Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Uddin v Roads and Maritime Services [2014] NSWCATOD 104 Hearing dates: 25th of July 2014 and 8th September 2014 Decision date: 08 September 2014 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: 1. The decision of the Respondent to cancel Mr Uddin's driver authority is affirmed Catchwords: Fit and proper person, good repute Legislation Cited: Administrative Decisions Review Act 1997 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Lal v Director-General, Department of Transport [2001] NSWADT 74 Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 Category: Principal judgment Parties: Md Iftekhar Uddin (Applicant) Roads and Maritime Services (Respondent) Representation: Uddin (Applicant in person) Smythe Wozniak Legal (Respondent) File Number(s): 1420140 reasons for decision 1This is an application for review lodged by Mr Uddin of the decision made on 21 March 2014 by the Respondent to cancel his driver authority. 2The Respondent had made the decision on the basis that Mr Uddin had accumulated 43 demerit points on his driver's licence for traffic offences. He had continued to drive taxicabs and private hire vehicles whilst his driver's licence and driver authority were suspended. The Respondent contended that this raised substantial doubt that he was a fit and proper person with sufficient aptitude to drive a public passenger vehicle according to law and custom as required by law. 3On 21st of March 2014 Mr Uddin lodged this application in NCAT (the tribunal). He obtained a stay of the decision on 26 March 2014. 4He had not obtained an internal review decision when he lodged his application for review. The tribunal exercised its power to deal with his application for review of the Respondent's decision of 21 March 2014 without Mr Uddin having made a prior internal review decision. Background 5Mr Uddin first obtained his driver's licence in New South Wales in August 1998. He then obtained a driver authority to enable him to drive public passenger vehicles on 10 December 2002. Since that time he has been both a taxi cab driver and a hire car driver. He has been suspended from driving on three occasion because of demerit points. He has been suspended once for defaulting on payment of a fine. 6During one such period of suspension of his driver's licence from November 2010 to August 2011 the Respondent alleges that Mr Uddin continued to drive public passenger vehicles. During this time he attracted three complaints from passengers travelling with him and two traffic offences. This added up to a further 6 demerit points. Mr Uddin denies having driven in the period of being suspended and says he drove once only in August 2010 when taking his mother who was very unwell to hospital. 7In August 2010 Mr Uddin was investigated for driving a taxicab without a driver authority. During the investigation by RMS he admitted to knowing that his driver authority had been suspended. He received a penalty notice for driving without a driver authority. 8On 21 April 2012 Mr Uddin received a traffic record warning that he was in danger of having his licence suspended because of his record. 9On 23 August 2012 he was stopped at Sydney airport by RMS authorities and was then convicted of touting and soliciting in the courts on 4 November 2013. Mr Uddin says that he pleaded guilty to this matter only to avoid further costs. 10On 30 April 2013 Mr Uddin's driver's licence was suspended on account of demerit points until 29 July 2013. The Respondent says that during the time of this suspension Mr Uddin continued to drive. 11On 19 November 2013 he was stopped while driving a private hire vehicle at Sydney airport and told that he was suspended by RMS authorities. He surrendered his authority at this time. On 25 November 2013 he participated in a file review with RMS authorities. RMS recorded that he had no explanations for the large number of infringements on his record at that time other than "bad luck". 12On 22nd of January 2014 the RMS issued Mr Uddin with a notice to show cause why his driver authority should not be cancelled as a result of his multiple infringements, demerit points and driving while his authority was suspended. 13When the matter came to hearing the Respondent alleged that after Mr Uddin had obtained a stay of its decision to cancel his driver authority Mr Uddin had been stopped again at Sydney airport for plying on 9 June 2014. The hearing on 25 July 2014 was then adjourned with Mr Uddin's consent to enable the Respondent to provide statements from RMS compliance officers about the matter at the Airport on 9th June 2014. The statements were provided to the tribunal on resumption of hearing on 8 September 2014. Relevant legislation 14Passenger Transport Act 1990 Section 33 of the Passenger Transport Act 1990 (PT Act) provides as follows in relation to authorities to drive taxi cabs: 33. Authorities (1) RMS may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units. (3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom. (4)........... (5) ............ 15Section 33F of the PT Act states that "Having regard to the purpose of an authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division". 16Section 40 which deals with authorities to drive private hire car authorities is identical with section 33 in relation to the hire car driver being of good repute and a fit and proper person and in having sufficient responsibility and aptitude to drive in accordance with the conditions and law and custom. 17Section 40 E provides for the cancellation of hire car authorities. Role of the Tribunal on Review 18The Tribunal's jurisdiction to hear and determine this application for review is found in section 52 of the Passenger Transport Act 1990 and section 63 of the Administrative Decisions Review Act 1997. The authorities accept that the Tribunal's review is for the purpose of determining the correct and preferable decision by way of a merits review. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at paragraphs 10, 11 and 12. 19The Tribunal may take into account new information put before it on review. See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. 20The Tribunal may affirm, vary, set aside and make a substitute decision or set aside the decision and remit it to the administrator. Issue for Tribunal 21The issue in these proceedings is whether Mr Uddin is of good repute and in all other respects a fit and proper person to drive a taxicab or a hire car, and has the requisite responsibility and aptitude to do so as set out in sections 33 and 40 of the PTA. Evidence and submissions of Mr Uddin 22 Mr Uddin gave evidence that he depended on his driver authority in order to support his family in Australia and also his retired parents overseas. He denied having driven while his authority was suspended in 2010 to 2011. However he conceded that the section 58 documents showed that he had logged on many times during that time as a driver. 23He said that in May 2013 he had gone overseas and had not received the advice from the RMS that his driver's licence and driver authority were suspended. He produced passport documents to demonstrate this. However he conceded that in the transcript of interview with RMS in November 2013 he had told the RMS officers that he had forgotten to take his authority into the RMS prior to going overseas. 24On the second day of hearing the RMS presented information indicating that on 9th June 2014 while Mr Uddin had been on a stay leading up to the hearing, two new matters of concern had arisen. 25The first set of allegations was that Mr Uddin was detected at Sydney Airport "plying". He was asked at the terminal by an officer what he was doing. He said he had been booked by a client. He provided the name of a client which was the same as that of another driver's client. The other driver told the compliance officer that Mr Uddin had asked him the name of his client while they were standing waiting. When Mr Uddin was approached by the compliance officer he was unable to provide evidence of a booking and he left the airport. He was issued with an infringement notice. Mr Uddin's evidence about the matter was confusing. He told the tribunal that he had received a booking from 'Ruby Singh' but at the time had been unable to show the compliance officer the message on his phone from Ruby Singh. Mr Uddin allegedly said to the compliance officer at the airport words to the effect of "you know how hard it is at the moment." 26He had paid the infringement - an amount of $750. Payment of an infringement does not mean that the person is guilty of the infringement. Mr Uddin did admit during the course of his evidence to being guilty of the "plying" matter 27Also on 9 June 2014 while the stay was in place Mr Uddin received an infringement notice for failing to stop at a stop sign. He told the tribunal that he had not stopped but that he had looked, there were no cars coming and that it was quite safe for him to proceed 28In his submissions Mr Uddin said that the statistics showed that there were three times more cameras on the road and they were there for revenue raising. It also made it more likely that a person like himself who covered 1500 kilometres a week in his job was more likely to be detected and receive infringement notices. This was unfair and should be taken into account by the tribunal in his favour. 29Mr Uddin also presented evidence that he had completed the Traffic Offenders program on his own initiative. He said he had found it very useful. It gave him a lot of information about road rules and the dangers associated with breaching road rules. He said that it had been more than one year since he had received any sort of infringement notices when the two matters occurred on the 9th of June 2004. This demonstrated that he had improved his driving and his approach to the road rules. He said he had never had any major accident or major offences. 30He said he had made mistakes on the road. He was under family pressure. He was always trying to help people. On one occasion he had a woman in his cab who was going to hospital and he was trying to get her there quickly. He would try to get to jobs on time even though traffic in Sydney is very heavy. The Respondent's submissions 31The Respondent noted that by the time of hearing Mr Uddin had collected 53 demerit points. He had been subject to suspensions and had driven contrary to these suspensions in 2010 and 2013. He had attracted significant fines of thousands of dollars however these had not changed his behaviour as a taxi driver or hire car driver. He had continued to offend during the stay period by plying for work at the airport. 32He had been dishonest with the regulator and deceptive in continuing to drive taxis and hire cars when he knew his driver authority was suspended. He had demonstrated clearly that he was dishonest and therefore is not a fit and proper person to hold a driver authority. Findings of fact 33The tribunal accepts the RMS's submission that by the time of hearing Mr Uddin was subject to 53 demerit points. He had been suspended because of demerit points. He had received warning letters about his demerit points and he had been suspended as a result of fine default. He has been subject to significant fines for touting, soliciting and plying at the airport. 34 His evidence was confusing. Although he said he had not received letters in relation to suspensions, Mr Uddin later conceded that he had told the RMS officers that he had forgotten to hand in his authority card prior to going overseas in May 2013. He also said that he had only driven once during a 2010 to 2011 suspension but was then presented with his logon records that showed he had driven many times during this time. Findings on the Law and Evidence 35The issue in this case is whether the decision to cancel Mr Uddin's authority to drive public passenger vehicles was the correct and preferable one, having regard to whether Mr Uddin is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a public passenger vehicle. 36Fitness and propriety was defined in the matter of Hughes & Vale in the High Court as having 3 components -"honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9. 37In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": "In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 38Determining whether a person meets the requirement of being fit and proper is the role of the decision maker. The term "fit and proper person" was discussed by Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63]. The Chief Justice said that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 39This tribunal's synthesis of these requirements in this matter is that an Applicant's fitness and propriety must be determined in the light of the role the Applicant is to undertake. The Tribunal must consider the evidence before it about the Applicant's honesty, knowledge and ability as it relates to the specific role. It is a determination to be made by the decision maker taking into account and weighing up matters both contrary to and in favour of the Applicant. 40In the matter of Saadieh, Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal built on the principles set out in Bond's case and set out the following factors to be considered by the decision maker in determining a person's suitability and fitness to hold a taxi-cab authority: * the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; * the nature, seriousness and frequency of any complaints made against the applicant; * the applicant's driving record; * the applicant's reputation in the community; and * The likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 41In assessing the last factor, the following considerations are relevant: * the length of time since the offences were committed and the circumstances in which they were committed; * whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; * the efforts the applicant has made to rehabilitate himself or herself during that time; * any change in the applicant's circumstances such as increased support from friends, family or professional service providers. 42The Tribunal's analysis of these factors in Mr Uddin's case is as follows. Mr Uddin's actions should be taken seriously as they reflect badly on his honesty, which is a fundamental consideration when determining whether a person is fit and proper. The dishonesty in driving while suspended relates directly to Mr Uddin's role as a public passenger vehicle driver and his relationship with the regulatory authority. 43Further, the infringements relate directly to his driving and driving record. This is significant given that a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. See Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 44In determining this Application to review a decision to cancel an authority the Tribunal's focus is not on disciplining or punishing the authority holder, but on protecting the public interest. As Kirby P explained in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201, albeit he was concerned with a medical practitioner:- "... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..." 45The approach of the Tribunal in determining whether the decision of the Respondent to cancel Mr Uddin's authority was the correct and preferable decision is to protect public safety - not to punish Mr Uddin. 46The tribunal had to conclude that he had not been honest with the tribunal. It was also clear that he had not been honest with the regulator and had disregarded suspensions and continued to drive. The case law demonstrates the issue of honesty is a fundamental aspect of being fit and proper. 47The tribunal also considered the factors set out in Saadieh's case about Mr Uddin's offending. He has had multiple offences. If the amount of fine applicable to the offences is relevant, they would be considered to be serious as some fines attracted $1000-$5000. He has not had many customer complaints against him. However he has shown no sign of rehabilitation. He continued to offend very recently with an infringement at the airport and failing to stop at a stop sign on the 9th of June 2014 while he was driving under a stay. 48The tribunal is specifically not able to take into account the hardship occasioned to Mr Uddin by not being able to drive in determining whether or not he is fit and proper. The Tribunal also accepts that Mr Uddin has suffered anxiety as a result of his actions and by the thought that, if he loses his taxi driver's authority, he will be unable to support his wife and children and family overseas. See Lal v Director-General, Department of Transport [2001] NSWADT 74 49The tribunal finds that Mr Uddin is not a fit and proper person to hold a driver authority. Decision 50The decision of the Respondent to cancel Mr Uddin's driver authority is affirmed I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2014