Director General of Department of Transport v McKenzie
[2016] WASCA 147
•18 AUGUST 2016
DIRECTOR GENERAL OF DEPARTMENT OF TRANSPORT -v- McKENZIE [2016] WASCA 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 147 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:91/2015 | 17 FEBRUARY 2016 | |
| Coram: | BUSS P MURPHY JA BEECH J | 18/08/16 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Primary judge's order that the appellant issue an extraordinary licence to the respondent set aside Respondent's application for an extraordinary licence remitted to a different judge of the District Court for rehearing according to law | ||
| A | |||
| PDF Version |
| Parties: | DIRECTOR GENERAL OF DEPARTMENT OF TRANSPORT SUZANNE McKENZIE |
Catchwords: | Road traffic Motor driver's licence Extraordinary licence The grant of an extraordinary licence subject to conditions Proper construction of s 30 and s 32 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) Whether the primary judge misconstrued s 30(4)(c) of the Act Whether the primary judge erred in law by making a weighting error Whether the primary judge erred in law in finding that s 30(4) of the Act does not limit the exercise of the court's discretion to impose conditions under s 32(b) of the Act |
Legislation: | Road Traffic (Authorisation to Drive) Act 2008 (WA), s 27, s 30, s 32 |
Case References: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 Italiano v Director General of Transport [1999] WASCA 40; (1999) 29 MVR 249 Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 Pedersen v The State of Western Australia [2010] WASCA 175 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 The Traffic Board v Smith (Unreported, WASC, Library No 1038, 25 July 1995) Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 Vagh v The State of Western Australia [2007] WASCA 17 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DIRECTOR GENERAL OF DEPARTMENT OF TRANSPORT -v- McKENZIE [2016] WASCA 147 CORAM : BUSS P
- MURPHY JA
BEECH J
- Appellant
AND
SUZANNE McKENZIE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAUDE DCJ
Citation : McKENZIE -v- DIRECTOR GENERAL OF DEPARTMENT OF TRANSPORT [2015] WADC 55
File No : CIVO 30 of 2015
Catchwords:
Road traffic - Motor driver's licence - Extraordinary licence - The grant of an extraordinary licence subject to conditions - Proper construction of s 30 and s 32 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) - Whether the primary judge misconstrued s 30(4)(c) of the Act - Whether the primary judge erred in law by making a weighting error - Whether the primary judge erred in law in finding that s 30(4) of the Act does not limit the exercise of the court's discretion to impose conditions under s 32(b) of the Act
Legislation:
Road Traffic (Authorisation to Drive) Act 2008 (WA), s 27, s 30, s 32
Result:
Appeal allowed
Primary judge's order that the appellant issue an extraordinary licence to the respondent set aside
Respondent's application for an extraordinary licence remitted to a different judge of the District Court for rehearing according to law
Category: A
Representation:
Counsel:
Appellant : Mr G T W Tannin SC & Ms J E Rhodes
Respondent : No appearance
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : No appearance
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Italiano v Director General of Transport [1999] WASCA 40; (1999) 29 MVR 249
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Pedersen v The State of Western Australia [2010] WASCA 175
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
The Traffic Board v Smith (Unreported, WASC, Library No 1038, 25 July 1995)
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Vagh v The State of Western Australia [2007] WASCA 17
1 BUSS P: This is an appeal against a decision of Staude DCJ to order the appellant to issue an extraordinary motor driver's licence to the respondent.
2 The appellant asserts that the primary judge misconstrued and misapplied various provisions of the Road Traffic (Authorisation to Drive) Act 2008 (WA) (the RTAD Act) in deciding to make the order.
3 I would allow the appeal. My reasons are as follows.
The background facts and circumstances
4 On 18 July 2013, the respondent was convicted in the District Court, on her pleas of guilty, of one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. The offences were committed on 7 October 2012 when the respondent was the driver of a motor vehicle that collided with another vehicle on Toodyay Road, Toodyay. A passenger in the other vehicle was killed and the driver of the other vehicle suffered grievous bodily harm.
5 The respondent was sentenced in the District Court to a total effective term of 2 years' imprisonment, with eligibility for parole, and a total effective motor driver's licence disqualification of 5 years.
6 On 21 October 2013, the respondent was convicted in the Magistrates Court, on her pleas of guilty, of one count of dangerous driving occasioning bodily harm and one count of driving with a blood alcohol content exceeding 0.08% and less than 0.14%, contrary to s 64(1) of the Road Traffic Act 1974 (WA). Those offences related to the accident on 7 October 2012.
7 The respondent was sentenced in the Magistrates Court to a fine of $2,000 and a motor driver's licence disqualification of 12 months (concurrent) on the count of dangerous driving occasioning bodily harm and to a fine of $750 and a motor driver's licence disqualification of 9 months (concurrent) on the count of driving with a blood alcohol content exceeding 0.08% and less than 0.14%.
The respondent's application for an extraordinary licence and the primary judge's orders
8 On 17 March 2015, the respondent filed an application in the District Court for an extraordinary licence pursuant to s 27(1) of the RTAD Act.
9 She sought the licence for the purpose of driving to and from her place of employment between 7.30 am - 10.00 am and 2.45 pm - 5.45 pm on Monday to Friday. The ground for making the application was that '[the respondent] is currently deprived of the only practical [sic] means of getting to and from the place [where] she is employed'.
10 The respondent filed an affidavit sworn 17 March 2015 in support of her application.
11 On 30 April 2015, the primary judge heard the application.
12 On 15 May 2015, his Honour published his reasons for judgment and granted the application. On 18 May 2015, his Honour made orders including, relevantly:
The [respondent] is permitted to drive between the hours of 7.00 am and 7.00 pm Monday to Friday inclusive for the purposes of travelling between her residence at 10A Homestead Place, Beechboro and her place of employment at 2/45 Richardson Street, West Perth, taking her children to and from school or out of school care and attending for medical treatment for herself and her children, and is at all times required to travel by the most direct and practicable route.
The relevant statutory framework
13 Division 3 of pt 3 of the RTAD Act is headed 'Extraordinary licences' and comprises s 25 to s 39.
14 By s 27(1) of the RTAD Act, a person who is disqualified under the RTAD Act or any other written law from holding or obtaining a driver's licence may apply to a court for an order directing the CEO (as defined in s 4 of the Road Traffic (Administration) Act 2008 (WA)) to grant to the person an extraordinary licence.
15 Section 30 of the RTAD Act provides:
(1) A court may -
(a) make an order directing the CEO, on payment of the prescribed fee, to grant to the applicant an extraordinary licence for a period not exceeding 12 months from the date on which it is granted as the court thinks fit; or
(b) refuse the application.
(2) In making a decision for the purposes of subsection (1), the court is to have regard to -
(a) the safety of the public generally; and
(b) the character of the applicant; and
(c) the circumstances of the case; and
(d) the nature of the offence or offences giving rise to the disqualification; and
(e) the conduct of the applicant subsequent to the disqualification.
[(3) deleted]
(4) Despite subsections (1) and (2), the court must not make an order directing the grant of an extraordinary licence unless it is satisfied that the refusal of the application would -
(a) deprive the applicant of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by the applicant or a person who is a member of his or her family; or
(b) place an undue financial burden on the applicant or his or her family, by depriving the applicant of his or her principal means of obtaining income; or
(c) deprive the applicant or a person who is a member of the applicant’s family of the only practicable means of travelling to and from the place at which the applicant or that person, as the case may be, is employed.
An order directing the grant of an extraordinary licence may impose -
(a) a condition requiring the applicant to comply with the requirements of regulations under Part 2 about applying for a driver’s licence before the extraordinary licence is granted to the applicant; and
(b) such conditions as the court thinks proper subject to the observance of which the authority to drive under the licence may be exercised, including conditions as to -
(i) the locality in which and roads on which the applicant is entitled to drive; and
(ii) the purposes for which the applicant is entitled to drive; and
(iii) the hours during which the applicant is entitled to drive; and
(iv) the vehicle or class of vehicle that may be driven under the authority of the licence.
17 The respondent was represented by a lawyer in the primary proceedings. She relied on her affidavit and was cross-examined.
18 The relevant facts, as found by the primary judge or not in dispute, are as follows.
19 The respondent was aged 45. Since being released on parole in July 2014, she has been employed by Kings Park Corporate Lawyers as a legal secretary, on a permanent part-time basis, two days per week. However, when her application was heard by his Honour she was, in fact, working three days or three and a half days per week. The respondent lives in Beechboro. She works in West Perth.
20 The respondent gave oral evidence that she earns up to $1,500 net per fortnight. In addition, she receives $584 per month from her former husband in child support. The respondent has received some financial assistance from her sister and brother-in-law because her inability to drive restricts the number of hours she can work. She has no substantial assets or other form of income. She pays $300 per week for rent.
21 The respondent has a shared parenting arrangement with her former husband. She is responsible for the care of their children every other week. The children attend a school near her home in Beechboro. They receive out-of-school care on the days the respondent works, except on Fridays when their father collects them from school.
22 The respondent said in her affidavit that to get to work she needs to catch 'a bus, two trains and walk 2,564 metres'. The primary judge noted:
Her affidavit annexed a result from a Transperth journey planner application which demonstrated that if she left her home at 7.20 am it would take 81 minutes to walk 1.4 km to the nearest bus stop, take a bus to Bassendean Station, a train to Perth and another to West Perth, and then walk 1.1 km to her place of work, arriving at 8.41 am: annexure SM2 [21].
23 His Honour then observed that the respondent does not, in fact, travel to work in the manner described in the Transperth journey planner application annexed to her affidavit.
24 The respondent gave oral evidence that when she is not responsible for the care of her children she takes three buses to work. First, from Beechboro to Morley, then to Perth, and finally to West Perth. When she travels by bus, she leaves home at 7.15 am and arrives at work at about 9.05 am or 9.10 am. When she is not responsible for the care of her children, the respondent works from about 9.05 am or 9.10 am to between 4.00 pm and 5.00 pm.
25 When she is responsible for the care of her children, the respondent leaves home at 8.00 am and travels with the children by taxi to the children's school. After leaving the children at school, she continues in the taxi to a train station and travels by train to West Perth. When she catches taxis, the respondent's travel costs to and from work are about $50 to $60. She finishes work at 3.30 pm and, except on Fridays, collects her children from out-of-school care by 4.30 pm. Ordinarily, she arrives at home between 4.45 pm and 5.00 pm. As I have mentioned, on Fridays the children are collected from school by their father.
26 The respondent said in her affidavit that a parking bay is available for her at work and if she had an extraordinary licence she could work longer hours.
27 His Honour commented:
Obviously, it takes the [respondent] much less time to go to and from work when she utilises a taxi in conjunction with the train, about an hour each way, as opposed to at least one hour and three-quarters by bus.
If she catches a taxi directly to work the cost varies between $45 and $62, according to traffic conditions. She conceded that a taxi fare calculator application indicated a fare of $28 - 38 from Beechboro to West Perth at 8.00 am, but said that in her experience it was more, due to traffic hold-ups.
…
The [respondent's] affidavit does not annexe any proof of earnings or hours of employment. No objective proof of the cost of transport by taxi has been produced [24], [25], [29].
The primary judge's reasoning and conclusions
28 The primary judge said '[t]he question in this case is whether the refusal of the application would deprive the [respondent] of the only practicable means of getting to and from her place of employment' [40]. That question raised 'the only s 30(4) criterion' which the respondent sought to satisfy [40].
29 His Honour noted that the purpose of the RTAD Act was 'to alleviate the burden of disqualification from driving in cases where that punishment results in an inappropriately harsh outcome' [46]. His Honour added: '[t]hat result will occur where the disqualification causes disproportionate hardship (relative to other cases of disqualification) to a person who relies on a motor vehicle … as the only practicable means of getting to and from work (s 30(4)(c))' [46].
30 The primary judge then stated his view as to the meaning of the phrase 'the only practicable means' in s 30(4)(c) of the RTAD Act:
With this purpose in mind, I consider that what is 'the only practicable means' is to be determined by taking into account all of the circumstances of the case and making a comparison of the transportation options available to the applicant by reference to factors such as time, cost and inconvenience. The court is required to consider what is reasonable in the particular circumstances of the case, as opposed to what is merely possible [47].
31 His Honour concluded, on the evidence, that:
(a) regular commuting by the respondent by taxi was unaffordable [49];
(b) the respondent had been able to obtain financial assistance from her family to pay for taxis [49];
(c) the use by the respondent of public transport and taxis was 'unduly expensive having regard to her income' [50];
(d) the use by the respondent of public transport and taxis was 'unduly time-consuming having regard to the nature of her work, including the opportunity she has to work longer hours to support herself and her children and the provision of parking by her employer, and her parenting responsibilities' [50]; and
(e) the use by the respondent of public transport and taxis was also 'unduly inconvenient, having regard to the same circumstances' [50].
32 The primary judge was satisfied that 'to refuse the application would deprive [the respondent] of her only practicable means of travelling to and from her place of work' [51].
33 Next, his Honour addressed each of the matters specified in s 30(2) of the RTAD Act, namely:
(a) the safety of the public generally;
(b) the character of the respondent;
(c) the circumstances of the case;
(d) the nature of the offences giving rise to the disqualification; and
(e) the conduct of the respondent subsequent to the disqualification [52] - [58].
34 The primary judge made findings favourable to the respondent on each of those matters.
35 Counsel for the appellant referred his Honour to Italiano v Director General of Transport [1999] WASCA 40; (1999) 29 MVR 249. His Honour said:
I do not accept the [appellant's] submission that the intended punitive effect of the disqualification is of relevance in this case. The point made by McKechnie J in Italiano was in relation to the breadth of the licence sought. It is not authority for the proposition that an applicant who would otherwise satisfy the statutory criteria for an appropriate extraordinary licence should be precluded by reason of the extent of their particular sentence [56].
36 The primary judge concluded:
Upon consideration of the s 30(2) factors I am satisfied that the application is merited. The s 30(4)(c) criterion having been met as a threshold requirement [59].
37 At the hearing before his Honour, neither counsel for the appellant nor counsel for the respondent made any submissions with respect to the conditions, if any, that should be imposed under s 32 of the RTAD Act, if his Honour was of the view that the respondent's application should be granted. His Honour provided draft reasons to the parties indicating '[his] inclination to grant an extraordinary licence in terms wider than [those] sought in the application and invited counsel to make further submissions' [63]. The draft reasons proposed a condition that would 'allow the [respondent] to drive to and from work, and also to take her children to and from school or out-of-school care and to attend for medical treatment' [63].
38 After hearing further submissions from the parties, the primary judge formulated the relevant question as being 'whether the court may direct the grant of an extraordinary licence for a purpose incidental or in addition to that for which the [respondent] has qualified for a licence under s 30(4)' [65].
39 His Honour was of the opinion that:
(a) s 32(b) does not 'mandate any conditions'; it does not 'restrict the purposes for which the applicant may be entitled to drive'; and it does not, 'by reference to s 30(4) or otherwise, expressly limit the exercise of the court's discretion in respect of the conditions to be imposed' [61];
(b) s 30(4) does not 'limit the court's discretion as to the purposes for which [the authority to drive under] the licence can be exercised' [68];
(c) s 30(4) does not 'prescribe a set of limited purposes for which a court may order the grant of an extraordinary licence'; it is 'in the nature of a proviso'; it 'prohibits the making of an order directing the grant of a licence, unless refusal of the application would have one or more of three privative effects' [72]; and
(d) by s 32, 'the court in its discretion determines the scope of the licence to be granted' [73].
40 The primary judge expressed his conclusion on this point as follows:
[T]he court's discretion to impose conditions on the licence to be granted, in terms of locality, purpose, hours, vehicle class, and generally, is not restricted to relieving the applicant of any the circumstances set out in s 30(4). Rather, such conditions should take into account all of the circumstances of the case, as the court is required by s 30(2) to consider [74].
The grounds of appeal
41 The appellant relies on three grounds of appeal.
42 Ground 1 alleges that the primary judge:
(a) erred in law by finding that 'the only practicable means', within s 30(4)(c) of the RTAD Act, are 'to be determined by taking into account all of the circumstances of the case and making a comparison of the transportation options available to the applicant by reference to factors such as time, cost and inconvenience' [47]; and
(b) accordingly, erred in fact and law in finding that the refusal of the application would deprive the respondent of the only practicable means of travelling to and from her work.
43 Ground 2 alleges that his Honour erred in law 'in failing to give adequate weight to the intended punitive aspect of the respondent's licence disqualification'.
44 Ground 3 alleges that his Honour erred in law in finding that s 30(4) of the RTAD Act does not limit the exercise of the court's discretion to impose conditions under s 32(b).
The relevant principles of statutory construction
45 In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
- See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
46 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
47 The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
48 The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
The proper construction of the relevant provisions of the RTAD Act
49 It is convenient to construe the relevant provisions of the RTAD Act before considering the grounds of appeal.
50 Section 30(1) provides, relevantly, that a court to whom an application for an extraordinary licence is made may:
(a) make an order directing the CEO to grant to the applicant an extraordinary licence for a period not exceeding 12 months from the date on which it is granted as the court thinks fit (par (a)); or
(b) refuse the application (par (b)).
51 By s 30(2), in making a decision for the purposes of s 30(1), the court 'is to have regard to' the matters specified in s 30(2); namely, the safety of the public generally (par (a)); the character of the applicant (par (b)); the circumstances of the case (par (c)); the nature of the offence or offences giving rise to the disqualification (par (d)); and the conduct of the applicant subsequent to the disqualification (par (e)).
52 The matters specified in s 30(2) are mandatory relevant considerations.
53 Section 30(4) provides that, despite s 30(1) and s 30(2), the court must not make an order directing the grant of an extraordinary licence 'unless it is satisfied that the refusal of the application would':
(a) deprive the applicant of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by the applicant or a person who is a member of his or her family (par (a)); or
(b) place an undue financial burden on the applicant or his or her family, by depriving the applicant of his or her principal means of obtaining income (par (b)); or
(c) deprive the applicant or a person who is a member of the applicant's family of the only practicable means of travelling to and from the place at which the applicant or that person, as the case may be, is employed (par (c)).
54 The effect of s 30(4) is that the court is prohibited from making an order under s 30(1)(a), directing the CEO to grant to the applicant an extraordinary licence, unless the court is satisfied that the refusal of the application would have the consequence specified in par (a) or par (b) or par (c) of s 30(4).
55 The phrase, 'deprive the applicant … of the only practicable means', in s 30(4)(c), relates to the driving by the applicant of a motor vehicle (emphasis added). That is, s 30(4)(c) is concerned with whether the refusal of the application to authorise the applicant to drive a motor vehicle would, relevantly, 'deprive the applicant … of the only practicable means' of travelling to and from the place at which the applicant is employed. The consequence specified in s 30(4)(c) will not be made out unless the court is satisfied that the refusal of the application (in other words, the refusal to authorise the applicant to drive a motor vehicle) would, relevantly, deprive the applicant of the 'only practicable means' of travelling to and from his or her place of employment.
56 The meaning of the word 'practicable' depends, to a significant extent, on the context, but it ordinarily connotes that which is reasonably feasible or reasonably capable of being put into practice, done or accomplished. See Shorter Oxford English Dictionary (6th ed, 2007) 2310; Macquarie Dictionary (5th ed, 2009) 1305.
57 In s 30(4)(c), the word 'practicable', in the context of 'depriving the applicant … of the only practicable means' of travelling to and from the place at which the applicant is employed, contemplates factual differences between applicants according to each applicant's personal circumstances. It is necessary to address what is 'practicable' for the particular applicant and not what is 'practicable' for a hypothetical reasonable person.
58 The determination of whether, in a particular case, the refusal of the application to authorise the applicant to drive a motor vehicle would, relevantly, deprive the applicant of 'the only practicable means' of travelling to and from his or her place of employment involves, first, identifying the applicant's other available transport options (if any); secondly, evaluating each other available transport option (if any), in the context of the statutory scheme and all the relevant facts and circumstances including the applicant's personal circumstances; and, thirdly, making a judgment as to whether any other available transport option would be a 'practicable means' (that is, a reasonably feasible means), in the context of the statutory scheme and all the relevant facts and circumstances including the applicant's personal circumstances, for the applicant to travel to and from his or her place of employment.
59 Ordinarily, the relevant facts and circumstances will include, for example:
(a) the circumstances of the applicant's employment including the nature of his or her place of employment;
(b) the nature of the journey or journeys which the applicant must undertake in travelling to and from his or her place of employment;
(c) the duration of the journey or journeys by the means of transport being considered;
(d) the timing and frequency of the means of transport being considered;
(e) the cost of undertaking the journey or journeys by the means of transport being considered; and
(f) the applicant's financial capacity to pay for the cost of undertaking the journey or journeys by the means of transport being considered.
Obviously, the examples I have given are not an exhaustive statement of the facts and circumstances that will ordinarily be relevant or that will be relevant in a particular case.
60 Section 30(4)(c) does not mandate or involve a comparison between the applicant driving a motor vehicle to and from the place at which he or she is employed, on the one hand, and the applicant using another available transport option to travel to and from that place, on the other, for the purpose of deciding which of the alternatives is the 'more practicable means' of travel for the applicant. Similarly, the provision does not mandate or involve a comparison between the applicant's other available transport options.
61 The correct approach is for the court to evaluate separately each available transport option (if any), apart from driving a motor vehicle, in the context of the statutory scheme and all the relevant facts and circumstances, including the applicant's personal circumstances, and to make a judgment as to whether the transport option under consideration would be a 'practicable means' (that is, a reasonably feasible means), in the context of the statutory scheme and all the relevant facts and circumstances including the applicant's personal circumstances, for the applicant to travel to and from his or her place of employment.
62 Section 30(4)(c) refers to 'travelling to … the place at which the applicant … is employed', but does not expressly identify the place where the journey begins. Similarly, s 30(4)(c) refers to 'travelling … from the place at which the applicant … is employed', but does not expressly identify the place where the journey ends.
63 These express omissions reflect, no doubt, the reality that an applicant's point of departure, when travelling to the place at which he or she is employed, and an applicant's point of destination, when travelling from the place at which he or she is employed, will not necessarily be the applicant's usual residence. An applicant may not have a single, fixed place of employment. For example, an applicant may have two part-time jobs each day at different locations. It may be necessary for the applicant to travel directly from one location to the other.
64 Section 32(b) provides, relevantly, that an order directing the grant of an extraordinary licence may impose 'such conditions as the court thinks proper subject to the observance of which the authority to drive under the licence may be exercised' (emphasis added).
65 The court's discretionary power under s 32(b) to impose conditions, which a successful applicant for the grant of an extraordinary licence must observe, is to be exercised consistently with the objects of the statutory scheme for extraordinary licences. See, in the context of analogous legislation, The Traffic Board v Smith (Unreported, WASC, Library No 1038, 25 July 1995) 8 (Parker J).
66 The objects of the statutory scheme for extraordinary licences are apparent primarily from s 30(2) and s 30(4).
67 As I have mentioned, the matters specified in s 30(2) are mandatory relevant considerations. Those matters will often involve the court in weighing countervailing considerations; for example, the safety of the public generally and the nature of the offence or offences giving rise to the disqualification, on the one hand, and the character of the applicant and the applicant's conduct subsequent to the disqualification, on the other. The court may, in a particular case, by the imposition of conditions under s 32(b), reconcile countervailing considerations under s 30(2) in a manner which makes it appropriate, in all the circumstances, to grant an extraordinary licence. The matters specified in s 30(2) inform and, subject to s 30(4), govern the discretionary power under s 32(b). See, in the context of analogous legislation, Smith (8 - 9).
68 Section 30(4) specifies, in effect, three limited circumstances in which an applicant may be granted an extraordinary licence. An applicant must satisfy the court, by evidence, that the refusal of his or her application would have at least one of the consequences specified in par (a), par (b) and par (c) of s 30(4). The court may only grant an extraordinary licence for the purpose of overcoming or relieving one or more of the consequences specified in par (a), par (b) and par (c) of s 30(4) which the applicant has established, by evidence, to the court's satisfaction.
69 The discretionary power under s 32(b) to impose 'such conditions as the court thinks proper' must be exercised consistently with s 30(2) and s 30(4).
70 As to s 30(4), any conditions imposed by the court must relate or be incidental to the purpose for which the extraordinary licence is to be granted; that is, the conditions must relate or be incidental to overcoming or relieving one or more of the consequences specified in par (a), par (b) and par (c) of s 30(4) which the applicant has established, by evidence, to the court's satisfaction. It is not open to the court, by the imposition of conditions under s 32(b), to expand the circumstances in which the applicant is authorised to drive beyond overcoming or relieving one or more of the consequences specified in par (a), par (b) and par (c) of s 30(4) which the applicant has established, by evidence, to the court's satisfaction. Any conditions must relate or be incidental to that purpose. If it were otherwise, the evident purpose of s 30(4) would readily be subverted.
71 For example, a condition may, in a particular case, depending on all the relevant facts and circumstances, be incidental to the granting of an extraordinary licence, for the purpose of overcoming or relieving the consequence specified in par (c) of s 30(4), if the applicant has a legal or moral duty in relation to the care of young children, and the condition permits the applicant to take the children to and collect them from school in the course of the applicant driving to or from his or her place of employment.
The merits of ground 1
72 Counsel for the appellant argued that the primary judge erred in law by finding that 'the only practicable means', within s 30(4)(c), are 'to be determined by taking into account all of the circumstances of the case and making a comparison of the transportation options available to the applicant by reference to factors such as time, cost and inconvenience' [47]. Counsel also argued that, as a result of that error, his Honour erred in fact and law in finding that the refusal of the respondent's application would deprive her of the only practicable means of travelling to and from her work.
73 His Honour said:
The purpose of the legislation in my opinion is to alleviate the burden of disqualification from driving in cases where that punishment results in an inappropriately harsh outcome. That result will occur where the disqualification causes disproportionate hardship (relative to other cases of disqualification) to a person who relies on a motor vehicle to obtain urgent medical treatment (s 30(4)(a)), to generate their principal source of income (s 30(4)(b)), or as the only practicable means of getting to and from work (s 30(4)(c)).
With this purpose in mind, I consider that what is 'the only practicable means' is to be determined by taking into account all of the circumstances of the case and making a comparison of the transportation options available to the applicant by reference to factors such as time, cost and inconvenience. The court is required to consider what is reasonable in the particular circumstances of the case, as opposed to what is merely possible [46] - [47]. (emphasis added)
74 The passage I have highlighted in [47] of the primary judge's reasons reveals two errors. First, as I have explained, the court's function does not involve a determination of what is 'the only practicable means' for the applicant to travel to and from his or her place of employment. Secondly, as I have also explained, the court's function does not involve making a comparison between the applicant's available transport options. See [60] above.
75 Those errors involved a material misconstruction of the legislation.
76 Ground 1 has been made out.
The merits of ground 2
77 Counsel for the appellant argued that the primary judge erred in law 'in failing to give adequate weight to the intended punitive aspect of the respondent's licence disqualification'. Counsel relied on Italiano.
78 In Italiano, on 9 September 1998, the appellant was convicted, after trial, of four charges of dangerous driving causing bodily harm. He was fined a total of $4,000 and disqualified from driving a motor vehicle for 18 months on each charge, the periods of disqualification to be served concurrently. On 8 October 1998, the appellant applied for an extraordinary licence for classes A, B and C, within a 350 km radius of his employer's premises at Collie, for a period of 24 hours a day. The appellant was a truck driver by occupation. He deposed that, without an extraordinary licence, he would lose his job and that his loss of employment would cause financial hardship. On 23 October 1998, the appellant's application was heard by a magistrate. The application was refused. An appeal to the Supreme Court against the magistrate's refusal was dismissed. McKechnie J said:
A motor vehicle driver's licence is not a right, it is a privilege, the continued maintenance of which depends on avoidance of traffic offences.
As a direct result of his dangerous driving the appellant lost that privilege. The offences with which he was convicted carried a mandatory period of disqualification. The disqualification actually imposed, as I have said, was 18 months, not 12 months, so there was necessarily an element of punishment for the extremely serious offence.
The breadth of the licence sought, if granted, would have greatly minimised the punitive aspects of the disqualification, turning an 18 month disqualification for driving so dangerously as to cause bodily harm to four people into a 1-month disqualification and thereafter some minor inconvenience in the appellant's personal life.
The appellant was entitled to make application at the time that he did.
However, the consequence of making an application at the minimum period, meant that, effectively, he precluded the Magistrate's considerations under s 76(3)(e), namely, the conduct of the applicant subsequent to the disqualification, so that the magistrate could not really attribute any weight to that particular ground.
The appellant under the Road Traffic Act s 76(4) may shortly bring a further application. I do not consider that the same result as applied in the application presently appealed from necessarily would apply in a new application, in part because an application after this length of time would have to take into account to a greater measure than the Magistrate could, the provisions of the Road Traffic Act s 76(3)(e).
Other factors may also be relevant. I mention this simply to say that in my opinion the decision of the Magistrate in this matter appealed from was correct on the material before him and no error has been shown that he erred. However, that decision, and this decision, does not foreclose a fresh application being made on factors which may or may not now be different [19] - [25]. (emphasis added)
79 The so-called 'punitive aspects of the disqualification' mentioned in Italiano [21] are not expressly referred to in s 30(2), but they will ordinarily be an integral part of 'the nature of the offence or offences giving rise to the disqualification', within s 30(2)(d).
80 An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ); Vagh v The State of Western Australia [2007] WASCA 17 [76] (McLure JA); Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P & Mazza J agreeing). A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment. In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.
81 In the present case, the primary judge gave consideration to each of the matters specified in s 30(2). The complaint in ground 2 that his Honour failed to give 'adequate weight' to the intended punitive aspect of the respondent's licence disqualification is without merit. No express appealable error exists because the extent to which his Honour had regard to that matter did not constitute a failure to exercise the discretionary power entrusted to him.
82 In any event, McKechnie J's observations in Italiano to the effect that the licence sought by the appellant in that case, if granted, 'would have greatly minimised the punitive aspects of the disqualification' [21], were based on two factors. First, the breadth of the licence sought by the appellant. Secondly, the appellant's decision to make the application for an extraordinary licence only one month after his disqualification commenced.
83 In the present case, neither of those factors existed. The respondent's motor driver's licence disqualification commenced on 18 July 2013. On 17 March 2015, she filed her application for an extraordinary licence. On 18 May 2015, his Honour ordered that the licence be granted. Further, the terms of the licence sought by the respondent were significantly narrower than those sought by the appellant in Italiano (and materially narrower than the terms of the licence granted to the respondent by his Honour).
84 Ground 2 fails.
The merits of ground 3
85 Counsel for the appellant argued that the primary judge erred in law in finding that s 30(4) does not limit the exercise of the court's discretion to impose conditions under s 32(b).
86 His Honour imposed a condition which authorised the respondent to drive 'for the purpose of attending for medical treatment for herself or her children' [62]. In my opinion, it was not open to his Honour to impose that condition.
87 The primary judge found that the respondent had satisfied s 30(4)(c). His Honour did not find that she had satisfied s 30(4)(a) or s 30(4)(b). In those circumstances, his Honour was not empowered to impose conditions on the grant of the extraordinary licence that were unrelated or not incidental to the respondent travelling to and from her place of employment.
88 The respondent's application was not made on the basis of s 30(4)(a). She adduced no evidence before his Honour of a need to obtain urgent medical treatment for an illness, disease or disability known to be suffered by the respondent or a person who is a member of her family, within s 30(4)(a). Indeed, there was no evidence of a need for medical treatment of any kind.
89 The primary judge was not empowered to impose a condition relating to medical treatment which had the effect of expanding the circumstances in which the respondent was authorised to drive beyond the purpose of overcoming or relieving the consequence specified in s 30(4)(c) which the respondent had established, by evidence, to the court's satisfaction. The condition was unrelated and not incidental to that purpose.
90 Ground 3 has been made out.
Conclusion
91 I would allow the appeal. The primary judge's order that the appellant issue an extraordinary licence to the respondent should be set aside. At the hearing of the appeal, counsel for the appellant conceded, correctly, that the respondent's application should be remitted to a different judge of the District Court for rehearing according to law, and without limitation on the power of the judge to receive new or supplementary evidence in support of or opposition to the application (appeal ts 14 - 16).
92 MURPHY JA: I have had the advantage of reading in draft the reasons of Buss P. I agree, essentially for the reasons given by his Honour, that grounds 1 and 3 should be upheld, and that ground 2 has not been established. I also agree with the orders proposed by Buss P.
93 BEECH J: I agree with Buss P.
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