Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Saifi v Roads and Maritime Services [2014] NSWCATOD 24 Hearing dates: 13 January 2014, 4 March 2014 Decision date: 31 March 2014 Jurisdiction: Occupational Division Before: N Isenberg, Senior Member Decision: The decision under review is affirmed Catchwords: Taxi driver Legislation Cited: Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: Howell v Macquarie University [2008] NSWCA 26 Jones v Dunkel HYPERLINK "http://www.austlii.edu.au/au/cases/cth/HCA/1959/8.html" \o "View Case" [1959] HCA 8 Manly Council v Byrne HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWCA/2004/123.html" \o "View Case" [2004] NSWCA 123 Saadieh v Director General, Department of Transport HYPERLINK "http://www.austlii.edu.au/cgi-bin/LawCite?cit=%5b1999%5d%20NSW%20ADT%2068" \o "View LawCiteRecord" [1999] NSW ADT 68 Miah v Roads and Maritime Services [2013] NSWADT 264 Naveed v Roads and Maritime Services [2014] NSWCATOD 4 Sobey v Commercial and Private Agents Board HYPERLINK "http://www.austlii.edu.au/cgi-bin/LawCite?cit=%5b1979%5d%2022%20SASR%2070" \o "View LawCiteRecord" [1979] 22 SASR 70 Category: Principal judgment Parties: Qasim Saifi (applicant) Roads and Maritime Services (Respondent) Representation: Qasim Saifi (applicant in person) Wozniak solicitor ( Respondent) File Number(s): 133317 reasons for decision 1The Respondent formed the view that the applicant is not a fit and proper person with sufficient responsibility and aptitude to hold a taxi-cab authority and accreditation. Accordingly it decided to cancel the applicant's taxi driver authority and accreditation. 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. 5Similarly, section 31F provides as follows: Having regard to the purpose of accreditation under this Division, [the Respondent] may at any time vary, suspend or cancel any person's accreditation under this Division. 6The purpose of accreditation, referred to in that section, is exposed in s 31(2) of the Act in the following terms: (2)The purpose of accreditation under this Division is to attest: (a)that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service, and (b)that the accredited person has demonstrated the capacity to meet the and continue to meet the appropriate requirements with respect to: i.financial viability, and ii.safety of drivers, passengers and the public, and iii.vehicle maintenance, to the degree and in the manner required in respect of services of the kind specified in the accreditation. 7Clause 40 Passenger Transport Regulation 2007 ('the Regulation') requires that the driver of a public passenger vehicle must not negligently or wilfully drive or cause the vehicle to be driven so that any person is subjected to the risk of injury. 8Clause 44 of the Regulation requires a driver to notify RMS of an alleged offence, including 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. 9This case turns on the question whether Mr Saifi meets the standards set out in paragraphs (a) and (b) of s 33 and s.31 Background to the cancellation decision 10At 12.16am on 14 October 2012, Mr Saifi was the driver of taxi-cab T9387 ('the taxi') which was detected by a red light traffic camera at the intersection of Craigend Street and McLachlan Ave at Darlinghurst. As a result, a penalty notice was issued for the offence. 11On 3 January 2013, Mr Saifi completed a Statutory Declaration, claiming that the person responsible for the offence was Amir Khan of 29 Berwick Street, Guildford NSW 2161. (Mr Khan does not hold and has never held a Driver Authority.) Evidence 12Taxi Combined Services ('TCS') was asked to provide information pertaining to driver and meter records for the taxi for 14 October 2012. Information shown on the records produced by TCS indicates that Mr Saifi was driving the taxi at the time and date of the offence. 13Those records also indicate that between 12.05am and 12.08am on 14 October 2012, the taxi was engaged with a street hail passenger from in/near York Street, Sydney to a location in/near King Street, Sydney. In addition, those records indicate that between 12.21am and 12.27am on 14 October 2012, the taxi was engaged with a street hail passenger from in/near Craigend Street, Darlinghurst to a location in/near Oxford Street, Darlinghurst. The offence was committed at 12.16am, that is, between the times that the taxi was engaged with those street hail passengers. 14On 11 September 2013, Mr Saifi attended the Respondent's offices to participate in an interview with Compliance Officers Prentice and Carr. A transcript of the interview was tendered. Prior to the interview Mr Saifi was informed of the nature of the complaint. At the interview Mr Saifi stated: * He was driving the taxi on the night of Saturday 13 October 2012. * He was punched in the face by a passenger and as a result tried to contact the taxi operator, his brother and friends. * The person nominated on the Statutory Declaration, Amir Khan, is a student who is a friend of Mr Saifi's friend. * Initially Mr Saifi stated that he came across Mr Khan who was with 3-4 friends in Kings Cross. At a later stage of the interview, he stated that he rang Mr Khan to come and take him home. Mr Saifi stated that he paid Mr Khan $50-60 for driving him home. * Mr Khan drove the taxi back to Mr Saifi's home at Guildford West. * Mr Saifi sat in the front passenger seat while Mr Khan drove the taxi. * Mr Saifi was suffering from dizziness and wasn't sure what was happening. * Mr Khan drove from Kings Cross to Rushcutters Bay and did a U-turn before heading west and that was when he went through the red light. 15During the interview, Mr Saifi was shown the Taxi Activity Report for the taxi on Sunday 14 October 2013. That document indicated that Mr Saifi was logged on at the time of the offence. Mr Saifi was also shown the details on that report that indicated that he was engaged with a fare until 8 minutes before the offence and engaged with another fare 5 minutes after the offence. The activity report also revealed that there were also a number of fares after that time while Mr Saifi was logged into the taxi. 16Mr Saifi attempted to explain the discrepancies between his version and the Taxi Activity Report by saying that Mr Khan must have been 'mucking around' with the meter. 17At the hearing the applicant said that he had been hailed by 2 passengers in the city and he took them to Kings Cross. There was a dispute about the fare which resulted in the applicant being punched in the face which left him dizzy and bleeding. He rang the operator, and 2 friends who are taxi drivers and also his brother. 'Suddenly', he said, he saw Mr Khan and asked him to drive him home. 18It took a very long time to get home; he was unable to direct Mr Khan because he was dizzy and it is very complicated to get out of the city. They did not go straight home because Mr Khan had never driven in Sydney and it was very, very late by the time they got home. After that he went to the hospital and an x-ray was taken and he was told that everything was fine. He thought he had broken his nose. He said he was given a referral letter to a specialist, but he did not go to a specialist, only to the hospital. He later said that he went to a medical centre and not a hospital. The hearing was adjourned so that appropriate enquiries could be made to verify the applicant's contention. 19At the resumed hearing the applicant produced a letter from Dr K Hamid, of Auburn dated 2 February 2014. There the doctor wrote that the applicant "contacted" him on (sic) 14.14.2012 about a nasal injury. His nose was bleeding. The doctor wrote that he advised the applicant to attend an "A+E department" of his nearest hospital. The doctor understood that the applicant did not attend hospital. 20The applicant conceded that he did not attend actually Dr Hamid but had telephoned him and told him about his bleeding nose. The doctor advised him to go to the hospital. He was asked whether he had seen Dr Hamid again about his nose and said that, maybe a few weeks ago his nose had been blocked and it may have been because of the incident. In cross-examination he was referred to his answer to question 59 of the interview wherein he had said that "after 2 to 3 weeks" he had gone to the doctor and the doctor had told him his nose was broken. He denied in his evidence that he had said that his nose was broken, only that it felt like it was broken. 21When asked why after he had sought Mr Khan's help, it had taken about five hours in order for the taxi to reach his home at Guildford, the applicant said that it was hard to get to Guildford. He said that the GPS does not work well in the city. This was his explanation for the GPS tracking which had the taxi at a variety of city and Kings Cross locations, then Campsie, Lidcombe, Parramatta, and Kellyville before arriving at his home in Guilford. He was asked why the meter was engaged and that it appeared the taxi was still picking up fares. He said it was easy to touch the meter and therefore make incorrect records. He said Mr Khan tried to turn the meter off and so had touched it many times. He said he was aware of this because of the constant clicking of the meter which he could hear notwithstanding that he was injured and dizzy. 22It was pointed out that according to the records the taxi had been at Parramatta, which is about 5 km from Guildford where he lives and that after Parramatta the taxi went to Kellyville, which is significantly far removed from Guildford. He said that Mr Khan did not know the way to get to Guildford. 23The applicant was taken through the network records for the evening of 13 October 2012 prior to the time when he claimed to have been bashed. From the records he agreed that there was a pattern of picking up fares in the city area prior to the offence and that the records showed a similar pattern afterwards. 24In cross-examination he was taken to his daily worksheet for the shift of 13 to 14 October 2012 he conceded that he had not recorded any period when the taxi was off the road for 30 minutes or more, as he was obliged to complete if the taxi was off the road. 25The respondent called evidence from Mr Carr, who had interviewed the applicant. Mr Carr gave evidence explaining the GPS tracking of the taxi and that using those coordinates had identified the exact location of the taxi around the time of the offence. He noted, for example, that 8 minutes before the offence with taxi was in York Street and that 5 minutes afterwards it was in the area of Craigend and Burton Streets, Darlinghurst. He was asked if, from his experience if the pattern of the taxi records indicated random pressing of buttons, as the applicant claimed Mr Khan was doing. Mr Carr said that the records were entirely inconsistent with such a claim. In particular, he noted that there was no difference whatsoever before or after the claimed bashing incident. 26The applicant said he did not know that they had gone through a red light camera and the first he knew was when he received a penalty notice. Should the applicant's driver authority and accreditation be cancelled? 27While I accept that taxi driving late at night can be hazardous and customers may be rowdy and even violent, in summary, I do not accept the version of events provided by Mr Saifi to me and to the Compliance Officers. It may be that the applicant was involved in an altercation, in which he was assaulted. However there was no evidence that he took his complaint to the police, nor did he note it in the daily log book where such an incident might have been recorded. He was not so seriously injured that he needed to attend a hospital, nor actually attend a doctor. In that regard I note that this evidence differed from his initial assertion. He claimed to have been unable to raise help from the operator or his brothers or others and that he fortuitously saw Mr Khan who came to aid. One might have thought Mr Kahn could have provided an account of rescuing Mr Saifi and kindly driving him for some 5 hours to his home. Mr Khan was not called to give evidence, neither did he provide any form of statement. In Howell v Macquarie University [2008] NSWCA 26 the Court of Appeal specifically noted that the principle of Jones v Dunkel [1959] HCA 8 applies to the Tribunal. It referred to its decision in Manly Council v Byrne [2004] NSWCA 123 at [51] about the inferences that can be drawn from the failure to call a relevant witness: Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn. 28Whether either or both of the inferences are actually drawn is part of the task of weighing the evidence. In this matter, the absence of evidence from Mr Khan weighs heavily against the applicant. 29I found the evidence of Mr Carr compelling. He explained that the call records were completely inconsistent with the random 'button pressing' that the applicant claimed Mr Kahn had engaged in while attempting to turn off the meter. Mr Carr demonstrated that in fact the pattern was consistent with what had been occurring prior to the alleged assault and the offence. 30I also find it implausible that any driver could have taken some 5 hours to reach Guilford and that had, en route, driven the taxi around the city and Kings Cross, Campsie, Lidcombe, Parramatta and Kellyville. 31I therefore do not accept that Mr Khan was driving the taxi at the time of the offence and have come to the view that the applicant was driving at and continued to drive the taxi after the offence. 32In coming to that view I must also find that he provided to providing a false Statutory Declaration to the State Debt Recovery Office. 33In Miah v Roads and Maritime Services [2013] NSWADT 264 the Tribunal observed that in this State, making a false declaration for a material benefit is a serious offence and that under s 25A of the Oaths Act 1900, conviction on indictment can lead to imprisonment for up to seven years. The Tribunal referred to R v Einfeld [2009] NSWSC 119) where a former Federal Court judge was sentenced to three years' imprisonment for offences arising out of an attempt to avoid traffic points following a speeding charge. In this case also the offence related directly to driving and the applicant's driving record. As Huntsman JM noted in Ghachame v Roads and Maritime Services [2013] NSWADT 144 at [54], a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. 34Recently, in Naveed v Roads and Maritime Services [2014] NSWCATOD 4, the Tribunal was of the view that Mr Naveed's actions in swearing three false statutory declarations nominating a driver other than himself 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. 35I agree with the submission of the Respondent that the fact that Mr Saifi falsely nominated another person as the driver of the taxi at the time of the offence by providing a Statutory Declaration to the State Debt Recovery Office, together with his failure to disclose traffic offences to the Respondent, casts doubts whether he is a fit and proper person to drive and operate a taxi-cab. Honesty is central to any consideration of whether someone is a fit and proper person and 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. 36In 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: i.the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; ii.the nature, seriousness and frequency of any complaints made against the applicant; iii.the applicant's driving record; iv.the applicant's reputation in the community; and v.the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 37I was informed that Mr Saifi has held a taxi driver authority since April 2006 38and an operator accreditation since July 2013. Since obtaining his driver authority Mr Saifi has been the subject of 6 previous complaints, of which 3 complaints were found to be justified - for driving in an unsafe manner, moving the taxi while passenger entering/leaving and failing to carry out punctual hire. No details were available, but, they do not, on their face, amount to a poor history. 39I was informed that Mr Saifi's obtained a NSW driver's licence in July 2001. He has committed 7 traffic offences since that time, and has received two Demerit Points Warning/Courtesy letters, with the latest being issued on 2 March 2012. Mr Saifi's NSW driver's licence was suspended from 19 June 2007 until 19 September 2007 for demerit point offences. I accept that this was now some time ago. 40Up to the date of renewing his Driver Authority in February 2007, Mr Saifi had declared traffic offences that he had committed, however, since that time Mr Saifi has failed to notify the Respondent of 4 traffic offences within the specified time frame, with the latest offence being committed on 1 March 2012. 41After 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 and accreditation at the present time. As I have determined that, at this stage, Mr Saifi is not a fit and proper person to hold an authority and accreditation, it is not necessary to consider the other attributes for authority and accreditation. DECISION 42The 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: 31 March 2014