Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Babikir v Roads and Maritime Services [2014] NSWCATOD 61 Hearing dates: 28 April 2014 Decision date: 11 June 2014 Jurisdiction: Occupational Division Before: N Isenberg - Senior Member Decision: The decision under review is affirmed Catchwords: Taxi driver Legislation Cited: Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: Howell v Macquarie University [2008] NSWCA 26 Jones v Dunkel [1959] HCA 8 Manly Council v Byrne [2004] NSWCA 123 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 Miah v Roads and Maritime Services [2013] NSWADT 264 Naveed v Roads and Maritime Services [2014] NSWCATOD 4 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Loye v Director General, Department of Transport [2000] NSWADT 145 Saifi v Roads and Maritime Services [2014] NSWCATOD 24 Category: Principal judgment Parties: Eltag Babikir (Applicant) Roads and Maritime Services (Respondent) Representation: Counsel D Williams (Applicant) Kheir Lawyers (Applicant) Smythe Wozniak (Respondent) File Number(s): 1420050 reasons for decision 1The Respondent formed the view that the applicant, Eltag Babikir, is not a fit and proper person with sufficient responsibility and aptitude to hold a taxi-cab authority. Accordingly it decided to cancel the applicant's taxi driver authority. The applicant seeks review of that decision. The relevant legislation 2The relevant legislation for the purposes of this application for review is the Passenger Transport Act 1990 ('the Act'). 3Section 33F of the Act provides as follows: Having regard to the purpose of authorisation under this Division, [the Respondent] may at any time vary, suspend or cancel any person's authority under this Division. 4The purpose of authorisation, referred to in that section, is exposed in s.33(3) of the Act in the following terms: (3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom. 5This case turns on the question whether Mr Babikir meets the standards set out in paragraphs (a) and (b) of s.33. Background to the cancellation decision 6It was alleged that: * at 1.17am on 10 February 2013, Mr Babikir was the driver of taxi-cab T1995 ('the taxi') when it exceeded the speed limit over 10km/h at the intersection of Parramatta Road and Sloane Street at Haberfield. The offence was detected by a fixed traffic camera at the location. As a result, a penalty notice was issued in relation to the offence ('the speeding offence'). * at 4.41am on 17 February 2013, Mr Babikir was the driver of the taxi when it proceeded through a red traffic control light at the intersection of Bourke Street and Botany Road at Zetland. The offence was detected by a fixed traffic camera at the location and a penalty notice was issued in relation to the offence ('the red light offence'). * Mr Babikir completed 2 statutory declarations giving notice to the SDRO that the person responsible for the offences as stated in the above penalty notices was Mr M, who he named in full and whose address he provided. An RMS Driver Check revealed that Mr M does not hold a NSW Drivers Licence, nor does he hold (and has never held) a Driver Authority. The Respondent considered the statutory declarations to be false. 7TCS was provided a 46M Notice requiring information pertaining to driver and meter records for the taxi for the dates of the offences. The records indicate that Mr Babikir was the driver of the taxi at the times stated on the 2 penalty notices. 8On 20 September 2013, Mr Babikir participated in an interview with compliance officers. He said he was driving the taxi on 17 February 2013, but was unsure if he was driving the taxi on 10 February 2013. 9In relation to speeding offence, he stated: * that the taxi was backfiring and he called Mr M to come and assist him. * he believes Mr M is a mechanic although he was not aware if he was a qualified mechanic. * Mr M met him in 'somewhere in Ashfield'. * Mr M was 'testing' the taxi and took it for a drive from where they met in Ashfield. * Mr M took the taxi for a drive alone and returned to where Mr Babikir was waiting. * Mr M told him that he had gone through a camera when he returned with the taxi. * the length of time from the time that Mr M took the taxi for a drive was approximately 10 minutes. 10In relation to the red light offence, he stated: * he was driving the taxi at the time of the traffic offence. * he did not go through red traffic control light (right arrow) because he drove straight ahead and that traffic light was green. * he might have bumped the meter button and that was why taxi activity report indicated 'meter on'. 11He said he nominated Mr M on both statutory declarations because he didn't realise at the time that there were 2 separate traffic offences and believed that they related to the same offence. 12A check of GPS co-ordinates in the Taxi Activity Report for the taxi was conducted with respect to both 10 February and 17 February 2013. Records showed that for one hour before and one hour after the time of the speeding offence that the taxi was not stopped in the Ashfield area at all. In addition, Mr Babikir stated that Mr M drove the taxi from the location where they met up with each other and Mr Babikir stayed at that location while Mr M took the taxi for a drive. Mr Babikir stated that Mr M returned to that location after about 10 minutes. The GPS co-ordinates for the taxi on that date do not indicate that it was in the Ashfield area for a time period of approximately 10 minutes. In addition, those records do not indicate that the vehicle was driven from a location in the Ashfield area and returned to that location as described by Mr Babikir. 13The GPS co-ordinates in the Taxi Activity Report for 17 February 2013 indicated that the taxi did not turn onto Bourke Road and continued straight through the intersection into O'Riordan Street, despite being in a right turn lane and driving contrary to the road markings. Mr Babikir claimed that he did not proceed through a Red Traffic Control Signal because he didn't travel in that direction. However, on his version, he conceded he had driven the taxi contrary to the road markings for the lane in which he was driving, which is a different offence. Evidence 14At the hearing the applicant gave evidence broadly consistent with his account to the compliance officers, although he agreed in relation to the red light offence that he agreed that he did go through the red light, but he was going straight ahead, and was not turning as was alleged. He conceded in cross-examination that had he admitted at the time that he had gone through the red light, the consequential loss of demerit points would have caused him to lose his licence. 15He said in relation to the speeding offence that the taxi had been backfiring for most of the shift and that passengers were complaining. He did not contact the operator because minor issues, such as changing a tyre are the responsibility of the driver. He was only to call the operator if the taxi actually broke down. 16In cross-examination he said that Mr M had spend about 10 minutes looking at the car, then drove it for about 10 minutes and then there was another period when he returned when he showed the applicant what to do in future if there was another problem. The applicant was taken to his daily worksheet for the shift of 10 February 2013. He conceded that he had not recorded any period when the taxi was off the road for 30 minutes or more, as he was obliged to if the taxi was off the road. He said though, that this was only to be completed if the taxi had broken down. He did not regard the backfiring as something he should report because the taxi did not actually break down. Notwithstanding, on his evidence, that he needed to phone Mr M, a mechanic, he considered the taxi to be driveable for the whole shift. He also did not record any fault with the taxi but said that was because he did not know if that was actually a 'fault' because it was only minor. He said he had called Mr M so he could show him what to do in future if the taxi backfired. 17His evidence was that he has been unable to contact Mr M. 18The applicant said that Mr M had told him on his return from the test drive that he would pay the speeding fine. When the applicant received the penalty notice he sent it to Mr M, and filled out the statutory declaration nominating Mr M as the driver. He said that at the time he completed the statutory declarations he did not realise they related to 2 separate incidents. He thought the second penalty notice was also for the speeding offence and for that reason again completed the statutory declaration nominating Mr M as the driver. He said the first statutory declaration, which referred only to the penalty notice number, was returned to him because it contained a technical error and he then returned it, properly completed. No earlier version was produced. He agreed in cross-examination that each statutory declaration form accompanied the relevant penalty notice which contained the details of the offence. 19The applicant tendered a letter from the OSR dated 26 July 2013 which referred to 2 penalty notices. He claimed that was the first he was aware that there were 2 separate driving offences. 20The applicant could not recall the extent of his various traffic offences, but his counsel conceded that there had been a number of offences. The applicant acknowledged that his licence had, at one stage, been suspended for 3, then 6 months because of the accumulation of demerit points. Should the applicant's driver authority and accreditation be cancelled? 21Firstly, I need to decide if I am reasonably satisfied that Mr M was the driver of the taxi at the time of the speeding offence. If so, then the statutory declaration to that effect is accurate. 22The applicant's evidence was that after Mr M arrived he spent 10 minutes trying to fix the taxi and then took it for a drive for another 10 minutes. This account is not borne out by the GPS records, which did not show that the taxi was not stationary for any 10 minute period in the Ashfield area shortly before the time of the speeding offence. In addition, the applicant's account was that Mr M drove the taxi away, returning after about 10 minutes, but the GPS co-ordinates for the taxi on that date do not indicate that it was in the Ashfield area for that period of time. The records do not indicate that the vehicle was driven from a location in the Ashfield area and returned to that location as described by Mr Babikir. 23For these reasons, I do not accept that Mr M was the driver of the taxi at the time of the speeding offence, as the applicant claimed. In coming to this view I also note that the applicant knew his driver's licence was in jeopardy because of the accumulation of points and he had previously had his licence suspended for this reason. Further, notwithstanding that the applicant claimed the taxi was malfunctioning and off the road for at least 20 minutes and required the intervention of a mechanic, he took no steps to bring that problem to the attention of the operator. 24My view may have been different had I had the benefit of hearing from Mr M. Mr M was not called to give evidence, neither did he provide any form of statement. There was no evidence as to what enquiries had been made to locate him, nor when the applicant had last been in contact with him. In Howell v Macquarie University [2008] NSWCA 26 the Court of Appeal specifically noted that the principle of Jones v Dunkel [1959] HCA 8 applies to the Tribunal. It referred to its decision in Manly Council v Byrne [2004] NSWCA 123 at [51] about the inferences that can be drawn from the failure to call a relevant witness: Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn. 25Whether either or both of the inferences are actually drawn is part of the task of weighing the evidence. In this matter, the absence of evidence from Mr M is relevant in respect of the speeding offence. More importantly, it weighs heavily against the applicant in respect of the statutory declarations. 26Having come to my view that Mr M was not the driver of the taxi at the time of the speeding offence, I must also find that the applicant provided a false statutory declaration to the OSR. 27In Miah v Roads and Maritime Services [2013] NSWADT 264 the Tribunal observed that in this State, making a false declaration for a material benefit is a serious offence and that under s 25A of the Oaths Act 1900, conviction on indictment can lead to imprisonment for up to seven years. The Tribunal referred to R v Einfeld [2009] NSWSC 119 where a former Federal Court judge was sentenced to three years' imprisonment for offences arising out of an attempt to avoid traffic points following a speeding charge. In this case also the offence related directly to driving and the applicant's driving record. 28Even if I were wrong and Mr M was in fact driving the taxi at the time of the speeding offence, I reject the applicant's explanation about having erroneously claimed Mr M to have been the driver at the time of the red light offence in the second statutory declaration. I accept that the statutory declarations refer only to the penalty notice number and do not, on their face, refer to the details of the offence to which they relate. However, the applicant conceded that when he received each statutory declaration form it was accompanied by the relevant penalty notice which contained the details of the offence. The applicant gave evidence of having studied at TAFE and he gave articulate evidence. I reject his counsel's suggestion that he may have been confused by the forms as he was not familiar with Australian paperwork. In my view, it was clear that it should have been clear to the applicant that there were 2 separate offences. In those circumstances, I find that, the applicant's statutory declaration in relation to the red light offence was false. 29Recently, in Naveed v Roads and Maritime Services [2014] NSWCATOD 4, the Tribunal was of the view that Mr Naveed's actions in swearing three false statutory declarations nominating a driver other than himself should be taken seriously for the following reasons: * His actions reflect badly on his honesty, which is a fundamental consideration when determining whether a person is fit and proper; * The offences in question relate directly to his driving and driving record, which is of importance given that a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 * As a result of Mr Naveed's actions in blaming other people for three of his traffic offences, a false and misleading picture has been given of his driving record. 30I agree with the submission of the Respondent, who referred to my recent decision in Saifi v Roads and Maritime Services [2014] NSWCATOD 24, in that the fact that Mr Babikir falsely nominated another person as the driver of the taxi at the time of the offence by providing at least one statutory declaration to the OSR, casts doubts as to whether he is a fit and proper person to drive a taxi-cab. Honesty is central to any consideration of whether someone is a fit and proper person and there is a community expectation that taxi drivers will not only provide safe, reliable and clean public passenger services but the community also expects honesty from taxi drivers. 31In Saadieh v Director General, Department of Transport [1999] NSWADT 68 at [17] the Tribunal's Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority: 17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: a) the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; b) the nature, seriousness and frequency of any complaints made against the applicant; c) the applicant's driving record; d) the applicant's reputation in the community; and e) the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 32The applicant gave evidence, which I accept, to the effect that he is a hard-working family man. I was informed that the applicant has held a taxi driver authority since 2006. Since obtaining his driver authority he has been the subject of numerous traffic offences, and has received many demerit points and his driver's licence was suspended. 33I have taken into account the references provided by the applicant to the respondent. All were identical in content. While the referees wrote of the applicant being a person of good character the referees did not refer to the matter presently before the Tribunal. There was no evidence that the various referees were aware of the purpose for which they were expressing their opinion as to the applicant's character. Accordingly I attach little weight to those references: Loye v Director General, Department of Transport [2000] NSWADT 145. 34After weighing the relevant considerations, and in light of all the evidence, I am unable to attest to the applicant's suitability and fitness to hold a taxi driver's authority at the present time. As I have determined that, at this stage, Mr Babikir is not a fit and proper person to hold an authority, it is not necessary to consider the other attributes for authority. DECISION 35The decision under review is therefore affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 June 2014