Singh v Roads and Maritime Services

NCAT Occupational|2017-05-09

Background

In August 2016 Mr Singh applied to the Respondent (RMS) for an authority to drive private hire vehicles (an Authority). Mr Singh's application was refused and he requested an internal review by RMS. On 7 December 2016, the internal review affirmed the original refusal decision (the Review Decision). On 6 January 2017, Mr Singh applied to the Tribunal to review the Review Decision (the Application).

Jurisdiction of the Tribunal

The Application was made pursuant to s 52 of the Passenger Transport Act 1990 (the Act) which relevantly provides that a person whose application under Part 4A of the Act (which includes an application for an authorisation to drive private hire vehicles) has been refused, may apply to the Tribunal for an administrative review, under the Administrative Decisions Review Act 1997 (the ADR Act), of the refusal. All references throughout these reasons to legislative provisions are to provisions of the Act or the Passenger Transport Regulation 2007 (the Regulations) unless stated to the contrary.
Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision such as the Review Decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.

Material before the Tribunal

RMS relied on a bundle of documents filed with the Tribunal on 7 March 2017 pursuant to s 58 of the ADR Act (the s 58 documents) and oral submissions by Mr Wozniak, solicitor for RMS.
All references in these reasons to pages of any document are to pages of the s 58 documents unless stated to the contrary
The Applicant relied on 1. the grounds in his Application; 2. a bundle of documents filed with the Tribunal on 6 April 2017; 3. some of the s 58 documents; and 4. his oral submissions.

The Respondent's case

In summary, RMS relied on a National Police History Check in respect of Mr Singh (at pages 1 and 2) and Mr Singh's driving record issued by Service NSW on 16 August 2016 (at pages 3 to 5) (the Driving Record).
Mr Wozniak submitted that: 1. the Police History Check and Driving Record stopped both RMS and the Tribunal from being satisfied that Mr Singh had satisfied statutory requirements; and 2. Mr Singh's convictions were evidence of bad repute and there was no satisfactory evidence of Mr Singh's good repute before the Tribunal, Accordingly, neither RMS nor the Tribunal could provide the attestation required for an Authority.

Mr Singh's case

Mr Singh did not dispute the accuracy of the Police History Check or the Driving Record. He relied on written explanations and apologies he had provided to the court which had convicted him in July 2015 (at page 2), to RMS on 9 September 2016 (at page 25) and 24 November 2016 (at pages 32 to 37), and a further explanation he provided to the Tribunal on 6 April 2017 as part of his bundle of documents, together with his oral submissions.
Mr Singh gave no oral evidence to the Tribunal. In his submissions, he acknowledged that he was at fault in respect of the matters raised by RMS and said he took those matters seriously.
Mr Singh asked for a chance because of his little toddler and the beneficial effect on his family if he was granted an Authority.

Legislative scheme

Division 5 of Part 4A of the Act (ss 40 to 40E) contains provisions in respect of Authorities. Section 40(1) and (2) relevantly provide that RMS may, by issuing Authorities, authorise persons to drive private hire vehicles. Without an Authority, a person who drives a private hire vehicle is guilty of an offence. Section 40 (3) provides that the purpose of an Authority 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.
Section 40B provides that RMS may grant Authorities to applicants and requires that the applicants must meet any criteria set out in the Regulations and must satisfy RMS as to any matter RMS considers relevant.
Clause 29 relevantly requires that for the purpose of s 40B (2): 29 Criteria for authorisation to drive public passenger vehicles (2) The applicant: …. (e) must satisfy RMS that he or she: (i) …. and (ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and (iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom.
The Regulations do not define "public passenger vehicle". However, the Regulations are a legislative instrument made under the Act. The Interpretation Act 1987 provides at s 11 "Words etc in instruments under an Act have same meanings as in the Act …."
Section 3 provides that in the Act "public passenger vehicle" is defined to include "private hire vehicle".
Accordingly, I find that a private hire vehicle is a public passenger vehicle for these proceedings.

Issues before the Tribunal

Having regard to the above legislative provisions I find that in order for the Application to succeed, Mr Singh must satisfy RMS, and in these proceedings he must satisfy the Tribunal, as to the matters referred to in cl 29(2)(e)(ii) and (iii) outlined above.
Accordingly, the issues before the Tribunal are whether Mr Singh is considered to be of good repute and in all other respects a fit and proper person and to have sufficient responsibility and aptitude to be a private hire vehicle driver (Driver) and convey members of the public in accordance with s 40.

The Applicant's relevant history

Mr Wozniak orally submitted that the decision to approve or refuse the Application must have regard to the Applicant's criminal history and driving record.

Police History Check

The Police History Check contains two convictions.

January 2009, a conviction for "drive with middle range PCA";

The Police History Check records a penalty of $550 fine, court costs of $73 and disqualification for 12 months commencing December 2008.
Mr Singh's statement at page 37 included an expression of apology for the incident, which occurred on 23 December 2008. He stated: ….. I was with my best friend and his friend and we had attended a party. My best friend was very drunk and was forcing to drive the car. Unfortunately the girl did not know how to drive; else she would have been driving the car that day. Hence, I had to drive, though according to me, I was in my complete senses as I just had one and a half drink and also had a dinner after that, so I believed my content of alcohol was not to a level where I can lose my consciousness, hence I started driving keeping in mind the urgency of situation because my friend was very drunk, he even refused to wear the seat belt after asking him to do many a times. I do have a copy of police report, which clearly describes the above incident. If required, I can provide you with that. I was on my international licence as I was a student then and I was really not much aware of the rules and regulations of this country. But since then, nothing of this sort has happened as I really respect the laws of this country and understand that it is for benefits and safety of citizens. I apologies for my mistake which I done unintentionally.
I find that, notwithstanding the apologies, there is no explanation of any particular urgency requiring Mr Singh to drive, and Mr Singh acknowledged he drove a vehicle with a passenger who refused to wear a seat belt. Mr Singh states that he was not aware of local legal driving requirements and had apparently not thought to ascertain same before he drove. His explanation as to the amount of alcohol he had recently consumed appears at odds with a conviction for mid-range PCA.
I also find that the event occurred over 8 years ago. However, notwithstanding Mr Singh's statement "since then, nothing of this sort has happened as I really respect the laws of this country and understand that it is for benefits and safety of citizens" the Driving Record details six subsequent driving offences, one of which involved driving after consuming excessive alcohol.
On 4 November 2012 Mr Singh was detected driving with a low range concentration of alcohol for which he was fined and disqualified. The fact that on appeal, the offence was found proved, the conviction was dismissed under s 10 and Mr Singh was placed on a good behaviour bond for 2 years, does not detract from the occurrence of the event. Nor does it detract from the inaccurate statement that since the offence of 2008 "nothing of this sort has happened".

July 2015, a conviction for Affray - T1.

The Police History Check records a penalty being a fine of $1,000.
Mr Singh submitted that he was acting in self-defence when a group of eight boys who were very drunk started arguing with him and hitting him.
Mr Singh's submissions relied heavily on reference letters from restaurant owners who saw what was happening and agreed with him, and on video footage of the incident from CCTV. Mr Singh said the references were produced in court in July 2015 and the CCTV footage was played in court. Mr Singh also said he pleaded guilty because he did not want any further trouble, he was "critically harmed by those boys" and he did not have enough money to engage a lawyer to assist him.
Notwithstanding Mr Singh's submissions in the immediately preceding paragraph, he said his guilty plea was accepted and he was convicted of affray and fined $1,000.
Mr Singh's statement at page 37 says he has a copy of the CCTV record of the incident and "the reference letters from the three restaurant owners describing my innocence". When I asked Mr Singh to produce the video and the references he said the video was with the police and he had not kept copies of the references. He asked for an opportunity to obtain them.
Section 38 of the Civil and Administrative Tribunal Act 2013 (CAT Act) enables the Tribunal to: (2) …. inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (4) …. act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities …. and (c) …. ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered …. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings,
At the Tribunal's directions hearing on 7 March 2017, Mr Singh was directed to give to the Tribunal and RMS "any material" on which he relied, on or before 11 April 2017. Mr Singh provided to the Tribunal the bundle of documents referred to at [6] above but did not provide anything to RMS. The bundle contained a one-page submission and several pages of bank statements, invoices to Mr Singh and default notices addressed to him. Mr Singh provided no CCTV record or references to either RMS or the Tribunal.
Mr Singh informed the Tribunal that he had not sought legal advice, whether from Legal Aid or elsewhere, in relation to these proceedings.
It seems to me that Mr Singh has already had his opportunity to obtain and provide the video footage and relevant references. He did not do so.
Having regard to the guiding principle for the Tribunal's proceedings "to facilitate the just, quick and cheap resolution of the real issues", s 36 CAT Act, I declined Mr Singh's request to adjourn the proceedings to enable him to provide additional material.
Mr Singh's only evidence in support of his statement that he was "critically harmed" on 14 June 2015 are medical certificates at pages 30 and 31. The first medical certificate, from Auburn Emergency dated 15 June 2015, states that Mr Singh will be unfit for usual activities from 15 to 16 June 2015. The second certificate, dated 18 June 2015, certifies that he is suffering from a medical condition and will be unfit for work on 18 and 19 June 2015 inclusive.
It may well be that the certificates are consistent with Mr Singh having been involved in a physical dispute on 14 June. However, the medical certificates provide no indication as to the reason for Mr Singh's unfitness for usual activities / work. I find that the certificates do not support his statement that he was "critically harmed" on 14 June, instead they raise questions as to the reliability of his evidence.

Driving history

The Applicant's undisputed driving record in evidence discloses the following:

23 December 2008 - drive with middle range concentration of alcohol

Mr Singh's statement and submissions are referred to at [23] to [25] above.

23 December 2010 - disobey traffic lights

Mr Singh made no submission in relation to this event.

12 January 2012 - disobey traffic lights

Mr Singh's statement at page 36 is: On that day, I was driving under the authorised speed and all the cars in front of me had already crossed the lights and the car behind me was very close to me as well, hence I also drove on the yellow lights assuming I would be able to make it as the car behind me was also very close, so I thought two people can't have the same wrong judgment, if he is also crossing. I am ahead of him and it's still yellow, hence I proceeded and I missed it with just fraction of seconds. I do understand that signal are to control the traffic and are for the safety of the people, therefore I would like to apologise for it and assure you, nothing like this will even occur in future.

26 May 2012 - not stop at red arrow

Mr Singh's statement at page 36 is: I turned left on the orange arrow, my bad luck, the traffic was jammed and the cars were not moving in that lane, and I had already turned left on range arrow, I was stuck and could not even reverse back as cars were cued behind. Therefore, i did not do it intentionally, it all occurred due to the traffic jammed. I regret for it

4 November 2012 - drive with low range concentration of alcohol

Mr Singh made no submission in relation to this event. It was his second alcohol-related offence in a four-year period.

31 October 2013 - unlicensed driver / rider

Mr Singh's statement at page 36 is to the effect that he was stopped by police carrying out a random breath test and found that his licence had expired on the date he was stopped. He had not realised his licence had expired and he should have been more careful. He renewed his licence the following morning. He was sorry for his negligence and gave an assurance that such a thing would never happen again.

7 November 2015 - drive across dividing lines to perform a U-turn

Mr Singh's statement at page 35 was to the effect that he received a call from his wife that his 10-month-old son was not feeling well and needed to be taken to a doctor. He stated: …. everyone was taking the same U-turn, I also make a U turn to reach home to take my son to doctor as soon as possible. I released I did wrong and should have abide rules, but since everyone was doing it and there was a traffic jam ahead I was worried for my son and took wrong decision.
The evidence discloses Mr Singh committed seven driving offences within seven years, the last occurring some 18 months before the hearing. Two of the offences related to driving after excessive consumption of alcohol. During the period since the first offence the Driving Record discloses Mr Singh has been sent several warning letters including a Habitual Offence Warning, he has been disqualified from driving, had his license suspended and been placed on a good behaviour bond.

"Good repute" and "fit and proper"

Section 63 of the ADR Act empowers the Tribunal, for the purpose of these proceedings, to exercise all the functions that are conferred or imposed by any relevant legislation on RMS.
Accordingly, s 40B and clause 29 together with s 63 of the ADR Act require that, in order to succeed in his application, Mr Singh must satisfy the Tribunal that he is of good repute and in all other respects a fit and proper to be the driver of a private hire vehicle.
A preliminary question is, what is repute?
In Re T and Another and the Director of Youth and Community Services (1980) 1 NSWLR 392, a matter which dealt with an appeal against a refusal by the Director of Youth and Community Services to enter the names of a man and his wife in a statutory Adoption Register substantially because the man was not "of good repute" within the meaning of the Adoption of Children Act 1965, Waddell J said. (23) Before turning to consider the evidence, it is convenient to state what is meant by "good repute", and by what evidence repute should be proved. In the present context, the word "repute" simply means reputation … "Reputation" means "the common general estimate of a person with respect to character or other qualities; the relative estimation or esteem in which a person is held": …. This definition makes it clear, as is the law, that a person's reputation is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession …. (24) How is reputation to be proved? …. (25) Such evidence should theoretically take the form of a witness qualifying himself to speak as to the reputation of the person in question by stating that he knows him well, that he has had the opportunity of becoming aware of the opinion of his character held generally by the members of the neighbourhood in which he lives, or of some other relevant group of persons, and that his general reputation during the time in question has been such and such. In Plato Films Ltd v Speidel [[1961] AC 1090] Lord Denning said: "this leads me to the conclusion that, in order to arrive at a man's character and reputation, you should call those who know him and have had dealings with him: for they provide the only sound foundation on which to build ….
Mr Wozniak submitted that a conviction is itself evidence of bad repute. In doing so he relied on Re T.
Mr Wozniak's submission is very wide and, on my reading of Waddell J's reasons, is not supported by Re T.
Waddell J placed substantial reliance on the judgments of Lord Denning MR and Salmon LJ in Goody v Odhams Press Ltd [1967] 1 QB 333, a defamation case.
At (30), Waddell J quoted Lord Denning MR who said "…. I think that previous convictions are admissible …. They are the raw material upon which bad reputation is built up." However, the quotation continued "…. They must of course be relevant, in this sense, that they must be convictions in the relevant sector of his life and had taken place within a relevant period such as to affect his current reputation."
Waddell J said at (32): …. while Salmon LJ expressed the view in that case that it would have been impossible for the plaintiff not to have acquired a bad reputation, it by no means follows that evidence of any conviction leads to such a conclusion. In each case, the nature of the crime of which the person has been convicted, and the circumstances, must be considered before inferring that as a result he would have acquired a bad reputation.
Accordingly, I find that Mr Wozniak's submission that a conviction is itself evidence of bad repute is not supported by the authority he relied on. Mr Wozniak provided no other support for his submission and I reject it.
In Saadieh v Director General, Department of Transport [1999] NSWADT 68 Hennessy DP said, in a review of a decision to cancel a taxi authority and having regard to ss 11 and 12: 15. … I do not accept the respondent's submission that the applicant is not of good repute merely because his criminal record indicates bad repute and there is no other evidence of repute. Many applicant's (sic) before the Tribunal are unrepresented. They do not understand, nor should they be expected to understand, that references or other evidence of their repute in the community would be useful in counteracting any evidence of bad repute which can be assumed on the basis of a criminal conviction. A person's criminal record alone is not necessarily evidence of bad repute which is sufficient to disqualify that person from holding a taxi authority. All the circumstances of the case must be taken into account in assessing a person's suitability to obtain or retain such an authority 17. Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: 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 Singh v Director General, Department of Transport [1999] NSWADT 96 Hennessy DP referred to her decision in Saadieh and said in relation to the last factor: 33 I also noted in that case that in assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; 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; and any change in the applicant's circumstances such as increased support from friends, family or professional service providers.
Hennessy DP continued: 35 Similarly, his traffic infringements which include several speeding infringements and driving without a licence, have continued despite losing his licence.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Mason CJ said at [63]: 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.
Having regard to the material before the Tribunal I find that there is no evidence from any person other than Mr Singh, that he is of good repute. I have regard to the reasons at [12] in Saadieh which have been extracted above to the effect that "unrepresented applicants may not be expected to understand that references or other evidence of their repute in the community would be useful in counteracting any evidence of bad repute which can be assumed on the basis of a criminal conviction". However, having provided references in his criminal proceedings in 2015, it is apparent that Mr Singh has been aware since at least 2015 of the potential benefit to him of providing references.
Mr Singh was directed by the Tribunal on 7 March to give to the Tribunal any material on which he relied on before 11 April. Mr Singh chose not to obtain and provide references.
The only evidence on which Mr Singh chose to rely in respect of his traffic infringements was his own statements, made in 2015, 2016 and repeated to the Tribunal, that he apologises for his errors and will not repeat them especially as he is the father of a young child and has family responsibilities.
Mr Singh's evidence is that his child was 10 months old in November 2015. Accordingly, it appears that his child was born in January 2015 and Mr Singh was convicted of affray occurring in June 2015 and committed a driving offence in November 2015.
It may be, as Mr Singh submitted, that having family responsibilities has caused him to be more responsible than previously. However, having regard to the material before me, I find it difficult to accept his statement at [64] at face value.

Mr Singh's personal interests and financial hardship

Mr Singh has apologised for most of his offences and undertaken that they would not be repeated. However, he has continued to commit driving offences.
Mr Singh also submitted that he deeply regrets his decisions and they have produced a drastic result for him and his wife and young child. He thinks about giving his family a good life but understands that he cannot earn additional money due to his mistakes. Mr Singh asked that the Tribunal understand his situation and submits that he is "a completely changed person fully focused on family development". He requests that an Authority be issued "to prove his sincerity".
Mr Wozniak submitted that any financial hardship suffered by Mr Singh not having an Authority was not relevant to the proceedings. He relied on the decision in Lal v Director-General, Department of Transport [2001] NSWADT 74. That decision has been referred to in several decisions of the Tribunal and its predecessor the Administrative Decisions Tribunal.
In Mahommed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62 the Appeal Panel said at [17] and [18]: The jurisdiction in this field is protective not punitive. In Khan v Roads and Maritime Services [2014] NSWCATOD 23 at [25] it was said, in terms which we would adopt, that: It was submitted that the applicant is a very simple and honest person. He supports his wife and four children and a parent. They are currently renting a house for $290 per week and they have no savings. The cancellation of his driving authority would create severe financial hardship for him and his family and was unreasonable and excessive. However, possible hardship to the applicant, or his family, cannot be taken into account in determining the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]. Similarly, the purpose of a driver authority is to have the regulator (that is, the respondent, or on review the Tribunal) "attest" that a driver is of "good repute", is "fit and proper" to be a taxi driver, and has "sufficient responsibility and aptitude" to drive taxis. It is not about giving a driver another go." (emphasis added)
The objects of the Act are set out at s 4. Those objects include "…. to require the …. authorisation, by RMS, of …. drivers involved in public passenger services …. and …. to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services …."
I accept that the purpose of the Act is protective of the community. Accordingly, while Mr Singh's personal financial situation is of substantial importance to him and his family, the legislative objects and the focus of the Tribunal in deciding whether to grant an Authority, are to ensure that the interests of the public take priority over personal interests of an applicant. Accordingly, the Tribunal's duty is not based on giving an applicant an opportunity to "prove his sincerity" or "give him another go".

Attestation

Mr Wozniak submitted that the decision in Director General, Transport NSW v AIC [2011] NSWADTAP 65 states that the requirement in s 40(3) of attestation of good repute involves a declaration of public trust and the Tribunal cannot make such an attestation having regard to the Police History Check and the Driving Record.
In AIC the Appeal panel said at [12]: 12 The first point to note is the use of the word 'attest'. The primary meaning of this word is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' (Macquarie Dictionary, 4th ed. 2005). The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust ....
Having regard to the material before the Tribunal in the Police History Check and the Driving Record and having regard to previous decisions of courts and tribunals referred to above, I accept Mr Wozniak's submission.

Decision

Mr Singh has accepted some responsibility for his traffic infringements. However, excusing himself by saying that other people were committing the same infringements does not indicate to me that Mr Singh exhibits sufficient responsibility to drive a private hire vehicle. Similarly, entering intersections on yellow when the intersections were not clear of traffic and not ensuring that his licence was current before driving, do not help his application.
It may well be that at some time in the future, it will be possible or appropriate for RMS to attest to Mr Singh's good repute and that he is a fit and proper person for the relevant purpose, and grant him an Authority. However, I find that that time has not yet occurred.
Having regard to the undisputed facts, the parties' submissions and my above findings I cannot at this time attest that Mr Singh is of good repute and is in all other respects a fit and proper person and has sufficient responsibility to drive a private hire vehicle.
The correct and preferable decision of the Tribunal, having regard to the material before me and the findings made above, is that the decision under review 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: 23 May 2017

At a glance

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Judgment (23 paragraphs)

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Cases Cited (4)

Cited By (1)