PASSENGER TRANSPORT ACT AND REGULATIONS - Public passenger (taxi) driver license - fitness and propriety of license holder - where driver conveys drunk passenger via circuitous route to destination
short trip takes two hours
Source
Original judgment source is linked above.
Catchwords
PASSENGER TRANSPORT ACT AND REGULATIONS - Public passenger (taxi) driver license - fitness and propriety of license holder - where driver conveys drunk passenger via circuitous route to destinationshort trip takes two hours
Judgment (6 paragraphs)
[1]
Introduction
The respondent, the Roads and Maritime Services Authority, cancelled Mr Yi Jin Chen's public passenger (taxi) driver authority as a result of events occurring on 18 May 2014. An appeal was brought to this Tribunal under s 52 of the Passenger Transport Act 1990. The Tribunal heard the matter and affirmed the decision of the respondent to cancel the authority. Mr Chen now appeals, or seeks leave to appeal, from that decision. For the reasons which follow, we would not grant leave to appeal and the appeal is otherwise dismissed.
[2]
Relevant law
Section 33 of the Passenger Transport Act states:
…
(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.
The Passenger Transport Regulation, s 35(b) provides:
The driver of a public passenger vehicle must behave in an orderly manner and with civility and propriety toward any passenger, intending passenger, driver of another passenger vehicle, or authorised officer.
As the member below stated, the reference to fitness and propriety makes applicable a considerable body of learning as to that expression in broadly comparable contexts relating to professional persons such as lawyers and medical practitioners.
In particular, the following principles are relevant here:
1. Fitness and propriety involves consideration of the relevant person's "honesty, knowledge and ability": Hughes & Vale Pty Limited v State of New South Wales (1955) 93 CLR 127; [1955] HCA 28 at [9].
2. The notion of fitness and propriety takes its particular meaning from the particular license involved. As was stated in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, the concept gains relevant meaning from "the sort of work which the license entails".
3. The question of fitness and propriety is a value judgment: see e.g. Australian Broadcasting Tribunal v Bond [1990] HCA 33 at [63].
4. The jurisdiction being exercised in this case is not punitive but protective. As Kirby P (as his Honour then was) explained in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 201 in the context of a medical practitioner: "the public needs to be protected from delinquents and wrongdoers 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."
[3]
The allegations and the facts as found by the Tribunal
The essential allegation against Mr Chen, as noted in the reasons below, is that:
Mr Chen picked up a drunk female passenger in the early hours of Sunday morning around 4:22 am from a party in Kings Cross. The passenger was going to an address in Palmer St, Darlinghurst - approximately a kilometre from the pickup point, but did not arrive home with Mr Chen until after 6:10 am.
The evidence received by the Tribunal below is now noted. The Appeal Panel observes that Mr Chen had an interpreter present at all times, although it appears from the transcript that he may not have always needed that interpreter. He chose not to have legal representation at the hearing. That is not unusual, indeed it is common in this Tribunal. As we explain below, there is no substance in the ground of appeal that the decision should be set aside because he was not legally represented below and furthermore, that point not having been raised at the time, ought not be accepted now. In this regard, we adopt what was said by another Appeal Panel in Drivas v Burrows [2014] NSWCATAP 87 at [30]-[33]:
30 In any event, the argument that the right to reject was lost is a new point which was not raised at first instance.
31 The considerations which greatly restrict the circumstances in which an appeal court will entertain points not raised below on appeal are pertinent: Hudson v Arp 1 (NSW) Pty Ltd [2014] NSWCATAP 31, see also: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Coulton v Holcombe (1986) 162 CLR 1 at 7.
32 The considerations favouring finality of litigation are at least as strong, and probably stronger, in the case of the Tribunal given the importance attached to the expeditious and inexpensive disposition of proceedings Civil and Administrative Tribunal Act 2013 (the Act).
33 Generally, a new point will not be allowed where the consequence would have to be a new trial because "evidence could have been given which by any possibility could have prevented the point from succeeding": Suttor v Gundowda at 438.3.
[4]
The evidence
Shortly after 4 am on 18 May 2014, Mr Chen picked up a passenger known as "Nicole" in Potts Point, New South Wales. She was put into the taxi by a Mr Stephen Munro, who gave Mr Chen the address to take Nicole in Palmer Street Darlinghurst, which was less than a kilometre away. Evidence was given from Mr Munro and Mr David Wildman that a party was held at their premises on 17 and into 18 May 2014. Nicole was a guest at the party. Each of them noticed that Nicole became "extremely intoxicated" as Mr Munro put it, or had a level of intoxication which was "7/10" as Mr Wildman put it. Shortly after 4am on 18 May, Mr Munro and Mr Wildman hailed Mr Chen's taxi, put Nicole in the taxi and gave directions to Mr Chen to take Nicole to an address in Palmer Street Darlinghurst.
Nicole's partner, Mr Andrew Woolfe, gave evidence that he had received a telephone call from another person at the party stating that Nicole had been very drunk, she had been put in a cab, she would be home in a few minutes, that she did not have her handbag or telephone and that he, Mr Woolfe, would need to pay the fare when she arrived. It is common ground that Nicole did not get out of the taxi until 6:10 am, nearly two hours later. Understandably, Mr Woolfe was most concerned, and started searching for her. Eventually, Nicole arrived home, but the taxi driver neither came into the house nor asked Mr Woolfe for money. Nicole was still very intoxicated. The next day, Mr Woolfe spoke to Mr Chen and asked what had happened. Mr Chen said "that's for her to tell you".
Mr Chen gave evidence which, according to the transcript, was somewhat convoluted. In substance, he said that he initially took Nicole to the Darlinghurst address but that when Nicole said she had no money, no bag and no telephone, and could not see anyone waiting for her, Mr Chen decided he "wanted to be kind to her and help her". He did not 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 he should take her there to wait until whoever was going to be waiting for her at home, had returned home. His evidence was that when they got to McMahon's Point, he and Nicole chatted. Further, Nicole grabbed Mr Chen by the neck and took photos of their faces. She slept in the back seat and he drove her back to Darlinghurst. Although the total fare based on the time spent would have been approximately $72.00, he did not ask Nicole or Mr Woolfe for the money. Importantly, his evidence was that he did not think Nicole was drunk.
The Tribunal considered all of this evidence. First, it concluded based on the evidence of Nicole, Mr Wildman and Mr Munro, that Nicole was intoxicated, and that Mr Chen must have known that. Secondly, it found based on GPS records kept by the respondent, that although Mr Chen did drive the passenger at approximately 4:22 am to an address in Palmer St, Mr Chen then drove the taxi to McMahon's Point and finally returned nearly two hours later to the passenger's address in Palmer St, which had a different set of GPS co-ordinates to the initial address, and that during this time, Mr Chen, rather than Nicole, took photographs of himself and the passenger.
In those circumstances, the Tribunal came to the following conclusions:
Findings on Fact and Law
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.
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.
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.
The Tribunal determines that Mr Chen is not a fit and proper person to hold a taxi driver authority.
[5]
Grounds of Appeal
We now turn to the grounds of appeal. We note that it was common ground that the appeal was lodged in time. The grounds of appeal are as follows:
1. The Tribunal's decision was based on evidence that was misconstrued by the respondent, leading the Tribunal into erroneous findings of fact that bore upon its ultimate decision.
2. Some important parts of evidence, which the Tribunal was bound to properly consider, were ignored or incorrectly referred to.
3. The Tribunal erred when employing the test for "fair minded members of the public" by applying the opinions of non-impartial witnesses.
4. The appellant was unrepresented at the hearing. This fact, combined with English not being his first language, disadvantaged him. The evidence was not fully tested or explored. The appellant may seek leave to call further evidence to address this issue.
Mr Chen accepts that ground 4 is a question of fact. He asserts that the remaining grounds are questions of law. We consider that each of those grounds are either pure questions of fact, or mixed questions of fact and law. It follows that there is no ground of appeal brought as of right; rather, each ground is one where leave is needed. For the reasons which follow, we would not grant leave to appeal for any of the grounds.
The first ground focused on what was said to be a 'misleading' of the Tribunal in relation to GPS co-ordinate evidence. The evidence before the Tribunal tendered by the respondent below were some GPS co-ordinates contained in a "taxi activity report", presumably kept by the respondent. Mr Chen's counsel provided the Appeal Panel with extracts from "Google Maps" into which the particular co-ordinates in those documents had been provided with a view to establishing that there was no significant difference between part of Palmer St in Darlinghurst where the taxi first stopped at about 4:26 am and the part where Nicole was dropped back at 6:10 am. This was apparently a challenge to the finding of fact by the Tribunal below that the point at which Nicole was ultimately dropped off in Palmer St "has a different set of GPS co-ordinates to the address to which Mr Chen initially took the passenger in Palmer St". We declined to receive this as new evidence. Counsel for Mr Chen accepted it was not "fresh evidence" in the sense that it was evidence which was available at the time of the hearing below, but Mr Chen did not then seek to adduce it. In addition, Mr Chen's counsel sought to tender a photo of McMahon's Point during the day, the relevance of which was unclear when Nicole would have been there during the night in May 2014. The factual basis for the tender is therefore not made out and we rejected the tender.
It is next suggested that the Tribunal made a wrong finding of fact as to whether Nicole was intoxicated to the extent which should have been noticed by Mr Chen. It will be recalled that Mr Chen's evidence as recorded below was that Nicole had grabbed Mr Chen "by the neck and took photos of their faces together". Given the consistent evidence from Nicole, Mr Wildman and Mr Munro that Nicole was very drunk, Mr Chen could hardly have failed to have observed that Nicole had alcohol on her breath. The Tribunal did not accept that Mr Chen was unaware that the passenger was very drunk. Counsel for Mr Chen referred to various pieces of equivoval evidence. Having reviewed the material, we are satisfied that in the face of the evidence from Nicole, the two witnesses who put Nicole in the taxi and her partner who gave evidence that Nicole was still intoxicated when she arrived home two hours later, there was ample evidence to support the finding that there was intoxication. There is certainly no error of law, and in the circumstances, we are not prepared to grant leave to appeal in relation to this factual finding which was so amply supported by the evidence below.
Finally, in relation to this ground, Mr Chen's submissions suggest that the decision below "contained several inaccuracies or mischaracterisations of the evidence". These appear to be asserted errors of fact. The applicant has not established that relevant factual findings were not supported by any evidence and were therefore not within the capacity of the Tribunal to find. In those circumstances, we would not grant leave to appeal in relation to ground one.
The second ground appears also to include some of the submissions we have already dealt with. The main point seems to be that the Tribunal ignored the reasons given by the appellant for allowing Nicole to remain with him. That is not so. The reasons given by Mr Chen are fairly set out and it was open to the Tribunal to find the facts that it did. We would not grant leave to appeal either in relation to this ground, which is essentially an attempt to reargue factual matters below.
The third ground is a challenge to the finding in paragraph 46 that the opinions expressed by Messrs Munro, Wildman, Woolfe, and Nicole of "dismay" for not following the instructions of Mr Wildman and Munro to deliver the passenger to the address specified (in circumstances when she was intoxicated) are opinions of fair minded members of the public. In argument, it was clarified on behalf of Mr Chen that it was not suggested that by these findings of fact, the Tribunal below abdicated its responsibility to come to a conclusion as to whether Mr Chen had acted with fitness and propriety in relation to Nicole. In those circumstances, an attack on this finding is a factual attack. It was not established that any of those witnesses were not witnesses of truth. Indeed, their evidence was accepted, and the submission that this finding contained an error of law because the witnesses "were not impartial" is misconceived.
The final ground was because Mr Chen was unrepresented he was disadvantaged, and the evidence was not fully tested and explored. We again note that this was not a point taken below, and there was no application by Mr Chen for an adjournment. It was faintly suggested that the appellant was not provided "with a great deal of assistance from the Tribunal or the respondent's solicitor". We do not accept this. It was not established that Mr Chen was in any way disadvantaged. In particular, we note, having considered the transcript, that Mr Chen was perfectly able to ask questions of a searching nature, of the other witnesses. As we have noted, many parties in this Tribunal are self-represented. There is no substance in this ground.
In conclusion, the quite remarkable circumstances found below led to a conclusion that there was a clear failure of judgement, a demonstrated lack of aptitude and thus a lack of fitness and propriety. Those conclusions were amply supported by the evidence. Nothing that has been put by Mr Chen justifies a grant of leave, nor does it establish a question of law. For all these reasons, we refuse leave to appeal and otherwise dismiss the appeal. We note there was no stay of the original decision of the respondent.
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
[6]
Amendments
21 January 2016 - Coversheet: AP file number corrected.
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Decision last updated: 21 January 2016