Smith-Junior v Chief Executive Officer of the Department of Transport - [2022] WADC 56

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   SMITH-JUNIOR -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT [2022] WADC 56
CORAM:   COMMISSIONER COLLINS
HEARD:   23 MAY 2022 AND WRITTEN SUBMISSIONS 27 MAY & 2 JUNE 2022
DELIVERED          :   8 JUNE 2022
FILE NO/S:   CIVO 39 of 2022
BETWEEN:   GORDON SMITH-JUNIOR
Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT
Respondent

Catchwords:

Motor vehicles - Life disqualification - Application for removal of disqualification - Road Traffic Act 1974 s 49(8) - Road Traffic (Authorisation to Drive) Act 2008 s 24 - Turns on own facts

Motor vehicles - Statutory construction - Road Traffic Act 1974 s 49(8) - Road Traffic (Authorisation to Drive) Act 2008 s 24

Legislation:

Road Traffic (Authorisation to Drive) Act 2008 (WA), s 24
Road Traffic Act 1974 (WA), s 49(8)

Result:

Application granted

Representation:

Counsel:

Applicant	:	Ms B M Lonnie
Respondent	:	Mr C H Warner

Solicitors:

Applicant	:	Legal Aid WA
Respondent	:	Department Of Transport - Legal And Legislative Services

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

Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97
Davis v Commissioner of Police (WA) (Unreported, WASCA, Library 8547, 12 October 1990); (1990) 12 MVR 297
Mohammadi v Bethune [2018] WASCA 98

COMMISSIONER COLLINS:

Introduction

Gordon Smith-Junior (Applicant) has applied for an order removing his permanent disqualification from holding or obtaining a driver's licence. The application was made pursuant to s 24(1) of the Road Traffic (Authorisation to Drive) Act 2008 (WA) (RTAD Act) (Application) and was filed on 2 March 2022. In support of the Application, the Applicant filed a sworn affidavit dated 23 February 2022 (Affidavit).
I presided over the hearing of the Application on 23 May 2022. The Applicant was represented by counsel and attended from Broome, Western Australia, via video conference. Counsel for the Chief Executive Officer of the Department of Transport (Respondent) attended the hearing of the Application in person but did not oppose it.
In addition to submissions about the Application, the Applicant and Respondent both made brief oral submissions about the proper construction of s 24 of the RTAD Act, and provided written submissions (27 May and 2 June 2022 respectively).
For the reasons that follow, I am satisfied that an order should be made removing the Applicant's permanent disqualification from holding and obtaining a driver's licence. That order should be made, effective from today's date, 8 June 2022.

Legal principles in relation to removal of disqualification criteria

The Application has been made under s 24 of the RTAD Act. That provision is, relevantly, in the following terms:
24Removal of disqualification
(1)If under this or any other written law a person is disqualified by a court from holding or obtaining a driver's licence for a period exceeding 3 years, that person may apply to a court for an order removing the disqualification.
(2)An application under subsection (1) is to be made -
(a)if the disqualification was imposed by the Supreme Court, to the Supreme Court; or
(b)in any other case, to the District Court.
(3)No application may be made under subsection (1) for the removal of a disqualification before the expiration of whichever is relevant of the following periods from the date on which the disqualification took effect, that is to say -
(a)if the disqualification is for not more than 6 years: 3 years;
(b)if the disqualification is for more than 6 years but not more than 20 years: one‑half of the period of the disqualification;
(c)if the disqualification is for more than 20 years: 10 years.
(4)For the purposes of subsection (3) the permanent disqualification of a person from holding or obtaining a driver's licence is to be regarded as a disqualification for more than 20 years.
(5)The court may if it thinks proper having 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,
either make an order removing the disqualification from the day specified in the order or refuse the application.
The Application is not premature. The Applicant has served about 20 years of his permanent disqualification. During that period, the Applicant was not licensed to drive a motor vehicle and, save for the two instances referred to below, did not drive a motor vehicle. In accordance with s 24(3) and the deeming provision in s 24(4) of the RTAD Act, the Applicant could have applied to have his disqualification removed after the expiry of 10 years.
The Applicant has not previously made an application under s 24(1) of the RTAD Act.
Set out below are the s 24(5) criteria which a court must consider, together with the Applicant's evidence and my findings and observations. I observe here that some of the criteria overlap, as does some of the evidence.

The nature of the offence or offences giving rise to the disqualification

The Applicant was permanently disqualified from holding or obtaining a driver's licence on 13 February 2002 at Derby Court of Petty Sessions following a third offence of driving a motor vehicle under the influence of alcohol, an offence under s 63 of the Road Traffic Act1974 (WA) (RTA).
The Applicant's earlier two drink driving convictions occurred in January and May 1994.

The circumstances of the case

By way of background, the Applicant gave evidence that when he was a younger man, he used to drink beer in large quantities and once intoxicated, he would make 'stupid decisions to drive' and otherwise behave in a 'disorderly, and sometimes aggressive manner'.
The Applicant provided a copy of his Western Australian criminal and traffic record dated 8 September 2021. He also provided a police statement of material facts relating to road traffic offences the Applicant committed in Derby on 4 June 2021.
The Applicant's criminal and traffic record indicates that between 1991 and 2001, the Applicant was charged with various offences involving disorderly conduct, fighting and traffic related offences including driving without a licence. He was also disqualified from holding a driver's licence for driving a motor vehicle under the influence of alcohol on two occasions in 1994. I observe here, that at the time of these offences, the Applicant was in his twenties.
As set out above, the Applicant was permanently disqualified for driving a motor vehicle under the influence of alcohol in 2002. Since then, the Applicant has been charged with offences in 2006 and 2021, which I expand on further below.
By reason of these two more recent offences, should the court make an order removing the permanent disqualification, then the Applicant has outstanding cumulative disqualifications of 18 months to serve. In essence, if I were to order the removal of the permanent disqualification, the Applicant remains disqualified from driving a motor vehicle for a period of 18 months after the date of the order (leaving aside any application that may be made for an extraordinary driver's licence).

The character of the Applicant

In his Affidavit, the Applicant gave evidence about his background and personal circumstances. As already set out above, the Respondent did not oppose the Application. Neither did the Respondent object to the Applicant's Affidavit.
I have broadly summarised the Applicant's evidence on this issue below.
The Applicant was born in Derby, Western Australia on 14 January 1972 and grew up in the Kimberley, Western Australia. At the date of the Application, the Applicant is just over 50 years of age. He lives in Derby. He has five children and eight grandchildren and they live in various locations across the Kimberley.
The Applicant gave evidence to the effect that he holds several positions in various Aboriginal organisations across the Kimberley and is expected to attend meetings in Broome, Fitzroy Crossing and Halls Creek. A driver's licence would assist him to attend those meetings by driving himself as opposed to relying on family or friends for lifts. In this regard, the Applicant gave evidence that Derby is a small remote town with no public transport save for one or two taxis that work part-time. The Applicant also gave evidence about driving to Broome so that he could use the airport there for the purposes of travelling to meetings as part of his role as a community leader and cultural advisor.
In his Affidavit, the Applicant gave evidence to the effect that he holds the following positions:
(a)adviser to the Board of Wilinggin Aboriginal Corporation based in Derby;
(b)the vice-chair of the Kimberley Aboriginal Law and Cultural Centre based in Fitzroy Crossing, in the north-west of Western Australia;
(c)a director of the Kimberley Language Resource Centre based in Halls Creek, in the north-west of Western Australia;
(d)vice-chair of Martuwarra Fitzroy River Council in Fitzroy Crossing and Broome; and
(e)member of the Kimberley Land Council based in Broome.
The Applicant's evidence was to the effect that he was regularly required to travel and meet with various officials and other stakeholders, including various government officials.
Annexed to the Applicant's Affidavit were personal references from:
(a)Ian Perdrisat, director of operations, Madjulla Inc, dated 18 September 2021;
(b)Paul Lane, general manager, Wilinggin Aboriginal Corporation, dated 4 January 2022; and
(c)Dr Anne Poelana, chair, Martuwarra Fitzroy River Council, dated 17 September 2021.
The character references, together with the Applicant's work history and membership of various organisations as set out in his Affidavit, satisfy me that the Applicant has generally been a person of good character since he gave up alcohol for good after his conviction for driving under the influence of alcohol in 2002.

The conduct of the Applicant subsequent to being disqualified

The Applicant gave evidence to the effect that he stopped drinking alcohol and smoking cigarettes after he was convicted of driving under the influence in 2002. In his Affidavit, he said that the offence in 2002, being his third driving under the influence offence, was a 'real wake-up call' for him. He also said that he had changed his ways for good. I observe here, that in 2002, the applicant was 30 years of age. The Applicant is now aged 50.
In support of his Application, the Applicant provided the results of a liver function test, together with a letter from his doctor, Dr Kelvin Oo. Although his liver was described as 'enlarged', Dr Oo opined that it was unlikely to be alcohol related.
The Applicant gave evidence to the effect that he was deeply motivated to be a good role model for his community and the younger generation (including his eight grandchildren). He has matured considerably since 2002.
In April 2006, the Applicant was convicted of driving without a licence at the Wyndham Magistrates Court, being an offence under s 49(1)(a) and s 49(2)(a) of the RTA. In sentencing, the court imposed, amongst others, a nine-month disqualification from holding or obtaining a driver's licence. The Applicant gave evidence that he was planning his daughter's 18^th birthday which was being held at the Wyndham Shire Hall. Ultimately the party began to run out of supplies and not wanting to ruin his daughter's special occasion, he drove and purchased alcohol and was caught by police driving without a licence. I observe here that that offence occurred nearly 16 years ago.
In June 2021, the Applicant was convicted of driving an unlicensed motor vehicle and driving without a licence at the Derby Magistrates Court, the latter being an offence under s 49(1)(a) and s 49(3)(c) of the RTA. The Applicant was given a further nine-month disqualification from holding or obtaining a driver's licence. The Applicant gave evidence to the effect that on the day of the offence, he took the car to go looking for his young grandchildren, of which he has eight, living at his house. He gave evidence to the effect that their parents were out partying and drinking and when the grandchildren did not come home before dark, he decided to drive around the town and look for them at night. He made this decision in the context where there had been many incidents of children stealing cars, speeding and committing other crimes around town and he was concerned that his grandchildren would get caught up in those activities.
He also gave evidence about a neighbour's young daughter who was killed in a car accident in town the week before, which made him acutely aware of the risks for young children out on the streets at night. In effect, these exceptional circumstances prompted him to drive in search of his young grandchildren.
The Applicant's last drink driving offence was in 2002, when he was 30 years old. The Applicant is now aged 50.
Although the Applicant was charged with motor vehicle related offences in 2006 and 2021, having regard to the broader circumstances of the Applicant's conduct since his disqualification in 2002, I am satisfied that there is nothing which gives rise to a concern about the Applicant's conduct since he was disqualified in 2002.

The safety of the public generally

The Applicant gave evidence to the effect that:
(a)he does not drink alcohol at all now;
(b)he had been clean and sober for the past 17 years. I note that the Applicant gave evidence that he stopped drinking alcohol after he was convicted of driving under the influence in 2002, being 20 years ago; however, nothing turns on this;
(c)he has never used drugs;
(d)he prides himself of being of good character and being a respected member of the community; and
(e)he has not been involved in a motor vehicle accident as a driver or in the capacity as a passenger.
I observe here that the Applicant gave evidence that he has lost family members to drink driving accidents and that he understood the serious consequences that may flow from drinking alcohol and driving a motor vehicle. In this same respect, the Applicant gave evidence that he wants to keep his reputation as a strong role model for his family and for his community and therefore would abide by the law and the road rules.
Given the Applicant's traffic record over the last 20 years, and his conduct more generally since his disqualification in 2002, I do not consider him to be a risk to the public safety when driving a motor vehicle.

Respondent's submissions in response to the Application

I briefly set out below in summary form the Respondent's main submissions.
The Respondent did not oppose the Application.
The Respondent submitted that should the court make an order removing the disqualification, then by reason of s 49(8) of the RTA, because of the Applicant's two prior convictions (referred to above), the Applicant would be subject to a period of 18 months' disqualification, yet to be served.
I observe here that the Applicant's counsel did not disagree with this submission. In effect, the Applicant accepted that should the court make an order removing the disqualification, then the Applicant would still have outstanding cumulative disqualifications of 18 months to serve.
The Respondent's counsel submitted that there should be no order as to costs given an agreement reached with Legal Aid. As there was no dispute about this, the matter proceeded on this basis.

Section 24(5) - meaning of the 'day specified in the order'

Overview

Section 24(5) of the RTAD Act provides that if the court thinks it proper, having regard to the matters in subparagraphs (a) to (e), the court may either make an order 'removing the disqualification from the day specified in the order or refuse the application'.
I asked the parties whether 'the day specified in the order' needed to be the day of the court's judgment, or whether it could be an earlier date. Counsel for the parties made brief oral submissions, which they supplemented with written submissions. I address each of these below.

Applicant's submissions

I set out below the Applicant's submissions in summary form.
First, the words in s 24(5) of the RTAD Act should be given their natural meaning. They are not ambiguous. In effect, 'the day specified in the order' could be an earlier date.
Secondly, there is nothing in the balance of the RTAD Act that expressly prohibits 'the day specified in the order' from being earlier than the day of the court's judgment.
Thirdly, as a matter of practice, 'the day specified in the order' is often a date later than the court's judgment - or in the language of the Applicant's submissions, post-dated. One reason for this, is to avoid practical hardship that might arise if the holder of the licence is the holder of an extraordinary licence. This is expanded further below.
Fourthly, the Applicant submitted that if 'the day specified in the order' was the date that the Applicant filed its Application, being 2 March 2022, that would not be inconsistent with the statutory purpose of the RTAD Act, properly understood. In this respect, the fact that the hearing of the application occurs several weeks or months after the application is lodged is not something attributable to the applicant. Likewise the time taken by the court to deliver its decision and reasons is not attributable to the applicant.
Fifthly, the Applicant submitted that 'the day specified in the order' could be a date prior to the filing of the Application. The Applicant did not develop this submission in any detail. I understood the argument to arise as part of the statutory construction of the relevant provisions. The Applicant also submitted that as a matter of practice, the Applicant met the relevant criteria if 'the day specified in the order' was a date prior to the filing of the Application.
In the present case, the Applicant submitted that there were exceptional facts which existed to justify 'the day specified in the order' being made a date earlier than the date of the Application. The submission listed numerous matters in this regard. The Applicant also provided submissions to explain the Applicant's delay in making an application under s 24(3)(c) of the RTAD Act, which at law could have been 10 years earlier.
I observe here that parts of the Applicant's submission relied on evidence that was not before the court at the time of the Application. Because I have formed the view that s 24(5) of the RTAD Act should be interpreted consistently with the Respondent's construction, it is not necessary for me to address the evidentiary issues raised by the Applicant's submissions.
Finally, the parties' counsel agreed a date by which they would submit their written submissions. The Applicant's counsel provided her written submissions after that date. The Respondent's counsel raised the issue in correspondence. In responsive correspondence, the Applicant's counsel apologised for the delay and referred to work and personal reasons for the delay. I am satisfied with the explanation given; the delay was short.

Respondent's submissions

The Respondent's submissions can be broadly summarised as follows.
First, the Respondent submitted that, in effect, to specify a date in the court order that was prior to the time when the court was satisfied that the applicant had discharged its onus under s 24(5) of the RTAD Act, would undermine the operation of the permanent disqualification and subvert the cumulative effect of the punishment provided for in s 49 of the RTA.

Secondly, the Respondent submitted that, in effect, what was sought was to 'antedate' an order of the court.
The Respondent referred to Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97 (Centurion) where the Western Australian Court of Appeal considered O 42 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC). That rule provides:
(1)A judgment or order of the Court takes effect from the day of its date.
(2)Such judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders that it be dated as of some earlier or later day, in which case it shall be dated as of that other day.
The Respondent submitted that the power to 'antedate' an order should be exercised cautiously and only in exceptional circumstances, consistent with the Court of Appeal's decision and approach in Centurion [58].
I observe here that in Centurion, McLure JA (with whom Owen JA concurred; Buss JA agreed at [181], [183]) stated that the jurisdiction to antedate orders cannot be used to override the relevant statutory scheme in question.
Thirdly, the Respondent submitted that to antedate the order would undermine the punitive aspects of the cumulative disqualifications imposed on the Applicant.
Fourthly, the Respondent submitted that to antedate the order would, in a practical way, contravene s 49 of the RTA and s 24 of the RTAD Act by reducing the minimum period of mandatory disqualification and/or removing a period of disqualification that was not in excess of three years.

Disposition

It was common ground between the parties that the custom of the court was to specify the day the court grants such an application as the day in the order. The specified date serves a number of administrative purposes within the offices of the CEO. As a matter of practice, the administrative process ensures that the CEO's disqualification record is updated to correctly reflect the court order.
I was also informed that sometimes a prospective date is stipulated instead. This occurs where the applicant is the holder of an extraordinary driver's licence but not subject to any cumulative periods of disqualification. In effect, the prospective date is utilised to avoid the consequences of s 34 of the RTAD Act, which would terminate the extraordinary driver's licence upon the making of the order.
Against that background and the parties' submissions, I have formed the view that s 24(5) of the RTAD Act should be interpreted consistently with the Respondent's construction. My reasons for reaching this conclusion are as follows.
The meaning of 'the day specified in the order' in s 24(5) of the RTAD Act is a matter of statutory construction, which involves a question of law. The principles of statutory construction are well known and were recently summarised by the Western Australian Court of Appeal in Mohammadi v Bethune [2018] WASCA 98 [31] - [36]. They need not be repeated. I respectfully adopt those principles. Statutory construction requires attention to the text, context and purpose of the RTAD Act.
In the present case, the following matters tend to suggest that the phrase 'the day specified in the order' in s 24(5) of the RTAD Act should be read as the day of the court's judgment or a day in the future.
First, the phrase 'the day specified in the order' in s 24(5) of the RTAD Act should be given its plain and natural meaning, in the context of s 24(5) of the RTAD Act, and in the broader context of the RTAD Act. A meaning, divorced of its context, is wrong as a matter of principle.
Secondly, the context here involves consideration of other parts of the RTAD Act, including the balance of s 24 of the RTAD Act. It also extends to include the immediate statutory scheme - as well as the broader statutory scheme, including the RTA, and in particular, s 49 of the RTA. The RTAD Act and RTA are part of a broad statutory scheme with the statutory purpose of regulating the driving and use of vehicles.
Thirdly, if the phrase 'the day specified in the order' is interpreted to mean the day of the court's judgment or a day in the future, that interpretation gives effect to Parliament's intention, by preserving the stipulated time periods contained in s 24 of the RTAD Act and s 49 of the RTA. There is no reduction in the disqualification periods. And the punitive aspects of the disqualification are not reduced.
Fourthly, there is no textual support in the RTAD Act or the RTA which suggests that it was Parliament's intention that the time periods contained in the RTAD Act or the RTA could be reduced, which is the effect of the Applicant's construction. The Applicant did not suggest otherwise.
Fifthly, if 'the day specified in the order' was the date that the Applicant filed its Application, being 2 March 2022, that would, in my view, involve antedating an order of the court. That is because the court is being asked to give effect to a decision from a particular date in circumstances where it has not heard the application. In substance, the court is back dating the effect of its decision.
Antedating an order would seem to undermine an applicant's permanent disqualification and subvert the cumulative effect of the punishment provided for in s 49 of the RTA. That arises as a matter of the Applicant's construction. As to the proffered construction, in my view, it is unlikely that Parliament intended such an outcome. In effect, it is inconsistent with the statutory scheme. The problems with antedating apply equally if 'the day specified in the order' is the date of the hearing.
Similarly, specifying a date earlier than the day of the judgment would in my view, undermine s 49 of the RTA and s 24 of the RTAD Act for the reasons the Respondent gave.
Sixthly, specifying a date earlier than the day of the judgment would, in my view, create practical difficulties with determining whether an applicant had discharged the onus under s 24(5) of the RTAD Act and when that had occurred. One can readily see that the further away from the date of the judgment, the more difficulties that might arise. An example that might arise involves the evidence that might be led. For example, a referee's evidence of good character assumes that they know the person. If the date is taken back too far, that may not be the case.
Equally, procedural fairness dictates that a respondent ought to know the case it has to meet. Relevantly, a respondent ought to know from when an applicant had sought to discharge the onus it has under s 24(5) of the RTAD Act - whether that was from a date significantly earlier than the application, or the date of the application. This has obvious implications for the evidence that would/could be led in response and how a respondent might respond.
I observe here, that if an applicant is disqualified for a period greater than 10 years, as is the case here, that sufficiently disposes of the element of punishment in relation to that offence: see Davis v Commissioner of Police (WA) (Unreported, WASCA, Library 8547, 12 October 1990); (1990) 12 MVR 297, 301 Malcolm CJ, Wallace and Kennedy JJ. In the present case, that does not address the more recent cumulative disqualifications of 18 months which the Applicant has yet to serve.
Seventhly, because of the view I have formed as to the proper construction of s 24(5) of the RTAD Act, O 42 r 2 of the RSC is not applicable. In my view, consistent with the reasoning of McLure JA in Centurion, O 42 r 2 cannot be used to antedate orders to override the statutory scheme implemented by the RTAD Act and the RTA.

Conclusion

Having regard to the criteria contained in s 24 of the RTAD Act and having read and heard the parties' submissions, I am satisfied that an order should be made removing the Applicant's permanent driver's licence disqualification. That order should be made, effective from today's date, 8 June 2022.
I make an order removing the Applicant's disqualification from holding or obtaining a driver's licence. That order will be effective from today.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SZ
Associate to Commissioner Collins
7 JUNE 2022