Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh v Roads and Maritime Services [2017] NSWCATOD 96 Hearing dates: 14 June 2017 Date of orders: 22 June 2017 Decision date: 22 June 2017 Jurisdiction: Occupational Division Before: Emeritus Prof G Walker, Senior Member. Decision: Decision under review affirmed. Catchwords: PASSENGER TRANSPORT – licensing – private hire vehicle driver authority – "ride sharing" - PCA convictions. Legislation Cited: Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Passenger Transport Act 1990. Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Bronze Wing Ammunition Pty Ltd v SafeWork New South Wales (No. 2) [2016] NSWSC 988; Director-General, Transport New South Wales v AIC [2011] NSWADTAP 65; Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179, (1979) 46 FLR 409; Lal v Director-General, Department of Transport [2001] NSWADT 74; McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; Naziry v Director-General, Ministry of Transport [2004] NSWADT 40; Saadieh v Director-General, Department of Transport [1999] NSWADT 68; Sodiki v Roads and Maritime Services [2013] NSWADT 145. Category: Principal judgment Parties: Mr Gagandeep Singh (applicant) Roads and Maritime Services (respondent) Representation: Solicitors: Applicant in person Smythe Wozniak (respondent) File Number(s): 2017/00073536 reasons for decision 1. The applicant Mr Gagandeep Singh on 2 March 2016 applied to this tribunal for review of a decision made by the respondent under part 4A of the Passenger Transport Act 1990 (PT Act) to refuse his application for a private hire vehicle authority. 2. On 12 December 2016, the respondent had received an application from the applicant under the PT Act for an authority to drive private hire vehicles. On 4 January 2017 the respondent refused the application and informed Mr Singh in writing of the refusal and the reasons for it. On 23 January 2017 the applicant applied for an internal review of the refusal, which was in turn refused on 1 February 2017. 3. The ground for the respondent's refusal was that the respondent could not attest that Mr Singh was a fit and proper person for the purposes of the PT Act because of certain traffic convictions against him (which he had disclosed in his application as he was required to do): 1. On 12 December 2007 in Parramatta Local Court he was convicted of driving a motor vehicle with a mid-range prescribed concentration of alcohol (PCA) in his blood. He was fined $800 and disqualified from driving for a period of 8 months. 2. On 9 February 2011 in Fairfield Local Court he was convicted of driving a motor vehicle under the influence of alcohol or drug. He was fined $200 and disqualified from driving for a period of one year. 3. On the same day, 9 February 2011, in Fairfield Local Court he was also convicted of refusing or failing to submit to a breath analysis test. He was fined $400 and disqualified from driving for a period of one year. 1. At a directions hearing in this tribunal on 24 April 2017, Montgomery SM directed the applicant to file and serve any material on which he relied on or before 22 May 2017. Pursuant to that direction he lodged two character references, but no witness statements. Applicable legislation 1. A "private hire vehicle" is defined by s 3 of the PT Act as "a motor vehicle (other than a bus or taxicab) which is used to provide a public passenger service (other than a regular passenger service, a long-distance service, a charter service or a tourist service)". 2. Part 4A, s 40 of the PT Act provides for the issuance of authorities to drive private hire vehicles: 40 Authorities (1) RMS may, by the issue of authorities under this Division, authorise persons to drive private hire vehicles, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised private hire vehicle driver". (2) A person who drives a private hire vehicle is guilty of an offence unless the person is an authorised private hire vehicle driver. Maximum penalty: 100 penalty units. (3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a private hire vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle: (i) in accordance with the conditions under which the private hire vehicle service concerned is operated, and (ii) in accordance with law and custom. (4) The regulations may create categories or grades of authorities. (5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a private hire vehicle is being driven to a place to have it repaired or serviced. 1. The issue in this case is thus whether the tribunal can "attest" that the applicant is "a fit and proper person to be the driver of a private hire vehicle" within the meaning of s 40(3)(a) of the PT Act. The evidence 1. The respondent called no oral evidence but relied on the s 58 documents. The applicant stated from the bar table in relation to the conviction on 9 February 2011 for failing or refusing to undergo breath analysis that he had not refused to breathe into the machine but had failed to do so despite three attempts because he was suffering from a panic attack and was unable to generate the required air pressure. He indicated interest in giving sworn evidence on the point, but the respondent objected on the ground that he had lodged no witness statement, despite the tribunal's direction, and that RMS's legal representative had had no opportunity to obtain instructions on the matter. I upheld that objection, but the applicant's unsworn assertion stands, for whatever weight it is proper to give it. 2. The applicant did lodge two written character references (exhibit A1), one from Mr Sukhwinder Singh, head priest at the Sikh temple at Austral, dated 22 April 2017. The referee said he was aware that the applicant had been charged with drink-driving offences on three occasions and disqualified from driving, but said he had shown great remorse for his actions, which were affecting him in a substantial way. He had also mentioned to the priest tragic losses of loved ones, one after another, in those years. He was depressed and grieving, but had now recovered from those bereavements and is happily married. He is now working only part-time because his company reduced his hours and wants to drive for the Uber system in order to have a second source of income. The referee had known the applicant through his religious and social activities and community work at the temple for over five years. During that time the referee had found him to be an honest, upright and pleasant person who adheres to the highest moral values, a person who can be trusted when asked to do a job. 3. The other reference was from Ms Hend Bajallan, a childcare worker, dated 22 April 2017. Ms Bajallan said she was aware of his driving offences and had seen that he was deeply remorseful and had learned the lessons from the seriousness of those offences. She had been the applicant's next door neighbour for five years and during that time had seen that he is happily married, a good God-fearing and humble citizen who works well with others. He is benevolent and empathic. She believes he has transformed significantly. He gives a helping hand to the neighbourhood and helps her by babysitting her daughter occasionally. He is a responsible father and willing to work hard to give all possible material comforts to his children. She had always found that he honours her "as a sister" and she had never seen him drinking. She believed that failure to obtain the driver authority so that he could drive for Uber would cause him financial hardship. Consideration 1. The tribunal has jurisdiction to hear and determine appeals from decisions of the respondent to refuse a driver authority, pursuant to s 29 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and s 52 of the PT Act. The tribunal's function in relation to such appeals is laid down in s 63 of the Administrative Decisions Review Act 1997 (ADT Act): 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. It is well established that in considering an application for review, the tribunal is not restricted to a consideration of the material that was before the respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. The tribunal is to make its own decision and there is no presumption that the respondent's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354, 357. Nor is there a burden or onus of proof: Bronze Wing Ammunition Pty Ltd v SafeWork New South Wales (No. 2) [2016] NSWSC 988, [74] – [77]; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [30], [34]. 2. The respondent's case under s 40 of the PT Act was based on the applicant's not being "a fit and proper person to be the driver of a private hire vehicle", and the authority under that provision can be granted only if it is possible to "attest" that the person is fit and proper to drive a private hire vehicle. As the appeal panel noted in Director-General, Transport New South Wales v AIC [2011] NSWADTAP 65, [12], "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". 3. The concept of fitness and propriety goes to an individual's intrinsic characteristics (AIC, [27]) and is to be assessed in the context of the nature and purpose of the activities that the person is seeking to undertake: Sodiki v Roads and Maritime Services [2013] NSWADT 145, [38]. The question before the tribunal is thus whether the applicant is a fit and proper person to drive a private hire vehicle. 4. The High Court has explained that assessing whether a person is fit and proper to hold a licence is a value judgment, involving concepts that should not be "narrowly construed or confined" and may extend to "any aspect of fitness and propriety that is relevant to the public interest": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 348. Toohey and Gaudron JJ at 380 went on to say: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. 1. In the context of driver authorities, the process of evaluating fitness and propriety also requires the tribunal to imagine the possible reactions of members of the travelling public. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40, quoting from Mayathisathit v Registrar of Motor Vehicles [1986] ACT 165: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi" (at [55]). 1. The applicant in this case does not seek a taxi authority but wishes to become an Uber driver, which is a service involving some novel features. It is sometimes referred to as "ride sharing", but that term seems inappropriate, as it suggests something in the nature of carpooling. The widely-used Associated Press Stylebook prefers the term "ride-booking", which seems more apt. There is, however, no special type of authority for ride-booking services. Aspiring drivers must apply for a private hire vehicle driver authority in the same way as drivers of hire cars and limousines. 2. Relevant in this case are Hennessy DP's comments in Saadieh v Director-General, Department of Transport [1999] NSWADT 68, [17]. In the context of a taxi licence, the tribunal identified factors relevant to fitness and propriety as including – * the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; * the applicant's reputation in the community; and * the likelihood that the applicant will reoffend, be the subject of further complaints or commit further offences. 1. On the basis of the two character references outlined above, I am satisfied that the applicant enjoys a good reputation in the community. The case against him, however, rests on his two PCA convictions and his conviction for failing or refusing to take a breathalyzer test. In his favour is the absence of any charges or complaints involving violence, dishonesty, sexual misconduct or abusive language. 2. The convictions, however, are serious. From the documentary evidence it appears that the 2011 convictions, although entered on the same date at the same court, related to separate incidents, and the applicant did not deny that such was the case. In other words, having been arrested on one charge, he promptly proceeded to commit a further drink-driving offence. That suggests a reckless attitude to law-breaking. 3. The convictions are aggravated by the fact that notwithstanding his experience of being charged, convicted and disqualified for a PCA offence in 2007, he proceeded three years later to commit the same kind of offence again. They are also of particular seriousness as they relate directly to his driving and to public safety. One of his referees states that the violations occurred at a time when he had suffered a series of bereavements, but there are many ways of coping with tragedy other than drinking and driving. He also said that he had failed successfully to undergo a breath test for reasons that were beyond his control, namely that he suffered a panic attack that impaired his breathing. There is insufficient evidence to support that claim, and indeed there is nothing to suggest that he advanced it in the Local Court or at any other prior stage of the application. 4. The applicant submits that he needs the driver authority so that he can work to support his family, as his current employment is purely part-time. Questions of possible hardship to the applicant or his family cannot, however, be taken into account in determining whether the respondent has made the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]. 5. Under the Saadieh test, the tribunal should also consider the likelihood that the applicant will reoffend. He points out that it is six years since his most recent convictions and states that he is remorseful for his violations and has resolved that there will be no repetition. As matters stand, however, he is objectively a repeat offender in relation to serious driving offences. Placing oneself in the position of a member of the public using ride-booking services, as contemplated in the taxicab context by Naziry, one may reasonably conclude that many prospective passengers would have serious misgivings about having him as their driver, as compared with a person having no such convictions. 6. The respondent submitted that insufficient time had elapsed to justify a conclusion that the applicant would be unlikely to reoffend. In my view that submission is correct. While the applicant now appears to be on the right path, further time without adverse notice, or some equally cogent evidence of rehabilitation, is required. I find that the evidence as it stands is simply insufficient to enable the tribunal to attest to the applicant's being a fit and proper person to hold the driver authority. The decision under review must be affirmed. Order 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: 22 June 2017