Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Huda v Roads and Maritime Services [2017] NSWCATOD 151 Hearing dates: 10 October 2017 Date of orders: 25 October 2017 Decision date: 25 October 2017 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed. Catchwords: PASSENGER TRANSPORT – refusal to renew wheelchair accessible taxi licence – applicant must satisfy RMS as to any matter RMS considers relevant – expectation of number of jobs performed per day – failure to meet performance levels Legislation Cited: Passenger Transport Act 1990 Passenger Transport (General) Regulation 2017 Cases Cited: Howell v Macquarie University [2008] NSWCA 26 Jones v Dunkel (1959) 101 CLR 298 Category: Principal judgment Parties: Shahid Huda (Applicant) Roads and Maritime Services (Respondent) Representation: Shahid Huda (Applicant in person) Smythe Wozniak Lawyers (Respondent) File Number(s): 2017/ 00213330 REASONS FOR DECISION 1. This is an application by Mr Shahid Huda for review of a decision refusing the renewal of a wheelchair accessible taxi licence. His application was refused by Roads and Maritime Services (RMS) because RMS was not satisfied that priority was being given to passengers using wheelchairs, including compliance with an expectation that at least one wheelchair hiring will be completed per day. The wheelchair taxi scheme 1. A wheelchair accessible taxi is a vehicle that has been specifically modified to safely accommodate at least one and up to three wheelchairs and their users. Wheelchair accessible taxis are specifically licenced and, in order to support the operation of these services, licence fees for wheelchair accessible taxis were originally set at $1,000 but are now free. In contrast, RMS provides evidence that an ordinary taxi plate currently costs in excess of $200,000. 2. There is a designated booking service for wheelchair accessible taxis which is called Zero200. Drivers can also pick up passengers on the street and have other booking arrangements with regular passengers. The Handbook issued to all drivers using the Zero200 radio booking service states that drivers must not refuse a booking and must give preference to a person using a wheelchair. 3. NSW residents who are unable to use public transport because of a disability are entitled to use the Taxi Transport Subsidy Scheme (TTSS). TTSS covers fifty percent of the total fare up to a maximum of $60 and participants are issued with a book of dockets to use when using taxis. An M50 docket is used by passengers who use wheelchairs as this permits the driver to claim an additional subsidy. All other passengers with a disability who are not required to use a wheelchair use an M40 docket. 4. Under s 32B of the Passenger Transport Act 1990 (the Act) RMS is given power to grant or refuse to grant a licence for a taxi-cab. In order to be granted a licence an applicant must meet any criteria set out in the regulations and must satisfy RMS as to any matter RMS considers relevant. When a licence is granted, conditions can be imposed by RMS (s 32F). 5. The licence for the wheelchair accessible taxi the subject of this application was last granted on 19 March 2016 for a period of 12 months. On 13 March 2017 Mr Huda applied to renew the licence for a further 12 months. Evidence relevant to renewal of the licence 1. RMS publishes a factsheet on its website which details its procedures and policies in relation to renewing a wheelchair accessible taxi licence. The factsheet advises licence holders that they must give preference and priority to persons using wheelchairs (a requirement which would appear to stem from cl. 148 of the Passenger Transport (General) Regulation 2017 and its precursors) and must complete a minimum number of M50 TTSS bookings per day as determined by RMS. 2. The factsheet goes on to state that, in determining whether a licence will be renewed, RMS will take into account the licence holder's performance over the past 12 months. RMS states that all licence holders are expected to complete at least one M50 TTSS booking per day, or 365 such bookings in a year. Evidence was given to the Tribunal that this requirement or expectation has been in existence for many years and all wheelchair accessible taxi licence holders are expected to meet this performance level in any given year. 3. While the fact sheet refers to completing at least one M50 TTSS booking per day, it is apparent from the evidence that the expectation is in relation to wheelchair hirings generally, including those hirings for which no M50 docket is used. 4. RMS states that Mr Huda did not satisfy the requirement that the taxi complete at least one wheelchair hiring per day during the currency of the last licence held by him. Data obtained from the TTSS Speedscan database showed that between 19 March 2016 and 13 March 2017 Mr Huda's taxi completed 36 M50 bookings. 5. On 13 March 2017 Mr Huda was sent a show cause notice in which RMS stated it was considering cancelling the licence because Mr Huda had failed to ensure that he had complied with the requirement to complete at least one wheelchair hiring per day. 6. In response, Mr Huda stated that he operates seven wheelchair accessible taxis and is a driver himself. He acknowledged that the Speedscan data showed poor performance but stated that many undocumented private bookings and hail jobs were done by the taxi. He stated he would keep records of all wheelchair jobs in future and asked to be given a chance to perform better. Mr Huda also provided a statement from Md Alamgir Hossan who stated he would be the main driver of the taxi in the coming year and would do the required number of wheelchair jobs. 7. RMS conducted a further examination of Speedscan data which showed that no further M50 bookings had been completed from 13 March 2017 to 7 April 2017. The application to renew the licence was then refused. 8. Mr Huda sought internal review of the decision to refuse the licence. He provided a list of the number of wheelchair jobs he estimated the taxi had done between March 2016 and March 2017. He estimated that 62 jobs had been completed through the Zero200 network, another 36 to and from the airport, 20 hail jobs, 8 jobs from Punchbowl to Petersham TAFE and a further 56 jobs to take a customer from Bankstown to physiotherapy in Punchbowl twice a week for three months. In relation to this last 56 jobs he said further information could be supplied if required. In total, he estimated the taxi had done 182 wheelchair hirings. 9. Mr Huda told the Tribunal that he was unaware of the requirement that a wheelchair taxi should complete at least one wheelchair hiring a day. He said that this taxi had been allocated 62 jobs by the Zero200 Network but could not provide any evidence of where he obtained that figure of 62 jobs. He said, in any event, there are not enough jobs allocated by the Zero200 Network to permit each wheelchair taxi to complete one wheelchair hiring a day. 10. Evidence was provided to the Tribunal by an employee of RMS that there are 633 wheelchair accessible taxis operating in Sydney. While many jobs are booked through Zero200 each week, it is insufficient for a driver to simply rely on that service for bookings. Drivers make private arrangements with clients or approach organisations with a substantial number of wheelchair users to obtain work. The evidence also is that a high majority of drivers meet or exceed the requirement of undertaking at least 365 wheelchair hirings a year. 11. Mr Huda said that every three or four weeks he collects the M50 dockets in relation to the seven taxis he owns and submits those dockets to obtain the subsidy. He said that about 60% of wheelchair hirings do not have M50 dockets. He said these jobs are for people who need a wheelchair for a short period of time. 12. When questioned, Mr Huda could not provide any documentation to substantiate his claim that the taxi the subject of this licence completed 182 wheelchair jobs as he had claimed in his response to the show cause notice. The taxi driver who Mr Huda stated was a full-time driver for this taxi did not make a statement or give evidence to the Tribunal. Mr Huda said he did not know the driver would be required to give evidence. No further information was provided about the jobs taking a customer from Bankstown to physiotherapy in Punchbowl twice a week for three months, despite Mr Huda telling RMS such information was available. 13. Mr Huda said he now requires drivers to keep a log of wheelchair jobs and he collates these in a spreadsheet. He asked that the licence be renewed so that he could demonstrate compliance with the RMS requirements. He said he had invested a significant amount of money in modifying the vehicle for wheelchair use and would suffer financially if the licence was not renewed. 14. RMS concedes that there would be some jobs undertaken by a wheelchair accessible taxi for which there is no M50 docket, but maintains that this would be a minority of hirings. RMS contends that, because of the availability of the subsidy for wheelchair users, there would normally be a docket. 15. With respect to Mr Huda's statement that he was unaware of the requirement to complete at least one wheelchair hiring a day, the respondent states that the expectation has always been a part of the licensing regime and that Mr Huda was well aware this taxi was required to complete a minimum number of such hirings. RMS pointed to the application for the licence for this taxi made by Mr Huda in 2013 where he estimated the number of wheelchair hirings he intended to complete each week was 20. 16. The respondent also noted that there are no issues with the number of wheelchair hirings completed by the other six wheelchair accessible taxis owned by Mr Huda. RMS submitted that, even if the Tribunal were to accept Mr Huda's estimate of the number of wheelchair hirings done by the taxi concerned in this application, it would still fall far short of the expectation of one such hiring per day. Consideration 1. This is not a situation where the requirement to undertake at least one wheelchair hiring a day is a condition of the licence. There is, however, a well-known framework within which wheelchair accessible taxi licences operate and are renewed. This framework includes a requirement that at least one wheelchair hiring must be completed per day. This requirement is framed as being an expectation, no doubt to cover those circumstances where, for good reason, the licence holder is unable to complete one hiring each and every day. 2. I am satisfied that this expectation has been in place for many years, is well known within the industry and that information about the requirements placed on wheelchair accessible taxi licence holders is readily available. I do not accept Mr Huda's statement that he was not aware of the expectation. Mr Huda operates seven such taxis and his original application for the licence demonstrates that he was aware that, as the holder of such a licence, he was required to give priority to wheelchair hirings and undertake a certain level of such work. The fact that the cost of such a licence was minimal and is now free is a strong indication that applicants for the licence are well aware of its purpose. 3. On the basis of the evidence provided I am satisfied that an applicant to renew a wheelchair accessible taxi licence must, in accordance with s 32B of the Act, satisfy RMS that the holder of the licence has completed at least one wheelchair hiring per day during the currency of the licence. No doubt RMS would exercise some discretion where a licence holder falls just short of this expectation. 4. On the basis of the evidence submitted by both parties there is no doubt that Mr Huda did not meet that requirement in relation to the licence under consideration. RMS can only positively assert that 36 such hirings were completed, although it concedes there may be more for which there is no M50 docket. 5. Mr Huda has estimated that the taxi completed 182 wheelchair hirings during the year. He has, however, not provided any evidence to support this estimate even in circumstances where he could have done so. Mr Huda attended a directions hearing on 15 August 2017 at which he was directed to provide any evidence, including statements, documents and submissions on or before 26 September 2017. He filed no material. 6. Even taking into account that Mr Huda represented himself in these proceedings, it is clear he was on notice of the issues in this case and the need to satisfy the Tribunal that wheelchair hirings had been undertaken by the taxi in accordance with the requirements of the licence. He had stated he could provide further information about the 56 private hirings undertaken, but did not do so. He had provided a statement from the driver of the taxi that he would do the required number of hirings in the future but did not obtain any statement from the driver about the hirings actually completed during the year. 7. In these circumstances, the Tribunal is entitled to draw an inference that independent corroborative evidence of Mr Huda's estimate of the number of hirings performed is not available (Jones v Dunkel (1959) 101 CLR 298; Howell v Macquarie University [2008] NSWCA 26). 8. The Tribunal is therefore of the view that the number of wheelchair hirings undertaken by this taxi is probably more than the 36 for which M50 dockets are available, but certainly less than the 182 hirings estimated by Mr Huda. The Tribunal is satisfied that the number of wheelchair hirings performed during the year falls far short of the 365 expected by RMS. Even taking Mr Huda's evidence at face value, the number of hirings performed is less than half that expected. 9. While the Tribunal is mindful that there are costs associated with modifying a vehicle to make it suitable to be a wheelchair accessible taxi, the fact that the licence was heavily subsidised in the past and is now free means that the total cost to the licence holder is considerably less than that of an ordinary taxi licence. It is therefore reasonable to expect that licence holders make their vehicles available for the work for which the licence was issued. Mr Huda has offered no reasonable explanation for why this vehicle could not meet even half the performance levels set by RMS. 10. Of concern is that fact that, even after the show cause notice was issued on 13 March 2017, no M50 wheelchair bookings were completed by the taxi up to the next assessment by RMS on 7 April 2017. This indicates an unwillingness to accept wheelchair hirings, contrary to the purpose for which the licence is issued. In addition, Mr Huda, who collected all M50 dockets from drivers, would have been well aware that this taxi was not engaged in such work. He took no steps to correct the situation. 11. In light of the above findings, the Tribunal is of the view that the decision to refuse to grant the licence is the correct and preferable decision and should therefore be affirmed. 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: 25 October 2017