Mahmoud v Roads and Maritime Services

Reasons for cancellation - Respondent's case

1. In the letter concerning cancellation of accreditation as a taxi-cab operator RMS referred to ss. 31(2) and 31F of the Passenger Transport Act 1990 (the Act) and in the letter concerning cancellation of the driver authority RMS referred to ss. 33(3) and 33F of the Act. Those sections are set out below.
2. In each case RMS stated that its investigation led it to conclude that the Applicant "actively perpetrated fraud on the TTSS scheme by submitting dockets for re-imbursement for trips that did not take place".
3. The letters included what RMS stated was its reasoning process that led to each decision.
4. In relation to the taxi operator accreditation decision, RMS stated at [3.1] that it had a continuing obligation under the Act to ensure that public passenger services met the reasonable expectation of the community for safe, reliable and efficient passenger transport services including the requirement that persons accredited to operate public passenger vehicles were of good repute and in all other respects fit and proper. "A key factor in this regard is honesty and integrity, particularly in dealing with vulnerable passengers, or with schemes such as TTSS, which are designed to assist such passengers."
5. In the corresponding paragraph in the taxi driver authority letter RMS stated at [3.1] that it had a continuing obligation under the Act to ensure that the authorised taxi-cab driver is considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger service. "RMS is also entrusted with attesting to the public that an authorised driver holds the aptitude and responsibility to drive a taxi-cab in accordance with law and custom."
6. The Respondent relied on: 1. a paginated 234 page bundle of documents, numbered partially in reverse order, which the Respondent's solicitors described as "the Department's file". I observe that s. 58(1)(b) of the Administrative Decisions Review Act 1997 (ADR Act) requires each administrator, whose administratively reviewable decision is the subject of an application for review by the Tribunal, to lodge with the Tribunal "a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal." Mr Wozniak provided the Tribunal with a hand written index of a small number of the documents contained in that bundle, which Mr Wozniak submitted were relevant to the proceedings. I refer to the bundle as "the s. 58 documents". All references in this decision to page numbers refer to pages in the s. 58 documents unless otherwise stated. 2. a 44 page bundle of documents which Mr Wozniak submitted had been attached to a letter from RMS to the lawyers for the Respondent on 29 September 2014; 3. a hand written document headed "Traffic Record" containing what Mr Wozniak submitted were three traffic offences committed by the Applicant between 1 September 2012 and 29 April 2014; 4. a document containing pages numbered 108 to 113 with a cover sheet headed SHAMSUZZAMAN TTS FRAUD stated to be an extract from a transcript of SHAMSUZZAMAN v RMS 5 November 2014 file number 1420288; and 5. oral submissions by Mr Wozniak during the hearing.

Applicant's case

1. The Applicant relied on: 1. eight letters by passengers or relatives of passengers of the Applicant; 2. two letters from persons engaged in senior positions within the taxi industry; 3. a copy of a letter from the Applicant to RMS dated 18 June 2014 providing reasons why the Applicant was of the opinion that his driver authority should not be cancelled; 4. a bundle of 11 incomplete torn TTSS dockets containing docket numbers and partial signatures of passengers; and 5. written submissions by Mr Packer on behalf of the Applicant.
2. In addition, two of the passengers who provided written letters in support of the Applicant gave evidence by telephone and the Respondent had the opportunity to cross-examine them. The Applicant gave oral evidence to the Tribunal and was cross-examined by Mr Wozniak. Mr Packer also made oral submissions during the hearing.
3. In summary, Mr Packer submitted that the Applicant accepted that incorrectly completing dockets was a serious matter which could be exploited if one was unscrupulous or dishonest. The Applicant accepted at the first opportunity that there were problems with the Dockets and did not seek to avoid responsibility. He had received glowing references from passengers, which were in evidence, and authorities had held that whether or not a person was "fit and proper" for a particular purpose related to how members of the travelling public perceived that person.
4. Mr Packer further submitted that the Applicant had been contrite and had tried to be candid at all times with officers of the Respondent. The Applicant was an honest person and examples were given of his honesty in the course of his work in the taxi industry. Mr Packer observed that RMS has records of the Applicant driving all passengers concerned with the Dockets and that RMS acknowledged that the Applicant's business records are usually kept meticulously. The events involved an isolated series of incidents. The Applicant now had an insight into what he had done wrong and why it was wrong and that he would not re-offend.

Consideration

1. The role of the Tribunal in matters such as this was succinctly set out recently by Senior Member Leal in Bedi v Roads and Maritime Services [2014] NSWCATOD 87 at [5]: … 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.

The law

1. The Act was enacted to regulate public transport services and for other purposes. In the Letters the Respondent provided excerpts from certain provisions of the Act. They were from "Division 3 Taxi-cab operators" and "Division 5 Taxi-cab drivers".
2. In relation to taxi operators, that is those persons who are responsible for the operation of a taxi-cab service, the Act provides: Section 31 Accreditation (1) RMS may accredit persons for the purpose of carrying on taxi-cab services, subject to and in accordance with this Division. A person accredited under this Division is referred to in this Part as an "accredited taxi-cab operator". (2) The purpose of accreditation under this Division is to attest: (a) that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service, and (b) that the accredited person has demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to: (i) financial viability, and (ii) safety of drivers, passengers and the public, and (iii) vehicle maintenance, to the degree and in the manner required in respect of services of the kind specified in the accreditation. 31F Variation, suspension or cancellation of accreditation (1) Having regard to the purpose of accreditation under this Division, RMS may at any time vary, suspend or cancel any person's accreditation under this Division. (2) Without limiting subsection (1), RMS may vary, suspend or cancel a person's accreditation under this Division: (a) for failure to comply with a service requirement imposed by the taxi-cab network with which the operator is affiliated, but only if RMS is satisfied that the requirement is reasonable and necessary to enable the network to comply with its obligations imposed by or under this Act, and (b) for failure to comply with a service standard requiring compliance with the applicable contract determination, and (c) for failure to pay a financial sanction imposed under the standards under this Division. (3) The accreditation of a corporation is automatically cancelled when there is no designated director or manager.
3. In relation to taxi-cab drivers, the Act provides: 33 Authorities (1) RMS 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. (4) The regulations may create categories or grades of authorities. (5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a taxi-cab is being driven to a place to have it repaired or serviced. 33F Variation, suspension or cancellation of authority Having regard to the purpose of authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division.
4. I observe that the investigation report of RMS, at pages 197-183, states that the investigation of the Applicant commenced following an anonymous email complaint alleging that a TTSS participant was selling his subsidy dockets to the driver of a particular wheelchair accessible taxi (WAT). Enquiries found that several participants who had previously travelled with a particular identified taxi driver were now regularly utilising the services of a small number of other taxi drivers. Some "high-end" users were found to have travelled with the Applicant on several occasions.
5. The report states that the Applicant lodged 54 TTSS dockets during October 2013. Seventeen of those dockets did not match with corresponding network records. A further investigation which had regard to daily activity reports, driver logon and log off times, GPS coordinates, meter movements and radio booking details indicated that the relevant taxi was stationary or was not at the vicinity of the journeys detailed in the Dockets.
6. The Applicant was invited to participate in a voluntary interview with RMS officers and did so on 17 March 2014. He had been informed that anything he said in the interview would be recorded digitally and could be used against him.
7. The Applicant said that he logged on and off for each shift but did not always engage the meter because sometimes he had "private bookings" with people who already know how much they wanted to pay, so it made no difference whether the meter was on or not.
8. In cross-examination the Applicant acknowledged that he was aware that it was an offence not to run the meter for passengers, that passengers could be overcharged if the metered fare was less than the agreed price for a journey and that some of his dockets were lodged up to one or two months after the relevant journey. When asked why he did not run the meter on all occasions he said that sometimes he received jobs from other drivers and the price had already been agreed with the passenger. He also said that in relation to some of the Dockets he was paid by the passenger and on other occasions he was paid by the driver who referred the job to him.
9. The Applicant was referred to traffic offences committed by him on 1 September 2012, 14 January 2013 and 29 April 2014. He acknowledged that he had not notified RMS of these offences. He said he thought he was only required to inform RMS of such offences when his licence had been suspended.
10. During the interview on 17 March 2014 the Applicant said that he didn't have to deal with whether or not he used to meter anymore because he now knew that it could get him into trouble and he had done the wrong thing at the time. He also said that all of the jobs referred to in the Dockets had been carried out by him even though the dates and times of the jobs may not have been accurately recorded on the Dockets.
11. During the interview the Applicant said he used TTSS dockets as a form of payment to TCS for his taxi. TCS had previously accepted dockets with either "AM" or "PM" but without detailed starting and finishing times. Subsequently the Applicant was informed that TCS would not accept dockets without detailed times. The Applicant said he put times on the Dockets without realising what the consequences could be and believed there should be more awareness for drivers because he had done nothing wrong and loved his job. The Applicant also said he possibly made a few mistakes on the Dockets but that was not his intention.
12. At page 185 the investigation report noted that "Mr Mahmoud has not previously come to the attention of the Regulator and in fact only came to notice on this occasion because of his association" with two participants in the TTSS. However, the Regulator's (RMS's) own file, lodged with the Tribunal as the s. 58 documents, contains at pages 39 - 38 a warning letter dated 29 October 2010 to the Applicant from RMS asserting that the Applicant failed to disclose written details of alleged excess speeding and other traffic related driving offences which had resulted in the suspension of his driver's license on 20 August 2010. This warning was included in Mr Wozniak's hand written index but was apparently overlooked in the course of the investigation. Accordingly I find that the notation in the investigation report referred to at the commencement of this paragraph is not accurate.
13. The investigation report also stated the dockets of the Applicant which were supported by the taxi activity reports had been "meticulously completed" so that the start and finish times corresponded in most cases perfectly or almost perfectly with the times at which the meter was engaged and/or turned off. This suggested to the investigator that the Applicant was aware of the need to complete dockets accurately. In contrast the Dockets could not be matched exactly with the activity reports nor were they able to be located within an hour either side of the recorded start and finish times and in the case of two participants, could not be found at all on the alleged dates of the journeys.
14. I observe that the Applicant was adamant that each journey referred to in the Dockets had taken place even though the journey may not have started and finished on the date or time set out in each Docket. I also observe that RMS did not attempt to ascertain whether the journeys may have taken place at the times stated in the Dockets but on dates other than the dates stated on the Dockets.
15. At paragraph 1.6 in the Statement of Reasons in each Letter RMS stated: As a result of the above investigation, RMS has concluded that you actively perpetrated fraud on the TTSS scheme (sic) by submitting dockets for re- imbursement for trips that did not take place.
16. At paragraphs 3.4, 3.5 and 3.6 in the Letter dated 14 August 2014 RMS stated: The public is entitled to expect that taxi operators will not defraud (or facilitate fraud by drivers) or attempt to defraud the government through the submission of falsely claimed dockets for reimbursement through the TTSS scheme (sic), as to do so ultimately serves to take away from those in need. In this case, as you are both a driver and operator, RMS is unable to apply a separate standard of fit and proper, and has to consider your conduct as a person in the context of both authority and accreditation. The public is entitled to expect that in authorising accreditation to operate a taxi-cab service, (and thereby entrusting them with use of the scheme), RMS is able to attest to the honesty and integrity, and thereby the fitness and propriety of the operator. The investigation above has indicated behaviour RMS considers fraudulent and appears to constitute docket misuse… As a driver, you submitted representations to RMS which conceded that you may have been responsible for poor record-keeping practices. Even though the letter indicates that your record-keeping has improved, your reasoning does not convince RMS that reckless disregard, fraudulent and dishonest events have not taken place on multiple occasions. This reflects on you as both a driver and operator.
17. The purpose of Division 3 accreditation is to attest that the accredited person is considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxicab service (s. 31(2)(a)) and to attest that the accredited person has demonstrated the capacity to meet and continue to meet appropriate requirements with respect to financial viability, safety of drivers, passengers and the public, and vehicle maintenance, to the relevant degree and in the manner required.
18. In the Letter dated 14 August 2014, the reasoning process which RMS stated led to the cancellation decision focused on the requirement that accredited persons be of good repute and in all other respects fit and proper. The Letter stated that a key factor in this regard was honesty and integrity, particularly in dealing with vulnerable passengers or with schemes such as TTSS [3.1]. RMS noted that it no longer considered the Applicant to be fit and proper to hold the driver's authority and in turning its attention to the Applicant's operator's accreditation RMS could not see any real reason why the same concerns did not translate to that accreditation. Issues relating to honesty, integrity and taking improper advantage of a scheme designed to assist the disabled applied to the running of the business as much as the mere driving of the vehicle [3.2].
19. RMS considered at [3.3] "the lack of honesty and integrity shown by defrauding the TTSS scheme (sic) is such that it would shed doubt as to whether you could properly fulfil the purpose of an accreditation as it relates to financial viability of the business".
20. To deal with the last reason first, no commercial or other logical nexus or evidence is provided by RMS to support its reasoning that even if fraud had occurred that "would shed doubt as to whether you could properly fulfil the purpose of an accreditation as it relates to financial viability of the business." I reject that reasoning.
21. There is no evidence before the Tribunal that RMS disputed the capacity of the Applicant to meet and continue to meet appropriate requirements with respect to "safety of drivers, passengers and the public" or "vehicle maintenance".
22. The case for RMS is substantially based on whether the Applicant is considered to be of good repute and is in all other respects fit and proper to be responsible for the operation of a taxi-cab service. RMS stated the failure to accurately complete the start and finish times in the Dockets, which did not coincide with information from other sources, did not convince RMS that reckless disregard, fraudulent and dishonest events had not taken place on multiple occasions. RMS stated that this reflected on the Applicant as both a driver and operator. (See [33] above.)
23. I observe that the Applicant's evidence was that he acknowledged mistakes in completing all details in the Dockets. I also acknowledge Mr Wozniak's several references to specific wording on the dockets including a warning: This docket must be completed in full, signed by the passenger and initialled by the driver… By initialling this docket the taxi driver is certifying that the details completed on the docket are true and correct…
24. The purpose of a Division 5 authority to drive a taxicab is to attest 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 to have sufficient responsibility and aptitude to drive a taxi-cab in accordance with the conditions under which the taxi-cab service concerned is operated and in accordance with law and custom.
25. The RMS reasoning in its 16 July 2014 letter states at [3.2] in determining whether the driver is "fit and proper"… RMS may … take into account factors such as the conduct of the driver in the honest and lawful handling of money, whether by way of fares charged, or by use of applicable subsidy schemes, and at [3.3] the concept of "fit and proper" in this context is one of the intrinsic nature of a driver, and goes to whether a driver is possessed of sufficient moral rectitude and character as to ensure that passengers (or prospective passengers) would feel comfortable in entrusting their safety to the driver. A key factor in this regard is honesty and integrity, particularly in dealing with vulnerable passengers, or with schemes such as TTSS, which are designed to assist such passengers.
26. At [3.4] "The public is entitled to expect that taxi drivers will not defraud or attempt to defraud the government through the fraudulent submission of dockets for reimbursement through the TTSS scheme (sic)… The public is entitled to expect that in authorising drivers to drive a taxi-cab (and thereby entrusting them with use of the scheme), RMS is able to attest to the honesty and integrity, and thereby the fitness and propriety of the driver."
27. The above statements by RMS as to its reasoning for its decision to cancel the accreditation and the authority of the Applicant demonstrate that RMS alleged that the Applicant defrauded the government through misuse of the Dockets. Accordingly the Applicant is not a fit and proper person to be either accredited or hold a relevant authority.
28. The Applicant's evidence, including on oath under cross examination, is that all of the journeys referred to in the Dockets took place even though they may not have taken place on the dates and at the times set out in the dockets.
29. The Respondent submitted that, as the Applicant had not provided evidence as to the dates and times at which the disputed journeys took place, the Tribunal was entitled to draw an inference that the journeys had not taken place. In this regard the Respondent relied on the reference in the decision of the Court of Appeal in Howell v Macquarie University [2008] NSWCA 26 to the decision in Jones v Dunkel (1959) 101 CLR 298.
30. In Howell's case Campbell JA, with whom Spigelman CJ and Bell JA agreed, said at [97] and [98]: The only sense in which Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 establishes a "rule" concerns the inferences of fact that are open to be drawn when a relevant witness is not called…. "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. … in a civil trial by judge alone Jones v Dunkel licences, but does not compel, the drawing of inferences when a witness is not called. Whether either or both of the inferences are actually drawn is part of the trial judge's task of weighing the evidence. The same applies under the loosened procedural and evidentiary regime that section 73 ADT Act requires the Tribunal to adopt.
31. The Tribunal, and its predecessor the Administrative Decisions Tribunal have dealt on numerous occasions with the concepts of "good repute" and "fit and proper" as those phrases appear in ss. 31 and 33 of the Act.

Candour and contrition

1. Mr Wozniak submitted that the Applicant had not displayed candour in either the investigation or the hearing before this Tribunal as he had not identified by name the driver who had provided him with certain Dockets. Mr Packer submitted that the Applicant's answers both in the record of interview and before the Tribunal were marked by candour and contrition.
2. I observe that the Applicant acknowledged in the interview with RMS officers, and in his letter of 18 June 2014 to RMS and before the Tribunal that he had made mistakes in relation to some details on the Dockets. He said he accepted responsibility for his actions. He conceded that the Dockets did not correspond with the GPS and other records considered by RMS. I also observed that when asked for the name of the permanent driver for a particular TTSS participant, from whom the Applicant had received some Dockets, the Applicant declined to name that driver. He said that he was responsible for things he had done but he did not want to get anyone else into trouble. He also said that the name of the driver was already known to RMS. This last statement was not disputed by Mr Wozniak.
3. In the circumstances I find that the Applicant displayed remorse and substantial candour.

Hardship

1. The Applicant's evidence included that he was a first generation Australian who had taken out citizenship here; he was bringing up three children, two were his children and one was fostered, he and his wife had a mortgage and bills to pay and driving a taxi was his life.
2. In Lal v Director-General, Department of Transport [2001] NSWADT 74 Deputy President Hennessy said at [47]: Hardship to Ms Lal is not a factor which the Tribunal can take into account in determining whether or not the Director General has made the correct and preferable decision.
3. At [82] in Rifahi v Roads and Maritime Services [2014] NSWCATOD 88 Senior Member Scahill said: In keeping with the tribunal's past approach in Lal's case…the Tribunal has not taken into account the hardship that cancellation of Mr Rifahi's authority will cause to him and his family.
4. In the decision of the appeal panel in Mohammed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62 it was said at [17] the jurisdiction in this field is protective not punitive and the appeal panel adopted the words appearing at [25] in Khan v Roads and Maritime Services [2014] NSWCATOD 23: …possible hardship to the applicant, or his family, cannot be taken into account in determining the correct and preferable decision...
5. I have not taken hardship of the Applicant or his family into consideration in this decision.

Fraud and dishonesty

1. The Applicant readily acknowledged in cross examination that it was an offence not to run the meter for each job and that it was possible that overcharging may have taken place if the agreed price for a job was more than the price would have been if the meter had been running on that job. I observe that the converse is also true. That is, undercharging may have taken place if the agreed price for a job was less than the price would have been if the meter had been running on that job.
2. At pages 197 to 183 is an "Investigation Report" by a Scheme Review Officer of RMS. That report asserts at page 184 that certain jobs detailed in the Dockets "resulted in consistent overcharging" of certain passengers. However it states on the same page that another passenger appears to have been charged a fare within reasonable limits of the estimated one and that "it is not possible to retrospectively determine the exact fare payable in relation to the completed journeys". Further, on page 185 the report, when referring to the journeys recorded on the Dockets, states "it is a moot point whether the passengers were overcharged in relation to these trips". These apparent inconsistencies in the report do not provide comfort that all of the report's conclusions are, to use the wording from the warning in the Dockets "true and correct" in all respects, nor that one can confidently assert "the investigation above has indicated behaviour RMS considers fraudulent and appears to constitute docket misuse".
3. The evidence of the Applicant was that the use of an agreed price rather than using the meter was a mistake and he undertook that it would not happen again. He said that since his interview with RMS he has refused to accept any fixed price jobs and strongly asserted that he would never commit fraud or cheat or overcharge people.
4. The Applicant gave evidence in relation to his honesty. That evidence included not submitting dockets because he could not remember relevant dates and had lost his records of the trips, not using a docket left with him by a WATS passenger as a tip, destroying dockets in the presence of other drivers, including a driver who was named by the Applicant as a witness and whose mobile phone number was provided to RMS for confirmation; returning to a passenger a wallet he found in his taxi which contained several credit cards, reporting a driver smoking an illegal substance, and returning valuable property left in his taxi to passengers.
5. Mr Wozniak referred the Tribunal to the decision of Senior Member Montgomery in Salhab v Roads and Maritime Services [2014] NSWCATAD 107, which Mr Wozniak said, involved an alteration of a single docket.
6. Salhab's case involved an application to review a decision of RMS to cancel Mr Salhab's authority to drive a taxi-cab pursuant to s. 33F of the Act. A complainant alleged she was charged $199.80 for a $45 fare and received a cash receipt for $45. Her credit card had been swiped through an eftpos machine. SM Montgomery accepted the complainant's evidence in relation to the overcharging. At [90] SM Montgomery said "the Applicant's evidence in these proceedings has not been truthful. As a result of the position he adopted, the Respondent has been put to considerable expense in prosecuting the matter." At [92] "Throughout these proceedings the (Applicant) has attempted to avoid accountability for his act of dishonesty. It is also apparent that he failed to log in to the network … This failure aided him in his attempt to avoid accountability.
7. At [88] SM Montgomery said "the evidence suggests that the overcharging carried out on the afternoon of 2 July 2012 was through the use of an eftpos machine that was not issued to the Applicant. This raised questions in regard to how he was able to obtain that eftpos machine."
8. Mr Salhab's criminal record showed a May 2006 conviction for a false representation resulting in a police investigation. Mr Salhab subsequently admitted to having fabricated the incident because of financial problems and he provided a retraction statement [61]. Mr Salhab pleaded guilty to a charge of falsely representing to the police that he had been robbed and was put on a good behaviour bond for three years. He also conceded that he had forgotten to tell the Respondent about the conviction [71].
9. The above facts and findings from Salbab's case did indeed include alteration of a single docket. However those facts are materially different to the evidence concerning Mr Mahmoud in these proceedings.

"Good repute" and "fit and proper"

1. Mr Wozniak referred the Tribunal to a decision of the Appeal Panel in Mohammed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62 published on 17 March 2015, two weeks before the hearing of this matter. Mr Wozniak produced what he said was an extract of pages 108 to 113 from the transcript of the unpublished ex tempore decision appealed from, file 1420288, rather than the published decision of the Appeal Panel.
2. Shamsuzzaman involve a cancellation of the applicant's driver authority and taxi operator accreditation on the basis that RMS had come to the conclusion that Shamsuzzaman was not a fit and proper person. The tribunal had found that over a period of 2 to 3 months the appellant had forwarded a considerable number of claims for payment under the TTSS. It was not disputed that dockets lodged by the appellant for the purpose of being paid contained knowingly false attestations in that the details were not "true and correct". There had been evidence that on some occasions fares had not been paid by passengers and there was evidence that a particular passenger had used not only his own dockets but also dockets of another person. The inaccuracies in the dockets had occurred for a period of several months. The appeal panel held that the conduct of Mr Shamsuzzaman was capable of basing a finding that he was not fit and proper in the relevant sense [25].
3. Mr Packer referred the Tribunal to lines 20-25 in page 109 of the transcript produced by Mr Wozniak where Senior Member McAteer said: It is important to point out at the outset that, in this matter, no evidence has been tendered going to the applicant's repute. By that I mean no statements attesting to another person's opinion of the applicant were before me… I only make that point because of the fact that an operator and a driver has to be considered of good repute and in all other respects a fit and proper person.
4. In this matter the Applicant submitted eight letters of support by persons entitled to use TTSS dockets or their relatives/carers. These letters included the following.
5. A letter dated 10 December 2014 by Chen Wen Liang and Chen Zane confirmed that all five of the Dockets relevant to them, identified by number, were used by them during October 2013 for the provision of taxi services by the Applicant. They were uncertain of the dates in October that the trips were taken, but they were taken.
6. A letter dated 15 October 2014 by Bereha Warwar stated that she was the daughter of Anna Warwar the holder of a TTSS account, who organised taxi trips for her mother. When their regular driver could not pick up her mother he offloaded jobs to the Applicant. The Applicant did pick up Anna Warwar during October 2013 and many other times. "I never had any issues with Mr Mahmoud during this period. He was always on time and took care when loading my mother to the car."
7. Four other persons provided references in support of the Applicant attesting to his professionalism, how accommodating he was, how secure they felt with him, that he turned up on time, drove with due care, kept the exterior and interior of his taxi clean and tidy, provided extra assistance such as helping them cross roads and manage luggage and was always happy and supportive. I observe that those references did not specifically refer to these proceedings nor the circumstances leading up to these proceedings and I have given them limited weight.
8. Two other referees gave written references. They were Julia Haraksin, employed as a senior manager by the NSW Department of Justice and her husband Ian Irwin, recently retired lawyer. Both of these referees gave oral evidence by telephone to the Tribunal. They said that they were aware of the cancellation of the Applicant's taxi licence in relation to the dating of taxi vouchers, although Mr Irwin said he was not fully appraised of all of the details. Both Ms Haraksin and Mr Irwin had offered to provide references to be used in these proceedings in support of the Applicant and were aware of the proceedings before they gave the references. Their references related to a period of some four years' service provided to them by the Applicant.
9. Ms Haraksin said the Applicant "is a driver who… makes a point of going out of his way to provide clients with disability a dignified, timely and safe ride to their destination. He always ensures his vehicle is clean and the wheelchair is securely tied down, moreover he drives carefully." Mr Irwin said "I have found Ali to be honest in all his dealings with me and I know Julia has also found this to be so. I trust him implicitly as my wife's driver" and "He has been extremely reliable in all matters, arriving on time without exception and has almost always been available to provide transport even when those trips have been short and therefore not of great pecuniary value to him."
10. I observe that the evidence of Ms Haraksin and Mr Irwin was not challenged and Mr Wozniak chose not to cross-examine either of them.
11. In Nasour v Director-General, Transport NSW [2011] NSWADT 91 the President of the ADT, Judge K P O'Connor said at 34: 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'.
12. This finding was adopted in Rifahi's case and I adopt it in these proceedings.
13. In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Deputy President Hennessy said: 16 Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] 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." 17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: - 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. 18 In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; 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 and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers.
14. Applying these factors to the present case there is no evidence that the Applicant has been convicted or charged with any offences. Apart from the issues concerning the Dockets, the non-use of a taxi fare meter on a limited number of occasions over a brief period, and failure by the Applicant to inform RMS of a speed camera detection in September 2012, stopping in a school zone in January 2013 and disobeying a traffic light in April 2014, it was noted at page 185 in the s. 58 documents that "Mr Mahmoud has not previously come to the attention of the Regulator." I observed above that that notation in the investigation report was not accurate.
15. I note that the events concerning the Dockets occurred in October 2013. No evidence was produced to the Tribunal that such events had occurred at any other time in the years before the events during which the Applicant had operated a wheelchair accessible taxi nor in the period after those events in which stays were in place.
16. The evidence is that the Applicant had held a driver's license from August 1998, a taxi driver's license from June 2002 and completed the Wheelchair Accessible Taxi cab scheme driver course in January 2007. It was common ground that Certificate of Accreditation 36161 was issued to the Applicant for three licensed taxi cabs on 27 March 2009 (page 17 of the 44 page bundle of documents relied on by the Respondent).
17. The Applicant has freely admitted responsibility in respect of the matters with which RMS indicated concern and has provided several positive references from members of the community who have used his services as a taxi driver in the past and expressed a desire to resume using his services in the future. With the exception of a refusal to name a person whom he said is already known to RMS I find that the Applicant has been substantially candid and has shown remorse in relation to the events which concern the Respondent and which led to the cancellation of his accreditation and authority.

Likelihood of reoffending

1. In Rifahi SM Scahill said: 45 In considering the factor as to the likelihood that the Applicant would reoffend the Respondent noted the decision in Bedi v the Director-General of Transport 1999 NSW ADT. The former President of the Tribunal O'Connor had determined in considering the matter of a taxi driver convicted of a serious assault on his wife that it was too soon even 3 years after the assault for the administrator to have confidence in Mr Bedi even though a psychological report said he was unlikely to reoffend. The Respondent noted that it was a short time since Mr Rifahi had committed the offences. 48 The Respondent said that the Applicant's responsibility and aptitude to be a taxi cab driver was not brought into question. However the Applicant conceded that he had concealed his charges and subsequent conviction from the regulator. His answer in relation to the meaning of "pending" was unsatisfactory. Honesty was one of the three pillars of fitness and propriety and he had not been honest with the regulator about the charges or the convictions. He knew that being honest would bring forward the day on which his driver authority would be cancelled. 85 The Tribunal accepts that members of the travelling public may well consider that the offences impact negatively upon Mr Rifahi's repute. The Tribunal balances against this against the expressions of support for Mr Rifahi's repute from a range of people, including those using his services, who have been made aware of Mr Rifahi's offences. The Tribunal finds that Mr Rifahi is of good repute in relation to being the driver of a public passenger vehicle…
2. I find in relation to section 31(2)(b) and the power of RMS to vary, suspend or cancel a Division 3 accreditation that other than as discussed above no evidence was led by RMS as to any failure of capacity to meet and continue to meet the appropriate requirements for the operation of a taxi-cab service including relevant financial viability.
3. In relation to section 33(3)(b) the evidence led by RMS as to lack of "sufficient responsibility" or "aptitude" to drive a taxi-cab was the misuse of the Dockets, the non-use of the taxi meter on several occasions over a limited period and the failure to notify the Respondent of three specific traffic infringements.
4. I observe the concession by Mr Wozniak that RMS did not review all of the relevant taxi activity in October 2013 so as to ascertain whether the trips referred to in the Dockets took place on days other than the dates specified in the Dockets. Mr Packer has conceded that those trips did not take place on the dates listed in the Dockets. As noted above the Applicant's evidence on oath and under cross examination is that all of the trips did take place but that the dates and/or times noted on the Dockets may have been incorrect. I observe that the Letters were not fully in accord with the investigation report and that the report itself exhibited internal inconsistencies. The evidence is that the Applicant has disposed of the taxis he owned after his operator's accreditation was cancelled. Given the circumstances referred to above including the lessons learned by the Applicant and his expressed remorse I find that the likelihood that the Applicant will reoffend whether in relation to misuse of dockets, failing to use a taxi meter as required or failing to notify RMS of traffic infringements is low.
5. Having considered all the evidence before the Tribunal and the submissions made to the Tribunal I find that the Applicant is at present of good repute and in all other respects a fit and proper person to be responsible for both the operation of a taxi-cab service for the purpose of s. 31 of the Act and to be the driver of a taxi-cab for the purpose of s.33 of the Act.
6. At pages 42 and preceding there was evidence that taxi driver authority G06243 would have expired on 19 July 2012 and was renewed for a period of three years. There were no readily evident details of the date of expiry of accreditation 36161.
7. Having regard to the above findings on the material before the Tribunal the correct and preferable decision is that the decisions of the Respondent to cancel the Applicant's authority and accreditation are varied so that authority G06243 is suspended from 16 July 2014, and taxi operator accreditation 36161 is suspended from 14 August 2014. Both suspensions will continue until the date of publication of this decision.
8. If accreditation 36161 has expired through the passage of time before this decision is published and if the Applicant applies after the date of publication of this decision for another taxi operator authority, I direct that the Respondent have regard to this decision in considering that application. 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: 22 April 2015