Henderson v Chief Executive Officer of the Department of Transport
[2021] WADC 49
•28 MAY 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HENDERSON -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT [2021] WADC 49
CORAM: PRIOR DCJ
HEARD: 29 APRIL 2021
DELIVERED : 28 MAY 2021
FILE NO/S: CIVO 332 of 2019
BETWEEN: MICHAEL RAYMOND HENDERSON
Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Motor vehicles - Life disqualification - Application for removal of disqualification - Road Traffic (Authorisation to Drive) Act 2008 s 24 - Application granted - Turns on its own facts
Legislation:
Road Traffic (Authorisation to Drive) Act 2008 (WA), s 24(1), s 24(2)(b), s 24(3)(c), s 24(5), s 24(5)(a), s 24(5)(b), s 24(5)(e), s 24(9)
Road Traffic Act 1974 (WA), s 60
Result:
Application granted
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | Mr C L Arnold |
Solicitors:
| Applicant | : | Not applicable |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Nil
PRIOR DCJ:
Michael Raymond Henderson (the Applicant), has made an Application filed on 28 November 2019 for removal of his permanent life disqualification for holding or obtaining a driver's licence pursuant to s 24(1) and s 24(2)(b) of the Road Traffic (Authorisation to Drive) Act 2008 (WA) (the Application). The Applicant has represented himself on his Application.
The Applicant has not made any previous applications under s 24(1) of the Road Traffic (Authorisation Drive) Act 2008.
In support of the Application the Applicant has filed sworn affidavits dated 27 November 2019, 25 November 2020 and 12 April 2021.
I have read all three affidavits and the material annexed to the Applicant's affidavits. The affidavit of 25 November 2020 was not correctly witnessed but the Applicant adopted the truth of its contents when he gave evidence before me on 29 April 2021.
The Applicant gave evidence before me on 29 April 2021. He was cross‑examined by counsel for the Chief Executive Officer of the Department of Transport (the Respondent).
The Applicant was disqualified for life for holding or obtaining a driver's licence on 21 July 2006 at Leeman Magistrates Court for a third offence of reckless driving, an offence pursuant to s 60 of the Road Traffic Act 1974 (WA).
The Application complies with s 24(3)(c) of the Road and Traffic (Authorisation to Drive) Act 2008.
Under s 24(5) of the Road Traffic (Authorisation to Drive) Act 2008, in considering the Applicant's Application I may, if I think it is proper, have regard to:
(a)the safety of the public generally;
(b)the character of the Applicant;
(c)the circumstances of the case;
(d)the nature of the offence or offences giving rise to the disqualification; and
(e)the conduct of the Applicant subsequent to the disqualification.
The Respondent has been served with all the material filed in support of the Application by the Applicant and opposes the Application. The Respondent submits the Applicant's Application is premature and he should continue for a further period of time driving under the terms of his extraordinary driver's licence. The Respondent relies upon s 24(5)(a), s 24(5)(b) and s 24(5)(e) of the Road Traffic (Authorisation to Drive) Act 2008.
The Respondent concedes there is no issue with the Applicant's alcohol consumption and the disqualification does cause the Applicant hardship.
The Applicant has held an extraordinary driver's licence for approximately 14 years which allows him to drive for his employment. The Applicant's extraordinary driver's licence has been varied to allow changes in the Applicant's employment.
During the 14 years that the Applicant has held an extraordinary driver's licence, there has been three minor breaches of the conditions on which he is allowed to drive under the extraordinary driver's licence. These breaches occurred in 29 June 2010, 13 June 2013 and 3 July 2017. They were breaches for failing to carry a log book and/or failing to display an E plate or driving outside the permitted area of the extraordinary driver's licence. None of the three offences involved the way the Applicant was driving the motor vehicle. Fines ranging from $300 to $1,000 were imposed for the breaches but the Applicant's extraordinary driver's licence was not cancelled.
The Applicant has incurred 10 traffic infringements from 2010 to 2019. The majority of these offences have been speeding infringements. Between September 2014 and the date of the hearing, there has only been one traffic infringement committed by the Applicant which was speeding in a school zone.
The Applicant's last drink driving offence was in 1988 when the Applicant was 19 years old. The Applicant is now aged 52. There is no evidence before me which indicates the Applicant has an issue with respect to alcohol consumption.
Given the Applicant's traffic record over the last seven years when he has incurred one minor breach of his extraordinary driver's licence and one speeding infringement, I do not consider him a risk to public safety when driving a motor vehicle.
The Applicant gave evidence that he is presently employed in three jobs. His income is also supplemented with social security payments. The Applicant collects scrap metal throughout the Perth metropolitan area and deposits it at Sims Metals in Malaga. He works casually at the Perth Mint. He is a carer for his father who lives in Ashfield.
On the evidence of the Applicant, I find that for some of his employment duties holding a driver's licence to drive vehicles is required. An extraordinary driver's licence, by the conditions of its use, restricts how and when the holder of this type of licence can drive. On the Applicant's evidence, I am satisfied that granting the Application will give the Applicant greater flexibility and security in his existing employment or future employment opportunities.
The various character references provided by the Applicant satisfy me that since his lifetime driver's licence disqualification was imposed and notwithstanding his road traffic offences and infringements he has committed, described in [11] and [12], he has generally been a person of good character.
I do not consider the Applicant's Application is premature. He has served in excess of 14 years of his life disqualification. For the majority of this time he has driven motor vehicles pursuant to extraordinary driver's licences.
Upon considering the criteria to exercise my discretion under s 24(5) of the Road Traffic (Authorisation to Drive) Act 2008, I am satisfied on the Applicant's material and evidence to make an order to remove the Applicant's permanent driver's licence disqualification imposed on the 21 July 2006 from today's date, 28 May 2021.
Pursuant to s 24(9) of the Road Traffic (Authorisation to Drive) Act 2008 I order that the Applicant pay the Respondent costs in the amount of $275.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
26 MAY 2021
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