Steers v Registrar of Motor Vehicles
[2000] TASSC 5
•18 February 2000
[2000] TASSC 5
CITATION: Steers v Registrar of Motor Vehicles [2000] TASSC 5
PARTIES: STEERS, Frank Lyle
v
REGISTRAR OF MOTOR VEHICLES
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 14/1999 BDR
DELIVERED ON: 18 February 2000
DELIVERED AT: Burnie
HEARING DATE: 3 February 2000
JUDGMENT OF: Cox CJ
CATCHWORDS:
Traffic Law - Licensing of drivers - Tasmania - Generally - Power of court to grant restrictive licence - Onus upon applicant to show grant not contrary to public interest - Desirability of presenting deterrent effect of disqualification.
Hayes v Peterson [1972] Tas SR 86; In re Stokman [1978] Tas SR (NC) 4, 17/1978; Driver v Darling 31/1991; Davies v Deverell [1992] 1 Tas R 214, applied.
Traffic Act 1925 (Tas), s36(4).
Aust Dig Traffic Law [25]
REPRESENTATION:
Counsel:
Applicant: M Dickenson
Respondent: L Lodge
Solicitors:
Applicant: McGrath & Co
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 5
Number of paragraphs: 18
Serial No 5/2000
File No LCA 14/1999 BDR
FRANK LYLE STEERS v REGISTRAR OF MOTOR VEHICLES
REASONS FOR JUDGMENT COX CJ
18 February 2000
This is an appeal against the refusal of a magistrate to grant the applicant a restricted licence in accordance with the Traffic Act 1925 ("the Act"), s36.
The applicant sought such a licence in consequence of his having been disqualified for holding or obtaining a licence to drive a motor vehicle for six months by virtue of the provisions of the Act, s43E(1), (4) and (4AA). These subsections provide that where a person accumulates during a three year period 12 or more demerit points in respect of prescribed driving offences and the date of the commission of the last offence is not later than three years after the end of a previous period of disqualification imposed under the Demerit Point System, the period of disqualification is six months. The period is three months where the points are accumulated in any three year period and there has been no previous such disqualification imposed and it is twelve months if the date of the commission of the last offence is not later than six years after the end of the previous period of disqualification and there has been yet a further period of disqualification imposed. The applicant had accumulated 13 demerit points in the period 22 February 1997 to 18 October 1999 by the acceptance of five infringement notices for the offence of speeding. The last four of these offences were for exceeding the speed limit by more than 15 kilometres per hour but less than 29 kilometres per hour, the first for exceeding the limit by less than 15 kilometres per hour. The applicant's record of convictions (including those deemed convictions by virtue of acceptance of infringement notices) prior to that period of time consisted of four for speeding between November 1988 and February 1992, after which he was disqualified for 90 days in consequence of amassing more than the then required number of points. This disqualification took effect from 30 April 1992 and he was granted a restricted licence on 21 May 1992. On 17 December 1992, he committed a further speeding offence and by July 1996, he had committed a further six speeding offences and was again disqualified for three months. In respect of his 16 convictions in 11 years, all save one involved exceeding a speed limit by more than 15 kilometres per hour.
The applicant was 60 years of age, had been driving extensively for 43 years, had no other convictions and had never been involved in a collision involving another motor vehicle. His occupation was that of a livestock agent and it was common ground that, a licence being essential to his employment, the disqualification would impose severe and unusual hardship upon him or his dependants. The order sought was to enable him to drive a motor car solely for the purposes of conducting duties and tasks as a livestock agent between the hours of 7.30am and 8.30pm Monday to Friday inclusive. The learned magistrate refused the application on the ground that he was not satisfied that its grant would not be contrary to the public interest.
The first ground of appeal is as follows:
"1That the learned Magistrate failed to properly exercise his discretion in finding that it was contrary to the public interest to grant the Applicant a Restricted Licence by failing to take into account and/or giving sufficient weight to:-
(a) the period for which the Applicant has held a Drivers licence;
(b) the Applicants extensive use of a motor vehicle over the past fourteen years;
(c) extenuating circumstances in relation to his prior convictions and disqualification;
(d) the nature and relative seriousness of his prior convictions;
(e) the fact that he has no prior convictions under the Road Safety (Alcohol and Drugs) Act;
(f) the fact that he has never been involved in a collision with another vehicle;
(g) that the Applicant has no prior convictions more serious than Traffic Infringements;
(h) his age;
(i) that he had never been refused a Restricted Licence previously;
(j) the punitive effect of the likely revocation of a restricted licence, had it been granted, in the event that the Applicant received a Traffic Infringement during the term of the restricted licence; and
(k) the restricted nature of the Orders sought by the Applicant."
It is true that the learned magistrate did not advert specifically to each of the above considerations in the course of delivering his reasons for refusing the application. The length of time the applicant had held a licence and his extensive use of a motor vehicle over the previous 14 years, together with full details of the offences he had committed, his age and the facts that he had not been involved in a collision with another motor vehicle and knew that a further infringement, while operating under a restricted licence, would lead to its revocation, were all before the learned magistrate, either in the written application or in the applicant's oral evidence. The fact that the applicant had not been refused a restricted licence previously was not relevant. The restricted nature of the orders sought was also before the Court, but in reality it did little to restrict his use of a motor vehicle, save on week-ends and for social purposes after working hours. The fact that the learned magistrate did not specifically traverse each consideration is insufficient reason to suppose he did not advert to them. The failure to give weight to relevant factors can often only be demonstrated by a result which is so unreasonable or plainly unjust, having regard to all the circumstances, that the Court can infer that in some way the Tribunal has erred and has failed to give proper weight to relevant factors in exercising its discretion. In the present case, having regard to the considerations I shall address when dealing with ground 3, I have no doubt that the learned magistrate, far from giving inadequate weight to these factors, quite rightly found them far out-weighted by considerations demonstrating that the grant of a restricted licence to the applicant would not be in the public interest.
By ground 2 of his notice to review, the applicant alleges that the learned magistrate failed to act and to determine the matter in accordance with the rules of natural justice by:
(a) failing to allow him to give evidence-in-chief;
(b) failing to allow his counsel to make submissions;
(c) rushing the hearing so as to unreasonably abbreviate it; and
(d) failing to provide sufficient or adequate reasons for his decision.
The last-mentioned matter of complaint was abandoned.
The transcript reveals that on the morning of the hearing, the learned magistrate was informed by the applicant's counsel that the applicant would be present at 10.50am and his employer at 11am. The learned magistrate asked if the application was opposed and was told that although it was, it was not likely to take "a terribly long time". The learned magistrate thereupon said, "I must leave here by no later than quarter to twelve". The prosecutor then indicated that he anticipated "only a few short questions on the public interest issue". The matter was then stood down while the learned magistrate presumably proceeded with other business and the transcript does not reveal when the hearing commenced, although the Court record bears a note "21.12.99 11.30am". Whether that indicated the start or conclusion of the proceedings is not apparent.
When the matter was called on, the applicant's counsel indicated that he would call the applicant and his employer and the learned magistrate said that if the sole issue was public interest, there was no need for the employer to give evidence and "we just need to perhaps have your client go into the witness box and swear to the truth of his application and be submitted for cross-examination as to public interest". The applicant was then called and sworn. His counsel led from him his name and other personal details and obtained confirmation that he had read the application. The learned magistrate then asked if it were true and correct, which he confirmed, save in respect of an inaccuracy in his second Christian name. The learned magistrate then said:
"Thank you. And your [sic] tendering the application. The application will be marked A1. Thank you. Well you are now submitting him to cross examination as to the point of public interest."
Counsel replied in the affirmative. The applicant was then cross-examined as to why he continued to speed, notwithstanding having twice been disqualified under the Demerit Point System for speeding offences. In substance, he claimed that he tended to fail to reduce his speed to the prescribed limit at some town boundaries, especially when he entered towns on a down hill approach. He conceded that because of the frequency of his driving on business, he was familiar with the town boundaries where the offences occurred. His counsel accepted the learned magistrate's invitation to "re-examine on any point". From re-examination it emerged that the second time he had been disqualified in 1996, he had not applied for a restricted licence because he had sick leave due and chose to have a necessary hip operation conducted at the time. No doubt he would have been unable to establish severe and unusual hardship had he applied. The learned magistrate was familiar with the contents of his application, as this explanation was contained in it and the learned magistrate is recorded as saying that he had noticed it there. The application is quite extensive, dealing not only with the question of hardship, but also advancing nine separate matters of fact and argument as to why it would not be contrary to the public interest to grant a restricted licence.
There is no substance in the complaint that the applicant was not allowed to give evidence-in-chief. The material contained in his application was before the learned magistrate and was sworn to in-chief. His counsel did not seek to adduce any further evidence from him before he was cross-examined and on the hearing of the appeal counsel acknowledged that there was no further material intended to be advanced in-chief. Although the learned magistrate proceeded to deal with the application and to give reasons for judgment at the conclusion of the evidence without inviting closing submissions from counsel for the applicant, the latter did not seek to address him. The application itself, in any event, contained not merely the facts relied upon by the applicant, but matters of argument as well.
Neither the Justices Act 1959 nor the Rules thereunder (No 104/1976) specifically grant a right of address to an applicant or his counsel in proceedings such as these. Rule 36 gives a defendant to a complaint of a simple offence the right to address the justices by way of opening his case when he has pleaded not guilty; but neither party is entitled to address the justices at the conclusion of the evidence without their leave. Rule 5, however, prescribes that "in matters not provided for by these rules, the practice of the Supreme Court should be followed". While it is the practice of the Supreme Court for the opportunity to be given to a party and his counsel to address at the conclusion of the evidence in any proceedings, there is no specific provision giving any right to address. However, as Zeeman J pointed out in Ridgeway v Hanlon A65/1994 at 2:
"There is no statute or rule which confers any right upon a party to proceedings in the Court of Requests to address the Commissioner at the close of the evidence. If there is any such right, it is to be found in the audi alteram partem rule. The content of that rule, insofar as it concerns administrative bodies, is the subject of much authority. There is little authority in relation to courts. Nevertheless, subject to any statutory provision to the contrary, it is axiomatic that in judicial proceedings the audi alteram partem (sic) will apply at its fullest. So applied, the rule requires notification of the proceedings and the issues, the right to representation, a full opportunity to see the evidence on the other side, to present evidence, to cross-examine witnesses, to make submissions as to the law and the facts and to a reasoned decision."
He cited Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, where the Court said in a joint judgment:
"The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board [1957] 2 QB 55, at p67, in these terms:
'There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.'
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility."
See also Escobar v Spindaleri (1986) 7 NSWLR 51.
Before considering whether the failure to invite an address from counsel who did not seek to make such an address involved any miscarriage of justice, I shall address the third matter of complaint, namely that the hearing was rushed. Beyond the fact that quite early in the morning (that is, before 10.50am when counsel said he anticipated that the applicant would arrive at the Court), the learned magistrate said he had to leave by no later than 11.45am, there is nothing to indicate that the Court or parties were under any pressure to conclude the hearing, still less that improper measures were taken to ensure that it was concluded by that time. The learned magistrate did not indicate that the application had to be resolved by then and did not address the question what should be done if the hearing was not concluded by that time. On the face of it, there is no reason to suppose that it would not have been adjourned part heard if time ran out. The course of accepting the sworn contents of the written application as the applicant's evidence-in-chief was a sensible course to adopt and the applicant could not have been disadvantaged by not adopting the course of regurgitating its contents by way of question and answer. This was particularly so as the basic facts were not in dispute. If the hearing was conducted with undue haste, an affidavit as to occurrences at the hearing which demonstrate that fact should have been filed. I find it impossible to draw any inference from the transcript and from the fact that counsel was not invited to address that this was the case.
All the above cases involved a denial of natural justice in the sense that the appellants had been denied (or effectively denied) the right to make an address or had been misled into not addressing a relevant issue by the trial judge indicating that he did not need to be addressed on that issue. In the present case, the applicant's counsel was not denied the right to make an address or misled in any way. I conclude, therefore, that there was no denial of natural justice, but in any event because the facts were not in dispute, the non-delivery of a closing address could not have given rise, in my view, to any miscarriage of justice. As the High Court said in Stead v State Government Insurance Commission (supra) at 145:
"… not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial."
While the issue here was not an abstract question of law but involved the exercise of a discretion, the facts before the learned magistrate were such as to require that discretion to be exercised in the way in which he did exercise it and further debate would have been futile. Even if it were properly still open to him to exercise it so as to grant the application and the loss of the opportunity to address did involve a miscarriage of justice, the proper course to adopt now would be for me to exercise the discretion afresh and I would have no hesitation in refusing a restricted licence.
The third ground of appeal was added during the hearing. It is as follows:
"3That the learned magistrate erred in law in following Driver v Darling and not following Hayes v Peterson in determining that it would be contrary to the public interest to grant the restricted licence (sic)."
In the course of delivering his reasons for decision, having expressed himself satisfied that severe and unusual hardship had been made out, the learned magistrate said:
"That is of course not an end to the matter, the court also has to be satisfied that it should exercise its discretion to alleviate that hardship and further it would not be contrary to the public interest. They really are to a large extent embracing in their application as if it is not in the public interest the court will not exercise its discretion in those circumstances but it does allow other factors to be taken into account. In considering contrary to the public interest I note the authority of DRIVER v DARLING Tasmanian Unreported Judgments No 31 of 1991 in fact Mr Justice Underwood in that particular case said that:
'maintenance of the general deterrent effect of license [sic] disqualification is plainly a primary intention of parliament in the absence of special circumstances it would be contrary to public interest not to give that intention full force of effect. The public interest would be defeated if the hardship of license disqualification is too readily mitigated by the making of an order authorising the granting of a restricted license that has the effect of restoring the license except for use on social occasions.'"
The learned magistrate then noted the number of convictions for speeding accumulated by the applicant during the previous 11 years, the two previous disqualifications, his extensive driving and his knowledge of the placement of signs in town areas. He found little mitigation in the claim that the car had sped up on a down hill approach to one town boundary and observed that speed can be controlled by brakes. The applicant having now been disqualified three times for the accumulation of convictions for speeding offences, the learned magistrate said that he was positively satisfied that it would be contrary to the public interest to grant the application.
In Hayes v Peterson [1972] Tas SR 86, Neasey J considered a similar provision to the Act, s36, namely the Road Safety (Alcohol and Drugs) Act 1970, s19. At 89 his Honour said:
"The court must be satisfied that the grant of a special licence would not be contrary to the public interest. What is the nature of the public interest involved? Having regard to the whole tenor of the Act (and to s 41 of the Traffic Act 1925, now repealed), I have no doubt the public interest to be considered primarily is that of protection of members of the public using the roads from the danger of impaired motor-vehicle-driving by persons who may be affected by alcohol or drugs. The social danger of such impaired driving needs no emphasis. The penalties provided for offences under the Act are clearly intended to be deterrent penalties. One obvious consideration in respect of whether a special licence should be granted to a driver who has offended under the Act, and has been disqualified from driving for a certain period, is whether if a special licence is granted that driver is likely to commit further offences under the Act. That is only one consideration. There are, no doubt, a number of others, and it would be unwise to try to enumerate them. The gravity of the offence for which disqualification was ordered, and the general circumstances in which the offence was committed would in my opinion ordinarily be matters to be taken into account. Most if not all of the matters to be considered in relation to the public interest would relate to the question whether the applicant would be likely to be a source of danger on the road whilst driving pursuant to a special licence."
This approach was followed by Chambers J in Webb v Robertson 13/1974 where a similar application was under review and by Green CJ in In re Stokman [1978] Tas SR (NC) 4, 17/1978, in respect of an application which had been brought under the Act, s36, with two qualifications, namely that the remarks in the last two cases were particularly directed towards applications arising out of drink/driving offences and that Neasey J's remarks did not purport to exhaustively enumerate all the considerations relevant when considering the issue of public interest. In that case, the learned Chief Justice declined to upset the dismissal of an application where the offences, in respect of which three months' disqualification was imposed, were of driving with a bald tyre and driving a vehicle without an adequate hand brake. Other convictions for offences committed in a 12 month period before those two offences were for similar infringements, failure to display "L" or "P" plates and other matters of a relatively minor nature. At 4 - 5 of the unreported judgment, Green CJ said:
"In considering for the purposes of s36 whether the issue of a licence would be contrary to the public interest, I agree that amongst the matters that a court should consider are the gravity of the offence giving rise to the disqualification, the circumstances surrounding the commission of that offence and the likelihood of whether, if granted a restricted licence, the applicant might commit further offences or be a danger to other road users. But in addition, I think that a court which is asked to make an order under s36 should have regard to the fact that the applicant has been disqualified by a court which in exercising its sentencing discretion was required to take into account all relevant circumstances and was required to assess the extent to which it was necessary to make orders having a special or general deterrent effect. There is a clear public interest in seeing that orders which are intended to operate as deterrents are given full force and effect and in my view, therefore, the possibility that the granting of an application under s36 might unduly reduce the punitive or deterrent effect of an order of disqualification would be relevant to the determination of the question of whether a court was satisfied that the issue of a restricted licence would not be contrary to the public interest. Thus one of the reasons why it would be appropriate for a court hearing an application for a restricted licence to have regard to the applicant's previous convictions would be so that the court would be able to see whether the applicant was a persistent offender who in the public interest it was especially necessary should be made the subject of orders having a deterrent effect. But in saying that, I am not suggesting that whenever a court hearing an application under s36 concludes that to issue a restricted licence would significantly reduce the punitive or deterrent effect of an order of disqualification the court should automatically refuse the application. That would largely defeat the purpose of s36."
Although his Honour laid some emphasis on the fact that the disqualification in Stokman's case had been imposed by a court as a matter of discretion, having regard to the circumstances of the particular offence then before it, I see no reason why his comments should not be equally applicable where Parliament has made disqualification mandatory where certain prescribed offences are committed within a limited period of time and where their commission after a previous period of disqualification dictates the duration of the period of disqualification. Indeed, the fact that Parliament has made such penalties mandatory gives added weight to the importance of deterrence as a factor (though certainly not the only one) in considering the public interest. As Zeeman J said in Davies v Deverell [1992] 1 Tas R 214 at 226, admittedly another drink/driving case:
"It has been established since In re Stokman [1978] Tas SR (NC) 4 (which has been followed in this Court on numerous occasions) that the maintenance of the full force and effect of orders of disqualification intended to have deterrent effect is a relevant consideration in relation to the public interest in this context. The clear legislative intent evinced by the Act is to treat the driving of motor vehicles by persons whose skill and judgment is adversely affected by the consumption of intoxicating liquor as a grave social evil to be visited with severe penalties. It is a necessary part of the achievement of that legislative intent that orders of disqualification imposed and required to be imposed under the Act are not perceived as often having little punitive effect because of the ease with which hardship licences may be obtained. In appropriate cases the public interest will require that the general and specific deterrent effect of an order of disqualification not be reduced by the granting of a restricted licence."
The remarks made by Underwood J in Driver v Darling (supra), which were cited by the learned magistrate, were made in respect of a disqualification for drink/driving. They in no way conflict, in my view, with any of the cases cited above and specifically are in no way inconsistent with Hayes v Peterson (supra) where Neasey J acknowledged that there were other considerations than the likelihood of danger on the road if an applicant were granted a restricted licence. But in any event, it is clear that repeated acts of speeding by the margins exceeded by the applicant would be a potential danger to other road users and that the learned magistrate was far from persuaded that the applicant, given his record, would not continue to offend in this way. Thus whether or not the learned magistrate adverted to it specifically, that factor was present in this case and constituted an additional reason for refusing the application. The appeal is dismissed.
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