Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Naveed v Roads and Maritime Services [2014] NSWCATOD 4 Hearing dates: 29 January 2014 Decision date: 19 February 2014 Jurisdiction: Occupational Division Before: S Leal, Senior Member Decision: The decision under review is affirmed Catchwords: Taxi driver authority - cancellation - false statutory declarations - seriousness Legislation Cited: Passenger Transport Act 1990 - Administrative Decisions Review Act 1997 Passenger Transport Regulation 2007. Cases Cited: McDonald v Director General of Social Security (1984) 1 FCR 354 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Ghachame v Roads and Maritime Services [2013] NSWADT 144 Lal v Director-General, Department of Transport [2001] NSWADT 74 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Category: Principal judgment Parties: Muhammad Naveed (Applicant) Roads and Maritime Services (Respondent) Representation: M Naveed (Applicant in person) Smythe Wozniak (Respondent) File Number(s): 133348 reasons for decision Introduction 1Mr Muhammad Naveed was born in Pakistan and came to Australia in 2007. Since arriving in Australia he has studied graphic design and business management. 2He has held a NSW driver's licence since 2008 and a taxi cab driver authority since December 2010. 3Mr Naveed was issued with penalty infringement notices for speed infringements that occurred on 25 August 2012 at 10.51pm and on 9 September 2012 at 2.13am. The vehicle being driven at the time of both offences was identified as taxi-cab T1189. Daily worksheets show that Mr Naveed was the driver of taxi-cab T1189 from 4pm on 25 August 2012 to 3am on 26 August 2012, and from 4.30pm on 8 September 2012 to 3.30am on 9 September 2012. 4Mr Naveed was issued with a further penalty infringement notice for driving through a red light on 14 December 2012 at 3.38am. On this occasion, the vehicle being driven was identified as taxi-cab T3483. Daily worksheets show that Mr Naveed was the driver of taxi-cab T3483 from 4pm on 13 December 2012 until 4am on 14 December 2012. 5Mr Naveed completed statutory declarations in relation to each of the three offences stating that he had not been driving his taxi-cab at the relevant times and providing the names of those people he claimed had been driving the taxi-cab when the offences took place. He claimed that his wife, Ms Ambreen Shirazi, had been driving the taxi-cab at the relevant time on 14 December 2012 and that Mr Muhammad Samiullah had been driving the taxi-cab at the relevant times on 25 August 2012 and 9 September 2012. Neither Ms Shirazi or Mr Samiullah are authorised to drive taxi-cabs. 6In relation to the penalty notice issued in relation to the red light offence on 14 December 2012, Mr Naveed wrote to the Manager of the State Debt Recovery office as follows: I only mention that at the date of offence, my wife was driving me home due to I was feeling drowsy and found myself in HIGH RISK to drive the car. 7On 13 September 2013, the Roads and Maritime Services (RMS) issued Mr Naveed with a Notice to Show Cause as to why his licence should not be cancelled. Mr Naveed did not respond to this notice and on 8 November 2013, a decision was made by the RMS to cancel Mr Naveed's licence. In its decision, the RMS found that Mr Naveed had been the taxi-cab driver at the time each of the three traffic offences had occurred and that each of the three statutory declarations nominating a driver other than himself were false. On this basis, the RMS found that Mr Naveed was not a fit and proper person to hold a driver's authority. 8Mr Naveed has lodged an application for review with this Tribunal (formerly the Administrative Decisions Tribunal (NSW)). A stay of this decision was granted to Mr Naveed on 26 November 2013. Review decision 9In this case, the Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then affirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of RMS and there is no presumption that the decision of RMS is correct. McDonald v Director General of Social Security (1984) 1 FCR 354 at 357. 10RMS has the power to authorise persons to drive taxi-cabs. Such an authority attests, inter alia, 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. 11Section 33F of the Passenger Transport Act 1990 states that 'having regard to the purpose of an authorisation under this Division, Roads and Maritime Services may at any time vary, suspend or cancel any person's authority under this Division.' 12The issue in this case, then, is whether the decision to cancel Mr Naveed's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Naveed is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a taxi-cab. The Tribunal has the power to review this decision pursuant to s9 of the Administrative Decisions Review Act 1997 and s52(1) of the Passenger Transport Act 1990. Consideration of evidence 13The Tribunal held a hearing in this matter on 29 January 2014. Mr Wozniak appeared for RMS while Mr Naveed was unrepresented. 14Documents contained on file confirm that Mr Naveed first received a taxi-cab driver authority on 22 December 2010 and completed the Taxicare plus Silver Level course on 12 December 2011. 15Mr Naveed's traffic record reveals that Mr Naveed was issued with an unrestricted driver's licence on 23 October 2009. It also reveals that between 23 March 2011 and 10 February 2013, he had four speeding offences recorded against him. A further speeding charge from 15 April 2013 was dismissed under s10 of the Crimes (Sentencing Procedure) Act 1999. 16Mr Naveed received penalty infringement notices after T1189 was photographed speeding on 25 August 2012 and 9 September 2012. Mr Naveed also received a penalty infringement notice after T3483 was photographed driving through a red light on 14 December 2012. 17In a statutory declaration dated 19 November 2012, Mr Naveed stated that Mr Muhammad Samiullah was the driver responsible for the penalty notice issued on 25 August 2012. In a further statutory declaration also dated 19 November 2012, he declared that Mr Muhammad Samiullah had also been the driver responsible for the penalty notice issued on 9 September 2012. 18In a statutory declaration dated 29 April 2013, Mr Naveed declared that his wife was the driver responsible for the penalty notice issued on 14 December 2012. 19Mr Naveed was interviewed by an officer of RMS on 31 July 2013. There is no dispute that at this interview, Mr Naveed continued to maintain that he had not been the driver responsible for those penalty notices issued on 25 August 2012, 9 September 2012 and 14 December 2012. 20A Notice to Show Cause as to why his driver authority should not be cancelled was apparently sent to Mr Naveed on 13 September 2013. The document contains a detailed statement of reasons setting out why RMS was considering cancelling Mr Naveed's driver authority and inviting him to provide submissions as to why he should be permitted to return his driver authority. 21Mr Naveed told the Tribunal that he did not receive this letter. He did receive a subsequent letter dated 8 November 2013 advising him that his driver authority had been cancelled. 22In support of his application for review to this Tribunal, Mr Naveed provided an affidavit dated 13 January 2014 which states, in part, as follows: With regard to my suitability to continue as a taxi driver, I concede that I did make false nominations on 3 occasions with regard to penalty notices received. However I am deeply remorseful for my actions which were entirely motivated by my desire to protect my income stream for the benefit of my family which has no other source of income. I certainly appreciate now that my actions were misguided. In fact, I would have admitted my culpability and expressed my remorse to RMS in response to the 'show cause' letter apparently issued on 13 September 2013 which unfortunately I did not receive. 23In his affidavit, Mr Naveed states that he has always taken his responsibilities as a taxi driver extremely seriously and conscientiously. He states that he always returns valuables to customers who have left them in the cab and makes sure that customers do not inadvertently overpay him. 24In relation to his traffic record, he noted that 6 of the 8 offences on his driving record involved exceeding the speed limit by less than 10 kph and, as such, could not be seen as suggesting an unacceptable risk to passengers and the community. 25In a letter to the Tribunal, Mr Mohammad Shauab, director of Himalayan Services Pty Ltd, states that Mr Naveed has been driver of his taxi-cab for the past three years. Mr Shauab states that: Mr Naveed has made me aware of his current situation and I wish him all the best with the outcome on this matter. During the 3 years of knowing Mr Naveed, I have found him to be a reliable and responsible, trustworthy person of high integrity who takes pride in his profession and works hard to achieve success. 26Also in a letter addressed to the Tribunal, Mr Muzammil Haider states that I have known Muhammad Naveed since March 2010. Since I know him he is always a honest man. He cares for other people around him no matter whatever his circumstances are, most recently one of his family friend died in a car accident and he organised fund raising for his friend's family. He always returns valuables found during his Taxi driving. I know his current situation and cancellation of his Taxi Drivers Authority. Taxi driving [is] currently his only livelihood and to support his family, wife and two children. If he loses his Taxi Authority may be he will suffer in stress and anxiety. 27In submissions before the Tribunal, Mr Naveed expressed remorse for his actions. He spoke of being misled into making the statutory declarations and of being unaware of the consequences of his actions. He spoke of his fear of being unable to support his wife and children, telling the Tribunal that his wife is now pregnant with the couple's third child. 28He apologised to both the Tribunal and RMS and assured the Tribunal that he would never behave in a similar way again. He asked the Tribunal for a chance to 'be a better man.' He confirmed that since he has been in Australia, he has received qualifications in graphic design and business management. 29Mr Wozniak described Mr Naveed's actions in swearing three false statutory declarations as pre-mediated rather than spontaneous and highlighted the fact that he had attempted to cover up what he had done both in a letter to the RMS and in his subsequent oral interview with an officer of the RMS. Mr Wozniak spoke of the need for honesty in a taxi driver. Findings 30As discussed earlier, the issue in this case is whether the decision to cancel Mr Naveed's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Naveed is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a taxi-cab. 31The term "fit and proper person" was discussed by Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63]. The Chief Justice said 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. 32In this case, an authority to drive a taxi-cab can be granted under the Passenger Transport Act 1990, one of the objectives of which is to encourage public passenger services (which include taxi-cab services) that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. 33The following factors need to be taken into account in determining a person's suitability and fitness to hold a taxi-cab authority: 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. 34In assessing the last factor, the following considerations are relevant: the length of time since the offences were committed and the circumstances in which they were committed; 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; any change in the applicant's circumstances such as increased support from friends, family or professional service providers. Saadieh v Director General, Department of Transport [1999] NSWADT 68 35In Sobey v Commercial and Private Agents Board [1979] 22 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." 36Both in an affidavit provided to the Tribunal and in oral submissions before the Tribunal, Mr Naveed has admitted to swearing three false statutory declarations nominating a driver other than himself in relation to three traffic offences. In his affidavit, he declares that what he did was misguided and that he is remorseful for his actions. 37Although the Tribunal accepts that Mr Naveed is, indeed, remorseful, the Tribunal also notes that his admissions of wrongdoing have come late and that in an interview before the RMS in relation to the statutory declarations, he had continued to maintain that he had not been the driver responsible for the traffic offences. The Tribunal accepts that Mr Naveed did not reply to the Notice of Show Cause sent to him on 13 September 2013 simply because he did not receive it. On the evidence, however, the Tribunal finds that Mr Naveed's admissions have come only in the face of strong evidence indicating that he was, in fact, the driver at the time of the three relevant traffic offences. 38The Tribunal is of the view that Mr Naveed's actions should be taken seriously for the following reasons: * His actions reflect badly on his honesty, which is a fundamental consideration when determining whether a person is fit and proper; * The offences in question relate directly to his driving and driving record, which is of importance given that a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 * As a result of Mr Naveed's actions in blaming other people for three of his traffic offences, a false and misleading picture has been given of his driving record. 39At the time of the relevant traffic offences, and the subsequent swearing by Mr Naveed of the false statutory declarations, Mr Naveed had held a taxi driver's authority for less than two years. Since receiving his taxi driver's authority in December 2010, he had had four speeding offences recorded against him, in addition to the three traffic offences for which he swore the false statutory declaration. This is not an insubstantial traffic record for such a recent driver. 40Mr Naveed has submitted references attesting to his qualities as a taxi driver, and stating that he is a generous man who always looks after his customers. The Tribunal accepts that this is the case and that he enjoys a good reputation in the community. 41The Tribunal also accepts that Mr Naveed has suffered anxiety as a result of his actions and by the thought that, if he loses his taxi driver's authority, he will be unable to support his wife and children. Questions of possible hardship to Mr Naveed or to his family cannot be taken into account, however, in determining whether RMS has made the correct and preferable decision. Lal v Director-General, Department of Transport [2001] NSWADT 74 42In considering the likelihood of whether Mr Naveed would re-offend, the Tribunal accepts that, despite coming late, Mr Naveed's expressions of remorse and contribution are genuine. The Tribunal is satisfied that he now understands the seriousness of his conduct and would be unlikely to reoffend in the future. 43Given, however, the severity of his actions in swearing three false declarations in order to escape responsibility for his three traffic offences, the Tribunal cannot be satisfied that Mr Naveed is, at this stage, a fit and proper person to hold a taxi driver's authority. 44The Tribunal is accordingly satisfied that Mr Naveed's actions in falsely swearing the three statutory declarations are sufficiently serious to warrant the cancellation of his authority. 45As the Tribunal has determined that, at this stage, Mr Naveed is not a fit and proper person to hold an authority, it is not necessary to consider whether Mr Naveed is of good repute or whether he has sufficient responsibility and aptitude to drive a taxicab, in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom. 46In light of the above findings, the Tribunal is satisfied that the decision of RMS to cancel Mr Naveed's authority to drive taxi-cabs should be affirmed. Decision 47The decision to cancel the Applicant's authority to drive a taxi-cab is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 19 February 2014