Kwai Hung Lo v Ministry of Transport [2003] NSWADT 276 (23 December 2003)

Last Updated: 12 January 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Kwai Hung Lo v Ministry of Transport [2003] NSWADT 276

PARTIES: APPLICANT

Kwai Hung Lo

RESPONDENT

Director General, Ministry of Transport

FILE NUMBERS: 033172

HEARING DATES: 08/08/03

SUBMISSIONS CLOSED: 08/08/2003

DECISION DATE: 23/12/2003

BEFORE: Montgomery S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Crimes (Sentencing Procedure) Act 1999

Passenger Transport Act 1990

CASES CITED: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Lo v Director General, Department of Transport [2002] NSWADT 101

Maythisathit v Registrar of Motor Vehicles (1996) ACT 165

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

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

APPLICATION: Bus driver - cancellation of authority

Passenger Transport Act - bus 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 Ministry of Transport dated 25 June 2003 to cancel Mr Lo's public passenger vehicle driver authority is affirmed

Reasons for Decision:

Background

1 By letter dated 25 June 2003 Mr. Kwai Hung Lo was notified of the decision by a delegate of the Director-General of the Ministry of Transport ("the Director-General") to cancel Mr. Lo's Driver Authority Number FN7870, effective from Thursday, 26 June 2003. The reasons for this decision were set out in the statement of reasons attached to the Notice.

2 The delegate's reasons stated:

"Facts, Evidence and Material

The Director-General relies on the following facts, evidence and material to cancel driver authority number FN7870 held by Mr Kwai Hung Lo.

You were detected driving a public passenger vehicle (bus) on 5 June 2003 whilst your drivers authority FN7870 was suspended.

You were convicted of malicious damage on the 19 February 2003.

You are under a Bond to comply with Conditions under Section 10(1) of the Crimes (Sentencing Procedures) Act 1999.

Unsatisfactory driving record, six (6) driving offences within the last five (5) years (attached).

Evidence of the above facts is in the form of:

Authority files.

Roads & Traffic Authority Records

Applicable Law

Section 11 of the Passenger Transport Act 1990

"11. (1) A person who drives a public passenger vehicle is guilty of an offence unless the person is the holder of an appropriate authority under this Division. Maximum penalty: 100 penalty units.

(2) The purpose of an authority under this Division is to attest:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

(i) in accordance with the conditions under which a public passenger service is operated; and

(ii) in accordance with law and custom.

(3) The regulations may create categories or grades of authority."

Section 14 of the Passenger Transport Act 1990

Variation, suspension or cancellation of authority

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

The Reasoning Process that led to the decision

The Authority has a continuing obligation under the Passenger Transport Act to ensure that the only fit and proper to be responsible for the operation of a public passenger service are to be the driver of a public passenger vehicle.

It is the opinion of the delegate, in accordance with Section 7(2) of the Act, that on the basis of the factual material gives rise to a presumption that Mr Kwai Hung Lo can not attest to be considered to be of good repute and in all other respects fit and proper to be a driver of a public passenger vehicle.

In addition, Mr Lo has not demonstrated the capacity 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.

Statement of material facts

I am not satisfied that you have sufficient responsibility and aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger vehicle is operated, or in accordance with law and custom.

Taking into account the matters detected on the 5 June 2003, I cannot attest that you can satisfy the requirements contained in Section 11(2) of the Passenger Transport Act 1990.

Having regard to all matter raised and considering the interest and safety of the travelling public and the general public,. I am of the opinion that you are not a fit person to be the driver of a public passenger vehicle. Therefore, you do not meet the required standards for authorisation as the driver of a public passenger vehicle.

Accordingly, the determination has been made to cancel your public passenger driver authority."

3 Mr Lo held Driver Authority Number FN7870 under the Passenger Transport Act 1990 from 30 April 2001. This Driver Authority permitted Mr Lo to drive a taxicab and Long Distance/Tourist/Charter Buses.

4 A delegate of the Director-General issued a Notice of Suspension dated 24 April 2002 suspending Mr Lo's driver authority FN7870. Mr Lo sought a review of the suspension of his authority and this matter came before a differently constituted Tribunal on 30 May 2002. The Director-General's decision was affirmed. That decision is Lo -v- Director General, Department of Transport [2002] NSWADT 101. An appeal from that decision was dismissed.

5 Mr Lo holds a single authority FN7870. The Notice of Suspension referred to "Taxi-cab drivers authority FN7870". However, authority FN7870 in fact permitted Mr Lo to drive both taxicabs and Buses. Consequently, the suspension of Driver Authority FN7870 precluded Mr Lo from driving either form of public passenger vehicle.

6 The reference in the reasons for cancellation to Mr Lo being "detected driving a public passenger vehicle (bus) on 5 June 2003 whilst your drivers authority FN7870 was suspended" is a reference to driving whilst under the suspension previously affirmed by the Tribunal. At the time of that decision charges of malicious damage were pending against Mr Lo. Mr Lo was convicted of those charges on 19 February 2003. Mr Lo is under a Bond to comply with Conditions under Section 10(1) of the Crimes (Sentencing Procedures) Act 1999. That bond expires in February 2004.

7 In this case, in addition to the criminal charges of malicious damage, Mr Lo also has a criminal record, which also involves an act of violence. Mr Lo was convicted on 14 September 1995 for "assault police" and "resist arrest". While the Director General granted Mr Lo his authority notwithstanding this previous conviction, it is a matter that can be taken into account for the purposes of this application.

The Director General's Case

8 The Director General relied on the record of Mr Lo's convictions. The most recent conduct involved an incident at Rosebery on 27 March 2002. Mr Lo was convicted of maliciously damaging both rear view mirrors and the windscreen of the taxi of another taxi driver.

9 Mr Lo was driving a taxicab at the Sydney domestic airport when he became involved in a dispute with the driver of another taxicab. It was alleged that the dispute arose as a result of Mr Lo jumping the queue of the major taxi feeder at the domestic airport. It is alleged that he jumped in front of seven cars that were standing in the feeder at that time. The complainant was the third car in that queue.

10 The complainant and Mr Lo became involved in a heated conversation after which the complainant drove to Mascot Police Station to lodge a complaint against Mr Lo. Mr Lo subsequently also went to the Mascot Police Station where he smashed the front windscreen and side mirrors of the complainant's taxi. Charges of assault against Mr Lo were dismissed but he was convicted of the charges relating to the damage to the complainant's taxi.

11 The Director General also relies on Mr Lo's criminal history, which shows convictions on 14 September 1995 by the Local Court of NSW for offences of assault police and resisting police. There were a total of 4 charges for which Mr Lo was fined $250 on each charge.

12 Mr Wozniak for the Director General, submitted that the Tribunal must examine the seriousness of the alleged conduct, the circumstances in which the conduct took place and any other relevant circumstance. In this case, Mr Wozniak submitted that Mr Lo's convictions are serious, involving acts of violence and are of particular seriousness as they occurred in the course of Mr Lo driving his taxi. Taxi driver disputes occur daily however they do not usually involve smashing of windscreens. In addition to the current allegations there were previous criminal convictions for acts of violence.

13 This situation is compounded by the fact that Mr Lo has continued to drive despite the suspension of his driver authority.

14 The Tribunal's role is not to give Mr Lo a chance. Tribunal is to decide if Mr Lo is of good repute and a fit and proper person to hold the authority. There is evidence that Mr Lo is not a fit and proper person or of good repute. It was on these grounds that Mr Wozniak argued that the Director General's decision was the correct and preferable decision.

Mr Lo's Case

15 Mr Lo claims that he was the victim of the 27 March 2002 incident and that the charges should have been brought against the complainant. Mr Lo did not present evidence at the hearing but relied on documents presented in the earlier hearing.

16 Mr Lo argued that the Director General has overstepped the mark. Irrespective of what he has done, he should have the opportunity to make amends. Anyone is liable to make mistakes. Mr Lo said that the original matter was a dispute between two taxi drivers. He never showed any disrespect for clients in the taxi or in business. He argued that to justify cancellation of a driver authority there must be evidence of him doing wrong to passengers.

17 For the purpose of this application Mr Lo relied on an unsworn statement made by Mr Lo, a statement by Mr Abdul Hossain, and a testimonial from Mr John Koolman, Operations Manager with KST Airporter. Mr. Koolman indicated that Mr Lo has driven for Mr. Koolman's company over the past 3 years. He stated that Mr. Lo ceased driving because the Department of Transport removed his authority while he was driving a bus full of passengers at Sydney Airport. He stated that Mr. Lo accepted his fate gracefully and even returned the empty bus to our base before going home.

18 Mr. Koolman indicated that the company did not receive any bad reports about Mr. Lo from customers or hotels; that Mr. Lo knows the tourism business well; and that he would be happy to have Mr. Lo back with the company if his authority is returned.

19 Mr Lo claims that he has always treated customers with magnanimity. He has been in Australia more than 10 years and during that time he has assisted a lot of people and has never asked for a reward. He has assisted persons with vehicles that required repairs and didn't ask for reward. He said that he is not a bad person. He wants the opportunity to demonstrate his true self, not how the Director General has painted him. He is only looking for a second chance. He said that he does not know why the Director General will not give him a second chance.

20 Mr Lo said that there were a lot of doubtful points in the local court matters. He said that the complainant had 30 years driving experience, he weighed 85 kg and that he is twice the size of Mr Lo. He said that the complainant assaulted him. Mr Lo said that there was no way to complain. Four to five hours later the complainant's car was damaged and he blamed Mr Lo. Even at the airport police didn't come to Mr Lo's aid. The next day the police charged him not the complainant.

21 Mr Lo argued that cancellation should be considered in the light of the seriousness of the offence. He submitted that there are lots of more serious cases where a person is given a second chance. He said that he had been suspended as punishment and that he has learnt his lesson, whether he was right or wrong. He sat the test for his taxi authority nine times, even though he was advised to give up after five times, because he felt the licence would assist him with earning a good living here. He said that it is not easy for him to get a job.

Findings

22 The Tribuna1's jurisdiction derives from section 52(1) of the Passenger Transport Act 1990 ("the Act") and section 38 of the Administrative Decisions Tribunal Act 1997. Section 14 of the Act provides:

"Variation, suspension or cancellation of authority

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

23 Section 11(2) of the Act provides:

11 Authorities

...

(2) The purpose of an authority under this Division is to attest:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

(i) in accordance with the conditions under which a public passenger service is operated, and

(ii) in accordance with law and custom."

24 An administrator, in this case the Director General's delegate, has a wide discretion to cancel an authority but the decision must be made in the context of the responsibilities and community expectations of drivers. The Director-General's delegate formed the view that Mr. Lo is not of good repute and in all other respects a fit and proper person to drive a public passenger vehicle. The decision under review was based on that view.

25 The issue in this case is whether, in the light of Mr Lo's convictions and the responsibilities and expectations of an authorised driver, Mr Lo is nevertheless a "of good repute and in all other respects a fit and proper person to drive a public passenger vehicle". Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63] said that:

"The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."

26 The Tribunal must decide whether the Director General's delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law. In determining an application the Tribunal may affirm, vary or set aside the decision (section 63 Administrative Decisions Tribunal Act 1997).

27 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues:

Mr. Lo's record of convictions and his admissions in relation to the convictions;

the documentary evidence before the Tribunal;

Mr. Lo's written and oral submissions;

Mr. Wozniak's submissions; and

the testimonials provided on Mr. Lo's behalf.

28 Pursuant to section 11(2) of the Act, an authority would attest that Mr. Lo is to be considered:

to be of good repute (section 11(2)(a))

to be in all other respects a fit and proper person to be the driver of a public passenger vehicle (section 11(2)(a)),

to have sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (section 11(2)(b)(i)),

to have sufficient responsibility to drive a public passenger vehicle in accordance with law and custom (section 11(2)(b)(ii)),

to have sufficient aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (section 11(2)(b)(i)), and

to have sufficient aptitude to drive a public passenger vehicle in accordance with law and custom (section 11(2)(b)(ii)).

29 If an applicant for an authority is of good repute then it must also be found that "in all other respects", that is, in all respects other than their reputation, the applicant is a fit and proper person to be the driver of a public passenger vehicle before an authority is issued. Whether a person is of good repute is an issue related to but different from whether a person is fit and proper for a particular purpose. Being considered to be of good repute is a threshold status in section 11(2). If a person is not of good repute there is no need to consider whether they are a fit and proper person to be the driver of a public passenger vehicle.

30 Mr. Lo does not fail to be of good repute simply because of convictions. In Saadieh v Director-General, Department of Transport [1999] NSWADT 68 the Deputy President of this Tribunal made clear at paragraphs 14 and 15 that an assessment of repute is a matter for the Tribunal, weighing all the evidence. All the circumstances of the case must be taken into account in assessing a person's suitability to retain an authority.

31 Repute is what others think. 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: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at page 393.

32 Whether a person's history is known in the community will be a factor in assessing what weight to give to the evidence of repute. A positive estimation in spite of knowledge of a blemished history would ordinarily weigh in favour of the person.

33 The Department has identified convictions and Mr. Lo must show that in spite of that history he enjoys a good reputation. Mr. Lo gave some evidence as to his reputation however his reputation is best established by evidence of others, and by inferences from positions he might hold in the community. To that end, he has produced testimonials that attest to his reputation and character.

34 A witness's opinion of Mr. Lo may be accepted as evidence of his repute, although the weight to be given to that evidence will depend on the circumstances in which the witness formed the opinion. Mr Lo's testimonials do not make reference to the author's knowledge of any of the circumstances that have lead to the decision to cancel Mr. Lo's authority. They cannot therefore be seen as positive estimations in spite of knowledge of Mr. Lo's blemished history. It follows that the weight to be given to those testimonials in assessing Mr. Lo's reputation must be less than it would be if the witness's knowledge of the relevant circumstances were clear.

35 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, the Tribunal's Deputy President set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors were:

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.

36 The Deputy President also noted in that case that 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.

37 The nature, seriousness and frequency of Mr. Lo's offences are beyond question. However, a significant amount of time has passed since the earlier convictions on 14 September 1995. There is also a reasonable amount of time that has passed since the events of 27 March 2002 that lead to the malicious damage conviction. Nevertheless, I note that Mr. Lo's bond has not yet expired. Applying the Saadieh test to Mr Lo's situation, it is my view that it is too soon to yet be confident that Mr. Lo is unlikely to re-offend or be the subject of further complaints.

38 Various Tribunal decisions have applied the test in respect of a person being of fit and proper character to hold a driver's authority defined and applied by the President of the ACT Administrative Appeals Tribunal in the matter of Maythisathit v Registrar of Motor Vehicles (1996) ACT 165. In that particular case, the test was stated to be:

"One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi".

39 In the present circumstances that test can appropriately be applied with the relevant member of the public travelling in the passenger vehicle driven by Mr. Lo. The relevant question is therefore whether the travelling public, knowing of Mr. Lo's record, would object to Mr. Lo as the driver of the bus?

40 Having weighed the evidence, I am not satisfied that sufficient time has passed for the travelling public to be comfortable with Mr. Lo as the driver of their public passenger vehicle. Accordingly, I am satisfied that the Director General's decision is the correct and preferable one.

ORDERS

1. The decision of the Director General of the Ministry of Transport dated 25 June 2003 to cancel Mr Lo's public passenger vehicle driver authority is affirmed.