Inaizi v Roads and Maritime Services

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.

Findings on the evidence 42The tribunal accepts on the evidence that the applicant has been a taxi driver for some years, approximately 10 years. The tribunal notes that there is a history of complaints and that the applicant disputes the veracity of a number of the complaints. The tribunal must exercise caution where an applicant's livelihood is at issue in making findings of fact - the evidence must be relevant and reliable. In relation to the complaints history the tribunal exercised care in evaluating complaint records. The authorities do indicate however that in assessing fitness and propriety regard should be had to the likelihood of further complaints (refer discussion of law below) 43In relation to one of the complaints, (of 21 October 2006) the applicant's own evidence is that a court accepted the version of events as presented by the complainant/bike rider,(that the applicant had wilfully damaged his bike) the tribunal therefore must accept on the evidence that there was a basis to this complaint about the applicant's behaviour. 44In relation to the complaint of 23 August 2011 about inappropriate sexual comments to a female passenger, the tribunal accepts that this complaint was made by the passenger, that the applicant was interviewed by the respondent about the complaint, that the applicant denied making the statement as alleged and was issued with a warning as to future behaviour attracting serious penalty and possible cancellation of his driver authorisation. The tribunal has not heard evidence from the complainant in relation to the 23 August 2011 incident and is therefore unable to make findings about what occurred, given the applicant's denial. However the tribunal is satisfied that such a complaint was made, that the applicant was interviewed about the complaint, that a formal warning was issued to the applicant, and the tribunal accordingly finds the applicant was on notice that serious consequences could flow including cancellation of his driver authority, if there were further complaints. The tribunal must therefore, in the context of this history of a complaint being made of inappropriate sexual behaviour, and an interview being conducted, and a warning being issued, carefully consider the more recent complaint of 25 May 2012. The incident is of concern because it is a further complaint of inappropriate sexual conduct to a female passenger by the applicant, made subsequently to him being on notice that his driver authority would be at risk for further misconduct 45Unlike the 23 August 2011 incident, the tribunal does have direct testimony from the complainant in relation to the complaint of inappropriate sexual behaviour on 25 May 2012. The tribunal finds that the witness Tracey gave clear evidence which was consistent from the time of her complaint to the time of her giving oral evidence at the hearing. The handwritten notes made by an officer of the Department on 6 June 2012, shortly after the incident, record the witness detailing the words used by the taxi driver in similar terms to that recorded by the witness in her written statement of 20 June 2012. Her written statement was consistent with her oral evidence at the hearing. She was subject to cross-examination by the applicant and did not resile from her evidence but continued to give a clear and consistent account. She gave her evidence in an even manner. The tribunal found her response, when the applicant put to her that he was an educated man, to be natural and responsive to the applicant's question: when she said that his words reminded her of the taxi driver who had said similar things during the journey about being an educated man. It appeared to the tribunal that the applicant's words reminded the witness in a natural way, and that her answer detailing this recollection was responsive to the applicant's questioning and a credible recollection. The applicant's mention of being an educated man in his question to Tracey in the proceedings is also consistent with his written statements in response to the show cause letter (9 July 2012) and statements which he made in the record of interview, and given the consistency with which the applicant describes himself as an educated man the tribunal finds it plausible that he also said this to the witness Tracey in the taxicab. 46The fact that the applicant is 47 years of age is also consistent with the words said by the driver during the incident that he was 47, and this is also consistent with the applicant being the driver, although certainly not of great weight as many drivers would be this age or claim this age. However, the tribunal found it strange that the applicant denied that he was 47 years of age so persistently during the record of interview. The tribunal finds that the applicant gave a somewhat implausible account during the record of interview that he considered himself to be 46 years of age - the applicant is an educated engineer and would be unlikely to be wrong as to his age but he was very persistent in denying being 47 and in maintaining that he thought he was 46. 47The applicant provides a different version of events to the witness Tracey. The applicant's version of events is not consistent with other objective and available evidence, being the taxi driver logon records, and the GPS records, indicating that the taxi driven by the applicant undertook the trip as described by the witness Tracey, at the relevant time and date of the incident detailed by the witness Tracey. Given that the applicant's evidence was not consistent with the other evidence before the tribunal, including the objective records of the journey being the GPS records and the driver login details, then the tribunal had no basis for preferring the applicant's evidence over the evidence of the witness, Tracey. Further, the evidence of the witness, Tracey, was consistent with other evidence before the tribunal as to the details of the journey undertaken by the applicant's taxi on that date and at that time, including her account of the time of the journey, the pick-up point and where she exited the taxi in Victoria Avenue, Chatswood. Accordingly the tribunal prefers the evidence of the witness Tracey. Therefore on the basis of her evidence, and the driver login records and GPS records of the journey of 25 May 2012, the tribunal finds that the applicant was the driver of the taxi during the incident detailed by the witness, Tracey. Given the consistency and reliability of her account the tribunal finds that the applicant said the words to the witness Tracey, as detailed by the witness. 48Having found that the applicant said the words to Tracey, as described by Tracey, then the tribunal must evaluate that behaviour and whether such behaviour is in accordance with behaviour required of a taxi driver according to law. This is so because the tribunal must be able to attest that the applicant can drive the taxi in accordance with law and custom. The tribunal must also be able to attest that the applicant is a fit and proper person to be authorised to drive a taxi, and evidence of misconduct of a sexual nature, to a women passenger, in the course of performance of the regulated activity, is relevant to whether the tribunal can so attest. 49The tribunal finds that the words used by the applicant, to the witness, Tracey, were sexual words, which were inappropriate, were oppressive and caused the witness, Tracey, to feel unsafe. It is clear to the tribunal that she felt unsafe because she did not want the taxi driver to know where she lived, she exited the taxi before her home address and ran into a fast food outlet to hide from the taxi until it had departed. Tracey thereby was not provided with a safe journey to her home, which was her reasonable expectation as a member of the travelling public, as she had to exit the taxi before arriving home due to feeling unsafe. 50In relation to the other grounds on which the respondent states that the applicant's authority should be cancelled the tribunal finds on the evidence that the applicant did not declare traffic offences as required. The question on the renewal form completed by the applicant in 6 March 2012clearly states "since you were first issued with or last renewed your driver authority have you been issued with any traffic infringement notices...?' and the applicant answered "no". It is also recorded on the form of 4 March 2006, in response to a similarly worded question, that the applicant answered "No". The wording of the question on the form was clear and unambiguous. There is nothing to indicate on the evidence that the applicant did not understand the question, and the tribunal does not accept that the applicant did not understand the question. The tribunal finds it probable that the applicant knew when answering "no" on the form that he was not declaring traffic offences as required. 51The tribunal has no real basis to reject the applicant's evidence that he did not know his drivers licence was cancelled because he had moved address. The tribunal finds the applicant did continue to drive after being advised by the radio operator that his licence had been suspended but also finds that he did hand in his authority when he attended for an interview with officers of the respondent shortly thereafter. Whilst he maintained that he did not drive after 18 June 2012, is clear that he did drive on 19 June, however the tribunal accepts his explanation that he may have got the date wrong and/or just drove for one more day after finding out that his drivers licence was cancelled, to finish his shifts.

The law and the tribunal's reasoning 52The Passenger Transport Act 1990 provides: Section 33, Passenger Transport Act 1990 33 Authorities (1)The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units. (3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom. 33F Variation, suspension or cancellation of authority Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authority under this Division. 4 Objects The objects of this Act are: (a) to require the accreditation or authorisation, by TfNSW, [Transport for NSW] of the operators of and drivers involved in public passenger services (other than ferry services), and ............. (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and (f) to encourage co-ordination of public transport services. 53The decision under review in the current proceedings is a decision to cancel the Applicant's taxi driver authority. Section 33F clearly provides that in making a cancellation decision regard is to be had to the purpose of the authority. The purpose of an authority is to attest to the matters set out in s33(3)(a)(b) of the Act, namely, to attest that the authorised person is:

• Of good repute; and
• A fit and proper person (to be so authorised); and
• Considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with law and custom; and in accordance with the conditions under which the taxi service is operated. 54Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable law. It is well established that in considering an application for review the Tribunal is not restricted to a 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. 55A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker. 56Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 57In deciding this matter the Tribunal has also had regard to prior decisions of the Tribunal discussing the legislative requirements. . A useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 (25 May 2012) at paragraphs 24 to 35: 24.Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. 25.In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,Chief Justice Mason explained that, at 380: '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.' Toohey and Gaudron JJ said at 380: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." 26.A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." 27.In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said: "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." 28.Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth). 29.In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are: the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted; 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. 30.In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety. The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. .... The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this. 31.The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." 32.As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393: 'A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts." In Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained: "... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person." 33.In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character: "... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation." That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character: "... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279." Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained: 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards. 34.In the present case the regulated activity is that of a country school bus driver who regularly transports high school age children for long distances, for up to three hours each school day. When doing so, drivers are entrusted with ensuring the safety of the students and are responsible for regulating their behaviour in accordance with established policy. 35With respect to requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. I agree with the Agency that law and custom means more that simply the rules of the road applicable to bus drivers, but the lawful requirements and directions that must be observed by them. Custom includes industry standards, including applicable policies of the Agency relevant to the to an authority holder. 58A decision of the Appeal Panel of the Tribunal: Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 also provides useful guidance: 38 Good Repute:The approach to be adopted in considering 'good repute' is well explained by Waddell J in Re T. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.... 42 The question which the Director-General must ask, as we see it, is whether the travelling public would be prepared to place their trust in a driver with Z's background, and past and recent offence history, even if satisfied that there is no longer a significant risk of sexual reoffence? 43 In the past, the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done ... to rehabilitate himself, would object to the applicant as the driver of the taxi."' 59The Appeal Panel of the Tribunal in a recent case considered the role of the "perception of the public" in decisions about whether an applicant is a "fit and proper person". The Appeal Panel of the Tribunal in the case of Department of Transport and Infrastructure v Murray (GD) 2011 NSWADTAP 16 reviewed relevant authorities and concluded: When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public 60The Appeal Panel's decision in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) was subject of comment by the President of the Tribunal, Judge K P O'Connor, in the case of Nasour v Director-General, Transport NSW[2011] NSWADT 91 (4 May 2011): In that case [Farquarssen] I went on to look at the question of how then might the administrator go about forming a view as to 'repute and character'. The reasons referred to taking into account the views that might be formed by a reasonable member of the travelling public; and have been read as allowing the views of the travelling public to be used in the assessment of character. The Appeal Panel recently held in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) that the views of the travelling public are not a relevant consideration when assessing character. What is involved in the assessment of character is an objective evaluation of the person's fitness to continue to undertake the regulated occupation having regard to the relevant material. The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson , as extracted above. The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known. However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)). A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13]. A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'. 61The Appeal Panel of the Tribunal in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [37] noted the role public interest considerations play in the assessment of fitness and propriety: The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. .... 62The respondent submits that the tribunal would not be satisfied that the applicant is a fit and proper person to be the driver of a taxi, and that the tribunal would not be satisfied that the applicant had sufficient aptitude to drive the taxi in accordance with law and custom. 63The legislative provisions, and case law set out above, indicates that in deciding this matter I must have regard to the purpose of the authority, namely I must be able to attest to the Applicant's repute and fitness and propriety, and that he is considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with law and custom. I agree with the authorities set out above, that in considering the requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. The applicant's past conduct is that there was a complaint about inappropriate sexual conduct to a passenger in August 2011 (words used to the passenger) and a record of interview conducted and warning/caution issued. In less than 12 months there was a further complaint of inappropriate sexual conduct towards the witness Tracey, and the tribunal has found in these proceedings, as detailed above, that the applicant did say inappropriate sexual comments to Tracey, which made her frightened and made her exit the taxi before reaching home. She had accordingly not been safely transported to her home which was her reasonable expectation when engaging the taxi. Given the short time frame between the earlier complaint, and the current complaint, and the fact that the current complaint occurred after a warning, then the tribunal does not have confidence that the applicant will not conduct himself similarly in the future. The tribunal does not have confidence that the misconduct will not reoccur. The tribunal considers that the misconduct was serious, the comments were sexual and made the female passenger who was alone in the taxi at night, feel unsafe. 64In relation to fitness and propriety a number of matters are relevant, as the review of the authorities above indicates, and in particular regard should be had to the Applicant's honesty, knowledge and ability in the context of the role to be undertaken. The tribunal should also have regard to complaints of misconduct and the likelihood of any future such misconduct. As noted above the tribunal found the complaint of Tracey to be substantiated, and the tribunal is not satisfied on the evidence overall, as detailed above, that it is unlikely that such misconduct will reoccur. 65It is this misconduct which is of most concern to the tribunal in the present matter. The authorities indicate that the tribunal should have regard to the objects of the Act, in assessing fitness and propriety, and one of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)). To allow taxi drivers to continue to be authorised who have been sexually inappropriate to a female passenger and placed that passenger in fear, is not consistent with the objects of the Act. Having regard to the sexually inappropriate conduct in the course of the regulated activity to a female passenger alone in the taxi at night, the tribunal cannot attest to the applicant being a fit and proper person to be authorised to drive a taxi cab, nor can the tribunal attest to the applicant having sufficient aptitude to drive the vehicle in accordance with law and custom. For these reasons the tribunal finds that the applicant's authority to drive taxicabs should be cancelled and accordingly the decision of the respondent should be affirmed. 66The tribunal considers on the evidence in this matter that the applicant has not demonstrated the aptitude to drive the taxi in accordance with law and custom given his failure to declare traffic offences as required, and by incorrectly answering "no" to the question on the renewal forms directed at ascertaining whether there were any traffic offences. This evidence does not reflect well on the applicant's commitment to complying with the laws and regulations governing those authorised to drive taxicabs. However, in this matter it is the misconduct as referred to above, of the sexually inappropriate conduct placing a woman passenger in fear, which causes the tribunal to decide that the correct and preferable decision, according to the law and the evidence, is that the applicant's authority to drive taxi cabs should be cancelled. 67For the reasons detailed above the tribunal finds that the applicant is not a fit and proper person to be authorised to drive a taxicab, nor is the tribunal able to attest that he can drive the taxicab in accordance with law and custom, and accordingly the applicant's authority to drive a taxicab should be cancelled. The decision of the respondent is affirmed.

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: 27 February 2013