10 Consistently with this approach, I refer in this decision to the current provisions rather than the old provisions, the relevant considerations being identical.
11 The Director General may cancel a taxi-cab authority "[h]aving regard to the purpose of the authorisation" (s33F PT Act). By s33(3)(a) PT Act the purpose of an authorisation 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.
Ground for cancellation
12 The Director General has not suggested that Mr Saddick is not a person of good repute. In the absence of any criminal convictions, or any other material which raises a doubt about his reputation, I agree that Mr Saddick's authority should not be cancelled on that ground.
13 The Director General says that Mr Saddick is not a fit and proper person to drive a taxi-cab, does not have sufficient responsibility to drive a taxi-cab in accordance with the conditions under which a taxi service is operated, and does not have sufficient responsibility to drive a taxi-cab in accordance with law and custom. In so saying he relies on the material set out in the Amended Statement of Reasons.
Evidence
14 A copy of the whole of the Department's file was admitted into evidence. I heard evidence from Mr Saddick and he was cross-examined on behalf of the Director General. I heard evidence from Mr Ullman, manager of the WAT network. I admitted into evidence Mr Saddick's letter of 21 February 2001, and a bundle of character references for Mr Saddick.
Assessing the probative value of complaints
15 An issue for the Tribunal is how to 'have regard to' the material relating to the complaints (cf s63(1) ADT Act) while at the same time complying with the rules of natural justice (s73(2) ADT Act), and the procedural obligations of the Tribunal in s73(3)-(5) ADT Act.
16 In Taylor -v- Director General, Department of Transport (GD) [2001] NSWADTAP 29 decided on 12 September 2001, the Appeal Panel said:
87 In passenger transport cases involving complaints from passengers or other members of the public the Tribunal should start from the position that a party should be given the opportunity of testing prejudicial evidentiary material tendered against him or her. That position may be modified depending on a number of factors including:
· whether and if so to what extent the applicant denies the allegations in the complaints;
· the importance of the complaints in relation to the whole of the respondent's case;
· whether complaints were made confidentially and the availability of passengers to give evidence;
· the nature and extent of the investigation process that has already been undertaken by the Department and the applicant's involvement in that process.
88 Depending on all these factors, the Tribunal may decide to admit the complaints, admit the complaints subject to submissions about their weight or not to admit the complaints into evidence.
17 This 'complaint-by-complaint' approach can be compared to the approach I had taken in Taylor at first instance ([2001] NSW ADT 17) when I said:
92 I consider the nature, seriousness and frequency of the complaints made against Mr Taylor indicate that he is not a fit and proper person to hold an authority.
18 Similarly in Lekrari -v- Director General, Department of Transport [2000] NSWADT 7, the Tribunal as it was then constituted said:
19 . . . in my opinion there is no need to judge whether any particular [complaint] justifies the decision under review, as I hold that the cumulative effect of them is more than enough to do so.
19 The decision to be made is a value judgment as to whether a person is a fit and proper person for a particular activity. Formulating that judgment seems to me to be a different exercise from deciding whether on balance a particular event occurred. The approach that was taken in Taylor at first instance, and in Lekrari, was to say that a judgment as to 'fit and proper' might reasonably be made on the basis of an accumulation of frequent and serious allegations, without inquiring into each of them and making a finding as to each of them. This was in circumstances where the likelihood of different and unrelated people, at different times, over a long period, making unfounded complaints was so low as to be discounted. An applicant who faces such a case can answer it by increasing that likelihood, pointing to something, such as bias, a conspiracy, historical prejudice, which would raise doubt about so many complaints' being unfounded.
20 Since Taylor this approach is no longer open to the Tribunal. Mr Saddick is entitled to a finding on the balance of probabilities on each of the incidents alleged, or on at least so many as would be necessary in the circumstances to allow a finding as to fitness and propriety.
21 An example of this approach is the Tribunal's decision in Abouhassoun -v- Director General, Department of Transport [2001] NSWADT 193 which was decided on 20 November 2001. In that matter the Tribunal considered each complaint on its merits, on the material available to it. In relation to each complaint the Director General relied on hearsay evidence of the facts that gave rise to the complaints, and the taxi-cab driver gave direct evidence. The approach was described in this way by the Appeal Panel in Abouhassoun-v- Director General, Department of Transport (GD) [2002] NSWADTAP 12:
10 In the case of two of the complaints, it took the view that there was not sufficient material before it, having regard to what Mr Abouhassoun said to it in evidence, for it to reach any conclusions on the balance of probabilities . . .
. . .
13 In this case, as we interpret the Tribunal's decision, it was satisfied that there were sufficient contemporary records that were compiled in or about the time of the third, fourth and fifth complaints, to leave it satisfied on the balance of probabilities that the misconduct that was alleged against Mr Abouhassoun did occur. The Deputy President noted that the contemporaneous material was detailed and that Mr Abouhassoun's statements, at least in one of the cases, were themselves inconsistent. The Deputy President also had evidence before her, which connected Mr Abouhassoun with two of those three complaints.
22 As noted in Taylor , it has been the practice of the Director General to rely only on the record of complaints and the hearsay evidence of the facts of the complaints:
73 . . . The practice of the Department in Tribunal proceedings has been to tender their file which often contain several complaints from passengers, records of interview with the driver and an assessment of the appropriate action to be taken. It is rare for the Department to provide signed statements from passengers unless the same complaints have been the subject of criminal charges. Applicants, most of whom are unrepresented, rarely request that a passenger or other passenger be available for cross examination.
23 The decision in Taylor has clearly raised the stakes for the Director General in taking this approach to persuading the Tribunal of his view of a driver's reputation and fitness and propriety. As the Appeal Panel said in Abouhassoun :
10 . . . Clearly, the Department (this Department or any other Department) runs the risk that where it relies entirely on a documentary record and then the person that it is actually put against (in this instance, the taxi driver) comes along and gives an oral account that is different to the documentary record, that oral account may be preferred; or it may raise sufficient doubts in the mind of the Tribunal that it is no longer able to satisfy itself on the balance of probabilities that the administrative records are reliable.
24 In Azar -v- Director General, Department of Transport [2001] NSWADT 219, heard on 27 November 2001, the Director General submitted:
14 In respect of the substance of the complaints that had been received . . . that the Department could rely on the documents in the Department's file as the Tribunal was not bound by the rules of evidence.
25 In reply it was argued for the driver
27 that there was no evidence before the Tribunal, which established the substance of the complaints. That is, the file notes were hearsay evidence and not proof of the facts asserted therein . . .
26 The Tribunal noted that
31 . . . in order to exercise his discretion under s. 33F of the PT Act the Director-General needed to be satisfied that the conduct as asserted in the file notes did in fact occur and that this conduct was inappropriate conduct for a taxi driver, having regard to the purposes of a taxi driver authority. The Tribunal is required to undertake a similar task and the question is to what degree must the Tribunal be so satisfied in order to make a finding that the asserted conduct did in fact occur.
27 The Tribunal concluded that
35 . . . a Tribunal, which is not bound by the rules of evidence, must nevertheless base its decision on reliable relevant evidence and what is reliable will depend on the circumstances, the seriousness of the allegations, and the consequences that arise if the allegations are found to have occurred.
28 In Price -v- Director General, Department of Transport [2002] NSWADT 26 the Tribunal considered how to deal with allegations in writing where the maker of the allegations was not available for cross-examination.
22 My finding . . . must be made in circumstances where the only evidence from the children is hearsay evidence which has not been tested through cross- examination . . . I cannot give untested hearsay evidence much weight because it is not reliable.
29 I would take a slightly different approach, saying that untested hearsay evidence may or may not be reliable, depending on its nature. The point is illustrated by looking at Azar , which was similar to that in Price . The Tribunal said
27 To establish the substance of these complaints the Department has not called the passengers to give oral evidence nor have they tendered any sworn statements from these people. What the Department relies on to establish the substance of the complaints is the assertions contained in the file note of each complaint. . .
30 The Tribunal observed that
38 The question is what probative value do these file notes have. In my opinion they are of very minimal probative weight as they are not sufficiently detailed, and in one case record events that occurred more than one month previously and they are records made by persons other than the passengers, who did not see or hear the alleged conduct of Mr Azar.
31 The Tribunal's observations were as to " these file notes" (my emphasis). It was in the circumstances described by the Tribunal that they were of "minimal probative weight". It is clear from the Tribunal's analysis of the notes that the notion of 'weight' was in that matter a question of their reliability. Other file notes, although untested hearsay, may in other circumstances be of greater reliability.
32 In Azar the Tribunal found the unreliability of the notes to be such that use of the notes would be "prejudicial" to the applicant (at paragraph 36). 'Prejudicial' does not mean that it is contrary to an applicant's interests - all evidence against an applicant is prejudicial in that sense (cf Papakosmas v R [1999] HCA 37 per McHugh J at paragraph 91. 'Prejudicial' means "prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way" (BD (1997) 94 Crim R 131 per Hunt CJ at CL at 139).
33 It has been observed that "it will be an unusual judge or magistrate who is prepared to concede that a danger exists that he or she might be 'unfairly prejudiced' by evidence" (Odgers S, Uniform Evidence Law LBC Sydney 4th ed, at [135.4]). Mason P. agreed with this observation in Ordukaya v Hicks [2000] NSWCA 180 at [6]. The observation takes account of the ability a judicial officer is assumed to have, of being able to allocate weight to evidence according to its relevance and any degree of prejudice attaching to it.
34 In Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1120 Levine J said at paragraph 38
. . . Evidence admitted because of its relevance is one thing. Evidence relevant but urged to be excluded on the bases of procedural fairness flowing to unfair prejudice in the discretionary sense is another. Care in my opinion must be taken. Evidence of the kind sought to be led can be characterised as prejudicial in the sense, presumably, that it will be adverse, in the sense that it is capable of supporting a component of the plaintiff's case against the defendant. To use notions of procedural fairness to exclude relevant evidence because to admit it would amount to " unfair prejudice" or create " unfair prejudice" because it cannot be " tested", is a very sweeping proposition given the operation of the Evidence Act since 1995 and the non-jury structure of the present trial.
35 In Vitali v Stachnik [2001] NSWSC 303 Barrett J said at paragraph 22:
The trend of recent authority . . . lays particular emphasis on the adverb "unfairly" in the phrase "unfairly prejudicial". I refer in particular to the judgment of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 and the judgment of Sheller JA (in which Meagher JA concurred) in Ordukaya v Hicks [2000] NSWCA 180. In the latter case, as in ACCC v Australian Safeway Stores Pty Ltd [1999] FCA 1269, there was approval of the notion that inability to cross-examine on material sought to be introduced is not of itself unfairly prejudicial, at least in civil proceedings where there is no jury, even though that inability may well be a very relevant consideration in the Court's decision as to the weight it should ultimately afford to the evidence (see also R v Toki [2000] NSWSC 999).
36 In Ordukaya v Hicks Scheller JA, at paragraphs 39 and 41, said that:
. . . I do not think that it can be said that [the particular circumstance of creating the hearsay document] makes the prejudice unfair to the point of outweighing material of high probative value . . .
. . . in determining what weight should be given to its contents, the trial Judge had to bear in mind, as he did, that the defendant had not been cross-examined. Some of the matters raised related to inconsistencies or unreliability. None of these things required the Judge to exclude the statutory declaration nor would exclude its admission in the proper exercise of discretion.
37 In Idoport Pty. Ltd. & Anor. v. National Australia Bank Ltd. & Ors. [2001] NSWSC 222 Hodgson CJ in Eq said at paragraph 46 that authority
. . . does not suggest that the inability to cross-examine the maker of the hearsay statement necessarily makes the hearsay evidence unfairly prejudicial.
38 He went on to say, at paragraphs 48 and 49:
. . . I can deal with any prejudicial effect that the evidence might have, and I do not think its rejection . . . is justified.
. . . I do not consider [the evidence ] of very much weight, and I will be careful to avoid giving it any prejudicial effect, particularly any unfairly prejudicial effect.
39 The following guidance is apparent from these authorities.
40 The Department may if it chooses rely on hearsay material as evidence of the conduct it alleges against an applicant, without calling the people who made the allegations or created the documents (Abouhassoun).
41 That material must be relevant and not unfairly prejudicial. Care must be taken when assessing unfair prejudice (Marsden v Amalgamated Television Services Pty Limited).
42 Material is not necessarily unfairly prejudicial only because the maker of a hearsay statement is not available for cross-examination (Idoport v National Australia Bank; Vitali v Stachnik); absence of cross-examination is relevant to the weight to be given to the evidence (Ordukaya v Hicks; Vitali v Stachnik).
43 The unfair prejudice attaching to hearsay material may be outweighed by its high probative value (Ordukaya v Hicks).
44 The risk of untested hearsay material having prejudicial effect on a fact finder's deliberations is considerably reduced when the fact finder is a judicial officer and not a jury (Ordukaya v Hicks; Marsden v Amalgamated Television Services Pty Limited; Idoport v National Australia Bank).
45 I heard no direct evidence of any of the complaints on which the Department relies against Mr Saddick. The Department relies exclusively on hearsay material, and none of the makers of the statements was made available for cross-examination. That of itself is no bar to my taking account of the complaints. The issue in each instance is whether the material is sufficiently reliable or, to put it differently, whether the "reported statements are untrustworthy evidence of the facts stated" (JD Heydon Cross on Evidence Butterworths 2000 at [31020], p 851).
46 When making my decision it will be necessary to be explicit about the weight I give the material in light of the considerations I have set out above.
Approach to considering multiple complaints
47 When faced with a large number of complaints there are at least two possible approaches. One is to consider first those complaints for which there is the most reliable evidence. If those complaints can be established and are a sufficient basis on which to determine the correct and preferable decision, then it is unnecessary to consider the further complaints. An alternative is to consider first those complaints which are apparently the most serious, any one of which might be a sufficient basis to determine the correct and preferable decision. A problem with the latter approach is that the apparently most serious complaints will not necessarily be those supported by the most reliable evidence. I prefer the former approach, and I consider the complaints in this matter in that way. The first step therefore is to consider the reliability of the evidence of the conduct on which the Department relies.
The complaints
48 The complaint concerning Mr Saddick's alleged conduct on 8 July 1992 is recorded by 'Eileen,' by hand, on an undated form designed for the recording of complaints. The record seems to be of a telephone conversation. It appears that the original form, of which I have seen a copy, records the name of the passenger but no contact details. There are no other documents on file relating to this complaint. Mr Saddick commented on this complaint in his letter of 21 February 2001.
49 The complaint concerning Mr Saddick's alleged conduct on 29 June 1995 is recorded by 'Eileen,' by hand, on 30 June 1995 on a 'Customer Complaint' form. The record seems to be of a telephone conversation. It appears that the original form, of which I have seen a copy, records the name of and contact details for the passenger. There is no record on the file of this complaint being put to Mr Saddick at the time, although the form states "Action: Reprimand". Mr Saddick commented on this complaint in his letter of 21 February 2001.
50 The complaint concerning Mr Saddick's alleged conduct on 29 June 1996 is recorded in a file note by 'Cheryl', by hand, on 29 June 1996 on a 'Customer Complaint' form. The record seems to be of a telephone conversation. It appears that the original form, of which I have seen a copy, records the name of and contact details for the passenger. There is no record on the file of this complaint being put to Mr Saddick at the time, and the form states "Action: No Action". Mr Saddick commented on this complaint in his letter of 21 February 2001.
51 22 September 1996 is recorded in an anonymous, undated 'Taxi Complaint Report' with a complaint number 18943. The record seems to be of a telephone conversation. It appears that the original report records the name of and contact details for the passenger. The complaint appears then to have been entered in the Department's computer system and given a reference number - 18943 - but the print out of that complaint form records no more information than the report. There is on the file a form which records Mr Saddick's response to this complaint at the time. The form also states the action taken as "Driver Counselled Only", and has on the entry "Code 4 Dismissed". Mr Saddick commented on this complaint in his letter of 21 February 2001.
52 The complaint concerning Mr Saddick's alleged conduct on 13 November 1996 is recorded in a file note by 'Eileen', by hand, on 14 November 1996 on a 'Customer Complaint' form. The record seems to be of a telephone conversation. It appears that the original form, of which I have seen a copy, records the name of and contact details for the passenger. There is no record on the file of this complaint being put to Mr Saddick at the time, and the form does not record any 'Action'. The form does have it endorsed on it "has been given Final Warning". Mr Saddick commented on this complaint in his letter of 21 February 2001.
53 The complaint concerning Mr Saddick's alleged conduct on 18 December 1996 is recorded in an undated file note by 'Eileen', by hand, on a 'Customer Complaint' form. The record seems to be of a telephone conversation. It appears that the original form, of which I have seen a copy, records the name of and contact details for the passenger. There is on the form a note "Driver Interviewed" and a record of Mr Saddick's response to this complaint. The form states "Action: File". Mr Saddick commented on this complaint in his letter of 21 February 2001.
54 The complaint concerning Mr Saddick's alleged conduct on 9 June 1997 is recorded in a letter from a passenger. It appears that the original letter, of which I have seen a copy, records the name of and contact details for the passenger. On file is a letter from Premier Radio Cabs to the passenger which states "The driver has been interviewed, counselled and reprimanded, with particular emphasis placed on inappropriate driving and customer care". It states further "The driver's version of events differed in some areas . . . ". There is no record on file of Mr Saddick's version of events, nor of any action being taken. Mr Saddick commented on this complaint in his letter of 21 February 2001.
55 The complaint concerning Mr Saddick's alleged conduct on 13 August 1997 is recorded by hand in an undated 'Operator's Report' form by 'Vicki'. Vicki appears to have recorded a conversation which 'Sandra', whom she supervised, had with a passenger. There is no record on the file of this complaint being put to Mr Saddick at the time, and the form does not record any 'Action'. The form does have it endorsed on it "issued with Final Warning". Mr Saddick commented on this complaint in his letter of 21 February 2001.
56 The complaint concerning Mr Saddick's alleged conduct on 30 November 1997 is recorded in a letter from a passenger. It appears that the original letter, of which I have seen a copy, records the name of and contact details for the passenger. The letter did not identify the driver, only the number of the taxi - T1419. A computer-generated complaint form of the Department - reference number 21820 - printed on 23 December 1997 records no more information than the report, and records the Taxi number as T1419. Endorsed on the form by hand is "Cannot locate Driver at this time or date". A document on file dated 5 March 1998 indicates that the passenger said that the Taxi number had been incorrectly transcribed. A computer generated complaint form printed on 5 March 1998, with the same reference number, records the Taxi number as T1914. There is on the file a further form which records anonymous observations on the complaint and records Mr Saddick's response to it. That form also records the action taken as "Severely Reprimanded", and states "Driver advised that the Department may issue him a Show Cause". Mr Saddick commented on this complaint in his letter of 21 February 2001.
57 The complaint concerning Mr Saddick's alleged conduct on 23 December 1997 is recorded in a file note by Lynette Reid, by hand, on a 'Customer Complaint' form dated 23 December 1997. The record seems to be of a telephone conversation. It appears that the original form, of which I have seen a copy, records the name of and contact details for the passenger. There is on the form a note which states 'Driver Interviewed' and an account of facts concerning the complaint. The account is initialled illegibly and dated 2 January 1998. It is unclear to me whether this account is Mr Saddick's or is a restatement of the complaint. The form does not record any action taken. Mr Saddick commented on this complaint in his letter of 21 February 2001.
58 The complaint concerning Mr Saddick's alleged conduct on 6 June 1998 is recorded by hand in an undated 'Operator's Report' form, signed illegibly. The record seems to be of a telephone conversation. It appears that the original form, of which I have seen a copy, records the name of and contact details for the passenger. There is no record on the file of this complaint being put to Mr Saddick at the time, and the form does not record any 'Action'. The form does have it endorsed on it "Noted. File for future reference". This complaint was not relied on by the Director General in his Statement of Reasons or Amended Statement of Reasons, and Mr Saddick has not had the opportunity to address it.
59 The complaint concerning Mr Saddick's alleged conduct on 22 June 1998 is recorded by hand in an undated 'Operator's Report' form, signed illegibly. The record seems to be of a telephone conversation with a passenger. It appears that the original form, of which I have seen a copy, records the name of and contact details for the passenger of the taxi. There is on the form a note which states "Driver Interviewed" and an account of facts concerning the complaint. The account is initialled illegibly and dated 30 June. The note states that an "apology/advice message" was left for the passenger, and records that a reprimand was recommended. There is no record on the file of that reprimand or any other action occurring. Mr Saddick commented on this complaint in his letter of 21 February 2001.
60 The complaint concerning Mr Saddick's alleged conduct on 27 August 1998 is recorded anonymously by hand in an undated 'Customer Complaint' form. The record seems to be of a telephone conversation with a passenger. It appears that the original form, of which I have seen a copy, records the name and telephone number of the passenger of the taxi. There is on the form a note which states "driver issued with Final Warning Next complaint will be expelled from Network", and records that the 'Action' was "Reprimand". Mr Saddick commented on this complaint in his letter of 21 February 2001.
61 The complaint concerning Mr Saddick's alleged conduct on 3 January 1999 is recorded by hand by 'Helen' in a 'Taxi Complaint Report' with a complaint number 23951, dated 5 January 1999. The record seems to be of a telephone conversation. It appears that the original report records the name of and contact details for the passenger. A file note, signed illegibly by an 'Enforcement Officer' indicates that Mr Saddick was interviewed, and it records his version of events. It states that "The driver was counselled and severely reprimanded". It further states "Permit to stand at a place , etc: Dismissed" and "Did a calculated act, etc: Guilty". A letter on file, from Les Ratcliffe, Accreditation Officer, appears to be addressed to the passenger and states "The driver concerned has been interviewed, counselled and severely reprimanded, with a particular emphasis on his obligation to strictly adhere to the Regulations governing ranking and multiple hiring at Sydney Airport". Mr Saddick commented on this complaint in his letter of 21 February 2001.
62 The complaint concerning Mr Saddick's alleged conduct on 16 March 1999 is recorded by hand in a file note signed illegibly on a 'Customer Complaint' form dated 17 March 1999. The record seems to be of a telephone conversation. It appears that the original form, of which I have seen a copy, records the name of and contact details for the passenger. There is on the form a note which states that the driver "again has been warned" and "Action: Reprimand". Mr Saddick commented on this complaint in his letter of 21 February 2001.
63 The complaint concerning Mr Saddick's alleged conduct on 14 April 1999 is recorded in a letter from a passenger. It appears that the original letter, of which I have seen a copy, records the name of and contact details for the passenger. The letter identified the driver as 0251. There is no document on file which explicitly states what action was a taken as a result of this complaint. Mr Saddick attended Taxi Training School on 22 April 1999. On 28 April Ted Robertson of Premier Cabs wrote "Mr Saddick has been advised any further complaints of a similar nature proved against him will lead to consideration being given to expel him from the Premier Cabs Network". Mr Saddick commented on this complaint in his letter of 21 February 2001.
64 The complaint concerning Mr Saddick's alleged conduct on 5 June 1999 is recorded in a letter from a passenger. It appears that the original letter, of which I have seen a copy, records the name of and contact details for the passenger. The letter did not identify the driver, only the number of the taxi - T2963. A handwritten endorsement on the letter states "Driver: Mr Saddick". Mr Saddick commented on this complaint in his letter of 21 February 2001.
65 The complaint concerning Mr Saddick's alleged conduct on 18 August 1999 is recorded in a letter from a passenger which appears to have been addressed to the Department. It appears that the original letter, of which I have seen a copy, records the name of and contact details for the passenger. The letter identifies the driver as AP0251. A letter of 24 August 1999 from the Department apparently to the passenger states that the complaint was referred by the Department to Premier Cabs for action and investigation. The complaint appears to have been entered in a computer system and given a reference number - 25988. A printout from that system identifies the "Complaint Reasons" as "12 Fail to drive by shortest practicable route" and "29 Permit taxi to stand at a place other than a public s " (sic). There is a hand written comment on the form prejudicial to Mr Saddick. It is signed illegibly. There is on file a file note signed by Ted Robertson which restates in slightly different words the text of the handwritten statement. The file note states "Comp Code 12 & 29 Dismissed". Mr Saddick commented on this complaint in his letter of 21 February 2001.
66 The complaint concerning Mr Saddick's alleged conduct on 10 September 1999 is recorded by hand in a file note signed illegibly on a 'Customer Complaint' form dated 16 September 1999. The record seems to be of a telephone conversation. It appears that the original form, of which I have seen a copy, records only the name of the passenger although a letter was subsequently sent to her. There is on the form a note which states that the driver was interviewed and there is a handwritten note which describes the incident in the first person, as if written by Mr Saddick. The 'Action' recorded is "Reprimand". There is on file a letter from Ted Robertson to the passenger which states "The driver concerned has been interviewed, counselled and severely reprimanded". Mr Saddick commented on this complaint in his letter of 21 February 2001.
67 The complaint concerning Mr Saddick's alleged conduct on 4 October 1999 is recorded on an 'On-road Monitor's DOB Report Form', signed by S Polonsky and dated 5 October 1999. There are no other documents on file relating to this complaint. Mr Saddick commented on this complaint in his letter of 21 February 2001.
68 The complaint concerning Mr Saddick's alleged conduct on 18 October 1999 is recorded in a letter from a passenger which appears to have been addressed to the Department. The letter identifies the driver as AP0251. There are no other documents on file relating to this complaint. This complaint was not relied on by the Director General in his Statement of Reasons or Amended Statement of Reasons, and Mr Saddick has not had the opportunity to address it.
69 The complaint concerning Mr Saddick's alleged conduct on 7 December 1999 is an infringement notice number N253914 directed to Mr Saddick and recording the alleged circumstances of the infringement. On file is an unsigned copy of note book entries recording a conversation between the author and Mr Saddick, concluding with words "INF No N253914". There are no other documents on file relating to this complaint. Mr Saddick commented on this complaint in his letter of 21 February 2001.
70 The complaint concerning Mr Saddick's alleged conduct on 22 January 2000 is recorded by hand in a file note signed illegibly on a 'Customer Complaint' form dated 22 January, or February, 2000. The record seems to be of a telephone conversation. It appears that the original form, of which I have seen a copy, records the name and telephone number of the passenger. There is on the form a note which states that the driver was interviewed and there is a handwritten note which describes the incident in the first person, as if written by Mr Saddick. The 'Action' recorded is "Reprimand". There is on file a letter from Ted Robertson to the passenger which states "The driver concerned has been interviewed, counselled and severely reprimanded". Mr Saddick commented on this complaint in his letter of 21 February 2001.
71 The complaint concerning Mr Saddick's alleged conduct on 4 February 2000 is recorded only in a letter from the Department to Mr Saddick dated 8 February 2000. The letter states that Mr Saddick was "observed and spoken to by an officer of the Department . . . for failing to wear an approved network uniform." The letter warned Mr Saddick that a re-occurrence would result in an infringement notice. Mr Saddick commented on this complaint in his letter of 21 February 2001.
72 The complaint concerning Mr Saddick's alleged conduct on 31 March 2000 is recorded by the Director General in its Statement of Reasons as having occurred on 7 April. Even though the incident on 31 March 2000 in the passenger's written complaint has since been referred to as an incident on 7 April 2000, it is clear from the Department's correspondence and the various descriptions of the circumstances of the incident that the incident being referred to is that of 31 March. I note that the first of two copies of the passenger's written complaint was dated 5 April. The complaint identifies the driver as having number 0251. The complaint was entered in the Department's Passenger Transport Computer System and given a complaint reference number - 27773. A printout from that system identifies the 'Passenger Reasons' as "5 Demand other than prescribed fare", and "35 Tout for person to ride in vehicle". A letter to the passenger dated 13 April 2000 from Premier Cabs refers to the provision of a refund. The letter states "the driver concerned has been interviewed, counselled and subsequently expelled from this Network". Mr Saddick commented on this complaint in his letter of 21 February 2001.
73 The complaint concerning Mr Saddick's alleged conduct on 3 December 2000 is recorded in an email dated 4 December 2000 from 'Anne', an operator at a telephone call centre to the Department. The email identifies the driver as having number AP0251. The complaint was entered in the Department's Passenger Transport Computer System and given a complaint reference number - 29817. A printout from that system identifies the 'Passenger Reasons' as "35 Tout for person to ride in vehicle". There is a hand written comment on the form prejudicial to Mr Saddick. An undated file note by Jim Hallahan, Operations Officer, records the alleged conduct but nothing else. A memo to David Tooze, Team Leader, from Jim Hallahan dated 2 February 2001 states that Mr Saddick "was contacted and admitted being the driver at the time of the complaint". It goes on to recite Mr Saddick's version of events. That memo recommended that a "notice to show cause for cancellation" be sent to Mr Saddick. That notice was sent on 13 February 2001. Mr Saddick commented on this complaint in his letter of 21 February 2001.
Hearsay nature of passengers' complaints
74 Complaints in writing from passengers were made in relation to incidents on 9 June 1997, 30 November 1997, 14 April 1999, 5 June 1999, 18 August 1999, 18 October 1999 and 31 March 2000. Each complaint is first hand hearsay: a document in which facts are recorded by the person who perceived the facts.
75 There is no suggestion, and on the face of the documents none could reasonably be made, that the passengers who made written complaints acted other than spontaneously and genuinely in giving an account of Mr Saddick's conduct. The complaints record first hand observations of Mr Saddick's conduct. The records of the complaints are reliable, and I will take account of them. I will as well take account of Mr Saddick's own version of events, his inability to recall one of the incidents, and the fact that the passengers were not made available for cross-examination.
Hearsay nature of officers' reports
76 Reports in writing from officers of the Department were made in relation to incidents on 4 October 1999, by S. Polonsky, and 7 December 1999, by I. Costa. The documents record first hand observations of Mr Saddick's conduct. There is no suggestion that the records of the incidents complained of were created other than in the ordinary course of the Department's business, or that the officers acted other than in the course of their duties, unmotivated by prejudicial factors such as bias. The records of the complaints are reliable, and I will take account of them. I will take account as well of Mr Saddick's own version of events, his inability to recall one of the incidents, and the fact that the makers of the statements were unavailable for cross-examination.
Hearsay nature of records of passengers' complaints
77 Records of complaints from passengers were made by officers of the Department, and in one case by an agent of the Department, and a record exists too of a report by an officer of the Department. The records are in relation to incidents on 8 July 1992, 29 June 1995, 29 June 1996, 22 September 1996, 13 November 1996, 18 December 1996, 13 August 1997, 23 December 1997, 6 June 1998, 22 June 1998, 27 August 1998, 3 January 1999, 16 March 1999, 10 September 1999, 22 January 2000, 4 February 2000, and 3 December 2000.
78 The customer complaint and operator complaint forms are second hand hearsay. Each form is a document in which a person has recorded facts as related to them by the person who perceived the facts. There is, therefore, from the very nature of the document, a real risk that the document is "untrustworthy evidence of the facts stated".
79 As is apparent from the decision below, I do not need to consider these second-hand hearsay complaints, finding in the first hand complaints sufficient material on which to determine the correct and preferable decision. Were I to consider them I would do so on the following basis.
80 The documents are business records. They appear to have been created by a person whose job it was, in the course of a business, to receive and record such accounts of facts. In some cases it might be appropriate to consider as less reliable those records which are unsigned or signed illegibly. In this case, where there are records which are unsigned or signed illegibly, Mr Saddick recalls the incidents referred to and offers his own version of events. I would not therefore discount those records merely because they are unsigned or signed illegibly.
81 There is no suggestion that the records were created other than in the ordinary course of the Department's business. It cannot reasonably be said that the authors of the records acted other than in the course of their duties, unmotivated by prejudicial factors such as bias. The records are reasonably reliable, but less so than the first hand accounts I have referred to above. I would take account of them. I would as well take account of Mr Saddick's own version of events, his inability to recall one of the incidents, and the fact that the passengers were not made available for cross-examination.
82 Were I to consider the second hand hearsay complaints I would give no weight to the complaint of 22 September 1996 as it was dismissed by the Department. Among the remaining complaints no action was taken or was recorded as having been taken in relation to seven of them. It does not follow that simply because the Department at the time did not take action there was no substance to the complaint. Each complaint, however, is only in the form of second hand hearsay: in the absence of any direct evidence as to the conduct, and of any evidence that explains the Department's thinking in not pursuing any action, it would be reasonable for Mr Saddick to query, as he did, what substance there can have been the complaint. Accordingly I would place no weight on the complaints relating to incidents on 8 July 1992, 29 June 1995, 29 June 1996, 18 December 1996, 23 December 1997, 6 June 1998, and 22 June 1998.
83 The remaining complaints resulted in action which indicates that the Department was satisfied that the alleged conduct occurred: a warning, final warnings, reprimands, Taxi training, a refund to a passenger, an infringement notice, and a 'show cause' notice. They are the complaints of 13 November 1996, 13 August 1997, 27 August 1998, 3 January 1999, 16 March 1999, 10 September 1999, 22 January 2000, 4 February 2000 and 3 December 2000. I would, as I said above, take account of them, but would consider them to be less reliable than the first hand complaints.
Consideration of complaints reported 'first hand'
84 The passenger's written complaint regarding an incident on 9 June 1997 was to the effect that Mr Saddick had touted for a fare at Central Station, had engaged in a multiple hire without the permission of the passengers, had driven fast and in a manner to cause distress to the passenger, and had demanded more than the prescribed fare.
85 A letter to the passenger from Premier Radio Cabs states that Mr Saddick was "counselled and reprimanded". It also states that Mr Saddick's "version of events differed in some areas".
86 In Mr Saddick's account of the incident in February 2001 he denies he did not have the passenger's permission to multiple hire. He does not address at all any of the other allegations except to say that the passenger asserted how much she should have to pay. I am unable to say whether or not Mr Saddick had engaged in a multiple hire without the permission of the passengers. I consider the passenger's complaint otherwise reliable, and more reliable than that of Mr Saddick. I find that, on balance, the incident occurred as complained of but for the issue of multiple hire without the permission of the passengers.
87 This conduct supports a finding that Mr Saddick is not a fit and proper person to be authorised to drive a taxi-cab.
88 The passenger's written complaint regarding an incident on 30 November 1997 was recorded by the Department on their records, with complaint codes, as
4 Demand more than prescribed fare
14 Fail to stop meter
22 Incivility or impropriety (verbal abuse/rudeness)
25 Leave driving seat
35 Tout for person to ride in vehicle
40 Fail to complete hire
44 Driver tendered wrong change (shortchanged).
89 I can see that each of these complaints is reflected in the text of the letter of complaint. The Department reprimanded Mr Saddick.
90 In Mr Saddick's account of the incident, given in February 2001, he phrases his version of the incident differently from the passenger's complaint. Where the passenger's written complaint says "we were approached by a taxi driver asking if anyone was going to Manly", Mr Saddick says the people at the rank "indicated they were going to Manly"; where the passenger's written complaint says "[h]alf way across the bridge . . . the taxi driver stopped the meter at $8.00", Mr Saddick says "at North Sydney the meter reading was $8.00". These responses from Mr Saddick are evasive. They are an attempt restate the passenger's complaint without reflecting adversely on his conduct, while not in fact denying the alleged conduct. Mr Saddick does deny demanding more than the prescribed fare. He does not address at all the other conduct complained of, most notably in my view the allegation of verbal abuse. I consider the account of the passenger more reliable than that of Mr Saddick, and find that, on balance, the incident occurred as complained of.
91 This conduct supports a finding that Mr Saddick is not a fit and proper person to be authorised to drive a taxi-cab.
92 The passenger's written complaint regarding an incident on 14 April 1999 was to the effect that Mr Saddick had touted for a fare at the airport, and had demanded more than the prescribed fare in circumstances of multiple hiring.
93 The complaint was made on 16 April 1999. On 21 April 1999 a letter was sent from Premier Cabs to Least Cost Taxi training saying "Mr Allan Saddick has been instructed to attend your Authorised Training School for instruction in two modules. A: Customer Care; B: Transport Regulations." On 28 April 1999 Premier Cabs wrote to the Department advising that Mr Saddick had been directed to attend the training school in relation to the "subject complaint".
94 I am satisfied from the material that Mr Saddick was directed to attend the training school as a result of the complaint made on 16 April 1999. Mr Saddick's claim in February 2001 that "the reason why I attended the training course was because I believed it would be beneficial to me and the public" evades addressing the issue of his being directed to attend it as a result of a complaint. He does not deny that he was directed to attend, but if he means to say that he attended voluntarily and that he was not directed to, I reject that on the basis of the material before me.
95 In Mr Saddick's account of the incident in February 2001 he denies demanding an excessive fare from every passenger in the taxi as part of the multiple hire, although it is not clear to me that this was alleged against him. Where the passenger's written complaint says "I objected very strongly [to paying the fare demanded] . . . he agreed to reduce the fare to $18", Mr Saddick says "he offered me the sum of $18 and suggested that that was all he should pay". As I said above, this response is evasive; and in my view is an attempt to restate the account without reflecting adversely on his conduct while not in fact denying the alleged conduct. Mr Saddick does not address at all the complaint of touting. I consider the account of the passenger more reliable than that of Mr Saddick, and find that, on balance, the incident occurred as complained of.
96 This conduct supports a finding that Mr Saddick is not a fit and proper person to be authorised to drive a taxi-cab.
97 The passenger's written complaint regarding an incident on 5 June 1999 was to the effect that Mr Saddick had had demanded and received more than the prescribed fare in circumstances of multiple hiring. I note that the letter of complaint reported favourably on Mr Saddick's politeness. On 15 June the Department sent a refund to the passenger. A file note records "$5 refund sent from petty cash - recoup from driver, received 17/6/99."
98 In Mr Saddick's account of the incident in February 2001 he denies the account given by the passenger. I am unable to say on balance that the incident happened as complained of.
99 In relation to the refund, Mr Saddick states that he "gave the amount of $5.00 to be sent to the passenger as an exercise in public relations and not as an admission of any wrong-doing on my part". It is apparent from documents on the Department's file that the Department gave the refund and then recouped it from Mr Saddick. Mr Saddick could acknowledge that that was the case, without making an admission of any wrong-doing. He has chosen instead to assert conduct on his part which would better reflect on his character, but which is not borne out by the material before me. On the basis of the material before me I reject the account that he has given in relation to the refund. His account is an example of his persistent attempts, in his letter of 21 February 2001 and in his evidence before me, to excuse or to deflect attention from his own conduct.
100 The Department dismissed the complaint of 18 August 1999 and I give it no weight. The complaint of 18 October 1999 did not form part of the Department's Statement of Reasons or Amended Statement of Reasons. It has at no stage been put to Mr Saddick; he did not comment on it in his letter of 21 February 2001. Not having heard or seen any response by Mr Saddick to this complaint I place considerably less weight on it. I do not however discount it entirely, as it is in my view otherwise reliable first hand hearsay.
101 The passenger's written complaint regarding an incident on 31 March 2000 was to the effect that Mr Saddick had failed to drive by the shortest practicable route, had touted for multiple hire fares, had done so without the permission of the passengers, and had demanded more than the prescribed fare. A letter sent by Premier Cabs to the passenger on 13 April 2000 states "the driver concerned has been interviewed, counselled and subsequently expelled from the network . . . [the driver has] provided a refund of twenty dollars".
102 On 12 April 2000 Premier Cabs wrote to Mr Saddick saying
Following your appearance before the Enforcement Officers and Operations Manager today as the result of another serious customer complaint re overcharging, you are hereby given notice of expulsion from the Premier Network effective immediately.
103 In the account in February 2001 he gives a reason for not driving by what the passenger claimed would have been the shortest route. He has not addressed at all the claims of touting, multiple hiring without permission, or overcharging. I consider the account of the passenger more reliable than that of Mr Saddick, and find that, on balance, the incident occurred as complained of.
104 This conduct supports a finding that Mr Saddick is not a fit and proper person to be authorised to drive a taxi-cab.
105 Despite the letter to him of 12 April, Mr Saddick says that he left the Premier Cab Network voluntarily. Mr Saddick concedes that he knew it was intended to expel him, but says that he does not recall getting a notice to that effect, and that he left of his own accord "in view of [a Mr Ted Robinson's] attitude".
106 If that is the case, the need for Mr Saddick to protest in February 2001 that he "was not given the opportunity" to defend himself against the complaints is hard to explain. It would however be explained by an awareness on his part that he had been expelled on the basis of complaints. I note that Mr Saddick had the opportunity at least in February 2001 and in the hearing before me. He does not explain why his "appearance before the Enforcement Officers and Operations Manager" was not such an opportunity, nor does he refer to the many occasions when it is apparent from the Department's file that he was interviewed as a result of a complaint being made.
107 In all the circumstances his complaint of lack of opportunity to address the complaints has little foundation. It is a further example of Mr Saddick's persistent attempts to deflect attention from or to excuse his own conduct.
108 The allegation by an officer of the Department concerning an incident on 4 October 1999 is that Mr Saddick was not wearing his uniform while on duty at the airport. Mr Saddick has no recollection of this. I accept that, on balance, the incident occurred. The Department is not recorded as having taken any action. In my view the incident is of little substance and, though reliable, is of limited relevance to issues of fitness and propriety.
109 The allegation by an officer of the Department concerning an incident on 7 December 1999 is that Mr Saddick solicited for passengers. The diary notes of the Departmental officer record that Mr Saddick agreed that he had called out for passengers, and agreed that to do so was a breach of regulations.
110 In his account on 21 February 2001 Mr Saddick did not deny the incident, but he said that he had been told by a Taxi Council officer to solicit for passengers because no-one knew his MaxiTaxi was a taxi. The officer's diary notes do not record Mr Saddick saying this at the time. They are not however silent on his response: they record him saying "There are a lot of people waiting. Where else am I going to park?". Mr Saddick's account makes no mention of his conversation with the Departmental officer, or of the issue of an infringement notice. I consider the account of the officer more reliable than that of Mr Saddick, and find that, on balance, the incident occurred as reported.
111 This conduct supports a finding that Mr Saddick is not a fit and proper person to be authorised to drive a taxi-cab.
Finding as to fit and proper
112 The question of whether Mr Saddick is fit and proper is a value judgment for the Tribunal (per Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at para 63). The question to be asked is whether a person is fit and proper "to undertake the activities in question" (per Toohey and Gaudron JJ para 56). In Mr Saddick's case the activity in question is driving a taxi-cab.
113 On only the passengers' complaints I have discussed above, and the issue of the infringement notice, I am satisfied that Mr Saddick is not a fit and proper person to be authorised to drive a taxi-cab. I find support for this view in Mr Saddick's complete failure to recognise or accept any wrong conduct on his part. Far from remorse, regret, insight or even acknowledgement, Mr Saddick is determined to justify and excuse himself in relation not only to each of the complaints I have considered, but to each aspect of each complaint. It was on the basis of this persistent attitude in his letter of 21 February 2001 and in his evidence before me that I have significant reservations about the reliability of Mr Saddick's evidence as it relates to the conduct alleged against him.
Traffic record
114 Mr Saddick was fined for exceeding the speed limit in April May and July 1998, and his 2A licence was suspended for three months in August 1998 for accumulated demerit points. The suspension was lifted on 12 November 1988, and he was fined for exceeding the speed limit two weeks later, on 29 November 1988.
115 Mr Saddick was fined was fined for disobeying traffic lights in July 1989. He was fined for exceeding the speed limit in July 1989, July 1990 and June 1991. In October 1991 his 4B licence was cancelled for accumulated demerit points; an appeal was dismissed but the period of cancellation was reduced. The licence was reissued on 19 February 1992 and three and a half weeks later, on 15 March 1992 Mr Saddick was fined for speeding.
116 Mr Saddick was fined for speeding again on 17 September 1992, 23 March 1993, 27 August 1993 and 3 April 1994. In July 1994 his 4B licence was cancelled for accumulated demerit points.
117 On 14 August 1994 Mr Saddick was fined for disobeying traffic lights and on 3 October 1994 for speeding. On 22 January 1996 he was fined for speeding.
118 Mr Saddick was fined for disobeying traffic lights on 10 April 1998 and for not making a U-turn with safety on 18 July 1998. He was fined for speeding on 22 July 1998. In September 1998 Mr Saddick's unrestricted HC licence was cancelled for accumulated demerit points. He was issued a probationary HC licence on 29 October 1998 and during the probationary period he was fined for speeding, on 18 July 1999. Mr Saddick appears to have exercised his option to have the speeding infringement decided by a Court. In the meantime, however, the 12 month period probationary period passed and he was issued with an unrestricted HC licence on 29 October 1999. Twelve days after his licence was reissued, on 10 November 1999, Mr Saddick was fined for disobeying traffic lights.
119 On 10 January 2000 the speeding fine from July 1999 was imposed by the Local Court at Burwood. Mr Saddick was fined for speeding on 12 April 2000 and again on 19 June 2000. He was sent a demerit points warning letter on 9 September 2000.
120 Mr Saddick acknowledges it to be "a bad record". He states a resolve to drive to carefully and within the road rules in future.
Finding as to responsibility to drive
121 In my view Mr Saddick's traffic record is such that he cannot be said, as required by s33(3)(b)(ii) PT Act, to have sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom.
122 Further material was relied on by the Department, which it is unnecessary for me to consider. That material includes the complaints from passengers recorded by officers of the Department - the second hand hearsay records - and complaints concerning Mr Saddick's participation in the Zero 200 network with his WAT vehicle.
123 I note that in his letter of 21 February 2001 Mr Saddick set out his financial circumstances. Financial hardship is not a relevant consideration under s33(3) PT Act - see the Appeal Panel in Taylor at paragraph 60.
Correct and preferable decision
124 In my view Mr Saddick is neither a fit and proper person to be the driver of a taxi-cab, nor a person with sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom. On either basis the correct and preferable decision would be to cancel his authority.
125 Accordingly I affirm the Director General's decision to cancel Mr Saddick's authority.
ORDER
1. The Director General's decision to cancel Mr Saddick's authority is affirmed.