Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hoque v Roads and Maritime Services [2016] NSWCATOD 160 Hearing dates: 7 December 2016 Date of orders: 23 December 2016 Decision date: 23 December 2016 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed. Catchwords: PASSENGER TRANSPORT – annual taxi licence – cancellation - failure to pay licence fee instalments on due date – failure to comply with a condition of the licence Legislation Cited: Passenger Transport Act 1990 Cases Cited: Lal v Director General, Department of Transport 2011 NSWADT 74 Category: Principal judgment Parties: Akm Fazlul Hoque (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: AF Hoque (Applicant in person) Smythe Wozniak Legal (Respondent) File Number(s): 1620215 REASONS FOR DECISION 1. The applicant, Mr Akm Fazlul Hoque, was first issued an unrestricted annual taxi licence on 29 March 2010. The licence has been renewed each year, with the latest renewal on 29 March 2016. The annual cost of the licence was in excess of $30,000 which Mr Hoque elected to pay by monthly instalments each year. On 11 July 2016 Roads and Maritime Services cancelled the licence for failure by Mr Hoque to pay the monthly fee. That decision was affirmed on internal review on 10 August 2016. The relevant law 1. Relevantly, s 32G(1) of the Passenger Transport Act 1990 permits Roads and Maritime Services to vary, suspend or cancel a licence if, owing to the default of the licensee, the terms and conditions of the licence have not been complied with. 2. Records provided by Roads and Maritime Services show that for each annual licence it was a condition of that licence that, if the licence fee is paid by instalments, the monthly instalment must be paid on or before the date each instalment is due. Did Mr Hoque breach a condition of his licence? 1. Mr Hoque's most recent licence was issued on 29 March 2016 and he had authorised Roads and Maritime Services to debit the monthly instalments for the licence fee directly from his nominated account. The first instalment was due on 1 April 2016. Roads and Maritime Services records show that attempts were made to deduct the payment on 1, 5, 8 and 13 April and that on each occasion the transaction was declined by Mr Hoque's financial institution. A further attempt on 15 April was successful. 2. Two attempts were made to deduct the May 2016 payment on 2 and 4 May and these were declined. A further attempt on 11 May was successful. Similarly in June 2016 Roads and Maritime Services attempted to debit Mr Hoque's account for the monthly instalment of $2,541.67 but the payment was declined. Further attempts on 3 and 8 June were also unsuccessful. On 15 June Mr Hoque was sent a final warning notice advising him that he was in breach of his licence conditions and that payment of the June instalment must be made within seven days. Mr Hoque was also advised that his licence was suspended until payment was made. Payment was made on 16 June 2016. The 15 June notice also stated that it was a final warning and any future declined payments would result in cancellation of the licence. 3. The payment due on 1 July 2016 was also declined and a further attempt made on 5 July 2016 was not successful. No further payment was made and on 11 July 2016 the licence was cancelled. 4. Mr Hoque does not dispute that he failed to make instalment payments in relation to the 2016 licence on the due date. It is apparent that Mr Hoque failed to make any payments during the currency the 2016 licence on time and I find that he did not comply with a condition of his licence. Should the licence be cancelled? 1. Mr Hoque explained that his wife suffers from a particular illness, a condition which is often sporadic and unpredictable. He said that he was required to take on the role of her carer to ensure she took her medication and to take her to appointments. This meant that he was unable to maintain his regular work hours. Mr Hoque said that his wife had been hospitalised for one month earlier in the year and he had been unable to work during that time as he had to take his youngest child to and from school and go to the hospital. This affected the family's finances. 2. Mr Hoque said that his wife's condition is still up and down and that he continues to assist with monitoring her medication and taking her to appointments. He provided a letter from the community health service which has been working with Mr Hoque's wife since 2012 to support his statements in this regard. The letter notes that Mrs Hoque's condition is back to her "baseline". 3. Mr Hoque also said that he has had two heart attacks over the years and this has affected his ability to work. He told the Tribunal he is now in better health, although he is due to have an operation in the near future. 4. Mr Hoque said that he would suffer financially if his licence were to be cancelled as he supports his wife and three children. The oldest is at university and now works part time - which helps with family's financial position. His daughter is now able to assist with the household and with supervising his wife's medication, while his youngest is only 9 years old. Mr Hoque said that he intends to sell his current house and move to smaller one, which will reduce the size of his mortgage repayments. Mr Hoque is confident that he will be able to work regularly and will be able to make instalment payments on time in the future. 5. Mr Hoque also said that, if the licence is cancelled, he will suffer further financial loss as the taxi he bought will be worthless. He said he still owes money to a finance company for the car. 6. Mr Wozniak on behalf of Roads and Maritime Services pointed to the fact that Mr Hoque had a long history, prior to the current annual licence, of instalment payments being declined. The records show that during the currency of the first annual licence in 2010, payments had been declined on four occasions in June, August, September and November. Payments were ultimately made, but not on the due date. The licence was, however, renewed on 29 March 2011. The payment due on 1 April 2011 was declined by Mr Hoque's financial institution and he was sent a letter on 5 April 2011 warning him that non-payment of a monthly instalment would result in cancellation of the licence. 7. Mr Hoque was sent a further warning letter on 2 February 2012 which noted that attempts to deduct the monthly instalments from Mr Hoque's nominated account/credit card had been declined in October, November and December 2011 and again in January and February 2012. All payments were in fact made after the due date. Following this Mr Hoque's licence was renewed for 12 months on 29 March 2012, for a further 12 months on 29 March 2013 and again on 29 March 2015. In relation to the 2015 licence, payments were declined on the due dates in October and November 2015 and in February 2016. 8. Mr Hoque does not deny that he regularly failed to make payments on the due date. Mr Wozniak acknowledged that, despite his history of non-payment on the due date, Mr Hoque's licences had been renewed every year. He described the failure by Mr Hoque to pay any of the 2016 instalments on time as the "final straw" for Roads and Maritime Services which then moved to cancel the licence. 9. While I have some sympathy for Mr Hoque's family circumstances, particularly in relation to his wife's illness, he has had a long history of failure to pay licence fee instalments on time, extending back to 2010. He has thus failed to comply with the conditions of his licence on numerous occasions and there can be no confidence that he would comply in the future. Mr Hoque provided no financial information, such as bank statements or other documents, to the Tribunal that would indicate he has the capacity to deal with the vicissitudes of life so as to make regular payments. He stated he intends to move to a smaller house to reduce the size of his mortgage payments, but provided no other details. 10. During the course of the hearing Mr Hoque volunteered that he was in fact still driving the taxi even though the licence had been cancelled. He said he also employs another driver to drive the taxi. This information was proffered to support Mr Hoque's statements that he will be in a better position in the future to make instalment payments on time. He stated that he thought he could still operate the taxi until the review processes were finalised. He undertook to cease operating the taxi following the hearing. 11. While I accept that Mr Hoque acted under a mistaken belief that he could continue to operate the taxi until the review processes were finalised, I am concerned that he did not pay enough attention to the correspondence he received from Roads and Maritime Services to understand his obligations. This is a relevant factor in determining whether the licence should be cancelled which, along with his frequent failures to comply with the conditions of his licence in the past, indicates that he places little significance on those obligations. This strengthens my view that there can be no confidence that he would comply with the conditions of his licence in the future. 12. I understand that Mr Hoque has made a significant investment in the licence and in the taxi itself and that he may suffer some financial hardship if the licence is cancelled. However, as was stated in Lal v Director General, Department of Transport 2011 NSWADT 74, hardship to Mr Hoque is not a factor which the Tribunal can take into account in determining whether or not Roads and Maritime Services has made the correct and preferable decision. Orders 1. The decision under review is affirmed. 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: 23 December 2016