Mr Haresh Karelia has held a NSW taxi-cab driver authority since March 2013. On 20 November 2015, Mr Karelia's authority was cancelled by Roads and Maritime Services ('RMS'). Mr Karelia did not seek an internal review of this decision. Rather on 21 January 2016, he lodged an application for review with this Tribunal. The Tribunal exercised its discretion to consider the application for review, despite it being lodged out of time. A stay of this decision was granted to Mr Karelia until the hearing of this matter on 31 March 2016. At the hearing, Mr Campbell, who appeared for Mr Karelia, did not seek an extension of the stay. Accordingly, the stay lapsed on 31 March 2016. Mr Karelia's subsequent application for a further stay of the decision by RMS to cancel his taxi driver authority was refused by the Tribunal on 8 April 2016.
[2]
Review decision
In this case, the Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then affirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of RMS and there is no presumption that the decision of RMS is correct. McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.
RMS has the power to authorise persons to drive taxi-cabs. Such an authority attests, inter alia, 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.
Section 33F of the Passenger Transport Act 1990 states that 'having regard to the purpose of an authorisation under this Division, Roads and Maritime Services may at any time vary, suspend or cancel any person's authority under this Division.'
The issue in this case, then, is whether the decision to cancel Mr Karelia's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Karelia is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a taxi-cab. The Tribunal has the power to review this decision pursuant to s9 of the Administrative Decisions Review Act 1997 and s52(1) of the Passenger Transport Act 1990.
[3]
Consideration of evidence
Mr Karelia has conceded that between March 2014 and June 2014, he prepared eight false statutory declarations in which he named a person other than himself as being the driver of the relevant taxi-cab at the time of the eight applicable traffic offences.
Mr Wozniak, who appeared for RMS, advised the Tribunal that he would not be relying on four customer complaints made against Mr Karelia in May and October 2014, nor would he be relying on the caution issued to him on 5 October 2013 for his failure to wear an approved network uniform.
Mr Karelia's driving record shows that between 23 May 2014 and 28 August 2015, eleven driving offences were recorded against him. This does not include the eight offences for which Mr Karelia signed the eight statutory declarations nominating a driver other than himself.
Those eight traffic offences, which all occurred between 12 March 2014 and 23 May 2014, included seven speeding offences and one offence of going through a red traffic light.
Mr Karelia's demerit points and suspension history report, as prepared by the New Zealand Transport Agency, is also contained on file. It reveals twelve offences between 23 February 2006 and 12 August 2011, none of which appear to involve any dishonesty.
The Tribunal also notes that Mr Karelia's New Zealand Passenger Transport Authority, which was granted in 2004, was revoked for a year in 2011. As there are no further details before the Tribunal to explain the reasons for the revocation, the Tribunal has given it no weight in these proceedings.
Mr Karelia sought to rely on the written material in this matter and did not give oral evidence before the Tribunal.
Medical certificates are before the Tribunal as evidence that Mr Karelia suffers from chronic lower pain with sciatica and that his wife is underweight, with a past history of fully treated bowel tuberculosis. A reference from Australian Taxi Drivers Association is also before the Tribunal in which Mr Karelia is said to be remorseful for his actions.
A document outlining Mr Karelia's financial position shows that his weekly net earnings as a taxi driver are less than his weekly expenses.
[4]
Findings
As discussed earlier, the issue in this case is whether the decision to cancel Mr Karelia's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Karelia is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a taxi-cab.
The term "fit and proper person" was discussed by Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63]. The Chief Justice said that:
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So, too, is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In this case, an authority to drive a taxi-cab can be granted under the Passenger Transport Act 1990, one of the objectives of which is to encourage public passenger services (which include taxi-cab services) that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services.
The following factors need to be taken into account in determining a person's suitability and fitness to hold a taxi-cab authority:
the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
the nature, seriousness and frequency of any complaints made against the applicant;
the applicant's driving record;
the applicant's reputation in the community; and
the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.
In assessing the last factor, the following considerations are relevant:
the length of time since the offences were committed and the circumstances in which they were committed;
whether the applicant admits responsibility for the offences or complaints and shows genuine remorse;
the efforts the applicant has made to rehabilitate himself or herself during that time;
any change in the applicant's circumstances such as increased support from friends, family or professional service providers.
Saadieh v Director General, Department of Transport [1999] NSWADT 68
In Sobey v Commercial and Private Agents Board [1979] 22 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."
Mr Karelia has admitted that he prepared eight statutory declarations in which he falsely claimed that he was not the driver of the relevant taxi-cab at the time the eight relevant traffic offences had been committed.
The Tribunal accepts that the last statutory declaration was prepared nine months prior to the RMS becoming aware of the situation. Mr Karelia did not give evidence at these proceedings and there is no other evidence before the Tribunal to explain why the last statutory declaration was prepared nine months before the RMS became aware of the situation.
In Howell v Macquarie University [2008] NSWCA 26 the Court of Appeal specifically noted that the principle of Jones v Dunkel [1959] HCA 8 applies to the Tribunal. It referred to its decision in Manly Council v Byrne [2004] NSWCA 123 at [51] about the inferences that can be drawn from the failure to call a relevant witness:
Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.
Whether either or both of the inferences are actually drawn is part of the task of weighing the evidence. In this matter, Mr Karelia's failure to give evidence means that the Tribunal cannot draw any inference in Mr Karelia's favour as to why the last false statutory declaration was signed by him some nine months prior to his actions being discovered by the RMS.
In light of Mr Wozniak's concession that he would not be relying on the four customer complaints made against Mr Karelia in 2014 and the caution given to him in 2013, the Tribunal has given them no weight in reaching a decision in this matter. Given the lack of detail in relation to Mr Karelia's traffic offence record in New Zealand and the lack of evidence before the Tribunal as to the comparative seriousness of the record, the Tribunal has given no weight to Mr Karelia's New Zealand traffic record. In determining this matter, the Tribunal has accordingly given consideration only to the making of the eight false statutory declarations by Mr Karelia, in addition to Mr Karelia's subsequent driving record in NSW.
Mr Campbell, who appeared for the applicant, has submitted that a suspension of Mr Karelia's taxi-cab authority would be an appropriate penalty - in effect a suspension from 31 March 2016 (when the stay of the decision by RMS to cancel Mr Karelia's taxi-cab authority lapsed) until May 2016, when Mr Karelia's taxi-cab authority was to have expired.
His actions reflect badly on his honesty, which is a fundamental consideration when determining whether a person is fit and proper;
The offences in question relate directly to his driving and driving record, which is of importance given that a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. Sobey v Commercial and Private Agents Board [1979] 22 SASR 70
As a result of Mr Karelia's actions in blaming other people for eight of his traffic offences, a false and misleading picture has been given of his driving record.
At the time of the relevant traffic offences, and the subsequent swearing by Mr Karelia of the eight false statutory declarations, Mr Karelia had held a NSW taxi driver's authority for less than eighteen months. Eight traffic offences in such a short period of time is not an insubstantial traffic record, particularly as he accrued a further eleven traffic offences between 23 May 2014 and 28 August 2015. It is a driving record that does not assist Mr Karelia in an assessment of his suitability and fitness to hold a taxi-cab authority.
The Tribunal accepts that Mr Karelia has suffered lower back pain with sciatica, that his wife has suffered from tuberculosis and that there are financial pressures on the family that make it important for Mr Karelia to be able to support his family. Questions of possible hardship to Mr Karelia or to his family cannot be taken into account, however, in determining whether RMS has made the correct and preferable decision to cancel Mr Karelia's taxi-cab driver authority. Lal v Director-General, Department of Transport [2001]
In considering the likelihood of whether Mr Karelia would re-offend, the Tribunal accepts that Mr Karelia's expressions of remorse and contribution are genuine. The Tribunal is satisfied that he now understands the seriousness of his conduct and would be unlikely to reoffend in the future.
Given, however, the severity of his actions in swearing eight false declarations in order to escape responsibility for his traffic offences, in addition to his poor driving record, the Tribunal cannot be satisfied that Mr Karelia is, at this stage, a fit and proper person to hold a taxi driver's authority.
On the evidence before it, the Tribunal is satisfied that Mr Karelia's actions in falsely swearing the eight statutory declarations, in addition to his poor driving record in NSW, are sufficiently serious to warrant the cancellation of his taxi-cab driver authority.
As the Tribunal has determined that, at this stage, Mr Karelia is not a fit and proper person to hold a taxi-cab driver authority, it is not necessary to consider whether Mr Karelia is of good repute or whether he has sufficient responsibility and aptitude to drive a taxi-cab, in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom.
In light of the above findings, the Tribunal is satisfied that the decision of RMS to cancel Mr Karelia's taxi-cab driver authority should be affirmed.
[5]
Decision
The decision to cancel the applicant's taxi-cab driver authority is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 16 June 2016
Through his legal representative, Mr Campbell, Mr Karelia has accepted that he swore eight false statutory declarations nominating a driver other than himself in relation to eight traffic offences. In earlier submissions prepared for Mr Karelia by Mr Michael Jools of the Australian Taxi Drivers' Association, emphasis was placed on Mr Karelia's remorse for his actions:
[Mr Karelia] wishes to advise that, a year ago, he realized the folly and the legal implications of his actions in completing false statutory declarations in relation to traffic offences committed by himself. At the time he was under financial and domestic conditions of great stress, and he took a 'way out' that seemed like a good idea at the time. He now is fully aware that it was a very bad idea, and it wholly remorseful. He has spoken to his colleagues and to our Association and has since changed not only his driving behaviour, but also, at least as he presents to us, his attitudes as a taxi driver. He concurs that, on the face of the recorded instances, his behaviour and actions were inappropriate and wrong. He admits doing wrong. He also needs desperately to continue driving a taxi to support his family, his wife and his children.
No other character references are before the Tribunal.
Medical certificates before the Tribunal disclose that Mr Karelia suffers chronic lower back pain with sciatica and that his wife has suffered from fully treated bowel tuberculosis. A further documents sets out Mr Karelia's financial position and his subsequent need to gain an income as a taxi driver.
Mr Campbell notes that the offences that were the subject of the false statutory declarations were mostly relatively minor traffic infringements involving minor excesses of speed for which, Mr Campbell submits, the community expectation at large would not generally involve a total loss of employment or be of great concern to passengers of a taxi.
The Tribunal is prepared to accept that Mr Karelia regrets his actions in signing the false statutory declarations and is remorseful. In light of the seriousness of Mr Karelia's actions, which involve a series of dishonest acts, the Tribunal does not agree with Mr Campbell's submission that a suspension would be an appropriate penalty for Mr Karelia.
The Tribunal is of the view that Mr Karelia's actions should be taken seriously for the following reasons: