Singh v Roads and Maritime Services

Consideration

The tribunal has jurisdiction to hear and determine appeals from decisions of the respondent to refuse a driver authority, pursuant to s 29 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and s 52 of the PT Act. The tribunal's function in relation to such appeals is laid down in s 63 of the Administrative Decisions Review Act 1997 (ADT Act): 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
It is well established that in considering an application for review, the tribunal is not restricted to a consideration of the material that was before the respondent, 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. The tribunal is to make its own decision and there is no presumption that the respondent's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354, 357. Nor is there a burden or onus of proof: Bronze Wing Ammunition Pty Ltd v SafeWork New South Wales (No. 2) [2016] NSWSC 988, [74] - [77]; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [30], [34].
The respondent's case under s 40 of the PT Act was based on the applicant's not being "a fit and proper person to be the driver of a private hire vehicle", and the authority under that provision can be granted only if it is possible to "attest" that the person is fit and proper to drive a private hire vehicle. As the appeal panel noted in Director-General, Transport New South Wales v AIC [2011] NSWADTAP 65, [12], "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. While this is true of all licensing, the word gives special emphasis to it in the present context".
The concept of fitness and propriety goes to an individual's intrinsic characteristics (AIC, [27]) and is to be assessed in the context of the nature and purpose of the activities that the person is seeking to undertake: Sodiki v Roads and Maritime Services [2013] NSWADT 145, [38]. The question before the tribunal is thus whether the applicant is a fit and proper person to drive a private hire vehicle.
The High Court has explained that assessing whether a person is fit and proper to hold a licence is a value judgment, involving concepts that should not be "narrowly construed or confined" and may extend to "any aspect of fitness and propriety that is relevant to the public interest": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 348. Toohey and Gaudron JJ at 380 went on to say: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.
In the context of driver authorities, the process of evaluating fitness and propriety also requires the tribunal to imagine the possible reactions of members of the travelling public. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40, quoting from Mayathisathit v Registrar of Motor Vehicles [1986] ACT 165: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi" (at [55]).
The applicant in this case does not seek a taxi authority but wishes to become an Uber driver, which is a service involving some novel features. It is sometimes referred to as "ride sharing", but that term seems inappropriate, as it suggests something in the nature of carpooling. The widely-used Associated Press Stylebook prefers the term "ride-booking", which seems more apt. There is, however, no special type of authority for ride-booking services. Aspiring drivers must apply for a private hire vehicle driver authority in the same way as drivers of hire cars and limousines.
Relevant in this case are Hennessy DP's comments in Saadieh v Director-General, Department of Transport [1999] NSWADT 68, [17]. In the context of a taxi licence, the tribunal identified factors relevant to fitness and propriety as including -

the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
the applicant's reputation in the community; and
the likelihood that the applicant will reoffend, be the subject of further complaints or commit further offences.

On the basis of the two character references outlined above, I am satisfied that the applicant enjoys a good reputation in the community. The case against him, however, rests on his two PCA convictions and his conviction for failing or refusing to take a breathalyzer test. In his favour is the absence of any charges or complaints involving violence, dishonesty, sexual misconduct or abusive language.
The convictions, however, are serious. From the documentary evidence it appears that the 2011 convictions, although entered on the same date at the same court, related to separate incidents, and the applicant did not deny that such was the case. In other words, having been arrested on one charge, he promptly proceeded to commit a further drink-driving offence. That suggests a reckless attitude to law-breaking.
The convictions are aggravated by the fact that notwithstanding his experience of being charged, convicted and disqualified for a PCA offence in 2007, he proceeded three years later to commit the same kind of offence again. They are also of particular seriousness as they relate directly to his driving and to public safety. One of his referees states that the violations occurred at a time when he had suffered a series of bereavements, but there are many ways of coping with tragedy other than drinking and driving. He also said that he had failed successfully to undergo a breath test for reasons that were beyond his control, namely that he suffered a panic attack that impaired his breathing. There is insufficient evidence to support that claim, and indeed there is nothing to suggest that he advanced it in the Local Court or at any other prior stage of the application.
The applicant submits that he needs the driver authority so that he can work to support his family, as his current employment is purely part-time. Questions of possible hardship to the applicant or his family cannot, however, be taken into account in determining whether the respondent has made the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47].
Under the Saadieh test, the tribunal should also consider the likelihood that the applicant will reoffend. He points out that it is six years since his most recent convictions and states that he is remorseful for his violations and has resolved that there will be no repetition. As matters stand, however, he is objectively a repeat offender in relation to serious driving offences. Placing oneself in the position of a member of the public using ride-booking services, as contemplated in the taxicab context by Naziry, one may reasonably conclude that many prospective passengers would have serious misgivings about having him as their driver, as compared with a person having no such convictions.
The respondent submitted that insufficient time had elapsed to justify a conclusion that the applicant would be unlikely to reoffend. In my view that submission is correct. While the applicant now appears to be on the right path, further time without adverse notice, or some equally cogent evidence of rehabilitation, is required. I find that the evidence as it stands is simply insufficient to enable the tribunal to attest to the applicant's being a fit and proper person to hold the driver authority. The decision under review must be affirmed.

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Cases Cited (7)