Chaudharry v Director General, Ministry of Transport [2006] NSWADT 20 (25 January 2006)

Last Updated: 25 January 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Chaudharry v Director General, Ministry of Transport [2006] NSWADT 20


PARTIES: APPLICANT
Sajjad Chaudharry
RESPONDENT
Director General, Ministry of Transport



FILE NUMBERS: 053362

HEARING DATES: 19/01/06

SUBMISSIONS CLOSED: 19/01/2006



DECISION DATE: 25/01/2006

BEFORE: Handley R - Judicial Member





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

CASES CITED: Coles v Director-General, Department of Transport [2001] NSW ADT 23
Ghachame v Director-General, Department of Transport [2000] NSW ADT 113
Jawad v Director-General, Department of Transport [2003] NSWADT 55
Lal v Director-General, Department of Transport [2001] NSWADT 74
Lloyd v Director-General, Department of Transport [1999] NSWADT 101
Lloyd v Director-General, Department of Transport [2001] NSWADT 201
McKenzie v Director-General of Transport [2000] NSWADT 126
Saadieh v Director-General, Department of Transport [1999] NSWADT 68
Singh v Director-General, Department of Transport [1999] NSWADT 96

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

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
G Niven, Counsel

RESPONDENT REPRESENTATIVE: RESPONDENT
A Wozniak, Solicitor

ORDERS: The decision under review is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 This matter involves an application by Sajjad Chaudharry for the review of a decision of the Director-General of the Ministry of Transport to cancel Mr Chaudharry’s taxi driver authority and taxi operator accreditation, following his conviction of three offences in the NSW Local Court on 12 July 2005.

The Facts

2 Mr Chaudharry was born in Pakistan on 1 February 1966 and is aged 39. He migrated to Australia in 1986 and became an Australian citizen in about 1989. Mr Chaudharry is married with four children, aged 15, 7, 4 and 2 years, the residency of the oldest of whom he shares with his former wife. Mr Chaudharry first obtained a taxi driver authority in July 1990. Mr Chaudharry said he obtained taxi operator accreditation "about one and a half years ago".

3 Mr Chaudharry’s criminal history includes the following convictions:

25/3/92 Drive while disqualified (Good Behaviour Bond for 12 months, disqualified for 6 months)
25/3/95 Exceed speed limit (fined $250)
2/5/96 Drive with mid range PCA (fined $100, disqualified for 12 months)
10/7/02 Common Assault (fined $500)
23/9/02 Drive with mid range PCA (fined $500, disqualified for 12 months)
12/7/05 Larceny (Good Behaviour Bond of $500 for 12 months)
12/7/05 Obtain money etc by deception (6 counts) (fined a total of $2000, Good Behaviour Bond for 12 months)

4 Mr Chaudharry’s Traffic Record also records other driving offences.

5 Mr Chaudharry’s Ministry of Transport file includes a record of an investigation following a complaint made on 30 October 2003 over the use of a passenger’s credit card in 2002. Mr Chaudharry "vigorously denied" the allegation made against him and no action was taken other than to require that he complete the Rules and Regulations Knowledge module of the Taxi Driver Training Program. He completed this on 8 March 2003. Following this, on 10 March 2003, the Ministry of Transport issued Mr Chaudharry with a warning stating:

"Whilst acknowledging your successful completion of this retraining it should be noted the Ministry has deemed your past history and behaviour to be inappropriate for the driver of a public passenger vehicle and not in the best interest of the travelling public and the Ministry.
After careful consideration it is determined that no further action will be taken in relation to these matters other than to record the incidents on departmental files.
However, you are reminded that should you be the subject of any substantiated complaints, breaches of the Passenger Transport Regulations, the Traffic Act or a criminal conviction, the Ministry may suspend or cancel your taxi driver authority."

6 Mr Chaudharry failed to notify the Ministry of his 2002 convictions as required by clause 36 of the Passenger Transport (Taxi-cab Services) Regulation 2001. On applying for the renewal of his taxi drivers authority on 8 July 2005, in answer to specific questions in the renewal form, he failed to disclose his 2002 convictions or the charges pending against him laid on 21 June 2005.

7 On 12 October 2005, a delegate of the Director-General of the Ministry of Transport cancelled Mr Chaudharry’s taxi driver authority and taxi operator accreditation. The delegate’s Statement of Reasons stated:

"the fact that you have been convicted for ‘Assault’, ‘Larceny’ and ‘Obtain money etc by deception’ casts grave doubts of [sic] your ability to carry out the duties and responsibilities of the position of a driver and operator of a public passenger vehicle according to law and custom.
To be of ‘Good Repute and in all other aspects a fit and proper person’ to drive and operate a Public Passenger vehicle the community must have confidence that a driver and operator would behave appropriately. The behaviour for which you have been convicted is not acceptable conduct for a taxi driver and operator to engage in. In addition to this, future passengers may find it unacceptable to be in a taxi driven and operated by a person found to have behaved in such a manner."

8 On 18 October 2005, Mr Chaudharry applied to the Tribunal for a review of this decision and for a stay on its operation. On 25 October 2005, the Tribunal issued a stay on its operation until the date of determination of the application for review.

Mr Chaudharry’s Evidence

9 Mr Chaudharry provided a statement dated 18 January 2006 and an amendment to that statement dated 19 January 2006. He also gave oral evidence at the hearing. Mr Chaudharry said he believes the complaint made against him in relation to the use of a credit card arose out of non-compliance with requirements for record keeping and proper filling out of work sheets.

10 Mr Chaudharry said his 2002 conviction for assault arose from a dispute with his former wife over access to the child of that marriage when he slapped her in the face. His 2005 convictions followed an incident on 18 June 2005, at a time he was drunk, when he found a credit card in a pub at Mt Druitt. He used the credit card to purchase various items in the next-door Westfield Shopping Centre. Mr Chaudharry said he was very stressed at the time because his sister, who lived in Australia, had passed away. He was so drunk he did not know what he was doing. When stopped by the police, he was in a car driven by a friend. He acknowledged that when questioned by the police on Saturday 18 June 2005, he initially lied. However, next day he went to the police station to admit his involvement. (Police records show this occurred on Tuesday 21 June 2005.) He was charged as a result, and pleaded guilty to those charges before Penrith Local Court.

11 Mr Chaudharry acknowledged that he can read English but said he did not notify the Ministry of his 2002 conviction for assault because he thought he was only required to notify the Ministry if the charges related to the operation of his taxi. When he was disqualified from driving for 12 months in September 2002, he phoned the Ministry to inform them. Mr Chaudharry agreed that he had signed a declaration on 15 June 1993 stating that he had read and understood the Taxi Authorisation Standards outlining the responsibilities and obligations of taxi driver authority holders and agreeing to be bound by them. Nevertheless, he did not understand that he had to notify charges unrelated to his driving a taxi. Indeed, he did not inform the Ministry of the charges laid against him on 21 June 2005 when seeking the renewal of his licence on 8 July 2005 because he was told "by a lady at the counter" that only taxi-related offences needed to be notified. In his statement, Mr Chaudharry "unreservedly apologised" for his misunderstanding.

12 Mr Chaudharry asked that his personal circumstances be taken into consideration. His wife does not work because she cares for their three young children. He has housing loan repayments to make on a mortgage of $213,000 for their home unit, he has loan repayments on a $10,000 personal loan from a friend from 2003 when he was disqualified from driving and relying on a social security payments, he owes over $7,000 on his credit card, and he has all the usual outgoings associated with supporting a wife and four children.

Submissions

13 Mr Niven, for Mr Chaudharry, submitted the 2002 assault conviction was in respect of a relatively minor matter, and the penalties for the 2005 convictions are at the lower end of the scale and indicate the Court accepted Mr Chaudharry’s contrition. Mr Niven submitted that it was not sufficient simply to point to a person’s criminal record to establish that the person is not of good repute. He noted that in McKenzie v Director-General of Transport [2000] NSWADT 126, where a driver slapped a passenger, the matter was resolved in favour of the driver. In Mr Chaudharry’s case, he has no history of misconduct and is unlikely to re-offend. His account of the incident in June 2005, is consistent with his being intoxicated at a time of crisis in his life. He is not skilled in English and his explanation for not disclosing his offences to the Ministry is credible. His evidence – given frankly – does not suggest dishonesty. Mr Niven referred the Tribunal to the decision in Coles v Director-General, Department of Transport [2001] NSW ADT 23, where the Tribunal, while finding that Mr Coles had committed offences involving dishonesty, nevertheless, found in his favour.

14 Mr Wozniak, for the Director-General, submitted that the Tribunal should not take into account any financial hardship that would be caused to Mr Chaudharry by the cancellation: Lal v Director-General, Department of Transport [2001] NSWADT 74 (‘Lal’), Jawad v Director-General, Department of Transport [2003] NSWADT 55 (‘Jawad’). Mr Wozniak referred the Tribunal to Deputy President Hennesssy’s decision in Singh v Director-General, Department of Transport [1999] NSWADT 96 (‘Singh’), which involved a number of convictions for assault and for breaching an apprehended violence order, and in Ghachame v Director-General, Department of Transport [2000] NSW ADT 113 (‘Ghachame’), where she emphasised the objective of protecting the public.

15 Mr Wozniak noted that Mr Chaudharry’s good behaviour bond expires in July 2006. He referred to the Tribunal decisions in Lloyd v Director-General, Department of Transport [1999] NSWADT 101 (‘Lloyd (1999)’) and Lloyd v Director-General, Department of Transport [2001] NSWADT 201 (‘Lloyd’ (2001)’), where the Tribunal took into account the duration of the good behaviour bond in determining whether the applicant had undergone rehabilitation. Mr Wozniak submitted the Tribunal should take into account the totality of Mr Chaudharry’s conduct: his breach of the Passenger Transport (Taxi-cab Services) Regulation 2001, that his offences involve dishonesty, his traffic record, in particular that he has been twice disqualified for "drink driving" and claims to have been intoxicated when the incident on 18 June 2005 occurred, and that it was not on the day after he was questioned but three days later that he confessed to the police.

Discussion and Findings

16 The provisions of the Passenger Transport Act 1990 relevant to the Director-General’s powers to cancel a taxi-cab operator accreditation and a taxi-cab driver authority are set out in s 31 and s 33, respectively:

31 (1) The Director-General may accredit persons for the purpose of carrying on taxi-cab services, subject to and in accordance with this Division. A person accredited under this Division is referred to in this Part as an accredited taxi-cab operator.
(2) The purpose of accreditation under this Division is to attest:

(a) that the accredited person is ... considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service, ...

31F (1) Having regard to the purpose of accreditation under this Division, the Director-General may at any time vary, suspend or cancel any person’s accreditation under this Division.
33(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) ...
(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.
33F. 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.

17 Thus, the principal issue in this case is whether Mr Chaudharry is of good repute and in all other respects a fit and proper person to be a taxi-cab driver operator and to be a taxi-cab driver. Deputy President Hennessy discussed the meaning of good repute in Singh: essentially, assessing a person’s reputation involves an estimation of their moral character. She also discussed the factors to be considered when determining a person’s suitability and fitness to obtain a taxi-cab authority, referring to her earlier decision in Saadieh v Director-General, Department of Transport [1999] NSWADT 68 (‘Saadieh’). In Saadieh, at paragraph 17, the Deputy President said these factors include:

"the nature, seriousness and frequency of any criminal offences for which the applicant had 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;
the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences."

18 The Deputy President said, at paragraph 18, that in addressing this last factor several considerations are relevant. These include:

"the length of time since the offence/s were committed or the complaints 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."

19 I note that financial hardship is not a factor the Tribunal can take into consideration in determining whether a person is a fit and proper person to be taxi-cab operator or driver: Lal, Jawad.

20 It would appear from the oral evidence Mr Chaudharry gave at the hearing that he speaks reasonably good English and, as he himself said, reads English. His evidence, however, is that he thought he was only required to notify the Ministry if the charges or offences related to the operation of his taxi. While Mr Chaudharry consistently gave this answer, I find it somewhat implausible given the plain wording of the questions that he answered in the renewal forms he completed on 2 May 2002 and on 8 July 2005 which asked whether he had been convicted of any criminal offences, not driving or traffic offences, since his authority was last renewed, and whether he had any criminal charges pending. On both occasions, he had charges pending. In neither case did he inform the Ministry of his conviction(s) after this had taken place. Again, he excused himself by saying that he did not think he had to inform the Ministry unless the conviction was related to his taxi driving. In the case of his July 2005 renewal application, Mr Chaudharry said a lady at the counter told him this.

21 The Taxis Authorisation Standards that Mr Chaudharry said he read and understood in 1993 and in respect of which he signed a declaration stated: "The driver must immediately report any conviction or charge in relation to criminal, traffic or any other kind of offence (other than parking offence) in NSW or elsewhere, to the Department of Transport."

22 This requirement became clause 36(1) of the Passenger Transport (Taxi-cab Services) Regulation 2001:

"36(1) The driver of a taxi-cab must, in accordance with this clause, furnish the Director-General with written details of the following:

(a) any alleged offence (other than a parking offence) with which the driver is charged by a police officer,
(b) 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.

Maximum penalty: 10 penalty units."

23 With regard to the offences of which Mr Chaudharry has been convicted, aside from the other driving offences that I have not listed, most of which involve speeding and demerit points, the convictions which raise concerns in relation to whether Mr Chaudharry is a fit and proper person are those involve his driving with more than the prescribed level of alcohol, his conviction for common assault, and his convictions in relation to his fraudulent use of a credit card in June 2005. Although his most recent "drink driving" conviction is now over three years ago, Mr Chaudharry’s evidence is that the credit card offences occurred while he was so drunk he did not know what he was doing. Even though he may well have been under stress following the death of his sister, and even though he was not driving at the time, the fact of his use of alcohol in this way is, nevertheless, of concern.

24 With regard to the offence of common assault, even though the sentence received in the Local Court indicates that this was probably not regarded as a serious offence, nevertheless, it is of concern, even though it relates to a domestic matter. The offences involving fraudulent use of the credit card are also of concern, in particular, because they involve dishonesty. Moreover, despite Mr Chaudharry giving evidence that despite at first denying the offences when questioned by the police, he confessed the next day, the police record shows it was in fact three days later that he confessed, after which he was formally charged. I note that Mr Chaudharry’s good behaviour bond in relation to these offences is current until 11 July 2006.

25 I note that Mr Chaudharry received a warning from the Ministry dated 10 March 2004 in relation to its investigation of a complaint over the misuse of a passenger’s credit card. I have not taken the allegation against Mr Chaudharry into account because, after investigating the complaint, the Ministry took no further action against him and he "vigorously denied" the allegation.

26 In my view, there is a sufficient history of misconduct both of a criminal nature and in relation to Mr Chaudharry’s failure to disclose to the Ministry the charges laid and his convictions in 2002 and 2005, to raise concerns about whether Mr Chaudharry is of good repute and a fit and proper person to be responsible for the operation of a taxi-cab service or to be the driver of a taxi-cab. Speaking of taxi drivers in Ghachame, at paragraph 64, Deputy President Hennessy said:

"The real question is whether Mr Ghachame has the requisite character, reputation, responsibility and aptitude to meet the public’s reasonable expectations of taxi drivers."

27 In Lloyd (1999), a case involving offences of dishonesty, Deputy President Hennessy said, at paragraph 26:

"In my view some reasonable period of time needs to elapse before the community can be confident that Mr Lloyd has undergone genuine rehabilitation, especially in view of the fact that he has a history of convictions for dishonesty offences."

28 In a second case involving the same applicant, Lloyd (2001), the judicial member said, at paragraph 69: "further time needs to elapse before the community can be confident that Mr Lloyd has undergone genuine rehabilitation."

29 In my view, the community would not yet be confident that Mr Chaudharry has undergone genuine rehabilitation, given that only a relatively short time has elapsed since his convictions in July 2005 and following his failure to notify the Ministry of both when he was charged and when he was convicted of these offences.

30 Mr Chaudharry has provided two character references. The first is a letter from a passenger, dated 19 October 2001, commenting on Mr Chaudharry having been very accommodating and courteous in having contacted her and returned a briefcase left in the taxi he was driving. The second is a reference, dated 17 January 2006, from the owner and operator of a taxi driven by Mr Chaudharry "in the night shift Monday – Friday quite long time", stating that he finds Mr Chaudharry "always decent, polite and honest about his work, during all this time I don’t have any problem or heart [sic] any complaints about him".

31 In my view, there are sufficient doubts as to Mr Chaudharry’s good repute and as to whether he is a fit and proper person to warrant cancellation of his accreditation and authority. Having admitted to his misconduct, and given the circumstances in which the offences were committed, if one accepts Mr Chaudharry’s evidence, it is probable that the likelihood of his re-offending is low. However, insufficient time has passed to be confident of Mr Chaudharry’s genuine rehabilitation and, in my view, the Director-General was justified in cancelling Mr Chaudharry’s accreditation and authority. It may, however, be that within a relatively short period and with further evidence, Mr Chaudharry will be able to satisfy the Director-General of his rehabilitation and that he meets the requirements for the re-issue of his accreditation and his authority.

Decision

32 The Tribunal therefore affirms the decision of the Director-General dated 12 October 2005.