Hoque v Roads and Maritime Services

Jurisdiction of the Tribunal

1. The Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) which established the Tribunal (s 7), states at s 30: (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note. See section 9 of the Administrative Decisions Review Act 1997.
2. The Administrative Decisions Review Act 1997 (NSW) (ADR Act) states at s 9: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation.
3. Section 63 of the ADR Act requires the Tribunal, in determining an application to review a relevant decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside each relevant decision. If the Tribunal sets aside a decision, the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.
4. There is no dispute that when Mr Hoque filed the review applications (the Applications), the Tribunal was empowered to review both cancellation decisions.
5. However, after Mr Hoque filed the Applications and before the hearing started, certain provisions of the 1990 Act were repealed and the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) (the Point to Point Act) commenced.
6. The hearing commenced on 8 February 2018. Mr Wozniak informed the Tribunal that the effect of two Tribunal decisions delivered in January 2018 by Senior Member Dr J Lucy, Hossain v Roads and Maritime Services [2018] NSWCATOD 11 ("Hossain") and Alameddine v Roads and Maritime Services [2018] NSWCATAD 22 was that the Tribunal no longer had jurisdiction to deal with the Applications.
7. Mr Wozniak also informed the Tribunal that in an extemporaneous unreported decision on 6 February 2018, two days before the hearing, Senior Member J A McAteer held that the Tribunal had jurisdiction in a matter substantially similar to the Applications, in that relevant events including the application to the Tribunal, had occurred prior to the legislative change taking effect on 1 November 2017.
8. Mr Wozniak orally submitted that Dr Lucy's decisions were not binding in relation to the subject proceedings, however, it was appropriate to find that the Tribunal did not have jurisdiction.
9. Mr Jools orally submitted that the Tribunal had jurisdiction to deal with the Applications.
10. The matter was adjourned part heard to enable certain documents filed by Mr Hoque to be provided to RMS, and to enable the parties to provide written submissions concerning the Tribunal's jurisdiction to deal with the Applications.
11. The hearing resumed on 19 July 2018, prior to which date both parties had provided written submissions. RMS' written submissions dated 13 March 2018 were to the effect that the Tribunal had relevant jurisdiction. RMS' rationale was summarised at [4] and [5] as follows: 4. It is submitted that the RMS decision to cancel or refuse a driver on the grounds of "fit and proper" up to November 2017 was made under the Passenger Transport Act 1990. It is submitted that the decisions of Dr Lucy are firstly not binding upon the Tribunal as currently constituted. The decision was legally made under the Passenger Transport Act and was legally appealed under the legislation as it stood. It is submitted that a merits review was a review of the decision that was made at the time under the law as it was at that time. This would be the same scenario as has been submitted in prior matters as applying law as it was at the time of an offence to sentence an offender who was apprehended many years later. The applicable law would have been the applicable law at the time of the offending and not at the time of the sentence. 5. Accordingly it is submitted that the Tribunal is able to review the decision as the application was correctly made at the time and the law that applied at the time of the decision should be applied to the Tribunal when dealing with the matter.
12. Mr Wozniak provided no caselaw or legislative authority to support the above submissions. However, he informed the Tribunal that 3 days before the resumed hearing, in yet another extemporaneous decision, the Tribunal, on this occasion constituted by Senior Member C A Ludlow, had determined that it had no jurisdiction to deal with a similar matter, where all relevant events other than the hearing, including filing an application, had occurred prior to 1 November 2017.
13. Regrettably, RMS, a model litigant, did not assist the Tribunal by providing any transcripts of the hearings pursuant to which the extemporaneous decisions were made, nor copies of written submissions in those proceedings, specific details of relevant findings of fact in either matter or oral reasons given for the decisions.
14. Mr Hoque provided undated written submissions in which he agreed with RMS' submissions that the Tribunal was empowered to deal with the Applications. Mr Hoque provided no legislative or caselaw authority in support of his submissions.
15. I note that prior to 1 November 2017, Part 4 of the 1990 Act provided that operator accreditation, taxi-cab licences and driver authorities were liable to cancellation by RMS, respectively pursuant to ss 31F, 32G and 33F, for reasons stated in the 1990 Act.
16. There is no dispute that the licence, accreditation and authority relevant to the current proceedings were each relevantly granted, issued, suspended and cancelled under Part 4 of the 1990 Act.
17. For convenience, from time to time I refer below to relevant transport legislation which had effect immediately prior to 1 November 2017 as the "previous regime" and to relevant legislation from that date as the "new regime".
18. Under the previous regime s 52(1) of the 1990 Act stated: 52 Applications to Civil and Administrative Tribunal (1) Any person whose application under Part 2, 4 or 4A has been refused, or whose accreditation, authority or authorisation has been varied, suspended or cancelled may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the refusal, variation, suspension or cancellation.
19. However from 1 November 2017, with the exception of cl 12 of Sch 2 of the Point to Point Act, neither that Act nor the 1990 Act make express provision for a continuation of driver authorities (or any review by the Tribunal of decisions to suspend or cancel such authorities). For convenience, all future references in these reasons to "Schedule 2" are to "Schedule 2 of the Point to Point Act".
20. Schedule 2 deals with "Savings, transitional and other provisions" and relevantly provides: 2 Definitions In this Part: "1990 Act" means the Passenger Transport Act 1990 … 8 Accredited taxi service operators (1) A person who was, immediately before the commencement of Part 3 of this Act, an accredited operator of a taxi service under the 1990 Act is taken to be an authorised provider of the service under this Act and this Act applies accordingly. (2) The person may be authorised under this Act even if the person had, before that commencement, been convicted of a disqualifying offence, unless the Commissioner determines that the person should not, because of that conviction, be so authorised. (3) The Commissioner must give written notice to the person of a determination under this clause. Any such determination is a reviewable decision for the purposes of section 145. (4) Any disciplinary action commenced, but not finally determined under the 1990 Act, against the person is to be dealt with under this Act. (5) For the purposes of taking action under this Act in relation to the authorisation of the person as a provider of a taxi service, any contraventions by the person of the 1990 Act or the 2014 Act or the regulations under those Acts may be taken into account. … 12 Holders of driving authorities (1) This clause applies to a person who was, immediately before the commencement of Part 3 of this Act, the holder of a driver authority under the 1990 Act that authorised the person to drive a taxi-cab or a private hire vehicle. (2) The person may drive a vehicle that provides a passenger service under this Act even if the person had, before that commencement, been convicted of an offence that would prevent the person from being eligible to drive a vehicle for that purpose under this Act, unless the Commissioner determines that the person should not, because of that conviction, be a driver for a passenger service. (3) Any such determination is a reviewable decision … …
21. The Interpretation Act 1987 (NSW) relevantly provides: 5 Application of Act (1) This Act applies to all Acts … (including this Act) whether enacted or made before or after the commencement of this Act. (2) This Act applies to an Act … except in so far as the contrary intention appears in this Act or in the Act … (3) Wherever appropriate, this Act applies to a portion of an Act … in the same way as it applies to the whole of an Act ... … 30 Effect of amendment or repeal of Acts and … (1) The amendment or repeal of an Act … does not: … (b) affect the previous operation of the Act … or anything duly suffered, done or commenced under the Act …, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act …, or … (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act … had not been amended or repealed. (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act ... does not affect: … (b) any right, privilege, obligation or liability saved by the operation of the Act …, or (c) any amendment or validation made by the Act …, or (d) the operation of any savings or transitional provision contained in the Act .... (3) This section applies to the amendment or repeal of an Act … in addition to, and without limiting the effect of, any provision of the Act … by which the amendment or repeal is effected. (4) In this section, a reference to the amendment or repeal of an Act … includes: (a) …, (b) a reference to an amendment or repeal of the Act ... effected by implication, (c) ..., and … 34 Use of extrinsic material in the interpretation of Acts … (1) In the interpretation of a provision of an Act ..., if any material not forming part of the Act ... is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act ... and the purpose or object underlying the Act ...), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act ... and the purpose or object underlying the Act ...) leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or …, includes: … (e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made, (f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House, … and (h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament. (3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to: (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act ... and the purpose or object underlying the Act ...), …
22. The Tribunal's review jurisdiction derives from the CAT Act, the ADR Act, the Interpretation Act and relevant enabling legislation.
23. Certain issues relevant to this matter, including aspects of the above legislation, were recently considered in Hossain. There the Senior Member found that the Tribunal had no jurisdiction to consider the application for review of a decision to suspend the applicant's driving authority. In coming to this view, she noted that, the provisions of Sch 2 with respect to accredited taxi service operators (cl 8), authorised taxi-cab network operators (cl 9) and accredited hire vehicle operators (cl 10) all contain specific provisions for continuity under the new regime of the relevant accreditation or authorisation, as the case may be.
24. The Senior Member found at [27]: … As the savings and transitional provisions in the Point to Point Transport (Taxis and Hire Vehicles) Act do not continue in effect an authority to drive a taxi granted under the Passenger Transport Act, there is no legislation which currently confers jurisdiction on the Tribunal to conduct the review …
25. With respect to the decision in Hossain, in my view it is implicit in a plain reading of cl 12 of Sch 2 that those persons formerly authorised to drive a taxi-cab under the previous regime were anticipated to be able to continue to drive under the new regime, until such time as they were told otherwise. That certainly is the approach of the Point to Point Commissioner (the Commissioner) according to her Fact Sheet dated August 2017 appearing on her website as at the date of the resumed hearing.
26. I observe that cl 12 (2) goes further; even those convicted of an offence that would otherwise preclude eligibility are permitted to continue to drive a taxi-cab until the Commissioner determines otherwise. It is nonsensical to suggest that those with convictions may continue to drive taxis but those whose record is unblemished should be disallowed. To adopt that approach without more would have brought the entire taxi industry (and the wider metropolitan public passenger industry) to its knees from 1 November 2017. The said Fact Sheet states: Anyone who held a driver authority immediately prior to the commencement of [the Point to Point Act] will automatically be recognised as meeting the safety standards under the Regulation. [RMS] will write to these drivers about what will happen next impliedly confirming the government's ongoing approval for previously authorised taxi-cab drivers to continue driving beyond 31 October 2017.
27. The construction of legislation should assist in achieving its objects and not, merely by implication, stop the operation of an important industry. Section 33 of the Interpretation Act relevantly provides: 33 Regard to be had to purposes or objects of Acts … In the interpretation of a provision of an Act ..., a construction that would promote the purpose or object underlying the Act ... (whether or not that purpose or object is expressly stated in the Act ...) shall be preferred to a construction that would not promote that purpose or object.
28. There is no doubt that at the time of the Applications (to paraphrase the first part of paragraph [27] of Hossain) s 52(1) of the 1990 Act relevantly provided that a person whose driver authority of operator accreditation had been suspended or cancelled may apply to the Tribunal for an administrative review of such suspension or cancellation. The Tribunal had jurisdiction as enabling legislation (being the 1990 Act) provided for such review.
29. Clause 12(1) of Sch 2 provides that the clause applies to a person who was, immediately before the commencement of Part 3 of the Point to Point Act (on 1 November 2017) "the holder of a driver authority under the 1990 Act that authorised the person to drive a taxi-cab".
30. Pursuant to s 60 (2) of the ADR Act the Tribunal had, prior to 1 November 2017, granted a stay of the cancellation of both the driver authority and operator accreditation. Pending further order of the Tribunal, the stay orders remain in effect until the decision of the Tribunal on the applications takes effect, s 62 (2) (b) of the ADR Act.
31. Accordingly, immediately before 1 November 2017, Mr Hoque held an operator accreditation and driver authority and cll 8 and 12 of Sch 2 applied.
32. No relevant contrary intention, as referred to in s 5(2) of the Interpretation Act, applies and pursuant to s 30 of that Act the repeal of Part 4 of the 1990 Act did not affect the previous operation of the 1990 Act nor any relevant right, privilege, legal proceeding or remedy.
33. None of the extrinsic material referred to in section 34 of the Interpretation Act and brought to the attention of the Tribunal indicated any intention of Parliament to preclude any person who immediately before 1 November 2017 was the holder of a driver authority from continuing to drive a taxi-cab from 1 November 2017.
34. I find that the Tribunal has jurisdiction to deal with Mr Hoque's application in respect of the driver authority cancellation.
35. By analogous reasoning to that referred to above in respect of the continuity of the driver authority, the repeal of Part 4 of the 1990 Act did not adversely affect the Tribunal's jurisdiction to deal with the operator accreditation cancellation.
36. Accordingly, I also find that the Tribunal has jurisdiction to deal with Mr Hoque's application in respect of the cancellation of his operator accreditation.
37. It may be appropriate at this time to point out that notwithstanding that the parties both agreed that the Tribunal has jurisdiction to deal with the Applications, that jurisdiction is conferred, not by agreement between the parties, but by the effect of relevant legislation.

The substantive issues

1. Mr Hoque seeks a review of the cancellation by RMS of both the driver authority and the operator accreditation.
2. Exhibits R1 and R2 each contain two letters 24 August 2017 from RMS to Mr Hoque. The letters are headed "Notice of Cancellation". One letter refers to Mr Hoque's driver authority and the other to his operator accreditation. Each letter refers to an attached Statement of Reasons setting out the matters which RMS states were taken into account in reaching the cancellation decisions the subject of Tribunal review. The letters state that RMS held concerns in relation to Mr Hoque's "fitness and propriety" to both "operate a taxi-service" and "drive a taxi-cab". Both letters also state that RMS held concerns in relation to Mr Hoque's "reputation in the community".

Events of July and August 2016

1. There is no dispute that the Vehicle licence was cancelled on 11 July 2016 because a payment did not reach RMS. An internal review of that cancellation decision was carried out by RMS at the request of Mr Hoque. The review was completed on 10 August 2016 and the licence cancellation affirmed.
2. There is also no dispute that from 10 August to 21 August 2016 the Vehicle was used to carry on a taxi-cab service on 20 occasions and on nine of those occasions the Vehicle was driven by Mr Hoque.

Investigation by RMS

1. An RMS officer carried out an investigation in respect of the alleged operation of the Vehicle after cancellation of the licence. The investigation report dated 1 June 2017 (the Report) is in evidence.
2. The parties have agreed that the contents of the Report, as amended by the contents of Exhibit J2, are accurate.
3. The amended Report states, under the heading "Incident description": [the Vehicle licence] … was a short term licence issued to taxi … and was renewed annually. [Mr Hoque, the] holder of taxi accreditation … operated taxi … until he defaulted on the annual instalment on 15 June 2016 in which the … RMS advised him by letter that the taxi plate was suspended pending an instalment payment. Due to no payment being received the licence was then cancelled on 11 July 2016. A letter was forwarded to [Mr Hoque] informing him of the cancellation of the licence and directing him to return plate … back to RMS. Mr Hoque then made application to RMS for an Internal Review of the decision to cancel the licence. On 10 August 2016 the Internal Review was completed and the original decision to cancel the licence … was affirmed. Mr Hoque says he did not receive the internal review decision and thought he could use the vehicle in the interim. Information was received … that Mr Hoque may have operated the vehicle after the decision to cancel the licence … was affirmed.

Notices to show cause

1. Exhibits R1 and R2 contain copies of two letters dated 3 July 2017 from RMS addressed to Mr Hoque, one at a named Taxi Service at a Punchbowl street address and the other to the same Punchbowl address without reference to any Taxi Service.
2. There are similarities in the letters including that: 1. Both contain the heading "Notice to show cause", together with in one case a heading referring to Mr Hoque's driver authority and the other to operator accreditation. 2. Both refer to RMS considering taking administrative action against Mr Hoque, on the basis that RMS has information that Mr Hoque drove the Vehicle while its licence was cancelled and that the cancellation was known to Mr Hoque. 3. Both invite Mr Hoque to make submissions to "show cause" as to why his respective driver authority should not be cancelled and his accreditation should not be suspended or cancelled. 4. One letter raises concerns as to whether RMS can attest that Mr Hoque was then of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service in accordance with the 1990 Act while the other letter refers to concerns as to whether RMS can attest that Mr Hoque was then of good repute and in all other respects fit and proper in accordance with the 1990 Act. 5. Both copy letters contain "registered post" 14 digit identifying numbers.
3. Exhibits R1 and R2 contain Australia Post Express Post tracking documents bearing the 14 digit numbers found on the 3 July 2017 letters. The tracking documents both state that the relevant items, which I assume are intended to refer to the show cause notice letters, were delivered on the morning of Thursday 6 July. No year is referred to.
4. Mr Hoque did not challenge the existence or contents of the Show Cause Notices nor that they may have been delivered to the Punchbowl street address shown in the letters. I note that the Punchbowl address, excluding any reference to any Taxi Service, is the address for service on Mr Hoque which appears on each of his Applications.
5. However, in the grounds for each of the Applications, Mr Hoque states "No letter of Show Cause was ever received by me and I did not therefore have any opportunity to respond to the issues raised."
6. In both of the Applications Mr Hoque states that the date he was notified of the decisions to be reviewed was 24 August 2017.
7. RMS' decisions to cancel each of the driver authority and the operator accreditation were stated to be "on the basis that [RMS] cannot currently attest that you are of good repute and in all respects a fit and proper person".
8. The background for the decisions was stated, in the undated Statements of Reasons which RMS submits were attached to the 24 August 2017 letters, that Mr Hoque continued to operate the Vehicle to carry on a taxi-cab service when the Vehicle was not licensed and that he both operated and drove the unlicensed Vehicle between 10 August and 21 August 2016 being aware that the licence had been cancelled. RMS asserted "the fact that [Mr Hoque] continued to drive [the Vehicle] for the purpose of public passenger transport while [the Vehicle] was not licensed shows an intention to drive in breach of the law".
9. The wording of the Statements is almost identical other than that the Statement relevant to the driver authority refers to the driver of a taxi-cab and whether passengers or prospective passengers would feel comfortable in entrusting their safety to the driver while the Statement relevant to the operator accreditation refers to whether Mr Hoque would ensure he provided a safe, reliable and efficient service to passengers or prospective passengers.
10. Both Statements included three numbered paragraphs with headings. The first and third paragraphs were respectively headed "Facts, Evidence and Material" and "The Reasoning process that led to the decision" and each Statement included an appendix headed "Relevant Legislation" containing excerpts from the 1990 Act.
11. The second numbered paragraph in each Statement was as follows: 2 Evidence of the above facts is in the form of 2.1 Records held by Roads and Maritime Services 2.2 Records obtained from TCS Taxicab network.

The history of Mr Hoque's driver authority

1. Some evidence as to the history of granting and renewing Mr Hoque's driver authority is set out in Exhibit R1. The Exhibit includes excerpts from his driving record dating back to 1985 together with a copy of his application for a driver authority dated 4 July 2001 and various medical, competency, and knowledge certificates.
2. No evidence was brought to the attention of the Tribunal as to the original issue of Mr Hoque's driver authority. However there is evidence that he applied for a renewal of the authority for three years in September 2005. Accordingly I find that at some date between 2001 and 2005 Mr Hoque was issued with a driver authority. Although the RMS records in evidence are not complete there is sufficient unchallenged evidence for me to find that Mr Hoque's driver authority was renewed in each of 2005, 2008 and 2011 and a suspension of the authority was lifted on 6 May 2016 when an RMS email informed him that his "authority is now current".
3. The Exhibit contains warnings from RMS to Mr Hoque dated November 2005 (relating to offences recorded on his driving record) and September 2006 (implying that he had been observed smoking in a taxi-cab).
4. The warnings refer to a statutory requirement that the purpose of authorisation for a driver authority relates to an attestation by RMS that Mr Hoque is of good repute and is a fit and proper person to be the driver of a taxi-cab.

The history of Mr Hoque's operator accreditation

1. RMS has provided minimal, if any, evidence of Mr Hoque's application for and granting of relevant operator accreditation. Rather RMS relies almost exclusively on the Report of 1 June 2017.
2. The agreed facts establish that for at least two years Mr Hoque was duly accredited by RMS as an operator. Accordingly, RMS has attested on at least two recent occasions to his good repute and being "in all other respects fit and proper" for the purpose of being an accredited operator.
3. The parties agreed that the internal review concluded on 10 August 2016 and the cancellation was affirmed. "and a letter was forwarded to inform [Mr Hoque] of the outcome [of the review]".
4. However, RMS failed to produce to the Tribunal (or to Mr Hoque) a copy of the letter referred to in the previous paragraph and there is no evidence before the Tribunal that any letter or other communication informing Mr Hoque of the result of the Review was received by him during 2016.

Issues of "good repute" and "fit and proper"

1. RMS' 2005 warning of Mr Hoque includes an extract from what is stated to be the applicable law at the time, namely, s 33(3) of the 1990 Act as follows: (3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom.
2. The above extract is materially identical to the wording of s 33(3) of the 1990 Act immediately before the Point to Point Act took effect.
3. Similarly, s 31 of the 1990 Act under the former regime provided that RMS may accredited persons for the purpose of carrying on taxi-cab services (operators) and that the purpose is to attest: (a) that the accredited person is … considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service, and (b) …
4. Issues of "good repute" and whether a person was a "fit and proper person" to hold a driver authority or an operator accreditation have been considered in numerous decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal (ADT).
5. In Hossain the Senior Member said at [30]: … 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": Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 at [12].
6. The Senior Member found at [32] to [35] that as a result of a criminal conviction for assault Mr Hossain's good repute was adversely affected and given his criminal history the onus was on him to establish his good reputation, which he had not done.
7. In Farquharson v Director General, Department of Transport [1990] NSWADT 53 the President of the then Administrative Decisions Tribunal (ADT) referred to the concepts of "good repute" and "fit and proper" and said at [27]: … The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not …
8. In Saadieh v Director General, Department of Transport [1999] NSWADT 68 ("Saadieh") then Deputy President, Judicial Member N Hennessey said: 12 The issue in this case is whether, in the light of the responsibilities and expectations of a taxi driver, the applicant is a "fit and proper person" to hold a taxi authority. Being a "fit and proper person" includes being of "good repute." … 16 Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] 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." 17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there 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
9. The factors outlined at [17] in Saadieh have been referred to as worthy of consideration in numerous subsequent ADT and Tribunal proceedings including Khan v Roads and Maritime Services [2015] NSWCATAP 265, El Cheikh v Roads and Maritime Services [2017] NSWCATOD 33, Gilliana v Director General Transport NSW [2012] NSWADT 28, Robertson v Roads and Maritime Services [2015] NSWCATOD 47 and Singh v Roads and Maritime Services (No. 2) [2017] NSWCATOD 114 to name but a few.
10. I observe, having regard to those factors, that: 1. there is no evidence or submission that Mr Hoque has been arrested or convicted of any criminal offence; 2. the only evidence of complaints is the implication that Mr Hoque was observed smoking on one occasion during a period of some 15 years as a taxi-cab driver; 3. Mr Hoque's driving record in evidence is far from perfect. However the one occasion in evidence on which he received a warning regarding his driving was more than 10 years before his driver authority was cancelled; and 4. although RMS provided details of Mr Hoque's driving record from 1985, RMS has provided no evidence of Mr Hoque's driving record since November 2011. Accordingly there is no evidence before the Tribunal of the commission of any driving offences for nearly 7 years during which period RMS (by renewing Mr Hoque's driver authority) attested on at least one, and possibly two, occasions that he was a fit and proper person to be the holder of a driver authority.
11. As a model litigant, RMS is aware that s 58 of the ADR Act states that when an administrator's (RMS) decision is being reviewed by the Tribunal the documents which the administrator (RMS) must lodge with the Tribunal include: (1)(b) a copy of every document or part of a document that is in the possession, or under the control, of [RMS], that [RMS] considers to be relevant to the determination of the application by the Tribunal.
12. Mr Jools informed the Tribunal, and RMS did not dispute, that requests had been made to RMS on behalf of Mr Hoque for the production of all relevant documents held by RMS.
13. As the records referred to at 2.1 and 2.2 of each Statement were expressly acknowledged by RMS to be evidence of facts on which RMS relied to make decisions adverse to Mr Hoque, which are the subject of Tribunal review, those records are relevant to RMS' decision to each cancellation.
14. Accordingly RMS was required to provide those records to the Tribunal and Mr Hoque, not merely refer to them in the Statements as documents held by RMS or having been obtained from a taxi-cab network.
15. Regrettably, RMS' failure to provide the records, either in a timely manner or at all, did not indicate compliance by RMS with its statutory obligations nor provide reasonable assistance to Mr Hoque or the Tribunal.
16. The guiding principle to be applied by the Tribunal in respect of its proceedings "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings", s 36 CAT Act. Each party to the proceedings has a statutory duty to cooperate with the Tribunal to give effect to the guiding principle, s 36(3).
17. The rules of evidence do not generally bind the Tribunal, s 38(2) CAT Act, and the Tribunal is to act with as little formality as the circumstances of the case permit, s 38(4) CAT Act. However, it is, in my opinion, not appropriate for the Tribunal to merely rely on unsubstantiated submissions of a party, including an administrator, in respect of a review of that administrator's decisions, especially when an applicant has sought documentary evidence which the administrator stated was held by it and which purportedly evidenced relevant facts which led to those decisions.
18. I also note that RMS provided no reason to the Tribunal for its failure to provide the documentary evidence it relied on in making its decisions.
19. The parties agreed on the facts contained in the Report dated 1 June 2017 which comprised pages numbered 000001 to 000003 inclusive of Exhibit R2 amended by Exhibit J2.
20. Relevantly the Report stated that the objectives of the investigation were "To investigate allegations that Mr Akm Fazul Hogue breached Section 30(1)(b) of [the 1990 Act] by operating [the Vehicle] after the licence … was cancelled".
21. At the relevant time s 30(1)(b) of the 1990 Act stated: 30 Taxi-cab service requirements A person who carries on a taxi-cab service, being a service operating wholly or partly within New South Wales, by means of a taxi-cab is guilty of an offence if: … (1)(a) … or (b) the taxi-cab is not licensed under Division 4, or … Maximum penalty: 1,000 penalty units
22. The parties agreed that the licence was cancelled on 11 July 2016.
23. The Statements assert at 1.4: 1.4 Evidence shows that you were aware that the licence (104645) for taxi-cab T3366 was cancelled as you had submitted an application for an internal review, which was affirmed on 10 August 2016 and letter was forwarded to you informing you of the outcome.
24. There is no dispute that between 10 August 2016 (when the internal review of the licence cancellation decision concluded) and 21 August 2016 the Vehicle "did 20 shifts of which the Applicant drove nine".
25. Mr Hoque's evidence in the grounds for his Application included: I was not aware that the cancelation (sic) of my [Vehicle licence] was effective prior to the result of an applied for Internal Review.
26. Regrettably, no communication from RMS to Mr Hoque evidencing details of the cancellations and procedure or conditions regarding whether the cancellations remained in effect during an internal review was brought to the attention of the Tribunal. Nor did RMS provide any explanation for this failure.
27. Indeed, there is no evidence before the Tribunal of the contents of any notification from RMS to Mr Hoque during 2016 as to the outcome of the internal review, irrespective of the agreement that a letter informing him of that outcome was "forwarded" to Mr Hoque. Submissions are not evidence.
28. Mr Hoque made himself available for cross-examination by RMS' legal representative during the course of the hearing. That representative chose not to cross examine Mr Hoque, whether in relation to his receipt of communications from RMS, the timing or content of any such communications, or in respect of any other matter.
29. Accordingly, Mr Hoque's unchallenged evidence before the Tribunal is: … [he] did not receive the internal review decision and thought he could use the vehicle in the interim …
30. Similarly the grounds stated by Mr Hoque in his signed Application included "No letter of Show Cause was ever received by me". Once again, this evidence was unchallenged. It may well be, and I accept, that communications such as letters of Show Cause were sent by RMS to the address for service of Mr Hoque. However, there is no evidence that those communications reached Mr Hoque and Mr Hoque's unchallenged evidence is that he did not receive relevant communications.
31. I am not satisfied on the evidence before me that Mr Hoque was aware that, during the period in which the internal review was carried out, the Vehicle licence cancellation remained on foot. It may well be that the cancellation did remain on foot and to that extent it may well be that Mr Hoque acted unlawfully in respect of both operator accreditation and the driver authority in respect of an unlicensed Vehicle from 10 to 21 August 2016
32. However, as there is no evidence to the effect that Mr Hoque was so aware, I find no reason for the previous multiple attestations by RMS that Mr Hoque was of good repute and a fit and proper person to both drive a taxi-cab and be an accredited operator to be varied to Mr Hoque's detriment.

Further Consideration of submissions and evidence

1. No evidence was brought to the attention of the Tribunal as to the contents of any communication in 2016 from RMS to Mr Hoque concerning cancellation of the licence nor was a copy of any request by or for Mr Hoque for an internal review brought to the attention of the Tribunal. However as the parties have agreed that an internal review, which concluded on 10 August 2016, took place at Mr Hoque's request, I am satisfied that Mr Hoque was informed at some time in 2016 of the cancellation of the licence, that he had the opportunity to request an internal review of that cancellation, that he made such a request, and that a form of internal review took place.
2. On 13 September 2017 Mr Hoque filed an application form seeking a review of the authority cancellation decision and an application for stay or interim order seeking reinstatement of his driver authority pending a Tribunal hearing of the substantive application.
3. In the event, stay orders were made by the Tribunal in respect of cancellation of both the operator accreditation and the driver authority.

Hardship claim

1. Mr Hoque claimed that the cancellation of his driver authority "causes unreasonable hardship on my family".
2. Firstly, I note that this claim was not supported by evidence of hardship nor did Mr Jools produce any authority in support of the validity of such a claim.
3. Secondly, I refer to the decision of the Appeal Panel in Mahommed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62 (Shamsuzzaman) which held at [17] and [18]: The jurisdiction in this field is protective not punitive. In Khan v Roads and Maritime Services [2014] NSWCATOD 23 (Khan) at [25] it was said, in terms which we would adopt, that: It was submitted that the applicant is a very simple and honest person. He supports his wife and four children and a parent ... The cancellation of his driving authority would create severe financial hardship for him and his family and was unreasonable and excessive. However, possible hardship to the applicant, or his family, cannot be taken into account in determining the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]. Similarly, the purpose of a driver authority is to have the regulator (that is, the respondent, or on review the Tribunal) "attest" that a driver is of "good repute", is "fit and proper" to be a taxi driver, and has "sufficient responsibility and aptitude" to drive taxis. It is not about giving a driver another go." (emphasis added)
4. I dealt with the issue of the effect of a hardship claim in relation to an application to be an authorised private hire vehicle driver in Singh v Roads and Maritime Services [2017] NSWCATOD 80 (Singh) under the 1990 Act. The legislation also requires an attesting that the applicant is of good repute and fit and proper for the relevant occupation. I held there: 71 The objects of the Act are set out at s 4. Those objects include "…. to require the …. authorisation, by RMS, of …. drivers involved in public passenger services …. and …. to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services …." 72 I accept that the purpose of the Act is protective of the community. Accordingly, while Mr Singh's personal financial situation is of substantial importance to him and his family, the legislative objects and the focus of the Tribunal in deciding whether to grant an Authority, are to ensure that the interests of the public take priority over personal interests of an applicant. Accordingly, the Tribunal's duty is not based on giving an applicant an opportunity to "prove his sincerity" or "give him another go".
5. The principles enunciated in Shamsuzzaman, Khan and Singh apply in the present circumstances. Accordingly I reject Mr Hoque's application on the ground of hardship irrespective of the lack of supporting evidence concerning any hardship.

Summary of substantive claims by the parties

1. The parties agreed that the internal review concluded on 10 August 2016 that Mr Hoque operated the Vehicle on 20 separate occasions between 10 August 2016 and 21 August 2016 after the Vehicle's licence was cancelled and that he drove the unlicensed Vehicle on nine such occasions.
2. RMS' position is that as a result of the operation and driving of the unlicensed Vehicle during the period from 10 to 21 August 2016 and RMS' belief that Mr Hoque was aware throughout that period, that the Vehicle was unlicensed, it could not attest to Mr Hoque's honesty and integrity and thereby his fitness and propriety to either operate a taxi-service or be a taxi-cab driver.
3. The substance of Mr Hoque's position is that he understood that he could use the Vehicle pending the conclusion of the internal review decision, and that decision was not received by him in a timely manner from RMS. Mr Hoque's evidence on this point is unchallenged.
4. Mr Hoque provided no evidence to explain the basis for his understanding referred to in the preceding paragraph. However, for reasons not brought to the attention of the Tribunal, RMS has provided no evidence that Mr Hoque was actually aware before 21 August 2016 that the review had concluded on 10 August and the licence cancellation had been affirmed nor that Mr Hoque was aware that the cancellations continued to have effect while the internal review was underway.
5. For reasons best known to Mr Jools, and Mr Hoque, Mr Hoque provided no evidence to the Tribunal that he was a fit and proper person, other than relying on the grounds expressed in the Applications.
6. I have no doubt that if Mr Hoque had been legally represented, his case would have been put differently to the Tribunal. However, it is not appropriate for Mr Hoque to be penalised for his lack of legal representation. On the basis, and there is no evidence to the contrary, that Mr Hoque made an honest and reasonable mistake - especially where RMS, being legally represented, failed to provide evidence of having provided relevant information to Mr Hoque in a timely manner and failed to provide an explanation for its failure to provide all relevant documentation to the Tribunal - the unsubstantiated allegations that he was aware by a certain date that the cancellations continued to have effect throughout the internal review process are rejected.
7. I do not find that any such honest and reasonable error would make a person who RMS had on multiple occasions attested was of good repute and in all other respects a fit a proper person for the purpose of both the operator accreditation and the driver authority to no longer be of good repute or such a fit and proper person for those purposes.
8. Accordingly I find that at the relevant time Mr Hoque remained a person of good repute and a fit and proper person to hold both an the operator accreditation and driver authority.

Reliance on case law

1. Mr Jools provided no caselaw authority in support of Mr Hoque. Mr Wozniak referred to Ostrowski v Palmer [2004] HCA 30, 218 CLR 493; 78 ALJR 957; 206 ALR 422 and said the High Court had referred to the previous High Court decision of Proudman v Dayman (1941) 67 CLR 536.
2. I note that Ostrowski v Palmer involved the overturning of a decision of the Full Court of the Supreme Court of Western Australia which had quashed a conviction in relation to a charge of fishing for rock lobsters in a prohibited area while holding a commercial fishing license, contrary to a statutory regulation. The High Court discussed the rule that ignorance of the law was no excuse to a charge in defence of an admitted breach of law and discussed at some length the issue of mistakes of law in comparison with mistakes of fact. However, although issues of the reasonableness of action taken by the fisherman were considered, whether the fisherman was of "good repute" or a "fit and proper" person was not dealt with.
3. The only reference in Ostrowski v Palmer to Proudman v Dayman was by McHugh J who said at point 5 on page 18 while discussing mistakes of fact: Mr Palmer relies on the suggestion by Smart J in Griffin v Marsh that a mistake of law based on an earlier mistaken belief as to a relevant and important fact should be treated as a mistake of fact. Such a general proposition cannot be accepted. It is true, as Smart J noted, that such a principle is more consistent with the principle that the law only punishes those with a guilty mind. However, this is not the determinative principle in this area. The very existence of the strict liability offence in the present case indicates that, to adopt the words of Dixon J in Proudman v Dayman , the Legislature was also concerned to "cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced." In other words, an intention to commit the offence is not one of the elements which constitutes that offence; rather, the offence is made out if the prosecution establishes that the defendant knew all the elements constituting the offence. Indeed, the suggestion of Smart J effectively introduces a new rule of law: a mistake of law is a defence to a criminal charge if it was the consequence of a relevant mistake of fact. Such a rule cannot stand with the terms of s 22 of the Criminal Code, particularly in the context of strict liability offences.
4. I have found no reference in His Honour's comments to the issues of "good repute" or "fit and proper".
5. In my opinion neither of the above authorities assist RMS or the Tribunal in these proceedings.

Decision and orders

1. Having regard to the material before the Tribunal and my above findings the correct and preferable decision of the Tribunal is: 1. The Respondent's decisions under review are set aside.

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: 14 September 2018