January 2013, TCS received a complaint relating to the driver of taxi-cab T3774 driving erratically, in an unsafe manner, constantly abusing other road users, being rude and arguing with the passenger. The journey was from Potts Point to Bellevue Hill. The driver subject of the complaint was identified by TCS as Paul Gomes, Driver's Authority GP6605. TCS investigated the matter and you received a reprimand. The above complaint shows a pattern of behaviour and is of concern to RMS'. On 11 January 2013, TCS received a complaint relating to the driver of taxi-cab T3774 driving erratically, in an unsafe manner and constantly swerving across lanes on the M4 motorway. The driver subject of the complaint was identified by TCS as Paul Comes, Driver's Authority GP6605. TCS investigated the matter and you received counselling. The above complaint shows a pattern of behaviour and is of concern to RMS. On 18 November 2012, TCS received a complaint relating to the driver of taxi-cab T378 demanding more than the prescribed fare for a journey from King Cross to Illawong. The passenger stated he pre-paid $100 for the journey at the drivers request and upon arrival at his destination charged him another $120. The driver subject of the complaint was identified by TCS as Paul Comes, Driver's Authority GP6605. TCS investigated the matter. The above complaint shows a pattern of behaviour and is of concern to RMS. On 7 October 2012, TCS received a complaint relating to the driver of taxi-cab T4011 driving in an unsafe manner, having a lack of street knowledge, demanding more than the prescribed fare and failing to assist the passenger with luggage during a journey from Waverton to Kirribilli. The passenger stated you drove erratically, had no idea where to go, asked him to read the street directory, charged $30 even though the meter read $22 and then did not assist in unloading his luggage at the destination. The driver subject of the complaint was identified by TCS as Paul Gomes, Driver's Authority GP6605. On 23 September 2012, TCS received a complaint relating to the driver of taxi-cab T3558 overcharging a passenger. The passenger stated upon reaching the destination the meter read $17 but the driver pressed a button and fare changed to $39 and the driver then added $9 for tolls. The driver subject of the complaint was identified by TCS as Paul Gomes, Driver's Authority GP6605. TCS investigated the matter. The above complaint shows a pattern of behaviour and is of concern to RMS. 7The Applicant applied to the Tribunal for external review of the determination to cancel his driver authority. 8The matter came before me for hearing on 26 March 2013, 1 May 2013 and 2 July 2013. Following the hearing on 2 July 2013 I determined that the cancellation should be affirmed and I gave brief reasons for my decision. The Applicant has requested more detailed reasons for my decision and these reasons are provided in response to that request. Relevant legislation 9Division 5 in Part 4 of the Act makes provision for authorisation to drive taxi-cabs. The purpose of authorisation is set out in section 33 of the Act: 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. (4) The regulations may create categories or grades of authorities. (5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a taxi-cab is being driven to a place to have it repaired or serviced. 10The decision to cancel the Applicant's authority was made under section 33F of the Act, which provides as follows: 33F 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. 11Section 52(1) of the Act confers jurisdiction on the Tribunal to review a decision to cancel an authority. In reviewing this decision, the task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decisions Tribunal Act 1997 ("ADT Act"). 12The holder of an authority is also subject to the provisions of the Passenger Transport Regulation 2007 ("the Regulations"). Clause 44 of the Regulations requires that the driver of a public passenger vehicle must furnish the Respondent with written details of any alleged offence (other than a parking offence) with which the driver is charged by a police officer, and any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle. The Respondent's case 13The Respondent relies on four volumes of material, filed pursuant to section 58 of the ADT Act. These volumes, comprising over 850 pages, contain material relating to the Applicant and include the various complaints that were the subject of the earlier proceedings as well as the more recent complaints. These volumes also record the steps taken by the Respondent in relation to the complaints, including communications with the Applicant regarding the complaints. 14Mr Wozniak, the solicitor for the Respondent, seeks to rely on all the complaints, not just those received since the Applicant's authority was reissued in May 2012. 15The Respondent also relies on the evidence of the complainant in regard to the alleged incident on 14 January 2013 ("Courtney"). Courtney appeared by phone and gave evidence consistent with that in her complaint. That is, that the Applicant was driving erratically, in an unsafe manner, constantly abusing other road users, being rude and arguing with her about the address she had given. She said that he reversed into an intersection and almost collided with another vehicle. She also stated that the Applicant had pulled over and asked another person if they wanted to join them. 16She stated that she was so scared that she asked the Applicant to pull over and she got out of the taxi. She then walked the final 250 meters to her home. She said that she had never been so scared when travelling in a taxi as on that occasion. 17Courtney's evidence was not challenged to any significant extent. It was not shaken under cross-examination. 18Mr Wozniak also submits that the Applicant has failed to comply with the requirement under clause 44 of the Regulations. He noted that the Applicant received two traffic infringement notices in June 2012 and had indicated to the Respondent that he intended to plead not guilty to those matters. He received convictions in November 2012 but he had not notified the Respondent as required by clause 44 of the Regulations. 19Mr Wozniak submits that this is a case where the Applicant has been given opportunities for retraining and that further retraining is pointless. 20He points to the evidence of a large number of complaints, over a period of time. The complaints concern demanding more than the prescribed fare, driving in an unsafe manner, failure to provide assistance to passengers and improper behaviour. The complaints received since the Applicant's authority was reissued in May 2012 are of a similar nature to those reported in previous action taken against him. He submits that in these circumstances the Tribunal could not attest that the Applicant is a fit and proper person to hold an authority at this time. The Applicant's case 21The Applicant relies on his own evidence and he also relies on material that he previously relied on in relation to the earlier matters. 22The Applicant acknowledged the number of complaints that have been made against him. However, he contends that a large number of those complaints have not been substantiated and therefore should not be taken into account in these proceedings. He submitted that the fact that complaints have been made is not evidence as to the truth of those complaints. 23He gave evidence of situations in which he had been the subject of wrongdoing on the part of passengers and situations in which he had been praised in relation to his conduct as a driver. 24He gave evidence in relation to the most recent complaints and he denied any wrongdoing. He disputed Courtney's evidence that he had pulled over and asked another person if they wanted to join them. He said that that person approached him when he was stopped at traffic lights. He asked that person where he was going and he said that the person had responded that he was going to the city. The Applicant said that he told him that he needed to go to the other side of the road. 25The Applicant did not present any evidence to contradict the rest of Courtney's evidence. 26He denied that he ever charged more than the metered fare and he asserted that no such allegations against him have been found proven. He noted that many complaints had been found by the network to be 'not justified'. Further, he denied wrongdoing in regard to matters that were said by the network to have been 'justified'. He contended that the complaints of overcharging appear to be a result of a misunderstanding by passengers in regard to payment of additional charges such as tolls. In situations where there was a dispute in regard to the applicable fare he had called the operator for clarification. He also said that he has made complaints to police about non-payment of fares. 27In relation to the matter that came before the Tribunal on 21 March 2012, the Applicant had relied on reports provided by a Counselling Psychologist, Shobha Yadav. In her reports she supported the Applicant's Application. She indicated that she had seen the Applicant for counselling on 5 occasions between December 2011 and February 2012. In her report of 4 February 2012 she noted that the Applicant demonstrates a keen interest in changing his behaviours and learning relevant skills to resolve the matters and earn the livelihood. He has already started working on his communication skills including conflict resolution and decision making. Many complaints seem to emerge from his communication style, tone and body language. Since English is not his first language and there are cultural differences too which possibly have given wrong messages to some of his customers. Obviously if Paul genuinely lacked good customer care he wouldn't have received so many good references from so many passengers. Therefore we have started working on the short comings and the complaints history is being used to discuss how to avoid and resolve arguments. ... In my professional opinion he may have committed some error of judgment in the past. Nonetheless he fully understands the repercussions and is remorseful of the legal and administrative consequences. Furthermore he is willing to work on whatever is required to meet the criteria for authorisation to drive the taxi-cab. ... 28In a supplementary report dated 19 March 2012 Ms Yadav expressed the opinion that: With appropriate support and supervision any risk that he may pose is likely to be managed fairly and promptly ... 29Mr Jools submitted that the Tribunal should also take account of positive comments that have been provided in regard to the Applicant. He submitted that the Applicant has no control over the complaints that are made. He has had many passengers and relatively few complaints. He also submitted that the complaints were not so bad as to warrant investigation by the Respondent. 30The Applicant is willing to work on whatever is required to allow him to continue to work in the industry. Consideration 31The Tribunal's role is to decide what the correct and preferable decision is having regard to the material before it. The Respondent contends that the Applicant is not a fit and proper person to be the driver of a taxi-cab. It is necessary to consider that issue. 32I agree with the Respondent that I am able to consider the complaints that were made against the Applicant in relation to the earlier decision. Those matters provide a relevant context to the current application. The more recent incidents indicate that the Applicant has continued a pattern of behaviour that resulted in the earlier cancellations and my decision to affirm the Respondent's refusal to grant an authority in March 2012. Courtney's evidence demonstrates that that has continued to be the case. 33In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380, Chief Justice Mason explained that: 'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' 34Toohey 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." 35A person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127. Knowledge, ability, moral integrity and the rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. 36In Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry: `Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry. 37In the past, the Tribunal has cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done ... to rehabilitate himself, would object to the applicant as the driver of the taxi." 38In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] - [18] the Tribunal's Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority: "17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; the nature, seriousness and frequency of any complaints made against the applicant; the applicant's driving record; the applicant's reputation in the community; and the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences." 39There does not appear to be any dispute in regard to the history of this matter. The Applicant has been before the Tribunal on several occasions. He has been retrained twice. He has had warnings. He has had suspensions and cancellations and a conditional reinstatement of the authority. 40When the Applicant was before the Tribunal in March 2012, Mr Benjamin appeared on his behalf. It was agreed that a driver authority would be granted if certain conditions were met. The Applicant agreed that should proven issues arise following the grant of the authority then consequences would follow. He acknowledged and indicated that he understood that further complaints or breaches of the Act or Regulations would result in either the immediate cancellation of his authority or a failure to renew it. In my view, that was a reasonable approach at the time and that was why I agreed to the consent orders. 41The Applicant has again been the subject of complaints of a similar nature to those previously raised. Those complaints are discussed in the previous decisions that I have referred to above. While I consider that they are relevant I will not discuss them again here. I adopt the findings that I made in those matters. 42The Applicant's history since those findings were made suggests that there is a high likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences. 43I accept that there is some dispute in regard to the more recent allegations that lead to the determination to cancel the authority. However, Courtney's evidence was not challenged to any significant extent. She gave clear evidence of the incident. She was cross-examined and her evidence was not shaken in any way and I accept that evidence. 44In my view, the incident alone would not warrant the cancellation of an authority. However, it was not a one off event. It is the latest in a long series of incidents. It also comes after not only the March 2012 agreement but also after the Applicant had been to see a counsellor. That counselling process gave him the opportunity to work through the issues that have been plaguing his driver history. 45I also note that the Applicant failed to comply with the requirement of clause 44 of the Regulations in that he did not notify the Respondent of his November 2012 convictions. A similar issue of non-compliance with clause 44 arose in earlier proceedings and this most recent failure indicates that the Applicant continues to lack awareness of this obligation. 46All of these circumstances suggest that the Applicant is not able to drive in accordance with law and custom. That being the case I cannot attest that he is a fit and proper person to be a driver at this stage. 47I note that I had some difficulty in understanding the Applicant - both in regard to his accent and his sentence construction. It seems likely to me that some passengers might have a similar difficulty and that may be the basis for misunderstandings or difficulties in communication between the Applicant as the driver and the passengers. That may explain difficulties that he has had with some passengers, such as allegations of overcharging, where he maintains that he has committed no wrong. 48However, it does not address issues of driving in an unsafe manner or abusing other road users. It does not explain the incident involving Courtney. 49In my view, further counselling is warranted. 50Should the counselling continue, and were the Applicant to obtain another psychological report, he may be able to provided further evidence to the Respondent in order to satisfy it that he should again be issued with an authority. 51However, it seems to me that at this time he does not have the insight into the circumstances that have brought about the most recent cancellation of his authority. I am therefore unable to attest that he is a fit and proper person to hold an authority to drive a taxi. 52The decision that has brought us here is, in my view, the correct and preferable one and it should be affirmed. Order 53The decision is affirmed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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: 16 August 2013