Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Deep v Roads and Maritime Services [2014] NSWCATOD 22 Hearing dates: 13 November 2013 Decision date: 27 March 2014 Jurisdiction: Occupational Division Before: S Leal, Senior Member Decision: The decision under review is affirmed Catchwords: Taxi driver authority - cancellation - false insurance claim - failure to advise - seriousness Legislation Cited: Passenger Transport Act 1990 - Passenger Transport Regulation 2007 - Administrative Decisions Review Act 1997 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 Lal v Director-General, Department of Transport [2001] NSWADT 74 Category: Principal judgment Parties: Aman Deep (Applicant) Roads and Maritime Services (Respondent) Representation: Aman Deep (Applicant in person) Smythe Wozniak (Respondent) File Number(s): 133254 reasons for decision Introduction 1Mr Aman Deep is a 34-year-old man who, having been issued with a NSW driver's licence in 2008, was subsequently granted a driver authority to drive taxi-cabs on 14 January 2013. 2In February 2013, he pleaded guilty to one charge of false representation resulting in police investigation and one charge of dishonestly obtaining financial benefit by deception. According to the police facts sheet in this matter, Mr Deep had falsely claimed both to the police and to his insurance agency that his motor vehicle had been stolen, resulting in an insurance payment to Mr Deep of $11370. That the claim had been false was discovered when, by coincidence, police discovered Mr Deep's vehicle in a garage belonging to one of his associates. 3Mr Deep was fined $1200 and placed on a 12 month good behaviour bond which expires on 22 March 2014. Mr Deep failed to notify the Roads and Maritime Services (RMS) of his conviction, in breach of his obligation to do so under cl. 44(1)(a) of the Passenger Transport Regulation 2007, 4On 18 June 2013, RMS cancelled Mr Deep's taxi-cab driver authority. In its decision, RMS found that, as a result of his conviction and his failure to inform RMS of it, Mr Deep was no longer a fit and proper person for the purposes of the Passenger Transport Act 1990. An internal review upheld the decision to cancel Mr Deep's taxi-cab driver authority. 5On 27 August 2013, Mr Deep applied to the Administrative Decisions Tribunal, now the NSW Civil and Administrative Tribunal, (the Tribunal) for review of this decision. A stay was granted by the Tribunal on 3 September 2013. Review decision 6In 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. 7RMS 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 is in all other respects a fit and proper person to be the driver of a taxi-cab. 8Section 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.' 9The issue in this case, then, is whether the decision to cancel Mr Deep's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Deep 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 s59 of the Administrative Decisions Review Act 1997 and s52(1) of the Passenger Transport Act 1990. Consideration of evidence 10The Tribunal held a hearing in this matter on 13 November 2013. Mr Wozniak appeared for RMS while Mr Deep was unrepresented. 11According to documents on file, Mr Deep was first granted an unrestricted NSW driver's licence in 2008 and a taxi-cab driver authority in January 2013. 12His traffic record discloses three speeding offences in 2009 and one offence of disobeying street signs at an intersection in 2010. 13In relation to his conviction on one charge of false representation resulting in police investigation and one charge of dishonestly obtaining financial advantage by deception, the police facts sheet tendered in court stated that Mr Deep had purchased a vehicle for $10600 and insured it for $11370. In September 2012, he reported the car stolen to the police and subsequently received an insurance payment for the full amount of $11370. Following the execution of a search warrant for an unrelated matter, Mr Deep's vehicle was located in the garage of one of his associates. 14Mr Deep participated in an electronically recorded interview with police during which he admitted to having fraudulently reported the car as stolen whilst having been aware of the location of the vehicle at the time he reported it stolen to the police. He admitted knowing it was an offence to make a false report to the police and to the insurance company and stated that he had been going through financial difficulties at the time of the offences. 15In a letter to RMS dated 17 May 2013, however, Mr Deep set out his own understanding of the circumstances of his conviction: At the time of the offence I was involved in a business partnership with a family friend and the business was suffering from severe financial hardship. My business partner said he could help get us out of financial problems but I was unaware of what he had in mind. I agreed to go along with his plan without knowing any of the details. As a result (of my ignorance) when my car was stolen sometime later it became evident from discussions with my business partner that he had arranged the theft of my vehicle, to allow me to claim on the insurance. The car was located by police in the garage of one of my business partner's houses. My business partner then asked me to take the blame for the car theft as he had previous criminal convictions and would go to jail if he had another conviction, which would put much strain on his wife and young children. I feel that I was misguided by my business partner and was not made aware of the full consequences of my actions. I did not realise that by trying to help my business partner I would jeopardise my taxi driver's authority. Since the above matter occurred, it has come to my attention that my (now former) business partner was deliberately 'setting me up' for his own financial advantage. I have now dissolved the partnership and am presently gathering the information required to take legal action against my former partner, to try to clear my name of any wrongdoing. In relation to his convictions, Mr Deep told the Tribunal that he had made a mistake and wished to be given a second chance. He told the Tribunal that he would experience financial hardship if his driver authority were to remain cancelled. As he did not give evidence before the Tribunal but instead relied on making submissions from the bar table, Mr Wozniak, who appeared for RMS, did not have the opportunity to cross-examine Mr Deep in relation either to his conviction or the circumstances in which it had arisen. 16Mr Wozniak submitted that as Mr Deep had completed his taxi training course in 2012 - a component of which concerns a driver's legal obligations and responsibilities - he should have been well aware of his obligations under cl 44(1)(a) of the Passenger Transport Regulations to advise of any criminal convictions. He also queried why Mr Deep had pleaded guilty to the charges against him if, as is implied in his later letter to the RMS (as set out above), he had not, in fact, been party to the decision to steal his car in order to make a subsequent insurance claim. 17Mr Deep told the Tribunal that he had not lodged an appeal against his conviction nor had he sought to withdraw his pleas of guilty. 18In support of his application for review, Mr Deep submitted a reference from Mr Michael Hornby, who operates taxi-cabs in the Newcastle area: This is to confirm that Aman Deep..has resumed working for me as a taxi driver. He is presently driving a number of shifts each week. He is an honest, reliable and hard working young man, and I hope that he is able to continue working for me indefinitely. 19Mr Hornby had also provided an earlier reference which states that: Aman Deep has been driving my taxis on a regular basis since February 2013. I have found him to be honest in all financial dealings regarding the operation of my taxi service. Aman has presented himself well to passengers, other drivers and operators. He is very diligent in keeping his taxi in a clean and tidy manner. I find the situation that Aman has found himself in to be very out of character. I am prepared to assist him in any way I can as I believe one mistake should not destroy a person's employment prospects. I am prepared to offer him fulltime employment if he is able to retain his driver's authority and also assist him with a better understanding of the Passenger Transport Regulations. 20A reference from Ms Karon Sharman (undated) provides as follows: Aman Deep has been known to me for 4 months, as a taxi driver for my partner Michael Hornby. I have had many dealings with Aman during that time, both on a business level as well as a more personal level. He has spent a considerable amount of time at my home and since I met him he has presented himself as a responsible and honest person. Aman has informed me of his recent suspension and possible cancellation of his authority to which I was quite surprised, as I considered him to be one of the most honest drivers I have encountered during the five and a half years that I have operated a taxi in Newcastle. If RMS cancels Aman's driver's authority, I think it would be a sad loss to the Newcastle taxi industry as his affable nature and welcoming approach has gone a long way in helping eliminate the (often) racist attitude of many taxi users in Newcastle. If I had been aware of Aman's conviction at an earlier time I would have advised him to notify RMS immediately, as I believe he did not understand he had an obligation under the Passenger Transport Regulations to do so. 21Mr Deep told the Tribunal that following the recent death of his father, he had departed Australia on 11 September to travel to India for his funeral and had only returned to Australia on 15 October 2013. In light of this, he requested additional time to submit further references. The Tribunal allowed this request and directed that any additional information by provided by 27 November 2013. On 22 November 2013, the Tribunal received a letter from Ms Karon Sharman, who is an accredited taxi operator in Newcastle, seeking clarification as to the continuation of the stay of proceedings until the finalisation of the Tribunal's decision in this matter. Ms Sharman noted that Mr Deep had sought an appointment with the Legal Aid Commission of NSW in order to obtain some assistance in relation to his application for review. A letter from Mr Deep dated 22 November 2013 was also received by the Tribunal confirming that he was seeking further advice from the Legal Aid Commission. To date, the Tribunal has received no further correspondence either from or on behalf of Mr Deep in relation to his matter. Findings 22As discussed earlier, the issue in this case is whether the decision to cancel Mr Deep's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Deep 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. 23The 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. 24In 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. 25The 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. 26In 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 27Mr Deep has pleaded guilty to one count of false representation resulting in police investigation and one charge of dishonestly obtaining financial advantage by deception. Mr Deep's later letter to the RMS requesting that his driver authority not be cancelled is, to some extent, at odds with the facts statement submitted by the police to the court on sentence. In his letter, Mr Deep minimises his role in the incident, stating that he had not been aware that his business partner had arranged the theft of his car to enable Mr Deep to make a claim on his insurance policy. The Tribunal notes, however, that Mr Deep did not attempt to withdraw his plea of guilty nor did he subsequently appeal his conviction to the District Court of NSW. 28On the basis of the statement of facts before it, the Tribunal accepts that Mr Deep pleaded guilty to one count of false representation resulting in police investigation and one charge of dishonestly obtaining financial advantage by deception. The Tribunal is satisfied that this involved Mr Deep contacting his insurance agency to lodge a claim for his motor vehicle, which he claimed had been stolen even though he knew that this was not, in fact, the case. In his letter, Mr Deep appears to have conceded as much, stating that 'when my car was stolen sometime later it became evidence from discussions with my business partner that he had arranged the theft of my vehicle, to allow me to claim on the insurance.' 29This, in the Tribunal's view, is a serious offence that reflects badly on Mr Deep's honesty and propriety. It is also an offence that occurred relatively recently, namely September 2012, only months before Mr Deep was granted his taxi-cab driver authority on 14 January 2013. Mr Deep remains on a good behaviour bond in relation to the offences until 22 March 2014. 30The Tribunal does not accept that Mr Deep was unaware that he had an obligation to disclose his convictions to RMS. He had only recently completed his taxi course, part of which, according to Mr Wozniak, includes instruction on a taxi-cab driver's duties of disclosure in relation to criminal convictions. 31The Tribunal has taken into account the references provided by Mr Hornby and Ms Sharman and accepts what they say: that in their experience, Mr Deep in a diligent and capable driver and that they were surprised to learn of his criminal convictions. The Tribunal accepts Mr Deep's promise that he will not engage in any further such dishonest conduct and therefore finds that his risks of re-offending are minimal. 32The Tribunal also accepts Mr Deep's evidence that he will experience financial hardship if his driver authority were to remain cancelled. Questions of possible hardship to the applicant or 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. 33On the evidence before it, the Tribunal finds that Mr Deep's involvement in making a false insurance claim reflects badly on his honesty and propriety. Alone, it is sufficient proof, in the Tribunal's view, that he is not, at this stage, a fit and proper person to hold a taxi-cab driver authority. 34Once Mr Deep is no longer subject to a good behaviour bond and can demonstrate both a further period of good behaviour in addition to a knowledge of the obligations and responsibilities of a taxi-cab driver under the Passenger Transport Act 1990 and the Passenger Transport Regulation 2007, an application by Mr Deep for a taxi-cab driver authority might well be looked at favourably by RMS. At this time, however, the Tribunal finds that Mr Deep is not yet a fit and proper person for the purposes of the Passenger Transport Act 1990. 35As the Tribunal has determined that, at this stage, Mr Deep is not a fit and proper person to hold an authority, it is not necessary to consider whether he 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. 36In light of the above findings, the Tribunal is satisfied that the decision of RMS to cancel Mr Deep's authority to drive taxi-cabs should be affirmed. Decision 37The 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: 27 March 2014