Davidson v the Registrar of Motor Vehicles

[1989] TASSC 10

Serial No 3/1989
List "A"

CITATION:              Davidson v The Registrar of Motor Vehicles [1989] TASSC 10; A3/1989

PARTIES:  DAVIDSON, William
  v
  REGISTRAR OF MOTOR VEHICLES

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR1/1989
DELIVERED ON:  8 February 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  Cox J

Judgment Number:  A3/1989
Number of paragraphs:  9

Serial No 3/1989

List "A"

File No: LDR LCA 1/1989

WILLIAM DAVIDSON v THE REGISTRAR OF MOTOR VEHICLES

REASONS FOR JUDGMENT  COX J

8 February 1989

1. This is a Notice to Review the refusal by a magistrate of an application for a restricted licence pursuant to the Traffic Act (the Act) 1925 s36.

1. On 10 October 1988 the applicant was convicted of an offence against the Road Safety (Alcohol & Drugs) Act 1970 s6. The blood alcohol concentration had been 0.17%. He was fined $150 and disqualified for holding or obtaining a licence to drive a motor vehicle for six months. He was a 56 year old man with no prior convictions. The disqualification order was stayed for a period of 28 days and thus did not come into effect until early November 1988. At the time of his conviction the applicant was employed as an electrician by a Launceston firm but later resigned and found similar employment with another organisation, Kilpatrick Green Pty. Ltd. of Launceston, 3 or 4 weeks prior to his application in the Court of Petty Sessions in Launceston being heard on 23 January 1989.

1. His new employer offered him a promotion to the position of project manager of a Carbon Baking Furnace at Bell Bay. The promotion involved a number of benefits: his salary (then $325 per week nett after tax) would increase to about $415 per week after tax, he could expect 16 to 20 hours per week extra work at overtime rates, he would be provided with a company car, he would receive an unspecified site allowance and would be admitted to a non–contributory superannuation scheme. Although the immediate project would last about 12 months, a representative of his employer gave evidence that the company was likely to obtain similar contracts in the future and that the applicant could expect to retain that position to the retiring age of 65, at which time the superannuation payout would be about $21,000. However, to adequately perform the duties of project manager it would be necessary for him to drive a car daily between the company's office in Launceston and the work site at Bell Bay; hence the application.

1. The evidence revealed that the applicant's present salary was sufficient to support himself and his wife and to meet their normal commitments. Superannuation was available to him under a different scheme which required contributions from both employer and employee but there was no evidence as to the value of this benefit as compared with that available to a project manager. It would, however, be reasonable to infer that the latter would be of greater value. His employer said that if he were unsuccessful in procuring the restricted licence, he would be kept on by the company as an electrician but that the position of project manager would have to be filled "now" and that the company would "have to bring someone from the mainland". It appears that the applicant had worked in the past for Kilpatrick Green Pty. Ltd. and the company representative said of him that nobody else in the State had the expertise that the applicant had for this particular position.

1. The learned magistrate found that the applicant was able to manage on his present income in the present position and that what he was going to lose was an increase in income, increase in opportunity and better superannuation. The learned magistrate said he was unable to categorise the loss as one imposing severe and unusual hardship and accordingly dismissed the application.

1. In Registrar of Motor Vehicles v Eeles [1984] Tas R p24, Neasey J. gave consideration to the words "severe and unusual hardship" appearing in s36 of the Act which makes it a condition precedent to the grant of a restricted licence that the court be satisfied (inter alia) "(a) that the disqualification will impose or is imposing severe and unusual hardship on (the applicant) or his dependants". At pp26 to 27 his Honour said:–

".... In the present case, the principal argument submitted for the applicant is, as I understand it, that even if the hardship imposed upon the respondent by the disqualification will be severe, it could not be classed as unusual, because his permanent and secure ordinary occupation will not be materially affected by the disqualification. Alternatively, because of that circumstance the hardship could not be described as severe and unusual. These submissions bring under close consideration the meaning of the descriptive phrase, 'severe and unusual hardship', and in particular the word 'unusual' in that context. As Everett J. said in Strickland v Parsons (Serial No. 5781), the condition that the court be satisfied that disqualification will impose or is imposing severe and unusual hardship is a stringent one, which the applicant for a restricted licence bears the onus of establishing. His Honour further said that 'severe' 'denotes a rigorous quality – if not extreme, then at least marked', and cited the Shorter Oxford English Dictionary, Vol2, pp 1857–8. I, with respect, agree. I would add for myself that the source quoted by Everett J., in referring to impersonal agencies which can be 'severe', marks out one category as being, 'events or circumstances, labour or exercise, a struggle, test, trial, etc. and says 'severe' means in that context, 'hard to sustain or endure; arduous'. 'Hardship' falls most aptly into that category, and the word 'hardship' itself means, 'the quality of being hard to bear; hardness; severity; hardness of fate or circumstance'– opcit., Vol.1, p66.

The argument in the present case focuses upon the word 'unusual'. Everett J. said in Strickland v Parsons, (supra), 'I interpret the adjective "unusual" as referring to the quality of the hardship imposed on the applicant as compared with that suffered by the average person who is within the class of disqualified drivers in comparable circumstances'. I agree, and would express it in my own way as meaning, in the context, 'of unusual degree', so that the expression 'severe and unusual' means, 'severe and of unusual degree'. That is to say, the expression 'severe and unusual hardship' is intended by the legislature to be a compendious expression in which the two parts are complementary. It follows, in my view, that some or all the circumstances which go to make the hardship severe may also make it of unusual degree. In other words, the two expressions have much the same meaning, which is I think what the legislature intended. 'Unusual' reinforces 'severe'.

I respectfully adopt what both Neasey J. and Everett J. have said regarding the words in question.

1. In Registrar of Motor Vehicles v Eeles, the successful respondent had persuaded the magistrate (who described the case as "borderline") that the loss of a second job as a milk–carter and of the reduction of his present income by about $8000 would represent a severe and unusual hardship to him and to his dependants notwithstanding that his primary job was not in jeopardy and would enable him to still support himself and them. In a more recent case of Mooy v Carter, S/No 301986, Neasey J. dismissed an application to review the refusal of a magistrate to grant a restricted licence to an 18 year old youth without dependants who would lose employment with his father as the result of a 3 month disqualification. The evidence showed that unemployment benefits would provide him with the means of subsistence although he would be unable to save anything.

1. I do not consider that merely because disqualification does not diminish a person's present income on which he manages to live but has the effect of depriving him of the opportunity either of increasing it to a significant degree or of procuring more otherwise rewarding employment, the disqualification cannot as a matter of law be said to impose severe and unusual hardship. It will always be a question of fact to be considered in the light of the circumstances of each case. For example, an unemployed man of long standing who misses the opportunity because of his disqualification of procuring long term employment may well be said to suffer severe and unusual hardship even though he and his dependants have learned to subsist on unemployment benefits and even though the nett gain in income, as is sometimes the case because of transport costs of other factors, is only marginal.

1. However I do not understand the learned magistrate's remarks when giving his decision to involve any such misdirection in law. While he made no detailed factual findings it is clear from the evidence that although the applicant was not likely to procure the job at Bell Bay, he was still highly regarded by the company and that other possibilities for promotion existed although a project manager recruited from the mainland might well have priority. It was by no means an inevitable conclusion that inability to take up this position would for a long time, let alone for ever, deprive him of similar advancement with his present employer or some other organisation. In these circumstances I think the statement expressed by the learned magistrate that although there "may be some loss of (additional) income" he was unable to say that the applicant would suffer severe and unusual hardship as the result of the remaining period of disqualification, was a finding of fact clearly open to him on the evidence. That being so, the appeal must be dismissed.