Milner v Bonde - [2018] TASSC 42

[2018] TASSC 42

COURT: SUPREME COURT OF TASMANIA

CITATION: Milner v Bonde [2018] TASSC 42

PARTIES:  MILNER, Wayne
  v
  BONDE, Michael (Acting Sergeant)

FILE NO:  2203/2018
DELIVERED ON:  19 September 2018
DELIVERED AT:  Launceston
HEARING DATE:  14 September 2018
JUDGMENT OF:  Pearce J

CATCHWORDS:

Traffic Law – Licensing of drivers – Tasmania – Generally – Restricted licence – Public interest – Need to maintain the deterrent effect of orders for disqualification.

Vehicle and Traffic Act 1999 (Tas), s 18.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 19.
Hayes v Peterson [1972] Tas SR 86; In re Stokman [1978] Tas SR (NC) 4; Davies v Deverell (1992) 1 Tas R, 214, applied.
Aust Dig Traffic Law [1056]

Magistrates – Appeal and review – Motion to review – Tasmania – Other matters – Nature of review of discretionary decision – Appeal against refusal of application for restricted licence – Error not established.

Justices Act1959 (Tas), s 107(4)(a).
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Appellant:  G W Tucker
             Respondent:  S Thompson
Solicitors:
             Appellant:  Grant Tucker
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 42
Number of paragraphs: 17

Serial No 42/2018
File No 2203/2018

WAYNE MILNER v ACTING SERGEANT MICHAEL BONDE

REASONS FOR JUDGMENT PEARCE J

19 September 2018

This motion challenges the decision of a magistrate, Mr K Stanton, to refuse the applicant's application for a restricted licence. The respondent is a police officer. The ground of appeal is that the magistrate "erred in fact and in law" in finding that the grant of a restricted licence to the applicant was contrary to the public interest.
On 19 June 2018 the applicant pleaded guilty to driving a motor vehicle on 4 February 2018 while alcohol was present in his breath or blood in a concentration of 0.057, contrary to the Road Safety (Alcohol and Drugs) Act 1970 (the RSAD Act), s 6. He was convicted, fined $700 and disqualified from driving for six months. The applicant also pleaded guilty to failing to have proper control of his vehicle contrary to the Road Rules 2009, r 297(1). Both offences arose from the same act of driving. The commencement of the period of disqualification was postponed to enable him to apply for a restricted licence. The application was heard on 30 July 2018. By the RSAD Act, s 19(1), a person convicted of an offence under that Act may apply for a restricted driver licence under the Vehicle and Traffic Act 1999, s 18. That provision permits a court to make an order authorising the issue of a restricted driver licence only if the court is satisfied that:
"(a)the licence suspension or disqualification is imposing, or will impose, severe and unusual hardship on the applicant or the applicant's dependants; and
(b)a restricted driver licence should be issued to mitigate or alleviate that hardship; and
(c)the issue of the restricted driver licence would not be contrary to the public interest."
One course…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Milner v Bonde

Details

AGLC: Milner v Bonde [2018] TASSC 42
Case: [2018] TASSC 42
Decision Date: 19 September 2018

CaseChat Overview and Summary

Milner appealed against a Magistrates’ Court decision that refused to reinstate his driver’s licence after a disqualification period. Milner’s licence had been suspended for exceeding the speed limit. Upon the expiry of the disqualification period, Milner applied for reinstatement, arguing that the public interest in his driving would outweigh the need to maintain the deterrent effect of disqualification orders. The Court was required to consider the balance between the public interest in Milner being able to drive and the need to maintain the deterrent effect of disqualification orders. The Court examined the statutory framework and case law to determine whether the Magistrates’ Court had correctly exercised its discretion in refusing to reinstate Milner’s licence. The Court concluded that the Magistrates’ Court had correctly considered the relevant factors and had not erred in declining to reinstate Milner’s licence. The Court emphasised the importance of maintaining the deterrent effect of disqualification orders and found that the Magistrates’ Court had appropriately weighed the public interest in Milner being able to drive against this need.

The Court rejected Milner’s argument that the Magistrates’ Court had failed to consider the public interest in his driving. The Court found that the Magistrates’ Court had adequately assessed the evidence and had considered the factors relevant to the exercise of its discretion. The Court also noted that the Magistrates’ Court had considered the impact of the disqualification on Milner’s employment and had balanced this against the need to maintain the deterrent effect of disqualification orders. The Court held that the Magistrates’ Court had not erred in declining to reinstate Milner’s licence and that the appeal should be dismissed. The Court made no order as to costs.

Orders