Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Sodiki v Roads and Maritime Services [2013] NSWADT 145
• Hearing dates: 5 June 2013
• Decision date: 21 June 2013
• Jurisdiction: General Division
• Before: P H Molony, Judicial Member

Decision

The decision to cancel Mr Sodiki's driver authority is affirmed.

• Catchwords: Passenger Transport - taxi driver authority - cancellation - alleged sexually explicit suggestion by driver - fitness and propriety - repute - public safety
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Passenger Transport Act 1990
• Cases Cited: Abdou -v- Director General, Department of Transport [1999] NSWADT 98; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589; Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65; Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16; Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37; Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448; Georgiou v Ministry of Transport [2007] NSWADT 123.; Haideri -v- Director General, Department of Transport [1999] NSWADT 61; Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127; Inaizi v Roads and Maritime Services [2013] NSWADT 45; Melbourne v The Queen [1999] 198 CLR 1; Pillai v Messiter [No.2] (1989) 16 NSWLR 197; Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392,; Saadieh v Director General, Department of Transport [1999] NSWADT 68; Sikder -v- Director General, Department of Transport [2002] NSWADT 148; Sobey v Commercial and Private Agents Board 20 SASR 70
• Category: Principal judgment
• Parties: Vilame Sodiki (Applicant); Roads and Maritime Services (Respondent)
• Representation: Sydney Legal Practice Pty Ltd (Applicant); Smythe Wozniak (Respondent)
• File Number(s): 133154

reasons for decision

Introduction

1 Mr Sodiki holds an authority to drive a taxicab issued under the Passenger Transport Act 1990 (the PTA).

2 On 14 May 2013 he received a notice from Roads and Maritime Services (the Agency) advising of a decision to cancel his authority. The Agency was satisfied of the validity of a complaint that Mr Sodiki had sexually propositioned a 17-year-old male who was travelling in his taxi on 26 March 2013. The decision also cited as a reason for cancellation a series of 11 past complaints regarding Mr Sodiki going back to April 2002.

3 Mr Sodiki was first issued with an authority to drive a taxicab on 16 June 2000. He most recently renewed his authority and paid the applicable fee on 2 May 2013. All of the prior complaints relied on by the Agency were made before it sent him the recent renewal notice.

4 On 16 May 2013 Mr Sodiki applied to this Tribunal to review the decision of the Agency to cancel his authority, and to grant a stay of the cancellation decision until his review application was heard. At a hearing on 21 May 2012 I decided to deal with the application despite the fact that an internal review had not been sought under s 55(3) of the Administrative Decisions Tribunal Act 1997. I then refused Mr Sodiki' s stay application and listed the matter for an expedited hearing on 5 June 2013.

Material before the Tribunal

5 The material considered by the Tribunal in this case consists of:

• The Agency's original decision to cancel Mr Sodiki's authority.
• Mr Sodiki review application and application for a stay.
• The section 58 documents filed by the Agency.
• The transcript of a record of interview conducted on 2 May 2013 between Compliance Officers Nagpal and Hickey and Mr Sodiki.
• Three photographs downloaded from the onboard video equipment on Mr Sodiki's taxi.
• Affidavits going to Mr Sodiki's reputation sworn by Marcia Echegaray, Wayne Doohan, Michael Wilson and Reena Naidu.
• The sworn oral evidence of the mother of the youth concerned, and of Compliance Officers Nagpal.
• Mr Sodiki did not give evidence to the Tribunal.

The events of 26 March 2013

6 The material demonstrates that there are two versions of the events of 26 March 2013.

7 The agency relies on a statement obtained from the unidentified youth who initially voiced the allegations against Mr Sodiki. He remains unidentified and did not give evidence. There is a statement from him in the s 58 documents from which all identifying information relating to him has been redacted. Relevantly it says that he is aged 17 and that:

ON 26 March 2013 at around 9:18pm, I was waiting at a bus stop near Homer Street, Earlwood. A taxi stopped and I told the driver I had no money and I was going to Marrickville he said jump in im going that way and I will drop you. He made small talk and advised me he "was bisexual" and further said "do you need money" and then offered that I could "make $60 if I gave him a headjob."

8 The Agency called evidence from a woman who identified herself by name and as the mother of the complainant. She had no personal knowledge of the events. She could say that her son complained about a taxi-driver making improper sexual suggestions to him on his return home on the evening of 26 March 2013. She believed him. She said that he appeared shaken and told her that he was traumatised by the events. He had not complained of being robbed or having his personal property damaged.

9 The agency called Compliance Officer Nagpal. He produced the GPS records and photographs downloaded from Mr Sodiki's taxi. The GPS records downloaded from the taxi demonstrate that it was in Homer Street, Earlwood at "21:15:51" on 26 March 2013, and approaching Marrickville Station in Illawarra Road (which continues on from Homer Street) at "21:22.21". The vehicle is past the station on Illawarra Road, approaching Marrickville Road, at "21:23;51".

10 Three photographs were downloaded from the onboard video equipment on Mr Sodiki's taxi and are timed at:

(a) 26-3-2013 at "10:19:34 - 22 UTC" which shows a male person in front of a house;

(b)26-3-2013 at "10:20:34 - 22 UTC" which shows a male person sitting in a bucket seat and holding a mobile phone to his face; and

(c) 26-3-2013 at "10:23:04 - 21 UTC" which shows a male person walking away from the camera. Each of the photos also shows a GPS position.

11 The male person in each photograph may be the same, although the person in photo (a) is wearing a different top to the individual in the other photos, The individual in photo (a) has a shoulder strap over his shoulder similar to that of the individual in photo(c). In none of the photographs is the individual wearing a hoodie.

12 The GPS records are consistent with the journey described by the youth. The photographs, while they may be of the youth and were downloaded from Mr Sodiki's taxi, do not of themselves demonstrate that they are of the youth. No evidence was called to identify him from the photographs. I am unable to reconcile the times on the photographs with those on the GPS records.

13 The Agency also relied on the record of interview wit Mr Sodiki in which denied the version of events communicated to the Agency by the youth's mother. Mr Sodiki denied the substance of those allegations. He agreed that he had picked up a youth, who told him that he had been robbed, in Homer Street on 26 March 2013. He took him to Marrickville Station without charging a fare. The youth, who was wearing a hoodie, had flagged him down. He told the Compliance Officers that as the journey progressed he became increasingly anxious. The youth told him he had been robbed and showed him his phone, which was had a broken screen. He thought the youth had been drinking. The youth said he needed money. Mr Sodiki said he became concerned that the youth might rob him.

14 The following interchange took place between Mr Sodiki and the officers interviewing him, starting at page 12, line 13, of the record of interview:

Officer Hickey: So he asked you for the money.

Mr Sodiki; Yeah and then I, then I say a mate of mine, a mate of mine is bisexual, he will give you a blow job and you give him money for it. So by that ...

Officer Nagpal: You said that to him.

Mr Sodiki: Yeah, So by, by and the same time I was thinking maybe he wants to rob me or something, so better just, you know so he can ah, so by the time we, we got to the station and then I goes to him, "Excuse me, where you want to get off."...

15 When questioned about the youth's age Mr Sodiki put at 18, 19 or 20.

16 Later, commencing at page 16 line 13, the following exchange took place:

Officer Nagpal: Okay, So why would you say, when, when he asked you for the money, why would you say that your mate was bisexual and you know he will give you money for a blow job? It's very, very unusual, very unheard of someone saying like that, or excuse ...

Mr Sodiki: Some people, some people, some people do, some, some, some customers offer me to give them blow job, they go give me money.

Officer Nagpal: So why would you think that he made any comments towards you or said anything that you thought he was bi-sexual?

Mr Sodiki: In just conversation there, just to try to ah, ah you know, have a conversation till where is his destination and then I can get rid of him.

Officer Nagpal: Yeah. It's very, very unusual someone using that sort of conversation, saying I've got a mate...

Mr Sodiki: Well I mean, I was, I was telling ...

Officer Nagpal: ...who is bisexual, he will give you blow job for money.

Mr Sodiki: ...I was telling him jokingly, I was telling him jokingly ...

Officer Nagpal: Hmm.

Mr Sodiki: ... so ah, I didn't have any intention or anything. I just tell him jokingly so I can just reach the destination and get, get rid of him and that's exactly what I did. We reached the place and I asked him, "Excuse me, where are you getting off.?" And he say, "Here." So he got ...

17 Compliance Officer Nagpal agreed that Mr Sodiki had participated in the record of interview voluntarily. He said that the complaint had come from the youth's mother and that he had never spoken with the youth. The redacted statement had been sent so it could be completed by the youth, and returned in its present form (before redactions).

18 Compliance Officer Nagpal said that after concluding his investigation he had recommended that Mr Sodiki be warned and be required to undergo further training. His recommendation was overruled by his superior who could not attest that Mr Sodiki was fit and proper.

19 Mr Sodiki did not give evidence on his own behalf during the hearing. Mr Culbert, who appeared for the Agency, commented on this saying that he had been deprived of the opportunity to cross-examine Mr Sodiki and put a series of allegation to him. It is not incumbent on an applicant in proceedings such as these to give evidence and expose him or herself to cross-examination. Experience has shown that to be a two edged sword: yielding credit and advantage to applicants in some cases, but with disadvantageous outcomes in others.

Consideration

20 In my opinion the material before the Tribunal is not of sufficient weight to allow me to make findings in accordance with the allegation relied on by the Agency. The youth was not called to verify his statement. The evidence of the youth's mother is hearsay, and in my opinion, should not be given any weight. In his record of interview Mr Sodiki denied the allegation, although he did make admissions in relation to what he says he did propose to the youth on that night.

21 While Mr Sodiki's version of events strains credulity it is does contain admissions by Mr Sodiki against his own interest, on which I am satisfied I can rely.

22 As a consequence I am satisfied that the events that occurred on the night of 26 March 2012 are those Mr Sodiki told the Compliance Officers about in the record of interview. I do not accept that the events that occurred were those outlined in the youth's statement.

23 The events that Mr Sodiki agreed to involved him, as the holder of an authority to drive a taxi-cab, making an improper sexual suggestion to a 17 year old youth. He effectively invited the youth to prostitute himself. Mr Sodiki made that suggestion in the course of his duties while driving a cab, albeit his passenger did not pay a fare. Mr Sodiki's motive for making the suggestion are unclear. He first said he made them because he was fearful, and later said that the comment was made jokingly. Whatever the motive, be it one of those suggested by Mr Sodiki or an attempt to procure, the suggestion he made was totally inappropriate, and should not have been made by him in any context, let alone by a taxi driver to his passenger.

24 Section 33(3) sets out the purpose of an authority -

(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.

25 Section 33F provides that "RMS may at any time vary, suspend or cancel any person's authority."

26 In determining a review of a decision to cancel an authority the Tribunal's focus is not on disciplining or punishing the authority holder, but on protecting the public interest. As Kirby P explained in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201, albeit he was concerned with a medical practitioner:-

"... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..."

27 Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.

28 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:

'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.'

Toohey and Gaudron JJ said at 380:

"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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

29 A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court said (at 156-7):

"The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

30 In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:

"In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."

31 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.

32 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are:

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

33 The role that the perceptions of the travelling public play when making assessments of character and reputation was 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) 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.

34 In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 a differently consitutied Appeal Panel agreed with this approach but added that public perceptions have a role to play when assessing "repute" given the objects of the PTA, particularly that in s 4(e) -

... to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and

The Appeal Panel said at [67]

The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....

It aslo emphasised the greater role that public perceptions have when determining decisions to suspend, rather than cancel, a driver authority.

35 The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."

36 As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:

'A distinction must be drawn between "repute" or "reputation" and

"character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts."

In Melbourne v The Queen [1999] 198 CLR 1 at 15 McHugh J explained:

"... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person."

37 In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character:

"... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation."

That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the applicant was a man of good character:

"... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279."

38 Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:

'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.

39 In the present case the regulated activity is that of a taxi driver providing taxi services in a large and very busy city. When doing so, drivers are entrusted with ensuring the safety and comfort of their passengers. Those passengers are of diverse ages and backgrounds, and some are more vulnerable than others.

40 In the present case I am satisfied that the real cause underlying the decision to cancel Mr Sodiki's authority are the events of 26 March 2013. While the Agency also relied on Mr Sodiki's complaints and driving history the reality is that those matters alone did not caused it to move against his authority, as the renewal of his authority in May 2013 demonstrates. In my view, the real issue is whether in the light of the events of the night of 26 March 2013 the correct and preferable decision is to cancel Mr Sodiki's driver authority.

41 In Haideri -v- Director General, Department of Transport [1999] NSWADT 61 the Tribunal considered the case of a taxi driver who was convicted of failing to behave in an orderly manner and with civility and impropriety towards a passenger under section 24(b) of the Passenger Transport (Taxi-Cab Services) Regulation 1995. The driver had spoken to the passenger in a sexually explicit manner and propositioned her. In affirming the decision to cancel the driver's authority Hennessey DP said at [24]:

"The findings of fact by the Local Court, which the Tribunal has accepted, are sufficient to establish that the applicant has not behaved in an orderly manner or with civility and propriety. I would go further than this. The applicant's conduct constitutes a serious case of sexual harassment. In my view, the public would be justifiably outraged if they knew that a taxi was being driven by a person found to have behaved in such a manner. Because the applicant denied that he engaged in such conduct, he has not pointed to any matter which would tend to put this behaviour in a different light."

A similar conclusion was reached in Georgiou v Ministry of Transport [2007] NSWADT 123.

42 In Abdou -v- Director General, Department of Transport [1999] NSWADT 98 the taxi-driver had been convicted of an act indecency when he placed his hand on the breast of a female passenger. Wilson JM at [15] referred to the decision on Haideri and concurred with the sentiment that:

"... where an applicant's conduct constitutes a serious case of sexual harassment the public would be justifiably outraged if they knew a taxi was being driven by a person found to have behaved in such a manner. In that case the sexual harassment consisted only of verbal indications of sexual activities that the driver desired to engage in. The more so in this case where the actions went past the verbal and to the physical and resulted in a criminal conviction."

43 In Sikder -v- Director General, Department of Transport [2002] NSWADT 148 the complaints related to a taxi driver who had engaged "in a pattern of conduct, especially in relation to female passengers, which displays rudeness, dishonesty and the use of sexual innuendo." The Tribunal observed that at [31], "These characteristics are totally unacceptable to the travelling public."

44 More recently in Inaizi v Roads and Maritime Services [2013] NSWADT 45 a case in which a driver had made inappropriate comments of a sexually explicit nature to a sole female passenger, Huntsman JM wrote, at[ 65] -

... The authorities indicate that the tribunal should have regard to the objects of the Act, in assessing fitness and propriety, and 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)). To allow taxi drivers to continue to be authorised who have been sexually inappropriate to a female passenger and placed that passenger in fear, is not consistent with the objects of the Act. Having regard to the sexually inappropriate conduct in the course of the regulated activity to a female passenger alone in the taxi at night, the tribunal cannot attest to the applicant being a fit and proper person to be authorised to drive a taxi cab, nor can the tribunal attest to the applicant having sufficient aptitude to drive the vehicle in accordance with law and custom. For these reasons the tribunal finds that the applicant's authority to drive taxicabs should be cancelled and accordingly the decision of the respondent should be affirmed.

45 In my view the Judicial Member's comments are equally applicable irrespective of the gender or sexual orientation of the passenger.

46 In the present case there is no direct evidence as to the impact of Mr Sodiki's suggestion of oral sex for money had on the youth. There is hearsay evidence that he was shaken and traumatised. This is not a situation like Inaizi where there is direct evidence that the suggestion put Mr Sodiki's passenger in fear. Despite that, the fact that Mr Sodiki's comments were directed to a 17-year-old youth is, in my view, a circumstance which aggravates the seriousness of Mr Sodiki's admitted misconduct. Much like the situation where sexually explicit remarks are directed at single female passengers, an unaccompanied youth is in a vulnerable position when travelling in a cab. The public reasonably expects that they can do so free of sleazy suggestions and sexualised language and/or conduct from taxi drivers.

47 For Mr Sodiki it was said that he deserved credit for his honesty when interviewed by compliance officers, and for the fact that there were no prior complaints of a similar nature made against him.. He had candidly admitted to what was said to be a "stupid remark" he had made to the youth. I do not accept that characterisation of what was a totally unacceptable thing for a taxi driver to say to any passenger, let alone a 17-year-old youth. I do accept that without his admission to the compliance officers the Tribunal may well not have been satisfied that Mr Sodiki engaged in misconduct when he made the suggestion to the youth. I also accept that this is the first complaint of sexual misconduct.

48 I note that because he elected not to give evidence there is no direct evidence as to how he now views the events of that night from which I might make a judgment as to contrition, or as to him having learned his lesson.

49 Having regard to the sexually explicit nature of the suggestion that Mr Sodiki made to a youth, alone in his taxi at night, I am not satisfied that Mr Sodiki is a person of good repute, or that he is a fit and proper person to hold a drivers authority.

50 The affidavits as to character that Mr Sodiki relied on to prove his generally good reputation and standing in the community in which he moves, do not assist me. None of those otherwise favourable references makes any reference to the deponents being aware of what Mr Sodiki was alleged to have done, or of what he admitted to. While Mr Sodiki instructed his solicitor that the referees were aware of those matters, that assurance is one I have some difficulty accepting. The glowing comments in the affidavits betray no sign of the authors being aware of the serious and sexual nature of the conduct in issue.

51 Mr Clarke for Mr Sodiki submitted that a cancellation of his authority was a harsh penalty for his offence, and argued that the Tribunal should adopt the censure originally suggested by Compliance Officer Nagpal, and require Mr Sodiki to undergo further training.

52 Given the conclusion I have reached with respect to Mr Sodiki's repute and fitness, that is not an option available. As I cannot attest to Mr Sodiki's good repute, or to his fitness and propriety as the driver of a taxicab, his authority should be cancelled.

53 As a consequence I am satisfied that the correct and preferable decision is to affirm the decision of the Agency to cancel Mr Sodiki's driver authority.

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Decision last updated: 21 June 2013