Azar v Ministry of Transport [2004] NSWADT 249 (1 November 2004)

Last Updated: 1 November 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Azar v Ministry of Transport [2004] NSWADT 249


PARTIES: APPLICANT
Robert Azar
RESPONDENT
Director General, Ministry of Transport



FILE NUMBERS: 043160

HEARING DATES: 02/08/2004

SUBMISSIONS CLOSED: 03/08/2004



DECISION DATE: 01/11/2004

BEFORE: Montgomery S - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Passenger Transport Act 1990

CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354
Saadieh v Director-General, Department of Transport [1999] NSWADT 68

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

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
A Wozniak, solicitor

ORDERS: The decision of the Director-General, Ministry of Transport to cancel the Taxi driver authority held by Mr. Azar is affirmed.


Reasons for Decision:

Background

1 Mr. Azar held a Taxi Driver Authority ("the Authority") under the Passenger Transport Act 1990 ("the Act"). On 24 March 2004 the Ministry of Transport ("the Ministry") issued a Notice to Show Cause to Mr. Azar as to why the Authority should not be cancelled. A Statement of Reasons was provided setting out the basis for the Notice.

2 On 7 April 2004 Mr Azar’s solicitor wrote to the Ministry in response to the Notice to Show Cause. In his letter he wrote:

"Our client vigorously:

1. Denies any sexual harassment or innuendo of any passenger on 2 January 2004.

Our clients' licence was suspended on the 15 April 2003 and foolishly he did drive a Public Passenger vehicle conveying passengers before 15 July 2003 at a time when he was suffering from financial hardship and having marital problems at home. He is very sorry for this.

Our client has denied the complaints of sexual nature.

Our client has never been charged with any crime of a sexual nature and pleads his innocence.

Our client has no other means of earning an income other than driving a taxi and is paying off a housing loan secured on his property.

He has learnt from past mistakes and has not, and will not, put his earning capacity in jeopardy. Any suspension of his licence will mean that he loses his house.

No passenger on the 2 January 2004 made a complaint to him. Nor has he received a written complaint from a passenger. As a result of your previous letter to him he went to your office and personally answered the complaint in your letter, denying any wrong doing of a sexual nature.

We trust that you will not take away his means of a livelihood based on an unsubstantiated allegation.

Our client is now a mature 33 years of age Taxi Driver with commitments and promises he will not drive while under any suspension nor does he want to use to be or proposition passengers (sic)."

3 On 28 April 2004 Mr. Azar was notified of the Director-General’s decision to cancel the Accreditation. The decision was based on several grounds. These included an assertion that for a period of three month between 15 April 2003 and 15 July 2003 Mr. Azar drove a public passenger vehicle conveying passengers in NSW on twenty-two (22) separates days without an appropriate NSW driver's licence. During that period the Roads and Traffic Authority had suspended his Licence.

4 Mr. Azar appeared in Parramatta Local Court on 18 June 2004 at which time he pleaded guilty to twenty charges of driving without an authority. He was fined a total amount of $2,500 in relation to those charges.

5 The Director-General also cited a complaint history that extended over a long period, including allegations of harassment and innuendo, a poor traffic record and the fact that Mr. Azar’s authority had previously been suspended for a period of three months. There were two complaints of sexual harassment or innuendo, 5 other complaints received from passengers, a lengthy RTA traffic record and a failure to report his traffic offences.

6 The issue of the suspension of Mr. Azar’s authority was the subject of an application to this Tribunal. On 20 December 2001 Judicial Member Higgins affirmed the suspension and her decision is recorded as Azar -v- Director General, Department of Transport [2001] NSWADT 219.

Nature of proceedings

7 The issue for this Tribunal is: what is the correct and preferable decision? The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

8 These are not adversarial proceedings in which Mr. Azar carries an onus of proof. Mr. Azar, by making the application, triggers a process of merits review by the Tribunal. Mr. Azar does not take on the responsibility of having to prove a case, nor does he cause the Director General to have to prove a case. Mr. Azar and the Director General are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act").

9 Section 63(1) of the ADT Act provides:

"63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

10 The Tribunal makes its own decision in place of the Director General’s, and there is no presumption that the decision of the Director General is correct: (McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357).

11 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 at 357).

Applicable Legislation

12 The Act sets out the applicable law. Division 5 in Part 4 of the Act makes provision for authorisation to drive taxi-cabs. Section 33 of the Act provides:

"33 Authorities

(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".

(2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver.

Maximum penalty: 100 penalty units.

(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."

13 Section 33F of the Act states:

"33F Variation, suspension or cancellation of authority

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. "

Mr Azar’s case

14 Mr Azar appeared at the hearing and was subjected to cross-examination. His case is essentially as set out in the annexure to his application to the Tribunal. That annexure states:

"1. I deny the allegations as to sexual harassment or innuendo. I have always denied these allegation. I have never had the chance to cross- examine any of the passengers who have lodged a complaint.

2. During 2003 I had marital problems with my wife and I didn't receive any correspondence regarding my licence. I did not hand in my licence and I didn't receive any reminders or notice to do so. Accordingly I was not aware that my licence had been cancelled and I kept driving to earn an income to pay my mortgage loan. Otherwise I could have lost my home.

3. My wife left me on the 8th July 2003 and went overseas and ever since then I have been meeting the mortgage repayments. Driving a taxi has been my major source of earning a living and meeting my commitments. Accordingly I need my Drivers Authority.

4. I am not a person of bad character or bad reputation.

5. I will drive a taxi in accordance with the Law and Customs.

6. I will not endanger any passengers and will not put the public at risk.

7. I will respect the privacy of all passengers, meet the responsibility given to me and fulfil the expectations of the public."

15 Mr Azar denied that he was aware that his licence was suspended during the period between 15 April 2003 and 15 July 2003. He said that he did not receive notice of the suspension and that it is possible that his wife had received it but not passed the notice on to him. At the time he and his wife were not speaking to each other. In contrast to what is stated in the annexure to his application, Mr Azar also gave evidence that he was at home and not driving during that period and that someone else must have been using his PIN.

16 Several testimonials were put in evidence in support of Mr Azar. The testimonials assert that the author has found Mr Azar to be of high integrity and good repute, honest, hardworking, reliable and trustworthy with a professional courteous approach to his work.

17 A testimonial from George Khoury refers to the difficult financial and personal circumstances that Mr Azar had experienced prior to the events in issue. He stated that he considered Mr Azar to be an honourable, thoughtful and forgiving man and that his actions were completely out of character.

18 Albert Dona stated that he has known Mr Azar for over 20 years and was aware that Mr Azar’s personal life had "gone through a tough stage last year, with his marriage break-up and the implications that come with that". He stated that the circumstances surrounding Mr Azar are totally out of character.

19 Similar sentiments were expressed in relation to Mr Azar’s character by Father Alain Fares, a Maronite Catholic priest and General Secretary for the Maronite Diocese of Australia, and Youth Chaplain at Our Lady of Lebanon Church, Harris Park and by Rose Brillo of Yes Home Loans. Each of these testimonials supports the submission that Mr Azar presented in support of his own application that he is a person of good moral character and fit to possess a Taxi Driver Authority.

The Director General’s case

20 The Ministry’s file was put in evidence and the Director General relies on the material contained within that file. The Director General’s case is essentially that set out in the reasons provided for the decision that is under review. In particular the Director General points to:

(i) the fact that Mr Azar drove a public passenger vehicle conveying passengers in NSW on twenty-two separates days without an appropriate NSW driver's licence and his conviction for these offences;

(ii) a complaint from a female passenger who alleged sexual harassment or innuendo by a taxi driver on 2 February 2004 and that Mr Azar was identified as the driver who accepted and undertook the fare in question;.

(iii) the fact that on 23 February 2002 the Ministry suspended Mr Azar’s authority for a period of three months. The suspension was as a result of Mr Azar’s driving record and numerous complaints made against him as a taxi driver. The complaints included two separate complaints of sexual harassment or innuendo; and

(iv) Mr Azar’s poor RTA Traffic Record and Traffic Conviction History which indicates a series of cancellations and suspensions over a long period.

21 The reasoning processes that lead to the Director General’s decision to cancel Mr Azar’s authority is set out in the reasons for decision in the following terms:

"To be of "good repute and in all other aspects a fit and proper person" to drive a public passenger vehicle the community must have confidence that a driver would behave appropriately at all times. The fact that you continued to drive taxi cabs whilst not the holder of a current NSW drivers licence casts grave doubts about your fitness to hold a taxi cab drivers authority, and of your ability to carry out the duties and responsibilities of the position according law and custom.

The fact that complaints of alleged sexual nature have been lodged against you on three separate occasions may indicate that a reasonable female member of the public could feel that you are not a fit and proper person to be the driver of a taxi-cab.

The fact that three complaints have been made by three separate female passengers on separate dates. The complaints are similar and relate to Sexual Harassment or Innuendo and occurred while you were engaged in your occupation as a taxi driver, means that you breached a duty of trust and may do so again in the future if you were authorised.

The public is entitled to be treated with civility by taxi drivers and not be subjected to offensive conversation and conversation of a sexual nature. Community confidence in public transport demands that taxi drivers will behave in a fitting manner.

The Relationship between a taxi-cab driver and their passengers is an intimate one. Both driver and passenger are in a potentially vulnerable position. The public interests and expectations demand that all public passengers regardless of their disability, gender, or age can take comfort that their relationship of trust with their driver will not be abused. Given your complaint history and the seriousness of the complaint, I do not have confidence that you will be able to uphold the level of trust or that you posses the requisite character, reputation, responsibility and aptitude to meet the public's reasonable expectations of taxi-cab drivers.

The fact that you did not disclose to the Ministry of Transport that your NSW driver's licence was suspended for a period of three (3) months, nor did you notify the Ministry of the traffic infringements you received that lead to your suspension, means that you did not comply with the Passenger Transport Act 1990, Regulation 36(1)(b) The driver of a taxi-cab must, in accordance with this clause, furnish the Director-General with written detail of any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle.

Under the Taxi Driver Authorisation Standards, to continue to be authorised a driver must:

Maintain a satisfactory driving record based upon the number of demerit points accumulated during the past three years.

Drive in a safe and courteous manner and in compliance with traffic rules and regulations.

The fact your driving record relates to conduct contrary to the beforementioned standards cast grave doubts about your fitness to hold a public passenger vehicle drivers authority, and of your ability to carry out the duties and responsibilities of the position according to law and custom. This is further highlighted by the fact that you were aware that your NSW driver’s licence were suspended and you continued to drive taxis.

Your driving history shows that you have no intention of driving in accordance with law and custom and that if allowed to continue driving would put the safety of passengers and the public at risk.

Based on the above facts and law it can no longer be attested that you are considered to meet the required standards for authorisation as a taxicab driver"

22 In addition to the driving record referred to in the Director General’s reasons for decision Mr Wozniak also points to other driving offences that were not the subject of Local Court proceedings because the time for bringing the charges had expired. He submitted that Mr Azar was fortunate that the outcome was not more severe.

23 Mr Wozniak asserted that Mr Azar had conceded that he was aware that his licence was suspended during the period between 15 April 2003 and 15 July 2003 and had stated that he had driven his taxi because of his financial position and personal issues between himself and his wife. Mr Wozniak referred to notes contained in the Ministry file, which purport to be a record of interview conducted on 2 March 2004, and submitted that they record that concession. As indicated above, Mr Azar gave evidence before the Tribunal in which he denied receiving notice of his licence suspension.

24 Mr Wozniak also referred to material contained on the Ministry’s file, which is said to be a print out of dates on which it is alleged that Mr Azar pinned in and drove a taxi. A statement from a Taxi operator also on the Ministry’s file indicates that Mr Azar drove a taxi on several days between 15 April 2003 and 15 July 2003. The statement asserts that the operator had no other drivers during that period and that Mr Azar personally collected the vehicle during that period and paid the operator on a weekly basis. This contradicts Mr Azar’s statement that he was at home and not driving during that period and that someone else must have been using his PIN.

25 Mr Wozniak submitted that this is a case where a taxi driver has caused offence and distress to passengers by going too far. Mr Azar seeks to continue to hold his authority but he has already been suspended and sent for retraining. He has been given warnings and given the opportunity to change his ways but has still continued to behave in an inappropriate manner. He has simply not learned from his mistakes or from the opportunities he has been given.

26 Mr Wozniak further submitted that the fact that Mr Azar pleaded guilty to the charges of driving while suspended suggests that he was aware of the suspension yet chose to continue to drive during that period. This cast grave doubts about his fitness to hold a public passenger vehicle drivers authority. It can no longer be attested that Mr Azar is considered to meet the required standards for authorisation as a taxicab driver and therefore the appropriate order is that the Director General’s decision be affirmed.

Findings and reasons

27 In my view, this matter involves an individual who was suffering considerable financial and personal distress over a long period and allowed that to interfere with the way he carried out his duties as a taxi driver. The testimonials provided on his behalf suggest that this is out of character. However, I have no independent basis for believing that the situation has changed. A psychological report would have been of assistance in this regard.

28 It is clear that Mr Azar has a lengthy RTA traffic record and that he failed to report his traffic offences. On the evidence before me I think it is probable that Mr Azar was aware that his licence had been suspended during the period between 15 April 2003 and 15 July 2003. Nevertheless he drove a taxi during that period knowing he did not hold an appropriate driver's licence. Financial pressures no doubt motivated this behaviour.

29 It is common ground that Mr Azar was convicted of offences relating to his driving his taxi while suspended. These are serious offences. It is significant that these offences occurred while Mr Azar was carrying on the activity that is regulated by the Act, and for which his authority was issued. This cast grave doubts about his fitness to hold a public passenger vehicle drivers authority.

30 The issues of the complaints of alleged sexual harassment or innuendo and other complaints received from passengers pose more difficulties from an evidentiary point of view. Mr Azar conceded that he discussed his personal affairs with various passengers but denied the allegations. I did not have the benefit of hearing oral evidence from any of the complainants. While it is highly unlikely that three passengers would all have fabricated a story involving sexual impropriety or that there would be collusion between them, without more substantial evidence I am unable to make any finding on that issue.

31 An authority is issued pursuant to section 33 of the Act. Mr Azar should only hold an authority if he is considered to be of good repute and in all other respects fit and proper to be to be the driver of a taxi-cab. He must also be considered to have sufficient responsibility and aptitude to drive a taxi-cab in accordance with the applicable conditions, law and custom.

32 Whether a person is of good repute is an issue that is related to, but different from whether a person is fit and proper for a particular purpose. Mr Azar does not fail to be of good repute simply because of the Courts’ findings that he has committed offences. Repute is what other people think. A person’s reputation in fact and in law is to be found in the estimate of his character entertained by some specific group of people, such as those who live in his neighbourhood, those who work with him, or those who associate with him in his occupation or profession. Whether a person’s history is known in the community will be a factor in assessing what weight is to be given to the evidence of his reputation.

33 A positive estimation in spite of knowledge of an individual’s history would ordinarily weigh in favour of a person. Mr Azar relies on a number of references that are relevant to this issue. On the basis of the totality of those documents I am satisfied that Mr Azar is probably considered to be of good reputation. It is therefore necessary that I consider whether, in the light of his offences, and the responsibilities and expectations on an accredited person Mr Azar can nevertheless, in all other respects, be considered to be fit and proper to be the driver of a taxi-cab. And whether or not that is going to be the case is a value judgment that I have to make.

34 In the matter of Saadieh v Director-General, Department of Transport [1999] NSWADT 68 the Deputy President of this Tribunal considered a number of factors that are relevant and should be taken into account in determining whether a person is suitably fit to obtain a taxi-driver authority, and in this particular case I think they are relevant to Mr Azar’s authority. Those factors are the nature, seriousness, and frequency of any offences for which Mr Azar has been convicted; the nature, seriousness, and frequency of any complaints made against him; Mr Azar’s driving record; his reputation in the community; and the likelihood that Mr Azar will re-offend, be the subject of further complaints, or commit further offences.

35 I have taken into account all the evidence before me. The test that is usually applied in deciding whether or not a person is a fit and proper character to hold an authority is that the decision maker is to put themselves as far as possible in the position of a member of the public who might be travelling in a taxi driven by Mr Azar. The relevant question therefore is whether the travelling public, knowing of Mr Azar’s record, would object to him holding an authority.

36 The nature and seriousness of Mr Azar’s offences are beyond question. In my view the conduct that led to Mr Azar’s convictions demonstrated little regard for the law and demonstrates a lack of responsibility and honesty.

37 It is also my view that Mr Azar has not totally accepted responsibility for his actions and that it is too soon to yet be confident that he is unlikely to re-offend or be the subject of further complaints. Having weighed the evidence I am not satisfied that the travelling public can be comfortable with Mr Azar as the holder of a driver authority.

38 He may choose to undertake some form of counseling to assist him in dealing with the issues raised by this matter before reapplying for his authority. If he does so, that is a matter which the Director-General could take into account. For the moment however, I can not attest that Mr Azar is considered to meet the required standards for authorisation as a taxicab driver and therefore the appropriate order is that the Director General’s decision be affirmed.

ORDERS

The decision of the Director-General, Ministry of Transport to cancel the Taxi driver authority held by Mr. Azar is affirmed.