The evidence
4The applicant gave oral evidence to the tribunal at the hearing. The applicant's evidence included his written response dated 9 July 2012 to the 'show cause letter' sent to him by the respondent; his submission on his request for internal review dated 28 July 2012, and his application to the tribunal.
5The respondent's evidence included the documents in the respondent's file, a transcript of a record of interview dated 22 June 2012 between the respondent's officers and the applicant; the statement of Mr Valdis Sermulkis dated 1 November 2012 attaching a printout of a GPS report dated 25 May 2012 and a disc of a GPS recording. The respondent also relied on a written statement by a passenger, Tracey, and this witness also gave oral evidence at the hearing by telephone. The documents in the respondent's file included the complaints history, copies of the applicant's traffic record for driving offences, and records of interviews with the applicant about complaints.
6A summary of the complaints history was provided by the respondent in the statement of reasons for the decision to cancel the applicant's driver authority. Records/documents relating to the complaints are contained in the respondent's file, a copy of which was provided to the applicant prior to the hearing. The "current complaint" detailed by the respondent was the complaint of 25 May 2012, of inappropriate sexual comments to a female passenger, Tracey. This complaint will be further detailed below.
7Other complaints included a complaint of overcharging a passenger on 31 October 2011. On 23 August 2011 there was a complaint by a female passenger that when she entered the taxi she pulled down her skirt and the driver said "no don't do that I like it". The complainant is recorded as saying that she thought this was disgusting and also complained that when she arrived at her address the driver overcharged her.
8A complaint of 3 June 2011 is that the applicant was aggressive and beeping at all the cars, so the passenger complained to the driver and asked to get out of the taxi. A complaint of speeding on 23 February 2009 was made by another driver who also alleged aggression.
9On 25 June 2008 there was a complaint of excessive fare; and in October 2006 a complaint was made by a bike rider that he had been hit by a taxi -the bike rider further alleged that when he caught up with the taxi to talk to the driver, the driver put the taxi in reverse and ran over his bike destroying it. Paramedics and police attended. The taxi network identified the driver as the applicant. On 1 October 2006 there was a complaint that the applicant refused to take a passenger with a guide dog. On 23 June 2002 there was a complaint of inappropriate driving to cause an excessive fare.
10Other matters taken into account by the respondent, included that on 7 June 2012 a notice of suspension was sent to the applicant's residential address, by the respondent, advising that his New South Wales drivers licence was suspended, cancelled, disqualified or otherwise not active, preventing him from driving a motor vehicle. He was requested to return his driver authority card immediately and failed to do so and continued to drive a taxi. The respondent relies on records of shifts driven by the applicant to establish that he drove his taxi in this period when he did not have a drivers licence (worksheets for the period 1 June 2012 to 19 June 2012 inclusive, folios 225 to 235).
11On 6 March 2012 the applicant, when renewing his driver authority, did not disclose traffic offences on his renewal form. These included traffic offences of 23 September 2011, 7 May 2011, 31 May 2011. The respondent also noted that on the applicant's driver authority renewal form of 4 March 2009 the applicant did not declare traffic offences occurring on 27 September 2006, 21 October 2006, 21 October 2006, and 21 April 2007.
12On 19 October 2011 the respondent issued the applicant with a written caution concerning the complaints history, and this was sent after the applicant was interviewed by the respondent's officers about the complaint of 23 August 2011 (a complaint of inappropriate behaviour to a female passenger). The caution advised that a failure to show an immediate and sustained improvement in the applicant's behaviour may result in further disciplinary action, up to and including the suspension or cancellation of his driver authority. Since then there have been two more complaints.
13In the response of 9 July 2012, to the respondent's 'show cause letter', the applicant notes that he has been a good driver for 10 years, always respecting the law and obeying the system, working within the rules. He always treated people with respect, never taking advantage of people. He has learned from mistakes and believes honesty is the best policy for a taxi driver. He has helped people a lot, and gave some examples of helping passengers. He believes some complaints happened to him because he's too nice. He notes that customer service in the taxi is always hard, he works many shifts and can be subjected to abuse and people trying to take advantage of him. He knows it's always a drivers fault regardless of what happens, they deal with a lot of drunk people and are often subject to threats. However, he notes there are a lot of good customers and that is why the job is still possible. He needs his authority to continue driving a taxi because he has a family of five to support.
14In discussing the complaints the applicant notes that most are made by ethnic minorities, not by Aussie people, except the guide dog complaint. He remembers the complaints and says they are not truthful.
15In relation to particular complaints the applicant states as follows. In relation to 25 May 2012, the current complaint, he said he never took this lady, he would never talk to a woman in this way especially someone he never met. He never drove the taxi and doesn't know anything about it. "I'm educated and rise with myself above this level of language and behaviour. I find it hard to believe even strange for any driver to talk to any lady (passenger) like this."
16In relation to 31 October 2011 he notes the average price of the fare is $67 but sometimes taxi fares vary. He talks about some of the difficulties of accessing that passenger's address. "All I can say is cab fares are not fixed and always people say why they differ....." He denies that he conducted himself in any way which would justify complaint.
17For the fare of 23 August 2011 the applicant states "I said I like short fares not skirts because she said "short one driver"." He states that he never mentioned anything about the skirt and this was a lie by the passenger. He stated that she was complaining about the fare and so made up the lie. He stated: " this type of passenger happens from time to time, unwilling to catch Taxi or have not enough money in the first place and start a problem by accusing the driver of driving slow or indecent often mistrust the driver so they pay less or nothing". He states she threatened to complain if he did not make the fare $5 and the applicant told her to go ahead and complain. He now regrets that because of the trouble.
18For the complainant of 3 June 2011 he noted the passenger wanted to give him a lesson in driving manners and he found it hard to listen when he had just avoided an accident by another bad driver. He said the car in front of them was doing funny stuff and he (the applicant) should not have been accused of driving unsafely. The passenger said if the applicant did not listen to her she was going to get out of the taxi and he replied that he had done nothing wrong, he was a safe driver. The complaint happened because the passenger was trying to be very bossy because of a couple of drinks (the applicant indicating the passenger was alcohol intoxicated) and she decided to leave the taxi of her own free will. He asked her to pay the metre fare value and she did so.
19For the complainant of 23 February 2009 the applicant states "always they have to lie..." He agrees he picked up a passenger and merged in front of the other driver's car who started beeping at him for a long time, he put his hand out the window meaning sorry or thanks, and the driver of the other car drove beside him and wrote down his taxi number. The applicant denies giving him "the finger".
20He recalls the incident of 25 June 2008 where the there was a discussion between the applicant and the passengers about the best route to take. He followed the passenger's advice and the fare was accordingly more expensive, and he queries why they complain later.
21In relation to the complaint of 21 October 2006 he said it was one long story which ended in court with the applicant losing because he didn't report the incident to the police. He stated
"this not true in court they changed they didn't say I knocked off his bike they just complain that I ran his bike he had a witness. I was about to go I didn't touch him he stopped his bike he didn't like me making comment with my hand open. He stopped the bike on the side and came towards the taxi spit on my windscreen and start bashing the taxi he was kicking the taxi in the back station wagon windscreen wiper at back hw twist it broken the Canadian man I later found out in court by the way in outside court was trying to leave and Redfern police lady was calming him don't worry will get him. They charged me his aeroplane ticket from Melbourne he was no longer living in Redfern anymore. I hired barrister after and appealed the judge said there witnesses and damaged bike all over another 1500 .plus three fines and way I am sure I was innocent I didn't do anything to him the bike was damaged by other cars when he ran and chased me down Cleveland and put his bike on my towbar. I ran to save my taxi because someone else damaged the back before I didn't want the owner of taxi to get angry because he fixed it two days before the bike incident. My mistake I didn't go to police and make report."
22The complaint of 1 October 2006- the applicant states "I'm still sad about this one I accepted booking when I was in the street..... " . He goes on to state that he didn't realise the customers had a guide dog. He talks about the communication mixup, he states he learned his lesson here, "guide dog issues are sensitive and I feel sorry it was a misunderstanding and quick decision I made". Since then he has taken people with guide dogs and a lot of vision disabled people know him.
23In relation to the complaint of 23 June 2002 he recalls the fare was from the Eastern suburbs, not from Stanmore, he says the passenger lied about it being from Stanmore. "By saying Stanmore they show they are too drunk" [ to know where they are] "They are thinking let's say Stanmore to put the driver in trouble...". The applicant states that he does not drive people in circles because he likes them to get to their destination as soon as possible, and also to find another fare as soon as possible as a taxi driver needs a lot of fares.
24The applicant states on 4 March 2009 he made a mistake when completing his authority renewal form, he was too quick and did not pay attention to details. In relation to completing the form on 6 March 2012 he admits his mistake here as he did not detail in the form the traffic offences. He states he was thinking, because he didn't lose his licence, he did not have to declare the traffic offences.
25He agrees that on 19 October 2011 "Yes received a caution concerning the complaint on 23 Aug 2011. It is bad luck this year for me I went through a lot of stress for things concerning my family. I ten years of driving taxis this year I lost all points only this year and only this year many complaints. All I can do is learn from this."
26The applicant states he never received any letter from the RTA and also never received any letter from the respondent about his drivers licence because that was all sent to his previous address, and he had recently moved address. His wife went back to collect their mail and she was told by a neighbour that the mail had been stolen. He found out about the suspension when he called taxis combined about the suspension from the radio, the customer service officer told him the suspension was removed, she later said that he was suspended and he received a phone call from the inspector, Mr Burns, advising him to attend the department about a complaint. He did not drive after 18 June 2012, and any driving before that he did not know his licence was cancelled.
27In his submissions on request for internal review of the decision, of 28 July 2012, he states "this is fabrications I can't ever be the driver to say or behave this way. This is teenagers talk." He states that he would never talk this way even to his wife, nor would he say something in the open, nor would he even start a subject of this nature with a passenger in a short ride from the city to Chatswood, no longer than 10 or 15 minutes, and with someone he was not acquainted with. "I am an educated person and happily married four children two of them are girls that's why respect women and their romantic nature to start a conversation with anyone like this is not a way keeps them happy or reach for heart or get you anywhere with them. Women don't be treated sleazy and don't respect or date men of this nature so why I do this I am not a teenager. This is a lie could be motivated for money or unhappy about taxi fare price". The applicant goes on to refer to a "crazy" passenger he had once, who talked dirty to him and requested a discount on the fare in return for talking dirty. And he stated there would be no discount and he would not listen to the talk and focused on his driving. He states "I thought of trying to add to my previous letter I'm not stupid I fully aware of danger and some drivers ended up in jail and lost a lot. This job taxi driving requires careful patience degree in politics sometimes it is hard I need to support my family that's why I do it"
28The witness, Tracey, provided a written statement and gave oral evidence at the hearing, by telephone. The witness, Tracey, was subject to cross examination by the applicant. Her written statement was dated 20 June 2012. The respondent's file also contains handwritten notes recording her evidence which appears to be made by an officer of the respondent on 6 June 2012, noting also that she would be in New Zealand and back on 12 June 2012. The brief notes (folio 193) record the same words being used by the driver as in her statement, and that she got out of the taxi at Nandos Chatswood. The respondent's file also contains (at folio 177) the call centre record of Tracey's complaint about the driver "talking sexual things and very scary" which was consistent as to details of the journey and time and date of journey, and also gave some details of specific words used, consistent with her written statement and oral evidence. She is further recorded as saying in the initial complaint that "this driver is very scary".
29Tracey stated that she was 46 years of age and currently employed as a business manager. On 25 May 2012 at about 9:30pm she hailed a cab on the road heading towards the CBD outside Sydney University/Seymour Theatre. The taxi stopped and picked her up and she sat in the back seat. She states the driver turned round in his seat whilst driving and said
"you smell nice". I said "oh really?" I had garlic with dinner so I thought I might smell of garlic.
30Tracey states that during the trip they had a general conversation about the show she just seen. While they proceeded over the expressway near Darling Harbour the conversation turned towards how quiet the Friday night had been. During this time the driver kept turning around in his seat trying to look at her. She states the taxi was veering over the road and getting close to the concrete divider. She says the driver commented on how little clothing young people wore on Friday and Saturday nights. Then he asked her, did she like looking at them.
"I took this comment as him being sleazy. I did say "yes nothing wrong with looking but they were too young for me". I felt uncomfortable with the way the conversation was going. The driver said "do you have a man at home" I said "yes he's waiting for me at home"....[She says the driver asked her age, she did not answer, he started to guess her age and during this time he was turning around trying to look at her]. "When crossing the Harbour Bridge the driver said: "I had sex with a girl from New Zealand four months ago." I said: "oh." The driver said: "yes it was good" he then asked me "do you have a man at home waiting for you" I said: "yes". He said: "I don't believe you have a man waiting for you" "what was he doing at home while you were out?" [She says she then asked the driver where he was from to deflect the tone of the conversation and he said he was from South America. She continued the conversation about where he was from to deflect it from anything sexual. She says the driver told her he used to work in this area and knew all the roads]. "I was concerned at this as he could easily find my address. We were in Victoria Avenue, near my address. The driver said: "I fuck better at 47 that at 20" I was shocked at this and I noticed a Nandos food shop that was open on Victoria Avenue. I said to the driver to stop there. [She states she got her wallet out, asked how much, can't remember the exact fare and just threw $40 on the console between the front seats. "As I was getting out of the cab driver was yelling at me: "hey lady where you going, hey lady why you getting out of the cab?" [She states she got out of the cab, slammed the door and ran into Nandos. She hid behind the door jam inside Nandos and saw the cab drive up Victoria Avenue. She gives a description of the driver's appearance and estimates his age as mid-40s].
31The witness, Tracey, gave oral evidence consistent with her written statement, and gave clear evidence as to the words said to her by the taxi driver. She agreed with the applicant when he put to her that she could not say he was the driver. She stated that the taxi driver said the words as detailed in her statement and oral evidence, and she did not resile from her evidence about the words used. At one point the applicant put to her that he was an educated man and would not talk to women in this way. The witness, Tracey, stated that this was familiar, that the driver during the incident had said similar words about being an educated man, and that the applicant was talking in a similar way when putting this question to her. The witness, Tracey, was clear in her evidence as to the details of her journey and the conversation and the words put to her by the taxi driver. She gave clear evidence that she was made very uncomfortable by the sexual nature of the conversation, and for this reason got out of the cab away from her address and ran into the Nandos food outlet until sure the taxi had driven away. A question was asked about her clothing on the night, and whilst the tribunal directed the witness not to answer the question because it was not relevant for her to do so, the witness did answer by stating she was conservatively dressed and recalled that she had an overcoat on, over her clothing, which was buttoned because it was a cool evening.
32The applicant gave evidence to the tribunal that he was not the driver. He stated he could not recall such a fare and that he would not have spoken to a woman in this manner. He indicated that there was nothing to prove that he was the driver.
33The respondent provided GPS records to indicate that the applicant's taxi was driving from near the Seymour Centre, Cleveland Street, to Chatswood at the time of the complaint by the female passenger, Tracey, of 25 May 2012. The applicant disputed those records and disputed that they accurately recorded the placement of the taxi. The hearing was adjourned for the respondent to provide the actual disc recordings of the screens from which the print out of the GPS records were based. On the resumed hearing date Mr Sermulkis gave oral evidence and a written statement and clearly identified the GPS records. The applicant asked this witness a number of as to the accuracy of the GPS records. The evidence of the witness that the records were accurate was not impugned by such questioning. Other records included logon details of the driver which showed that driver authority GO4943 had logged on to the Taxis Combined Services (TCS) network and the taxi number 7266, and TCS records show that this driver authority belongs to Mr Inaizi, the applicant. The GPS tracking maps show where the driver engaged the meter on taxi number 7266, indicating that the meter was engaged on Cleveland Street, Chippendale. Markings with an arrow on the GPS maps indicate the direction the taxi is moving. Each GPS map shows the taxi moving towards the destination of Victoria Avenue Chatswood and shows the taxi becoming vacant at approximately the corner of Macquarie Street and Victoria Avenue Chatswood, at 21.49 hours. The evidence of the witness clearly identified the records, and attached those to his statement, and the tribunal notes that each printout of the GPS maps has the date, time and shows where the taxi is in the location at that time. The tribunal is satisfied from these records that at around 21.32 the taxi was engaged in Cleveland Street and at around 21.49 the taxi stopped in Victoria Avenue Chatswood near Macquarie Street. Some evidence was also led as to the location of the Nandos food outlet in Chatswood being located where the taxi is recorded as stopping and becoming vacant.
34The applicant contested the GPS records on a number of grounds including that a taxi would not pick up a fare in that part of Cleveland Street on that side of the road; that the GPS records could be incorrect, that on one screen the coloured dot showing the taxi's position was slightly off the roadway: in the tribunal's view none of these attacks on the accuracy of the records established that the records were not reliable, nor provided a basis for finding that the records were not accurate, nor indicated that the records were not an accurate GPS record of the taxi's journey. The evidence of Mr Sermuklis was very clear as to the way the record was made and the tribunal found his evidence to be straightforward and accepts his evidence as to the proper obtaining of the records and the accuracy and reliability of the records.
35The respondent conducted a record of interview with the applicant in relation to the complaint made by Tracey. After identifying the allegations and the date of the journey, the conversation complained of by Tracey was put to the applicant. He denied saying the words. The applicant agreed that the taxi he was driving on 25 May 2012 was taxi number 7266, a silver service taxi. He believes he logged on as driver on 25 May 2012. He usually commences his shift at 5pm. In relation to the allegations he stated "I didn't make those comments, that's absurd you know. I'm not that stupid to say these things like that, never. I can't remember that passenger still. I'm engineer too, I'm educated, I can't say, how can I say, how could I, I'm not out of my mind, you know, to say these things. Honestly, it's too much. I'm married man and, you know, I'm engineer, I'm forty... 6 years old, how could I possibly say these things, you know."
36When questioned in the record of interview the applicant did not recall picking up the passenger and travelling from Cleveland Street to Chatswood. It was put to him that GPS records showed he picked up in Cleveland Street at that date and time and did travel to Chatswood. He could not remember, maybe he did, he can't remember if he did go to Chatswood. When the particular allegations of the words used were put to the applicant during the interview, he clearly responded to the effect that he would not say such things. He also stated that he could not remember the passenger at all. He denied the specific words which the passenger said the driver said. He says he doesn't ask passengers personal things. He denied saying "I fuck better at 47 than 20" . When asked during the record of interview his date of birth he supplied it. He was then asked how old he is now, and stated he is 46. This was queried and it was put to him that he was aged 47 if one considered his date of birth, and he maintained that he was 46. It was put to him that he turned 47 in January 2012. He maintained that he thought he was 46. It was put to him that he was an educated engineer and after adding up the years since his date of birth he should agree that he was 47.He stated when it was again put to him that he was 47 "yeah maybe, I am but I, I think I'm 46." He maintained that he thought he was 46 and it was put to him that it was a coincidence that the driver had said that he was better at 47 that 20, and that he, the applicant was 47. The applicant maintained that he would not say words of this nature to anyone. It was put to him again that he was 47 years of age and he stated "close to 47", but then agreed he was 47, but stated "yep, I thought I was 46 to be honest with you". He maintained in the record of interview that he could not recall the passenger and that he would never say such things to a passenger.
37In his oral evidence to the tribunal the applicant also maintained that he could not recall such a journey and he would never say such words to a passenger. He maintained that regardless of the records maintained by the respondent there was no proof he was the actual driver. He accepted that there were records maintained as to driver logon details, taxi driver numbers, and GPS records, but maintained that there was no proof he was the driver who said the things which Tracey says were sent to her.
38In relation to the respondent's contention that the applicant did not disclose traffic offences on his driver authorisation renewal form, on two occasions, the applicant agreed this occurred. He maintained that he was not aware of his obligation to do so where he continued to hold a licence. It was put to him that such an obligation was clearly advised to authorised drivers and the applicant indicated that he would ensure he complied in future.
39The respondent's evidence was that the applicant's drivers license was suspended or cancelled and as such his taxi driver authority ceased to be in effect, and that he was so advised by the respondent by written correspondence, and requested to hand in his taxi driver authority, but he did not hand in his driver authority as directed. The applicant maintained that he had not received written notification because he had moved address. He agreed he was aware of a cancellation/suspension from the radio operator of the taxi network by around the time he also received advice to attend for an interview about a complaint. When he attended the interview about the complaint (22 June 2012) he handed in his authority. In the record of interview of 22 June 2012 with the respondent's investigation officers, he was asked whether he notified the respondent he changed address. He said he had done so after moving a couple of months ago. When asked when he notified he said "I just did now, outside" and noted that he had advised the RTA of his change of address and queried whether that would change the address for the respondent. He was then told that he had to separately notify the respondent and is required to do so within seven days of the change of address.
40In the respondent's file are records as to the applicant's shifts in the relevant period, being taxi driver daily worksheets. Those worksheets indicate that the applicant worked on a daily basis for the period 2 June 2012 to 19 June 2012 (folios 225 - 234). The applicant maintained throughout the proceedings in his evidence that he stopped driving on 18 June 2012 because of the suspension being notified to him. It was put to the applicant in the proceedings that he also drove on 19 June 2012 and the applicant indicated he may have been mistaken about the day that he completed driving. The applicant maintained that he may have driven for a day or so to complete his shifts after finding out that his licence and driver authority was suspended, but maintained that the most of the period he had not known that his drivers license was suspended.
41In relation to the complaints prior to the current complaint of May 2012, the applicant relied on his response of 9 July 2012 to the respondent's 'show cause letter', that the complainants were either liars, or the complaints were otherwise not substantiated. He did concede that there was a basis for the complaint about refusing the fare with the guide dog and said he had learned from this and changed his behaviour. He did not agree with the complaint about damage to a pushbike noting that although the court had found against him, and he had appealed and been unsuccessful on appeal, and maintained his innocence in relation to this complaint.