(1955) 93 CLR 127
Sobey v Commercial and Private Agents Board [1979] 22 SASR 70
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Source
Original judgment source is linked above.
Catchwords
Administrative Law: taxi drivercancellation of authority(1955) 93 CLR 127
Sobey v Commercial and Private Agents Board [1979] 22 SASR 70
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Judgment (10 paragraphs)
[1]
Introduction
Mr Singh seeks review of a decision the Respondent (RMS) made on 10 February 2015. That decision affirmed a decision made on 12 December 2014 to cancel Mr Singh's taxi-cab driver authority. RMS made the decision because it could not attest to Mr Singh being a fit and proper person to be the driver of a public passenger vehicle.
For the reasons set out below, the Tribunal has affirmed the decision under review.
[2]
Background
Mr Singh first obtained a taxi-cab driver authority in February 2013. Between 17 June and 14 August 2013 he made four statutory declarations in which he nominated his wife as the driver responsible for four camera-detected traffic infringements. The traffic infringements were three speeding offences that occurred on 25 March, 27 March and 13 April 2013 respectively and a drive through red light offence that occurred on 18 April 2013.
An investigation into Mr Singh's statutory declarations determined that they were false. RMS compliance officers interviewed Mr Singh on 5 November 2013. During this interview Mr Singh agreed that he had made false declarations and claimed that he did this to avoid accruing demerit points. He also agreed that he was responsible for the four traffic infringements.
On 22 January 2014 RMS issued a show cause notice to Mr Singh. He was given 21 days in which to make submissions as to why his taxi-cab driver authority should not be cancelled. Mr Singh was overseas at the time the show cause notice was issued. He did not respond to it until 21 March 2014. In his response, Mr Singh stated that the traffic fines were accrued at a time when his mother was very sick and he was solely responsible for supporting his family in Australia and overseas. Mr Singh further stated that he had been an honest taxi driver and had always returned items left in his taxi. He stated that he agreed that he had made a mistake, but that it was "unintentional", that he had been caught in "a maze of circumstances". He stated that he would pay the fines and that having a taxi-cab driver authority meant that he could continue to support his family.
On 22 May 2014, a recommendation was made to cancel Mr Singh's taxi-cab driver authority. However, a decision was not formally made to that effect. During the period from 24 February 2014 to 22 September 2014, Mr Singh spent time overseas and was engaged in other employment. On 22 September 2014, following a meeting with an RMS employee, the authority was reinstated. However, it was suspended two days later because Mr Singh's visa lapsed.
A further show cause notice was given to Mr Singh on 17 October 2014. This notice was based on the false statutory declarations made in 2013. On 12 December 2013, Mr Singh's taxi-cab driver authority was cancelled with immediate effect.
On 22 December 2014 Mr Singh sought an internal review of the decision. The decision was affirmed on 10 February 2015, with RMS' internal reviewer finding that RMS could not attest to Mr Singh being a fit and proper person to be the driver of a public passenger vehicle. The internal review decision stated that Mr Singh had increased the risk of being involved in a crash by speeding or driving through a red light. The internal review decision also stated that Mr Singh was in a position of responsibility which required him to act honestly.
[3]
Application for review
Mr Singh lodged his application for review in the Tribunal on 11 March 2015. In his application, he states that:
Receiving three to four traffic fines in three years doesn't make him a dangerous driver;
He nominated his wife for the fines in a desperate attempt to save his license and his job.
He admitted that he did the wrong thing the first time he was interviewed.
He paid $2400 in fines for the false declarations.
He has been punished enough for his wrongdoing.
[4]
Relevant legislation
Section 33 of the Passenger Transport Act 1990 (the PT Act) relevantly provides:
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)...........
(5) ............
Section 33F of the PT Act provides:
Having regard to the purpose of an authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division.
[5]
Jurisdiction and role of the Tribunal
The Tribunal has jurisdiction to hear and determine this application for review in accordance with 52 of the PT Act and s 63 of the Administrative Decisions Review Act 1997 (the ADR Act).
The Tribunal's role is to make the correct and preferable decision by way of a merits review: Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at [10]-[12]. In making a decision, the Tribunal may take into account new information: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
The Tribunal may affirm, vary, set aside and make a substitute decision or set aside the decision and remit it to the administrator: ADR Act, s 63(3)
[6]
Issue to be determined
The issue in these proceedings is whether Mr Singh meets the requirements in s 33(3) of PT Act and in particular whether he is a fit and proper person to be the driver of a taxi-cab.
[7]
Evidence and submissions
In making a decision in relation to the application, the Tribunal has considered the documents provided by the Respondent in accordance with s 58 of the ADR Act. The Tribunal has also considered the oral submissions made by Mr Wozniak, the oral evidence and submissions made by Mr Singh and two references tendered by Mr Singh at the hearing.
[8]
Mr Singh's evidence and submissions
As noted above, Mr Singh does not dispute that he committed four driving offences in March and April 2013 and made four false statutory declarations in July and August 2013.
When questioned during the hearing, Mr Singh conceded that he knew that making false statutory declarations is an offence. He claimed that he was encouraged to make the false declarations by a friend. Mr Singh stated that he was under financial pressure at the time. He also stated that he had incurred expenses because of his wife's poor health. It was also his wife's poor health that had led him to take up taxi driving, on the basis that it gave him flexibility and allowed him to be at home if she needed him. Mr Singh submitted that he should be given "a second chance".
Mr Singh tendered two references. The first is dated 18 December 2014 and is from Mr Kevin Malouf. It states that Mr Singh worked at Malouf Enterprises from April 2014 to February 2015 and that during that time Mr Singh "proved to be a [sic] honest person and reliable driver". Mr Malouf does not refer to Mr Singh's acknowledged driving offences, the false statutory declarations or to the Tribunal proceedings.
The second reference is dated 24 June 2015 and is from Saurabh Attreya and Priyanka Sharma. They identify Mr Singh as a close family friend they have known for at least ten years. They state that Mr Singh is "kind and generous with others", that he has "a strong sense of duty", that he possesses "a great deal of integrity" and that he "constantly strives to make sure that he is doing the right thing". The reference indicates that its authors were aware of the use to which it was to be put. However, the reference does not specifically refer either to Mr Singh's driving offences or to the statutory declaration offences.
[9]
RMS's evidence and submissions
Mr Wozniak, who appeared for RMS, went through the s 58 documents and drew the Tribunal's attention to the evidence that demonstrated that Mr Singh had been driving at the time the traffic offences had been committed. Mr Wozniak submitted that this evidence demonstrated what Mr Singh had already conceded; that is, that he had made false statutory declarations. Mr Wozniak submitted that no weight should be placed on the references provided by Mr Singh, because they do not specifically address the offences. Further, he submitted that the Tribunal could not take into account any hardship Mr Singh might suffer or Mr Singh's wish to be given "a second chance".
Mr Wozniak drew the Tribunal's attention to relevant authorities; in particular to decisions made by the Tribunal concerning the cancellation of taxi-cab driver authorities Babikir v Roads and Maritime Services [2014] NSWCATOD61; Ullah v Roads and Maritime Services [2014] NSWCATAD71; Parvez v Roads and Maritime Services [2014] NSWCATOD 13; Cai v Roads and Maritime Services [2014] NSWCATOD 34; Naveed v Roads and Maritime Services [2014] NSWCATOD 4; Saifi v Roads and Maritime Services [2014] NSWCATOD24; Miah v Roads and Maritime Services [2013] NSWADT 264.
[10]
Findings
It is not in dispute and the Tribunal accordingly finds that Mr Singh committed the four driving offences and made the four false statutory declarations which led to the cancellation of his taxi-cab driver authority.
The Tribunal has considered whether Mr Singh is a fit and proper person to drive a taxi. The concepts of fitness and propriety have been defined by the High Court of Australia as having three components: "honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at [9].
In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper":
In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
The term "fit and proper person" was also discussed by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63] (Bond's case). The Chief Justice 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 fitness and propriety are under consideration.
In Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Administrative Decisions Tribunal considered the principles set out in Bond's case and set out the following factors to be considered in determining a person's suitability and fitness to hold a taxi-cab authority:
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.
In assessing the last factor, the Tribunal found that the following considerations are relevant:
the length of time since the offences were committed and the circumstances in which they were committed;
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;
any change in the applicant's circumstances such as increased support from friends, family or professional service providers.
The Tribunal has accordingly considered relevant factors as follows.
In relation to Mr Singh's conduct in swearing four false statutory declarations in respect of four traffic offences, Mr Singh acknowledged that he was wrong to do so. However, the Tribunal is satisfied that at the time he made the relevant statutory declarations, Mr Singh was aware that he was committing an offence. The Tribunal does not accept that Mr Singh swore the false statutory declarations unintentionally, as claimed in his response to the respondent's show cause notice, as under cross-examination Mr Singh conceded that he went before a Justice of Peace on four separate occasions to swear the declarations.
The Tribunal considers that for a holder of a taxi-cab driver authority to swear false statutory declarations in order to escape the consequences of committing traffic offences is a very serious matter. Doing so was at least in part designed to mislead RMS, whose responsibility it is to regulate the taxi industry.
The swearing of false statutory declarations must be taken seriously. Mr Singh's actions in this regard reflect poorly on his honesty, which is a fundamental consideration when determining whether a person is fit and proper. Mr Singh's dishonesty relates directly to his role as a taxi-cab driver and his relationship with RMS as the regulatory authority.
In Mr Singh's favour the Tribunal notes that there is no evidence of customer complaints against Mr Singh in his role as a taxi driver. However, the Tribunal notes that Mr Singh has had very limited experience as a taxi driver, given that his taxi-cab driver's authority was first issued within weeks of the driving infringements taking place and Mr Singh has spent more of the period since that time not driving a taxi than he has as a taxi driver. The lack of customer complaints is accordingly not a strong factor in Mr Singh's favour and does not outweigh the dishonesty demonstrated by the making of false statutory declarations.
The Tribunal places no weight on the references provided by Mr Singh in determining Mr Singh's good repute in the community and his fitness and propriety. In relation to this, the reference from Mr Malouf is a standard work reference lacking in detail. There is no indication that Mr Malouf was aware of either Mr Singh's driving infringements or of the fact that he swore false statutory declarations. This reference does not assist the Tribunal to determine Mr Singh's repute or his fitness and propriety.
The reference provided by Saurabh Attreya and Priyanka Sharma indicates that Mr Singh is held in high regard by close family friends. However, it says nothing about Mr Singh's repute more generally in the community. Nor does it address Mr Singh's driving and false statutory declaration offences. The reference is therefore of no value in determining Mr Singh's fitness and propriety.
In respect of the circumstances at the time the offences were committed, the Tribunal accepts that Mr Singh's wife - who is currently outside Australia - has had medical problems in respect of which Mr Singh has had to pay for treatment and medication. The Tribunal also accepts that Mr Singh faced other financial difficulties at the relevant time which made the prospect of accruing demerit points and possibly losing his licence difficult to face. However these circumstances do not excuse Mr Singh's behaviour. Further, hardship to Mr Singh or his family cannot be taken into account in making the correct and preferable decision in relation to Mr Singh's fitness and propriety to hold a taxi-cab driver authority: Lal v Director-General, Department of Transport [2001] NSWADT 74
Mr Singh's conduct in providing a false statutory declaration last occurred in August 2013, almost two years ago. He has expressed remorse for his conduct. The Tribunal is satisfied that Mr Singh understands the seriousness of swearing false statutory declarations. Although Mr Singh may not reoffend in the same way in the future, insufficient time has elapsed since the offences for the Tribunal to find that Mr Singh's dishonest conduct in 2013 is no longer relevant to a determination of his fitness and propriety.
The speeding and red light infringements relate directly to Mr Singh's driving record. This is significant given that a person's fitness is to be measured in the light of the nature and purpose of the activities that the person will undertake: Sobey v Commercial and Private Agents Board [1979] 22 SASR 70. Speeding and red light infringements reflect poorly on Mr Singh's commitment to passenger safety.
Since the speeding infringements that were the subject of the false statutory declarations, Mr Singh has been detected speeding on two further occasions. Both infringements were camera detected. One occurred on 1 September 2013 (exceed speed limit by not more than 10 km/h) and the other on 28 December 2013 (exceed speed limit by more than 10 but not more than 20 km/h). The fact that the last infringement occurred some eighteen months ago suggests that Mr Singh may now be driving more safely than he was previously. Overall, while Mr Singh does not have a good driving record, his driving record does not weigh strongly against him in determining whether he is a fit and proper person.
The Tribunal notes Mr Singh's submission that he has been punished for his offences and his request that the Tribunal "give him a second chance". Whether Mr Singh deserves a second chance is not a test the Tribunal can apply in determining the application for review. Further, in making a decision the Tribunal's focus is not on discipline or punishment, but on protecting the public interest: Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201
The Tribunal has weighed up all of the factors set out above. Some of these factors weigh in Mr Singh's favour; specifically the length of time since the offences were committed and Mr Singh's expression of remorse. However, given the seriousness of Mr Singh's actions in swearing false statutory declarations in order to avoid responsibility for traffic infringements, the Tribunal cannot be satisfied that Mr Singh is a fit and proper person to hold a taxi-dab driver's authority at this time. By swearing false statutory declarations Mr Singh has not demonstrated the honesty and integrity necessary to be considered a fit and proper person.
As the Tribunal has determined that Mr Singh is not a fit and proper person to hold a taxi-cab driver authority at this time, the decision under review is affirmed. It is not necessary for the Tribunal to consider whether Mr Singh meets the other requirements of s 33(3) of the PT Act.
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
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Decision last updated: 08 July 2015