CITATION: Armani -v- Director General, Department of Transport [1999] NSWADT 20 DIVISION: General APPLICANT: Robert Armani RESPONDENT: Director General, Department of Transport FILE NUMBER: 993020 HEARING DATES: 03/26/1999 SUBMISSIONS CLOSED: 03/26/1999 DATE OF DECISION: 7 April 1999 N Hennessy - Deputy President BEFORE: PRIMARY LEGISLATION: Passenger Transport Act 1990 APPLICATION: - MATTER FOR DECISION: Principal matter Applicant: J Punch of Counsel REPRESENTATION: Respondent: P Culbert, Solicitor, Department of Transport ORDERS: 1. The decision made by the delegate of the Director General of the Department of Transport dated 10 March 1999 refusing the applicant's application for a taxi authority is set aside; and 2. The decision that a taxi authority be granted to the applicant subject to the applicant's compliance with the Department of Transport's current training policities is substituted. History of application 1 On 6 December 1998 Mr Armani applied to the Department of Transport for a taxi-cab authority which would authorise him to drive a taxi. On 13 January 1999 the Director General's delegate refused this application on the basis of Mr Armani's criminal record. On 1 February 1999 Mr Armani lodged an application for review of this decision with the Tribunal. The Tribunal asked the Department to conduct an internal review of their decision. The result of that review was that the decision to refuse the authority was affirmed on 10 March 1999. Issues and legislation 2 The Passenger Transport Act 1990 (NSW) s 12 gives the Director General a discretion to grant authorities, having regard to the purpose of that authority. Sub-section 11(2) sets out the purpose of an authority in the following terms: 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 public passenger vehicle; and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated; and (ii)in accordance with law and custom. 3 Pursuant to the Passenger Transport Act 1990 s 52(1) a person whose application for such an authority has been refused may apply to the Administrative Decisions Tribunal for a review of that decision. 4 The representatives for both parties agreed that an administrator, in this case the Director General's delegate, has a wide discretion to grant or refuse a taxi authority but that the decision must be made in the context of the responsibilities and community expectations of taxi drivers. Mr Culbert, representing the respondent, outlined some of these responsibilities and expectations. He said that in the context of this case the responsibility to be honest in any dealings with passengers was of primary importance. These dealings include charging the correct fare, filling in the correct amount on incomplete dockets, travelling by the most direct route and reporting lost property. Mr Culbert submitted, and the Tribunal accepts, that many people travelling in taxis are particularly vulnerable to being cheated by dishonest drivers. Vulnerable groups include: people with an intellectual or mental disability who may not be able to detect or report dishonesty; tourists who are not familiar with Australian currency or the most direct route to their destination; and people from a non-English speaking background who may not be able to communicate effectively with the driver. 5 Another responsibility of taxi drivers is to provide honest answers to questionnaires or other inquiries made by the Department. For example, taxi drivers must submit a medical certificate every two years. The Department must be able to rely on the answers given in those certificates as being an accurate account of the state of their health. 6 The issue in this case is whether, in the light of the responsibilities and expectations of a taxi driver, the applicant is a "fit and proper person" to hold a taxi authority. Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that: "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." 7 The Tribunal must decide whether the Director General's delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law. In determining an application the Tribunal may affirm, vary or set aside the decision. (Administrative Decisions Tribunal Act 1997 s 63) The evidence 8 The applicant's representative called two witnesses; Mr Robert Armani (previously known as Iyad Ahmad), and his father, Mark Ahmad. The respondent did not call any witnesses but relied on the contents of the Department's file. 9 Mr Armani gave evidence that he was born on 11 October 1976 and is twenty-two years old. He attended Waverley College and obtained his Higher School Certificate in 1994. Since that time he has had several jobs. He worked at Woolworths as a cashier for about nine months; at the G'day Café as a waiter for six months; at Sportscar World Rentals Pty Limited as a detailer for about six months; and at a furniture store at Flemington markets cleaning and delivering furniture on weekends for about two years. Mr Armani said that he had been unemployed since November 1998 but was looking for work. 10 Mr Tarek Ayoub, the Manager of the G'day Café, wrote a reference for the applicant in which he said that Mr Armani had worked as a customer service assistant and cashier and that he was "always polite, honest, punctual and reliable." Mr Ayoub is a family friend who was aware when he employed Mr Armani that "he had been in trouble with the law." 11 Mr Charlie Touma wrote a reference for Mr Armani saying that during his employment with Sportscar World Rentals his duties involved car detailing, customer service and handling cash. He found Mr Armani to be "trustworthy, punctual, honest and hard working." Mr Armani said he sometimes found things in cars such as CDs, tapes, sunglasses and mobile phones and that he always handed them in. In cross-examination Mr Armani agreed that people who rented cars would be able to identify the car in which they left their belongings whereas people who left their belongings in a taxi were unlikely to be able to identify the taxi. In re-examination Mr Armani said that he was not influenced by that knowledge and that he handed back the lost property "because it was the right thing to do." He also agreed that Mr Touma had not mentioned his criminal convictions in the reference but denied that Mr Touma did not know about those offences. 12 It appears from a letter on the Department's file from Mr Karnib of Legion Cabs that Mr Armani was employed as a casual Driveway Attendant from 3 March 1997 to 6 May 1997. 13 There was no dispute that Mr Armani has been convicted of four criminal offences. The first conviction was on 23 June 1994, when he was aged 17 years, for stealing a car. The Lidcombe Central Court convicted him of "Take and Drive Conveyance" and "Possess Implement for Enter." He was placed on a good behaviour bond for nine months. Mr Armani's explanation of this incident was that he was with two friends when they made an "on the spot" decision to steal a car. One of the friends had a key to another car which opened the door of the car and started the engine. Mr Armani and his friends were pulled over by police and admitted that the car was stolen. 14 On 18 September 1995 Mr Armani was convicted of a second offence, namely stealing $1200 from a cash register. Mr Armani said he went into a car repair shop to make a phone call. The shop was ten minutes drive from his home and he had been there before to buy batteries and other car parts. He knew the people who ran the shop. When a person opened the cash register to give him change for the phone, Mr Armani said he saw the money. After the person left the room Mr Armani took the money and left. Because he thought he may have been recognised he drove his car to Bondi Beach and reported to the police that it had been stolen. He admitted that he did this so that he would have an alibi if he was accused of stealing the money. When pressed by the police he confessed to stealing the money and lying about the car having been stolen. The District Court convicted Mr Armani of "Stealing" and "Make False Representation leading to an Investigation" and placed him on a good behaviour bond for two years. In cross examination Mr Armani said that he needed the money because he was using cannabis and ecstasy at the time. He said that he has not used illegal drugs since he was 20. 15 The third offence involved Mr Armani and two friends breaking into a house across the road from Mr Armani's home and stealing a television and a video. Mr Armani and his friends were not detected for this offence at the time. Some time later they were apprehended by police while attempting to commit another offence. Mr Armani gave evidence about the fourth offence saying that in January 1996 he and two friends decided to break into the house two doors from Mr Armani's house. The two friends had reached the house while Mr Armani was still in the next door neighbour's back yard. Mr Armani was apprehended by police before he joined his friends but admitted to police that he was intending to participate in the break in. During the investigation of this offence Mr Armani also admitted having previously broken into the house across the road. He pleaded guilty to the offence of "break and enter" and was convicted by the District Court who ordered him to perform 250 hours of community service. He pleaded not guilty to the fourth charge of "Enter Land/building with Intent" on the advice of his barrister, however he was convicted of this offence by the Local Court on 25 November 1996 and placed on a good behaviour bond for two years. 16 During cross examination Mr Armani said that he knew that a family with two children lived in the house across the road which he had burgled. He also said he knew the neighbours two doors down. 17 Mr Armani told the Tribunal that the effect on him of these criminal convictions was that he was "embarrassed" and that he had decided to change his name to make a new start. He said he had stopped hanging around with his old friends and was now much closer to his family. He was married in July 1997 and intended starting a family. He said that his father had told him what is expected of a taxi driver and of the need to be completely honest. Mr Armani said he wanted the opportunity to prove himself so that his family would be proud of him. 18 Mr Armani's father, Mark Ahmad, told the Tribunal that he is married with five children and that his three sons live at home. A medical report dated 24 February 1999 from Dr Kelmer was tendered. The report described Mr Ahmad's health problems including impairments involving his eye and his back. Mr Ahmad said that he had been driving taxis for about 12 years and that he was an enforcement officer. This involves: attempting to settle disputes between taxi drivers or between drivers and passengers; reporting drivers; and issuing on the spot fines for certain behaviour. Mr Ahmad has owned a taxi in the past but currently leases a vehicle which he and one of his sons drive. 19 According to Mr Ahmad, his son has learnt from his mistakes and has changed. He doesn't go out with the same crowd and, in his opinion, would be a good taxi driver. Mr Ahmad said that he would not attest to his son's suitability if he did not believe that he could be trusted. Mr Ahmad was not cross examined on any of his evidence. 20 The Department's files indicate that Mr Armani first applied for a taxi authority on 29 January 1996. Question 6 of the application form asks "Have you ever been convicted on NSW or elsewhere of any criminal, traffic or other type of offence in the last 10 years?" In his 1996 application Mr Armani answered "Yes" to this question, listed his traffic offences and wrote "larceny 95." When cross examined about why he did not disclose the offence of stealing a car in 1994 he replied that, "Once I turned 18 I thought my juvenile record was wiped." In cross examination it was put to Mr Armani that he had been charged with two further offences in January or February 1996 but answered "No" to the question "Are there any charges pending against your for any criminal, traffic or other offences?" Mr Armani agreed that he did not mention these charges in the application but the file discloses that he was not charged for these offences until 28 February 1996, a month after the application form was completed. On 13 March 1996 the Department received a response to the show cause letter they had sent to Mr Armani. This response did not mention the fact that he had been charged for two further offences. He wrote at that time that his convictions (for the first two offences) "is a record that I am not proud of and certainly one I would like to leave behind." The Department refused Mr Armani's 1996 application on 22 March 1996 for his "criminal and traffic record." 21 The Department received a second application from Mr Armani on 15 April 1998. On this occasion Mr Armani did not provide any answer to Question six and, in response to Question four, (asking whether he had ever had an application for an authority refused) he wrote "Yes refused for record." When asked in cross examination why he did not specifically disclose his two further convictions on the application form he said "They already knew about all my convictions." He also said that when he wrote "refused for record" he meant his "whole record". Mr Armani denied that he wanted to conceal his most recent offences from the Department. 22 On 17 April 1998 the Department applied to the NSW Police Service for a criminal record check which disclosed that a further two criminal convictions had been recorded, namely "Break Enter and Steal" on 15 August 1996 and "Enter Land/Building with Intent" on 25 November 1996. On 8 May the Department issued a "show cause notice" which listed all four convictions. The applicant responded on 13 May 1998 clarifying the circumstances in which the offences had been committed and detailing his employment history and family circumstances. On 11 June 1998, the Department again refusal the application based on Mr Armani's criminal and traffic record. The Local Court dismissed Mr Armani's appeal against this decision on 16 November 1998. 23 A third application was lodged on 6 December 1998. In its reply to Mr Armani dated 13 January 1999 the Director General's delegate stated that "your application to be granted an authority to drive a public passenger vehicle has been refused for the reasons shown on the attached Appendix 'A'." Appendix A is a list of Mr Armani's criminal offences and a reference to the appeal against a previous refusal by the Department in the Local Court on 16 November 1998. 24 The Department conducted an internal review of the 13 January 1999 decision at the request of the Tribunal. The Statement of Reasons referred to Mr Armani's criminal convictions and to the dismissal of his appeal by the Local Court. Discussion of evidence and findings of fact 25 Mr Armani's employment history and the references from employers were not disputed except in two minor respects. The respondent suggested that Mr Armani returned lost property from the hire car firm where he worked because customers would be able to identify the vehicle. I accept Mr Armani's explanation that he returned this property because "it was the right thing to do" not because of a fear of being caught if he did not do so. Neither do I draw any adverse inference from the fact that the reference from Mr Touma did not refer to the applicant's criminal convictions. I accept Mr Armani's evidence that Mr Touma was aware of these convictions. 26 The parties agreed on the details and circumstances of Mr Armani's criminal convictions. However the respondent submitted that Mr Armani's evidence did not demonstrate that he felt any contrition. This submission was based on the fact that Mr Armani mentioned feeling "embarrassed" about his convictions but even when given an opportunity to do so in cross examination, did not demonstrate any remorse in relation to the impact his offences may have had on his neighbours or small business owners in his community. Mr Culbert pointed to several opportunities that he had given Mr Armani to demonstrate contrition when he asked him whether he knew the people he had stolen from including the person working in the car repair shop and his neighbours. The respondent's submission was that Mr Armani did not demonstrate any feelings of contrition in relation to what he had done to these people even though they were people living and working in his neighbourhood. 27 I find that Mr Armani does regret the fact that he has a criminal record and that he is determined to make a new start. He has changed his name and does not associate with his old friends. I also find that he did not demonstrate any strong feelings of guilt, remorse or contrition. 28 The final area of dispute was the extent to which Mr Armani's responses to questions on the application forms disclose dishonesty. In the 21 January 1996 application Mr Culbert, representing the respondent, submitted that while Mr Armani may have believed he was not obliged to disclose an offence committed when he was a juvenile, he erred on the side of not disclosing it rather than disclosing it. I accept Mr Armani's evidence that he did not believe he was obliged to disclose this offence. I found Mr Armani's evidence on this point to be straight forward and credible. Consequently, no adverse inference can be drawn from the fact that he did not disclose that offence. However I find that Mr Armani failed to disclose the fact that he had been charged in relation to two further offences when he wrote his show cause response. 29 In relation to the 15 April 1998 application Mr Culbert argued that Mr Armani's failure to answer the question about previous convictions proves that he did not complete the form honestly. Mr Culbert further submitted that Mr Armani's response to Question four (that he was previously "refused for record") was also dishonest because "record" in that context only relates to his record when his previous application was refused. Consequently, Mr Culbert submitted that Mr Armani acted dishonestly in failing to disclose his two later convictions anywhere on the application form. 30 Mr Punch, for the applicant, argued that the applicant had been completely frank in his April 1998 application form and that no adverse inference could be drawn either from his failure to complete question six or from his answer to question four. 31 In relation to the applicant's answer to question four, I find that Mr Armani answered this question accurately in disclosing that a previous application had been "refused for record." His answer refers to the two offences on which the previous refusal was based. However Mr Armani's did not provide an adequate explanation of his failure to answer Question six. He said, "They already knew of all my convictions." The only way the Department could have known is if Mr Armani had told them or they had already undertaken a criminal record check. In addition, he signed a declaration stating that "I am aware that if any information in my application is subsequently found to be incorrect my authority will be cancelled and that legal action may be taken." Consequently I find that in failing to answer Question six Mr Armani had decided not to separately disclose his two most recent convictions. Application of law and decision 32 The administrator's discretion to grant or refuse a taxi authority is a broad one but must be informed by the purpose of the authority as set out in the Passenger Transport Act 1990 s 11. So far as is relevant, that section says that the person must be a "fit and proper person" in at least two respects, namely he or she must be considered to be of "good repute" and secondly he or she must have "sufficient responsibility" to drive a taxi. 33 "Repute" is defined in the Macquarie Dictionary (Third Edition) to mean "estimation in the view of others; reputation". The community must have confidence that the applicant can discharge his obligations. The respondent submitted that the public would be concerned about a taxi being driven by a person with the applicant's criminal convictions. Whether or not they would be concerned depends on the nature and circumstances of those convictions and any other evidence favouring the applicant. 34 The responsibilities needed to drive a taxi include being honest in the way passengers are charged, the routes on which they are taken and in the reporting of lost property. It also involves being honest in responding to questionnaires or other inquiries from the Department. One important factor in determining whether the applicant has sufficient responsibility is whether, on the balance of probabilities, he would be likely to be dishonest in his dealings with passengers or the Department if granted an authority. In coming to a decision on this question I have weighed up the factors which tend to indicate that the applicant would be dishonest against those which tend to indicate that he would not. 35 The degree of risk that the applicant will not be honest in his dealings with passengers and/or the Department depends on several factors. These include: the nature and circumstances of the offences, the degree of contrition or acknowledgment demonstrated by the applicant, his employment history and his present situation including family circumstances. 36 The applicant has four convictions for criminal offences involving stealing or attempting to steal money or property. These offences occurred over a period of approximately two and a half years when the applicant was aged between 17 and 19 years. All the offences committed by the applicant involved a significant degree of dishonesty. Against this it is relevant that none of the criminal offences were committed in the context of an employment or service provider relationship such as that which exists between a taxi driver and passenger. Furthermore, he pleaded guilty to three of the four charges. (The not guilty plea was on the advice of his barrister.) 37 I accept that the applicant is keen to make a new start and is embarrassed by his criminal record. When he wrote the show cause letter in March 1996 in relation to his January application he said that he was not proud of his record and wanted to leave it behind. Indeed he has not been charged with any further offences since February 1996, so he has demonstrated his sincerity on that count over the last three years. While the applicant did not show strong feelings of guilt or remorse I accept that he fully understands the consequences of any further convictions and is determined not to re-offend. 38 The applicant has not been charged with any offence since February 1996, a period of just over three years. The respondent submitted that Mr Armani was on a good behaviour bond until November 1998 and that he needs to demonstrate that he has changed his ways for a further period while he is not subject to that bond. I do not think there is any justification for discounting the non-offending period because he was on a bond. The fact is that he has not been charged with an offence for over three years. 39 The applicant has had several jobs involving the handling of money and one in which he was obliged to return lost property left in vehicles. His employers found him to be honest and reliable. 40 There were two instances, in March 1996 and in April 1998, where the applicant failed to disclose to the Department the full extent of his criminal charges or convictions. The April 1998 instance, where he failed to answer questions relating to criminal convictions, is the more serious because a specific question was not addressed and the applicant then signed a declaration. While he did not positively mislead the Department by providing false information, he did not fully disclose relevant information when he was asked to do so. In his most recent application, he did acknowledge that he had "dishonesty offences." 41 Mr Armani's present situation is that he is married and living with his wife, his parents and his three brothers. He does not associate with his old friends who were involved with him in committing three of the four offences. His father is confident that he can be trusted. 42 The factors which must be weighed up in this case are finely balanced. Although he has committed four significant dishonesty offences, these occurred over 3 years ago when the applicant was younger and presumably less mature than he is now. His failure to answer the question about convictions in a previous application is one of the most significant factors against him given that part of his responsibilities are to respond honestly to Departmental questionnaires and inquiries. However, I do not consider that this omission is sufficient reason to deny him an authority given all the other circumstances in his favour. While not overtly contrite, he is embarrassed by his record and is determined to make a new start. His unblemished employment record (including the handling of cash) indicates that he his unlikely to be dishonest if granted a taxi authority. He understands the responsibilities involved in being a taxi driver. In addition he has the support of his family. I find in these circumstances that he is now a fit and proper person to be granted a taxi authority. 43 Accordingly, the Tribunal makes the following orders pursuant to s 63 of the Administrative Decisions Tribunal Act 1997: o The decision made by the delegate of the Director General of the Department of Transport dated 10 March 1999 refusing the applicant's application for a taxi authority is set aside; and o The decision that a taxi authority be granted to the applicant subject to the applicant's compliance with the Department of Transport's current training policies is substituted. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.