Dandan v Director General, Department of Transport [2001] NSWADT 6 (30 January 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Dandan -v- Director General, Department of Transport [2001] NSWADT 6

PARTIES: APPLICANT

Anis Dandan

RESPONDENT

Director General, Department of Transport

FILE NUMBERS: 003324

HEARING DATES: 19/01/2001

SUBMISSIONS CLOSED: 19/01/2001

DECISION DATE: 30/01/2001

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Passenger Transport Act 1990

CASES CITED: Loye -v- Director General, Department of Transport [2000] NSWADT 145

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

Taxi driver - cancellation of authority

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

A Wozniak, solicitor

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

Reasons for Decision:

Introduction

1 On 28 September 2000 the Director General, Department of Transport (Director General) cancelled Mr Dandan's taxi driver's authority. The Director General made the decision on the basis that Mr Dandan had several complaints by passengers registered against his name, ten traffic offences and ten criminal convictions including shoplifting, larceny and possession of a prohibited drug. In addition the Director General alleged that Mr Dandan had falsely declared in his applications for a driver's authority that he did not have any criminal or traffic convictions.

2 Mr Dandan requested that the Director General conduct an internal review of the decision to cancel his authority. The internal review, conducted on 29 August 2000, affirmed the original decision. On 17 October 2000, Mr Dandan applied to the Tribunal for a review of that decision.

Jurisdiction

3 Pursuant to s 52(1) of the Passenger Transport Act 1990 (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

4 Section 14 of the PT Act gives that Director General power to cancel a licence. That provision 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.

5 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.

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

Documentary evidence

7 The documentary evidence before the Tribunal consisted of:

the Department's file;

letter from Dorota Wachala, Clinical psychologist at the Centre for Addiction Medicine, dated 15 January 2001;

letter from Dr R White, dated 15 January 2001;

letter from Dr N Morris, dated 18 January 2001;

letter from M Maalouf, dated 18 January 2001;

letter from Rev Nammour, undated;

bundle of documents produced under summons from Parramatta Local Court;

bundle of documents produced under summons from Fairfield Local Court;

bundle of documents produced under summons from Westmead hospital; and

Premier Cabs network file re Mr Dandan.

Oral evidence and findings

8 Very few facts in this case were in dispute. Mr Dandan gave oral evidence to the Tribunal with the assistance of an Arabic interpreter.

9 Taxi driving history. Mr Dandan first obtained an authority to drive taxis in July 1996. On 18 August 1996 while driving a taxi, he was held up by three male passengers who stole his money. Mr Dandan said in the statement accompanying his application that "this incident affected me physically and psychologically which lead me to drugs, I got addicted, I lived through crises for four years." Mr Dandan's taxi authority was renewed in July 1997. There was a period when his licence was cancelled and he was unable to drive. He was reissued with an authority in 1998.

10 Drug taking history. Mr Dandan admitted that he began using heroin in 1996 and was on a methadone program during 1997 and 1998. He admitted to using heroin when he was on the methadone program. Following a car accident on 22 September 1997, Mr Dandan was admitted to Westmead hospital. The clinical notes include the following entries:

Methadone program - IV drug user

Unable/unwilling to recall events of accident

Alfoil package size of thumbnail found on floor . . . contains white powder;

Patient is on a methadone program . . I have confirmed his dose at 130 mgs/d. Last dosed 21/9/97 - no take aways given.

11 During cross examination Mr Dandan agreed that he had a foil of heroin on him at the time of the accident. He conceded that he was on the methadone program, but he was not due for a dose of methadone on 22 September, so he intended using heroin that day.

12 A drug screen dated 20 June 2000 shows "no drugs detected." Mr Dandan has attended five drug counselling sessions since October 2000, the most recent being on 15 January 2001. He has missed four appointments and been late on several occasions. The records indicate that on 6 October 2000, he was having "difficulty maintaining non-heroin use". He agreed that he also told the counsellor on 6 October 2000 that he had last used heroin 2 months ago (ie August 2000). A report from Dr White dated 15 January 2001, expresses the view that because Mr Dandan has taken his test dose of naltrexone on the five occasions he has attended counselling, he is not taking opiates.

13 Criminal record. Mr Dandan agreed that he had been convicted of shoplifting (2 offences: 6/2/1997 and 5/11/99); possess prohibited drug (16/7/1997); driving while cancelled, unregistered and uninsured (15/10/1998); driving while disqualified (24/2/1999); goods in custody (12/8/1999) and larceny (17/5/2000). Mr Dandan attributes these convictions to his drug addiction.

14 Traffic record. In relation to his traffic record, Mr Dandan accumulated sufficient points for his licence to be cancelled from 24/8/98 until 25/11/98. He was disqualified from driving from 15/10/98 until 15/4/99 and again from 24/2/99 until 14/4/00.

15 During the period 16 August 2000 to 21 September 2000 Mr Dandan's driver's licence was suspended. Although he initially told the Tribunal that he only drove a taxi on one day during that period, when shown worksheets for four days during that period, he agreed that he had been driving a taxi on those days.

16 Complaints from passengers. The file shows that approximately 16 complaints have been received by passengers during the period 19 October 1996 to 22 July 2000. These complaints include overcharging, dangerous driving, fraudulent use of cab charge dockets, lack of route knowledge and incivility. Mr Dandan conceded that passengers had made several complaints. While he agreed that the passengers may have thought that he was driving in a dangerous manner, he did not think that he was. He agreed that he did exceed the speed limit on occasions. He denied ever being rude to a passenger. In relation to lack of route knowledge, he said that he may not have known the correct routes when he first started driving but recent complaints were not justified.

17 A complaint was made that Mr Dandan overcharged a passenger on 30 May 2000 by using Tariff 2, instead of Tariff 1. In his letter of explanation to the Department he said that the machine had jammed. Despite making inquiries with the owner of the taxi the Department could find no evidence of any repairs to the machine. Mr Dandan agreed that he had not recorded any defects on his worksheet as required. (Exhibit E) He said he told the owner of the defect.

18 While driving taxis Mr Dandan admitted that he repaid to the taxi network three amounts totalling $500 which he had obtained through misuse of cab-charge dockets.

19 Disclosure of charges and convictions. Mr Dandan did not tell the Department that he had a drug problem, nor did he advise them of any charges against him. He agreed that he signed a declaration in which he agreed to abide by the Taxi driver authorisation standards." Those standards at 1.2 state that "The driver must immediately report any conviction or charge in relation to criminal, traffic or any other kind of offence (other than parking offences) in NSW or elsewhere, to the Department of Transport." He agreed that he did not disclose any charges or convictions as they occurred, but said he did not know he was obliged to do so.

20 Mr Dandan signed three application forms for a taxi authority, one in July 1996, one in July 1997 and one in August 1998. On each occasion, in answer to the question, "Have you ever been convicted in NSW or elsewhere of any criminal, traffic or other type of offence in the last ten years (other than parking offences)?" he ticked the "No" box. He explained that when he completed the first application form in 1996, he did not have any criminal convictions. When he completed the second application form he had a conviction for shoplifting and when he completed the third application form in he had a further conviction for possession of a prohibited drug. He said he thought that a "criminal" offence was murder or assault. This is not consistent with his correspondence to the Department where he said that the convictions were confidential information. On this basis and because Mr Dandan demonstrated an ability to read and understand the question when giving evidence, I am satisfied that he understood the question and chose not to disclose the conviction/s.

21 References. Mr Dandan submitted two character references, one from Ms Maalouf, a family friend, and the other from Rev John Nammour, a Minister of the Guildford Arabic Baptist Church. Ms Maalouf said that Mr Dandan is of good character and cares a great deal about his wife and children. According to Ms Maalouf, "he is showing a much better attitude and perspective towards life." Rev Nammour said that Mr Dandan regularly attends church services and "is showing great efforts and improvements in his daily attitudes."

Applicant's submissions

22 Mr Dandan said that if he went to a driving retraining course, his driving would improve. He admitted that although his past was "very bad" his behaviour was due to the fact that he was taking drugs. He said he has completely changed. He is now a new person and has stopped taking drugs.

Respondent's submissions

23 Mr Wozniak submitted that the nature, seriousness and frequency of Mr Ds traffic and criminal convictions and the complaints against him make it impossible for the Director General to attest that he is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. Even if his intentions to change his lifestyle are accepted as genuine, it is too soon to decide whether he can manage the transition to a drug free lifestyle. The evidence shows that he used heroin as recently as August 2000 and that he is having difficulty maintaining non-heroin use.

Reasons and decision

24 In determining whether the Commissioner can attest to Mr Dandan's reputation and fitness to be a taxi driver, all the evidence must be taken into account, not just the criminal and traffic convictions. (See discussion of this issue in Loye -v- Director General, Department of Transport [2000] NSWADT 145). In this case Mr Dandan submitted that the offences were all related to his drug addiction and he had now put that behind him. The references from a family friend and the local Minister, are evidence that Mr Dandan has made some progress in recent times to improve his attitudes. However, the only real reference to reputation is Ms Maalouf's statement that she has found Mr Dandan "to be of a good character". Given that neither of the references refer to Mr Dandan's criminal record or drug addiction, they do not establish that he is of good repute.

25 The nature, seriousness and frequency of Mr Ds convictions, both for traffic and other offences, and the complaints made against him, lead me to conclude that he is not of good repute, nor is he a fit and proper person to drive a taxi. Mr Dandan drove taxis while using heroin. He stole goods, overcharged passengers and misused cabcharge dockets to fund his habit. He drove in a manner which led to him being disqualified from driving on more than one occasion and he did not inform the Department of any matter with which he had been charged or convicted. Finally he drove and behaved in a manner which led to numerous complaints from passengers.

26 There is evidence which indicates that Mr Dandan is making a serious attempt to rehabilitate himself. He has been attending drug counselling and says he has not used illegal drugs since August 2000. According to Dr White he is not currently taking opiates. But these efforts have not continued for long enough for the Tribunal to be satisfied that he is now of good repute and a fit and proper person to drive taxis.

Orders

27 The decision of the Director General to cancel the applicant's taxi authority to affirmed.