Hussein v- Director General, Department of Transport [2002] NSWADT 129 (25 July 2002)

Last Updated: 17 October 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Hussein v- Director General, Department of Transport [2002] NSWADT 129

PARTIES: APPLICANT

Abdi Deek Hussein

RESPONDENT

Director General, Department of Transport

FILE NUMBERS: 013288

HEARING DATES: 01/02/2002

SUBMISSIONS CLOSED: 01/02/2002

DECISION DATE: 25/07/2002

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Crimes Act 1900

Passenger Transport (Taxi-Cab) Regulation 2001

Passenger Transport Act 1990

CASES CITED: Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392

Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1

Caska v The Director General Department of Transport [2001] NSWSC 205

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11

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

Taxi driver - grant of authority

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

R Ranken, solicitor

ORDERS: The Director General's decision to refuse the applicant's application for a taxi authority is affirmed.

Reasons for Decision:

Introduction

1 On 18 September 2001 the Director General, Department of Transport (the Director General) refused Mr Hussein's application for an authority to drive a taxi. This decision was affirmed after an internal review on 16 October 2001. On 29 November 2001 Mr Hussein applied to the Tribunal for a review of this decision.

2 The Director General originally granted Mr Hussein a taxi authority on 19 June 1997. That authority was cancelled because the Director General was satisfied that Mr Hussein had allowed a colleague of his, Mr Farah, to use his taxi authority to drive a taxi. Mr Hussein's subsequent application for an authority was refused for substantially the same reasons.

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.

Evidence

4 Mr Hussein and Mr Farah are both from Somalia and have known each other since 1996. They shared a house together at one stage but they are no longer in contact in one another.

5 The evidence in this matter was heard over two days on 1 February and 3 May 2002. The reason for the break was that after hearing evidence from Mr Hussein, the Tribunal requested that Mr Farah be summonsed to give evidence. Mr Farah attended the Tribunal and gave evidence on 3 May 2002.

6 On 13 January 1998 Mr Hussein reported to the Police Service that he had lost his taxi authority when he left his back pack on the train. A statutory declaration in relation to the lost authority was completed on 13 January 1998 and purportedly signed by Mr Hussein. That declaration states that Mr Hussein lost his handbag containing his taxi authority on 13 January 1998. Mr Hussein denied completing or signing the statutory declaration but admits that he attended the Department of Transport on another occasion and advised them that he had lost his hand bag on a train. Mr Hussein agreed that it was a possibility that someone wrote the statutory declaration for him. Mr Farah said that Mr Hussein signed the declaration. Mr Farah denied that he was responsible for signing the declaration.

7 The Department provided Mr Hussein with a replacement authority on 15 January 1998. On 28 May 1999 Mr Hussein's authority was renewed for six years.

8 Mr Farah gave evidence that on or about 3 June 1998 he, Mr Hussein and Mr Osman went to a photo shop in Auburn where Mr Hussein organised for Mr Farah to have his photo taken. They then went by train to the offices of the Department of Transport in Parramatta where Mr Hussein organised for a new authority to be issued in his name but with Mr Farah's photo on it.

9 Mr Hussein says that he did not go with Mr Hussein to the photo shop or to the Department of Transport on or about 3 June 1998.

10 In July 1999 Dr Ian Fowler made a complaint to the Department in relation to taxi-cab driver authority No FG9694. The Department's investigations identified the driver to be Mr Farah.

11 On 15 November 1999 a representative from the Department went to Mr Hussein's home to speak to him about Dr Fowler's complaint and the alleged misuse of his taxi-cab authority card. The Departmental representative showed Mr Hussein a photograph of Mr Farah. Mr Hussein said that he did not know Mr Farah and had never seen him before. Mr Hussein said that he was aware that his driver's licence had been misused because he had received several infringement notices in the mail for which he was not responsible.

12 On 22 November 1999 Mr Hussein contacted the Department by phone to say that he had found out the name of Mr Farah through friends.

13 A Departmental officer interviewed Mr Farah on 17 December 1999. Mr Farah said he has known Mr Hussein since 1996. He admitted using Mr Hussein's driver's licence and misusing driver authority No FG9694. He stated that he had done so with Mr Hussein's knowledge and approval. Mr Farah subsequently made a statement on 10 January 2000. In that statement he said that he was a refugee from Somalia and he desperately needed money to send back to his family. He asked Mr Hussein to help him obtain employment because his English was not good enough to become a taxi driver. He said that he and Mr Hussein decided to duplicate Mr Hussein's authority and place Mr Farah's photo on the duplicate. Mr Farah then undertook work as a casual taxi driver for over 12 months.

14 Mr Farah told the Tribunal at the hearing that he had paid Mr Hussein $700 per month for the use of his authority. He paid him in cash at the end of each month. Mr Hussein denied any such arrangement.

15 A Departmental officer interviewed Mr Hussein on 10 January 2000. Contrary to his previous statements, Mr Hussein made the following admissions:

· that he had known Mr Farah for some time;

· that he had lived in the same house as Mr Farah;

· that he had been suspicious since mid 1998 that Mr Farah had been misusing his driver's licence;

· that he was now aware that Mr Farah had been misusing his taxi driver authority number;

· that he had not taken any steps to tell the Department that Mr Farah was misusing his taxi driver authority; and

· that Mr Farah had been in the kitchen of Mr Hussein's home at the time a Departmental officer spoke with Mr Hussein on 15 November 1999.

16 At the interview, Mr Hussein suggested that Mr Farah had stolen his taxi driver authority and his driver's licence. He said that he did not know whether he originally lost his drivers authority on a train. In answer to the question: "You filled out a statutory declaration on 15 January 1998 stating that you left your handbag on the train and your authority was in it. The matter was reported to police" Mr Hussein replied "Well I must have made a mistake if Mr Farah got it (the authority) from my house." (Words in brackets added.) Mr Hussein says that the statutory declaration puportedly signed by him was not shown to him at the time of the interview.

17 In the statement dated 12 January 2001, Mr Hussein said that Mr Farah stole his taxi authority and his driver's licence. Late in 1998 Mr Farah said he started to receive infringement notices in the mail for driving offences. He said that he discovered later that Mr Farah was using a duplicate of his authority. Mr Farah allegedly told Mr Hussein that he would destroy the duplicate authority.

18 On 21 February 2000, the Director General cancelled Mr Hussein's driver authority. On 10 May 2000 Mr Farah pleaded guilty to using a false instrument and making a false instrument under the Crimes Act 1900 (NSW).

19 On 7 June 2001 Mr Hussein applied for a new taxi driver's authority. Accompanying that application was a letter to the Department in which Mr Hussein admitted to fraudulent actions and to having misled the Department's initial investigations. The letter said, in part:

This is to formally apologise for my fraudulent actions which led to the withdrawal/cancellation of my taxi authority licence. I regret to have been involved and admit to have had (sic) misled the investigation.

I believe I have paid the price for my awful actions by not driving taxi since the withdrawal of my taxi authority two years ago, and I am very much sorry for any involvement on my behalf.

20 When giving oral evidence, Mr Hussein said that he had misled Department officers by telling them initially that he did not know Mr Farah or anything about his taxi authority card being misused. He said that he told Departmental officers the wrong thing because he was trying to cover for Mr Farah. Later, when Mr Farah told him everything that had happened, he told the Department the full story. His version is recorded in the interview and in his written statement. In oral evidence, Mr Hussein said he did not allow Mr Farah to use his taxi authority and had no knowledge that he was using it until Mr Farah told him about it.

21 Mr Hussein provided a reference to the Department of Transport dated 16 October 2001 from Raymond Hume. Mr Hume said he has known Mr Hussein since 1996 and that he has impressed him as being honest and sincere. He said that he would be surprised if he was guilty of allowing Mr Farah to use his driver's authority as such behaviour would be out of character.

Findings of fact

22 In order to make findings of fact in this case, I must decide who is the more credible witness, Mr Hussein or Mr Farah, and whether any documentary evidence tends to confirm or contradict their evidence. Mr Hussein agrees that he misled officers of the Department by telling them initially that he did not know Mr Farah. He also agrees that when he found out that Mr Farah was misusing his authority card, he did not notify the police or the Department. He attributed this failure to the fact that Mr Farah is a member of the Somalian community and he wanted to protect him. Mr Hussein now believes that Mr Farah stole his taxi authority and his driver's licence without his knowledge, sometime early in 1998. He said in his statement that "I reported the matter (the missing authority) to the police as stolen property as he was not a suspect at the time." (Words in brackets added.)

23 Mr Farah's version is that it was Mr Hussein's idea to organise for him to use his authority, with Mr Farah's photograph on it. Mr Farah went with Mr Hussein to the Department and arranged to have a new authority issued with Mr Farah's photograph on it.

24 The respondent submitted that Mr Hussein should not be believed because:

· about the time Mr Hussein initially reported the loss of his authority to the police, he made a statutory declaration to the department to the effect that he had lost his authority when he left his handbag on a train. This was a positive recollection of the circumstances in which he lost his authority that is wholly inconsistent with his later version that both his authority and licence must have been stolen by Mr Farah during one of Mr Farah's visits to Mr Hussein's house;

· Mr Hussein never reported the loss or theft of his driver's licence; and

· Mr Farah's version of events is more credible because he made a number of admissions during his interview with departmental officers and provided a credible version of events that conflicts with Mr Hussein's version.

25 Having regard to all the evidence, I am satisfied that Mr Farah was telling the truth about what happened. His evidence was given in a detailed and open manner. Mr Hussein's version of events was inconsistent and self serving.

Issues and Legislation

26 Section 33B(1) and (2) of the PT Act provides that:

(1) Having regard to the purpose of authorisation under this Division, the Director-General may grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application.

(2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.

27 Section 33(3) of the PT Act provides that:

(3) 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 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.

28 For the purposes of s 33B(2), Clause 33(2)(f)(I) of the Passenger Transport (Taxi-Cab Services) Regulation 2001 (the Regulation) provides that the applicant must satisfy the Director General that he or she:

(i) is of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and

(ii) has sufficient responsibility to drive a taxi-cab in accordance with law and custom.

29 Section 54(c) of the PT Act makes it an offence for any person to fraudulently allow any such accreditation, authority or authorisation to be used by any other person. Mr Hussein has not been prosecuted for this offence.

30 The Tribunal must determine whether the Director-General made the correct and preferable decision in refusing to grant Mr Hussein a taxi authority. (See s 63 Administrative Decisions Tribunal Act 1997 (ADT Act).)

Reasons and decision

31 Being a "fit and proper person" and of "good repute" are distinct concepts which must both be satisfied before an authority can fulfil its purpose. (Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392; Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 at 15.) This proposition was endorsed by the Supreme Court in Caska v The Director General Department of Transport [2001] NSWSC 205.

32 The meaning of being of "good repute" was discussed by Wadell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393. Wadell J defined reputation 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.

33 The Tribunal has frequently quoted the following passage from Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11) in relation to the meaning of "fit and proper person":

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. (per Toohey and Gaudron JJ at 65)

34 The conduct of Mr Hussein relates directly to his activities as a taxi driver. When questioned by departmental officers, Mr Hussein denied any knowledge of Mr Farah. Even when he was interviewed on 10 January 2000, he did not disclose the full extent of his involvement in the scheme. While he apologised for his "fraudulent actions" in his letter of 7 June 2001, he clarified at the hearing that this admission only related to his failure to tell police that he knew Mr Farah and his failure to notify police that Mr Farah was misusing his taxi authority. I have found that his involvement extended to allowing Mr Farah to duplicate his authority and place his own photograph on it. This is an extremely serious matter.

35 It is now two years since Mr Hussein's authority was cancelled and, in his view, he has paid the price for his actions. The question for the Tribunal is not whether has been punished sufficiently for his behaviour, it is whether he is a person of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab. In view of Mr Hussein's fraudulent conduct in allowing Mr Farah to use his taxi-authority and his admissions that he did not initially tell the truth to investigating officers, I find that he is not a fit and proper person to drive a taxi.

Order

36 The Director General's decision to refuse the applicant's application for a taxi authority is affirmed.