Matar v Roads and Maritime Services

Applicable legislation Sections 31 and 31A of the Act provide as follows: 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. (3) The appropriate requirements are: (a) such requirements as may be prescribed by the regulations, and (b) the standards determined under section 31E. 31A Application for accreditation (1) A person may apply to RMS for accreditation under this Division. (2) An applicant is required to pay any fee fixed by the regulations for consideration of the application. (3) An application made by a corporation is not to be considered by RMS unless the corporation nominates designated directors or managers (as referred to in section 35). (4) For the purposes of subsection (3), RMS may, from time to time, determine the number of persons who are to be nominated as designated directors and the number of persons who are to be nominated as designated managers. Such a determination may be made generally or in any particular case or class of cases. (5) Procedures for making and dealing with applications may be settled by RMS, subject to any provisions of the regulations.

1. Clause 7 of the Regulation provides that an applicant must be "of good repute" while cl 8 states that the applicant must be "fit and proper person to carry on the relevant service".
2. Clause 9 establishes standards of competency to carry on the relevant service: 9 Applicant to be competent to carry on relevant service (1) The applicant must demonstrate that the applicant has the necessary knowledge and competence to carry on the relevant service. (2) In particular, the applicant must: (a) satisfy RMS as to the applicant's knowledge of the following: (i) the relevant provisions of the Act and this Regulation, (ii) other laws relating to traffic, (iii) the relevant provisions of the Work Health and Safety Act 2011, (iv) if the application is for accreditation to carry on a taxi-cab service - the laws relating to bailment of motor vehicles, and (b) if required to do so by RMS, undertake and successfully complete (or pass an examination in respect of) such course relating to the operation of the relevant service as is approved by TfNSW and conducted by a registered training organisation, or a higher education institution approved by TfNSW.
3. The issue in the present case is whether the applicant is of good repute and a fit and proper person to carry on the service of an accredited taxicab operator.

The evidence

1. The respondent called no oral evidence but relied instead on the voluminous s 58 documents and on other documentary material, including a schedule (exhibit R2) listing 67 defects in the applicant's vehicles between 1993 and 2005 (defects Nos. 45 to 54 no longer being relied on) and a supplementary list of some 80 further defects. Also tendered was a large bundle of court attendance notices and a "falsity schedule" relating to the TTSS charges.
2. The applicant tendered an affidavit sworn on 1 June 2015 (exhibit A1) in which he stated inter alia that he is 74 years of age and has been in the taxi industry since 1990, his operator accreditation having been issued in January 1993. He then outlined his license history, including the numerous compliance audits, breaches of the legislation, the variations reducing the number of vehicles he was approved to operate from 6 to initially 3 and subsequently, following an appeal to the ADT in February 2005, 5 vehicles, subject to strict conditions. On 30 August 2005, he received a show cause notice following further alleged breaches recorded in May 2005.
3. The notice expired, although his former solicitor had directed correspondence to RMS on 4 October 2005 explaining that there was an ADT appeal on foot, precluding adverse action from being taken. The respondent later confirmed that error and apologized for the administrative oversight, although the applicant believed that they had already made their decision.
4. He believed that incident to be an example of the respondent having a vendetta against him. He considered that the notice was a façade and that any submissions he made would not influence their decision, or ultimately their decision to cancel. He believed they were simply going through the formal proceedings as quickly as possible, without giving any consideration to his circumstances or evidence, so that they could cancel his accreditation.
5. He reapplied for his accreditation on 24 July 2014 in order to maintain his business and to improve the standard of the taxi industry in the community. He believed his experience and knowledge of the industry would have a positive influence on it. He had been involved in the industry in various roles for twenty-five years and had seen it develop and change significantly. He had also during that period taken on management and mentoring roles within the industry with a view to improving it for all participants and customers. During that time he had forged a strong reputation for honesty, integrity and knowledge. He is a member of Islamic communities within Wollongong and has strong ties to all sections of the community. He had been a volunteer for about 48 years in the Illawarra community in the Islamic Society, the Ethnic Community Council and had established, initially at his own cost, a weekend school for language in Berkeley. In 1977 he was awarded the Silver Jubilee Medal for his involvement in, and contribution to, the community.
6. He believes that he is a person of good and reputable character and should be entitled to hold a taxicab accreditation. He relied on a number of references and pointed out that before the orders made by the Local Court on 15 August 2008, he had had no criminal convictions. He believed he had been treated unfairly and had been targeted by the respondent, with the assistance of local members of the Wollongong taxi community, and cited a course of communications to and from the respondent as indicating such a pattern. He had also corresponded with Lylea McMahon MLA complaining about his concerns at being unfairly targeted.
7. He pointed out that one night before his ADT hearing in 2008, inspectors travelled to Wollongong from Parramatta to inspect the vehicles with the licence plates under his control. There was no reason for that to occur, and in his long involvement in the industry, he had never known Department inspectors inspecting vehicles after hours, let alone travelling from as far as Parramatta. He believed they had been looking for anything to strengthen their case before the ADT hearing and personally wished to pursue their vendetta against him. He strongly believed that he had been targeted because he had challenged decisions by the respondent and had stood up for his rights. He had also taken up actions against the respondent, which had brought him to their attention in an unfavourable light.
8. On 15 August 2008 he pleaded guilty on legal advice to, as he saw it, one charge relating to TTSS fraud. The matter related to an ongoing procedural error by one of his drivers at the time, Joseph Kalazakis, who was taking his gravely ill father to medical treatment daily using the TTSS scheme. A departmental audit found inconsistencies with the record-keeping and accuracy of those medical trips. As the driver had put the applicant's name on the dockets for those trips, the Department pursued him over the alleged fraud. The driver had put the dockets in his name so that the subsidy would be paid to him directly. Joseph made admissions to that effect to the Department before he sadly passed away.
9. The applicant believed that was a grave error and oversight on his part, which he deeply regretted. He should have taken great care and diligence with the administrative aspects of the scheme. He entered a plea of guilty to all 194 counts on legal advice to the effect that because the charges had been reduced to 1, there was a strong likelihood that the matter would be concluded without a criminal conviction. Unfortunately, he was placed on a two-year s 9 bond and was directed to pay $16,000 in professional costs, and compensation to the respondent in the amount of $4071.80. He had been legally advised that contesting the matter would cost in the vicinity of $150,000 in legal fees, even if he were successful. Further, among other reasons, he wished to avoid inconveniencing the respondent and the court and causing any embarrassment to his family. If he had been aware that the offence would have such a detrimental impact on his professional and personal life, he would have seriously reconsidered entering a plea of guilty.
10. On 17 August 2008 he pleaded guilty to 27 offences of operating a taxi without appropriate accreditation. That was an error on his part of which he only became aware when an RMS official informed him of it. As soon as he became aware of the problem, he contacted the respondent and transferred operations out of his name immediately. That action indicated his contrition about the matter.
11. He stated that his operator accreditation is essential for his long-term business continuation. He has 30 employees to whom he leases his taxi plates. The industry is being threatened by other businesses operating in the area, such as Uber, and he is concerned about losing his lessees. The Uber drivers do not face restrictions similar to those on taxi drivers and are unfairly imposing on their market. That has already seen a huge impact on the taxi industry. He is greatly concerned that unless the government does something to regulate the industry, his business interests will be greatly diminished. As he leases the plates he owns to certain accredited drivers, there is a serious risk that the drivers will become wary of entering into leases of that kind because of the competition. That jeopardizes the viability of his business. If lessees decide that they do not wish to continue with the lease, and return the plate to him, he is in a position where he cannot even drive the vehicle legally. His business would not be able to continue.
12. His experience and knowledge of the industry, as well as his standing in the community, would only improve the standard of the industry in the area. His family are the largest taxi licence holders in the Illawarra. Significant time has elapsed since his issues with the respondent had been raised and dealt with. He had shown contrition for the mistakes he had made and had been punished by the respondent in the courts. He hoped that he could now proceed with his life.
13. In oral evidence the applicant said that since the 2008 convictions he had received an infringement citation relating to driving a taxi for a few hours on one afternoon, an incident which he had reported to the respondent himself. He had driven to the house of a lessee who wished to discuss reducing the value of his lease. As he was not there, the applicant drove around to try out the vehicle's new GPS system to see if it was as bad as the driver had said. He had donated the proceeds to Mission Australia and so notified the respondent. Officers of the respondent thanked him for his actions but said they had to ticket him for $500.
14. The applicant tendered a letter from himself and his wife to the officer-in-charge of the Unanderra RTA inspection station dated 24 October 1996 (exhibit A2) pointing out that a number of matters that an inspector at an authorized inspection station had listed as defects had later been found by the repairer not to be defective at all, and requesting a re-inspection of those defects by an RTA inspector. This led to a meeting at the Giles & Price workshop with an RTA inspector, Mr Allan Archer, and other persons. The applicant made notes of the discussions (exhibit A3) which led to the respondent's inspector acknowledging that certain claimed defects were in fact not faults at all. The applicants than wrote to the officer-in-charge of the department on 5 November 1996 (exhibit A4) setting out the results of an inspection and repair process by Shalala Motors of West Wollongong relating to the original inspection report. Some repairs were carried out as required but other items mentioned in the report were found not to be defective. Serious defects such as brakes, brake cylinder and power steering were found to be free of faults and no work was done to them, except a minor adjustment to the handbrake. Subsequently, a defect notice issued in May 2005 relating to the alarm system and security camera on taxi T6095 had been found by a technician to be in perfect working order.
15. In cross-examination the applicant said that he no longer operated taxicabs but needed the accreditation because he owned licenses and leased the plates to accredited persons. When it was put to him that when he did have taxis, they had defects, he replied, "Naturally, yes". He agreed that while he did dispute some of the defects listed in exhibit A4, he did not dispute that there were other defects and that he had received infringement notices. He also acknowledged that when he first became accredited he signed a declaration to the effect that all vehicles would meet the prescribed standards at all times.
16. Some of the defects related to bald tyres but, he said, whether they complied with the standard or not was "a matter of opinion". He had checked the vehicles every day. He had been placed on a different inspection scheme in 1997 on the grounds of claimed serious mechanical defects, but it was "a matter of opinion" between mechanics as to whether the defects were real or not. A tyre could be acceptable for one mechanic but not for another.
17. The applicant was then asked about the infringement notice issued by the department on 28 July 2000 relating to an incident where departmental officers and police had found that the number plates displayed on taxi T6055 were registered to another taxicab. The Department's letter described that matter as a serious breach of accreditation standards. The applicant said there had been no intention to change the plates. The drivers had taken the plates off the cars when washing them and replaced them on the wrong vehicles. When the error was found, the plates had been put on the correct vehicles. He did not know why the drivers had changed the plates.
18. The applicant conceded that in another instance there had been no safety sticker on the inside boot release catch. This requirement had been introduced because there had been an instance where a driver had been accidentally locked in the boot of his vehicle, which had then caught fire. The sticker was meant to show the driver where the catch was, and to be visible in darkness. Other audits resulted in the finding of faults and the applicant's accreditation was varied from six cabs to 3, and subsequently increased by the ADT on appeal to 5 cabs, subject to conditions. Defects had continued and ultimately a show cause notice had been issued and the applicant's accreditation had been cancelled.
19. The applicant acknowledged that subsequently, on 17 August 2007, he had entered guilty pleas to 27 offences of operating a taxi without holding appropriate accreditation, under s 30(1)(a) of the Act. He had also pleaded guilty to charges under s 178DD of the Crimes Act relating to 194 separate TTSS journey dockets. He acknowledged that also, saying that he had pleaded guilty on legal advice. Asked whether many of the journeys listed had never taken place, he replied that the driver had done the journeys. When it was put to him that he had lodged false documents, he replied that he did not know. In one instance the passenger had never left the hospital; but he said he was not the driver and had simply submitted the documents. He acknowledged that he had pleaded guilty to lodging false documents and had been placed on a bond as a result.

Applicant's submissions

1. On behalf of the applicant Mr Ellicott explained that the evidence for his client was contained in his affidavit (exhibit A1), in the character references, the documentary material and in his oral evidence. He had not been cross-examined on the referees' responses attached to his affidavit. The evidence addressed the requirements set out in Trlin v Commissioner of Fair Trading [2003] NSWADT 222, especially as regards candour. He had been fully responsive to the respondent's questions in cross-examination.
2. The files showed that he always responded to the problems raised by the respondent, sometimes writing letters against his own interests. On occasion the respondent had made wrong decisions, as was shown by the file note dated 28 November 1996 (exhibit A5) relating to the defect report prepared by an authorized inspection station at Kemblawarra, which included the statement that the power steering pump was leaking oil and the brake master cylinder was also leaking. The applicant had protested to RTA about the report and their inspection revealed that the parts were not actually leaking but were simply dirty. The file note inter alia stated that "RTA interviewed both the ATIS proprietor and his mechanics and advised them that errors of this nature are inexcusable and more care should be exercised when actually determining the nature of the defect".
3. He had also been responsive before his accreditation had been cancelled and had not taken every point. While he might not have agreed with them, he did not pursue all possible points.
4. There were, inescapably, some defects, but in cross-examination the applicant had not denied them. The affidavit and his oral evidence showed that he did not resile from his responsibility. He had complied with the respondent's audits, including by undertaking a refresher course. Throughout his licence history there had been no cases of injury and no serious safety incidents. There had been no issues after 2008 except for one instance of operating without accreditation when he was testing a GPS system. There had been no other complaints; he was aware of his obligations under the Act and regulations.
5. As regards the criminal matters involving 27 counts of operating taxis without accreditation, his affidavit addressed the circumstances. The penalty, $100 per offence, showed that the court considered that there was a low level of culpability. In relation to the 197 counts of TTSS fraud under s 178BB of the Crimes Act, the penalty was a s 9 bond with no conviction, together with payment of costs and compensation. The circumstances were also explained in exhibit A1. The fact that the proceedings led to a bond even though there was fraud involved showed that his culpability was at the lower end of the scale. The fact that he pleaded guilty, relying on legal advice, attested to his candour. He had not wanted to put the driver under stress as his father was gravely ill in hospital and the driver, Joseph, was his main carer at that stage. The offences had been caused by the driver's actions without his knowledge.
6. The references show that that he is prominent in the community and of good repute and character. His referees' responses were not challenged in cross-examination. Mr Ellicott acknowledged that given the principles enunciated in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, the references could be clearer but the referees are themselves prominent people. Further, the applicant is not under any current investigation.
7. Mr Ellicott said that the applicant is passionate about the industry. In light of the threat posed by the Uber system, the industry needs cool heads and his experience is relevant. He held accreditation for a long time and there had been no relevant matters beyond 2008, all of which was relevant to the Trlin tests. The applicant is of good repute and faces his responsibilities. He admitted his contraventions in a manner that was contrary to his own interests. His mistakes would not recur. His accreditation could be made subject to conditions, such as a requirement to attend appropriate courses. He had worked hard in the industry but admits the mistakes he made.

Consideration

1. Section 52(1) of the Act gives this tribunal jurisdiction to review the RMS refusal of operator accreditation to the applicant. Under s 63 of the Administrative Decisions Review Act 1997 the tribunal is to decide what is the correct and preferable decision having regard to the material then before it and the applicable law. In so doing it may exercise all of the functions conferred or imposed by any relevant enactment. It is not restricted to considering the material that was before the respondent, but may have regard to any relevant material before it at the time of review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
2. Under s 31 of the Act, the purpose of accreditation is to "attest" that the person meets the requirements of the Act. The term "attest" is stronger than the concept of being satisfied of something, and envisions the decision-maker assuring the public that the accreditation holder is of good repute and meets the other criteria in s 31(2). As the Appeal Panel pointed out in Director General, Transport New South Wales v AIC [2011] NSWADTAP 65, [12], "The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present context".
3. As the requirements of s 31 are cumulative, the inability to attest to any one of them is fatal to an entitlement to accreditation. 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 responsible for the operation of a taxicab service" and to have "demonstrated the capacity to meet and continue to meet the appropriate requirements" as set out in the section.
4. Questions of possible hardship to an 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, [47]. In this case the applicant has stated that refusal of accreditation will adversely affect his business, but has not adduced any evidence of hardship in any event.
5. In this context a person's reputation is to be sought in the estimate of his moral character entertained by some specific group of people, such as neighbours, work colleagues or those with whom the applicant associates in his occupation or profession. "Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed most cogent evidence, of bad reputation": Re T, at 393.
6. The question whether a person is of good repute is related to, but different from, the question whether he or she is a fit and proper person for a particular purpose. Being considered to be of good repute is a threshold issue within s 31(2) of the Act. If the applicant is not of good repute, there is no need to consider whether he is a fit and proper person to be responsible for the operation of a taxicab service.
7. Although conviction for offences is cogent evidence of bad reputation, it is not conclusive. An assessment of repute is a matter for the tribunal, weighing all the evidence. All the circumstances of the case must be taken into account in assessing a person's suitability to retain accreditation: see Saadieh v Director-General, Department of Transport [1999] NSWADT 68. Whether a person's history is known in the community is a factor in assessing what weight should be given to the evidence of repute. A positive estimation despite knowledge of a troubled history would normally weigh in favour of the person. A witness's opinion of the applicant may be accepted as evidence of his repute, although the weight to be given to it will depend on the circumstances in which the witness formed the opinion.
8. Among the attachments to the applicant's affidavit (exhibit A1) there are several references. One is from Mr Alex Ianella, an accountant who assessed the applicant's financial records and declared that he has the financial capacity to operate fifteen vehicles in such a manner as to meet the accreditation standards. Mr John Bernardi, manager of Dymocks at Wollongong, has known the applicant and his family for several years and is "aware that Mohammed has had some issues with Transport in the past. I am also aware that he is applying for further accreditation". He speaks highly of Mr Matar's character, community standing and expertise. M/s MS Bisley, solicitor, also understands that the applicant's accreditation was cancelled a number of years ago, but believes he enjoys a good reputation in the community and is a fit and proper person to hold taxi accreditation.
9. Six other references were filed on behalf of the applicant on 10 June 2015. Although they were never formally tendered, the respondent has had notice of them and I take them into account. Mr Ziad Sultan attests to the applicant's reputation but displays no awareness of his record with the respondent. Mr Fadi Alhindi is "aware of the issues that Mr Matar has had with the Ministry of Transport, yet I still hold Mr Matar in high esteem" and considers that he is well regarded in the industry. Dr S Azam also speaks of the applicant's community standing and says he would be an asset to the industry, but appears unaware of his licensing history and his criminal proceedings. Mr Lupco Mitrevski knows that the applicant "had an issue" with the respondent some years ago but makes supportive comments about his reputation and fitness to hold accreditation. The same is true of Mr S Khaled's reference, as well as that of Mr David Crowe, CEO of Figtree Private Hospital, which has made use of his courier service for the hospital for the past four years.
10. Thus it will be seen that the applicant has produced four references that specifically relate to questions of repute, but two of them display no awareness of the licensing context of these proceedings. The other two state that their authors are aware of the applicant's "issues" with the respondent, but not in any detailed and specific way. That, however, could simply be a case of the referees preferring to use euphemistic language.
11. I consider that there is sufficient evidence in the references and the accounts of involvement in community good works to enable the tribunal to conclude that the applicant satisfies the requirement that he be of good repute, and I so find. The next step is to determine whether he is "in all other respects fit and proper to be responsible for the operation of a taxicab service".
12. As the ADT explained in Loye v Director General, Department of Transport [2000] NSWADT 145, [49], "Assessing fitness and propriety involves considerations different from those relevant to "repute", as this Tribunal discussed in Singh v Director General, Department of Transport [1999] NSWADT 96 at paragraphs 25 to 28…. It is possible that a person is of good repute, but that on examination they are found not to be a fit and proper person for a particular purpose". The question of 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: Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321, [63]. In this context it is to be noted that the standard expected of taxi operators is even higher than the high standard expected of drivers. That is reflected in the penalty of 1000 penalty units placed on those operating a service without the proper accreditation.
13. As Mr Wozniak pointed out, most of the decided cases in this field relate to drivers, not taxicab operators. One that does is Lal v Director-General, Department of Transport [2001] NSWADT 74, in which Hennessy DP affirmed accreditation cancellation in relation to the operator of a fleet of 40 cabs (a much larger number than in this case) who had incurred 47 defect notices. The focus of the proceedings was whether Ms Lal had demonstrated the capacity to meet safety and maintenance standards under s 31(2)(b), a requirement that is separate from the "fit and proper" criterion. It will therefore be dealt with separately.
14. The particular approach to be taken in a case where a person's license has been cancelled but a new application is made was considered in Trlin, which dealt with a motor vehicle dealer: The issue of whether a person who has been determined not to be a fit and proper person to hold a dealer licence has been so reformed that she or he is now fit and proper, is a matter of judgment. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past misconduct, the Applicant's explanation of the misconduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation" (at [46]).
15. Applying Trlin, the first matter to be considered is the nature and seriousness of the original misconduct. In this case the applicant had a record of maintenance and safety defects beginning relatively early in his career as a taxi operator. A defect schedule (exhibit R2) listing the defect notices contained in the s 58 documents records (items 44 to 56 were not relied on) was taken into evidence. Nine defects were observed at an inspection on 13 April 1993, only three months after operator accreditation 14178 was issued to the applicant. They included a worn front suspension bush, exhaust system needing securing, a worn rear tyre, a stoplight inoperative, number plate lights inoperative and the differential breather tube broken.
16. An inspection on 5 September 1996 found a total of 27 defects including excessive play in wheel bearings, worn tyres, worn out disc pads, exhaust leaks and unsatisfactory handbrake. A reported leaking power steering pump and leaking master cylinder were found on further inspection not to be defective, but the applicant did not dispute the other defects. Subsequently the applicant was the subject of regular defect notices, some of which were for cosmetic or regulatory matters, but others related directly to safety. On 12 March 1997 a parking brake was found to be inoperative, on 5 December 1997 a rear tyre was completely worn and on 16 February 2001 front tyres were below minimum tread.
17. Defect notices continued to be issued on a regular basis as a result of over 60 inspections, becoming much more frequent in the 2002 to 2005 period. Approximately 80 other defects were found at other times. At least a third overall were directly relevant to safety, including problems with suspension, brakes, exhaust, lights, steering and tyres. In a few instances defect notices later proved to be incorrect, but except as stated above, the defects were not generally disputed by the applicant and he said he had attended to them. Clause 15(a) of the Regulation, however, requires an operator to ensure that the vehicles meet the registration, safety and roadworthiness requirements "at all times". During the period 1994 to 2004, the respondent conducted five compliance audits of the applicant's accreditation which, in addition to the defect and safety infringements, identified numerous breaches of the Act, the Regulation and accreditation standards relating to record keeping, maintenance records of vehicles, vehicle maintenance and vehicle cleaning programs. As a result of the serious nature and the number of deficiencies detected during audits, as well as inspection of vehicles operating under the accreditation, the applicant was directed to attend a one-day operator accreditation refresher course. He was also issued with a number of notices to show cause in relation to continued breaches of the legislation, including continued failure to maintain records and for offences relating to vehicles not complying on inspection.
18. In oral evidence Mr Ellicott pointed out to the applicant that there was a further infringement in the 2012 to 2013 period that was not mentioned in the affidavit exhibit A1. This involved the incident when he drove a taxi for an afternoon to ascertain whether the GPS system was as bad as the driver had said. He had realized that he had made a mistake and that he was not accredited and donated the $118 he had collected to Mission Australia, then telephoned the respondent and reported the matter. At a meeting in Parramatta the respondent's officers had thanked him for his explanation but said they had to ticket him for $500. How he could possibly have made a "mistake" in the first place about not being accredited in 2012 or 2013, and had apparently driven around collecting fares, when his accreditation had been cancelled in 2005, was not explained.
19. Of particular significance are the applicant's criminal convictions relating to his taxi operations. On 17 August 2008 he was convicted of using an uninsured motor vehicle and fined $175. On the same day he was convicted of using an unregistered class A motor vehicle and was fined $175 for that offence also. On the same day he was convicted at Wollongong Local Court of operating a taxicab without holding appropriate accreditation and was fined $100 on each of 27 counts and ordered to pay a contribution towards professional costs of $6270.
20. On 15 August 2008 he pleaded guilty to one charge under s 178BB of the Crimes Act (since repealed) consisting of 194 counts of fraud under the TTSS scheme (the applicant's affidavit paras 52 to 65 appears to confuse this charge with the 27 counts of operating without accreditation). The applicant was ordered to enter a s 9 bond for two years, to pay court costs and a contribution of $16,000 towards professional costs and compensation to the respondent of $4071.80. According to the solicitor's letter to the respondent dated 24 October 2008 (part exhibit R1), he was not ordered to undertake community service because an assessment report indicated that his medical condition was such that he was not fit to do so.
21. Of the TTSS offences, the applicant said they were "grave error on my behalf and one which I deeply regret. I should have taken great care and diligence with the administrative aspects of this scheme". In cross-examination, however, he was not quite so willing to accept responsibility in the matter, declaring it to be entirely the driver's fault and that he had pleaded guilty only on legal advice, implying that he was free of any personal culpability whatever and had pleaded guilty for purely strategic reasons. When specifically asked if he had lodged false documents, he replied "I don't know", an extraordinary position to take in the circumstances.
22. In relation to the 27 offences of operating a taxi without accreditation (not to be confused with the 27 defects identified on the inspection report referred to above), his explanation was simply "This was an error on my behalf and I only became aware of it when an RMS official notified me of same. As soon as I became aware of the issue I contacted the RMS and transferred to operations out of my name immediately" (exhibit A1, paras 64 - 65). Again, his infringement by operating a taxi in 2012 or 2013, at least seven years after his accreditation had been cancelled, was explained as a "mistake".
23. It strains credulity to believe that breaches on such a scale by a taxi operator could have been the result of mere oversight, and I take leave to question the applicant's explanation. I do not, however, make any finding on that point. Plainly, however, the four separate convictions mentioned above evidence serious dereliction of the applicant's duties under the legislation.
24. Trlin then requires consideration of the applicant's candour and his explanation for the contraventions that he has accumulated. The applicant's evidence is less than convincing in that regard. His explanation for the TTSS offences was essentially that they were nothing to do with him and that he had pleaded guilty on (impliedly defective) legal advice even though he was completely innocent. He claimed to have been unaware of the violations that resulted in his being convicted on 27 counts of operating without accreditation until an RMS officer pointed it out to him - an egregious oversight, if an oversight it was. It had been another "error on my behalf". But there was no explanation of how such a blatant error could have been made by a responsible taxi operator.
25. When it was put to him that his vehicles had accumulated defects, he replied "Naturally", as if loose exhaust fittings, inoperative lights and other safety-related defects were purely natural phenomena. While normal wear and tear are indeed likely to lead to defects if proper monitoring is not carried out, his attitude to his statutory obligations in that regard seems rather too relaxed. He expressed the view that mechanical defects could be largely a matter of opinion and that a tyre that was considered smooth by one mechanic might be passed as acceptable by another. But smooth tyres are not a matter of opinion; they are capable of precise measurement, as are a range of other defects.
26. More broadly, the applicant asserted on several occasions that the respondent was conducting a "vendetta" against him. Mr Wozniak categorized that as a mere "conspiracy theory". While in several instances the respondent did indeed make incorrect decisions about defects or infringements, there is no cogent evidence to support the proposition that its actions were motivated by malice or personal animus.
27. On all the evidence, therefore, there is insufficient material to indicate that the applicant has demonstrated an appropriate degree of candour or has offered any kind of reasonable explanation for the contraventions that led to the cancellation of his accreditation. Even if one does assume that he is making a genuine attempt at frankness, the explanations he offers portray a lack of diligence and responsible management on an extensive scale.
28. The tribunal must then consider the significance of the effluxion of time. Mr Ellicott pointed out that the contraventions took place several years ago and contended that the applicant would not now make the same mistakes. It is notable, however, that in the later years before the accreditation was cancelled, the number of defects recorded increased, rather than decreasing. Since 2005, of course, the applicant has not been in a position to contravene the accreditation provisions, apart from the curious episode in 2012 or 2013 of his operating for an afternoon without accreditation and then reporting the incident to the respondent.
29. The next Trlin factor to be considered is the applicant's present circumstances and repute. The matter of repute has been discussed above. As regards his present circumstances, the applicant states that his business interests require him to hold operator accreditation. He leases taxi plates to 30 employees, and there is a risk that because of current competitive challenges the drivers will become wary of entering leases with him. If lessees of one or all of the plates decide they do not wish to continue with the lease, he is in a position where he cannot drive the vehicle legally. Further, his knowledge and experience in the taxi industry as well as his community standing would only improve the standard of the industry in the area.
30. As was established in Lal, possible hardship to the licensee caused by cancellation or refusal is not relevant in these proceedings. And given his infringement record, it is not clear that his regaining accreditation would be an unqualified blessing for the taxi industry in the Wollongong area.
31. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40, quoting from Mayathisathit v Registrar of Motor Vehicles [1986] ACT 165, "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi" (at [55]). That approach, mutatis mutandis, applies also to the higher standards expected of an accredited taxi operator. A member of the public who was aware of the applicant's record would almost certainly prefer to use a taxi from a different operator's fleet.
32. The totality of the evidence therefore leads to the conclusion that the applicant, despite being of good repute in the community, is not a fit and proper person to hold taxicab operator accreditation, and I so find.
33. The third matter to which the tribunal is required by s 31(2) to attest if it is to find in favour of granting accreditation is that the applicant has "demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to" financial viability, the safety of drivers, passengers and the public, and vehicle maintenance in the manner specified in the regulations. Hennessy DP's decision in Lal turned on the applicant's failure to satisfy that criterion.
34. On the basis of Mr Ianella's evidence as an accountant, it may be accepted that the applicant has the financial capacity to operate fifteen vehicles in such a way as to meet accreditation standards. As regards the other requirements, Mr Ellicott correctly pointed out that there have been no accidents or other safety incidents involving taxis operated by the applicant. That fact, however, is insufficient to satisfy the standard set by s 31(2)(b). In light of the applicant's long history of vehicle defects, many of them safety-related, as set out above, the tribunal could not "attest" that the applicant has "demonstrated the capacity to meet and continue to meet the appropriate requirements" in relation to the safety of drivers, passengers and the public. Even less has he demonstrated the capacity to continue to meet the appropriate requirements in relation to vehicle maintenance. If anything, he has demonstrated the opposite.
35. In Lal, Hennessy DP noted that the applicant in that case "offered no reasons for her failure to comply with the government's standards for vehicle maintenance" and pointed out that "Had Ms Lal given a plausible reason for that failure and a strategy for ensuring that she could comply with the required standards in relation to 1 to 3 vehicles, I may have considered a variation to the decision" (at [52]). Such an explanation not having been forthcoming, her Honour affirmed the cancellation of the applicant's accreditation. In the present case also, the applicant has offered no cogent reasons for his failure to meet the required standards, nor has he put forward a strategy for ensuring compliance with those standards in the future.
36. The respondent cited Health Care Complaints Commission v Litchfield [1997] NSWSC 297 in connection with the possibility, which Mr Ellicott had raised, of an accreditation subject to conditions. In that case a doctor had been suspended following complaints that he had sexually assaulted one or more female patients but had been provisionally permitted to practice subject to certain conditions, including that he should undergo psychiatric assessment. He was acquitted of criminal charges arising out of the complaints. The Court of Appeal held that the condition was inappropriate as the commission would not be able to take appropriate action if the assessment showed the doctor was not fit to practice. Mr Wozniak submitted that the condition had shown that the doctor was not, or might not be, fit and proper to practice medicine, a principle that was particularly important in the present context in which the tribunal was required to "attest" to the applicant's suitability. Mr Ellicott contended that Litchfield was distinguishable because in the present case there had been no accidents or serious safety incidents, and therefore no harm done, whereas in Litchfield sexual assaults had taken place. While it is true that there have been no injuries or serious safety incidents, there has been harm done in the sense that the applicant has engaged in taxi operations that offer a substandard service, including in relation to safety. For that reason inter alia the tribunal is unable to attest to the applicant's suitability.
37. The totality of the evidence, therefore, does not permit the tribunal to attest that the applicant is a fit and proper person to be responsible for operating a taxicab service or that he has demonstrated the capacity to meet and continue to meet the appropriate standards within the meaning of s 31(2) of the Act and cl 9, and the other applicable clauses, of the Regulation.
38. The decision under review 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: 30 September 2015