Azar v Director General, Department of Transport [2001] NSWADT 219 (20 December 2001)

Last Updated: 31 December 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Azar -v- Director General, Department of Transport [2001] NSWADT 219

PARTIES: APPLICANT

Robert Azar

RESPONDENT

Director General, Department of Transport

FILE NUMBERS: 013256

HEARING DATES: 27/11/2001

SUBMISSIONS CLOSED: 27/11/2001

DECISION DATE: 20/12/2001

BEFORE: Higgins S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Passenger Transport Act 1990

CASES CITED: Ybasco v Director General, Department of Transport No. 2 [1999] NSWADT 85

Re T and the Director of Youth and Community Services [1980] NSWLR 392 at 393

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127

Farquharson v Director General, Department of Transport [1999] NSWADT 53

Marythisathit v Register of Motor Vehicles [1996] ACT 165

Caska v Director General of New South Wales Department of Transport (Unreported, NSWSC, BC200101915)

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

De Domenico v Marshall (1999) 57 FCR 97

APPLICATION: Passenger Transport Act - taxi driver - suspension of authority

Taxi driver - suspension of authority

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

Lee, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

A Wozniak, solicitor

ORDERS: The decision of the Director General to suspend Mr Azar's driver's authority for 3 months is affirmed.

Reasons for Decision:

Introduction

1 Mr Azar is the holder is a taxi driver authority under the provisions of the Passenger Transport Act, 1990 ("the PT Act"). He is 31 years of age.

2 On 12 September 2001 the Department of Transport ("the Department") wrote to Mr Azar advising him that the Director-General was considering the suspension or cancellation of his authority on grounds set out in the statement of reasons attached to that letter. The grounds for suspension or cancellation were two complaints of sexual harassment or innuendo, 5 other complaints received from passengers, a lengthy RTA traffic record and a failure to report his traffic offences.

3 In its letter, the Department invited Mr Azar to make submissions within fourteen days to show why the Director-General should not suspend or cancel his public passenger vehicle authority ("driver authority").

4 On 25 September 2001 Mr Azar made a short written submission to the Department in which he stated that he had been a taxi driver for ten years, that he is a polite and courteous person, that although he does not have a perfect driving record he had always conducted himself in a safe manner. He also stated that the alleged harassments and innuendo had been misinterpreted and that he wished to apologise if offence had been taken about anything he had said. He also stated that he now understood and accepted the seriousness and outcome of his behaviour and would endeavour to take more care in conversations with customers in future.

5 On 17 October 2001, the Director-General of the Department advised Mr Azar in writing that he had determined, in accordance with s.33F of the PT Act, to suspend his authority for a period of three months commencing on Monday, 29 October 2001 and ceasing on 21 January 2002. The reasons for the decision were stated in similar terms to those that were attached to the earlier correspondence.

6 On 29 October 2001 Mr Azar made an application to review the decision of the Director General. In that application Mr Azar stated that he was "not guilty of the sexual harassment or innuendo" and that he had a wife to support and a new housing loan to repay from December 2001. He also stated he needed his taxi licence and did not consider that the Department accepted his explanation when it issued the suspension.

7 On 1 November 2001, the Tribunal granted Mr Azar a stay in respect of the decision of the Director General.

Jurisdiction

8 Mr Azar's application has been made pursuant to s.52(1) of the PT Act which provides that a person whose authority or authorisation has been varied, suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of that decision. Section 63 of the Administrative Decisions Tribunal Act, 1993 ("ADT Act") sets out the Tribunal's power when reviewing a reviewable decision. That section states that:

" s. 63(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including 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 enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the Administrator in accordance with any directions or recommendations of the Tribunal".

Issues and Legislation

9 Section 33F of the PT Act gives the Director General power to suspend a licence. That provision provides:

"Having regard to the purpose of authorisation under the Division, the Director General may at any time vary, suspend or cancel any person's authorisation under this Division".

10 The purpose of an authorisation is set out in s.33(3) of the PT Act which provides:

"33(3) The purpose of an authorisation 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 taxi cab, and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi cab:

(i) in accordance with the conditions under which the taxi-cab service concerned is operated, and

(ii) in accordance with law and custom".

(emphasis added)

Evidence and Findings

11 The only material before the Tribunal was a file tendered by the Department. This file contained numerous documents, some of which were duplicated. The documents in the file were not numbered requiring a considerable amount of unnecessary time to analyse. Having undertaken that exercise the material included in the Department's file was the following:

(a) An application by Mr Azar, dated 9 March 1992, for a driver's authority under the PT Act.

(b) A further application by Mr Azar, dated 17 March 1998, for a driver authority under the PT Act, his earlier authority having expired. On that application a negative response was given to the question of whether Mr Azar had ever been prohibited from driving a motor vehicle in NSW or elsewhere and the question of whether he had ever been charged/convicted in NSW or elsewhere of any criminal, traffic or other type of offence in the last ten years. Enclosed with the application was a two-page traffic record of Mr Azar. This record stated that in 1997 Mr Azar was served with traffic infringement notices for driving contrary to a stop sign and exceeding the speed limit (more than 15km/h). Mr Wozniak for the Department informed the Tribunal that Mr Azar supplied the material and Mr Lee did not make a contrary submission.

(c) A computer generated record of a complaint dated 4 March 1995 which stated that the complainant had flagged a taxi and got in and asked to go to Bondi. It is stated that the driver refused, was rude and tried to cover his authority card. There is other correspondence in relation to that complaint indicating that the driver was Mr Azar and that he had been reprimanded in regard to this complaint.

(d) A record of a taxi complaint dated 14 May 1997. The details of this complaint are that the taxi stopped in the middle of an intersection to pick up a fare and that the passenger did not enter the taxi on realising the obstruction and danger caused by the taxi driver. The taxi driver became upset and bunny hopped away. Again, there is correspondence on the file identifying the taxi driver as Mr Azar, who had been counselled in respect thereof.

(e) A record of a taxi complaint received on 18 September 1998. The details of the complaint are stated to be that the driver reversed into an intersection, collided with another car and then argued that it was the other driver's fault. It is stated that there were witnesses to the contrary. A computer generated complaint form states that the driver's name was Mr Azar. However, there is no additional material on the file in respect of that complaint.

(f) Record of a complaint received on 19 February 1999. The details of the complaint are that the passenger complained about the driver's driving in that he had crossed over double centre lines to do a u-turn and later did it again to pass a car. It further states that the driver nearly ran into a car stopped at traffic lights and tried to overtake another car on the shoulder of the road. Also on the file is a pro-forma form in which Mr Azar states that he disagreed with the complaint and that he was interviewed in regard thereto.

(g) A customer complaint form dated 30 September 2000 on which is recorded in handwriting a complaint from a customer who had booked a taxi and who had stated that the driver was "harassing her and asking personal questions and using suggestive gestures towards her. He stopped the car and locked all windows and doors. PAX (passenger) ended up getting out at Double Bay instead of home as she was "scared for her life". A computer-generated document in respect of this complaint states that the Department received the complaint on 5 October 2000 and that the incident complained about occurred on 30 September 2000.

(h) An unsigned typed record of interview between Judy Morris of the Department and Mr Azar on 9 October 2000 concerning the abovementioned complaint. This record states that Mr Azar acknowledged that he was the driver and he remembered the particular passenger. It states that he denied that he asked the passenger for her phone number or a date but it is acknowledged that he did comment on her clothes. It states that he did not recollect whether he locked the doors but this was something he did do in the city and that he stated: "Maybe I did step out of line". There is also a copy of some handwritten notes, which appear to relate to the same conversation. They are not complete and do not match exactly what is stated in the typed version of the conversation.

(i) Computer-generated licence details or "traffic record" of Mr Azar dated 9 October 2000. These are discussed more fully below.

(j) Letter from the Department to Mr Azar, dated 15 October 2000, concerning the complaint of 30 September 2000. In that letter the Department advised Mr Azar that it had been decided that he should successfully complete a customer care taxi driver training program before 23 November 2000. The letter also stated "Furthermore, you are warned that if further complaints or a breach of the Passenger Transport Act and its Associated Regulations, the Australian Road Rules, or a criminal conviction is recorded, the Department may suspend or cancel your Public Passenger Vehicle Drivers Authority". It would appear that Mr Azar attended the required training course on 13 November 2000.

(k) A written complaint by a complainant dated 4 May 2001 concerning the failure of a taxi to pick up a booking, which resulted in the customer missing her train to Perth. There is other correspondence on the file, which identifies Mr Azar as the driver who failed to pick up the passenger and Mr Azar appears to have signed a pro-forma form on 21 May 2001 in respect of this complaint. On this form, he has not acknowledged whether he agreed or disagreed with the complaint. However, there is also a document on the file, which appears to be a file copy of the Department's letter to the complainant stating that the driver (Mr Azar) had stated that he did not recall the booking and could not give any explanation as to why he did not pick the passenger up.

(l) A record of a complaint received from a customer concerning an incident that occurred on 10 May 2001. According to a Departmental computerised complaint form, the Department received this complaint on 15 June 2001. The complaint record states that the "driver implied that PAX [passenger] was a prostitute and her place was a brothel. Driver commented that her house wasn't properly lit and how was business, he would come down later".

(m) A record of an interview between Mr Azar and two Departmental officers, one of whom is stated to be J. Hallahan, on 20 August 2001. It is noted that this typed record of interview contains the signature of a Ross Maloney and S.D. Wells. Who these people are and when they signed the document, the Tribunal was not informed.

(n) A copy of a signed statement of Mr Azar dated 20 August 2001 on a pro-forma Department of Transport form concerning the complaint received on 10 May 2001 and stating that: "I personally think we had a normal conversation".

12 As mentioned above, the Department file contained a driver record of Mr Azar. That record shows the following:

· On 16/7/92 the Burwood Local Court disqualified Mr Azar from driving for 6 months following convictions of speeding and driving while licence cancelled.

· On 13/8/92 a demerit points cancellation of Mr Azar's licence was issued for traffic infringements during 1991 and 1992.

· On 27/8/92 the Bankstown Local Court disqualified Mr Azar from driving for 6 months following a conviction for driving while disqualified.

· On 15/7/93 Mr Azar was issued with a probationary licence. It would appear that the Department was aware of Mr Azar's driving record at that time as the file contains copies of his traffic record and a statutory declaration by Mr Azar dated 19 July 1993 in which he acknowledged that on 18 June 1992 he was speeding and driving while his licence was cancelled. He also stated that he was working that night to pay his fines, that he regretted when he had done.

· On 22/6/94 the Bankstown Local Court dismissed an appeal by Mr Azar in respect of a demerit points cancellation of his probationary licence. The Court also varied the demerit points cancellation to commence from 24/3/94 and ordered that a new licence was not to be considered until 25/9/94.

· On 23/9/94 a further probationary licence was issued to Mr Azar.

· On 29/5/95 an unrestricted licence was issued.

· On 1/1/96 Mr Azar was sent a demerit points warning letter for traffic offences of speeding (more than 30km/h).

· On 7/3/96 a demerit points cancellation of Mr Azar's licence was issued commencing on 4/4/96 for speeding and disobeying traffic lights.

· On 9/7/96 Mr Azar's unrestricted licence was restored.

· On 12/2/98 Mr Azar was sent a demerit points warning letter for traffic offences of driving contrary to a stop sign (2 offences) and speeding (more than 15km/h).

· On 8/11/98 a demerit points cancellation of Mr Azar's licence was issued to commence on 16/12/98 for the abovementioned traffic offences and an offence of driving offside a separation line.

· On 22/3/99 Mr Azar's unrestricted licence was restored.

· On 30/8/00 a demerit points suspension of Mr Azar's licence was issued to commence on 4/10/00 until 4/1/01 inclusive for 4 traffic offences of speeding (15 km/h).

· On 3/10/00 a decision was made not to implement Mr Azar's demerit points suspension. Instead, a conditional licence was issued effective from 4/10/00 to 4/10/01. The conditions were that Mr Azar be of good behaviour.

Submissions

13 Mr Wozniak, on behalf of the Director General, submitted that what this case was about was Mr Azar's traffic record, the failure of Mr Azar to advise the Department of that record in his 1998 application for a driver authority and the complaints relating to sexual harassment. He submitted that Mr Azar's traffic infringements were the longest of any taxi driver the Department had retained a record of. As indicated to Mr Wozniak during the hearing, such submission, without any supporting evidence must be rejected.

14 In respect of the substance of the complaints that had been received, Mr Wozniak argued that the Department could rely on the documents in the Department's file as the Tribunal was not bound by the rules of evidence. In support of his submission he cited Ybasco v Director General, Department of Transport No. 2 [1999] NSWADT 85.

15 Mr Lee, on behalf of Mr Azar, submitted that the Tribunal had no admissible evidence before it in respect of the complaints. He argued that what the Tribunal had before it was hearsay evidence, which did not even include a written complaint by the two complainants. What was contained in the file was a note made by a person other than the complainant and it was not known whether that person had spoken to the complainant or some other person. He also submitted that there was no evidence that the Department had sought to verify the substance of each complaint with the complainant after the complaint had been lodged. He further submitted that there was no evidence that Mr Azar had admitted that he had acted inappropriately as alleged by the most recent complaints.

16 In respect of Mr Azar's driving record, Mr Lee submitted that the Department had this record at the time Mr Azar was interviewed on 9 October 2000. He was not asked any questions about that record during the interview and the Department did nothing about it until after they received the second complaint. On that basis he submitted that the Department could not now rely on it.

Reasoning

17 At issue in this case is whether Mr Azar is considered a person of "good repute" and in all other respects a "fit and proper person" to be the driver of a taxi cab (s.33(3)(a) the PT Act).

18 Another issue raised by the evidence was whether Mr Azar had "sufficient responsibility and aptitude to drive a taxi cab" (s.33(3)(b) the PT Act) having regard to his driving record. As this was not argued or relied upon by the Department, I have not considered this issue any further.

19 The meaning of the terms "good repute" and "fit and proper person" have been considered in several cases before the Tribunal. In these cases the Tribunal has followed the decisions in Re T and the Director of Youth and Community Services [1980] NSWLR 392 at 393; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63] and Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 156.

20 With respect to the question of attesting to the "good repute" and in all other respects a "fit and proper person" of a taxi driver, O'Connor J made the following statement at [27] in Farquharson v Director General, Department of Transport [1999] NSWADT 53:

"A taxi driver has a continuing responsibility to ensure that he is of "good repute" and a "fit and proper person". Clearly the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character. The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept does to an individual's intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J)".

21 In this case, no serious criminal charges have been laid against Mr Azar. However, the discretion of the Director-General to suspend or cancel a taxi driver authority under s.33F of the PT Act is very wide and enabling the Director-General to have regard to all relevant circumstances, including complaints made against the particular taxi driver and the driving record of that driver.

22 As stated by O'Connor J in Farquharson at [36] "in exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public". He went on to state with approval the following test of "fit and proper" character as stated by Professor L.J. Curtis, President of the PT Act Administrative Appeals Tribunal, in Marythisathit v Register of Motor Vehicles [1996] 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".

23 In that case the applicant had been convicted on charges of dishonesty due to a gambling addiction. In my opinion the test articulated by Professor Curtis, and approved of by O'Connor J, equally applies to this case, even though Mr Azar has not been convicted of any serious criminal charges.

24 On the authorities mentioned above the relevant factors in this case include the following:

(a) whether the material before the Tribunal is sufficient to make a finding that Mr Azar engaged in inappropriate conduct as asserted in the complaints received by the Department;

(b) the nature and extent of Mr Azar's driving record during the time he has been the holder of a driver authority under the PT Act;

(c) Mr Azar's failure to correctly disclose in his 1998 application for a driver authority under the PT Act that he had his driver licence previously cancelled (1992, 1994 and 1996) and that he had been convicted of a traffic offence in 1992; and

(d) whether Mr Azar has shown any contrition in respect of the complaints that have been made against him, his history of traffic offences and false disclosures; and

(e) having regard to one or more of the abovementioned factors whether it can be attested that Mr Azar is a person of "good repute" or otherwise a person of integrity and honesty having regard to the purposes of his taxi driver authority and the objects of The PT Act.

Complaints

25 The Department file identifies 7 complaints made against Mr Azar in the period 4 March 1995 to August 2001. With one exception (complaint dated 4 May 2001), the substance of each complaint is recorded in what may be described as a file note made by persons other than the complainant. No evidence has been given on behalf of the Department as to who made that note and whether that person was recording exactly what he/ she heard the complainant say.

26 The Department places primary reliance on the complaint made in September 2000, after which Mr Azar was issued with a warning, and the subsequent complaint made in May this year. The substance of these complaints asserts serious misconduct by Mr Azar, and if accepted, the consequences for Mr Azar are equally serious in that he can be subject to a suspension or cancellation of his taxi driver authority, depriving him of earning a living from taxi driving.

27 To establish the substance of these complaints the Department has not called the complainants to give oral evidence nor have they tendered any sworn statements from these people. What the Department relies on to establish the substance of the complaints is the assertions contained in the file note of each complaint and what it argues to be admissions made by Mr Azar during the interviews with the Departmental officers as recorded in the typed record of those interviews. As I have already mentioned, Mr Lee for Mr Azar, argued that there was no evidence before the Tribunal, which established the substance of the complaints. That is, the file notes were hearsay evidence and not proof of the facts asserted therein. He did not concede that the typed records of interview were admissible but argued that even if they were admissible they did not contain any admissions of inappropriate conduct as alleged by the Department.

28 Section 73(2) of the ADT Act expressly provides that the Tribunal is not bound by the rules of evidence. At the same time there is no authority to say that the Tribunal is required to accept assertions made in documents contained in the Department's files as being conclusive evidence of the facts asserted therein.

29 Mr Wozniak's submission that Ybasco is authority for such a proposition is not correct. In that case, the Director-General exercised his discretion on the basis of the Department's policy that a person's driver authority under the PT Act would be immediately suspended on that person being formally charged with a serious offence and being required to appear in Court on that charge. What the applicant argued in that case was that in the exercise of his discretion to suspend or cancel a driver authority, the Director-General was required to look behind the police's decision to charge him with the offences. The applicant went on to state that had the Director-General looked behind the charges he would have found that the police case against him was a weak one. However, O'Connor J stated at [41]:

"As noted in Farquharson it is not realistic to ask an administrator with the responsibilities of the kind that are involved in the taxi driver licensing to go behind the information supplied by the police so as to examine the weight or otherwise of the police case".

30 It was on that basis that the Tribunal was held that the Department was able to rely on the material from the police. That is, this material established the fact that charges had been laid, which brought the Director-General's policy into operation.

31 The circumstances of this case are very different, as no charges have been laid against Mr Azar. Accordingly, in order to exercise his discretion under s. 33F of the PT Act the Director-General needed to be satisfied that the conduct as asserted in the file notes did in fact occur and that this conduct was inappropriate conduct for a taxi driver, having regard to the purposes of a taxi driver authority. The Tribunal is required to undertake a similar task and the question is to what degree must the Tribunal be so satisfied in order to make a finding that the asserted conduct did in fact occur.

32 In Caska v Director General of New South Wales Department of Transport (Unreported, NSWSC, BC200101915) Caska, a taxi driver, by summons sought orders in the nature of certiorari, pursuant to s. 69 of the Supreme Court Act 1970, in respect of the decision of the Local Court, which dismissed his appeal from the decision of the Director-General to cancelled his driver authority under s.14 of the PT Act (s. 14 is in similar terms to s. 33F of the Act). In this case, the grounds for cancellation were allegations of indecent conduct, which had been asserted by passengers in his taxi. At the time, s. 52(1) of the PT Act provided that a person whose driver authority had been varied, suspended or cancelled, could appeal that decision to the Local Court. Section 53(3), at the time, provided that in hearing an appeal the Court was not precluded "... from hearing evidence of any fact or circumstance alleged to have been unknown to the Director-General at the material time." Section 53(4), at the time, provided that the decision of the Local Court was final.

33 In the case of Caska, at the Local Court hearing, the Department called as witnesses the passengers who had complained and who had witnessed the alleged indecent conduct. That is, oral evidence was given by the complainants and the appellant was given the opportunity to test their evidence (at [14]). In light of the seriousness of the allegations and the "potentially severe consequences for Mr Caska", the Magistrate also applied the Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 civil standard of proof test in determining whether the alleged indecent conduct had in fact occurred (at [33]). The matters in issue before the Supreme Court included that there was no (or no probative or no sufficient) evidence to support the factual allegations that had been made against the appellant and that there was a failure by the Local Court to apply the appropriate standard of proof. Simpson J dismissed the summons and found that there was evidence to support the allegation (at [39]) and that the appropriate standard of proof had been applied (at [53]).

34 Appeals from decisions of the Director-General can no longer be made to the Local Court and the abovementioned provisions of ss. 52 and 53 of the PT Act have been repealed and replaced with new provisions. Appeals are now by way of an application for review to the Tribunal and the Tribunal exercises its powers pursuant to the provisions of the ADT Act. This Act expressly provides that the rules of evidence do not apply. This provision, together with the objects of the ADT Act for determining proceedings in an informal and expeditious manner (s.3(c)) are, a departure from the procedures that previously applied to an appeal under the PT Act to the Local Court. However, the Tribunal is still required to make findings of fact on which its decision is based and in making those findings regard must be had to the rules of evidence, which are "the distilled wisdom of centuries of dispute-resolution and largely based on common sense" (see Dowsett J in De Domenico v Marshall (1999) 57 FCR 97 at [80]).

35 In De Domenico, at [51], Madgwick J held that while the rules of evidence did not apply to proceedings under the Discrimination Act 1991 (ACT), that in that case "... the spirit of the rules of evidence, if not their letter, becomes of more importance than in other kinds of administrative inquiries". This was a case in which the respondent/complainant had lodged a complaint that the appellant had sexually harassed her and for which she was seeking compensation. His Honour emphasised the need for the administrative body (including an administrative Tribunal) when making a determination about whether the alleged conduct had in fact occurred, that body was only to have regard to relevant evidence (including hearsay) and to give that evidence its appropriate probative weight. The inference to be drawn from this finding is that a Tribunal, which is not bound by the rules of evidence, must nevertheless base its decision on reliable relevant evidence and what is reliable will depend on the circumstances, the seriousness of the allegations, and the consequences that arise if the allegations are found to have occurred.

36 I have adopted a similar approach for the purposes of this application. There is no question that the two file notes are relevant and that they are hearsay. At the same time they are prejudicial to Mr Azar.

37 The file note of the 30 September 2000 incident makes assertion of harassment and suggestive gestures but gives no details of what Mr Azar did or said to give rise to these assertions. The other assertions relate to Mr Azar stopping the car and locking the door. The file note of the 10 May 2001 incident again makes assertions of inappropriate statements but does not give details of what words were said. This particular file note has also been made more than one month after the incident.

38 The question is what probative value do these file notes have. In my opinion they are of very minimal probative weight as they are not sufficiently detailed, and in one case record events that occurred more than one month previously and they are records made by persons other than the complainants, who did not see or hear the alleged conduct of Mr Azar. The Department seems to have recognised that the file note was not sufficient to establish that the conduct complained of did in fact occur. On its computer generated record of the complaint received on 30 September 2000 are the following hand written instructions: "Judy First Up Get Full Details of Complainant Then Investigate & Make Recommendations. C/B Friday don't know lady - not prepared to give details". During submissions Mr Wozniak also informed the Tribunal that the other complainant had moved from the address given to the Department and had not provided a forwarding address. Therefore, the Department had no means of verifying the complaints.

39 The statements allegedly made by Mr Azar in Department's written records of interview are also hearsay evidence and in the absence of evidence of Mr Azar signing or adopting the written records, or the Department calling the officers who conducted the interviews to give evidence, the statements in these written records of interview must also be given very little weight.

40 In addition to these written records of interview, the Department's file contains 2 documents signed by Mr Azar. The first is a statement signed by him and dated 2 August 2001 in which he makes no admissions and states that he thought that he had a normal conversation with the complainant. The other document is Mr Azar's letter dated 25 September 2001 in which he makes no admissions and states that the allegations "may have been misinterpreted". These 2 documents are first hand hearsay and in my opinion must be given considerably more weight than the Department's written records of interview.

41 Accordingly, in my opinion, having regard to all the material before the Tribunal, there is insufficient evidence to make any adverse finding against Mr Azar in respect of the assertions contained in the 2 file notes of complaints of sexual harassment or innuendo.

Driving Record

42 Mr Azar's driving record, which is not denied, relates to ongoing traffic offences since 1992 to 2000. The Department's file contains records of traffic offences that occurred prior to 1992 but the Department placed no reliance on these and I have had no regard to them.

43 In response to the Department's letter to show cause why his driver authority should not be cancelled or suspended for reasons including his driving record, Mr Azar also stated that: "Although I don't have a perfect driving record, I believe I have always conducted myself in a safe manner." At the hearing Mr Lee, on behalf of Mr Azar argued that the Department had known of Mr Azar's driving record since 9 October 2000 and had done nothing about it and was therefore prevented from relying on it now.

44 In my opinion, Mr Lee's submission must be rejected as there is no evidence that the officers interviewing Mr Azar on 9 October 2000 had these records before them. Furthermore, the Tribunal is expressly given power to examine, a fresh, all the relevant circumstances when reviewing the decision of the Director-General (see s.63(1) and (2) of the ADT Act).

45 The core activity of a driver authority under the PT Act is to authorise the holder of that authority to drive a public passenger vehicle, in this case a taxi-cab. That authority is provided in light of the objectives of the PT Act, which includes "to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services" (s. 4(e) of the PT Act). In my opinion, having regard to this objective of the PT Act, the purpose for which a taxi driver authority is issued (s. 33(3) of the PT Act) and the core activity of such an authority, the driving record of an authority holder is a matter the Director-General can have regard to when attesting whether that person is a fit and proper person to be the driver of a taxi-cab.

46 In this case there is no evidence that Mr Azar's traffic offences occurred while he was driving a taxi-cab, but in my view this does not mean his driving record should be ignored as the traffic offences all occurred during the time he was the holder of a driver authority under the PT Act. Included in this history of traffic offences is 5 periods of cancellation/suspension or disqualification of his drivers licence in 1992, 1994, 1996, 1998 and 2000. These cancellations, suspensions and disqualifications did not only arise out of offences of speeding but also included driving while disqualified (1992), driving contrary to stop signs (1998) and disobeying traffic lights (1996). The most recent cancellation in October 2000 was converted into a conditional driver licence on the condition that no further traffic offences were recorded against Mr Azar within the following 12 months. That 12 month period expired on 4 October 2001 and there is no evidence of any further traffic offences having been committed. However, without any satisfactory explanation from Mr Azar in respect of this long and consistent record of traffic offences resulting in cancellations etc. these must reflect on him being a fit and proper person as required under the PT Act.

1998 Application for Driver Authority

47 What is of concern is that, in his 1998 application for a driver authority, Mr Azar gave incorrect answers to the questions about whether he had ever been prohibited from driving or charged/convicted of a traffic type of offence. He also gave a selective history of his driving record. Furthermore, in his application, he declared that his responses to the questions in the application were true and correct to the best of his knowledge and belief, when this was not the case.

48 Mr Azar gave no evidence and the only explanation for his driving record is that contained in his dated 25 September 2001. In that letter he states that he has always conducted himself in a safe manner while driving. However, this is not supported by the evidence, which shows persistent traffic offences resulting in numerous cancellations of his licence. This cannot be regarded as reflecting a history of safe driving. In his letter Mr Azar also states that he does not have a "perfect driving record", which in my opinion is a reflection of his attitude in that he fails to appreciate the need for safe driving, or he that he has a measure of contempt for the need to comply with traffic rules.

49 It would appear from the Department's file that, in 1998 when Mr Azar made his application for the renewal of his driver authority, the Department was aware of his 1992 convictions for negligent driving and driving while disqualified. This does not excuse the giving of a false declaration in his application. However, as these convictions were not recent and the Department was aware of them, this false declaration in respect of his prior convictions cannot be viewed as seriously as the failure to disclose subsequent cancellations.

50 Accordingly, in applying the test enunciated by Professor Curtis in Maythisathit, I find that, if placed in the position of a member of the public who might travel in a taxi driven by Mr Azar and knowing of Mr Azar's:

(a) driving record, in particular a history of licence cancellations, suspensions, disqualifications and his recent conditional licence;

(b) the fact that he falsely stated and declared it to be true that he had no such cancellations in his 1998 application for a driver authority;

(c) the fact that 6 complaints had been made against him by passengers during 1997 to 2001

I would object to Mr Azar as the driver of the taxi-cab.

51 Having come to this conclusion, the question is whether the circumstances warrant the suspension of Mr Azar's driver authority having regard to the fact that for the last twelve months there have been no further traffic infringements by Mr Azar. While Mr Azar made certain assertions in his application to the Tribunal about the affect of a suspension, no evidence was presented in this regard.

52 In my opinion, having regard to all the material before the Tribunal, a three month suspension is warranted as Mr Azar has failed to adequately demonstrate that he recognises the seriousness of breaching the traffic laws, the making of a false declaration in his 1998 application for a driver authority and his selective provision of his driver record with that application.

53 Accordingly, for the reasons set out above, I am of the opinion that the decision of the Director-General to suspend for three months the driver authority of Mr Azar was the correct and preferred decision.

Order

54 The decision of the Director-General to suspend Mr Azar's driver's authority for 3 months is affirmed.