Bhuiyan v Director General, Department of Transport [2000] NSWADT 129 (11 September 2000)

Last Updated: 12 December 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Bhuiyan -v- Director General, Department of Transport [2000] NSWADT 129

PARTIES: APPLICANT

Rahul Bhuiyan

RESPONDENT

Director General, Department of Transport

FILE NUMBERS: 003151

HEARING DATES: 10/08/2000

SUBMISSIONS CLOSED: 10/08/2000

DECISION DATE: 11/09/2000

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Passenger Transport Act 1990

CASES CITED:

APPLICATION: Review of decision to cancel passenger transport authority

MATTER FOR DECISION: Principal decision

APPLICANT REPRESENTATIVE: In person

RESPONDENT REPRESENTATIVE: A Wozniak, solicitor

ORDERS: Decison of Director General to cancel Mr Bhuiyan's passenger transport authority is affirmed.

Reasons for Decision:

REASONS FOR DECISION

Background

1 On 10 May 2000 Mr Bhuiyan applied to the Tribunal for a review of a decision of the Director General, Department of Transport to cancel his authority to drive taxi cabs. This was the second time Mr Bhuiyan's authority had been cancelled. The trigger for the most recent cancellation was that Mr Bhuiyan's had been the subject of two complaints from passengers. His authority was originally cancelled because of a seven complaints involving allegations of incivility, driving in a dangerous manner, unable to comprehend English, failure to complete hiring and lack of knowledge of major destinations. An internal review of the decision to cancel his authority was carried out on 23 May 2000. That review affirmed the original decision.

Jurisdiction

2 Pursuant to s 52(1) of the Passenger Transport Act 1990 (the Act) a person whose application has been refused or whose accreditation or authority has been varied, suspended or cancelled, may apply to the Administrative Decisions Tribunal for a review of that decision.

Issues and Legislation

3 Section 14 of the Act gives that Director General power to cancel a licence:

Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.

4 The purpose of an authority is set out in s 11(2) which provides that:

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.

5 The issue in this case is whether the Director General made the correct and preferable decision in cancelling the applicant's taxi authority.

Evidence

6 Mr Bhuiyan was first issued with a taxi authority on 24 April 1995. Following three complaints concerning poor location knowledge and incivility, his authority was suspended on 6 May 1996. He was required to undergo a computer based regulation and location tests. After several attempts, he passed that test on 5 July 1996. He was re-issued with a licence but four more complaints were subsequently made against him.

7 Brief details of the seven complaints made against Mr Bhuiyan during the period from 19 September 1995 to 15 August 1997 and Mr Bhuiyan's response, in brackets, are as follows:

9/12/95 - fail to complete hiring; driver lack of knowledge of major destinations (passengers were drunk and arguing among themselves);

18/2/96 - driver lack of knowledge of major destinations (charges are not true);

3/3/96 - incivility, fail to complete hiring, not drive by shortest route, unable to comprehend or speak English (passengers were drunk and arguing, I felt threatened and asked them to get out; the other allegations are not true);

19/9/96 - incivility, drive dangerously, fail to complete hiring (passenger was confused and became irate);

19/2/97 - fail to complete hiring, incivility (passenger did not know where she wanted to go and could not speak English very well and I asked her to get out of the taxi);

25/5/97 - drive in a dangerous manner (cannot recall this journey)

20/6/97 incivility, fail to afford reasonable assistance (allegations are untrue);

8 As an example, the 25 May 1997 complaint was supported by a letter from the passenger concerned which said, in part, that:

It was the most hair-raising drive I've ever had with a legion driver . . turning a corners nearly went into a bus coming in the opposite direction. He shot passed Forbes Street and so endeavoured to back in the middle of the road, turned left instead of right and then did a U turn in the middle of road. All the time it appeared to me that he'd seldom been behind a wheel in a car and was so hesitant and dreamy.

9 As a result of the complaints summarised above, Mr Bhuiyan's authority was cancelled by letter of 12 August 1997. After re-applying for an authority, Mr Bhuiyan was issued with a one year authority on 14 February 1999 on condition that he undertake and pass the communication and customer care modules at one of the accredited taxi training schools. The letter also stated that: "I am obliged to inform you that if you come under any further adverse notice, consideration will be given to the suspension and/or cancellation of your authority."

10 Within the next six months two further complaints were received by the Department and, after investigation, Mr Bhuiyan's authority was cancelled again. These complaints will be discussed in some detail as they were the triggers for the most recent cancellation.

11 Both incidents allegedly occurred in May 1999; one on the 6 May and the other on the 28 May. In relation to the 6 May incident, the Department received a letter of complaint dated 17 May 1999 in which the complainant quoted Combined Taxi 1660 and drivers photo no was EP 1696. These details correspond with Mr Bhuiyan's taxi and photo numbers. The letter stated, in part, that:

For the entire journey he drove erratically. I'd like to make it clear he wasn't speeding. I got the impression he had not been driving cars very long. The only way I can describe the way he drove was as if I was in a dodgem car as stupid as it sounds. He'd go quick, stop, go quick, stop, braking very hard for no reason.

I was in fear of my life not knowing whether to jump out at a set of traffic lights or what to do . . .

12 Mr Bhuiyan's response to the Department was that he did not recall this journey. He added that:

Please note, I am driving taxi in Sydney since 1995 and have been to all the suburbs of Sydney many times over. It is unfair on me to be accused of "not having knowledge of major destinations." In reality, I have sound knowledge on how to get to places in Sydney and in the "Locality and Knowledge Test" I had score of 100%.

I do not recall picking up any passenger from North Sydney to Collaroy on Thursday 5 May 1999.

13 In a letter dated 5 October 1999 Mr Bhuiyan wrote to the Department in relation to 6 May incident saying that "I wish to advise that the incident on 6 May was not my taxi and I did not carry that passenger."

14 The second complaint from a person whose name has been deleted from the file, was made on 2 June 1999. It relates to an incident which allegedly took place on 28 May 1999. The letter of complaint states, in part, that:

About 5 minutes into the trip on the Warringah expressway he moved into the next lane a few times and started to `pulse' the accelerator a bit. . . As the driving did get worse, I had made a note of his license number and had intended on getting out at the Forestway Shopping Centre and report him for his shocking driving.

15 The Department's records state that:

The Department of Transport received a complaint from a passenger who was taken from Wynyard to Davidson on 28 May 1999. The complainant stated that the driver of taxi T 1660 who was displaying driver's authority No EP 1696 was veering all over the road and falling asleep at the wheel. The passenger alighted and was driven home by a private motorist.

16 Mr Bhuiyan says he picked a man up from Wynyard at 2 am. He denies that he veered all over the road. Mr Bhuiyan was interviewed about the complaint by a Departmental representative on 12 October 1999. In relation to the complaint Mr Bhuiyan said "It is a conspiracy, the insurance company is trying to make me look bad." The interviewer later said: "The complaints are made by different people on different dates and are all of a similar nature, can you explain this?" The notes of interview record that Mr Bhuiyan answered "Yes, I am currently going through the Courts with my Insurance company, they have set all these people up to make false complaints it's a conspiracy to make me loose (sic) my Drivers Authority."

17 Mr Bhuiyan elaborated further on the circumstances of the 28 May incident in a letter of 5 October 1999 to Mr John Costa, Operations Officer, Department of Transport:

I had an insurance case on 24 August, 1966 when another driver was at fault and negligent when he did a U-turn and hit me. The insurance company indirectly threatened me that they would cancel my Authority Card and they gave me a lot of hardship and listened in to my telephone at home. I got a judgment against them for $3,700.00 which they did not pay and they continue to give me a lot of hardship. They now threaten me that they will cancel my Authority Card.

18 In an interview with an officer from the Department on 12 October 1999 Mr Bhuiyan was asked why the passenger got out of the taxi if he hadn't done anything wrong. Mr Bhuiyan said: "It is a conspiracy, the insurance company is trying to make me look bad."

19 In an undated letter to the Department dated Mr Bhuiyan's response to this incident was:

I remember this incident well. In fact this passenger, as far as I recall, was a very friendly person and spoke to me on various matters as I drove. We nearly reached our destination when an elderly person jumped out from another car in front of me while we were waiting at a red light. He accused me of being asleep to which both me and my passenger were surprised. I explained to him saying how could I be asleep when I have come driving all the way from Wynyard.

I feel this gentleman may have seen another taxi and it is a question of mistaken identity specially that he was in front and it was a busy period.

20 Mr Bhuiyan tendered references from several people including Ahmed Chowdhury, Director, Joan Barrie's Cosmetics. Mr Chowdhury said that "He is an honest and sincere man with a zeal to work hard to earn a living." He also said that Mr Bhuiyan "is perfectly fit and capable of doing any job that he is entrusted with."

21 A reference from Abul FM Wali Ul Islam, President Bangladesh Islamic Centre of NSW Inc, stated that: "He is an honest and sincere man. He works very hard and committed to doing any job to earn his living. He has also been generous and helpful to others."

22 Mr Bhuiyan admitted that "there may have been instances in my last 5 years of driving when I have made mistakes. Despite being careful and polite I may have offended some passengers with realising it and I sincerely apologise for that." He now says that he will ensure that his driving and/or behaviour do not jeopardise the safety of road users. He also said that he would not drive at night.

Findings of fact

23 A total of nine formal complaints have been lodged against Mr Bhuiyan in the period totalling nearly three years in which he has held a taxi driver's authority. In relation to each of those complaints he either denies that he was the driver or denies that he was to blame in any way. The evidence confirms that he was the driver in each case. It can be unfair to make findings against a person on the basis of anonymous, untested, complaints. However, the number of those complaints, the consistent nature of the allegations and Mr Bhuiyan's unlikely explanations satisfy me that the nine incidents recorded in the Department's file and summarised above did occur.

24 Mr Bhuiyan also has a history of traffic convictions including three instances of failing to obey traffic lights, two instances of speeding and one each of not crossing a lane safely and making an unlawful U turn.

Reasoning and decision

25 The purpose of an authority, as set out in section 11 of the Act, is twofold. Firstly it is to attest that the person is of good repute and in all other respects a fit and proper person to drive a taxi. Secondly, it is to attest that the person has sufficient responsibility and aptitude to drive a taxi in accordance with the conditions under which a public passenger service is operated and in accordance with law and custom.

26 In this case the second purpose is more relevant than the first. The evidence shows several aspects of Mr Bhuiyan's driving which are of concern. Firstly, he drives erratically and dangerously at times. This is a significant safety issue. Secondly, despite having passed the locality test, his knowledge of localities is not always as good as it could be. Thirdly, he can become frustrated when passengers are not totally sure of where they are going. This frustration is manifested by abusing passengers and demanding that they leave the vehicle. This is not behaviour which demonstrates that Mr Bhuiyan has an aptitude for driving taxis or that he fully accepts the responsibilities of being a taxi driver. Furthermore, Mr Bhuiyan has been given several warnings. His authority has been suspended on one occasion and cancelled twice. Despite being warned that if he came under any further adverse notice, consideration would be given to the cancellation of his authority, two further complaints of a similar nature were made against him.

In these circumstances I am not persuaded by Mr Bhuiyan's referees or by his assurances that his driving and/or behaviour will not jeopardise the safety of road users. Mr Bhuiyan has denied that he was at fault in every single complaint. Apart from a vague promise that he will not re-offend, he has not shown any genuine remorse. Consequently, the decision of the Director General to cancel his authority is affirmed.