Ware v Director General, Transport NSW [2011] NSWADT 189 (8 August 2011)

Last Updated: 11 August 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Ware v Director General, Transport NSW
Medium Neutral Citation:	[2011] NSWADT 189
Hearing Date(s):	20 July 2011
Decision Date:	08 August 2011
Jurisdiction:	General Division
Before:	P H Molony, Judicial member
Decision:	Set aside the decision under review.
Catchwords:	Passenger Transport Act - taxi-cab authority - suspension
Legislation Cited:	Passenger Transport Act 1990
Cases Cited:	Bidewy v Ministry of Transport [2008] NSWADT 31 Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Hayden-v- Ministry of Transport [2008] NSWADT 261 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Nasour v Director-General, Transport NSW [2011] NSWADT 91 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director General, Department of Transport [1999] NSWADT 68
Texts Cited:
Category:	Principal judgment
Parties:	Maurice Ware - Applicant Director General, Transport NSW - Respondent
Representation
- Counsel:
- Solicitors:	Marsdens Law Group (Applicant) Smythe Wozniak Solicitors(Respondent)
File number(s):	113108
Publication Restriction:

REASONS FOR DECISION

Introduction

1. Mr Ware is the holder of an authority to drive a taxi-cab issued under the Passenger Transport Act 1990 by Transport NSW (the agency). Mr Ware has been driving taxis since the middle of 2009.

2. On 28 February 2011 the agency advised Mr Ware in writing of a decision to suspend his authority. The reason given for the suspension was that, through data matching with the NSW Police, it had been established that he had been charged with two counts of indecent assault where the victim was under the age of 10.

3. Mr Ware sought an internal review of that decision on 25 March 2011 and made submissions to the internal review. On 18 April 2011 the internal review affirmed the decision to suspend Mr Ware's taxi authority.

4. On 2 May 2011 Mr Ware applied to the Tribunal to review the decision. On 31 May 2011 he made an application for a stay of the suspension decision. A stay was ordered until final determination.

The hearing

5. Mr Ware's appeal was listed for hearing before me on 20 July 2010. He was represented by Mr Tunks, and the respondent by Mr Wozniak. The evidence before the Tribunal consisted of:

Mr Ware's affidavits sworn 20 May 2011 and 3 June 2011

The respondent's s 58 documents

6. Both parties made submissions, following which I reserved my decision.

Consideration

7. The decision to suspend Mr Ware's taxi authority was made under s 33F of the Passenger Transport Act 1990 which provides that having regard to the proposes of an authority, an authority may be suspended or cancelled. The purposes of authority are set out in s 33(3) -

(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.

8. There is no dispute that -

The charges brought against Mr Ware are serious criminal charges.

The charges relate to events alleged to have occurred at an unspecified time in 1999.

Mr Ware denies the charges, intends to plead not guilty, and to contest the allegations made against him.

If convicted, Mr Ware is likely to be imprisoned.

Mr Ware does not have a criminal record.

Mr Ware has been driving a taxi since 2009.

9. The decision made by the agency to suspend Mr Ware's taxi authority was made as a result of him being charged with serious criminal offences. The suspension is, on its face, indefinite: no time is specified in either the original decision or the decision internal review for it to be reconsidered. Mr Wozniak submitted said that it should be understood as a suspension, made in the public interest, pending the outcome of the criminal proceedings.

10. There is no evidence before me as to when the charges will be heard.

11. It is not the province of the Tribunal in considering a review of a decision to suspend a taxi authority to examine the strengths or weaknesses of the prosecution case against an authority holder: Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 at [22]. As was the case in Farquharson, here the objective seriousness of the charges brought against Mr Ware is the reason for the agency's decision to suspend his taxi authority.

12. In Farquharson the President found that the agency, and the Tribunal on review, should take account of the ' likely perceptions of the travelling public' when considering exercising the discretion to suspend an authority. In so doing he broadly relied on the decision in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165. He said, at [29] -

The administrator in this case was entitled, I consider, to have regard to the serious charges laid against the applicant. They may be properly regarded as affecting his "good repute" even though judgment may need to be reserved as to whether any negative conclusion should be formed about fitness and character, pending evidence at committal and trial, and the verdict.

13. The role that the perceptions of the travelling public play when making assessments of character and reputation was recently considered by an Appeal Panel in Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16, at [20]:

When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public

14. In Nasour v Director-General, Transport NSW [2011] NSWADT 91 the President having referred to the decision of the Appeal Panel in Murray wrote, at [31-34]:

The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson , ... The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known.

However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)).

A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13].

A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'.

15. In Mr Ware's case the decision made on internal review was that, as a result of the criminal charge, he is not a fit and proper person to drive a taxi-cab. In my opinion the fact that he has been charged with a serious offence, without more, does not justify the drawing of an adverse conclusion as to his character. As the President said in Farquharson it is preferable to reserve judgment on Mr Ware's intrinsic character until more is known. Acquittal, of itself, will not necessarily determine the issue especially where it is not on the merits: ( Farquharson at [28]).

16. Rather, the issue is whether the fact of the criminal charge alone so impacts on Mr Ware's repute, or his aptitude and responsibility, so as the justify an adverse finding with respect to those matters meriting the suspension of his taxi authority.

17. An assessment of whether a person is of good repute, requires the assessor to consider how "reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt" ( Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37). The fact of criminal convictions is not determinative of the issue, although they are an important consideration: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at 402. A simple assertion that a person is not of good repute, without more, is therefore of little assistance.

18. Waddell J explained in Re T at 389 that reputation:

"...is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the

persons in such a group are generally, although not necessarily

unanimously, agreed. It is this essential nature of reputation which

makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence , 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore , a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 et seq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character.

19. Reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that:

'... evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation."

20. In this case there a number of references before the Tribunal which attest to the good repute in which Mr Ware is held by those with whom he associates, including those who use his taxi services. While these references do not expressly address the nature of the charges against him, the agency accepted that three personal referee's had been contacted and told of the charges, and maintained their view of Mr Ware's reputation. Despite this, the agency submitted that the perception of reasonably-minded members of the public would be that, because of the charges alone, Mr Ware should not be allowed to continue to drive until the charges against him are determined.

21. During the hearing reference was made to two earlier decisions of the Tribunal in Hayden-v- Ministry of Transport [2008] NSWADT 261 (relied on by the agency) and Bidewy v Ministry of Transport [2008] NSWADT 31 (relied on by Mr Ware).

22. In Hayden the authority holder had been charged with the offence of sexual intercourse without consent, which was denied and would be contested. He had an unblemished record. The facts giving rise to the charge, while recent, did not relate to his work in the taxi industry. The Tribunal agreed with the agency that, at [30]. "the objective seriousness of the charge against the applicant is such that a reasonable member of the travelling public will object to the applicant as the driver of a taxi in which there were travelling as a passenger."

23. In Bidewy the agency had suspended the taxi authority of a driver who had been charged with a failure to behave in an orderly manner towards a passenger. It was alleged he had offered her a free ride if she gave him a "head job" or "hand job" or watched him masturbate. The allegation was denied and would be contested. The driver had an unblemished record. The Tribunal considered the factors in Saadieh v Director General, Department of Transport [1999] NSWADT 68, at [17] namely -

• "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; and
• the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences."

24. The Tribunal concluded-

19 In Mr Bidewy's case, there is a charge in relation to one incident involving alleged sexually explicit words spoken to the passenger, to which Mr Bidewy has pleaded not guilty, strongly denying the allegation made. The hearing of that matter, which has been delayed on a number of occasions, is listed for 5 February 2009. While I accept that in the context of regulating the conduct of taxi drivers, such conduct, if proved, is a serious matter, I note that in three years of taxi driving, Mr Bidewy otherwise has a clean record. He has supplied references from a doctor, a registered tax agent and the director of a proprietary limited company who all attest to his being a hard working, honest man of good character.

20 I also note that nine months passed from the time Mr Bidewy was interviewed by the Ministry in relation to the alleged incident - on 21 December 2007, to the time of the decision to suspend his authority on 25 September 2008. Two months have now passed since the time of that suspension. A final decision on Mr Bidewy's taxi driver authority will await the outcome of the hearing of the incivility charge on 5 February 2009, in over two months time. I find that Mr Bidewy's wife and four children are dependent upon him for financial support and accept that the suspension of his authority in circumstances where this is the only employment he knows in Australia, is causing him and his family financial difficulties.

25. In my view neither of these cases is directly applicable to the current circumstances. In Hayden only a short time that had passed between the allegations being made and charges laid against the driver: the conduct alleged was recent. Here the conduct giving rise to the charges is said to have occurred some 12 years ago, and there is no allegation of improper conduct or impropriety since. The conduct, which was subject to the charge in Bidewy, had taken place in the regulated environment, but was objectively less serious that that alleged in Hayden or here. While the agency submitted that delays in making the suspension decision were a principal factor underlying the Tribunal's decision to set it aside, I do not accept it was the principal factor.

26. In Mr Ware's case there is no doubt that the charges laid against him are objectively serious. They are not, however, recent and did not occur in the regulated environment of the taxi industry. There is no suggestion of any allegations of misbehaviour or impropriety by him in the 12 years since those events are alleged to have occurred, or, indeed, before then. He is 65 years old, Importantly, no suggestion of misbehaviour or impropriety had been made against him in the context of the taxi industry. Mr Ware intends to fight the charges against him. It is likely to be a considerable time before they are heard. His record as a taxi driver is a good one. The direct evidence I have concerning Mr Ware's repute, shows that despite the charges levelled against him, he is well regarded by those with whom he associates, including persons who use his services as a driver. There is nothing in the evidence before me which points to a likelihood of Mr Ware misbehaving, committing improper acts or offences, now or in the period leading up to his trial, either generally or in the context of the taxi industry.

27. In those circumstances I do not accept that the perceptions of a reasonably minded member of the public would be such that they would necessarily or obviously object to Mr Ware as a taxi driver, although I do accept that some might. What limited evidence I have from those who do use his services, suggest that this is not the case. The likely perceptions of the public, while relevant to an assessment of whether a driver is of "good repute" or has the 'aptitude and responsibility' to continue driving, are not determinative of the issue.

28. In Mr Ware's case I am not persuaded that the likely perceptions of some members of the public outweigh the other factors to which I have had regard. The charges against Mr Ware in these circumstances are, in my opinion, insufficient to justify a finding that he is not of good repute, or that he no longer has the 'aptitude and responsibility' to continue driving a taxi-cab.
29. In my view, the correct and preferable decision is to set aside the decision under review and thereby lift the suspension of Mr Ware's authority with immediate effect.

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