Confos v Department of Transport and Infrastructure [2011] NSWADT 22 (2 February 2011)

Last Updated: 17 April 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Confos v Department of Transport and Infrastructure
Medium Neutral Citation:	[2011] NSWADT 22
Hearing Date(s):	20 January 2011
Decision Date:	02 February 2011
Jurisdiction:
Before:	Magistrate N Hennessy, Deputy President
Decision:	1. The decision of the respondent to cancel the applicant's taxi driver authority is set aside. 2. Pursuant to s 75(2)(b) of the Administrative Decisions Tribunal Act, 1997, the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of the witness 'Lauren' is prohibited.
Catchwords:	Merits review of decision to cancel taxi-authority - sexually explicit conversation with passenger - whether fit and proper and of good repute
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
Cases Cited:	Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33. Nehma v Director General, Department of Transport [2002] NSWADT 242; Bondar v Ministry of Transport [2008] NSWADT 318; Abdou -v- Director General, Department of Transport [1999] NSWADT 98; Mohammed v Director-General, Department of Transport [2000] NSWADT 47; Sikder -v- Director General, Department of Transport [2002] NSWADT 148, Qamar -v- Director General, Department of Transport [2000] NSWADT 92; Tzoudas v Ministry of Transport [2008] NSWADT 350; Reddy v NSW Department of Transport and Infrastructure [2010] NSWADT 200; Georgiou v Ministry of Transport [2007] NSWADT 123; Succar v Ministry of Transport [2009] NSWADT 90; Nikolovski v Ministry of Transport [2009] NSWADT 21. Underabi v Ministry of Transport [2008] NSWADT 349 Gomes v Ministry of Transport [2008] NSWADT 303
Texts Cited:
Category:	Principal judgment
Parties:	Michael Confos (Applicant) Department of Transport and Infrastructure (Respondent)
Representation
- Counsel:	Julian Gormly (Applicant)
- Solicitors:	A Wozniak (Respondent)
File number(s):	103279
Publication Restriction:	Section 75 of the Administrative Decisions Tribunal Act 1997 applies

REASONS FOR DECISION

Introduction

1. Mr Confos has applied to the Tribunal for a review of a decision by the Director General of the Department of Transport and Infrastructure to cancel his taxi driver authority. The basis for that decision was Mr Confos' driving record and the number and nature of complaints that have been made about him. Of particular concern was a complaint by 'Lauren', a female passenger in her 20's. She gave evidence that on a journey between Paddington and the City, Mr Confos related details of two sexual encounters he had had with other female passengers. Mr Confos admits telling Lauren details about a sexual encounter with one passenger. He says he was wrong to have spoken in that way and he will never do it again. He denies that he told her anything about a second encounter with another passenger.
2. On 16 November 2010 the Tribunal stayed the cancellation decision and dispensed with the requirement for an internal review: Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 60 and s 55(3)(b).

Power of Tribunal and test to be applied

3. The Tribunal has power to review the decision to cancel Mr Confos' authority: Passenger Transport Act 1990, s 52. When reviewing that decision, the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: ADT Act , s 63.
4. The test to be applied is whether, having regard to the purpose of the authority, the decision to cancel is the correct decision: Passenger Transport Act , s 33 and s 33F. The purpose of the authority 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.
55 There are three parts to this test: good repute, fitness and propriety and responsibility and aptitude to drive a taxi. Each of these requirements was in issue in these proceedings. The Tribunal must be satisfied 'on the balance of probabilities' before making a finding of fact. Although not bound by the rules of evidence, the Tribunal must only act on evidence that is sufficiently relevant and reliable: ADT Act , s 73(2) and Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33. The gravity of the matters alleged is relevant when determining whether an allegations has been made out: Evidence Act 1995, s 142.

Good repute

Evidence of good repute

5. Mr Confos was admitted as a solicitor of the Supreme Court of New South Wales on 30 June 1972. He practised until about 1995 and then became a licensed conveyancer until 2002. He says he left the law when he became bankrupt and never had a complaint made about him apart from a single matter in respect of the non-payment of counsel's fees.
6. Two solicitors who have known Mr Confos for a considerable period of time, gave character references. Mr Jeweller wrote that he regards Mr Confos as a person of good character, hard-working and conscious. Mr Lyons gave evidence that Mr Confos is not a mean spirited, threatening, foulmouthed or obnoxious person.

Finding on good repute

7. Good repute refers to the estimate of a person's character in the mind of others. It is essentially a subjective test. Mr Confos does not have any criminal convictions and is regarded as being a person of 'good repute' by others in the community. I am satisfied that Mr Confos is a person of good repute.

Responsibility and aptitude to drive a taxi

Driving record

8. Mr Confos is 62 years old and has been driving taxis since 2002. He has been found guilty or convicted of various driving offences including speeding, not wearing a seat belt and making an unlawful U-turn. Mr Wozniak, representing the Department, submitted that Mr Confos had a poor driving record. Mr Confos provided explanations for various traffic offences and said that he has never had been involved in a car accident nor has he been convicted of any offence other than traffic offences.
9. In 1992 Mr Confos' licence was cancelled because of his failure to pay fines. In 1995, he was disqualified for 6 months after his licence had been cancelled, again because of failure to pay fines. He says that he was driving because the cancellation had been sent to the wrong address. He failed to disclose to the Department that he had been disqualified from driving when he applied for a taxi authority on 13 November 2001.
10. On 15 March 2006 the Department sent Mr Confos a warning in relation to his driving record. A second letter was sent on 29 June 2010 warning Mr Confos that he had failed to inform the Department of certain traffic offences, demerit point suspensions and good behaviour conditions on his driver's licence. Clause 44 of the Passenger Transport Regulation 2007 requires taxi drivers to provide the Director-General with details of any offences. Despite receiving that letter, Mr Confos admitted that two weeks later he failed to inform the Department that he had committed the offence of making an unlawful U-turn. Mr Confos said he regrets not providing the Department with that information. He said that he would have advised the Department of any serious offence and that he provides details of all offences when applying for the renewal of his authority rather than at the time. He says that from now on, he will advise the Department of all traffic offences. He was required to attend a Customer Care course in August 2007.

Finding on responsibility and aptitude

11. Mr Confos' provided explanations for some of his driving offences. Those offences are not sufficiently serious or frequent to support a finding that he has insufficient responsibility and aptitude to drive a taxi. The allegations about not informing the Department of offences or disqualifications goes to his fitness and propriety.

Fitness and propriety

Failure to disclose information to the Department

12. Mr Confos failed to disclose information to the Department that he should have disclosed when he originally applied for a taxi authority in 2001 and when he committed various offences thereafter. While he deserves condemnation for these failures, they are not sufficiently serious, by themselves, to justify a conclusion that he is not a fit and proper person to drive a taxi.

Complaints from passengers

13. Fourteen complaints have been made against Mr Confos in the eight or so years that he has been a taxi driver. Three of the complaints were made after Mr Confos had completed the Customer Care course in 2007. Two alleged rudeness and one complained that he tooted his horn in a hotel driveway to attract the porter. Mr Confos provided his version of the circumstances giving rise to those complaints and admitted in relation to one, that he was in the wrong. As none of the complainants gave evidence about the circumstances of these complaints, I am not satisfied as to the allegations in those complaints.
14. Various documents record that officers from Taxis Combined verbally warned, reprimanded and counselled Mr Confos on four or five occasions. Mr Confos denies that he was ever warned, reprimanded or counselled. I accept that he did not receive any 'counselling' in relation to passenger complaints but he did receive written warnings about traffic offences and his failure to advise the Department of those offences.

Lauren's complaint

15. Lauren was a passenger in Mr Confos' taxi on 1 July 2010 at about 6:50 p.m. She was travelling from Paddington to Wynyard. After some initial relatively innocuous conversation Lauren says that:

He then started talking about a job he picked up from the Woollahra hotel last Sunday night, 'a woman that was older, but very attractive, great legs and a short skirt.' He said that he picked her up and she 'came on to him by putting her hand on his crotch'. I didn't say anything because at this point it was very uncomfortable.

He continued by saying that, 'She wiggled her little finger trying to say I have a small one, but hey what do you expect I am sitting down driving a car. I could show her what it's really like.' Again I said nothing but at this point became very concerned for my safety and considered asking him to pull over.

He continued by saying, 'You have to be careful these days in big cities, there are a lot of predators around, you can't walk down the street without someone weird being around. I picked up a girl a couple of weeks back who was put in the back seat by her boyfriend. He chose me because I was older than the other drivers and he thought I was safe. But for argument's sake probably one in 50,000 taxi drivers are probably a predator. If people don't like it they can get out, but they won't get another taxi in this city.

At this point I was extremely worried and was very nervous. The fact that he had identified exactly what I was planning to do (get out of the cab) made me feel very uneasy. I hoped that we would get to Wynyard quickly as we weren't far away.

He then went on to say, 'The other day I met a lovely woman, I picked her up from the city and dropped her in Mosman. She was beautiful, quite young and great legs. We had a great chat, she was a great bit of fun, she told me about a black man she had had the night before, all the details. I dropped her off and I asked her if I could give her my number to have a drink some time. She agreed and then at about 4 a.m. she messaged me and asked me to come over to her house. I washed and drove to Mosman where we had a drink and then before I knew it she was all over me.

At this point we pulled up at Carrington Street Wynyard station. I paid and got out to catch my bus. As you can imagine this experience was incredibly uncomfortable. I felt that he had an ulterior motive and at no point did I encourage the conversation to go down this track. I was glad to get out the cab safely.

16. Lauren gave oral evidence by telephone. She said that she recorded the details of the conversation the same evening and forwarded a formal complaint the following day. It was put to her in cross-examination that if she had felt so uncomfortable she would have got out of the cab. She agreed that there were several opportunities for her to get out at traffic lights and it occurred to her to do so, but she was concerned about what would happen if she tried to get out. In relation to the details of the conversation, she agreed that 'crotch' was her word and that Mr Confos may have said that the woman put her hand between his legs. She explained that her understanding of Mr Confos' reference to holding up a little finger was to indicate that he had a small penis.
17. Mr Confos admits making the comment about the passenger from the Woollahra hotel and also the comment about sexual predators, but denies that he told Lauren anything about an encounter with a passenger who he drove to Mosman. He said that the reference to a black man was part of the story about the woman he picked up from the hotel at Woollahra. Lauren denied that she invented that part of the story relating to the passenger being taken to Mosman or that she confused the first story with the second. She also denied that she was motivated to invent the second story so that Mr Confos would lose his taxi driver authority.
18. When asked if she paid with a card or cash Lauren said she remembers paying with cash but that she asked for a receipt. Mr Gormly, representing Mr Confos, suggested in his final submissions that this was a flourish that Lauren had added. Mr Confos could not remember whether Lauren had paid him with a card or cash.

Findings of fact

19. Mr Confos admitted the substance of the conversation with Lauren in relation to the first passenger who he picked up from Woollahra and in relation to the discussion about 'predators'. I am satisfied that Mr Confos spoke to Lauren in the terms she recorded in those parts of her statement or in terms which were not significantly different. It may well be that she confused whether it was the Woollahra or the Mosman passenger who Mr Confos had said had slept with a black man. Any confusion at that level of detail is insignificant. The substance of the conversation was as she attested.
20. Mr Confos denied that he had a conversation about a passenger he conveyed to Mosman. A friend of Mr Confos, Mr Anderson, who was a regular passenger, expressed the opinion that making sexually explicit comments was completely out of character. A female client, Dr Tavakoli, said she has the utmost confidence in Mr Confos as a taxi driver and has always felt extremely safe and comfortable as a passenger in his vehicle. Another regular female passenger, Ms Orr, said that Mr Confos was pleasant and helpful and that she has never felt unsafe or uncomfortable in his taxi. The operator of the taxi which Mr Confos drives expressed the view that Mr Confos is a safe and reliable driver who is friendly, courteous and polite.
21. Even in the absence of any corroboration of Lauren's version of events, I am satisfied on the balance of probabilities that the second part of the conversation took place as she alleged. None of the general testimonials in support of Mr Confos persuade me that he did not discuss with Lauren the second encounter with the Mosman passenger. Lauren recorded the details of that conversation on the same evening and had no motivation to lie. She gave her evidence in a forthright and confident manner and was willing to concede, for example, that Mr Confos may not have used the word 'crotch'. Nothing put to her in cross-examination cast any doubt on her credibility. I am satisfied that Mr Confos does nor recall this part of the conversation. There is no basis on which I could be satisfied that he is deliberately lying about his recollection, especially in view of the fact that he admitted most of the rest of the conversation.

Findings of fitness and propriety

22. A person's fitness and propriety is an objective test of the person's character. In Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal listed the following factors as being relevant in determining person's suitability and fitness to have a taxi-authority:

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

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

c) the applicant's driving record;

d) the applicant's reputation in the community; and

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

23. I have made findings in relation to each of these matters apart from the second and the last. In relation to the second factor, a survey of many of the cases which have come before the Tribunal involving sexually inappropriate conduct towards passengers reveals that Mr Confos' behaviour is at the lowest end of the scale. Ranging from the most to the least serious, the following examples give a flavour of the kinds of cases where cancellation of a taxi-driver authority has been affirmed because of matters including inappropriate conduct of a sexual nature:

a) where the driver has been convicted of sexual assault of a female passenger: Nehma v Director General, Department of Transport [2002] NSWADT 242; Bondar v Ministry of Transport [2008] NSWADT 318; Abdou -v- Director General, Department of Transport [1999] NSWADT 98;

b) where the driver masturbated in front of a passenger while making sexually explicit comments: Mohammed v Director-General, Department of Transport [2000] NSWADT 47;

c) where the driver asked the passenger if she wanted to have sex while his hand was on his crotch: Sikder -v- Director General, Department of Transport [2002] NSWADT 148,

d) where the driver touched the passengers leg, told her he wanted to have sex with her, asked her for her phone number and told her he would come back to get her: Qamar -v- Director General, Department of Transport [2000] NSWADT 92;

e) where the driver has made sexually explicit comments, touched the passenger's breasts and asked the passenger if she wanted to fuck him: Tzoudas v Ministry of Transport [2008] NSWADT 350; see also Reddy v NSW Department of Transport and Infrastructure [2010] NSWADT 200;

f) where the driver had three complaints of a sexual nature against him including asking asked a passenger for sex for which he would pay and suggesting to another passenger that using lubricant assisted when having anal sex: Georgiou v Ministry of Transport [2007] NSWADT 123;

g) where the driver touched a passenger on the neck and directed her head towards his groin, suggesting that she pay for her fare with a sexual favour: Succar v Ministry of Transport [2009] NSWADT 90;

h) where the driver asked female passengers about their private life, asked her to have lunch with him and held the wrist of another passenger while asking personal questions: Nikolovski v Ministry of Transport [2009] NSWADT 21. The Tribunal found that the driver was unwilling or unable to modify his behaviour;

i) where the driver asked questions about the passenger's relationship with her partner made lewd remarks about what each of his two wives do to him: Underabi v Ministry of Transport [2008] NSWADT 349. The Tribunal found that the driver failed to understand that it is inappropriate for a taxi driver to have such a conversation with a passenger.

24. The nature of the conduct is that Mr Confos made sexually explicit comments about two sexual encounters he had with other passengers and comments about the existence of taxi drivers who were sexual predators. Significantly he did not ask Lauren any personal questions, proposition her, touch her or deviate from the most direct route to her destination. No other complaint of sexually inappropriate conversation has been made against Mr Confos and he has never been convicted of any offence involving such conduct.
25. In relation to the last factor listed in Saadieh , the risk that Mr Confos will repeat this conduct, the Tribunal noted at [18], that:

In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s 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.

26. Mr Confos acknowledged that it was totally wrong of him to have spoken about a sexual encounter with a passenger and he was deeply sorry. He said he did not know why he had made those comments and that it was not part of his nature to talk in that way.
27. While inappropriate, I do not regard Mr Confos' conduct to mean that he is not a fit and proper person to drive a taxi. The conduct, which is at the lower end of the scale, occurred on one occasion and Mr Confos admitted to the substance of most of it. He is deeply remorseful. He does not need to attend another customer care course to understand that such conduct is not to be repeated and that if it is, he stands to lose his taxi authority.

Order

1. The decision of the respondent to cancel the applicant's taxi driver authority is set aside.

2. Pursuant to s 75(2)(b) of the Administrative Decisions Tribunal Act, 1997, the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of the witness 'Lauren' is prohibited.

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