Ranchigoda v Queensland Transport
[2012] QMC 19
•24 May 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Ranchigoda v Queensland Transport [2012] QMC 19
PARTIES:
Umah RANCHIGODA
(Applicant)
v
QUEENSLAND TRANSPORT
(CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS)(Respondent)
FILE NO/S:
MAG-00075700/12(1)
DIVISION:
Magistrates Court
PROCEEDING:
Application for Special Hardship Order
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
24 May 2012
DELIVERED AT:
Brisbane
HEARING DATE:
4 May 2012
MAGISTRATE:
Taylor AR (Acting Magistrate)
ORDER:
Application dismissed.
CATCHWORDS:
TRAFFIC LAW – LICENCING – issue of restricted licence during period of licence suspension – application for Special Hardship Order – meaning of “severe and unusual hardship”
TRAFFIC LAW – LICENCING − special hardship order − severe and unusual hardship − test to be applied − balancing of factors
Transport Operations (Road Use Management) Act 1995
Transport Operations (Road Use Management − Driver Licensing) Regulation 2000, s 107
COUNSEL:
JR Jones for the applicant
C O’Pray, by leave, for the respondent
SOLICITORS:
Russells, Solicitors for the applicant
Prosecution Unit, Department of Transport and Main Roads for the respondent
The applicant, Ms Umah Ranchigoda, makes application for a Special Hardship Order pursuant to Part 14 of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010 (the Regulation), section 107.
Background
On 6 April 2012 the applicant’s Queensland driver license was suspended for a period of six months, following an accumulation of three demerit points during the currency of a good driving behaviour period of 12 months, which period commenced on 4 May 2011.
The relevant demerit points resulted from an offence committed on 27 February 2012 when the applicant had completed almost ten months of the good driving behaviour period. The relevant entry in her Department of Transport and Main Roads Traffic Record is described thus: “A 5998182 Disobey No U‑Turn sign on no U‑turn length of road.
There is some doubt as to whether that is the correct short form description of the offence committed by the applicant, however the applicant urged and the respondent conceded that the nature of the offence was to make a right hand turn across a single solid white line. It is conceded by the applicant that such is also a three demerit points offence and it was not suggested that the applicant has not lawfully been suspended.
The applicant necessarily has some traffic history which, with the exception of the offence which has just been described, consists entirely of three demerit points speeding offences. The applicant accrued nine demerit points as a result of offences committed between 23 June 2008 and 21 April 2009 and her Traffic Record states that she was issued with a demerit points warning letter on 18 June 2009. Inferentially that warning letter had an appropriate effect on the applicant and she did not re-offend until 11 March 2011 which event ultimately resulted in the imposition of a good behaviour driving period.
Statutory test – eligibility and jurisdiction
Section 111 of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010 also contains some procedural provisions and compliance therewith is not in issue in this application.
Section 106 of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010 articulates circumstances in which persons may be either eligible or ineligible to apply for a special hardship order. The applicant’s material and the certified copy of her Traffic Record suggest the applicant is prima facie eligible and want of eligibility has not been put in issue by the respondent.
By its terms the applicant’s written application relates to a Class C licence and the applicant’s Traffic Record indicates her to be the holder of a current Class C driver’s licence. Moreover the applicant’s Traffic Record does not speak to a relevant suspension, cancellation or disqualification within the meaning of paragraph (a) of subsection (2) of section 106 of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010.
Pursuant to section 107(1) of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010 a person may only apply for a special hardship order to a relevant court for the person. The relevant court for the applicant’s application is defined in subsection (5) of section 107 to be the Central Division of the Brisbane Magistrates Courts District as it is the division in which she resides.
To the extent that it is necessary I formally find the applicant to be eligible to apply.
Statutory test − exercise of discretion
Pursuant to section 105, Transport Operations (Road Use Management − Driver Licensing) Regulation 2010, a relevant Magistrates Court may make a special hardship order authorising an eligible person (who has a suspended open or provisional licence) to continue to drive motor vehicles in stated circumstances.
The judicial power to make a special hardship order is constrained by statutory restrictions set out in section 111 of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010.
Section 111 of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010 provides as follows:
111 Deciding application
(1)A court may make a special hardship order only if the court is satisfied—
(a)the applicant for the order is a fit and proper person to continue to drive, having regard to the applicant’s traffic history and the safety of other road users and the public generally; and
(b)a refusal to make the order would—
(i)cause extreme hardship to the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning a living; or
(ii)cause severe and unusual hardship to the applicant or the applicant’s family, other than by depriving the applicant of the applicant’s means of earning a living; and
(c)when the order is made, the applicant holds an open or provisional licence that would be valid but for the suspension, under a relevant provision, to which the order relates.
…
Court to be satisfied on the balance of probabilities
The regulation requires that before a court is lawfully entitled to make an order the court must be satisfied inter alia that the suspension of the applicant’s driver’s license for six months would impose severe and unusual hardship on the applicant or their family. This is an application made under civil law and the onus of proof rests with the applicant. The standard of proof required is on the balance of probabilities.
The issues − fit and proper person
Ms O’Pray for the respondent indicated that the respondent would make no submissions as to whether the applicant was a fit and proper person within the meaning of the fit and proper person test imposed by section 111(1)(a) of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010.
A Ms Natalie Stone, a friend of the applicant, swears to her belief that the applicant is of good character and a safe and responsible driver. Moreover Ms Stone deposes to her confidence in the applicant’s driving abilities such that she permits her children to travel in a vehicle being driven by the applicant.
For her part the applicant asserts she has always considered [herself] to be a safe and courteous driver who would never put any other person’s life in danger. Further that [t]he suspension of my driver licence has brought home to me the importance of being able to drive.
The applicant’s Traffic Record reveals a person of limited traffic offending (although plainly sufficient to call upon the jurisdiction of this court) whose offending is not suggestive of driving dangerously or without due care.
The applicant is entitled to a conclusion in her favour that she is a fit and proper person having regard to her traffic history and the safety of other road users and the public generally. I formally find the applicant to be a fit and proper person to continue to drive, having regard to the applicant’s traffic history and the safety of other road users and the public generally.
The issues − severe and unusual hardship
In her material filed in support of the application the applicant details a number of outcomes that will eventuate as a result of her being suspended from driving.
Those outcomes are detailed in paragraphs 15 to 34, inclusive of her affidavit of 12 April 2012:
“15.I am applying for a Special hardship Order because I believe that if the application is refused, my family would suffer severe and unusual hardship.
16.I have four children between the ages of six and eleven years old. They are:
(a)Ashwin Anthony Nihal Ranchigoda, born 31 October 2000;
(b)Anisha Yoga Ranchigoda, born 10 February 2002;
(c)Avnish Maha James Ranchigoda, born 10 December 2003; and
(d)Amara Lailanie Ranchigoda, born 10 May 2005.
17.Ashwin and Avnish attend Brisbane Boys’ College in Toowong (“BBC”). Anisha and Amara attend Somerville House in South Brisbane.
18.My husband Sean is the Executive General Manager for Business Development at Springfield Land Corporation.
19.As a result of his business commitments, he is extremely busy and I am the only adult responsible for managing the day to day life of our children and our household.
20.In addition to their schooling, my children have extensive extra-curricular commitments.
21.Now produced and shown to me and marked “UR-3” is a timetable which details each of my children’s commitments for the current school term and some notes explaining them.
22.I am the only person available to drive my children to and from all of these activities. All of my children are too young to travel on public transport unaccompanied.
23.The varied times and locations for each of these activities makes it impractical, and in some cases simply impossible, to arrange for public transport.
24.By way of example, a search of the Department of Transport’s “TransLink” website shows that it is not possible for me to accompany my children on public transport to each of their activities on Mondays. There are no services that run early enough to transport Anisha to South Brisbane in time for her Cross Country events. Anisha has qualified as one of the top 15 runners in her age group for the first tier GPS competition.
25.It is not possible to catch public transport to pick up Amara up from South Brisbane at 4.15pm and the be at Kenmore South State Primary School for Avnish’s Kumon by 5pm.
26.Now produced and shown to me and marked “UR‑4” are several print-outs from the “TransLink” website which show my family’s limited public transport options for Mondays.
27.If I am unable to drive my children to and from these activities, they will not be able to participate in them.
28.I believe that these extra-curricular activities are very important to my children’s development. If they are not able to participate, they will fall behind their classmates in their progression. Not participating will result in them being a year behind their classmates in their respective activities, an outcome which is not fair on them.
29.In particular, Anisha is a very shy child. Aside from our own observations, my husband and I have numerous report cards from her school to the same effect. Her participation in these extra-curricular activities is important for her social development and to strengthen her friendships. We have noticed a significant improvement in her levels of self-confidence and consequently, her school work as a result of her involvement in these activities. I have seen a direct correlation between her involvement in these pursuits and an improvement in her academics, which is vital to her development.
30.Ashwin is the Vice-Captain of his House at BBC. He is frequently required for different commitments outside of school hours in addition to his extra-curricular activities. The timing of these commitments are difficult to predict and depends on the school’s requirements. An example of the kind of commitment I am referring to is that he will sometimes be required to assist with preparation for school functions.
31.On Saturdays, the schedule of extra-curricular activities varies from week to week but is always full. It is not uncommon for me to be required to transport my children to various activities and functions from 7am to 5pm.
32.In addition to my children’s extra-curricular activities, I work two days a week, Wednesdays and Thursdays, from 8.30pm [sic.] to 2pm, at SLC. I occasionally work additional days as my workload or meeting may require.
33.During the period when my children are not [sic.] at school, a period of only approximately five hours between 9am and 2pm, I attend to whatever tasks are required for the efficient running of a busy household. This includes doctor’s or other health and fitness appointments, working, attending client meetings at differing locations from Brisbane City to Kenmore to Springfield, school activities (for example, parent’s support groups), doing the grocery shopping and other household chores as required and all of the other general duties that are necessary to allow a household with four active children to have a complete lifestyle.
34.Additionally, in order to maintain my general health and fitness, I also attend the Jindalee Fitness First gym for an hour from Monday to Friday. I work with a personal trainer on Tuesdays and Thursdays. My trainer not only assists with my general fitness but also tends to my chronic neck and back pain. I anticipate that when my physiotherapist, Michael Dalgliesh, returns from his current overseas commitments, I will need to see him at least weekly as well for this same issue.
…”
The applicant seeks an order that would permit her to drive for certain purposes and in certain circumstances.
Although neither the applicant’s application nor her affidavit material detail with precision the circumstances and thus the hours and purposes for which she seeks to be authorised to continue drive the inference is that such is for the purposes relied upon in her affidavit.
The issues − inability to drive for work purposes a severe and unusual hardship
In paragraph 32 of her affidavit sworn on 12 April 2012 the applicant deposes:
“In addition to my children’s extra-curricular activities, I work two days a week, Wednesdays and Thursday, from 8:30pm [sic] to 2pm, at SLC[1]. I occasionally work additional days as my workload or meetings may require.”
[1] SLC, the Springfield Land Corporation, is also the workplace of the applicant’s husband.
Later in paragraph 33 of the same affidavit the applicant deposes:
“During the period when my children are not [sic] at school, a period of only approximately five hours between 9am and 2pm, I attend to whatever tasks are required for the efficient running of a busy household. This includes doctor’s or other health and fitness appointments, working, attending client meetings at differing locations from Brisbane City to Kenmore to Springfield, school activities (for example, parent’s support groups), doing the grocery shopping and other household chores as required and all of the other general duties that are necessary to allow a household with four active children to have a complete lifestyle.”
Thus the instant application appeared to seek the court’s authority to drive for the purpose of supporting the applicant’s employment, in addition to the other identified purposes. I enquired of counsel for the applicant if such were the case and whether the applicant intended to offer the usual material in support of her application to satisfy the test set out in section 111(1)(b)(i) of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010.
Counsel for the applicant advised that the applicant’s inability to drive for work purposes in the event that the court refuses to make the order is not pressed as being the cause of extreme hardship to the applicant or the applicant’s family by depriving her of her means of earning a living but rather as severe and unusual hardship and/or as part of the fabric of severe and unusual hardship that would result if the court refused to make such an order.
In relation to basing the applicant’s need to drive to work on the limb of the section that requires there to be caused severe and unusual hardship to the applicant or the applicant’s family, other than by depriving the applicant of the applicant’s means of earning a living, instead of extreme hardship by depriving the applicant of means of earning a livelihood, it seems to me that this is a somewhat novel approach to invoke the exercise of the court’s discretion.
The applicant’s material in support of the application does not specify, even in general terms, how a refusal to make the order (viz, her loss of licence) will impact upon her work commitments or how it would otherwise affect her or her family in a manner that speaks to such severe and unusual hardship as warrants the exercise of the judicial discretion.
Without detail the evidence on this point is extremely vague. Moreover the lack of specificity resonates for other reasons. The reasons include: The application seems to have been drawn to avoid provision of financial information against which severity of hardship might otherwise be tested. i.e. the loss of a portion of income. The relative proportion of income required to make other transport arrangements etc. The affidavit also appears to have been drawn to avoid necessity for confirmation of employment.
I will return to the significance of the lack of financial detail at the conclusion of these reasons.
Meaning of “severe and unusual hardship”
There are no binding Queensland authorities on the meaning of the expression “severe and unusual hardship” where it is used in s 111(1)(b)(ii) of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010.
There is however a series of decisions of the Tasmanian Supreme Court dealing with the meaning of “severe and unusual hardship” in the context of similar, though not identical, legislation providing for the issue of restricted licenses to persons who have been disqualified by order of a court.
Additionally, there is a decision of the Supreme Court of South Australia that touches upon the issue.
The words “severe” and “unusual” are used as a conjugation with “hardship” connoting that the hardship suffered must be both severe and unusual. This necessarily leads to a conclusion that it would not be enough to show only that the hardship to be endured by the applicant or the applicant’s family, other than by depriving the applicant of the applicant’s means of earning a living, would be severe; or alternatively, to show only that the hardship to be endured by the applicant or the applicant’s family, other than by depriving the applicant of the applicant’s means of earning a living, would be unusual.
In my view, had the legislature intended the court to exercise a discretion where an applicant shows either severe hardship; or alternatively, unusual hardship, would result, such could readily have been achieved with appropriate drafting.
Regrettably neither explanatory notes to the bill, nor Hansard are of any assistance.
Although one may suspect the language of the Queensland provisions to have been sourced from the Tasmanian provisions or similar provisions in use in other jurisdictions and, may suspect that the drafters of the Queensland provisions to have had in mind the Tasmanian authorities, there is no written support for the proposition. According I set such a line of reasoning aside as a being no more than a moot point.
I will deal with the inter-State authorities which, although persuasive, are not binding.
The Tasmanian authorities
In Strickland v Parsons (unreported, Serial No 57/1981), Everett J, having commented that the [Tasmanian] legislature has required the hardship to be both severe and unusual before the power to grant a restricted licence may be exercised[2], continues:
“The two qualifications must significantly restrict the scope for the discretion to become available for use. The epithet "severe" denotes a rigorous quality -- if not extreme, then at least marked (Shorter Oxford English Dictionary, Vol 2, pp 1857-8). The additional requirement that the hardship must be proved by the applicant to be "unusual" is also clearly restrictive to a substantial degree. I interpret the adjective "unusual" as referring to the quality of the hardship imposed on the applicant as compared with that suffered by the average person who is within the class of disqualified drivers in comparable circumstances. I accept the submission of counsel for the applicant under the motion to review that "unusual" in the context means that the effect on the applicant of the disqualification must be more serious than it could be expected to be in the case of others under disqualification to a similar degree.”
[2] “The history of the relevant legislation and the clear language used by Parliament make it plain that the power to mitigate or alleviate hardship caused by the disqualification of a person for obtaining or holding a driver's licence cannot lawfully be exercised in any perfunctory manner. The power is special. It serves a specific social purpose. It reflects a compromise between rigid adherence to one of the purposes of the 1970 Act – the restriction of the right to hold a licence of a person who drives a motor vehicle after having consumed intoxicating liquor in breach of s 6 of the Act -- and the avoidance of severe and unusual hardship to such a person or his dependants. The applicant has the evidentiary burden of persuading the magistrate that his discretion ought to be activated and directed in the applicant's favour. This cannot be achieved simply by the submission of evidence which is vague, imprecise and lacks definite and positive qualities, which is the description I would apply to the evidence in this case. In particular, it must be appreciated that disqualification for holding or obtaining a driver's licence will almost variably cause personal inconvenience to the person affected and often some hardship. But the legislature has required the hardship to be both severe and unusual before the power to grant a restricted licence may be exercised. The two qualifications must significantly restrict the scope for the discretion to become available for use. The epithet "severe" denotes…”
Everett J made the following further remarks about legislative intention:
“It is manifest that the deliberate policy of the legislature for nearly eight years has been not to extend the right to obtain a restricted licence beyond a comparatively small proportion of those who are deprived of a licence to drive a motor vehicle in the general interests of the public and as a deterrent, both particular and general, in respect of behaviour from which Parliament more than a decade ago showed its intention that the public should be protected..”
Everett J went on to assert that inconvenience must be distinguished from hardship:
“Inconvenience must be clearly distinguished from hardship; the restricted nature of the hardship capable of being mitigated or alleviated needs to be recognised; and the onus on the applicant requires the proofs to be examined closely and analytically.”
In Registrar of Motor Vehicles (Tasmania) v Eeles 1 MVR 161, Neasey J further considered the expression “severe and unusual hardship”:
“In the present case, the principal argument submitted for the applicant is, as I understand it, that even if the hardship imposed upon the respondent by the disqualification will be severe, it could not be classed as unusual, because his permanent and secure ordinary occupation will not be materially affected by the disqualification. Alternatively, because of that circumstances the hardship could not be described as severe and unusual.
These submissions bring under close consideration the meaning of the descriptive phrase, “severe and unusual hardship”, and in particular the word “unusual” in that context. As Everett J said in Strickland v Parsons, supra[3], the condition that the court be satisfied that disqualification will impose or is imposing severe and unusual hardship is a stringent one, which the applicant for a restricted licence bears the onus of establishing. His Honour further said that “…’severe’ denotes a rigorous quality − if not extreme, then at least marked…” and cited the Shorter Oxford English Dictionary Vol 2, pp 1857-8. I with respect agree. I would add for myself that the source quoted by Everett J, in referring to impersonal agencies which be “severe”, marks out one category as being “events or circumstances, labour or exercise, a struggle, test, trial, etc”, and says “severe” means in that context, “hard to sustain or endure; arduous”. “Hardship” falls most aptly into that category, and the word “hardship” itself means, “the quality of being hard to bear; hardness; severity; hardness of fate or circumstance” − op cit Vol 1, p 66.
The argument in the present case focuses upon the word “unusual”. Everett J said in Strickland v Parsons, supra: “I interpret the adjective "unusual" as referring to the quality of the hardship imposed on the applicant as compared with that suffered by the average person who is within the class of disqualified drivers in comparable circumstances”. I agree, and would express it in my own way as meaning, in the context, “of unusual degree”, so that the expression “severe and unusual hardship” is intended by the legislature to be a compendious expression in which the two parts are complementary. It follows, in my view, that some or all of the circumstances which go to make the hardship severe may also make it of unusual degree. In other words, the two expressions have much the same meaning, which is I think what the legislature intended: “unusual” reinforces “severe”.
[3] Unreported, Serial No 57/1981 (Supreme Court of Tasmania)
The case of Davies v Shaw 12 MVR 450, per Neasey J, relied upon by the respondent, does little other than repeat the ratio that may be extracted from their Honours reasons in the cases of Strickland v Parsons, supra and Registrar of Motor Vehicles (Tasmania) v Eeles, supra and apply the same to the particular facts of Shaw’s case.
The South Australian authority
Legislation in place in South Australian makes provision for appeals to a Magistrates Court against certain notices of disqualification. An aspect of South Australian legislation was under consideration of Kourakis J in Holden v The Registrar of Motor Vehicles [2011] SASC 205. The relevant legislation provided as follows:
81BB—Appeals to Magistrates Court
(1)Subject to subsection (2), if a person has been or is liable to be given a notice of disqualification under section 81B as a consequence of an offence committed or allegedly committed while the holder of a provisional licence or probationary licence, the person may appeal to the Magistrates Court against the disqualification.
…
(4)The Magistrates Court may allow an appeal if the Court is satisfied—
(a)that, on the basis of evidence given on oath by or on behalf of the appellant, the disqualification would result in severe and unusual hardship to the appellant or a dependant of the appellant; and
…
In that matter Kourakis J considered the expression “severe and unusual hardship” and observed:
“In particular, the compound expression ‘severe and unusual hardship’ is a relative one. In my view, it’s connotation is of a hardship which goes beyond the hardship which can be expected in the generality of cases and which will operate harshly, and be hard to endure, in the particular circumstances of the appellant or his or her dependents. Whether or not it operates harshly can only be judged against the legislative purpose of the disqualification. In all, the section calls for an evaluative factual finding by reference to a normative judgment about the nature of the hardship which warrants a departure from the statutory consequence. If that normative standard is satisfied then the appeal must be allowed.”
Counsel for the applicant submits that the word “exceptional” connotes a higher test than the term “severe and unusual”. Counsel explains that in the Attorney-General (Qld) and Another v Francis (2008) 187 A Crim R 124 at 136 Muir JA gave some consideration to the meaning of “exceptional”.
Counsel asserts that His Honour’s approach to the meaning of “exceptional” is particularly relevant to the approach this Court should take to the meaning of “severe and unusual”.
His Honour stated:
“[40] In his reasons of 11 April 2008 McMurdo J, in considering whether there were "exceptional circumstances" which made the appellant's detention "for the next month unjustified" applied the following definition of "exceptional" by Lord Bingham of Cornhill CJ in R v Kelly (Edward),[4] referred to with approval by Callinan J in Baker v The Queen.[5]
‘[249] We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
[41] Like McMurdo J, I find Lord Bingham's definition useful for the purposes of s 21(4).”
[4][2000] QB 198 at 208
[5](2005) 223 CLR 513 at 573
With respect to learned counsel I think his submission is misguided in that he misunderstands His Honour Lord Bingham’s meaning. Lord Bingham, it seems to me, was quite clear in concluding “exceptional” should be construed, inter alia, as “unusual” or “uncommon”. That is to say it was not a particularly onerous thing for a circumstance to be exceptional. Moreover, and of particular relevance to the instant matter, defining “unusual” to have a meaning akin to “exceptional” does not assist with elucidation of “severe” or of the compendious expression “severe and unusual hardship”.
For present purposes I see no reason to construe either “severe” or “unusual” as terms of art. Both should be construed according to their ordinary meaning.
The Australian Concise Oxford Dictionary (7th Ed.) defines severe as follows:
severe 1. austere, strict, harsh, rigorous, unsparing…; ~ (up)on, harsh in judgment of. 2. violent, vehement, extreme…
The Macquarie Dictionary Online defines severe as follows:
Severe 1. harsh; harshly extreme: severe criticism; severe laws. 2. serious; stern: a severe face. 3. grave: a severe illness. 4. rigidly restrained in style or taste; simple; plain. 5. causing discomfort or distress by extreme character or conditions, as weather, cold, heat, etc.; unpleasantly violent, as rain or wind, a blow or shock, etc. 6. hard to endure, perform, fulfil, etc.: a severe test. 7. rigidly exact, accurate, or methodical: severe conformity to standards.
The Australian Concise Oxford Dictionary (7th Ed.) defines unusual as follows:
unusual a. not usual; exceptional, remarkable…
The Macquarie Dictionary Online defines unusual as follows:
unusual adjective not usual, common, or ordinary; uncommon in amount or degree; of an exceptional kind.
The Australian Concise Oxford Dictionary (7th Ed.) defines hardship as follows:
hardship n. hardness of fate or circumstance; severe suffering or privation.
The Macquarie Dictionary Online defines hardship as follows:
hardship noun 1. a condition that bears hard upon one; severe toil, trial, oppression, or need. 2. an instance of this; something hard to bear.
It is not controversial that the intent of the legislative scheme of Part 14 of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010 is to suspend, for period of time, the driver licenses of person who have, or have been deemed to have, disobeyed the road rules; or have accumulated a certain number of demerit points whether by disobeying the road rules or by virtue of certain deeming provisions.
The legislation provides that persons who have their driver license suspended for accumulation of demerit points or as a result of the commission of a high speed offence may apply for a special hardship order. Persons may be ineligible to apply in certain circumstances, none of which are relevant to the instant matter. A special hardship order authorises a person to drive in circumstances stated in the order, and for the period of the suspension, notwithstanding the suspension of the person’s driver license.
The discretion of the court to make a special hardship order is not unfettered. Pursuant to s.111 of the Transport Operations (Road Use Management − Driver Licensing) Regulation 2010 a court may make the order only if satisfied that: the applicant is a fit and proper person to continue to drive having regard to the applicant’s traffic history and the safety of other road users and the public generally; that when the order is made the applicant holds a relevant license that is valid but for the suspension; and that a refusal to make the order would—
(i)cause extreme hardship to the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning a living; or
(ii)cause severe and unusual hardship to the applicant or the applicant’s family, other than by depriving the applicant of the applicant’s means of earning a living.
The “special” hardship countenanced by the legislation is not an open set of hardships. “Special” hardship is either: the extreme hardship that is or would be endured by the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning a living; or the severe and unusual hardship that is or would be endured by the applicant or the applicant’s family, other than by depriving the applicant of the applicant’s means of earning a living.
The special hardship – for the present purposes, the severe and unusual hardship that is occasioned other than by depriving the applicant of her means of earning a living - is primarily a subjective test because it relies upon the hardship that is occasioned to the applicant or their family in their particular circumstances.
The test however, in is my view, not solely a subjective test. Common sense and a reading of the legislation as a whole dictates that parliament intended that inconvenience and even some hardship result from the suspension of a person’s driver’s license. Suspension is plainly intended as a sanction for offending or continued offending against the road rules whose purpose is inter alia improving road safety.[6]
[6]Section 3(1)(b)(iii) of the Transport Operations (Road Use Management) Act 1995.
Thus, a consideration of those circumstances that constitute a severe and unusual hardship must be balanced with the consideration that inconvenience and some hardship even, caused to both the driver and their family, by a suspension of a driver license is the norm. This is the significance of the requirement that the hardship be unusual.
Going beyond that the hardship to be endured must also be severe. In that context it could be fairly be said that “severe” reinforces “unusual”, or vice versa, that “unusual” reinforces “severe”.[7]
[7] per Neasey J in Registrar of Motor Vehicles (Tasmania) v Eeles., op cit.
I am of the opinion that Kourakis J[8] provides an elucidation of the expression “severe and unusual hardship” that is most apt to the Queensland Legislation:
[8] per Neasey J in Registrar of Motor Vehicles (Tasmania) v Eeles, op cit.
“In particular, the compound expression ‘severe and unusual hardship’ is a relative one. In my view, it’s connotation is of a hardship which goes beyond the hardship which can be expected in the generality of cases and which will operate harshly, and be hard to endure, in the particular circumstances of the appellant or his or her dependants. To again borrow from the words of Kourakis J[9], whether or not it operates harshly can only be judged against the legislative purpose of the disqualification.”[10]
[9] per Neasey J in Registrar of Motor Vehicles (Tasmania) v Eeles, op cit.
[10] per Neasey J in Registrar of Motor Vehicles (Tasmania) v Eeles, op cit.
Evidence tendered in support of the application
The following affidavits were tendered in support of the application:
oAffidavit of the applicant sworn on 12 April 2012;
oAffidavit of Sean Francis Buyzer Ranchigoda (the husband of the applicant) sworn on 1 May 2012;
oAffidavit of Natalie Stone, a friend of the applicant, sworn on 1 May 2012;
oFurther affidavit of the applicant sworn on 4 May 2012.
The applicant’s friend, Natalie Stone, relates that the applicant and Stone were once part of a car pool for the purpose of school transport arrangements but that those arrangements came to an end because of the diversity of extra-curricular activities of the various children and that it is not feasible for the car pool arrangements to resume in a way that assists the applicant. Stone also expresses her confidence in the applicant’s driving abilities and that the applicant is a safe driver, notwithstanding the applicant’s epilepsy. Stone’s affidavit evidence is not challenged, is plausible and particularises the matters to which it deposes. I accept her evidence.
The applicant’s husband deposes to being employed as the Executive General Manager − Business Development at Springfield Land Corporation (“SLC”). Further that he works primarily at the company’s offices; that he is occasionally required to travel around the greater Brisbane region to fulfil his duties; and that it takes approximately 45 minutes to drive from his home to the company’s offices. He deposes that his usual office hours are from 7:30am to 7pm, Monday to Thursday and from 8am to 5pm on Fridays.
Further, in addition to his work at SLC [he] “is involved in running a separate business called United Development Corporation (“UDC”)” which is a property development company. He states that his work at UDC is in addition to his SLC work and that it frequently needs to occur outside of regular business hours and that it is not uncommon for him to work until midnight on UDC matters. It is of particular note that he makes no reference to working on Saturdays or Sundays.
Mr Ranchigoda also states that he has the primary responsibility for the financial liabilities of the family. Those financial liabilities are not particularised, nor are the family’s assets or income.
Sean Ranchigoda further deposes that the demands on his time are particularly onerous that that he has “extremely limited capacity to assist with the running of our household”. He says he is “entirely reliant on my wife’s management of our children’s schedules and am unable to assist with driving our children to or from their various school and extra-curricular acitivities”. Finally he says that there are no other family members or friends that could assist.
I consider the evidence of Sean Ranchigoda to be quite vague. In particular, upon all the salient points the material expresses conclusions without laying an adequate basis. He does not traverse any reasons why his schedule cannot be rearranged, nor whether the family finances might support some rearrangement of his schedule or alternative transport arrangements for the children. The circumstances may well be that the family are in a financial position to employ the services of a governess or an au pair or other part-time assistant for the transport of the children. Alternatively, the family may be in a position to fund the use of taxis or other chauffeur services without impact on the family finances constituting a hardship. His assertion about extremely limited capacity to assist is not supported by sufficient facts that might imply confidence in the assertion.
No independent verification of Sean Ranchigoda’s obligations to SLC or to UDC is provided. For all the court knows he may be a director and the controlling mind or one of the controlling minds of one or more of those corporations. If not, his employer might be entirely supportive of his assisting his wife with the child care responsibilities for the term of her suspension from driving.
I find the affidavit evidence of Sean Ranchigoda to be of little assistance to the applicant and indeed when combined with the applicant’s own affidavit material, to be counterproductive. This is so because what seems to me to be a failure to provide particulars, adds to an impression that salient, but unhelpful, facts are being withheld. That is to say the court is not being offered the whole truth.
The salient parts of the applicant’s affidavit of 12 April 2012 have been reproduced above. Her affidavit of 4 May 2012 exhibits two documents.
The first is a “To whom it may concern” letter from Sujata Kumar, a psychologist, who comments upon the value of a child’s extra-curricular activities and the possible consequences of withdrawal from those activities. Mr Kumar does not comment upon specific impacts upon any one or more of the Ranchigoda children. Moreover the language of the comments alludes only to possible consequences and certainly does not approach an assertion that, in the particular circumstances of any one or more of the Ranchigoda children, a particular consequence may follow. Further still, Mr Kumar does not express an opinion on the basis that withdrawal of the child or children from the activity may be on a temporary basis only.
Although his letter is not vague per se, inasmuch as some specific possible outcomes are outlined, his evidence wants for relevance as it does not address the applicant’s family in particular.
Of the Ranchigoda children, Anisha seems to be the one for whom a case of significant hardship may best be made out. Paragraph 29 of the applicant’s affidavit of 12 April 2012 states:
29.In particular, Anisha is a very shy child. Aside from our own observations, my husband and I have numerous report cards from her school to the same effect. Her participation in these extra-curricular activities is important for her social development and to strengthen her friendships. We have noticed a significant improvement in her levels of self-confidence and consequently, her school work as a result of her involvement in these activities. I have seen a direct correlation between her involvement in these pursuits and an improvement in her academics, which is vital to her development.
Whether the temporary loss of extra-curricular activity would now cause Anisha to regress in her social development and in her academics is not traversed in the material and in particular, is not dealt with by Mr Kumar, the psychologist. The material does not permit a concluded view to be reached.
I turn to matters of relevance to all the children− for a child, or for the children, it may be that, properly explained, the impact of the loss of an activity or the activities for the relevant period is disappointing but not enduring. Even though one might be satisfied that, as a general concept, extra-curricular activity for children is beneficial (and I hold a strong personal belief that it is so) and that withdrawal from such activity may have a negative impact; that is not sufficient to discharge the onus of satisfying the court that one or more of the children’s inability to participate in some or all of their extra-curricular activities for the ensuing six months constitutes a severe hardship.
Further, I do not believe it could be seriously contended that there are many families for whom a loss of some or all pre-existing extra-curricular activity would not flow from the suspension of a parent or sole parent’s driver license. That a child’s extra-curricular activity may be prejudiced by mum or dad’s inability to transport them to and from extra-curricular activities in a timely way seems to me to be an entirely ordinary and perhaps even likely result of a license suspension.
The second document is a “To whom it may concern” letter from her family general practitioner, Dr Kim Yap‑Weber. Dr Yap‑Weber refers to the applicant’s chronic neck and back pain and that regular strength training is crucial to the management of her symptoms. Dr Yap‑Weber does not depose to the particular strength training or treatment required, nor does he detail that the applicant’s attendance at a gym or with a personal trainer is essential. Performance of strength exercises at home is not excluded as a suitable treatment.
Dr Yap‑Weber also comments upon the beneficial impact of sports and other extra-curricular activities upon children. The doctor does not comment upon specific impacts upon any one or more of the Ranchigoda children, nor does he speak to the consequence of the withdrawal, on a temporary basis only, of extra-curricular activities. On this issue Dr Yap‑Weber’s evidence want for relevance.
It will be observed that, for the sake of argument, I have treated the letters from Mr Kumar and Dr Yap‑Weber as though each were evidence admissible in the proceedings. Neither is an affidavit and neither is strictly admissible in the proceedings. I note that no objection was taken by behalf of the chief executive by Ms O’Pray to the inclusion of the material as an exhibit. I further note that I have accorded each of the letters very low weight.
It does not appear to be pleaded by the applicant that the suspension of her license will prevent her children from attending their present schools. Rather, the applicant seeks to connect extra-curricular activities (occurring Mondays to Fridays inclusive) to school transport arrangements. To the extent that there is a connection based upon logistics and convenience I accept that it is so because in my experience that is the way these things develop in most households. That is not to say that transport for and thus extra-curricular activities themselves, or such of them that cannot logistically be achieved, cannot be excised from family arrangements where other circumstances dictate. The consideration of so doing has not been traversed or adequately traversed in the applicant’s evidential material.
On the particular matters that are advanced as prima facie a severe and unusual hardship I am not persuaded on the balance of probabilities that any constitutes such hardship. Nor do I consider that each of the sources of inconvenience or hardship aggregated into a whole constitute severe and unusual hardship to the applicant or to any one or more members of her family.
Alleviation or banishment of hardship
Earlier in these reasons I dealt with the issue of whether the applicant’s inability to drive to her work might be considered to be severe and unusual hardship.
During oral argument on that point and in a discussion with counsel about public transport arrangements other than mass public transport, i.e. taxis, limousines or other car and driver arrangements, the applicant appeared to consider and declined to give and declined an opportunity of an adjournment to provide financial information going to either financial hardship arising from an inability to drive to work, or going to whether non-mass public transport options were feasible or ought be considered. In substance, if not in terms, Counsel for the applicant submitted it was unnecessary for the applicant to address those matters. Lest it be unclear I should note that I have accepted that the transport logistics for the applicant are as set out in her affidavit and the documents exhibited thereto.
It seems to me that such information might be highly relevant to the court’s assessment of whether severe and unusual hardship result or whether merely unusual hardship results. A family with limited financial resources might find the expenditure of even a modest sum on taxis as an impost their budget is unable to bear without severe hardship. At the other end of the spectrum another family may not need to spend a particularly significant portion of their resources to replace the driving services that are being temporarily suspended. In which of these categories or where along the spectrum the applicant fits is unknown.
Some of the evidence advanced admits an inference that the Ranchogodas are not in the lowest socio-economic group: They have four children at private school; Sean Ranchigoda has what appears to be an executive position in a property development company and an unspecified position in another property development company; the applicant works part-time in SLC; and has the financial resources to attend a gym five days per week on two of which she avails herself of the services of a personal trainer.
The evidence as it stands does not permit me to form a view either way. Evidence that further financial expenditure would have a very significant impact would have gone quite some way to demonstrating severe hardship.
The onus is upon the applicant to show the hardship relied upon in support of the application and as the evidence stands it is not sufficient for the court to reach the required level of satisfaction that the family is unable to avoid severe and unusual hardship through means at its own disposal, ipso facto that the suspension would, in the particular circumstances of the applicant and her family, cause severe and unusual hardship.
For these reasons the application is dismissed.
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