Foti v SafeWork SA
[2008] SADC 156
•26 November 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of DANGEROUS SUBSTANCES ACT 1979
FOTI v SAFEWORK SA
[2008] SADC 156
Judgment of Her Honour Judge Trenorden
26 November 2008
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS - DEALERS
Appeal against decision of a Competent Authority - Whether appellant fell within class of persons described in Reg 18.11(2)(a) or (b) of Commonwealth Regulations test of "unsuitable" - Whether condition could be imposed on a licence if granted.
HELD: Appeal dismissed.
Dangerous Substances Act 1979; Dangerous Substances Regulations 2002; Road Transport Reform (Dangerous Goods) Regulations 1997; Road Transport Reform (Dangerous Goods) (SA) Regulations 1998; District Court Act 1991, referred to.
FOTI v SAFEWORK SA
[2008] SADC 156THE COURT DELIVERED THE FOLLOWING JUDGMENT:
The appellant, Mr Roberto Foti (Mr Foti) applied for a licence to convey dangerous substances, under the Dangerous Substances Act 1979. The Competent Authority under the Act refused to grant him a licence. Mr Foti sought a review of that decision, which was granted, but the decision was not reversed.
Mr Foti has appealed to the Administrative and Disciplinary Division of this Court against the refusal to grant him a licence to carry prescribed dangerous substances.
The Law
It is an offence to convey dangerous substances without a licence: s 18. There is power in a Competent Authority to licence a person to convey prescribed dangerous substances: s 19(1). A licence may be granted by the Competent Authority subject to the kinds of conditions envisaged in s 19(2) of the Act.
However, a Competent Authority cannot grant a licence if he or she is satisfied that it is not in the interests of public safety so to do: s 21.
The Act provides, under s 23, that regulations may make provision for, among other matters, the licensing of drivers for the purposes of the transport of dangerous goods.
The Dangerous Substances Regulations 2002, by Regulation 10, establish that the relevant Commonwealth Regulations, namely the Road Transport Reform (Dangerous Goods) Regulations 1997 with modifications, apply as regulations under the Dangerous Substances Act, and so modified, may be cited as the Road Transport Reform (Dangerous Goods)(SA) Regulations 1998 (the Commonwealth Regulations).
Part 18 of the Commonwealth Regulations addresses licences. Division 3 of that part sets out what is required of an applicant for a bulk driver’s licence. Regulation 18.11 directs the Competent Authority to grant a licence in certain cases (see paragraph (1)) and to refuse to grant a licence in certain other cases (see paragraph (2)). Regulation 18.11(2) is set out below:
…
(2) However, the Competent Authority must not grant the licence if:
(a) in the 5 years before the day when the application is made:
(i)the applicant has been found guilty by a court in Australia of an offence that makes the applicant unsuitable to be the driver of a vehicle transporting dangerous goods in bulk; or
(ii)the applicant’s driving licence has been cancelled or suspended on a ground that makes the applicant unsuitable to be the driver of a vehicle transporting dangerous goods in bulk; or
(b)the applicant is subject to a court order prohibiting the applicant from involvement in the transport of dangerous goods by road.
…
Mr Foti had a right of appeal to this Court according to s 37 of the Act, from the review of the decision made by the Competent Authority. The appeal was required to be instituted within the time prescribed by the Regulations: s 37(4)(c). That period is 28 days from the day on which notice of the decision was given: see Regulation 16 of the Dangerous Substances Regulations 2002.
Time for Appeal
Mr Foti was advised in writing that his application had been refused by the Competent Authority (SafeWork SA) on 3 April 2008. Mr Foti sought a review of that decision on 21 April 2008. A decision was duly made and Mr Foti was advised in writing of the decision upon review, with notice being given on 28 May 2008. An appeal should have been filed by Mr Foti in the Court by 25 June 2008. The appeal was filed on 2 July 2008, and thus it was 7 days late.
The respondent did not oppose an extension of time being granted. It does not appear from the Dangerous Substances Act and Regulations that there is power in the Court to extend the time in which to appeal. However, there is power in s 42C of the District Court Act 1991 to extend the time for instituting an appeal. Given that an order extending the time in which to appeal was not opposed by the respondent and it follows that there is no prejudice to the respondent, leave is granted to extend the time in which to appeal, to 2 July 2008, the day on which the appeal was lodged.
Consideration of the Appeal
It appears that Mr Foti has met all the requirements for the grant of a bulk driver’s licence. However, Mr Foti fell within the class of persons described in Regulation 18.11(2)(a) of the Commonwealth Regulations according to the respondent, and so the respondent determined that it had no power to grant a licence.
Within the 5 years preceding his application for a licence, Mr Foti has been found guilty by a court in South Australia of the following offences:
Date Offence Penalty 14 April 2005
Failing to give sufficient warning when turning left (contrary to Rule 46(1) of the Australian Road Rules)
Convicted, fined $300, disqualified from holding driver’s licence for 6 months
Driving at a dangerous speed (contrary to s 46 of the Road Traffic Act 1961) 29 November 2005
Driving under disqualification (contrary to s 91 of the Motor Vehicles Act 1959)
Providing a false name and address (contrary to s 74A(3)(b) of the Summary Offences Act 1953)
Convicted, sentenced to
14 days imprisonment. Suspended upon entering into a good behaviour bond for 12 months
On 15 October 2005, Mr Foti was disqualified from driving for a period of 3 months as a result of an accumulation of 12 or more demerit points within a 3 year period.
Mr Foti gave an explanation of the circumstances of the offences of which he was convicted on 29 November 2005. In addition, he informed the Court that as a result of the 2005 offences, he has gone through a period of unemployment and financial instability. Mr Foti has had a clean driving record since late 2005, and at the time of the hearing had the prospect of full time employment as a dangerous goods driver, having undergone training.
Having heard the submissions, I reserved my decision to consider two matters. The first was whether the offences are of the kind that make the applicant unsuitable to hold a licence, and secondly if that is the case, whether it was possible to do as Mr Foti asked, namely to grant a licence, perhaps with a condition limiting the use of the licence to the carriage of certain dangerous goods only.
Unsuitability By Offence
After much deliberation, I have concluded, unfortunately for Mr Foti, that the Commonwealth Regulations are quite explicit: no form of bulk driver licence can be granted in circumstances where either placitum (i) or (ii) of Regulation 18.11(2)(a) apply.
The law requires that a successful applicant for a bulk driving licence will be a competent driver able to show a good driving record in the previous 5 years, who is at least 21 years old and medically fit. In effect, the law seeks to licence as bulk dangerous goods drivers, only those persons who are shown to be safe drivers and would not present a risk when driving either because of their personal health, poor driving skills or propensity to seriously offend against the Road Traffic Rules. The propensity to seriously offend against the Road Traffic Rules is to be measured by looking at the applicant’s record over the 5 years preceding the application.
Mr Foti has been found guilty within 5 years prior to the date of the application of driving at a dangerous speed. He was driving at 120kms per hour in an 80km per hour zone. That is a serious offence in the context of road safety. Although the wording of the relevant part of the regulation is curious, I accept that placitum (i) includes the type of offence, that if committed by the driver of a vehicle transporting dangerous goods in bulk, would pose a significant hazard to public safety. I consider that driving at a dangerous speed is an offence in that class of offences that would make the applicant unsuitable to be the driver of a vehicle transporting dangerous goods in bulk, where the offence has been committed within 5 years before the date of the application.
Unsuitability By Reason of Ground of Cancellation/Suspension of Licence
Mr Foti’s driver’s licence was suspended on 14 April 2005 in that he was disqualified from driving for a period of 6 months following upon a conviction of driving at a speed dangerous – a serious offence. That ground makes him unsuitable to be the driver of a vehicle transporting dangerous goods in bulk, given that it occurred within 5 years prior to the date of the application for a bulk driver’s licence.
Mr Foti’s driver’s licence was suspended for 3 months as a result of an accumulation of 12 or more demerit points within a 3 year period. Without more, that ground of disqualification within 5 years of the date of the application for a licence, does not make the applicant unsuitable to be the driver of a vehicle transporting dangerous goods in bulk. There was before me a printout of the reasons for the demerit points. They included a number of relatively minor traffic offences, the details of which I need not consider further, because I have to be concerned only with the ground of cancellation or suspension of the licence. The ground of suspension was, in effect, a very poor driving record within the previous 3 year period. Given that the Regulations make clear that a high standard is expected of an applicant for a bulk driving licence, it seems that the suspension of Mr Foti’s licence for an accumulation of demerit points within a 3 year period would make him unsuitable to be the driver of a vehicle transporting dangerous goods in bulk.
The Possibility of a Licence Subject to Conditions
I have considered this prospect, as sought by Mr Foti. However, I am unable to go beyond the primary question. The structure of the Regulations make it clear that a licence cannot be granted if the applicant either has been found guilty of an offence within the last 5 years that would make him unsuitable to be a driver of a bulk dangerous goods vehicle, or has had his driving licence suspended or cancelled within the last 5 years on a ground that would make him unsuitable to be such a driver.
Conditions that might be imposed on a licence can only be considered once it has been determined that the applicant is a suitable person to be licensed. Mr Foti cannot be licensed at this time.
Conclusion
Having considered all that was put before the Court, I have come to the conclusion that there is no cogent reason to depart from the decision of the Competent Authority, namely the respondent.
Mr Foti is obviously keen to obtain a bulk driving licence and appears to have had an excellent driving record for the past 3 years or more. If he can maintain that record over a further 2 years, so that he has an unblemished driving record for 5 years prior to his application, and can meet the other tests required of an applicant, he should have good prospects of obtaining a bulk driving licence.
The appeal is dismissed.
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