Australian Broadcasting Tribunal v Bond HYPERLINK "http://www.austlii.edu.au/au/cases/cth/HCA/1990/33.html" \o "View Case"

Australian Broadcasting Tribunal v Bond HYPERLINK "http://www.austlii.edu.au/au/cases/cth/HCA/1990/33.html" \o "View Case" - [2014] NSWCATAD 71 - NSWCATAD 2014 case summary — Zoe

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Reasons for cancellation in Statement of Reasons 6On 24 December 2013 the RMS wrote to Mr Ullah advising that it had determined to cancel his authority immediately. 7The reasons set out were that the fact that RMS has a continuing obligation to ensure that public passenger services meet the reasonable expectations of the community for safe reliable and efficient passenger transport services. This includes the requirement that authorised drivers are of good repute and in all other respects fit and proper. The authorised person must also be considered to have sufficient responsibility and aptitude to drive a vehicle in accordance with law and custom. The fact that Mr Ullah had received a penalty infringement notice and subsequently nominated another individual as the driver of the taxi at the time by forwarding a false statutory declaration to the government agency, together with his New South Wales driving history and his RMS infringement history, raised substantial doubt that he was a fit and proper person to continue to remain the holder of an authority to drive public passenger vehicles. The Reasons noted that on 9 April 2013 Mr Ullah had been convicted of four traffic offences and of making 4 false declarations. These criminal convictions indicated that Mr Ullah was not a person of good repute. He had failed to demonstrate the qualities of honesty truthfulness and integrity which are properties of being of good repute and a fit and proper person. The RMS records indicated that he had committed 19 demerit point traffic offences since January 2002 when his driver's authority was issued. It was an unacceptable risk to the safety of passengers and the wider community to allow a person to continue to drive a taxicab given this record. RMS believed that any member of the travelling public being aware of Mr Ullah's criminal convictions, his demonstrated failure to comply with road rules and his actions in providing a false statutory declaration to a government agency would object to being a passenger in a taxi cab driven by him. Accordingly the RMS could no longer attest to Mr Ullah being a fit and proper person with sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom. This is the test set out in section 33(3) of the Passenger Transport Act 1990 (PTA).

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Passenger complaints 20In relation to the complaints against him by passengers he noted that of the 11 complaints only three had been justified. One in October 1995, one on 24 November 2005 and another in July 2009. He referred to the complaint in October 1995. He understood that it alleged that he had sworn at an elderly woman passenger. He said that this was a case of mistaken identity as both he and other drivers had turned up at an address in response to a booking. The other drivers had been involved in a dispute. He had not concerned himself about it and the elderly lady had incorrectly identified him as being the driver who had sworn as a result of missing out on the booking. 21In relation to the matter at the airport on 24 November 2005 he said that he had been driving a passenger from the International to the Domestic Airport and that he had been caught in a traffic jam which substantially lengthened the journey. The customer had later expressed concerns about the cost as being greater than the normal fare for the trip between terminals. He had subsequently refunded the customer $10 even though he had correctly charged her the full amount. He did this in order to demonstrate good grace. 22In relation to the matter in July 2009 it was alleged that he had failed to pick up a booking in a timely fashion. As a result the client had complained that she had missed her plane. He said that the booking had been made for 11.45 am. Because of unpredictable traffic beyond his control he had picked the customer up at midday. He was surprised because he thought the customer was happy at the end of the trip as she had given him a tip. He had explained this to the authority when the complaint was made but he didn't know if they had really believed him. He noted that the authorities often do not believe the cab driver when complaints are made. He illustrated this with an example of an event when a customer falsely accused him of being in possession of another customer's phone. It was later demonstrated that the phone was in fact Mr Ullah's phone.

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Cross-examination of Applicant. 24The Respondent put to Mr Ullah that his statement to the Tribunal that he had only ever told four lies in his life relating to the false statutory declarations was incorrect. He had been deceptive in relation to his authority renewal in January 2012 where he had failed to declare his traffic infringements since his previous renewal. Mr Ullah said that he was not aware that these matters were covered. He thought the RMS already knew about traffic infringements and he did not think that they fell within the period of time. 25The Respondent also put to Mr Ullah that he had previously written to the Respondent saying that in his 13 years as an operator and driver he had not had a single complaint. In fact he had had 11 complaints made against him by the travelling public. Mr Ullah said that he meant valid complaints. The Respondent referred to the fact that there had been a number of complaints against him deemed valid by the taxi network. 26Under cross-examination from the Respondent concerning the traffic infringement on 2 September 2012 in Cleveland Street which led to the swearing of a false statutory declaration the Applicant told the Tribunal at one point in his evidence that he had been driving and at another point that he had not been driving. This was contrary to what he had told the RMS officers in his interview about the matter in September 2013 where he had said that his boarder Mr Kabir had been driving the taxi cab. 27He agreed that when the first of the infringement notices turned up he knew he would lose his licence because of his demerit points although he could not recall how many demerit points he had that time. He said he was not concerned about the fines but rather the demerit points. 28He said that he had nominated another family friend for two speeding offences and a red light offence and had provided statutory declarations about these offences. 29He said that he had pleaded guilty in relation to the 4 statutory declarations even though not all of them were false. Someone else had been driving at the time of some of the offences. He said that he had pleaded guilty on the advice of the Magistrate who told him he would get a 25% discount on his fine were he to plead guilty and not put the court to the trouble of the hearing. Mr Ullah said that it was his responsibility that the offences had occurred even though he had not been driving at the time of each of them. 30He agreed that what he had done in submitting the 4 false statutory declarations was dishonest. 31He also said he had been told by an officer of the Department when he had received the cancellation decision that there was "no point in seeking internal review"- so he had not done so.

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Respondent's Submissions 36The Respondent submitted that Mr Ullah regretted the consequences of his actions rather than regretting his lack of honesty. Under oath to the Tribunal he had given contradictory answers as to who was driving his taxi cab on 2nd September 2012 when the speeding offence in Cleveland Street occurred. He had also contradicted the version he had given to the RMS in his interview in September 2013 in which he had said Mr Kabir was driving. There were other inconsistencies in Mr Ullah's presentation. He had given evasive answers and he had responded with exasperation when this evasiveness and inconsistency were pointed out to him. 37The effect of his dishonesty in relation to the statutory declarations was that he had continued to drive at a time when he should not have been driving because of his loss of demerit points and this put public safety at risk. His actions demonstrated that he did not have the essential characteristic of honesty and integrity which was important in being considered a fit and proper person. The avoidance of the demerit points struck at the heart of the demerit point scheme which was to enhance driving safety on the roads. 38The Respondent noted that in NSW making a false declaration for a material benefit is a serious offence. Under s 25A of the Oaths Act 1900, conviction on indictment can lead to imprisonment for up to seven years. 39The Respondent submitted that it was illustrative of the seriousness of the matter that a former Federal Court judge was recently sentenced to three years' imprisonment for offences arising out of an attempt to avoid traffic points following a speeding charge. He was also disbarred, lost his Queen's Counsel commission, his Order of Australia and his National Trust listing as a "Living National Treasure" (R v Einfeld [2009] NSWSC 119). 40The Respondent referred the Tribunal to the matters of Cai, Naveed, Miah and Parvez v RMS - all of which involved the provision of false statutory declarations to the regulator attributing culpability for traffic infringements to persons other than the authorised taxi driver. All of these matters had been considered as very serious by the Tribunal and resulted in the authorised taxi driver losing his taxi driver authorisation. See Miah v Roads and Maritime Services [2013] NSWADT 264; Naveed v Roads and Maritime Services [2014] NSWCATOD 4 and Parvez v. Roads and Maritime Services [2014] NSWCATOD 13. 41The Respondent also referred to the tests of fitness and propriety set out in Bond's case. Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. 42In relation to the reference as to Mr Ullah's repute, the Respondent referred to Loye's case, Loye -v- Director General, Department of Transport [2000] NSWADT 145 at 42 and 44. In this matter the Tribunal gave less weight to references which did not contain the referee's knowledge of the offences where the references were relied upon to show the Applicant was of good repute. The Respondent submitted that Mr Singh had not been made aware that there were four false statutory declarations before providing his written reference. 43In relation to the financial hardship that the cancellation would cause Mr Ullah and his family, the Respondent referred to the findings in Lal's case. This case found that financial hardship was not a relevant consideration when determining whether the correct and preferable decision had been made. Lal -v- Director-General, Department of Transport [2001] NSWADT 74 at 47

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Findings of Fact 44There were a number of matters in the evidence which were contentious. The Tribunal's view is that it must be satisfied as required by section 140 of the Evidence Act 1995 on the balance of probabilities, the civil standard of proof. Accordingly, the Tribunal makes the following findings of fact. 45Mr Ullah pleaded guilty to and was convicted of providing 4 false statutory declarations on 9th April 2013.These statutory declarations were dated 3rd May 2012, 31st August 2012, 29th October 2012 and 28th November 2012. 46It is difficult from the information provided by the Respondent and Mr Ullah to be clear about which of these statutory declarations relate to the following driving offences now recorded on Mr Ullah's driving record:

21st March 2012 exceed speed limit by more than 20km/h but not more than 30km/h;
6th July 2012 not stop at red arrow;
2nd September 2012 exceed speed limit by not more than 10km/h; and
14th October 2012 exceed speed limit by not more than 10km/h. 47There are also additional traffic offences committed subsequent to the making of the false statutory declarations:
1st March 2013 exceed speed limit by not more than 10km/h; and
3rd March 2013 disobey traffic lights. 48Mr Ullah's evidence is that he provided the false statutory declarations concerned that he would exceed his demerit points allowance and be suspended as he previously had been. It is not clear which of the offences would have caused Mr Ullah to exceed his demerit points allowance. I accept however that he entered into the course of conduct to deceive the regulator and to prevent his licence from being suspended. 49It is likely that Mr Ullah was responsible for all of the traffic infringements committed in a taxicab that he was logged to have been driving at the relevant times. Mr Ullah did not provide clear consistent testimony that he had not been driving on these occasions. Further Mr Ullah has been convicted of providing 4 false statutory declarations nominating other drivers for 4 of the offences for which he was in fact guilty. 50I find that when Mr Ullah completed his application to renew his taxi driver authorisation on 11th January 2012 he knowingly failed to declare at question 2, traffic offences committed since his last renewal. Mr Ullah told the Tribunal that he did not think that his traffic infringements were covered by this declaration and that he thought that RMS already knew about his infringements - so he didn't need to declare them. This is inconsistent however with his completion of an application on 9 January 2002 and again on 2nd January 2006 where he has alerted the regulator to traffic infringements. 51The Tribunal is concerned that Mr Ullah told the Tribunal that even if he was not driving at the time of the driving offences relating to the false statutory declarations - it is still his "responsibility". It appears to the Tribunal that even now Mr Ullah has not been entirely honest about whether he has committed driving offences and whether he has provided false statutory declarations. 52The Tribunal acknowledges that Mr Ullah has had to deal with some very "miserable" circumstances as he described in his evidence. It appears that he wrote off his taxi in an accident subject of an infringement and has lost his home due to his financial difficulties. These matters have presented Mr Ullah with some testing moral dilemmas.

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Findings on the Law and Evidence 53The issue in this case is whether the decision to cancel Mr Ullah's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Ullah is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a taxi-cab. 54Fitness and propriety was defined in the matter of Hughes & Vale in the High Court as having 3 components -"honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9. 55In 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." 56Determining whether a person meets the requirement of being fit and proper is the role of the decision maker. The term "fit and proper person" was discussed by Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63]. The Chief Justice said that: 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. 57This Tribunal's synthesis of these requirements in this matter is that an Applicant's fitness and propriety must be determined in the light of the role the Applicant is to undertake. The Tribunal must consider the evidence before it about the Applicant's honesty, knowledge and ability as it relates to the specific role. It is a determination to be made by the decision maker taking into account and weighing up matters both contrary to and in favour of the Applicant. 58In the matter of Saadieh, Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal built on the principles set out in Bond's case and set out the following factors to be considered by the decision maker 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. 59In assessing the last factor, 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. 60In his evidence before the Tribunal, Mr Ullah has admitted to swearing 4 false statutory declarations nominating a driver other than Mr Ullah in relation to four traffic offences. Mr Ullah told the Tribunal that he was wrong to do this and that he is remorseful for his actions. 61As noted the Tribunal has determined that it is a very serious matter for a holder of a taxi driver authority to swear false statutory declarations in order to escape culpability for traffic offences - thereby misleading the regulator. In those matters the taxi drivers' actions led to their authorities being cancelled. 62Mr Ullah has been convicted of the four related traffic offences - including speeding and disobeying a red light as well as the offences of making 4 false statutory declarations. He has served a period of 6 months disqualification in relation to the false statutory declarations. 63The Tribunal is of the view that Mr Ullah's actions should be taken seriously as they reflect badly on his honesty, which is a fundamental consideration when determining whether a person is fit and proper. The dishonesty relates directly to Mr Ullah's role as a taxi-cab driver and his relationship with the regulatory authority. 64Further, the 4 infringements relate directly to his driving and driving record. This is significant given that a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. See Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 65The attribution of the 4 infringements to other drivers create a false picture 66of Mr Ullah's driving record and his driving performance. The Tribunal considers that the fact of Mr Ullah's 19 infringements indicate his driving performance has threatened public safety. 67Further, Mr Ullah's driver authority had been reissued in January 2012 after his failure to declare at least 2 traffic infringements. He misled the RMS in completing his Application. 68He has continued to drive for another operator with a stay in place. In Mr Ullah's favour it does not appear that he has accumulated further points or attracted further customer complaints during this time. 69Also in Mr Ullah's favour the Tribunal notes that there have only been 11 customer complaints against Mr Ullah in his role as a taxi-cab driver. He told the Tribunal that 3 are justified - although his explanation to the Tribunal of the three complaints does not indicate that he really does concede they are justified. 70The Tribunal gives some weight to the reference provided by Mr Singh in determining Mr Ullah's good repute in the community and his fitness and propriety. The Tribunal understands that Mr Singh was aware of only one of the false statutory declarations prior to giving evidence. He did not appear to change his view of Mr Ullah in any way once he became aware that there had been 4 false statutory declarations. The Tribunal understands that in a general sense that Mr Ullah is well thought of for his qualities by Mr Singh. 71The Tribunal also accepts that Mr Ullah has suffered anxiety as a result of his actions and by the thought that, if he loses his taxi driver's authority, he will be unable to support his wife and children. He has already lost his home as a result of his driving matters. However questions of possible hardship to Mr Ullah or to his family cannot be taken into account, however, in determining whether RMS has made the correct and preferable decision in relation to Mr Ullah's fitness and propriety to hold an authority. Lal v Director-General, Department of Transport [2001] NSWADT 74 72Mr Ullah's conduct in providing a false statutory declaration last occurred in November 2012. Eighteen months have passed. The Tribunal is satisfied that Mr Ullah now understands the seriousness of his conduct and would be unlikely to reoffend in this way in the future. 73Mr Ullah's last driving offences occurred over a year ago - speeding and disobeying traffic lights in March 2013. 74The Tribunal has also considered Mr Ullah's argument that he has already been fined and suspended from driving by the Court because of his false statutory declarations and should not be further penalised. The matter determined by the Local Court resulting in its decision to fine Mr Ullah and suspend his licence is however different to the matter before this Tribunal. 75In determining this Application to review a decision to cancel an authority the Tribunal's focus is not on disciplining or punishing the authority holder, but on protecting the public interest. As Kirby P explained in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201, albeit he was concerned with a medical practitioner:- "... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..." 76The approach of the Tribunal in determining whether the decision of the Respondent to cancel Mr Ullah's authority was the correct and preferable decision is to protect public safety - not to punish Mr Ullah. The Tribunal has weighed up all of the factors set out. Even now it is not clear from Mr Ullah's evidence whether the statutory declarations were actually false. Given the seriousness of Mr Ullah's actions in swearing the declarations which he has said were false to evade responsibility for four traffic infringements, the Tribunal cannot be satisfied that Mr Ullah is, at this stage, a fit and proper person to hold a taxi driver's authority as he has not demonstrated the honesty and integrity necessary in this regard. 77As the Tribunal has determined that, at this stage, Mr Ullah is not a fit and proper person to hold an authority, it is not necessary to consider whether Mr Ullah is of good repute or whether he has sufficient responsibility and aptitude to drive a taxicab, in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom.

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