Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Khan v Roads and Maritime Services [2014] NSWCATOD 23 Hearing dates: 16 January 2014 Decision date: 28 March 2014 Jurisdiction: Occupational Division Before: Naida Isenberg, Senior Member Decision: The decision under review is affirmed Catchwords: Taxi driver - Taxi Transport Subsidy Scheme - abuse of scheme Legislation Cited: Passenger Transport Act 1990 Cases Cited: Lal v Director-General, Department of Transport [2001] NSWADT 74 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 Sara v Director-General, Department of Transport [2003] NSWADT 157 Category: Principal judgment Parties: Shah Zareen Khan (Applicant) Roads and Maritime Services (Respondent) Representation: Mr M Jools (Agent for Applicant) Mr A Wozniak, Smythe Wozniak Legal (Respondent) File Number(s): 133378 reasons for decision 1The respondent formed the view that the applicant was not a fit and proper person with sufficient responsibility and aptitude to drive a taxi-cab. Accordingly it decided to cancel the applicant's taxi driver authority. The applicant seeks review of that decision. The relevant legislation 2The relevant legislation for the purposes of this application for review is the Passenger Transport Act 1990 (the Act). 3Section 33F of the Act provides as follows: Having regard to the purpose of authorisation under this Division, [the respondent] may at any time vary, suspend or cancel any person's authority under this Division. 4The purpose of authorisation, referred to in that section, is exposed in s 33(3) of the Act in the following terms: (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. 5This case turns on the question as to whether Mr Khan meets the standards set out in paragraphs (a) and (b) of s 33(3). Background to the cancellation decision 6The applicant has driven a taxi for about 2 years for Charlie Tripodi ("the owner"). 7The Taxi Transport Subsidy Scheme (TTSS) is a transport subsidy scheme that provides taxi transport for the severely impaired and disabled in NSW. The TTSS is based on a taxi docket system where the government funds (up to a maximum of $30) half of a taxi journey. 8An investigation was conducted by the respondent into the applicant's alleged misuse of TTSS dockets. The investigation found that the applicant had completed 29 TTSS dockets belonging to beneficiary Nick Tripodi ("the owner's father") for journeys allegedly taken between March 2013 and May 2013 while he was driving the owner's taxi. These dockets were then submitted for payment by and through the account of the owner. The investigation found there was no evidence that the journeys described on these dockets had taken place. 9In particular, the investigation found that: * in respect of several journeys the Combined Communication Network (CCN) records showed that the taxi was stationary during the trip times shown on the owner's father's TTSS dockets for those dates, nor was there a driver logged into the taxi during those trip times * in respect of several journeys the applicant was engaged driving a Peter Alcaine ("the other TTSS beneficiary") between Botany/Eastgardens and Vaucluse in the taxi during the trip times shown on the owner's father's dockets for these dates. TTSS records show that the owner submitted TTSS dockets for payment as the driver of the other beneficiary in the taxi at these times * in respect of several journeys the applicant was engaged carrying out radio bookings in the taxi with passengers other than the owner's father during the trip times shown on the owner's father's TTSS dockets for these dates * in respect of several journeys the owner was driving the other beneficiary between Vaucluse and Botany/Mascot in the taxi during the times which the applicant was allegedly driving the owner's father from Brighton-Le-Sands to Sydney CBD/Neutral Bay in the taxi * in respect of two journeys the applicant was engaged carrying out metered jobs driving the taxi in the eastern suburbs while allegedly driving the owner's father from North Sydney/Sydney CBD to Brighton-Le-Sands in the taxi. Neither of these metered jobs terminated in Brighton-Le-Sands * in respect of two journeys there was no driver logged into the taxi until after the start time of the alleged journey with the owner's father. On both occasions, the driver who later logged onto the taxi was the owner, and not the applicant. 10On 26 September 2013, the owner informed the respondent that the applicant had been his father's regular taxi driver for about six months. TTSS records showed the applicant was the only taxi driver who claimed a TTSS payment for driving the owner's father since November 2011. 11The owner advised RMS officers that the trip times shown on his father's TTSS dockets were inaccurate but all travel dates were correct. The owner stated that his father's forward journeys began at about 2.30pm and he returned home at about 6.30pm on the dates shown on the dockets. 12Following the owner's interview with RMS officers, and in light of his comments relating to the actual trip times, GPS co-ordinates for the taxi were again mapped in an attempt to locate the owner's father's journeys. All GPS co-ordinates were logged for periods about 2 hours either side of these hours, but these were not consistent with the applicant's claims. 13During his interview with RMS officers the owner stated that he provided the applicant with blank TTSS subsidy dockets belonging to his father; the applicant filled in these dockets and returned them to the owner; and the dockets were submitted for payment through the owner's CCN account. A total subsidy of $868.20 was paid in respect of these dockets. The applicant's evidence 14The applicant said he had been working with the owner in about August 2011, renting the taxi for an agreed amount of days and hours. The owner had a lot of regular customers and every now and then the owner would ask him to cover a job for him of his regular customers. After about a year the owner started to give him jobs with a fixed price of $60 regardless of the meter fare and he was informed that some of these jobs are covered by TTSS dockets. These customers did not pay him directly. At the end of the week or fortnight he would deduct $60 per job of the pay-ins and if the owner had left him any TTSS dockets he would fill them up to the estimated $60. As he was not getting TTSS dockets at the end of the journey or from the customer he was unable to fill them in with the correct information. 15The owner would leave blank dockets for him to complete and told him how to complete the dockets. The applicant filled them out, even though they were for trips different to those he actually made. Some of the dockets were filled in 1-2 weeks after the trip. 16He said the owner would pay him $60 for each trip undertaken using a TTSS docket and he would just write in $60 as the amount of the fare, even though the fare was always in excess of $60 if he had the meter on. He mostly used the meter but never claimed the metered fare, only $60. When shown a random TTSS docket in cross-examination - dated 2 April 2013 for $71, he agreed all the writing was his, except for the signature. Notwithstanding certifying all the details were correct he could not remember if he had taken a passenger from the CBD to Rockdale as noted on the docket. As to whether the passenger paid $41, the non-subsidised component, he could not remember. 17He has realised his mistake and admitted that he should have been more careful and responsible and should have only accepted the TTSS dockets at the end of the journey and from the actual person he had transported. 18The applicant gave evidence that he had been driving for the owner for about 2 years. The owner directed him to collect a passenger for whom trips were mostly between Botany and Vaucluse and return. He said he was unaware of the identity of the passenger and neither the owner nor the passenger gave him the name. He would receive an SMS telling him to collect "Mr Perico" which, he understood was a nickname. "Mr Perico" never gave him a TTSS docket. 19In cross-examination the applicant said that he collected the taxi from the owner's home and he knew the owner's father lived there also. He denied that it was strange that the dockets contained the name of the owner's father. 20He said there were occasions when he transported the owner's family members and he would receive the balance of the fare as well as the $60. He said on one occasion he had taken the owner's father to hospital with 3 or 4 family members. In contrast, he said he never talked to the passenger so did not know that he was the owner's father. 21As to the instances when CCN records showed the taxi to be stationary at the time of the claimed journey the applicant said he had made an error on the advice of the owner. It was noted that the 'error' was on 10 occasions. 22He said he was aware a meter was to be left on but said if there was a separate contract it need not be. 23He agreed that he understood the owner to be claiming on the TTSS dockets. He knew they were not completed correctly but they had been completed by him in accordance with the owner's direction. He denied being aware of any wrongdoing. He said that in training to be a taxi driver he had been taught nothing about the TTSS scheme. He had never accessed information about the scheme on the website; he just did as the owner told him. 24The applicant provided a number of character references, including from other taxi drivers. Should the applicant's driver authority be cancelled? 25It was submitted that the applicant is a very simple and honest person. He supports his wife and four children and a parent. They are currently renting a house for $290 per week and they have no savings. The cancellation of his driving authority would create severe financial hardship for him and his family and was unreasonable and excessive. However, possible hardship to the applicant, or his family, cannot be taken into account in determining the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]. Similarly, the purpose of a driver authority is to have the regulator (that is, the respondent, or on review the Tribunal) "attest" that a driver is of "good repute", is "fit and proper" to be a taxi driver, and has "sufficient responsibility and aptitude" to drive taxis. It is not about giving a driver "another go". 26In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] 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. 27It was submitted that the applicant had conceded that he had acted wrongly in filling out the dockets incorrectly, but he claimed that trips had taken place. He had said he was not aware of the identity of the person he transported and just accepted the "contract job" to collect "Mr Perico" for which he was paid a set fee of $60. It was submitted that there was no deception by the applicant. It was submitted that he had been duped by the taxi owner. It was submitted that he obtained no financial advantage. 28While the applicant knew the owner's father lived where he collected the taxi, and that the dockets contained his name, and that he had transported the owner's family members including taking the owner's father to hospital it is implausible that he did not know that he was the owner's father, as he contends. If those were the only trips involving the owner's father, that provided no explanation for the many other trips claimed in respect of trips transporting the owner's father according to the dockets. The applicant's evidence, in summary, was that trips claimed occurred, although not at the time recorded in the dockets. It is implausible that, even if the applicant were reconstructing the information to be completed in the dockets a week or two later that he would not recall the most basic of information such as who he was transporting in these regular jobs, namely "Mr Perico" or the other beneficiary. 29I do not accept that the applicant could so carelessly have completed the dockets that he overlooked the fact that in respect of several journeys no driver was logged into the taxi during those trip times; that he was transporting other passengers; the owner was driving the other beneficiary; at the same time he was carrying out metered jobs; or that there was no driver logged into the taxi until after the start time of the alleged journey. 30Further, if he were reconstructing the information, it is implausible that he could recollect the precise fare after a week or two. On his evidence, it appears, he was unconcerned about the accuracy of that information, or indeed any of the information on the dockets, because the business arrangement he had with the taxi owner was that he would receive $60 per trip, irrespective of the meter reading. I do not accept that he obtained no financial benefit. 31At best, the applicant's completion of the dockets was with reckless indifference to the truth of the information he was submitting. I do not accept he was duped, but find he was a willing participant in a scheme to obtain money from the TTSS, a scheme which relies on the honesty of the driver and operator of the taxi. 32Honesty is central to any consideration of whether someone is a fit and proper person with the responsibility and aptitude to drive a public passenger service vehicle in accordance with the statutory conditions, the law and custom. There is a community expectation that taxi drivers will not only provide safe, reliable and clean public passenger services but the community also expects honesty from taxi drivers. The applicant's conduct in relation to 29 dockets in the TTSS scheme is not in accordance with community expectations of honesty from an authorised driver of a taxi. 33I accept that the applicant may have a satisfactory driving record and may be of good repute. I also accept that there is a degree of contrition in that he has admitted his wrongdoing and has had minimal use of the TTSS scheme since these matters have come to light. 34However, in Sara v Director-General, Department of Transport [2003] NSWADT 157, the cancellation of the licence of a taxi driver who had been knowingly involved in a Cabcharge fraud perpetrated by one of his regular passengers was affirmed despite his 39-year driving record with no complaints against him. In that case, it was an isolated incident for a relatively short period of time. In the present matter, there were multiple instances, albeit on the information before me, only for a relatively short period. 35After weighing the relevant considerations, and in light of all the evidence, I am unable to attest to the applicant's suitability and fitness to hold a taxi driver's authority at the present time. 36The decision under review is therefore 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: 28 March 2014