Marsh v Department of Transport
[2016] WADC 175
•13 DECEMBER 2016
MARSH -v- DEPARTMENT OF TRANSPORT [2016] WADC 175
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 175 | |
| Case No: | APP:57/2016 | 9 DECEMBER 2016 | |
| Coram: | BOWDEN DCJ | 13/12/16 | |
| PERTH | |||
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | SCOTT ALEXANDER MARSH DEPARTMENT OF TRANSPORT |
Catchwords: | Appeal Magistrates Court Refusal to grant extraordinary driver's licence Turns on own facts |
Legislation: | Magistrates Court (Civil Proceedings) Act 2014 Road Traffic (Authorisation to Drive) Act 2008 |
Case References: | Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Director General of Department of Transport v McKenzie [2016] WASCA 147 Italiano v The Director General of Transport [1999] WASCA 40; (1999) 29 MVR 249 Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 Legge v Simonsen [2010] WADC 190 Manfredi v The Traffic Board (Unreported, WASC, Library No 950030, 30 January 1995) Naidoo v Naidoo [2005] WADC 41 Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252 Shilkin v Taylor [2011] WASCA 255 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DEPARTMENT OF TRANSPORT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE MALLEY
File No : FREDL 957 of 2016
Catchwords:
Appeal - Magistrates Court - Refusal to grant extraordinary driver's licence - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2014
Road Traffic (Authorisation to Drive) Act 2008
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr P Ash
Respondent : Ms J Berry
Solicitors:
Appellant : Peter Ash & Associates
Respondent : State Solicitors Office
Case(s) referred to in judgment(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Director General of Department of Transport v McKenzie [2016] WASCA 147
Italiano v The Director General of Transport [1999] WASCA 40; (1999) 29 MVR 249
Lackovic v Insurance Commission (WA) (2006) 31 WAR 460
Legge v Simonsen [2010] WADC 190
Manfredi v The Traffic Board (Unreported, WASC, Library No 950030, 30 January 1995)
Naidoo v Naidoo [2005] WADC 41
Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252
Shilkin v Taylor [2011] WASCA 255
1 BOWDEN DCJ: On 24 June 2016 Mr Marsh applied for the issue of an extraordinary driver's licence.
2 His Honour Magistrate Malley dismissed the application.
3 Mr Marsh appeals that decision.
The nature of the appeal
4 This appeal is brought pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) which provides the appeal must be conducted in accordance with the rules of court made by the District Court. Those rules provide the appeal is by way of a 'reconsideration of the evidence that was before the Magistrates Court': MCCPA s 40(4)(a), District Court Rules 2005 (WA) s 50(1) (DCR).
5 An appeal by way of reconsideration is in the nature of a rehearing: Legge v Simonsen [2010] WADC 190.
6 Accordingly, an appellate court can only exercise its appellate powers and grant the appeal if it is satisfied that there is some legal, factual or discretionary error on the part of the primary decision-maker: Allesch v Maunz [2000] HCA 40 [23]; (2000) 203 CLR 172.
7 The court has the discretion to grant leave to admit additional evidence: MCCPA s 40(4), s 40(5); DCR r 50(2), r 50(3), however leave may only be given in 'exceptional circumstances': Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252.
The evidence before the Magistrates Court
8 Mr Marsh gave evidence in support of his application and relied on an affidavit filed in support of his application.
9 His Honour accepted that Mr Marsh had established that the refusal of the application would place an undue financial burden on him by depriving him of his principal means of obtaining income or deprive him of the only practical means of travelling to and from the place at which he is employed: s 30(4)(b), s 30(4)(c) Road Traffic (Authorisation to Drive)Act 2008 (WA) (RTAD Act). His Honour's finding in that regard is not challenged and it is not necessary for me to summarise Mr Marsh's evidence on those matters.
10 Mr Marsh accepted that he is an alcoholic with a binge drinking problem. He said he had not been told to stop drinking and had not given up alcohol completely, but now managed the way he drank, enjoying alcohol in moderation, but would not allow himself to get drunk.
11 He said his problem was not drinking beer but getting drunk. He maintained that he made severe changes to his life and had attended counselling including at Holyoake in South Perth for about a dozen formal sessions and some informal sessions.
12 He claimed to manage his drinking 'very carefully' and said he thought carefully about having a drink and would make sure that he had eaten before he consumed alcohol. Mr Marsh said he would plan his evening including where he was going to eat, how long he was going to be in a place where people were drinking and how much he was going to drink.
13 He said that he would have around about three drinks, start to feel the effects and then stop drinking. He acknowledged there were a couple of times when he really wanted to drink more.
14 He accepted that in the past he did not know when to stop drinking.
15 He said he had given up drinking completely for a short time.
16 Mr Marsh did not produce to the magistrates' court any liver function test or report from his counsellor. He said he was prepared to fund the fitting of an alcohol interlock device to his vehicle.
17 Mr Ash who appeared for Mr Marsh both at the application and on appeal submitted that Mr Marsh had demonstrated that he was not a danger to the community and would take seriously his obligation in relation to any grant of an extraordinary licence.
18 The respondent opposed the application because of concerns about the safety of the public, in particular Mr Marsh's admission that he was an alcoholic and a binge drinker and his continued consumption of alcohol.
19 In an interchange between his Honour and Mr Ash it was pointed out that the court had no idea of the qualifications of the person who had been counselling Mr Marsh, that is, whether the counsellor was qualified, specifically in the area of alcohol addiction, or it was simply a person of good intent.
The application to adduce additional evidence
20 A heavy onus lies on a party who seeks to introduce new evidence on appeal.
21 It is not helpful to attempt to describe what constitutes 'exceptional circumstances'. The variety of circumstances that might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose: Shilkin v Taylor [2011] WASCA 255.
22 No invariable rule concerning the admission of additional evidence should be laid down, however the discretion to admit further evidence is to ensure the overall interests of justice. If the needs of justice in the particular case require the reception of additional evidence, then it should be admitted: Lackovic v Insurance Commission(WA) (2006) 31 WAR 460 [19].
23 Ordinarily the court will refuse to admit additional evidence unless satisfied that the evidence would have led to a different outcome if it had been led in the court below. That is, because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made in the court below: Shilkin v Taylor [66] - [70].
24 Leave to admit additional evidence should not be used to rectify perceived weaknesses in a case already presented: Naidoo v Naidoo [2005] WADC 41 [9] (Eaton DCJ).
25 The respondent opposes the introduction of the additional affidavit. They point out the evidence is in letter and not affidavit form and was served on them on the morning of the appeal and they had been deprived of the opportunity to cross-examine Mr Moodie. Further, there has been no explanation for the delay in obtaining the additional evidence and it contains some hearsay material.
26 I consider it is in the interests of justice to receive the additional evidence. I accept there was late service and the evidence is in letter form, however at the hearing before his Honour the offer to adjourn to obtain evidence from the counsellor was made by Mr Ash.
27 The hearsay material will be ignored by me.
The additional evidence from Mr Moodie
28 Mr Moodie says he has qualifications in alcohol and other drugs and is currently employed by the Department of Corrective Services in a counselling position with relation to drug and alcohol minimisation.
29 He said he had counselled Mr Marsh since 11 November 2014 and Mr Marsh had had at least 12 sessions of counselling, multiple phone contacts and he devised a treatment plan to help Mr Marsh identify risk factors. He said Mr Marsh was well aware of the need to manage his behaviour while consuming alcohol and said Mr Marsh had gained insight.
30 Mr Moodie's letter generally confirmed Mr Marsh's evidence that he was now aware of the difficulties that confronted him with alcohol and was taking proactive steps to manage his alcohol problem.
His Honour's reasons
31 His Honour indicated that the provisions of s 30(2) were paramount. Those considerations require the court to consider the safety of the public generally, the character of the applicant, the circumstances of the case, the nature of the offences giving rise to the disqualification and the conduct of the applicant subsequent to the disqualification.
32 His Honour considered that the applicant had shown himself over a period of time to be a threat to the public with four convictions for drink-related driving and said Mr Marsh put the community at risk because of his consumption of alcohol.
33 His Honour stated, inter alia:
I simply reached the conclusion that you have not satisfied me that the public safety is no longer at risk. The only way that I would be satisfied that alcohol was not an issue – for you to convince me that it was no longer an issue and it is no longer an issue if you don't drink. Now if you can't do that, if you can't – in your case if you cannot not drink then in my view the issue of a licence certainly as far as the court is concerned is – well the safety of the public is paramount and outweighs any other rights and that you may have in relation to providing yourself with an income … in other words if you are going to be an alcoholic and you continue to drink then you continue to be a risk if you are on the road.
Grounds of appeal
34 The appellant says the court erred in determining that:
1. the application could not succeed unless the applicant satisfied the court that he no longer used alcohol; and
2. deterrence was an appropriate consideration in an application for an extraordinary licence.
The appellant's traffic record
35 In 2002 Mr Marsh lost his licence for five months and was fined $700 for the offence occurring in May 2002 of driving in excess of 0.08% with an alcohol reading greater or equal to 0.13% but less than 0.14%.
36 On 21 November 2008 Mr Marsh drove with an alcohol reading in excess of 0.08%, being 0.091%, and was disqualified on 1 April 2009 for six months and received an $800 fine.
37 Mr Marsh was granted an extraordinary driver's licence on 7 August 2009.
38 On 11 January 2010 Mr Marsh drove with an alcohol reading in excess of 0.08%, being 0.149% for which he received a 14-month disqualification on 10 March 2010.
39 On 1 November 2014 Mr Marsh drove under the influence of alcohol with a reading of 0.187% and was disqualified for 3 years on 3 December 2014.
The appellant's submissions
40 Mr Ash submits that Mr Marsh's evidence was freely and frankly given. In essence, Mr Marsh now acknowledged that he was an alcoholic who had problems with binge drinking and required ongoing assistance. He was prepared to accept that assistance and had not offended in the 18 months since November 2014. Mr Ash stressed that all Mr Marsh's drink related offences occurred outside of his working hours and Mr Marsh was only applying to drive within working hours.
41 Mr Ash pointed out that the RTAD Act permits an application to be made even for a person with the record of Mr Marsh and the court could have only found that Mr Marsh was a continuing risk to the public if it found that subsequent to his last offence, the community remained at risk bearing in mind the terms of the extraordinary licence for which he had applied.
42 Mr Ash said the court had the power to order the installation of an alcohol interlock device as it had the power to impose 'such conditions as the court thinks proper' and submitted that it was proper to consider the conditions that could be imposed when determining whether or not to grant the application.
43 Mr Ash submitted that the learned magistrate determined that Mr Marsh needed to establish a six month abstinence from alcohol as he said 'I would suggest to you that you have got six months minimum'. It appears to me that on a proper construction of his Honour's reasons, that is, a reference to how long Mr Marsh had to wait before he could lodge a new extraordinary licence application, rather than saying that was the period of abstinence that was required.
44 Insofar as ground 2 is concerned, Mr Ash submitted that s 30(2) of the RTAD Act specifies the mandatory criteria and deterrence is not one of the criteria and accordingly, his Honour erred in considering the question of deterrence.
The respondent's submissions
45 The respondent submits that the mandatory relevant considerations in s 30(2) involve a weighing exercise.
46 They say that a fair reading of the reasons for decision indicates that all his Honour was saying was that in the circumstances of this case, the risk of the public safety was such that the application ought not be granted and his Honour formed this view on the applicant's record and his admission that he was an alcoholic who continued to struggle with his alcohol consumption.
47 The respondent pointed to Mr Marsh's evidence that he continues to consume alcohol, does 'dangerous and stupid things when drunk and his acknowledgement that his current drinking habits require careful management, his admission that he does not have a complete handle on his desire to drink and is not immune from doing more stupid things as a result of consuming alcohol' (ts 4 – 11).
48 They pointed out that his Honour acknowledged Mr Marsh had undertaken counselling, however his Honour was still not satisfied that Mr Marsh was not a risk to the community. His Honour's conclusion that Mr Marsh was an alcoholic who had shown himself over a period of time to be a threat to the safety of the public and who put the community at risk as a the result of his consumption of alcohol was, they argue, a conclusion fairly open on the evidence and a matter of the exercise of his Honour's 'weighing discretion'.
49 They say his Honour concluded in effect that Mr Marsh did not present as a man who at this stage had full control of his alcohol consumption and posed a risk to the safety of the public.
50 The respondent says that the court is not required to find conditions to fit an applicant's extraordinary driver's licence but to concern itself as to whether the criteria under s 30(2) is established, bearing in mind the conditions that they can impose.
51 They say that his Honour's remark that an alcohol interlock device was not an option at that point in time was simply a recognition that at the time his Honour dealt with the application specific legislation relating to interlock devices generally had not been passed and the magistrate effectively concluded that the imposition of conditions would not remove the risk to public safety.
52 The respondent agreed that deterrence is not a factor to be taken into account under s 30(2), however they said that whilst his Honour did refer to deterrence, a clear reading of his reasons established that the decision to refuse was based on the public safety question.
Determination of the appeal
Ground 1
53 The matters to which his Honour referred to in s 30(2) are mandatory considerations. The court 'is to have regard to' the matters specified in s 30(2). His Honour was obliged to consider those factors namely, the safety of the public generally, the character of the applicant, the circumstances of the case, the nature of the offence or offences giving rise to the disqualification, and the conduct of the applicant subsequent to the disqualification.
54 The safety of the public was clearly the issue that concerned his Honour.
55 The character of the applicant was not in issue other than in relation to his offending. His Honour was aware of the applicant's employment and work record and that he had attended counselling and made efforts to change his lifestyle, however he continued to consume alcohol.
56 The criteria involving the circumstances of the case involves a degree of overlap with the other criteria, however relevantly his Honour accepted that the applicant had established the s 30(4)(b) and s 30(4)(c) criteria.
57 The nature of the offence giving rise to the disqualification was a driving under the influence offence which was the fourth drink driving offence Mr Marsh had been convicted of in 12 years. The blood alcohol reading was higher than the three previous offences. The punitive aspects of the disqualification are ordinarily considered under this criteria: Italiano v The Director General of Transport[1999] WASCA 40; (1999) 29 MVR 249; Director General of Department of Transport v McKenzie[2016] WASCA 147.
58 The conduct of the applicant subsequent to the disqualification showed he had attended counselling and made efforts to change his lifestyle, however he continued to consume alcohol. In Manfredi v The Traffic Board (Unreported, WASC, Library No 950030, 30 January 1995) Walsh J took into account the applicant's past drinking habits in concluding that was a matter to consider in determining whether he would in future drive after drinking alcohol.
59 The mandatory considerations often involve the court in weighing countervailing considerations, for example, the safety of the public generally and the nature of the offence or offences giving rise to the disqualification on the one hand, and the character of the applicant and the applicant's conduct subsequent to the disqualification on the other.
60 The court may, in a particular case, impose conditions under s 32(b), and thus reconcile countervailing considerations under s 30(2) in a manner which makes it appropriate, in all the circumstances, to grant an extraordinary licence. The matters specified in s 30(2) inform and, subject to s 30(4), govern the discretionary power under s 32(b): Director General of Department of Transport v McKenzie.
61 The discretionary power under s 32(b) to impose 'such conditions as the court thinks proper' must be exercised consistently with s 30(2) and s 30(4). Any conditions imposed by the court must relate or be incidental to overcoming or relieving one or more of the consequences specified in par (a), par (b) and par (c) of s 30(4). The conditions imposed must relate or be incidental to that purpose. If it were otherwise, the evident purpose of s 30(4) would readily be subverted: Director General of Department of Transport v McKenzie.
62 His Honour was not stating as a proposition of law that an applicant for an extraordinary driver's licence could not obtain an extraordinary driver's licence if he consumed alcohol.
63 Rather, his Honour was stating as a matter of fact that in the circumstances of this case, his honour considered that given the appellant's record and personal circumstances, including the fact that he continued to consume alcohol, was an alcoholic and a binge drinker, and previously had difficulties knowing when to stop drinking, the appellant was a risk to the public whilst he continued to consumed alcohol and his Honour would not be satisfied that he was not such a risk whilst he continued consuming alcohol.
64 In circumstances were Mr Marsh had four prior drink driving offences with the latest offences having a higher alcohol reading than the three previous offences, his Honour's conclusion that the applicant posed a unacceptable risk to the safety of the community whilst he continued to consume alcohol was understandable.
65 Even considering the additional evidence of Mr Moodie, I am not of the view that any error in law, fact or discretion has been established in respect of his Honour refusing to grant the application. His Honour's conclusion that Mr Marsh was at the time of the hearing a risk to public safety was a conclusion open to him on the evidence before him.
66 His Honour weighed that factor with the other s 30(2) criteria. He noted that it was the fourth drink driving offence (nature of offence, character, circumstance of case) and that previously Mr Marsh had received an extraordinary driver's licence (character), and he continued to drink alcohol (character, conduct subsequent to disqualification) and exercised his discretion to refuse the application. That discretion was clearly open to him.
67 The submission that the four drink driving offences occurred out of work hours and the application was to drive during work hours fails to recognize that Mr Marsh has on four occasions breached the drink driving laws. That provides little comfort that Mr Marsh will in future obey a court order.
68 At the time of the hearing before His Honour, the court could have imposed a condition requiring the fitting of an alcohol interlock device at Mr Marsh's expense, to the vehicle he drives.
69 However, such a condition at that time would have been of little assistance to the public safety because there was no evidence before his Honour as to the occasions on which or frequency with which the alcohol interlock device will require a specimen of Mr Marsh's breath to be provided or of the concentration of alcohol that will cause the device to prevent the operation of the vehicle or to signal that the vehicle ought not to be operated. A condition could not be imposed that the alcohol interlock device fitted by Mr Marsh be of the same type as those approved under the Road Traffic (Authorisation to Drive) Regulations 2014 because the regulations specifying the approved alcohol interlock devices were not gazetted until 20 September 2016 and not operational until 24 October 2016 (Road Traffic (Authorisation to Drive) Amendment Regulations (No 2) 2016), long after the hearing before his Honour.
70 Whilst I agree with Mr Ash's primary submission that whether an application is successful must be considered in light of s 30(2) and the terms of the application and the conditions that could be imposed, the imposition of a condition that an alcohol interlock device be fitted by Mr Marsh to his vehicle was at the time of his Honour's decision in effect meaningless for the reasons expressed above. On any new application such a condition could of course be imposed, however that does, in itself, establish grounds to allow the appeal.
71 Mr Marsh has not established any error in fact, law or discretion and with respect, having considered Mr Moodie's evidence and the other evidence before his Honour, I would have independently reach the same conclusion.
72 I would dismiss ground 1.
Ground 2
73 I would uphold ground 2.
74 His Honour stated:
Further, in my view, deterrence outweighs all the factors as part of the penalty. You've had the benefit of prior extraordinary for an identical offence. And where the applicant has continued to offend in a similar manner it would be inappropriate to effectively reward what is ongoing life threatening behaviour. For these reasons, Mr Marsh, the application is refused.
75 As the respondent conceded deterrence is not a factor to be considered under s 30(2). His Honour erred in taking it into account. The punitive aspects of the disqualification are ordinarily considered under the nature of the offence giving rise to the disqualification criteria: Italiano v The Director General of Transport; Director General of Department of Transport v McKenzie.
76 However, a fair reading of his Honour's remarks indicate his Honour's refusal to grant the application was based on two independent grounds being the safety and deterrence grounds.
77 Accordingly, whilst his Honour erred in respect of count 2, it is of little assistance to the appellant.
78 His Honour erred in referring to deterrence but even considering the additional evidence, I would not reach a conclusion that his Honour had erred in concluding that the safety of the public was at risk.
79 That is also a conclusion that independently I would have reached, notwithstanding the ability to fit an alcohol interlock device.
80 Accordingly, whilst I would allow the additional evidence and uphold ground 2, I would dismiss ground 1 and the appeal and order the appellant pay the respondent's cost of the appeal.
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