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[2014] NSWCATOD 24
NCAT Occupational
2014-01-13
Original judgment source is linked above.
reasons for decision 1The Respondent formed the view that the applicant is not a fit and proper person with sufficient responsibility and aptitude to hold a taxi-cab authority and accreditation. Accordingly it decided to cancel the applicant's taxi driver authority and accreditation. The applicant seeks review of that decision.
The relevant legislation 2The relevant legislation for the purposes of this application for review is the Passenger Transport Act 1990 ('the Act'). 3Section 33F of the Act provides as follows: Having regard to the purpose of authorisation under this Division, [the Respondent] may at any time vary, suspend or cancel any person's authority under this Division. 4The purpose of authorisation, referred to in that section, is exposed in s 33(3) of the Act in the following terms: (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. 5Similarly, section 31F provides as follows: Having regard to the purpose of accreditation under this Division, [the Respondent] may at any time vary, suspend or cancel any person's accreditation under this Division. 6The purpose of accreditation, referred to in that section, is exposed in s 31(2) of the Act in the following terms: (2)The purpose of accreditation under this Division is to attest: (a)that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service, and (b)that the accredited person has demonstrated the capacity to meet the and continue to meet the appropriate requirements with respect to: i.financial viability, and ii.safety of drivers, passengers and the public, and iii.vehicle maintenance, to the degree and in the manner required in respect of services of the kind specified in the accreditation. 7Clause 40 Passenger Transport Regulation 2007 ('the Regulation') requires that the driver of a public passenger vehicle must not negligently or wilfully drive or cause the vehicle to be driven so that any person is subjected to the risk of injury. 8Clause 44 of the Regulation requires a driver to notify RMS of an alleged offence, including any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle. 9This case turns on the question whether Mr Saifi meets the standards set out in paragraphs (a) and (b) of s 33 and s.31
Background to the cancellation decision 10At 12.16am on 14 October 2012, Mr Saifi was the driver of taxi-cab T9387 ('the taxi') which was detected by a red light traffic camera at the intersection of Craigend Street and McLachlan Ave at Darlinghurst. As a result, a penalty notice was issued for the offence. 11On 3 January 2013, Mr Saifi completed a Statutory Declaration, claiming that the person responsible for the offence was Amir Khan of 29 Berwick Street, Guildford NSW 2161. (Mr Khan does not hold and has never held a Driver Authority.)
Evidence 12Taxi Combined Services ('TCS') was asked to provide information pertaining to driver and meter records for the taxi for 14 October 2012. Information shown on the records produced by TCS indicates that Mr Saifi was driving the taxi at the time and date of the offence. 13Those records also indicate that between 12.05am and 12.08am on 14 October 2012, the taxi was engaged with a street hail passenger from in/near York Street, Sydney to a location in/near King Street, Sydney. In addition, those records indicate that between 12.21am and 12.27am on 14 October 2012, the taxi was engaged with a street hail passenger from in/near Craigend Street, Darlinghurst to a location in/near Oxford Street, Darlinghurst. The offence was committed at 12.16am, that is, between the times that the taxi was engaged with those street hail passengers. 14On 11 September 2013, Mr Saifi attended the Respondent's offices to participate in an interview with Compliance Officers Prentice and Carr. A transcript of the interview was tendered. Prior to the interview Mr Saifi was informed of the nature of the complaint. At the interview Mr Saifi stated:
Should the applicant's driver authority and accreditation be cancelled? 27While I accept that taxi driving late at night can be hazardous and customers may be rowdy and even violent, in summary, I do not accept the version of events provided by Mr Saifi to me and to the Compliance Officers. It may be that the applicant was involved in an altercation, in which he was assaulted. However there was no evidence that he took his complaint to the police, nor did he note it in the daily log book where such an incident might have been recorded. He was not so seriously injured that he needed to attend a hospital, nor actually attend a doctor. In that regard I note that this evidence differed from his initial assertion. He claimed to have been unable to raise help from the operator or his brothers or others and that he fortuitously saw Mr Khan who came to aid. One might have thought Mr Kahn could have provided an account of rescuing Mr Saifi and kindly driving him for some 5 hours to his home. Mr Khan was not called to give evidence, neither did he provide any form of statement. In Howell v Macquarie University [2008] NSWCA 26 the Court of Appeal specifically noted that the principle of Jones v Dunkel [1959] HCA 8 applies to the Tribunal. It referred to its decision in Manly Council v Byrne [2004] NSWCA 123 at [51] about the inferences that can be drawn from the failure to call a relevant witness: Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn. 28Whether either or both of the inferences are actually drawn is part of the task of weighing the evidence. In this matter, the absence of evidence from Mr Khan weighs heavily against the applicant. 29I found the evidence of Mr Carr compelling. He explained that the call records were completely inconsistent with the random 'button pressing' that the applicant claimed Mr Kahn had engaged in while attempting to turn off the meter. Mr Carr demonstrated that in fact the pattern was consistent with what had been occurring prior to the alleged assault and the offence. 30I also find it implausible that any driver could have taken some 5 hours to reach Guilford and that had, en route, driven the taxi around the city and Kings Cross, Campsie, Lidcombe, Parramatta and Kellyville. 31I therefore do not accept that Mr Khan was driving the taxi at the time of the offence and have come to the view that the applicant was driving at and continued to drive the taxi after the offence. 32In coming to that view I must also find that he provided to providing a false Statutory Declaration to the State Debt Recovery Office. 33In Miah v Roads and Maritime Services [2013] NSWADT 264 the Tribunal observed that in this State, making a false declaration for a material benefit is a serious offence and that under s 25A of the Oaths Act 1900, conviction on indictment can lead to imprisonment for up to seven years. The Tribunal referred to R v Einfeld [2009] NSWSC 119) where a former Federal Court judge was sentenced to three years' imprisonment for offences arising out of an attempt to avoid traffic points following a speeding charge. In this case also the offence related directly to driving and the applicant's driving record. As Huntsman JM noted in Ghachame v Roads and Maritime Services [2013] NSWADT 144 at [54], a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. 34Recently, in Naveed v Roads and Maritime Services [2014] NSWCATOD 4, the Tribunal was of the view that Mr Naveed's actions in swearing three false statutory declarations nominating a driver other than himself should be taken seriously for the following reasons:
DECISION 42The decision under review is therefore 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: 31 March 2014
Saifi
Roads and Maritime Services