Re the Legal Practitioners Act 1970 AND Re the application of Frank Del Castillo to be admitted as a Legal Practitioner [1998] ACTSC 131 (11 December 1998)

Supreme Court of the ACT|2009-12-04

CITATION: Rojas v Ministry of Transport [2010] NSWADT 126

APPLICANT Orlando Rojas PARTIES: RESPONDENT Ministry of Transport

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Review of decision to suspend taxi-cab authority

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 B v Director General, Department of Transport [2001] NSWADT 203 Farquharson v Director General, Department of Transport [1999] NSWADTR 53 CASES CITED: Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Sterjovski v Director General, Department of Transport [2002] NSWADT 10 Williamson v Director General, Department of Transport [2001] NSWADT 3

APPLICANT Orlando Rojas REPRESENTATION: RESPONDENT Ministry of Transport

ORDERS: The decision of the Respondent is set aside.

1 The Applicant is sixty-one years old and has been driving taxis for over twenty-two years.

2 In February 2009, he was charged with one count of Sexual Intercourse with person under the age 10 years and one count of Sexual Assault (Category 4) and Commit Act of Indecency, pursuant to the Crimes Act 1900.

3 On the basis of those charges a delegate of the Director General of the Ministry of Transport determined that the Applicant was not a fit and proper person to be the driver of a taxi-cab and that it was not in the public interest for him to continue to do so. The delegate decided to suspend his authorisation to drive taxi-cabs immediately, in accordance with section 33F of the Passenger Transport Act 1990 ("the Act").

4 The Applicant seeks review of that decision. The application to the Tribunal was lodged in June 2009. No internal review was undertaken and it appears that the fault lies with the Applicant's former solicitors. On 14 August 2009 I agreed to deal with the matter in the absence of an internal review and extended the time for filing of the application with the Tribunal. I also granted a stay of the determination. That stay has remained in place since that date.

Applicable Legislation 5 Section 33(3) of the Act states: 33 Authorities … (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.

6 Section 33F of the Act states: 33F Variation, suspension or cancellation of authority Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authority under this Division.

Evidence 7 No oral evidence was presented to the Tribunal. The documentary evidence comprised: the Respondent 's file including the NSW Police Facts Sheet and the Statement of Reasons for the suspensions; a statement of the Applicant dated 18 November 2009; a reference letter from Bobi Velev, dated 19 November 2009; a reference letter from Luis Abarca dated 19 November 2009; and articles provided by each party in relation to the issue of allegations arising out of 'recovered memory'.

8 The background to this matter is not in dispute. The Applicant was charged with sexually assaulting his niece on two occasions in 1987 or 1988 when his niece was seven or eight years old. The Applicant has denied the allegations. The Applicant's niece raised the allegations following counselling about three years prior to the bringing of the charges.

9 It is not in dispute that the Applicant has an otherwise unblemished criminal record, the charges do not relate in any way to his conduct as a taxi driver, and he is not alleged to have committed any criminal conduct within the last twenty-two years. It is not in dispute that the Applicant has been the subject of some complaints in relation to his conduct as a taxi driver and that in August 2007 he was directed to undertake and successfully completed a Customer Service module from an approved training school. The Respondent does not assert that the Applicant's conduct as a taxi driver warrants suspension of his driver authority.

10 The Respondent's case is essentially as set out in the reasons for determination which stated: "The reasoning process that lead to the decision The Delegate of the Director-General has to be satisfied that the holder of a taxi-cab driver authority is of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab. The laying of serious criminal charges against Mr Rojas reflects on him meeting those criteria whilst the charges are outstanding. It is not appropriate for the Delegate of the Director-General whose responsibilities relate to taxi-cab driver authorisation, to go behind the information supplied by NSW Police so as to examine the weight or otherwise of the Police case. In this case the Delegate of the Director-General has considered it in the public interest to exercise her authority under Section 33F of the Passenger Transport Act to suspend Mr Rojas' taxi-cab driver authorisation. In this regard it is considered that being charged with 'sexual assault (category 4) - assault and commit act of indecency' and 'sexual intercourse with person under the age of 10' means the Delegate of the Director-General can no longer attest to Mr Rojas' fitness to be the driver a taxi-cab whilst the charges are outstanding. In determining 'public interest'' one has to formulate it in terms of the perceptions of 'a reasonable member of the travelling public'. It is likely that a reasonable member of the travelling public would regard the laying of serious criminal charges against Mr Rojas as sufficient to justify immediate action against his authorisation to drive a taxi-cab. This suspension will remain in place until such time as the charges are finalised by the court and the Ministry assess the outcome of the matter or the authority expires. Based on the above facts and law it has been determined to suspend your taxi-cab driver authorisation." 11 Mr Wozniak submitted that the Respondent was entitled to act on the material which was available to it at the time the determination to suspend the Applicant's authority was made. The Respondent is under no obligation to wait until the District Court matter is finalized prior to taking action against the Applicant. On the basis of the information that was available to it at the time, the Respondent determined to suspend the Applicant's authority pending the outcome of the District Court matter. If the charges are not proven, the Applicant's authority will be reinstated. If a conviction is recorded against the Applicant then his authority will be cancelled.

12 Mr. Wozniak referred to earlier Tribunal decisions in support of his submission that the determination is warranted because of the severity of the charges. In particular he relies on decisions in Farquharson v Director General, Department of Transport [1999] NSWADTR 53 ("Farquharson"), B v Director General, Department of Transport [2001] NSWADT 203 ("B"), Sterjovski v Director General, Department of Transport [2002] NSWADT 10 ("Sterjovski") and Williamson v Director General, Department of Transport [2001] NSWADT 3 ("Williamson").

13 Mr. Wozniak submitted that the alleged conduct is such that a reasonable member of the travelling public, informed of the allegations, would object to the applicant as the driver of the taxi. Accordingly, he submits that the decision to suspend the Applicant's authority is the correct and preferable decision.

14 Mr. Wozniak further submitted that is not appropriate for the Tribunal to consider the strengths or weaknesses of the case against the Applicant. The Tribunal must determine whether the Respondent made the correct and preferable decision. He submitted that in the circumstances, the decision made by the Respondent was the correct and preferable one.

15 The Applicant's case is essentially as set out in the written submissions filed on his behalf. Mr Kaufmann submitted that a reasonable member of the travelling public would not object to the Applicant driving a taxi, pending trial, for the following reasons: a. the charges relate to activities that were alleged to have taken place in 1988. For the entirety of the intervening period, the Applicant has held a taxi driver authority and driven taxi-cabs in NSW, without incident; and b. prior to these charges being laid and subsequently, the Applicant's criminal record has been unblemished.

16 He submits that the Applicant has maintained his responsibilities, in line with professional policies to be a character of a "good repute" and be a "fit and proper person," In the twenty years following the alleged commission of the offences, the Applicant has not demonstrated any behaviour that could cause a reasonable member of the travelling public to fear for their safety.

17 Mr Kaufmann submitted that while the Tribunal cannot examine the weight of the Police case, it can take into account the fact that was granted bail with no reporting conditions and the Court has since dispensed with his bail. He says that this demonstrates that the Court does not consider the Applicant to be a risk to the general public.

18 He submits that it is procedurally unfair to exclude a person from the right to earn an income, based on unsubstantiated claims. He contends that the decision was procedurally unfair and unreasonable and should be set aside.

Discussion 19 The role of the Tribunal is to determine whether the decision of the Respondent to suspend the Applicant's authority is the correct and preferred decision having regard to the relevant facts and the applicable law: section 63 Administrative Decisions Tribunal Act 1997. In this case, the relevant decision was on the basis of the charges that were laid against the Applicant.

20 The meaning of "good repute" has been canvassed in several cases. Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 said that: "A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession… Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation".

21 The Applicant relies on two testimonials that suggest that the author is aware that the Applicant is facing criminal charges in relation to allegations of a sexual nature and nevertheless considers him to be a person of good repute.

22 The Tribunal has also considered the meaning of a "fit and proper person" on numerous occasions and has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 ("Bond") at [63] where he stated: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose witness and propriety are under consideration".

23 The decision of the Tribunal's President in Farquharson is often referred to in matters where the relevant determination is one to suspend an authority on the basis of charges that have been laid but not determined. Farquharson has been followed in numerous decisions of the Tribunal. As noted by Mr Wozniak, it has been followed in B, Williamson and Sterjovski. In my view it is useful to consider in some detail the views expressed by the President in that matter. The President stated: "20 ... Regulatory schemes which provide for the issuance of licences on the basis of satisfaction as to a licensee's fitness and character usually include, as part of their continuing oversight powers, a power to suspend the licence for public interest reasons. While it is the case that a person charged with a criminal offence must be presumed innocent until proven guilty, it does not follow that consequences that lie outside the criminal law may be avoided. Civil consequences typically attach to the laying of criminal charges in various categories of public sector employment. Commonly a public sector employee may be stood down with or without pay, depending on the statutory provisions. 21 An administrator of a licensing scheme would be expected to respond to advice that a regulated person had been charged with a serious criminal offence, especially one arising out of circumstances that directly bear on the activity in relation to which the licence has been issued. ... 22 In considering whether to exercise any discretion to suspend or otherwise interfere with the licence, an administrator can not reasonably be expected to enquire into the strength or weakness of the case against the licensee. ... Similarly a review tribunal can not be expected to go behind the information on which the administrator has relied to the extent of examining the strength and weaknesses of the prosecution case. ... 27 A taxi driver has a continuing responsibility to ensure that he is of "good repute" and a "fit and proper person". Clearly the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character. The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J). 28 Even an acquittal may leave unresolved in an administrator's mind questions as to the reputation and integrity of a licensed individual. In a recent case involving the question of disclosure in the context of an application for admission to the legal profession, where the applicant had after receiving professional advice not disclosed a serious criminal charge of which he had been acquitted, the Supreme Court of the Australian Capital Territory (Miles CJ, Gallop and Madgwick JJ) observed: "It is true that the bare facts that a person has been tried for a charge, even a very serious one, and acquitted do not logically tend to the detriment of the person's character nor of his or her fame. But experience shows that matters are often otherwise. The acquittal may be entirely upon unmeritorious grounds or it may occur in circumstances which nevertheless reveal untoward collateral behaviour on the part of the accused." ( Re del Castillo , [1998] ACTSC 131, 11 December 1998 at [28]) 29 The administrator in this case was entitled, I consider, to have regard to the serious charges laid against the applicant. They may be properly regarded as affecting his "good repute" even though judgment may need to be reserved as to whether any negative conclusion should be formed about fitness and character, pending evidence at committal and trial, and the verdict. 30 The administrator is entitled to take account of the general circumstances giving rise to the charges, without being called on to examine the strengths and weaknesses of the prosecution case or the nature of any defences. Powers of suspension are, by their nature, designed to provide a temporary form of intervention pending further developments or further consideration or action by the administrator. A power of suspension, as compared to outright cancellation, does carry the (marginal) benefit for the licensee in not placing at risk the licence itself. … 34 The factors which favour the applicant in this case are the following: his previously unblemished criminal history; his unblemished taxi driving and taxi operating history; the lack of connection of the charges to the use of a taxi; and the restrictions placed on his bail which require him not to travel outside the Hunter Region, thereby avoiding the South Coast area where his wife and children now live. As noted earlier, the applicant also faces the real practical difficulty of conducting his taxi business; and that to be financially viable as an authorised operator he needs to be able to drive the cab. 35 The administrator did not deny these considerations, but argued that the sole fact of the charges was sufficient in its own right to justify suspension. Ordinarily it would not be acceptable for an administrator charged with looking into questions of good repute and character not to look at the broad picture and simply to rely on a single negative factor as conclusive (see, e.g. Haining v Commissioner of Police [1999] NSWADT 7). This case raises the difficult question of whether situations can arise where an administrator is permitted to form a conclusive negative view as to issues of repute and character based on a single factor. 36 In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence. 37 A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165. The applicant sought review of a refusal to grant a taxi driver's licence, the refusal being based on a criminal record revealing a number of convictions for offences involving dishonesty. The application was successful. The Tribunal was satisfied that the context that had given rise to the convictions, a gambling addiction, had been successfully addressed. It was satisfied as to the genuineness of the applicant's desire to rehabilitate himself. In the course of its decision the Tribunal (Professor LJ Curtis, President) put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing in this way, at [12]: "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." ... 42 This is a case, I consider, where a reasonable member of the travelling public, informed of the outcome of the bail hearing and the conditions imposed, would nevertheless be inclined to the view that the objective seriousness of the charge is sufficient in its own right to permit the administrator to suspend the licence. 24 The discretion to suspend a licence or authority must be exercised, keeping in mind the activities, which the person is authorised to undertake, and the objectives of regulating those activities (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond.

25 In my view, the circumstances of this matter are sufficiently different to those of Farquharson that it would not be acceptable for an administrator charged with looking into questions of good repute and character not to look at the broad picture and simply to rely on a single negative factor as conclusive.

26 I agree that the Tribunal cannot reasonably be expected to enquire into the strength or weakness of the charges against the Applicant for the purpose of reviewing the Respondent's decision to suspend his authority. However, on the basis of Farquharson, and decision that have followed it, the Tribunal is entitled to take account of the general circumstances giving rise to the charges and to look at the broader picture. The relevant factors to be taken into account are: (a) the seriousness of the allegations which have been made against the Applicant; (b) the circumstances in which the conduct is alleged to have occurred; (c) the fact that charges have been laid, but there has been no finding of guilt; (d) previous complaints against the Applicant in respect of the authority he has held under the Act; and (e) the Applicant's otherwise good character.

27 As I have already mentioned, the Applicant denies the criminal charges that have been laid against him, and he will be given every opportunity to defend them when they are ultimately heard. It is unlikely that those proceedings will be concluded for some time.

28 There is no doubt that the allegations against the Applicant are serious. However, the alleged offences do not relate to conduct which occurred in the performance of his duties as a taxi driver. They relate to conduct that is alleged to have occurred some twenty-two years ago. The Applicant has not been the subject of any other alleged criminal activity. During the Applicant's considerable period as a taxi driver he has been the subject of very few complaints. The references on which the Applicant relies suggest that he is a person of good repute, notwithstanding the charges brought against him.

29 As the Deputy President stated in Williamson, the suspension of an authority is justified where the person's reputation or fitness to drive is sufficiently compromised by allegations or findings of impropriety for it to be in the public interest that the person not drive until those issues are addressed or resolved.

30 In my opinion, in light of the fact that: (a) the hearing and determination of these charges are unlikely to be determined for some time; (b) the offences did not place within the regulated activity; (c) the alleged conduct constituting the offences is alleged to have occurred some twenty-two years ago; and (d) the Applicant has had 20 years as a taxi driver with few complaints being laid against him, the Applicant's reputation and fitness to operate a passenger bus service has not been sufficiently compromised by the charges for it to be in the public interest that his operator's authority be suspended until the determination of the charges.

31 In this matter, the Applicant is authorised to drive a taxi-cab and the objectives of regulating this activity are those set out in section 4 of the Act which provides: "The objects of this Act are: … (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services …"

32 Accordingly, in exercising its responsibilities under the Act, the Respondent must take account of likely perceptions of the travelling public if they find themselves travelling with a person suspected of and charged with a criminal offence (see Farquharson at [36]).

33 As Mr Wozniak has observed, if the charges are not proven, the Applicant's authority will be reinstated. If a conviction is recorded against the Applicant then his authority will be cancelled. In my view, a member of the public, knowing of the Applicant's record, would not object to him as the driver of the taxi until the charges against him are determined. It is my view that he should be permitted to continue to drive a taxi.

34 Accordingly, for the reasons set out above, it is my opinion that the decision of the Respondent to suspend the Applicant's authority is not the correct and preferred decision. Accordingly, it should be set aside.

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.

Re the Legal Practitioners Act 1970

Practitioners Act 1970

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