HAYWARD and DEPARTMENT OF PLANNING AND INFRASTRUCTURE
[2008] WASAT 37
•19 FEBRUARY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: ROAD TRAFFIC ACT 1974 (WA)
CITATION: HAYWARD and DEPARTMENT OF PLANNING AND INFRASTRUCTURE [2008] WASAT 37
MEMBER: MS J HAWKINS (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 19 FEBRUARY 2008
FILE NO/S: CC 1346 of 2007
BETWEEN: ANNA HAYWARD
Applicant
AND
DEPARTMENT OF PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Review of decision to cancel motor driver's licence - Insufficient information to reverse decision - Decision to cancel affirmed
Legislation:
Road Traffic Act 1974 (WA), s 42(2)(c), s 48, s 84
State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 32, s 60(2)
Result:
The decision to cancel the applicant's driver's licence be affirmed
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr N Fox
Solicitors:
Applicant: Self-represented
Respondent: Department of Planning and Infrastructure
Case(s) referred to in decision(s):
Department of Planning and Infrastructure v Nealon [2003] WASCA 161
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mrs Hayward applied to review a decision of the Department of Planning and Infrastructure to cancel her motor vehicle driver's licence. The decision was made due to Mrs Hayward's failure to pass practical driving tests which she was required to undergo pursuant to s 48(7) of the Road Traffic Act 1974 (WA).
Due to the failure of Mrs Hayward to provide any further information to satisfy the Tribunal of her demonstrated ability to control a class of motor vehicle for which she was previously licensed, the application was dismissed.
Introduction
Mrs Hayward seeks a review under s 48(4) of the Road Traffic Act 1974 (WA) (RT Act) of a decision of the Department of Planning and Infrastructure (DPI) to cancel her motor vehicle driver's licence (driver's licence) under s 48(1)(f) of the RT Act. The letter from the DPI advising Mrs Hayward of the cancellation of her driver's licence was dated 7 March 2007, and advised that it was due to her failure to pass her practical driving tests carried out on 27 February 2007 and 6 March 2007 in Bridgetown.
The matter has been the subject of four directions hearings on 6 September 2007, 11 October 2007, 15 November 2007 and 29 November 2007.
Mrs Hayward has been given several adjournments to enable her to obtain legal advice and to make any arrangements she wished to make to undergo an independent driving assessment. As at the last directions hearing held on 29 November 2007, she had still not obtained legal advice and wanted further time to do so. As a result, programming orders were made on 29 November 2007, ordering the parties to file any further information they wished to rely upon, following which, the matter would be determined on the documents. It was considered appropriate to determine the matter on the documents due to the nature of the application and the lack of credibility issues to be determined.
The DPI was required to provide to the Tribunal and to Mrs Hayward a statement of issues, facts and contentions, and its documents, by no later than 13 December 2007. Those documents were filed in this Tribunal on 6 December 2007. Mrs Hayward was given until 21 December 2007 to file with this Tribunal, and give to the DPI, any further information she wished the Tribunal to take into account. Apart from her original application and the oral submissions she has made at the various directions hearings, Mrs Hayward has not filed any further information with this Tribunal.
As a result, this matter is determined upon the documents as ordered on 29 November 2007.
Relevant statutory framework
The application is for a review of a decision of the Director General of the DPI to cancel Mrs Hayward's driver's licence.
Section 48(4) of the RT Act allows a person aggrieved by a decision of the Director General of the DPI to apply to this Tribunal for a review of a decision.
The relevant provisions of the RT Act that apply in this matter are as follows:
•Section 48(4) - allows a person to apply to the Tribunal for a review. Relevantly, it states:
"Where the Director General decides to exercise the power conferred by subsection (1), (1a), (2) or (3), as the case may be, the Director General shall give to the person thereby affected notice in writing of that decision, setting out the Director General's reasons therefore, and a person aggrieved by the decision may apply to the [Tribunal] for a review of the decision."
•Section 48(1) allows the Director General to cancel a person's driver's licence for numerous reasons. In this case, Mrs Hayward's driver's licence was cancelled pursuant to s 48(1)(f) of the RT Act. It states:
"(1)The Director General may refuse to issue a driver's licence, or may cancel, suspend or refuse to renew a driver's licence, where the Director General has reason to believe that the applicant for, or the holder of, a driver's licence ‑
...
(f)is no longer capable of controlling the class of motor vehicle for which he holds the appropriate driver's licence."
•Pursuant to s 48(7) of the RT Act, the Director General is not able to renew a person's driver's licence if aged 75 years or more, unless that person satisfies the Director General that he/she is able to comply with the requirements of s 42(2)(c). Section 48(7) states:
"Subject to subsection (1a), the Director General shall not renew a driver's licence in the case of a licence holder aged 75 years or more, unless the licence holder satisfies the Director General, at the prescribed intervals[,] that he is able to comply with the requirements of [s] 42(2)(c)."
•Section 42(2)(c) provides:
"(2)Subject to the succeeding provisions of this Part, the Director General shall, on the application of any person, on payment of the prescribed fee and on being satisfied that the applicant ‑
...
(c)has demonstrated his ability to control the class of motor vehicle for which the appropriate driver’s licence is sought and satisfied any other requirements prescribed by the regulations; ..."
The relevant provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in respect to a review are s 27, s 29 and s 32. Those provisions relevantly state as follows:
"27. Nature of the hearing
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision‑maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision."
"29. Powers of Tribunal on review
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may ‑
(a)affirm the decision that is being reviewed;
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and ‑
(i)substitute its own decision; or
(ii)send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
..."
"32. Practice and procedure, generally
…
(2)The Evidence Act 1906 does not apply to the Tribunal's proceedings and the Tribunal ‑
(a)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms."
•Pursuant to s 60(2) of the SAT Act, the Tribunal is given power to determine any part of a proceeding on the documents. Section 60(2) states as follows:
"(2)If the Tribunal thinks it appropriate, it may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in a hearing."
The respondent's case
The information relied upon by the DPI to support the decision of cancellation of Mrs Hayward's driver's licence, in summary, follows:
•The statement of issues, facts and contentions states that Mrs Hayward underwent two practical driving assessments with the Western Australian Police stationed at Bridgetown Police Station on 27 February 2007 and 6 March 2007.
•It appears from the documents filed by the DPI that these tests were required under the RT Act, as Mrs Hayward was, at the time, over the age of 75. As such, she is required, under s 48(7) of the RT Act, to satisfy the requirements of s 42(2)(c) of the RT Act by undergoing a practical driver's assessment.
•The documents filed by the DPI include a memorandum from Constable Maclean of Bridgetown Police Station in respect to a practical driving assessment undertaken by Mrs Hayward on 6 March 2007. That memorandum states that Mrs Hayward at the time was 82 years old. It states that Mrs Hayward failed to obey stop signs, failed to look both ways when turning a corner, turned from the left side of the road when turning right, travelled on the incorrect side of the road after turning, and travelled on the opposite side of the road. These were the experiences of Constable Maclean when driving with Mrs Hayward for about 10 minutes. Constable Maclean recommended that Mrs Hayward driver's licence be revoked.
•On that same memorandum, there was a notation by the Sergeant of Bridgetown Police Station in respect to a practical driving assessment Mrs Hayward undertook on 20 February 2007. In that handwritten notation, it states that Senior Constable Chitty undertook the assessment, and that it was his experience that Mrs Hayward turns from the left when turning right, drives on the incorrect side of the road, is unsure of the gears in automatic and appears to have no idea of her obligations. The Sergeant of Bridgetown Police Station states that his staff are very concerned about Mrs Hayward and support Constable Maclean's recommendation to revoke Mrs Hayward's driver's licence.
•Following receipt of this information, the DPI issued Mrs Hayward with the letter dated 7 March 2007 cancelling her driver's licence.
•The DPI maintains that Mrs Hayward has failed to meet the standards for licensing, as required under the RT Act.
•The DPI has provided a copy of Mrs Hayward's traffic conviction record, which reveals that she has no offences for traffic convictions under the RT Act.
The applicant's case
The only written information provided by Mrs Hayward was her original application. That application states that she would like to get a permit to drive to her son's farm approximately nine kilometres away. She states that her son had a nervous breakdown and has been left with a disability and needs her help. Mrs Hayward would like to visit her son. She says that her son looks after her other son's property and he cannot drive. She also states that she is a war widow and has three vehicles on her farm.
During the directions hearings, at which time Mrs Hayward appeared via telephone link, she maintained that she was a good driver. She also indicated that she has never had a traffic offence. She reiterated that she simply wanted her driver's licence to enable her to visit her son who lives nearby.
She wanted to undergo another driver's assessment. However, the DPI's representative indicated that, given the results from her previous assessments, the DPI was not willing to place its staff or the police at risk. It was explained that if she wished to obtain any evidence of her ability to drive, she would need to arrange for an independent driver's assessment. Details of how that could be arranged were explained to her at several of the directions hearings.
At this stage, Mrs Hayward has not provided any such further evidence, nor has she provided any further information in support of her application.
Consideration
This matter is to be determined within the Tribunal's review jurisdiction under s 27 of the SAT Act. The review is a hearing de novo, and the Tribunal is required to arrive at the correct and preferable decision at the time of review. The Tribunal has a discretion under s 29 of the SAT Act to make any order it considers appropriate, and as such, exercises the same powers as the original decision-maker when performing its review function. It may also have regard to any relevant information and is not bound by the rules of evidence (s 32(2) of the SAT Act).
The issue in this case is whether there is sufficient information to warrant setting aside the decision of the DPI to cancel Mrs Hayward's driver's licence.
The DPI relied upon s 48(1)(f) of the RT Act to cancel Mrs Hayward's driver's licence, on the basis that she is no longer capable of controlling the class of motor vehicle for which she holds the appropriate driver's licence.
The DPI maintains that, due to Mrs Hayward failing two practical driving tests carried out in February 2007 and March 2007 in Bridgetown, she is no longer capable of controlling a motor vehicle.
Mrs Hayward was required to undergo these further examinations due to her age. This was not disputed by Mrs Hayward. A copy of Mrs Hayward's driver's licence shows that her date of birth is 30 August 1924. As at the time of her further practical assessments, she was over 75 years of age.
The information provided by the Bridgetown Police in respect to the driving assessments performed by Mrs Hayward indicates that she is no longer capable of controlling a motor vehicle. On the last occasion she undertook her assessment, some of her failings included failing to stop at a stop sign, failing to look both ways when turning a corner, and travelling on the incorrect side of the road following a turn.
Mrs Hayward has not provided any independent information to show that since those assessments there has been any improvement in her demonstrated ability to control a class of motor vehicle for which she was previously licensed to drive. The Tribunal accepts that Mrs Hayward does not have any traffic convictions, which, to some extent, supports the assertion that she obeys the traffic regulations.
However, the Tribunal must balance the interests of the public with those of Mrs Hayward. At this stage, Mrs Hayward has failed her practical driver's assessments carried out by the local police on two separate occasions. The reports following these assessments make it clear that, during these assessments, Mrs Hayward breached fundamental traffic laws, such as failing to stop at a stop sign and driving on the incorrect side of the road. These failings place Mrs Hayward and others at serious risk.
Mrs Hayward has not provided any information by way of an independent driver's assessment to satisfy the Tribunal that she is now able to control a motor vehicle for which she was previously licensed. Mrs Hayward was given details during the several directions hearings in this matter as to how to undergo that assessment. Although the Tribunal accepts it is difficult to make such arrangements, Mrs Hayward was, in the Tribunal's view, given sufficient time and opportunity to do so. Without such further independent assessment, the Tribunal is only left with Mrs Hayward's good driving record and her own evidence that she considers herself to be a safe driver. Unfortunately, without more, and in light of the evidence of her failed driving assessment undertaken with the Bridgetown Police, the Tribunal is not satisfied that there is sufficient information to warrant interfering with the DPI's decision to cancel Mrs Hayward's driver's licence.
Mrs Hayward's original application raises issues of hardship, in that she wants her driver's licence to drive to her son's home to assist him, as he suffers a disability. Hardship is not, however, a factor that can be relied upon in such applications unless exceptional circumstances exist (see Department of Planning and Infrastructure v Nealon [2003] WASCA 161). Although the Tribunal sympathises with Mrs Hayward's situation, it does not consider that exceptional circumstances have been made out. In addition, the Tribunal has a duty to balance Mrs Hayward's interest with the concerns of safety for herself and the public if she is allowed to drive. At this stage, those concerns of safety greatly outweigh any personal inconvenience Mrs Hayward may suffer from not keeping her driver's licence.
Therefore, without more information, the Tribunal is not satisfied that, at present, Mrs Hayward is capable of controlling a motor vehicle, and therefore is not prepared to reverse the DPI's decision.
Accordingly, the Tribunal must order as follows:
Orders
1.The decision to cancel the applicant's driver's licence be affirmed.
2.The application is dismissed.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J HAWKINS, MEMBER
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