Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Argyropoulos v Roads and Maritime Services [2017] NSWCATOD 159 Hearing dates: 18 October 2017 Date of orders: 06 November 2017 Decision date: 06 November 2017 Jurisdiction: Occupational Division Before: L Pearson, Principal Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW: Private hire vehicle driver authority - Refusal of authority - Whether fit and proper person Legislation Cited: Administrative Decisions Review Act 1997 Crimes Act 1900 Evidence Act 1995 Oaths Act 1900 Passenger Transport Act 1990 Cases Cited: Director-General, Transport New South Wales v AIC [2011] NSWADTAP 65 Ghachame v RMS [2013] NSWADT 144 Husain v Roads and Maritime Services [2017] NSWCATOD 8 Lal v Director-General, Department of Transport [2001] NSWADT 74 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Singh v Roads and Maritime Services [2015] NSWCATOD 66 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Category: Principal judgment Parties: Theodoros Argyropoulos (Applicant) Roads and Maritime Services (Respondent) Representation: Counsel: Mr A Maroya (Applicant) Solicitors: Fleming Lawyers Pty Ltd (Applicant) Smythe Wozniak (Respondent) File Number(s): 2016/00378822, 1620262 REASONS FOR DECISION Introduction 1. Mr Argyropoulos has applied for review of a decision of the respondent Roads and Maritime Services (RMS) made on 9 September 2016 to refuse his application made under s 40B of the Passenger Transport Act 1990 (the PT Act) for a private hire vehicle driver authority. That decision, affirmed on internal review, a decision made on 18 August 2016 to refuse the application, which was made on 10 August 2016. The original decision was that the RMS could not attest that Mr Argyropoulos was a fit and proper person to be the driver of a private hire vehicle. The decision on internal review agreed with the reasons for the original decision, and concluded that the applicant was not a fit and proper person to hold a private hire vehicle driver authority, or possess sufficient responsibility and aptitude to drive public passenger vehicles. 2. For the reasons which follow, the decision under review is affirmed. Background 1. Mr Argyropoulos is 47 years old, divorced, with two children. He held a taxi-cab authorisation under the PT Act between 5 May 2009 and 1 April 2015, when that authority was cancelled on the ground that Mr Argyropoulos had completed two false statutory declarations stating that his mother, Mrs Areti Argyropoulos, was responsible for two speeding offences in a taxi-cab on 19 October 2013 and 8 December 2013. Mr Argyropoulos held a private hire vehicle driver authorisation issued on 16 December 2013 which expired on 17 December 2014. Mr Argyropoulos' evidence is that he started driving for Uber in May 2014, and continued as an UberX driver from February 2015 to 31 July 2016. In September 2016 Mr Argyropoulos was issued a class HR licence, and his evidence is that he presently works as a truck driver. 2. A copy of Mr Argyropoulos' driving record as at 28 March 2017 is in evidence (ex 2), and shows that after obtaining an unrestricted drivers licence in 1989, he has had his licence cancelled twice because of demerit points, been suspended from driving on four occasions because of demerit points, and in 2010 had good behaviour conditions applied instead of a further suspension. Most of the recorded offences were camera detected speeding. 3. In support of his application for internal review of the original decision to refuse to grant the private hire vehicle driver authority, Mr Argyropoulos provided three character references and a summary of his record as an Uber driver. The decision under review noted that Mr Argyropoulos had a lengthy record of driving offences, had submitted false statutory declarations in relation to traffic offences committed by him, and had continued to commit offences by providing passenger services without the required private hire vehicle authority. 4. Mr Argyropoulos applied to the Tribunal on 15 November 2016 for review of the decision of 9 September 2016. On 17 January 2017 leave was granted to extend the time to lodge the application, and directions were made for the respondent to provide documents under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act) and for the parties to provide their evidence and submissions. The matter was not ready to proceed on 29 March 2017, and was adjourned with directions extending the time for the parties to provide their evidence and submissions. Mr Argyropoulos provided a medical report dated 5 July 2017. On 5 July 2017 the respondent provided a statement of an additional issue not raised in the statement of reasons provided with the decision under review, being that Mr Argyropoulos had failed to disclose any medical condition as required in the application for the authority. Relevant legislation 1. Part 4A Div 5 of the PT Act provides for authorities to authorise persons to drive private hire vehicles. Section 40 of the PT Act relevantly provides: 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. 1. Section 40B relevantly provides: 40B Grant or refusal of application (1) Having regard to the purpose of authorisation under this Division, RMS may grant an application and authorise the applicant to drive a private hire vehicle, or may refuse the application. (2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant. 1. The legislative statement of the purpose of a private hire vehicle driver authority under Part 4A of the PT Act is in the same terms as that applicable under Part 4 for an authorised taxi-cab driver, and both parties relied on relevant authorities of the Tribunal and its predecessor the Administrative Decisions Tribunal concerning review of decisions in relation to taxi-cab drivers. The Review 1. The Tribunal has jurisdiction to determine this application for review under s 52 of the PT Act and s 63 of the ADR Act. The Tribunal is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, set aside and make a substitute decision, or set aside the decision and remit it to the administrator. 2. The issue in these proceedings is whether Mr Argyropoulos is of good repute and in all other respects a fit and proper person to drive a private hire vehicle, and has sufficient responsibility and aptitude to do so, as required in s 40(3) of the PT Act. Mr Argyropoulos' case 1. Mr Argyropoulos relies on an affidavit sworn on 26 April 2017, on which he was cross-examined; a report from a psychiatrist, Dr Sathish Dayalan dated 5 July 2017; a statement from his former wife, Ms Paula Argyropoulos dated 23 September 2017; and references provided by Mr Peter Xenos (30 August 2016), Mr Arthur Korakis (30 August 2016), and Very Rev Fr John Daskalakis (1 September 2016). 2. In his affidavit Mr Argyropoulos outlines his business and community involvement before 2009, the year in which he divorced from his wife, and also became unwell. Since 2009 he has relied on professional driving as his sole means of earning an income. His children aged 17 and 14 depend on him for financial support. His former wife has Parkinson's disease and is unable to work, and he is the sole income earner for the family. 3. Mr Argyropoulos states that he completed two statutory declarations giving notice to the State Debt Recovery Office that the person responsible for two separate traffic offences (both exceeding speed limit), committed on 19 October 2013 and 8 December 2013, was his mother. His lawyers have advised him that completion of the statutory declarations may constitute serious criminal offences. He has not been prosecuted under the PT Act or the Crimes Act 1900. At the time he completed the statutory declarations he was at risk of having his licence suspended due to too many demerit points, and in "an act of desperation and stupidity" he completed the statutory declarations. He was also under the misapprehension that completing the statutory declarations was not a serious matter. He now regrets having completed the statutory declarations. It has been three years since the offences and two years since his driver's authority was cancelled and he believes sufficient time has elapsed for the Tribunal to reinstate his authority. 4. Mr Argyropoulos states that as he would spend 72 hours on the road in any given week driving a taxi, his driving history is a function of the number of hours behind the wheel. He has completed the Traffic Offenders Rehabilitation Program (TORP) in April 2017, from which he has benefited. He will no longer re-offend, and he intends strictly to adhere to the traffic laws. 5. Mr Argyropoulos states that he started driving for Uber in May 2014 relying on his taxi driver authority. His passenger vehicle authority was cancelled in April 2015 and he continued driving for Uber until 31 July 2016, the date after which a driver authority would become a requirement. Like most Uber drivers at the time, he did not know it was an offence to driver Uber, believing that there was an amnesty period for drivers to continue to operate without a driver's authority. As he believed he did not commit any offences by driving UberX at the time of seeking a review of the RMS decision, he submitted his driver approval ratings from Uber. 6. In cross-examination Mr Argyropoulos stated that at the time he did not realise the importance of signing the statutory declarations, and stated that he accepts that he was stupid to do so. He did so to avoid incurring the demerit points. Mr Argyropoulos was granted a certificate under s 128 of the Evidence Act 1995 in respect of his evidence on this issue given under cross-examination. 7. Mr Argyropoulos' affidavit was prepared before the respondent advised the additional issue, being his failure to disclose his medical condition as required in the application for a driver authority. In cross-examination Mr Argyropoulos was taken to the application form in the respondent's s 58 documents, and conceded that he had answered "No" to questions whether he was being treated for illness or injury, or taking any medications, and to the question whether he had ever had any "psychiatric, psychological, nervous disorder, depression". He stated that he had answered in that way because he was embarrassed about the condition. He agreed that it is important for the regulator to know about such conditions. 8. In her statement Mr Argyropoulos' former wife supports his application, stating that she requires financial and physical support from Mr Argyropoulos for the care of their children, and that he needs a job with the flexibility to be able to leave work with little notice to be able to assist her. 9. Mr Argyropoulos submits that he is a fit and proper person for the purposes of the PT Act, because: 1. There has been sufficient effluxion of time since the disqualification occurred on 1 April 2015; 2. He admits the commission of the two driving offences and to making the two false statutory declarations; 3. He has shown remorse for those actions; 4. His driving record since disqualification, and his desire to attend the traffic offenders program and successful completion of the program qualifies him as eligible for reinstatement; 5. The fact that he submitted documents from Uber only shows that he was not aware that driving for Uber was contrary to the relevant Act at the time of the contravention; and 6. His good standing in the community is attested to by his character references. 1. Mr Argyropoulos submits that while authorities such as Lal v Director-General, Department of Transport [2001] NSWADT 74 confirm that hardship to the applicant is not a factor which the Tribunal can take into account in determining whether or not the respondent has made the correct and preferable decision, the statement made by Mrs Argyropoulos, as well as his completion of the TORP and his standing in the community, go to establishing that he is a fit and proper person to hold an authority. 2. The central factors for confidence that Mr Argyropoulos is unlikely to reoffend, having regard to the decision in Singh v Roads and Maritime Services [2015] NSWCATOD 66, are the length of time since his taxi cab authority was cancelled, his remorse, his completion of the TORP program, and the fact that his medical issues are stable as reported by Dr Dayalan. It is relevant that there is no evidence of customer complaints against the applicant as a taxi driver. The submission of false statutory declarations was an act of desperation and stupidity. The nature, seriousness and frequency of the two driving offences and making the two false statutory declarations are at the lower end of the scale of gravity, and the length of service and extensive working hours were a function of the applicant's poor driving history. 3. In summary, the applicant submits that the length of time since his taxi cab authority was cancelled, his lengthy history as a taxi driver, and his personal circumstances, standing in the community and genuine remorse, outweigh his actions in swearing the false statutory declarations which was an act of stupidity more than any fundamental moral turpitude on his part, and the Tribunal should be satisfied that the applicant is a fit and proper person to hold an authority. The respondent's case 1. The respondent submits that its concerns are with Mr Argyropoulos' traffic record as a whole, and in particular the issue of the false statutory declarations which are serious matters; and the non-disclosure of his medical history. The respondent notes that an Uber driver has at all times been required to hold an authority; however it regards this aspect of Mr Argyropoulos' case as of less significance than the other two factors. 2. The respondent submits that on the basis of Mr Argyropoulos' traffic record which discloses 23 warning letters, 38 speeding offences, and 10 other traffic offences; 113 demerit points from March 1991 to January 2017; and six suspensions because of demerit points, it cannot be said that Mr Argyropoulos has sufficient responsibility and aptitude to drive a vehicle in accordance with law and custom. Further, as noted in Husain v Roads and Maritime Services [2017] NSWCATOD 8, the making of a false statutory declaration in relation to driving reflects adversely on honesty, and there has been insufficient time since then. 3. The respondent accepts, based on Dr Dayalan's report, that Mr Argyropoulos is medically fit to hold a driver authority, as he has been in remission of his symptoms for 2 years, is compliant with his treatment, and his medication is unlikely to have any adverse impact on his abilities for safe driving. The respondent submits that the applicant's failure to disclose his medical history in the application is relevant to his honesty and whether s 40B is satisfied. Consideration 1. It was not in dispute, and the Tribunal accordingly finds, that Mr Argyropoulos provided two false statutory declarations relating to the traffic offences of 19 October 2013 and 8 December 2013, and that it was the provision of the false statutory declarations which led to the cancellation of his taxi driver authority on 1 April 2015. It was also not in dispute, and the Tribunal finds, that the applicant provided incorrect answers to the questions about his medical history when completing the application for the private hire vehicle authority on 29 July 2016. It was not in dispute that Mr Argyropoulos' driving record is as recorded in exhibit 2, and that he has attended and completed the TORP on 12 April 2017. It was not in dispute and the Tribunal finds that Mr Argyropoulos provides financial and physical support for his former wife and their two children. 2. The principles to be applied in considering whether it can be attested that a person is of good repute and a fit and proper person to hold an authority, and is considered to have sufficient responsibility and aptitude to drive a passenger vehicle, are settled. 3. The purpose of an authority is to "attest" that the holder meets those requirements, which is stronger than the concept of being satisfied of something and envisions the decision-maker assuring the public that the holder of the authority meets the criteria: Director-General, Transport New South Wales v AIC [2011] NSWADTAP 65. 4. The principles are summarised in Singh: 24 …The concepts of fitness and propriety have been defined by the High Court of Australia as having three components: "honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at [9]. 25 In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 26 The term "fit and proper person" was also discussed by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63] (Bond's case). The Chief Justice stated: 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. 27 In Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Administrative Decisions Tribunal considered the principles set out in Bond's case and set out the following factors to be considered in determining a person's suitability and fitness to hold a taxi-cab authority: • 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. 28 In assessing the last factor, the Tribunal found that the following considerations are relevant: • the length of time since the offences were committed and the circumstances in which they were committed; • 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; • any change in the applicant's circumstances such as increased support from friends, family or professional service providers. 1. In Husain v Roads and Maritime Services [2017] NSWCATOD 8 Senior Member Walker undertook a review of the authorities which have considered the significance of an applicant having previously made false statutory declarations, and concluded: 47 In every one of the above cases, therefore, the making of even a single false statutory declaration in relation to driving has led the tribunal to the conclusion that the applicant was not a fit and proper person to hold a driver authority. In argument the parties did not refer to a single instance involving false statutory declarations in which the tribunal had set aside a cancellation decision. While every case coming before the tribunal must be judged on its own merits, that unambiguous line of authority provides guidance as to the appropriate course to be taken in such cases. 1. In considering the Saadieh factors, the applicant has not been prosecuted in relation to the provision of the false statutory declarations. He now acknowledges that to provide a false statutory declaration is a serious matter. As was the case in Husain and in the authorities considered by Senior Member Walker, the Tribunal finds that the making of the two false statutory declarations reflects adversely on the applicant's honesty, and therefore on his fitness and propriety, for these reasons. First, to make a false declaration is a serious matter, as discussed in Husain at [38]-[41]. The circumstances in which this conduct occurred relates directly to Mr Argyropoulos' driving as the holder of a driver authority, which is the activity which he seeks to continue if granted the private hire vehicle authority. The circumstances in which they were made, being as he put it, as a matter of desperation to avoid the suspension of his driving licence, do not excuse his conduct, and further reflects adversely on his honesty. 2. The applicant has further acknowledged that he provided incorrect answers to the questions about his medical history when completing the application form, and he did not disclose his history of mental illness. In cross-examination the applicant agreed that in completing the form, he had acknowledged that he understood that he was aware that any person attempting to obtain a driver authority by false statement, misrepresentation or omission of details likely to affect the application is guilty of an offence and liable to a penalty. The applicant's explanation that he was embarrassed to disclose his medical history does not excuse his failure to disclose information which was potentially relevant to his fitness to drive, and thus a matter of public safety. While on further assessment based on the report by Dr Dayalan the respondent does not raise a concern as to the applicant's fitness to drive, it submits that this failure to disclose also goes to Mr Argyropoulos' honesty. The Tribunal accepts that submission. 3. Both matters reflect adversely on Mr Argyropoulos' honesty and therefore on his fitness and propriety to hold a driver authority, as confirmed in Sobey v Commercial and Private Agents Board. 4. There is no evidence as to any complaints made against the applicant. 5. Considering the third Saadieh factor, the Tribunal agrees with the respondent that Mr Argyropoulos' driving record is poor. While he had a six year period as a taxi cab driver, which he described as "lengthy", the number of demerit points, demerit points warning letters, and licence suspensions during that period was significant. Even after the cancellation of his taxi cab authority, when Mr Argyropoulos was driving for Uber, and later while the holder of a Class HR licence, he has continued to commit breaches, including a camera detected breach of the speed limit in a school zone on 10 August 2015. Mr Argyropoulos states that he has benefited from completion of the TORP program; however there is no evidence as to whether his conduct as a driver has improved, as the driving record in evidence is dated before the completion of the TORP program. 6. On the fourth Saadieh factor, the Tribunal accepts that Mr Argyropoulos has a positive reputation in the community, as attested to by his character referees. Each of those referees states that he is aware of the statutory declarations issue. Mr Xenos, who knows Mr Argyropoulos through the business community, states that this conduct is very much out of character for Mr Argyropoulos, and that he has expressed regret. Father Daskalakis states that he has known Mr Argyropoulos for more than 20 years and that he is a good man and is trusted and loved in the community. 7. In considering the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences, the further matters referred to in para [18] in Saadieh, and para [28] in Singh, are relevant: 1. The statutory declarations were provided over three years ago, and it is two and a half years since the applicant lost his taxi-cab authority as a consequence. The failure to disclose his medical history occurred significantly more recently, in August 2016. The circumstances in which the applicant provided the statutory declarations relate directly to the activities that he proposes to undertake: Ghachame v RMS [2013] NSWADT 144. The failure to disclose his medical history was both very recent, and directly related to the present application. 2. The applicant now expresses remorse for providing the statutory declarations. 3. Mr Argyropoulos points to his completion of the TORP program as an indication of his effort to rehabilitate himself. The Tribunal accepts that this goes some way to responding to the poor driving record evident in exhibit 2; however, the significance of that is limited by the fact that it was undertaken well after the cancellation of his taxi cab authority, and against the background of these review proceedings. 4. The Tribunal accepts that Mr Argyropoulos has medical support, as outlined in Dr Dayalan's report, and other community support as attested to in his references. However, given the evidence as to the ongoing issues relating to the health of his former wife and his need to provide financial and other support for her and his children the Tribunal cannot find that there is increased support. 1. Having regard to those matters, the Tribunal is unable on the available evidence to be satisfied that if circumstances in future were the same as they were in late 2013 when he was at risk of suspension of his driver's licence, and thus his ability to drive a passenger vehicle, it could be said with confidence that the applicant would be unlikely to act so as to put priority on maintaining his driver authority. It is not possible to say on the present evidence that the applicant is unlikely to reoffend in some significant way. 2. In summary, the applicant has engaged in serious conduct in providing the statutory declarations, and has failed to disclose relevant information going to his suitability to hold a driver authority; that conduct and the non-disclosure are relatively recent; and he has a poor driving record. Those factors outweigh the positive matters raised including Mr Argyropoulos' standing in the community and his expressions of remorse. As accepted by the applicant in submissions, financial hardship to the applicant and his family cannot be taken into account in determining the correct and preferable decision: Lal at [47]. Having regard to all the relevant circumstances, the Tribunal is unable to conclude that the applicant has shown that the Tribunal can attest that he is a fit and proper person to be the driver of a private hire vehicle at the present time. Conclusion 1. The decision under s 40B(1) of the PT Act to refuse to grant Mr Argyropoulos' application for a private hire vehicle authority is the correct and preferable decision, and should be affirmed. 2. The applicant submitted that if that was the conclusion reached the Tribunal should indicate a period within which it may be possible for Mr Argyropoulos to be considered to have met the criteria in s 40. It would be inappropriate for the Tribunal to express a view as to any particular time frame. Mr Argyropoulos is entitled to make an application for a private hire vehicle driver authority, and any such application in future would be considered on its merits and on the basis of the evidence then available. Order 1. The order of the Tribunal is that: 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: 06 November 2017