These are proceedings for the review of a decision of Roads and Maritime Services ("RMS") to refuse the applicant's application for an authorisation to drive taxis.
The applicant acknowledges that he made eleven false statutory declarations, stating that another person was driving a vehicle involved in a traffic offence, the last of which was made in 2014. He has a poor driving record, although he has committed no traffic offences in the last 22 months.
I have found that the applicant is not a fit and proper person to drive a taxi and have affirmed the decision of RMS to refuse his application for an authority.
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Background
The applicant was a taxi driver in New Zealand until he was disqualified, on 31 October 2011, from driving a taxi for twelve months. He had committed about 27 traffic offences in New Zealand between September 2005 and August 2011.
The applicant was issued with an authorisation to drive taxi cabs in New South Wales on 13 May 2013. Between 1 December 2013 and 23 May 2014, the applicant committed 8 traffic offences. He accepts that, in relation to each of these offences, he made a false statutory declaration stating that the driver of the vehicle was somebody else when it was in fact him. He also accepts that he made false statutory declarations on three additional occasions in response to infringement notices.
The applicant had committed nine traffic offences (in addition to the offences referred to above) between 23 May 2014 and 28 August 2015.
The applicant's taxi-cab authority was cancelled on 20 November 2015. He applied for a review of the cancellation decision in this Tribunal. On 16 June 2016, the Tribunal affirmed the decision of RMS to cancel the authority (Karelia v Roads and Maritime Services [2016] NSWCATOD 76).
The applicant applied for a new authority to drive a taxi-cab on 20 February 2017.
That application was refused by RMS, under s 33B of the Passenger Transport Act 1990 (NSW), on 20 March 2017. The applicant sought review of that decision in this Tribunal on 23 March 2017.
The Tribunal has jurisdiction to review the decision under s 52 of the Passenger Transport Act, s 9 of the Administrative Decisions Review Act 1997 (NSW) and s 30(1) of the Civil and Administrative Tribunal Act 2013 (NSW).
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Relevant legislation
Section 33(1) of the Passenger Transport Act provides that the RMS may, by the issue of authorities under Division 5 of Part 4 of that Act, authorise persons to drive taxi-cabs, subject to and in accordance with the Division.
Section 33(3) of the Passenger Transport Act provides as follows:
(3) The purpose of an authority under this Division is to attest:
(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab:
(i) in accordance with the conditions under which the taxi-cab service concerned is operated, and
(ii) in accordance with law and custom.
Under s 63 of the Administrative Decisions Review Act, the Tribunal is to decide what is the correct and preferable decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law.
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Consideration
This Tribunal helpfully summarised the applicable law in Husain v Roads and Maritime Services [2017] NSWCATOD 8 at [29]-[30]:
Under s 33(3) of the PT Act, the purpose of an authority is to "attest" that the person meets the requirements of the Act for taxicab drivers. The term "attest" is stronger than the concept of being satisfied of something, and envisions the decision-maker assuring the public that the authority holder is of good repute and meets the other criteria in s 33(3): Director-General, Transport New South Wales v AIC [2011] NSWADTAP 65, [12]. As the requirements are cumulative, the inability to attest to any one of them is fatal to an entitlement to a driver authority. Thus, even if the person is of good repute, he or she must in all other respects be "a fit and proper person to be the driver of a taxicab", and must also possess the requisite responsibility and aptitude.
In this case the respondent does not allege that the applicant is not of good repute or that he lacks the necessary aptitude, but argues that by reason of his two convictions for making the false statutory declarations, he is not a "fit and proper person" to be a taxi driver. The High Court has defined fitness and propriety as incorporating three components: "honesty, knowledge and ability": Hughes and Vale Pty Ltd v New South Wales [1955] HCA 28; (1955) 93 CLR 128.
The key question for the Tribunal to consider is whether the applicant is a fit and proper person to be the driver of a taxi-cab within s 33(3)(a) of the Passenger Transport Act. As indicated above, this requires honesty, knowledge and ability.
The applicant focused on his aptitude or ability as a driver. The applicant's driving record is relevant to his fitness and propriety to drive a taxi cab: Saadieh v Director-General, Department of Transport [1999] NSWADT 68. The applicant says that, since 28 August 2015, he has not committed any traffic offences. He says there has been a significant improvement in his driving since that time. He says that in future everything will be fine.
The applicant also provided a number of references, many of which said he was honest, reliable and hard working. However, most of the references did not refer to the false statutory declarations he had made. I have given them little weight as a result (see Loye v Director General, Department of Transport [2000] NSWADT 145). The applicant did provide a reference from Mr Jools, the President of the Taxi Drivers Association, which demonstrated knowledge of the false statutory declarations. This reference refers to the applicant being positive and helpful and says he would never act again in a way to evade his responsibilities. I have taken this reference into account.
As indicated in Hughes and Vale Pty Ltd v New South Wales (1955) 93 CLR 128, which is cited above, honesty is one of the key factors in determining whether a person is fit and proper. By making eleven false statutory declarations, the applicant has demonstrated that he lacks honesty. This is a serious form of dishonesty; it is an offence to knowingly make a false statutory declaration under the Oaths Act 1900 (NSW).
I have had regard to decisions of this Tribunal and its predecessor the Administrative Decisions Tribunal, many of which are set out in Husain v Roads and Maritime Services [2017] NSWCATOD 8, where the Tribunal has found an applicant who has made a false statutory declaration not to be a fit and proper person to hold an authority.
I am not satisfied, from the applicant's evidence and that of Mr Jools, that there has been sufficient change in the applicant since he made the false statutory declarations, to mean that he is now a fit and proper person to hold a taxi authority. The applicant stated in his written evidence that he made serious mistakes in the past, which he regrets, and that they will not happen again, not because he was caught, but because they were wrong. However, when I asked him about what had changed in him since he made the eleven false statutory declarations, he referred to the improvements in his driving. When asked if he understood the seriousness of the false statutory declarations, he said that he had made them because his situation was worse at the time. I find that he does not appreciate the seriousness of his conduct, which was calculated. In these circumstances, I cannot attest that he is a fit and proper person to be the driver of a taxi-cab.
The applicant referred to the personal hardship he suffered as a result of losing his taxi authority and which he will continue to suffer if he is not issued with another one. However, any hardship to the applicant cannot be taken into account in determining whether RMS has made the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74.
I am not satisfied that the applicant is a fit and proper person to drive a taxi, having regard to his calculated dishonesty in making eleven statutory declarations, the last of which was made about three years ago.
The applicant also has a very bad driving record, both in New South Wales and in New Zealand. I am not convinced that a period of less than two years without further traffic offences, in circumstances where he was not driving a public passenger vehicle for most of that time, means that he has sufficient responsibility and aptitude to drive a taxi-cab in accordance with law, given his long history of traffic offences (Passenger Transport Act, s 33(3)(b)).
For these reasons, the correct and preferable decision is to affirm the respondent's decision.
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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
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Decision last updated: 30 June 2017