Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sikka v Roads and Maritime Services (No 2) [2016] NSWCATOD 98 Hearing dates: 4 May 2016 Date of orders: 02 August 2016 Decision date: 02 August 2016 Jurisdiction: Occupational Division Before: N S Isenberg, Senior Member Decision: (1) The decision of the respondent to refuse the applicant's application to be an authorised taxi-cab driver is set aside. (2) In substitution for that decision the following decision is made: The applicant's application to be an authorised taxi-cab driver is granted. Catchwords: Merits review: taxi driver authority - good repute - fit and proper - honesty – remorse – relevance of earlier tribunal decisions. Legislation Cited: Administrative Decisions Review Act 1997 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: Sikka v Roads and Maritime Services (ADT unreported no. 123138 dated 11 March 2013) Sikka v Roads and Maritime Services (GD) [2013] NSWADTAP 28 Sikka v Roads and Maritime Services (No. 2) (GD) [2013] NSWADTAP 48 Sikka v Roads and Maritime Services [2014] NSWCATOD 138 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Director General, Transport NSW v AIC [2011] NSWADTAP 65 Mahommed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62 Saadieh.v Director General, Department of Transport [1999] NSWADT 68 Singh v Director General, Department of Transport [1999] NSWADT 96 Special Protection Services (NSW) Pty Limited v Commissioner of Police, NSW Police Force; Constantin v Commissioner of Police, NSW Police Force [2015] NSWCATOD 112 Category: Principal judgment Parties: Amit Sikka (Applicant) RMS (Respondent) Representation: Solicitors: Amit Sikka (Applicant in person) Smyth Wozniak Lawyers (Respondent) File Number(s): 1620030 Reasons for decision Background 1. This matter involves an application to the Tribunal by Mr Sikka to review a decision by the Respondent, (sometimes referred to in these reasons as RMS) on 9 December 2015 (the Decision) to refuse Mr Sikka's 21 October 2015 application for a New South Wales public passenger vehicle driver authority (the 2015 Application). Issues 1. The issues in dispute were whether the Applicant was of good repute and in all other respects a fit and proper person and of sufficient responsibility and aptitude to be a public passenger vehicle driver and convey members of the public. Material before the Tribunal 1. The Respondent relied on 1. documents (the s 58 documents) filed with the Tribunal pursuant to section 58 of the Administrative Decisions Review Act 1997 (the ADR Act); 2. an unreported ex tempore decision by the Administrative Decisions Tribunal (ADT) on 11 March 2013 in matter 123138 Sikka v Roads and Maritime Services (the ADT Hearing) and a transcript of that hearing. That matter involved an application by Mr Sikka, the Applicant in these proceedings, to review the cancellation by RMS on 12 April 2012 of the Applicant's taxi driver authority. The ADT affirmed the cancellation at first instance and on appeal; 3. a decision of this Tribunal in November 2014 affirming the refusal by RMS on 18 June 2014 of an application by Mr Sikka for authorisation to drive a taxi-cab (the 2014 NCAT Decision); and 4. oral submissions by Mr Wozniak, solicitor for the Respondent. 1. The Applicant relied on: 1. the grounds in his application to the Tribunal (the Application); 2. his written submission received by the Tribunal on 5 April 2016; 3. the s 58 documents; 4. a written statement by Mr Michael Jools and oral evidence from Mr Jools to the Tribunal; 5. a reference by Mr Rupinder Bhatia dated 4 April 2016; and 6. oral evidence and submissions by the Applicant. Jurisdiction of the Tribunal 1. The Application was made pursuant to s 52 of the Passenger Transport Act 1990 (the Act) which relevantly provides that a person whose application under Part 4 of the Act (which includes an application for an authorisation to drive taxi-cabs) has been refused, may apply to the Tribunal for an administrative review, under the ADR Act, of the refusal. All references throughout this decision to sections are to sections of the Act unless stated to the contrary. 2. Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision such as the Decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision. Consideration Legislative scheme 1. Division 5 of Part 4 of the Act, sections 33 to 33F, contains provisions in respect of authorities to drive taxi-cabs. 2. Section 33 provides that a person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. The purpose of the authority 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-cabs service concerned is operated, and (ii) in accordance with law and custom. 1. Section 33B provides that RMS may grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application. The section also provides that before an application is granted, the applicant must meet any criteria set out in the Passenger Transport Regulation 2007 (the Regulations) and must satisfy RMS as to any matter RMS considers relevant. 2. Regulation 29 relevantly requires that an applicant for a driver authority which includes an authority to drive taxi-cabs in the Metropolitan Transport District must satisfy RMS that he or she: (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. The case against Mr Sikka The Decision 1. In the Statement of Reasons segment of the Decision under the heading "Reasoning process that led to the decision" RMS said: RMS has a continuing obligation under the Passenger Transport Act 1990, to ensure that persons authorised to drive public passenger vehicles are of good repute and in all other respects fit and proper persons, with sufficient responsibility and aptitude to 'drive the vehicle in accordance with the conditions and standards under which the vehicle concerned is operated, in accordance with law and custom. To be of 'good repute' and in all other aspects a lit and proper person' to drive a public passenger vehicle, the community must have confidence that a driver would behave appropriately at all times and comply with the regulations governing public passenger transport. The concept of 'fit and proper' is one of intrinsic nature of a person. Whether the person is possessed of sufficient moral rectitude and character as to permit to be safely authorised, without further inquiry, as a person who is to be entrusted with the responsibility to be a public passenger vehicle driver and convey members of the public. The fact that during your time as a taxi driver you accumulated seven complaints against you, in relation to 'refusing a fare/hire when for hire' and 'demanding more/other than prescribed fare,' indicates that you have total disregard in complying with your legal obligations as the driver of a public passenger vehicle under the Passenger Transport Act 1990 and its associated regulations. The public place their trust in the drivers of public passenger vehicles and trust that the drivers will behave appropriately and in accordance with the law at all times. Passengers are entitled to expect that taxi drivers will act with civility and propriety towards any passenger, intending passenger, driver of another taxi cab or an authorised officer. The complaint against you from 21 June 2011, 'demanding more/other than prescribed fare,' and your complaint from 26 July 2011, indicates that you did not behave in accordance with the law on two separate occasions, you attempted to take or have taken more than the passenger should have been charged. This is a breach of the trust that the passengers have in you. Your previous complaints history bears on your reputation and raises questions as to whether you possess sufficient responsibility to drive a public passenger vehicle in accordance with law and custom. In determining "public interest" one has to formulate it in terms of the perceptions of "a reasonable member of the travelling public." It's likely that a reasonable member of the travelling public would regard your previous history as sufficient to refuse your application for an authorisation, considering your previous history as a taxi driver. In view of your previous history as a taxi driver, RMS cannot attest that you are a fit and proper person for the purposes of the Passenger Transport Act 1990. 1. The Decision states that the Applicant was issued with an authority to Drive taxi-cabs on 28 April 2009. It lists "Infringement Notices" and complaints against Mr Sikka as his "previous history as a taxi driver" on which it relied to refuse his 2015 Application. It also stated in its "Reasoning Process" that Mr Sikka's driver authority was cancelled on 12 April 2012 as "not fit and proper" due to his complaints history and that the cancellation was affirmed by RMS on 10 May 2012. The Decision continued: You then lodged an appeal with the then Administrative Decisions Tribunal (ADT) on 28 May 2012 and the decision was taken to grant you an urgent stay. The matter was relisted with the ADT for hearing on the 10 October 2013. On 25 October 2013, the ADT made the decision to dismiss the appeal. 1. The above excerpts do not provide all relevant details of the Applicant's taxi driving history nor of his applications to the Tribunal and the ADT prior to these proceedings. These matters are outlined in more detail below. Infringement Notices 1. The details of "Infringement Notices" are: ● 10 December 2010 — 3042973542 'Driver of taxi cab. not accepting hiring when offered' ● 7 August 2011 - 3060141096 'Driver of taxi cab not accepting hiring when offered' - 3060141105 'Driver of taxi cab not display authority card in holder' - 3060141114 'Driver not comply with requirement of officer/passenger' 1. No evidence was brought to the attention of the Tribunal in support of any of these details. Accordingly, I regard these details as unsupported allegations. Complaints against Mr Sikka 1. The Decision outlines brief details of seven complaints against Mr Sikka between December 2009 and July 2011. The Decision also states that three of the seven complaints were found to be "not justified". 2. Notwithstanding that three of the complaints were found by RMS not to be justified I observe that in respect of each such complaint, RMS states in the Decision "it is of concern to RMS as it shows a pattern of behaviour while conducting business that is not in accordance with law and custom." I take the opportunity to note the concern of the Tribunal that RMS should allege such a pattern in respect of complaints which RMS conceded were found to be "not justified". 3. I will focus on the four complaints found to be "justified". Three of them are relatively minor and the fourth involves allegations of fraud and forgery. In summary the first 3 are: 1. 16 March 2011 a complainant alleged she approached the driver of a taxi parked on a taxi rank and asked him to take her to a particular suburb. The driver refused as he stated he was finishing his shift.On investigation by an organisation known as Combined Communication Network (CCN) RMS states that Mr Sikka was identified as the driver. Mr Sikka said there was no way that he would have refused a hiring at that time. "It was hard enough to make a living without refusing a fare." Notwithstanding the obvious conflict between the statement by the complainant and Mr Sikka's statement, the Decision states the complaint was found to be justified and Mr Sikka was counselled. 2. A complainant alleged that at on 18 March 2011, he hailed the driver of a taxi on George Street, Sydney, and asked the driver to convey him to Strathfield. The complainant alleged that the driver had locked all of the doors and stated that he was not heading in that direction. The complainant alleged that (while) he was holding the door handle the driver sped away, hurting his fingers. 3. The driver was identified by CCN as Mr Sikka. An investigation ensued, Mr Sikka did not provide a comment. This complaint was found to be justified and it was recorded for future reference. 4. On 30 November 2011 a complainant alleged she approached the driver of a taxi and asked him to convey her from George Street Sydney to Oxford Street Bondi Junction. The driver is alleged to have refused to convey the complainant, stating that he was finishing his shift in fifteen minutes. Mr Sikka was identified by CCN as the driver concerned. On investigation by CCN Mr Sikka alleged that the complainant was affected by alcohol so he refused the fare. The complaint was found to be justified and he was issued with a reprimand. 1. I observe that in two of the above complaints Mr Sikka made statements in respect of the complainant which were not accepted by RMS. No reason was provided to the Tribunal as to the failure to accept Mr Sikka's statements. The identity of the complainants was not made known to the Tribunal and no evidence was provided as to the statements made by any of these anonymous complaints. I observe that no evidence was brought to the attention of the Tribunal as to any corroboration of allegations by either of the complainants whose complaint was preferred to Mr Sikka's statement. 2. I also observe that Mr Sikka did not deny the complaint against him on 18 March 2011. The major complaint 1. The Decision contains a brief two paragraph summary alleging fraud and forgery against Mr Sikka in relation to events of 21 June 2011 and earlier. These events have been the subject of the ADT Hearing, the First and Second ADT Appeals and the 2014 NCAT Hearing. The hearings and decisions of the tribunals are dealt with below. At this point I note that the 2014 NCAT Decision outlined certain facts and referred to certain inferences which were drawn by the Panel as follows: 13 … it seems from the evidence accepted by the ADT on appeal that in the period from 1 June to 28 July 2011, there were 57 transactions in which there was a double charging of amounts to certain customer credit cards. A first charge was made for an amount and soon thereafter a second charge usually for a higher amount was made usually to the same credit card. In a few instances different credit cards were used for the second charge. 14 Mr Sikka had at first asserted that these multiple entries were as a result of a machine fault, an assertion for which he provided no independent evidence in support. Without traversing the details of those incidents, it seems that there was evidence accepted by the ADT that Mr Sikka had swiped the card a second time and that he had forged a number of signatures when that was necessary. 15 Thus, the Panel concluded (at paragraph 24) that in respect of certain transactions, the following inferences could be drawn: "...Mr Sikka swiped the passenger's card the second time; and Mr Sikka, as he would have done when performing the first transaction, inputted the amount to be charged and consistently inputted an amount different from the first amount and usually inputted an amount that was higher." 16 As to certain other transactions the Panel concluded at paragraph 25 that "...there is no doubt that the passenger signature that appears on the second docket is a forgery. In our view, the inference is inescapable that Mr Sikka was the author of the second signature. There is no dispute that Mr Sikka was the driver who dealt with that passenger, and the docket was one of those presented for encashment by Mr Sikka at the end of the shift." 17 These are very serious matters made all the more serious by virtue of the substantial number of double entries that were made over a two month period. 1. Mr Wozniak, solicitor for the Respondent, referred the Tribunal to paragraph 6 of the Panel's decision, at page 268 of the s 58 documents and orally submitted that there was a finding of "systematic fraud". 2. I observe that paragraph 6 on page 268, which forms part of the Panel's reasons for decision falls under the heading "RMS Concerns". That paragraph is: The key concerns were (1) an in-cab payment transaction involving a credit card, where the customer's credit card was charged twice in different amounts for the one fare (21 June 2011, complaint lodged with RMS 1 August 2011); and (2) the discovery, as a result of the RMS investigation of that complaint, that Mr Sikka had been questioned on 21 July 2011 by Ms Mikhael whose company, GM Cabs, supplied the in-card credit card terminal used by Mr Sikka, over numerous double-charges. He had agreed to refund $3406. In all instances the second transaction had occurred a very short time after the first transaction, usually around 50-60 seconds later. 1. I also observe that the paragraph does not contain findings by the Panel. Rather it is the Panel's outline of submissions by RMS.` History of relevant applications by Mr Sikka to the ADT and the Tribunal The ADT hearing and appeals 1. The evidence includes a transcript of the ADT Hearing and the oral decision in favour of RMS delivered at the end of that hearing. Mr Sikka appealed against this decision. The Appeal was heard in two stages, firstly Sikka v Roads and Maritime Services (GD) [2013] NSWADTAP 28 on 9 May 2013 (the First ADT Appeal) and secondly Sikka v Roads and Maritime Services (No. 2) (GD) [2013] NSWADTAP 48 (the Second ADT Appeal). Unless stated to the contrary all references in these reasons to "Panel" are to the Appeal Panel which decided the Second ADT Appeal. The First ADT Appeal 1. At the commencement of the principal judgment in the First ADT Appeal the Appeal Panel set out a useful history of the complaint arising from the events of 21 June 2011 including: 1. After internal review, RMS (RMS) decided on 10 May 2012 to affirm its decision first advised 28 April 2012 cancelling Mr Sikka's taxi-cab driver authority. 2. The authority was issued under s 33(1) of (the Act)… 3. The power to cancel is given by s 33F… 4. RMS acted on the basis of four matters. First, it found justified a specific passenger complaint of double charging, made 1 August 2011 in relation to a trip paid for by credit card that occurred on 21 June 2011. Second, it ascertained in the course of investigating that complaint, that Mr Sikka had settled with the company that processes credit card payments a number of complaints to it of double charging by him, in the amount of $3406. Third and fourth, it referred to his complaints record and traffic infringement history in the period since 2009 when he first received his authority. He was then 30 years old. 5. Mr Sikka applied to the Tribunal for review of the decision on 28 May 2012, and was granted a stay of RMS's decision pending further order. The hearing time-table was extended in order to allow RMS to investigate an explanation given by Mr Sikka that he was not personally culpable in relation to the instances of double charging because he had been supplied with a faulty terminal that had resulted in second dockets being produced unbeknown to him. 6. … At the conclusion of the hearing on 11 March 2013 the Tribunal proceeded to make its final order, affirming the decision under review, and delivered short, oral reasons. 7. Mr Sikka lodged his appeal…immediately after the Tribunal gave its oral reasons, along with an application for a stay of the Tribunal's decision. … 8. Mr Sikka's notice of appeal did not itemise any questions of law, … 9. His immediate object was to have the stay he had enjoyed from 31 May 2012 to 11 March 2013 reinstated so that he could stay working. 10. The stay application was listed for 25 March 2013. A stay for a limited period was granted by the Appeal Panel … pending provision of a transcript of the oral reasons, with the application re-listed for further consideration once the transcript of the oral reasons became available. The President then vacated the stay order at the next preliminary hearing, 23 April 2013… 11. … 1. The outcome of the First ADT Appeal was that the decision of the ADT Hearing was set aside and the application by Mr Sikka to extend the appeal to the merits was granted. The Second ADT Appeal 1. On 10 October 2013 Mr Sikka's appeal on the merits from the ADT Hearing was heard. On 25 October 2013 the Panel dismissed the appeal and affirmed the RMS Decision. 2. The Panel said: 29 In our view, Mr Sikka has not come to terms with his misconduct. He does not acknowledge that he did anything wrong. He has a misplaced belief that RMS and GM Cabs are in league to stop him working as a driver. His belief that the machine is to blame is far-fetched. Until he accepts responsibility for his misconduct, and can show that he has taken steps that might suggest he could be again trusted to conduct himself with honesty and integrity, he must be regarded as not fit to be granted a driver authority. The 2014 NCAT Hearing 1. The section 58 documents show that on 19 March 2014, within six months of the decision on the Second ADT Appeal, Mr Sikka applied to RMS for an authority to drive a taxi-cab. The application was refused on 18 June 2014 (the 2014 Refusal) for reasons set out at page 294 of the section 58 documents. In summary RMS stated that Mr Sikka's: …previous complaints history bears on your reputation and raises questions as to whether you have sufficient responsibility to drive a public passenger vehicle in accordance with law and custom…. It could be reasonably considered that any member of the travelling public being aware of your history as driver would object to being a passenger in a taxi-cab driven by you… RMS can not attest that you are a fit and proper person for the purposes of the Passenger Transport Act 1990. 1. I observe that the complaints history outlined by RMS in the 2014 Refusal identifies the same complaints of that as those contained in the Decision and uses almost identical wording to describe those complaints. 2. Mr Sikka applied to the Tribunal, which had replaced the ADT, to review the 2014 Refusal. 3. In Sikka v Roads and Maritime Services [2014] NSWCATOD 138 (the 2014 NCAT Hearing) the Tribunal, on 25 November 2014, affirmed the 2014 Refusal. In the course of its reasons the Tribunal referred to certain inferences drawn against Mr Sikka by the Panel and said at [19] and [20]: … the question to be considered now is whether, with the effluxion of time, Mr Sikka has shown that he is a reformed man who is now a fit and proper person who should be granted the relevant authority. Several factors are important in this context and in summary they include in particular: ● The extent and gravity of Mr Sikka's offending behaviour; ● Whether Mr Sikka initiated the offending behaviour; ● The history of Mr Sikka's behaviour outside of the offending behaviour; The extent to which he acknowledges his offending behaviour; ● His remorse at having engaged in his offending behaviour; and ● The extent to which he can objectively be seen to have reformed such that the Tribunal can now be satisfied that he will not repeat the offending behaviour. 1. Having considered the above factors, the Tribunal said that the matters arising from the findings of the Panel: suggest a clear lack of honesty. Inevitably, honesty must be a central consideration in determining whether a person is a fit and proper person with the required responsibility and aptitude to drive a public passenger service vehicle in accordance with the statutory conditions, the law and custom. 1. The Tribunal went on to say at [27] that it was "not satisfied that Mr Sikka has properly come to terms with what he has done and has not at this stage acknowledged in a clear and unambiguous fashion that his actions were deliberate and dishonest" and later: 32 At a further point in the Submission, Mr Sikka indicates that he has had counselling and assistance though no evidence has been provided to that effect. 33 Thus, apart from making the statement that he has resolved to act differently and the statement that he has had counselling and assistance, there is no tangible evidence to support any of this. The only possible exception is that there was some evidence to show that for a limited period of time while he was able to drive, no further complaints were made. 35 Accordingly, the Tribunal needs to make a decision based on the various factors referred to above. Having regard to those matters, the Tribunal is not at this stage satisfied that Mr Sikka is a fit and proper person to whom an authority should be granted. In particular, the Tribunal is concerned as to the nature and gravity of the offending behaviour and the tentative and somewhat reserved admission of guilt in the face of numerous findings by the ADT and a similarly tentative and somewhat reserved expression of remorse. Remorse and acknowledgement of wrongdoing 1. During the hearing before me Mr Wozniak submitted that Mr Sikka's position up to today (4 May 2016) was that he had "done nothing wrong". I reject that submission. 2. In the 2014 NCAT Decision the Tribunal noted at [30] "it does appear that there is some remorse expressed for the loss that has been incurred by others." At [31] in that decision is a reference that the submission lodged on behalf of Mr Sikka said that over the last two years he has "resolved never to do anything which might initiate such essentially fraudulent transactions". 3. In the statement dated 19 October 2015 submitted with the 2015 Application Mr Sikka wrote: "I… lost my Taxi authority as a result of complaints and allegations against me. Those matters were found to be valid by RMS and NCAT and I accept their judgement. At that time I tried to defend myself as I believed I was not at fault but due to lack of substantial proof I could not prove my innocence. I accept that on the balance of probabilities I was guilty of the offenses (sic) and since then have behaved in a manner which, by now, should show my remorse and changed attitudes. … I was and am remorseful of all that has happened…" Issue estoppel 1. During the hearing Mr Wozniak submitted that the Tribunal was bound by the findings of the Panel. Mr Wozniak provided no authority for this submission. For the reasons set out below I reject that submission. 2. In Special Protection Services (NSW) Pty Limited v Commissioner of Police, NSW Police Force; Constantin v Commissioner of Police, NSW Police Force [2015] NSWCATOD 112 (14 October 2015) Lucy SM considered the issue of the relevance and effect of previous tribunal decisions on subsequent tribunal hearings. 3. The Senior Member's review at [52] to [56] canvassed a range of decisions of superior courts including the High Court, the Federal Court and the Victorian and New South Wales Courts of Appeal and decisions of the ADT Appeal Panel. The decisions reviewed indicated that a decision of a tribunal in the exercise of its original jurisdiction could give rise to an issue estoppel. 4. The Senior Member's conclusion, at [57] was that the authorities favour the view that administrative review proceedings of this Tribunal and of the ADT do not create an issue estoppel." The Senior Member continued at [58]: In deciding what the "correct and preferable decision" is (Administrative Decisions Review Act, s 63(1)), the Tribunal is entitled to have regard to factual findings made by it or other administrative bodies such as the ADT (see Re Thorpe and Commissioner of Taxation (2011) 123 ALD 355 at 366 [72]; Barbaro v Minister for Immigration and Ethnic Affairs (1982) 65 FLR 127; 44 ALR 690 at ALR 693-694). The Tribunal has a discretion as to how much weight it gives to factual findings made in those proceedings, and may "take into account the undesirability of requiring the parties to relitigate a matter that has already been the subject of extensive litigation in other forums" (Re Thorpe and Commissioner of Taxation (2011) 123 ALD 355 at 366 [72]). (wording in bold is my emphasis) 1. Merit review proceedings such as the present matter are administrative review proceedings. With respect, I adopt the Senior Member's position that such proceedings do not create findings which are binding on subsequent tribunals. The case for Mr Sikka Criminal history 1. The Decision states at pages 331 of the section 58 documents that "criminal and traffic history checks were conducted with the NSW Police, along with a review of your previous history as a taxi driver". A series of "findings" were then listed which were followed by: Evidence of the above facts is in the form of: ● Information received from NSW Police ● RMS Records 1. At page 317 in the section 58 documents is a consent by Mr Sikka for a National Criminal History Record Check. No evidence was put to the Tribunal as to whether any Criminal History Record Check took place, nor if it did what were its results. No evidence was tendered of any criminal charge or conviction of Mr Sikka at any time, nor indeed of any "Information received from NSW Police". Accordingly, I find that there is no evidence that Mr Sikka has been convicted, or charged, with any criminal offence in Australia. Driving history 1. The Applicant's driving record put to the Tribunal in evidence disclosed that as at October 2015 he held a heavy Vehicle Driver Licence with an expiry date of October 2018. 2. The section 58 documents include at pages 300 to 303 in a Current Licence Detail Enquiry that Mr Sikka held as a 27 October 2015 a gold NSW driver licence, apparently issued 12 August 2013. Mr Sikka's driving record on page 300 indicates that a learner licence was issued in 1998 and he has held an unrestricted licence since 1999. The only negative details are: 1. 31 March 2008 the offence of being an unlicensed driver/rider was proved and dismissed under section 10; 2. 14 May 2009 Mr Sikka was fined $189 in respect of disobey left turn/right turn/no turns sign at intersection; and 3. 22 August 2011 Mr Sikka was fined $201 for the offence of disobey traffic lane arrows/marked lane road markings. Australian citizenship 1. The section 58 documents include at page 316 a certificate of Australian Citizenship signed by the Minister for Immigration and Border Protection evidencing that Mr Sikka acquired Australian citizenship on 30 July 2015. References 1. Mr Sikka provided a reference from Mr Rupinder Bhatia, a registered tax agent, dated 4 April 2016. The referee stated that he was aware that Mr Sikka had "lost his Taxi licence as a result of complaints against him whilst driving the taxi". The referee states that he has been a friend Mr Sikka for the last four years and personally knows him and has "found him to be a very honest hard-working family-oriented and person of high values". The referee states that being aware of the facts and the history he would not refuse to be a passenger in a taxi driven by Mr Sikka. 2. I observe that although Mr Bhatia stated that he was aware of "complaints" and "the facts and the history" he did not state what they were. This may be because Mr Sikka did not have legal assistance in preparing any of his applications to the ADT or this Tribunal nor was he legally represented at any of the hearings. However, it leaves open the question as to what details of complaints and history the referee knew of. 3. Other references on behalf of Mr Sikka, all dated September or October 2015, are at pages 305 to 310 of the section 58 documents. One reference is from the above named Mr Bahtia, the other references are from two medical practitioners and Mr Jools, a taxi driver and the President of the Australian Taxi Drivers' Association, who represented Mr Sikka at his previous applications to the ADT and the Tribunal and who gave oral evidence before me in these proceedings. 4. Each of the references refers to knowledge of complaints which led to Mr Sikka's driving authority being cancelled by RMS and each referee vouches for Mr Sikka's honesty integrity and work ethic. The lack of details in Mr Bhatia's 2016 reference reflects the lack of detail in the references from the medical practitioners. Usually this lack of specificity would adversely affect the weight I am able to give to those references. 5. However, I observe that the Decision states in part of its "findings": On 26 March 2012, RMS (RMS) received a response to the Notice of Show Cause, together with four (4) character references. Enquiries revealed that the referees were not informed as to the reasons for providing a character reference…. 1. The Decision did not make any similar statement in relation to any of the 2015 or 2016 references (the current references) referred to above. No evidence has been provided to the Tribunal that any of the referees who provided the current references relied on by Mr Sikka were not informed of the details of the complaints against him prior to making their references. 2. Having regard to the above extract and the lack of a similar statement or evidence from RMS in relation to the current references, I give those references greater weight than I would otherwise have done. However, I also have regard to the fact that the references do not explicitly refer to the details of any of the relevant complaints against Mr Sikka. It may well be that the reason for the lack of explicit details lies with the lack of legal advice to Mr Sikka but I make no findings in that regard. Statements in the Second ADT Appeal Decision and the 2014 NCAT decision 1. The Panel said at [27] and [29]: 27 Mr Sikka had a relatively unblemished history in his first two years as a driver. He has pressed the view that in the several months he continued to drive while the case was before the Tribunal below, he has not offended in any way. We accept, in principle, that he should be accorded some recognition for his good history over the stay period. 29 …Until he accepts responsibility for his misconduct, and can show that he has taken steps that might suggest he could be again trusted to conduct himself with honesty and integrity, he must be regarded as not fit to be granted a driver authority. 1. While the decision in the 2014 NCAT Hearing included the statement that the Tribunal was not at that time satisfied that Mr Sikka was a fit and proper person to whom an authority should be granted the Tribunal also said: 36 This, of course, does not in any way preclude Mr Sikka from making a further application for an authority but this should only occur when the desired evidence referred to previously is available. In particular, what will be needed is a clear and unambiguous expression of admission and remorse, coupled with tangible objective evidence as to Mr Sikka's reformed character. This must support in a very meaningful way the conclusion that he is unlikely to repeat the offending behaviour. Evidence of counselling and other assistance should be provided to support such a future application. 37 When Mr Sikka can provide that kind of evidence, he can apply for an authority and should be able to convince RMS that he is then a fit and proper person to hold a taxi authority. For now, he falls short of the required standard. 38 I should note that Mr Sikka's history outside of the offending behaviour is good and if he can maintain that record it will greatly assist in any future application Evidence of counselling and assistance 1. In the 2014 NCAT Hearing the Tribunal noted that although Mr Sikka had stated that he had received counselling and assistance, this was not supported by any tangible evidence. 2. The statement by Mr Jools in support of Mr Sikka in these proceedings includes a statement that Mr Sikka accepted responsibility and that many hours' discussion had taken place between Mr Jools and Mr Sikka in relation to the relevant events. It may well be inferred that, although Mr Jools acknowledged that he has no training or qualifications as a counsellor, it is these discussions to which Mr Sikka referred as "counselling". Mr Sikka's personal interests 1. There is no doubt that notwithstanding the clear statements in both the Second Appeal Decision and the 2014 NCAT Decision as to the manner in which Mr Sikka might successfully reapply for an authority he has not admitted that he deliberately misused credit cards or was involved in any forgery. 2. Mr Sikka has made his personal position clear in that the impact of not having his taxi-cab authority was extremely detrimental to his family. His oral evidence was to the effect that he holds a heavy vehicle driver licence and has been driving heavy vehicles since the stay in respect of the Decision was removed over three years ago. Mr Sikka also gave some evidence in relation to his wife's illness and his need to be available at short notice to assist her, something which he said is not as practical for him in the heavy vehicle industry as it is in the taxi industry. 3. In Mahommed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62 the Appeal Panel said at [17] and [18]: The jurisdiction in this field is protective not punitive. In Khan v RMS [2014] NSWCATOD 23 at [25] it was said, in terms which we would adopt, that: 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) 1. Having regard to Shamsuzzaman, Khan and Lal and notwithstanding Mr Sikka's submissions I find that it is not appropriate for Mr Sikka's personal interests to be taken into account in determining the correct and preferable decision in this matter. 2. However, it seems to me that Mr Sikka's statements as to the negative impact on his family of the loss of his authority and his understanding of the likely effect of a repetition of justified complaints should he regain an authority provide a very strong incentive for Mr Sikka to ensure that no events would occur which might lead to a repetition of such complaints. Payment of $3406 to GM Cabs and letter from GM Cabs 1. In the ADT Hearing the tribunal expressed the view that it was implausible that a taxi driver would repay an amount of $3400 when he had not done anything wrong. 2. The Panel said at [23] "the Tribunal below rightly drew an inference, contrary to Mr Sikka's assertions, that his actions were consistent with him having done wrong" 3. Mr Sikka's sworn evidence before me was that Ms Mikhael showed him on her GM Cabs computer what she said was overcharging by his eftpos terminal. She informed him that the amount of the duplication was some $3400 and asked him to repay it. Mr Sikka acknowledged that he was not entitled to double payment for his work. He said that he accepted the accuracy of Ms Mikhael's calculation of the amount overpaid and acknowledged his responsibility for any errors arising from the operation of his terminal. 4. The Panel stated at [21] and [22]: It is regrettable that Ms Mikhael said what she did to Mr Sikka at the beginning, and issued the letter to that effect. She has been candid with the inspectors and the Tribunal over why she said what she said to Mr Sikka at the time. In our view, it involved no more than a manager saying something comforting to a driver who was faced with a situation that threatened his livelihood, and might well have led to police charges. We do not accept Mr Sikka's assertion that the words of threat were used by Ms Mikhael and he felt compelled to make the refund…. 1. The letter to which reference is made at [21] is at page 205 in the section 58 documents. It is on GM Cabs Pty Ltd letterhead, dated 14 July 2012 and addressed "to whom it may concern". The letter states: "Mr Sikka had our eftpos terminal which was changed over to a new terminal due to incorrect programming. Currently has a working eftpos terminal with no errors." 1. At [13] the Panel said "Ms Mikhael stated in her record of interview with RMS compliance officers dated 31 January 2013 that she had agreed to give him (Mr Sikka) such a letter if he paid back the second charges." I understand that this is what the Panel referred to at [21]. 2. I am uncertain as to the reason why the letter was prepared and provided by Ms Mikhael some 12 months after Mr Sikka made the requested payment and I make no finding in that regard. 3. At [11] in the Panel's Decision is a reference to Ms Mikhael saying to Mr Sikka, during their discussion on 21 July 2011 that she was keen to resolve the matter quickly to avoid having her company billed by the relevant bank at the rate of $30 per dispute transaction if there was any delay in resolving the matter. 4. Mr Sikka's evidence was that he paid the $3400 because he was worried he might lose his job, not because he had done anything wrong. 5. I have not had the opportunity to observe Ms Mikhael's demeanour nor was all of her evidence at prior tribunal hearings put to me during the proceedings. 6. I observe that Mr Sikka's statement as to the reason he paid the money to GM Cabs was not accepted at either the ADT Hearing or the Second Appeal. 7. However, having had the opportunity to observe Mr Sikka and in the context of the circumstances in which he found himself in the discussion with Ms Mikhael on 21 July 2011, I find that his evidence that he agreed to and made the payment because he was concerned he would lose his job quite plausible. 8. I note that in finding Mr Sikka's evidence plausible, I make no aspersions concerning Ms Mikhael or the credibility of her evidence. Lack of evidence of overpayments to Mr Sikka 1. I found no indication in any of the prior tribunal decisions involving Mr Sikka of evidence as to the amount of money received by him from GM Cabs when he submitted his dockets at the end of the 21 June 2011 shift or any other shift worked on the 28 days in which he allegedly overcharged passengers and received excess payments. Nor was any such evidence brought to my attention in the course of the hearing. 2. Mr Sikka's evidence before me was to the effect that at the end of his shift his practice was to provide a bundle of dockets to GM Cabs' employees and he would receive cash in exchange. He said he did not receive any receipt from GM Cabs nor was any other paperwork provided from him to GM Cabs or from GM Cabs to him when he cashed the dockets. This evidence was not disputed by RMS and I accept it. Mr Sikka's command of the English language 1. I observed that Mr Sikka's English expression was poor and he had difficulty making submissions. He was also easily confused as a witness when answering questions in cross-examination and when answering questions I put to him. However, I find that this does not necessarily mean that his evidence was not plausible. Some findings of the Second Appeal Panel GM Cabs computer system 1. The Panel at [18] to [20] rejected Mr Sikka's assertion that the evidence from officers of GM Cabs in support of the transaction history produced by that businesses computer system and presented to the Panel "could be explained by machine fault". The Panel said this was "an assertion for which he produced no independent evidence in support". 2. It appears from the Panel's reasons that no independent evidence was provided to the Panel concerning the computer system, whether in relation to an audit trail, any possible fraudulent manipulation of the system, defects in the software or any other aspect of the system's operation. It appears that in this respect, the Panel apparently relied on evidence from officers of GM Cabs including at [18] and [19] opinion evidence from Ms Mikhael as to the operation and reliability of the eftpos terminals supplied by their employer, GM Cabs, to taxi drivers. I did not observe in the Panel's reasons a reference to any relevant technical training or expertise of Ms Mikhael. Forgery 1. At [25] the Panel said, in relation to the only allegedly forged docket in evidence "… the inference is inescapable that Mr Sikka was the author of the second signature…" 2. I observe that the Panel's reasons do not refer to any expert hand-writing evidence in relation to the forgery nor is there indication as to any consideration having been given to the possibility of any relevant forgery having occurred while the docket was in the possession of GM Cabs. 3. My observations do not necessarily lead me to a finding that Mr Sikka did not forge a signature. However, I have regard on the one hand to the importance to Mr Sikka of retaining or obtaining another driver authority and the clear indication by the Panel and the 2014 NCAT Tribunal that an acknowledgement of responsibility for the apparent forgery may well assist Mr Sikka in regaining his authority and on the other hand his repeated denial, including on oath over a period of several years, that he had committed any forgery. I also have regard to the references provided in support of his character. "Good repute" and "fit and proper" 1. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Mason CJ said at [63]: 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. 1. In Saadieh.v Director General, Department of Transport [1999] NSWADT 68 Hennessy DP said at [15] and [17], in a review of a decision to cancel a taxi authority and having regard to ss 11 and 12: 15. … I do not accept the respondent's submission that the applicant is not of good repute merely because his criminal record indicates bad repute and there is no other evidence of repute. Many applicant's (sic) before the Tribunal are unrepresented. They do not understand, nor should they be expected to understand, that references or other evidence of their repute in the community would be useful in counteracting any evidence of bad repute which can be assumed on the basis of a criminal conviction. A person's criminal record alone is not necessarily evidence of bad repute which is sufficient to disqualify that person from holding a taxi authority. All the circumstances of the case must be taken into account in assessing a person's suitability to be obtain or retain such an authority 17. Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; the nature, seriousness and frequency of any complaints made against the applicant; the applicant's driving record; the applicant's reputation in the community; and the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 1. In Singh v Director General, Department of Transport [1999] NSWADT 96 Hennessy DP referred to her decision in Saadieh and said in relation to the last factor: 33 I also noted in that case that in assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time; and any change in the applicant's circumstances such as increased support from friends, family or professional service providers. 1. In Director General, Transport NSW v AIC [2011] NSWADTAP 65 the Appeal Panel of the ADT was dealing with the nature of the power of an administrator to suspend an authority to drive a public passenger vehicle. The Appeal Panel said at [12] in relation to the word "attest" which appears in s 11: … The primary meaning of this word is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' (Macquarie Dictionary , 4th ed. 2005). The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present context. 1. In relation to the attestation "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" the Appeal Panel said at [13] the paragraph focuses on general characteristics of the driver relevant to the regulated function and: The expression 'good repute and in all other respects a fit and proper person' is meant, we think, to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern. It gives greatest weight to 'good repute'. For a recent discussion of the matters to which the terms 'good repute' and 'fit and proper' are addressed see Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 per Newnes JA (Pullin, Buss JJA agreeing). 'Fit and proper' goes to such matters of character as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry (per Newnes JA at [27] citing with approval remarks of Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70); and 'repute' goes to the public estimation of the person (at [28]-[29]). 1. I have had regard to the evidence and submissions put forward by RMS, the allegations and reasons in the Decision, the decisions of the ADT at first instance and on appeal and the 2014 NCAT hearing, including the preference given to evidence by Ms Mikhael over the evidence of Mr Sikka, and the admissions made by or on behalf of Mr Sikka. 2. I have had regard to Mr Sikka's evidence and submissions, his references, the lack of evidence of any adverse behaviour as a taxi driver other than that referred to in the Decision, his driving history since 1998, the comments by the Panel and by the tribunal in the 2014 NCAT Decision as to his otherwise good record, the lack of evidence of any criminal charges or convictions at any time, the grant of Australian citizenship some 12 months ago, the effluxion of some five years since the events giving rise to the complaints and the apparent overcharging in June and July 2011, the incentive to Mr Sikka to retain his authority if a new authority is granted to him. 3. I also have had regard to Mr Sikka's difficulties with the English language and his understandable lack of knowledge of the law and tribunal procedure. I observe that it is regrettable that Mr Sikka was not legally represented in any of the proceedings before either the ADT or the Tribunal. Decision 1. Having regard to my above findings, the matters referred to in the immediately preceding three paragraphs and the relevant legislation and its interpretation in the decisions referred to above I am satisfied that it is appropriate for me at this time, to attest that the Mr Sikka is again of good repute and is in all other respects a fit and proper person to be the driver of a taxi-cab and to be the holder of an authority for that purpose. Orders 1. The decision of the respondent to refuse the applicant's application to be an authorised taxi-cab driver is set aside. 2. In substitution for that decision the following decision is made: The applicant's application to be an authorised taxi-cab driver is granted. 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: 02 August 2016