Allen v Ministry of Transport [2004] NSWADT 69 (13 April 2004)

Last Updated: 16 April 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Allen -v- Ministry of Transport [2004] NSWADT 69


PARTIES: APPLICANT
David John Allen
RESPONDENT
Ministry of Transport



FILE NUMBERS: 033332

HEARING DATES: 12/02/2004

SUBMISSIONS CLOSED: 12/02/2004



DECISION DATE: 13/04/2004

BEFORE: Molony P - Judicial Member





LEGISLATION CITED: Passenger Transport (Private Hire Vehicle Services) Regulation 2001
Passenger Transport (Taxi-Cab Services) Regulation 2001
Passenger Transport Act 1990

CASES CITED: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Farquharson -v- Director General, Department of Transport [1999] NSWADT 53
Re T and Director of Youth & Community Services [1980] 1 NSWLR 392
Maythisathit and Registrar of Motor Vehicles [1996] ACT 165
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Lo v Director General Department of Transport [2002] NSWADTAP 39

APPLICATION: Passenger Transport Act - private hire vehicle operator - cancellation of accreditation
Passenger Transport Act - taxi driver - cancellation of authority
Private hire vehicle 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: That the decision of the Administrator made on 6 November 2003 to cancel Mr Allen’s authorities be set aside.


Reasons for Decision:

Introduction

1 Mr Allen obtained authorities to drive taxi-cabs and private hire vehicles in June 1999. He has been driving his own taxi in Tamworth since then as a member of the local authorised taxi network, Tamworth Radio Cabs.

2 With respect to both of Mr Allen’s authorities the Passenger Transport Act 1990 (the PT Act) contains provisions governing the purposes of, the mechanisms for granting, and the power of the Administrator to cancel or suspend that authority or accreditation. With respect to the authority to drive a taxi cab s.33 sets out the purpose of the authority, while s.33F gives the Administrator power to cancel or suspend that authority. Sections 40 and 40E contain similar provisions with respect to the private hire vehicle authority. The Regulations contain provision requiring the holder of an authority to notify the Administrator within 7 days of being charged with an offence.

3 Both authorities share the purpose of attesting that the person is, "considered to be of good repute and in all other respects fit and proper" for their role. The Administrator is empowered by the relevant provisions of the Act to, at any time, cancel or suspend an accreditation or authority having, "regard to the purpose of accreditation".

4 On 1 October 2003 Mr Allen was pleaded guilty in the Tamworth Local Court to one count of common assault and was placed on a good behaviour bond for 12 months. The assault was on another taxi-driver at a taxi rank in Tamworth.

5 On 20 October 2003 the Director General of the Ministry of Transport (the Administrator) issued a show cause notice to Mr Allen calling on him to show why his driver authorities should not be cancelled. Mr Allen replied by a letter from his then Solicitors, Rice Moore & Gibson, dated 3 November 2003.

6 On 6 November 2003 the Administrator determined to cancel Mr Allen’s driver authorities. In the reasons for decision the Administrator set out the following reasoning process:

The fact that the offence of Assault of which you were convicted occurred whilst you were engaged in your employment as the driver of a taxi-cab means that future passengers may find it unacceptable to be carried in a taxi-cab driven by a person found to have behaved in such a manner;

The fact that you have been placed on a bond to be of good behaviour for a period of 12 months indicates that you may not have sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom;

The fact that you have been convicted of a number of criminal offences and have not notified the Ministry in writing of those convictions, as is required by law, indicates that you may not have sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom.

7 On 10 November 2003 Mr Allen sought an internal review of that decision and made written submissions in support of his case. On internal review the decision was confirmed.

8 On 17 November 2003 Mr Allen lodged an application with the Tribunal to review the decision to cancel his authorities to drive taxi-cabs and private hire vehicles. He also sought a stay of the decision pending the determination of his application to the Tribunal. On 24 November 2003 the Tribunal stayed the operation of the Administrator’s decision pending the outcome of Mr Allen’s application for review.

Jurisdiction

9 The Tribunals jurisdiction to hear and determine this application for review is found in section 52 of the Passenger Transport Act 1990 and section 38 of the Administrative Decisions Tribunal Act 1997.

The Assault

10 The fact sheet tendered to the Local Court at Tamworth when Mr Allen pleaded guilty to the assault said:

The defendant and the victim drive taxi cabs in the City of Tamworth,

On the 19th of February 2003, the victim using the taxi radio cab frequency made a reference to the defendant being a cheat this broadcast could be beard by other taxi cab drivers and the taxi base.

At about 4.10pm on the 19th of February, 2003 the defendant parked his taxi cab behind the victims taxi cab, the defendant alighted from his taxi cab and approached the victim who at this time was standing next to his taxi cab.

The victim attempted to get back into his vehicle but was unable to do so before the defendant reached him, the defendant verbally admonished the victim for calling him a cheat and then has punched the victim in the face, the defendant then punched the victim on the nose, and then several more times to the head.

The defendant then pinned the victim down on the seat using his body weight and continued to punch the victim; this assault did not cease until the defendant was spoken to by other taxi drivers.

The victim reported the incident to police immediately and then sought medical assistance for his injuries, at about 6.20pm the victim attended the Tamworth Police Station and made a statement in relation to this matter.

At about 8.30pm the defendant was spoken to at his residence, he was fully cooperative with police, the defendant was placed under arrest and conveyed to Tamworth Police Station, the defendant declined to be interviewed but did make admissions In being involved In a "fracas" with the victim.

The defendant was then processed with the matters now before the court.

Mr Wozniack tendered photos of the victim taken after the assault.

11 Mr Allen in his evidence to the Tribunal did not seek to dispute the facts of what had happened. He did seek to explain the background leading up to the assault and his efforts to make sure that he will not act in a similar way again.

12 Mr Allen is aboriginal. In his own words, "I am not obviously aboriginal". He explained that he has a background of long involvement in the aboriginal rights movement going back over many years. He is always involved in current issues of import to the aboriginal community. He described himself as not being a person who shies away from saying what he thinks needs to be said. He explained that given his appearance, he had found himself in the position of having to voice his thoughts and beliefs in respect of the treatment of aboriginal persons, more frequently than would have been the case if he were obviously aboriginal. He commented that his habit of saying what he thinks has got him into trouble in the past, but he still does not shy away from saying what he thinks. Indeed he impressed as a forthright individual, with a knock about style.

13 Mr Allen said that the assault was an expression of his anger and frustration, and the culmination of what he described as four years of racial vilification and intimidation of him by directors of Tamworth Radio Cabs and other taxi drivers in Tamworth. Four years in which he has fought back against that treatment, and stood up for himself against what he considers to be oppressive conduct directed at him by the taxi network, and racially motivated smears on his character.

14 In his written response to the show cause notice Mr Allen claimed that:

a) the network countenanced the person from whom he purchased his cab recommencing work as a driver with another taxi-owner in Tamworth within weeks of the sale, in breach of the terms of the sale agreement;

b) the network had been delaying the payment of his monthly documents by period of five and more months (resulting in complaints by him to the Department of Fair Trading) and putting his business under immense financial strain;

c) the network changes its rostering system without consultation with owners (the legality of which he has sought advice in writing about from the Administrator);

d) the allocation of work by the network favour some owners and drivers over others; and

e) complaints to the network about how it is run have resulted in him being told that, "...if I was not happy with the way they did things then I should get out."

15 In that response Mr Allen wrote:

...

I trained my two brothers as drivers for my taxi over a 12 month period thus reducing, my reliance on other drivers to cover shifts. During this period the relationship between myself and the other Co-op members and some of the drivers consequently became strained. I have had numerous confrontations with owners and drivers. These consisted of verbal abuse, intimidation, standover tactics and threats to cause physical harm against me none of these involved any violence from me. There was constant racial abuse directed towards at me and my brothers, all of which we ignored.

I had also become aware of a rumour that had been spread around the Tamworth community about my overcharging clients and as a direct result of this a number of people have declined to utilize (T8) my cab. These rumours were unfounded although I was never given the opportunity to defend myself against this allegation.

Other allegations and innuendo had resulted in the board requesting me to appear before them to respond to a complaint. I attended the meeting and requested both verbally and in a letter to the secretary of the Co-op for a copy of the complaint to be provided so I could read it and provide the necessary response. The secretary informed me that nothing had been put in writing and he was acting on a telephone conversation only. I refused to be questioned by the board and firmly stated that if they have any complaint concerning my conduct as a driver they would be required to provide me with a copy of the complaint. This never occurred and from that point the relationship between myself and the board and other Co-op members deteriorated even further.

I have written to a number of government agencies about various matters that I thought needed independent consideration, I have attached copies of some of the formal correspondence to those agencies. As a consequence I was further isolated on the rank and the victimization and the intimidation tactics increased it seemed to be a tag team approach.

I have operated my taxi since 3rd March 2000 and during this time I have been subjected to numerous attacks on my character, verbal and physical intimidation, and racial abuse and victimized by both owners and drivers. This has been witnessed by other owners (see attached letter from Carinya Valley Trust).

I applied for an Apprehended Violence Order to be issued against the Secretary of the Co-op on the 5th March 2003. Mr. O'Sullivan was required to enter into a verbal undertaking not to assault, molest, harass or interfere with me (see attached).

I firmly believe that I have been treated unfairly by other owners and drivers from the outset and that this is racially based. An example of this is the fact that recently I trained another driver who is not Aboriginal. Prior to this driver completing his required time with me as his trainer and sponsor as outlined in the rules of the Co-op he was co-opted to work for a board member which resulted in leaving me short and unable to cover certain shifts. This driver has been working for numerous owners none of them ever requesting my consent as is required (Rule 4.5 Tamworth Radio Cabs Co-Operative Rule Book).

I have tolerated and cope with a constant barrage of insults, taunts and racial vilification until recently. Unfortunately, 1 reacted to insulting verbal comments by a driver who called me a cheat over the two way radio system for the rest of the taxi fleet and their customers to hear. As a result of my actions I was charged and convicted of common assault. I am very disappointed with myself and the course of action that I took. It was not appropriate and can not be condoned. I acknowledge the courts decision and have accepted the conviction.

I firmly believe that 1 am a person of good repute and that I am in all other respects a fit and proper person to be the driver of a taxicab. I provide copies of character references for your consideration. It has been 10 months since the assault occurred and to my knowledge no other complaints have occurred.

16 The letter from the Carinya Valley Trust referred to in that correspondence is dated 4 November 2003 and signed by Jan Whitebread. It says:

It is appalling to witness the treatment of David Allen by some Owners and Members of the Board of Tamworth Radio Cabs Co-operative since purchasing his taxi

As a current owner and previous Board Member I was present at a Board meeting where David was treated with intimidating contempt because he dared to challenge their policies and practices where he considered the Co-operative's Rules and By-Laws discriminated against our Members and were being enforced by the Board contrary to State Government Acts & Laws.

The impact of having his licence suspended would result in the ruination of David's business This has been a case of victimization and racial vilification, he has withstood serious provocation since purchasing his taxi plate because he dared to investigate and disagree with their questionable practices!!. We have owned and operated cabs in other Co-operatives over a period of 16 years and the writer speaks from personal experience since purchasing a taxi plate in Tamworth. Whilst I do not condone David's action in these instances of provocation his intolerance is understandable.

It is amazing that in this day and age that bullying, intimidation, and tyranny metres out to [sic] such injustice.

17 Mr Allen told the Tribunal that all he wanted was to be treated fairly by the network and left alone to get on with his business. While this did not happen he would continue to stand up for himself. He said that he had made a complaint about the network’s rules to the Australian Competition and Consumer Commission, which resulted in the ACCC making recommendations for change, and the network being left with an unwanted legal bill. In addition, he said, he was "copping the blame" for the network being required to comply with Workcover requirements. He said, "I am the flogging post".

18 I asked Mr Allen to explain to me the circumstances of the assault. He said that the base operator had put out a call for a job. He had responded, but his call was not accepted, and the work was allocated to another taxi. He said, over the network, "Your quick tonight base". Another driver then commented back over the radio network words to the effect that, "If you had been quicker, you wouldn’t be complaining". Mr Allen then responded (again over the radio network), "At least that’s what your wife says". The other driver then replied, "At least I am not a cheat". That ended the exchange.

19 Mr Allen said that an hour later he found himself on the same taxi-rank as the other driver. He walked up to the other driver, who was heading back towards his car and demanded why he had called him a cheat. The other driver said, "You are always ripping jobs of me". Mr Allen said, "I don’t work at night". Mr Allen said that they began chesting each other. He said, "We then punched each other". Other drivers broke up the fight.

20 Mr Allen’s version of the verbal exchange which occurred over the radio network is consistent with that in the written complaint by the driver he assaulted. In his written complaint, the driver explained his statement that Mr Allen was a cheat:

I felt that it was common knowledge among the drivers and operators that David Allen is perceived to be a cheat and therefore I did not feel that I had said anything wrong. My remark was made without any prejudice, racial or otherwise - I would have made the same remark to any other driver or operator that is perceived to be a cheat (that is, who takes fares that he/she was not allocated, or lies about their position in bidding for a job).

Their accounts differ about the assault itself. The driver says Mr Allen hit him from behind. Both Mr Allen’s account of the assault and the police statement of facts say the initial blow was front-on.

Mr Allen’s Actions Since the Assault

21 In his evidence to the Tribunal Mr Allen acknowledged that the treatment he received from the network and other drivers did not justify the assault. He accepted that it was wrong. He said that he had taken steps to make sure it did not happen again. There were:

a) he has reduced the time he spends driving his taxi, to reduce the stress he is under. In the past he had been working 6 days a week. He now puts a driver on every Wednesday and has every second Friday off.

b) he has arranged and is attending anger management counselling through Anglicare. He has now been to four or five and realises that there is more work to do. A letter from Judy James, Senior Counsellor with Anglicare verified this.

c) he has taken the attitude that he will walk away from issues, rather than react to them. He feels much better able to do so.

22 Mr Allen said that in the time since he had been placed on the bond he had been taunted and provoked by other keen to see him breach his bond. He had managed to control his reactions.

23 In support of his general good character and to show his contributions to the community, Mr Allen produced a number of documents relating to his appointment to and service as a member of the Namoi Catchment Management Board.

24 Under cross-examination Mr Allen was asked about an incident which occurred on 18 January 2004, when Mr Allen exchanged words with another driver. The Secretary of Tamworth Radio Cabs had brought this incident to the attention of the Administrator in a letter dated 4 February 2004. Relevantly, the Secretary wrote:

...

Also enclosed is a tape recording of a recent incident which occurred on 18/1/04 in which a job allocated to another driver was taken by Mr. Allen. When confronted by the driver allocated the job from across the other side of the street (not over radio and not on tape), Mr. Allen demonstrated his lack of anger management over the radio by inviting the driver to come across the road and say what ever he said to say it to his face and called him a "fat little worm" on a number of occasions. Whilst the words themselves are not all that offensive, the manner and tone in which the words were used, indicate extreme anger and intimidation.

...

We do not expect any action in regard to these incidents and submit same for the records.

25 Mr Allen said that this occurred during the Tamworth Music Festival. Traffic was very heavy. He was dropping a passenger at a venue, when people waiting for a taxi had jumped into his cab, without inquiring whether his was their allocated taxi. The taxi that had been allocated to pick them up was in heavy traffic on the other side of the road. The driver said over the radio network that Mr Allen was pinching his fare. Mr Allen said he replied by calling the driver a fat little worm.

Failing to Disclose Convictions

26 When Mr Allen originally applied for his authorities he did not disclose that he had been convicted and fined in the Tamworth Local Court on 8 September 1999 for possessing a prohibited drug (cannabis seeds) and self-administering cannabis. When asked to explain this, during cross-examination, he said that the convictions were more than 10 years old, and that the question on the application from required him to disclose convictions within the last 10 years. In fact, he filed the application on 25 May 1999, at which time the offences were nine years and eight months old, and therefore should have been disclosed. It should be noted that the Administrator’s file shows that a criminal records check was conducted when the application was filed, and that the Administrator was aware of the convictions (and their non-disclosure) when the original authorities were issues.

27 On 1 September 2001 Mr Allen was convicted in the Tamworth Local Court of resisting or hindering a police officer in the execution of his duty. He was fined $80.00. The fact sheet tendered to the Court reveals that the incident concerned happened in a hotel where Mr Allen and his brother were drinking, and when they were affected by alcohol. Mr Allen’s brother was asked to leave but refused to do so. Police attended and Mr Allen’s brother was asked again asked to leave. He agreed to do so, when Mr Allen grabbed his arm and said he wasn’t going anywhere, and that he hadn’t done anything wrong. Mr Allen told police they were not taking him anywhere. Police then arrested Mr Allen. There was no suggestion that Mr Allen otherwise resisted or hindered police.

28 In cross-examination, Mr Wozniack asked Mr Allen why he had not notified the Administrator of this conviction. He said that he had told a Ministry Officer verbally. He also believed he had written to the Administrator advising of the conviction in writing. He could not provide a copy of that correspondence. There is no record of any such written or verbal advice of the Administrator’s file. Mr Allen did produce a letter he had written to the Department of Education dated 17 July 2002 advising of the conviction and indicated that he believed he had notified the Administrator at the same time.

29 Mr Wozniack also asked Mr Allen about his failure to notify the Administrator of being charged with the assault offence. He was firm in his evidence that he had done so. He also pointed out that the Administrator was well aware of those events.

30 In response to a question as how passenger would feel knowing they were being driven by a driver with his criminal record, Mr Allen said that most people in Tamworth know about it. He said that there are two people who will not drive with him, both related to the driver he assaulted.

Submissions

31 Mr Wozniack for the Administrator submitted that Mr Allen has a problem with anger, and that until he has fully dealt with the problem, he should not be regarded as a fit and proper person to hold driver authorities. He submitted that the events of 18 January 2004 showed that Mr Allen had not dealt with the problem adequately and was not a fit and proper person to hold his authorities. Mr Wozniack relied on the decision of the Appeal Panel in Lo v Director General Department of Transport [2002] NSWADTAP 39.

32 Mr Wozniack asked me to conclude that Mr Allen had not told anyone about his convictions for resisting and hindering police, and assault. While acknowledging that this was a side issue, he submitted the failure was a breach of Mr Allen’s obligation to notify the Administrator of charges and convictions, and went to show that he is not a fit and proper person to hold his authorities.

Findings

33 In reality there is little dispute about the facts in this case. Mr Allen has candidly admitted all matters relating to his involvement in the assault and his verbal interchange with the other driver on 18 January 2004. In so far as there is a discrepancy between Mr Allen’s descriptions of the actual assault, and that of the victim concerning whether Mr Allen hit the victim from behind, I accept Mr Allen’s evidence as it concurs with the evidence given to the Local Court.

34 I also accept Mr Allen’s uncontested evidence that he himself has been a victim of vilification and abuse during the time he has worked in the taxi industry in Tamworth, and this in part explains, but does not justify, his conduct. The letter from Ms Jan Whitebread is strongly confirmatory of the difficulties he has encountered. The Administrator was well aware before the Tribunal hearing that Mr Allen maintained that this was the case, and did not challenge his evidence or lead any evidence to the contrary.

35 The only matters in dispute are the issues going to notification of the charges, which Mr Allen says occurred but which he is unable to produce any confirmatory evidence of. The absence of any record of such notification on the Administrator’s file is sufficient to persuade me that Mr Allen did not notify the Administrator when charges were laid against him.

36 I am also satisfied that Mr Allen when making the initial application for his authorities failed to disclose his 1989 convictions for possession and use of cannabis. I accept that he did so because he believed they had occurred more than 10 years before the date of the application. I find that he did not consciously decide not to disclose those convictions.

37 With respect to the incident on 18 January 2004 I accept Mr Allen’s uncontested evidence of those events.

Is Mr Allen a Fit and Proper Person?

38 What is ‘fit and proper’ will vary depending on the nature and purposes of the role being considered. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason said at 380:

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.

39 In Farquharson -v- Director General, Department of Transport [1999] NSWADT 53, O’Connor DCJ, President, said:

27 A taxi driver has a continuing responsibility to ensure that he is of "good repute" and a "fit and proper person". Clearly, the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character. The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J).

36 In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence.

37 A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165. The applicant sought review of a refusal to grant a taxi driver's licence, the refusal being based on a criminal record revealing a number of convictions for offences involving dishonesty. The application was successful. The Tribunal was satisfied that the context that had given rise to the convictions, a gambling addiction, had been successfully addressed. It was satisfied as to the genuineness of the applicant's desire to rehabilitate himself. In the course of its decision the Tribunal (Professor LJ Curtis, President) put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing in this way, at [12]:

"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."

40 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Deputy President Hennessey said:

17. ... 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:

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

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

SS the applicant's driving record;

SS the applicant's reputation in the community; and

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

41 The decision of the Appeal Panel in Lo v Director General Department of Transport [2002] NSWADTAP 39, referred to by Mr Wozniack, was a case of suspension of a taxi authority following a driver being charged with assault on another driver. The Appeal Panel regarded the fact that the assault had taken place in the regulated environment of the NSW taxi industry as being of importance. In that case however, the assault was of considerably greater severity than that under discussion here, and included damage to the victim’s cab, with resultant loss of income.

42 Mr Allen assaulted another driver within the regulated environment of the NSW taxi industry. He did so having been accused of cheating other drivers of their work. He did so in the context of what I accept was a prolonged conflict between himself, Tamworth Radio Cabs, and other taxi drivers in Tamworth. A conflict that he believes is motivated by his race, and his insistence on standing up for himself. The tone of the comments quoted above from the other driver, and from the Secretary of Tamworth Radio Cabs, lends credence to Mr Allen’s evidence of the unfortunate state of his relationship with the rest of the taxi industry in Tamworth, as does the letter from Ms Whitebread.

43 Nothing can excuse Mr Allen’s conduct. It was unacceptable. Yet his explanation does show circumstances, which make his reaction more understandable than a single act of violence in response to an exchange of insults. It is a factor that, in my view, would make a member of the public contemplating a trip in a taxi driven by Mr Allen, less inclined to object to Mr Allen as a driver.

44 Mr Allen has shown a clear insight into the difficulties highlighted by his conviction for assault. He has realised that he has a problem with anger, and that he is working in an environment in which he is constantly being challenged, and in which resort to anger will only lead him into further problems. He has taken action to deal with that problem, both by addressing the amount of time he spends on the road, and by seeking appropriate counselling. He impressed me as having a keen insight into his situation and a firm resolve not to act in a similar manner again.

45 Mr Wozniack pointed to the events of 18 January 2004 as evidence that Mr Allen is unable to control his temper. Accepting, as I do, Mr Allen’s version of those events, it would seem to me that Mr Allen traded insult for insult over the radio waves when accused of stealing work without justification. Again, viewed with knowledge of the background events, his words on that occasion impress me as being entirely consistent with his determination to stand up for himself in his own style, but not consistent with a loss of temper. I accept Mr Allen’s evidence that he now has a clear understanding of his boundaries and is prepared to walk away from problems. I think it unlikely that he will commit an assault again, but am of the view that he will continue to defend and assert himself verbally.

46 The assault was clearly not considered by the Local Court at Tamworth to be a very serious matter. Mr Allen was placed on a bond and to date has abided by it. The same observation can be made with respect to the charge of hindering police for which he received an $80.00 fine, and which, on the police statement of facts, was a minor matter.

47 I accept that Mr Allen, outside the taxi industry in Tamworth, is a well-respected and valued member of the community. His work as a member of the Namoi Catchment Board and the high praise they have given him are evidence of that.

48 In my view, a member of the public, knowing what Mr Allen has done, knowing the circumstances leading up to and surrounding the assault, and aware of the actions he has taken since to rehabilitate himself, would not object to Mr Allen as a driver. I am of the opinion that Mr Allen remains a fit and proper person to hold his authorities.

49 Mr Allen’s failure to disclose his 1989 convictions on his original application was, in my view, understandable in the circumstances and involved no conscious attempt by him not to disclose. I do not consider this failure to disclose a ground for finding him not a fit and proper person: a view the Administrator appears to have taken when issuing the original authorities, after conducting a criminal records check.

50 Mr Allen’s failure to notify the Administrator, as required by the Regulations, of being charged with the offences is a serious matter, and a breach of the regulation. I am not however satisfied that in the circumstances it alone justifies cancelling his authorities, or renders him no longer fit and proper.

Decision

51 In my view the correct and preferable decision was not to cancel Mr Allen’s authorities. Accordingly, the order of the Tribunal is that the decision of the Administrator made on 6 November 2003 to cancel Mr Allen’s authorities be set aside.