Khan v Commissioner of Police

[2022] QSC 242

SUPREME COURT OF QUEENSLAND

CITATION:

Khan v Commissioner of Police [2022] QSC 242

PARTIES:

JOSEPH KHAN

(Applicant)

v

COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

11192 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

24 October 2022, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

17 and 24 October 2022

JUDGE:

Bowskill CJ

ORDERS:

1.   The application is dismissed.

2. The applicant may not file a further application under section 131(10) of the Transport Operations (Road Use Management) Act 1995 (Qld) in relation to the current disqualification without first obtaining the grant of leave from a judge of this Court.

3.   No order as to costs.

CATCHWORDS:

TRAFFIC LAW – LICENSING OF DRIVERS – QUEENSLAND – DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES – where the applicant applied under s 131(10) of the Transport Operations (Road Use Management) Act 1995 for the removal of his disqualification from holding or obtaining a driver licence, and the application was eventually dismissed for his repeated failure to appear at the hearings of the application – where the applicant, less than a month after the dismissal, made a further application under s 131(10) for his disqualification to be removed – where the respondent submits the Court does not have power to determine the later application because of s 131(15) of the Act which provides that where an application under s 131(10) has been refused, a further application shall not be entertained if made within 1 year after the date of the refusal – whether an application which has been dismissed, for failure to appear, has been “refused” within the meaning of s 131(15) of the Act

Transport Operations (Road Use Management) Act 1995 (Qld), s 131(10) and s 131(15)

COUNSEL:

The applicant appeared for himself on 17 October 2022
No appearance for the applicant on 24 October 2022

R Fogarty, sol, for the respondent

SOLICITORS:

Queensland Police Service Legal Unit, for the respondent

1. On 19 March 2020, the applicant was convicted in this Court of a number of offences including aggravated possession of dangerous drugs, supplying drugs, possession of drugs, related offences of possessing various drug paraphernalia, and also a range of traffic offences including driving whilst disqualified as a repeat offender.  For the most serious of the offences, he was sentenced to four years’ imprisonment.  He was given a parole eligibility date of 18 March 2021.  On the offence(s) of disqualified driving, the penalty imposed was a disqualification from holding or obtaining a driver’s licence for a period of three years.[1] 

   [1]On another offence, of driving whilst having a relevant drug in his system, the applicant was disqualified from holding or obtaining a driver’s licence for six months.  Although the sentencing judge ordered that all the disqualification periods be served concurrently, the respondent informed the court on 24 October 2022 that, by operation of law, this period of six months was required to be served cumulatively.  Accordingly, the disqualification is in effect overall for three years and six months from 19 March 2020.

2. On 21 March 2022, the applicant applied under section 131(10) of the Transport Operations (Road Use Management) Act 1995 for the disqualification to be removed.  That application is proceeding number 3351 of 2022.

3. By written submissions filed on 12 April 2022, the respondent Commissioner of Police made it clear that the application was opposed. 

4. The procedural history of that application is as follows. 

   (a)On 20 April 2022, the application came on for hearing before Ryan J and was adjourned to a date to be fixed.  According to an affidavit of Ms Fogarty, who appears for the respondent in relation to the present application and did likewise in relation to the previous application, which was filed on 30 August 2022 in proceeding 3351 of 2022, the hearing was adjourned to enable the applicant to obtain further material in support of his application. 

   (b)On 4 July 2022, the applicant contacted the associate to Ryan J saying that the “required information that I was waiting for has come back for QCS and I’m ready to go to Court”.  Following some further email exchanges, the application was relisted for 25 July 2022 before Callaghan J.  The applicant did not appear in Court on this day.  He did, however, send an email to Callaghan J’s associate at 9.51 am on 25 July saying “is it possible to adjourn my court matter till tomorrow due to being unable to get there today by 10 am or to appear by telephone?”

   The application was adjourned to a date to be fixed. 

   (c)On 4 August 2022, the applicant emailed the applications list manager and the associate to Ryan J asking that they “please book me in for first available for Court…”, noting that he was attaching a file “that proves I have more work opportunity if I have a licence.  Following some further email exchanges, the application was relisted for 23 August 2022. 

   (d)On 23 August 2022, the matter came on before Williams J.  There was no appearance by the applicant.  In her affidavit filed on 30 August 2022, in proceeding 3351 of 2022, Ms Fogarty says:

   “The matter was listed for hearing on 23 July 2022 at 10 am.  By 10.45 am, the applicant had not arrived.  Commencing at approximately 10.48 am, I made no less than six calls to the applicant’s mobile telephone [the number which was set out in the affidavit].  Each of those attempts to reach the applicant were unsuccessful. 

   At 11.16 am, I sent correspondence … to the applicant [setting out the applicant’s email address] seeking confirmation of his appearance.  The matter was then mentioned by her Honour Justice Williams.  The applicant did not appear and the matter was adjourned to 30 August 2022.  I subsequently received a response at 12.01 from the applicant to my email correspondence…”

   In that email, the applicant says he is sorry, he did not receive Ms Fogarty’s calls, and says “please adjourn or call again and I don’t have credit”.

   (e)As the applicant did not appear, Williams J adjourned the application to 10 am on 30 August 2022.  On 26 August, Williams J’s associate sent an email to the applicant and Ms Fogarty, confirming the matter was listed at 10 am on 30 August 2022.  Ms Fogarty followed that up on the same day with an email to the applicant confirming the adjourned hearing date and saying “[i]f you do not appear, I place you on notice that I will seek to have your application dismissed.”  The applicant responded to that email, also on the same day, saying “[r]eceived, thanks”.

   (f)On 30 August 2022, the matter came on before Williams J.  There was no appearance by the applicant.  Justice Williams dismissed the application. 

5. On 16 September 2022, the applicant filed a fresh application under section 131(10) of the Act, seeking that his licence disqualification be completely removed. This is the present proceeding 11192 of 2022.

6. The application in this proceeding came on for hearing before me in the applications list on 17 October 2022.  The applicant was made aware of that hearing date because it is the date noted on the front page of his application.  He did not appear.  I instructed the bailiff to try to call him on his mobile phone number, which appears on the second page of the application.  The applicant answered the phone and proceeded to participate in the hearing by telephone.

7. The explanation he gave for not appearing was that he did not “have any money to get there at this point”, that he did not have any credit on his phone and that “I didn’t know that I was going to make an appearance in court today”.  As already noted, the date of the hearing was clearly written on the originating application which was given to the applicant at the time he filed it. 

8. I proceeded, with the applicant appearing by telephone, to hear submissions from Ms Fogarty in relation to preliminary matters the respondent sought to raise. In that regard, the respondent submits this new application ought to be struck out, because the Court does not have jurisdiction to hear the new application, having regard to section 131(15) of the Act; or alternatively on the basis that it is an abuse of process.

9. Section 131(15) provides:

   “Where an application under subsection 10 is refused, a further application hereunder shall not be entertained if made within 1 year after the date of the refusal.” [underlining added]

10. Notice of that contention was given to the applicant, in a letter sent to him by email on 4 October 2022, which the applicant confirmed he had received. 

11. After hearing submissions from Ms Fogarty, I adjourned the further hearing of the matter until 24 October 2022, so that I could look at the earlier file in proceeding 3351 of 2022 and consider the legal issue raised by the respondent.

12. In construing the meaning of a statutory provision, it is necessary to have regard to the words which have been used and the context in which it appears.  The immediately preceding subsection, section 131(14) provides that:

    “Upon hearing any such application [that is, application under section 131(10)] the judge of the Supreme Court or District Court or justices constituting the court may, as is thought proper, having regard to the character of the person disqualified and the person’s conduct subsequent to the order, the nature of the offence, and any other circumstances of the case, either by order remove the disqualification as from such date as may be specified in the order or refuse the application.”

13. The ordinary meaning of “refuse”, as informed by the Oxford English Dictionary, is to reject or deny, or decline to do something. Reading section 131(15) in the context of the broader provisions of section 131 – in particular section 131(14) – and taking into account the ordinary meaning, in my view, although it is open to argument, the better view is that for an application to be “refused”, such as to trigger the prohibition in section 131(15), it must have been refused after a consideration of its merits. The discretion conferred on the relevant judge, under section 131(14), to refuse the application is conditioned upon the relevant judge having had regard to the matters referred to in section 131(14).

14. That is not to say that it was not within the power of the Court to dismiss the application on 30 August 2022.  It plainly was within power (see, for example, rules 5, 280 and 370 of the Uniform Civil Procedure Rules1999) and justified, given the applicant’s repeated failure to appear. However, in my view, dismissal of an application in default of the applicant’s appearance is not a “refusal” of it for the purposes of section 131(15).

15. Separately, the respondent submitted that the fresh application ought not be entertained by the Court because it is an abuse of process.  It may be accepted that the respondent would be frustrated by the fact that the applicant repeatedly failed to appear to prosecute his earlier application.  Although there has, in a broad sense, also been a waste of time and resources, it is to be noted that the representative of the respondent who appeared on this occasion is employed by the respondent.  On balance, however, I am not prepared to conclude that the filing of the further application in this proceeding is an abuse of process such as to deprive the self‑represented applicant of the opportunity to have his application considered on the merits.

16. For those reasons, I was therefore prepared to hear the application on its merits today. 

17. However, when the matter came on at 9.30 am today, there was no appearance by the applicant.  He had, I am satisfied, been given clear notice of the listing of the matter today, both by me in Court on 17 October 2022 and in writing, by email from my associate.  He had been given leave to appear by phone.  However, he has contacted Ms Fogarty this morning by email to say “[p]lease withdraw my application for today, thanks.  I won’t be able to participate in Court at 9.30 am.”

18. So in circumstances where the applicant has not appeared today and has indicated he wishes to withdraw his application, the orders that I propose to make are:

    (1)     The application is dismissed.

    (2)The applicant may not file a further application under section 131(10) in relation to the current disqualification without first obtaining the grant of leave from a judge of this Court.

19. That second order is appropriate, in my view, given the overall conduct of the applicant, both in relation to the previous proceeding and now this one. Whilst his application has never been determined on the merits and, therefore, for the reasons I have already given, section 131(15) does not operate, it is appropriate that before he be given the opportunity to resume this process, he obtain leave from a judge of this Court before involving the respondent Commissioner of Police in any further time or cost in dealing with any such application.

20. As the respondent does not seek one, there will be no order as to costs.