Registrar of Motor Vehicles v Fleming

[1989] TASSC 47

Serial No 44/1989
List "A"

CITATION:              Registrar of Motor Vehicles v Fleming [1989] TASSC 47; A44/1989

PARTIES:  REGISTRAR OF MOTOR VEHICLES
  v
  FLEMING

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 79/1989
DELIVERED ON:  12 September 1989
JUDGMENT OF:  Underwood J

Judgment Number:  A44/1989
Number of paragraphs:  24

Serial No 44/1989
File No LCA 79/1989

REGISTRAR OF MOTOR VEHICLES v FLEMING

REASONS FOR JUDGMENT  UNDERWOOD J

12 September 1989

1. The first ground of appeal on this motion to review raises the question of the jurisdiction of a magistrate to entertain an application brought pursuant to the Traffic Act 1925, s36(1A).

1. The respondent was the holder of a driver's licence issued or renewed by the Registrar of Motor Vehicles pursuant to the Traffic (Miscellaneous) Regulations 1968. It authorised the respondent to drive a motor vehicle in Tasmania. On 23 November 1988 the respondent was convicted in the Werribee Magistrates' Court of driving under the influence of liquor and driving with a blood alcohol concentration in excess of the prescribed minimum. In addition to the imposition of a pecuniary penalty the respondent was ordered disqualified from holding or obtaining a driver's licence for a period of three years. At the time of the commission of the offence which gave rise to that conviction and order, the respondent was driving in Victoria on the authority of his Tasmanian licence, presumably in accordance with a statutory provision in that State equivalent to the Traffic (Miscellaneous) Regulations, reg42.

1. The order of disqualification made in the Victorian court did not affect the authority to drive a motor vehicle in this State which the respondent had by virtue of his licence issued pursuant to the provisions of the Traffic Act (Tasmania) and the regulations made thereunder.

1. Following the respondent's return to Tasmania, the Registrar of Motor Vehicles, exercising the power given him by reg41(1), cancelled his driver's licence. That regulation provides:

"The Registrar may, in his discretion, cancel a driver's licence if the person to whom it is issued –

(a)is or has been convicted (whether in this State or elsewhere) of an offence which, in the opinion of the Registrar, renders that person unfit to hold the licence;

(b)       ...

(c)       ...

(d)       ..."

1. The respondent thereupon made an application to a magistrate for an order authorising the issue of a restricted licence. He relied upon the provisions of the Traffic Act, s36(1A) which provides:

"Where a person is disqualified elsewhere than in this State for holding or obtaining a licence or other authority authorising him to drive a motor vehicle, he may apply for an order to be made under this section in like manner as if that disqualification had arisen from an offence under this Act."

1. Counsel for the applicant both in the court below and on this motion submitted that s36(1A) did not authorise the making of an order pursuant to s36(1) where a driver's licence has been cancelled by the Registrar of Motor Vehicles exercising the power given him by reg41(1). It was submitted that in such circumstances the only recourse is an appeal from the cancellation to a magistrate as is provided by reg59. That submission is correct. On the hearing of such an appeal a magistrate has no power to authorise the issue of a licence subject to any restrictions other than those prescribed by the regulations with respect to the type or class of motor vehicle. However, the learned magistrate ruled that, on a proper construction of s36(1A), he had jurisdiction to make an order for the issue of a restricted licence as the applicant was "a person disqualified elsewhere than in this State for holding or obtaining a licence ... to drive a motor vehicle". In my opinion the learned magistrate's ruling was also correct.

1. Section 36(1) authorises the making of an order if there has been a disqualification from obtaining or holding a driver's licence:

(1)on conviction for an offence under the Traffic Act,

(2)pursuant to s43E of that Act, or

(3)by virtue of the Road Safety (Alcohol & Drugs) Act, 1970, s19, on conviction for an offence under that Act.

1. A driver's licence means "a licence issued under Part II authorising the holder thereof to drive a motor vehicle"; Traffic Act, s3(1). Therefore, s36(1) empowers the making of an order authorising the issue of a licence to drive in Tasmania subject to the restrictions specified in the order. Section 36(1A) gives a magistrate jurisdiction to make such an order where a person "is disqualified elsewhere than in this State from holding or obtaining a licence or other authority to drive a motor vehicle". No doubt Parliament was concerned only with driving in Tasmania. See Acts Interpretation Act 1931, s27(b).

1. Section 36(1A) confers jurisdiction in those cases where an order made outside Tasmania, disqualifies a person from holding or obtaining a licence or other authority pursuant to which he or she is authorised to drive in Tasmania. Regulation 42(1) authorises the holder of a licence or other authority to drive a motor vehicle issued elsewhere than in this State, to drive in Tasmania subject to certain prescribed conditions. Sub–reg(2) provides that during any period of disqualification or suspension of that licence or authority, the holder shall be deemed to be not authorised to drive in Tasmania.

1. Authority to drive in Tasmania is conferred upon the holder of a driver's licence issued under the Traffic Act (Tas) and, subject to the restrictions imposed by reg42, on the holder of a licence or authority to drive other than in Tasmania issued elsewhere than in this State.

1. At the time the order for disqualification was made in the Werribee Magistrates' Court, the respondent was not the holder of a Victorian driver's licence. The effect of the order was to disqualify him from becoming the holder of such a licence for a period of three years. By virtue of reg42, the holder of a Victorian driver's licence is authorised, subject to the restrictions imposed by that regulation, to drive in Tasmania. Thus, the respondent was a person disqualified elsewhere than in this State from obtaining a driver's licence which would have authorised him to drive in this State and the learned magistrate had jurisdiction to make an order under s36(1). With respect to the issue of jurisdiction, the fact that at the time the order was made the respondent was the holder of a current Tasmanian driver's licence is irrelevant. No doubt until that licence was cancelled no magistrate could be satisfied, as is required by s36(4)(a), that the period of disqualification will impose or is imposing severe and unusual hardship. s36(1A) is concerned with an order of disqualification from holding or obtaining an authority to drive in this State which has been made outside Tasmania. The respondent was the subject of such an order. Whether or not he was also the holder of any other licence or authority to drive in this State is relevant to the exercise of the discretion but not to the extent of the jurisdiction to make an order under s36(1).

1. The other two grounds of appeal are that:

"(1)The learned magistrate erred in fact and in law in holding that the disqualification imposed on him in the Werribee Magistrates' Court in Victoria on 23 November 1988 for driving in the State of Victoria imposed severe and unusual hardship on the applicant and his dependants.

(2)That the learned magistrate erred in fact and in law in holding that the making of an order authorising the granting of a driver's licence to the respondent would not be contrary to the public interest."

1. The making of an order authorising the grant of a restricted licence involves the exercise of a judicial discretion. See Manning v Foster [1971] Tas SR (NC) 19, Burbury CJ 87/71; Strickland v Parsons, Everett J 57/81; Registrar of Motor Vehicles v Eeles [1984] Tas R 24. The exercise of the discretion is fettered by the provisions of the Traffic Act, s36(4) and additionally, in cases where the application arises as a consequence of a conviction for a breach of the Road Safety (Alcohol & Drugs) Act 1970, by the provisions of s19 of that Act.

1. Insofar as this motion seeks to review the exercise of the learned magistrate's discretion it falls to be determined in accordance with the principles generally applicable to the review of an exercise of judicial discretion. These principles are well known and need no repetition. See Cranssen v The King (1936) 55 CLR 509 at pp519–520; Harris v The Queen (1954) 90 CLR 652; Rv Tait & Anor (1976) 46 FLR 386 at pp387–388. Insofar as the motion seeks to review findings of fact this Court will only set aside such findings if there was no evidence upon which a magistrate acting reasonably could reach the conclusion he did. See Taylor v Armour& Co Pty Ltd [1962] VR 346 at p351; Richardson v Shipp [1970] Tas SR 105 at pp117–118; Davidson v Registrar of Motor Vehicles, Cox J 389.

1. The applicant was aged 34 years, and married with three children. His wife and children were all dependent on him. He was a steel fixer by occupation. In 1987 he moved to Melbourne where he worked for a period of six months until September 1987 when he was involved in a motor vehicle accident. By reason of the serious injuries sustained in the accident he was off work until February 1988. Although the respondent then resumed work he ceased again in July 1988 having found that he had not then sufficiently recovered from his injuries. He remained off work until about December 1988. The respondent returned to Tasmania towards the end of that year and resumed work on his own account as a steel fixer early in 1989. The application for an order under s36(1) was filed on 18 April 1989 and came on for hearing on 27 April. At that time the respondent was working at various sites, principally in the Hobart area. He had just received confirmation that he had secured a contract with the Hydro–Electric Commission fixing steel at Tullah.

1. With respect to his work in and around Hobart, the respondent said that he needed a vehicle to transport him and his tools and equipment from site to site and to travel for the purpose of giving quotations for work for which he wished to tender. He said that since the Registrar had cancelled his licence he had employed a person to drive him. In his evidence–in–chief he said that he paid this person about $200 per week out of his gross weekly earnings of $350. However, in cross–examination, the respondent disclosed that the number of days each week that he employed this person varied and that on some jobs he was also employed to work as a labourer. The hearing of the application was adjourned on 27 April and resumed on 12 July 1989. During the intervening period the respondent had started work on the Hydro–Electric Commission contract at Tullah. The respondent employed a number of men on this job. Each Sunday, all the men drove to Tullah in the respondent's car. The respondent said that he paid one of them $100 to drive the car. However, he conceded that he would have to pay the other men had they wanted to take their own cars to Tullah. The learned magistrate asked him:

"Q:Which is the cheaper, to pay the fellow to drive you or to pay their mileage?

A:Well, if they all decided they wanted to take their own car, it'd work out a lot dearer than me paying him. So it's worked out cheaper I presume, me paying him to drive all of us, yes, I wouldn't argue with it."

1. The respondent gave no evidence about the impact of the payment to an employee to drive the car to Tullah on his net profit from the Hydro–Electric Commission contract. The only evidence about this matter was the respondent's statement that he expected to receive something in the order of $20,000 from the contract but whether that was gross or net and the period it covered, was not disclosed.

1. With respect to the evidence on the issue of severe and unusual hardship the learned magistrate said:

"[The applicant is] a principal of a steel fixing partnership and he has a contract to be completed with the Hydro–Electric Commission which is worth some large sum of money and the hardship in respect of that that he's pointed to is that he's had to pay a man, one of his employees, to drive him and accordingly his other, two at least, other employees to the West Coast for that purpose on a Sunday, which costs somewhere around about $100 a week. Of course, by doing that ... it's cheaper for him than paying those men travelling allowance each, so he's providing the transport. The only expense is that he could provide – if he had the licence – it wouldn't cost him the $100 a week to ... drive his employees and he says that that is a severe and unusual hardship. Well that's $5,000 a year which he's paying out – he has been for some time. That contract is nearly ended. The other matter is that he points to is that in the future, during the remainder of the period of the disqualification which is going to run until 1991, in November, that's two years, over two years, he'll be unable to carry out his duties efficiently because he will be unable to drive for the necessary attending to work sites and giving quotations as required, and again, obviously, the only way this can be done is by employing a driver for him. It seems to me that's clearly made out."

1. The reference to $5,000 per annum is clearly an error for, as the learned magistrate observed, the contract at Tullah was almost complete.

1. The meaning of severe and unusual hardship in s36(4)(a) has been considered by this Court on a number of occasions. In Strickland v Parsons (supra) Everett J said at p7:

"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 invariably 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 a rigorous quality – if not extreme, then at least marked (Shorter Oxford English Dictionary, Vol2, pp1857–8). 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."

1. In the present case the evidence falls into the category referred to by Everett J as vague, imprecise and lacking definite and positive qualities. With respect to the Tullah contract there was no evidence which would warrant the inference that the disqualification from obtaining a licence imposed either severe or unusual hardship. With respect to work in and around Hobart, although the respondent's evidence was that he employed a driver he conceded that on an unspecified number of occasions the same man was employed by him on site as a labourer. The state of the evidence was such that no inference could be drawn that any extra costs arising solely by reason of the need to employ a driver were such as to impose severe and unusual hardship on the respondent. With respect to the other aspect of the respondent's work, travelling about the State to prepare quotations, the evidence was also vague and imprecise.

"Q:And so what would the main duties be in the Hobart area apart from working on site?

A:Oh well I have to go – I have to price jobs.

Q:Alright. So what travel would you be required to do in order to do that?

A:Well I've got to travel, say, from Glenorchy to Kingston and that and every so often we go to Devonport to price jobs up there, or Launceston.

Q:Yes and how frequently would you be required to do that type of work?

A:What to travel up north and price jobs?

Q:Yes and around the place.

A:I don't know, probably once a month, you know, six weeks."

1. In The Registrar of Motor Vehicles v Eeles (supra) Neasey J referred to Strickland v Parsons with approval and said at p.26 with respect to the words "severe and unusual":

"[I] would express it in my own way as meaning, in the context, 'of unusual degree', so that the expression 'severe and unusual' means, 'severe and of unusual degree'. That is to say, the expression 'severe and unusual hardship' is intended by the legislature to be a compendious expression in which the two parts are complimentary. It follows, in my view, that some or all 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'."

See also Davidson v Registrar of Motor Vehicles (supra).

1. With great respect to the learned magistrate I have reached the conclusion that his finding that the order of disqualification will impose or is imposing severe and unusual hardship is in error. Mindful of the question before this Court I have nonetheless reached the view that the evidence was not sufficient to satisfy the stringent test referred to above and that the finding of the learned magistrate was one which was not reasonably open on the evidence.

1. It is unnecessary to consider the remaining ground of the motion to review. The motion to review is allowed, the order authorising the issue of a restricted licence quashed and the application for that order is dismissed.