Gomes v Roads and Maritime Services

Role of the Tribunal on Review 5Mr Gomes' Application for Review was lodged in the ADT on 12 December 2013. On 1st January 2014, the ADT merged into the NCAT. Clause 7 (3) (b) of Schedule 1 of the Civil and Administrative Tribunal Act 2013 (CATA) provides for unheard proceedings (commenced prior to 1 January 2014 - but not heard) to be considered according to the requirements of the previous legislation - the ADTA. 6The 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. 7The 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.

Reasons for refusal in Statement of Reasons 9th December 2013 8The Respondent's reasons were that Mr Gomes had an extensive customer complaint history. The complaints were of a similar nature despite warnings given to Mr Gomes and the retraining that he had undertaken. His authority had been cancelled on three occasions. The complaints bear on Mr Gomes' reputation and raise questions about whether he has sufficient responsibility to drive in accordance with law and custom. The Respondent concluded that it could not attest to Mr Gomes being a fit and proper person to hold an authority. 9The tribunal sets out below the Respondent's reasons from its Statement of Reasons for the Internal Review decision. On 30 September 2013 RMS received your application for taxi driver authorisation. Criminal, traffic, and compliance history checks were conducted and the following was found: You were first issued with an authority to drive a taxi on 14 July 2005. A Notice to Show Cause as to why the authority should not be cancelled was issued to you on 3 June 2008 in relation to your complaint history. A response was received from you on 23 June 2008. After careful consideration of the issues raised by you it was decided that your taxi driver authorisation GP6605 should be cancelled. A letter advising this decision was sent to you on 8 July 2008.On 25 July 2008 an internal review of the decision to cancel your authority was affirmed. On 12 November 2008 the Administrative Decisions Tribunal set aside the driver authority cancellation and substituted it with a suspension of your driver authority for a period of three months. After your taxi driver authority was returned to you in February 2009 and during the ensuing period, you were the subject of 9 further complaints. At that point you were directed to undergo retraining in the "Customer Care" and "Rules and Regulations" modules at an accredited taxi training centre. This requirement was met by you on 10 March 2010. On 11 March 2010, you were issued with a warning letter informing you that any further complaints may result in the variation, suspension or cancellation of your authority to drive taxi-cabs. On 21 March 2010, a further complaint was received from a male passenger alleging that you charged more than the correct fare by travelling a longer route, and that you also made sexual comments regarding his wife and that you fell asleep whilst driving during the journey. It was also noted that your driver licence 13016205 was suspended due to loss of demerit points from 24 March 2010 until 23 June 2010 inclusive. Your complaint history dates back to 2005. Since that time there have been 23 complaints registered against your authority. On 22 July 2010 your driver authority was again cancelled as a result of your complaint record. You applied for a taxi authority on 20 April 2011, and this application was refused on the basis of your previous compliance history. You appealed this decision, however the decision was affirmed with the condition that any future applications result in a conditional authority was issued (sic) to you for a period of 1 year, the conditions of which being: -Satisfactory completion of mandatory taxi training programmes -Passing the Sydney knowledge test -Providing a satisfactory medical certificate

• Satisfying the mandatory criteria as to a driver licence. On 21 March 2012 you signed an acknowledgement of the conditions, and your understanding that any further complaints or breaches of the Passenger Transport Act or Regulations would result in either the immediate cancellation or failure to renew your driver authority. On 3 May 2012 you again applied for a taxi authority, and based on the conditions above a one year authority was granted to you. As you were the subject of five further complaints, the pattern of behaviour was considered grounds for the immediate cancellation of your taxi authority, which was cancelled on 21 February 2013. You appealed this cancellation at the ADT, however our decision was upheld .......... RMS has a continuing obligation under the Passenger Transport Act 1990, to ensure that persons authorised to drive public passenger vehicles are of good repute and in all other respects 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, in accordance with law and custom. Further, your extensive complaints record shows that you do not possess sufficient responsibility when it comes to driving a public passenger vehicle and casts grave doubts about your fitness to hold a public passenger vehicle driver authority and of your ability to carry out the duties of the position according to law and custom. In determining "public interest" one has to formulate it in terms of the perceptions of "a reasonable member of the travelling public". It is likely that a reasonable member of the travelling public would regard your previous history as sufficient to refuse your application for an authorisation. You were afforded opportunities on three separate occasions to display an immediate and sustained improvement to your behaviour, however you repeatedly failed to do so and have had your driver authority cancelled on three separate occasions. You have accumulated a total of 32 complaints during your taxi driving history. In view of your compliance history, RMS can not attest that you are a fit and proper person for the purposes of the Passenger Transport Act 1990. Based on the above facts and law the determination has been made to refuse your application for a public passenger vehicle driver authority.

Documentary evidence 10The following documents were before the Tribunal.

• Mr Gomes' application and annexures to the Respondent dated 30th September 2013
• Mr Gomes' application for Internal Review and annexures dated 20th November 2013;
• Mr Gomes' application for review lodged in ADT on 13th December 2013 - including reports of psychologist Shobha Yadav;
• Bundle of material filed in support of his application on 28th April 2014 which became exhibit 3;
• Selected documents from the Respondent's section 58 documents. Written submission filed by Mr Gomes' advocate, Mr Jools.

Mr Gomes' case 11The main points in Mr Gomes' case were as follows:

• He had undertaken psychological counselling as referred to in the Tribunal's decision of July 2013 and should now be judged fit and proper;
• the section 58 documents at page 899 contained a satisfactory medical review;
• the Respondent had failed to give his application of 30 September 2013 proper consideration; and
• his witnesses would demonstrate that he was now fit and proper to have a taxi driver authority.

Psychological counselling 12The tribunal had made a decision on 2nd July 2013 in relation to Mr Gomes' authority that should indicate that he would be entitled to regain his authority if he undertook the actions suggested by the tribunal in paragraphs 49 and 50 set out below "49.In my view, further counselling is warranted. 50.Should the counselling continue, and were the Applicant to obtain another psychological report, he may be able to provide further evidence to the Respondent in order to satisfy it that he should again be issued with an authority." 13Mr Gomes referred to two reports of the psychologist that he had continued to see, Ms Shobha Yadav, dated 28th of September 2013 and 18th of November 2013 which were submitted with his application for internal review. Mr Gomes considered that these reports should have been sufficient to meet the requirements set out by Judicial Member Montgomery in his decision of 2nd July 2013. Mr Gomes submitted that the Respondent had not taken heed of the Tribunal's recommendations in in not being persuaded of his fitness by the reports.

Reports of psychologist Ms Yadav 14Ms Yadav's report of 28th September 2013 confirmed that Mr Gomes had been referred to her by Dr Jeyachandran and that he had seen her for counselling on 6th and 20th September 2013. It did not comment further. 15Ms Yadav's report of 18 November 2013 stated as follows: "This is to confirm that Paul has seen me for counselling on 6th of September and 20th of September 2013 upon referral from Dr Jeyachandran from Parkview Medical Centre Toongabbie. He was frustrated and stressed due to the long time it has taken to get his license back. We discussed issues that he needs to work on such as communication skills and conflict resolution skills in addition to passenger safety and abiding by the taxi driving rules. Paul reiterated that he is open to implement any suggestions and recommendations to improve his dealings with customers, work on his English language and also continue with the counselling on a regular basis as long as it is needed." 16Ms Yadav did not give oral evidence at the hearing.

Satisfactory medical review 17Mr Gomes submitted that the satisfactory medical review in the section 58 documents at page 899 should be sufficient to show that psychologically Mr Gomes was fit and proper to continue his career as a taxi driver. 18The review dated 11th October 2013 completed by S.Gauci was at page 899 of the section 58 documents. Mr Gomes referred to point 8 on the review form which noted : 8. Contacted Shobha Yadav (Psychologist) - no psychiatric diagnosis - sessions - coping mechanisms only - no further sessions required RIV AFTD March 2 012 and d/w Dr Jeyachandran and d/w Shobha Yadav (Psychologist) - meets unconditional DA 19Mr Gomes considered that the Tribunal should be satisfied by this report that he did not require further psychological counselling, that he now met the requirements for an unconditional driver authority and that he now should be considered fit and proper to hold a taxi driver authority.

Evidence of Mr Syed 20Mr Syed gave evidence that he had known Mr Gomes for six or seven years. He himself was a lawyer and a part-time taxi driver. He had provided both friendship and support as well as "mentoring advice" (tribunal's term) to Mr Gomes. He considered that over the last few months Mr Gomes had changed his approach. He now listens and he thinks before he acts. Mr Syed was aware of Mr Gomes' history as a taxi driver generally but not specifically in relation to the complaints, counselling suspension or cancellations.

Evidence of Mr Hussain 21Mr Hussain had worked in the taxi industry and had known Mr Gomes for 5 to 7 years. He knew him as a friend and he would attend functions at his home. He said that he did not think that Mr Gomes' personality had changed in the time that he knew him. 22Mr Gomes submitted that the witnesses who gave oral evidence Mr Syed and Mr Hussein had both been involved in the taxi industry. Accordingly their view of his suitability to be a taxi driver should be persuasive to the tribunal. In particular Mr Syed had indicated that he considered that Mr Gomes had changed his views and behaviour in recent times.

Failure to consider his application/give it weight 23Mr Gomes submitted that the Respondent had not accorded his application of 30 September 2013 and the information provided together with his application for internal review dated 20th of November 2013 sufficient weight and had given it no consideration

Evidence of Mr Gomes 24Mr Gomes did not give oral evidence to the tribunal. His advocate said that he did not think that Mr Gomes' oral evidence would assist the tribunal.

Mr Gomes' submissions 25Mr Gomes' advocate provided both written and oral submissions to the following effect. 26There are a number of items in Mr Gomes' favour. He had a huge number of commendations apparent at page 350 of the section 58 documents. He had returned customer's money to them. His honesty, knowledge and ability had not been brought into question. He conceded that he had complaints but he had also had compliments in the past. He had had to deal with attempts by customers at fare evasion. He was a knowledgeable taxi driver. 27He contested the outcome of the evidence of Ms Courtney in the previous hearing before the tribunal in July 2013. The tribunal had found that she had said that she was afraid. However the transcript that he had caused to be produced demonstrated that she had said she was not afraid. Her complaint should be disregarded in considering Mr Gomes' complaint history. 28The tribunal should find that Mr Gomes is now a changed character. The retraining that he had undergone had been a benefit to him. It was noted that complaints from passengers can occur without the driver even knowing and without the driver's evidence being taken into account. His advocate noted that Mr Gomes had made many attempts at regaining his taxi driver's authority and many others would have given up by now. He had a strong wish to be a taxi driver. 29It was submitted that Mr Gomes had not given evidence as it was difficult to understand what he said especially when gets excited. He had given evidence in the past. 30In relation to his psychological state no further sessions had been required by the psychologist Ms Yadav. The medical review in the section 58 documents said he was satisfactory. It was time now to give Mr Gomes another go. He had done all that was asked of him. He had an ability to put matters behind him. It was unfair and unjust to deny him hope.

Respondent's submissions 31The Respondent submitted that the fact that Mr Gomes kept on trying was not the test. The test was not that the Applicant should be given another go to see what happens. The test was not that a further refusal was harsh and unreasonable. The test was as set out in the AIC case - see Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65. That required a positive affirmation from the Tribunal that Mr Gomes was now fit and proper to hold a taxi driver's authority. Even if giving him a go were the test - he had had a number of opportunities to try again and these had been unsuccessful. 32While Mr Gomes had met the medical criteria these did not go to his fitness and propriety which were a different issue. His previous appeal from the decision of Judicial Member Montgomery to a full panel had been dismissed. 33The report of the psychologist dated 18th of November 2013 indicated that he still needed to work on his communication skills. He had not given oral evidence to the tribunal and his advocate had indicated that this would not assist the tribunal because of difficulties in understanding him. Mr Gomes had not given evidence in support of his own application before the Tribunal. In Howell v Macquarie University [2008] NSWCA 26 at 98 the Court of Appeal had found that the Jones v Dunkel principle applied before the Tribunal. This meant that the Tribunal was entitled (though not required) to draw an inference that Mr Gomes' evidence would not have assisted him. See Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 34There was no evidence that he had worked on his communication skills or his conflict resolution skills. The psychologist had not been called to assist on these issues. 35The tribunal needed to consider the factors set out in Saadieh's case and in particular the likelihood that Mr Gomes would repeat his inappropriate behaviour. See Saadieh v Director General, Department of Transport [1999] NSWADT 68. His authority had been cancelled three times. It would seem that his behaviour had not changed from having had his livelihood taken away on three occasions. It was unlikely that it would now change. It was highly likely that he would continue to attract complaints. 36Mr Gomes must have known that when his taxi driver's authority was reinstated in May 2012 that his behaviour had been inappropriate and that he risked further cancellation 37In the previous matter heard by Judicial Member Montgomery in July 2013, the evidence of the complainant, Courtney, had not been challenged. The Judicial Member had accepted her evidence that she was so scared when travelling in Mr Gomes' cab that she asked him to pull over. In any event the Judicial Member had noted that that incident was only the latest in a long series of incidents. It had occurred even after Mr Gomes had been seeing a counsellor. There was no evidence that he had addressed the conflict resolution issues that had been raised 38There had been no evidence that he had made 60,000 trips as asserted by his advocate. 39The evidence of the psychologist did not assert Mr Gomes' fitness but rather that he had further work to do. 40His supportive witnesses, Mr Syed and Mr Hussain, had not been aware of the scope of his previous problems as a taxi driver in giving their supportive evidence. Mr Syed had conceded that Mr Gomes needed counselling. Mr Hussain had said he seen no change in his personality. 41 In short there was a long series of complaints and multiple driver authority cancellations. Mr Gomes had undertaken retraining. It had been identified that he needed to address issues but there was no evidence before the tribunal that he had in fact addressed them. 42Refusing Mr Gomes a driver authority was not a penalty. Rather the tribunal was exercising a protective role in a protective jurisdiction.

Issue for Tribunal 43The issue in this case is whether the decision to refuse Mr Gomes' application for an authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Gomes is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a taxi-cab.

Findings of Fact 44The tribunal finds that Mr Gomes has had a significant history of complaints and driver authority cancellations. The tribunal adopts the findings setting out Mr Gomes' driver authority history in paragraphs 1-6 and 39 of the tribunal's decision in Gomes v Roads and Maritime Services [2013] NSWADT 187. 45Further the tribunal accepts the finding of that tribunal in relation to the evidence given by Courtney of her complaint. The tribunal rejects Mr Gomes' submission that Courtney's complaint should not be relied upon. In any event the tribunal accepts that Courtney's complaint was but one complaint in Mr Gomes' history of complaints. 46The tribunal accepts the conclusion of psychologist Shobha Yadav expressed in her report of 20th November 2013 that Mr Gomes needed to address the following issues: "We discussed issues that he needs to work on such as communication skills and conflict resolution skills in addition to passenger safety and abiding by the taxi driving rules. Paul reiterated that he is open to implement any suggestions and recommendations to improve his dealings with customers, work on his English language and also continue with the counselling on a regular basis as long as it is needed." 47There is no evidence before the tribunal from either Mr Gomes or Ms Yadav that Mr Gomes has followed through on these recommendations. 48Mr Gomes has referred to the medical report in the section 58 documents dated 11th October 2013 and its conclusion that "8. Contacted Shobha Yadav- no further sessions required- meets unconditional DA". The tribunal has compared this with the written report of Ms Yadav dated 18th November 2013 (which post-dates the Medical Review) and in particular its conclusion "Paul reiterated that he is open to....continue with the counselling on a regular basis as long as it is needed." 49From this the tribunal draws the conclusion that the quoted comments in the Medical Review of 11th October 2013 cannot be relied upon to conclude that Ms Yadav considered that Mr Gomes needed no further psychological counselling. 50The tribunal accepts that the conclusion of the Medical Review of 11th October is that Mr Gomes met at that time the medical requirements for an unconditional driver authority. This does not mean of itself that he could be considered "fit and proper" to regain his taxi driver authority. 51The evidence from Mr Syed was that he had provided both friendship and support as well as "mentoring advice" (tribunal's term) to Mr Gomes. He considered that over the last few months Mr Gomes had changed his approach. He now listens and he thinks before he acts. Mr Syed was a credible witness as to his discussions with Mr Gomes. However there was no evidence before the tribunal from Mr Gomes or any other source as to the impact of these discussions on Mr Gomes' behaviour. 52Mr Hussein's evidence was that he had not observed any change in Mr Gomes.

Findings on the law 53The issue in these proceedings is whether Mr Gomes 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. 54In the matter of Hughes & Vale the High Court commented that there are 3 components to fitness and propriety - "honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9. 55In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": "In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 56The 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. " 57The AIC case - see Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at 12 - means that the attestation to Mr Gomes being a fit and proper person must be positive and not simply a failure of the case against him to establish that he is not a fit and proper person to hold a taxi driver authority.. The judgement of a reasonably minded person is an important consideration in deciding whether Mr Gomes was now fit and proper, displaying the responsibility and aptitude required. 58This Tribunal's synthesis of these requirements in this matter is that an Applicant's fitness and propriety must be determined in the light of the role the Applicant is to undertake. The Tribunal must consider the evidence before it about the Applicant's honesty, knowledge and ability as it relates to the specific role. It is a determination to be made by the decision maker taking into account and weighing up matters both contrary to and in favour of the Applicant. It must be a positive attestation to fitness and propriety - not merely a lack of contradiction.

Likelihood of reoccurrence of behaviour 59In the matter of Saadieh, Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal built on the principles set out in Bond's case and set out the following factors to be considered by the decision maker in determining a person's suitability and fitness to hold a taxi-cab authority subsequent to being subject to complaints or convicted of offences:

• 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. 60In assessing whether the Applicant is likely to be subject of further complaints, the following considerations are relevant:
• the length of time since the offences were committed and the circumstances in which they were committed;
• whether the applicant admits responsibility for the offences or complaints and shows genuine remorse;
• the efforts the applicant has made to rehabilitate himself or herself during that time;
• any change in the applicant's circumstances such as increased support from friends, family or professional service providers. 61The tribunal has accepted the findings of the previous tribunal in July 2013 in relation to Mr Gomes' record of complaints. The most recent complaints against Mr Gomes had been made in 2012 - a little more than a year prior to the lodgement of his current application. The tribunal accepts that Mr Syed has provided support to assist Mr Gomes in avoiding further complaints. However the tribunal did not hear from his psychologist Ms Yadav or most importantly Mr Gomes as to his analysis of the complaints, his role in them or how he would avoid them in the future. The tribunal could not be satisfied that it was likely that Mr Gomes would not be subject of further complaints.

Good repute - character references 62In relation to the references as to Mr Gomes' repute, the tribunal refers to Loye's case, Loye -v- Director General, Department of Transport [2000] NSWADT 145 at 42 and 44. In this matter the Tribunal gave less weight to the references provided which did not contain the referee's knowledge of the offences where the references were relied upon to show the Applicant was of good repute. 63Evidence was provided orally by Mr Syed and Mr Hussein that they considered Mr Gomes to be a good person. Neither was aware however of Mr Gomes' complaint history in detail. Their evidence is not accepted as to Mr Gomes' good repute.

Financial hardship 64In relation to the financial hardship that being refused an authority is causing Mr Gomes and his family, the tribunal refers to the findings in Lal's case. This case found that financial hardship was not a relevant consideration when determining whether the correct and preferable decision had been made. Lal -v- Director-General, Department of Transport [2001] NSWADT 74 at 47.

Decision 65The tribunal cannot be satisfied that Mr Gomes is now a fit and proper person to hold a taxi driver authority. The decision of the Respondent to refuse his application for a taxi driver authority 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 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: 05 November 2014