Bathurst v The Chief Police Officer (Administrative Review)
[2022] ACAT 97
•18 November 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BATHURST v THE CHIEF POLICE OFFICER (Administrative Review) [2022] ACAT 97
AT 71/2022
Catchwords: ADMINISTRATIVE REVIEW – review of decision to refuse the withdrawal of infringement for exceeding the speed limit – whether the withdrawal can be made on the basis of exceptional circumstances – the onset of nausea due to COVID-19 vaccination does not of itself amount to an exceptional circumstance – decision confirmed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 9
Road Transport (General) Act 1999 ss 34, 38, 95
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 130
Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (No 1)
Cases cited:Fonseka v The Chief Police Officer [2021] ACAT 32
Warren v Road Transport Authority [2021] ACAT 31
Tribunal:Member W Hawkins
Date of Orders: 18 November 2022
Date of Reasons for Decision: 18 November 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 71/2022
BETWEEN:
JUSTIN BATHURST
Applicant
AND:
THE CHIEF POLICE OFFICER
Respondent
TRIBUNAL:Member W Hawkins
DATE:18 November 2022
ORDER
The Tribunal orders that:
The decision dated 18 August 2022 is confirmed.
………………………………..
Member W Hawkins
REASONS FOR DECISION
The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current member.
By way of this application, the applicant sought review of the respondent’s refusal to withdraw a traffic infringement notice pursuant to section 34 of the Road Transport (General) Act 1999 (the RT (G) Act).
The role of the Tribunal
The tribunal is conferred with jurisdiction to undertake merits review of the decision pursuant to section 95 of the RT (G) Act and section 9 of the ACTCivil and Administrative Tribunal Act2008 (the ACAT Act). In undertaking a review of this kind, the tribunal “stands in the shoes of the decision-maker” and considers whether the decision was the correct or preferable decision. The tribunal must do so based on the evidence before it at the time of the hearing.
The hearing
The matter was heard on 4 October 2022. Justin Bathurst (the applicant) was self-represented. The Chief Police Officer (the respondent) was represented by Mr Chand of the ACT Government Solicitor. Also present for the respondent was Ms Kitson on behalf of Access Canberra. The Tribunal had before it the documents provided by the respondent pursuant to rule 130 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (T-Documents) and written submissions filed by the respondent. Both parties made oral submissions at the hearing.
By application filed 7 September 2022, the applicant sought review of a decision of the respondent regarding traffic infringement notice 277 621 3578 (infringement notice). On 11 July 2021, the vehicle, the subject of the infringement notice, was captured by a speed camera at the intersection of Northbourne Avenue and Barry Drive and Cooyong Street, Canberra City. The vehicle was detected travelling at 48 km/h in a 40 km/h zone. The applicant concedes he was driving the motor vehicle that is the subject of the infringement notice at the time and that he was driving at the detected speed. For the most part, the factual evidence was not in contention.
Section 34 of the RT (G) Act provides that a person served with an infringement notice may apply to the administering authority for withdrawal of the notice. Section 38 further provides that the Minister may issue guidelines for the withdrawal of infringement notices. The administering authority for a relevant infringement notice offence must comply with those guidelines. The guidelines set out several bases upon which an infringement notice may be withdrawn. Those include “exceptional circumstances”. The substantive question in these proceedings was whether the applicant was able to seek withdrawal of the infringement notice on the basis of “exceptional circumstances”.
Background
On 11 July 2021, the applicant was driving home from a medical clinic after having received his first COVID-19 vaccination (Astra Zeneca) (the vaccination). The appointment was at 10:20am and was at Greenway, ACT. Following the injection, the applicant waited at the clinic for the required 15 minutes before being permitted to leave. The applicant stated that he felt well initially, but by the time he reached Northbourne Avenue, he suffered an onset of severe nausea. At about 11:15am, as he drove through the intersection of Barry Drive/Cooyong Street and Northbourne Avenue and past a speed camera, his vehicle speed was recorded at 48 km/h. The speed limit at the location was 40 km/h.
Shortly thereafter, the applicant was issued with an infringement notice and a fine for exceeding the speed limit by less than 15km/h.
The applicant’s evidence, which was not contested and which I accept, was that at the time of the onset of the nausea, he was almost home, and his focus was on getting there before becoming more unwell. I further accept that whilst his focus was on getting home, that he exceeded the speed limit.
On 20 July 2021, the applicant applied to Access Canberra for withdrawal of the infringement notice. In that application, he stated that at the time of the offence he was overwhelmed with nausea, was on a busy road and was unable to stop. He also said that he was near home and keen to get back. He said that he must have momentarily lost track of his vehicle’s speed. Upon arriving home, he was “physically sick and needed to lie down for a few hours”.[1] When he awoke, he felt better he did not seek medical attention.[2]
[1] T-Document 4, pages 25-27
[2] Application for review of a Decision filed 7 September 2022 and T-Document 1, pages 2-19
On 18 July 2022, a delegate of the Chief Police Officer wrote to the applicant advising of his decision to refuse to withdraw the infringement notice. The reasons of the refusal were, among other things, that having nausea is not a reason to exceed the speed limit and is not a medical emergency; that the applicant made the decision to drive and maybe should have found somewhere to stop until the nausea had passed.[3]
[3] T-Document 5, pages 28-30
On 17 August 2022, the applicant wrote to the delegate and requested an internal review of the decision to refuse to withdraw the infringement notice. In that letter, the applicant set out his reasons for seeking the review.
On 18 August 2022, a different delegate of the Chief Police Officer wrote to the applicant, stating among other things that:
After careful consideration, I have determined the original decision not to withdraw the Traffic Infringement Notice will remain unchanged.[4]
[4] T-Document 7, page 35
The delegate considered that:
Where the cameras are active there are a total of 17 advisory signs for the 40 km/h speed zone:
· Northbourne Avenue - Northbound between London Circuit and Barry Drive- seven 40km/h signs and one Variable Message Sign,
· Northbourne Avenue – Southbound between Barry Drive and London Circuit – five 40 km/h signs,
and
· Barry Drive – Westbound between Northbourne Avenue and Marcus Clarke Street – four 40 km/h signs
· Road markings at each location
It is a motorist’s responsibility to check the speed limit and to drive to conditions. Road safety is everyone’s responsibility, and by slowing down in these areas we can keep our community safe. The signs are clear in the area. There is no time limit for this office to review and infringement for withdrawal.[5]
[5] T-Document 7, pages 35
On 7 September 2022, the applicant made his application to the tribunal for review of the decision to refuse to withdraw the infringement notice.
Applicable law
The RT(G) Act provides for the issuing of infringement notices for certain “infringement notice offences”, including exceeding the speed limit.
Section 34 of the RT(G) Act provides that a person served with an infringement notice may apply to the authority for withdrawal of the notice. Section 38 provides for the Minister to make “guidelines” for the waiver of infringement notice penalties. Section 38(2) of the RT(G) Act provides that the authority must comply with those guidelines. This means that the authority was bound to comply with the guidelines, and the Tribunal, standing in the shoes of the authority, must also comply with the guidelines.
The Minister has made guidelines, being the Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (No 1) (the Guidelines).
The introduction to the Guidelines provides:
GROUNDS FOR WITHDRAWAL OF INFRINGEMENT NOTICES
Withdrawal of an infringement notice has the effect that the offence never happened, that is, all penalties associated with the offence (financial and demerit points) do not apply.
In determining whether to withdraw an infringement notice, the administering authority may take into account:
• the circumstances in which the infringement notice was issued, including the level of risk posed by the applicant’s behaviour to other road users or public passengers;
• the seriousness of the offence; and
• the extent to which the applicant was aware, or ought reasonably to have been aware, that the conduct constituting the offence was contrary to law.
Certain offences are generally considered to be unsuitable for withdrawal due to the level of risk they pose and the seriousness of the offence. These offences are outlined in Attachment A to this schedule.Disagreeing with a law, or finding it inconvenient, to adhere to it are not grounds for having an infringement notice withdrawn.
The Guidelines set out several bases upon which an infringement notice may be withdrawn. The only basis relevant to this matter is where there are “exceptional circumstances”. The Guidelines provide:
Exceptional circumstances
An applicant can seek withdrawal on the grounds of exceptional circumstances. Where an applicant seeks withdrawal on this basis, the application must be accompanied by a statement detailing the exceptional circumstances and attach supporting evidence of the event.
When deciding whether to withdraw an infringement notice on these grounds, the administering authority must consider the specific circumstances and alternative options available to the applicant, the risks posed to other road users and any other relevant circumstances.
Examples of exceptional circumstances are:· Emergency situation or similar event as opposed to a diagnosed condition or late for an appointment.
· Unexpected trauma to them as driver, a passenger in the vehicle or other road user.
· Unforeseen or unpreventable circumstance for example a medical emergency.
· Penalty is received for not displaying L or P plates and these fell off during the journey or the plates were stolen and the applicant was not in a position to obtain replacement plates at the time of the offence.
Where the grounds for withdrawal relate to an emergency medical situation or event, supporting evidence required includes a statement from a registered health practitioner, hospital records, police report or similar report.
Although the Guidelines provide examples of “exceptional circumstances”, the Guidelines do not define what an ‘exceptional circumstance’ is. The Guidelines further require that where the grounds for withdrawal relate to an emergency medical situation or event, supporting evidence (including a statement from a registered health practitioner, hospital records, police report or similar report) is required.
The applicant’s arguments
The applicant’s first submission was that the original decision did not give proper regard to his specific circumstances being the illness brought on as a result of having recently received a vaccination and that the original decision was received a year later and did not make a specific reference to it.[6]
[6] Transcript of proceedings, 5 October 2022, page 7
In support of his application to the Tribunal, the applicant filed evidence including a Services Australia Medicare Immunisation history statement (immunisation history statement) and a COVID-19 digital certificate that confirmed that he was given the vaccination that day. The applicant said that he had the vaccination at about 10:20am on the morning he was issued with the infringement notice.[7] The respondent did not take issue with the date or that the applicant received his vaccination.
[7] T-Document 3, page 8
The applicant’s second submission referred to the Guidelines’ requirement that where the grounds for withdrawal relate to an emergency medical situation or event, supporting evidence required includes a statement from a registered health practitioner, hospital records, police report, or similar report. He said that the evidence of his appointment to receive his vaccination and his immunisation history statement was sufficient.[8]
[8] Transcript of proceedings, 5 October 2022, page 8
The applicant’s third submission related to the lack of medical evidence to verify that he had a medical episode or an incident and became unwell following the vaccination. He said that he did not know at the relevant time of the infringement that he had exceeded the speed limit and only became aware when he received the notice of infringement. He further said that if he had been aware that at the relevant time that he was to receive an infringement notice, he would have gone to the doctor and obtained a medical certificate or a statement from a doctor to verify his nausea. As it was, he went home as it was a short distance from where the offence occurred.[9] He was thinking, “I want to get home. I need to get home. I’m going to be sick.”[10]
[9] Transcript of proceedings, 5 October 2022, page 8
[10]Transcript of proceedings, 5 October 2022, page 10
The applicant’s fourth submission was that he was unable to pull over on Northbourne Avenue, and that it was not possible to turn and park on Moore Street which was one street parallel to Northbourne. The applicant conceded that this, with the benefit of hindsight, would have been a possibility but if he had done so, he would have vomited on himself. However, at the relevant time, the realistic option in his mind was to get home.[11]
The respondent’s arguments
[11] Transcript of proceedings, 5 October 2022, page 14
The respondent submitted that the Guidelines sets out several bases upon which an infringement notice may be withdrawn, and these include “exceptional circumstances”. Where an applicant seeks withdrawal on this basis, the application must be accompanied by a statement detailing the exceptional circumstances and attach supporting evidence of the event. When deciding whether to withdraw and infringement notice on these grounds, the decision maker must consider the specific circumstances and alternative options available to the applicant, the risks posed to other road users and any other relevant circumstances.[12] The respondent submitted that the application for withdrawal was not accompanied by any supporting evidence to confirm the occurrence of the nausea.[13]
[12] Respondent’s submissions dated 4 October 2022 at [7]
[13] Respondent’s submissions dated 4 October 2022 at [11]-[12]
The respondent also submitted that when deciding whether to withdraw an infringement notice on the grounds of exceptional circumstances, the decision maker must consider the specific circumstances and alternative options available to the applicant, the risk posed to other road users and any other relevant circumstances.[14] The respondent argued that the applicant had various “alternative options” available to him to respond to the occurrence of “nausea”. These included complying with the road rules and observing the signed speed limits. The respondent conceded that it was not permissible to stop anywhere along the length of Northbourne Avenue,[15] however, it was possible to use the free 5-minute zones and paid 30-minute zones on Moore and Rudd Streets, or any of the designated locations on the three blocks of Mort Street that stretch between Bunda and Girrahween Streets.[16]
[14] Respondent’s submissions dated 4 October 2022 at [13]
[15] Transcript of proceedings, 5 October 2022, pages 31-32
[16] Respondent’s submissions dated 4 October 2022 at [14]
The respondent submitted that, notwithstanding the alternative options that were available to the applicant, the occurrence of nausea regardless of the circumstances that brought it about, is not exceptional in the normal sense. It is not “unusual” or “out of the common” for a person to experience nausea and that it is no more exceptional for a person to experience nausea than it is for a person to experience a headache.[17]
[17] Respondent’s submissions dated 4 October 2022 at [15]
The respondent’s final submission was that a proper consideration of “exceptional circumstances” in the context of an offence against the road rules was that there were no relevant decisions. Nonetheless, the respondent submitted that a proper consideration of “exceptional circumstances” in the context of a medical event may be such that the circumstances be unusual, be out of the common; or create an “emergency situation” in which time, for the person so affected to obtain medical attention, may be of the essence; and may otherwise render a person incapable of properly and safely operating a motor vehicle and that the circumstances in the present application was not one of those circumstances.[18]
Consideration and Decision
[18] Respondent’s submissions dated 4 October 2022 at [16]-[17]
During the course of the hearing, the parties’ attention was drawn to previous decisions of this tribunal. The applicant did not make any specific submissions in regarding those decisions.[19] The respondent submitted that the decision of Fonseka v The Chief Police Officer (Fonseka),[20] although not directly relevant to the Tribunal’s decision making in the present case, is of assistance. In Fonseka, the tribunal found that unfamiliarity with a road does not amount to an exceptional circumstance and may in fact be a reason to drive slower and to observe the speed limit, which is the law.[21] The respondent submitted by way of an analogy, that the applicant should slow down if suffering from nausea.[22] The respondent submitted that the decision of Warren v Road Transport Authority (Warren)[23] confirmed that the decision making powers of the tribunal in matters involving a decision to withdraw an infringement notice remains discretionary and that the tribunal may or may not order that the infringement notice be withdrawn only after considering all of the relevant circumstances.[24]
[19] Transcript of proceedings, 5 October 2022, page 29
[20] [2021] ACAT 32
[21] [2021] ACAT 32 [16]
[22] Transcript of proceedings, 5 October 2022, page 30
[23] [2021] ACAT 31
[24] [2021] ACAT 31 at [17]
The withdrawal of an infringement notice has the effect that the offence never happened, that is, all penalties associated with the offence (financial and demerit points) do not apply.[25]
[25] Guidelines, page 1
The Tribunal agrees with Warren that the decision to withdraw an infringement notice remains discretionary, but the decision may only be made after considering all of the relevant circumstances.
In this case, the offence involved the applicant exceeding the speed limit by less than 15 km/h in a 40km/h non-school zone along Northbourne Avenue.
The Guidelines require that where an applicant seeks withdrawal on the basis of exceptional circumstances, the application for withdrawal must be accompanied by a statement detailing the exceptional circumstances and attach supporting evidence of the event. In the circumstances of an emergency medical situation or event, the relevant supporting evidence includes a statement from a registered health practitioner, hospital records or similar. Although the applicant provided supporting evidence that he had a COVID-19 vaccination on the morning of 11 July 2021, he did not provide any supporting evidence to confirm the onset of nausea. The applicant argued that nausea was a known side effect of having the vaccination and that if he had known that supporting evidence was required, he would have attended a medical practitioner. The applicant may have done so, but the difficulty for the applicant is that he did not.
The applicant had other options available to him rather than going directly home. Although the applicant was not able to stop on Northbourne Avenue, there was nothing to stop him turning off Northbourne Avenue and availing himself of parking areas in Moore or Rudd Street. There was no evidence that the applicant had attempted to do so. Indeed, the applicant chose not to do so, and to proceed home and whilst doing so exceeded the speed limit of 40 km/h. The examples in the Guidelines are in the nature of impairment that takes choice out of the hands of the driver, whereas the applicant was still in a position to exercise choice and he exercised that choice by continuing to drive home.
A further difficulty for the applicant is whether the onset of nausea (regardless of the circumstances that may have brought it about) amounts to an “exceptional circumstance”. The respondent submitted that nausea is not unusual or out of the common and nausea may be a reason to slow down and to take extra precautions in order to avoid any incidents on the road and that being over the limit creates a risk to other road users. The Tribunal agrees with this submission.
Accordingly, on the evidence before the Tribunal, the Tribunal is not satisfied the applicant has established exceptional circumstances enabling the Tribunal to exercise its discretion to withdraw the infringement notice. The Tribunal is satisfied that the decision under review was the correct and preferable decision, and the Tribunal confirms the decision.
Order
The Tribunal orders that:
(a)The decision dated 18 August 2022 is confirmed.
………………………………..
Member W Hawkins
| Date(s) of hearing: | 5 October 2022 |
| Applicant: | In person |
| Solicitors for the Respondent: | Mr A Chand, ACT Government Solicitor |
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