Director General of the Department of Transport v Wally - [2011] WADC 24

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: KARRATHA

CITATION: DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT -v- WALLY [2011] WADC 24

CORAM: STONE DCJ

HEARD: 7 FEBRUARY 2011

DELIVERED : 7 FEBRUARY 2011

PUBLISHED : 17 FEBRUARY 2011

FILE NO/S: KAR APP 1 of 2011

MATTER :IN THE MATTER of an Appeal against the Order and Judgment of Magistrate Roth given 30 November 2010

BETWEEN: DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT
AND
IAN WALLY

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE ROTH
File No  :RB 531 of 2010

Catchwords:

Extraordinary licence

Legislation:

Road Traffic Act 1974

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr D Jones
Respondent: No appearance

Solicitors:

Appellant: State Solicitors Office
Respondent: Not applicable

Case(s) referred to in judgment(s):

Nil

STONE DCJ: [This judgment was delivered extemporaneously on 7 February 2010 and has been edited from the transcript.]
The respondent Mr Ian Wally was disqualified from holding or obtaining a drivers licence for driving whilst under suspension. Mr Wally applied to the Magistrates Court at Roebourne for an extraordinary licence for the purposes of his employment as a mobile plant operator with Blackstone Enterprises so he could drive and operate machines on its mine-sites. On 30 November 2010 the learned Magistrate directed the grant of an extraordinary licence to Mr Wally to drive in the course of his employment within Cape Preston Mine Site and any Rio Tinto Coastal Operations (the permissible areas).
The appellant Director General of Transport has appealed on the ground that the learned Magistrate erred in law in directing the grant of an extraordinary licence to Mr Wally to drive in the permissible areas when there was no jurisdiction to do so in such terms. The appellant submits Mr Wally was permitted to drive only in the permissible areas. The permissible areas are not roads within the meaning of the Road Traffic Act 1974. A driver's licence is not required in order to drive in the permissible areas.
The evidence before the learned Magistrate was that Mr Wally required an extraordinary licence for the purposes of his employment. Mr Wally claimed he was required to have a drivers licence to drive and operate machines on the mine-sites. Mr Wally did not need to drive on the public roads and he did not apply to do so.
It was not in dispute that Mr Wally was disqualified from holding or obtaining a drivers licence until September 2019 for driving whilst under suspension. He had two convictions for driving under the influence of alcohol, the last of which was in 1997. In 2003 he was convicted of reckless driving, otherwise all other disqualifications from holding or obtaining a drivers licence were for driving whilst under suspension.
The police prosecutor indicated to the learned Magistrate that the Director General of Transport had no issue with the overall application but submitted a driver’s licence was not required and could not be issued by the Director General of Transport for use on a private mining lease.
The learned Magistrate concluded that Mr Wally required a driver's licence to continue with his employment and without a driver’s licence he would lose his employment and this would cause financial hardship. The learned Magistrate was satisfied Mr Wally met the other criteria to be addressed under s 76 (3) of the Act. Further, a driver's licence to continue with employment would assist with Mr Wally's rehabilitation.
I accept that a 'driver’s licence' as defined by the Act is not required to drive a motor vehicle on a private mining lease having regard to the meaning of 'road' in the Act.
However, a person may require a valid driver's licence for any number of reasons. A person may require a valid driver's licence as a means of identification or for employment. An employer may require an employee to hold a valid driver's licence to drive a particular class of vehicle in the course of employment for obvious reasons, the least of which to ensure the employee is capable of doing so. Further, driving in the course of employment may involve driving a vehicle in places and locations other than on a public road.
The Act states that it is 'an Act to consolidate and amend the law relating to road traffic; to repeal the Traffic Act 1919 and for incidental and other purposes'. It follows that the Act covers purposes other than those that relate only to road traffic.
'Extraordinary licence' as defined by the Act means 'a driver's licence that the Director General grants as ordered under section 76' by a court.
Pursuant to s 76 (5) (a) (ii) of the Act a court making an order directing the grant of an extraordinary licence by the Director General of Transport to an applicant may impose 'such limitations and conditions as the court thinks proper subject to the observance of which the authority to drive pursuant to the licence may be exercised, including limitations and conditions as to the locality in which and roads on which the applicant is entitled to drive, the purposes for which the applicant is entitled to drive, the hours during which the applicant is entitled to drive, and the vehicle or class of vehicle that may be driven under the authority of the licence'. Further, pursuant to s 76 (5) (b) of the Act the 'Director General shall give effect to the order according to its tenor and when issuing the licence shall specify therein any limitations and conditions imposed pursuant to paragraph (a)(ii)'.
It can be seen that under s76 (5) (a) of the Act a court has a fairly wide discretion as to the limitations and conditions it may impose on an order directing the grant of an extraordinary licence by the Director General of Transport, 'including limitations and conditions as to the locality in which … the applicant is entitled to drive, the purposes for which the applicant is entitled to drive, the hours during which an applicant is entitled to drive, and the vehicle or class of vehicle that may be driven under the authority of the licence' as occurred in this case. Further, the court can impose limitations and conditions as to the roads on which the applicant is entitled to drive which must mean public roads and as occurred in this case by implication.
In the circumstances, I am of the opinion that the grant of an extraordinary licence by the Director General of Transport for the purposes of meeting the requirements of Mr Wally's employment and rehabilitation and to avoid the prospect of his unemployment and financial hardship was within the ambit and contemplation of the stated objectives of the Act.
The learned Magistrate did not err in law in directing the grant of an extraordinary licence to Mr Wally to drive in the course of his employment within Cape Preston Mine Site and any Rio Tinto Coastal Operations (the permissible areas). The appeal is dismissed.