Williamson v Director General, Department of Transport [2001] NSWADT 3 (24 January 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Williamson v Director General, Department of Transport [2001] NSWADT 3

PARTIES: APPLICANT

Cheryl Anne Williamson

RESPONDENT

Director General, Department of Transport

FILE NUMBERS: 003349

HEARING DATES: 17/01/2001

SUBMISSIONS CLOSED: 17/01/2001

DECISION DATE: 24/01/2001

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Passenger Transport Act 1990

CASES CITED: Farquharson -v- Director General, Department of Transport [1999] NSWADT 53

Commissioner for Motor Transport v Darcy Francis Leo, NSW Supreme Court (McInerney J), 10 September 1986, unreported.)

Re T and Director of Youth & Community Services [1980] 1 NSWLR 392

Hasegawa -v- Director General, Department of Transport [2000] NSWADT 96

APPLICATION: Passenger Transport Act - private hire vehicle driver - suspension of authority

Passenger Transport Act - taxi driver - suspension of authority

Private hire vehicle driver - suspension of authority

Taxi driver - suspension of authority

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: W Hodgekiss, barrister

RESPONDENT REPRESENTATIVE: A Wozniak, solicitor

ORDERS: 1.The Director General's decision to suspend Ms Williamson's taxi and hire car authorities is affirmed.

Reasons for Decision:

Background

1 On 2 November 2000 the Director General, Department of Transport (the Director General) suspended Ms Williamson's authorities to drive taxi-cabs and hire cars. The Director General's reason for suspending the authorities was that Ms Williamson had been issued with several summons for breaches of the Passenger Transport Act 1990 (the PT Act). Those breaches allegedly involved the use of private motor vehicles to conduct public passenger services. Ms Williamson applied to this Tribunal for a review of the decision to suspend the authorities.

2 The background to this matter is that Ms Williamson and her husband Mr Williamson conduct a taxi and hire car business in Foster. As well as holding authorities to drive taxi cabs and hire cars, they also hold an authority to operate taxi-cabs and hire cars. The operating authority has not been suspended. Consequently they are still able to operate the business but they are not permitted to drive the vehicles.

Details of allegation against Ms Williamson

3 In May 2000, the Department of Transport issued numerous summons against Mr Williamson, Ms Williamson, and the company of which they are both directors, Bretabac Pty Limited. Among other things, these summons allege breaches of s 29(a) of the PT Act. That provision states that:

(1) A person who carries on a public passenger service by means of a taxi-cab or private hire vehicle:

(a) otherwise than under the authority of a licence for the taxi-cab or private hire vehicle; or

(b) otherwise than in accordance with the terms and conditions of such a licence, is guilty of an offence.

Maximum penalty: 1,000 penalty units.

4 In summary, the Department of Transport alleges that on numerous occasions Mr and Mrs Williamson used their own private vehicles to transport passengers who had telephoned for a taxi or hire car. There are now only three summons still on foot relating to Mrs Williamson. The balance of the allegations relied on in the Director General's Statement of Reasons are not proceeding because they are out of time. The three summons against Ms Williamson relate to:

using a vehicle on 19 January 2000 to convey a passenger for fare from Blueys Beach to Taree otherwise than under the authority of a licence for the taxi cab or private hire vehicle;

using a vehicle on 21 January 2000 to convey a passenger for fare from North Tuncurry to Taree Airport, otherwise than under the authority of a licence for the taxi cab or private hire vehicle;

using a vehicle on 27 January 2000 to convey a passenger for fare from Tuncurry to the Mater Hospital otherwise than under the authority of a licence for the taxi cab or private hire vehicle.

5 The summons are part-heard before the Local Court and are listed for hearing again on 30 April 2001.

Jurisdiction

6 Under s 52(1) of the PT 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

7 Section 14 of the PT Act gives the Director General power to vary, suspend or cancel any person's authority. That section states that:

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

8 The purpose of an authority is set out in s 11(2):

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.

9 The issue in this case is whether the Director General made the correct and preferable decision in suspending the applicant's taxi and hire car authorities.

Evidence

10 No oral evidence was presented to the Tribunal. The documentary evidence comprised:

the Department's file including copies of summons against Ms Williamson and the Director General's Statement of Reasons for the suspensions;

Statement of Philip Sullivan dated 12 December 2000;

letter from R McLaughlan to the Director General dated 20 December 2000;

letter from Mr Williamson to Craig Whitmore dated 23 November 2000; and

letter from Baker and Borthwick to Messrs Smythe & Mallam dated 5 December 2000; and

letter from Smythe & Mallam to Baker and Borthwick dated 14 December 2000.

11 There was no conflict between the parties in terms of the relevant facts in this case. The correspondence between Messrs Baker and Borthwick and Messrs Smythe & Mallam concerning Ms Williamson's defence in relation to one of the summons is not relevant to these proceedings. In Mr Sullivan's statement it is alleged that during the period when Ms Williamson's driving authority was suspended, she transported a passenger, without charge. Those facts are admitted by Mr Williamson in the letter of 23 November 2000. The Tribunal does not have the power to determine whether Ms Williamson is in breach of the Director General's decision to suspend her driving authorities.

Submissions

12 Mr Hodgekiss, for the applicant, pointed out that while the Director General's decision to suspend the authorities was based on several allegations of breaching the PT Act, there are now only three outstanding matters which relate to Ms Williamson.

13 In Mr Hodgekiss' submission, in other cases decided by the Tribunal involving a suspension of passenger transport authorities, the Director General had waited until the court had determined the innocence or guilt of the party concerned before suspending or cancelling the authority. Mr Hodgekiss submitted that a decision should not have been made to suspend Ms Williamson's authorities until the outcome of the charges had been determined by the Local Court.

14 Mr Wozniak on behalf of the respondent, submitted that Ms Williamson was facing serious charges involving using unlicensed cars to carry passengers and charging them for these journeys. These were some of the most serious offences under the PT Act, in terms of the maximum penalty available. Mr Wozniak conceded that some of the allegations originally relied on by the Director General in deciding to suspend Ms Williamson's authorities were now statute barred. Nevertheless, in his view, these allegations can still be taken into account by the Tribunal. Because Mr and Ms Williamson are directors of what is basically a "family company" it is artificial to say that there are only three summons which relate to her.

Reasons and decision

15 The PT Act sets up an accreditation scheme for operators and drivers involved in public passenger services. The purpose of that scheme is to regulate those services so that they are safe, reliable and efficient. (See Section 4(a) and (e) of the PT Act.)

16 The provisions of s 14 of the PT Act, so far as they relate to this case, require that the applicant be of good repute and in all other respects a fit and proper person to drive a taxi. They also require that the applicant has sufficient responsibility and aptitude to drive a taxi.

17 In the case of Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 (9 July 1999) the Tribunal affirmed the Director General's decision to suspend a taxi authority. The circumstances of that case were that the applicant had been charged with two counts of soliciting a person to commit murder. The Tribunal came to several conclusions in that case which are relevant to these proceedings. These conclusions, as they apply to the facts of the present case, can be summarised as follows:

it is not the Tribunal's role to determine the guilt or innocence of Mrs Williamson in relation to the charges against her or even the likelihood that she will be convicted or acquitted of those charges;

the Tribunal's role is to determine, having regard to the seriousness of the charges and the circumstances of those charges, whether the Director General was justified in suspending the authorities; (See Commissioner for Motor Transport v Darcy Francis Leo, NSW Supreme Court (McInerney J), 10 September 1986, unreported.)

while it is a tenet of the criminal law that a person is innocent until proven guilty, the PT Act allows for an authority to be suspended where the person is no longer considered to be of good repute and/or a fit and proper person to be the driver of a public passenger vehicle.

18 In Farquharson at paragraphs 27 and 29, the President of the Tribunal, O'Connor J, made the following observation:

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 goes 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).

19 Another Tribunal decision quoted by both parties in closing submissions is Hasegawa -v- Director General, Department of Transport [2000] NSWADT 96 (25 July 2000). In that case the Tribunal set aside the Director General's decision to suspend Mr Hasegawa's taxi driver's authority. The decision to suspend was made following an incident in January 2000 involving overcharging passengers. Mr Hasegawa was issued with an infringement notice for charging more than the correct fare and fined $150. The maximum penalty for that offence is 5 penalty units or $550.00. (Clause 40 of the Passenger Transport (Taxi-Cab Services) Regulation 1995.)

20 The allegations against Ms Williamson are significantly more serious than those in Hasegawa, but much less serious than the allegations in Farquharson of soliciting a person to commit murder. The offences for which Ms Williamson has been charged are the most serious offences under the PT Act in terms of the maximum penalty that can be imposed. That penalty is 1,000 penalty units or $110,000.00. However the maximum penalty that the Local Court can impose is 100 penalty units, or $11,000.00. (See s 60 of the PT Act.) The high penalties are no doubt based on the fact that using private vehicles to provide public passenger services undermines the ability of the Director General to ensure compliance with the standards and expectations set out in the legislation.

21 While these allegations are serious and may, if proved, lead to the cancellation of Ms Williamson's authorities, the question the Tribunal must answer is whether they are sufficiently serious to justify the suspension of her driving authorities pending the Local Court's findings. In my view, the suspension of an authority is justified where a person's reputation or fitness to drive a taxi is sufficiently compromised by allegations or findings of impropriety for it to be in the public interest that the person not drive until those issues are addressed or resolved.

22 The Director General is not required to wait for the outcome of criminal or other proceedings before making a decision about suspension or cancellation of a person's authority.

23 Even though there are only three outstanding summons against Ms W, as a director of Bretabac Pty Ltd she is indirectly involved in several other allegations of breaching the PT Act. These allegations constitute fundamental breaches of the regulatory scheme embodied in the PT Act and carry severe penalties. Despite these allegations, Ms Williamson can still carry on as an operator of a taxi and hire care business. In view of the seriousness of the allegations and the effect they have on her reputation and the public's perception of her fitness to drive taxis or hire cars, the Director General's decision to suspend her from driving pending resolution of those matters was the correct decision.

Orders

24 The Director General's decision to suspend Ms Williamson's taxi and hire car authorities is affirmed.