Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mousa v Roads and Maritime Services [2017] NSWCATOD 162 Hearing dates: 30 October 2017 Date of orders: 10 November 2017 Decision date: 10 November 2017 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed. Catchwords: PASSENGER TRANSPORT – cancellation of private hire vehicle driver authorisation – whether of good repute and a fit and proper person – guilty of criminal offence – no conviction recorded Legislation Cited: Passenger Transport Act 1990 Cases Cited: Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 Re T and the Director of Youth and Community Services [1980] 1 NSDWLR 392 Loye v Director General, Department of Transport [2000] NSWADT 145 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barrett v Director General, Department of Transport [2000] NSWADT 183 Lal v Director General, Department of Transport 2011 NSWADT 74 Category: Principal judgment Parties: Michael Mousa (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: AHA Taylor Lawyers (Applicant) Smythe Wozniak Lawyers (Respondent) File Number(s): 2017/00218405 REASONS FOR DECISION 1. This is an application by Mr Michael Mousa for review of a decision cancelling his authorisation to drive private hire vehicles. His authorisation was cancelled by Roads and Maritime Services (RMS) because RMS could not attest that Mr Mousa is of good repute and in all other respects a fit and proper person to be the driver of a private hire vehicle. The legislation 1. Section 40 of the Passenger Transport Act 1990 (the 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 40E of the Act provides: Having regard to the purposes of authorisation under this division, RMS may at any time vary, suspend or cancel any person's authority under this Division. 1. The issue in this case is whether the Tribunal can attest that Mr Mousa 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. Background 1. Mr Mousa has held an authority to drive private hire vehicles since about 2000. Prior to that he drove taxis for five or so years. He has a wife and five children, two of whom still live at home, and he is the sole income earner in his family. 2. On 28 April 2016 Mr Mousa was charged with two counts of "assault with act of indecency" in relation to an incident involving a passenger while he was on duty as a private hire vehicle driver. He was found guilty in the Local Court, convicted and directed to enter into a good behaviour bond for a period of two years. 3. On appeal to the District Court, Mr Mousa was found guilty of the offence. No conviction was recorded and he was ordered to enter into a good behaviour bond for a period of two years under s 10 of the Crimes (Sentencing Procedure) Act 1999. 4. The facts surrounding the offence for which Mr Mousa was found guilty involve him making unwarranted remarks about sex to a female passenger, grabbing her hand, hugging her and kissing her on the cheeks and lips. 5. Mr Mousa's authority was cancelled on 8 May 2017, a decision which was affirmed on internal review on 10 July 2017. The respondent had formed the view that Mr Mousa is not of good repute to drive private hire vehicles because he was found guilty of indecent assault. The applicant's case 1. Mr Mousa told the Tribunal that the incident didn't happen the way his passenger had described. He stated that, if there was an investigation, CCTV footage would show this. He also said that it would never happen again. 2. Mr Mousa said that he has been driving for 22 and a half years and has a good record. He is most concerned for his family and his financial situation. He said that, because he can't work, he has accumulated debts and can't pay the rent. He wants to be able to resume his occupation and support his family. 3. Mr Mousa was represented by a solicitor in these proceedings but the solicitor did not accompany him to the hearing. The solicitor had previously noted that, on appeal, the District Court had reduced Mr Mousa's sentence to a s 10 bond. The solicitor stated that Mr Mousa has not breached the bond and, by dealing with the matter by way of s 10, the Court had reflected the trivial nature of the offence. The respondent's case 1. RMS points out that both the Local Court and District Court found Mr Mousa guilty of the offences, although no conviction has been recorded against Mr Mousa and he has received a s 10 bond. RMS acknowledges that the actions of Mr Mousa fall at the lower end of what is encompassed with the offence of "assault with act of indecency". However, the offence occurred during the course of Mr Mousa performing his duties as a private hire vehicle driver and involved a vulnerable female passenger. 2. RMS submitted that, in the context of Mr Mousa's occupation, his actions were serious and simply not appropriate and that it does not matter that, in the criminal proceedings, he received a s 10 bond. The respondent noted that Mr Mousa has provided no references from persons able to attest to his good repute. 3. RMS referred to a number of cases involving criminal convictions which have been decided by this Tribunal and these are discussed below. Good repute and fit and proper 1. At issue is whether the Tribunal can "attest" that Mr Mousa is of good repute and in all other respects a fit and proper person to be a private hire vehicle driver. Most of the decided cases have dealt with an authority under s 33 of the Act to be a taxi-cab driver. The provision in s 33 is identical to that in s 40 of the Act relating to drivers of private hire vehicles and the cases are therefore apposite. 2. In Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 the Appeal Panel stated at [12] that by using the word "attest" the Parliament has sought "to emphasis the idea that the conferral of an authority involves a declaration of public trust". 3. The Appeal Panel went on to say that the expression "good repute and in all other respects a fit and proper person" is meant "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". The Panel then discussed the concepts of "good repute" and "fit and proper" (at [13]): "repute" goes to the public estimation of the person while "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". 4. In Re T and the Director of Youth and Community Services [1980] 1 NSDWLR 392 Wadell J stated when discussing the meaning of "good repute": 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. A criminal history is not, however, of itself evidence of bad repute, but does create a presumption that the person has, among those who know of that history, a bad reputation. It puts the onus on the person to establish their good reputation: Loye v Director General, Department of Transport [2000] NSWADT 145 at [29]. 2. In Saadieh v Director-General, Department of Transport [1999] NSWADT 68 at [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. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 388 Toohey and Gaudron JJ said: 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. Consideration 1. Mr Mousa has not been convicted of the offence of indecent assault. He has, however, been found guilty of that offence. His guilt was arrived at by a court after the assessment of all the evidence. As with a conviction, a finding of guilt will raise a question to be answered concerning the person's reputation (see Barrett v Director General, Department of Transport [2000] NSWADT 183 at 31). 2. The only evidence before the Tribunal is the evidence of the indecent assault as set out in the Police Facts Sheet and the subsequent finding by the court of Mr Mousa's guilt. While I accept that the offence was not viewed by the court as being at the most serious end of the spectrum of such offences, given the context within which the offence occurred it is, nevertheless, serious. In my view, Mr Mousa's behaviour towards his passenger was entirely inappropriate and goes directly to his suitability to hold an authorisation. A passenger in a private hire vehicle is entitled to expect that they will be treated with respect and courtesy and not be subjected to unwarranted and unwanted sexual advances or innuendo. 3. It does not appear that Mr Mousa has a history of such behaviour and I note his statement that it will not happen again. However, Mr Mousa has not provided any evidence of his general reputation in the community which would indicate that he has a good reputation among those who know him. Of most concern is that he appears to dispute he was guilty of the alleged behaviour. It is not open to Mr Mousa in these proceedings to now put forward an alternative view of the evidence or to imply that he is not guilty of the offence. 4. I am sure that the cancellation of the authority has had a detrimental effect upon Mr Mousa's financial situation. However, as was stated in Lal v Director General, Department of Transport 2011 NSWADT 74, hardship to Mr Mousa 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. 5. On balance, I am not satisfied as to Mr Mousa's current good reputation or that he is a fit and proper person to hold a private hire vehicle driver authority. Orders 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: 10 November 2017