Ifedioranma v Ministry of Transport [2006] NSWADT 119 (20 April 2006)

Last Updated: 20 April 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Ifedioranma v Ministry of Transport [2006] NSWADT 119


PARTIES: APPLICANT
Diguyga Ifedioranma
RESPONDENT
Ministry of Transport



FILE NUMBERS: 053406

HEARING DATES: 17/01/2006

SUBMISSIONS CLOSED: 17/01/2006



DECISION DATE: 20/04/2006

BEFORE: Molony P - Judicial Member





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

CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

APPLICATION: Passenger Transport Act - taxi driver - grant of authority
Taxi driver - grant of authority

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
I Asuzu, Counsel

RESPONDENT REPRESENTATIVE: RESPONDENT
A Wozniak, Solicitor

ORDERS: The decision of the Director-General to refuse Mr. Ifedioranma’s application for a short-term WAT taxi licence is affirmed


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 Mr. Ifedioranma has held a series of short-term licence under the Passenger Transport Act 1990 for a wheel-chair accessible taxi-cab ("WAT"). Short-term licences are not renewable. In October 2005 he applied for a new short-term WAT licence; when his existing licence was due to expire. His application was refused on the basis that he had not complied with the conditions of his previous licence. As a result Mr. Ifedioranma has been deprived of his livelihood. He has applied to the Tribunal to review that decision.

Factual Background

2 On 16 October 2003 Mr. Ifedioranma was issued with a short-term WAT licence for 12 months under s.33D of the Passenger Transport Act 1990 by the Director-General of the Ministry of Transport ("the Director-General"). The taxi-cab concerned is T4060.

3 The Director-General is issuing short-term WAT licences to address the shortage of taxi-services experienced by those in wheelchairs. The aim is to ensure that sufficient, properly equipped taxis are available to meet the needs of members of the community who are in wheelchairs. In doing so, the Director-General was seeking to redress the situation in which people confined to wheelchairs were not being provided with a service equal to that available to the able bodied. A specific radio network, the Zero 200 Network, has been established to deal with request for WAT taxi-services, and to manage the allocation of work to WAT licensed taxi-cabs.

4 At present there are 4,918 licensed taxi-cabs operating in Sydney, of which 305 are WAT licences. WAT licences are available at a significantly discounted price. At present, unrestricted short-term taxi-cab licences are available from the Director-General at a fee of $38,523.24 for a period of 12 months, whereas a short-term WAT licence cost $1,000.00 for a period of 12 months. Ordinary taxi-cab licences can presently be purchased on the market for $275,166.00.

5 Mr. Ifedioranma’s short-term WAT licence was issued subject to conditions. Among them were:

"1. (a) Subject to Condition 2 hereunder, the vehicle is authorised to operate as a wheelchair accessible taxi-cab within the State of New South Wales.
(b) One vehicle with an approved capacity to carry at least one person in a wheelchair must be operated under the terms of this licence.
(c) ...
2. (a) The vehicle, when available for hire, is authorised to stand or ply for hire only within the Area of Operation.
(b) It shall not carry for any consideration on any occasion any person who has entered it at any place, which is not within the Area of Operation except in pursuance of a previous arrangement to carry such person from a place outside the Area of Operation to a place within the Area of Operation.
3. ...
4. (a) The within-mentioned vehicle shall be equipped with a communications receiver and operate as a unit of any one of the taxi-cab networks in the Metropolitan Transport District authorised by the Director General of the Ministry of Transport.
(b) The vehicle must be connected with a radio unit that is operated as part of any designated booking service for wheelchair accessible taxis approved by the Director-General.
(c) (1) When the vehicle is being operated as a taxi-cab, the driver of the vehicle must be contactable at all times through the two-way radio or computer terminal by the Authorised taxi-cab Network or wheelchair accessible booking service of which it is a unit.
(2) The driver of the vehicle must use the radio unit in accordance with the wheelchair accessible taxi booking service procedures and must observe the published rules of that booking service.
(d) The licensee must ensure that all drivers of the taxi-cab comply with any reasonable request made by the network or wheelchair accessible booking service that the taxi-cab is associated with is complied with, in relation to acceptance of wheelchair accessible taxi-cab bookings and driver changeover.
(e) The licensee must ensure that when the vehicle is available for hire or reward, the driver of the taxi-cab must accept a hiring offered by a person using a wheelchair in preference to a hiring offered by a person not using a wheelchair.
...
9. The taxi-cab operated under the authority of this licence must at all times be driven by a driver authorised to drive wheelchair accessible taxi-cabs.
10. (a) The licensee must ensure the taxi-cab operated under the authority of this licence is available for hire for a minimum of 10 hours each and every day of the year, and;
(b) The taxi-cab must be available for hire between the hours of 12 midday and 5pm on any day; driver changeover is not permitted within this time.
11. The licensee must ensure all drivers reporting to the licensee or any sub lessee are complying with the conditions of this licence.
12. The licence is not transferable."

6 Mr. Ifedioranma, as well as being licensee of his WAT taxi-cab, was its principal driver. The cab was fitted with two radios: one for the Zero 200 Network which provided WAT work, and one for Premier Cabs, the network which provided him with ordinary taxi-cab work.

7 When Mr. Ifedioranma’s initial licence came towards its end, checks were made on his compliance with the conditions of the WAT licence. The manager of the Zero 200 Network, Mr Paul Bolt reported that from January 2004 to October 2004, T4060 had done a total of 44 jobs for the Zero 200 Network. The highest number, eight jobs, were undertaken in April 2004, while only two WAT jobs were undertaken in February, May and August. From 6 September 2004 to 17 October 2004, T4060 did 8 jobs, five in September and three in October.

8 Mr Bolt spoke to Mr. Ifedioranma on 13 October 2004. In a memorandum to the Director-General dated 14 October 2005 Mr Bolt advised:

‘Mr. Diguyga Ifedioranma, owner of WATS Taxi T4060 Authority No. FC 2373 was called to my office on Wednesday 13 October 2004 for a discussion in relation to his vehicle not carrying out 0200 wheelchair work with the 0200 Network.
I counselled him on the need to comply with his license conditions and made him aware of the WATS Taxi driver radio hiring procedures handbook.
Mr. Ifedioranma was advised that he must be logged on to the WATS Booking Service and also must actively log into suburbs as he progresses or if engaged he must log into the destination suburb. He must also carry out 0200 work as per Network requirements.
0200 management would recommend to the Ministry that Mr. Ifedioranma be issued a short term "WATS LICENCE WITH A SIX MONTH PROBATION".
0200 Management will be monitoring and reporting if Mr. Idedioranma does not comply with his WATS Licence conditions by the end of his probation period.’

9 On the same day the Director-General wrote to Mr. Ifedioranma advising that he would be issued with an interim licence for a period of one month expiring on 14 November 2004. Mr. Ifedioranma replied, on 22 October 2004, advising the Director-General that Mr Bolt had refused to look at Mr. Ifedioranma’s records of the wheelchair jobs he had done for the year, and had said that Mr. Ifedioranma had only done 5 WAT jobs.

10 The Director-General accepted Mr Bolt’s recommendation. On 16 October 2004 Mr. Ifedioranma was issued with a short-term WAT licence for 6 months, expiring on 16 April 2005.

11 On 22 April 2005, Mr Bolt advised the Director-General that in the six months from July to December 2005, T4060 had completed 40 WAT bookings for the Zero 200 Network. On 29 April 2005, Mr. Ifedioranma was issued with a short-term WAT licence for 6 months, expiring on 16 October 2005.

12 Mr. Ifedioranma provided the Director-General with a handwritten list of his private jobs. This list does not indicate that the passengers are wheelchair passengers.

13 On 14 October 2005, Mr. Ifedioranma applied for the issue of a further short-term WAT licence. The Director-General made inquiries of Mr Bolt regarding compliance with the conditions of T4060’s licence. He replied on 18 October 2005 that "T4060 does not comply. Zero WATS jobs in one month." A records check of Taxi Transport Subsidy Scheme ("TTSS") records showed for the period January 2005 to 1 September 2005, T4060 had completed 11 WAT jobs. Subsidised travel under the TTSS is available to all persons who are confined to wheelchairs as a result of a permanent disability, among others.

14 On 27 October 2005 the Director-General refused Mr. Ifedioranma’s application for a short-term WAT licence, on the basis that he had failed to demonstrate a satisfactory level of wheelchair accessible taxi-cab work during the currency of his licence. Mr. Ifedioranma was instructed to return the number plates T4060 to the Roads & Traffic Authority within 7 days, and warned not to allow the taxi-cab to operate without a licence.

15 Mr. Ifedioranma sought an internal review of that decision on 3 November 2005. In support of his request that the decision be reviewed Mr. Ifedioranma wrote:

"On 9 March 2005 I was given a school run in extreme circumstances. I was given this run before midnight of the 9.3.05 to the run at 6 am the following day. Since then I have been doing the run 5 days per week. The run involves picking up young mentally and physically disabled adults from their homes and then take them to the Junction. Some of the students are M16, needing more assistance than people in wheelchairs. I have to manually help them from their door to the vehicle and from the vehicle into the Centre. I have to put their seat belt on and while in the vehicle they have to be organised and supervised at all time in order for them to be of good behaviour to each other. On some occasions I have to stop the vehicle to stop them fighting with one another. On some occasions after picking them up and heading to the Junction, someone would become sick and I have to stop and attend to them before proceeding. On two occasions some one has defecated in their pant and seat and as an M16 attendant I have to manage the situation.
I do the run twice a day and have 5 students who are M16: ...
I try to do wheelchair work in between as much as I can, and have been called by Zero 2000 radio room to often take jobs which are far out of my way, but I to attend to such requests including:
Villawood to Liverpool to pick up two jobs
Villawood to Strathfield TAFE to pick up a customer
Villawood to Nth Parramatta to pick up for Nth Parramatta.
May I refer to the report from Zero 2000 stating that I did nil wheelchair work in a month. I would like the DOT to know that I left Australia on 28th Dec 2004 to travel to Nigeria for my elder brother's burial and came back on Feb 4th 2005. I returned to work on Feb 8th only to have an accident an hour after I started work and my vehicle was off the road for sometime for repairs. The incident was reported to the police.
There is also a conflicting statement which says advice received from Mr. P Bolt on 22.4.05 stating that I have only done 40 wheelchair work in six months. Another report on the second page says TTSS scheme record indicate that I have only carried out 11 wheelchair trips in the period Jan 2005 1st Sept 2005. I do pick up wheelchair jobs in the street and because it didn't come through the Zero 2000 network it is not acknowledged.
I hope that by the time you go through these documents you will have no doubt that I am trying in helping these disabled adult because they are unable to access public transport. They look forward every day to be taken to the Centre, where they get involved in different activities which makes them feel they are part of the community."

The letter was signed "Dig Ifedironanma".

16 On 10 November 2005 the decision to refuse Mr. Ifedioranma’s application for a short-term WAT licence was confirmed on internal review.

17 On 18 November 2005 Mr. Ifedioranma lodged an application to review that decision with the Tribunal. On 5 December 2005 he filed an application seeking an urgent stay of the decision, stating that he "could not afford to be off the road".

18 The application for a stay was heard by Judicial Member Montgomery on 8 December 2005 and refused.

19 On 12 December 2005 the number plates for T4060 were surrendered.

20 The Director-General has received a TTSS voucher for a journey undertaken between Austral and Casula on 11 December 2005 in T4060. The drivers name is shown as "Dig". Additionally, records provided by Premier Cabs show that T4060 was logging on and off the Premier cabs network on a regular, working basis from 14 November 2005 to 8 December 2005. The records for 8 December 2005 show that T4060 logged on and off the network as follows: log on at 9:29 – off at 13:42; log on at 15:08 – off at 19:49.

21 The Tribunal’s own records show that on 8 December 2005 at 2:15pm (14:15) Mr. Ifedioranma appeared in person at the hearing of his application for a stay, which he hoped would enable him to get on the road.

Mr. Ifedioranma’s Oral Evidence

22 In his evidence Mr. Ifedioranma told the Tribunal that he is a married man with four children. He has been in Australia for 20 years, and driving taxis for 11 to 12 years.

23 Mr. Ifedioranma said that he was aware of the concerns expressed about the amount of wheelchair work being done, on each occasion that the licence for T4060 had expired in the past. He said that his job required that he give priority to people in wheelchairs. A problem was that he did not know how much wheelchair work is enough.

24 Mr. Ifedioranma said he got work through the Zero 200 Network, the Premier Cabs Network, and off the street. He produced a 128 page exercise book in which he had recorded the work he had done form 20 October 2004 to 12 July 2005. All the work recorded relates to customers with TTSS dockets. The record therefore does not disclose all the work done, as Mr. Ifedioranma acknowledged he does pick up work off the street for cash or credit. The majority of those records show the date of the service, the customers name, the TTSS docket number, and where the journey was from and to. In the first seven pages, covering the period to 16 March 2005, there is a record of whether or not the passengers had wheel chairs. There are records of 26 wheelchair journeys between 20 October 2004 and 16 March 2005. They do not show whether the journeys were booked through the Zero 200 Network. I note that an entry for 21 October 2004 appears after an entry for 24 October 2004, and for 10 December 2004 after the entry for 17 December 2004. The records from 17 March 2005 onwards are more numerous per page and do not record whether or not a wheelchair was involved.

25 Mr. Ifedioranma said that he continued working after he received the letter from the Director-General advising that his application for a short-term WAT licence had been refused. He explained that he thought he had 28 days to hand in the plates. He did not explain the basis of that understanding. He later said that the Ministry of Transport had told them to put the plates in storage when he asked what he should do.

26 Mr. Ifedioranma said confirmed that he had been in Nigeria from 28 December 2004 until 4 February 2005. In that time his vehicle had been parked in his back yard and not used. Mr Wozniak, for the Director-General, put to Mr. Ifedioranma that it was a condition of his licence that the vehicle be on the road for a minimum of 10 hours a day, and that by allowing it to sit in his yard for one and half months he had breached the conditions of the licence. Mr. Ifedioranma said that it is hard to find drivers and he had tried to. He did not advise the Zero 200 Network that he was going overseas.

27 Mr. Ifedioranma said that he works a 12 hour shift, starting before 6:00am and finishing from 4:00 to 5:00pm. From May to November 2005 a lot of his time had been devoted to the school run for physically and intellectually disabled children, which took about five and a half hours a day. He said that apart from the school run he had obtained wheelchair work from the Zero 200 Network and off the street. He said that there have been days where he has done five, six or seven wheelchair jobs.

28 Mr Wozniak asked Mr. Ifedioranma why he had applied for the stay. He said the Ministry of Transport had told him to. He agreed he had continued to work after he had made the application to review to the Tribunal, after he had applied for a stay, and after the stay had been refused by the Tribunal. When asked why he explained that he was desperate for money.

The Legislation

29 Section 32 of the Passenger Transport Act 1990 empowers the Director-General to licence motor vehicles as taxi-cabs. Applications for licences are made under s.32A. Section 32B is concerned with the grant or refusal of licences.

(1) The Director-General may grant an application and issue to the applicant a licence for the taxi-cab concerned, or may refuse the application.
(2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.

Short term licences are provided for by s.32D:

(1) If an applicant for a licence requests a short-term licence, the Director-General may issue to the applicant a licence for a limited duration.
(2) A short-term licence, unless sooner suspended or cancelled, remains in force for the period (not exceeding 6 years) determined by the Director-General and specified in the licence.
(3) Such a licence is not renewable and cannot be transferred except on the application of the holder’s legal personal representative or of a trustee of the holder’s estate.

There are no criteria established by the Regulation with respect to the grant of short-term licences.

30 Mr Asuzu, for Mr. Ifedioranma, submitted that his client had a reasonable expectation that his short-term WAT licence would be renewed when it expired. Given that s.32D(3) specifically provides that a short-term licence is not renewable, that submission must fail. With the short-term WAT licences he has held, s.32D makes clear –as do the conditions of the licence - that it has not been a situation of renewal, but of his license expiring, and a new licence then being issued, rather than the original renewed.

31 Section 33F provides:

(1) A licence is subject to:

(a) the conditions prescribed by the regulations, and

(b) such additional conditions as the Director-General may impose on the licence.

(2) Conditions imposed by the Director-General may be varied (whether by amendment, addition, revocation or suspension of one or more conditions) by the Director-General from time to time by notice served on the licensee.
(3) A licensee who contravenes a condition of the licence is guilty of an offence.
Maximum penalty: 1,000 penalty units.
(4) A variation of conditions imposed on a licence by the Director-General is, for the purposes of Division 3 of Part 5 (Reviews by Administrative Decisions Tribunal), a variation of the licence.

32 Section 52(3) provides that a person aggrieved by a decision to refuse an application for licence may seek a review in this Tribunal. Section 63 of the Administrative Decision Tribunal Act 1997 says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Director-General, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Findings of Fact

33 Mr. Ifedioranma did not impress me as being either careful or truthful in the course of his evidence. His statement that he did not surrender the plates for T4060 within 7 days in accordance with the instructions in the Director-General’s letter of 27 October 2005, because he believed he had 28 days to do so, simply does not ring true. It is clear Mr. Ifedioranma received that letter: he wrote requesting an internal review in response to it. The requirement that he return the plates within 7 days was clear and unambiguous. I do not accept that he believed he had 28 days in which to return them. Mr. Ifedioranma’s later statement, in evidence, that officers of the Director-General had told him to keep the plates ‘in storage’ impresses me as highly improbable, given that the Director-General had directed that the plates be surrendered within 7 days. I do not accept that is what occurred.

34 Rather, the evidence establishes that knowing his application for a new licence had been rejected, and knowing that his earlier licence had expired, Mr. Ifedioranma continued to drive and operate T4060, while he went through the processes necessary try to have the rejection of his application for a licence set aside, and a new licence granted. This included applying for the internal review, which was not successful. He continued to drive and operate T4060 after he had received advice of the outcome of the internal review, when he applied for a review of that decision in this Tribunal, and both before and after he unsuccessfully sought a stay from the Tribunal. I am comfortably satisfied that he did so knowing that his licence had been cancelled. Once the hearing of his application for a stay had been refused at the hearing on 8 December at 2:15pm, T4060 was logged onto the Premier Cabs Network at 3:08pm. As Mr. Ifedioranma was the only person who drove T4060, the only conclusion open to me is that he continued to drive and operate, after he had been told the stay had been refused and knowing that the licence had been cancelled. This reflects seriously on Mr. Ifedioranma’s honesty and shows an active disregard by him of the requirements of the Passenger Transport Act 1990.

35 Mr. Ifedioranma was insistent that he has done more wheelchair work than that found in the records of the Zero 200 Network. Certainly the information provided by Mr Bolt is sufficient to persuade me that T4090 was not regularly taking work offered on the Zero 200 Network, as required by the licence conditions.

36 Mr. Ifedioranma own records, where they refer to wheelchair work, show that he did five wheelchair jobs in October 2004 (starting on 20 October), ten in November, seven in December, two in February 2005, and two to 17 March 2005. As discussed above some of there entries are not sequential. Accepting for the purposes of discussion only Mr. Ifedioranma’s own records, and his explanation that his cab was off the road for some 8 weeks during the period covered by these records (six weeks while he was in Nigeria and two following an accident), the records demonstrate his undertaking an average of two wheelchair trips a week. Given that he worked twelve hour shifts, this is minimal and lends weight to the Director-General’s assertion that Mr. Ifedioranma has not been honouring the conditions of his licence. He has not been making himself available for wheelchair work, or giving it preference.

37 The figures produced by the Zero 200 Network of bookings undertaken by T4060 paint an even bleaker picture of the level of compliance, going back over the entire time Mr. Ifedioranma has held a short-term WAT licence. The WAT bookings undertaken by T6040 in the period January to October 2004, as shown by the Zero 200 Network records (44 jobs), average out at fractionally above one a week.

38 The Taxi Transport Subsidy Scheme records for the period January 2005 to 1 September 2005 showed 11 wheelchair trips, an average of fractionally above one a month. To compare these figures with Mr. Ifedioranma’s other TTSS work, I selected two months in 2005 from his exercise book and counted the number of TTSS job entries for each of those months: in April there were 162, in June there were 195. A comparison with the number of jobs that TTSS records show he did for people in wheelchairs, speaks for itself: 1.25% of all TTSS work in April and 1.03% of all TTSS work in June.

39 Mr. Ifedioranma, in evidence, asserted that no account was being taken of the wheelchair jobs he picked up of the street. I do not accept that there would have been many of these for a number of reasons. First, because of the inherent unlikelihood of people in wheelchairs simply trying to pick up a wheelchair equipped cab of the street, and secondly, because of the absence of TTSS vouchers for wheelchair trips. Further, the view I have taken of the lack of veracity of Mr. Ifedioranma’s own evidence, leads me to reject his assertions in favour of the clear records.

40 Mr. Ifedioranma spoke of the school trip he makes each day with intellectual disabled children, that takes up nearly half his normal working day. While disabled and recipients of the TTSS subsidy, the children are not wheelchair bound. Providing a service to them, does not meet his obligation to provide a WAT service.

41 As a result these considerations, I am satisfied that while Mr. Ifedioranma held a short-term WAT licence for T4060, the vast majority of the work undertaken by T4060 was not wheelchair work, and wheelchair work was not given preference in the taxis’ operations. Similarly, he did not honour his obligations in respect to the Zero 200 Network.

42 I am also satisfied on the basis of Mr. Ifedioranma’s own evidence that he breached the conditions of his licence by not having the vehicle on the road for ten hours of the day, every day of the year.

Discussion

43 Short-term WAT licences have been issued by the Director-General as a direct response to the shortage of wheel-chair assessable taxis in the Sydney market, with the aim of ensuring an equality of service to those who are wheelchair bound. Short-term WAT licences are issued at a substantial discount over other taxi licences, on condition that holders of those licences meet requirements which are designed to ensure that sufficient WAT taxis are available to offer a service to those in wheelchairs. WAT taxis are not confined to wheelchair work only and may compete against other taxis for general work, but are required to participate in the market on a daily basis, and to give preference to clients in wheelchairs.

44 Mr Wozniak told me that Administrator saw the vastly reduced costs of a WAT licence as, in effect, a subsidy, to encourage persons to apply for short term WAT licences, and to make allowance for the additional equipment and training costs involved in offering a WAT taxi service. Persons who hold WAT licences, but do not meet the conditions of their licence with respect to hours of service and priority to wheelchair uses, are therefore, not only breaching the conditions of their licence, but gaining an unfair competitive advantage against other taxi licence holders, who do not have the benefit of the subsidy.

45 There are no prescribed considerations which the Director-General must take into account in determining whether or not to grant an application for a short term licence under s.32D, and as to what conditions are imposed with respect to the licence under s.33F. None the less, the use of the word "may" in s.32D(1) makes it clear that the granting of a short-term licence is a discretion vested in the Director-General. In my view, it is open to the Director-General in exercising that discretion to refuse to grant a licence, where the Director-General is reasonably of the view that the applicant for the licence will not honour the conditions of the licence. That is clearly a relevant consideration.

46 In Mr. Ifedioranma’s case it is my opinion that the evidence demonstrates that he has not honoured the conditions of the short-term WAT licences he has held in the past. He has not given preference to WAT work. He has not kept his vehicle on the road as required by the conditions of his licence, and has not honoured his obligations to take work from the Zero 200 Network. Given that history, I have no confidence that he will honour the conditions of a short-term WAT licence, if one were now granted to him. Accordingly, I am of the view that the correct and preferable decision is to refuse his application for the issue of a short-term WAT licence.

Decision

47 As a result the decision of the Director-General to refuse Mr. Ifedioranma’s application for a short-term WAT taxi licence is affirmed.