Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kabir v Roads and Maritime Services [2014] NSWCATOD 153 Hearing dates: 20 November 2014 Decision date: 22 December 2014 Jurisdiction: Occupational Division Before: J McAteer, Senior Member Decision: 1. The Decision under review is affirmed Catchwords: Taxi Authority - whether fit and proper person - of good repute - attest - nature of offending Legislation Cited: Passenger Transport Act 1990 Passenger Transport Regulation 2007 Evidence Act 1995 Administrative Decisions Review Act 1997 Criminal Records Act 1991 Cases Cited: AJO v Director-General Department of Transport [2012] NSWADT 101 Wilson -v Director General, Department of Transport [2002] NSWADT 149 Saadieh v Director- General, Department of Transport [1999] NSWADT 68 Azis v Ministry of Transport [2004] NSWADT 91 Maythisathit v Registrar of Motor Vehicles (1996) ACT 165 Category: Principal judgment Parties: Farhan Kabir (Applicant) Roads and Maritime Services (Respondent) Representation: M Klooster (Applicant) Schofield King Lawyers (Applicant) Smythe Wozniak Legal (Respondent) File Number(s): 1420227 reasons for decision 1This matter came before me for hearing on 20 November 2014. The matter had previously been adjourned from 11 September 2014 in order to allow the Applicant to obtain legal representation. A timetable was also set for the filing of evidence and submissions by the parties. 2This application concerns the Respondent Authority's (Roads and Maritime Services - RMS) refusal to grant the Applicant (Mr Farhan Kabir) a Taxi Driver Authority to drive taxi cabs in New South Wales. 3On 14 May 2014 RMS refused Mr Kabir's application, and made a determination in accordance with section 33 of the Passenger Transport Act 1990. In doing so RMS determined in the Statement of Reasons dated 14 May 2014 that: In view of the proven offence recorded against you RMS can not attest that you are a fit and proper person for the purposes of the Passenger Transport Act 1990. 4The offences referred to in the decision relate to a number of convictions in 2009 and 2013. The Applicable Legislation 5The Passenger Transport Act 1990 provides the following relevant provisions for persons who wish 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) 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. (emphasis added) 33A Application for authorisation (1) A person may apply to RMS for authorisation under this Division. (2) An applicant is required to pay any fee fixed by the regulations for consideration of the application. (3) Procedures for making and dealing with applications may be settled by RMS, subject to any provisions of the regulations. 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. 6Clause 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). (emphasis added) Background 7The Applicant lodged an Application for an Authority to Drive Taxi-Cab or Private Hire Vehicle with RMS on 1 April 2014. Part B of that Application contains matters relating to the Applicant's history. Questions 20 and 21 seek information concerning previous driver authorities or applications. 8Questions 22 and 23 seeks information on ordinary drivers licence history including infringements, cancellation and suspensions and court matters. Question 24 seeks information concerning criminal convictions occurring within the last 10 years. Question 25 seeks information concerning certain convictions (or more than 10 years prior) which under the Criminal Records Act 1991, do not become spent. Part F of the Form sets out information and contains the declaration whereby the Applicant consents to the checking and exchanging of information to verify answers given by an applicant earlier in the form. On page 7 of the forms is a National Criminal History Record check where by at item 1 of the declaration states 1. acknowledge that I have read the Spent Convictions Scheme section of the information sheet............ 2. understand that the position / entitlement for which I am being considered is in a category for which NO exclusion has been granted from the application of the Spent Convictions legislation; 9Part of the Respondent's case turns on the allegation that the Applicant deliberately provided incorrect answers to question 24 of the application, in an attempt to mislead RMS. I would have to say, that without establishing that matter at this stage, in my view the Respondent's forms provide information about criminal convictions and the operation of spent convictions provisions (if applicable), in a somewhat bombastic and confusing manner. Rather than include some of the paragraphs under item 3 on the declaration on page 7 of the Application Form, (which in my view appear confusing and somewhat contradictory - eg: Item 3.2) it would seem easier to merely state that the provisions of the Criminal Records Act 1991 apply, and that spent convictions do not need to be disclosed nor are they relied upon in this assessment, in accordance with the terms of questions 24 and 25 of this Application. 10I make this observation because these forms are completed by lay persons, and require a large amount of personal information and evidence verifying certain personal particulars, and go to some eight pages excluding attachments. In my view Applicants should be advised of what information they are required to provide, and the lawful reasons or authority for its collection. However, what we have is a declaration that they understand that (in effect) beneficial provisions of certain legislation have not been exempted from the process they are engaged in. To illustrate the point I repeat the reference in question. 2. understand that the position / entitlement for which I am being considered is in a category for which NO exclusion has been granted from the application of the spent convictions legislation; In my view such language / information is both confusing and unnecessary. 11I have highlighted these concerns with the application forms, because the Respondent takes issue with the Applicant's apparent failure to complete the answers to question 24 correctly. Both in the review and the hearing the Respondent relied on the nature of the answers that the Applicant provided on this form as evidence that he was not a fit and proper person to be the driver of the vehicle concerned. Whilst it is evident from the statement of reasons that RMS applied the criminal record antecedents of the Applicant to the provisions of section 33 (3) (a) of the Passenger Transport Act 1990 to determine that the Applicant was not considered to be of good repute and in all other aspects a fit and proper person to be the driver of a tax-cab, RMS also noted in their statement of reasons that the Applicant in their view had 'failed to declare the above mentioned conviction/s on your application form'. (Page 1 Statement of Reasons). 12In any event it was clear that by signing the declaration and submitting the National Criminal History Record Check, the Applicant submitted / consented to RMS obtaining evidence of any non- spent convictions as part of its assessment processes. The Review Application 13An Application for Administrative Review was filed with the Tribunal on 16 June 2014. Having regard to the date of the Agency decision being posted on or after 14 May 2014, with service effected in accordance with section 160 of the Evidence Act 1995 therefore making the application within time. In any event nothing was raised by the parties on this issue before me. 14The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. Hearing on 20 November 2014 15On 20 November 2014 the Applicant was represented by Mr Klooster of Counsel instructed by Schofield King lawyers at the hearing. The Respondent was represented by Mr A Wozniak Solicitor of Smythe Wozniak Legal. 16In support of his application the Applicant filed the following material with the Tribunal: * Affidavit of Farhan Kabir sworn 13 November 2014. * Affidavit of Kazi Sayma Rahanm sworn 13 November 2014. * Correspondence from 'Dr MD S C' dated 19 August 2014. * Correspondence from 'K M N' dated 16 November 2014. * Correspondence from 'MD I M' dated 16 November 2014. 17The Applicant also relied upon detailed submissions in support of his application prepared by his legal representatives. The Applicant gave evidence in his proceedings. On oath he adopted his affidavit sworn 13 November 2014. No other evidence in chief was adduced. 18Mr Wozniak led evidence during cross-examination concerning recent traffic matters, and the Applicant's apparent surrendering of his New South Wales general drivers licence, the timing of which was possibly or somehow related to his temporary relocation to Queensland for taxi-cab related employment in that State. 19It was clear during the cross examination of the Applicant, that he was having some apparent difficultly with either fully understanding the questions as put to him by Mr Wozniak, or his answers reflected a lack of knowledge of some material (including the questions) due to the illogicality of some of his answers. Both the Applicant and his legal representatives denied that assistance (by way of an interpreter) was necessary, and it was agreed that a slower and more explanatory line of questioning would result in more evidence being adduced from this witness. 20Various questions were put to the Applicant during cross examination in respect of where he lived, where he had previously lived, how long he had been in Queensland in recent years, whether he had driven taxis there, and whether he recalled various traffic infringements. 21Importantly in respect of the question concerning his surrendered New South Wales Drivers Licence, he was asked the following question. (Q) When have you last driven a car or motor vehicle in New South Wales? (A) not from mid July 2014 until now. (19/11/2014). He was also asked how he travelled to the Tribunal Hearing today, to which he answered that 'he walked to the Station and caught a train'. 22In addition to those matters he was asked about the circumstances of his criminal charges and convictions. The Police material showed that whilst running a general business in 2009 selling foodstuffs and other goods, Police seized a range of goods which were considered to be unauthorised copies of DVD's including a device capable of making unauthorised copies of the DVD's. The issue was an apparent breach of copyright and licencing conditions for the intellectual property of the replicated works. The Applicant was issued Court Attendance Notices for 20 offences relating to these matters and was convicted and placed on a Bond in respect of each matter. 23In 2013 the Applicant was again breached in respect of matters arising from his business, whereby he was brought before the Court in respect of possessing a prohibited drug, and a device (machine) capable of copying DVD's and possessed with intent to make DVDs, in addition to a large volume of allegedly infringing DVDs. For the first two matters the Applicant was convicted and fined $3,700.00 in the Local Court. 24Mr Wozniak questioned the Applicant about both his apparent failure to nominate criminal convictions on his Driver Authority application, as well the circumstances of the offences. Whilst the Applicant stated in his evidence that the circumstances of the offences occurred differently to what was outlined in the Facts, he agreed that he had been convicted on those Facts. 25Mr Wozniak called the Applicant's spouse to give evidence. His spouse, Kazi Sayma Raham was unaware of the Applicant's oral evidence before the Tribunal, as she had gone outside shortly after the commencement of the hearing, even though the Respondent did not intend to call her. 26When the Applicant's spouse was asked how she travelled to the station today, she answered that they drove. Mr Wozniak asked further questions as to how she travels to do the shopping and travels when necessary, to which she answered words to the effect that when her husband is available he drives her in the family car. When further questioned about the frequency of this the spouse answered that the Applicant drives her all the time, whenever it is necessary. 27Section 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. 28The Tribunals review is for determining the correct and preferable decision by way of a merits review. Consideration 29It 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. 30Section 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. * Must satisfy RMS that he or she: is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned. 31It is apparent from both the application and the evidence at the hearing, that the live issue in this matter relates to the Respondent's assessment that the Applicant is not 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. 32The 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. 33Section 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. The meaning of "fit and proper person" 34In essence Mr Kabir's application was refused 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. 35The 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: - the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted; - 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. 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. 36Deputy President Hennessy also considered these issues in the case of Wilson -v Director General, Department of Transport [2002] NSWADT 149. 37At paragraph 22 of Wilson, Deputy President Hennessy made the following observations concerning the honesty of an Applicant in elaborating on the decision of Waddell J in Re T and the Director of Youth and Community Services. 22 The meaning of being of "good repute" was discussed by Wadell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393. Waddell J defined reputation in the following terms: A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession. Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation. 23 However a person's reputation and character is not immutable. In Stasos v Tax Agents' Board of NSW 90 ATC 4950 the Court considered the meaning of "fit and proper" in the general context of persons holding specified offices or vocations as well as in the specific context of Tax Agents (at 4,957) the Court noted that: "(w)here the issue is whether a person who has been guilty of misconduct is at a time somewhat after that misconduct a fit and proper person to exercise a particular occupation carrying with it privileges and responsibilities, it will be relevant whether that person has understood the error of his ways." 24 The presence of dishonesty was taken very seriously by the Supreme Court of South Australia in McNamara v Arnold (unreported decision of the Supreme Court of South Australia, 26 October 1995 BC9502405 at 10). Matheson J said that: In this matter, even if the Tribunal merely looks at the [appellant's] dishonest answer on the application form, this conduct brings into question the honesty of the [appellant]. Honesty is a quality implicit in the notion of a fit and proper person. 38It 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 39The Applicant 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 the Applicant's treating Doctor, Dr C. The Doctor had known the Applicant since late August 2013 since his most recent sentencing on criminal matters. Whilst the Doctor proffers an opinion that to the best of his knowledge the Applicant is not currently involved in criminal activity, and that his criminal history is such that it should not make him unfit for driving a taxi, nothing in the letter attests to the Applicants repute or character. 40A former colleague Mr K.M.N. who provided a character reference / letter of comfort which acknowledged the basis for the matters currently before the Tribunal. Mr K.M. N. wrote that the Applicant (in his experience) was 'honest, reliable, hardworking, conscientious and courteous'. 41A friend Mr MD I.M. also provided a character reference / letter of comfort which acknowledged the basis for the matters currently before the Tribunal. Mr MD I. M. wrote that he had known the Applicant for 18 years and has worked diligently in respect of raising and caring for his family. Whilst he provided generally positive information about his commitment to qualifying for his Taxi Licence (Authority), his main observations were that he was a 'skilled, professional and talented person'. 42Both of these referees either referred to or alluded to the Applicant's current financial hardship and desire to extricate himself from welfare benefits. 43The Tribunal is however not able to take into account matters relating to hardship which might be occasioned on the Applicant as the result of the refusal to grant his application for a driver authority. Though this may be a relevant consideration in a stay application for a person with a cancelled or suspended authority, it is not relevant in determining whether he is of good repute. In this regard I note that the Respondents letter of 9 April 2014 suspending the Applicant's driver authority (which appears at paginated page 27 of the Respondent's section 58 Documents of the Administrative Decisions Review Act 1997), is erroneous and is not relied upon by the Respondent in these proceedings. 44The overriding purpose of determining whether the Applicant 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. Applicant's evidence / submissions 45Mr Klooster for the Applicant submitted that his client had a limited understanding of English. His client answered truthfully and to the best of his knowledge. His evidence was that he had no knowledge of what he did at that time, and pleaded guilty to the various offences. In support of this position he states the following in his affidavit sworn 13 November 2014, in respect of the 2009 offences. 59. Around this time I received a threat from a supplier that I took very seriously. I called the police. When the police came they saw the DVDs in my store. I told them I didn't think they were illegal. 60. It turned out the DVDs were pirated. I was charged for selling infringing copy. I was feared and worried about the dire consequences. 61. Had I known that the conduct was illegal I would never have called the police. 46In respect of the 2013 offences, the Applicant provides the following evidence from his affidavit: 71. On 28 August 2012 when I returned to Australia from Bangladesh I was notified by the Police that an infringing DVD was sold to an undercover officer. The Police then came to my shop within an hour and searched the shop. They found the DVD duplicator that Mokkadesh had brought into the shop without my knowledge or consent and a small quantity of cannabis (7 grams). 72. I told the Police that I had been overseas and knew nothing about the duplicator and the cannabis. I had not seen Mokkadesh since I got back from Bangladesh. I felt deeply betrayed by Mokkadesh and regret placing my trust in him. 73. Whilst I believed that I had an arguable defence to the criminal charges levied, I could not afford legal representation and did not have sufficient funds to defend the matter. 74. As the business owner I took responsibility for the offences. ... 47In respect of the completion of the application form, the Applicant submits the following evidence from his affidavit: 79. My knowledge of English is basic. No one assisted me complete the application. When I read question 23 I understood it to mean whether or not I had ever been to Court for a traffic offence. As I had not ever been to court for a traffic offence I answered no. I did not understand the smaller font writing that appears on question 23. 80. I did not read question 24 carefully. I only read up to words court and then formed the view that it was a follow up question to the previous question 23 so I simply answered no again. 81. My solicitors have no [sic] explained to me the meaning and effect of questions 23 and 24 and I now admit that I did not answer question 24 correctly. I did not do this as an intentional dishonest act. I simply misunderstand the pattern of questioning in the application form. I deeply regret not seeking assistance to complete the application but it was important to me to obtain this licence using my own ability. 82. I apologise to the RMS for any misunderstanding or confusion that I may have caused as a result of me not answering question 24 correctly. 83. At the same time that I filled out the application form I also completed a criminal history check. If I was trying to mislead the RMS I would not have completed this form. I freely and voluntarily completed the form so that my criminal history would be known to the RMS. 48In oral submissions the Applicant's counsel submitted that notwithstanding the issue of the criminal convictions, the Applicants evidence is a considered position and remains substantially unchallenged. 49However, the Applicant's evidence was challenged during cross examination, and contradicted by the evidence of another witness. At paragraph 31. Of his affidavit sworn 13 November 2014 he states the following: 31. I do not have a perfect driving record. I drive all the time as I am the only person in my family with a driver's licence. On average I drive at least 10-15 hours per week. I currently live in Macquarie Fields and have always lived far away from the city as I cannot afford to live closer to the city. I often need to drive or commute to the city and other locations from my home. Given the amount of driving that I am required to undertake I consider my driving record to be modest to above average. 50This evidence was contradicted by the Applicant numerous times during cross examination. In fact the matters deposed at paragraph 31 of the Applicant's affidavit must be taken as being contemporary both by the language and date of the affidavit. The result is that much if not all of paragraph 31 are in direct conflict with a significant amount of the evidence that the Applicant gave during cross-examination. 51The evidence of his Spouse directly contradicted the answers that he gave in cross examination concerning how he travelled to the hearing. 52In respect of his evidence in cross examination generally it became apparent after considering the answers of the Applicant that he was attempting to not contradict his earlier answers given during cross examination. This related to matters that were put to him in respect of why he had surrendered his NSW licence, and whether he was driving during the previous 7 months in New South Wales on a Queensland licence, or abstaining from driving in New South Wales since his return from Queensland. I make this observation having had careful regard to the matters deposed at paragraph 79 of his Affidavit of 13 November 2014, and the observations that I made and concessions that I granted during the taking of the Applicant's evidence as outlined at paragraph 19 above. 53The Applicant's counsel submitted that the offences were out of character and they were not crimes of dishonesty. I find this submission somewhat difficult to comprehend bearing in mind that irrespective of the background to the offences, the convictions support an improper motive and attempt to avoid copyright or other fees for a commercial profit. 54The Applicant's counsel further submitted that I should follow the line of authority that supports the proposition that the travelling public would not be troubled by the nature and currency of his criminal antecedents. The Respondent's evidence / submissions. 55The Respondent submits that on the evidence in the section 58 documents, the affidavit of the Applicant and the evidence given in cross examination at the hearing, I could not satisfactorily attest that the Applicant was a fit and proper person to drive taxi- cabs. In addition Mr Wozniak pointed to the line of authority in Wilson in the ADT, Bond's Case from the High Court, and the South Australia case of McNamara (all cited elsewhere in this decision). 56Importantly the Respondent submitted that the spouses' evidence was unchallenged by the Applicant or his legal representatives, nor was there any examination of the Applicant by his Counsel, or matters arising. Determination 57Having regard to the matters outlined in Saadieh v Director- General, Department of Transport [1999] NSWADT 68, the following is apparent. * The Applicant has been convicted of criminal offences which can attract a custodial sentence, with the Commonwealth offences being indictable offences. * In respect of frequency of the offences, it is clear that for the period while the Applicant managed his own retail business, the offences occurred fairly regularly particularly when one has regard to the evidence tendered in respect of the 2012 offences and the amount of stock seized from the premises. * The complaints issue is not applicable in this matter as the Applicant is attempting to obtain an Authority, and no decision has been made to cancel or suspend. * In respect of the Applicant's driving history, in my view, notwithstanding his own favourable assessment, the driving history is poor with 16 offences in the last eight years, six being in the last two years coupled with a number of fine defaults. * In respect of the Applicant's likelihood of re-offending the situation is less clear. However there would appear to be a significant likelihood of further traffic offences based on his driver history to date. 58I am of the view that these factors are equally applicable to the consideration in the present matter of whether the Applicant is fit and proper to be the driver of a taxi-cab. 59Whilst the test in Maythisathit v Registrar of Motor Vehicles (1996) ACT 165 has often been cited, there is more to consider in this matter than whether the applicant's criminal record would be considered adversely by a passenger. 60In Azis v Ministry of Transport [2004] NSWADT 91 at 32 Judicial Member Montgomery commenting on Maythisathit said: 32 Various Tribunal decisions have applied the test in respect of a person being of fit and proper character to hold a driver's authority defined and applied by the President of the ACT Administrative Appeals Tribunal in the matter of Maythisathit v Registrar of Motor Vehicles (1996) ACT 165. In that particular case, the test was stated to be: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi". 33 In the present circumstances that test can appropriately be applied with the relevant member of the public travelling in the taxi driven by Mr. Azis. The relevant question is therefore whether the travelling public, knowing of Mr. Azis's record, would object to Mr. Azis as the driver of a taxi-cab? 61However, in the current case it is not just the Applicant's convictions, but the evidence given by him in these proceedings which causes concern as to his being a fit and proper person to drive a taxi-cab. 62Unfortunately the material filed by the Applicant from the three character references referred to above, does not provide sufficient material to make a finding of the Applicant being of good repute, when one has regard to the factual material outlined at paragraphs 39 to 43 inclusive. Whilst it is possible that the Applicant could well establish that he is a person of good repute, the difficulty that I have is in determining that he is a fit and proper person, within the meaning of the relevant legislation and as set out in the cases outlined above. Conclusion 63I find that on the evidence before me, there was no attempt by the Applicant to mislead the Respondent in respect of his completion of the application form. I therefore set aside that aspect of the administrator's grounds for refusal of the licence / authority. (But that decision does not set aside the overall decision). 64However, having regard to the significant conflict in the Applicant's sworn evidence, in respect of matters going to his propriety and honesty in respect of his criminal antecedents in his dealings with the Respondent in his evidence before the Tribunal, I am not satisfied that he is a person of good repute and in all other aspects a fit and proper person to be the driver of the vehicle concerned. 65The available evidence indicates that the Applicant, Mr Kabir is not a fit and proper person to hold a driver authority. Order 66I 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: 22 December 2014