Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Martinez v Roads and Maritime Services (No 2) [2014] NSWCATOD 121 Hearing dates: 23 July 2014 and 18 September 2014 Decision date: 27 October 2014 Jurisdiction: Occupational Division Before: J McAteer, Senior Member Decision: 1. The decision of the Respondent is affirmed. 2. The application is dismissed. Catchwords: Fit and proper person - good repute - Authorised to drive - jurisdiction decide application if licence cancelled Legislation Cited: Passenger Transport Act 1990 Passenger Transport Regulation 2007 Road Transport Act 2013 Administrative Decisions Review Act 1997 Cases Cited: AJO v Director-General Department of Transport [2012] NSWADT 101 Drake v Minister for Immigration and Ethnic Affairs (1979) 49 FLR 409. Category: Principal judgment Parties: Luciano Martinez (Applicant Roads and Maritime Services (Respondent) Representation: L Martinez (Applicant in person) Smythe Wozniack Solicitors (Respondent) File Number(s): 1330346 reasons for decision Background 1This matter came before me for hearing on 23 July 2014. The substantive application is an application by Mr Martinez for a review of a decision by the Respondent to cancel his taxi-cab driver authority. At the conclusion of the hearing on that occasion (and the conclusion of the Applicant's evidence) I made an interlocutory decision in respect of the lifting of a stay. That decision is: Martinez v Roads and Maritime Services [2014] NSWCATOD99. 2After lifting the stay, the matter was adjourned until 18 September 2014. At the conclusion of the initial hearing on 23 July 2014, all of the Respondent's evidence (and the Applicants cross examination) had concluded. In addition, the Applicant's evidence had concluded and the Respondents cross-examination of the Applicant was partly completed. It was for this reason that the matter was adjourned 'part - heard' rather than finalised on 23 July 2014. 3The matter was listed on 18 September 2014. Initially the matter had been adjourned until 10:00am on that day, but the Registry needed to reschedule the hearing until later in the day at 1:30pm. Advice was sought as to whether that was agreeable to the parties. Correspondence was sent by Express Post to the parties on 16 September 2014 (next day delivery). 4From a copy of an e-mail provided at the hearing by Mr Wozniak, Solicitor who appeared for the Respondent, it appears that the Applicant contacted Mr Wozniak by e-mail on 17 September 2014 seeking an adjournment due to the fact that he was overseas attending to a family matter apparently involving an illness of a member of his family. 5The Applicant indicated that he contacted Mr Wozniak as he was having difficulty contacting the Tribunal by e-mail. The Hearing on 18 September 2014 6The matter was listed at 1:30pm on 18 September 2014 for hearing (part heard). At the hearing Mr Wozniak appeared for the Respondent and there was no appearance for the Applicant. At the commencement of the hearing I read the full contents of the e-mail (referred to in paragraph 3 above) onto the record, - including the e-mail address. 7Discussion then transpired as to whether Mr Martinez had already travelled overseas and how the Tribunal should deal with the matter. Mr Wozniak tendered a document that related to Mr Martinez's travel arrangements. The document printed on 13 September 2014 from 'Escape Travel' relates to Mr Martinez's flight / travel arrangements. It appears from that document that he left the jurisdiction on 14 September at 6:00am and travelled overseas. The document relates only to a one way ticket / flight. 8Discussion then continued as to how I should proceed to deal with the matter. As the matter had been heard, there were (in my view) only two options open to the Tribunal. One option was to adjourn the matter on a further occasion, and the other option was to reserve the matter for decision. 9I indicated that as the matter had been in effect heard, I was not prepared to dismiss the application due to either non- appearance or failure to prosecute the application. I noted that this was the ninth occasion that the matter had been listed before a Member of the Tribunal. 10The matter had been listed as part heard because Mr Wozniak had not been able (due to time constraints) to complete his cross-examination of the Applicant on the last occasion. Prior to the cross-examination of the Applicant, the Respondents evidence was complete, as was the Applicant's evidence in chief. Mr Wozniak was then asked how he wished to proceed with the outstanding examination of the Applicant. Mr Wozniak advised that he was content to leave the cross-examination of the Applicant where it had concluded late on 23 July 2014, and close the evidence. On this basis, as the hearing had in effect concluded, I determined that there would be no prejudice attached to Mr Martinez by denying the adjournment application. 11I then made the following orders: (1)I decline to dismiss the matter under section 55 (1) (c ) or (d) of the Civil and Administrative Tribunal Act 2013 on the basis that the Applicant's evidence is complete. (2)There is no objection from the Respondent, and on the basis of the completed evidence there is no prejudice to the Applicant. (3)Decision on the substantive application is reserved. Hearing on 23 July 2014 12On 23 July 2014 the Respondent provided two witnesses who gave evidence in support of their formal complaints involving the Applicant. These witnesses provided evidence over the telephone. Witness 1 (B.F.) gave evidence in chief adopting his statement relating to a complaint concerning an incident on 9 August 2013. B.F. played an 'I Phone' recording of what appeared to be an audio record of the later part of the incident concerning the conversation between B.F. his co-passenger and the Applicant. He was not asked any questions by the Applicant by way of cross-examination. 13B.F.'s evidence was followed by the evidence of L.A. L.A's evidence related to a complaint relating to the Applicant that occurred on 22 September 2013. L.A. was asked one question and a follow-up question by the Applicant in cross-examination. I also asked questions of L.A. in respect of aspects of the evidence / statement contents. 14The rest of the hearing focused on submissions relating to the application by the parties, the Applicant's evidence in chief, and significant cross-examination of the Applicant. As the Applicant was unrepresented I asked the Applicant to give his evidence in response to the complaints and the Respondent's assertion concerning his history and fitness to drive Taxi-Cabs. I also asked questions to clarify aspects of his evidence in chief. 15Mr Wozniak led evidence during cross-examination concerning recent traffic matters that had transpired since the commencement of these proceedings. Traffic matters which were apparently dealt with at the Local Court earlier in 2014, other traffic matters, and Local Court material was also summonsed by the Respondent during the course of proceedings and were referred to by Mr Wozniak. 16Further questions concerning compliance with the orders of the previous stay were put to the Applicant, specifically whether the conditions of the stay (as they related to taxi driving) had been complied with in the interim. 17At the conclusion of the matter I gave an ex-tempore decision in respect of the stay to which the decision of: Martinez v Roads and Maritime Services [2014] NSWCATOD99 relates. In that decision I lifted the stay, and as a result the cancelation of Mr Martinez's driver authority was in force. The Review Application 18This is an application for review lodged by Mr Martinez of the decision made by the Respondent on 21 October 2013 to cancel his driver authority. The Tribunal is able to take into account new information which is put before it on review. The authority for this proposition is contained in Drake v Minister for Immigration and ethnic Affairs (1979) 49 FLR 409. 19On the material before the Tribunal, it is clear that the Respondent made the decision on the basis that Mr Martinez had a significant complaints history, Traffic Infringement history, Court Convictions, prior remedial action including cautions, warnings and re-training, in addition to an apparent escalation in these matters over recent years and months. As part of the Respondent's Reasons for Decision, they noted that there were 17 complaints recorded since 2005, with 12 of these being in the 18 months immediately prior to the decision to cancel the authority. 20As a result the Respondent made a determination that Mr Martinez was not a fit and proper person with sufficient responsibility and aptitude to drive a taxi-cab. The Respondent applied their evidence to the provisions of section 33 (3) of the Passenger Transport Act 1990 in making that determination. 21Section 33 (3) provides that: (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. 22The Respondent cancelled Mr Martinez's Driver Authority immediately (on 21 October 2013). 23Mr Martinez was entitled to apply for an Internal Review of the decision of the Respondent of 21 October 2013 however it appears that he had not done this when he lodged his appeal to the Tribunal on 19 November 2013. The Tribunal exercised its power to deal with the application for reviews of the Respondent's decision of 21 October 2013 without Mr Martinez having made a prior internal review application and subsequent RMS decision. 24The history of the matter before the Tribunal is set out above and in the interlocutory decision referred to above. 25Ordinarily an application such as this would require an analysis of all of the evidence and material set out in the reasons for decision, the material lodged by the parties during the course of the proceedings, and evidence adduced at hearing. Such an application requires the decision maker to make a decision afresh after considering the evidence in the context of the provisions of the applicable legislation. 26Evidence was provided at hearing that Mr Martinez had continued to drive taxis in manner inconsistent with the terms of the stay. Other evidence was lead in respect of Mr Martinez's traffic record since the commencement of these proceedings, including at one time, the imposition of a Conditional Drivers Licence (in respect of accumulated demerit points), and subsequent cancellation of his general drivers licence, through accumulated demerit points and other driving offences. The traffic record tendered to the Tribunal indicated that there were a number of traffic matters before Newtown Local Court on 14 July 2014 with a further State Debt Recovery action on 17 July 2014 arising from a separate infringement on 1 May 2014. 27As a funding of fact Mr Martinez's Class C Drivers Licence was determined to be suspended by a decision on 18 July 2014 with the suspension to run from 22 August 2014 until 21 February 2015. It is this finding which impacts on the ability of the Tribunal to review the decision to cancel Mr Martinez's taxi-cab driver authority. 28As outlined above an application for a review of a reviewable decision requires the Tribunal to consider all the material before it, and make the correct and preferable decision having regard to the evidence and the applicable law. The applicable law 29Section 63 of the Administrative Decisions Review Act 1997 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 30Section 33 of the Passenger Transport Act 1990 provides: 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) The regulations may create categories or grades of authorities. (5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a taxi-cab is being driven to a place to have it repaired or serviced. 31Section 33B of the Passenger Transport Act 1990 provides: 33B Grant or refusal of application (1) Having regard to the purpose of authorisation under this Division, RMS may grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application. (2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant. (3) An applicant is required to pay any fee fixed by the regulations for the authority when first issued. (4) An authority is to be given in writing by RMS to the authorised person. (5) The authority may specify the category or grade of the authority, and (without limitation) may specify the kind or kinds of vehicles for which the authority is granted. (Emphasis added) 32Clause 29 of the Passenger Transport Regulation 2007 provides: 29 Criteria for authorisation to drive public passenger vehicles (1) For the purposes of sections 12 (2), 33B (2) and 40B (2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in subclauses (2)-(4). (2) The applicant: (a) must be at least 20 years of age, and (b) must hold a driver licence that is not a learner licence, probationary licence, provisional licence, restricted licence, driver licence receipt or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving), and (c) must have held an Australian driver licence for a total of at least 12 months in the 2 years immediately preceding the date of the application, and (d) must have passed an examination or assessment, at a level determined by TfNSW, in medical fitness, and (e) must satisfy RMS that he or she: (i) may lawfully work in Australia, and (ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and (iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom. (3) In the case of an application for authorisation to drive buses, the applicant must also have successfully completed a bus driver training course approved by TfNSW and conducted by a registered training organisation (or must have such competence as a driver of buses as RMS considers appropriate). (4) In the case of an application for authorisation to drive taxi-cabs, the applicant must also: (a) have successfully completed a taxi-cab driver training course approved by TfNSW and conducted by a registered training organisation (or must have such competence as a driver of a taxi-cab as RMS considers appropriate), and (b) have passed an examination or assessment, at a level determined by TfNSW, in the following: (i) geographical knowledge of areas in which taxi-cabs ply for hire, (ii) such part or parts of the taxi-cab driver training course referred to in paragraph (a) as may be required by RMS (or must have such competence as a driver of a taxi-cab as RMS considers appropriate), (iii) knowledge of this Regulation in so far as it relates to taxi-cabs and the driving of taxi-cabs, and (c) have passed an examination or assessment, at a level determined by TfNSW, in both written and oral communication in the English language (or must have such competence in that language as RMS considers equivalent to that level). (5) In this clause: Australian driver licence means: (a) a driver licence, or (b) a licence issued under a law in force in a State or internal Territory authorising the holder to drive a motor vehicle on a road or road related area, being a licence that is not a learner licence, probationary licence, provisional licence, restricted licence, driver licence receipt or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving). 33The Tribunals review is for determining the correct and preferable decision by way of a merits review. Consideration 34It is clear from the above legislative provisions, that there are a number of specified criteria which must be satisfied in order for a person to receive a Driver Authority to drive a taxi-cab with fare paying passengers. 35Section 33 of the Passenger Transport Act 1990 provides that the Respondent may issue authorities for persons to drive taxi-cabs. Section 33B (2) of that Act provides that before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy RMS as to any matters RMS considers relevant. Clause 29 of the Passenger Transport Regulation 2007 provides that (relevantly for the purpose of section 33B (2) ), an applicant must meet (amongst other things) the following criteria: * Be at least 20 years of age, and * Must hold a driver licence that is not a learner licence, driver licence receipt or conditional licence, and must have held an Australia driver licence for a total of at least 12 months in the two years immediately preceding the date of the application. (emphasis added) 36There are other criteria which relate to the cancellation of Mr Martinez's driver authority by the Respondent which then gave rise to these review proceedings, such as being a person who is of good repute and in all other aspects a fit and proper person to be the driver of the vehicle concerned, and matters relating to possessing sufficient responsibility. 37Mr Martinez no longer holds a driver licence and as a result does not satisfy and cannot satisfy the mandatory precondition criteria as set down in Clause 29 (2) (b) of the Passenger Transport Regulation 2007. 38The Tribunal's power on review derives from section 52 of the Passenger Transport Act 1990 and section 63 of the Administrative Decisions Review Act 1997. 39Section 52 of the Passenger Transport Act 1990 provides: 52 Applications to Civil and Administrative Tribunal (1) Any person whose application under Part 2, 4 or 4A has been refused, or whose accreditation, authority or authorisation has been varied, suspended or cancelled may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the refusal, variation, suspension or cancellation. 40Whilst Mr Martinez's authority has been cancelled by RMS, the underlying issue is that irrespective of that action, he no longer meets one of the mandatory pre-conditions for either applying for an authority, or holding such an authority, due to the cancellation of his driver's licence. The meaning of "fit and proper person" 41In essence Mr Martinez's authority was cancelled because RMS determined that he was not a 'fit and proper person' in accordance with the requirement in section 33 of the Passenger Transport Act 1990. This phrase has not been considered in the context of the Act though the phrase is well known and has been considered numerous times in connection with other legislation. 42The case of AJO v Director-General Department of Transport [2012] NSWADT 101 at paragraphs [24] to [35] provides a relevant review of the authorities: 24. Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. 25. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,Chief Justice Mason explained that, at 380: '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.' Toohey and Gaudron JJ said at 380: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." 26. A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." 27. In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said: "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." 28. Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth). 29. In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are: (a) the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted; (b) the Applicant's reputation in the community; and (c) the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences. 30. In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety. The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. .... The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this. [the omitted comments of Kirby P are as follows: "... 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 ..."] 31. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." 32. As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393: A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts." In Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained: "... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person." 33. In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character: "... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation." That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character: "... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the question was whether or not a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279." Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained: 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards. 43It is clear that a conclusion on fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. Further Consideration 44Mr Martinez has an extensive complaints history relating to his occupational use of a taxi-cab. As outlined above, that complaints history has escalated in recent years. In addition, there have been a number of criminal matters which are peripherally related to his use of a taxi-cab, in addition to a significant traffic infringement history. Those criminal matters relate to charges of: 'Make furnish a statement which is false / misleading', 'Unlawfully obtain goods (personal custody)', (x 2). In those matters the Court entered convictions and on some matters found the offence proven without proceeding to a conviction. The relationship of these matters to his occupation is that ownership of the goods was traced to passengers of Mr Martinez. There were other 'regulatory' matters before the Court which related to not displaying his driver authority and producing worksheets. I note that these types of matters have previously been raised by the Respondent at various times during Mr Martinez's employment as a taxi-cab driver. 45The matters outlined at paragraph 44 (above) are separate to his poor traffic record, and do not include the details of his complaints history. In referring to Mr Martinez's traffic record as poor, I have taken into account that he is what is generally referred to as a 'profession driver', and as such, accumulates a far greater number of hours on the road, and is therefore of greater likelihood of having infringements detected than the average motorist. 46Mr Martinez in evidence denied the import and other meaning attributed by the Respondent and their witnesses to the conduct at the centre of his complaints. His evidence was at times vague and contradictory and at its highest equivocal. Various explanations were given to the meaning of what allegedly transpired. In respect of the evidence concerning the incident involving B. F. and his partner on 9 August 2013, Mt Martinez said that the complainant's had misinterpreted the meaning of his words. In my view, this was not the case and his words clearly constituted threatening behaviour towards the witnesses, arising from the dispute concerning the journey. Rather than attempt to take matters into his own hands, as all parties had mobile telephones with reception, in my view he should have followed the complainant's lead and called the police, or waited until they arrived to resolve the issue. 47The Respondent also provided evidence that Mr Martinez had not 'pinned in' in respect of the requirement to log on when commencing and log off when concluding a shift. This is separate to logging on to a radio network which notwithstanding Mr Martinez's apparent barring from Radio Network access, is a discretionary matter. 48Mr Martinez did provide some documents to the Tribunal in respect of his character and to meet the criteria of being of good repute. A letter was provided from a former employer Mr G.H. who provided a character reference / letter of comfort which acknowledged the basis for the matters currently before the Tribunal. These matters were referred to by G.H. as 'damaging allegations' and were referred to as matters out of character and part of a conspiracy against Mr Martinez, described by G.H. as 'false claims to support someone's sinister agenda'. It is clear that G.H. is of the opinion that Mr Martinez is of good repute. 49 A.C. (a regular customer) provided a character reference that Mr Martinez was an excellent practitioner in respect of driving taxi-cabs, and professional and courteous in his professional dealings at all times. It is clear that A.C. is of the view that in respect of his taxi-cab driving, Mr Martinez is a person of good repute. 50Two other e-mail references were provided. Both J.M. and J.H. were customers of Mr Martinez and attested to his professional and efficient carrying out of his role as a taxi-driver. These brief references went more to matters relating to his' professionalism' rather than his character or repute. 51The Tribunal is not able to take into account matters relating to hardship which might be occasioned on Mr Martinez as the result of the cancellation of his authority. Though this may be a relevant consideration in a stay application, it is not relevant in determining whether he is of good repute. 52The overriding purpose of determining whether Mr Martinez is a fit and proper purpose to drive a taxi-cab, is to protect public safety, not to consider whether his conduct should attract some form of punishment. The Tribunal's role is to make the correct and preferable decision. Conclusion 53The evidence indicates that Mr Martinez is not a fit and proper person to hold a driver authority. 54In addition, due to the cancellation of his general licence, any determination concerning the re-instatement of his authority is of no immediate consequence, as even if I was mindful to make such a determination (which from paragraph 53 above, I am not) , it would be of no consequence. This is because I have no jurisdiction over the issue of re-instatement of the general driver licence. It may be that the Local Court has jurisdiction under Part 7.8 of the Road Transport Act 2013, however it appears that certain prohibitions exist in respect of licence holders who lose their licence after electing to be of good behaviour. 55However I determine that Mr Martinez is in all other respects not a fit and proper person to be the driver of the vehicle concerned. Order 56I find that the correct and preferable decision is to affirm the decision of the Respondent and dismiss the application. ********** 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: 27 October 2014