Mohamed Amin v Chief Executive Officer of the Department of Transport
[2021] WADC 24
•26 MARCH 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MOHAMED AMIN -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT [2021] WADC 24
CORAM: RUSSELL DCJ
HEARD: 19 FEBRUARY 2021
DELIVERED : 26 MARCH 2021
FILE NO/S: APP 83 of 2020
BETWEEN: MOHAMED AMIR MOHAMED AMIN
Appellant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MILLINGTON
File Number : MID/EDL/965/2020
Catchwords:
Appeal - Magistrates Court - Refusal to grant extraordinary licence - Punitive aspect of disqualification - Whether discretionary error - Turns on own facts
Legislation:
District Court Rules 2005 (WA), r 50(1), r 50(2)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40, s 40(3), s 40(4)(a), s 40(4)(b), s 43(7)(e)
Road Traffic (Authorisation to Drive) Act 2008 (WA), s 4, s 27(1), s 30(1), s 30(2), s 30(4), s 30(4)(a), s 30(4)(b), s 30(4)(c), s 32
Road Traffic Act 1974 (WA), s 59BA(1)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr J Singh |
| Respondent | : | Mr E Fearis |
Solicitors:
| Appellant | : | JJ Singh Legal |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Brocklehurst v Wolinski [2015] WADC 36
DC v The Commissioner of Police [2020] WASCA 69
Director General of the Department of Transport v McKenzie [2016] WASCA 147
House v The King (1936) 55 CLR 499
Italiano v The Director General of Transport [1999] WASCA 40
Legge v Simonsen [2010] WADC 190
RUSSELL DCJ:
Introduction
This is an appeal from the decision of his Honour Magistrate Millington made in the Midland Magistrates Court on 23 October 2020 refusing the grant of an extraordinary licence to the appellant, Mr Mohamed Amin.
Mr Mohamed Amin commenced this appeal from the magistrate's decision of 23 October 2020, by appeal notice dated 13 November 2020.
The appeal was commenced within the 21 days required by the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act) s 40(3).
The relevant background facts and circumstances
Before turning to consider the grounds of appeal, I will briefly state the relevant background facts and the circumstances in which Mr Mohamed Amin came to make his application for the grant of an extraordinary licence.
On 22 July 2020, Mr Mohamed Amin was convicted of the offence of careless driving causing death, contrary to s 59BA(1) of the Road Traffic Act 1974 (WA).
Following a guilty plea, he was sentenced to a term of 12 months' imprisonment, suspended for 12 months and was disqualified from holding or obtaining a motor driver's licence for 12 months.
The facts of the offence giving rise to the disqualification were read out by counsel for the prosecution at the sentencing hearing on 22 July 2020 and are contained in the sentencing remarks of his Honour Magistrate Tavener.
In summary, the facts were that Mr Mohamed Amin failed to give way to a cyclist at a roundabout and struck the victim, Mr Quick's, bicycle with the front right of his vehicle. The bicycle collided heavily with the ground and fell underneath Mr Mohamed Amin's vehicle. Mr Mohamed Amin entered the roundabout travelling at approximately 30 - 40 km per hour. The victim suffered serious head and chest injuries and as a result he was conveyed to hospital where he died two days later.
The sentencing magistrate noted that there were no aggravating factors such as speed, alcohol, drugs or the use of a phone. He remarked that the outcome of the offence was of the highest and worst type. That is, the death of a person, the most serious outcome. He also remarked that there was a need for punishment and a need to provide deterrence to others.
By application dated 8 October 2020, Mr Mohamed Amin applied for an extraordinary licence pursuant to s 27(1) of the Road Traffic (Authorisation to Drive) Act 2008 (WA) (RTAD Act). His application was supported by an affidavit affirmed on 8 October 2020 and sought a 'C' class extraordinary licence which would allow him to drive to his place of employment in Northam 'and Perth surrounding' from Monday to Sunday between the hours of 0600 to 1600 and after‑hours callouts (the times for which were not specified).
Grounds of appeal
The grounds of appeal stated in the notice of appeal, as filed, were that the magistrate:
1.Erred in law by giving excessive weight to the intended punitive aspect of the applicant's licence disqualification. (Ground 1)
2.Erred by failing to consider or give appropriate weight to s 30(2) of the Road Traffic (Authorisation to Drive) Act 2008. (Ground 2)
On 19 February 2021, at the hearing of the appeal, counsel for the appellant, Mr Mohamed Amin sought leave to amend the grounds of appeal as follows (by adding the underlined text):
1.Erred in law by giving excessive weight to the intended punitive aspect of the applicant's licence disqualification and therefore the result of the magistrate's exercise of his discretion was unreasonable or plainly unjust. (Ground 1)
2.Erred by failing to consider or give appropriate weight to s 30(2) of the Road Traffic (Authorisation to Drive) Act 2008 and therefore the result of the magistrate's exercise of his discretion was unreasonable or plainly unjust. (Ground 2)
The application to amend the grounds of appeal was not opposed by the respondent. Leave was granted to amend the grounds of appeal in those terms.
General principles relating to the appeal
The appeal is brought pursuant to s 40 of the MCCP Act.
Section 40(4)(a) of the MCCP Act provides that this court must decide the appeal on the material and evidence that were before the Magistrates Court and any other evidence that it gives leave to be admitted.
Rule 50(1) of the District Court Rules2005 (WA) (DCR) provides that:
(1)An appeal to the Court must be by way of reconsideration of the evidence that was before the primary court unless the parties agree otherwise.
Rule 50(2) of the DCR provides that:
(2)At the hearing of an appeal a party may only adduce evidence that was not adduced in the primary court with the leave of the court, such leave is not to be granted unless the court is satisfied there are special grounds for doing so.
Mr Mohamed Amin has not sought to admit or adduce any further evidence.
The appeal is to be undertaken by way of a rehearing.[1] As such, and as acknowledged in Mr Mohamed Amin's submissions,[2] the appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error on his part.[3]
[1] Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ) (and the authorities there cited); Legge v Simonsen [2010] WADC 190 [4] (Sleight DCJ).
[2] Appellant's submissions, par 4.
[3] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ).
The grounds of appeal are limited to discretionary error.
In Director General of the Department of Transport v McKenzie,[4] the Court of Appeal stated as follows in respect of an alleged failure by a judicial officer in exercising a discretion to give excessive weight, or failing to give sufficient weight to a relevant consideration:
80An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ); Vagh v The State of Western Australia [2007] WASCA 17 [76] (McLure JA); Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P & Mazza J agreeing). A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment. In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.
[4] Director General of the Department of Transport v McKenzie [2016] WASCA 147 (McKenzie) [80] (Buss P, with whom Murphy & Beech JJA agreed).
As observed by the Court of Appeal in DC v The Commissioner of Police,[5] where the decision appealed against is a discretionary one, the standard of review described in House v The King[6] applies. That is:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[5] DC v The Commissioner of Police [2020] WASCA 69 [36] (Quinlan CJ, Mazza & Mitchell JJA).
[6] House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).
In accordance with those principles, as observed by the Court of Appeal in DC v The Commissioner of Police:
37… in the absence of express or implied error on the part of the learned primary judge, the weight to be afforded to the various considerations under the Act were a matter for the learned primary judge. Assertion of a weighting error does not demonstrate appellable error in the exercise of a discretion.4
(FN4: Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASCA 208 [25] (Quinlan CJ, Beech & Pritchard JJA).)
Extraordinary licences - the relevant statutory framework
By s 27(1) of the RTAD Act, a person who is disqualified under the RTAD Act or any other written law from holding or obtaining a driver's licence may apply to a court for an order directing the CEO (as defined in s 4 of the RTAD Act) to grant to the person an extraordinary licence.
Section 30(1) of the RTAD Act empowers a court to make an order directing the respondent to grant an extraordinary licence, or to refuse such an application.
Section 30(2) of the RTAD Act provides:
30.Matters for consideration of court
…
(2)In making a decision for the purposes of subsection (1), the court is to have regard to -
(a)the safety of the public generally; and
(b)the character of the applicant; and
(c)the circumstances of the case; and
(d)the nature of the offence or offences giving rise to the disqualification; and
(e)the conduct of the applicant subsequent to the disqualification.
Section 30(4) of that Act provides:
(4)Despite subsections (1) and (2), the court must 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 or her family; or
(b)place an undue financial burden on the applicant or his or her family, by depriving the applicant of his or her principal means of obtaining income; or
(c)deprive the applicant or a person who is a member of the applicant's family of the only practicable means of travelling to and from the place at which the applicant or that person, as the case may be, is employed.
The court may only make an order directing the granting of an extraordinary licence if it is satisfied that the applicant has established, by evidence, to the court's satisfaction, that the refusal of the application would have a consequence specified in s 30(4)(a), s 30(4)(b) or s 30(4)(c) of the RTAD Act and that it is appropriate to grant a licence after considering the factors in s 30(2) of the RTAD Act, which are mandatory relevant considerations.[7]
[7] McKenzie [52] - [54], [68].
By s 32 of the RTAD Act:
An order directing the grant of an extraordinary licence may impose ‑
(a)a condition requiring the applicant to comply with the requirements of regulations under Part 2 about applying for a driver's licence before the extraordinary licence is granted to the applicant; and
(b)such conditions as the court thinks proper subject to the observance of which the authority to drive under the licence may be exercised, including conditions as to ‑
(i)the locality in which and roads on which the applicant is entitled to drive; and
(ii)the purposes for which the applicant is entitled to drive; and
(iii)the hours during which the applicant is entitled to drive; and
(iv)the vehicle or class of vehicle that may be driven under the authority of the licence.
The hearing and evidence before the magistrate
Mr Mohamed Amin was not represented by a lawyer at the hearing before the magistrate on 23 October 2020. He relied on his affidavit and was cross-examined.
The following materials were before the magistrate:
1.Application for an extraordinary licence dated 8 October 2020.
2.Mr Mohamed Amin's affidavit in support of the application sworn on 8 October 2020.
3.A letter from Mr Ben Maywald of Optic Security Group, Mr Mohamed Amin's manager, addressed to The Presiding Magistrate of the Midland Magistrates Court dated 2 October 2020.
4.Character references from Scott George, Dillon Peries and Hassan Albashri, which appear to have been provided for the purpose of sentencing in July 2020.
Mr Mohamed Amin's application for an extraordinary licence was made under s 30(4)(b) of the RTAD Act. That is, that the refusal to grant the extraordinary licence would place an undue financial burden on him and his family by depriving him of his principal means of obtaining an income.
In his affidavit, Mr Mohamed Amin stated that:
1.He was employed by Optic Security Group as a security systems technician to maintain and service the Australian Border Force immigration detention centres in Northam and at Perth airport, a position which he had held for seven years.
2.He was the company's sole technician in Perth.
3.He had been informed by his employer that unless he was granted an extraordinary licence his employment would be terminated or 'a possible position change'.
4.Since the loss of his driver's licence:
(a)he had had to travel to and from work each day by:
(i)when travelling to Northam, using Uber to get to another site employee's home and carpooling to Northam with him; and
(ii)when travelling to the Perth airport site, using Uber,
(b)he had been unable to fulfil his contract to do after‑hours call outs.
5.If the court were to refuse to grant him an extraordinary licence it would place an undue financial burden on him and his family by depriving him of his principal means of obtaining an income because he was the main source of income for his family.
6.As to the terms of the extraordinary licence sought:
(a)he would need to drive to and from Brabham to Northam, Brabham to Perth airport and Brabham to Malaga;
(b)the furthest distance from Midland Magistrates Court that he would be required to drive is to the Yonga Hill Detention Centre in Northam which is 64 km;
(c)he starts work each day at 0700 hours and finishes at 1500 hours; and
(d)he would need to leave home each day from Monday to Sunday inclusive at 0600 hours and for after‑hours call outs and would return home each day at 1600 hours and after‑hours call outs.
7.He did not drink or do drugs. His accident was purely a slip in concentration, 'no alcohol, drugs, speed or mobile phone'.
He also set out in his affidavit details of his dependents, his income and expenses.
In relation to when Mr Mohamed Amin would be required to drive for after‑hours call outs, he stated in his affidavit that he was required to attend 24/7 for after‑hours call outs.[8] The letter from his employer dated 2 October 2020 stated that Mr Mohamed Amin's role as a security systems technician with Optic Security Group, required him to travel to and from various worksite locations and suppliers as part of his duties, including the detention centres in Northam and at Perth airport and to be on call 24/7 and available to travel to site anytime of the day or night to provide critical support services.
[8] Appellant's affidavit dated 8 October 2020, par 22.
In cross-examination, Mr Mohamed Amin's evidence relating to after‑hours call outs was to the effect that they were unpredictable and in the three months since July 2020 he had been required to do after‑hours call outs four or five times. His employer was using a subcontractor to do after‑hours call outs while he was unable to drive.[9]
[9] ts 5.
The respondent's submissions in opposition to the application included that, in the circumstances and the serious nature of the offence, where somebody had been killed, it was too early to grant a licence three months into a 12 month period of disqualification.
It is apparent from the transcript that the magistrate considered the threshold issues under s 30(4) of the RTAD Act and was satisfied that Mr Mohamed Amin met the criteria in s 30(4)(b) of the RTAD Act. That is, if Mr Mohamed Amin was not granted an extraordinary licence he would likely lose his employment which would place an undue financial burden on him and his family by depriving him of his principal means of obtaining an income.[10]
[10] ts 10 - ts 11.
He also said that he would have thought, for the purpose of getting to Northam, Mr Mohamed Amin also falls in the threshold of s 30(4)(c) of the RTAD Act.[11] That is, he would be deprived of the only practicable means of travelling to and from the place at which he is employed insofar as that related to the Yonga Hill Detention Centre near Northam.
[11] ts 11.
Having satisfied himself that Mr Mohamed Amin's application met the threshold requirements under s 30(4) of the RTAD Act, it is evident from the transcript that the magistrate then turned to consider the mandatory relevant considerations in s 30(2)(a) - s 30(2)(e) of the RTAD Act.[12]
[12] ts 11.
He stated, in effect, that he was satisfied that Mr Mohamed Amin was not a risk to the safety of the public generally, was a person of previous good character and there were no allegations that he had driven subsequent to his disqualification. He said he would come back to the circumstances of the case and the nature of the offence giving rise to disqualification.[13]
[13] ts 11.
As to s 30(2)(c), the circumstances of the case, the magistrate did not come back to expressly considering the circumstances of the case, but had already considered the circumstances of the case in so far as the application before him was concerned.
In relation to s 30(2)(d) of the RTAD Act, the magistrate referred to Italiano[14] and said that the punitive aspects of the disqualification are not expressly referred to in s 30(2) but will ordinarily have been an integral part of the nature of the offence or offences giving rise to the disqualification within s 30(2)(d).
[14] Though not cited in full, I take this to be a reference to Italiano v The Director General of Transport [1999] WASCA 40 (Italiano) [21], in which McKechnie J referred to the 'punitive aspects of the disqualification'. The statement made by the magistrate that the punitive aspects of the disqualification will ordinarily have been an integral part of the nature of the offence or offences giving rise to the disqualification within s 30(2)(d) was made in McKenzie [79] (Buss P), referring to Italiano.
The magistrate stated, as is the case, that this was a serious offence. He said that a disqualification had been imposed for a period of 12 months and he agreed with the respondent's submission that the punitive aspects of the disqualification were yet to be served. He concluded that in all the circumstances, it would not be appropriate to grant the extraordinary licence and refused the application.
The merits of ground 1
Counsel for Mr Mohamed Amin argued that the magistrate erred in law by giving excessive weight to the intended punitive aspect of the licence disqualification. He submitted, as expressed in the amended ground of appeal, that the result of the exercise of the magistrate's discretion was unreasonable or plainly unjust.
In Mr Mohamed Amin's written submissions, he seeks to distinguish the facts of this case with those in Italiano. He refers to the statement made by President Buss in McKenzie[15] that:
… McKechnie J's observations in Italiano to the effect that the licence sought by the appellant in that case, if granted, 'would have greatly minimised the punitive aspects of the disqualification' [21], were based on two factors. First, the breadth of the licence sought by the appellant. Secondly, the appellant's decision to make the application for an extraordinary licence only one month after his disqualification commenced.
[15] McKenzie [82].
In oral submissions at the hearing of the appeal, counsel for Mr Mohamed Amin submitted that the magistrate erred in relying on the principle in Italiano to the extent he did. He submitted that in doing so the magistrate relied on a wrong principle and the result was unjust to Mr Mohamed Amin. He also submitted that the magistrate, having relied on the principle in Italiano should have applied the facts of Mr Mohamed Amin's case to the principle.[16]
[16] Appeal ts 16.
Mr Mohamed Amin also submitted that the magistrate did not consider that he had served approximately three months towards his disqualification when the minimum period to be served before an application could be made under s 28 of the RTAD Act is 21 days.
As submitted by the respondent, it is evident that the magistrate did not seek to rely on the facts in Italiano by way of analogy or as being comparable to those relevant to Mr Mohamed Amin's application. He simply relied on the principle in that case as to whether granting the extraordinary licence sought would minimise the punitive aspects of the disqualification.
There is nothing to indicate that the magistrate did not consider that, at the time of the hearing, Mr Mohamed Amin's disqualification had been in place for approximately three months. To the contrary, at the commencement of his reasons the magistrate noted the date of the disqualification and later the fact that there had been a period of three months or so since that date.[17]
[17] ts 9, ts 10.
It is to be accepted that Mr Mohamed Amin was entitled to make his application for an extraordinary licence at the time when he did. But, that does not diminish the magistrate's discretion when it comes to consideration of the punitive aspects of the disqualification, which will ordinarily be an integral part of the nature of the offence or offences giving rise to the disqualification within s 30(2)(d) of the RTAD Act.
It is evident from the transcript that, having considered each of the mandatory considerations in s 30(2) of the RTAD Act, the magistrate found, correctly in my view, that the considerations relevant to s 30(2)(d) of the RTAD Act weighed against granting the application.
As noted by McKechnie J in Italiano:[18]
A motor driver's licence is not a right, it is a privilege, the continued maintenance of which depends on the avoidance of traffic offences.
[18] Italiano [19].
Mr Mohamed Amin lost that privilege as a direct result of his offending, which resulted in the death of Mr Quick.
The nature of the offence giving rise to the disqualification was serious. As stated by the sentencing magistrate, the outcome of the offence is of the highest and worst type. That is, the death of a person, the most serious outcome.
The magistrate made no error, in my view, in concluding that the punitive aspects of the disqualification were yet to be served and that, in all the circumstances it was not appropriate to grant the extraordinary licence, particularly where only three months of the 12 month period of disqualification had been served.
There was no error by the magistrate in the exercise of his discretionary power as contended in ground 1. Nor has Mr Mohamed Amin demonstrated that the exercise of the magistrate's discretion has led to a result that is unreasonable or plainly unjust.
Ground 1 is not made out and fails.
The merits of ground 2
Counsel for Mr Mohamed Amin submitted that the magistrate erred by failing to consider or give appropriate weight to s 30(2) of the RTAD Act. As with ground 1, and as expressed in the amended ground of appeal, It was submitted that the result of the exercise of the magistrate's discretion was unreasonable or plainly unjust.
Counsel for Mr Mohamed Amin clarified in oral submissions at the hearing of the appeal that this ground overlapped with ground 1 and that the thrust of it is that the magistrate erred by focussing on and giving excessive weight to s 30(2)(d) and not giving appropriate weight to the other factors in s 30(2).[19]
[19] Appeal ts 18.
There was no error by the magistrate in the exercise of his discretionary power as contended in ground 2. Nor has Mr Mohamed Amin demonstrated that the exercise of the magistrate's discretion has led to a result that is unreasonable or plainly unjust.
As I have already noted, it is evident that the magistrate considered and weighed each of the matters specified in s 30(2) of the RTAD Act in considering Mr Mohamed Amin's application. He found that some weighed in favour of granting the application (being the considerations in s 30(2)(a) to s 30(2)(c) and s 30(2)(e) of the RTAD Act. The magistrate accepted that Mr Mohamed Amin was not a risk to the safety of the public, was a person of previous good character and there was no allegation he had driven since his disqualification. He considered the circumstances of the case.
As stated in relation to ground 1 the magistrate found, correctly in my view, that the considerations relevant to s 30(2)(d) weighed against granting the application.
The magistrate made no error, in my view, in concluding that it was too early to grant an extraordinary licence and that, in all the circumstances, it would not be appropriate to grant the extraordinary licence.
Ground 2 is not made out and fails.
Conclusion and orders
Mr Mohamed Amin has failed to demonstrate that the decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error on his part. Grounds of appeal 1 and 2 have not been made out. The appeal is therefore dismissed.
I will hear from the parties in relation to costs, though there does not appear to be any reason why costs should not follow the event and the appellant be ordered to pay the respondent's costs of the appeal, as provided for in s 43(7)(e) of the MCCP Act and r 59 of the DCR.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AD
Associate to Judge Russell
25 MARCH 2021
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