Passenger Transport Act 1990.
Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321
Bronze Wing Ammunition Pty Ltd v Safe Work New South Wales (No. 2) [2016] NSWSC 98
Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16
Source
Original judgment source is linked above.
Catchwords
Civil and Administrative Tribunal Act 2013Passenger Transport Act 1990.
Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321Bronze Wing Ammunition Pty Ltd v Safe Work New South Wales (No. 2) [2016] NSWSC 98Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16Director-General, Transport New South Wales v AIC [2011] NSWCATAP 65Drake v Minister for Immigration and Ethnic Affairs [1997] AATA 179(1979) 46 FLR 409Haideri v Director-General, Department of Transport [1999] NSWADT 61Health Care Complaints Commission v Do [2014] NSWCA 309Khan v Roads and Maritime Services [2014] NSWCATOD 128, [2015] NSWCATAP 265Lal v Director-General, Department of Transport [2001] NSWADT 74Loye v Director-General, Department of Transport [2000] NSWADT 145Mayathisathit v Registrar of Motor Vehicles (1996) ACT 165Mohammed v Director-General, Department of Transport [2000] NSWADT 47Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10New South Wales Bar Association v Meakes [2006] NSWCA 340Naziry v Director-General, Ministry of Transport [2004] NSWADT 40
Saadieh v Director-General, Department of Transport [1999] NSWADT 68
Judgment (7 paragraphs)
[1]
REAsons for decision
The applicant Mr Afzal Nazir applied to this tribunal on 5th April 2016 for review of a decision made by the respondent on 9th March 2016 to refuse his applications for authorization to drive taxicabs and private hire vehicles, which had been lodged with the respondent RMS on 21st January 2016. The applicant had not sought an internal review of that decision.
Previously the applicant had held a private hire vehicle authority issued on 23rd May 2007, a bus driver authority issued on 1st February 2010 and a taxicab driver authority issued on 19th July 2011. Six complaints had been recorded against him as a taxi driver between August and September 2011. At the hearing the respondent adduced evidence, which is outlined below, of the contents and circumstances of those complaints.
At a directions hearing held on 16th August 2016, the tribunal directed the applicant to file and serve a list of witnesses and authorities, together with affidavits or statements and submissions by 13th September 2016. The applicant did not comply with those directions and filed no materials.
[2]
Applicable law
Section 33 of the Passenger Transport Act 1990 (PT Act) provides as follows:
Division 5 Taxi-cab drivers
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.
Section 33B of the PT Act states:
33B Grant or refusal of application
(1) Having regard to the purpose of authorisation under this Division, RMS may grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application.
(2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant.
(3) An applicant is required to pay any fee fixed by the regulations for the authority when first issued.
(4) An authority is to be given in writing by RMS to the authorised person.
(5) The authority may specify the category or grade of the authority, and (without limitation) may specify the kind or kinds of vehicles for which the authority is granted.
Section 40 of the PT Act provides:
40 Authorities
(1) RMS may, by the issue of authorities under this Division, authorise persons to drive private hire vehicles, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised private hire vehicle driver".
(2) A person who drives a private hire vehicle is guilty of an offence unless the person is an authorised private hire vehicle 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 private hire vehicle, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle:
(i) in accordance with the conditions under which the private hire vehicle 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 private hire vehicle is being driven to a place to have it repaired or serviced.
Section 40B states:
40B Grant or refusal of application
(1) Having regard to the purpose of authorisation under this Division, RMS may grant an application and authorise the applicant to drive a private hire vehicle, or may refuse the application.
(2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant.
(3) An applicant is required to pay any fee fixed by the regulations for the authority when first issued.
(4) An authority is to be given in writing by RMS to the authorised person.
(5) The authority may specify the category or grade of the authority, and (without limitation) may specify the kind or kinds of vehicles for which the authority is granted.
The case was argued on the basis of whether the applicant is "a fit and proper person" within the meaning of ss 33(3)(b) and 40 and did not canvass the question of whether he is of "good repute". The issue in these proceedings is therefore whether the applicant is "a fit and proper person" to be the driver of a taxicab or a hire car or both.
[3]
Respondent's evidence
The respondent did not call oral evidence but relied on the s 58 documents (exhibit R1). Between pages 127 and 146 are reports of six complaints made against the applicant between August and September 2011 relating to his conduct as a taxi driver in the Newcastle area. In each case his identity as the driver was confirmed. The first one was from another male driver and the other five were all from women passengers.
The first report states that on 6th August 2011 he accepted a hiring from the Kent Hotel, Hamilton, for four people. He was then seen to stop at the next intersection, where he opened the boot of the taxi and a man climbed into the boot compartment. He drove off with the passenger in the boot. This report was not in writing, but an officer of the respondent spoke to the witness, who confirmed the observation.
The next related to a hiring towards Coles at Mount Hutton on 7th August 2011 for a man and his 8-months pregnant wife. While they were boarding the taxi, he spoke rudely to them saying, "Hurry up and get in the cab", before driving off at high speed, accelerating over speed bumps.
The third complaint also related to a hiring from the Kent Hotel at Hamilton, this time on 14th August 2011, and was documented by a detailed email from the woman passenger. She related how he had quickly appeared to become highly agitated and began asking numerous questions which to her seemed like personal accusations relating to her work in employment services. He asked her why she felt that people with ethnic backgrounds are discriminated against when applying for work in Australia, making her feel instantly uncomfortable. He then went on to tell her that he had numerous qualifications, such as truck driver, and is a qualified engineer and that he went to Western Australia to find work in the mines but could not obtain any. He said "It's bullshit" as he was more qualified than any Aussie c***". His language caused the passenger to become quite frightened and feel threatened. By the time they stopped in front of her house he had been yelling (though not at her personally) about several different matters for a total of at least 20 minutes.
While stopped in front of her house he said that all Australian women are sluts and deserve to be raped because of the way they dress. He said his wife would never dress like Aussie women do as she is a respectable person and has studied for many years, and in Australia you only have to study for four years, which meant that no Australian could possibly be as educated as his family. He said he came from a very rich family and did not need to be put through the "bullshit" that Australians had put him through. He had paid $2000 to enter Australia and had not simply arrived on a boat and that people should respect him. He said Australians do not care about true relationships, they all just want to f*** each other and then f*** them off. He then began striking the steering wheel while yelling about how dumb Australian people are as they constantly mix up his race and said how stupid could they be, that they could not tell where he was from.
[4]
Applicant's evidence
By way of opening, the applicant referred to the report that he had placed the passenger in the boot and asked if there had been any evidence of it in writing. Similarly, in relation to the complaint by one of the women that he had touched her, he questioned whether there had been any written complaint.
The applicant had not filed a witness statement, but gave oral evidence on affirmation, starting by explaining that his father had died in 2005 and his mother was alone in Pakistan and was sick. He had had to travel there five times in the past five years. RMS had said they had attempted to contact him in order to hear his comments about the complaints made to the taxi operator, but he had been overseas at the time and had not received any mail for nine months. When he returned he found awaiting him a letter of suspension, a cancellation letter and a letter calling upon him to return his authority cards. Accordingly he went to the RMS office at Parramatta in about April 2013 to return the authorization cards, and had been given a receipt for them (exhibit R1, p 181).
When departing for overseas he had not planned to remain away so long, but had to do so because of his mother's sickness. When he arranged to return to Australia, he found that his return flight had been cancelled. He was thus late in returning but was unable to contact the respondent's solicitor because at that stage he did not know who was representing RMS.
He holds a master's degree in information technology from Pakistan, but is not a lawyer and had thought that the tribunal's direction was only seeking references and a police record certificate showing that he had no convictions. Having been overseas from 2011, returning only in April 2013, he had not had any opportunity to comment.
He denied all the allegations, saying that they were all based on word-of-mouth. He always drove in a professional manner in accordance with the training he had received. Australia has stringent laws relating to domestic violence, so that if he had touched a passenger she would automatically go to the police. Such touchings were very serious, especially at the weekend when 99.9 percent of passengers were intoxicated.
In cross-examination the applicant agreed that, if true, all the allegations were serious. Further, he now knew that all but one had been made by women. It was put to him that in the course of a month, there had been five very serious allegations made against him by different women. He replied that he did not know. English was not his mother tongue and perhaps he had not communicated well. In his Pakistan university studies, English was the language of instruction in relation to information technology and other technical matters, but for other subjects it was Urdu. He never asked customers personal questions and could have been misunderstood. When asked what the passengers could have misunderstood, he replied that he had no idea but that he would not have said those things.
[5]
Applicant's submissions
The applicant said that he had tendered five references from genuine people who know him, and who could confirm that if they were called. He had misplaced the cover sheet he had prepared for the references, which made them look "funny".
As regards the girl who had talked to her mother about the alleged incident, it would have been a very serious matter and if it had happened, it would be very unlikely that she would not have gone to the police.
Referring to the decided cases cited by Mr Wozniak, he said that he was not responsible for the conduct of others. At that time he was not properly skilled in the English language and there was therefore a language barrier. In Pakistan his family had employed a servant who was deaf, as a result of which he had developed a habit of speaking loudly, which could be interpreted by some people as yelling. There were cultural factors involved, and he had a tendency to speak more loudly when excited, which could be misunderstood. He also has a tendency to gesticulate because of his language difficulties, and that was the cause of the complaints.
There were instances where some passengers who could not pay their fare had made allegations against a driver in order to avoid paying. In such cases he did not believe in arguing, but at that time he did not have the necessary skills and was worried because his mother was sick. The events took place nearly 5 years ago. He now had the full capability of complying with the prescribed standards. All the complaints were "verbal". It would be unacceptable to take his license as he was supporting his mother, his wife and their three children in Pakistan. He was not currently working but wished to do so.
[6]
Consideration
The tribunal has jurisdiction to hear and determine appeals from decisions of the respondent to refuse or cancel a driver authority, pursuant to s 29 of the Civil and Administrative Tribunal Act 2013 and s 52 of the Passenger Transport Act 1990. The Tribunal's function in relation to such appeals is laid down in s 63 of the Administrative Decisions Review Act 1997:
63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
It is well established that in considering an application for review, the tribunal is not restricted to a consideration of the material that was before the respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1997] AATA 179; (1979) 46 FLR 409.
In these proceedings there is no onus of proof as that term is generally understood: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] - [30], [34]. It was previously thought that the applicable standard of proof was that laid down in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The Supreme Court has recently said in Bronze Wing Ammunition v Safe Work New South Wales (No. 2) [2016] NSWSC 988, [75] - [78], however, that such is not the case. Although the tribunal is not bound by the rules of evidence, in those circumstances it is appropriate in a case of this nature for the tribunal to treat itself as required to be satisfied to the standard laid down in s 140 of the Evidence Act 1995, which provides as follows:
140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.
[7]
Order
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: 05 October 2016
He then began talking about how rude Australians are and that he is overqualified but can only get a job as a taxi driver, and that was not his fault. He hates it because he gets no respect from passengers, describing an incident of crude and offensive behaviour by an intoxicated passenger the night before. The driver then said that if that happened in his country he would pull out his AK 47 and put 14 bullets in his head, pretending to fire a gun in her direction. The passenger became apprehensive for her safety and tried to call a family member on her mobile telephone without his noticing, as she was afraid that if he saw her doing so, matters might have escalated even further. She pretended to agree with him and made several attempts to leave the taxi. When she finally did so, she immediately called 133300 to report the incident. She said she did so more for the driver's safety, as she felt that if he expressed his opinions in that way to someone else, they might not have been as understanding and tolerant. Overall she had felt extremely frightened, uncomfortable, threatened and highly insulted by the applicant's behaviour.
The fourth complaint was in relation to a booking from Waratah on 14th August 2011. The passenger complained that during the journey he had asked intrusive questions about her relationship and whether she had a daughter, making her feel uncomfortable.
Next, on 28th August 2011, he had accepted a hiring from Fannys Nightclub in Newcastle. An email from a passenger complained that during the trip he had made suggestive comments towards her, asking if she and her friend were virgins or if they had experienced sexual relations before. When they replied in the negative, he asked if they had any friends who wanted sexual relations right now, and began to talk about the subject. He claimed that not having sexual relations was bad for their health and if it were not for religious reasons, why did they not wish to engage in sexual activity. When they made it clear to him that they did not wish to discuss the matter any more and that it was none of his business, he simply laughed and kept talking about it. The driver had made them very uncomfortable, and at one stage they felt unsafe, to the extent that they caused him to drop them off early so that they did not need to be in the cab with him any longer.
The fifth complaint related to a radio booking from the Lass O'Gowrie Hotel in Wickham on 8th September 2011. In an email dated 23th September the woman passenger said that almost as soon as she boarded the taxi, the applicant made her feel uncomfortable. He was making strong comments concerning the importance of "man and a woman" being together, adding that it was better in the old days when the man chose a wife, not like today when the women were so difficult. He made assumptions about her sexual orientation by reason of her clothing: "You're wearing pants so I am thinking you are a lesbian", he said. He emphatically pressed her to agree with his comments, repeatedly saying loudly "You agree with me?" She told him that she agreed because she feared the outcome should she disagree. For the duration of the journey she was thinking about how she could either leave the taxi before her destination or determine an alternative drop-off point so that the driver would not discover her place of residence. There were other comments that made her fear for her safety, but she was so focused on getting away from the driver that she could not recall what else was said.
The next complaint related to a hiring from the Brewery, Newcastle, on 11th September 2011 and was the subject of a detailed email from the female passenger. She stated that she had consumed three drinks and a glass of wine in the course of about seven hours, from 4 pm to 11 pm, and was not intoxicated at the time she went home. She boarded the first taxi in a waiting line and in accordance with her usual practice, she recorded the taxi number in her telephone. One of the first things the driver said was that she looked "hot" tonight, then asked her name, age and street address. He enquired whether she had a boyfriend, how long they had been together, whom she lived with, what school she had attended and what she did for a living.
When he asked if she had a boyfriend, she said, "I lied and said that I did. I said that my boyfriend was older than me and is living at home with me, my parents and my brothers." She answered the rest of his questions but lied about most details. By this time she was most uncomfortable with his curiosity about her life. He continued to talk about her relationship and asked why there was an age gap between them, and "why I was out alone if I'm such a 'hot' girl". As he continued to talk in that vein, she was attempting to parry his questions.
The passenger explained that she had a birthmark on her right leg just above the knee that was not covered by her skirt. He noticed it and touched her leg, saying "Oh, what's happened to you?" She replied that it was a birthmark and brushed his hand off her leg. He said that he noticed that her leg was cold when he touched it the first time and after some further comments turned his hand over and rubbed her thigh up and down, travelling further up her leg each time. She brushed his hand away again and placed her bag on her legs to try to keep his hands off.
In the meantime he was driving along an unusual route that took the cab into an industrial area where there were few cars or pedestrians at 11:00 pm. By that time she was quite frightened and somewhat angry. He asked her if she liked Indian food and whether she would like to go out sometime for some curry. He kept saying that she was so pretty in and he would love to take her out. The passenger sent a text message to her mother to ask her to meet her out the front if she was still awake, just to make sure that she knew she was on her way home. Her mother promptly called back and the passenger let her know she was in a taxi, so that if she did not come through the door in a few minutes, something must have happened to her. She asked the driver to stop at the end of her street so that he did not see which house she entered. She paid for the taxi and got out immediately, running to her house. He was still sitting in the taxi until she went inside. She entered the house, locked the door and then heard the car turn around and depart. Her mother made a formal complaint the following day about her daughter being "groped on the leg by the driver" and his inappropriate comments.
RMS wrote to the applicant on 5th October 2011 inviting him to attend an RMS office for an interview to respond to the allegations. A message to a similar effect was also left on his mobile telephone on 11 October 2011. No response having been received from him, his driver authorities were suspended on 20th October 2011 and a show cause notice (SCN) was issued to him calling for an explanation as to why his driver authorities should not be cancelled. He requested an internal review on 8th November 2011, denying all the allegations, but the decision to suspend his authorities was affirmed by the internal review on 14th November 2011.
On 5th January 2012, the applicant attended an RMS office stating that he had not received the letter offering him the opportunity to attend an interview. He was told that the only way to appeal from the decision was through this tribunal's predecessor, the Administrative Appeals Tribunal. His driver authorities were cancelled on 15th March 2012 and he was issued with a cancellation notice requiring him to return his authority cards to RMS immediately. As he had not returned the authority cards returned to RMS by 26th April 2012, he was issued with an infringement notice on that date. The cards were returned to RMS on 30th April 2013 (i.e. a year later).
On behalf of the respondent Mr Wozniak then pointed out that one of the complainants had quoted him as saying he had spent some time in Western Australia hoping to obtain work in the mines but had been unable to do so, which was all true. He was unable to explain how she would have known those things if he had not told her, but simply replied that in a liberal society people could believe anything or wear anything. Asked if he was suggesting that she had made up the rest of her statement, he replied that the respondent should call her and ask her.
By way of re-examination, Mr Nazir said that during the legal process for suspension of his authorization, he had not had a proper opportunity to explain his position. The rules had not been followed. It was difficult to communicate with drunks and he had not been completely competent in the skills needed for dealing with them. Some things arise from cultural differences and perhaps he had not been equipped to deal with them and lacked English skills at the time, leading to his being misunderstood.
The applicant tendered five written references (exhibit A-1). Mr Pankaj Heer of Rosehill, New South Wales, praised the applicant's friendship qualities and said he is a very trustworthy, reliable and respectable individual whom he had never known to be in trouble or in any bad situation. Mr Abdul Rauf of Lakemba made similar comments, including that he had never known the applicant to be in trouble or in any bad situation. Mr Samir Muhammad wrote that he had known the applicant to be a very positive caring person, a friend who was always lending a helping hand. He had known the applicant for three years and regarded him as a positive person with a positive outlook on life.
Mr Akhtar Ali of Granville wrote that he had known the applicant for many years and that he is a responsible, trustworthy and decent person. An addition in handwriting stated that Afzal Nazir had been known to him for the last two years, is a "cleanskin" and thorough gentleman. Mr Muhammad Ali, also of Granville, wrote that he had known Afzal for many years and had formed a very positive opinion of him. He had always been honest, helpful, intelligent and considerate of others, and most importantly a reliable and great friend. He felt honoured to be asked to provide a character reference. All the references bear dates in September 2016. There is also a national police history check showing that he had no disclosable court outcomes or pending charges recorded in any Australian police jurisdiction as at 20th January 2016.
The complaints against the applicant are serious, in most cases individually but certainly when taken together. They bear on his fitness and propriety to hold taxi driver and hire car authorities and arose directly out of the exercise of the functions in relation to which the tribunal must attest that he is fit and proper.
Under ss 33(3) and 40(3) of the PT Act, the purpose of accreditation is to "attest" that the person meets the requirements of the Act for a taxi driver or hire car driver. The term "attest" is stronger than the concept of being satisfied of something, and envisions the decision-maker assuring the public that the applicant is a fit and proper person for the purpose and meets the other criteria in ss 33 and 40. 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 give special emphasis to it in the present context".
Authority refusals, cancellations and other orders also serve the public interest by establishing a disciplinary structure for an occupation that not only directly protects the public from harm, but also helps to preserve public confidence in that industry and its members. The Court of Appeal explained that function in a health care context Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]:
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise (at [35]) (emphasis added).
The Court of Appeal gave further guidance on the operation of the deterrent factor in New South Wales Bar Association v Meakes [2006] NSWCA 340, [114]:
[It] may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against a repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services.
Obviously, as is implicit in Sodiki (infra), the standards required of a medical practitioner are different from those expected of a taxicab or hire car driver. Nevertheless, the same underlying considerations of regulatory policy operate: protection of the public, specific and general deterrence and the maintenance of public confidence in the industry and the regulatory scheme. They are reflected in the objects of the PT Act as expressed in s 4(e): "To encourage public passenger service that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services …." The Court of Appeal's reference in Meakes to the "vulnerability of many who require such services" finds an echo in the fact that women travelling alone in a taxi late at night may be in a position of some vulnerability, especially if they have partaken of alcoholic refreshment.
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 the authorities in question will adversely affect his family in Pakistan, but that cannot be treated as a relevant factor.
The issue in this case is whether the applicant is a fit and proper person to hold the driver authorities for which he has applied. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, [63], Mason CJ in a much-cited passage observed that:
The question whether a person is fit and proper is one of value judgement. 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.
Fitness and propriety is a question of fact to be determined objectively on the basis of all the evidence: Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16, [20]. It is to be assessed in the context of the nature and purpose of the activities that the person is seeking to undertake: Sodiki v Roads and Maritime Services [2013] NSWADT 145, [38]. The question before the tribunal is thus whether the applicant is a fit and proper person to drive a taxicab or hire car.
In Saadieh v Director-General, Department of Transport [1999] NSWADT 68, Deputy President Hennessy set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. Those factors were:
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.
As was observed in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40, [53], Hennessy DP also noted in Saadieh that in assessing the last-mentioned factor, several considerations are relevant. They include: the length of time since the offences were committed or the complaints 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.
In the context of taxi drivers' authorities, the remarks of the president of the Australian Capital Territory Administrative Appeals Tribunal in Mayathisathit v Registrar of Motive Vehicles (1996) ACT 165 have often been applied. In that case the test was stated to be:
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.
In this case the applicant has no criminal record for non-traffic matters, but the essential principle is that the decision-maker is asked to place himself or herself in the position of a member of the travelling public and consider whether that person would object to the applicant as the driver of the taxi.
In considering the Saadieh factors in the context of the present case, one should begin by noting that the first criterion in the list does not apply, as the applicant has no non-traffic convictions or charges. Nor does the third factor, for while Mr Nazir's traffic record is not unblemished, neither is it egregious, and the respondent does not rely on it.
The second factor is the nature, seriousness and frequency of complaints against the applicant. In this case the applicant was the subject of six complaints within a short period, August - September 2011. The applicant denies all of them and submits that they are all simply "word of mouth", unsupported by any written evidence. Indeed, I have not had the benefit of oral evidence from any of the complainants, but it is not correct to say that there is no written record. All of the complaints from women about inappropriate sexual advances, remarks or touching are supported in writing. The complaint relating to the Kent Hotel trip on 14 August is the subject of a lengthy email. There are descriptive emails in relation to the 28 August and 23 September incidents. The most serious episode, the 11 September fare from the Brewery, which appears to have involved an indecent assault, is the subject of a detailed, signed letter by the complainant. Another of the complaints was confirmed by an interview with the witness.
The incident in which the applicant was seen to transport a passenger in the boot constituted improper and potentially dangerous conduct. The rudeness to the 8-months pregnant passenger and her husband, also involving apparently deliberately bad driving, is likewise unacceptable. The applicant gave no evidence and presented no submissions in relation to those two reports.
As regards the four incidents involving intrusive and embarrassing questioning and haranguing of women, and apparently unlawful touching, placing the women in fear for their safety, there are precedents in the decided cases. In Haideri v Director-General, Department of Transport [1999] NSWADT 61, the tribunal affirmed the cancellation of the authority of a driver who engaged in an unwanted sexual monologue with a female passenger and propositioned her in a crude manner. In Mohammed v Director-General, Department of Transport [2000] NSWADT 47 the tribunal again upheld cancellation of an authority of a driver who asked an 11 year-old girl to his place, asked a woman passenger to engage in sexual relations, talked at length with a 16 year-old girl passenger about sexual matters, scratching his groin area and eventually masturbating. Hennessey DP, while noting that in relation to the last-mentioned incident there had been no oral evidence from the girl, was satisfied that all the episodes had occurred and that they were all completely unacceptable.
A case sharing several features with the present one is Khan v Roads and Maritime Services [2014] NSWCATOD 128; aff'd [2015] NSWCATAP 265, in which the tribunal and the Appeal Panel affirmed the cancellation of a taxi driver authority. While driving a woman passenger home in the evening, the driver after a short time began relating to her an episode in which a couple had engaged in sexual relations and the back seat, and on another trip a homosexual couple had also done so, inviting him to join in. He then told her of an occasion on which he had been driving at intoxicated female passenger to West Pymble when she had initiated sexual contact with him, and then invited him into her home for an assignation, which invitation he accepted. The passenger felt uncomfortable about his raising these matters but was concerned about getting home and laughed in order to not to provoke action from the driver. As she was paying her fare he exposed his member to her and pulled her right hand to try to make her touch it. She declined and alighted from the cab.
In the present case, while denying the incidents alleged, the applicant submitted that his limited English skills at the time may have resulted in misunderstandings. But on the evidence, he was if anything too voluble in the English language, and in cross-examination was unable to suggest how any misunderstanding could have arisen. He argued that cultural differences might also have played a part, but again did not explain what such differences might have been or why they would have resulted in the offending conduct (and there is no evidence to suggest that such conduct towards women would be considered acceptable in Pakistan). In any event, it was not the responsibility of women passengers to tolerate objectionable conduct on allegedly cross-cultural grounds. As regards the touching incident, he contended that it could not have happened, because if it had, the passenger would have reported the matter to the police. That, however, is a non sequitur. Persons may not wish to become involved in police procedures in all cases, and in this instance the passenger's mother immediately complained to the taxi operator.
He submitted that it is sometimes difficult to deal with intoxicated passengers, but there is no evidence that any of the complainants was in that condition. He also asserted that women will sometimes make a false complaint against a driver in order to avoid paying, but there is no evidence of any disagreement over fares or excessive charging before the tribunal.
False accusations of sexual misconduct can be and have been made on occasion, for a variety of reasons. But quite apart from the principles of similar fact evidence, the probability that five separate women would independently and at different times make separate but cognate unfounded complaints of sexual harassment, or in the case of the pregnant passenger inconsiderate rudeness, against the same driver must be slight indeed. I therefore find that the six events occurred as described.
As was the case in Khan, the applicant has no criminal convictions and an imperfect but unremarkable record of traffic offences. In that case the applicant had five previous complaints against him (none of them of a sexual nature) over the whole 13-year period since his arrival from Pakistan, whereas Mr Nazir accumulated six complaints, four of them of a sexual nature, in the space of two months. The complaints involved intentional acts of bad driving practice, rudeness and prolonged and repeated sexual misconduct placing women or girl passengers in fear for their safety. There were also offensive racist slurs against Australians, and Australian women in particular. The applicant's conduct was serious and involved multiple incidents over a relatively short period, all directly arising out of his functions as a taxicab driver. They are such that a member of the public, especially a woman, who knew of his record would be unlikely to board a taxi if he were the driver. If tolerated, his conduct would also tend to reflect adversely on the regulatory system and on the taxicab industry at a time when it faces increasing competition.
The fourth Saadieh factor is the applicant's reputation in the community. The respondent submitted that the references tendered by the applicant were of no value as they all appeared to have been typed on the same computer and were in very similar terms. Even if one were to take them at face value, however, in light of Loye v Director-General, Department of Transport [2000] NSWADT 145 they can be given little weight as they reveal no awareness of the purpose of the reference or of the nature of the conduct complained of.
Finally, the tribunal must consider whether the applicant is likely to re-offend or be the subject of further complaints. As he points out, the incidents complained of occurred five years ago. But he has accepted no responsibility for his misconduct. His approach has been to deny everything, while maintaining a fallback position that there might have been a series of misunderstandings, an improbable proposition in light of the evidence. There is no evidence of any change in his attitudes or patterns of behaviour or of any efforts at self-improvement. He claims that he now has better interpersonal skills and would not be involved in any similar conduct in the future, but there is little evidence to support that. I find that if he is issued with the authorities sought, he is likely to be the subject of further complaints.
He submits that he is responsible for the support of his mother, his wife and three children in Pakistan, although that is somewhat difficult to reconcile with his claim to be a member of a very wealthy family in that country. At all events, pursuant to Lal, that is not a matter to which the tribunal can give any weight.
I therefore find that the applicant is not a fit and proper person to drive a taxicab or a hire car. The decision under review must be affirmed.