Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh v Roads and Maritime Services [2014] NSWCATOD 78 Hearing dates: 7 July 2014 Decision date: 21 July 2014 Jurisdiction: Occupational Division Before: Naida Isenberg, Senior Member Decision: The decision under review is set aside Catchwords: Taxi driver - domestic violence - good behaviour bond - fit and proper person Legislation Cited: Passenger Transport Act 1990 Passenger Transport Regulation 2007 Administrative Decisions Review Act 1997 Crimes (Sentencing Procedure) Act 1999 Category: Principal judgment Parties: Jagvinder Singh (Applicant) Roads and Maritime Services (Respondent) Representation: J Singh (Applicant in person) Wozniak, solicitor (Respondent) File Number(s): 1420162 reasons for decision Background 1In August 2012 the applicant was charged common assault and assault occasioning actual bodily harm against members of his family. He pleaded guilty and on 12 November 2012 and received a sentence of bond under s. 9 of the Crimes (Sentencing Procedure) Act 1999 - a good behaviour bond - for three years and a suspended sentence under s.12 of that Act. As part of his bond conditions he was required to have mental health monitoring, and to take medication and undergo counselling for anger management. He appealed to the District Court against the severity of the sentence and on 1 February 2013 the appeal was dismissed, but the order was varied to s.9 bonds. Apprehended violence orders which had been made by the Local Court were revoked. 2The Respondent formed the view that the applicant was 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 sought review of that decision and that matter came for hearing before JM Huntsman on 17 June 2013 and delivered an ex tempore decision that day, affirming the decision under review. 3The applicant, no doubt encouraged by some aspects of the decision, arranged a psychologist's report upon which he sought to rely when he appealed to the Appeal Panel. On 28 November 2013 his appeal was dismissed as he was unable to identify a question of law. 4The applicant sought reinstatement of his authority but his application was refused. The Respondent remained of the view that the applicant is not a fit and proper person to hold a public passenger driver authority. The applicant seeks review of that decision. The relevant legislation 5The relevant legislation for the purposes of this application for review is the Passenger Transport Act 1990 ('the Act'). 6The purpose of authorisation, referred to in that section, is set out 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. Evidence 7The applicant gave evidence that he has held a taxi driving authority for 14 years and that in that time he has not been the subject of a single complaint. This evidence was unchallenged. 8The applicant gave evidence in relation to matters that gave rise to the charges and this is discussed in more detail below. He said that his family life is now harmonious and he has no complaints about his children, who are now aged 20 and 15. He said that they had all holidayed together on the Gold Coast last Christmas and he had taught his son to drive - supervising him for the entire required time as a learner, other than for one professional lesson. They all live in the same home and the children contribute to the household chores. 9The applicant provided a letter signed by both his wife and his elder son, who had both been the victims in the charges against him. They wrote of the applicant's change in "moral rectitude". He has been supportive of his son in his studies. They wrote that what had taken place in the house has now been solved and the family has begun to live a happy, peaceful and productive family life under one roof. 10The applicant also provided a reference from Mr G Scott, who is the operations manager of the company for which the applicant works. Mr Scott wrote a very positive reference about the applicant and that he was aware of "issues" the applicant had had with his family. He wrote of the applicant's remorse, and his belief that what had occurred was a "one-off". The applicant agreed in cross-examination that he had not told Mr Scott that he had punched his son or threatened to kill his wife. He said though that Mr Scott knew he had no history of violence in the workplace. 11A reference was also supplied by Mr S Green, the managing director of the company, which appears to have been generated in support of the applicant's sentencing at the Local Court. It too was very positive and wrote of that the applicant's then "circumstances were totally out of character". While he was not asked about Mr Green's knowledge of the incidents, it is unlikely that he would have been aware of the detail if Mr Scott, who worked more closely with the applicant and had been to his home, did not. For that reason I place little weight on the references provided by Mr Scott and Mr Green, but I do accept that there is no history of violence in the workplace. 12The General Secretary of the Sikh Association, Mr J S Thind wrote a reference which also appears to have been generated in support of the applicant's sentencing at the Local Court. Mr Thind wrote that the applicant was regularly involved in community welfare work at the Sikh Centre. He wrote that the applicant had informed him of his "current family circumstances" which he regarded as out of character. 13The applicant provided a letter from the Probation and Parole Service to the effect that from 27 May 2013, he was no longer required to report to the service, notwithstanding his bond remained in place until 11 November 2015. 14He also provided a letter from his treating psychologist, Peter Khnana. Mr Khnana wrote that the applicant had completed 12 sessions for depression and anger problems within his family unit. He wrote that the applicant never displayed "any chance of aggression or harm to his customers as a taxi driver or the public". His depression and anger problems because of his family are no longer a problem because they have been resolved. ISSUE 15Is the applicant a fit and proper person to hold a taxi driver's authority? CONSIDERATION 16The applicant's version of the events which gave rise to the charges significantly differed from that in the facts sheets in the Local Court, which were in the material before me. He denied that the events had occurred as recorded and said he pleaded guilty, possibly on legal advice, because he understood that if he pleaded guilty he would receive only a good behaviour bond. He would concede only that he 'got a bit upset' and had slapped his son. The facts sheets record quite serious offences, particularly in relation to the assault occasioning actual bodily harm on his son. The son's statement to police was not available to me but, in all likelihood, the facts sheet in respect of that offence was based on his statement. The applicant said in relation to the alleged threats to kill his wife, that he had never previously been violent towards her. I prefer the account in the facts sheets. Like JM Huntsman, I find that the charges were serious ones, and are no less serious because they occurred in the home. 17The papers contained a treatment plan - prepared by Mr Khnana after having had 3 sessions with the applicant - which referred to family arguments leading up to the events which gave rise to the charges. The applicant's reported motivation behind the assault was said to relate to his cultural upbringing. The applicant's evidence before me was also to that effect - that young people were disrespectful and needed to learn to respect their elders. His son was on 'the wrong track'; he swore at his father, the applicant; he had received a fine for fare evasion, and to compound the problem, hid it from his parents. The applicant felt it was his duty to teach children respect but now considers his method of teaching to have been wrong; he should not raise his voice to, or slap, his son. His evidence before me suggested a degree of frustration at the time, but his response was an unacceptable one. I do not know how matters have resolved as the applicant, his wife and son, and the psychologist all said is the current situation; presumably the anger management counselling had some benefits. The family members now talk through issues as they arise and the applicant acknowledges that things are different to how he was brought up. He denied that his family was afraid of him, and there was no evidence that there had been any intimidation to secure the letter from his wife and son. 18The respondent's solicitor suggested that I should consider what has changed since the Appeal Panel's decision of 28 November 2013. I do not consider that this is the appropriate question for the Tribunal; neither, is it that the Tribunal should evaluate what has changed since JM Huntsman's decision of 17 June 2013. Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. What I am being asked is to attest to is the fitness and propriety of the applicant at the present time. 19In 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: -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. 20I have adopted the approach in Saadieh. The applicant has been convicted of serious offences. The applicant's driving record shows a number of offences, but in my view, is unremarkable. The applicant's reputation in the community appears to be a solid one, based on the reference from the Sikh Association. There is no history of violence in the workplace. 21The crux of the matter, it seemed to me, is the consideration of the likelihood that the applicant will re-offend. In Director General Transport New South Wales v AIC General Division 2011 NSWADTAP 65 noted the objects of the Act for safe passenger services and that the view of the public is a relevant matter in assessing fitness and propriety. The Respondent referred to Singh v Director General, Department of Transport [1999] NSWADT 96 where DP Hennessy said that passengers would object to the applicant in that matter as the driver of their taxi knowing of his criminal record. However, each matter turns on its own facts. In that regard, I observe that none of the offences occurred in the context of the applicant's taxi driving and in fact he has had not a single complaint about his taxi driving in the years he has been driving. I note that he has been discharged from supervision by the Probation and Parole Service, notwithstanding he is still subject to the terms of the good behaviour bond for another nearly 18 months. He has already completed about half of his bond period, apparently without incident. At the time he was before JM Huntsman he was only about 6 months into his bond period, and had undertaken only limited counselling and treatment for his anger management. These were matters to which JM Huntsman appeared to attach some weight. 22JM Huntsman referred to Lloyd v Director General Department of Transport 2001 NSWADT 201 where there was no current psychiatric report. Unlike JM Huntsman, I had before me the report from the treating psychologist which indicated that from his observation there no chance of aggression or harm to the applicant's customers as a taxi driver or the public. The applicant's depression and anger problems were because of family issues and these problems have been resolved. That was the evidence of both the applicant and, more importantly, his treating psychologist. I also accept that the applicant has the support of his family at the current time despite the conviction for the offences which involve violence towards members of his family. 23After weighing the relevant considerations, and in light of all the evidence, I am prepared to attest to the applicant is a fit and proper person to hold a taxi driver's authority. DECISION 24The decision under review is therefore set aside. ********** 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: 21 July 2014