This is an application by Mr Chawkat El Cheikh for review of a decision refusing him an authority to drive taxi-cabs. His application for the taxi authority was refused by Roads and Maritime Services because Roads and Maritime Services could not attest that Mr El Cheikh is a fit and proper person to be the driver of a taxi-cab.
[2]
Background
Mr El Cheikh told the Tribunal he has been driving taxis since 1978. He was first issued with a taxi-cab driver authorisation in August 1990 following the introduction of the Passenger Transport Act 1990.
On 6 October 2000, following a number of complaints by customers, Mr El Cheikh was directed to undertake a remedial training course. He completed the course on 11 October 2000. However, further complaints were received and on 27 February 2001 he was issued with a "Notice to Show Cause" why his authority should not be cancelled. When he failed to respond to the notice, a further notice was issued. After considering his response, on 6 September 2001 Roads and Maritime Services issued Mr El Cheikh with a final warning.
On 22 January 2003 Mr El Cheikh was issued with an infringement notice for "Accept hire outside taxi zone". He appealed against the infringement but was convicted and ultimately required to pay a fine of $1000 plus costs.
Between February 2004 and June 2012 more than 20 complaints were registered against Mr El Cheikh. The nature of these complaints varied and included demanding more than the prescribed fare, failure to use a meter, improper behaviour, refusal to accept credit/debit card, multiple hire without consent, failure to provide reasonable assistance to customer, cleanliness, refusal of fare, rude to customer, driving in an unsafe manner, road rage by driver and failure to drive by the shortest possible route. As a result of these complaints, on 10 May 2012 Mr El Cheikh was directed to undertake a further remedial training course. He undertook the course on 19 July 2012.
Between the date of completing the course and May 2014 Mr El Cheikh had a further 12 complaints made against him. These complaints primarily concerned overcharging but also included rudeness and unsafe driving. A further two complaints were received before his authority was cancelled on 14 July 2014 because Roads and Maritime Services could not attest that Mr El Cheikh is a fit and proper person to be the driver of a taxi-cab.
Since then Mr El Cheikh has made two applications to be issued with a new authority (one in November 2014 and the other in September 2016 which is the subject of this application) and both were refused.
[3]
The legislation
Section 33 of the Passenger Transport Act relevantly provides:
33 Authorities
(1) RMS may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver".
(2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab 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 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 issue in this case is whether the Tribunal can attest that Mr El Cheikh 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.
[4]
The evidence of Mr El Cheikh
The evidence of Mr El Cheikh is that between about 1998 and 2010 he had a difficult time in his personal life. He was going through a divorce, one of his sons died, he was suffering from depression, was homeless and had arthritis and other medical problems. He got married again in 2009 and has four children from that marriage. He has been much happier since that time and has a stable home life. He is a changed man and will not be the subject of any more complaints if he is able to drive taxis again.
Mr El Cheikh said that he now understands how valuable his taxi driver authority is and that he will do the right thing in the future. When questioned about the complaints made about him in the past, Mr El Cheikh denied that he had overcharged or that he had done anything wrong. He said that most of the complaints were not true and people who made complaints were "whingeing".
Mr El Chiekh's son who represented him at the hearing indicated that, as a driver for such a long time, there would be bound to be some complaints against his father. He also said that Mr El Cheikh had not been very good at communicating or explaining to his passengers that extra charges such as tolls and booking fees would be added to the fare and this led to accusations of overcharging. He said his father would be happy to do a course to help him improve his communication. He also referred to new meters which help a passenger to understand the extra charges.
Mr El Cheikh provided statements from a number of people in his community and health professionals who stated he is of good character.
[5]
Respondent's case
The respondent argues that Mr El Cheikh has a long history of complaints against him. He has been warned about his behaviour and been sent to retraining courses on two occasions but, following attendance at each course, has had further complaints made against him which ultimately led to the cancellation of his taxi authority.
The respondent notes that some of the complaints against Mr El Cheikh have been stated to be "not justified" but states that this is because the complaint was anonymous and not investigated or there was conflicting evidence which could not be resolved. The respondent, however, submits that the sheer number of complaints against Mr El Cheikh demonstrates a pattern of behaviour. The respondent further states that Mr El Cheikh has not provided any evidence to the Tribunal to demonstrate that he has changed his behaviour. He submits that little weight should be put on the character references provided by Mr El Cheikh as these do not indicate the writers are aware of the matters against Mr El Cheikh.
[6]
Consideration
At issue is whether the Tribunal can "attest" that Mr El Cheikh is of good repute and in all other respects a fit and proper person to be a taxi driver. 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 emphasise the idea that the conferral of an authority involves a declaration of public trust".
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".
In Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal stated:
[T]here are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:
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.
In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; 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 and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers.
During the time that he held a taxi authority Mr El Cheikh had a large number of complaints made against him, predominantly for overcharging. A number of the complaints are recorded as being "not justified", but many are recorded as being "justified". I accept the respondent's view that, while some complaints may have been recorded as "not justified", the sheer volume of complaints indicates a pattern of behaviour on his part.
Of most concern is that Mr El Cheikh was required to undertake a remedial training course in 2001 and again in 2012 but does not appear to have changed his behaviour after undertaking the courses. His explanation that between 1998 and 2010 he was having a particularly difficult time does not explain the number of complaints made against him between 2010 and 2014.
At the hearing Mr El Cheikh did not demonstrate that he understands that he is required to make changes to his past behaviour in order to be granted a new taxi authority. Of particular concern is that he denies that any of the complaints were justified and refers to the complainants as "whinging". I note that he states he will undertake a further course if required to do so, but the utility of doing so must be questioned given his attendance at two previous courses did not change his behaviour.
Mr El Cheikh has provided a number of references from people who state he is of good character and respected in the community. None of these referees, however, indicate that they are aware of the history and nature of the complaints against Mr El Cheikh in his capacity as a taxi driver. I therefore accord them little weight (see Loye v Director General, Department of Transport [2000] NSWADT 145)
Given the level of past complaints against Mr El Cheikh, the seriousness of those complaints concerning overcharging and rude behaviour, the fact that attendance at two remedial courses did not change his behaviour and his lack of acknowledgment of or remorse for that behaviour, I cannot be satisfied that, if permitted to drive taxis again, Mr El Cheikh would not engage in the same behaviour as in the past.
I therefore, on the basis of the evidence before me, cannot attest that Mr El Cheikh 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.
[7]
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
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Decision last updated: 13 March 2017