Dillon v Davies - [1990] TASSC 18

Serial No 12/1990
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Dillon v Davies [1990] TASSC 18; A12/1990

PARTIES:  DILLON
  v
  DAVIES

FILE NO/S:  LCA 5/1990
DELIVERED ON:  14 May 1990
JUDGMENT OF:  Cox J

Judgment Number: A12/1990
Number of paragraphs: 9

Serial No 12/1990
List "A"
File No LCA 5/1990

DILLON v DAVIES

REASONS FOR JUDGMENT COX J

14 May 1990

Notice to review the dismissal of an application pursuant to the Traffic Act 1925 (the Act), s36, for an order authorising the granting to the applicant of a restricted licence. He had been convicted on 23 February 1990 of an offence against the Road Safety (Alcohol and Drugs) Act 1970, s6, the reading being 0.175 grams of alcohol in 100 millilitres of blood and had been sentenced to a fine of $350.00 and disqualification for holding or obtaining a licence to drive a motor vehicle for a period of nine months.

The applicant is a married man aged 55 years, employed by his family company, Kingston Earth Works Pty Ltd, as the works' supervisor of its operations. On the day of the offence, namely 20 December 1989, he had attended a number of work sites where he drank a small amount of alcohol, it being the day on which his industry broke up for Christmas, and in the evening he attended the Kingston Beachside Hotel where he consumed more alcohol with members of his office staff. He was on his way to his home, which is a short distance from the hotel, when he was subjected to a random breath test and recorded the above reading. There was no suggestion that he drove in a hazardous way. If anything was remarkable about his driving it was his relatively slow speed.

The applicant had been driving nearly all his adult life in the course of his occupation. His prior convictions were:

Victoria
27. 2.70  Exceed 0.05%  Fined $30.00 Disqualified 3 months
Tasmania
10. 6.76  Failed to Give Way  Infringement Notice $15.00
2. 8.84  Failed to Wear Seat Belt                   Fined $10.00
10. 1.86  Exceed 0.05% (0.12%)  Fined $100.00 Disqualified 6 months
Restricted Licence granted

14. 4.87 Parking Fined $20.00
This conviction thus represented his third drink–driving conviction and his third disqualification; otherwise his record was minor.

The learned magistrate accepted that the disqualification would cause the applicant severe and unusual hardship. There was also unchallenged medical evidence that the applicant was not alcohol dependent. In the course of submissions from the applicant's counsel, the learned magistrate adverted to the facts that the applicant had already been granted a restricted licence four years earlier, that he had over three times the maximum permissible concentration and that it could not be said that he was driving for some purpose which would evoke feelings of sympathy for him such as some urgent family matter. He also referred to the decision of Green CJ in re Stokman No 17/1978 ((1959-1995) 14 Tas R 68) for the proposition that in some cases it would be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dillon v Davies

Details

AGLC: Dillon v Davies [1990] TASSC 18
Case: [1990] TASSC 18
Decision Date: 14 May 1990

CaseChat Overview and Summary

In Dillon v Davies, the applicant sought a review of the dismissal of his application under the Traffic Act 1925 for a restricted licence. The applicant had been disqualified from driving for nine months following a conviction for driving with a blood alcohol concentration of 0.175 grams in 100 millilitres of blood, a reading more than three times the legal limit. The applicant argued that the disqualification would cause him severe and unusual hardship, as he was employed as a works supervisor and needed to drive for work. The court had to determine whether the magistrate's refusal to grant a restricted licence was justified under the statutory criteria.

The court considered the relevant statutory provisions, particularly section 36(4) of the Traffic Act, which sets out the conditions for granting a restricted licence. The court also noted the magistrate's consideration of the public interest in preserving the deterrent effect of disqualification orders, as well as the applicant's previous convictions and lack of deterrence from a previous restricted licence. The court found that the magistrate's decision was based on a proper consideration of the statutory criteria and the public interest, and that the applicant had not demonstrated any error in the magistrate's conclusion.

The court dismissed the notice to review, upholding the magistrate's decision to refuse the restricted licence. The court found that the applicant had not shown any error in the magistrate's conclusion that the exercise of the powers under section 36 of the Traffic Act would be contrary to the public interest, given the seriousness of the offence, the applicant's previous convictions, and the lack of any mitigating factors. The court held that the magistrate's decision was well-reasoned and in accordance with the statutory criteria and the relevant authorities.

Orders