Saadieh v Director General, Department of Transport [1999] NSWADT 68 (25 August 1999)

Last Updated: 6 September 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Saadieh v Director General, Department of Transport [1999] NSWADT 68

REVISION DATE:

DIVISION: General

APPLICANT:

Talal Saadieh

RESPONDENT:

Director General, Department of Transport

FILE NUMBERS: 993139

HEARING DATES: 11/08/99

SUBMISSIONS CLOSED: 11/08/1999

DECISION DATE: 25/08/1999

JUDICIAL MEMBER: N Hennessy Deputy President

LAY MEMBER:

LAY MEMBER:

APPLICANT KEYWORDS: Review of decision to cancel taxi-cab authority

MATTER FOR DECISION: Principal matter

PRIMARY LEGISLATION CITED: Passenger Transport Act 1990

APPLICANT REPRESENTATIVE: In person

RESPONDENT REPRESENTATIVE: A C Wozniak, solicitor, Smythe & Mallam

ORDERS: 1. The decision of the Director General of the Department of Transport to cancel the applicant's taxi authority is affirmed.

DECISION:

Background

1 On 15 June 1999, the Director General of the Department of Transport cancelled the applicant's authority to drive a taxi on the grounds that:

". . . the behaviour and nature of the offences that led you to being convicted of larceny at Parramatta Local Court on 16 September 1998 and at Fairfield Local Court on 10 December 1998 and your conviction for possessing a prohibited drug at Parramatta Local Court on 21 December 1998 casts serious doubt in regard to your reputation and fitness to hold an authority to drive a public passenger vehicle.

2 An internal review was conducted on 24 June 1999 which affirmed the original decision. Pursuant to the Passenger Transport Act 1990 s 52(1) a person whose application for such an authority has been refused may apply to the Administrative Decisions Tribunal for a review of that decision. The applicant made such an application on 29 June 1999.

Evidence

3 The complainant gave evidence that he commenced using heroin on 16 January 1997 and stopped on 17 November 1998. He used heroin every day and admits that during that time he stole to get enough money to buy heroin. He was driving a taxi during this time but says that he would not drive until 6 or 7 hours after he had taken heroin.

4 The offences the applicant has been convicted of are:

larceny on 16/9/98 (charged on 25/8/98 and fined $250);

larceny on 10/12/98 (charged on 19/10/98 and fined $300);

possession of a prohibited drug on 21/12/98 (Charged on 17/11/98 and fined $400);

enter enclosed land without lawful excuse on 10/12/98 (charged 27/10/98 and fined $200); and

actual possession of forged prescription on 10/12/98 (charged 4/11/98 and fined $100).

5 The applicant also admits that he made a false statement to police and provided false information to Premier Cabs. The false information was that the reason he stole was because his father would be angry if he didn't come home with a certain amount of money.

6 The applicant said that on 17 November 1998, the day he was arrested for possessing a prohibited drug, his father arranged for a medical practitioner to visit and Naltrexone was prescribed. The doctor visited every day to counsel the applicant and make sure that he was staying off drugs. He continued to take Naltrexone for between 5 and 6 months. He then stopped taking the tablets, had a urine test which was clear, and went overseas for seven weeks.

7 Mr Saadieh tendered two medical certificates from Dr Tamer Kahil, one dated 28 November 1998 and the other dated 4 August 1999. The first stated, in part, that Mr Saadieh was on a Naltrexone programme and doing well. The second stated that Mr Saadieh was "off Naltrexone treatment and passed the Naltrexone challenge test on 31 July 1999. His urine drug-screening test performed on 2/8/99 is negative for the known drugs of abuse."

8 The applicant said that he has resumed a full time course in mechanical engineering this semester. He says he is studying hard and has lectures most of the day. He has 18 months to go to finish this course. If he was to get his licence he would only be able to drive part time.

9 In relation to the offences, he said that he had been stealing and lying to support his heroin addiction. The offences included shop lifting, stealing a doctor's prescription pad and going to a burnt out house for the purpose of using heroin. During cross examination, the applicant admitted that he knew he could lose his authority if he committed these kinds of offences.

Findings of fact

10 Mr Saadieh was an honest and credible witness. He answered the questions I asked him and those asked during cross examination in a very frank and open manner. He admitted that he committed offences to sustain his heroin addiction. Beginning in November 1998 he has made a sustained effort to change his lifestyle. He is not dependent on drugs at the moment, thanks to the Naltrexone program and the support he has been given by his doctor and his family. He is determined to continue with his education and stay off drugs.

Application of the law

11 The Passenger Transport Act 1990 (NSW) s 12 gives the Director General a discretion to grant authorities, having regard to the purpose of that authority. Sub-section 11(2) sets out the purpose of an authority in the following terms:

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 public passenger vehicle; and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

(i) in accordance with the conditions under which a public passenger service is operated; and

(ii)in accordance with law and custom.

12 The issue in this case is whether, in the light of the responsibilities and expectations of a taxi driver, the applicant is a "fit and proper person" to hold a taxi authority. Being a "fit and proper person" includes being of "good repute." The respondent quoted Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393) in the following terms:

A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as 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. . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation.

13 The case of Sakellis v Officer in Charge of Police, Paddington [(1968) 88 W.N. 541 was also quoted in support of the proposition that:

"It would be difficult indeed to hold that a man who was convicted of breaking, entering and stealing could be regarded as a man of good character, even if it could be said that he was of good character at the present time." (at p 545 quoting Herron J in Ex parte Davis (1949) 50 SR (NSW) 158 at 167)

14 If the respondent is submitting that once a person has committed a dishonesty offence such as breaking, entering and stealing, he can never again be regarded as a person of good character (or in this case, "good repute") then I reject that proposition. If it were otherwise any conviction for a dishonesty offence would automatically prevent a person from re-applying for a taxi authority. The Director General has not interpreted the legislation in this manner, nor do I think it correct to do so.

15 Furthermore, 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 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 be obtain or retain such an authority.

16 Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63] said that:

"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."

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.

18 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.

19 Applying these factors to the present case the applicant has been convicted of two shop lifting offences, possession of a prohibited drug, entering land without a lawful excuse and dishonest use of a prescription pad. He also admits giving false information to the police and to Premier Cabs. Most of these offences are dishonesty offences and none involve violence. These offences occurred in 1998. Apart from these offences, there is no other evidence of the applicant's reputation.

20 The likelihood that the applicant will re-offend is dependant on several factors. The offences were all committed before November 1998 and were, without exception, perpetrated in order to sustain his heroin habit. The applicant has freely admitted responsibility for these offences and shows genuine remorse. He started on the Naltrexone program in November 1998 and I accept that he completed that program about five months later and has not taken illegal drugs since that time. He is currently engaged in tertiary study full time.

21 Given these circumstances the likelihood that the applicant will start taking heroin again and re-offend is low. However, given that only five months have passed since the applicant completed the Naltrexone program, I accept the respondent's submission that it is probably too soon to be confident that Mr Saadieh has been fully rehabilitated. A passenger in a taxi passenger would be justifiably concerned to know that their driver had completed a rehabilitation program only five months ago.

22 The respondent suggested that the Department of Transport would probably give the applicant a taxi authority in six months time if Mr Saadieh could provide evidence of a drug free lifestyle during that time.

23 The decision of the Director General of the Department of Transport to cancel the applicant's taxi authority is affirmed.