Singh v Roads and Maritime Services

Applicable legislation

1. The issuance of authorities to drive private hire vehicles is provided for in s 40 of the PT Act: 40 Authorities (1) RMS may, by the issue of authorities under this Division, authorise persons to drive private hire vehicles, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised private hire vehicle driver". (2) A person who drives a private hire vehicle is guilty of an offence unless the person is an authorised private hire vehicle 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 private hire vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle: (i) in accordance with the conditions under which the private hire vehicle service concerned is operated, and (ii) in accordance with law and custom. (4) The regulations may create categories or grades of authorities. (5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a private hire vehicle is being driven to a place to have it repaired or serviced.
2. Section 40A provides for applications for authorisation, and s 40B deals with the grant or refusal of such applications: 40B Grant or refusal of application (1) Having regard to the purpose of authorisation under this Division, RMS may grant an application and authorise the applicant to drive a private hire vehicle, or may refuse the application. (2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant. (3) An applicant is required to pay any fee fixed by the regulations for the authority when first issued. (4) An authority is to be given in writing by RMS to the authorised person. (5) The authority may specify the category or grade of the authority, and (without limitation) may specify the kind or kinds of vehicles for which the authority is granted.
3. The issue in the present case is whether the correct and preferable decision is for the Tribunal to attest that the applicant is considered to be a fit and proper person to be the driver of a private hire vehicle within the meaning of s 40(3).

The evidence

1. The basic facts are not in dispute and neither party adduced oral evidence. The respondent relied on the s 58 documents (exhibit R1) and other documentary material.
2. There were four offences in respect of which false statutory declarations were made. The evidentiary basis for them appears on pages 69 to 75 of exhibit R1.

• Penalty notice 6060958027 related to a camera detected instance of exceeding the speed limit by 10 km/h and under, recorded on 13 April 2013, and a fine of $105 was imposed.
• Penalty notice 6060765646 was similar, and occurred on 25 March 2013.
• Penalty notice 7112567743 was for proceeding through a red traffic light on 18 April 2013 and was also camera detected. The fine was $397.
• Penalty notice 6060747780 was for exceeding the speed limit by over 10 km/h on 27 March 2013, which incurred a fine of $243.

1. The four false statutory declarations are reproduced on pages 70 to 76 of exhibit R1 and are summarized on page 68. They were made before a justice of the peace on three separate dates between 17 June 2013 and 14 August 2013. Each one nominated Ms Kaur as the driver at the time of the offence. Ms Kaur does not hold a driver authority nor a New South Wales driver's licence. Penalty notices were issued in respect of each false declaration.
2. In addition to the four contraventions that were the subject of false declarations, the applicant since June 2010 has accumulated nine demerit points for four speeding offences (exhibit R1, page 78). Further, after losing his taxi driver authority, the applicant committed another speeding offence, on 30 December 2014 which incurred double demerit points (exhibit R2).
3. At his recorded interview at the Parramatta RMS office on 5 November 2013, he responded by saying he was sorry for the offences but was a new driver at the time and did not know the locations of his destinations or the speed and red light cameras. He conceded that he was the driver for all four offences, but had nominated his wife as driver in order to avoid accumulating demerit points. He said he had received "a few fines" but is a good driver. He had not known that making a false statutory declaration was an offence at the time when he made the four declarations (exhibit R1, page 78).
4. The applicant did not give evidence at the hearing and called no witnesses, but relied on his written statements. In his letter to the compliance manager dated 21 March 2014 (exhibit R1, pp 84 - 85) he admitted the four false statutory declarations but said that the majority of his fines occurred during his early days as a taxi driver. At that time he was experiencing a serious financial crisis, as he had left his previous employment and had entered the taxi business so that he could earn more to support his family. His family position overseas was also unfavourable, as his mother was very sick and needed urgent surgery. He is the only person who supports his family here and overseas. When the fines were imposed it was a serious setback for him and he was shattered because it was a time when his family needed his support the most. In order to avoid the cancellation of his licence, he was misguided into making the false declarations.
5. Before becoming a taxi driver, he had no fines on his driver's licence except for a few when he used to drive a van. That was the time when he drove a van for an insulation business, and they were the combined fines for a few of the drivers. He did not know that the fines were put on his overseas licence. He had been a very honest taxi driver and there had been many occasions when passengers had left expensive items such as telephones, iPads and laptops in the taxi. There had not been a single occasion where he had failed to return those items to the passengers. All those details could be verified by the compliance service.
6. He agreed that he had made "a mistake", but the false declarations were genuinely not deliberate. He committed all those mistakes unintentionally and was caught in the maze of circumstances. He honestly wished to rectify those mistakes and in order to do that, the first thing he would do would be to pay the fines. He would borrow some funds from his friends and would pay the fines as soon as possible.
7. In connection with these proceedings, the applicant lodged a further statement, dated 20 February 2017. In it he stated inter alia that the introduction of "point to point" reforms in New South Wales last year had made obtaining a public passenger driving authority a little easier. He therefore lodged a fresh application on 21 October 2016, but heard nothing from the Department. It turned out that RMS was sending all his correspondence, including show cause notices and decision letters, to his old address, despite his repeated efforts to notify them of his new address.
8. He pointed out that it had been [at that time] nearly 3 years and 8 months since he committed those offences. He had significantly improved his driving behaviour since then, including successful completion of a one-year good behaviour bond. He strongly believed that he is very much more mature as a person and a better driver than he was four years ago. As a law-abiding citizen, the feeling of being labelled as dishonest by the State would always haunt him and drag him back. He was strangled in some very bad financial and family situations and some bad advice contributed to the worst decision of his life. He had accepted his mistake in his very first interview in 2013, believing that the system would acknowledge his dishonest act as an innocent mistake. It had been 4 years, and he was still looking for his second chance.
9. He believed that a span of 4 years without any similar acts suggested that he is not a repeat offender. He acknowledged that he did blunder and assured all concerned that it would not happen again.
10. The applicant also relied on two written references, one (undated but apparently written in early 2017) from Mr Gauravdeep Singh Mudan, a migration agent of Blacktown. It stated that he knew that the applicant had pleaded guilty to providing false statutory declarations but he regrets those offences and promises never to do anything of that nature again. He claims that it was a mistake and that he did not intend to do it and had never caused any kind of harm to any person or to society.
11. Mr Madan was aware that the applicant had been through tough times in life and he had seen him handle all situations with honesty. He is a very hard-working person and has struggled to keep up his position with dignity as a responsible person in society. He could say that the applicant is a person of great integrity and with a professional attitude. The fact that he had accepted the mistake he had made was an indication of his honesty. The offence had affected the applicant, not only personally, but had also impacted his family and his financial life. Mr Madan had never heard any bad reports about him and was sure that every person who knows Mr Singh would agree.
12. Mr Madan said that mistakes do happen in life, but a person who regrets his misdeeds and tries to follow the honest path should be given a chance.
13. The other reference, from Surabh Attreya and Priyanka Sharma, was dated 15 February 2017. The referees wrote that they have known Mr Singh for more than 10 years. He is very generous with his time and they were proud to say that they know him as he is one of the kindest people they have met. They were aware that he had pleaded guilty to providing false statutory declarations, but said he is not that kind of person and has never done any harm to anyone or to society.
14. He had been through a "real tough time" and they had seen him mature greatly over the last two years. He has been working very hard over these years to uphold his dignity as a respectable person in society. They had always found him to be very professional and a person of great integrity and honesty. He understands the mistake he has made, which has affected him not only personally, but unfortunately has also affected his family and financial life very badly. No-one has ever had anything bad to say about him and all who talk to him see what a good person he is.

The submissions

1. On behalf of RMS, Mr Wozniak reiterated the factual basis for the refusal of the driver authority. He also noted the applicant's defence that the making of the false declarations was "not deliberate", and submitted that they were not accidental or opportunistic offences. The applicant had completed the documents and sworn them before a justice of the peace on different occasions. It was a planned and calculated course of conduct. His claim that he had not at the time known that making of false statutory declaration was an offence was not credible, as everyone knows that: see Miah v RMS [2013] NSWADT 264. His financial position was not relevant to his fitness and propriety.
2. The present case was similar to Karelia v RMS [2017] NSWCATOD 104, involving a taxi driver who made 11 false statutory declarations in order to avoid incurring points. He had said in his written evidence that he had made serious mistakes in the past, which he regretted, and that they would not happen again, not because he was caught, but because they were wrong. Lucy SM had not been satisfied that there had been sufficient change in the applicant since he had made the false declarations, such as to make him now a fit and proper person. He did not appreciate the seriousness of his conduct, which was calculated. The respondent's refusal of a driver authority was affirmed.
3. The applicant's referees were aware of his conduct but gave insufficient weight to its dishonest character. The applicant had intended to deceive, saying that he had wanted to avoid incurring points in order to keep his licence. He had not made an innocent mistake.
4. The applicant in his submissions said that when he had obtained his driver authority in 2013, he did not know the city well and while driving was distracted by passengers giving him directions. He conceded that the false declarations might not have been an innocent mistake, but they were a "stupid mistake". He still had a truck licence and had worked as a truck driver for nine months after he lost his authority in 2014, incurring one speeding ticket. He was unable to work as a truck driver now, however, because he was suffering from a back problem and truck driving involves considerable lifting while loading and unloading the vehicle. He did not say what kind of work, if any, he is now engaged in.
5. Beyond that, he chose not to make any further submissions, relying instead on his written statements.

Consideration

1. Section 52(1) of the PT Act gives this tribunal jurisdiction to review RMS decisions to refuse an authority. Under s 63 of the Administrative Decisions Review Act 1997, the tribunal is to decide what is the correct and preferable decision having regard to the material then before it and the applicable law. In so doing it may exercise all of the functions conferred or imposed by any relevant enactment. It is not restricted to considering the material that was before the respondent when the decision under review was made, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
2. As Montgomery JM explained in Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10, 11, 12], these are not adversarial proceedings in which the applicant carries an onus of proof. By making an application, the applicant triggers a process of merits review by the Tribunal. The applicant does not assume the responsibility of having to prove a case, nor does he or she cause an administrator to have to prove a case. The Tribunal reaches its own conclusion as to the correct and preferable decision and "there is no presumption that the decision of the administrator is correct": McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354, 357.
3. The initial RMS decision dated 7 November 2016 (exhibit R1, page 163) purports to base the refusal decision on s 33 of the PT Act (the internal review decision does not nominate a particular section). That section, however, relates to authorities to drive taxicabs, not authorities to drive private hire vehicles. The corresponding section for driver authorities for private hire vehicles is s 40. As the statutory test in both provisions is the same, namely whether RMS or, by derivation, this Tribunal, can "attest" that the applicant is fit and proper to drive the relevant vehicle, that point is of no practical consequence.
4. Under s 40(3) the purpose of an authority is to attest that the person meets the requirements of the Act for private hire car drivers. The term "attest" is stronger than the concept of being satisfied of something, and envisions the decision-maker assuring the public that the authority holder is of good repute and meets the other criteria in s 40(3): Director-General, Transport New South Wales v AIC [2011] NSWADTAP 65, [12]. As the requirements are cumulative, the inability to attest to any one of them is fatal to an entitlement to a driver authority. Thus, even if the person is of good repute, he or she must in all other respects be "a fit and proper person to be the driver of a private hire vehicle" and must also possess the requisite responsibility and aptitude.
5. In this case the respondent does not allege that the applicant is not of good repute or that he lacks the necessary aptitude, but argues that by reason of his traffic infringements and his making of the false declarations, he is not "a fit and proper person" to be a private hire car driver. The High Court has defined fitness and propriety as incorporating three components: "honesty, knowledge and ability": Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 128, [1955] HCA 28.
6. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, Walters J said in a much-quoted passage: In my opinion what is meant by ["fit and proper"] is that the applicant must show not only that he is possessed of the requisite knowledge of the duties and responsibilities devolving 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.
7. The phrase was also discussed by Mason CJ in Australian Broadcasting Tribunal v Bond; (1990) 170 CLR 321 at [63], [1990] HCA 33 where his Honour said that "[t]he 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".
8. The tribunal elaborated the concept in Saadieh v Director-General, Department of Transport [1999] NSWADT 68, setting out the following factors to be considered in determining a person's fitness and propriety to hold a taxicab 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 reputation in the community; and
• the likelihood that the applicant will reoffend, be the subject of further complaints or commit further traffic offences.

1. Questions of possible hardship to the applicant, and in this case his family both in New South Wales and overseas, cannot be taken into account in determining whether RMS has made the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]. That does not, however, necessarily preclude taking into account hardship factors when evaluating the seriousness of the applicant's offences.
2. Taking the first Saadieh criterion, the nature, seriousness and frequency of the applicant's offences, the applicant committed three speeding violations and one red light offence in March and April 2013, commencing only five weeks after obtaining his driver authority. He then knowingly submitted four false statutory declarations on three occasions between 17 June and 14 August 2013, nominating as driver at the time of a traffic offence a person who he knew was not the driver.
3. The false declaration offences are sufficiently separated in time that they could not be regarded as a single transaction or the result of an isolated act of impulsive wrongdoing. The offences also related to his own driving, the very activity that was the subject of his authority, and as he himself admitted, they were made in order to avoid the recording of penalty points against his licence. I note that he did admit the falsity of his declarations at the first opportunity when interviewed by RMS compliance officers, although by then he had little choice, as it was clear that the person he had nominated, Ms Kaur, held no driver licence or authority of any kind.
4. In this State, making a false declaration for a material benefit is a serious offence. Under s 25A of the Oaths Act 1900, conviction on indictment can lead to imprisonment for up to 7 years. So is making false statements in order to transfer traffic points. In Miah I referred to cases in which prominent persons had received substantial custodial sentences, as well as other adverse consequences, for attempting by false statements to avoid traffic points. Since then a number of other tribunal cases have dealt with false statutory declarations made in similar circumstances. I reviewed several of them in Husain v RMS [2017] NSWCATOD 8, [42] - [46] and there is no need to repeat that discussion here.
5. More recently, in Karelia, Lucy SM affirmed the respondent's refusal of a taxi-driver authority to a driver who had a poor driving record and had made multiple false statutory declarations, although he had not committed any traffic offences for 22 months. Dr Lucy pointed out that honesty is one of the key factors in determining whether a person is fit and proper, and the making of repeated false declarations showed the applicant to be lacking in honesty.
6. In every one of the cases referred to above, the making of even a single false statutory declaration in relation to driving has led the Tribunal to the conclusion that the applicant was not a fit and proper person to hold a driver authority. While every case coming before the Tribunal must be judged on its own merits, that unambiguous line of authority provides guidance as to the appropriate course to be taken in such cases. I therefore find that the applicant's violations are serious.

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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: 24 July 2017