Chen v Roads and Maritime Services

The RMS' Reasoning process that led to the decision 3.1 Roads and Maritime has a continuing obligation under the Passenger Transport Act 1990 to ensure that public passenger services meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services and that persons authorised to drive public passenger vehicles are fit and proper persons with sufficient responsibility and aptitude to drive the vehicle in accordance with the conditions and standards under which the vehicle concerned is operated and in accordance with law and custom. 3.2 The concept of 'fit and proper' in this context is one of the intrinsic nature of a driver, and goes to whether a driver is possessed of sufficient moral rectitude and character as to ensure that passengers (or prospective passengers) would feel comfortable in entrusting their safety to the driver and the driver holds the aptitude and responsibility to drive a public passenger vehicle in accordance with law and custom. 3.3 In determining whether a driver is "fit and proper", in addition to examining factors such as the drivers competence and skill to safely and properly manage and drive the public passenger vehicle, Roads and Maritime may also take into account factors such as the conduct of the driver in his or her interactions with passengers, and whether that conduct contravenes the public expectations of what is expected of a driver in the circumstances. 3.4 Although you insist, both in interview and in your response to the Notice to Show Cause, that you were trying to help the complainant, the fact that you took a heavily intoxicated female passenger, to a secluded area for an extended period of time and took personal photographs of her indicates inappropriate and unacceptable behaviour for the holder of a public passenger vehicle driver authority. 3.5 The seriousness of the allegations, and the fact that you have made admissions in relation to these, raise serious concerns regarding your ability to behave with civility and propriety towards passengers of your public passenger (taxi) vehicle. 3.6 Roads and Maritime has taken into consideration the information provided in your response to the Notice to Show Cause. This response provided an overview of the situation however did not provide reasoning to address the seriousness of the allegations. Your response has not provided any additional information to positively influence the decision in relation to your driver authority. Based on the above facts, law and reasoning, Roads and Maritime hereby cancels your public passenger taxi driver authority on the basis that it can no longer attest to you being fit and proper to hold the authority.

Applicable Law

1. Section 33(3) of the Passenger Transport Act 1990 states: 33(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 taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom.
2. Section 33F of the Passenger Transport Act 1990 states: Having regard to the purpose of authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division.
3. Section 35 (b) of the Passenger Transport Regulation 2007 states: The driver of a public passenger vehicle must behave in an orderly manner and with civility and propriety towards any passenger, intending passenger, driver of another public passenger vehicle or authorised officer.
4. The Tribunal's jurisdiction to hear and determine this application for review is found in section 52 of the Passenger Transport Act 1990 and section 63 of the Administrative Decisions Tribunal Act 1997 (ADTA). The authorities accept that the Tribunal's review is for the purpose of determining the correct and preferable decision by way of a merits review. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at paragraphs 10, 11 and 12. The Tribunal may affirm, vary, set aside and make a substitute decision or set aside the decision and remit it to the administrator.
5. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start, including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the 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.

Documents before the Tribunal

1. The following documents were before the Tribunal and tendered into evidence 1. Mr Chen's application for review; 2. Mr Chen's application for a stay; 3. The Respondent's 2 volumes of section 58 documents - including records of GPS co-ordinates for Mr Chen's taxi on 18th May 2014; 4. Documents filed by the Applicant on 27th April 2015; 5. Photographs filed by the Applicant; 6. Statement of Mr Munro dated 27th April 2015; 7. Statement of Mr Wolfe, undated; 8. Statement of Mr Wildman dated 27th April 2015; 9. Map of Penny's Lane; 10. Map of Blues Point Road;

Evidence of the passenger Nicole

1. The passenger's name was provided as Nicole. The Respondent submitted that Nicole's last name and address details were known to the Respondent. Nicole gave evidence to the Tribunal by telephone and was cross-examined by Mr Chen.
2. Nicole had made a statement dated 18th of August 2014. She said that she had been intoxicated at the party. She could remember being near water. She was unsure whether she had been touched on the breast by the taxi driver. She remembered talking to the taxi driver and that he had told her that they were waiting for someone to return her bag to her. She was too drunk to be concerned about her safety and did not know where she was. She agreed that she had given the taxi driver her name and her street number.

Evidence of Stephen Munro

1. Mr Munro provided a statement dated 27th of April 2015 and also gave evidence to the hearing by telephone. He stated that there was a party at his home on 17th of May 2014. During the course of the evening, Nicole became extremely intoxicated and David Wildman and he put Nicole into a taxi. He gave the taxi driver the address to take Nicole, which is less than a kilometre away in Darlinghurst.

Evidence of Andrew Wolfe

1. Mr Wolfe had provided an undated statement. He gave evidence to the Tribunal by telephone and he was cross-examined by Mr Chen. He told the Tribunal that in the early hours of the morning of 18th May 2014 he had received a telephone call from a male friend of his partner Nicole saying : "She is very drunk, I put her in a cab. She will be home in a few minutes. She doesn't have her bag or phone - you will need to pay the fare when she arrives."
2. Mr Wolfe said that he had gone outside with money to pay the fare. He waited for a considerable period of time and Nicole did not return. He became concerned and began running around the area looking for her, wandering the streets. He kept telephoning her and eventually David Wildman had answered her phone. He then heard the house buzzer and found that it was Nicole. He saw the taxi driver watching Nicole from the taxi as she came into the house. The taxi driver did not come in or ask him for the money. At that stage, Nicole was very intoxicated and she did not say anything.
3. Next day he had seen on Nicole's phone a message from the driver. He had telephoned the driver and said words to the effect of - I have just been wanting to know what happened. He had replied: "That's for her to tell you."

Evidence of David Wildman

1. Mr Wildman had provided a statement dated 27th of April 2015. He gave evidence to the Tribunal by telephone and he was cross-examined by Mr Chen. Mr Wildman stated that the party had been at his home. He had noticed that Nicole was intoxicated. On a scale of 1 to 10 with 10 the highest, Nicole's level of intoxication was 7/10. He and housemate Stephen Munro assisted Nicole into a taxi and gave directions to the driver to her address in Darlinghurst. They had been unable to locate Nicole's bag and telephone. He was concerned when he had received a phone call on Nicole's phone from Nicole's partner, Mr Wolfe asking where she was. It had been some time since they had put her in the taxi.

GPS co-ordinates

1. The Respondent tendered records of GPS co-ordinates for the movements of Mr Chen's taxi on the morning of Sunday 18th May 2014. The Tribunal understood from these coordinates that the taxi had stopped at an address in Palmer Street after 4:22 AM. The taxi had then been stationary between 4:46 AM and 5:49 AM at McMahon's point. The taxi had then again been stationary after 6:10 AM in Palmer Street at a set of coordinates outside Nicole's home in Palmer Street. These co-ordinates were different to those for the earlier stopping point in Palmer Street.

Evidence and Submissions of the Applicant Mr Chen

1. Mr Chen gave his evidence with the assistance of an interpreter in the Mandarin language. The Tribunal summarises Mr Chen's evidence and submissions as follows.
2. Mr Chen told the Tribunal that when he had picked up the passenger in the Cross he couldn't quite hear the destination address as it was very noisy. He did not think that the passenger was drunk. When they reached Palmer Street, the passenger said that she had no money, no bag or telephone. She said she couldn't see anyone waiting for her at her home. He thought that perhaps she was angry that her boyfriend had gone out when he was meant to be waiting for her. It was a busy Saturday night/Sunday morning and there was nowhere to park on Palmer Street. He wanted to be kind to her and help her. He didn't think it was appropriate to push her out of the cab as it was dark and would not have been safe. He said that the passenger mentioned McMahon's Point and he thought that he should take her there to wait until whoever was going to be waiting for her at home, had returned home.
3. He drove her to McMahon's Point where he knew that he would be able to park. When they got to McMahon's Point, they chatted and took some photos. The passenger grabbed him by the neck and took photos of their faces together. She slept for a while, having laid back the front seat. He denied having touched the passenger in any way inappropriately. He then drove her back to Palmer Street. He stopped at the address in Palmer Street and saw her boyfriend embracing her. He also took a photo of the outside of the address in Palmer Street which showed up on his camera as being at 6.13am. The initial fare from the Cross to Palmer Street would have been around $12. Mr Chen agreed that waiting time, representing the time spent at McMahon's Point, is about $60. He agreed that in these circumstances the total fare was approximately $72.00. He didn't ask her or her boyfriend for the money.
4. Mr Chen sent a text through to the passenger the next day because he likes to have consistent customers and wanted to tell her that he was available for trips for her.
5. Mr Chen told the Tribunal that he is a very experienced taxi driver. He told the Tribunal that he drove on night shift most of the time. He often worked around the Cross area. He told the Tribunal of his many years of experience in taxis with drunk passengers. He carried plastic bags so that passengers who vomited did not soil his taxi.
6. Mr Chen showed the Tribunal a number of photos of a female person and himself - their faces side by side. He said that they were photos that the passenger had asked him to take while they were at McMahon's Point. He said that they demonstrated that the passenger's face looked very clear and that she was not drunk.

Respondent's submissions

1. The Respondent made submissions about Mr Chen's past record. This included complaints made against him, as well as a suspension of his driver authority previously in 2008, the imposition of a two-year good behaviour bond on him by the courts in December 2008 and a recent bond imposed upon him on 6th March 2014 for "offensive manner."
2. The Respondent submitted that in this matter the passenger was extremely intoxicated, to the point where she was put into a taxi by those holding the party. Her boyfriend had been standing outside the front of their home in Palmer Street waiting for her to arrive. The GPS records put before the Tribunal showed that the premises outside which Mr Chen had parked at 4. 26 am and then later at 6.12am when he dropped the passenger off, were two different premises. It was likely that as the evidence was the passenger did not have her bag, her telephone or any money, that she had given the driver her telephone number and asked him to call it in order to try and locate her phone while she was in the taxi. All the evidence from the other witnesses was that the passenger had been extremely intoxicated.
3. The Respondent pointed to the unlikelihood of the driver's account that he had driven to McMahon's Point merely to wait for over one hour for the passenger's boyfriend to turn up to pay the small fare which initially had been around $12, thereby also incurring a one-hour $60 waiting fee. At the end, he did not even ask for payment of the fare.
4. It was the Respondent's submission that taking the passenger to McMahon's Point when she lived in Palmer Street in Darlinghurst and taking photos of her when she was extremely intoxicated was inappropriate behaviour. The behaviour pointed to the fact that Mr Chen was not a fit and proper person to hold a taxi driver authority. He did not hold the appropriate aptitude to be a driver.
5. If the Tribunal accepted Mr Chen's evidence, the passenger was not drunk. The alternative version was that two males had put the passenger in the cab, told the driver that there was no money on her and that he should collect payment at the arrival point. It was extremely inappropriate behaviour for the holder of a driver authority.

Tribunal's finding of facts

1. The Tribunal is satisfied from the evidence of Nicole the passenger, Mr David Wildman and Mr Stephen Munro, both of whom had assisted the passenger into the cab, that the passenger was intoxicated when picked up by Mr Chen.
2. The Tribunal is satisfied that Mr Munro told the driver the address and that he would be paid when the passenger reached her destination. The Tribunal is satisfied that Mr Wolfe, the passenger's partner, was advised by a male person by telephone to wait for Nicole's arrival in a cab at their home and that Mr Wolfe did wait in the street.
3. The Tribunal accepts that Mr Chen is a very experienced taxi driver. He told the Tribunal of his many years of experience in taxis with drunk passengers. He told the Tribunal that he drove on night shift most of the time and around the Cross. He carried plastic bags so that passengers who vomited did not soil his taxi. The Tribunal does not accept that he did not know that the passenger was very drunk. The Tribunal finds that Mr Chen should have been aware that the passenger was intoxicated when the friends instructed him to take her home.
4. GPS records provided by the Respondent show that Mr Chen did drive the passenger after 4.22am to an address in Palmer Street. GPS records show that Mr Chen then drove the taxi to McMahon's Point where the taxi was stationary for an hour approximately. He then returned to the passenger's address in Palmer Street. This last address has a different set of GPS co-ordinates to the address to which Mr Chen initially took the passenger in Palmer Street. During the time at McMahon's Point, Mr Chen took photographs of himself and the passenger. He later took a photo of the passenger's address in Palmer Street. Mr Chen did not substantially contradict this evidence.
5. The Tribunal did not take into account the fact of the complaints that had previously been made against Mr Chen as a taxi driver. Nor did it take into account the good behaviour bonds previously imposed upon him by the court system. These matters were not put to Mr Chen during the course of the hearing.

Findings on the law

1. The issue in these proceedings is whether Mr Chen is now of good repute and in all other respects a fit and proper person to drive a taxicab, and has the requisite responsibility and aptitude to do so as set out in section 33B of the PTA.

Meaning of fit and proper

1. In the matter of Hughes & Vale the High Court commented that there are 3 components to fitness and propriety - "honesty, knowledge and ability." See Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9.
2. Fitness and propriety is to be determined in the light of the role the applicant is to undertake. 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." (This Tribunal's underlining)
3. The process to be followed in determining whether an authority holder or applicant is 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. "
4. The decision maker must be positively satisfied that the authority holder or applicant is fit and proper. The Tribunal refers to the ADT Appeals Panel's statement in the AIC matter - see Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at 12. The effect of the Appeals Panels statement is that the Tribunal must make a positive attestation that Mr Chen is a fit and proper person to hold a taxi driver authority. Further the judgement of a reasonably minded person is an important consideration in deciding whether Mr Chen is now fit and proper, displaying the responsibility and aptitude required to hold a taxi driver authority.
5. This Tribunal's synthesis of these requirements in this matter is that Mr Chen's fitness and propriety to hold a taxi driver authority must be determined in the light of the role he undertakes as a taxi driver. The Tribunal must consider the evidence before it about Mr Chen's honesty, knowledge and ability as it relates to an authorisation to drive a taxi. 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 Mr Chen. It must be a positive attestation to fitness and propriety - not merely a lack of contradiction.
6. In determining Mr Chen's application to review the decision to cancel his authority, the Tribunal's focus is not on disciplining or punishing Mr Chen, 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 ..."
7. The Tribunal is specifically not able to take into account the hardship occasioned to Mr Chen by not being able to drive in determining whether or not he is fit and proper. The Tribunal also accepts that Mr Chen has suffered anxiety as a result of his actions and by the thought that, if his driver authority remains cancelled, he will be unable to support his daughter. See Lal v Director-General, Department of Transport [2001] NSWADT 74

Findings on Fact and Law

1. The incident before the Tribunal arises directly from Mr Chen's behaviour while driving a taxi. The test of fitness and propriety relates directly to the role in which Mr Chen exercises his driver's authority. The Tribunal is satisfied that Mr Chen's actions in driving the passenger from her area of residence to McMahon's Point and remaining there was a lack of judgement by Mr Chen as to how to deal with the situation in which he said he found himself. It is a situation that Mr Chen acknowledged is unfortunately a common occurrence for a taxi driver. It featured an intoxicated passenger who had no money for the fare. Mr Chen's actions in driving the passenger out of her area of residence and keeping her in the taxi for an extended period of time until returning to her address, is clear failure of judgement on his part.
2. The Tribunal accepts that the opinions expressed by the witnesses Mr Munro, Mr Wildman, Mr Wolfe and of the passenger herself, of the driver's behaviour are opinions of fair minded members of the public. They expressed dismay that rather than following the instructions of Mr Wildman and Mr Munro, the driver did not deliver the passenger to the address specified.
3. Mr Chen did not offer a reasonable explanation as to why he took the actions of driving the passenger to McMahon's Point and returning her to her address in Palmer Street approximately an hour and fifty minutes later. The Tribunal is not satisfied that Mr Chen has the aptitude to hold a taxi driver authority at present as result of this lack of judgement on this occasion.
4. The Tribunal determines that Mr Chen is not a fit and proper person to hold a taxi driver authority.

Decision

1. The Tribunal affirms the Respondent's decision to cancel the Applicant's taxi driver authority. 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: 01 July 2015