Larney v Roads and Maritime Services

NCAT Occupational|2015-10-07

The decision under review

The applicant, Peter Larney, seeks the review of the decision made on internal review by the Roads and Maritime Services (the respondent) on 29 May 2015 to affirm the decision to refuse the applicant's application for an authority to drive a taxi-cab.
I note that there is a typing error in the delegate's internal review decision which, while referring to the application for authorisation to drive taxi-cabs, affirms the decision to refuse his application to drive "buses".

The law

Section 33(3) of the of the Act provides: The purpose of an authority under this Division is to attest: 1. That the authorised person is considered to be of good repute and in all respects a fit and proper person to be the driver of a taxi-cab; and 2. That the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: 1. In accordance with the conditions under which the taxi-cab service concerned is operated; and 2. In accordance with law and custom.
Section 33B(1) empowers the RMS to grant or refuse an authorisation to drive a taxi-cab. Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy RMS as to any matter it considers relevant (s 33B(2)).
Section 54 of the Act creates various offences, including for obtaining or attempting to obtain an authority by any false statement or misrepresentation.

The issue in the case

The issue in this case is whether the applicant is considered to be a fit and proper person to be the driver of a public passenger vehicle, taking into account his driving offence history and his alleged failure to disclose that history in his application for an authority or otherwise.
Question 23 in the application for taxi-cab driver authorisation asked "In the last five (5) years have you been issued with a Traffic Infringement Notice (fine) OR have you been before a court for any traffic offence(s) OR is there any court action pending against you in relation to a traffic offence?"
In his application, which was received by the respondent on 29 January 2015, the applicant provided information about one conviction for the offence "Low Range PCA" at Belmont Local Court on 9 March 2014.

The applicant's driving record

The applicant provided with his application for review a copy of his driving record from 1974. It extends to almost six pages. The respondent provided a one page criminal record for the applicant that included offences in 1973 and 1981. Following are the matters specifically relied upon by the respondent and other matters I find are relevant to the determination of this matter. 5 September 1973 prescribed content of alcohol offence, fined $100 and disqualified for two months 12 October 1982 six months disqualification for "drive with higher prescribed concentration of alcohol" 6 November 1988 demerit points cancellation of licence for offences of 13 June 1988, 6 May 1988, 21 April 1988, 1 January 1987 11 April 1989 unrestricted licence issued 26 November 1991 demerit points cancellation of licence for offences of 1 September 1991, 14 August 1991, 5 June 1991, 29 March 1991, 1 April 1990 16 April 1992 unrestricted licence issued 1 March 1994 nine months disqualification for drive with middle range concentration of alcohol 7 April 1994 fine default cancellation of licence 2 December 1994 probationary licence issued 2 December 1995 unrestricted licence issued 18 October 1996 demerit points cancellation of unrestricted licence commencing on 15 November 1996 for offences of 14 August 1996. 14 August 1996, 18 February 1996, 26 January 1996. Application for further unrestricted licence will be considered on or after 16 February 1997. 28 October 1996 exceed speed limit offence 14 April 1999 unrestricted licence issued 17 December 2000 police suspension of Class C licence 15 February 2001 six months disqualification for 17 December 2000 offence drive with middle range of concentration of alcohol 19 June 2001 unrestricted licence issued 20 February 2002 demerit points warning letter sent for offences of 31 December 2001, 8 September 2001, 1 September 2001 14 April 2003 demerit points warning letter sent for offences 9 October 2002, 31 December 2001, 8 September 2001, 1 September 2001 20 May 2003 fine default suspension of unrestricted (Class C) to commence on 3 June 2003 which was lifted on 10 June 2003 11 June 2003 demerit points warning letter sent for the offences of 9 October 2002, 31 December 2001, 8 September 2001 and 1 September 2001 25 March 2004 demerit points suspension of unrestricted (Class C) to commence for offences of 3 September 2003, 9 October 2002, 31 December 2001, 8 September 2001 and 1 September 2001 19 April 2005 unrestricted licence issued (Class C) 28 January 2006 fine default suspension of licence lifted 10 February 2006 23 May 2006 demerit points warning letter sent for offences of 29 January 2005, 15 September 205, 2 September 2005 19 January 2007 demerit points suspension of unrestricted (Class C) until 23 June 2007 for offences of 5 October 2006, 5 October 2006, 5 October 2006, 29 January 2005, 15 September 2005, 2 September 2005 21 June 2009 infringed for the offence "exceed speed limit by not more than 15 km/h whilst driving a motor vehicle and fined $81 15 August 2009 police suspension of licence until 27 September 2009 26 November 2009, 12 months disqualification and 75 hours community service for the offence of "drive with middle range concentration of alcohol" on 15 August 2009 26 November 2009 convicted for the offence of "negligent driving" and fined $600 30 September 2010 unrestricted licence issued 15 October 2010 infringed for the offence "exceed speed limit by more than 10 km/h but not more than 20km/h whilst driving a motor vehicle" and fined $211 6 March 2011 infringed for the offence "exceed speed by more than 20 km/h but not more than 30 km/h while driving a motor vehicle" and fined $361 12 May 2011 demerit points suspension of unrestricted licence commencing 16 June 2011 until 15 September 2011, for offences of 6 March 2011, 15 October 2010, 15 August 2009, 21 June 2009 15 June 2011 suspension of 16 June 2011 not implemented; good behaviour conditions apply 16 June 2011 to 15 June 2012 20 December 2011 the offence "stop in bus zone (school zone)" proven and dismissed without conviction 29 July 2013 infringed for the offence "exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected) (school zone) and fined $177 9 April 2014 nine months disqualification for the offence "drive with low concentration of alcohol" and fined $1,100
The decision-maker on the internal review the subject of this decision, only took into account the infringements and offences from 21 June 2009 to 9 April 2014. However, at the hearing, the respondent referred to earlier offences.

The applicant's evidence and contentions

The applicant's grounds for reviewing the decision were that he completely misunderstood question 23 and answered it incorrectly. He attached to his application for review a copy of the decision under review, a statement dated 26 June 2015, and two references. He also included a copy of his driving record from 27 July 1974 until 9 January 2015.
The applicant included an Attachment A with his internal review application to the respondent. He said that he had been a taxi driver in Newcastle for approximately 30 years and had many compliments from passengers for the service he provided, and not always in a written document but word of mouth. He said that he had a few written ones "although some are dated but my experience in the area of reference is that only good ones are submitted and some could be fraudulent". He said that he preferred to offer contact details of referees who could be spoken "to get a genuine assessment of my driving ability and customer care given to the young, elderly, sober or intoxicated". He provided the names and contact details of a husband and wife and another individual who were owner/operators of taxis.
In an "Attachment B", the applicant set out the facts he wanted the internal reviewer to take into account. He referred to his 30 year driving history, providing service to various groups of people, that he had been complimented, been seriously injured during several assaults "carrying intoxicated patrons" and fare evaders but that did not affect his courtesy to customers. He addressed the 9 April 2014 offence. He said the respondent suspended his authority and he "was confident he had disclosed that" in his renewal application. He said that he did not include the 26 November 2009 offence because he miscalculated the five years. He said that he had no intent to "issue false statement or misrepresentation to obtain any advantage in the application. As "the holder of my driving record" he was confident that the respondent would be referring to it before any decision was made. He apologised for "the appearance of deceit" but that was the last thing on his mind.
He asked that consideration be given to "the fact that it was a morning after incident" , which he regretted but he had "miscalculated" at the time, having had six hours' sleep and feeling better.
The applicant referred to a submission he had made to taxi base operators to submit a proposal to the relevant authorities to use bus stops as stopping areas for taxis and hire cars.
The applicant relied on the Medical Assessment form submitted with his application. A doctor completed Parts E, F and G and dated the form 27 January 2015.
Question 38 was "Signs of alcohol and/or other drug abuse which may affect the driver/applicant's ability to drive". The doctor ticked the "Absent" box. The alternative response was "Present".
Question 39 "Doctor's comments" was not filled in by the doctor.
The form had been stamped: "Date 19/2/15 Reviewed by LT" and the box "Action required refer to medical review" was ticked. Below the stamp was handwritten: "Applicant to provide GP report for alcohol consumption (low range DUI 2014 + mid range DUI 2009). Pgs 110-115 of AFTD". After a space was written "Med okay Emma 16/2/15". There was also a stamp "RECEIVED" and written in handwriting "13/3/15" and an initial.
A doctor sent in a medical report dated 5 March 2015 in relation to the applicant's alcohol assessment. The doctor concluded: "Clinically there were no stigmata of alcohol overuse and an AUDIT Assessment performed today scored 6 which does not indicate harmful alcohol consumption".
A Public Passenger Vehicle (PPV) Medical Team Review was carried out on 13 March 2015. It noted at "Previous Review" that a GP report for alcohol consumption was required on 19 February 2015. Underneath that comment next to "Current Situation" was written: "GP report received". The Medical Team Review noted the doctor's opinion about the applicant's alcohol consumption.
Under "Reports", the Medical Team Review listed the drinking under the influence (DUI) offences dated 9 April 2014, 15 August 2009, 15 February 2009, 15 February 1994 and 12 October 1982, all of which were mid-range except for the low range offence in 2014.
At the hearing, the applicant maintained that he was not trying to get his licence back fraudulently. When he lost his points, the RTA cancelled his driving authority. He questioned why he had to tell the respondent what it already knew. The applicant said that he has renewed his licence many times and has never been questioned about not disclosing his traffic history. If the matter had been brought up, he would have rectified the situation. He did not realise that he had to provide old offences in his application for the authority. He thought that he had to give the most recent offences. There were periods when his authorities lapsed for a while. He has limited offences over a period of 20 years. He does not dispute his record of offences.
He was not a full-time taxi driver. He worked for Australian Rail for 35 years until 2002 but has driven taxis regularly since 2006. When he first got his authority in 1992, he was only working one to three days a month to pay his mortgage.

The respondent's contentions

In summary, the respondent submitted that there were three areas of concern about the applicant:

His non-compliance with cl. 44 of the Passenger Transport Regulation 2007 which requires a driver of a public passenger vehicle to furnish RMS with written details of any alleged offence (other than a parking offence) with which the driver is charged by a police officer, and any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle.
His drink driving history showing that he has a problem with alcohol.
His non-disclosure of information in the most recent application, noting that he has no problem with English

Mr Wozniak, appearing for the respondent, made the following points.
The applicant applied for taxi driver authorities in 1992, 1998, 2005, and 2015. A first authority is issued for a year and subsequent authorities are issued for three years.
In his Taxi Driver Authorisation Declaration dated 13 November 1992 the applicant stated that he had read and understood the Standards for Taxi Driver Authorisation outlining the responsibilities and obligations of taxi driver authority holders and agreed to be bound by them.
Mr Wozniak referred to question 22 of the 2015 application for an authority which asked "Have you ever had your driver licence suspended or cancelled, disqualified for any reason" and which required details to be provided. The applicant only mentioned the 2014 disqualification. During the hearing, the applicant claimed that there was no room in the form to put in his disqualification history. That is not so. There was space available for the applicant to add details of two more suspensions, cancellations or disqualifications.
Mr Wozniak said that the internal reviewer only considered his inaccurate answer to question 23. The applicant's record is worse than the decision-maker considered.
At the time of the applicant's declaration on 13 November 1998, the Taxi Driver Australian standards applied. Mr Wozniak referred to the decision in Mahe v Director General, Department of Transport [2002] NSWADT 266 (16 December 2002) at [48] to [55] to spell out the status of the TD standards and to point out that according to those standards, a driver had to immediately report to the respondent criminal charges, convictions and traffic offences.
Mr Wozniak said that cl. 44 of the Passenger Transport Regulation 2007 (the Regulation) repealed the TD standards. A driver has a duty to notify the respondent of anything other than parking tickets.
On 12 May 2011, the applicant's licence was suspended because of a loss of demerit points. He held a "good behaviour" licence which is not an authority under the Act and therefore the applicant could not drive a taxi. The applicant did not tell the respondent.
Mr Wozniak explained that cl. 29 of the Regulation provides that a conditional licence is not an authority and referred to Lamb v Ministry of Transport [2005] NSWADT 82 (11 April 2005) to support his claim that a good behaviour licence is not an authority.
Mr Wozniak claimed that the applicant was guilty of an offence for each of the suspensions, cancellations or disqualifications he omitted to mention in answer to question 22.
Mr Wozniak said that the applicant did not disclose his 12 October 1982 PCA disqualification for six months in his first application for an authority in 1992.
Mr Wozniak pointed out that the references the applicant provided do not mention the applicant's drink driving offences. He also said that the respondent is the result of the merger two years ago of the Transport Department, which issued authorities, and the Roads and Traffic Authority which issued driving licences. That is, relevantly until the merger, different organisations issued taxi driver authorities and licences. The applicant's assumption that his licence records were held by the organisation granting authorities was misconceived.
Mr Wozniak referred to Singh v Director General, Department of Transport [1999] NSWADT 96 (12 October 1999) and the cases cited therein for the following propositions:

Honesty is a quality implicit in the notion of a fit and proper person
A person's reputation is the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession. Evidence of a conviction for a criminal offence is admissible as evidence and is most cogent evidence of bad reputation.
A person's reputation and character is not immutable. It is relevant whether the person has understood the error of his ways.

Consideration

At the end of the hearing on 7 October 2015, the applicant said that he could get references from people. I directed that he file and serve any further evidence by 14 October 2015 and the respondent to reply by 21 October 2015. No further evidence was filed by either the applicant or the respondent.
"Evidence of conviction for a criminal offence is ... most cogent evidence of bad reputation": Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393. However, as Deputy President Hennessy said in Z v Director General, Department of Transport [2000] NSWADT 87 at paragraph 36, a person can "live down" their bad reputation and reform their bad character. All circumstances of the case must be taken into account, including the time since the conviction was recorded.
Although not referred to by either the applicant or the respondent, I consider the letter of 31 December 2012 from the respondent to the applicant relevant in this case. It was headed "Warning - Driver Authority XXXXXX". It stated that a review of the applicant's driving record indicated that he had a number of excess speeding and other traffic offences and noted that his driver's licence was subject to good behaviour for 12 months from 16 June 2011 to 16 May 2012 inclusive. The letter stated that when making decisions on whether to cancel or suspend a driver authority the respondent had to take into account the purpose of an authority to attest that an authorised person is of good repute and in all other respects a fit and proper person, with sufficient responsibility and aptitude, to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated and in accordance with law and custom.
The letter said that the "abovementioned matters are of concern to (the respondent). Therefore it is imperative that you understand that failure to show an improvement in your behaviour may result in further disciplinary action, up to and including the suspension or cancellation of your driver authority." The letter warned that "in determining any future action against your authority" the respondent would "take into consideration any known complaints, arrests, convictions, proven offences and traffic history". On the evidence, no further action was taken despite the applicant having a "good behaviour" licence.
In the respondent's documents, before the 31 December 2012 letter was a 24 page print out of the applicant's traffic record and licence details dated 31 December 2012. The first offence shown was 1 January 1987 and the last was 20 December 2011 offence "stop in bus zone".
The applicant committed two offences after 31 December 2012 and before he made his 2015 application: the 29 July 2013 excess speed offence and the 2014 low concentration of alcohol offence. He did not disclose the 2013 excess speed offence in his authority application.
The applicant's 2015 application form includes the following relevant information. His taxi-driver authority was not current. He was unable to renew it because he lost his driver's licence in 2014 for the low range PCA offence.
The respondent's documents are incomplete in that they do not include the respondent's applications for an authority after 2005. There are Medical Assessment Public Passenger Vehicle Driver forms dated 15 July 2010, 21 December 2011 and 29 January 2013 which accompany such applications, but no application forms. Clearly, the applicant held an authority on 31 December 2012 when the respondent sent him the Warning Letter referred to above. Other evidence shows that he held an authority on 27 November 2009, an authority was issued around 30 April 2008 and that he held an authority on 2 August 2007 when the respondent sent a Warning letter. Mr Wozniak said that a first authority is issued for a year and subsequent authorities are issued for three years. I therefore do not know when the authority was issued that the applicant was unable to renew because of disqualification in 2014. I do not know the answers the applicant gave to questions about his driving offence history in that application or any other application he made after 2005.
I accept that the applicant was not intending to mislead the respondent when he failed to disclose all his driver licence disqualifications, suspensions and cancellations. He knew that the respondent knew of his driving record over the years, as indicated by the warning letters in 2012 and 2007. The internal review decision refers to a "Habitual Warning Letter" being sent to him on 15 April 2014. That letter was not in evidence before me and therefore I do not know whether it related to the applicant's taxi-driver authority or his driver's licence.
The applicant did not disclose the 2013 speeding offence in his application. He should have done so. I find that is the only traffic offence "in the last five years" of which the respondent may have been unaware at the time the applicant made his 2015 application. The Habitual Warning letter may have mentioned it. In any event, the applicant did have a responsibility to provide the requested information for the previous five years in answer to question 23 but did not do so.
I do not accept Mr Wozniak's implicit submission that the applicant was dishonest in failing to provide the requested information, or information in accordance with cl 44 of the Regulation, in the absence of all relevant documents. I note that neither the 2012 Warning Letter nor the 2015 Application form reminded the applicant of his responsibility to immediately advise the respondent of any relevant offences. The application did include a declaration that the applicant would comply with the Act and associated regulation and conditions relevant to a driver authority and understood that failure to do so may result in the authority being suspended, cancelled or varied.
The applicant's driver licence disqualifications relating to alcohol occurred in 1982, 1994, 2001, 2009 and 2014, the latter being for a low concentration of alcohol. The applicant's explanation for the 2014 offence was that he had misjudged his condition after having had six hours sleep. Hence his use of the expression "morning after" in his application. That does not excuse his behaviour.
Taking into account the applicant's driving record, including the disqualifications relating to alcohol, particularly those in 2009 and 2014, and the other offences since 2010, I do not consider that the applicant is of good repute and in all respects a fit and proper person to be the driver of a taxi-cab.
In making that finding I take into account the references he provided but give them no weight because they do not reflect any knowledge of his driving offence history. I have also taken into account the medical evidence that he does not have any medical condition as a consequence of his drinking alcohol.
For the above reasons, I affirm the decision made on 29 May 2015 to affirm the decision to refuse the applicant's application for an authority to drive a taxi-cab. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 January 2016

At a glance

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Judgment (7 paragraphs)

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