BROOKS and DEPARTMENT OF TRANSPORT
[2020] WASAT 80
•24 JULY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: ROAD TRAFFIC (ADMINISTRATION) REGULATIONS 2014 (WA)
CITATION: BROOKS and DEPARTMENT OF TRANSPORT [2020] WASAT 80
MEMBER: DR B MCGIVERN, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 24 JULY 2020
FILE NO/S: CC 1965 of 2019
BETWEEN: RICHARD CHARLES GEORGE BROOKS
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Authorisation to drive - Alcohol offender - Application for replacement driver's licence document not processed - Alcohol interlock scheme - Notice that any licence will be subject to 'condition I' - Whether a reviewable decision was made - Whether Tribunal has jurisdiction to review - Preliminary issue
Legislation:
Road Traffic (Administration) Act 2008 (WA), s 8
Road Traffic (Administration) Regulations 2014 (WA), reg 32(1)
Road Traffic (Authorisation to Drive) Act 2008 (WA), Pt 2
Road Traffic (Authorisation to Drive) Regulations 2014 (WA), reg 3, reg 7, reg 31(1), reg 33, reg 34, reg 53B, reg 69A, reg 69D, reg 69E, reg 70, reg 70(a), reg 70(c), reg 72, Pt 5A, Pt 6, Sch 7
Road Traffic Act 1974 (WA), s 63(1)(a), s 63(1)(c)
State Administrative Tribunal Rules 2004 (WA), r 9
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Department Of Transport - Legal And Legislative Services |
Case(s) referred to in decision(s):
Di Virgilio v McCleary [2012] WASC 437
D'Orta-Ekenaike v Victorian Legal Aid (2005) 214 ALR 92
Minister for Immigration & Ethnic Affairs v Gungor (1982) 4 ALD 575
O'Connor and Town of Victoria Park [2005] WASAT 161
Rogers v R (1994) 181 CLR 251
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Department of Transport (Department) is the licensing authority for the Western Australian driver licensing scheme established under Pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA).
The Chief Executive Officer of the Department (CEO) has the power to grant to a person a driver's licence under reg 7 of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA) (Authorisation to Drive Regulations). In these reasons, unless otherwise specified, all regulation references are references to the Authorisation to Drive Regulations.
The CEO is able to delegate any of the CEO's powers to a person or persons (each a CEO's delegate) under s 8 of the Road Traffic (Administration) Act 2008 (WA).
In these reasons, unless otherwise specified, the Department, the CEO and the CEO's delegates will be referred to collectively as the respondent.
In very broad terms, Mr Richard Brooks (applicant):
(a)following the cancellation and then expiration of his driver's licence, applied to the respondent for a replacement licence;
(b)was advised by the respondent that, for various reasons, his application could not be processed; and
(c)seeks review by the Tribunal of that (purported) decision under reg 32(1) of the Road Traffic (Administration) Regulations 2014 (WA) (Administration Regulations).
The respondent argues that the Tribunal does not have jurisdiction to deal with the application under reg 32(1) of the Administration Regulations.
Pursuant to orders made on 7 April 2020, the following issue is to be determined as a preliminary issue: 'Does the Tribunal have jurisdiction to deal with this matter?' (preliminary issue).
Pursuant to orders made on 21 May 2020, the preliminary issue is to be determined entirely on the documents, which relevantly comprise:
(a)the applicant's application to the Tribunal dated 13 December 2019, with the following attachments:
(i)two copies of a written statement of the applicant (Statement);
(ii)a letter from the Department to the applicant dated 23 October 2019 (October Letter);
(iii)a notice of result of hearing issued by the Magistrates Court of Western Australia at Midland dated 7 December 2017; and
(iv)a notice of conviction hearing issued by the Magistrates Court of Western Australia at Northam dated 22 April 2013;
(b)the respondent's written submissions dated 14 February 2020;
(c)the respondent's further written submissions and bundle of documents, both dated 23 April 2020 and filed 24 April 2020; and
(d)the applicant's written submissions dated 8 May 2020 (attaching a further copy of the Statement).
Facts
Except as otherwise identified below, the following facts are uncontentious.
The applicant is 67 years old and has held a driver's licence in Western Australia since or around 1989. (There is some divergence between the parties' evidence as to the exact date: the respondent states it to be 1993; the applicant states it to be 1989, with an upgrade to an HR licence in 1993. Nothing turns on this matter.)
The respondent's bundle of documents contains a statement of material facts dated 29 August 2017 which:
(a)identifies the applicant as the accused in relation to an offence under s 63(1)(a) of the Road Traffic Act 1974 (WA) (RTA): 'Drove a motor vehicle under the influence of alcohol' (Offence); and
(b)outlines the following material facts:
At 11.59 am on Friday the 25 August 2017, the accused drove a Mitsubishi motor vehicle registered number 1CAJ724 on Mitchell Avenue, Northam.
The accused was stopped and it was ascertained that he had consumed alcohol.
As a result of this, the accused underwent a breath analysis test which gave a reading of 0.186 grams of alcohol per 210 litres of breath, calculated at 0.176 grams of alcohol per 100 ml of blood at the time of occurrence.
The accused was served a Disqualification Notice from 25/8/2017 to 24/10/2017.
A certified copy of the applicant's criminal and traffic history dated 28 January 2020 identifies that on 9 October 2017 the applicant was convicted in the Northam Magistrates Court of the Offence (with a reading of 0.176 grams recorded), fined $900 and disqualified from holding or obtaining a driver's licence for a period of 10 months.
In his Statement, the applicant does not dispute that he was convicted of the Offence, but:
(a)disputes the underlying material facts, stating that he 'blew .053' in the breath analysis test performed on 25 August 2017;
(b)states that he initially pleaded not guilty to the Offence; and
(c)states that he subsequently pleaded guilty to the Offence, resulting in his conviction on 9 October 2017, which plea was motivated by the consideration that his licence would be suspended whilst awaiting a final hearing, with the need to appoint a medical expert to give evidence.
By standard letter dated 16 October 2017, the respondent advised the applicant that, due to his conviction for the Offence, his driver's licence had been cancelled pursuant to reg 53B and that:
… [the applicant] may be deemed to be an 'alcohol offender' and may be required to have an approved alcohol interlock fitted to vehicles [he drives] on the grant of a driver's licence, which includes an extraordinary licence.
The applicant applied for and was granted an extraordinary licence in the Midland Magistrates Court on 7 December 2017. Although the applicant subsequently (according to the respondent, on 12 January 2018) attended the Department's licensing centre in Midland to have the extraordinary licence issued, the extraordinary licence was never in fact issued.
(a)The applicant explains that the extraordinary licence was not issued because he was asked to produce identification which he did not have with him on the day and, thereafter, he was for some months very rarely in Australia and was able to manage without a driver's licence.
(b)The respondent states that the applicant was advised by the licensing centre that, as an 'alcohol offender' his vehicle would have to be fitted within alcohol interlock device, and that the applicant then left the centre and did not reapply to have the extraordinary licence issued.
In or around December 2018, following his period of disqualification, the applicant applied to the respondent for a driver's licence by completing a Driver's Licence Application Form (DLA1).
By letter dated 21 December 2018, the respondent advised the applicant that:
(a)his driver's licence had expired on 1 July 2018;
(b)he would need to provide the respondent with proof of his identity and, in addition to submitting a completed DLA1 form, would need to undergo an eyesight test;
(c)thereafter, provided the applicant was not required to undergo a medical assessment, he would be able to have an 'interlock restricted drivers licence' issued; and
(d)upon issue of an interlock restricted drivers licence, the applicant could not drive until an approved interlock from an accredited service provider had been installed in his vehicle (and that his Mitsubishi Magna was currently subject to a licence suspension order (LSO) and could not be driven pending removal of the LSO).
In response to a letter from the applicant dated 8 January 2019, the respondent by letter sent on or around 5 February 2019 advised the applicant that:
(a)under the Authorisation to Drive Regulations, the Offence is deemed by to be an 'alcohol interlock offence' and, given his conviction for the Offence, the applicant is therefore deemed to be an 'alcohol offender';
(b)any licence granted to him would be endorsed with an 'I condition' meaning that the applicant would not be permitted to drive a vehicle without an approved alcohol interlock device fitted; and
(c)the requirement on the applicant to fit an alcohol interlock device to his vehicle was an 'administratively applied requirement' for the issue of a licence to an alcohol offender under the regulations.
In or around October 2019, the applicant submitted an 'Application for Replacement / Certified Copy' (DL26) form to the respondent (Replacement Application). DL26 is the form prescribed by the respondent for an application for a replacement drivers licence document made pursuant to reg 31(1) (see [25] below).
In response to the above application, the respondent sent the October Letter to the applicant which relevantly:
(a)stated that the respondent was unable to process the Replacement Application because the applicant's driver's licence had been:
(i)cancelled between 9 October 2017 and 25 June 2018; and
(ii)expired for more than six months (see [17(a)] above); and
(b)repeated the advice to the applicant (other than in relation to the LSO) outlined at [17(b)]-[17(d)] above.
The regulatory framework
As noted above, the CEO has the power to grant to a person a driver's licence (reg 7).
When considering an application for the grant of a driver's licence, whether or not by way of renewal, if the CEO thinks that the driver's licence should not be granted except on conditions, the CEO may grant the licence on conditions (reg 33). Any conditions imposed must be recorded on the licence document; for these purposes, a condition described in column 2 of Sch 7 may be recorded by endorsing the licence with the corresponding notation in column 1 (reg 34).
Column 1 of Sch 7 includes a notation 'I' which refers to the following condition:
The authorisation to drive a motor vehicle applies only if an approved alcohol interlock is installed in the vehicle and is in operation.
Part 5A of the Authorisation to Drive Regulations provides for an 'alcohol interlock scheme'. Under that Part, reg 69D provides that, subject to reg 69E (which exempts certain persons), if a driver's licence is granted to an 'alcohol offender', the CEO 'must endorse the licence with condition I'. Relevantly:
(a)reg 69A provides that, in Pt 5A:
alcohol offender means … a person who has been convicted of an alcohol interlock offence committed on or after the scheme commencement day … and who … has not ceased to be an alcohol offender under regulation 69F(a)[.]
and
(b)reg 3 defines 'alcohol interlock offence' to include an offence under s 63(1)(a) or (c) of the RTA.
Notably given the factual background (see [19] above), reg 31(1) provides for replacement of a driver's licence document in certain circumstances, as follows:
If a driver's licence document is lost, stolen, destroyed or there is any other good reason for it to be replaced, the CEO must issue a replacement licence document to the licence holder …
(Tribunal's emphasis)
Of particular relevance to the preliminary issue, Pt 6 of the Authorisation to Drive Regulations deals with 'reviewable decisions' which are defined in reg 70 as follows:
In this Part -
reviewable decision means a decision of the CEO to -
(a)refuse an application for the grant of a driver's licence; or
[(b)deleted]
(c)impose a condition when granting a driver's licence; or
(d)vary a driver's licence, whether by imposing or varying a condition, by making, varying, or cancelling any other endorsement on it, or in any other way; or
(e)refuse an application for the variation of a driver's licence; or
(f)suspend or cancel a driver's licence; or
(g)under regulation 62, exclude the person from being authorised by regulation 61 to drive a motor vehicle.
Regulation 72 provides that a person affected by a reviewable decision may request the CEO in writing to reconsider the decision.
Finally, reg 32(1) of the Administration Regulations provides that:
A person affected by a reviewable decision as defined in the [Authorisation to Drive Regulations] regulation 70 or a decision made on reconsidering a reviewable decision under regulation 72 of those regulations may apply to the State Administrative Tribunal for a review of the decision.
The parties' contentions
The respondent's contentions in relation to the preliminary issue may be summarised as follows:
(a)the October Letter did not disclose a decision to refuse an application for the grant of a driver's licence (reg 70(a)), or to impose a condition when granting a driver's licence (reg 70(c));
(b)the respondent has not made or communicated any final decision in relation to the applicant's application for a replacement driver's licence;
(c)rather, the respondent has communicated with the applicant about certain procedural requirements or restrictions that prevent the processing of his application to a final decision;
(d)the provision of information relevant to a future decision is not a decision;
(e)in any event, any endorsement of a driver's licence with condition I occurs by operation of the law (reg 69D ) rather than by the exercise of any discretion and is therefore not properly characterised as a decision; and
(f)in the premises, there is no reviewable decision within the meaning of reg 70 capable of enlivening the Tribunal's review jurisdiction.
The respondent's further written submissions dated 23 April 2020 include a further contention to the effect that, if the Tribunal finds that it has jurisdiction to determine the substantive dispute, then in any event the application was brought outside the time allowed under r 9 of the State Administrative Tribunal Rules 2004 (WA).
The applicant, who is unrepresented, filed submissions that are largely directed to matters that are tangential to, or of limited relevance to, the preliminary issue. Insofar as he has addressed the preliminary issue, those contentions may be summarised as follows:
(a)the applicant is not an alcohol offender within the meaning of the Authorisation to Drive Regulations;
(b)in the absence of the applicant being an alcohol offender, the provisions of Pt 5A of the Authorisation to Drive Regulations do not apply; and
(c)in the premises, the substance of the October Letter constitutes a reviewable decision.
Consideration
Time allowed for making the application
The Tribunal notes that in its further written submissions of 23 April 2020, the respondent has raised - as 'another preliminary issue' - an argument that the application for review was made out of time.
Ordinarily, a limitation issue would be one dealt with as a procedural matter anterior to the determination of any substantive dispute. However, in circumstances where:
(a)by orders dated 7 April 2020, the preliminary issue was defined to be the issue of the Tribunal's jurisdiction (see [7] above) and the parties were directed to file submissions and documents in relation to that issue;
(b)the applicant has not been called upon to address, and has not addressed, the question of any limitation period in his submissions; and
(c)by orders dated 21 May 2020, it is the preliminary issue (as defined) that is to be determined on the papers,
it would not be procedurally fair for the Tribunal to seek to address or determine the question of time in these reasons.
The Tribunal notes, in any event, that:
(a)if the application for review was in fact made out of time, then any decision about granting an extension of the time allowed would inevitably include consideration of whether there was an arguable case for review (O'Connor and Town of Victoria Park [2005] WASAT 161; Di Virgilio v McCleary [2012] WASC 437); and
(b)the determination of whether the application for review was made out of time is, for the reasons that follow and subject to any successful review of this decision, unnecessary.
No reviewable decision
In his application, the applicant identified the date of the 'reviewable decision' as being 23 October 2019 and attached the October Letter to the application. He has therefore clearly identified the October Letter as comprising or containing the decision in respect of which he seeks review.
It is apparent from the content of that letter, and the applicant has made no contention to the contrary, that the October Letter was sent in response to an application made by applicant to the respondent for a replacement driver's licence (see [19] above).
Provision is made under the Authorisation to Drive Regulations for the replacement of a driver's licence document under reg 31(1), as outlined at [25] above, and not otherwise.
Reg 31(1) is concerned with the issue of a driver's licence document, not with the grant of a driver's licence. So much is clear not only from the use of the term 'driver's licence document' (as distinct from 'driver's licence'), but also from the regulation referring to a replacement document being issued to 'the licence holder'. It is clear that the regulation is premised upon the applicant for a replacement document already holding the relevant licence.
Accordingly, if and to the extent that the October Letter contains any decision made by the respondent (see contentions to the contrary at [29(b)]-[29(c)] above), that decision was about issuing a replacement driver's licence document, made in response to an application made by the applicant under reg 31(1).
A decision about whether or not to issue a replacement driver's licence document is not a reviewable decision under reg 70. Accordingly, the Tribunal's review jurisdiction is not enlivened.
The conclusion above is sufficient to determine the preliminary issue. However, in the event that that conclusion is wrong, and to more fully address the applicant's submissions, the Tribunal will nevertheless canvass the applicant's contentions (as outlined at [31] above) in relation to the preliminary issue.
Decision to impose 'condition I'
It appears from the applicant's submissions (referring collectively to the documents identified at [8(a)] and [8(d)]) that he:
(a)understands the October Letter to contain or disclose a decision 'to impose a condition when granting a licence' (reg 70(c)); specifically, a decision to impose condition I on any licence granted to him (see [23] above); and
(b)seeks to challenge to the application of reg 69D (as to which, see the respondent's contention at [29(e)]) on the basis that he is not an alcohol offender.
The central pillar of the applicant's contentions is that he is not an alcohol offender. That contention:
(a)appears to be founded on his assertion that at the time of his breath analysis test, his reading was in fact 0.053 (see [13(a)] above) and not 0.186 (see [11] above) or 0.176 (see [12] above); and
(b)is misconceived because the definition of alcohol offender under reg 69A (which in turn triggers the application of reg 69D) is not based on the facts giving rise to a conviction, but on the fact of conviction itself (relevantly, of an offence under s 63(1)(a) of the RTA).
The applicant does not dispute that he was convicted of the Offence, and positively adverts to his guilty plea in that regard. While that conviction stands then, irrespective of the underlying facts, the applicant is deemed to be an alcohol offender.
Any contention in this Tribunal that the applicant is not an alcohol offender because the conviction was not properly arrived at is an impermissible collateral attack on a conviction that has not been set aside: Minister for Immigration & Ethnic Affairs v Gungor (1982) 4 ALD 575 at 580-1; Rogers v R (1994) 181 CLR 251 at 273; D'Orta-Ekenaike v Victorian Legal Aid (2005) 214 ALR 92 at [77].
Further, it is clear that if and to the extent that there was any decision by the respondent to impose condition I in relation to any licence that may be granted to the applicant (putting aside, for these purposes, the respondent's contention that the absence of discretion precludes the characterisation of such an outcome being a 'decision': see [29(e)] above), then any such decision was not made 'when granting a licence' to the applicant and therefore falls outside the scope of reg 70(c).
For completeness, there is also nothing in the October Letter that discloses a decision to refuse the grant of a driver's licence to the applicant (rather, the letter sets out the pre-requisites for any such grant) and so reg 70(a) does not apply.
Accordingly, even if the conclusion at [40] is wrong, then in any event:
(a)the October Letter does not, for the reasons outlined above, contain or disclose a reviewable decision within the meaning of reg 70; and
(b)the Tribunal's review jurisdiction is not enlivened.
Orders
1.The Tribunal does not have jurisdiction to deal with the matter.
2.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B McGivern, MEMBER
24 JULY 2020
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