Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CQZ v Roads and Maritime Services [2016] NSWCATOD 109 Hearing dates: 12 May 2016 Date of orders: 17 August 2016 Decision date: 17 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. Legislation Cited: Administrative Decisions Review Act 1997 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: 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 Sikka v Roads and Maritime Services (No. 2) (GD) [2013] NSWADTAP 48 Sikka v Roads and Maritime Services [2014] NSWCATOD 138 Singh v Director General, Department of Transport [1999] NSWADT 96 Category: Principal judgment Parties: CQZ (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: CQZ (Applicant in person) Smyth Wozniak Lawyers (Respondent) File Number(s): 1620033 Reasons for decision Background 1. On 2 December 2015 CQZ (sometimes referred to in these reasons as the Applicant) applied to the Respondent (sometimes referred to in these reasons as RMS) to renew her taxi-cab driver authority. On 21 December 2015 RMS refused the application (the Refusal). CQZ requested an internal review of the refusal (the Review Application) and on 22 January 2016 RMS notified her that the original decision to refuse her application had been affirmed (the Decision). On 5 February 2016 CQZ applied to the Tribunal to review the Decision (the Application). 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 Administrative Decisions Review Act 1997 (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. Issues 1. The issues in dispute are whether the Applicant is 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. a bundle of documents filed with the Tribunal on 5 April 2016 pursuant to section 58 of the ADR Act (the s 58 documents).I observe that all references in this decision to pages of any document are to pages of the section 58 documents unless stated to the contrary; 2. documents received from the Kogarah Local Court ("Court Documents" and "the Court"); and 3. oral submissions by Mr Wozniak, solicitor for the Respondent. 1. The Applicant relied on: 1. the grounds in her Application; 2. her written submission with three references filed with the Tribunal on 31 March 2016; 3. the s 58 documents; and 4. oral evidence and submissions by the Applicant. 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. 1. Section 54 relevantly states: 54 Offences involving credentials A person who: (a) by any false statement or misrepresentation, obtains or attempts to obtain any …, authority or authorisation under this Act …, or … is guilty of an offence. The case against CQZ The Decision 1. The Statement of Reasons segment of the Decision states that the author has been directed to conduct an internal review of the refusal decision, that the author was not involved in the Refusal and is "suitably qualified to deal with the issues raised by the application". The remainder of the Statement of Reasons proceeds under three headings which are Applicable Law, Findings on material issues of Fact, and Reasoning process that led to the decision. 2. Under the heading "Applicable Law" the Decision provided excerpts from sections 33 (3), 33B and 54, relevant details of which are set out above. 3. Relevantly, the Decision under the heading "Finding on Material Issues of Fact" stated: Roads and Maritime Services received information that: On 13 September 2013, you were charged with the offences of Reckless wounding - (DV) (T1) and Reckless grievous bodily harm (DV) (T1) following a domestic violence matter which occurred on 23 August 2013. On 12 December 2013, the matters were heard at Kogarah Local Court where you were convicted of these offences. You were sentenced to nine months imprisonment to be served by way of intensive correction in the community … …when completing the Application to Renew Taxi Driver Authorisation, you answered "no" to the first question where it asks "Since you were first issued with or last renewed your driver authority are there any charges pending against you for any criminal offences or have you been found guilty or convicted by a court in NSW or elsewhere of any criminal offence." In addition to this, when completing the Application for Replacement Driver Authority, you answered "no" to question 8 where it asks "Since last obtaining your public passenger driver authority, have you been found guilty or convicted by a court in NSW or elsewhere or are there any charges pending against you for any criminal offences". 1. The segment of the Decision headed "Reasoning process that led to the decision" includes: Based on the information collected to process the application which included a Police Check and Driver History, and the information provided by you, I have reviewed this matter from first principles, and I agree with the decision to refuse the application. Roads and Maritime cannot attest to either: ● good repute; or ● a fit and proper person to be the driver of a taxi-cab in accordance with law and custom Under the Passenger Transport Act 1990, Roads and Maritime has a continuing obligation to ensure that persons authorised to drive taxis are of good repute and in all other aspects 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. Roads and Maritime records indicate that you were convicted at Kogarah Local Court of the offences "reckless wounding - (DV)(T1)" and "reckless grievous bodily harm (DV)(T1)". As a result, you were sentenced… Failing to declare the convictions on the application forms to replace and renew your authority has also raised doubts about your honesty and integrity. As a result of this, I cannot attest to the fact that you are a fit and proper person or of good repute for the purpose of the Passenger Transport Act to drive a public passenger vehicle. Roads and Maritime is required to consider the application from the standpoint of public safety, and in that sense, must consider whether a fare paying passenger would be comfortable being transported by you in the confines of a taxi. In determining public interest one has to formulate it in terms of the perceptions of "a reasonable member of the travelling public". It is likely that a reasonable member of the travelling public would regard your criminal history as sufficient to refuse your application for an authorisation. Having regard to the offences in respect of which you were charged and giving due weight to the matters put forward by you, I affirm the decision made by Roads and Maritime to refuse the application for a taxi and private hire vehicle driver authority. Manager, Compliance Information Internal Reviewer 1. No written submissions were provided on behalf of RMS. In his oral submissions, Mr Wozniak, solicitor for RMS, submitted that there were two main issues, convictions of CQZ and deception of RMS by CQZ. Convictions 1. Mr Wozniak submitted that the convictions were serious, and informed the Tribunal that they carried a maximum penalty of seven years' imprisonment or if heard at a Local Court, two years. Mr Wozniak observed that the intensive correction order expired on 12 September 2014 and submitted that insufficient time had passed for CQZ to obtain an authority. Deception 1. Mr Wozniak stated that clause 44 of the Regulations contains a positive obligation on the driver of a public passenger vehicle to notify RMS of written details of any alleged offence (other than a parking offence) with which the driver is charged by a police officer. Mr Wozniak submitted that if CQZ had complied with this obligation RMS would have suspended her authority. I accept that it is possible that RMS may have suspended CQZ. However, I reject the submission in that the Regulation provides for a maximum penalty of 10 penalty units, not suspension, and Mr Wozniak provided no evidence in support of his submission. 2. Mr Wozniak submitted that in her application dated 21 January 2015 for a driver authority, the Applicant had: 1. at page 34 made several false declarations to the effect that she had read and understood all the information and questions and the information provided by her was to the best of her knowledge true, correct and accurate in every detail; she had listed all convictions recorded against her; she was aware that any person who attempted to obtain a driver authority by a false statement, misrepresentation or omission was guilty of an offence, and 2. at page 36, answered "no" in respect of question 24 which asked whether "in the last 10 years she had ever been found guilty or convicted for an offence". 1. Mr Wozniak further submitted that in her application dated 24 August 2015 for a replacement driver authority: 1. at page 52, question eight asks whether since last obtaining her public passenger driver authority the Applicant had been found guilty or convicted by a court for any criminal offences. The Applicant's incorrect answer was "no"; and 2. on the un-numbered page between pages 51 and 52 the Applicant had declared that all of her information on the form was true and complete and she had listed all details of convictions against her for any criminal offence. 1. Mr Wozniak also submitted that in her application dated 2 December 2015 for a renewal of her driver authority, on the reverse side of page 57 the Applicant replied "no" to question one which asked whether she had been found guilty or convicted by a court for any criminal offence since her driver authority was first issued. 2. Mr Wozniak submitted that although the Applicant was on her way to becoming eligible for the re-issue of an authority it was too early for that to occur. Mr Wozniak was unable to indicate to the Tribunal how much further time should elapse pass before RMS would approve an application for an authority. 3. I refer at [64] below and subsequently to authorities relied on by RMS. The case for CQZ Matters of concern in the Refusal and the Decision 1. The Refusal stated that, as a result of criminal checks conducted with the NSW Police, RMS had identified that on 13 September 2013 CQZ had been "charged for the offences of 'reckless wounding — (DV) (T1)' and 'reckless grievous bodily harm (DV) (T1)' at Kogarah Local Court resulting in a nine months imprisonment, to be services (sic) by way of intensive correction in the community". Later the Refusal referred to "two serious convictions on your record" and "you failed to declare the above mentioned convictions…" and "in view of your criminal convictions …" 2. The Decision, in its Finding on Material Issues of Fact, while stating that the matter had been reviewed "from first principles" stated: …when completing the Application to Renew Taxi Driver Authorisation, you answered "no" to the first question where it asks "Since you were first issued with or last renewed your driver authority are there any charges pending against you for any criminal offences or have you been found guilty or convicted by a court in NSW or elsewhere of any criminal offence." In addition to this, when completing the Application for Replacement Driver Authority, you answered "no" to question 8 where it asks "Since last obtaining your public passenger driver authority, have you been found guilty or convicted by a court in NSW or elsewhere or are there any charges pending against you for any criminal offences". 1. The Decision also stated: Roads and Maritime records indicate that you were convicted at Kogarah Local Court of the offences "reckless wounding - (DV)(T1)" and "reckless grievous bodily harm (DV)(T1)". 1. The fact is that although the Applicant was charged with two offences, the RMS records which comprise documents received by RMS from the Court on 17 March 2015 show at page 8 that the more serious charge of "reckless grievous bodily harm" was withdrawn and at page 7 that the sole conviction was that of "reckless wounding". I have no reason to believe that the evidence of withdrawal of the more serious charge was not readily available to both the officer who authored the Refusal and the officer who carried out the internal review and wrote the Decision. 2. The separate bundle of documents produced by the Court confirm the withdrawal and dismissal of the "reckless grievous bodily harm" charge. 3. I find that the above extracts from the Refusal and the Decision both wrongly state that the Applicant was convicted in respect of both charges. It is concerning to the Tribunal that the express error in the Refusal was repeated in the review which led to the Decision and that both errors were contrary to information held by RMS and presumably available to the relevant officers. 4. At page 91 is an internal memo of RMS dated 7 January 2016 from a Processing Officer to the Enrolment Services Manager, Customer & Support Services. In part that memo sets out procedures to be implemented in carrying out a review and states "If the applicant has provided any further relevant material, then the findings on material questions of fact will be different" from those made by the original decision maker. 5. I observe that the Review Application of some 29 pages, which appears at pages 62 to 90, sets out detailed submissions and evidence. It includes a statement of facts and contentions, references to applicable law including extracts from authorities, consideration of issues relating to the "fit and proper" issue, a third party assessment concerning the likelihood of recurrence of behaviour, attaches character references and reports by several case-workers, makes submissions in relation to "good repute" and states "there was never a complaint against the applicant in her dealings with passengers". 6. The Decision states that, in addition to reviewing the matter from first principles, the reviewing officer had regard to "the information provided by" the Applicant and gave "due weight to the matters put forward by" her. The fact is that no details from the Review Application were mentioned in the Decision. 7. The Applicant would, in my opinion, be entitled to form the view that the failure to make any substantive reference in the Decision to any part of the Applicant's detailed evidence and submissions indicates a failure by the reviewing officer to properly review the Refusal and have due regard to the available material. To my mind the matters outlined above in respect of both the Refusal and the Decision bring no credit to RMS in either making or relying on these decisions. Events of 23 August 2013 1. The Full Facts provided by the NSW Police to the Court described the relevant events in some detail and were available to the Applicant and RMS prior to and during these proceedings. There is no need for these reasons to repeat all of the details. 2. It is sufficient to note that after CQZ and her husband had each thrown an object at the other on 23 August 2013, CQZ obtained a knife and approached her husband. The husband picked up their eight month old child in his left arm and turned his left side away from CQZ. CQZ waved the knife in an up and down motion along her husband's right side and in the course of waving the knife, in a single motion penetrated layers of the dermis and epidermis layers of the skin on the back of her husband's right hand and the right-hand side of his stomach. The husband attended hospital and received stitches to both his hand and stomach. Police were not contacted about the incident. 3. Three weeks later CQZ and her husband were involved in an oral argument. CQZ telephoned the police to ask for advice. Police attended the Applicant's premises and spoke with both the Applicant and her husband. The incident of 23 August 2013 was disclosed to police and both agreed to attend the police station and provide a statement. 4. Subsequently the Applicant was cautioned, she made a number of admissions and was arrested. She cooperated fully with police and said that wounding her husband was an attempt to scare him "as she was sick of the … physical abuse that she receives from (her husband). The Applicant agreed that her actions were reckless." Additional criminal history 1. No evidence was put to the Tribunal that the Applicant had been charged or convicted of any offences other than arising from the events of 23 August 2013. The facts sheet prepared by the Police for the Court states the Applicant "has never been before the Courts before for any matter." Additional background and relevant history 1. The Court file includes an intensive correction order assessment report dated 12 December 2013 prepared by Corrective Services NSW. The report notes in part that the Applicant is assessed as a low risk of re-offending and that she may benefit from counselling that is focused on anger management. There are no past or current alcohol and other drug issues. 2. A pre-sentence report dated 31 October 2013 prepared by Corrective Services NSW is also in the Court file. That report notes that the Applicant stated "domestic violence has been prevalent in their relationship since the beginning. She stated that after a year of beating she would retaliate. She considered that attending relationship counselling would assist both her and her husband and expressed a willingness to undertake counselling. (The husband) denied the existence on going domestic violence, he stated that (the Applicant) had a problem controlling her anger … he believed his wife … may benefit from an assessment." 3. The Review Application includes: 1. an undated statement at page 85 by a Uniting Care Brighter Futures caseworker that: 1. "according to her community corrections officer (officer named) the applicant was a victim of circumstance even though (she) was the perpetrator of the offence.)… (The applicant) has shown good motivation and she has addressed her anger…" 2. (The applicant) has shown great commitment to working through her anger issues that stem from her childhood history and addressing the struggles she has faced in the past so that she can be happy and a good role model for her children … I am very impressed with the courage and strength (she) has shown in taking ownership of her issues and working through them" 1. a note made by a care worker on 21 March 2014 of a discussion with the Applicant and her husband included: 1. The Applicant claimed that her husband had engaged in physical violence directed to her for approximately four years previous to the stabbing incident. The husband was initially reluctant to accept the Applicant's version. However, he then said "yes I did hit her and slap and was violent physically towards her". When asked for the husband's motivation to engage in physical violence to the Applicant the husband said "she 'would not listen to me' and due to this I decided to hit her". 2. The Applicant said that her husband had previously held a knife to her hands and threatened to cut her. She showed the caseworker what appeared to be a scar on her hand. The husband admitted to using a knife on that occasion. 3. The caseworker asked the husband if he had confessed to these issues to the police at the time of the police interviews in relation to the stabbing. He said that he denied any physical violence at the time his wife was charged and dealt with by the court. 1. RMS did not challenge any of the above evidence and I accept it. I also concur with the intensive correction order assessment that the Applicant has a low risk of re-offending. Taxi-cab driving history 1. I observe that it is customary for RMS to include, in its reasons for rejecting applications for driver authorities, details of all complaints made against the relevant applicant throughout the whole of that person's career as a taxi driver. No such complaints were included in either the Refusal or the Decision. I also observe that the Applicant's statement of 29 March 2016 states, in relation to her taxi career, that she has no driving offences. This was not challenged by RMS and I accept that evidence. Remorse and acknowledgement of wrongdoing 1. The Applicant's remorse for her action in wounding her husband was expressed in her oral evidence, her immediate admission to the police that her actions were reckless (Police Facts Sheet), her plea of guilty to the charge of recklessly wounding her husband, her willingness to undertake counselling and the statements by the Uniting Care Brighter Futures caseworker at page 85. References 1. Attached to the Applicant's statement filed on 31 March 2016 are three references. The first reference is by the president of an organisation from CQZ's original homeland who has known the Applicant for nine years in Australia and prior to that through her father who is the referee's family friend. This referee holds a taxi authority and has shared shifts with the Applicant for several years. He describes her as "a good driver, very respectful and careful to her passengers. She never had any rough issue or any verbal or physical argument with anybody while she was driving" He is aware that she had what he described as a "bitter experience in her personal / family life". 2. The second reference is from a taxi operator who states that he/she has known the Applicant for a long time and the Applicant has driven for him/her. The referee says that the Applicant "is a person of good manner, dignity and respect. As a driver she has always been great, supportive and punctual … Towards her passengers she was respectful, helpful and above all, very much responsible." The referee said "Despite her personal situation at home, she has always been spontaneous at work. Her trouble or frustration never interfered her work life (sic)" and the referee had no complaint from anyone while she worked for him/her. The referee regards the Applicant as a "treasure for any institution that she will work for… We need more and more like her to join and cherish our taxi industry". 3. The third reference is from a person whose wife used to work with the Applicant. The referee states that the Applicant has become a very good family friend and the two families have been neighbours for almost a year. The referee is aware that the Applicant has passed a critical time with her ex-husband and states "An accident between them did cost her a criminal conviction as well as a 12 month sentence. Her and her ex-husband both regretted what happened but couldn't do much to resolve it." The referee describes the Applicant as a LOVING mother, HARD-WORKING person, with a STRONG will and mostly a very POSITIVE person. She deserves a HAPPY and HEALTHY future with her family here in Australia." 4. The references are all very positive for the Applicant. However, the first reference while referring to "some bitter experience in her personal/family life" does not indicate any knowledge of details of the conviction or relevant offence; the second reference refers to the Applicant's "personal situation at home" and "trouble" but contains no details of the conviction or offence; and the third reference indicates an awareness of a conviction involving the Applicant's husband although the sentence is incorrect. 5. I have regard to the positive references and that some are from people who have known the Applicant for a lengthy period in both a personal and an occupational setting. However, I can only give them limited weight because of the lack of any express statement in the first two references concerning the details of the conviction and offence and the third reference while acknowledging that there has been a conviction and a sentence describes the relevant event as "an accident". Evidence of counselling and assistance 1. The statements by the various caseworkers included in the section 58 documents detail relevant counselling over a lengthy period and the Applicant's positive attitude and response to that counselling. Further consideration The marriage 1. The evidence includes a divorce certificate which provides that the Applicant's marriage ended on 14 April 2015. 2. Notwithstanding the problems in the relationship between CQZ and her husband, including the wounding which led to CQZ's conviction, I observe that he attended the Tribunal hearing in order to support CQZ. CQZ's personal interests 1. The Applicant's statement of 29 March 2016 refers to the refusal of her application to renew her taxi authority taking her out of a job and providing an uncertain future for her children. She states that she could carry out other work but this would not give her the freedom of hours and flexibility that she desperately needs to look after herself and her family. She notes that her life and the future of her children are already endangered by the previous trouble she has had. The Applicant draws the attention of the Tribunal to her situation and seeks the reissue of her authority to save her and her family's future. 2. 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 CQZ's submissions I find that it is not appropriate for her personal interests to be taken into account in determining the correct and preferable decision in this matter. 2. With respect, I concur with the statement by the Appeal Panel in Shamsuzzaman that the jurisdiction of the Tribunal is not punitive. Any relevant legal punishment was dealt with by the Court in 2013. The function of this Tribunal is to deal with the Application in the interest of the members of the public who use taxi services and the interest of the wider public. CQZ's command of the English language, notification of conviction and answers to written questions in RMS forms 1. I observed that CQZ's English expression was poor and she had difficulty making both oral and written submissions. She also seemed confused as to certain questions asked in cross examination, in particular in relation to the completion of RMS forms and the meaning of certain words in those forms. 2. Mr Wozniak asked the Applicant whether she understood certain words used in the forms. Although she said she did understand some of the words my impression was that she did not understand several of the written questions to which she had answered "no" and did not understand the meaning of several of the words put to her such as "misrepresentation" and "omission". 3. When the requirements of clause 44 were put to her, CQZ said that she had not made the positive notification for two reasons. Firstly, that she had forgotten she had such an obligation and secondly that she understood she only had to report matters involving taxis. The ambit of clause 44 is not limited to taxi offences. However, having had the opportunity to observe the Applicant's demeanour as a witness including answering questions I put to her I find that CQZ did not intentionally deceive RMS by failing to report the conviction. 4. In relation to Mr Wozniak's submission that the Applicant had been deceitful in answering "no" to certain questions concerning convictions. 1. I accept the Applicant's answer that in relation to the questions she read, she understood the conviction question related not to the period between the date of the conviction and the date on which the question was answered but to whether the sentence had been completed. I find that the Applicant did not intentionally deceive RMS in this respect. 2. The Applicant's evidence in respect of some questions was that she did not read the questions but merely ticked a box for her answer. I observe that some questions consisted of a single sentence of 40 or more words, contained multiple alternative provisions and included words unlikely to be used in everyday conversation. I find that certain questions were not readily comprehensible. I find that in respect of these answers CQZ was not deceitful but was careless in not seeking assistance to understand the questions being asked. 1. I reject the submission by RMS that the Applicant wilfully made misrepresentations to RMS and was deceitful and dishonest. "Good repute" and "fit and proper" 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: 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. Mr Wozniak drew the Tribunal's attention to paragraphs 16, 27, 29 and 34 of Singh. Those paragraphs and my observations as to their relevance in these proceedings are: 16 Mr Singh admitted that when he filled in the Transport District Taxi Driver Authorisation Declaration on 20 November 1992 he failed to disclose that he had been convicted of an offence on 12 August 1992. Although he said that he didn't understand the question and that he had appealed against the conviction I find that Mr Singh knew he was not disclosing his full criminal history when filling out that form. 27 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. 1. Mr Wozniak did not refer the Tribunal to the next paragraph in Singh: 28 But it has been recognised that being a "fit and proper person" is not capable of any objective definition. Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. I have already found above that in relation to completing relevant forms for RMS the Applicant was reckless but was not deliberately deceitful nor did she intend to misrepresent the truth. Accordingly, I make no finding of dishonesty. 2. At [29] Singh refers to a discussion as to the meaning of "good repute" and a decision by Wadell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393. 29 …The meaning of being of "good repute" was discussed by Wadell 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. 1. At [34] in Singh, Hennessey DP said: The main offences with which the Tribunal is concerned in this case are those relating to breaches of an apprehended violence order including threats of violence. The applicant has been before the court several times for breaches of this order and has been sentenced to 2 months in prison and to a bond which expires on 3 March 2000. The regularity of his offences indicates that he does not appear to have learnt from these experiences. The fact that the breaches of the order relate to his personal life does not mitigate their severity in any way. Knowing of the applicant's criminal record and what he has done, or not done, to rehabilitate himself I believe passengers would object to the applicant as the driver of their taxi. 1. Notwithstanding Mr Wozniak's submission in referring to Singh at [29] I find that there is a substantial difference between the sole incident for which the Applicant was convicted and the multiple offences over a period of several years for which Mr Singh was convicted. Hennessey DP's decision refers at [8] to [11] of convictions for assault occasioning actual bodily harm, common assault, contravening an apprehended violence order on four occasions and using threatening and abusive language. 2. Mr Wozniak also drew the attention of the Tribunal to the decision of Hennessey DP in Lal and related that matter to CQZ's statement that the events in relation to her in respect of which RMS was concerned would not happen again. 3. Ms Lal operated a fleet of taxis. Over a period of several years many of the taxis operated by her were found to have both major and minor defects. The then Director-General of the Department of Transport cancelled Ms Lal's accreditation to operate taxis having found that "Ms Lal had not demonstrated the capacity to meet the government's standards for the safety of passengers and the public, or sufficient responsibility and aptitude to provide services in accordance with those standards" at [10]. 4. Ms Lal did not tender any separate documentary evidence or give any oral evidence in the proceedings. One of the departmental files in evidence included applications by Ms Lal for accreditation and variation of accreditation in 1992, 1995, 1997 and 1999. Documents annexed to each accreditation application included: declarations made by Ms Lal that she understands and will comply with, among other things, the standards of vehicle maintenance required of an operator of taxis. 1. I reject Mr Wozniak's submission in reliance on Lal concerning CQZ's submission there would that there would be no repetition of relevant events having regard not only to CQZ's evidence in comparison to the lack of evidence provided by Ms Lal but also the single instance of a conviction of CQZ in comparison with multiple breaches by Ms Lal of her obligations over a period of several years in relation to vehicle defects and the importance of the finding in Lal at [51] that "Many of those defects threaten the safety of driver, passenger and public." 2. In Director General, Transport NSW v AIC [2011] NSWADTAP 65 the Appeal Panel of the Administrative Decisions Tribunal (ADT) dealt 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 and s 33: … 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. If a taxi-driver authority has been suspended or revoked and the driver seeks a new authority, above references to Singh show that relevant considerations in assessing the likelihood that the Applicant will re-offend include the length of time since any offences were committed, the circumstances in which the offences occurred, whether the Applicant admitted responsibility for the offences and shows genuine remorse, the efforts the Applicant has made to rehabilitate herself and any relevant change in the Applicant's circumstances. 2. In Sikka v Roads and Maritime Services (No. 2) (GD) [2013] NSWADTAP 48, a matter involving an appeal against the upholding by the ADT of a refusal to issue a new taxicab driver authority the Appeal 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 a subsequent application by Mr Sikka for a driver authority was unsuccessful the Tribunal in Sikka v Roads and Maritime Services [2014] NSWCATOD 138 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. 1. I have had regard to the Refusal and the Decision, the s 58 documents and Court file in evidence and RMS' submissions. 2. I have also had regard to the evidence relied on and submissions made by CQZ together with the admissions she made. 3. I observe that having regard to the evidence before me that the event which gave rise to the Applicant's conviction was atypical to her usual behaviour and the victim suggested to a caseworker that at the relevant time the Applicant may have been experiencing postnatal depression, although no professional evidence was provided to substantiate that suggestion. I have had regard to the pre-sentencing report and favourable comments of caseworkers. The Applicant's evidence was that 18 months after the events the Applicant assisted her to complete an application to RMS. I note that the victim, nearly 3 years after the relevant events and more than one year after they were divorced, attended the Tribunal hearing in order to give support to the Applicant. The Applicant attended and took an active part in a counselling program. 4. I also observe that there is no evidence that the single event which gave rise to the conviction has any relevant link to the Applicant's aptitude to drive a taxicab in accordance with relevant conditions and in accordance with law and custom. 5. I have also had regard to CQZ's character references, the lack of evidence of complaint by any passenger in a taxi she has driven, the evidence as to her otherwise good record, her expressed remorse and ready acknowledgement to the police of her acts and her plea of guilty before the Court, the attendance at the hearing by her former husband, the victim in relation to the offence for which she was convicted, to assist her in these proceedings, the lack of submissions or evidence of any criminal charges or convictions at any time other than the two charges, including one withdrawn, referred to in the Decision, the passing of nearly 3 years since the event which led to the conviction. 6. I also have had regard to CQZ's difficulties with the English language and her understandable lack of knowledge of the law and tribunal procedure. 7. Towards the end of the Decision appears the following: Roads and Maritime is required to consider the application from the standpoint of public safety, and in that sense, must consider whether a fare paying passenger would be comfortable being transported by you in the confines of a taxi. In determining public interest one has to formulate it in terms of the perceptions of "a reasonable member of the travelling public". It is likely that a reasonable member of the travelling public would regard your criminal history as sufficient to refuse your application for an authorisation. 1. I find that a reasonable member of the travelling public who was aware of all of the evidence put before the Tribunal, and using the wording of the Decision, would be comfortable being transported by (the Applicant) in the confines of a taxi. Decision 1. Having regard to the evidence before me, the relevant legislation and its interpretation in the decisions referred to above, and my findings, I am satisfied that it is appropriate for me at this time, to attest that the Applicant 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 correct and preferable decision of the Tribunal is that: 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: 17 August 2016