Cavill v Registrar of Motor Vehicles - [2013] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
CAVILL v REGISTRAR OF MOTOR VEHICLES
[2013] SASC 33
Judgment of The Honourable Justice Blue
13 March 2013
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - GENERALLY
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - APPEALS
Mr Cavill contravened a prescribed condition of his probationary licence, as a result of which the Registrar issued a notice cancelling Mr Cavill’s probationary licence and disqualifying him from holding or obtaining a driver’s licence for six months (section 81B of the Motor Vehicles Act 1959 (SA)).
Mr Cavill appealed to the Magistrates Court on the ground of "severe and unusual hardship" (section 81B of the Act). The Magistrate dismissed the appeal, finding that it had not been demonstrated that the disqualification would result in severe and unusual hardship to Mr Cavill or his children.
Mr Cavill appeals against the order of the Magistrate dismissing the appeal.
Held:
1.      “Severe and unusual hardship” is a compound expression which requires an evaluative normative judgment of the degree of prospective hardship considered both objectively and relative to the generality of cases (at [13]-[15]).
2.      The appellant has not demonstrated that he will suffer severe and unusual hardship (at [32]).
3.      Appeal dismissed (at [33]).
Magistrates Court Act 1991 SA s 40; Motor Vehicles Act 1956 SA ss 81AB, 81B, 81BB, referred to.
Holden v Registrar of Motor Vehicles [2011] SASC 205, discussed.
Le Poidevin v Walker [1999] SASC 269; Perovic v Police [2011] SASC 174, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"severe and unusual hardship"

CAVILL v REGISTRAR OF MOTOR VEHICLES
[2013] SASC 33
Blue J:

Mr Cavill appeals against the dismissal by a Magistrate of his appeal[1] against his disqualification from holding a driver’s licence as a consequence of an offence committed while he was a holder of a probationary licence.[2]
[1] Motor Vehicles Act 1959 (SA) s 81BB.
[2] Motor Vehicles Act 1959 (SA) s 81B.
The issue on appeal is whether disqualification would result in severe and unusual hardship to Mr Cavill or his children within the meaning of section 81BB(4)(a) of the Motor Vehicles Act 1959 (SA) (“the Act”).
Background facts
On 6 July 2012, Mr Cavill drove a vehicle in Victoria at a speed of 15 or more kilometres per hour in excess of the prescribed speed limit. He thereby contravened a prescribed condition of his probationary licence issued on 6 November 2011 under section 81AB of the Act.
On 11 October 2012, the Registrar of Motor Vehicles gave to Mr Cavill a notice under section 81B of the Act that his probationary licence was cancelled and he was disqualified from holding or obtaining a driver’s licence or learner’s permit for six months to commence on 17 October 2012.
On 15 October 2012, Mr Cavill filed in the Adelaide Magistrates Court an appeal against the cancellation and disqualification under section 81BB of the Act. The effect of the institution of the appeal was to suspend the cancellation and disqualification until the determination of the appeal.[3] The appeal was heard by the Magistrate on 13 November 2012. The Registrar did not appear at the hearing of the appeal. Mr Cavill gave sworn evidence. He was questioned by his counsel and then by the Magistrate.
[3] Motor Vehicles Act 1959 (SA) s 81BB(6).
The Magistrate delivered ex tempore reasons for judgment. He dismissed the appeal. He concluded that, on the evidence adduced by Mr Cavill, it had not been demonstrated that the disqualification would result in severe and unusual hardship to Mr Cavill or his children.
On 13 November 2012, as a result of the dismissal of the appeal, the cancellation and disqualification came into effect. On 19 November 2012, Mr Cavill appealed to this Court against the order of the Magistrate.[4]
[4] Magistrates Court Act 1991 (SA) s 40.
On the hearing of an appeal, this Court may, in certain circumstances, receive fresh evidence.[5] On the hearing of the appeal, with the consent of the Registrar, Mr Cavill tendered two affidavits sworn by himself and gave supplementary oral evidence. He was cross-examined by the Registrar. In addition, with the consent of the Registrar, Mr Cavill tendered an affidavit by his mother and called her to give supplementary oral evidence.
[5] Le Poidevin v Walker [1999] SASC 269 at [26] per Mullighan J (Olsson J and Nyland J agreeing).
By the consent of the parties, I determine the appeal on the basis of the evidence given by Mr Cavill before the Magistrate together with the further evidence from Mr Cavill and Mrs Cavill adduced before me on appeal.
The relevant criteria
Section 81BB(4) of the Act provides:
The Magistrates Court may allow an appeal if the Court is satisfied—
(a)that, on the basis of evidence given on oath by or on behalf of the appellant, the disqualification would result in severe and unusual hardship to the appellant or a dependant of the appellant; and
(b)if the Crown submits evidence (whether orally or in writing) as to previous offences relating to the appellant's use of a motor vehicle for which the appellant has been found guilty or that the appellant has expiated—that such evidence does not indicate that the appellant is a substantial risk to himself or herself or to other members of the public.
The Magistrate considered evidence submitted by the Registrar as to Mr Cavill’s previous offences and did not find that Mr Cavill is a substantial risk to himself or to other members of the public within the meaning of section 81BB(4)(b). On appeal, the Registrar does not contend that the evidence indicated that Mr Cavill was such a substantial risk.
Accordingly, the appeal turns on the question whether the disqualification would result in “severe and unusual hardship” to Mr Cavill and/or his children within the meaning of section 81BB(4)(a) of the Act.
The adjective “unusual” qualifying the noun “hardship” suggests a comparison between the hardship prospectively resulting from disqualification to Mr Cavill and his children compared to hardship which would be suffered by other persons resulting from disqualification. Mr Cavill accepts that there is no single “usual” case for this purpose, but it will be a question of judgment and degree as to the extent to which the particular circumstances of Mr Cavill result in hardship to him and his children being “unusual”.[6]
[6] Holden v Registrar of Motor Vehicles [2011] SASC 205 at [12] per Kourakis J.
The adjective “severe” qualifying the noun “hardship” suggests an objective assessment of the degree to which the prospective hardship to Mr Cavill and his children will be “harsh” or “hard to endure”.[7]
[7] Ibid; see also in a different context: Perovic v Police [2011] SASC 174 at [38] per White J.
The expression “severe and unusual hardship” is a compound expression which requires an evaluative normative judgment of the degree of prospective hardship considered both objectively and relative to the generality of cases.[8]
[8] Holden v Registrar of Motor Vehicles [2011] SASC 205 at [12] per Kourakis J.
Evaluation
It is common ground on appeal that, the appeal being in the nature of a re-hearing, I am in as good a position as the Magistrate to assess the question of severe and unusual hardship.[9] Given that extensive evidence was admitted on appeal which largely superseded, and was in a different context to, the evidence before the Magistrate, it is common ground that I should decide the appeal on the basis of the whole of the evidence adduced before the Magistrate and the appeal considered collectively.
[9] Ibid at [5] per Kourakis J.
Mr Cavill and his former wife separated in November 2010. They have three children. E is now 14 and in year 9, M is now 11 and in year 6 and C is now 8 and in year 3 at school.
Mr Cavill is employed as a business development manager. His normal working hours (when he does not have his children) are from 8.15 am to 5.00 pm. However, his employer is relatively tolerant in allowing him to work less hours for the purpose of devoting time to his children.
Mr Cavill does not principally rely upon the hardship which will be caused to him by his disqualification in terms of his employment. Rather, he mainly relies upon the hardship caused to his children and to him in not being able to drive them to and from school and their extracurricular activities.
Mr Cavill was previously disqualified from holding or obtaining a driver’s licence for nine months between 7 February and 6 November 2011. During that time, his mother and former wife principally attended to driving his children to and from school and their extracurricular activities. Since that time, his relationship with his former wife has further deteriorated to the extent that he is now unable to call upon her to attend to such driving.
The present arrangement between Mr Cavill and his former wife is that he picks up their children from school on Wednesday each fortnight and they stay with him until the following Monday morning when he takes them to school. They then stay with their mother from Monday afternoon until the Wednesday afternoon of the following week.
E and M attend one school and C attends another school. Mr Cavill lives a short bus ride from each of the schools. Mr Cavill’s parents live not far from Mr Cavill’s home.
Mr Cavill’s disqualification commenced on 13 November 2012 and is due to expire on 12 May 2013.
E, M and C returned to school after the summer holidays on Wednesday 30 January 2013. That day marked the commencement of Mr Cavill’s five day period with his children. They stayed with him until Monday 4 February. They stayed with him again between Wednesday 13 February and Monday 18 February.
During each of those five day periods, Mr Cavill’s mother picked up the children from school and dropped them off at school in the morning. She took C to cheerleading on the Saturday mornings. She took M to his water polo game on one of the Sundays. On the other Sunday, M was taken to and from the water polo game by the parents of one of his friends as arranged by Mr Cavill. On Friday afternoon, E was taken to and from water polo matches by parents of his friends as arranged by E.
There remain four full or partial five day periods for Mr Cavill with his children over the balance of term 1, namely the periods commencing 27 February, 13 March, 27 March and 10 April. Term 1 will end on Friday 12 April. The third of those weeks will encompass the Easter weekend (29 March to 1 April).
Term 2 will commence on Tuesday 30 April. There will be one five day period commencing on Wednesday 8 May in term 2 during which Mr Cavill will be disqualified (if his appeal is not allowed).
In relation to the four five day periods remaining in term 1, the evidence of Mr Cavill and his mother is that, if Mr Cavill is disqualified, Mrs Cavill will continue to be the principal person picking up and dropping off Mr Cavill’s children at school and extracurricular activities. To the extent that she does not do so, Mr Cavill gave evidence that it would be possible for him to do so on the following basis.
1.   He would catch a taxi to take his children to school in the mornings, leaving at about 8.00 am (presumably arriving at work at about 8.45 am). He would catch a taxi from his work (presumably leaving at about 3 pm) to pick up his children from school and return home.
2.   On Wednesday evenings, he could take C to gymnastics by either a two minute taxi ride or a ten minute walk, returning home the same way by 6.15 pm. In the meantime, E and M would remain at home.
3.   On Thursday afternoons, C would go straight to lacrosse training after school, and Mr Cavill would collect her at 5.00 pm by taking a taxi to work and returning home. In the meantime, E and M would have caught the bus home.
4.   On Friday afternoons, E would continue to organise his own transport to his water polo games and Mr Cavill would collect M and C by taxi (leaving from work).
5.   On Saturday mornings, Mr Cavill would take C to and from cheerleading on the bus (or perhaps by taxi) at the conclusion of cheerleading. When C begins lacrosse games on Saturday mornings, Mr Cavill would take her instead to the lacrosse game (probably by taxi depending on where it is played).
6.   On Sunday afternoons, Mr Cavill would either organise transport for M to water polo with a parent of one of his friends or alternatively take him by taxi.
Mr Cavill’s mother gave evidence that she will be departing Australia for overseas on 5 May, which will be a week before the conclusion of Mr Cavill’s disqualification on 12 May 2013. She also gave evidence that her daughter and two grandchildren will be visiting her from overseas between 8 and 29 March. She would prefer to spend her time with them, but if necessary would make available her time to drive Mr Cavill’s children over the periods 13 to 18 March and 27 to 29 March which will overlap with their stay.
Both Mr Cavill and his mother gave evidence that, on the first Wednesdays of the two five day periods so far this year, C has chosen not to go to gymnastics. This was for a combination of reasons. They also gave evidence that the settling in process was difficult for all three children.
Mr Cavill accepts that, to the extent that the hardship is to be compared with that which would be suffered in the generality of cases, a single paradigm of a two parent family in which one parent can attend to driving the children is not to be adopted: the generality of cases encompasses single parent families who normally rely upon their driver’s licences to drive their children to and from school and extracurricular activities.
While the disqualification will undoubtedly cause hardship to both Mr Cavill and his children, it can be managed (in the way it has been managed during the term to date and in the way it is proposed to be managed for the balance of the term and for the five day period in term 2) in a manner in which Mr Cavill’s children, are taken to and from school and their scheduled extracurricular activities either by Mr Cavill’s mother, Mr Cavill or by parents of school friends. I accept that this will cause additional emotional difficulties, particularly for Mr Cavill’s children, but it cannot be said that the difficulties overall are of such an extent that the hardship is to be characterised as severe and unusual.
Conclusion
Mr Cavill has not demonstrated that he will suffer severe and unusual hardship as a result of his disqualification. His appeal will be dismissed