Fonseka v The Chief Police Officer - [2021] ACAT 32

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FONSEKA v THE CHIEF POLICE OFFICER (Administrative Review) [2021] ACAT 32

AT 10/2021
Catchwords: ADMINISTRATIVE REVIEW – review of decision to refuse to withdraw infringement for exceeding the speed limit – particular offence generally considered unsuitable for withdrawal unless exceptional circumstances exist – disagreeing with a law, or finding it inconvenient to adhere to it are not grounds for having an infringement notice withdrawn – being unfamiliar with a road or needing to overtake slower moving vehicles travelling below the posted speed limit does not amount to an exceptional circumstances – decision confirmed

Subordinate
Legislation:Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 DI2019–211

Tribunal: Senior Member K Katavic

Date of Orders:  29 March 2021
Date of Reasons for Decision:         20 April 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 10/2021

BETWEEN:
NISHAN FONSEKA
Applicant

AND:
THE CHIEF POLICE OFFICER
Respondent

TRIBUNAL: Senior Member K Katavic

DATE:29 March 2021

ORDER

The Tribunal orders that:

The decision dated 5 February 2021 is confirmed.

…….…Signed………..
Senior Member K Katavic

REASONS FOR DECISION

On 19 February 2021, the applicant, Nishan Fonseka, sought review of a decision of the respondent, the Chief Police Officer, regarding traffic infringement notice 2758735489. The respondent refused to withdraw the infringement notice for exceeding the speed limit. On 13 November 2019, the vehicle, the subject of the infringement notice, was captured driving towards a mobile camera van on Mouat Street, Lyneham, between Northbourne Avenue and Ginninderra Drive. The vehicle was detected travelling at 82km/h in a 60km/h zone. The applicant concedes he was driving the motor vehicle that is the subject of the infringement notice at the time.
On 29 March 2021, the Tribunal heard this application. After hearing from the parties, the Tribunal made orders and gave oral reasons.
Those oral reasons are set out below with some minor editing.
The applicant made a request to have the infringement notice withdrawn. On 1 December 2020 that request was refused. The applicant sought internal review of the decision refusing to withdraw the infringement notice. On 5 February 2021 the applicant was advised the respondent had upheld the earlier decision again declining to withdraw the infringement notice.
The Tribunal now stands in the shoes of the decision-maker in order to consider whether the decision to uphold the earlier decision refusing to withdraw the infringement notice was correct or preferable. The Tribunal must do so based on the evidence before it at the time of hearing.
The applicant explained in his application that he was trying to overtake a very slow-moving vehicle in front of him which was travelling below the speed limit. He says he needed to speed up to get in front of the slow-moving vehicle as another car was also moving very slow in the lane. The applicant said he was overtaking to change back into an unobstructed lane in circumstances where the two-lane road was merging into one. He said this was not a road on which he usually travelled. He further explained that he would not have needed to overtake any vehicles if cars were moving at the speed limit, and that the mobile camera van was deliberately placed to capture vehicles overtaking in the manner he was.
The basis upon which the applicant challenges the respondent’s decision is that the placement of the van was revenue raising and a form of entrapment because he needed to exceed the speed limit to overtake a slow-moving vehicle to mitigate against any potential collision.
Despite directions being made for the filing of any further evidence upon which the parties intended to rely upon at the hearing, the applicant has not filed anything else. Without objection from the respondent, the applicant gave evidence before the Tribunal at the hearing, which was effectively the same as the statements contained in his application. He overtook the slower moving vehicle and needed to speed up to safely merge to a single lane and avoid collision. He told the Tribunal he had a clean driving record and had recently received a discount on his drivers licence renewal as a result. There is no documentary evidence before the Tribunal to support this assertion, but it was not the subject of challenge under cross-examination. He did, under cross-examination, accept that in his previous requests to the respondent he had not referred to needing to merge into a single lane as the explanation for speeding up so he could do so safely without collision.
The respondent gave to the Tribunal and the applicant relevant documents upon which the decision was based. These included the image of the vehicle captured by the camera, the infringement notice, the applicant’s request for withdrawal, the original decision refusing withdrawal, the applicant’s request for further internal review, and the reviewable decision.
The respondent also lodged a witness statement of Alex McPherson, Senior Director of the Fair Trading and Compliance Team dated 22 March 2021. In that witness statement Ms McPherson explained decision-makers must apply the Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (the Guidelines) in deciding a withdrawal request. A copy of the Guidelines was given to the applicant and the Tribunal.
The applicant objected to the Tribunal having regard to the respondent’s material on the basis that they were not lodged in accordance with the directions made on 24 February 2021. The witness statement and Guidelines were lodged one day late and the relevant documents, commonly referred to as the Tribunal documents, should have been lodged by 10 March 2021 but were instead lodged together with the other material on 23 March 2021. The applicant could not identify any prejudice or disadvantage in receiving the documents a day late and conceded that the Tribunal documents contained no new material upon which he may suffer prejudice or disadvantage. The Guidelines are a publicly available document. I was satisfied they were filed for convenience. In the circumstances I accepted the respondent’s documents and had regard to them.
Ms McPherson gave evidence before the Tribunal and was questioned by the applicant. She was directed to a photograph which appears at page 22 of the Tribunal documents showing the vehicle being driven by the applicant in the lane, with the second lane beside it. Ms McPherson was challenged on her conclusion that the vehicle driven by the applicant was not obscuring a vehicle in the adjacent lane behind his vehicle. The contrary conclusion would support the applicant’s account of the circumstances giving rise to exceeding the speed limit. Ms McPherson said that in her experience reviewing such images, she did not regard another vehicle to be located in the blind spot behind the applicant’s vehicle. She did not consider there was enough space behind the applicant’s vehicle for another vehicle and there were filtered views through the applicant’s vehicle into the adjacent lane through which she said she could not see another vehicle. She conceded the possibility but maintained that in her experience it was not probable.
The decision to withdraw an infringement notice remains discretionary. That means the infringement notice may or may not be withdrawn after considering all of the relevant circumstances.
In this case, the offence involved the applicant exceeding the speed limit by greater than 15km/h in a non-school zone. That is an offence according to attachment A of the Guidelines that is generally considered unsuitable for withdrawal. The Guidelines further state that disagreeing with a law, or finding it inconvenient to adhere to it are not grounds for having an infringement notice withdrawn.
On the evidence before me, the applicant has not established a basis upon which I could be comfortably satisfied the respondent’s decision should be set aside. I am not satisfied the applicant has established exceptional circumstances that might support the withdrawal of the infringement notice.
The starting point is the offence. In this case the applicant was travelling 22km/h above the posted speed limit, which by reason of the Guidelines is an offence unsuitable for withdrawal unless there is something exceptional about the circumstances in which the speed limit was exceeded. Being unfamiliar with a road does not amount to an exceptional circumstance, nor does needing to overtake slower moving vehicles travelling, apparently below the posted speed limit, and in the process exceed that posted speed limit by 22km/h. Unfamiliarity with a road may in fact be a reason to drive slower and observe the speed limit, which is the law.
I accept Ms McPherson’s evidence that when looking at the photograph of the applicant’s vehicle in the lane, it is improbable that a vehicle is behind him but obscured. Even if I were to accept the applicant’s account that he needed to speed up in order to safely merge into a single lane and avoid collision with the vehicle he had overtaken, I am not satisfied it rises to a level capable of being characterised as an exceptional circumstance. Whether the applicant regarded his actions as a necessary safety measure does not render exceeding the speed limit by 22km/h exceptional.
Even accepting that the applicant has an unblemished driving record, that is not enough to warrant withdrawal of the infringement notice in circumstances where the legislature has seen fit to characterise this particular offence as one which is unsuitable for withdrawal. Whether the applicant regards the positioning of the mobile camera van as revenue raising and entrapment does not detract from his actions and his failure to observe the posted speed limit. It is not a reason to have the infringement notice withdrawn.
The decision dated 5 February 2021 is confirmed.
………………………………..
Senior Member K Katavic

Date(s) of hearing	29 March 2021
Applicant:	In person
Solicitors for the Respondent:	Ms M Bayer, ACT Government Solicitor