Arfat and Department for Planning And Infrastructure
[2008] WASAT 43
•10 JANUARY 2008
ARFAT and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2008] WASAT 43
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 43 | |
| ROAD TRAFFIC ACT 1974 (WA) | |||
| Case No: | CC:1952/2007 | 10 JANUARY 2008 | |
| Coram: | MR P McNAB (MEMBER) | 9/01/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | YASIR ARFAT DEPARTMENT FOR PLANNING AND INFRASTRUCTURE |
Catchwords: | Licences Driver's licence Holder debarred from driving in another State Licence in Western Australia accordingly suspended by Department Review of suspension Applicant required driver's licence for rural WA health job Whether hardship and inconvenience can be taken into account in exercise of discretion Consistent line of Supreme Court authority holding hardship and inconvenience not relevant to review of such suspensions Discussion of scope of discretion if no such authority existed Hardship may be relevant to applications to a Court for an extraordinary driver's licence Impermissible to treat review as an application for extraordinary licence No dispute as to facts or validity of suspension Review dismissed and decision under review affirmed |
Legislation: | Interpretation Act 1984 (WA), s 5, s 56(1) Road Traffic Act 1974 (WA), s 48, s 76 |
Case References: | Commissioner of Police v Batty (1990) 11 MVR 246 Commissioner of Police v Plumb (unreported, WASC, Library No 6009, 20 September 1985) Creed v Dudley (1983) 1 MVR 314 Director General for Planning and Infrastructure v Nealon (2003) 39 MVR 225 Director General of Transport v Wyatt (1999) 28 MVR 447 Traffic Board v Schumacher (1994) 20 MVR 258 |
Orders | 1. For the reasons delivered ex tempore on 10 January 2008, the application for review is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : ROAD TRAFFIC ACT 1974 (WA) CITATION : ARFAT and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2008] WASAT 43 MEMBER : MR P McNAB (MEMBER) HEARD : 10 JANUARY 2008 DELIVERED : Edited reasons delivered extemporaneously on 10 JANUARY 2008 FILE NO/S : CC 1952 of 2007 BETWEEN : YASIR ARFAT
- Applicant
AND
DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Licences - Driver's licence - Holder debarred from driving in another State - Licence in Western Australia accordingly suspended by Department - Review of suspension - Applicant required driver's licence for rural WA health job - Whether hardship and inconvenience can be taken into account in exercise of discretion - Consistent line of Supreme Court authority holding hardship and inconvenience not relevant to review of such suspensions - Discussion of scope of discretion if no such authority existed - Hardship may be relevant to applications to a Court for an extraordinary driver's licence - Impermissible to
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treat review as an application for extraordinary licence - No dispute as to facts or validity of suspension - Review dismissed and decision under review affirmed
Legislation:
Interpretation Act 1984 (WA), s 5, s 56(1)
Road Traffic Act 1974 (WA), s 48, s 76
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : N/A
Solicitors:
Applicant : Self-represented
Respondent : Mr N Fox
Case(s) referred to in decision(s):
Commissioner of Police v Batty (1990) 11 MVR 246
Commissioner of Police v Plumb (unreported, WASC, Library No 6009, 20 September 1985)
Creed v Dudley (1983) 1 MVR 314
Director General for Planning and Infrastructure v Nealon (2003) 39 MVR 225
Director General of Transport v Wyatt (1999) 28 MVR 447
Traffic Board v Schumacher (1994) 20 MVR 258
(Page 3)
Summary of Tribunal's decision
1 Mr Arfat sought a review of a decision by the Department for Planning and Infrastructure to suspend his Western Australian driver's licence until after the date upon which he ceased to be debarred from driving in Queensland, where he formerly resided. The Road Traffic Act 1974 (WA) authorised the Department for Planning and Infrastructure to suspend his licence for that reason. This power existed as part of a national scheme to protect the public from drivers whose record made them unfit to drive.
2 Mr Arfat worked on contract in rural Western Australia for the Health Department. He needed his driver's licence and it was likely that he would lose his job if he could not drive a motor vehicle. He argued that he and his family would suffer considerable hardship and inconvenience if the suspension were not lifted. His case was supported by his employer. The respondent Department for Planning and Infrastructure did not dispute any of these matters.
3 Mr Arfat did not dispute that by reason of his conviction for a significant number of traffic offences in Queensland - mostly excess speeding fines - he was debarred from driving in that State until early July 2008. He did not take issue with any of the material facts, including the validity of his suspension in this State.
4 The State Administrative Tribunal reviewed a long list of Supreme Court decisions over the last two decades that had consistently held that while matters of hardship and inconvenience might be relevant in relation to whether a court could grant an extraordinary driver's licence, they were not relevant to questions of suspension by reason of events in another State. The Supreme Court had also held that an interstate disqualification could not found an application for an extraordinary driver's licence; only a local disqualification could so do.
5 Whatever the position would have been had those cases not existed, the State Administrative Tribunal held that it was bound to apply them, and the application was thus dismissed and the decision under review affirmed.
6 What follows is an edited, and formally revised, version of the reasons for decision of the State Administrative Tribunal which has been taken from the transcript of proceedings.
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Introduction
7 In this matter, the applicant, Mr Arfat, has sought a review of a decision made by the Department for Planning and Infrastructure (Department), which is the respondent in this matter, served upon him in writing on 4 December 2007 in the following terms:
"NOTICE OF SUSPENSION OF DRIVER'S LICENCE
Take notice that pursuant to the provisions of paragraph (d) of subsection (1) of Section 48 of the Road Traffic Act 1974, I [an authorised person in the Department, acting for and on behalf of the Director General of the Department] hereby suspend your driver's licence, class/endorsement C, on the grounds that I have reason to believe that:
You were debarred from driving a motor vehicle under the law in force in another state, namely Queensland, until [4 July 2008]."
8 There are certain rights of review to the State Administrative Tribunal (Tribunal) that are also set out in that notice, rights which Mr Arfat has exercised, leading to today's decision.
The power to suspend
9 Section 48 of the Road Traffic Act 1974 (WA) (RT Act), so far as material, provides as follows (emphasis added):
"(1) The Director General may refuse to grant a driver's licence, or may cancel, suspend or refuse to renew a driver's licence, where the Director General has reason to believe that the applicant for, or the holder of, a driver's licence -
(a) is not of good character;
(b) is addicted to alcohol or drugs to such extent as to render him a danger to the public when in control of a motor vehicle on a road;
(c) suffers from a mental disorder or physical disability that is likely to impair his ability to control a motor vehicle;
- (d) is debarred from driving a motor vehicle under the law in force in any other State or in a Territory or other country;
(e) should not, by reason of the number or nature of his convictions for offences under this Act or the regulations, be the holder of a driver's licence;
(f) is no longer capable of controlling the class of motor vehicle for which he holds the appropriate driver's licence.
(1a) Where the Director General has reason to believe that the holder of a driver's licence -
(a) suffers from a mental disorder or physical disability that is likely to impair his ability to control a motor vehicle except under certain conditions or subject to certain limitations; or
(b) is no longer capable, except under certain conditions or subject to certain limitations, of controlling the class of motor vehicle for which he holds the appropriate driver's licence, and that to refuse to renew that licence would occasion undue hardship or inconvenience the Director General may renew the licence subject to such conditions as the Director General thinks fit to impose and those conditions shall be endorsed on the driver's licence,
… "
10 It is unnecessary to set out the other provisions of that section which, amongst other things, gives a right of review of such a decision to this Tribunal.
11 It is common ground between the parties that by reason of certain events under the traffic laws of Queensland (discussed further below), the applicant is suspended from driving in Queensland until 4 July 2008, which is the date set out in the notice reproduced above.
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12 Thus, the notice set out above has come into effect and Mr Arfat's licence has been suspended until the expiry of the Queensland period; that is, after 4 July 2008.
13 There is no dispute by the applicant as to any of the events in Queensland that led to the suspension in that State or as to service of the notice or anything else involving s 48 of the RT Act. In other words, no issue is taken by the applicant with either the notice or, in effect, anything alleged in the notice.
Applicant's case
14 The applicant has concentrated on drawing the Tribunal's attention here (and in the two earlier stay applications, both of which were heard by the Tribunal as presently constituted, and refused on 13 December and 20 December 2007 respectively), essentially to the alleged hardship that he would suffer and the effect on his career and family unless the suspension were lifted. A summary of the relevant facts concerning the applicant's personal circumstances and background is as follows.
15 He currently works as a health promotion officer for the Mullewa Health Service at a level 5 position on a contract, earning some $56 000 per year. Mr Arfat is well qualified to hold this job, holding a master's degree in public health and an undergraduate degree in a related field. He also has postgraduate certificate qualifications. He has held this job since August 2007.
16 This is a job located in the Department of Health in Western Australia. Mullewa is located some 96 kilometres east of Geraldton and 464 kilometres north of Perth. It is not disputed by the respondent - indeed, none of the applicant's essential facts are disputed by the respondent Department - that because his work is related to the need to travel and the need to hold a driver's licence, it seems likely that the applicant would be dismissed or suffer other serious adverse consequences on the basis that he would be unable to fulfil an essential term of his duties under that contract.
17 Mr Arfat also drew attention to a related matter not raised during the earlier stay proceedings, but relevant to his case, which is that his immigration status may also be affected, since the work visa that he has applied for is directly linked to the job which he holds. At the moment he holds a bridging visa, pending a decision from the Commonwealth Department of Immigration and Citizenship. He would, of course, have to
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- notify that Department of his change of status if his contract were to be terminated.
18 Mr Arfat is married. He does not at present have any children. His wife does not work and she cannot drive. He is also supporting his brother, who is in Brisbane.
19 The Tribunal notes that the applicant has had a number of letters of support from his employer and indeed a local police officer, all attesting to his abilities in the job and his standing in the community. The Tribunal records, for example, the comments of a local policeman at the Mullewa Police Station, Senior Constable Robert Bunch, who points to the requirement for the applicant to be able to drive, and although he would not say anything directly on the applicant's character, he notes that the applicant has not come to the attention of the Police in Mullewa by reason of any matter, including road traffic offences.
20 It is unnecessary to set out all the details of those letters of support, but they indicate a person who is holding down a job which is important in itself, and to the Mullewa and surrounding community.
21 The applicant has also drawn the Tribunal's attention to the facts underlying the numerous speeding offences which are on the record in this matter, indicating that he was under considerable mental and emotional stress at the relevant time and may also have had some vision problems, which have now been corrected by the issuing of prescription glasses.
22 Briefly, and for the sake of completeness, the Tribunal will refer to the applicant's record in Queensland. As indicated, Mr Arfat does not dispute the accuracy of this record. It shows a number of speeding offences and also an offence in respect of using a hand-held mobile phone whilst driving. The main fines that are recorded are $250, $100, $250, $350, $225, $250, and $150. These offences were recorded over a period commencing in September 2006, with the last offence occurring on 13 July 2007. It is by no means the worst traffic record that this Tribunal has seen, but it is nevertheless a considerably significant record in terms of what may be loosely described as "serial speeding offences".
23 In any event, under the laws of Queensland, it led to a considerable suspension period. It is not necessary to go into the exact mechanics of that process. But, in part, when the applicant committed yet another speeding offence, it led to a good behaviour program under a previous demerits suspension appeal being itself suspended. It is, however, unnecessary for the Tribunal to go into that matter, because it is common
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- ground that that result arises from a relevant corresponding law in Queensland and its operation has led to that penalty of suspension.
The relevant case law
24 The Tribunal turns to the law in this matter and it is noted for the record that the respondent Department supplied the essential legal principles or copies of the relevant cases or extracts of them to the applicant, so that he could prepare for his review. The Department is to be commended for its cooperation in this matter.
25 The leading case in this field is Commissioner of Police v Plumb (unreported, WASC, Library No 6009, 20 September 1985) (Plumb).
26 In that matter, there was a review (by way of an appeal) of a decision made by a Magistrate sitting in the Court of Petty Sessions at Perth. The effect of the decision on appeal was that the learned Magistrate misdirected himself by confusing two quite different functions. The first was his review function under s 48 of the RT Act, a function which has been taken over by this Tribunal. The other matter dealt with by the learned Magistrate was the related issue of an extraordinary licence under s 76 of the RT Act.
27 Section 76(3), s 76(3a) and s 76(3b) of the RT Act provide as follows (emphasis added):
"(3) Subject to subsection (3a), the court may if it thinks proper having regard to -
(a) the safety of the public generally;
(b) the character of the applicant;
(c) the circumstances of the case;
(d) the nature of the offence or offences giving rise to the disqualification;
(e) the conduct of the applicant subsequent to the disqualification; and
(f) the degree of hardship and inconvenience which would otherwise result to the applicant and his family, if it refrains from making the order,
- [order, in effect, the issue of an extraordinary licence, or refuse so to order].
- (3a) Where the Magistrates Court or the Children's Court hears a special application the court shall not make an order directing the grant of an extraordinary driver's licence unless it is satisfied that the application is attended by circumstances of extreme hardship but nothing in this subsection authorises or requires the court to make such an order if, having regard to any of the matters referred to in subsection (3)(a), (b), (c), (d), or (e), it considers that the application should be refused.
(3b) For the purposes of subsection (3a) an application is attended by circumstances of extreme hardship if the refusal of the application would -
(a) deprive the applicant of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by the applicant or a person who is a member of his family;
(b) place an undue financial burden on the applicant or his family, by depriving him of his principal means of obtaining income; or
(c) deprive the applicant or a person who is a member of his family of the only practicable means of travelling to and from the place at which he or that person, as the case may be, is employed."
29 The circumstances of Plumb were that the learned Magistrate concluded that the penalty imposed in New South Wales on Mr Plumb (who was the respondent in that matter and the person who lost their licence) was different from the corresponding penalty that would be imposed in Western Australia and his Worship decided that he could, on
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- the review of a s 48 suspension, allow for the issue of a licence which corrected what he saw was an anomaly.
30 The central finding of the Supreme Court was that s 76 and s 48 are quite separate regulatory and licensing regimes, and that one cannot be read in the light of the other. Pidgeon J said (at page 7, emphasis added):
"The granting of an extraordinary licence is entirely a separate exercise to be conducted under s 76. For that reason, I consider that part of the application before his Worship was misconceived and it is not open under [s 48(5)] to be considering aspects of hardship and character. It would not be a factor for the [Department] to take into account in making a decision under s 48(1). [The Department's] enquiry under [s 48(2), dealing with procedural matters] is limited to whether the facts authorising the exercise of the power exist. There is a minimum time in which an application under s 76 is made. This would be circumvented if similar questions can be considered under s 48 and I would not see this as being the intention of the [RT Act]."
31 It is important to note that his Honour did add a rider as follows (at page 11, emphasis added):
"The [Department's decision] is aimed at the universal enforcement of orders [of suspension] throughout Australia. There could be circumstances where a suspension is so unusual that weight ought to be given to not enforcing it here, but that factor is not present here."
32 In Commissioner of Police (WA) v Batty (1990) 11 MVR 246, Kennedy J referred to the Plumb decision as follows (at 249, emphasis added):
"[Pidgeon J] observed that it was not open under subsection [s 48(5), dealing with reviews] to consider aspects of hardship and character and that they would not be factors … to take into account in making a decision under s 48(1), [the] inquiry being limited to whether the facts authorising the exercise of the power existed. His Honour, it should be noted, was not there speaking of a case depending on section 48(1)(a), in which the character of the applicant would clearly be of significance. He was concerned with a case where the applicant was debarred from driving a motor vehicle under the law of another State. I
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- entirely agree with his Honour, however, that questions of hardship and inconvenience to the respondent are of no relevance under s 48."
33 Kennedy J goes on to say (emphasis added):
"In my opinion the learned magistrate [in that case before him] fell into error in approaching the matter as he did. It is, I believe, important to appreciate that the purpose of s 48 is essentially the protection of the public. See in particular paras (b), (c), and (f) of s 48(1). Its purpose is not to punish drivers further for previously failing to observe the Act and regulations."
34 In Director General of Transport v Wyatt, Wheeler J also considered Plumb,albeit in slightly different circumstances from the other cases discussed in these reasons, and did not find any reason to doubt it. Her Honour said (at 448):
"Having concluded that there was no basis in that case for the learned Magistrate to interfere with the decision of [the Department] pursuant to s 48(4) [dealing with a review], Pidgeon J did note that the material before the Magistrate might have formed the basis for issuing an extraordinary licence on a restricted basis, but observed that he considered that must be by way of an application pursuant to s 76 of the [RT Act]."
35 The Supreme Court of Western Australia also considered the purposes of s 48 in some obiter remarks in Creed v Dudley (1983) 1 MVR 314. In that matter, which was not a s 48 appeal but dealt with the proper penalties to be imposed for an offence of driving in a manner dangerous, Burt CJ made the following observations (at 316, emphasis added):
"Section 48 of the [RT Act] is a section which enables [the Department] to suspend or cancel a driver's licence and it may do that for any one of a number of reasons which are set out in [s 48(1)] … However, all of those provisions are directed to preventing people from driving who lack the capacity, for one reason or another to drive, either, because they drink too much or because they have a mental disorder or a physical disability, or because by their 'track record', as one may say, they have demonstrated that they are unreliable in the control of motor vehicles or because for any other reason they are incapable of controlling a vehicle. That is a power which is not exercised by
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- way of punishment; it is exercised to keep dangerous people off the road."
36 Importantly, there is also Traffic Board v Schumacher (1994) 20 MVR 258, a decision of Anderson J. Again, this was a review by the Supreme Court of a decision of a Magistrate where the learned Magistrate took the view that he had power to adjust any anomalies if there were differences between a penalty imposed as between this and another State. His Honour referred to Plumb and, importantly, he noted that that was a decision "which has stood for nearly a decade without challenge". His Honour then went on to say (at 259):
"The basis of the decision in Plumb's case is that the respective states should universally enforce court orders made in other states to do with driving licences; that there should be universal enforcement of an order for licence suspension throughout Australia and that the power of review, wide though it is, conferred upon the Court of Petty Sessions [now this Tribunal] should be exercised in the light of that overriding principle."
37 Finally, there is the recent decision of Miller J in Director General for Planning and Infrastructure v Nealon (2003) 39 MVR 225. His Honour there dealt with the review of a decision made by a Magistrate and again the question of hardship arose, and his Worship had taken into account matters relevant to s 76. His Honour said, at 227-228:
"[12] The grounds of appeal contend that the learned magistrate confused the grant of an extraordinary motor driver's licence (s 76) with the grant of a driver's licence under the provisions of s 48 of the Act. In the former case the issue of hardship is a relevant consideration (s 76(3)(f)) whereas in the former it is not.
[13] The appellant's submission is correct. In [Commissioner of Police v Plumb] Pidgeon J made it clear that the grant of a licence pursuant to s 48(5) of the Act is quite a separate and distinct process from that which applies under s 76 of the Act."
38 His Honour then goes on to refer to various passages from the decisions set out above and concludes as follows (at 229):
"[15] I respectfully follow and adopt what has been said by Pidgeon J and Kennedy J respectively in Commissioner
- of Police v Plumb and Commissioner of Police v Batty. In this case the learned magistrate was limited to a consideration whether, under s 48(1)(d) of the [RT Act] the appellant had acted within power in suspending the respondent's motor driver's licence. The question simply was whether the facts authorised the appellant [Department] to exercise the power as [it] did. There was no question of the respondent's character being in issue, but simply whether he was debarred from driving a motor vehicle under the law in force in another state. On the face of it he was, and accordingly the decision of the appellant was within power.
- [16] The review of the appellant's decision to which the respondent was entitled under s 48(4) and (5) entitled the learned magistrate only to review the decision of the appellant in the sense of review of the question whether the facts authorised the exercise of the power as it was in fact exercised. The provisions did not entitle the learned magistrate to issue to the respondent a motor driver's licence with conditions similar to those by which an extraordinary motor driver's licence would be issued under the provisions of s 76 of the Act. The reference to 'with or without conditions and limitations' in s 48(5) of the Act refers only to the issue of a driver's licence subject to conditions or limitations under s 44 of the Act. Those conditions are entirely inapplicable in circumstances in which, pursuant to s 48(1)(d) of the Act the appellant has suspended a driver's licence."
39 Thus, the decision of the Magistrate was quashed on appeal.
Conclusions on the hardship case
40 Now, the effect of all of those decisions is to make it extremely difficult for Mr Arfat to successfully advance his case in the terms that he has, which basically revolve around inconvenience and hardship to him and to his family.
41 The Tribunal should record that had the slate been clear, that is, had this Tribunal not been bound by a consistent line of Supreme Court authority referred to above, it might have, with the greatest of respect, not necessarily reached precisely the same conclusion that Pidgeon J did in 1985 when his Honour ruled out altogether questions of hardship in
(Page 14)
- relation to the administrative act authorised by s 48. Certainly, the task under s 48 is materially different from that under s 76, but, after all, his Honour did suggest that there could be circumstances where a suspension "is so unusual that weight ought to be given to not enforcing it". Ordinarily, extreme hardship might be regarded as a possible factor in reaching such a conclusion.
42 Reference might also be had to the use of the word "may" in s 48(1), that is "may cancel [or] suspend" a licence. Subsection 56(1) of the Interpretation Act 1984 (WA) provides that:
"Where in a written law the word 'may' is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion."
43 Under that Act, "power" is defined to include authority or discretion: see s 5.
44 It would then become a question of working out the full scope of the discretion given to the Department (and, on review, this Tribunal) under s 48(1) of the RT Act. It is clear that there is a very strong principle underlying s 48, which is to the effect that it is not a form of punishment; rather, it is a legislative, national policy designed to prevent people whose record prevents them from driving in one State from driving in another State and thereby to safeguard the public.
45 Any exercise of discretion would have to avoid undermining that policy.
46 It is true that s 76 does expressly set out a number of factors which the relevant Court should take into account, and these are generally absent from s 48. Plumb might thus be seen as an illustration of the principle of statutory interpretation which emphasises the consequences of an express reference to one matter as indicating that other matters are excluded: see, Pearce DC and Geddes RS, Statutory Interpretation in Australia LexisNexis at 139-144 (6th ed, 2006). However, as Pearce notes, such an approach has been treated with particular caution ("a valuable servant, but a dangerous master"; see the cases discussed at 141-141).
Unusual circumstances
47 For the sake of completeness, the Tribunal will deal with Pidgeon J's observation that there could be circumstances where a suspension is "so unusual" that weight ought to be given to not enforcing it. In the
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- Tribunal's view, here there are no relevantly "unusual" circumstances. Such circumstances connote something extraordinary, that is to say something out of the ordinary; out of the regular established order of things; or such that are exceptional in character, amount, extent or degree.
48 None of the matters raised by the applicant fall within this category of unusualness or exceptionality. There is, for example, nothing exceptional as regards someone needing a driver's licence for the purposes of their employment and indeed their job being dependent upon that factor, and thus them losing their job if they cannot continue to hold a driver's licence. There is also nothing particularly unusual in the circumstances of Mr Arfat, in terms of his immigration status; that is, in the existence of a chain of authority from his holding a driver's licence to his employment to his continued residence in this country because of such factors.
49 As regards his personal and family circumstances, none of these matters are relevantly unusual. In fact, there is nothing in his circumstances of the loss of the ability to drive and its consequences which would strike one as to be relevantly unusual.
Conclusions
50 In any event, it would seem that the matters that the applicant has raised are properly characterised solely as matters of hardship and inconvenience, and as appears above, the Supreme Court has repeatedly directed the Department not to have regard to those matters in the exercise of its discretion under s 48(1).
51 It is for all of these reasons that the Tribunal has concluded that the review must fail.
52 There will be a final order dismissing the application for review and a consequential order affirming the decision under review.
Orders
53 The Tribunal orders that:
1. For the reasons delivered ex tempore on 10 January 2008, the application for review is dismissed.
2. The decision under review is affirmed.
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I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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