Boyd v Director General of Transport

[2000] WASCA 303

BOYD -v- DIRECTOR GENERAL OF TRANSPORT [2000] WASCA 303

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 303
Case No:	SJA:1123/2000	Heard:	17 OCTOBER 2000
Coram:	SCOTT J	Delivered:	20/10/00
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal allowed Extraordinary driver's licence granted
PDF Version

Parties:	ANDREW MORTON BOYD DIRECTOR GENERAL OF TRANSPORT
Catchwords:	Vehicles and traffic Appeal against refusal to grant extraordinary motor driver's licence Degree of hardship Turns on own facts
Legislation:	Road Traffic Act 1974, s 42(2)(c), s 42(2)(d) and s 76
Case References:	Stonehouse v Commissioner of Police unreported; SCt of WA (Pidgeon J); Library No 5669; 5 October 1984 Damianopoulos v Director General of Transport (1997) 26 MVR 182 Galati v The Traffic Board, unreported; SCt of WA; Library No 980731; 16 December 1998 House v The King (1936) 55 CLR 499 Italiano v Director General of Transport (1999) 29 MVR 249 Manfredi v The Traffic Board, unreported; SCt of WA; Library No 950030; 10 January 1995 O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999 The Traffic Board v Smith, unreported; SCt of WA; Library No 950394; 25 July 1995

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BOYD -v- DIRECTOR GENERAL OF TRANSPORT [2000] WASCA 303 CORAM : SCOTT J HEARD : 17 OCTOBER 2000 DELIVERED : 20 OCTOBER 2000 FILE NO/S : SJA 1123 of 2000 BETWEEN : ANDREW MORTON BOYD

Appellant

AND

DIRECTOR GENERAL OF TRANSPORT
Respondent

Catchwords:

Vehicles and traffic - Appeal against refusal to grant extraordinary motor driver's licence - Degree of hardship - Turns on own facts

Legislation:

Road Traffic Act 1974, s 42(2)(c), s 42(2)(d) and s 76

Result:

Appeal allowed

Extraordinary driver's licence granted


(Page 2)

Representation:

Counsel:

Appellant : In person
Respondent : Ms L J Dias

Solicitors:

Appellant : In person
Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Stonehouse v Commissioner of Police unreported; SCt of WA (Pidgeon J); Library No 5669; 5 October 1984

Case(s) also cited:

Damianopoulos v Director General of Transport (1997) 26 MVR 182
Galati v The Traffic Board, unreported; SCt of WA; Library No 980731; 16 December 1998
House v The King (1936) 55 CLR 499
Italiano v Director General of Transport (1999) 29 MVR 249
Manfredi v The Traffic Board, unreported; SCt of WA; Library No 950030; 10 January 1995
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
The Traffic Board v Smith, unreported; SCt of WA; Library No 950394; 25 July 1995


(Page 3)

1 SCOTT J: The applicant was granted leave to appeal by Owen J on 7 August 2000 in relation to the refusal of a Stipendiary Magistrate to grant him an extraordinary driver's licence under s 76 of the Road Traffic Act 1974.

2 The grounds of appeal are:

"A The learned Magistrate erred in law in his assessment of the applicant's application, in that he:

1 Failed to consider, adequately, or at all, any of the criteria mentioned at section 76(3) of the Road Traffic Act, save for the applicant's driving record.

2 Put exclusive or undue weight on the applicant's driving record.

3 Assessed the applicant's record as overwhelming all the other evidence in favour of the applicant.

4 Put insufficient weight on the criteria of section 76(3) of the Road Traffic Act which favoured the granting of an extraordinary driver's licence to the applicant, namely


a) the degree of hardship and inconvenience which would otherwise result to the applicant and his family, if the Court refrains from making an order;

b) the circumstances of the case;

c) the character of the applicant; and

d) the nature of the offence or offences giving rise to the disqualification.

B The learned Magistrate erred in fact in his assessment of the applicant's application, in that he stated without justification and against the evidence produced that the applicant had lost his motor driver's licence nine times in 1995."

3 The appellant runs a full-time private taxi company, which from the evidence before the learned Magistrate involves the use of luxury vehicles

(Page 4)

for the purpose of transporting clients in the metropolitan area. The evidence indicates that the appellant runs a vehicle fleet comprising of Fairlane Ghias, Taragos and Mercedes. Some of those vehicles are driven by subcontractors and the appellant ordinarily is engaged as a driver.

4 Despite the appellant's submissions to the contrary, I am of the view that the appellant has an appalling traffic record, he having lost his licence on three occasions for demerit point suspensions in 1993, 1995 and on 28 February 2000. In all, those three periods of suspension have involved at least the loss of 36 demerit points.

5 Following his third demerit point suspension on 28 February 2000, the appellant was caught driving under suspension on 19 March 2000, that is, approximately three weeks after the demerit point suspension. On that occasion, when stopped, the appellant was carrying passengers in the vehicle, in the course of his employment.

6 When the appellant was convicted of driving under suspension on 30 May, this year, he was fined $400 and his motor driver's licence was suspended for nine months cumulative. The nine-month period was the minimum period of suspension available to the learned Magistrate under the provisions of s 49(3) of the Road Traffic Act 1974.

7 Having read the evidence and the reasons of the learned Magistrate, and taking into account the submissions made by both sides on this appeal, I am quite unable to conclude that his Worship made any error in the exercise of his discretion. The appellant acted contemptuously in driving his motor vehicle so soon after the demerit point suspension and the learned Magistrate was quite justified in coming to the conclusion that:

"The grant of an extraordinary licence must be exercised with extreme care, particularly when the person asking for a driver's licence has lost his licence for lack of demerit points - - or for loss of demerit points, rather, on three occasions - 93, 95 and 2000 - and when he last lost his licence on the 28th of February this year for 3 months because of demerit points, he drove again on the 19th of March. So he lost his licence on the 28th of February and drove on the 19th of March, which was some 3 weeks later, and he was driving quite a considerable distance. He was driving passengers, paying passengers in his car, and he says himself - and he doesn't make any bones about it - - Mr Boyd says … passengers would be put at risk not being

(Page 5)

covered by insurance, and of course that is something that one mustn't do. One must not put passengers at that kind of risk."

8 His Worship went on to refer to the appellant's traffic record and to the number of occasions upon which he had lost demerit points. The appellant clearly, over a period of years, has driven his motor vehicle at excessive speeds in the course of his employment.

9 The appellant seeks an extraordinary licence to drive two of the nominated vehicles 24-hours a day, 7-days a week within a radius of 40 kms of the Perth GPO. Part of the reason for the geographical limitation is that the appellant lives in Edgewater and, as he points out, the distance between his house and the Perth International Airport, from which he obtains some of his business, is 40 kms. That being the case, the geographic limitation sought is not unreasonable. What is unreasonable, however, is the application for a licence 24-hours a day, 7-days a week. As was mentioned in the course of argument in this matter, it might well be that because the appellant tries to work long hours, his attention to his speed lapses from time to time.

10 The only basis upon which it can be said that the appeal should be allowed is that the appellant is now suffering extreme hardship. His financial position has deteriorated since this application was heard on 6 July 2000 because the appellant has been unable to work. His wife works and earns a salary, which has been used in part to defray the appellant's expenses, but the appellant maintains that his financial position has deteriorated. He is unable to pay expenses and submitted that if the position did not improve he might have to sell his house.

11 Having heard the submissions by the appellant, I am of the view that he has suffered and is suffering extreme hardship. His suspension will not terminate until February 2001 and he will be unable to make a further application for an extraordinary driver's licence until January 2001.

12 In Stonehouse v Commissioner of Police unreported; SCt of WA (Pidgeon J); Library No 5669; 5 October 1984, his Honour had occasion to consider a case which had some parallels with the present. His Honour said at 4:

"As I interpret the policy of the Act and the policy of the section licences of this nature ought to be hard to get and, if given, ought to be on a very limited basis. The Act is there to provide some alleviation in the area of employment if that becomes apparent to the court. …

(Page 6)

I would consider it important that however bad the offence is and however bad the circumstances, and provided no criminal offence is involved, the question of looking to see if great hardship can be alleviated should not be completely excluded.

… If the order is granted in a limited form, then for the full time of the suspension the appellant is still under very great hardship."

13 Taking all of those matters into account, it seems to me that in these circumstances the appellant should be given some limited relief. Accepting that the appellant is in very difficult financial circumstances, it is important that he should be restrained from the temptation to work excessive hours, which may result in further lapses in his driving conduct. For that reason, in my view, the appellant's licence should be limited to a period of 10-hours per day between 8.00 am and 6.00 pm. That period will allow the appellant time to drive from his residence to his first pick-up and to get home again in the evening, as well as working a reasonable day. In addition, the appellant's licence should be limited to work purposes and work purposes alone, so that his driving will be only in the course of his business. In my opinion, the 40 kms radius from the GPO is a reasonable geographic limitation, bearing in mind the appellant's place of residence and the area he needs to cover.

14 In addition, the appellant should be required to comply with s 42(2)(c) and s 42(2)(d) of the Road Traffic Act 1974 before the extraordinary driver's licence issues to him.

15 It is important that the appellant should realise the likely consequences that will follow should he breach the extraordinary licence or drive under suspension in the future.

16 In this case, it is only the extreme hardship that will be suffered by the appellant which has led the court to the conclusion that a limited licence should be granted to him. Should there be any breach of the terms of that licence, the appellant should realise that it is likely to result in immediate cancellation of the extraordinary motor vehicle driver's licence. Leniency is unlikely to be extended to him again.

17 The appeal will be allowed and the appellant will be granted an extraordinary driver's licence on the limited basis that I have indicated upon satisfactory compliance with the provisions of s 42(2)(c) and s 42(2)(d) of the Road Traffic Act 1974.