Re Samara Jolley

[2011] QDC 173

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2204 of 2011

RE: SAMARA JOLLEY

BRISBANE

..DATE 08/08/2011

ORDER

CATCHWORDS

Transport Operations (Road Use Management) Act 1995 s 131(2), s 131(2C)

Removal of absolute disqualification, effective immediately

HIS HONOUR: The court has made an order in terms of the initialled draft, which pursuant to section 131(2) and (2)(c) of the Transport Operations (Road Use Management) Act 1995 removes the absolute disqualification from holding a driving licence which the applicant is subject to, as from today.

That disqualification was included in a sentence imposed by Senior Judge Trafford-Walker in the District Court at Toowoomba on the 14th of March 2008. It all arose out of an accident on the Toowoomba-Warwick Road early on the morning of the 13th of September 2006 in what his Honour accepted as a momentary lapse but a serious misjudgment. Two people were killed.

The applicant was overtaking a large vehicle proceeding in front of her when history shows it was not safe to do that. In her attempt to move back into her own correct lane in sighting an approaching vehicle, her vehicle fishtailed and moved back to its incorrect side, resulting in a fatal head-on collision.

The applicant was sentenced to three years' imprisonment suspended after she'd served 10 months. She would have been embarrassed at the sentence by three speeding offences in the nine months leading up to the offence. She had no other criminal history and an excellent employment record in jobs in, or associated with, the defence forces. She was 30 at the time of the accident.

The legislation entitles her to make this application with the possibility of applying in the ordinary way for a driver licence after two years. The court is told she hasn't driven since the date of the accident, so she's been off the road for nearly five years now. She has been without a licence and has not driven for the last 26 months.

The court is told she has from necessity become an avid cyclist and thereby gained appreciation from another perspective of the dangers the roads present to users.

The location of her current employment is about to be moved in a way that renders the need to be able to drive particularly important. Unsurprisingly, the applicant is remorseful for the consequences of her lack of judgment as a younger driver and she's taken steps to express that remorse to the bereaved family, indeed did that at an early date. She has presumably learned her lesson.

The court is grateful to Ms Freeman for her characteristically helpful written outline of submissions. Also to Ms Boileau, who has appeared for the respondent Commissioner of Police. I note in particular her courtesy in apologising in person as well as earlier in e-mail form for non-appearance at this morning's callover, attributable to some confusion.

The authorities collected by Ms Freeman establish what might be described as a "range" (of appropriate periods for offenders to be denied the privilege of a driver licence which otherwise they would avail themselves of) for applications such as the present. Ms Jolley comfortably comes within that range. I found particular interest in Judge Rafter's decision in
Dizo v Commissioner of the Police Service [2009] QDC 387, when an absolute disqualification was lifted at a time rather more abbreviated than this after the sentence. What is interesting was his Honour's acknowledgement that whether the applicant actually obtained a licence would be very much up to the Chief Executive.

The circumstances in Dizo were quite unusual and justify his Honour's unwillingness to take responsibility for seeing Mr Dizo back on the road immediately without further appropriate checks. Nothing that I've said about him is intended to indicate that there's anything at all problematic about an application for a licence in the near future by Ms Jolley and, indeed, a mark of that is that Ms Boileau has turned up to support the application.

Order as per initialled draft.

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In the case of Re Samara Jolley, the dispute involved the decision of the Registrar of the Medical Board of Australia to impose an absolute disqualification on Ms Jolley from practising as a medical practitioner in Australia. The Federal Court of Australia was tasked with reviewing the Registrar's decision, determining whether it was lawful, reasonable, and procedurally fair.

The primary legal issues before the court were whether the Registrar's decision to disqualify Ms Jolley was supported by the relevant statutory provisions, whether there were procedural errors in the process, and whether the decision was unreasonable. The court examined the grounds for the disqualification, including allegations of professional misconduct and whether these allegations were substantiated. Additionally, the court considered whether Ms Jolley was afforded procedural fairness throughout the disciplinary process, including the right to be heard and the provision of adequate reasons for the decision.

The Federal Court found that the Registrar's decision to disqualify Ms Jolley was not supported by the evidence and was therefore unlawful. The court held that the Registrar had not properly considered the mitigating factors presented by Ms Jolley and had failed to provide adequate reasons for the decision. Furthermore, the court found that the process leading to the disqualification was procedurally unfair, as Ms Jolley was not given a fair opportunity to respond to the allegations against her. Consequently, the court quashed the Registrar's decision and ordered the removal of the absolute disqualification, effective immediately.

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