Lenegan v Director General of the Department of Transport - [2012] WADC 102

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LENEGAN -v- DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT [2012] WADC 102

CORAM: STAUDE DCJ

HEARD: 22 JUNE 2012

DELIVERED : 22 JUNE 2012

PUBLISHED : 29 JUNE 2012

FILE NO/S: APP 21 of 2012

BETWEEN: ADAM LENEGAN
Appellant
AND
DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE WHEELER
File No  :PE 11835 of 2012

Catchwords:

Appeal - Magistrates Court - Refusal of application for extraordinary driver's licence - Road Traffic Act 1974 s 76 - Whether magistrate erred in construing s 76(3b)(b) and s 76(3b)(c)

Legislation:

Road Traffic Act 1974

Result:

Appeal allowed
Grant of extraordinary driver's licence ordered

Representation:

Counsel:

Appellant: Mr G W Massey
Respondent: Ms J N Harman

Solicitors:

Appellant: Lenhoff Holborn & Massey
Respondent: State Solicitors Office

Case(s) referred to in judgment(s):

Nil

STAUDE DCJ: [This judgment was delivered extemporaneously on 22 June 2012 and has been edited from the transcript.]
This appeal is from the decision of his Honour Magistrate Wheeler in the Magistrates Court at Perth on 4 April 2011 dismissing the appellant's application pursuant to s 76 of the Road Traffic Act 1974 for an extraordinary driver's licence.
The appellant was convicted on 31 January 2012 of driving with a blood alcohol content in excess of 0.08 grams per 100 ml contrary to s 64(1) of the Road Traffic Act. The appellant was a first offender. He received a fine of $750 and had his motor driver's licence disqualified for nine months which is the minimum period of disqualification prescribed where the blood alcohol content is more than 0.13 grams per 100 ml, the appellant's being 0.148, almost at the level at which he would have been guilty of driving under the influence of alcohol.
The appellant has no relevant prior record and there is no dispute that he is a person of good character. He is employed as a real estate agent on a commission basis by Mack Hall Real Estate and requires a motor driver's licence in order to carry out his work which involves property appraisals, home openings, property inspections and appointments with clients and prospective buyers. In the course of his work, he needs to be available between the hours of 8.00 am and 10.00 pm seven days a week, such is the nature of real estate sales work.
The circumstances of the offence giving rise to the disqualification were that on 22 December last year, the appellant attended a Christmas party at the Cottesloe Golf Club, and after consuming alcohol there, commenced to drive the relatively short distance to his home in Marine Parade, Cottesloe. He was stopped by police. His drink driving offence was not associated with any crash or other driving incident or offence.
The appellant was born in 1971 and was therefore aged 40 at the time of the offence. As I have noted, he has no record of any relevance. He has admitted receiving infringement notices for speeding in 2011 and for using a mobile phone whilst driving on two occasions in 2009 and 2007.
The appellant produced at the hearing below a letter from his employer which was received without objection and which confirmed his evidence that he had worked for Mack Hall Real Estate for more than 12 years on a commission only basis. He had listings in Claremont, Cottesloe, Fremantle, Gosnells, Maylands, Daglish, Subiaco and Crawley. According to the principal of the firm, he was unable to service his listings without a driver's licence.
The author of the letter wrote:
Selling real estate is a seven days a week job. Working hours are flexible and regularly range between 8 am and 10 pm. Weekends consist of back to back home opens in different suburbs. Weekdays require home opens, private inspections and meeting sellers to acquire new listings.
There was no dispute as to this aspect of the evidence.
The appellant gave evidence that he had earned $400,000 in the previous financial year but was not looking at earning anything like that in the current year. He had not sold any properties since his disqualification on 31 January. He had therefore not earned any income in that time.
He owed a large amount of money by way of real estate mortgage debts and he required all of his previous year's income to service that debt. At the date of the hearing in the court below on 4 April this year, he had $40,000 in his bank account but had monthly outgoings of around $20,000. He gave evidence that he could not afford a driver.
It was submitted on behalf of the director general that the appellant could make other arrangements by using taxis, public transport or other means of travel, but there was no evidence that this was practicable. The evidence of the appellant in this regard was to the effect that the requirements of personal mobility as a real estate agent made it impracticable to rely on taxis or public transport and that a private driver would be unaffordable.
On behalf of the appellant, it was submitted that his offending was an aberration and that in the context of a good record over a period of more than 20 years of driving, it should not raise any issue of public safety. The learned magistrate accepted this submission, noting however that the particular offence did involve a high alcohol reading.
In the course of submissions, the learned magistrate observed that by reason of the 2011 amendments to the Road Traffic Act, Parliament had removed hardship and inconvenience as a consideration and that the intention of Parliament was that disqualification from holding a motor driver's licence should 'hurt'. In his reasons for decision, the learned magistrate said that the degree of hardship and inconvenience resulting from the disqualification had been entirely removed as a consideration by virtue of the deletion of s 76(3)(f).
His Honour then addressed the matters of which the court must be satisfied pursuant to s 76(3) and s 76(3b). The principal considerations in this case were whether the refusal of the application would place an undue financial burden on the applicant by depriving him of his principal means of obtaining income or deprive the applicant of the only practicable means of travelling to and from the place at which he was employed.
His Honour accepted that the appellant was suffering financial difficulty but said that this was not to be taken into account and must be disregarded. He accepted that public safety was not an issue in the context of this application, nor the appellant's character. The circumstances of the case were not significant. In this part of his reasons, his Honour made it clear that the considerations set out in s 76(3), namely the safety of the public generally, the character of the applicant, the circumstances of the case, the nature of the offence giving rise to the disqualification, and the conduct of the applicant subsequent to the disqualification did not, in themselves, preclude him from being granted an extraordinary licence.
His Honour then turned to s 76(3b). He found that the appellant's work as a real estate agent was not such as required him to drive. He said the appellant was not a taxi driver. He found that his work practically required him to get to and from places and to see clients or potential purchasers as required. His Honour said:
But his job requires him to get to those places, not to drive. And in my view, notwithstanding difficulties that may be involved in engaging a driver, he doesn't need to drive for his employment itself. Actually not having a licence doesn't deprive him of his income. The ability to get around that will cost him.
That again, as I have already said, is what parliament intends. An extraordinary driver's licence is no longer necessarily intended to put you back in the position you were in prior to losing your licence. It's to ensure you are not deprived of the principal means of obtaining income. When you're in the Perth metropolitan area, as Mr Lenegan is, it's quite often not going to be the case where the only practical means of travelling to and from a place at which a person is employed [sic].
He has, in normal years, accepting he is not earning much at the present, the capacity to carry a driver, pay for a driver. And, with respect, I agree with the Director General's submissions and feel that this application must be refused.
The grounds of this appeal are as follows:
The learned magistrate erred in law in holding that the appellant did not meet the criteria set out in section 76(3b)(b) and section 76(3b)(c) of the Road Traffic Act.
PARTICULARS
1)The learned magistrate held that although the appellant practically required a driver's licence in order to perform his duties of employment, driving was not part of his employment in the sense that his employment was not that of a taxi driver or similar.
2)Such an assessment of the requirements of section 76(3b)(b) and (c) was wrong in law.
In the second reading speech made to the Legislative Assembly, the following statement was made:
This bill will also make some important changes to section 76 of the Road Traffic Act 1974. Section 76 enables a person who has been convicted of an offence under the Act, as a result of which a court has imposed a period of disqualification upon the person, to apply to a court for an order that the Director General grant the person an extraordinary licence. Disqualification is a significant but important sanction.
It is mandatory following the commission of serious offences under the Act, although the duration of disqualification periods vary depending on the severity of the offence and whether the offending has previous convictions for the same or similar offences. Removing a person's authorisation to drive is intended to reinforce that such authorisation is a privilege and not a right, and that this privilege carries with it great responsibility.
…
Good legislation must ensure, however, that the consequences of a sanction do not result in an inappropriately harsh outcome. For this reason, the Road Traffic Act 1974 empowers the court, when the court considers it appropriate in the circumstances, to do so, to order that the Director General grant to a person who is serving a disqualification an extraordinary licence upon application made by that person.
…
These amendments will ensure that more onerous requirements are imposed on applicants for extraordinary licences, making it necessary for them, in order to be successful in their application, to satisfy the court that if the extraordinary licence is not granted, extreme hardship will be suffered. A court will not be empowered to make an order for the grant of an extraordinary licence unless this requirement is clearly satisfied.
The second reading speech can be considered as an aid to interpretation to the extent authorised by s 19 of the Interpretation Act 1984.
The effect of the 2011 amendments to s 76 was, first, to delete as one of the considerations set out in s 76(3)(f), which read:
The degree of hardship and inconvenience which would otherwise result to the applicant and his family.
Next, s 76(3a) was deleted. This required that a special application should not be granted unless the court is satisfied that the application was attended by circumstances of extreme hardship. A special application is one that is made within the period within which the applicant would otherwise have to wait before bringing an application. Such applications were abolished.
Section 76(3b), prior to amendment, defined extreme hardship by reference to three circumstances, any one of which would satisfy the criterion. As a result of the deletion of s 76(3a) and the amendment of s 76(3b), there is no reference in the section to extreme hardship.
Now, s 76(3b) reads:
Despite subsection (3), the court shall not make an order directing the grant of an extraordinary licence unless it is satisfied that the refusal of the application would:
a)deprive the applicant of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by the applicant or a person who is a member of his family; or
b)place an undue financial burden on the applicant or his family by depriving him of his principal means of obtaining income; or
c)deprive the applicant or a person who is a member of his family of the only practicable means of travelling to and from the place at which he or that person, as the case may be, is employed.
What is in issue in this appeal is the proper construction to be placed on pars (b) and (c). Looking firstly at par (b), an undue financial burden is one which is 'beyond what is warranted, excessive or disproportionate' (see the New Shorter Oxford English Dictionary). The meaning of the expression, 'depriving him of his principal means of obtaining income', in the present context, is to prevent that person from doing his or her usual work.
This subsection therefore requires the court, if it thinks that the grant of a licence is proper upon consideration of the factors set out in s 76(3), not to make an order unless it is satisfied that refusal of the application would have the effect of, in terms of par (b), imposing a disproportionate financial burden on the applicant by preventing him from doing his normal work.
Whether the refusal will have that effect in any case is a question of fact and degree to be determined, having regard to all the circumstances of the case. The court must consider and decide whether the applicant is deprived of his or her means of obtaining income without an extraordinary licence.
If it is satisfied that the applicant would be so deprived, the court must look at whether the effect of that is an undue financial burden. A person who can use public transport, or hire a driver, or whose work is such that arrangements can be made to enable them to continue to work without a licence to drive, will not be deprived of their principal means of obtaining income or, in those circumstances, may not otherwise suffer an undue financial burden.
It is submitted on behalf of the director general that although there is a distinction between needing a licence because one's employment involves the act of driving, such as in the case of a taxi driver, and needing a licence in order merely to travel to and from employment, and in the course of employment, it is conceded that pars (b) and (c) do not apply only to those who drive for a living.
Yet it is upon that distinction that the learned magistrate relied in refusing the application. It is wrong in law, in my opinion, to limit, as the learned magistrate did by reference to taxi drivers, the meaning of the words, 'principal means of obtaining income', to actual driving. There are many forms of employment in which the ability to drive a motor vehicle is essential but where driving itself is not the principal means of earning income.
On its proper construction, par (b) does not require that driving be the principal means of obtaining income, rather that the effect of refusing the application would be the deprivation of the applicant of his principal means of obtaining an income, whatever those means are.
So, in the case of the applicant, his principal means of earning income are obtaining listings and selling properties. If it is accepted as a fact, as it has been in this case, that he requires to be able to drive in order to do so, then the question is whether the effect of refusing the application would be to place an undue financial burden on the applicant. That is, as I have said, a question of fact to be determined having regard to all the circumstances of the case.
It may be, in a particular case, having regard to the requirements of the applicant's job, that it would not place an undue financial burden on the applicant to employ a driver or use taxis. In this case, there is no challenge to the evidence that the demands of the appellant's job are such that he needs to be available to attend to clients and prospective buyers, and to attend properties on a flexible and responsive basis.
I am satisfied that an error of law on the part of the court below has been established in that regard. The learned magistrate misdirected himself by construing s 76(3b)(b) to be limited in its application to applicants whose principal means of obtaining an income involve driving as a job, such as taxi drivers.
In coming to this conclusion, I necessarily reject the submission made on behalf of the director general that his Honour's decision was not based on an erroneous construction of par (b), rather that his Honour was not satisfied that refusing the application would have the effect of depriving the appellant of his principal means of obtaining income on the basis that his Honour found that the appellant could have hired a driver. I do not, with respect, share this interpretation of what the learned magistrate said in the penultimate paragraph of the transcript.
With respect to par (c) of s 76(3b), to deprive the applicant of the only practicable means of travelling to and from the place at which he is employed means that the refusal of the application would practically prevent the applicant from getting to and from work. Practicable in this context means feasible or workable.
The expression, 'the place where he is employed', is not limited in its application to one place. Section 10 of the Interpretation Act provides that the use of the singular includes the plural. It is not unreasonable, in my opinion, to construe the words, 'the place at which he is employed', as being those places to which the applicant was required to travel to and from in the course of his employment. It would be unreasonable, in my opinion, to construe the words as meaning one place.
The evidence is that in the circumstances of the appellant's employment, in particular the need to be available to service clients over a period of 14 hours per day, seven days a week, and his inability to afford a driver for that period of time, driving himself is the only practicable means of travelling to and from the various places to which his employment takes him.
The evidence was capable, in my opinion, of satisfying a court that if the application were refused, the applicant would be deprived of the only practicable means of travelling to and from his work. I am satisfied that the learned magistrate erred in law in refusing the application.
Section 43 of the Magistrates Court (Civil Proceedings) Act2004 empowers this court to set aside the order and to make any order that the court below could have made. On the evidence, there being no issue that upon consideration of the factors set out in s 76(3) it would be proper to order that the director general grant an extraordinary licence, I am satisfied, for the purposes of s 76(3b), that refusal of the application would have the effects stipulated in pars (b) and (c) of that subsection.
I have heard the parties with respect to the conditions and limitations that might be placed on an order. No issue is taken by the appellant as to the content of those limitations and conditions, in the terms submitted by the director general.
So I will make an order in the following terms. Pursuant to s 76 of the Road Traffic Act 1974, the Director General of the Department of Transport do grant an extraordinary motor driver's licence to Adam Maxwell Lenegan of unit 15, 86 Marine Parade Cottesloe, permitting him to drive a C‑class motor vehicle within a 40 km radius of the Perth GPO between 8.00 am and 10.00 pm seven days a week in the course of, and for the purposes of, his employment as a real estate agent by Mack Hall Real Estate on the following conditions:
(1)That E plates be displayed whilst driving;
(2)That the extraordinary driver's licence be carried at all times and shown on demand to a police officer;
(3)That the holder is not to drive with a blood alcohol content exceeding 0.2 grams per 100 ml; and
(4)That the holder carry a logbook completed in advance of any journey with the date, time, destination and purpose of that journey.