Davies v Shaw

[1990] TASSC 112

Serial No B35/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Davies v Shaw [1990] TASSC 112; B35/1990

PARTIES:  DAVIES
  v
  SHAW

FILE NO/S:  LCA 23/1990
DELIVERED ON:  16 July 1990
JUDGMENT OF:  Neasey J

Judgment Number:  B35/1990
Number of paragraphs:  8

Serial No B35/1990
List 'B"
File No LCA 23/1990

DAVIES v SHAW

REASONS FOR JUDGMENT  NEASEY J

16 July 1990

1. This is a motion to review an order made by magistrate Mr Wright in the Court of Petty Sessions at Hobart on 18 April 1990, whereby His Worship made an order granting the respondent a restricted licence, pursuant to s36 of the Traffic Act 1925, subject to certain conditions. The sole ground, in substance, upon which it is sought to review the order is that the learned magistrate erred in fact and in law in finding that a licence disqualification imposed by him on 18 April 1990 would impose severe and unusual hardship on the respondent or his dependents. The respondent pleaded guilty to a charge of having on 25 January 1990 driven a motor vehicle on the East Derwent Highway at Bridgewater, whilst alcohol was present in his blood in a concentration greater than the prescribed concentration of 0.05 gram of alcohol in 100 millilitres of blood; namely 0.119 grams of alcohol in that amount of blood. In anticipation of pleading guilty and having his licence to drive suspended, the respondent made an application in advance for the grant of a restricted licence pursuant to s.36. The learned magistrate did, in fact, disqualify the respondent from holding or obtaining a licence to drive a motor vehicle for a period of six months. The respondent gave evidence supporting material set out in his written application, to the effect that he is a person almost 33 years of age, divorced, with three dependent children aged 8, 7 and 5. He is dependent on a Supporting Parent's Benefit, since he has the sole task and occupation of caring for himself and the three children. His weekly income is $239.00 per week, out of which, after accounting for all other fixed expenses, as set out in his application, he has $43.00 per week left for food.

1. The respondent gave evidence that he needed the use of his motor vehicle for the following purposes:

First, he needs to drive the two older children, who attend St Peter's school in Hobart, from his home at 181 Droughty Point Road at Rokeby, to the bus stop where they catch a bus to school. The bus stop is approximately 2 kilometres from the home. He has to get then to the bus stop by 8.00 am each morning, and has to pick them up again at the bus stop at approximately 4.00 pm each school day. Then he has to drive the younger child to a kindergarten at the Rokeby School by 9.00 am The child attends there for two hours in the mornings on two days per week, and for two hours in the afternoons on two other days per week. He has to take that child to school and pick him up, as appropriate for those times of attendance.

Next, the respondent claimed that with his limited amount of money left over for food each week, he needs his vehicle to travel to various shopping points around Hobart and the suburbs in order to purchase grocery "specials", mainly on Wednesdays and Thursdays of each week. His grocery purchases consisted virtually entirely of specials, so it would appear from the evidence. He claimed that although the cost of petrol for use of his two litre motor car to drive to these various places to buy specials would amount to a material sum, it would be more than off–set by the savings he would make from these purchases. He did not attempt to indicate the nature of the savings, or provide any break–down as to how they would be made up.

Next, the respondent said that he wished to use his vehicle to transport his two older children to week–end sporting activities at their school in Hobart; principally soccer. He agreed that he had not previously been taking the children to these sporting occasions, but they had been trying to persuade him for some time to take them, and he proposed to do so if he was able.

Next, the respondent said that he wanted to use the vehicle to visit relatives in the week–end, by way of social visits at Gagebrook and Bridgewater, and to visit his mother at West Moonah and mow her lawns and the like.

Lastly, he needed to be able to use his vehicle to drive in case of an emergency involving any of his children, such as if one should be suddenly taken ill or the like.

1. As a preliminary to granting the application for a restricted licence, the learned magistrate made these remarks, "Yes. Well, it's by no means a run of the mill application, but very largely it seems to me that it's made by Mr Shaw on behalf of his children and, as I said in my remarks on sentence, those children must be catered for as much as possible, and so my general inclination is to grant the application in the terms in which it's sought on page 4 with some variations". His Worship then went on to state the details of the restrictions he proposed to specify.

1. Section 36 of the Traffic Act 1925, as amended, provides by subs(1) for the grant of a restricted licence authorising a person who has been disqualified for obtaining or holding a driver's licence to drive a motor vehicle subject to such conditions or restrictions as shall be specified in the order. Section 36(4) provides as follows:

"No order shall be made under this section unless the magistrate is satisfied –

(a)that the disqualification will impose or is imposing severe and unusual hardship on that person or his dependants;

(b)that the powers of this section shall be exercised for the purpose of mitigating or alleviating that hardship; and

(c)that the exercise of those powers for that purpose would not be contrary to the public interest."

It is not an issue in the present case that the grant of this restricted licence may have been contrary to the public interest. The expression "severe and unusual hardship on that person or his dependants" obviously lays down heavily restrictive qualifications upon the grant of any such licence. As Everett J said in Strickland v Parsons, unreported Serial No 57/1981:

"The history of the relevant legislation and the clear language used by Parliament make it plain that the power to mitigate or alleviate hardship caused by the disqualification of a person for obtaining or holding a driver's licence cannot lawfully be exercised in any perfunctory manner. The power is special ... The applicant has the evidentiary burden of persuading the magistrate that his discretion ought to be activated and directed in the applicant's favour. This cannot be achieved simply by the submission of evidence which is vague, imprecise and lacks definite and positive qualities, which description is the I would apply to the evidence in this case. In particular, it must be appreciated that disqualification for holding or obtaining a driver's licence will almost (in) variably cause personal inconvenience to the person affected and often some hardship. But the legislature has required the hardship to be both severe and unusual before the power to grant a restricted licence may be exercised. The two qualifications must significantly restrict the scope for the discretion to become available for use. The epithet 'severe' denotes a rigorous quality – if not extreme, then at least marked (Shorter Oxford English Dictionary, vo 2, pp1857–8). The additional requirement that the hardship must be proved by the applicant to be 'unusual' is also clearly restrictive to a substantial degree. 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 accept the submission of counsel for the applicant under the motion to review that 'unusual' in the context means that the effect on the applicant of the disqualification must be more serious than it could be expected to be in the case of others under disqualification to a similar degree. It is manifest that the deliberate policy of the legislature for nearly eight years has been not to extend the right to obtain a restricted licence beyond a comparatively small proportion of those who are deprived of a licence to drive a motor vehicle in the general interests of the public and as a deterrent, both particular and general, in respect of behaviour from which Parliament more than a decade ago showed its intention that the public should be protected. Inconvenience must be clearly distinguished from hardship; the restricted nature of the hardship capable of being mitigated or alleviated needs to be recognised; and the onus on the applicant requires the proofs to be examined closely and analytically".

1. In Registrar of Motor Vehicles v Eeles [1984] Tas SR 24 I agreed with that judgment, and held further that the expression "severe and unusual hardship" is intended by the Legislature to be a compendious expression in which the two parts are complimentary.

1. There is no indication in the present case in the relevant remarks made by the learned magistrate that his Worship gave proper consideration to the question whether severe and unusual hardship had been established by the evidence placed before him. Such consideration involves the necessity of examining the evidence closely and deciding whether severe and unusual hardship has been established on a balance of probabilities. It is further incumbent on the tribunal to make findings, if it decides in the affirmative, as to the respects in which such severe and unusual hardship has been established, since the section lays down that the powers exercisable under it to grant a restricted licence are to be exercised for the purpose of mitigating or alleviating that hardship; that is, the hardship which has found to be severe and unusual.

1. There is an absence of any such findings in the present case. It appears to me, therefore, that I am left with the task on this motion to review of examining the evidence before His Worship, and considering the question whether any of it, and if so which parts, were capable of establishing hardship which could qualify as being severe and unusual within the meaning of the provisions. In my opinion, there is none such. None of it, in my view, amounts to more than inconvenience; though it might, particularly in the case of transporting the two older children to the bus stop and picking them up there on each school day, amount to substantial inconvenience. But none of the evidence is capable of satisfying the restrictive connotations of the statutory expression. Inability to use a motor vehicle to travel many miles from the respondent's address using costly petrol for the purpose of buying grocery specials around the city and suburbs of Hobart could not possibly so qualify, and it is wholly unpersuasive to suggest that it could. Lack of opportunity to visit relatives in the week–end or to take the children to school sporting occasions which they had not attended before is no more than inconvenience. The same applies in my view to inability for a relatively short period to transport a five year old child to kindergarten. The most substantial inconvenience would be caused by the respondent's inability to transport his 8 and 7 year old children to the bus stop and pick them up each school day, but if the respondent's car was not able to be used for a period of time due to its mechanical condition or the like, he would have to, and no doubt would, see that the children were able to travel some two kilometres twice each day between home and bus stop. At worst, it would be quite possible to walk. There would be inconvenience, but with persons of reasonable resource, no more. Similarly, it is not persuasive to suggest that inability to drive a motor vehicle constitutes severe and unusual hardship because a sudden emergency may occur in the home. Such an emergency is always possible whether a person possesses a motor car or not, and there are such things as ambulances, taxis and neighbours with good will.

1. The learned magistrate's order will be set aside, and the restricted licence cancelled.