Harel v Director General, Department of Transport [2002] NSWADT 249 (29 November 2002)

Last Updated: 28 February 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Harel -v- Director General, Department of Transport [2002] NSWADT 249

PARTIES: APPLICANT

Rami Harel

RESPONDENT

Director General, Department of Transport

FILE NUMBERS: 013215

HEARING DATES: 08/11/2001

SUBMISSIONS CLOSED: 08-11-2001

DECISION DATE: 29-11-2002

BEFORE: Lees M - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Passenger Transport (Taxi-cab Services) Regulation 1995

Passenger Transport (Taxi-Cab) Regulation 2001

Passenger Transport Act 1990

CASES CITED: Ghachame -v- Director General, Department of Transport [2000] NSWADT 113

Haideri -v- Director General, Department of Transport [1999] NSWADT 61

Saadieh v Director General, Department of Transport [1999] NSWADT 68

Ybasco v Director General, Department of Transport [1999] NSWADT 28

Lekrari -v- Director General, Department of Transport [2000] NSWADT 7

Mohammed -v- Director-General, Department of Transport [2000] NSWADT 47

Mulligan -v- Director General, Department of Transport [1999] NSWADT 126

Taylor -v- Director General, Department of Transport (GD) [2001] NSWADTAP 29

Abouhassoun v Director-General, Department of Transport (GD) [2002] NSWADTAP 12

Saddick -v- Director General Department of Transport [2002] NSWADT 88

McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354

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

M v M [1988] HCA 68; (1988) 166 CLR 69

Bannister v Walton (1993) 30 NSWLR 699

McCarthy v Law Society of NSW (1997) 43 NSWLR 42

Yung v Adams (1997) 80 FCR 455

Adams v Yung (1998) 83 FCR 248

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 of the Department of Transport to cancel Mr Harel's taxi-cab driver authority is affirmed

2. The Tribunal's previously granted stay order automatically ceases operation.

Reasons for Decision:

Background

1 Mr Harel applied to the Administrative Decisions Tribunal (the Tribunal) for review of the decision made by Director-General of the New South Wales Department of Transport (the Director-General) to cancel Mr Harel's taxi driver authority.

2 The Tribunal's jurisdiction derives from sections 52 of Passenger Transport Act 1990 (the Act) and 38 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). The Tribunal is required to decide what the correct and preferable decision is in the circumstances, given the law and the relevant material before it (s.63 of the Tribunal Act).

3 Mr Harel also applied for an urgent stay of the Director-General's decision; this was heard by the Tribunal's Deputy President Hennessy who ordered a stay on the operation of the decision under review until further order.

Legislative provisions

4 Subsections 4(a) and 4(e) of the Act provide that the objects of the Act include:

(a) to require the accreditation or authorisation, by the Director-General, of the operators of and drivers involved in public passenger services; .....

(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, .......

5 Section 33 appears in Division 5 of the Act concerning taxi-cab drivers specifically. It reads (as relevant) as follows:

33. (1) The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an ´´authorised taxi-cab driver''.

......

33. (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.

6 Section 33F reads:

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

7 For the purposes of this application, the regulations applicable at the time the complaints were made are those of the Passenger Transport (Taxi-cab Services) Regulation 1995 (the Regulation). This Regulation was repealed on 1 September 2001 and has been replaced (without substantial alteration but with additional material) by the Passenger Transport (Taxi-cab Services) Regulation 2001.

8 Regulation 24 of the Regulation has potential relevance in relation to this application (see regulation 45 of the new Regulation). Regulation 24 specifically concerns aspects of the conduct of drivers. It reads as far as relevant that:

The driver of a taxi-cab must not fail to do the following:

(a) .....

(b) behave in an orderly manner and with civility and propriety towards any passenger, intending passenger or authorised officer

(c) comply with every reasonable request of any passenger.

The Evidence

9 On behalf of the Director-General a copy of the Department of Transport file entitled `Harel Rami' was provided to the Tribunal as well as a copy of the NSW Department of Transport (the Department) `Taxi Driver Authorisation Standards'. On file is a document entitled `Transport District Taxi Driver Authorisation Declaration' (the Declaration) signed by Mr Harel on 19 February 1993. On 12 March 1993 Mr Harel was issued with an authority `AM4422' with the expiry date of 13 March 1999. The authority was renewed in January 1999 with an expiry date of 15 March 2002.

10 According to the file Mr Harel completed a Taxi Operator Accreditation Course in May of 1994 and in June 1994 he obtained accreditation (16460) as a service operator for up to three taxi-cab vehicles. The Tribunal was advised that generally the operator accreditation would have lapsed if not renewed after a year. In 1999 Mr Harel applied for a wheelchair accessible taxi licence.

11 The Department's file includes records relating to a total of seven complaints made against Mr Harel. These documents include hand and type written complaints made by individual passengers or their employers or complaint record sheets recording details of complaints made by telephone to relevant Department or network personnel. The file also includes related memorandums, records of interview and correspondence.

12 The Declaration referred to above includes the following paragraphs:

I have read and understand the Standards for Taxi Driver Authorisation outlining the responsibilities and obligations of taxi driver authority holders and agree to be bound by them.

I will comply with all Acts, Regulations and prescribed standards relevant to taxi driving.

I understand that failure to comply with all of the Acts and Regulations governing the drivers of taxis, the conditions of licence for the vehicle being operated, the responsibilities, obligations and standards outlined in the Standards for Taxi Driver Authorisation, may result in my authority being varied, suspended or cancelled.....

I understand that failure to continue to meet the standards for reputation, medical fitness and responsibility and aptitude outlined in the Standards for Taxi Driver Authorisation and any additional standards that may from time to time be introduced by the Director-General...may result in my authority being varied, suspended or cancelled.

I will abide by the NSW Taxi Industry's Code of Conduct for authorised taxi drivers......

13 It is noted that the Standards for Taxi Driver Authorisation covers matters pertaining to authorisation, medical fitness, responsibility and aptitude, customer service, taxi-driver safety, operational responsibilities and variation, suspension and cancellation. It cites corresponding clauses from the Regulation where applicable.

14 Mr Harel attended the Tribunal hearing and gave oral evidence and made submissions on his own behalf. The material he provided to the Tribunal before or during the hearing process consisted of: his completed Tribunal (external) review application form; a copy of his application to the Department seeking internal review of the decision to cancel his taxi authority; a copy of the Department's `Notice of Cancellation Taxi Authority AM4422' dated 27/08/01, with annexured Statement of Reasons; and copies of three references. The references were from: Rabbi Lieder of The Yeshiva Centre (13/08/2001); Mr Simons of The Central Synagogue (20/08/2001); and Mr Dykes of Tele2000 for whom Mr Harel had/has been an `agent' selling telephone contracts since 1996 (undated). Mr Harel gave evidence that he arrived in Australia in 1988 and that he had first obtained a taxi driver authority in 1989. The Department file makes reference to one former authority (059033) issued on 13 March 1991 expiring 13 March 1992. Mr Harel stated that he suffers from dyslexia, cannot read English and has a damaged back due to a car accident (operated on in 1991).

15 In his application for review by the Tribunal, Mr Harel stated as his reason for seeking review that he `denies any wrongdoing and denies the allegations being made against him'.

16 At the hearing the Director-General relied upon six of the seven specific complaints and one previous warning as its evidence establishing the bases for its decision that an attestation under s.33 of the Act in favour of Mr Harel could no longer be maintained.

17 Mr Harel was provided with an opportunity to reply to the allegations made in the complaints either at an interview conducted by the Department on 26 July 2001 (in relation to four of the complaints), in response to a Departmental `show cause' letter dated 2 August 2001 (in relation to six of the complaints) or at the time of the Tribunal hearing.

18 At the interview Mr Harel was referred specifically to complaints #3, #4, #5 and #6. According to a Department internal memorandum (24 August 2001) the interview resulted from the complaint of 22 May 2001 (complaint #4) and the fact Mr Harel had not been interviewed in relation to several earlier `identical' complaints.

19 At the interview, on being asked generally whether he ever spoke to women passengers `on the subject of sex .... intimate questions?' Mr Harel replied `Not at all, you hear stories, they are unbelievable......'. On being asked what he had to say about there being four separate complaints of a similar nature received in the last ten months, Mr Harel replied `I can't say anything, I'm just having a bad run ....'. Mr Harel did not deny he was the driver on any of the occasions mentioned to him.

20 After the interview a recommendation was made by a Department officer that consideration be given to the suspension or cancellation of Mr Harel's driver's authority. It was decided Mr Harel be issued with a `show cause' letter due to `the serious nature of the complaints'.

21 Mr Harel replied (in writing) to the show cause letter. He stated that the allegations were `very out of character to how he is' and that he could not explain them. This reply included the three references noted above.

22 On being asked at the interview if he could provide any reason `why a woman who was a stranger to you would make such a complaint?' he replied `No, I have driven about 150,000 - 250,000 people....have never had a complaint'. On being asked `You've never had any allegations before?', Mr Harel stated `No you have my file, everything is happening all at once, I really don't know how to explain it. In relation to all of those conversations, I have never touched anyone, I really do not know, that's all I can say'.

23 Mr Harel remembered the Declaration he signed in 1993 which provided that if the driver breaks the rules, s/he may lose his/her authority/licence.

24 The following summarises the six relevant complaints received by or referred to the Department and relied upon by the Director-General in making the decision to cancel Mr Harel's taxi authority and Mr Harel's response to each.

Complaint 1

At about 6pm on 30 March 1994, a female passenger hailed Mr Harel's taxi at Mosman for Balmoral Beach. The passenger lodged a typewritten complaint with the Department alleging that her driver asked questions of a personal nature (including where she resided), tendered incorrect change and remained at passenger's destination for a lengthy period which made her feel very uncomfortable and very unsafe. The passenger described the driver's attitude as peculiar and the circumstances as bizarre. She also provided a description of the driver's facial features and nominated possible sources of his accent.

Personnel from Taxis Combined Services interviewed and counselled Mr Harel. Mr Harel was advised that such behaviour would not be tolerated and that future complaints may affect his Authority to drive a taxi in Sydney. (Letter from Taxis Combined to Department dated 20 May 1994). The Passenger Transport Management System (`PTMS') record states beside `Action': the letter `R', which stands for reprimand which is the action requested by the user (cf `N' = no action and `C'= take to court).

In his reply to the show cause letter Mr Harel recalled this occasion stating that the complainant was drunk and that she had complained about the change she was given but that he knows he gave her the correct change. Mr Harel agreed he did not drive off straight away, turning his side light on `to make sure she made it safely into her building'.... as he `felt that she may not be able to see her way into the building'. At the hearing Mr Harel suggested the passenger `complained about everything'.

Mr Harel could not recall who he spoke with from Taxis Combined (`TC') about the complaint; he stated whoever it was said `Leave it with us, no worries'. Mr Harel did not recall being warned. Mr Harel asked `if I was counselled, shouldn't there be a report; if I was counselled, what did I say?'.

Complaint 2

At about 11am on 13 August 1997, a female passenger hailed Mr Harel's taxi at Phillip Street Sydney for St Leonards. Through her employer corporation a typewritten complaint together with 2 ½ pages of handwritten detail was lodged with the Department alleging that the driver made inappropriate comments towards the passenger with respect to her personal life and asked for her name, phone number and address. The alleged comments included: `Thank God a beautiful woman like you got in my taxi. I would of (sic) had to find an old lady and bashed her. I would get her walking stick and bash her all over....'; `How about I take you to Palm Beach and show you a good time'; `he may be the man of your dreams and then I won't be able to have you....'; `I know you (sic) not street scum'; `what do you take for me to have you, I can give you money'; `a beautiful name for a beautiful woman'; `you can have my phone number'; and `when will I see you again, I will wait here for you'. The passenger at first thought the driver a `wierdo' and sought to ignore him, however she became scared that he might take her `somewhere' and although she did not want to talk to him, she was scared of what might happen should she tell him off. Once at her destination, the passenger spoke with the building's security guard and noticed that the taxi `remained outside'. The passenger also complained of the driver trying to persuade her to enter a greater amount than the actual fare on the Cabcharge docket. The passenger gave `no indication that such behaviour or conversation was acceptable to her'.

The Department was subsequently advised that the passenger had also gone to the Police in relation to the driver's behaviour but was reluctant to make a formal statement. The Department recorded the complaint on the PTMS and attached a copy to the driver's file. The Department decided to wait to be advised by the Police intending to take action to suspend the driver's authority if the driver was charged.

On this complaint being put to Mr Harel in the show cause letter, Mr Harel responded that he did not recall the actual incident but added that at that time he was also working for Tele 2000 introducing people to cheap long distance phone calls and suggesting that perhaps his conversation may have included asking for a name and address and this may have been misinterpreted as `sexual innuendo'. His working for Tele 2000 was confirmed in the reference of Mr Dykes.

At the hearing Mr Harel's evidence was that he first learnt of the complaint from the show cause letter of August 2001. He stated that he did not remember the occasion at all and asked `how could such a story go unchecked for four and a half years?'. He added that he did not `have a clue about it....its so bizarre....the complainant `must be a storyteller''.

Complaint 3

On 14 September 2000 at 12.30pm, a female passenger hailed Mr Harel's taxi at Park Street Sydney for Paddington. Later that same afternoon the passenger lodged a complaint by telephone about her driver alleging that he became aware of the identity of her publisher employer, he made inappropriate comments towards her regarding her possibly working for Playboy or Penthouse magazine. When she asked to borrow a pen, she alleged the driver asked her if she wanted something harder. The passenger complained because she believed the driver's behaviour was quite inappropriate and unimpressive.

According to the PTMS record this complaint is recorded as having been received by the Department some nine months after the complaint was originally made. If the copy of the Transport file is complete, there is nothing further on file relating to this complaint, except a printout of `Logged Taxi Activity Times' for 14 September 2000 which confirms Mr Harel as the relevant driver. The relevant PTMS records another `R' for reprimand beside the word `Action'; however from the copied file documents provided it is not possible to ascertain whether, or how or when, such reprimand was issued.

At the hearing Mr Harel stated that the Departmental officer at the interview in July 2001 stated to Mr Harel that this complaint should have been raised with Mr Harel sooner.

When complaint #3 was put to Mr Harel at the hearing, he replied `I can't remember any of those conversations. I have never made any sexual advance to anyone in a taxi. I can't explain it, 12 years I'm driving 6 days a week....If I had done anything sexual it would have been late at night.....I've just had a bad run.....If I made any connotation of this kind it would have been a long time ago when I drove at night. These were in broad daylight. The only connotation on my part would be at night.'

Complaint 4

This complaint was made to the Department at 8.18 am on 24 April 2001. At about 7.40am on the same morning, a female passenger was picked up in Enmore and asked to be taken to Alexandria, after which (the passenger alleged) the driver asked if she lived in the area and after replying she did, the driver said to her she `must be a student or gay'. The passenger alleged the driver proceeded with inappropriate conversation and asked her very personal questions regarding her sex life, such as whether she had `ever had sex with a man?'. The passenger tried to change the subject but he persisted with questions about her sex life.

The file includes the copy of an unsigned letter from the Department to the passenger on 24 April 2001 advising her that the complaint she had made that same day had been noted and referred to TC for `investigation and appropriate action' and that TC have been asked to get back to the complainant after its enquiries had been completed.

The PTMS record of the complaint records that the passenger requested that the driver be reprimanded. On 15 May 2001 TC returned the complaint to the Department as it was `the second (sic) complaint against this driver in relation to sexual harassment' requesting that the driver's fitness to drive be reviewed.

In response Mr Harel did not recall this occasion or conversation at all. He speculated and theorised generally about conversations in taxis. More relevantly he stated that `it is quite commonly known that Enmore is a gay area and from my experience, people in this area are quite aggressive in nature and will stand up for themselves and complain'....`students or gays, they are very much alike...stand up for their rights. I can't remember anything....'.

Complaint 5

At about 11.55am on 17 May 2001, a complainant, aged 17 years of age was walking across a bridge in Windsor and a taxi driver stopped and asked if she wanted a lift `somewhere', indicating the McDonalds food outlet further along the road. The complainant accepted and travelled with the driver to McDonalds, conversing on the way. No fare was charged. The passenger lodged a complaint that afternoon with the Department about the driver alleging that he kept asking her very personal questions about sex which made her very uncomfortable. The passenger found the situation strange and unsettling. The record of the complaint states that the passenger also stated she was `sick and tired of being asked personal and intimate questions by taxi drivers'.

Mr Harel agreed he had picked the passenger up and that he had asked her why she was not hitchhiking, to which she had replied she doesn't because her girlfriend had been raped hitchhiking. Mr Harel stated he `did not instigate the conversation...she started the conversation by telling me what had happened to her girlfriend'. Mr Harel considered that the complainant `frames herself' by her comment that she was `sick and tired of.....taxi drivers" suggesting that her evidence was somehow diminished by the comment. Mr Harel stated `I'm the last one in the chain......I believe I'm the one who copped it for all the others'...... `It's not in my nature' .... `I have never touched anyone. I never made advances to anyone or made a pass. It is totally out of my character.... People don't complain unless you touch a raw nerve....it's pure bad luck on my part .... I pick up the good, bad, evil, the drunk, the runners......Anyone can make any allegation against us...'.

Complaint 6

On 22 May 2001 a complaint was received by the Combined Communications Network (and referred to the Department the same day with further detail being provided subsequently) from an employer of a female passenger in relation to a taxi trip she had taken from Surry Hills to the City at about 10.55am that morning. The passenger herself later provided details describing the driver (mid 40s, quite tall with beard) and stating that the driver commented on how nice she smelt and how good she looked `with bleached hair' and asked her if she was gay, saying that she `looked like a cool gay nice smelling good looking woman'. After replying `no', the passenger stated the driver then said `well if you are not, prove it to me', `how about if I put my seat back and you can prove that you are not'. The conversation continued with the passenger trying `to fob it off' by talking about stereotyping with the driver continuing with the comment `...most guys want to have sex with a lesbian'. The passenger stated that she tried to keep calm and focus the conversation on her work which he had asked her about; however the driver then refocussed asking her if she was married, had a boyfriend, about her being gay, why she didn't have a boyfriend `because you know it is nice if you have someone to wake up to in the morning, you would know all about that wouldn't you...', then suggested he give her his number saying `I would marry you in a second'.

Mr Harel could not recall this incident at all, stating he `can't remember nothing (sic) of this nature, nothing even close to it...I have never made any advances of anyone of this nature in a taxi, it's basically not me, I can't recall anything of this nature'.

He stated `Whatever happens in a taxi is unbelievable...I kicked people out about to mate in the back seat, people make allegations of verbal discussions.....If I ever touched anyone, I wouldn't dare show my face in here'.

25 On being asked what his understanding of sexual harassment was Mr Harel replied `personal questions, if you tease someone about certain kind of looks...'.

26 On being asked why he considers he has `just had pure bad luck' in having these complaints lodged against him he replied again `its not in my nature, as simple as that...'.

27 Mr Harel claimed he was ashamed of the allegations. He was sorry if any of the complainants had misinterpreted him and stated he `must be more careful in the future'. He feels he is a good taxi driver and is always civil and a friendly ambassador for Sydney. He submitted that he has driven thousands of passengers and has a reasonable driving record and that driving a taxi is not an easy job; he has experienced runners, verbal abuse, vomit in his taxi and attempted robbery. He claimed by reference to his `broken back' and his dyslexia that he was unfit for any other work.

28 Mr Wozniak for the Department did not cross-examine Mr Harel. Mr Wozniak submitted that everything stated in evidence by Mr Harel had already been stated by Mr Harel in his letter in reply to the show cause letter of August 2001.

29 The Tribunal itself put a number of questions to Mr Harel seeking to clarify his documentary and oral evidence.

Submissions

30 Mr Harel submitted that `the only mistake I ever done (sic) is I drive people, not cattle. People can complain.' He believed the Department had given him mixed messages as to the complaints made about him as a taxi driver and he described the Department as taking the side of the complainants `... and they never got to my side...'.

31 Mr Harel queried the description of the complaints as `serious' asking `what is seriousness, is it this much, or this much?'. Mr Harel considered the handling of the complaints as `a joke' submitting that his responses to the complaints had not been given much thought, `nobody ever spent a few minutes....it's a joke'. He considered the correspondence he received from the Department to be like `chain letters'. He was critical of the fact he was confronted with the complaints `all at once', saying he was shocked and shaken, particularly at the time he was interviewed.

32 Mr Harel objects to `someone taking his livelihood on the basis of probability'. He submitted that all the Department/the Tribunal had was what was in the letters: `all you've got is reasonable probability'. In his submission, the Tribunal has `to have something concrete'. He submitted that the Tribunal `can't cancel on maybe'. Mr Harel referred to discussions he had with a Mr Ian Hoffman, who is `involved in the area of risk management in statistics' and in whose view there `was no pattern here'. Mr Harel also referred to having spoken with a Professor about `statistical probability' and submitted that what is needed is a `100% conviction'.

33 Mr Harel referred the Tribunal to its decision of Ghachame -v- Director General, Department of Transport [2000] NSWADT 113 (para 63) submitting that Deputy President Hennessy stated that the Tribunal's decision in an application of the present kind is not about punishment but one about a driver's fitness and propriety.

34 Mr Wozniak referred to Mr Harel's Transport District Taxi Driver Authorisation Declaration of 1993 and submitted that even with his difficulties, Mr Harel understood the standards to which he should adhere. Mr Wozniak submitted in this regard that the Act requires that Mr Harel be fit and proper and have sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom, and that custom includes not sexually harassing a taxi passenger.

35 Mr Wozniak submitted that Mr Harel's circumstances involve several complaints about him of a very similar nature, all from young women or girls, all are very specific with most of the complainants being caused to feel uncomfortable.

36 In relation to complaint #1, the evidence establishes that the complaint was made within days of the complainant's journey and consisted of considerable detail. Mr Wozniak submitted that complainant 1 `could not have been that drunk' as asserted by Mr Harel given her detailed recollection and accurate description of the driver. In complaint #2, Mr Wozniak submitted that the detail provided again by the complainant was extraordinary; the behaviour complained about did not consist in mere inferences, but rather, extremely suggestive comments.

37 In relation to Mr Harel putting the complaints down to `just bad luck', Mr Wozniak submitted that the very serious nature of the complaints, their commonality and similarity in terms of the details alleged, suggests otherwise.

38 In relation to Mr Harel's submission re statistics, probabilities and certainties, Mr Wozniak submitted that the allegations against Mr Harel are very serious and the task for the Tribunal in the circumstances is to make the `correct and preferable' decision.

39 Mr Wozniak submitted that s.33 and s.33F of the Act are relevant in this application and that financial considerations are not relevant.

40 Mr Wozniak submitted that it was relevant and significant that an industry body itself (in this case Taxis Combined) had decided the issue was sufficiently serious to refer what it considered the third sexual harassment complaint to the Department for its consideration and action.

41 Mr Wozniak referred the Tribunal to a number of earlier Tribunal decisions: Haideri -v- Director General, Department of Transport [1999] NSWADT 61; Saadieh v Director General, Department of Transport [1999] NSWADT 68; Ybasco v Director General, Department of Transport [1999] NSWADT 28; Lekrari -v- Director General, Department of Transport [2000] NSWADT 7; and Mohammed -v- Director-General, Department of Transport [2000] NSWADT 47.

42 The Director-General's conclusion remained that it can no longer be attested that Mr Harel is considered to meet the requirements for authorisation as a taxi cab driver.

Findings and Reasoning

43 The decisions referred to by both Mr Harel and Mr Wozniak have been considered by the Tribunal and have been referred to where relevant below. The Tribunal has also taken into account the Tribunal decisions of Mulligan -v- Director General, Department of Transport [1999] NSWADT 126, Taylor -v- Director General, Department of Transport (GD) [2001] NSWADTAP 29 (specifically paragraphs 87 and 88), Abouhassoun v Director-General, Department of Transport (GD) [2002] NSWADTAP 12 and Saddick -v- Director General Department of Transport [2002] NSWADT 88 (specifically paragraphs 39 to 45) in relation to assessing the evidence provided by the parties.

44 In effect section 33(3) of the Act requires Mr Harel to meet six requirements in order that an attestation can be properly made. He must show that he is considered:

to be of good repute (s33(3)(a))

to be in all other respects a fit and proper person to be the driver of a taxi-cab (s33(3)(a))

to have sufficient responsibility to drive a taxi-cab in accordance with the conditions under which the taxi-cab service concerned is operated (s33(3)(b)(i)),

to have sufficient responsibility to drive a taxi-cab in accordance with law and custom (s33(3)(b)(ii)),

to have sufficient aptitude to drive a taxi-cab in accordance with the conditions under which the taxi-cab service concerned is operated (s33(3)(b)(i)), and

to have sufficient aptitude to drive a taxi-cab in accordance with law and custom (s33(3)(b)(ii)).

45 Regulation 24(b) requires taxi-drivers to behave in an orderly manner and with civility and propriety towards any passenger.

46 The New Shorter Oxford English Dictionary (1993) defines `civility' as `....orderly behaviour ... politeness; consideration ...decency, seemliness.' and `propriety' as `...fitness, appropriateness, suitability, rightness, correctness....the details or rules of conventionally correct conduct.'.

47 Mr Harel's submission that the Director-General and/or the Tribunal needs `to have something concrete' or a `100% conviction' in order to establish the accuracy of the complaints suggests he believed that the applicable standard of proof to be applied was one requiring evidence that was indisputable, of 100% certainty. This is not the case. When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on `the balance of probabilities' (McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357). This standard can be distinguished from `beyond reasonable doubt' which is the standard applied generally in criminal matters. Mr Harel's submission that all the Tribunal has is `reasonable probability' is in general terms all that the Tribunal needs to make a finding. The oral hearsay evidence Mr Harel sought to rely on in this regard from a `Professor' and/or Mr Hoffman does not assist Mr Harel at all.

48 A useful guide in considering the relevant issues in circumstances such as Mr Harel's was summarised in the Tribunal decision of Mulligan -v- Director General, Department of Transport [1999] NSWADT 126 at para 14-16:

....the language used in s 11(2) [now s. 33(3) ] to describe "the purpose of an authority", indicates that central to the power to issue or remove a driver's authority is the perception of the Director-General, and of this Tribunal on review, of the driver's fitness based on all material which would properly come to the attention of a government regulator. A driver's authority carries ("attests") a continuing public representation that the government regulator has satisfied itself, and remains satisfied, as to fitness. It thereby assists public confidence in the safety, reliability and efficiency of taxi-cab services (c.f. the objective in s 4(e) of the Act). If the Director-General lacks confidence in a driver, then the public should not be mislead by the issuing or maintenance of a driver's authority.

It therefore becomes appropriate for the decision-maker to exercise the power to vary, suspend or cancel an authority when he or she finds cause to lose confidence in the driver's fitness. Although the Act emphasises that the decision turns on the opinion of the decision-maker, it is appropriate that he or she should seek to apply standards meeting "the reasonable expectations of the community" (c.f. again, the objective in s 4(e) of the Act).

Although the above thoughts encourage a broad view of what circumstances might lead to the loss of a driver's authority, it must still be borne in mind that the decision will deprive a person of an important opportunity to earn a livelihood. A taxi-driver's authority may be as significant to its holder as a professional person's registration. Although the power is granted to an administrator and is open to review by an administrative Tribunal given flexibility in what material it takes into account, a proper evidentiary foundation must be found for a decision based on reasonable satisfaction as to relevant circumstances. As with any occupational decision, "in such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ... weight is given to the presumption of innocence and exactness of proof is expected" (per Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362-3, reaffirmed in M v M [1988] HCA 68; (1988) 166 CLR 69 at 77). A state of "comfortable satisfaction on the balance of probabilities" should be achieved ( Bannister v Walton (1993) 30 NSWLR 699 at 711-2, also McCarthy v Law Society of NSW (1997) 43 NSWLR 42 at 58). Moreover, as with all disciplinary decision-making, there must be concern at all stages that the driver has been given "adequate notice of the findings which might be made against him and a fair opportunity to respond" (Yung v Adams (1997) 80 FCR 455 at 455E, affirmed on appeal: Adams v Yung (1998) 83 FCR 248 at 297).

49 The question of whether Mr Harel is fit and proper is a value judgment for the Tribunal (per Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at para 63). The question to be asked is whether a person is fit and proper "to undertake the activities in question" (per Toohey and Gaudron JJ at para 56). In Mr Harel's case the activity in question is driving a taxi-cab.

50 The Tribunal's Deputy President Hennessy found in the case of Haideri that one occasion of a sexually explicit conversation (no touching) between a driver and passenger was a sufficient basis to find unfitness.

51 In Saadieh, another matter involving the cancellation of a taxi-driver authority, Deputy President Hennessy provided guidance relevant to determining a person's fitness for that specific role (at paras 17 and 18):

17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:

the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

the nature, seriousness and frequency of any complaints made against the applicant;

the applicant's driving record;

the applicant's reputation in the community; and

the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

18 In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers.

52 The Director-General's case for cancellation depended upon: the documentary evidence of the six complaints about Mr Harel; the conclusions drawn from the Department's interview with Mr Harel following the sixth complaint in July 2001; and Mr Harel's written response to the August 2001 show cause letter.

53 Mr Harel had a further five complaints made against him after he had been issued with a warning after the first complaint in 1994, the last four of these complaints were made within the relatively short period of 7 months - the last three complaints within a very short five-week period in April and May 2001 giving rise to the process resulting in the cancellation of Mr Harel's authority. All complaints included allegations of a similar kind.

54 The Tribunal considers the documentary evidence and records provided by the Director-General in support of the decision to cancel Mr Harel's authority to be relevant and sufficiently reliable to be taken into account.

55 The fact that none of the six complainants were called upon to provide further evidence or in order to be made available for cross-examination has been taken into account by the Tribunal.

56 Mr Harel's submission that the Department `never got to my side' is not accepted. It is true that two of the complaints were not put to Mr Harel immediately or within a reasonable period for his reply (complaints #2 and #3), which is regrettable from an administrative and (for present purposes) evidentiary point of view. However, the remaining four of the six complaints are considered to have been raised with Mr Harel within a reasonable period for reply. Mr Harel was provided with the opportunity to respond to complaints #3, #4, #5, and #6 at the Department's July 2001 interview. He had the opportunity to reply to all six complaints in writing in August 2001 in reply to the Department's show cause letter. He again had the opportunity to reply to all six complaints before the Tribunal in November 2001.

57 In each of the six relevant complaints, the driver complained about was established to be Mr Harel by the use of relevant taxi system records, or by Mr Harel's own admission or agreement. Mr Harel agreed to having been the driver complained about in complaints #1 and #5. Evidence in the form of quoted taxi number and driver ID or documented logged taxi activity records confirmed that Mr Harel was also the relevant driver complained about in complaints #2, #3, #4 and #6. Mr Harel did not seek to deny the accuracy of these records at all or to deny that he was in fact the relevant driver of the relevant taxi at the relevant times. Accordingly, it can be concluded that he was the relevant driver the subject of each of these additional four complaints.

58 At the July 2001 interview, Mr Harel referred to his taxi-driving career and stated he had `never had a complaint'. This is plainly incorrect given both the file records relating to complaints made and his subsequent acknowledgement of complaint #1(1994) in his letter of August 2001 and at hearing.

59 As stated above the Tribunal is satisfied, in relation to all six complaints that Mr Harel was provided, at one stage or another and certainly prior to or during his application hearing, with all the details of the complaints and with the opportunity to respond to them. Mr Harel's evidence was that he did not remember four of the complaint occasions at all.

60 Mr Harel blanketly denied having conducted himself at all inappropriately on any occasion. Mr Harel denied at the interview ever speaking to women on the subject of sex. In evidence before the Tribunal Mr Harel denied ever making any sexual advance to anyone in a taxi or ever touching anyone in a taxi.

61 The two complaint occasions Mr Harel did actually recall were those of complaint #1 and complaint #5. Mr Harel recalled complaint #1 because someone from Taxis Combined spoke to him about it. He sought to explain that the reason why he waited and watched the passenger sometime after she had left the car was out of concern for her because he thought she was drunk. Mr Harel failed to comment at all on part of the alleged relevant conversation. In doing so Mr Harel did not deny any of the conversation as alleged by the female complainant regarding her personal information, such as where she lived exactly. In her complaint, prepared by the complainant herself and written in her own words, a description of the driver's personal characteristics was included and Mr Harel easily fits that description. In a Taxis Combined letter (20 May 1994) to the Department it stated Mr Harel had been interviewed, counselled and warned about his behaviour and that future complaints may affect his driver's authority.

62 Mr Harel also recalled the occasion which gave rise to complaint #5. He confirmed some of the conversation as alleged by the complainant regarding hitchhiking and rape but blamed the passenger for that topic being raised, stating `she started it' as his explanation. Again however, Mr Harel failed to comment at all on parts of the alleged relevant conversation. In doing so he did not deny the nature or the content of the rest of the conversation as alleged concerning his asking (his very young passenger) very personal questions about sex.

63 On the evidence before the Tribunal, in relation to complaints #1 and #5 it is accepted that Mr Harel asked both female passengers very personal questions, and in relation to complainant #5 these included sexual matters, and in both cases by this behaviour Mr Harel made both passengers feel unsafe and uncomfortable. In the Tribunal's view, it is considered much more likely that the contemporaneous accounts provided by the two passengers are more accurate and more reliable representations of what transpired at the relevant times than Mr Harel's recollections. His brief explanations were not persuasive to raise doubts as to accuracy of the facts as asserted by the complainants. Mr Harel's effort in relation to both complaints to deflect blame onto each of the complainants did not assist him. On balance it is found that the conduct giving rise to complaints #1 and #5 occurred as alleged by the complainants.

64 All of the six complaints made about Mr Harel appear to have been made by young women travelling alone. At least five of the six complaints were made on the same day as Mr Harel's alleged conduct occurred. Each involved the contemporaneous recording of details of the alleged conduct. All six complaints made very clear the nature of the alleged conduct - the adoption of a line of conversation plainly invasive of each passenger's personal privacy; in five of the complaints it was also sexual, varying in degree from actual sexual proposition to persistent innuendo. In each case the alleged conduct was considered inappropriate and was unwelcome to the passenger. Four complainants were made to feel uncomfortable, unsafe or scared (#1, #2, #5 & #6). According to the Department PTMS records the last five complaints were classified and recorded by it as involving sexual harassment. From the evidence it appears that the complainants were all individuals unknown to either Mr Harel or each other.

65 Mr Harel's own evidence betrayed him several times, particularly in his responses to complaints #3 and #5. His constant evidence that the alleged conduct was `not in his character' is negated by what he hypothesised in reply to complaint #3. Mr Harel's expression of shame in evidence seemed to be about being before the Tribunal rather than for the actions alleged against him. Because Mr Harel denied all the allegations there was no room for contrition or remorse. Mr Harel did state he was sorry that his conduct may have been misunderstood. At the same time however he also seemed to dismiss the complainants as aggressive and assertive young women he was unlucky enough to have as passengers in his taxi. His references to being unlucky and being the last straw do nothing to persuade the Tribunal that Mr Harel has made any attempt to understand the perspective of the female complainants or the possibility that any of his behaviour on any occasion could have been inappropriate or could have been perceived to have been inappropriate. Mr Harel had been warned early in his career. He appears to have either forgotten or not to have heeded that warning.

66 In Mohammed Deputy-President Hennessy did not accept the explanations offered by Mr Mohammed in relation to the allegations that he had introduced the subject of sex into conversation with his passengers finding it: `highly unlikely that three passengers ....would all have fabricated a story involving sexual impropriety merely because they were angry ... (for some other reason)....(at para 34).

67 In Lekrari the Tribunal found that `the applicant has no satisfactory explanation for why seven members of the public saw fit to go to the trouble of contacting the authorities to register complaints against him' (at para 18).

68 In relation to Mr Harel, six different people went to the trouble to complain, all were female, all apparently young and all detailing similar sort of conduct on Mr Harel's part. The Tribunal is of the view that the conduct attributed to Mr Harel in the additional four complaints (#2, #3, #4, #6), consisting in his traversing into matters of his passengers' personal privacy, as highly likely to have taken place. The Tribunal is also of the view that Mr Harel is more than likely responsible, either directly or indirectly, of introducing the subjects of sex or sexual preference or sexual activity into conversations with these passengers. The Tribunal accepts the evidence that at least two of these four complainants (#2 & #6) were made to feel uncomfortable or unsafe as a consequence.

69 By his adamant denials that he ever touched or made any sexual advance to any passenger, Mr Harel exhibited some understanding that these forms of conduct by a taxi-driver are inappropriate. By his own very brief description of sexual harassment as `personal questions, if you tease someone about certain kind of looks' Mr Harel exhibits an understanding of what may be included in the concept. It follows from Mr Harel's own description that he knows that the threshold for conduct constituting sexual harassment is low. It seems to the Tribunal that Mr Harel would therefore know also, for example, that asking questions of a personal nature, particularly concerning sexual matters, would be inappropriate conduct for a taxi-driver. Such conduct would also more than likely breach the regulation specifically requiring taxi-drivers to behave with civility and propriety towards their passengers. If it is the case that Mr Harel did not or does not have that knowledge, the Tribunal considers that it is knowledge Mr Harel should have in order for an attestation to be properly made under s. 33(3) of the Act.

70 Mr Harel's evidence occasionally exhibited confusion over what was actually alleged against him, for example there was no allegation of touching in any of the complaints. In this way he sometimes failed to focus very well on what was in fact alleged. Despite his stating in his show cause letter that he would be more careful in future so as not to be misinterpreted, his subsequent vigorous and blanket denials of any wrongdoing on any occasion do not instil any confidence that he would in fact conduct himself in the future any differently than he has during the last few years.

71 Mr Harel's suggestions that he had been caught up in some sort of vendetta against certain industry drivers and that certain girls can be assertive and aggressive passengers and more likely to lodge complaints, do nothing to assist Mr Harel's defence to the complaints or his claim to fitness.

72 Mr. Harel sought also to rely on some evidence to show that he enjoys a good reputation. A person's reputation is best established by the evidence of others, and by inferences from positions s/he might hold in the community. To that end, Mr Harel produced two references specifically addressing his reputation and character, and a third reference which went to an evidentiary matter raised by Mr Harel. The reference evidence before the Tribunal was from two religious figures in Mr Harel's life. They each convey that he is an honest and religious man and active within his religious community. One indicates some knowledge of the allegations and suggests such would be out of character with the Mr Harel he knows. The 3rd reference appears to have been prepared by a former contract or business associate/employer of Mr Harel who had been provided (it appeared) with some but not all relevant complaint information. As evidence of Mr Harel's good character these three references are considered to serve a limited weight and they do not assist Mr Harel to a sufficient degree to counter the negative conclusions as to Mr Harel's fitness that follow below.

73 Considering specifically the object of the Act aimed at public passenger services meeting the reasonable expectations of the community for safe, reliable and efficient passenger transport services (s.4(e)), the findings made above as to the inappropriate nature of Mr Harel's conduct together with the resultant fear that it produced in a number of his passengers, mitigate strongly against an attestation in favour of Mr Harel's fitness.

74 Despite Mr Harel's declaration that he understands and will comply with relevant law, regulations, standards and the taxi industry code of conduct, the Tribunal is not convinced. It is the Tribunal's conclusion that there is sufficient evidence to establish that Mr Harel has not exhibited the requisite degree of (sufficient) responsibility on at least two occasions and more than likely on four other occasions. The Tribunal has not been persuaded that Mr Harel sufficiently understands the extent of his obligations under the law with respect to sexual harassment matters and this does not augur at all well as far as Mr Harel's possible future conduct as a taxi-driver is concerned. Accordingly the Tribunal concludes that it cannot make the attestation to the public as to Mr Harel's fitness or responsibility required by s. 33(3).

75 In the Tribunal's opinion the Director-General's decision to cancel Mr Harel's taxi-driver authority was correct.

76 It is regretted that these reasons have taken a lengthy period to prepare as is any inconvenience such may have caused the parties.

Decision

77 In accordance with section 63(3)(a) of the Tribunal Act the decision of the Director-General of the Department of Transport to cancel Mr Harel's taxi- cab driver authority is affirmed. It follows from this decision that the Tribunal's stay order automatically ceases operation.