Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cai v Roads and Maritime Services [2014] NSWCATOD 34 Hearing dates: 3rd March 2014 Decision date: 15 April 2014 Jurisdiction: Occupational Division Before: Scahill Senior Member Decision: The decision to cancel the Applicant's authority to drive a taxi-cab is affirmed. Legislation Cited: Administrative Decisions Review Act Civil and Administrative Tribunal Act 2013 Evidence Act 1995 NSW HYPERLINK "http://www.austlii.edu.au/au/legis/nsw/consol_act/oa190079/" Oaths Act 1900 HYPERLINK "http://www.austlii.edu.au/au/legis/nsw/consol_act/pta1990248/" Passenger Transport Act 1990 HYPERLINK "http://www.austlii.edu.au/au/legis/nsw/consol_reg/ptr2007339/" Passenger Transport Regulation 2007 Cases Cited: Australian Broadcasting Tribunal v Bond HYPERLINK "http://www.austlii.edu.au/au/cases/cth/HCA/1990/33.html" \o "View Case" [1990] HCA 33; HYPERLINK "http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281990%29%20170%20CLR%20321" \o "View LawCiteRecord" (1990) 170 CLR 321 Drake v Minister for Immigration and Ethnic Affairs HYPERLINK "http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281979%29%2046%20FLR%20409" \o "View LawCiteRecord" (1979) 46 FLR 409 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Lal v Director-General, Department of Transport HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADT/2001/74.html" \o "View Case" [2001] NSWADT 74 Loye -v- Director General, Department of Transport [2000] NSWADT 145 Miah v Roads and Maritime Services HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADT/2013/264.html" \o "View Case" [2013] NSWADT 264 Naveed v Roads and Maritime Services [2014] NSWCATOD 4 Parvez v. Roads and Maritime Services [2014] NSWCATOD 13. R v Einfeld HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/119.html" \o "View Case" [2009] NSWSC 119 Saadieh v Director-General, Department of Transport HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADT/1999/68.html" \o "View Case" [1999] NSWADT 68 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Category: Principal judgment Parties: Kui Cai (Applicant in person) Wozniak of Smythe Wozniak (Respondent) Representation: Cai (Applicant) Wozniak (Respondent) File Number(s): 1420059 reasons for decision Background 1The Applicant Mr Kui Cai is seeking review of a decision by the Respondent to cancel his taxi-cab driver authority. 2Mr Cai was born in Shantou China on 17 June 1964. He came to Australia and is an Australian citizen. He obtained an unrestricted NSW drivers licence on 11 December 1991. He first obtained a New South Wales taxicab driver authority number FL 4138 in 1998. He let this expire after January 2002. He subsequently reapplied for a taxi-cab driver authority and this was granted in August 2011. Show cause letter 3By letter dated 21st September 2013 the Respondent Roads and Maritime Services (RMS) wrote to Mr Cai asking him to show cause as to why his driver authority should not be cancelled. The reasons provided were that Mr Cai had committed 3 driving offences while driving a cab. When the infringement notices had come to Mr Chen, the operator of the cab, Mr Cai had agreed with Mr Chen that Mr Cai's wife, Ms Ge Guo, should be nominated falsely in statutory declarations from Mr Chen as having been the driver in relation to all 3 offences. 4Accordingly the RMS considered that the reliance on the 3 false statutory declarations raised grave doubts about Mr Cai's aptitude to drive the vehicle, his responsibility and his fitness and propriety. These are qualities in an Applicant to which the Respondent must attest prior to granting a taxi-cab authority. Response to show cause letter 5Mr Cai's solicitor responded on his behalf to the show cause notice on 27 November 2013. Mr Cai's solicitor submitted that Mr Cai had discussed the first penalty notice with Mr Chen. He had not thought it appropriate for his wife to take responsibility for the infringement. Further, at the time, Mr Cai understood that he had only 4 demerit points against his licence and saw no need to attribute the offence to his wife. He felt pressured by Mr Chen and agreed to put this infringement in his wife's name. He then went overseas to China from 24 June to 25 July 2013. When he returned from China he understood that all three infringements had been attributed to his wife by Mr Chen and paid by Ms Ge Guo, Mr Cai's wife. Mr Cai contacted Mr Chen who told him that because he could not contact Mr Cai he had declared that all 3 infringements had been committed by Mr Cai's wife Ms Ge Guo. Mr Cai's solicitor submitted that Mr Cai did not fully appreciate the unlawfulness of allowing Mr Chen to make a false declaration. Further Mr Chen had made the false statutory declarations in relation to the 2nd and third matters without Mr Cai's consent. He felt pressure as Mr Chen had told him he might lose his operator licence. Out of a sense of duty he did not wish to get Mr Chen into any further trouble. Reasons for cancellation in Statement of Reasons 6On 24 December 2013 the RMS wrote to Mr Cai advising that it had determined to cancel his authority immediately. 7The reasons set out were that the fact that Mr Cai had entered into an agreement to provide 3 false statutory declarations to the regulator. This raised substantial doubt about Mr Cai's fitness and propriety to be authorised to drive a public passenger vehicle and a failure to demonstrate the expected qualities of honesty, truthfulness and integrity. Further, the fact of the traffic offences and the subsequent provision of the false statutory declarations put in question Mr Cai's responsibility and aptitude to drive a cab, and demonstrated a failure to comply with the requirements of law. He had risked the safety of the public by driving in this manner. RMS considered that a member of the travelling public becoming aware of the agreement to provide the false statutory declarations would object to being a passenger in a cab driven by Mr Cai. Accordingly the RMS could no longer attest to Mr Cai being a fit and proper person with sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom. This is the test set out in section 33(3) of the Passenger Transport Act 1990 (PTA). Application for Review 8On 20 January 2014 the Applicant applied to this Tribunal for a review of the cancellation decision. On 20 January 2014 the Applicant lodged a stay application. This was granted by the Tribunal on 24 January 2014. 9An interpreter in the Mandarin language assisted at the hearings on both 24 January in relation to the stay application and 3 March 2014 in relation to the substantive application. Relevant legislation 10Passenger Transport Act 1990 Section 33 of the Passenger Transport Act 1990 (PT Act) provides as follows: 33. Authorities (1) RMS may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units. (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)........... (5) ............ Section 33F of the PT Act states that "Having regard to the purpose of an authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division". Role of the Tribunal on Review 11The Tribunal's jurisdiction to hear and determine this application for review is found in section 52 of the Passenger Transport Act 1990 and section 63 of the Administrative Decisions Review Act 1997. The authorities accept that the Tribunal's review is for the purpose of determining the correct and preferable decision by way of a merits review. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at paragraphs 10, 11 and 12. The Tribunal may affirm, vary, set aside and make a substitute decision or set aside the decision and remit it to the administrator. Issue for Tribunal 12The issue in these proceedings is whether the Applicant is of good repute and in all other respects a fit and proper person to drive a taxicab, and has the requisite responsibility and aptitude to do so as set out in section 33 of the PTA. Basic facts 13Some aspects of the matter are not in dispute. As the Applicant concedes, on 30 March 2013, 23 April 2013 and 11 May 2013, the Applicant committed three camera detected offences while driving taxi- cab T2149. The first "proceed through red traffic arrow" carried 3 demerit points loss. The second on 23 April 2013 "exceed speed limit under 10 kilometre per hour" carried 1 demerit point loss. The third on 11 May 2013 was also "exceed speed limit under 10 kilometre per hour", carrying 1 demerit point loss. 14When the first of the infringement notices was sent to Mr Chen the operator of the cab, he established from his roster that Mr Cai had been driving and sent the infringement notice to him. The Tribunal understands that Mr Chen provided 3 statutory declarations to the State Debts Recovery Office stating that Ms Ge Guo (Mr Cai's wife) had been driving on all three occasions. Ms Ge Guo does not hold a taxi authority. 15The statutory declarations were not put before the Tribunal. 16How Mr Cai and Mr Chen interacted to provide the three false statutory declarations is a matter of contested evidence. 17Mr Chen was interviewed by RMS in relation to the matter on 5th September 2013. A transcript of the interview appears at exhibit 1, the s58 documents pages 101 to 61. The interview transcript refers to one statutory declaration being shown to Mr Chen at the interview. However the date of this statutory declaration is not referred to in the interview. 18Mr Cai attended at RMS Parramatta for the purpose of an interview in relation to these matters on 17 September 2013. There was no Mandarin interpreter present. The transcript of that interview is at pages 106-125 of the section 58 documents - exhibit 1 in this matter. Applicant's evidence 19Mr Cai agreed that he was responsible for the 3 relevant driving infringements. Mr Chen had contacted him when Mr Chen had received the first infringement notice as Mr Cai had been driving at the time of the infringement. Mr Cai said that Mr Chen had said to him "Do you want to transfer it to your wife's name?" At first Mr Cai said 'no' as he thought he only had three demerit points against his licence. He said Mr Chen then said to him "as a new driver you're bound to collect many tickets as you go on." Later he had heard that other drivers supported the view and they told him that there was no problem as "many people do it this way". He then agreed that Mr Chen should say that Ms Ge Guo was driving at the time of this infringement. Mr Cai then provided his wife's licence details to Mr Chen on 26 May 2013. 20Ms Ge Guo then travelled overseas in June 2013 and Mr Cai travelled shortly after, leaving Australia on 24 June 2013 - returning on 25 July 2013. Mr Cai said that while he was away Mr Chen received two other tickets relating to Mr Cai's driving shift and without Mr Cai's knowledge Mr Chen wrote 2 more statutory declarations nominating Ms Ge Guo as the driver. 21Mr Cai said that when his wife returned from overseas, being a nervous person, she quickly paid the three infringement notices in her name. When he found out that all 3 of the driving offences had been transferred to his wife's name - rather than just the first one, Mr Cai said he was concerned - but did not know what to do about it. 22Mr Chen then advised him that he had been approached by the RMS to discuss the matter. Mr Cai then received a telephone request to attend at the RMS the following day at Parramatta. He did so. He hadn't understood that the interview would be serious. He said his spoken English is not that good and there was no interpreter present. He said he told the RMS the truth. He wasn't able to explain to them in detail what had happened because he didn't have the language for this. 23He agreed that the three fines had been incurred by him. He had been a law-abiding citizen and had worked hard. He knew he had made a mistake. He now realised how serious shifting the demerit points to his wife and the swearing of a false statutory declaration is. He rejected the allegation that he had conspired with the operator Mr Chen in relation to the three tickets. 24Under cross examination Mr Cai conceded that although initially he had thought he had only three demerit points against his licence at the time of the three offences, that he in fact had 6 demerit points. Accordingly had he accepted the responsibility for the three infringements he understood he would have lost a further five points which would accumulate 11 demerit points and he would have one point left. He said it had been Mr Chen's idea and he had not told his wife that this was happening. He said that he had been overseas when his wife had received the three infringement notices transferred to her name. He had told her that there might be some fines turning up. He hadn't told his wife when he had got the first infringement because she usually gets angry about these things because their finances were tight. He agreed as set out in his record of interview at RMS on 17 September 2013 that he had done it to save his points. He maintained that he was only aware of the points being shifted on one occasion prior to it occurring. References 25Mr Cai presented 2 references from Roland Su a chartered practising accountant and Lien Chen JP. Both references are addressed "To whom it may concern" and neither refers to the matters before the Tribunal. The referees attest variously to their long friendships with Mr Cai, his hard-working nature, his kindness and generosity towards others, his integrity, honesty and responsibility. Mr Cai told the Tribunal that he had told both referees that the reason for him requesting the references was that he had fines transferred to his wife's name and that the authorities wanted to cancel his taxi driver's licence Applicant's submissions 26Mr Cai said that he had told the truth at his interview with the RMS and he had told the truth to the Tribunal. He had never sworn an untrue oath previously and had done this only because it was suggested to him by others. He knew however that he had done wrong himself. Even had he received the demerit points for these offences he would still only have 11 demerit points and would still have his licence. He said that he had only authorised one of the infringement notices to be transferred to his wife's name. There had been no complaints made about him in his driving role. He did not have other skills and needed his authority to support his family. He said that he really enjoyed his job and wished to keep his cab driver's authority. He wanted an opportunity to correct himself. Evidence of Wei Chen 27Mr Chen said he had been an operator with six taxis but had lost his accreditation as result of the false statutory declarations. He said that when infringement notices turned up he would check which driver had been driving at the relevant time and would then give the infringement notices to the driver to deal with. He said that on the first occasion he had received an infringement notice in relation to Mr Cai that he had probably suggested to Mr Cai that he should shift the infringement to his wife's name as he was a relatively new driver and he would likely receive many more infringement notices. He thought that Mr Cai had six points against his licence at that time. Mr Cai had sent him a text message with his wife's details for the purposes of the statutory declaration on 26th May 2013. He thought that a second ticket had arrived in June 2013. He wasn't sure when the second and third infringement notices had arrived. There had only been a few days between his receipt of the first and then the second infringement notice. 28Under cross-examination from Mr Cai he agreed that Mr Cai had told him to shift the first infringement notice to his wife's name. He said he had probably discussed with Mr Cai attributing responsibility to Ms Ge Guo for the second infringement and couldn't recall in relation to the third. He agreed however that it was possible that he had transferred the second and the third tickets to Mr Cai's wife's name without consulting with Mr Cai first. He had not advised Mr Cai that he had signed the statutory declarations. He said that he had signed the false statutory declarations to help out Mr Cai. Respondent's Submissions 29The Respondent referred the Tribunal to the tests of fitness and propriety set out in Bond's case. Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. 30The Respondent noted that the Mr Cai had committed the 3 driving offences and that Mr Wei could not have sworn the 3 false statutory declarations without the information provided by Mr Cai of his wife's licence details. The motivation for Mr Cai had been to avoid the further 5 demerit points which would bring his record to 11 points. There was no advantage for Mr Chen in it. The avoidance of the demerit points struck at the heart of the demerit point scheme which was to enhance driving safety on the roads. The evidence pointed to Mr Cai being complicit in the shifting of all three offences to Ms Guo- not just the first. It was not credible that Mr Cai had not been aware that the second and third offences had also been shifted to Ms Guo's name. It was not credible that Mr Cai had not told his wife ahead of her receipt of all 3 that she should pay for all 3 infringements. The matter was of a similar gravity to the line of cases involving drivers who defrauded cabcharge. 31The Respondent noted that In NSW making a false declaration for a material benefit is a serious offence. Under s 25A of the Oaths Act 1900, conviction on indictment can lead to imprisonment for up to seven years. 32In this context this matter was of the same nature as the matters of Miah, Naveed and Parvez which had been before the Tribunal and had resulted in the authorities of the drivers remaining cancelled. In those matters the drivers had sworn false statutory declarations attributing their infringements to other drivers. Miah v Roads and Maritime Services [2013] NSWADT 264; Naveed v Roads and Maritime Services [2014] NSWCATOD 4 and Parvez v. Roads and Maritime Services [2014] NSWCATOD 13. 33The Respondent submitted that it was illustrative of the seriousness of the matter that a former Federal Court judge was recently sentenced to three years' imprisonment for offences arising out of an attempt to avoid traffic points following a speeding charge. He was also disbarred, lost his Queen's Counsel commission, his Order of Australia and his National Trust listing as a "Living National Treasure" (R v Einfeld [2009] NSWSC 119). 34In relation to the references as to Mr Cai's repute, the Respondent referred to Loye's case, Loye -v- Director General, Department of Transport [2000] NSWADT 145 at 42 and 44. In this matter the Tribunal gave less weight to references which did not contain the referee's knowledge of the offences where the references were relied upon to show the Applicant was of good repute. 35In relation to the financial hardship that the cancellation would cause Mr Cai and his family, the Respondent referred to the findings in Lal's case. This case found that financial hardship was not a relevant consideration when determining whether the correct and preferable decision had been made. Lal -v- Director-General, Department of Transport [2001] NSWADT 74 at 47 Findings of Fact 36There were a number of matters in the evidence which were contentious. The Tribunal's view is that it must be satisfied as required by section 140 of the Evidence Act 1995 on the balance of probabilities, the civil standard of proof. Accordingly, the Tribunal makes the following findings of fact. 37Mr Cai was responsible for all three of the traffic infringements. He agreed with the operator, Mr Chen, that the first of the infringements should be attributed to Mr Cai's wife, Ms Ge Guo. Mr Cai provided his wife's details to Mr Chen on 26 May 2013 for this purpose. With this information Mr Chen signed the statutory declarations. 38The Tribunal notes that it was not shown the relevant statutory declarations. The Tribunal does not know the dates on which the statutory declarations were sworn. 39Mr Chen's RMS interview transcript refers to one statutory declaration being shown to him at the interview, but date of this statutory declaration is not referred to in the interview transcript. 40At question 309 of the transcript of Mr Chen's interview on 5 September 2013 (page 069 of the section 58 documents) the RMS officer says to Mr Chen: Q 309 "You've done it one two other occasions, for him, and then all of a sudden you've done it again." A "'Cause I, I didn't help myself anything. I just helping him. I, I didn't, I didn't got any benefit on myself, you know?" 41It is not clear from Mr Chen's response whether he agreed with this proposition. Further it does not assist the Tribunal to understand the sequence in which any statutory declarations were signed. 42In his oral evidence to the Tribunal Mr Chen appeared to agree with the proposition put to him by the Respondent that the first 2 statutory declarations were signed by him on 14 June 2013. This would have occurred prior to Mr Cai travelling to China on or around 24 June 2013. 43The Tribunal cannot be sure about the details of any third statutory declaration. 44The Tribunal was shown three penalty notices directed to Ms Guo. One issued on 28 June 2013 related to the 30 March 2013 offence; another dated 27 June 2013 relates to the 23 April 2013 offence and the third issued on 17 July 2013 relates to the 11 May 2013 offence. The only certain conclusion that the Tribunal is able to draw from this is that at least one statutory declaration was provided on or before 27 June 2013. 45On the basis of the evidence before the Tribunal, the Tribunal is not satisfied that Mr Cai asked Mr Chen to provide the second and third statutory declarations. Mr Cai says he did not authorise a second and third statutory declaration and Mr Chen was not certain - although he thought it was 'likely' that Mr Cai had told him to shift the second infringement to Ms Guo's name. 46It is not clear to the Tribunal when Mr Cai became aware that a second or third statutory declaration had been provided to the State Debt Recovery Office by Mr Chen. The Tribunal is satisfied however that Mr Cai did not take action to remedy the deception once he became aware that a second and third infringement had been attributed to Ms Guo. 47Mr Cai told the Tribunal he was hesitant when Mr Chen first suggested that responsibility for the first infringement should be shifted to Ms Guo. The Tribunal is satisfied that at all times Mr Cai was aware that falsely attributing a traffic infringement to another person was dishonest. 48The Tribunal notes that Mr Cai has not been convicted of an offence in relation to this matter. Nor did he swear a false statutory declaration himself. 49The Tribunal finds that Mr Cai was honest in his interview with the RMS within the limits of his capacity to express himself in English. Findings on the Law and Evidence 50The issue in this case is whether the decision to cancel Mr Cai's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Cai 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 recently considered the issues involving the swearing of false statutory declarations by taxi-cab drivers in order to escape culpability for driving offences and to avoid the imposition of demerit points. This Tribunal refers to the approaches of the Tribunal in the matters of Naveed v Roads and Maritime Services [2014] NSWCATOD 4, Miah v Roads and Maritime Services [2013] NSWADT 264 and Parvez v Roads and Maritime Services [2014] NSWCATOD 13. 51By distinction, in each of these matters the statutory declarations had been sworn by the driver himself. This led to the finding that the drivers were not fit and proper to be holders of an authority. 52In the matter of Hughes & Vale the High Court commented that there are 3 components to fitness and propriety - "honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9. 53In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": "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." 54The term "fit and proper person" was discussed by Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (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. 55This Tribunal's synthesis of these requirements in this matter is that an Applicant's fitness and propriety must be determined in the light of the role the Applicant is to undertake. The Tribunal must consider the evidence before it about the Applicant's honesty, knowledge and ability as it relates to the specific role. It is a determination to be made by the decision maker taking into account and weighing up matters both contrary to and in favour of the Applicant. 56In the matter of Saadieh, Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal built on the principles set out in Bond's case and set out the following factors to be considered by the decision maker 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. 57In 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. 58In his evidence before the Tribunal, Mr Cai has admitted to agreeing to have a traffic infringement shifted to his wife's name and has provided his wife's details to the operator for this purpose. As a result the operator has been able to swear three false statutory declarations nominating a driver other than Mr Cai in relation to three traffic offences. Mr Cai told the Tribunal that he was wrong to do this and that he is remorseful for his actions. 59Mr Cai has not been charged with or convicted of any offences. 60The Tribunal is of the view however that Mr Cai's actions should be taken seriously as they reflect badly on his honesty, which is a fundamental consideration when determining whether a person is fit and proper. The dishonesty relates directly to Mr Cai's role as a taxi-cab driver and his relationship with the regulatory authority. 61Further, the 3 infringements relate directly to his driving and driving record. This is significant 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 62The attribution of the 3 infringements to Ms Guo create a false picture of Mr Cai's driving record. Mr Cai's driver authority had been reissued in August 2011. He had offences of 'exceed speed limit by not more than 10 KM/H'; 'disobey traffic lane arrows' and 'make unlawful u turn' each worth 2 demerit points - by 1st June 2013. Had he accepted responsibility for the further 3 infringements his record would have shown 2 further 'exceed speed limit by not more than 10 KM/H' and a 'proceed through a red light'. He would within 2 years of recommencing taxi driving have been on 11 demerit points. 63Mr Cai stopped driving for Mr Chen in December 2013 - when Mr Chen lost his operator's accreditation. He has continued to drive for another operator with a stay in place and has not accumulated further points. His driving record in the 2 years, taking into account the matters attributed to Ms Guo has been fair only. 64The Tribunal notes that there are no customer complaints against Mr Cai in his role as a taxi-cab driver. 65The Tribunal gives little weight to the references provided in determining Mr Cai's good repute in the community and his fitness and propriety - as they do not refer to the matters before the Tribunal and the Tribunal cannot be sure that the referees were fully aware of the matters. In a general sense the Tribunal accepts that Mr Cai is well thought of for his qualities by the 2 referees. 66The Tribunal also accepts that Mr Cai 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 child. Questions of possible hardship to Mr Cai 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 67Mr Cai's conduct occurred relatively recently in May 2013. The Tribunal is satisfied that Mr Cai now understands the seriousness of his conduct and would be unlikely to reoffend in this way in the future. 68The Tribunal has considered the issue of whether there is a distinction to be made between the dishonesty involved in swearing a false statutory declaration oneself and facilitating someone else to do so as occurred in this matter. Whether the statutory declarations were sworn by Mr Chen or Mr Cai the outcome would have been the same - that is that Mr Cai would not have had the demerit points recorded against his driving record. 69The Tribunal has also considered whether the impact on Mr Cai's relationship of integrity with the regulator would have been greater had he signed the statutory declaration himself. Mr Cai knowingly facilitated the making of at least one false statutory declaration. Both Mr Cai's action and that of Mr Chen were dishonest and designed to deceive the regulator. 70Further the Tribunal considered whether there was a real difference as to whether Mr Cai had known that more than one statutory declaration would be provided. The Tribunal is satisfied Mr Cai knew one false statutory declaration would be provided to his benefit - but not 3. The Tribunal is not satisfied that Mr Cai engaged knowingly in an extended course of calculated dishonesty in relation to all 3 statutory declarations. 71However, Mr Cai may be considered to have been reckless as whether more than one infringement may have been shifted from himself to Ms Guo when he provided Ms Guo's details to Mr Chen. 72The Tribunal finds that in these circumstances, Mr Cai's action of providing Ms Guo's details in the knowledge they would be used to deceive the Regulator and that it was wrong to do so, is sufficient to detract from Mr Cai's relationship of honesty with the Regulator. 73The Tribunal is satisfied that Mr Cai now understands the gravity of his actions in facilitating the swearing of false statutory declarations to his benefit. 74Given, however, the seriousness of his action in knowingly facilitating the swearing of a false declaration in order to evade responsibility for one traffic infringement, the Tribunal cannot be satisfied that Mr Cai is, at this stage, a fit and proper person to hold a taxi driver's authority as he has not demonstrated the honesty and integrity necessary in this regard. 75The Tribunal is accordingly satisfied that Mr Cai's action in facilitating Mr Chen's falsely swearing the three statutory declarations is sufficiently serious to warrant the cancellation of his authority. 76As the Tribunal has determined that, at this stage, Mr Cai is not a fit and proper person to hold an authority, it is not necessary to consider whether Mr Cai 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. Decision 77The 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: 15 April 2014