Pollard v Department of Transport - [2021] WADC 110

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   POLLARD -v- DEPARTMENT OF TRANSPORT [2021] WADC 110
CORAM:   GETHING DCJ
HEARD:   10 NOVEMBER 2021
DELIVERED          :   18 NOVEMBER 2021
FILE NO/S:   APP 56 of 2021
BETWEEN:   TARA JANE POLLARD
Appellant
AND
DEPARTMENT OF TRANSPORT
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MALONE
File Number            :   FRE EDL 603 of 2021

Catchwords:

Magistrates Court appeal - Refusal to grant an extraordinary driver's licence - Failure to have regard to a mandatory statutory factor - Error of fact in finding made

Legislation:

District Court Rules 2005 (WA), r 50(1)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40, s 43
Road Traffic (Authorisation to Drive) Act 2008 (WA), s 30

Result:

Appeal allowed and extraordinary driver's licence granted

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms K E Ellson

Solicitors:

Appellant	:	Not applicable
Respondent	:	State Solicitor for Western Australia

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Avsar v Binning [2009] WASCA 219
Blenkinsop v Holland [2018] WADC 146
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Chief Executive Officer, Department of Transport v RSR [2018] WADC 140
Director General of Department of Transport v McKenzie [2016] WASCA 147
Jones v Darkan Hotel [2014] WASCA 133
Labib v Histon [2017] WADC 39
Marks v Coles Supermarkets [2021] WASCA 176
Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550
Shilkin v Taylor [2011] WASCA 255
Wilson v Arwon Finance Pty Ltd [2020] WASCA 137

GETHING DCJ:

On 22 May 2020, the appellant, Tara Pollard, was convicted of the offence of driving in breach of the conditions on the extraordinary driver's licence (EDL) she then held. The charge was dealt with in the Fremantle Magistrates Court where Ms Pollard was fined $400. The magistrate declined to cancel the EDL. However, the CEO of the Department of Transport (CEO) later refused to renew Ms Pollard's EDL once it expired, which occurred on 26 March 2021.
On 24 June 2021 Ms Pollard applied to the Magistrates Court for an order directing the CEO to grant her an EDL pursuant to Road Traffic (Authorisation to Drive) Act 2008 (WA) (RTAD Act) s 30 (Application). Ms Pollard primarily sought an EDL for the purpose of enabling her to continue in employment as a traffic controller. The Application was supported by an affidavit affirmed by her on 24 June 2021 (June Affidavit).
On 16 July 2021, after hearing evidence from Ms Pollard and submissions from both parties, the magistrate refused the Application (Decision).
Ms Pollard has appealed the Decision to the District Court.
At the conclusion of the hearing before me on 10 November 2021 I allowed the appeal, set aside the Decision and made an order directing the CEO to provide Ms Pollard with an EDL. I said that I would publish my reasons for coming to this conclusion, which are as follows.

Legislative framework

By s 27(1) of the RTAD Act, a person who is disqualified under the 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 to grant to the person an extraordinary licence.
The power to grant an EDL is found in RTAD Act s 30, in the following terms:
30.Matters for consideration of court
(1)A court may -
(a)make an order directing the CEO, on payment of the prescribed fee, to grant to the applicant an extraordinary licence for a period not exceeding 12 months from the date on which it is granted as the court thinks fit; or
(b)refuse the application.
(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.
[(3)deleted]
(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 matters specified in RTAD Act s 30(2) are mandatory relevant considerations.[1]
[1] Director General of Department of Transport v McKenzie [2016] WASCA 147 [52] (Buss P, with whom Murphy JA & Beech J agreed) (McKenzie).
The effect of RTAD Act s 30(4) is that the court is prohibited from making an order under s 30(1)(a), directing the CEO to grant to the applicant an extraordinary licence, unless the court is satisfied that the refusal of the application would have the consequence specified in par (a) or par (b) or par (c) of s 30(4).[2]
[2] McKenzie [54].

The Decision

In the June Affidavit, Ms Pollard deposes that her occupation is as a traffic controller. She is employed by a company by the name of Highways Traffic, whose business premise is located in Carlisle. She had been informed by her employer that unless she was granted an EDL she would lose her job. As I mentioned, she previously had an EDL which had expired. Pursuant to that EDL she was driving to and from work. This included being able to drive company vehicles. The EDL would need to allow her to both travel to and from work, as well as to drive at work to unknown locations, with a possible need to drive to country locations. She would need to be able to travel to and from her workplace seven days a week, 24 hours a day.
Ms Pollard further deposed that if the court were to refuse to grant her an EDL, it would place an undue financial burden on her and her family by depriving her of her principal means of obtaining an income. She is a single parent and, without an EDL, would not be able to work and financially support her family. She rents privately, and described her average net weekly income as being $1,000 with expenses of $855.
Ms Pollard's two sons are dependent on her. In 2017 her sons' father took his life, which left her as a single parent to support the children. It also left one son with severe anxiety and depression. He needs to attend multiple doctors', psychologists' and psychiatrists' appointments regularly. Since the loss of her driver's licence, she has been unable to attend to urgent medical treatment that her son requires.
She concludes as follows:
My family has been through extreme trauma the last 4 years due to my sons father taking his life, which then seen me struggle with addiction. I then fell into an extremely violent relationship that nearly killed me. The reasons for me being caught driving without a licence was due to times I was attempting to escape extreme violence. I have attached letter from detectives. I am now over 2 years clean, have turned my life around, and am currently working detectives in charging my ex partner.
She annexed to the June Affidavit the following documents:
(a)a letter dated 15 June 2021 from her employer, Highways Traffic, stating among other things that without Ms Pollard having a driver's licence, she will lose her job;
(b)a letter dated 21 June 2021 from a general practitioner, Dr Deborah McKay, reiterating the history Ms Pollard described in the June Affidavit, and containing an opinion that during the time she has known Ms Pollard the presentations had been consistent with a denial of any illicit drug use;
(c)an undated letter from the WA Police confirming that the Special Crime Family Violence Team was conducting an investigation in relation to a report made by Ms Pollard on 8 November 2019; and
(d)a letter dated 19 May 2020 from Women's Health and Family Services, generally supporting the Application.
Ms Pollard gave evidence before the magistrate. The salient points she added to her affidavit were that:
(a)she originally lost her licence as she was fleeing an extremely violent relationship;[3]
(b)she drove in breach of her EDL to pick up two daughters of the father of her sons (her former deceased partner) as concerns were raised with her as to their wellbeing;[4]
(c)her income is a combination of Centrelink, up to a maximum of $500, and her paid employment;[5]
(d)the fact that her EDL had not been renewed was brought to her attention by her employer;[6]
(e)her sons are aged 18 and 14, with the 18-year-old suffering from extreme PTSD;[7]
(f)she has been using Ola or Uber to get to work, at a cost of $25 to $28 a trip;[8] and
(g)she has only been able to pick up a limited number of shifts due to not having a licence, whereas in the past she was working up to 80 to 108 hours a fortnight.[9]
[3] ts 3.
[4] ts 9.
[5] ts 5.
[6] ts 6.
[7] ts 7.
[8] ts 9.
[9] ts 9.
The magistrate's reasons for refusing the Application are set out during the course of exchanges with counsel for the CEO and Ms Pollard. I discern the following reasons for refusing the Application:[10]
(a)the breach of the EDL occurred within two months of Ms Pollard being granted it;
(b)between when her EDL expired and the date of the hearing, Ms Pollard had managed to cope financially, getting some work in addition to her Centrelink benefits, which she was not going to lose;
(c)Ms Pollard's prior criminal record, including drug convictions and multiple convictions for driving under fine suspension;
(d)the fact that Ms Pollard had $2,593 in unpaid fines;
(e)the letter from Dr McKay in support was of minimal value; and
(f)the letter from the police about the investigation into the prior relationship had nothing to do with the breach of the EDL, rather why the licence was suspended in the first place.
[10] ts 11 - ts 15.
His Honour concluded:[11]
Anyway, you don't make out the grounds for - for the - the extraordinary on a number of levels. You have inexplicably lost it - well, you didn't actually lose it but you inexplicably breached the extraordinary drivers licence. You were allowed to retain it. It's being opposed, understandably, by the Director-General. That was in March. You have managed to cope, get some work and now you have said, "Okay, well, I'm ready to take on a whole lot - a lot more work," without really bearing out that you have - you have - you know, it's appropriate to grant you an extraordinary. So your application is refused. Thank you.
[11] ts 14 - ts 15.

Appeal to the District Court

By appeal notice filed 10 August 2021 Ms Pollard appealed the Decision to the District Court (Appeal). The single ground of appeal is that the magistrate 'made an error of law or fact in renewing the application for an EDL'. As Ms Pollard confirmed in the hearing before me, this contains an obvious typographical error. So I will take the ground of appeal to be that the magistrate 'made an error of law or fact in refusing the application for an EDL'.
The Appeal was filed four days outside the 21 day time limit.[12] The court has the discretionary power to extend the time limit. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties.[13] The CEO does not oppose the extension. As the delay is minimal and Ms Pollard does not have the benefit of legal representation, I am satisfied that it is appropriate to extend the time within which Ms Pollard may commence her appeal.
[12] Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40(3) (MCCPA).
[13] Labib v Histon [2017] WADC 39 [40] - [41].
On 25 August 2021 the CEO filed a Notice of Respondent's Intention in which it notified the court that it intended to take part in the Appeal and argue that the primary court's decision should be upheld on the grounds relied on by the primary court in its decision.
The appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court.[14] The appeal is thus to be undertaken by way of a rehearing.[15] It is not sufficient for Ms Pollard to satisfy the court that a decision other than that made by the magistrate is correct and preferable.[16] Ms Pollard must demonstrate that there has been an error of a recognised genre that falls to be corrected and which entitles him to the orders that she seeks.[17] Specifically, the appellate powers of the District Court are only exercisable if Ms Pollard demonstrates that the Decision was the result of some material legal, factual or discretionary error.[18] The onus is on Ms Pollard, as the appellant, to demonstrate this error.[19]
[14] District Court Rules 2005 (WA) (DCR) r 50(1).
[15] Blenkinsop v Holland [2018] WADC 146 [14] (Gething DCJ) (Blenkinsop); Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] ‑ [10] (Bowden DCJ).
[16] Marks v Coles Supermarkets [2021] WASCA 176 [124] (judgment of the court) (Marks).
[17] Avsar v Binning [2009] WASCA 219 [37] (Owen JA, with whom Miller & Newnes JJA agreed).
[18] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43] (judgment of the court); Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ); Marks [124]; Blenkinsop [14].
[19] Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court); Blenkinsop [14].
The general rule is that the District Court must decide the appeal on the material and evidence that was before the Magistrates Court. It may give leave for a party to admit other evidence, but only in exceptional circumstances.[20]
[20] MCCPA s 40(4), s 40(5).
Ms Pollard sought to rely on two further affidavits. The first, filed 10 August 2021 (August Affidavit), reiterates the financial information in the June Affidavit, annexes the transcript of the hearing on 16 July 2021, the Application and the June Affidavit. No leave is required for this material as it was before the magistrate. The August Affidavit further annexes:
(a)a letter dated 2 August 2021 from Dr McKay;
(b)a letter dated 3 August 2021 from Highways Traffic;
(c)a letter dated 30 July 2021 from Womens Health and Family Services;
(d)a Safework Laboratories drug assessment report based on hair analysis, dated 27 August 2019;
(e)a letter dated 29 July 2021 from Jkara Mahboub (being a character reference); and
(f)a letter dated 2 August 2021 from Michael Slade (another character reference).
The second was filed 15 September 2021 (September Affidavit). The September Affidavit annexes the following documents:
(a)the transcript of the hearing on 22 May 2020 (being the breach of the EDL);
(b)a letter dated 19 August 2021 from Kim Giddens, the MLA for Bateman;
(c)an undated letter from Meliha Cetin of the Jacaranda Community Centre;
(d)an income and expenditure statement;
(e)a Centrelink report;
(f)a Centrelink Income Statement of 31 August 2021; and
(g)a Residential Tenancy Agreement.
In essence, the August Affidavit and the September Affidavit seek to place before the District Court new evidence going to the substance of the dispute in the Magistrates Court which ought properly to have been placed before that court at the time of initial hearing.[21] To admit this evidence in the Appeal would, in effect, render it an entirely new application based on evidence not before the magistrate. That is not the purpose of an appeal of this kind. Rather, it is, as I have indicated, a 'reconsideration of the evidence' that was before the Magistrates Court.[22] With one caveat, I am not satisfied that the circumstances are exceptional, and so decline to admit the new material in the August Affidavit and the September Affidavit. The caveat is that I will admit the transcript of the hearing on 22 May 2020 as it is necessary for me to understand the decision of the magistrate and have the full background to the issues in dispute.
[21] Shilkin v Taylor [2011] WASCA 255 [67] - [68] (Newnes JA, with whom Pullin & Buss JJA agreed).
[22] District Court Rules 2005 (WA) (DCR) r 50(1).
The CEO sought to rely on an affidavit sworn by Bavani Veloo, a legal officer employed by the CEO. This affidavit annexes the versions of Ms Pollard's criminal and traffic infringement history that were provided to the magistrate. Accordingly, no leave is required for this material to be considered in the Appeal.

Issues arising for determination

Ms Pollard filed written submissions in support of the appeal on 26 October 2021. They are as follows:
•In late 2015 I entered a relationship that quickly progressed into being extremely abusive emotionally and physically. This was a time of high stress as I was continuously in fight or flight mode scared for my life with the unpredictable behaviours and threat I was exposed to.
•On top of this I was also experiencing a number of complex personal situations that added to the overwhelming feelings I was struggling with. These include; caring for my sister who was diagnosed with a mental illness, studying nursing fulltime and juggling work as an assistant nurse to provide for my 2 sons.
•Feeling extremely overwhelmed and being in an unsafe environment with my ex-partner who was already using Methamphetmine, meant I began to use in order to cope.
•In several attempts to flea domestic violence, I was caught driving without a license. I was highly scared of repercussions and feelings of shame so I did not mention this to the officers at the time.
•In October 2017 my eldest Son's Father who I was extremely close with, took his own life. This had a significant impact on, not only my son's, but also my own emotional wellbeing and mental health.
•Unable to hold it together anymore, while still experiencing constant domestic violence, I fell into reliance on Methamphetamine.
•Between 2017 and 2019 I endured brutal physical and emotional abuse which has been identified in a support letter from the Special Crime Family Violence Team associated with the WA police.
•February 13^th 2019 was the day I made the final choice to never use again.
•February 14^th 2019 was my first day of being clean from drugs. Since this day I have never looked back and can proudly say I have now been clean for nearly 3 years!
•Since being clean I actively identified I needed to make large changes to better my life. This involved changing my social circle and living arrangements.
•On April 18^th 2019 after an altercation with my Ex-partner I fled for the final time.
•April 19^thI arrived at my mothers house in Ellenbrook and continued my recovery and journey rebuilding my life.
•Not long after this, I was able to get my own apartment located near my Mum's house.
•I took active measures into finding employment and managed to secure a job as a traffic controller with Highways Traffic.
•On March 26^th 2020, I was successful in gaining an extraordinary licence for my employment.
•Everything was starting to fall into place and when reflecting on my past, I and the people around me (family, friends, work associates), had seen huge improvements in the changes I had made to better myself.
•On ANZAC Day 2020 I received a call from the mother of my Sons half-sisters who was under the influence. This generated great concern to me for the girl's safety. I was aware of my driving conditions at the time, however I felt limited in my options so, regretfully, I made the decision to drive and bring the girls back to my safe home for a short stay.
•On the 22nd of May 2020, I attended court for the alleged breach of my driving conditions. Magistrate P. Malone stated "...there will be a note that I accept there are exceptional circumstances and EDL is not cancelled".
•On the 26^th of March 2021 my EDL expired.
•On the 16^th of July 2021, I appeared in court for a renewal of my EDL.
•Although on the 22nd of May 2020, Magistrate P. Malone could see that there was exceptional circumstance and did not cancel my EDL, this time he did not take my exceptional circumstances into consideration and instead used my previous minor drug possession convictions as a justification not to renew my EDL that was NOT cancelled, only expired. This can be seen in the transcripts that I have submitted to the courts.
•Not only did I feel completely discriminated against, but this experience brought me to tears in the courtroom as I felt belittled and as though the strength I had used to rebuild my life over the last three years meant nothing.
•Addiction and mental health do not discriminate who you are or where you come from. In the year 2000 I was standing on the Olympic training track as a fifteen year old athlete on the brink of representing my country.
•I am enrolling to do my diploma in counselling as I believe my past experiences do not define me, but rather are a source of strength to which can draw upon to help, inspire and give hope to others who are in similar situations.
•I am sincerely hopeful that the courts will take serious consideration in renewing my EDL as I am a sole parent providing for my family and myself. I have worked so hard to rebuild my life. I am presently experiencing extreme financial hardship and struggling to pay $430pw rent and put food on the table for my boys let alone myself.

To the extent that these submissions go beyond the evidence before the magistrate, I have put them to one side and not considered them.
The CEO filed written submissions in opposition to the appeal on 3 November 2021.
The Decision is ultimately a discretionary one, though a discretion to be exercised in accordance with the statutory framework I have identified at [7] - [9]. This required the magistrate to:
(a)have regard to the factors in RTAD Act s 30(2);
(b)not grant an EDL unless satisfied that refusal would lead to one of the conclusions in RTAD Act s 30(4); and
(c)weigh the competing factors and exercise the discretion.
Given the statutory framework of RTAD Act s 30, three issues thus arise in the Appeal:
•Did the magistrate consider all the mandatory factors set out in RTAD Act s 30(2)?
•Did the magistrate err in not finding that one of the conclusions in RTAD Act s 30(4) was satisfied?
•If the magistrate did make an error, what order should the court make?

Did the magistrate consider all the mandatory factors set out in RTAD Act s 30(2)?

There are five mandatory factors:[23]
(a)the safety of the public generally;
(b)the character of the applicant;
(c)the circumstances of the case;
(d)the nature of the offence or offences giving rise to the disqualification; and
(e)the conduct of the applicant subsequent to the disqualification.
[23] RTAD s 30(2).
I am satisfied that the magistrate considered the character of Ms Pollard. Among other things, his Honour referred to her criminal record, road traffic infringement record, history of drug use and her submissions that she had 'turned her life around'.
I am satisfied that the magistrate considered the circumstances of the case, including the circumstances in which Ms Pollard breached her EDL, the need which Ms Pollard expressed for the EDL and her financial position.
I am satisfied that the magistrate considered the nature of the offence or offences giving rise to the disqualification, being driving under court suspension.[24]
[24] ts 13.
I am satisfied that the magistrate considered the conduct of the applicant subsequent to the disqualification, in particular her multiple convictions for driving under court suspension, the circumstances in which the EDL was breached and her efforts to get to her employment without an EDL.
As regards safety of the public generally, counsel for the CEO submitted that on a fair reading of the transcript, an overwhelming inference arises that the magistrate also had regard to the safety of the public generally. With respect to the learned magistrate, I disagree. At no point in the transcript of the hearing on 16 July 2021 it is apparent that the magistrate considered the impact of granting an EDL to the appellant on the safety of the public generally. Where the factor is a mandatory one, it is, in my view, incumbent on the decision maker to expressly refer to it. It need not be in the precise words of the legislation (as I have done below at [57]), but it must be clear that the substance of the factor has expressly been taken into account. In the Decision it was not.
Ms Pollard has thus established that the magistrate erred in law when making the Decision by not taking into account one of the mandatory factors in RTAD Act s 30(2).

Did the magistrate err in not finding that one of the conclusions in RTAD Act s 30(4) was satisfied?

It is apparent from the Application that Ms Pollard relied on each of the three limbs of RTAD Act s 30(4).
I take the comments of the magistrate which I have quoted at [17] to be to the effect that Ms Pollard had not satisfied the court that any of the limbs in RTAD Act s 30(4) were made out.
In McKenzie Buss P observed of RTAD Act s 30(4):[25]
Section 30(4) specifies, in effect, three limited circumstances in which an applicant may be granted an extraordinary licence. An applicant must satisfy the court, by evidence, that the refusal of his or her application would have at least one of the consequences specified in par (a), par (b) and par (c) of s 30(4). The court may only grant an extraordinary licence for the purpose of overcoming or relieving one or more of the consequences specified in par (a), par (b) and par (c) of s 30(4) which the applicant has established, by evidence, to the court's satisfaction.
[25] McKenzie [68].
The first limb of RTAD Act s 30(4) is that 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; …
In relation to the first limb, Ms Pollard relied on the need to attend appointments to obtain treatment for her older son who suffers from PTSD and severe social anxiety.
In order for the learned magistrate to have been positively satisfied that refusing the Application would have the consequence set out in the first limb, it would have been necessary for his Honour to have been satisfied on the basis of the evidence of each of the following:[26]
(a)that Ms Pollard's son had an illness, disease or disability;
(b)that the illness, disease or disability required medical treatment in the form of attendances at appointments;
(c)that the above treatment was 'urgent'; and
(d)that the refusal of the Application would deprive Ms Pollard of the means of obtaining that treatment for her son.
[26] Chief Executive Officer, Department of Transport v RSR [2018] WADC 140 [20] (Lonsdale DCJ) (RSR).
In my view, the magistrate did not err in finding that Ms Pollard had not satisfied the court of this first limb. There was no evidence from a suitably qualified expert as to her son's medical condition, or that it was such as to require urgent treatment.[27]
[27] RSR [22] - [24].
The second limb of RTAD Act s 30(4) is that 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:
(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 …
There was evidence before the magistrate that Ms Pollard's employment would be terminated if she did not have a driver's licence. There was also evidence that she received a maximum of $500 per fortnight from Centrelink,[28] her total income was $1,000 per week (which she reported to Centrelink) and her expenses were $855 per week. So there was evidence from which the magistrate could have concluded that Ms Pollard's paid employment was her principal means of obtaining income which she stood to be deprived of if she was not given an EDL, the deprivation of which, with her limited means, would have placed her under an undue financial burden.
[28] ts 5.
However, it is insufficient to contend that the magistrate should have accepted the evidence which I have outlined in the preceding paragraph. Rather, Ms Pollard must demonstrate why the magistrate was in error in not having done so.[29] In my view, the reason why the magistrate was in error for not having done so was because there was no evidence to the contrary. There was nothing to contradict the information in the letter from Ms Pollard's employer that her employment would cease if she did not have a driver's licence. There was no challenge to Ms Pollard's evidence as to her financial position. Accordingly, I am persuaded that the learned magistrate erred in not finding that Ms Pollard had satisfied the second limb of RTAD Act s 30(4). Rather, I find that Ms Pollard has satisfied the court of the matters in the second limb.
[29] Wilson v Arwon Finance Pty Ltd [2020] WASCA 137 [194] (Quinlan CJ & Vaughan J, with whom Pritchard JA generally agreed) (Arwon).
The third limb of RTAD Act s 30(4) is that 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:
(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.
In McKenzie Buss P made the following observations as to the proper interpretation of this limb:[30]
[30] McKenzie [55] - [63].
55The phrase, 'deprive the applicant … of the only practicable means', in s 30(4)(c), relates to the driving by the applicant of a motor vehicle (emphasis added). That is, s 30(4)(c) is concerned with whether the refusal of the application to authorise the applicant to drive a motor vehicle would, relevantly, 'deprive the applicant … of the only practicable means' of travelling to and from the place at which the applicant is employed. The consequence specified in s 30(4)(c) will not be made out unless the court is satisfied that the refusal of the application (in other words, the refusal to authorise the applicant to drive a motor vehicle) would, relevantly, deprive the applicant of the 'only practicable means' of travelling to and from his or her place of employment.
56The meaning of the word 'practicable' depends, to a significant extent, on the context, but it ordinarily connotes that which is reasonably feasible or reasonably capable of being put into practice, done or accomplished. See Shorter Oxford English Dictionary (6^thed, 2007) 2310; Macquarie Dictionary (5^th ed, 2009) 1305.
57In s 30(4)(c), the word 'practicable', in the context of 'depriving the applicant … of the only practicable means' of travelling to and from the place at which the applicant is employed, contemplates factual differences between applicants according to each applicant's personal circumstances. It is necessary to address what is 'practicable' for the particular applicant and not what is 'practicable' for a hypothetical reasonable person.
58The determination of whether, in a particular case, the refusal of the application to authorise the applicant to drive a motor vehicle would, relevantly, deprive the applicant of 'the only practicable means' of travelling to and from his or her place of employment involves, first, identifying the applicant's other available transport options (if any); secondly, evaluating each other available transport option (if any), in the context of the statutory scheme and all the relevant facts and circumstances including the applicant's personal circumstances; and, thirdly, making a judgment as to whether any other available transport option would be a 'practicable means' (that is, a reasonably feasible means), in the context of the statutory scheme and all the relevant facts and circumstances including the applicant's personal circumstances, for the applicant to travel to and from his or her place of employment.
59Ordinarily, the relevant facts and circumstances will include, for example:
(a)the circumstances of the applicant's employment including the nature of his or her place of employment;
(b)the nature of the journey or journeys which the applicant must undertake in travelling to and from his or her place of employment;
(c)the duration of the journey or journeys by the means of transport being considered;
(d)the timing and frequency of the means of transport being considered;
(e)the cost of undertaking the journey or journeys by the means of transport being considered; and
(f)the applicant's financial capacity to pay for the cost of undertaking the journey or journeys by the means of transport being considered.
Obviously, the examples I have given are not an exhaustive statement of the facts and circumstances that will ordinarily be relevant or that will be relevant in a particular case.
60Section 30(4)(c) does not mandate or involve a comparison between the applicant driving a motor vehicle to and from the place at which he or she is employed, on the one hand, and the applicant using another available transport option to travel to and from that place, on the other, for the purpose of deciding which of the alternatives is the 'more practicable means' of travel for the applicant. Similarly, the provision does not mandate or involve a comparison between the applicant's other available transport options.
61The correct approach is for the court to evaluate separately each available transport option (if any), apart from driving a motor vehicle, in the context of the statutory scheme and all the relevant facts and circumstances, including the applicant's personal circumstances, and to make a judgment as to whether the transport option under consideration would be a 'practicable means' (that is, a reasonably feasible means), in the context of the statutory scheme and all the relevant facts and circumstances including the applicant's personal circumstances, for the applicant to travel to and from his or her place of employment.
62Section 30(4)(c) refers to 'travelling to … the place at which the applicant … is employed', but does not expressly identify the place where the journey begins. Similarly, s 30(4)(c) refers to 'travelling … from the place at which the applicant … is employed', but does not expressly identify the place where the journey ends.
63These express omissions reflect, no doubt, the reality that an applicant's point of departure, when travelling to the place at which he or she is employed, and an applicant's point of destination, when travelling from the place at which he or she is employed, will not necessarily be the applicant's usual residence. An applicant may not have a single, fixed place of employment. For example, an applicant may have two part‑time jobs each day at different locations. It may be necessary for the applicant to travel directly from one location to the other.
Ms Pollard gave evidence that she had been travelling to work by Ola or Uber, at a cost of $25 to $28 a trip. It was open to the magistrate to find that this was a practicable, or reasonably feasible, means of Ms Pollard travelling to and from her place of employment. Whilst this limb is wide enough to apply where a person, say, travels between two part‑time jobs each day at different locations,[31] it does not readily apply to someone who needs to drive during their employment. This scenario is more readily addressed in the second limb. In my view, the magistrate did not err in finding that Ms Pollard had not satisfied the court of this third limb.
[31] McKenzie [63].

If the magistrate did make an error, what order should the court make?

Having reached the conclusion that the magistrate made both an error of law and an error of fact in coming to the Decision, the Decision must be set aside.
Ms Pollard has satisfied me on the balance of probabilities that refusal of the Application would place an undue financial burden on her by depriving her principal means of obtaining income. As an appeal court, I must then give effect to that conclusion.[32]
[32] Arwon [193].
On the hearing of the Appeal, it is open to the court to, among other things, make any order that the Magistrates Court could have made.[33] So, this court has the power to direct the CEO to grant Ms Pollard an EDL.
[33] MCCPA s 43(7)(b).
However, it does not automatically follow from my finding that Ms Pollard satisfied the second limb of RTAD Act s 30(4) that she is thereby entitled to an EDL. Rather, I need to weigh all the competing factors and exercise the discretion.[34]
[34] McKenzie [67].
As to the nature of the offence or offences giving rise to the disqualification, this was for driving when her licence was suspended, including due to fines suspension. It was not, for example, for driving at speed, dangerously or under the influence of alcohol.
As to the safety of the public generally, Ms Pollard's criminal record does not demonstrate driving behaviour which poses a risk to other road users. Her convictions are for driving contrary to an EDL condition and driving when her licence was suspended. There are no convictions, for example, for driving under the influence of drugs or alcohol. So she does not have a driving record which indicates she poses any risk to the safety of the public generally.
As to Ms Pollard's character, as the magistrate observed, Ms Pollard does have a history of drug offending. However, her drug related offending was only between August 2015 and December 2016, was for personal use (and not dealing) and only resulted in fines. This is consistent with her evidence of turning to illicit drugs in the context of an abusive relationship. Prior to that, her criminal record is minimal, indicating she led a law-abiding lifestyle. Ms Pollard gave what I regard to be cogent evidence that she gave up illicit drugs and, in her words, 'turned her life around'. This included obtaining stable employment and accommodation for her and her children. Mr Capelli of Highways Traffic speaks highly of her as an employee, and also confirms the turn around in Ms Pollard's life. Contrary to the magistrate, I place some weight on Dr McKay's observation that during the time she has known Ms Pollard, her presentations have been consistent with her denial of illicit drug use.
As to the conduct of the Appellant subsequent to the disqualification, Ms Pollard's decision to drive in breach of the EDL conditions was based on concern for the daughters of her son's father. The magistrate when dealing with this conviction declined to cancel the EDL given the exceptional circumstances of the offending. The matters in the preceding paragraph are also relevant as to her subsequent conduct.
As to the circumstances of the case, in addition to what I have already mentioned, the finding that refusal of the Application would place an undue financial burden on Ms Pollard by depriving her of her principal means of obtaining income is a significant factor in favour of the grant of an EDL.
Given that Ms Pollard has not satisfied the first limb, the issue regarding the medical condition of her son, is of lesser significance. However, it is of some relevance that her son has serious mental health issues, and that income to the household will provide some stability which will no doubt be of benefit to him. However, the EDL cannot, on the evidence before me, be in terms that would allow Ms Pollard to take her son to medical appointments.
In my view, the clear balance of the factors weighs in favour of the grant of an EDL.
For these reasons, at the conclusion of the hearing on 10 November 2021, and after hearing from counsel for the CEO on the terms of the order, I made the following orders:
1.The time within which the appellant may commence her appeal be extended to 10 August 2021.
2.The decision of the Magistrates Court at Fremantle on 16 July 2021 to refuse the grant of the extraordinary drivers license to the Appellant, be set aside.
3.The Respondent, upon receipt of the prescribed fee, be directed to grant to the Appellant an extraordinary licence for a period of 12 months from 12 November 2021 being an extraordinary licence CLASS CA Renewable to drive a motor vehicle to and from the Appellant's home to the Appellant's place of employment and in the course of employment as a Traffic Controller with Highways Traffic
4.The following additional conditions are imposed on the extraordinary licence under section 32 of the Road Traffic (Authorisation to Drive) Act 2008 (WA):
(a)The Appellant is to carry the extraordinary licence at all times whilst in control of a motor vehicle and to produce it on demand by any police officer.
(b)The Appellant is to display 'E' plates on both the front and rear of the vehicle, of the same type and dimensions and in the same manner as 'L' plates provided for in the Road Traffic (Authorisation to Drive) Regulations 2014 (WA).
(c)The Appellant is to have in her possession evidence of the shift roster or shift rostering able to be produced on demand to a Police Officer or otherwise provide confirmation that the purpose of the driving is employment related.
(d)The Appellant be restricted to drive within 100km radius of the Magistrates Court Perth Registry at 501 Hay Street Perth, 6000 WA.
(e)The Appellant is not to have a blood-alcohol content above 0.00 at any time while driving a motor vehicle.
5.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SVH
Associate
18 NOVEMBER 2021