Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sanai v Roads and Maritime Services [2014] NSWCATOD 39 Hearing dates: 6 November and 11 December 2013 Decision date: 29 April 2014 Jurisdiction: Occupational Division Before: S Frost, Senior Member Decision: Cancellation decision set aside; substitute a decision to suspend the applicant's taxi driver authority until he has satisfactorily completed courses in customer care and the legal obligations of a taxi driver Catchwords: Passenger transport - taxi driver - whether driver authority should be cancelled - analysis of complaint history - extent to which complaints upheld Legislation Cited: Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: Saddick v Director General, Department of Transport [2002] NSWADT 88; Taylor v Director General, Department of Transport (GD) [2001] NSWADTAP 29 Category: Principal judgment Parties: Eienddin Sanai (Applicant) Roads and Maritime Services (Respondent) Representation: Counsel C Bolger (Applicant) Lyons & Lyons (Applicant) A Wozniak (Respondent) File Number(s): 133179 reasons for decision 1The Applicant, Eienddin Sanai, has been driving taxis since about 1990. In that time he has been the subject of 61 complaints made by passengers or other road users about his conduct as a taxi driver. 2Some of the complaints allege incivility or rudeness on the part of Mr Sanai towards his passengers. Some of them allege overcharging of fares, either by failing to take the most direct route to the passenger's destination, or by charging the wrong tariff, or by obscuring the display on the meter, making it impossible for the passenger to know what the proper fare should be. 3At different times over the years the regulator (which has changed its name a number of times but which, for convenience, I will refer to as Roads and Maritime Services, or RMS) has sent Mr Sanai for retraining, placed him on probation, and imposed conditions on his taxi driver authority. 4Most recently, in May 2012, RMS directed Mr Sanai to participate in a Taxi Remedial Training Course. He attended that course in July 2012 and was subsequently issued with a written "caution" by RMS, warning him that "any further complaints, arrests, convictions, proven offences and traffic history may result in the suspension or cancellation of your Driver Authority". 5Six further passenger complaints were made in the six-week period from 1 February to 15 March 2013. There was also a complaint made in January 2013 by a heavy vehicle driver, who complained about a dangerous right-hand turn made by the taxi that Mr Sanai was driving at the time, almost resulting in a collision. 6By May 2013 RMS had clearly had enough. Mr Sanai's driver authority (AF2806) was cancelled on 15 May 2013, with immediate effect. 7Mr Sanai applied to the Administrative Decisions Tribunal (ADT) for review of RMS's cancellation decision. He was granted a stay of the decision, under s 60 of the then Administrative Decisions Tribunal Act 1997, on 11 June 2013. As a result Mr Sanai has been allowed to continue driving taxis pending determination of his review application. 8His application for review was listed for hearing in the General Division of the ADT on 22 August 2013 but the hearing did not proceed on that day because of the late filing of materials by RMS. The application was heard on 6 November and 11 December 2013, at which time I reserved my decision. The ADT was merged into the Civil and Administrative Tribunal of New South Wales (NCAT) on 1 January 2014 and as a result I am now authorised and required to determine the matter as a member of NCAT: clause 7(2) in Schedule 1 to the Civil and Administrative Tribunal Act 2013 (NCAT Act). Matters, such as this one, concerning the administrative review of decisions made under the Passenger Transport Act 1990 (the PT Act), which were formerly dealt with in the General Division of the ADT are dealt with in the Occupational Division of NCAT: s 52 of the PT Act and clause 4(1) in Schedule 5 to the NCAT Act. The legislation and the issues 9Section 33(3) of the PT Act provides, with respect to taxi-cab driver authorities: (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. 10The question for the Tribunal is whether, having regard to the purpose of authorisation as set out in s 33(3), Mr Sanai's authority should be varied, suspended or cancelled under s 33F of the PT Act. The evidence before the Tribunal 11As is customary in taxi driver authority cases, RMS provided to the Tribunal its entire file dealing with Mr Sanai. Included in that file are various complaint reports, or "complaint logs", the earliest dating back to 1994. Complaints are generally dealt with at first instance by the taxi network; it is generally only repeat behaviour and more serious complaints that are escalated to RMS. 12In addition to the file - treated for practical purposes as the documents lodged by RMS with the ADT under section 58 of what was formerly the Administrative Decisions Tribunal Act 1997 (but which has now been renamed the Administrative Decisions Review Act 1997 by the NCAT Act) and referred to for convenience as the "section 58 documents" - RMS lodged 29 pages of supplementary section 58 documents comprising detailed complaint logs of complaints previously notified. Then on the second substantive day of hearing, 11 December 2013, RMS tendered further documents comprising: * a written statement of Minerva Mikhael, of GM Cabs Australia Pty Ltd, concerning the allocation of EFTPOS terminals to Mr Sanai from June 2010 to now; and * login and GPS records from Taxis Combined Services designed to throw light on the movements of Mr Sanai's taxi on a date in February 2011 and a date in February 2012. 13These documents are numbered pages 477 to 498 and have been treated as part of the section 58 documents. 14Mr Sanai made three written statements (Exhibits A1-A3) in which he addressed particular complaints in the complaints log. Attached to two of those exhibits are character references. Mr Sanai also gave oral evidence and was cross-examined by Mr Wozniak, who appeared for RMS. Ms Mikhael was cross-examined by Mr Sanai's counsel Mr Bolger. 15In his first written statement (Exhibit A1), Mr Sanai said: ... [16] I have read the Statement of Reasons attached to the Notice of Cancellation of my authority. I accept and admit that during the 27 years that I have held a taxi driver authority and driven taxis that I have received notification of complaints from Taxis Combined and what is now the Roads and Maritime Services. I do not however admit I have received notification of 61 complaints and further I do not admit the alleged behaviour in all of those complaints. I have not been contacted in respect of all 61 complaints and I have not been interviewed in respect of all 61 complaints or been given the opportunity to put my version or give a statement in respect of all of the alleged complaints. [17] When directed to undertake training or attend courses I have always done so and paid the fees to attend the courses. I have found the courses beneficial when I have attended. [18] I deny the allegations that I do not properly use the taximeter or improperly charge people for the taxi services that I provide such as by applying the wrong tariff or charging tolls when they are not claimable. [19] There are many reasons why a fare may be more expensive or not as expensive when driving from one location to another. It can be the time of day, the traffic and the route taken. There can also be waiting time or additional charges for tolls, baggage fees (for luggage over 25kg - though I have never charged a passenger for this fee) and or booking fees. There are also different charges associated with the method of payment, for example if paying by cabcharge or credit cards. [20] I deny the allegations that I have been rude or use offensive language towards customers (passengers). When driving a taxi you are always in contact with the public and must always be available to take their fare. Customers can be very rude on occasions and it is important not to be argumentative or get upset with the way you are treated. Due to my accent, way of speaking and my Iranian background I have experienced from time to time or been subjected to abuse and rude passengers. These situations can be difficult, but I always try to remain passive so as not to put myself in danger. [21] I always take the attitude that the customer is right however when it comes to driving from one location to the next, due to my extensive experience as a taxi driver, I will suggest from time to time alternate routes that I think will be quicker and have less traffic. ... 16His written statement proceeds to comment on each of the seven most recent complaints (six of them by passengers and one by another road user). I will deal with his comments later in these reasons. 17His second statement (Exhibit A2) comments on the complaint logs contained in the supplementary section 58 documents and I will deal with these comments later as well. 18His third statement (Exhibit A3) puts in issue the accuracy of some of the allegations against him by reference to the EFTPOS terminal said to be installed in his taxi. However, ultimately Mr Sanai accepted that he was indeed in possession of the terminals as it had been asserted. Mr Sanai's submissions 19Mr Bolger, who represented Mr Sanai at the hearing, submitted that the way the complaints against his client had been dealt with by RMS raised a "procedural fairness issue". He noted that Mr Sanai had not, prior to the cancellation of his driver authority, been given a letter inviting him to show cause why his authority should not be cancelled. As a result, he submitted, Mr Sanai had been given no opportunity, prior to the cancellation, to address any issues concerning his fitness to remain authorised to drive taxis. He had only now, as a result of his application for review of the decision, been able to address RMS's issues and in doing so he had put on evidence in support of his case, which he had not earlier been able to do. 20He also submitted that RMS's issues leading to the cancellation of the driver authority were the matters raised by the most recent six complaints, all of them occurring since Mr Sanai's attendance at the Taxi Remedial Training Course in July 2012. Mr Bolger described these events as the "most crucial" events. This is where Mr Sanai had focused his evidence. Mr Bolger noted that Mr Sanai had not been cross-examined on these six matters by RMS's representative, Mr Wozniak. 21Mr Bolger emphasised the potential danger and unfair prejudice to Mr Sanai if the Tribunal were to accept, without careful analysis, the content of the various complaints made against his client. He submitted that complaints are not enough. If sufficient facts are not made out then there is no proper basis for cancellation. He noted that many of the complaints, recorded by officers of RMS or by employees of the taxi network where Mr Sanai has worked, are second hand hearsay and, as a result, potentially unreliable accounts of the events described. In some cases it is not clear that the complaint has been brought to Mr Sanai's attention or that he has been given an opportunity to respond; sometimes the complaint will not have been upheld; sometimes Mr Sanai will have taken remedial action, such as the part refund of a fare to a passenger, not because Mr Sanai accepted the accuracy of the complaint but simply as a pragmatic way of resolving a dispute. In summary, he submitted that there were serious doubts about the complaint evidence. 22In this regard Mr Bolger directed me to the comments of the ADT in Saddick v Director General, Department of Transport [2002] NSWADT 88, particularly at [15] and following, under the heading "Assessing the probative value of complaints". 23The Tribunal had cited in Saddick, at [16], the following comments of the Appeal Panel in Taylor v Director General, Department of Transport (GD) [2001] NSWADTAP 29 at [87]: In passenger transport cases involving complaints from passengers or other members of the public the Tribunal should start from the position that a party should be given the opportunity of testing prejudicial evidentiary material tendered against him or her. That position may be modified depending on a number of factors including: * whether and if so to what extent the applicant denies the allegations in the complaints; * the importance of the complaints in relation to the whole of the respondent's case; * whether complaints were made confidentially and the availability of complainants to give evidence; * the nature and extent of the investigation process that has already been undertaken by the Department and the applicant's involvement in that process. 24Mr Bolger also noted that RMS had not called any witnesses or made any of the complainants available for cross-examination. Why did RMS cancel Mr Sanai's driver authority? 25RMS's written reasons for the cancellation decision (pages 464-473 of the section 58 documents) make it plain that the decision was based on Mr Sanai's entire history as a taxi driver, and particularly since 2003, not just the most recent six complaints. The history that RMS has taken into account is taken from his departmental file, which contains 476 pages in total. It seems clear that the accumulation of complaints against him has been the major factor in RMS's decision to cancel his driver authority. However, it is also clear that the most recent complaints are the ones that took RMS beyond the "tipping point". 26Paragraph 1.1 of the written reasons refers to Mr Sanai having received a driver authority in 1990, to the 61 complaints made against him since then, and to the fact that 37 of those complaints dated from 2003 onwards. Paragraph 1.3 refers to the fact that Mr Sanai was directed to undertake training in Module 2 Customer Care and Module 3 Regulations in March 2008. Paragraphs 1.4 and 1.5 refer to RMS's direction in May 2012 that he undertake the Taxi Remedial Training Course. Paragraph 1.6 refers to the "caution" that was issued to him after completion of that course in July 2012, and as referred to in [4] of these reasons. Paragraph 1.7 contains a reference to the further six passenger complaints that had been received since Mr Sanai's completion of that course. 27Paragraph 1.8 refers, one at a time and in reverse chronological order, to each complaint made since 2003. Each complaint has a complaint number (referred to as a "CFI"). Brief details of the complaint are given, followed by what may be described as an "outcome". By my reckoning there are 38 complaints listed. 28For the most recent six complaints, the brief description, date and outcome are as follows: * CFI 82394 - Rude/Incivility to Customer - 15 March 2013 - "RMS investigated the matter and has decided to cancel your driver authority. The above complaint shows a pattern of behaviour and is of concern to RMS." * CFI 81988 - Demand more than prescribed fare - 28 February 2013 - "RMS investigated the matter has decided (sic) to cancel your driver authority. The above complaint shows a pattern of behaviour and is of concern to RMS." * CFI 81649 - Demand more than prescribed fare - 19 February 2013 - "TCS [the taxi network where Mr Sanai works] investigated the matter and a refund was provided to the passenger. The above complaint shows a pattern of behaviour and is of concern to RMS." * CFI 81458 - Fail to take most direct route - 13 February 2013 - "RMS investigated the matter and has cancelled your driver authority. The above complaint shows a pattern of behaviour and is of concern to RMS." * CFI 81164 - Improper use of taxi meter/demand more than prescribed fare/faulty meter - 5 February 2013 - "RMS investigated the matter and has decided to cancel your driver authority. The above complaint shows a pattern of behaviour and is of concern to RMS." * CFI 81061 - Fail to use meter/demand more than prescribed fare - 1 February 2013 - "TCS investigated the matter and a refund was provided to the passenger. The above complaint shows a pattern of behaviour and is of concern to RMS." 29As can be seen, the outcome in respect of each of those six complaints contains the identical sentence "The above complaint shows a pattern of behaviour and is of concern to RMS." That is also the case with every single one of the remaining 32 complaints that are referred to in the written reasons for decision. 30There is, of course, a distinct lack of logic in the proposition that a single event - in this case, a complaint - can show a "pattern of behaviour". A combination of events, or a repetition of similar events, perhaps, but not a single event by itself. 31But there are two aspects of this case that are even more worrying than the lack of logic. The first is that 38 occurrences of an identical sentence in a Statement of Reasons are strongly suggestive of a "copy and paste" approach to the creation of a document, rather than a careful and well reasoned presentation of a decision-maker's thought processes. And the second is that, in any event, RMS did not always uphold the complaint. That makes it difficult to understand how the conclusion could be drawn that Mr Sanai's "behaviour" is of concern to RMS. 32An example is CFI 81164. The substance of the complaint was that the passenger could not see the digital display on the meter when she reached her destination. She claimed to see black "gaff tape" and a plastic cover over the meter. When she challenged the driver about the tape covering the meter, the driver turned off the meter and told her just to pay what she was happy with. The passenger said that she attempted to take a photo of the taxi meter but the driver put a newspaper in front of the meter to shield it. She described the driver as of Asian appearance, 35-40 years old. 33As noted above, RMS did investigate this complaint (pages 441-444 of the section 58 documents), and very thoroughly, but found it to be "without substance" (p.442). The complainant, a frequent user of taxi services, claimed to have a business diary in which she recorded "every movement of her day", but her diary contradicted her claim that she was in a taxi at the time and in the location that she claimed. Her description of the driver did not match that of Mr Sanai. Mr Sanai denied any knowledge of the alleged event. The network interrogated its journey logs and advised that it was unable to locate any journeys undertaken by Mr Sanai's taxi around the time of day reported by the complainant and on any weekday between 1 January 2013 and 5 February 2013. 34Mr Sanai addressed this complaint at [33]-[34] of his first witness statement, as follows: I was not interviewed in relation to this incident. I deny I demanded more than the prescribed fare. I deny the allegation. Despite this complaint been found to be unjustified and when looking at the investigation report it is apparent that the complainant was confused and not referring to myself as I am not Asian and I am not 35-40 years old. Further, I have not placed gaffer tape over my taximeter and there was no evidence of any such tape been found on my meter. The Roads and Maritime Services have relied on this complaint to cancel my driver authority. Attached and marked "B" are copies of my taxi meter in my taxi. 35The attached document marked "B" is a photo of an unidentified tax meter, taken on an unspecified date. 36I am not satisfied that Mr Sanai had any involvement in the event complained of. Consideration of the other recent complaints 37I will deal with the recent passenger complaints in the order in which they were made. CFI 81061 - 1 February 2013 38The first is CFI 81061, at page 436 of the section 58 documents. This complaint was dealt with by the network, and was not referred to RMS. The complaint log is in the following terms: Caller stated: The fare was $19.30 as the driver was arriving. Upon arrival the driver put the price up to $26.70. When he asked the driver why the increase, he said his fare was correct. He said to the driver that they haven't passed any tolls etc to increase the fare and the driver took the price down to $20. Driver ID AF2806. 39The complaint was categorised as both "Fail to use meter" and "Demanding more/other than prescribed fare". 40The complaint log records Mr Sanai's initial reaction to the complaint: Called driver, driver said he does not know what the complainant was talking about so he just refunded the money to keep the complainant [happy]. Driver stated that he did not increase the fare and sometimes people are crazy, and mentioned again that he wants to keep pax happy thats why he gave money back to complainant. 41Mr Sanai addressed this complaint at [35] of his first witness statement, Exhibit A1, as follows: ... I received a call from Taxis Combined Services in relation to this complaint. I can not recall the specific details of the fare and or the trip. I deny the allegations of over charging, but admit that I had recently given money back to a passenger as the passenger was complaining about the fare and I just wanted to keep the passenger happy rather than have to deal with further complaints. ... 42The "outcome" for this complaint was recorded as "NOT Justified - Conflicting statements". 43This is one of the complaints falling into the "second hand hearsay" category identified by Mr Sanai's counsel. It is not a complaint recorded directly by the complainant, but by someone at the taxi network who took the complaint over the phone. In those circumstances there is a real risk that the document is an unreliable account of the facts stated. 44Mr Sanai challenged the accuracy of the complaint and there is no reason why I should prefer the version in the complaint log over Mr Sanai's version. On the material before me I am not satisfied that the incident occurred as complained of. CFI 81164 - 5 February 2013 45The second complaint is CFI 81164. I have already dealt with this complaint, at [32]-[36] of these reasons. As concluded there, I am not satisfied that Mr Sanai had any involvement in the event complained of. 46RMS found that the allegation that Mr Sanai had demanded more than the prescribed fare was "unsubstantiated". It found the complaint "not justified". Similarly, the allegations of "improper use of a taxi meter" and "faulty meter" were found "not justified". Page 442 of the section 58 documents refers. 47Despite these findings, RMS included in its Statement of Reasons (page 472 of the section 58 documents) that "RMS investigated the matter and has decided to cancel your driver authority". CFI 81458 - 13 February 2013 48The third complaint is CFI 81458, investigated by RMS and the subject of a detailed investigation report at pages 459-463 of the section 58 documents. The investigation report notes that the complaint is that Mr Sanai failed to take the shortest practicable route on a journey from the domestic airport to Waterloo. The complainant was charged $42.00 for the journey, although she takes the journey several times a week and generally pays no more than $30.00. 49The investigation report picks up the story: The complainant advised when the taxi cleared the congestion in the terminal area he was in the right hand lane to turn onto General Holmes Drive where she asked the driver to take O'Riordan Street. The complainant advised the driver just ignored her. The complainant further advised she then told the driver to take O'Riordan Street and he did not answer her. The complainant advised that when the driver entered onto General Holmes Drive she demanded the driver return to O'Riordan Street and when they entered Southern Cross Drive she advised the driver told her he was taking the shortest way and she did not know where she was going. The complainant advised at the destination the driver was speaking to her in a belittling manner, when she presented her credit card to pay the fare she alleged the driver informed her the fare was $42.00. ... The route shown on the GPS tracking provided by TCS supported the complainant's account, taxi T7581 made the pickup at 19.10:48 hours at T2, the next GPS tracking showed T7581 on Southern Cross Drive at 19:18:19 hours arriving in Danks Street Waterloo at 19:24:34. A total of 14 minutes travel time. A Google maps search showed two possible routes from the domestic terminal to Danks Street Waterloo. The first route: from Shiers Avenue Mascot into O'Riordan Street then travel north til Danks Street Waterloo turning right and then travel along Danks Street to the Meriton Apartments, distance 5.2kms and a estimated travel time 10 minutes. Tab B The second route: from Shiers Avenue Mascot into General Holmes Drive, Southern Cross Drive to Danks Street then left turn into Danks Street Waterloo and then to the Meriton Apartments a distance of 7.9kms and a estimated travel time 10 minutes. Tab C The fare calculation based on 5.2kms taking into account hop in fee, airport toll and waiting time with a credit card surcharge [is $26.41]. A similar calculation with the same inclusions via Southern Cross Drive a distance of 7.9kms is $32.65. On 13 March 2013, RMS contacted Mr Sanai and invited him to attend a record of interview. Mr Sanai advised was on holidays and was not available until 27 March 2013. On 27 March 2013, Mr Sanai attended the RMS office, level 4 16-18 Wentworth Parramatta and he was interviewed by compliance officers Hickey & Barnier. Mr Sanai provided the following information: - He advised he holds taxi driver authority AF2806 -He is an accredited operator 11751 -His sole income came from driving and operating taxi T7581 -He supports an extended family in Australia and in Iran -He was the driver of taxi T7581 on 13 March 2013 (sic), at 7pm -He recalled the journey -He advised that he picked up the passenger at the domestic airport and there was very heavy traffic in the airport loop, he advised it took a long time to get out of the airport. He advised when he got to the intersection of O'Riordan Street and General Holmes Drive there were several trucks in O'Riordan Street, the traffic was at a standstill and going nowhere. -He advised he went via General Holmes Drive then onto Southern Cross Drive, as he believed this way was quicker with no traffic lights. -He advised an argument occurred with the passenger at the end of the journey over the airport toll. -He advised he recalled the fare was about $42.00 including the credit card surcharge. -RMS compliance officers showed Mr Sanai a Google map document marked annexure A which detailed the route from the domestic airport Mascot via O'Riordan Street to Danks Street Waterloo as a distance of 5.2kms Mr Sanai only reply was the O'Riordan Street was congested at the time and the traffic lights make the trip very long. -RMS compliance officers showed Mr Sanai a Google map document marked annexure B which detailed the route from the domestic airport Mascot via General Holmes Drive and Southern Cross Drive to Danks Street Waterloo with a distance of 7.9kms. Mr Sanai reviewed both documents and his only comment was they both take 10 minutes, as detailed on the Google maps document. -RMS compliance officers asked Mr Sanai to comment on difference in the distance and that he failed to take the shortest practical route, Mr Sanai advised he went the quickest way otherwise he would have been stuck in traffic for hours. -RMS compliance officers asked Mr Sanai to comment on the complainants request for him to take O'Riordan Street, to which he denied were ever made. -RMS compliance officers showed Mr Sanai a fare calculation document marked as annexure D where he was asked to comment on the difference between the two routes, where he advised the high cost of the fare was caused by the long delays in the airport circle. -RMS compliance officers asked Mr Sanai to comment on the difference between the distance and his reply was O'Riordan Street has too many traffic lights to much stop start. -RMS compliance officers asked Mr Sanai if he had the meter set on tariff 2 and he denied that he would ever do that. -RMS compliance officers showed Mr Sanai a tariff 2 calculation on annexure D where the fare under tariff 2 taking into account the route via Southern Cross Drive came to approximately $40.71. Mr Sanai denied setting the meter to tariff 2 and stated the cost was caused solely due a 20 minute delay to get out of the airport. -RMS compliance officers showed Mr Sanai annexure C1 to C4 where the journey commenced at 19:10:48hours, and concluded at 19:24:34hours a 14 minute journey. Mr Sanai did not offer any comment. Tab D -RMS compliance officers showed Mr Sanai annexure C2 where the taxi is on Southern Cross Drive at 19:18:19hours. This confirmed that it took 8 minutes from the passenger pickup to clear the airport and travel along Southern Cross Drive to be near the Wentworth Avenue overpass. Mr Sanai looked at this annexure and only offered that he believed Southern Cross Drive was the quickest way to the Meriton Apartments in Danks Street Waterloo. ... On 27 March 2013, RMS contacted the complainant who confirmed there was a minor delay in the airport circle for about 4-5 minutes she reconfirmed that she directed the taxi driver to go via O'Riordan Street and she did not recall any noticeable delays in O'Riordan Street. 50Mr Sanai addressed this complaint at [31]-[32] of his first witness statement, as follows: I picked the passenger up from the Domestic Terminal at Mascot. The passenger wanted to go to Danks Street, Waterloo. There was traffic and congestion getting away from the Domestic Terminal. The passenger and I did not have discussion about which way to go whether down O'Riordan Street or General Holmes Drive. There was heavy traffic on O'Riordan Street. Because of the traffic I drove via General Holmes Drive. As I was driving in Southern Cross Drive the passenger said: "This is the long way you are going." I said: "It is the quickest way in my opinion." The passenger did not say anything else about the route taken. There was no request by the passenger to go via O'Riordan Street. At the end of the trip passenger complained about the cost of the fare and said: "it is more than normal because you went the other way." I said: "if I went the other way it would have been more expensive". The trip via O'Riordan street had heavy traffic and at least 15 sets of traffic lights. The traffic on Southern Cross Drive was flowing and there are only 5 sets of traffic lights. I can not recall how much the passenger was charged for the fare. I do not recall saying or volunteering in my interview with the Roads and Maritime Service officers on 23 April 2013 that the fare was $42. I did not incorrectly set the "tariff" for the fare. 51Mr Sanai does not specifically address the GPS records, which confirm that there could have been only minimal congestion leaving the airport. He does not seek to explain how the fare could have been as high as it was, beyond his bare assertion that he did not incorrectly set his meter to the higher tariff 2. He also says that he did not have a discussion with the passenger about which route to take. Not only is that surprising; it is also difficult to reconcile with his claim at [21] of the same statement (see [15] of these reasons) that he "will suggest from time to time alternate routes that I think will be quicker and have less traffic". The fact is that there are two possible routes from the airport to Danks Street, and a failure to discuss which route the passenger wants to take is inviting problems. Overall, Mr Sanai's statement is an inadequate response to the RMS investigation report. 52At the end of the day, RMS was satisfied that Mr Sanai breached clause 150(1)(b) of the Passenger Transport Regulation 2007 by failing to take the passenger by the shortest practicable route. I am likewise satisfied. CFI 81649 - 19 February 2013 53The fourth complaint is CFI 81649, at pages 27-29 of the supplementary section 58 documents. This complaint was dealt with by the network, and was not referred to RMS. The complaint log is in the following terms: Caller complains taxi driver charged him extra while travelling from Wynyard station to St Vincent Hospital, Darlinghurst. Caller states he usually pays $10.00-$11.00 to the maximum but he paid $20.40 today. Caller states he paid by his bank card and got receipt ... 54The complaint was categorised as "Demanding more/other than prescribed fare". 55There is no detail in the complaint log apart from a note that the driver attended Customer Service and refunded $7.30. 56The "outcome" was recorded as "NOT Justified - Conflicting statements". 57Mr Sanai addressed this complaint at [29] of his first witness statement with the comment: I was not interviewed in relation to this incident. I deny I demanded more than the prescribed fare. I deny the allegation. 58However, at the time he made his first witness statement he had not been provided with a copy of the complaint log. He commented further in his second witness statement, at [10]: I have had read to me the call centre log for CFI 81649 which was provided to me at the hearing on 22 August 2013. I do not recall the incident. I note that I have refunded to the complainant $7.30. The refund would have been worked out by customer service at Taxi's Combined Services. It would appear I was not contacted about the matter until April 2013. I did not make any admissions as to any wrongdoing however to keep the customer happy and to comply with Taxi's Combined request I have agreed to refund some money. 59Mr Sanai's observation in his witness statement that he was not notified of the incident until April 2013 appears to be correct. The log indicates that he heard about the complaint on 9 April 2013, some six and a half weeks after the complaint was made. 60This is another complaint falling into the "second hand hearsay" category. It is not a complaint recorded directly by the complainant, but by someone at the taxi network who took the complaint over the phone. In those circumstances there is a real risk that the document is an unreliable account of the facts stated. 61There is no reason why I must accept the version in the complaint log. On the material before me I am not satisfied that the incident occurred as complained of. CFI 81988 - 28 February 2013 62The fifth complaint is CFI 81988, at pages 25-26 of the supplementary section 58 documents. It seems that the complaint found its way to RMS because of the earlier direction that Mr Sanai attend Remedial Training, which he did in July 2012. 63The Statement of Reasons records the complaint in the following way (page 472 of the section 58 documents): A complaint was received from a passenger of taxi T7581 that when she entered the taxi the meter read $8.00, the complainant advised she took the taxi from the rank in Knox Street, Double Bay and on arrival at her home in Bellevue Hill the meter displayed $11.00 or $12.00 when the fare is never more than $8.00. The complainant made a written complaint. TCS identified Eienddin Sanai, driver authority AF2806, as the driver of T7581 and GPS tracking showed the taxi at the Knox Street Double Bay rank at the time of the allegation. 64The complaint was categorised as "Demanding more/other than prescribed fare". 65Mr Sanai addressed this complaint at [28] of his first witness statement, as follows: I have no recollection of this incident or job. I was not contacted or interviewed in relation to this allegation. I deny the allegation. The meter would not be running before a passenger commenced a journey from a taxi stand and if for some reason it had been then I would have expected a passenger to raise the issue and I would have rectified it. I also would have noticed the fare as the trip described is not very long and to start at $8.00 would have made it an expensive fare - I have no recollection of that fare. 66By the time Mr Sanai made his first written statement he had not seen the complaint log for this complaint. That was not provided to him until the day originally set down for the hearing, 22 August 2013. The complaint log says this: Caller states that she picked the taxi from Knox st Double Day to Bellevue Hill and she usually pays 8 dollars and the driver charging almost 12 dollars. Caller states that the driver was very dodgy and try to ripe her off but she only paid 9 dollars. Caller states that as the taxi reaching her house she can see the meter showing as 8 dollars when she about to pay him it showed 11+ dollars. Caller states they had a dispute about it and then the driver asked her to get off the taxi and told her that she was ripping him off and she also noticed the meter going very fast as well. ... 67After seeing the complaint log Mr Sanai addressed the complaint in greater detail in his second statement, Exhibit A2. He said at [8]-[9]: I was not contacted in relation to this incident. It would appear that action was taken in relation to the investigation to the matter after my licence had already been suspended. I have now read the log of the complaint number CFI 81988 which was provided to me at the hearing on 22 August 2013. I still do not have any recollection of the fare. The Statement of Reasons does not accurately record the complaint against me. The complaint [according to the Statement of Reasons] alleges that when the passenger entered the taxi the meter already read $8.00. I have had the call log record for the complaint read to me. The log does not reflect the allegation that the reading was at $8.00. The log alleges that the fare cost the complainant $8.00 and when the taxi was close to her house it read $8.00 and then when it came time to pay it was $11.00. I do not recall the incident and I do not know exactly where it was alleged the fare was reading $8.00 as opposed to where it was reading $11.00. I charge my clients and customers based on what the meter reads. I don't know why it is alleged the meter was still running. When I arrive at the destination for the client/customer I stop the meter and ask them to pay the fare. I do not ask client or customers to pay a fare while the meter is still running. 68The "outcome" was recorded as "Justified". The "Outcome Reason" was "complainant confirmed complaint and gps and meter activity logs support allegation". The "action" taken was "Cancellation of Driver Auth (DoT)". 69The complaint as outlined in the complaint log is similar to that in CFI 81061 described in [38]-[44] above. What is interesting is that this complaint was found justified whereas 81061 was not. The notes supporting the "Outcome Reason" are unhelpful. The "support" claimed by the GPS and meter activity logs is unclear - perhaps they signify nothing more than that the taxi was in the particular location at the time. Mr Sanai denies having been notified of this complaint or given the opportunity to deal with it. It is another complaint in the "second hand hearsay" category. Without anything further I am not satisfied that the incident occurred as complained of. CFI 82394 - 15 March 2013 70The sixth complaint is CFI 82394, referred to at pages 472-473 of the section 58 documents. The complaint log itself is not included in the section 58 documents or the supplementary section 58 documents. The complaint is described in the Statement of Reasons for the cancellation decision as follows: A complaint was received from a passenger waiting at a rank at the Domestic Airport Sydney, where the complainant was directed to stand at position 10 on the rank where taxi T7581 was waiting, as the complainant arrived at position 10 the driver moved the vehicle to position 9 and another taxi arrived in position 10. The complainant started to enter the taxi in position 10 where she was verbally abused by the driver of taxi T7581 where she was called "you idiot" and other language she did not want to repeat. Complainant described the driver as eastern European with greyish beard and grey hair. Taxi Combined Services (TCS) identified Eienddin SANAI, driver authority AF2806, as the driver and GPS tracking showed the taxi at the Virgin Rank at the time of the allegation. 71The complaint is characterised as "Rude/Incivility to Customer". Mr Sanai addressed it at [26]-[27] of his first witness statement, as follows: I deny that allegation. I am not of Eastern European background, I am from Iran. I was not contacted by an investigator or officer from the Roads and Maritime Services or Taxis Combined Services in relation to this complaint. I have not been given the opportunity to respond to the allegations of the complainant or give my version. I deny I called the female passenger on 15 March 2013 at the Domestic Airport Sydney an idiot or that I used any other foul, rude or derogatory language towards a passenger on that day. I do recall being at the Domestic Airport Sydney on 15 March 2013. I also recall being at the Taxi Stand and being directed to drive into position 9 where a female passenger was standing. I parked so that the rear of the taxi was adjacent to where she was standing with her luggage. I stepped out of the taxi and went to walk to the back of the taxi to get the passenger's luggage and put it in the back of the taxi. As I was walking towards the back of the taxi the female passenger walked to a taxi that pulled into the position behind where I had parked. I said to the passenger "excuse me madam this is your taxi (referring to my taxi)". She said in an aggressive way "you have driven to far" and walked to the back passenger door of the taxi that had parked behind me and put her bag in the back of that taxi. I then said to the driver behind me "what are you doing? She is my passenger?" The taxi driver said: "It is what ever she wants". At some stage the female passenger said something else, I didn't hear or understand what was said and I don't know if she was speaking to me or the other driver. I waited for the next passenger. 72The Statement of Reasons indicates that RMS investigated the matter but there is no record of the investigation in the section 58 documents. Summary in relation to the most recent complaints 73I am satisfied that CFI 81458 occurred as alleged. On the other hand, I am not satisfied that Mr Sanai was involved in CFI 81164. 74In relation to CFI 82394, no doubt something happened that triggered the complaint. Mr Sanai denies having been contacted or interviewed about the complaint, and his denial is not disproved by anything in the original or supplementary section 58 documents. Furthermore, Mr Sanai's version of events is not implausible. The absence of a written statement or oral evidence from the complainant makes it unsafe for me to find this complaint sustained against Mr Sanai. 75Similarly, the absence of a written statement or oral evidence from the complainant in respect of any of the complaints 81061, 81649 and 81988 leaves me unable to conclude that the events occurred in the way they were recorded in the complaint logs. Two of those complaints actually had "not justified" as the outcome. That does not mean they did not happen but I would need more evidence before being satisfied that they did. 76The result is that, since Mr Sanai attended the Taxi Remedial Training Course in July 2012, only one complaint against him can be comfortably upheld. I am not satisfied that he was connected with one of the other complaints, and a third may well have occurred in the way that he described. The remaining three cannot be upheld because of a lack of satisfactory evidence. 77The complaint that is upheld is "fail to take the shortest practicable route". Earlier complaints about overcharging 78Page 406 of the section 58 documents lists 39 complaints against Mr Sanai during the period July 2003 to May 2012. Making allowance for duplications, there appear to be 34 separate events underpinning the complaints. In total there are 13 instances where the "outcome" of the complaint is recorded as "Justified", although there should be 14. CFI 69527 has no "outcome" recorded in the table at page 406 but it is clear that it, too, was found "justified" (see below). Five of the "justified" outcomes shown at page 406 are in relation to complaints of "Demanding more/other than prescribed fare". CFI 69527 is a sixth example in the same category. CFI 69527 - February 2012 79The complaint log, at page 6 of the supplementary section 58 documents, records the following: Caller rang and stated he caught a taxi on 20/02/12 from 264 George Street Sydney to Hearn St Leichhardt at 1930, Driver 2589, Taxi 9875 and caller stated he does this everyday and normally this is about $15-$18. Caller stated there was no traffic, he directed the driver on the route he takes and the fare came to $32 for a 6km trip. Caller stated he said to driver that sounds a bit high. Caller asked about the meter and driver stated, "I have no control over the meter", caller stated what he normally pays. Caller states the driver got very aggressive towards him and told him he was wrong, and driver then said, "You pay whatever you like", caller told driver "I'll pay you if you are charging me correctly", caller stated "don't do this to other people, and don't get aggressive, I'm just asking a question". Caller stated he got aggressive and it appears he was caught out doing the wrong thing, caller stated he then swiped his credit card 3 times stating the machine wasn't working, caller will be checking his statement to make sure he was only charged once. Caller would like feedback about this matter. 80The taxi number and driver authority number nominated by the complainant are not Mr Sanai's. But the passenger's receipt showed that the charge was recorded on terminal 41891900, the terminal that had been allocated to Mr Sanai on 13 February 2012 and was still held by him on 20 February 2012 (Attachment "A" to Ms Mikhael's witness statement, which I accept as accurate). When the passenger eventually provided that information (unfortunately, not until 15 March 2012), he also told the network officer he was "worried that the meter did not look like a regular taxi meter". More than two months later, on 21 May 2012, according to the log: Driver interviewed by phone. He states that depending on what side of George St you get picked up from can make a difference in the total fare. Driver states he is willing to refund $10.00 to keep customer happy but states that he has done nothing wrong. Complainant informed of outcome and cheque will be sent out. He also stated he believes the driver was charging him tariff 2 rates. 81Mr Sanai addressed the complaint at [11] of his second written statement, Exhibit A2: I have read the call centre record and log in relation to this incident, which was provided to me at the hearing on 22 August 2013. The call centre log identifies that the complainant caught a taxi on 20 February 2012 from 264 George Street Sydney to Hearn Street Leichhardt at 7.30 and that the driver number was 2589 and the taxi was 9875. This is not my driver authority number (AF2806) and is not my taxi rego (T7581). I do not recall this incident and I do not recall if I was contacted or the other taxi driver was contacted identified in the complaint log. I do not recall providing a refund for this matter. 82Pages 477-487 of the section 58 documents contain a GPS print-out of the location of T7581 on 20 and 21 February 2012. Exhibit A4, comprising three pages of print-outs from Google Maps apparently printed by Mr Sanai, seeks to establish, by reference to the GPS co-ordinates, the location of T7581 at around 7:30pm on 20 February 2012. Those Google Maps print-outs do appear to establish that Mr Sanai's taxi was on or near the Harbour Bridge, and then in Kirribilli, from about 7:31pm until about 7:37pm on 20 February 2012. The immediately preceding GPS fix, timed at 7:10:54pm on the same day, locates the taxi, on my calculation, in Cleveland Street, Redfern. 83Despite the positive identification of the terminal through which the payment for the trip was made, I cannot comfortably conclude that Mr Sanai was the driver in relation to the incident complained of. CFI 62098 - July 2011 84The complaint log, at page 13 of the supplementary section 58 documents, records the following: Last Friday 1/7/11 I took a cab from 17 Elizabeth Road to the Opera House and paid using my Cab Charge, it was declined. Cabcharge advised me today there was no reason for the card not to work. I then paid on my Amex card $27.31 We returned home after the show just after 9.30 from the exact drop off point to my daughters house, 17 Elizabeth Road and the fare was just $13.00 I have checked the regular cab fare calculator on the internet and the cost is just under $13.00. Please explain the huge difference in cost between identical cab rides. 85The log also notes that the driver "has done a refund of $14.00". 86Mr Sanai addresses the complaint at [14] of his second written statement, Exhibit A2: I do not recall the allegation or complaint. I have read the complaint log in relation to this incident which was provided to me at the hearing on 22 August 2013. From having read the complaint log it would appear that at the request of Taxi's Combined I have attended customer service and have refunded to the complainant $14.00. I did not do so as an admission of any wrongdoing but I did so to keep the complainant and Taxi's Combined happy. The complainant says that the fare should have only been $13.00 and he was charged $27.31. I do not know what time the fare is said to have occurred. It would appear that the complaint was made eight days after the journey. It is also unclear to me exactly where the journey commenced. The complainant says that the fare should only cost $13.00 because that is what he was charged on the way back but is also unclear where he caught that taxi from and where he actually went to. I deny that I would not have taken a cab charge card. There is no difference for me as to whether I am paid in cash, by cab charge or on another credit card. The fare estimate completed by Taxi's Combined suggests it was $17.00 plus tolls I do not know if that fare had any tolls because I do not know where it started from and I also do not know if the $17.00 includes GST and the additional charges for the use of the credit card. I note that that fare estimate exceeds what the complainant alleges he should have paid in any event. 87Admittedly the complaint log is brief. But Mr Sanai's statement contains an inadequate response to a complaint alleging a fare in one direction that is more than twice the fare on the return journey. And the reference to tolls is an attempt to muddy the waters. A taxi driver of Mr Sanai's experience should be well aware there would be no tolls on that journey. I am satisfied that this incident occurred as complained of. CFI 58172 - February 2011 88The complaint log, at page 20 of the supplementary section 58 documents, records the following: Caller complains taxi driver over charged his client. Caller states he board the taxi from Domestic Airport to Victoria rd, Gladesville and taxi driver charged him $95.07. Caller states he wants refund because this is too much. 89The log also notes: driver attended customer services, driver asked the pax which way and the pax was informed of the tolls and pax said yes, pax made no comment when charged the 95.07, however, when he entered work he was told too much, driver has refunded 25.00 in good faith, and still states the traffic on victoria is was very heavy. 90At [17] of his second witness statement Mr Sanai stated: I have read the complaint log in relation to this incident which was provided to me at the hearing on 22 August 2013. The complaint log identifies the complainant was a passenger of taxi T0852 and that alleges that I was the driver of that vehicle. The complaint log says that the caller (complainant) stated that the taxi driver's number was 541236 and the taxi number was T0852. That is not my taxi and I have not driven that taxi. My taxi number is T7581. I deny the allegation. 91It became clear, once the passenger provided the receipt for the journey, that the taxi registration number quoted was wrong. The receipt was issued from terminal 41841000, which, according to Ms Mikhael's evidence (which I accept), had been issued to Mr Sanai on 8 June 2010 and was held by him continuously until 13 February 2012. Page 493 of the section 58 documents confirms that Mr Sanai was logged on as driving T7581 on 23 February 2011, the date of the incident, and page 492 provides GPS information about T7581, including its location at Beaconsfield, within a short distance of the airport, at 8:50am and then at Gladesville at 9:30am. That appears to support a finding that Mr Sanai was the driver around the time the trip was undertaken. 92Unfortunately, I cannot be sure of the reliability of the GPS print-out. It shows the location of the taxi as Beaconsfield at 9:30:34 but as Gladesville - 15 kilometres away - just 14 seconds later. And RMS seems to have been somewhat uncertain about the timing of the trip. It sent a notice to the network, TCS, requiring a copy of login and GPS records for T852 (the taxi number originally identified) between 9pm and 10pm (not 9am and 10am). The records produced - for T7581, not T852 - show that Mr Sanai was logged off from 9:07pm onwards. So I can comfortably state that, if the complaint concerned an evening trip, and if the passenger was travelling in T7581, then Mr Sanai is probably in the clear. If it was a morning trip, the GPS record is quite inconclusive. And there is no explanation as to why RMS did not insist on the production of the GPS records for T852, as the notice required. 93Given Mr Sanai's denial of the allegation, and the fact that the records produced by TCS leave the matter in some doubt, I cannot be satisfied that Mr Sanai was involved in the incident complained of. CFI 52425 - August 2010 94The complaint log, at page 23 of the supplementary section 58 documents, records the following: Caller complains on 20/08/2010 at 1745 caught a taxi from Lavender Bay to Domestic Airport which costs $69.90 which she feels she has been over charged. Caller states she's used the taxi before going over the same distance and it is usually around $40. Caller states when she asked for an invoice from the driver the driver refused and just wrote the price on a business card. ... Caller also states the driver was very rude and did not help her with her luggage. 95The log also notes that the driver attended Customer Services and refunded $25.00. 96At [18] of his second witness statement Mr Sanai states: I do not recall this matter. I have read the complaint log in relation to this incident, which was provided to me at the hearing on 22 August 2013. I note the allegation is that the passenger was charged $61.90 when she says the usual charge is about $40.00. The price in the complaint log identifies [the fare estimate] as $47.00 plus tolls and also notes that it does not include any waiting time before departure or after arrival and or waiting time due to traffic congestion. It also does not include and or any cost for the use of credit card. The log indicates that I refunded $25.00 - this is more than what the customer had requested and appears substantially more than what the complaint log may have calculated that fare to be. I would not have refunded the money as an admission but I did not want to upset the customer or Taxi Combined Services. The record identifies the outcome of the complaint log as being "justified" however on 11 November 2010 "no action" was said to be recorded and the allegation was identified as "not justified". 97My reading of the complaint log indicates that the "not justified" outcome was recorded before the matter had been finalised. 98Mr Sanai's explanation refers to the passenger's allegation that the charge was $61.90. That is not correct; the passenger stated that the charge was $69.90. Mr Sanai's explanation claims that waiting time is not included in the fare estimate. That is not correct; the fare estimate includes 8.4 minutes of "en route waiting time". I consider Mr Sanai's response to the complaint to be inadequate, and an attempt to deflect attention away from what is alleged against him. 99I consider the complaint justified. CFI 50332 - April 2010 100The complaint log, at page 3 of the supplementary section 58 documents, records the following: On 16th April, I booked a taxi from North Sydney to King Street Wharf in the city. I often catch taxis to work and normally pay between $20-$25. On this occasion the driver charged me an outrageous $32.50. The driver claimed it was due to the traffic, however, as I often catch taxis in the morning around the same time (I have all my receipts) I know this statement to be false. 101At [20] of his second witness statement Mr Sanai stated: I have no recollection of this fare now. I note from the complaint log that the call centre contacted the driver who stated it was peak hour traffic. The time of the journey was said to be between 8.45 and 9.00am. This is during peak hour traffic. I have attended customer service and provided a refund of $7.50 and my meter was checked. My refunding of the $7.50 was not an admission by me of any wrongdoing or over charging but I agreed to do it so as to keep the customer happy. 102There is no fare estimate calculation included in the complaint log and as a result I have no objective measure against which to gauge the complaint. Mr Sanai is entitled to the benefit of the doubt in relation to this complaint. I regard it as not justified. CFI 12632 - February 2005 103The complaint log is at page 319 of the section 58 documents. It says: Complainant said that his wife was overcharged by this driver and the meter showed $63.60 at destination. Complainant said this is too much and he has never paid this much before. 104Although the trip occurred on 7 February 2005, Mr Sanai was not notified or asked about the complaint until 30 March 2005, seven weeks later. The network officer's report says: Driver interviewed by phone. He recalls the fare, the traffic was heavy and he charged by the meter only. I am unable to determine by GPS the time taken as it is stuck. Called complainant. He said his wife was taken a longer route. It is an overcharge. He is an ex taxi driver and operator and wants money back or he will sue the driver and taxi combined. Advised that the driver has refused a refund and he will have to do what he wants to do regarding sueing (sic). 105The network's conclusion that this complaint is "justified" is, in my view, difficult to support. I would not have upheld the complaint against Mr Sanai. Other issues addressed during the hearing 106During the hearing Mr Wozniak, for RMS, pointed out to Mr Sanai that over the years there had been five complaints against him alleging that he covered the "tariff" display on his meter. These complaints, the outcomes, and Mr Sanai's response to Mr Wozniak's questioning are: * 27219 - January 2000 (pages 137-139) - "black tape covering the T2 reading" - reprimand - Mr Sanai could not remember the incident; * 30733 - March 2001 (pages 147-151) - "no driver ID and the meter was covered with black electrical tape" - reprimand - Mr Sanai "did not cover the meter"; * 35134 - November 2002 (pages 230-236) - "Caller stated that he travelled the same route earlier. Caller stated that the metered fare was around $15. Caller stated that the taxi driver had the meter covered. Caller stated that the metered fare was $25.90" - suggested review of driver's fitness to hold a driver authority - Mr Sanai could not remember the incident; * 24343 - July 2006 (page 337) - "caller states that upon entering the taxi, the driver had the middle console raised blocking the view of the meter however caller could see that it was already on about $8.00 as he is quite tall. Caller states that upon reaching their destination, the driver told them the total fare and caller challenged him saying that he saw the meter had already been running and that he takes that route all the time and it is never even close to that amount ..." - contemporaneous log indicates "spoke to driver who said the meter was on $8 for waiting time as the passengers weren't out the front. The driver said the passenger paid him $9 less of the total fare" - "NOT justified" - Mr Sanai "did not block the meter"; * 81164 - February 2013 (pages 440-444) - dealt with above at [32]-[36] and found in Mr Sanai's favour. 107Mr Wozniak also asked Mr Sanai about the various complaints, not in the categories already discussed, that have been made against him during the time he has been driving taxis. There were very many instances of Mr Sanai being unable to remember the incidents - not surprising, perhaps, given that some of them occurred as far back as 1993, now over 20 years ago. Of some concern, though, is Mr Sanai's inability to remember various instances of RMS taking action against him in response to some of these complaints - for example: * A notice to show cause, in January 1995, after six complaints of overcharging (page 25); * A reprimand and placement into remedial training, in October 1999 (page 95); * A second notice to show cause, in January 2002 (page 183); * Six-month probation and conditions on his driver authority, in April 2002 (page 221); * Training in Module 3 (Rules and Regulations) and Module 4 (Customer Care) in April 2002 (page 224). 108Mr Sanai was also unable to recall receiving a Penalty Notice, and a fine of $150, in August 2010 for failing to display his driver authority (page 393). 109Other significant events in Mr Sanai's history are: * In March 2009 Mr Sanai was placed on 12-month probation and additional conditions were imposed on his driver authority (page 380); * In June 2010 Mr Sanai received a Penalty Notice, and a $150 fine, for leaving his cab unattended at a taxi rank (page 392). 110Finally, I note that Mr Sanai has not always complied with clause 44 of the Passenger Transport Regulation 2007 by notifying RMS that he has received penalty notices relating to his driving. Overall assessment of Mr Sanai's performance as a taxi driver 111My detailed examination of Mr Sanai's file indicates that, while his performance as a taxi driver is not perfect, it is not as bad as his complaint history suggests. I have upheld only one of the complaints made against him since he attended Taxi Driver Remedial Training in July 2012. Moreover, he does not appear to have attracted any further passenger complaints since March 2013. 112In summary, Mr Sanai's file shows: * an accumulation of complaints up to early 2012 which did not, in the view of the regulator, warrant cancellation of Mr Sanai's taxi driver authority; and * six passenger complaints since July 2012, only one of which I have upheld. 113The upheld complaint, 81458, fail to take the most direct route, is an example of Mr Sanai not having displayed best practice as a taxi driver. There is no good reason for him not to have said to the passenger "O'Riordan Street looks busy. Would you prefer me to take Southern Cross Drive?" I do not understand why a taxi driver with his level of experience would not do something like that. 114Although I am not persuaded, on the material before me, that many of the other complaints against him are justified, nevertheless I am concerned about the sheer number of complaints that Mr Sanai has attracted. Even accepting that some of the complaints may have been embellished, or that the complainant's own behaviour may have been scrubbed clean, there is a reason for the dissatisfaction. The reality is that Mr Sanai has not always been able to perform as a taxi driver to the standard required by some members of the travelling public. 115But having said that, the shortcomings in Mr Sanai's performance do not justify cancellation of his taxi driver authority. It is more appropriate that he be required to undertake further retraining, in two areas. One of those areas is Customer Care. Mr Sanai needs to approach his obligations to his passengers with a different mindset - one that places the passenger at the forefront of his thinking. That may require him to demonstrate a level of humility towards his passengers that has perhaps been lacking on some occasions in the past. He also needs to be more transparent with them - particularly, for example, by discussing with them the route that he proposes to take or, even better, asking them which route they would like him to take. 116The second area in which he needs a refresher is the area that highlights for him what are his legal obligations as a taxi driver - including, for example, the obligation to display his driver authority at all times, and the obligation to notify RMS about any alleged offences or traffic penalty notices. Mr Sanai needs to have these obligations reinforced since he has demonstrated ignorance of the requirements. 117In all the circumstances I consider that Mr Sanai's taxi driver authority should be suspended until he provides evidence acceptable to RMS that he has satisfactorily completed two retraining courses of the kinds that I have nominated. 118I also recommend that future complaints against Mr Sanai (if any) be referred immediately to RMS for thorough and timely investigation, with a proper opportunity provided to Mr Sanai to address the complaint and provide his version of events. If the circumstances are considered to warrant further suspension or cancellation of his driver authority, then RMS must gather proper evidence for presentation, if necessary, to the Tribunal for independent review of the decision. Decision 119The decision to cancel Mr Sanai's taxi driver authority is set aside. Instead his driver authority is suspended until he satisfactorily completes retraining in both customer care, and the legal obligations of a taxi driver. ********** 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: 29 April 2014