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[2014] NSWCATAD 107
NCAT Administrative and Equal Opportunity
2013-09-05
Original judgment source is linked above.
The Applicant's criminal record 60The Respondent also points to the Applicant's criminal record which shows a May 2006 conviction for a false representation resulting in police investigation. In April 2006 the Applicant reported that he had been robbed by two males who produced flick knives, manhandled him, ripped his shirt pocket and stole $1450. The Applicant was interviewed and a police investigation was commenced. The Statement of Facts relating to the offence indicates that GPS positioning and timing did not reflect the version of events given by the Applicant. In addition, the car video showed that the Applicant did not have any in the hour and a half prior to his pressing of the emergency button. 61The Applicant subsequently admitted to having fabricated the incident because of financial problems and he provided a retraction statement.
The 9 September 2013 investigation report 62The Respondent also points to an investigation report dated 9 September 2013 which recommended that the Applicant be issued an infringement for carry on taxi-cab service without accreditation, under section 30(1 )(a) of the Act. The recommendation arose following an investigation into an alleged false declaration made as a result of a penalty notice being issued to the Applicant for a speeding offence at 8:26am on 26 December 2012. The Applicant denied that he was driving at that time and indicated that the taxi was driven by Mr Roger Hedwan. The Respondent contends that Mr Hedwan was not an authorised taxi-cab driver at the time of the offence on 26 December 2012. The Respondent contends that during an interview with officers of the Respondent, the Applicant said that allowed Mr Hedwan to drive the taxi for three shifts at that Mr Hewan paid him $80 per shift. The Applicant did not hold an accreditation to carry on taxi-cab service.
The Applicant's evidence 63The Applicant relies on his own evidence and that of his partner Ms Sandra Joseph. 64The Applicant denied that he was the driver of the taxi during the 2 July 2012 journey. He also denied that he cashed the docket at the Unigas depot on 3 July 2012. There is no record of any network login for taxi T880 on 3 July 2012. He stated that he was driving the taxi in the morning of 2 July 2012 but that he didn't drive on that afternoon. He said that he gave the worksheet for that morning to Roy Azzi. 65He said that he picked Ms Joseph up from Canterbury Leagues Club at around midday, then went home and stayed at home with her until the following morning. As was his habit, he left the key to the taxi on the front tyre. 66The following morning Ms Joseph asked him to drive her home but he was unable to do so as the taxi was no longer at his premises. He stated that he was at home the morning of 3 July. Ms Joseph's daughter picked her up sometime in the morning on 3 July 2012. 67The Applicant stated that he does not have a private car and so could not go to the airport to cash dockets on that day. He said that he understood that Mr Roy Azzi was driving taxi T880 on 3 and 4 July 2012. He said that Mr Azzi is a taxi driver and a member of the Canterbury Leagues Club and that sometime they change over at the Leagues Club. 68The Applicant denied that he filled the taxi with fuel at the airport in the morning on 3 July 2012 or that he presented dockets to the depot or received cash from the depot. He said that the morning driver refuels in afternoon and the night driver fills it up in the morning. He denied that he had been paid for the value of the docket. 69He conceded that he and Mr George Azzi know each other well. He could not explain why Mr Azzi would have written the Applicant's name on the docket on the morning of 3 July 2012. He suggested that it could have been a mistake. 70The Applicant points to the GPS record obtained from Legion cabs, which indicates that on 3 July 2012 taxi T880 left the Applicant's house at 7.59 am and travelled to the international airport arriving at about 8.47 am. He submits that this contradicts the GM Cabs employees' evidence that the docket was tendered at 7 am on 3 July 2012. 71In regard to the conviction for falsely representing to Police that he had been robbed, the Applicant said that he was owed money by the operator and the operator would not pay him. He conceded that he pleaded guilty to that charge and was put on a good behaviour bond for three years. He also conceded that he had forgotten to tell the Respondent about the conviction. 72The Applicant denied the allegations in regard to tampering with eftpos machines or cashing of stolen vouchers.
Evidence of Ms Joseph. 73Ms Joseph stated that on 2 July 2012 she had been in the Club between 9.30 and 10.00am and after that she met the Applicant there. They remained at the Club for about an hour or one and a half hours then went to the Applicant's house. They remained at the house for the rest of the day and night. She said that she and the Applicant spent the whole of the time together and that the Applicant did not leave the house. 74The following morning she was preparing herself to go home. The Applicant was intending to take her home but he was unable to drive her because the taxi was no longer at the house. Ms Joseph stated that she called her daughter at around 8.30 and she picked her up and took her home. 75Ms Joseph accepted that she made here statement more than a year after the 2 July 2012 incident but she said that she remembers the day because the Applicant was very upset and he told her that he had the problem that he couldn't find the taxi. He thought the taxi may have been stolen.
Consideration 76As noted, the Applicant was the subject of a complaint that he overcharged for a journey from the Sydney International Airport to Randwick on the afternoon of 2 July 2012. The complainant passenger identified the Applicant from a photo board as the driver of the taxi for that journey. GPS records for 2 July 2012 show that taxi T880 undertook that journey. 77GPS records for the morning of 2 July 2012 show that taxi T880 was stopped at Canterbury Leagues Club at 10.20 am. The taxi remained there until 12.39 pm and then returned to the Applicant's home at Punchbowl. The vehicle remained there until approximately 3.07 pm when it travelled to the International airport. At around 4.30pm taxi T880 travelled to Randwick. It then returned to the International Airport then travelled to Canterbury Leagues Club and then to the Applicant's home at Punchbowl. There are no more log ins for that vehicle until the Applicant logged into the network on 5 July 2012. 78The operator of taxi T880, Mr El Assi, confirmed that the Applicant had control of that taxi covering the period of the 2 July 2012. The Applicant conceded that he drove taxi T880 on the morning of 2 July 2012. He denies that he drove the taxi on that afternoon. 79Mr El Assi indicated that the Applicant did not give him worksheets for 2, 3 or 4 July 2012 but did provide one for 5 July 2012. The Applicant asserted that he provided the worksheet by fax to Mr Roy Azzi. Roy Azzi stated that the Applicant did not provide a worksheet for 2 July 2012. Roy Azzi also denied driving taxi T880 on 2 July 2012. Mr Sukkarieh provided worksheets for 30 June 2012 and 1 July 2012 but denied driving the taxi on 2 or 3 July 2012. 80A GPS record for taxi T880 shows that the vehicle was at the airport at approximately 8.41 am on 3 July 2012. 81A GM Cabs docket relating to the 2 July 2012 journey was presented at the Unigas depot at the International Airport in the morning of 3 July 2012. Mr George Azzi stated that a person who he knows as "Dr Nabil" presented the docket on 3 July 2012 and that he wrote the words "Dr Nabil" on the docket. Both Mr George Azzi and "Dr Nabil" know each other well. Mr Azzi did not remember the time at which the docket was presented but he said it was in the morning. Mr Azzi identified a photograph of the Applicant as "Dr Nabil". He identified the Applicant as the person presenting the docket and receiving cash for that docket. 82The Applicant's evidence was that he was at home with Ms Joseph on the afternoon of 2 July 2012 and that he did not leave the house. Ms Joseph confirmed that to have been the case. The Applicant also denied that he was driving taxi T880 on 3 July 2012. 83The Applicant also gave evidence that Mr Roy Azzi also drives taxi T880 and that they often change over at Canterbury Leagues Club. He alleged that Mr Roy Azzi was probably driving the vehicle on the afternoon of 2 July 2012. 84The Applicant did not require Mr Roy Azzi for cross-examination. Mr Roy Azzi's evidence that he did not drive taxi T880 on the afternoon of 2 July 2012 or on 3 July 2012 has not been challenged. Nor was the Applicant's assertion that Mr Roy Azzi drove taxi T880 on the afternoon of 2 July 2012 put to him. 85I note the GPS record that indicates that taxi T880 was at the airport on the morning of 3 July 2012. The record show that the taxi was at Canterbury Leagues Club at 19.41 on 3 July 2012 and that the Applicant signed into the Club a few minutes later. In my view it is probably that the Applicant drove taxi T880 to the Club at that time. That being the case I do not accept his evidence that he did not drive taxi T880 on 3 July 2012. 86It is also my view that the Applicant probably drove the vehicle throughout the day on 3 July 2012, leaving home at 7.57 am and driving to the airport. I accept the evidence given by Mr George Azzi that he received the end of shift docket from the Applicant on 3 July 2012 and wrote the words "Dr Nabil" on the docket. The docket relates to the 2 July 2012 journey from the Sydney International Airport to Randwick. In my view it is probable that the Applicant was the driver of taxi T880 during the 2 July 2012 journey. 87I accept the evidence given by the complainant in relation to the overcharging for that a journey. 88I note that a number of allegations have been made in relation to the Applicant's swapping of eftpos machines and associated credit card fraud and also in relation to cashing of stolen vouchers. I have insufficient evidence to make findings in relation to those allegations. However, the evidence suggests that the overcharging carried out on the afternoon of 2 July 2012 was through the use of an eftpos machine that was not issued to the Applicant. This raises questions in regard to how he was able to obtain that eftpos machine. 89There is some discrepancy in the evidence given by the complainant for example in regard to the route taken on the 2 July 2012. There is also discrepancy in the evidence of the GM Cabs employees at the Unigas depot in regard to the time the docket was cashed. In my view these discrepancies can be explained by memory failure due to the passage of time. 90Nevertheless, I am satisfied that there is ample evidence to support the conclusion that the Applicant overcharged the complainant for the 2 July 2012 journey. It is also my view that in the Applicant's evidence in these proceedings has not been truthful. As a result of the position he adopted, the Respondent has been put to considerable expense in prosecuting the matter. 91It is central to the relationship between a taxi driver and passenger that the passenger can be satisfied that the legal fare is charged by the driver - set fares/tariffs and taxi cab metres provide for this. The Applicant breached that relationship. The evidence suggests that the Applicant deliberately misused a passenger's credit card to gain an extra benefit to which he was not entitled. 92Throughout these proceedings he has attempted to avoid accountability for his act of dishonesty. It is also apparent the he failed to log in to the network on the afternoon of 2 July 2012 or on 3 July 2012. This failure aided him in his attempt to avoid accountability. 93As noted above, the purpose of an authority is to attest that the authorised person is:
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: 23 July 2014
Salhab
Roads and Maritime Services
Applicable legislation 8Section 4 of the Act provides: 4 Objects The objects of this Act are: (a) to require the accreditation or authorisation, by [the Respondent] of the operators of and drivers involved in public passenger services (other than ferry services), and ... (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and (f) to encourage co-ordination of public transport services. 9Section 33 of the Act provides: 33 Authorities (1)The Director-General 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. 10Section 33F of the Act provides: 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. 11The decision under review in the current proceedings is a decision to cancel the Applicant's taxi driver authority. Section 33F clearly provides that in making a cancellation decision regard is to be had to the purpose of the authority. The purpose of an authority is to attest to the matters set out in subsections 33(3)(a) and 33(3)(b) of the Act, namely, to attest that the authorised person is:
(1990) 170 CLR 321
(1979) 46 FLR 409