Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : MOHAMED and DEPARTMENT OF TRANSPORT [2010] WASAT 68

Administrative law - Appeal from State Administrative Tribunal - Cancellation of endorsement on driver's licence - Meaning of convictions - Good character

Criminal Procedure Act 2004 (WA), s 3

Road Traffic (Authorisation to Drive) Regulations 2008 (WA), regs 7, 11, 12, 25, 28, 41, 42

Road Traffic Act 1974 (WA), s 102

State Administrative Tribunal act 2004 (WA), s 105

Chin v Legal Practice Board of Western Australia [2009] WASCA 117

Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; (2005) 141 FCR 552

Minitti v Commissioner of Police [2010] WASCA 198

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109

Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331

Smith v Director-General of Transport [2004] WASCA 64

Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)

1 ALLANSON J: The applicant is a taxi driver. On 10 December 2009 the Director General of Transport cancelled the endorsement to his driver's licence permitting him to drive for the purpose of carrying passengers for reward. On review in the State Administrative Tribunal (SAT), the tribunal affirmed the decision of the Director General.

2 Under s 105 of the State Administrative Tribunal Act 2004 (WA), the applicant seeks leave to appeal. Although the decision affects his livelihood, it is not made under a 'relevant Act' as defined in s 105(14). Accordingly, the applicant may only appeal on a question of law: s 105(2). That is, the subject matter of the appeal is the question or questions of law: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] (Buss JA); Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [49] - [53] (Owen JA).

3 The applicant originally sought leave to appeal on two grounds:

1. The learned member erred in law by finding that the appellant had character issues which were demonstrated by complaints received from the public about the appellant in circumstances where those complaints were not properly before the tribunal, were not proved, were not ultimately relied upon by the respondent, and were not the subject of any cross-examination of the appellant.
2. The learned member erred in law by taking into account matters raised by Dr Smith in circumstances where those complaints were not properly before the tribunal, were not proved, were not ultimately relied upon by the respondent and were not the subject of any cross-examination of the appellant.

4 At the hearing, the applicant sought leave to rely on two additional grounds:

1. The learned member erred in law in taking into account offences alleged to have been committed by the applicant under the Road Traffic Act or the regulations in respect of which traffic infringement notices were served for the purpose of determining whether there was reason to believe that the applicant should not hold a licence indorsed with a T extension because of the number or nature of his convictions under the Road Traffic Act or the regulations.
2. The learned member erred in law in taking into account the report of Dr Smith which was irrelevant to the existence of any fact in issue before the tribunal.

5 The respondent did not claim any prejudice should the applicant be able to rely on the new grounds. The additional grounds not only allege errors of law, but are on questions of law in the relevant sense. Both grounds raise the considerations that are relevant to the exercise of the power to cancel an endorsement on a licence which permits a person to drive a taxi. Further, both raise whether the tribunal properly construed the Road Traffic (Authorisation to Drive) Regulations 2008 (WA).

6 The applicant should have leave to rely on the additional grounds.

7 The regulation of who may drive taxi cars in Western Australia is through the regulation of driver's licences. The Taxi Act 1994 (WA) includes provisions relating to whether a person is fit be the owner or lessee of taxi plates, or the provider of a taxi dispatch service, but is not concerned with fitness to be a driver.

8 The authorisation to drive a vehicle, including a taxi, is found in the Road Traffic (Authorisation to Drive) Regulations. The Director General may grant a person a licence authorising the person to drive a motor vehicle on a road: reg 7. A driver's licence does not authorise the holder to drive for the purpose of carrying passengers for reward, in a taxi or otherwise, unless it is endorsed under reg 12: reg 11(1). Under reg 12(1) and reg 12(2)(a), the Director General may endorse a driver's license to include 'extension T.' The holder of a licence endorsed with extension T is authorised to drive for the purposes of carrying passengers for reward, including in a taxi.

(7) The Director General may make an extension T endorsement if the applicant pays the fee, if any, prescribed under the Road Traffic (Charges and Fees) Regulations 2006 for making the endorsement and the Director General is satisfied that the applicant -

(a) has, for a period of at least 3 years or periods adding up to at least 3 years, held a relevant driving authorisation; and

(b) has reached 20 years of age; and

(c) is of good character; and

(d) is mentally and physically fit to drive a motor vehicle for the purposes of carrying passengers for reward; and

(e) has successfully completed a training course or test approved by the Director General.

10 The criteria for the grant of a driver's licence generally, are found in pt 2, div 3 of the regulations. Regulation 25 sets out grounds on which the Director General may refuse to grant a driver's licence:

The Director General may refuse to grant a driver's licence to a person if the Director General has reason to believe that the person -

(a) is not of good character; or

(b) suffers from a mental or physical condition (which may include a dependence on drugs or alcohol) that is likely to, or treatment for which is likely to, impair the person's ability to control a motor vehicle; or

(c) is disqualified under a foreign law, as defined in section 44D(2) of the Act, from being authorised to drive; or

(d) should not hold a driver's licence because of the number or nature of the person's convictions for -

(i) offences under the Act or regulations made under it; or

(ii) for offences under laws referred to in paragraph (c) that are similar in substance to offences under the Act or regulations made under it.

11 The grounds for refusal in reg 25 overlap with the criteria for the grant of an extension T endorsement only in the requirement of good character. Other paragraphs reflect the different purposes of the two provisions. Regulation 12 is concerned with an extension to the authorisation conferred by a licence. It assumes the applicant for an extension is otherwise fit to hold a licence. Thus, the grant of an extension T endorsement requires the Director General to be satisfied the applicant is mentally and physically fit to drive a motor vehicle for the purposes of carrying passengers for reward. Regulation 25 has a more restricted test - the existence of a mental or physical condition likely to impair the ability to control a motor vehicle. The ground for refusal in reg 25(d) is not found in the criteria in reg 12.

12 The Director General may vary a licence. Before varying a licence to extend the holder's authorisation to drive, the Director General has to be satisfied that the person would be eligible to hold the licence as varied, and that it would be appropriate to make the variation: reg 28(3). The Director General may also vary a licence by suspending or cancelling any authorisation that the licence gives: reg 28(4). It is common ground that this regulation applies to a variation to cancel or suspend an extension T. Regulation 28(4) provides:

Before varying a driver's licence in a way that would suspend or cancel any authorisation that the licence gives, the Director General has to have regard to the principles in regulation 41 that apply to the cancellation or suspension of a driver's licence, and regulation 41(2) and (3) apply as modified for the purpose of helping the Director General to decide whether to make the variation.

(1) The Director General may, by notice in writing given to the licence holder -

(a) suspend a person's driver's licence if the Director General has reason to suspect that there are grounds on which the Director General could, if then considering whether to grant the driver's licence, refuse under regulation 25 to grant it; or

(b) suspend or cancel a person's driver's licence if -

(i) the Director General has reason to believe that there are grounds on which the Director General could, if then considering whether to grant the driver's licence, refuse under regulation 25 to grant it; or

(ii) the Director General is no longer satisfied of each of the matters referred to in regulation 24.

(2) In order to decide whether there is a basis for suspending or cancelling a person's driver's licence under subregulation (1) the Director General may, by notice in writing given to the licence holder, require the person to satisfy the Director General within the period specified in the notice, being not less than 14 days, as to any matter relevant to that decision.

(3) If the person fails to satisfy the Director General within that period or within any further period that the Director General allows, the Director General may -

(a) cancel the person's driver's licence; or

(b) impose or vary any condition on the licence; or

(c) suspend the licence until the Director General is satisfied as to the matter.

14 Finally, reg 42 provides that decisions of the Director General, including a decision to vary a driver's licence by amending or cancelling an endorsement on it, are reviewable decisions. A person aggrieved by a reviewable decision of the Director General may apply to SAT for a review of the decision.

15 The Director General cancelled the applicant's licence because of the number and nature of the applicant's convictions for offences under the Road Traffic Act 1974 (WA) or regulations made under it. The Director General thus acted under reg 25(d).

16 The tribunal affirmed the decision of the Director General on the ground set out in reg 25(d). The tribunal also referred to 'concerns about his character', and found that it had 'more than sufficient reason to believe that [the applicant] is not of good character to be licensed as a taxi driver'. The tribunal did not refer specifically to reg 12 or the criteria for the endorsement of a licence with extension T.

17 Although reg 25(d) refers only to 'convictions', the tribunal referred on occasions to the number and nature of the applicant's infringements; traffic record; demerit points; traffic convictions; and traffic offences. Ultimately, the finding, was that the applicant should not hold a licence because of the number and nature of his convictions against the Road Traffic Act and regulations.

18 In its finding on good character, the tribunal applied the grounds in reg 25(a). In referring to character, however, the tribunal referred to its 'regulatory responsibility towards the public at large and the taxi industry ... to ensure that proper standards are maintained in the said industry'. Further, it referred to 'good character for the purposes of a T extension.'

19 The tribunal had regard to a series of complaints made by members of the public about the behaviour of the applicant between January 2006 and August 2008. It referred to eight incidents, one of which was prosecuted and led to a fine. The tribunal expressed the view that all of the incidents 'must be taken into account to form a view about the character of Mr Mohamed' even if the information was not sufficient for the criminal conviction of a driver.

20 In its consideration of character, the tribunal referred to a recommendation by Dr Smith as a factor that 'weighs heavy in the mind of the Tribunal'. Dr Smith's recommendation is the subject of ground 4, and is discussed in detail below.

21 Finally, the tribunal referred to events in January 2010, when the applicant was seen by inspectors to be operating a taxi after the cancellation of his T extension.

22 For the reasons set out below, I believe the appeal should be allowed and the matter should be returned to the tribunal. I have concluded that the tribunal erred as alleged in grounds 3 and 4.

23 It is convenient to begin with ground 3. That ground identifies an error of law. The 'convictions' upon which the tribunal relied were dealt with by way of traffic infringement notices. Under s 102(7) of the Road Traffic Act, the payment of the whole or part of the penalty pursuant to a traffic infringement notice constitutes a conviction for the purposes of s 51(1)(a) and s 76(9)(b) of the Act - neither of which is relevant. Otherwise, where a prescribed penalty has been paid pursuant to a traffic infringement notice, proceedings may not be brought against a person with respect to the offence alleged in the notice: s 102(6). No conviction is recorded: Criminal Procedure Act 2004 (WA), s 3(1) and (2)(a).

24 The tribunal's reasons do not recognise the distinction between an infringement notice, and a conviction. The tribunal took into account the matters dealt with by infringement notice as if they were convictions. That, in my opinion, was to err in law by taking into account irrelevant considerations. Another way of characterising the same error is that the tribunal misconstrued the reference to 'convictions' in reg 25(d) and, as a result, asked itself the wrong question.

25 The respondent contends that the infringement notices may be relevant to the determination whether the applicant is of good character. Even if that is so, the finding made by the tribunal was that the applicant should not hold a licence because of the number and nature of his convictions. That finding proceeded from an error of law.

26 That was not the only basis upon which the tribunal arrived at its decision. It also found that the applicant was not of good character to be licensed as a taxi driver. In making that finding, the tribunal expressly gave significant weight to the recommendation of Dr Smith as evidence going to character. This is the basis of ground 4.

27 Regulation 25 refers to 'good character', and not to whether the applicant is 'fit and proper' to hold a licence. There is a significant distinction between the two concepts. In Minitti v Commissioner of Police [2010] WASCA 198 [11], Pullin JA said:

The purpose of the expression ' fit and proper person' is to give the widest scope for judgment and for rejection of an application for a licence: Hughes and Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127, 156; Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109. The discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework: Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996); Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246. It is not a concept which is to be narrowly construed or confined: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 348.

28 While 'good character' is frequently referred to as an aspect of whether a person is 'fit and proper' (see, for example, Smith v Director-General of Transport [2004] WASCA 64; Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)) it is not the same thing. An expression such as 'good character' must always be construed in the context of the particular legislation in which it occurs. But it is not a flexible criterion giving the widest possible scope for judgment. It refers, in essence, to notions of moral quality (see the extensive discussion of good character in Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; (2005) 141 FCR 552 [34]).

29 Was Dr Smith's recommendation capable of being logically probative of the applicant's character? Only part of the recommendation is quoted in the tribunal's reasons. The full document was before the tribunal. Under the heading 'Background' it refers to the applicant being required to undergo an aptitude test because of an allegation that he made suggestive comments to and touched a passenger (one of the complaints to which the tribunal referred in its reasons) and that there had been previous allegations of a similar nature. Dr Smith then sets out: 'raw score' test results in Reading, Abstract Reasoning, Maths, and Street Directory Test; the result in a Word Meaning Test; and results for Psychoticism, Extraversion Scale, Neuroticism Scale, Lie Scale, Addiction Scale, Criminality Scale (all referred to as EPQ-R); and in Neuroticism Scale, Extraversion Scale, Openness Scale, Agreeableness Scale, and Conscientiousness Scale (all referred to as (NEO-FFI). None of the scores or results is explained. I set out the remainder of the report in full:

Mr Mohamed's scores were under the cut-off points for the Abstract Reasoning Test, the Street Directory Test, and the Reading Test, the Maths Test and the Word Meaning Test.

Mr Mohamed attended an interview on 11 October 2007.

He had no difficulties with his communication in his interview, but did not perform the work samples well.

Mr Mohamed reported that he had been a taxi driver in Perth for the last two years. Prior to this he had driven a taxi in Melbourne for five years.

When I asked Mr Mohamed if he had ever had any complaints made against him as a taxi driver in Perth he replied: 'Yes, I had a complaint by a man that I had overcharged him.'

When I asked Mr Mohamed if he had ever had any other complaints made against him he said: 'No'.

I said: 'No other complaints?'

Mr Mohamed said: 'You mean Swans or DPI?'

I said: 'Any complaints.'

Mr Mohamed said a woman had complained to DPI that he had been sexually suggestive, but it wasn't true and he had denied this to DPI in the interview he had with them. Mr Mohamed denied that he had touched any woman passenger - at any time.

I asked Mr Mohamed to describe to me what had happened.

At the end of Mr Mohamed's description of this incident, I asked Mr Mohamed if there was any other time that a complaint had been made against him.

Mr Mohamed said: 'No, only one woman who said that he had swerved the car a little bit.'

Mr Mohamed said that there had never been any other complaint made against him when he was a taxi driver by any passenger - in Perth, nor in Melbourne.

Mr Mohamed was not successful in the Taxi Driver Aptitude Test because his scores were under the test's cut-points in all ability domain areas, and because of conduct (as a taxi driver) which is not consistent with that expected of a professional taxi driver.

30 Dr Smith reported on matters which may go to the applicant's suitability as a taxi driver, but it does not touch on moral qualities which lie at the heart of the concept of good character. The tribunal's references to the recommendation of Dr Smith manifest a misapprehension about what is meant by good character. Appeal ground 4 expresses the error in terms of taking into account material which is irrelevant to (in the sense that it is not capable of being logically probative of) any fact in issue. The error is also properly described in that way.

32 These conclusions make it unnecessary to consider grounds 1 and 2 in detail. The respondent contends, correctly, that if material has some probative value, the weight to be attached to it is a matter for the tribunal. Weight, in itself, is not a matter of law. Further, there was other material before the tribunal to which it could properly have regard in deciding whether there was reason to believe the applicant was not of good character. But the court should not speculate about the findings that the tribunal would make on a proper consideration of the criteria set out in the regulations.

33 Because I have found the tribunal erred in law as alleged in grounds 3 and 4, the applicant should not be denied an opportunity to have the matter reconsidered.

34 Finally, I will briefly comment on a further issue. The tribunal did not refer to the criteria in reg 12 in making its decision. At the hearing of the appeal, however, the respondent submitted that the requirement to have regard to the 'principles in regulation 41' meant that the Director General (and the tribunal) was at least permitted, if not required, to have regard to the criteria for an extension T endorsement in deciding whether to cancel the applicant's endorsement. Following the hearing I offered the parties the opportunity to make submissions on whether the tribunal erred in having regard only to the grounds in reg 25, and whether that may affect the outcome of the appeal. I have considered the submissions of both parties, but as it is not necessary to decide this question to dispose of the appeal, I have decided that I should not express any view on it.

35 Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice to grant leave: Chin v Legal Practice Board of Western Australia [2009] WASCA 117 [12]; Paridis v Settlement Agents Supervisory Board [16] - [18]; Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 337 [16]. Having regard to my conclusions, I would grant leave, and allow the appeal. The matter should be sent back to the tribunal for reconsideration.

36 Under s 105(10) of the State Administrative Tribunal Act, the court is required to give directions as to whether the tribunal should be constituted by the member who gave the original decision. That member has made strong credibility findings adverse to the applicant. It is appropriate that the tribunal be constituted by a different member for any rehearing.