Sikka v Roads and Maritime Services

NCAT Occupational|2014-10-29

Introduction 1Mr Sikka held a taxi-cab driver authority under the Passenger Transport Act and commenced to work as a taxi driver from around April 2009. 2On 28 April 2012 Roads and Maritime Services (RMS) cancelled his taxi-cab driver authority and on 10 May 2012 affirmed that decision after an internal review. 3On 11 March 2013 the Administrative Decisions Tribunal (ADT) affirmed that decision. 4Mr Sikka sought and by decision of an ADT Appeal Panel dated 27 June 2013, he was granted leave to appeal that decision. 5On 25 October 2013 that appeal was dismissed by an ADT Appeal Panel. 6Mr Sikka applied for a new Authority to drive taxi-cabs by way of written application dated 19 March 2014. 7That application was refused in June 2014 in a determination made by RMS in accordance with Section 33 of the Passenger Transport Act 1990 to refuse Mr Sikka's application for authorisation to drive taxi-cabs. 8Mr Sikka now applies for a review of that determination.

Application of the Law to the Facts 10RMS has concluded that in view of Mr Sikka's previous history as a driver, "RMS cannot attest that you are a fit and proper person for the purposes of the Passenger Transport Act 1990". 11Mr Sikka was first issued an authority on 28 April 2009 and it appears to be the case that for the first 2 years during which he held the relevant authorisation, there were no problems regarding Mr Sikka's performance. 12Regrettably, this all changed in the second half of 2011and on 7 March 2012, a Notice to Show Cause was issued to Mr Sikka in relation to what can only be described as an extensive list of complaints regarding his performance as a taxi-driver. 13Ultimately, it seems from the evidence accepted by the ADT on appeal that in the period from 1 June to 28 July 2011, there were 57 transactions in which there was a double charging of amounts to certain customer credit cards. A first charge was made for an amount and soon thereafter a second charge usually for a higher amount was made usually to the same credit card. In a few instances different credit cards were used for the second charge. 14Mr Sikka had at first asserted that these multiple entries were as a result of a machine fault, an assertion for which he provided no independent evidence in support. Without traversing the details of those incidents, it seems that there was evidence accepted by the ADT that Mr Sikka had swiped the card a second time and that he had forged a number of signatures when that was necessary. 15Thus, the Appeal Panel concluded (at paragraph 24) that in respect of certain transactions, the following inferences could be drawn: "....Mr Sikka swiped the passenger's card the second time; and Mr Sikka, as he would have done when performing the first transaction, inputted the amount to be charged and consistently inputted an amount different from the first amount and usually inputted an amount that was higher." 16As to certain other transactions the Appeal Panel concluded at paragraph 25 that "....there is no doubt that the passenger signature that appears on the second docket is a forgery. In our view, the inference is inescapable that Mr Sikka was the author of the second signature. There is no dispute that Mr Sikka was the driver who dealt with that passenger, and the docket was one of those presented for encashment by Mr Sikka at the end of the shift." 17These are very serious matters made all the more serious by virtue of the substantial number of double entries that were made over a two month period. 18These matters suggest a clear lack of honesty. Inevitably, honesty must be a central consideration in determining whether a person is a fit and proper person with the required responsibility and aptitude to drive a public passenger service vehicle in accordance with the statutory conditions, the law and custom: see the decision of Senior Member N Isenberg in Khan v Maritime Services 2014 NSWCATOD 23 para 32. 19Of course, that is the history of this sorry saga and the question to be considered now is whether, with the effluxion of time, Mr Sikka has shown that he is a reformed man who is now a fit and proper person who should be granted the relevant authority. 20Several factors are important in this context and in summary they include in particular:

The extent and gravity of Mr Sikka's offending behaviour;
Whether Mr Sikka initiated the offending behaviour;
The history of Mr Sikka's behaviour outside of the offending behaviour;
The extent to which he acknowledges his offending behaviour;
His remorse at having engaged in his offending behaviour; and
The extent to which he can objectively be seen to have reformed such that the Tribunal can now be satisfied that he will not repeat the offending behaviour. (See in this context especially Ahmadi v Director General, Department of Transport 2002 NSWADT 8 para 22.)

Extent and gravity of the offending behaviour 21Clearly, as already indicated there were a total of 57 double entries nearly all of which were found as a matter of fact to have been instigated by Mr Sikka. It seems that this involved not only act of charging cards twice but in many cases adding forged signatures. These are not matters that can be lightly dismissed particularly where such a degree of repetition is involved.

Initiation of offending behaviour 22The behaviour in question here was that of Mr Sikka and Mr Sikka alone. No other party was involved and all the offences were initiated by and carried out by Mr Sikka with no assistance from any third parties.

Mr Sikka's history 23In relation to his general compliance behaviour, the Tribunal notes that Mr Sikka had a relatively unblemished record in his first 2 years as a driver. It is also worth noting that there were several months during which he continued to drive while his initial case was before the ADT and he did not offend in any way during that time. As far as the Tribunal is aware, there were no other matters to note as far as offending behaviour is concerned.

Acknowledgement of offending behaviour 24As far as acknowledging his offending behaviour is concerned, the Tribunal has some concerns. In a Submission presented to the Tribunal on behalf of Mr Sikka (THE Submission) it is said that "Upon being confronted with records of one particular event, and later, of more such events, Mr Sikka refunded to GM Cabs some $3400 which he had then agreed were charges wrongly processed. While he remains confused as to exactly how these transaction (sic) occurred, he accepts that the most reasonable explanation is that he made entries subsequent to the actual trip." 25Later on the Submission, the following comments are made "He was then, and still is prepared to accept responsibility for transactions which have resulted in such a loss. And to accept the Tribunal's confirmation of the overall conclusions, notwithstanding some remaining doubts" 26This can at best be described as language which is vague and unclear as to its exact intent. What Mr Sikka remains confused about remains a mystery as the findings of fact on previous occasions leave no doubt whatsoever as to the extent to which the ADT was of the view that the double entries were largely precipitated by Mr Sikka's actions. He also seems to be saying that what the Tribunal says occurred is "the most reasonable explanation" which is not quite the same thing as an admission. Further, he does seem to take some responsibility for what has occurred but again expresses "some remaining doubts". 27In these circumstances, I am not satisfied that Mr Sikka has properly come to terms with what he has done and has not at this stage acknowledged in a clear and unambiguous fashion that his actions were deliberate and dishonest.

Remorse 28Insofar as expressing remorse is concerned, in the Submission filed on behalf of Mr Sikka, it is stated that: "He is remorseful for whatever conduct he has done that caused this to happen. That remorse was immediate in the sense that he immediately paid all monies claimed by GM Cabs, without question. It is not remorse for having been caught out: it is remorse for having caused loss or harm to others." 29Notwithstanding the comments made in the Submission, it does not appear to be the case that the monies were immediately repaid and it, in fact, took some four weeks for that to occur after there were initial discussions with Mr Sikka. 30Nonetheless, it does appear that there is some remorse expressed for the loss that has been incurred by others, although not general remorse for the actions which he has taken and the behaviour he has exhibited.

Reformed character 31Mr Sikka has indicated in the Submission that "He, over the last two years, has also resolved never to do anything which might initiate such essentially fraudulent transactions. He has resolved in particular never to use terminals which facilitate wrongful entries. He has over that period had ample opportunity to reflect on his past behaviour and to change those character flaws which allowed him to accept without question payments made in excess of what services he had provided." 32At a further point in the Submission, Mr Sikka indicates that he has had counselling and assistance though no evidence has been provided to that effect. 33Thus, apart from making the statement that he has resolved to act differently and the statement that he has had counselling and assistance, there is no tangible evidence to support any of this. The only possible exception is that there was some evidence to show that for a limited period of time while he was able to drive, no further complaints were made.

Conclusions 34In reaching a decision in relation to this matter, it needs to be understood that there is no halfway house in the sense suggested by Mr Jools who represented Mr Sikka at the hearing. Mr Sikka is either a fit and proper person to whom an authority can be granted or he is not. There is no option available to grant a conditional authority for some limited period of time to determine whether during that time he acts in a manner such as to convince RMS that he is a fit and proper person. 35Accordingly, the Tribunal needs to make a decision based on the various factors referred to above. Having regard to those matters, the Tribunal is not at this stage satisfied that Mr Sikka is a fit and proper person to whom an authority should be granted. In particular, the Tribunal is concerned as to the nature and gravity of the offending behaviour and the tentative and somewhat reserved admission of guilt in the face of numerous findings by the ADT and a similarly tentative and somewhat reserved expression of remorse. 36This, of course, does not in any way preclude Mr Sikka from making a further application for an authority but this should only occur when the desired evidence referred to previously is available. In particular, what will be needed is a clear and unambiguous expression of admission and remorse, coupled with tangible objective evidence as to Mr Sikka's reformed character. This must support in a very meaningful way the conclusion that he is unlikely to repeat the offending behaviour. Evidence of counselling and other assistance should be provided to support such a future application. 37When Mr Sikka can provide that kind of evidence, he can apply for an authority and should be able to convince RMS that he is then a fit and proper person to hold a taxi authority. For now, he falls short of the required standard. 38I should note that Mr Sikka's history outside of the offending behaviour is good and if he can maintain that record it will greatly assist in any future application. 39In these circumstances, the Tribunal concludes that the decision of RMS is the correct and preferred decision. 40The decision of RMS 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: 25 November 2014

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