Ahmadi v Director General, Department of Transport [2002] NSWADT 8 (24 January 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Ahmadi -v- Director General, Department of Transport [2002] NSWADT 8

PARTIES: APPLICANT

Ali Ahmad

RESPONDENT

Director General, Department of Transport

FILE NUMBERS: 013180

HEARING DATES: 13/12/2001

SUBMISSIONS CLOSED: 13/12/2001

DECISION DATE: 24/01/2002

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Crimes Act 1914 (Cth)

Passenger Transport Act 1990

Passenger Transport Amendment Act 2000

CASES CITED: Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374

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

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

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

Taxi driver - cancellation of authority

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

P Far, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

A Wozniak, solicitor

ORDERS: The decision of the Director-General to cancel Mr Ahmadi's taxi authority is affirmed.

Reasons for Decision:

1 On 3 July 2001 the Director-General, Department of Transport (the Director-General) cancelled Mr Ahmadi's taxi driver's authority. The reason for the cancellation was that Mr Ahmadi had allegedly misused cabcharge dockets. Mr Ahmadi applied to the Tribunal for a review of that decision. On 25 July 2001, his application for a stay of the Director General's decision was refused.

Jurisdiction

2 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

3 Mr Ahmadi has held a taxi authority since 1998. Mr Ahmadi said that his colleague, Mr Eshaghi, asked him on two occasions whether he wanted to buy some cabcharge dockets. He refused both offers but on the third occasion Mr Eshaghi invited him to his house and Mr Ahmadi bought 25 cabcharge dockets from him for $25.00 each. The dockets were signed but none of the other details such as the journey or the amount were filled in. Mr Ahmadi filled in the dockets with his name, his taxi authority details, the journeys which he had supposedly made and the amounts. The amounts ranged in value from approximately $37.00 to $61.00.

4 After filling in the details, Mr Ahmadi gave Mr Eshaghi 18 of the dockets and took the other seven home with him. Mr Eshaghi submitted the dockets for payment but because the dockets were on a list of stolen dockets, he was not reimbursed when he presented them. When the Department of Transport investigators interviewed Mr Ahmadi, he gave them the other seven vouchers which had not been submitted for payment.

5 On 14 March 2001 Mr Ahmadi signed a statutory declaration admitting that he fraudulently misused credit dockets to the value of $1,260.00. On 29 May 2001 two departmental officers, S Ryan and A Flintham, interviewed Mr Ahmadi. At that interview, Mr Ahmadi admitted purchasing 25 cabcharge vouchers from Mr Ali Eshaghi. He also admitted that he did not carry out the trips recorded on those dockets. Mr Ahmadi said that Mr Eshaghi submitted the dockets for payment.

6 In response to a Notice to Show Cause why his authority should not be cancelled, Mr Ahmadi admitted his part in the fraudulent conduct. He also said that Mr Eshaghi's conduct was the prime cause of the current situation. Mr Ahmadi considers himself to be a victim of his own naivety. He says he was easily drawn into this unfortunate case.

7 Mr Ahmadi pleaded guilty to 18 counts of obtaining money by a false or misleading statement under s178BB of the Crimes Act 1900. He was convicted of these offences and placed on a recognisance of good behaviour for two years.

Issues and Legislation

8 Changes to the legislation. The Director General's statement of reasons dated 3 July 2001 set out the legislation in force at the time the decision was made. On 1 September 2001 the Passenger Transport Amendment Act 2000 (PT Amendment Act) amended the PT Act in relation to public passenger services carried on by means of taxi-cabs and private hire vehicles. The Explanatory Note indicates that the object was to amend the PT Act and provide a revised legislative basis for the taxi-cab and hire car industries, and to make various machinery amendments.

9 As the current legislative provisions are identical to the old provisions in relation to the test for cancelling a taxi authority it makes no difference whether the original or amended provisions apply. In general, when conducting a merits review of an administrative decision the relevant law is the law at the time the decision is being reviewed: Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374. Accordingly, I propose to apply the current legislative provisions to this application.

10 Section 33F of the PT Act provides that:

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.

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

(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.

12 The Tribunal must determine whether the Director-General made the correct and preferable decision in cancelling Mr Ahmadi's taxi authority: see s 63 Administrative Decisions Tribunal Act 1997 (ADT Act).

Reasons and decision

13 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.

14 The meaning of the terms "fit and proper person" and "good repute" have been considered in several cases decided by this Tribunal. The Tribunal has frequently quoted the following passage from Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11):

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)

15 The offences for which Mr Ahmadi was convicted relate directly to his activities as a taxi driver. Completing and submitting cab charge dockets is one of the activities which Mr Ahmadi would be engaged in as a taxi driver. The cabcharge system is one which allows ease of payment for taxi-cab passengers and companies whose employees use taxis. It is a system that should be used in good faith by both passengers and taxi-drivers. Mr Eshaghi has clearly behaved in bad faith by buying blank cabcharge vouchers, completing fictitious journey details and allowing them to be submitted for payment.

16 On the basis of all the evidence, the Director General made the correct decision in cancelling Mr Eshaghi's taxi authority because he could not attest that Mr Eshaghi is a fit and proper person to have such an authority.

17 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.

18 Mr Ahmadi has been convicted of 18 offences of obtaining money by a false or misleading statement under s178BB of the Crimes Act 1900. The court placed Mr Ahmadi on a Recognisance of Good behaviour for two years and ordered him to pay professional costs of $300.00.

19 Mr Ahmadi was also convicted of common assault in April 1998. He was found guilty, but no conviction was recorded. Mr Ahmadi entered into a bond to be of good behaviour for 2 years. There was no evidence of the circumstances of this assault and, by itself, it does not provide strong evidence of bad repute. However there is no doubt that the more recent convictions are serious matters and provide some evidence of a bad reputation.

20 To address this evidence, Mr Ahmadi submitted three references which addressed the issue of his reputation in the community. One reference was from a previous employer and two were from family friends. These referees attest to his good character and good standing in the community. The referees indicate that they are aware of the events surrounding the cancellation of Mr Ahmadi's taxi authority.

21 I am not satisfied, on the basis of all the evidence, that Mr Ahmadi is considered to be a person of bad repute. He has one minor conviction for common assault and one more serious conviction for fraud. Notwithstanding this conviction, he has submitted references which attest to his good repute which satisfy me on balance, that he is a person of good repute.

22 The Director General cancelled Mr Ahmadi's licence. No time limit was imposed on that cancellation. While I am satisfied that the Director General's decision to cancel the authority was the correct decision, several factors suggest that Mr Ahmadi may be able to convince the Director General that he is a fit and proper person to hold a taxi authority in the future. These factors are that:

he admitted his involvement with the fraudulent use of cab-charge dockets as soon as officers of the Department contacted him;

he has expressed remorse for his conduct and has promised not to repeat it;

he did not initiate the conduct;

although he was convicted of 18 offences, the convictions all arose from a single incident; and

he has only been convicted of one other minor offence, namely common assault for which a good behaviour bond was imposed under the then s 556A of the Crimes Act. 1900

Order

23 The decision of the Director-General of the Department of Transport to cancel Mr Ahmadi's taxi-cab authority is affirmed.