Adams v SafeWork SA - [2010] SADC 156

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
ADAMS v SAFEWORK SA
[2010] SADC 156
Judgment of Her Honour Judge Cole
3 March 2011
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - GENERALLY
Appeal against a decision to refuse an application for a dangerous goods driver's licence pursuant to the Dangerous Substances Act 1979 and the Dangerous Substances (Dangerous Goods Transport) Regulations 2008 - appellant's driving history considered - matter remitted to SafeWork SA for further consideration.
Dangerous Substances Act 1979; Dangerous Substances (Dangerous Goods Transport) Regulations 2008; District Court Act 1991, referred to.
FAI Insurances Limited v Winneke & Others [1981-1982] 151 CLR 342, considered.

ADAMS v SAFEWORK SA
[2010] SADC 156

Mr Adams has appealed to this Court against a decision of SafeWork SA to refuse his application for a dangerous goods driver’s licence pursuant to the Dangerous Substances Act 1979 and the Dangerous Substances (Dangerous Goods Transport) Regulations 2008. At the hearing of the matter, Mr Adams was represented by Mr D’Angelo and SafeWork SA was represented by Mr Weir. By consent, two medical reports were tendered, together with various other documents and affidavits. The matter was argued twice. On the first occasion, it proceeded on the basis that the licence in question was a licence under s 19 of the Dangerous Substances Act 1979. It was subsequently realised that this was not the case, and the matter was re-argued on the correct basis.
Legislation
The Dangerous Substances Act 1979 provides, in s 23(k), that regulations may make provision “for or in relation to” the licensing of vehicles and drivers for the purposes of the transport of dangerous goods. A further regulation‑making power appears in s 50 of the Act. The Dangerous Substances (Dangerous Goods Transport) Regulations 2008 provide, in regs 19 and 20:
19 Application for licence or renewal of licence
(1)A person resident in the State may apply to the Competent Authority for a dangerous goods driver licence.
(2)A person who holds a dangerous goods driver licence may, not earlier than 2 months and not later than 7 days before expiry of the licence, apply to the Competent Authority for renewal of the licence.
(3)An application for the grant or renewal of a dangerous goods driver licence must be accompanied by—
(a)each of the following:
(i)evidence that the person holds a current driver licence;
(ii)for each State or Territory of the Commonwealth in which the applicant holds or has held a driver licence—
(A)a certified extract of entries about the applicant from the relevant register of driver licences obtained within the immediately preceding 6 months; or
(B)an authorisation for the Competent Authority to have access to such entries;
(iii)for each State or Territory of the Commonwealth—
(A)a certified copy (obtained within the immediately preceding 6 months) of an official record showing whether the applicant has been convicted of any driving offence in that State or Territory and providing details of any such conviction; or
(B)an authorisation for the Competent Authority to have access to such records; and
(b)evidence that the applicant has passed an approved test, or completed an approved training course, within the immediately preceding 6 months, comprised of a certificate issued by the person who conducted the test or course or other written evidence; and
(c)a certificate about the medical fitness of the applicant to drive a road vehicle—
(i)issued by a registered medical practitioner following an examination of the applicant by the practitioner within the immediately preceding 6 months; and
(ii)certifying that the medical practitioner examined and passed the applicant in accordance with the standards in Assessing Fitness to Drive—Medical Standards for Licensing and Clinical Management Guidelines published by Austroads and the National Road Transport Commission in September 2003 (ISBN 0 85588 507 6); and
(d)2 photographs of the applicant of a size suitable for an Australian passport that were taken within the immediately preceding 6 months; and
(e)the fee fixed by Schedule 1.
20(1) The Competent Authority must not grant an application for a dangerous goods driver licence if –
(a)in the 5 years immediately preceding the application –
(i)the applicant has been found guilty by a court in Australia of an offence that makes the applicant unsuitable to be the driver of a vehicle transporting dangerous goods; or
(ii)the applicant’s driver licence has been cancelled or suspended on a ground that makes the applicant unsuitable to be the driver of a vehicle transporting dangerous goods; or
(b)the applicant is prohibited by a court order from involvement in the transport of dangerous goods by road.
The Dangerous Substances Act 1979 provides, in s 37(1):
An appeal to the Administration and Disciplinary Division of the District Court may be made –
(a) by a person directly affected by a decision of a Competent Authority relating to a licence, accreditation or permit against that decision;
The District Court Act 1991 provides, in s 42E and s 42F:
42E
(1)    The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)    The Court, on an appeal –
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)    The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
42F
The Court may, on an appeal –
(a)    affirm the decision appealed against;
(b)    rescind the decision and substitute a decision that the Court considers appropriate;
(c)    remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
The Application
Mr Adams applied to SafeWork SA for a dangerous goods driver’s licence on 10 March 2010. Mr Clifford, the Manager of the Dangerous Substances Team at SafeWork SA, in his affidavit of 10 June 2010, set out the process followed leading up to the refusal of that application. On 8 April 2010, there was a meeting of a panel of three SafeWork employees, of which Mr Clifford was one, to consider Mr Adams’ application. The panel had before it the following material:
1. Mr Adams’ application for a dangerous goods driver licence.
2.A Statement of Attainment for “Preparation and Transport of Dangerous Goods by Road Classes 2, 3, 4, 5, 6, 8 and 9” dated 11 March 2010 issued to Mr Adams.
3.A copy of Mr Adams’ current South Australian driver’s licence.
4.A medical report in relation to Mr Adams dated 1 February 2010.
5.A print out of Mr Adams’ driving history for the previous 5 years from the Transport SA database.
6.A table entitled “Noel Adams – Explanatory Table detailing relevant driving history (last 5 years)” which had been prepared by Mr Froscio, Senior Inspector, Dangerous Substances Team at SafeWork SA, who was a member of the panel.
7.SafeWork SA Standard Operating Procedure 09SWSA0941 “Issue, Renewal and Cancellation of Dangerous Goods Driver Licence” dated 5 March 2009 (“the Policy”).
The Policy said, in clause 2.3:
2.     The licence/renewal is NOT granted if –
2.3The applicant’s driving history in the 5 years before the application is made or, for renewals while the licence had effect, shows that he/she is unsuitable to be the driver of a vehicle transporting dangerous goods because:
(a)On at least one occasion the applicant was found guilty by a court of any of the following offences:
·      driving under the influence of liquor or drugs.
·      Careless, reckless and dangerous driving
·      Driving while disqualified; or
(b)On at least one occasion the applicant’s driver licence has been cancelled/suspended for the following reasons;
·      driving under the influence of liquor or drugs
·      careless, reckless or dangerous driving
·      breaching good behaviour bond; or
(c)On at least one occasion the applicant’s driver licence was suspended for accumulation of demerit points if the offences included the following offences
·      failure to stop at traffic lights (2 or more times)
·      use of mobile phone
·      exceeding speed limit by more than 30km/h (2 or more times)
NoteLoss of demerit points for minor offences does not make the driver unsuitable to be the holder of a Dangerous Goods Driver Licence.
Documents 5 and 6 (according to my numbering above) said that, in the five years prior to the meeting, Mr Adams had four relevant driving offences. The following table appeared in document 6.

Offence date	Offence type	Court date	Penalty	Disqualification details
05/02/2009	Driving under the influence, 0.08 – 0.15 blood alcohol	23/07/2009	Disqualification for 6 weeks to 03/09/2009
26/10/2008	Driving an uninsured vehicle	06/02/2009	Disqualification for 1 day to 07/02/2009
07/02/2009	Driving under the influence, stopped by Random Breath Test	NA	Offence expiated – 4 demerit points	N/A
16/05/2006	Exceeded speed limit by less than 15 km/h	N/A	Offence expiated – 1 demerit point	N/A

The minutes of the panel meeting record this conclusion:
The panel agreed with the recommendation that Mr Adams was unsuitable to be the driver of a vehicle transporting dangerous goods on the grounds that he had been disqualified from driving by Court on 23/07/2009 for driving under influence of alcohol.
That decision was communicated to Mr Adams by letter dated 8 April 2010.
Further Evidence
Further evidence was provided to this Court by both the appellant and the respondent. Mr D’Angelo, in support of the appellant’s case, tendered the remarks of Ms Hribal SM upon dealing with Mr Adams in relation to the drink driving offence of 5 February 2009 and the driving under disqualification of 7 February 2009. The learned Magistrate noted that the police imposed an instant disqualification of licence upon Mr Adams on 5 February 2009, when Mr Adams was tested with a blood alcohol reading of .117. Ms Hribal SM said that, at the time of the offending, Mr Adams was experiencing a difficult time emotionally following the death of his father and also a friend. He had also recently become unemployed. Ms Hribal SM said, in relation to the charge of driving whilst disqualified:
In this particular case, it has been put to me that it was not deliberately driving in breach of the disqualification but given the surrounding circumstances and your general psychological state at the time, you had not really turned your mind to the importance of your disqualification. Prosecution agree that the matter is not contumacious.
Mr D’Angelo also tendered a report dated 13 August 2010 of Dr Vuong, a medical practitioner, and Ms Richer, a registered psychologist, which said that Mr Adams had been assessed at their clinic on 13 August 2010 and that, in their opinion, Mr Adams is not alcohol dependent. A further report of Dr Vuong, dated 3 November 2010, said:
Testing performed involved history taking a psychological assessment, a physical assessment and bloods tests. The testing is aimed at identifying signs and symptoms of dependence or chronic alcohol consumption. Our testing did not indicate clear evidence of chronic alcohol consumption or dependence.
Mr D’Angelo tendered the Fatigue, Alcohol and Drugs Policy of Giacci Bros Pty Ltd, Mr Adams’s current employer. Mr D’Angelo also tendered records of the random drug and alcohol tests to which Mr Adams has been subject since July 2010 in the course of his employment.
An affidavit of Mr Adams was also tendered. In his affidavit, Mr Adams provided information about his offending on 5 and 7 February 2009, which was consistent with the remarks of Ms Hribal SM. Mr Adams also gave some information about his employment with Gianni Bros Pty Ltd at Prominent Hill, which began in September 2009. Mr Adams drives multi carriage road trains loaded with copper concentrate from the Prominent Hill mine to the Wirrida railway siding. He also drives copper concentrate from Prominent Hill to Olympic Dam for further treatment. Mr Adams works for two weeks at Prominent Hill and then has a week off work in Adelaide. He does not drive trucks in Adelaide. Mr Adams said in his affidavit that the Prominent Hill mine site has “a strict no alcohol work policy”. The drinking of alcohol is only permitted after hours in specified locations. Mr Adams said that all workers undergo daily alcohol breath tests and random tests for alcohol and drugs. Mr Adams said that he was told in March 2010 that copper concentrate was to be treated as a dangerous good for the purposes of the Dangerous Substances (Dangerous Goods Transport) Regulations 2008. All of the drivers of copper concentrate at Prominent Hill, including Mr Adams were therefore required to apply for a dangerous goods driver’s licence. Exhibited to Mr Adams affidavit was a letter from Mr French, the NT/SA Regional Manager of Giacci Bros Pty Ltd. The letter said:
This letter is meant to project To Whom It May Concern the ethics and integrity of Mr Noel Adams in relation to his position as a valued heavy vehicle driver representing Giacci Bros N.T.
Mr Adams has been an employee of Giacci Bros, based at Prominent Hill in remote South Australia since September 2009. During the period since then Noel has been very vigilant in his approach to his responsibilities in this role maintaining an extremely high standard of safety in all fields of his employment.
We are aware that Mr Adams had had his drivers licence suspended for a short period of time, for having a prescribed concentration of alcohol in his blood. During his time with us as a valued employee we have seen no signs of alcohol abuse or even over indulgence.
Being based in a remote area camp, there is limited access to alcohol purchases, and the consumption of such is extremely well monitored, also no alcohol is allowed to be brought onto the site. All employees on site are subject to drug and alcohol screenings on a regular basis and as such Mr Adams has never returned a positive result.
Noel has safely transported the product of Copper Concentrate, from the Prominent Hill mine site to Wirrida rail siding in large haul trucks grossing upward of 200 tonne plus, and also to Olympic Dam in triple road train configurations, and always in a safe and responsible manner. This very same product has only just recently been added to the dangerous goods register as a class 9 category.
I cannot foresee a change in the attitude of Noel in relation to this fact, Noel still has and maintains a very high regard for the safety of both himself and his fellow work colleagues, and as such we would like to be able to keep Noel as a valued employee doing what he does best.
A further letter from Mr French was tendered, reiterating the value of Mr Adams’ services to Giacci Bros Pty Ltd and making it clear that Mr Adams’ continued employment with that company depended upon Mr Adams obtaining a dangerous goods drivers licence.
Grounds of Appeal
The grounds of appeal set out in the amended notice of appeal were as follows:
1.1SafeWork SA erred in declining the Appellant’s application for a dangerous goods driver licence;
1.2SafeWork SA erred in deciding that the Appellant was unsuitable to be the driver of a vehicle transporting dangerous goods at the time of the Appellant’s application;
1.3SafeWork SA erred in failing to give any or any sufficient weight to the circumstances surrounding the Appellant’s previous driving offence;
1.4SafeWork SA erred in failing to have any or any sufficient regard to the circumstances particular to the Appellant’s case.
1.5SafeWork SA erred in denying the Appellant procedural fairness by not allowing him the opportunity to put any submissions on his own behalf in support of his Application for a dangerous goods driver licence;
1.6SafeWork SA erred in denying the Appellant procedural fairness by arbitrarily applying the SafeWork SA Standard Operating Procedure 09SWSA0941 Issue, Renewal and Cancellation of Dangerous Goods Driver Licence (“SOP”);
1.7SafeWork SA erred in affording the SOP undue weight in all the circumstances.
The Submissions
It was common ground among the parties that reg 19 confers a discretion upon SafeWork SA in relation to the grant of a dangerous goods drivers licence. It was also common ground that reg 20 constrains that discretion to some extent. The divergence between the parties related to the extent of that constraint. Mr D’Angelo argued that SafeWork SA has a discretion, when considering, pursuant to reg 20(1)(a)(i), whether a particular offence was an “offence that makes the applicant unsuitable to be the driver of a vehicle transporting dangerous goods” to consider all of the circumstance of the particular offence and the offender. An applicant should therefore be given the opportunity to be heard in relation to those circumstances (see FAI Insurances Limited v Winneke & Others[1]). Mr Weir conceded that some offences might require the consideration of the circumstances of the offence and the offender in order to determine whether the offence was of the kind referred to in reg 20(1)(a)(i). However, Mr Weir argued, there is a category of offences, the commission of which, it is clear, on the face of the record, renders the applicant for a licence unsuitable to be the driver of a vehicle transporting dangerous goods. Mr Weir argued that the print out of Mr Adams’ driving history for the previous 5 years (document 5), which was before the panel, disclosed the commission by Mr Adams of offences in this category, namely driving under the influence (on 5/2/09 and 7/2/09).
[1] [1981-1982] 151 CLR 342
I disagree with Mr Weir’s submission on this point. It may be that, in some cases, the commission of the kind of offence in question would bring the matter within s 20(1)(a)(i). However, it seems to me that there is a possibility, in relation to this particular offence, that the circumstances of the offence and the offender, at the time of the offending, may take the offences out of s 20(1)(a)(i), and, where that possibility exists, the applicant should be given a chance to be heard.
It was common ground that the panel, in considering an application, may consider the whole of the applicant’s driving history when determining how to exercise its discretion. There may be matters in relation to that history concerning which Mr Adams should be given the opportunity to be heard. It was also common ground that the Policy can be used by the panel as a guide, but cannot operate as a constraint on the exercise of the discretion.
Conclusion
SafeWork SA has a discretion to exercise pursuant to reg 19 when considering an application for a dangerous goods drivers licence. The discretion is constrained to some extent by reg 20. In this matter, the panel was required to consider the question of whether offences committed by Mr Adams in the last 5 years were offences of the kind described in reg 20(1)(a)(i). The role of the Policy in that process is that of a guide and not of a constraint on the exercise of the discretion. Mr Adams should have been given the opportunity to be heard in relation to that issue. If the whole of Mr Adams’ driving history is to be considered, then Mr Adams should be given the opportunity to be heard in relation to that history also.

In all of its deliberations, the panel should bear in mind the purpose of the Act in this context, which is to safeguard public safety.
Pursuant to s 42F of the District Court Act, I remit this matter to SafeWork SA for further consideration in accordance with this decision.