Daniel v Ministry of Transport [2009] NSWADT 30 (10 February 2009)

Last Updated: 16 February 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Daniel v Ministry of Transport [2009] NSWADT 30


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Frederick Daniel

RESPONDENT
Ministry of Transport



FILE NUMBERS:
083309

HEARING DATES:
28 January 2009

SUBMISSIONS CLOSED:
28 January 2009



DATE OF DECISION:
10 February 2009

BEFORE:
Handley R - Deputy President





LEGISLATION CITED:
Passenger Transport Act 1990

CASES CITED:
Singh v Director-General, Department of Transport [1999] NSWADT 96
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

TEXTS CITED:


APPLICATION:
Taxi driver - cancellation of authority

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
A Wozniak, solicitor


ORDERS:
The decision under review is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 This matter involves an application by Frederick Daniel for the review of a decision of the Director General of the Ministry of Transport (‘the Ministry’) to cancel Mr Daniel’s authority to drive a taxi-cab on the ground that he is not a fit and proper person to drive a taxi-cab.

Background

2 Mr Daniel is now aged 45. His traffic record shows that he was first issued with a provisional driving licence on 6 January 1981. Between then and 11 September 1998, when his taxi-cab authority was cancelled for negligent driving, his record shows 31 traffic offences. His record shows a further 5 traffic offences in the period to 13 June 2008. Mr Daniel’s criminal history shows convictions on 3 June 1998 for (1) goods in personal custody reasonably suspected of being stolen, (2) possess prohibited drug, and (3) driving vehicle while disqualified, for which he was fined. He was also convicted of common assault in Liverpool Local Court on 12 January 2005 and fined $400 with costs.

3 Mr Daniel was first issued with an authority to drive taxi-cabs in 1992. On 11 September 1998, he was disqualified from driving for one year for negligent driving. He was re-issued with a taxi-cab authority on 7 June 2002. His authority was cancelled on 12 March 2004 following 25 complaints about his driving behaviour and behaviour towards passengers and other road users. Mr Daniel was reissued with a taxi-cab authority on 12 December 2005.

4 On 5 August 2008, following a further 9 complaints about Mr Daniel’s behaviour, a delegate of the Director General decided to cancel Mr Daniel’s taxi-cab authority on the ground that he is not a fit and proper person to drive a taxi-cab. This decision was confirmed on 9 September 2008 after an internal review. On 16 October 2008, Mr Daniel filed an application with the Tribunal for a review.

The Relevant Legislation

5 The relevant provisions of the Passenger Transport Act 1990 (‘the Act’) are as follows:

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".

(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 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 Daniel’s Evidence and Submissions

6 Mr Wozniak asked Mr Daniel about 36 complaints made concerning his behaviour as a taxi-cab driver made between 18 August 1996 and 10 July 2008. These complaints include incivility, rudeness and abusive behaviour towards passengers, what is loosely described as ‘road rage’ (comprising physically aggressive behaviour), and poor, erratic or aggressive driving. Mr Daniel questioned the accuracy of many of these complaints and was dismissive of others, asking why the Police had not charged him in relation to the incidents if there was evidence of his misconduct. In the case of some complaints, he sought to explain his behaviour by reason of the circumstances, including vindictive complaints by disgruntled passengers. He said he believes people want to get rid of him.

7 With regard to the criminal convictions, Mr Daniel said the offences of which he was convicted in June 1998 related to an incident when drugs were left in his cab. He denied being guilty of the common assault of which he was convicted in January 2005, stating that he pleaded guilty not knowing how else to proceed at that time.

8 The Ministry’s file includes a report from a psychiatrist, Dr Thomas Luong, dated 25 August 2005, in which Dr Luong stated that Mr Daniel first consulted him in June 2004, suffering from the relapse of a depressive disorder that "led him to ‘snap’ at people with little provocation". Dr Luong said that since commencing on antidepressant therapy, Mr Daniel had improved significantly.

9 Mr Daniels also provided a report from a psychologist, Flora Truong, dated 7 November 2008, whom he said he has been seeing every two or three weeks for the past four months. Mr Daniel was referred to Ms Truong by his general practitioner, Dr KCG Ah-Yeung, who has prescribed antidepressants, which Mr Daniel takes daily. Ms Truong refers to Mr Daniel suffering from "[d]epression with symptoms of low mood, difficulties in concentration and irritability", and "[s]tress and worry about situation at work". The treatment given by her has been cognitive behaviour therapy consisting of stress management including problem solving, anger management, and relaxation and mindfulness.

10 Mr Daniel said he is now able to replace negative thoughts with positive thoughts and to problem solve. He is much better than previously. Mr Daniel asked for another chance with taxi driving and said, if given this, he will do his job properly and will not offend again. He will show respect for his passengers and, if there is another complaint about his conduct, he will accept the cancellation of his authority. He needs a chance to prove himself. He is prepared for conditions to be attached to his authority, for example, that he continues having treatment with a psychologist. He will do anything required of him to get his authority back.

11 Mr Daniel produced 36 short references from passengers attesting to the good taxi service they have received from Mr Daniel. These do not refer to the complaints made against him or to the cancellation of his authority.

12 Mr Daniels said he is in financial difficulty. He has only ever worked as a taxi driver and has no experience of other work. He is caring for his elderly parents who lost their house as a result of investments with Karl Suleman. He hopes to buy another house for his family to live in.

The Ministry’s Submissions

13 Mr Wozniak said submitted that Mr Daniel’s financial problems cannot be taken into account. The long history of complaints against Mr Daniel suggests he has difficulty dealing with problems encountered in the course of working as a taxi driver. He has been reprimanded on a number of occasions, both by the taxi network for whom he has worked and by the Ministry, and has previously been given the chance to prove himself. When contacted by officers of the Ministry about complaints, he often gets angry and irate on the telephone, sometimes requiring the officer to terminate the call.

14 Mr Wozniak noted that despite convictions in 1998 and 2005, when Mr Daniel applied for a taxi-cab authority in September 2005, he answered ‘no’ to question 6, which asked whether he had been found guilty or convicted of any criminal offence in the last 10 years. Mr Wozniak said the references Mr Daniel had provided from passengers appeared to have been solicited by him and should not be taken into account in assessing his reputation given that the references do not indicate any knowledge of the history of complaints against Mr Daniel.

15 Mr Wozniak submitted that Mr Daniel is not of good repute or a fit and proper person to be the driver of a taxi-cab.

Discussion

16 Pursuant to section 33F of the Act, the Director General is empowered to cancel a person’s taxi-cab driver authority. The purpose of such an authority stated in section 33(3) includes attesting "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" (s 33(3)(a)).

17 Deputy President Hennessy discussed the meaning of ‘good repute’ in Singh v Director-General, Department of Transport [1999] NSWADT 96: essentially, a person’s reputation is how the community assesses the person’s moral character. The Deputy President 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, where, at [17], she 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 meaning of the phrase ‘fit and proper person’ was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, at [9], where Dixon CJ, McTiernan and Webb JJ found the word ‘fit’, in relation to an office, to involve honesty, knowledge and ability. The meaning of the phrase ‘fit and proper person’ was also discussed in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, where Toohey and Gaudron JJ said, at [36]:

"The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities."

19 As their Honours recognised, at [66], whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed.

20 In terms of Mr Daniel’s reputation in the community, I am unable to attribute weight to the references provided by Mr Daniel given that they appear to have been solicited by him from passengers in circumstances where the passengers appear not to have had any knowledge of the large number of complaints made against Mr Daniel. Acknowledging that Mr Daniel has been unrepresented in these proceedings, I make no finding on the issue of good repute.

21 With regard to whether Mr Daniel is a fit and proper person, the context is that of a taxi-cab driver. I note that while Mr Daniel has a history of traffic offences, the majority of these occurred before his driver’s licence was cancelled for negligent driving in September 1998. He only has five traffic offences recorded in the period between September 1998 and June 2008. His criminal history shows convictions on 3 June 1998 for (1) goods in personal custody reasonably suspected of being stolen, (2) possess prohibited drug, and (3) driving vehicle while disqualified, for which he was fined. He was also convicted of common assault in Liverpool Local Court on 12 January 2005 and fined $400 with costs. In evidence at the hearing, Mr Daniel sought to excuse these convictions and I note that he failed to declare them when applying for the reissue of his taxi-cab authority in September 2005.

22 Mr Daniel has a history of 36 complaints made concerning his behaviour as a taxi-cab driver between 18 August 1996 and 10 July 2008. As stated above, these complaints include incivility, rudeness and abusive behaviour towards passengers, what is loosely described as ‘road rage’ (comprising physically aggressive behaviour), and poor, erratic or aggressive driving. Mr Daniel’s taxi-cab driver authority was previously cancelled on 12 March 2004 on the ground that he failed to meet the required standards for authorisation under section 33(3) of the Act. In the statement of reasons for that decision, the delegate stated:

"A large number of customer complaints against you allege incivility, verbal abuse or intimidation. The public is entitled to be treated with civility by taxi drivers and not be subjected to offensive conversation or verbal abuse. Community confidence in public transport demands that taxi drivers will behave in a fitting manner.

Further there are a large number of customer and driver complaints alleging dangerous driving. All drivers, especially professional drivers of motor vehicles are expected to drive their vehicles within the framework of the traffic laws, [sic] you have shown a flagrant disregard for the road rules."

23 Mr Daniel applied for his taxi-cab driver authority to be restored on 18 September 2005 and it was reissued on 12 December 2005. He must clearly have been on notice about his behaviour following the statement of reasons for the cancellation of his authority in March 2004, quoted above. However, between 12 December 2005 and 10 July 2008, the Ministry received a further nine complaints concerning his behaviour, one of them after he received a ‘show cause’ letter from the Ministry dated 25 June 2008. While I accept that none of these nine complaints led to any police action, and, on occasion, it is possible that exaggerated complaints may be made, the number and pattern of complaints over a period of 12 years indicates that Mr Daniel has difficulty in dealing with certain situations to which he is exposed in his work as a taxi-driver.

24 There is medical evidence that Mr Daniel suffers from depression, for which he takes prescribed medication, and the evidence of his psychologist states that he is receiving cognitive behaviour therapy treatment, including for anger management. Mr Daniel told me at the hearing that he is much better than previously, but I observed that at times he became very agitated, raised his voice, interrupted and had difficulty maintaining control.

25 I am not unsympathetic to Mr Daniel’s plight in that he cares for his elderly parents and has no experience of work other than taxi driving. However, given his history, I am not satisfied on the evidence before me that he is a fit and proper person to hold a taxi-cab driver authority. Even if not all the complaints made against him are true, the pattern emerging from the complaints of incivility, rudeness and aggressive behaviour, both towards passengers and other road users and reflected in his driving, indicates that such behaviour is likely to be repeated. This is not the behaviour the community expects from the holder of a taxi-cab driver authority.

Decision

26 The decision under review to cancel Mr Daniel’s taxi-cab driver authority is affirmed.