Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mohammed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62 Hearing dates: 17 March 2015 Date of orders: 27 March 2015 Decision date: 27 March 2015 Jurisdiction: Appeal Panel Before: Dr J G Renwick SC, Senior Member P H Molony, Senior Member Decision: The appeal is dismissed and leave to appeal is refused. Catchwords: Civil and Administrative Tribunal – Appeal Panel – Taxi Transport Subsidy Scheme – knowingly false certification by taxi driver – not a fit and proper person – appeal dismissed Legislation Cited: Passenger Transport Act 1990 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Khan v Roads and Maritime Services [2014] NSWCATOD 23 Luo v Roads & Maritime Services [2012] NSWADT 140 Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145 Minister for Immigration and Citizenship v Li [2013] HCA 18 Ratay v Director-General, Department of Transport [2003] NSWADT 40 Category: Principal judgment Parties: Mohammed Shamsuzzaman (Applicant) Roads and Maritime Services (Respondent) Representation: Mr M Jools (Agent for Applicant) Mr A Wozniak, Smythe Wozniak Legal (Respondent) File Number(s): AP 14/57484 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Date of Decision: 5 November 2015 Before: J McAteer, Senior Member File Number(s): 14/20288 , 14/20293 JUDGMENT Introduction 1. The Passenger Transport Act 1990 ('the PT Act') requires the holder of a driver authority and the operator of a taxi cab service each to be a 'fit and proper person'. The Tribunal below concluded that the Appellant was not such a person. The Appellant asserts that the Tribunal made two errors of law in coming to that conclusion. For the reasons which follow, we disagree, and thus dismiss the appeal. Legislation 1. The PT Act, which although repealed and replaced by an Act of the same name on 1 December 2014, applied to the hearing of this matter below, relevantly required the Appellant to be a fit and proper person. 2. By decision dated 10 July 2014, the Respondent cancelled the driver authority to drive taxi cabs (see s 33(F) of the PT Act) and on 14 August 2014, the respondent cancelled the taxi cab operator accreditation (see s 31(2) of the PT Act). In each case, the Respondent came to the conclusion that the appellant was not a fit and proper person. 3. On appeal to the Tribunal below, the same decision was reached although for slightly different reasons. Facts 1. The Tribunal's decision focused on dockets certified by the Appellant for the purposes of the New South Wales Taxi Transport Subsidies Scheme. 2. In Khan v Roads and Maritime Services [2014] NSWCATOD 23, the Tribunal stated at [7]: "The Taxi Transport Subsidy Scheme (TTSS) is a transport subsidy scheme that provides taxi transport for the severely impaired and disabled in NSW. The TTSS is based on a taxi docket system where the government funds (up to a maximum of $30) half of a taxi journey." 3. The Tribunal found that, over a period of two to three months, the appellant forwarded a considerable number of claims for payment under the TTSS. Claims are made by forwarding a docket, an example of which was in evidence before us. The dockets contain a requirement that they be initialled by the driver. The attestation on the forms includes a statement that, "by initialling this docket, the taxi driver is certifying that the details completed on the docket are true and correct." 4. On all relevant occasions the Appellant initialled dockets containing this form of attestation. 5. The Tribunal below found, and on the appeal it was not disputed, that on a number of occasions, the Appellant had lodged dockets for the purpose of being paid which contained knowingly false attestations in that the details completed on the docket were not 'true and correct'. The Tribunal concluded, for that reason, the appellant was not a fit and proper person either to hold a driver authority or to operate a taxi cab service. We conclude, for the reasons which follow, that there is no error of law in that decision. The Reasoning Below 1. The matter came on for hearing below on 5 November 2014, and evidence was then given by the Appellant and extensive cross-examination of him took place. 2. The Tribunal had before it, and we have an example before us, of the relevant claim form under the scheme which contains the certification clause quoted above. 3. The Tribunal: 1. Noted that the requirement that the appellant be a fit and proper person was found in statutory provisions which "have broad public interest implications concerning the honesty, integrity, and adherence to law and safety of the travelling public." 2. Noted that, under cross-examination, "the applicant admitted that the documents [lodged under the scheme] had not been filled in accurately or correctly. At the very least, what was conceded was that the times and dates of the documents were in error." 3. Stated that "bearing in mind that the scheme relates to subsidy, it is an important obligation on taxi drivers to complete these documents not only in a timely manner, but also in an accurate manner. The documents submitted are official documents requiring a suite of information to be imported into the document. The purpose and basis of that suite of information being imported into the document is so that the relevant regulator, in this case…RMS, can in effect, audit the documents and the use of the scheme and therefore, itself, on behalf of the public and the public interest attest to its veracity. Any error or omission, however intended or otherwise, has implications for that obligation to the public being met by the Department. Now, that, in itself, would not be enough to have grave consequences for a taxi operator or a taxi driver…but other matters cause concern in the respondent's evidence. It was contentious during the hearing as to whether they were fares paid by the passengers or whether they were promises to pay fares in the future for various reasons." (emphasis added) 4. Noted that there had been evidence that a particular passenger of the Appellant, a Mr Abdullah had used his own dockets but also dockets of another person, namely a Mr Duffy. 5. Proceeded to make the following findings and state the following conclusions: "the evidence of the respondent in this matter is provided in the s 58 documents, and bar for one example, and the number of examples I do not think is of any great consequence in this matter, it was clear from the forensic material provided by the regulator's accessing of the network system, the taxi in question was not performing the jobs at the times and dates stated in the dockets. By that, I mean that it was in a different place or not logged on or the ignition was not on. The respondent elicited from the applicant evidence that the inaccuracies in the dockets that occurred in the month of October 2013 had, in all probability, been occurring for a previous one or two months. The applicant agreed that the information was false, that he put the dockets in to get paid. I must stress that, when the applicant stated that he knew the information was false, he maintained his view that it related to the times and dates of the journey. The defence put by the applicant in mitigation was that all the trips took place, albeit at different times and dates. … the important point… is something that goes broader to the public interest, and that is, notwithstanding the practical difficulties of a taxi transport subsidies scheme involving non-cognisant, non-communicative and often otherwise non-compliant passengers, a taxi driver…is able to effectively able to participate in the scheme to the requisite standard required by the Department. I take the reference to the Department "as extending to the public interest because of the fact that this is a transport subsidy scheme. I am not aware of the provenance of the funds for which the driver is reimbursed for the $30, or 50% of the fare, but, in any event, those funds would arise from consolidated revenue. In my view, it is not sufficient, notwithstanding all those practical difficulties, especially where the attestation is placed on the form saying the details are true and correct, to submit documents where, in essence, the driver has filled it in to the best of their recollection or some other process for which there was no evidence about. The documents must be filled in contemporaneously or very shortly thereafter, but above all they must be filled in accurately. If the document cannot be filled in accurately, then that is a problem having regard to public policy or matters that need to be taken up with the regulator. It is not appropriate to submit inaccurate documents which, on first forensic analysis, point to fraudulent activity. Because of the attestation and the documents being submitted in that form, I take the view that the applicant is not a fit and proper person to be a holder of a driver authority or of good repute, and in all other respects, a fit and proper person to be responsible for the operation of a taxi cab service. (emphasis added) Grounds of Appeal 1. There were two grounds of appeal in this appeal which is limited, except by leave, to a question of law. Ground 1:- Unreasonably harsh and out of proportion to any offence 1. The first was expressed to be "the effect of the decision is unreasonably harsh and out of proportion to any offence." Mr Jools who appeared for the Appellant described this as a challenge to the discretion exercised by the Member. It does not obviously raise a question of law, even were we to interpret this ground as an allusion to manifest unreasonableness, or lack of proportionality in the sense in which that term was used in Minister for Immigration and Citizenship v Li [2013] HCA 18 ("Li'). 2. In Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145 at [104]-[109], Tobias JA noted the distinction between what an appeal court considered itself was unreasonable (which is not a question of law), in contrast to a decision which the appeal court considered was so unreasonable that no reasonable body could have come to it, this connoting something shown to be irrational, absurd or improbable (which would be a question of law). 3. In Li Hayne, Kiefel and Bell JJ said the unreasonableness amounting to jurisdictional error was a conclusion which "[76] may be applied to a decision which lacks an evident and intelligible justification". The decision in this case is not in that category as the quoted reasons demonstrate. 4. The jurisdiction in this field is protective not punitive. In Khan v Roads and Maritime Services [2014] NSWCATOD 23 at [25] it was said, in terms which we would adopt, that: 5. It was submitted that the applicant is a very simple and honest person. He supports his wife and four children and a parent. They are currently renting a house for $290 per week and they have no savings. The cancellation of his driving authority would create severe financial hardship for him and his family and was unreasonable and excessive. However, possible hardship to the applicant, or his family, cannot be taken into account in determining the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]. Similarly, the purpose of a driver authority is to have the regulator (that is, the respondent, or on review the Tribunal) "attest" that a driver is of "good repute", is "fit and proper" to be a taxi driver, and has "sufficient responsibility and aptitude" to drive taxis. It is not about giving a driver "another go"." (emphasis added) 6. That being so, there is no manifest unreasonableness in the conclusions reached below despite the no doubt significant effect of the decision appealed from upon the Appellant. This ground of appeal is not made out. Ground 2: the returns by the applicant were erroneous but not fraudulent 1. The second ground was that the returns by the applicant were erroneous but not fraudulent. The Appellant said that this ground was additionally a matter on which he sought leave, asserting the decision was thereby 'unfair and inequitable'. 2. There was not strictly speaking a finding of fraud, although there was a finding that the appellant had put in information that was false over a period of two to three months for the purpose of getting paid. 3. Mr Jools, the agent for the Appellant, agreed during the appeal that his client put in falsely certified forms for the purpose of being paid. Whether or not that amounts to fraud in the civil or criminal sense, it is certainly a claim for payment made on a knowingly false basis. It is a most serious concession/finding even if the Tribunal has not made an express finding of fraud. 4. In our opinion, there is no question of law raised on the appeal, nor would we grant leave to appeal. 5. We take the key reasoning of the Tribunal to be in the final sentence, namely that the attestation and documents were submitted in "that form" that is a knowingly false form. 6. There can be no doubt that such conduct is capable of being the basis for a finding that a person is not fit and proper. In relation to the second ground, the finding is certainly that they were more than "erroneous". Rather, they were knowingly false in light of the attestation clause. There was no suggestion of course, that the appellant was illiterate or did not know what he was signing. Rather, his assertion was that the trips had taken place on different days. The TTSS system relies on the rules being strictly followed in order to prevent the possibility of fraud, whether fraud takes place or not. 7. The Tribunal correctly asked itself whether the appellant was a fit and proper person and there can be little doubt that it was within its discretion to find on the basis of the matters we have alluded to that he was not a fit and proper person. Ratay v Director-General, Department of Transport [2003] NSWADT 40 and Luo v Roads & Maritime Services [2012] NSWADT 140 at [46] are two other examples of cases involving the alteration of subsidy vouchers where a similar conclusion was reached with respect to fitness and propriety. In the latter case it was said: On any view of the events that have led to those dockets being presented, and even on the most favourable view to the Applicant, the position remains that the Applicant accepted dockets that are not an accurate representation of the journeys that were undertaken. In my view the Applicant must have been aware that that was the case. If the Applicant's evidence that he did not complete any of the details on the dockets is accepted, it does not address the fact that he must have known that the information that was written on the dockets does not reflect the journeys that he says took place. The Applicant presented those dockets to GM Cabs for payment knowing that they were false. In my view, that is one of the most serious offences that can occur in relation to dockets. It is a fundamental requirement in the dealing with dockets, that the dockets accurately represent the journey that has taken place. That remains the situation whether or not the Applicant was involved in the production of the counterfeit dockets. I am not of the view that the Applicant is a person who can be held out to the public as somebody who has sufficient responsibility and aptitude to drive a taxicab. The Applicant presented dockets knowing that they were false and in my mind that is sufficient to warrant the cancellation of his authority. The acceptance of the dockets in lieu of full cash payment is another major issue that has implications for the scheme to which the dockets relate. The scheme is designed on the basis that the passenger contributes to the fare. The acceptance of dockets in lieu of cash encourages fraudulent use of dockets. While in the circumstances of this matter I do not consider that that the Applicant's conduct in this regard this issue is as serious as that in regard to presenting fraudulent dockets, in my mind it is still a very serious issue. To attest that the Applicant is considered to have sufficient responsibility and aptitude to drive public passenger vehicles, I must have the confidence that he would behave appropriately in relation to all passengers. In my view, the Applicant's actions demonstrate that he has failed to appreciate the level of responsibility required to hold an authority to operate public passenger vehicles. The fact that I consider that the Applicant must have known that the dockets were not an accurate reflection of the journeys that were undertaken suggests to me that he is also not a fit and proper person to drive a taxicab. 1. The test for granting leave to appeal is to be found in the decision of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17, where an Appeal Panel which included the President, stated as follows at [84]: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. Applying this test for the grant of leave, we consider none of these grounds are established. These is no suggestion that the tribunal made any factual error and it is clear that the decision it reached was one that was open to it, and did not result in an injustice. 2. For these reasons, we dismiss the appeal, and decline to grant leave to appeal. ********** 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: 01 April 2015