The Chief Executive Officer of the Department of Transport v Messer - [2024] WADC 60

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT -v- MESSER [2024] WADC 60
CORAM:   GETHING DCJ
HEARD:   23 JULY 2024
DELIVERED          :   9 AUGUST 2024
FILE NO/S:   APP 22 of 2024
BETWEEN:   THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT
Appellant
AND
CHRISTOPHER DAVID MESSER
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE JOHNSTON
File Number            :   MC/CIV/JOO/EDL/199/2024

Catchwords:

Magistrates Court appeal - Grant of an extraordinary driver's licence - Whether refusal would deprive the applicant of the means of obtaining urgent medical treatment for members of his family

Legislation:

Road Traffic (Authorisation to Drive) Act 2008 (WA), s 30

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	Mr E A Heywood
Respondent	:	Ms F E Sellers

Solicitors:

Appellant	:	State Solicitor for Western Australia
Respondent	:	Legal Aid - Perth - Criminal Appeals

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158
Australian Securities and Investments Commission v Kobelt [2019] HCA 18
Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130
Chief Executive Officer, Department of Transport v RSR [2018] WADC 140
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Director General of Department of Transport v McKenzie [2016] WASCA 147
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
House v The King (1936) 55 CLR 499
JC v TH [2024] WADC 58
Jones v Darkan Hotel [2014] WASCA 133
Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12
Marks v Coles Supermarkets [2021] WASCA 176
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Naidoo v Naidoo [2005] WADC 41
Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243
Nugawela v American Express Australia Ltd [2016] WADC 170
Pollard v Department of Transport [2021] WADC 110
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 (2016) 331 ALR 550
Saunders v The Public Trustee [2015] WASCA 203
Shilkin v Taylor [2011] WASCA 255
Smart v Power [2019] WASCA 106

GETHING DCJ:

Introduction

On 12 March 2024 her Honour Magistrate Johnston (Magistrate) granted Christopher Messer, the appellant, an extraordinary driver's licence (EDL) pursuant to Road Traffic (Authorisation to Drive) Act 2008 (WA) (RTAD Act) s 30. His licence had been disqualified for 8 months from 12 January 2024 for drink driving. The EDL was granted to enable him to drive his aged parents to and from medical appointments.[1]
[1] The Magistrates Court file is before the District Court by way of an electronic matter book. References to pages of the Matter Book will be 'MB#'.
Counsel for the Chief Executive Officer of the Department of Transport (CEO) opposed the grant of an EDL to Mr Messer at the hearing before the Magistrate. By Appeal Notice filed 2 April 2024 (Appeal), the CEO has now appealed to the District Court against the decision.
For the reasons which follow, the Magistrate erred in grating the EDL and it should be set aside.

Legislative framework

By s 27(1) of the RTAD Act, a person who is disqualified under the RTAD Act or any other written law from holding or obtaining a driver's licence may apply to a court for an order directing the CEO to grant to the person an EDL.
The power to grant an EDL is found in RTAD Act s 30, in the following terms:
30.Matters for consideration of court
(1)A court may -
(a)make an order directing the CEO, on payment of the prescribed fee, to grant to the applicant an extraordinary licence for a period not exceeding 12 months from the date on which it is granted as the court thinks fit; or
(b)refuse the application.
(2)In making a decision for the purposes of subsection (1), the court is to have 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.
[(3)deleted]
(4)Despite subsections (1) and (2), the court must not make an order directing the grant of an extraordinary licence unless it is satisfied that the refusal of the application would -
(a)deprive the applicant of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by the applicant or a person who is a member of his or her family; or
(b)place an undue financial burden on the applicant or his or her family, by depriving the applicant of his or her principal means of obtaining income; or
(c)deprive the applicant or a person who is a member of the applicant's family of the only practicable means of travelling to and from the place at which the applicant or that person, as the case may be, is employed.
The matters specified in RTAD Act s 30(2) are mandatory relevant considerations.[2]
[2] Director General of Department of Transport v McKenzie [2016] WASCA 147 [52] (Buss P, with whom Murphy JA & Beech J agreed) (McKenzie).
The effect of RTAD Act s 30(4) is that the court is prohibited from making an order under s 30(1)(a) directing the CEO to grant to the applicant an EDL unless the court is satisfied that the refusal of the application would have the consequence specified in s 30(4)(a), s 30(4)(b) or s 30(4)(c).[3] As President Buss explained in Director General of Department of Transport v McKenzie:[4]
Section 30(4) specifies, in effect, three limited circumstances in which an applicant may be granted an extraordinary licence. An applicant must satisfy the court, by evidence, that the refusal of his or her application would have at least one of the consequences specified in par (a), par (b) and par (c) of s 30(4). The court may only grant an extraordinary licence for the purpose of overcoming or relieving one or more of the consequences specified in par (a), par (b) and par (c) of s 30(4) which the applicant has established, by evidence, to the court's satisfaction.
[3] McKenzie [54].
[4] McKenzie [68].
In Chief Executive Officer, Department of Transport v RSR[5] Lonsdale DCJ made a number of observations as to the requirement in RTAD Act s 30(4):
(a)an opinion as to the nature and cause of an ailment is an opinion which must be given by a suitably qualified expert;[6]
(b)the RTAD Act contains no definition of the phrase 'urgent medical treatment';[7]
(c)consequently, ordinary principles of statutory interpretation apply, in particular that the words in a statute should be construed according to their grammatical and ordinary sense unless it would lead to some absurdity or inconsistency with the statute;[8]
(d)the Macquarie Dictionary defines the phrase 'urgent' as meaning 'pressing; compelling or requiring immediate action or attention; or imperative';
(e)the term 'medical' means 'of or relating to the science or practice of medicine; curative; medicinal; or therapeutic';
(f)the term 'treatment' means, relevantly, 'the application of medicines, surgery, psychotherapy, etc, to a patient to cure a disease or condition';[9] and
(g)the term 'medical treatment' includes any medication, procedure or therapy recommended, prescribed or performed by a medical practitioner.[10]
I respectfully agree with and adopt her Honour's observations.[11]
[5] Chief Executive Officer, Department of Transport v RSR [2018] WADC 140 (RSR).
[6] RSR [22] (Lonsdale DCJ), citing Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 645 (Dixon CJ, McTiernan, Kitto, Taylor & Windeyer JJ).
[7] RSR [26].
[8] RSR [27].
[9] RSR [28].
[10] RSR [29], by analogy to the reasoning of McLure P in Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243 [102] - [104] in the context of the phrase 'medical treatment' in s 17(1) of the Workers' Compensation and Injury Management Act 1981 (WA).
[11] As I did in Pollard v Department of Transport [2021] WADC 110 [45] (Gething DCJ) (Pollard).

Proceedings in the Magistrates Court

The ground for an EDL relied on by Mr Messer in his application filed 5 February 2024 (Application) was:[12]
To drive my parents who I live and care to medical appointments as my dad has dementia and can't drive, my mum has just had breast cancer and breast removed, mum is 83 and dad is 82 and can't drive.
That is, he sought to rely on RTAD Act s 30(4)(a).
[12] MB 1.
Mr Messer filed an affidavit in support of the Application sworn 5 February 2024.[13] In this affidavit he deposed that:
[13] MB 3 - MB 12.
(a)he needed to drive his mum and dad to medical appointments as 'my mum is really not well at the moment and dad has dementia and can't drive';
(b)his father was 82 and has dementia which is getting worse;
(c)his mother has breast cancer, had just had a breast removed and had been 'in and out of hospital lately';
(d)his mother was also very frail and had recently had a bad fall in which she had fractured her eye and cheek;
(e)he would need the EDL to take them to medical appointments with doctors and at the hospital;
(f)they had medical appointments 3 to 4 times a week;
(g)he was on suboxone daily and had to go to a chemist 12 km away to receive this;
(h)he is waiting for back surgery; and
(i)his only source of income is a Centrelink sickness benefit.
Mr Messer annexed to his affidavit two letters in support from medical practitioners.
The first was from a Dr Sujatha Kawryshanker, dated 18 September 2023.[14] Dr Kawryshanker is a consultant physician in general medicine and geriatrics. It appears that she is Mr Messer Snr's specialist. The letter appears to be addressed to his general practitioner. The following information appears from this letter:
[14] MB 9 - MB 10.
(a)Mr Messer Snr has been diagnosed with Alzheimer's dementia;
(b)he has had this condition for at least 12 months;
(c)on review in September 2023, his memory had deteriorated from the position 12 months prior;
(d)he reports ongoing short‑term memory deficits, forgetfulness with recent conversations and recall;
(e)he was now no longer driving;
(f)his son, Mr Messer, is driving him around, and had been given his car;
(g)on review, Mr Messer Snr showed progressive memory decline, though had reasonable functional independence; and
(h)he has a history of ascending aorta dilatation.
Dr Kawryshanker reports not adjusting Mr Messer Snr's medication. The letter also contains references to Mrs Messer's condition, specifically her breast cancer.
The second letter was from a Dr John Crawford dated 17 January 2024.[15] Dr Crawford appears to be a general practitioner. He writes:
Is it possible to give Mr Messer [an] extraordinary licence to permit him to drive his elderly frail parent to doctors appointment and other appointments
Thank you for your indulgence
[15] MB 11.
The Application came on for hearing on 26 February 2024 but was adjourned to 12 March 2024 in order for Mr Messer to obtain further medical evidence.[16] The magistrate squarely put Mr Messer on notice of evidence required in order for him to be able to be granted an EDL:[17]
What you've got to prove is that the refusal of licence would deprive you of - you or a member of your family of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by you or one of your or both of your family. There's no problem with you showing that there's an illness, disease or disability. The question is … is that urgent medical treatment?
[16] MB 12, MB 18 - MB 23.
[17] MB 20.
By the time of the hearing on 12 March 2024, Mr Messer had provided further documents.
The first was a letter from his mother dated 12 March 2024. It read:[18]
Dear Sir or Madam, Please consider giving a Temporary Driving Licence to my son Christopher Messer. Unfortunately, I have not been able to drive recently due to a Mamogram and dizzy spells. I hope to recover shortly. My Husband Paul is not able to Drive. On behalf of Paul and Myself We ask that you grant him a Temp Licence. As we can then get to Medical and other Appointments. Thank you so much, Maureen Messer [sic].
[18] MB 15.
The second was another letter from his mother, dated 11 March 2024.[19] It read:
To Judge. Dear Sir. Please consider giving a Tempery Driving Licence to Our Son C.D Messer. Both his father Paul and myself Maureen have Unfortunately Not been able to drive our cars in recent times Due to Paul being Diagnosed with Alzheimers and Dementia and unable to pass The Expected Driving Test as Required. Myself have problems with my Right arm after having a Masectomy and am still feeling a little weak. Also get Dizzy Spells and having Balance problems. I hope that I shall recover shortly. These problems are difficult whilst Chris is not able to take us to Drs & Hospital Visits. We ask that you consider him to get a Temporary Drivers Licence To enable My husband and myself to get to Appointments. Your faithfully M Messer [sic].
[19] MB 16.
The third was a letter from a Dr Shaun Sinclair dated 11 March 2024.[20] Dr Sinclair appears to be a general practitioner. It read:
To whom it may concern, Is it possible to give Mr Messer and [sic] extraordinary licence to permit him to drive his elderly frail parents to doctors appointment and other appointments. His mother is being treated for breast cancer and his father has dementia. Christopher informs me his father is unable to use public transport or taxi's due to his dementia. Christopher informs me his mother is unable to use public transport or taxi's as she is a high falls-risk.
Yours faithfully
Dr Shaun Sinclair
[20] MB 17.
At the hearing on 12 March 2024, Mr Messer gave evidence.[21] He confirmed that what he said in the affidavit he filed was true. He was cross-examined about his driving record and other matters going to the discretion to grant an EDL. Given the narrow confines of the Appeal, I do not need to summarise this evidence. In so far as it is relevant to the Appeal, Mr Messer gave the following evidence:
[21] MB 32 - MB 38.
(a)his mother had a stroke 18 months to two years prior;
(b)after that, his brother and sister came to Perth from the south‑west to help transport their mother to medical appointments;
(c)four to six months prior, she had a fall in which she broke three ribs, fractured the bone above her eye, got two black eyes, got concussion, and had to be taken to Royal Perth Hospital;
(d)a couple of months prior, his mother had a fall in the shower;
(e)his mother suffers vertigo;
(f)his mother has been diagnosed with breast cancer;
(g)four to five months prior she had a breast removed;
(h)she has to have ongoing checkups with her specialist at Joondalup Hospital, but did not know the date;
(i)she is extremely frail;
(j)she also has problems with her toes and has to go to a podiatrist every three weeks;
(k)she holds a driver's licence, but of late she does not drive;
(l)his mother had driven him to court and had nearly crashed;
(m)he has concerns about his mother's ability to drive;
(n)he has to help her get into the car;
(o)she struggles to get into a taxi;
(p)his father has another appointment scheduled with Dr Kawryshanker in a couple of weeks; and
(q)his parents would probably have three appointments a week.
Counsel for the CEO opposed the grant of an EDL primarily on the basis that Mr Messer had not satisfied the precondition in RTAD Act s 30(4)(a).
The Magistrate delivered oral reasons granting the Application (Decision).[22] Her Honour referred to the decision in RSR, which I have quoted at [8]. Her Honour:
(a)was satisfied that both of Mr Messer's parents suffered from an illness, disease or disability namely, that Mr Messer's father suffered from dementia and Mr Messer's mother suffered from breast cancer;
(b)was satisfied that Mr Messer's mother's breast cancer was 'significant' on the basis that she was required to have a mastectomy at some point during the last 'four months or so', but that this must have occurred prior to September 2023 (given the reference in Dr Kawryshanker's letter);
(c)had regard to the handwritten letter of Mr Messer's mother which refer to a 'mammogram' and 'dizzy spells';
(d)accepted that Mr Messer's parents are elderly, both being in their eighties; and
(e)took judicial notice of the fact that dementia would not improve.
[22] MB 43 - MB 47.
As regards the requirement of 'urgency', her Honour concluded:[23]
I am satisfied, for the reasons that I've outlined, that they do have an illness, disease or disability, and that it does require medical treatment, and I've outlined that, as well. In terms of considering whether it's urgent, I note that the legislation does not define the term urgent. So it takes on its ordinary meaning. The case of RSR does refer to the dictionary meaning of that word, in paragraph 28. And given the nature (indistinct) I do accept that they do have pressing medical needs. And Mr Messer also gave some evidence about that. I appreciate that that is not specifically outlined in great detail from the medical practitioners, but it's apparent, given that the detail that is contained in that letter from September, that there is ongoing treatment required by both of them.
[23] MB 45.
As regards the requirement that the refusal of the Application would deprive Mr Messer of 'the means' of obtaining urgent medical treatment, her Honour concluded:[24]
… In considering whether the refusal for the application would deprive Mr Messer of the means of obtaining that treatment for his parents, it is apparent from the material that his father is unable to drive.
It is apparent from the material that his mother has had a [mastectomy], and he has given evidence of the difficulties that she has experienced with that, and she herself has also provided that material in her letters, which have been accepted as evidence. So I am satisfied that the refusal would deprive them of obtaining that treatment. So I am satisfied that Mr Messer has, on the balance of probabilities, established that test contained in section 30.
[24] MB 45.
Her Honour then went on to consider the factors set out in RTAD Act s 30(2) and the discretion generally, concluding:[25]
I note, and I do accept, that there are, really, realistically, no other means for him to obtain urgent medical treatment. They are unable to travel on public transport. I'm satisfied of that. I'm also satisfied that although there are family members who are able to assist, that they don't live in the metropolitan area. And given the regularity, which Mr Messer has given evidence about, their needs for medical treatment, I'm satisfied that it is appropriate, in all the circumstances, and having regard to all the factors and the test in section 30 of the relevant legislation, that the licence ought to be granted.
[25] MB 46.
Accordingly, her Honour granted Mr Messer an EDL. The terms of the EDL granted were:[26]
[26] MB 13.
On payment of the prescribed fee to issue an extraordinary licence CLASS C until 12 September 2024 solely to drive a motor vehicle to and from your home to pre-arranged medical appointments and pre‑arranged medical treatment for Paul Messer (DOB 21/3/1941) or Maureen Messer (DOB 7/8/1939) during the hours of 8.30 am to 5.30pm Mondays to Fridays inclusive
THE EXTRAORDINARY LICENCE IS SUBJECT TO THE FOLLOWING CONDITIONS:
Restricted to drive within a 45 kilometre radius of Joondalup Court.
Licence to be carried at all times whilst in control of a motor vehicle.
To comply with the Road Traffic Act 1974 and Regulations.
Not to drive with a blood alcohol content exceeding 0.00%.
To maintain and carry a log book showing time and place of departure, purpose of journey and proposed destination.
To display "E" plates of the same type and dimensions and in the same manner as the "L and P" plates provided for in the Traffic Regulations and as approved by the Department of Transport whilst driving.
To provide on request of WA Police, written confirmation of pre‑arranged medical appointments and medical treatment.

The Appeal

The Appeal was commenced within the requisite 21-day time limit.[27]
[27] Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40(3) (MCCPA).
On 8 May 2024 Mr Messer filed a Notice of Respondent's Intention indicating that he would argue the Decision should be upheld on the grounds relied on by the primary court.
Both parties filed submissions.
The District Court must decide the Appeal on the material and evidence that was before the Magistrate.[28] The court can give leave to admit other evidence, but only in exceptional circumstances.[29]
[28] MCCPA s 40(4)(a).
[29] MCCPA s 40(4)(b), s 40(5).
Mr Messer seeks leave to admit other evidence. On 22 July 2024, Mr Messer filed an affidavit sworn on that date by his lawyer, Faye Sellers. In the affidavit, Ms Sellers annexes:
(a)a letter from Mrs Messer dated 18 July 2024, providing an update as to her medical condition; and
(b)a letter from a Dr Cornelis Buma, his parents' general practitioner, providing information as to their medical conditions.
Counsel for Mr Messer invited the court to take this evidence into account in the event that the court formed the view that the Magistrate erred, and that the EDL should be set aside. Accordingly, I return to this question once I have determined whether the Appeal ought to be allowed.
The Appeal is by way of a 'reconsideration of the evidence' that was before the Magistrate.[30] The court does not hear afresh all of the evidence.[31] Rather, the appeal is to be undertaken by way of a rehearing.[32]
[30] District Court Rules 2005 (WA) r 50(1) (DCR).
[31] Smart v Power [2019] WASCA 106 [100] (judgment of the court) (Smart).
[32] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] (Gleeson CJ, Gaudron & Hayne JJ) (Coal and Allied).
In an appeal by way of rehearing, ordinarily, and absent further evidence or a relevant change in the law, the court can exercise its appellate powers only if satisfied that there was an error on the part of the primary court; the power is to be exercised for correction of error.[33] There must be a material error of law, fact, discretion or other miscarriage of justice.[34] In doing so, the appeal court must conduct a 'real review' of the evidence given at first instance and of the primary decision‑maker's reasons for decision to determine whether there has been an appellable error.[35]
[33] Coal and Allied [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23] (Gaudron, McHugh, Gummow & Hayne JJ) (Allesch); Saunders v The Public Trustee [2015] WASCA 203 [84] (Mitchell J, with whom Buss JA & Beech J agreed).
[34] Allesch [23]; Marks v Coles Supermarkets [2021] WASCA 176 [124] (judgment of the court) (Marks); Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd[2021] WASCA 130 [460] (judgment of the court).
[35] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 (2016) 331 ALR 550 [43] (judgment of the court) (Robinson Helicopter); Australian Securities and Investments Commission v Kobelt [2019] HCA 18 [47] (Kiefel CJ & Bell J); Marks [127]; Smart [101].
The onus is on the CEO as the appellant to demonstrate the existence of an appellable error.[36] It is not sufficient for the CEO to satisfy the court that a decision other than that made by the Magistrate was correct and preferable.[37]
[36] Smart [100]; Jones v Darkan Hotel[2014] WASCA 133 [31] (judgment of the court) (Jones).
[37] Marks [124].
The sole ground of appeal is in the following terms:
1.The learned Magistrate erred in fact and law in finding that the refusal of the application would deprive the applicant of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by a person who is a member of his family, as:
(a)there was insufficient evidence before the Court upon which her Honour could have been satisfied that the medical treatment was 'urgent'; and/or
(b)there was insufficient evidence before the Court upon which her Honour could have been satisfied that the refusal of the application would deprive the applicant's parents of the means of obtaining medical treatment.
In essence, the CEO's position is that the Magistrate erred in finding that the precondition to the exercise of the power in RTAD Act s 30(4)(a) had been complied with. At the hearing before me, counsel for the CEO informed the court that in the event that this court formed the view that the Magistrate did not so err, it does not contend that the Magistrate erred in exercising the discretion to grant the EDL in the terms given.
The appropriate standard of appeal for a finding that RTAD Act s 30(4)(a) had been complied with is, in my view, the 'correctness' standard. It is a question 'to which there is but one legally permissible answer, even if that answer involves a value judgment'.[38] Although the task is evaluative, there is only 'one uniquely correct outcome', 'one right answer and an appeal from the decision is concerned with its correctness'.[39] This may be contrasted to the question of whether, the count being satisfied that a precondition in RTAD Act s 30(4) exists, it is appropriate in the exercise of the court's discretion to grant an EDL, the discretion being denoted by the use of the word 'may' in RTAD Act s 30(1).[40] The appropriate standard of review of that discretionary decision is the standard explained in House v The King.[41]
[38] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 [16] (Kiefel CJ, Gageler & Jagot JJ); Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [57] (judgment of the court) (Keremestevski).
[39] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [154] (Edelman J; see also [35] ‑ [50] (Gaegler J) (SZVFW); Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 [128] (judgment of the court).
[40] Interpretation Act 1984 (WA) s 56. See generally: Pollard [30].
[41] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ) (House); SZVFW [38]; Keremestevski [53]; Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [184] ‑ [185], [204], [241] (judgment of the court); As to the when a decision will be discretionary, see generally: SZVFW [35] - [50].
The task of the appellate court when an appeal concerns an evaluative judgment was explained by the Court of Appeal in G v O as follows:[42]
Where findings or conclusions involve elements of fact, degree, opinion or judgment, the demonstration of error may not be straightforward. The difficulty in doing so may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, or because the nature of the issue is one such that, while not a discretion, there cannot be said to be one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient to demonstrate error. The conclusion of error will not necessarily be arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge. Nevertheless, even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate the conclusion that the trial judge was wrong, and that the appeal court must interfere.
[42] G v O [2022] WASCA 23 [103] (judgment of the court) (references omitted); Keremestevski [59].

Did the Magistrate err in finding that the precondition in RTAD Act s 30(4)(a) had been satisfied?

In this case, in order for Mr Messer to satisfy the Magistrate that RTAD Act s 30(4)(a) had been satisfied, it was necessary for the Magistrate to be satisfied on the basis of the evidence that:[43]
(a)either Mr Messer Snr or Mrs Messer had an illness, disease or disability;
(b)that the illness, disease or disability required medical treatment;
(c)that the medical treatment was 'urgent'; and
(d)the refusal of the Application would deprive Mr Messer of 'the means' to obtain the urgent medical treatment.
[43] Pollard [44]; RSR [20].
The CEO does not contend that the Magistrate erred in finding that Mr Messer Snr had an illness, disease or disability, being dementia. Nor does the CEO contend that the Magistrate erred in finding that Mrs Messer had an illness, disease or disability, being breast cancer. That concession was appropriate. It reflects the letter from their general practitioner, Dr Sinclair (quoted at [18]).
To establish the need for urgent medical treatment, as a matter of practical reality it is necessary for an applicant to adduce evidence from a suitably qualified medical expert as to the nature and seriousness of the relevant illness, disease or disability, the treatment required and its urgency.[44] It is difficult to see how the court could be satisfied as to the requirement of urgency without this evidence.
[44] Pollard [44]; RSR [22].
Dr Sinclair does not give any evidence as to the treatment which either Mr Messer Snr or Mrs Messer requires. It follows that he does not give any evidence that there is a need for treatment which is 'urgent', in the sense of being pressing or compelling or imperative or requiring immediate attention or action (see [8(d)]). Nor does Dr Crawford ([13]). Dr Kawryshanker is not Mrs Messer's treating doctor, and only mentions her condition. Aside from continuing with his then existing medication, she does not mention any treatment required by Mr Messer Snr, and certainly does not mention any requirement for 'urgent' treatment. There is a passing reference to him having a history of ascending aorta dilation, but no treatment recommendation.
Counsel for Mr Messer argued that it was sufficient that both Mr Messer Snr and Mrs Messer required regular, pre-arranged medical appointments. Given the evidence of Mr Messer in his affidavit and in court, and Mrs Messer in her letters, there is a basis in the evidence for that conclusion. Indeed, that conclusion is reflected in the terms of the EDL granted ([25]). Counsel for Mr Messer submitted that there was ample evidence for the Magistrate to infer that the need for this treatment is compelling, requiring action or imperative, in the sense that if not undertaken it would be detrimental to their health.
The position of the CEO is that the word 'urgent' must be given some work to do. It is not sufficient that there is need for medical treatment. Aside from perhaps preventative treatment such as a vaccination, it is almost axiomatic that a failure to obtain medical treatment for an illness, disease or disability will be detrimental to the health of the person so suffering. So, 'urgent' cannot mean 'necessary' (and if it did, Parliament would have said so). Rather, something more is required.
I agree with counsel for the CEO. A 'court construing a statutory provision must strive to give meaning to every word of the provision'.[45] The position contended for by counsel for Mr Messer is to the effect that all treatment required is urgent, giving no real meaning to the word 'urgent' in the phrase 'urgent treatment'.
[45] Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28; (1998) 194 CLR 355 [71] (McHugh, Gummow, Kirby & Hayne JJ).
In my view, the context in which the words 'urgent treatment' appear is significant. The inquiry is whether the refusal to grant the application would 'deprive the applicant of the means of obtaining urgent medical treatment'. The requirement of 'urgency' in this context connotes the lack of an opportunity to seek other means to obtain the necessary medical treatment. In this sense, taking an 80-year-old to a hospital emergency department following a fall has a sense of 'urgency' about it. Taking an 80-year-old to a pre-arranged (perhaps on many weeks or months' notice), periodic, review appointment does not. In the latter, there is ample opportunity to organise other means of attendance, including taxi, Uber, friends, relatives or community-based services.
Ironically, though reflecting the evidence, the EDL granted does not permit Mr Messer to obtain 'urgent' medical treatment (in the sense set out at [45]) for one of his parents by, say, taking them to a hospital emergency department following a fall. It is limited to 'pre-arranged medical appointments and pre-arranged medical treatment'.
To the extent that this construction of the requirement of urgency appears onerous to an applicant, that was the intention of Parliament.[46]
[46] Hansard, Legislative Assembly, 10 November 2010, page 8504 in relation to the Road Traffic Legislation Amendment (Disqualification by Notice) Bill 2020 (WA).
In my view, the limited evidence before adduced by Mr Messer goes no higher than establishing that each of Mr Messer Snr and Mrs Messer have an illness, disease or disability that requires ongoing medical treatment. There is minimal evidence from a suitably qualified medical expert as to the nature and seriousness of their illness, disease or disability, and none as to the treatment required and its urgency. Ground of appeal 1(a) has been made out in that there was insufficient evidence before the court from which the Magistrate could have been satisfied that any medical treatment required by either Mr Messer Snr or Mrs Messer was 'urgent'. The 'one right answer' is that the precondition in RTAD Act s 30(4)(a) has not been satisfied. Moreover, I have a sufficiently clear difference of opinion to necessitate the conclusion that the Magistrate was wrong, and that the appeal court must interfere.
I note in passing the submission on behalf of counsel for Mr Messer that it 'is unreasonable to expect applicants for extraordinary licences to provide "detailed" information of the treatment provided, particularly when personal medical information relates to a third person'. I disagree. The family member of the applicant will directly benefit from the grant of the EDL to allow the applicant to drive so that they can obtain urgent medical treatment. It is not unreasonable for them to provide the detailed medical evidence necessary for the court to be so satisfied.
The finding in [48] is sufficient to determine the Appeal.
However, given that ground 1(b) raises a significant issue of interpretation that was fully argued, it is appropriate to make two observations.
The first is that the phrase 'the means' in s 30(4)(a) is used without qualification. This is in contrast to s 30(4)(b) which refers to 'principal means' and s 30(4(c) which refers to 'the only practicable means'. So the phrase 'the means' in s 30(4)(a) cannot mean 'principal means' or 'the only practicable means' as, if that were what Parliament intended, it would have used that specific phrase. 'The' is used in contradistinction to 'a'. The phrase 'the means' denotes all means. In context, the court needs to be satisfied that, if the EDL is not granted, the applicant or family member will be unable to obtain the urgent medical treatment required, as there would be no 'means' for that to be obtained.
The second is that 'the means' takes it context from the nature of the urgent medical treatment required. So for example, in many cases of 'urgency', the appropriate means of transport will be an ambulance. For this category of 'urgent' treatment, refusing an application for an EDL will not deprive the applicant or family member of the means of obtaining the medical treatment required.

Should the court grant leave for Mr Messer to adduce further evidence?

As mentioned, the court can give leave to admit other evidence, but only in exceptional circumstances.[47] In Shilkin v Taylor Newnes JA observed of this discretion:[48]
It is evident that so far as the material in that affidavit is sought by the appellant to be admitted on the appeal, it is in the nature of new evidence, rather than fresh evidence; that is, it is evidence which, with the exercise of reasonable diligence, could have been discovered by the appellant prior to the hearing before the magistrate of the application to set aside the default judgment.
A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provide an explanation as to why the evidence was not led at first instance. Where the evidence was deliberately withheld, that will be a factor which weighs heavily against the admission of the evidence on appeal … Even where that is not the case, ordinarily the court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence would have led to a different outcome if it had been led below. That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial (or in this case, of a full trial): …
On an appeal of the present kind, this court may give leave for additional evidence to be admitted only in exceptional circumstances: Magistrates Court (Civil Proceedings) Act, s 42(3)(c), s 42(4). It is not helpful to attempt to describe what would constitute 'exceptional circumstances' for the purpose of s 42(3)(c). The variety of circumstances that might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose. It is sufficient to say that in this case no exceptional circumstances have been made out.
[47] MCCPA s 40(4)(b), s 40(5).
[48] Shilkin v Taylor [2011] WASCA 255 [66] - [68] (references omitted) (Newnes JA, with whom Pullin & Buss JJA agreed) (Shilkin). See also: Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [89] (Newnes JA, with whom Buss & Pullin JJA agreed); JC v TH [2024] WADC 58 [21] (Black DCJ); NugawelavAmerican Express Australia Ltd [2016] WADC 170 [16] (Bowden DCJ) (Nugawela).
Moreover, leave to admit additional evidence should not be used to rectify perceived weaknesses in a case already presented.[49]
[49] Nugawela [20]; Naidoo v Naidoo [2005] WADC 41 [9] (Eaton DCJ).
In the present case, the evidence of Dr Sinclair was not as 'fresh evidence'. It could have been obtained by reasonable diligence prior to the hearing of the Application, especially given the adjournment granted ([14]). The additional evidence of Mrs Messer confirmed the evidence which Mr Messer gave before the Magistrate, but does provide an update. However, the additional evidence as a whole would not lead me to a different conclusion to the one set out at [48]. Ultimately, what Mr Messer is trying to do is to have a second attempt at obtaining an EDL in circumstances where the evidence relied on for the first attempt was insufficient. This goes against the strong public interest in the finality of litigation.[50] There is no other factor suggesting that it would be otherwise in the interests of justice to grant leave to adduce the additional evidence.
[50] Saunders [87].
I am not satisfied that the circumstances are exceptional. I decline to grant leave to adduce further evidence.
There is a further point. If the EDL granted on 12 March 2024 is set aside, and the Application refused, the six month preclusion period in RTAD Act s 31 is calculated from that date. This means it will be 12 September 2024 before Mr Messer can apply again. However, as it turns out, his disqualification ends on that date in any event.

What final orders are appropriate?

The appropriate final orders are:
1.The order of the Magistrates Court dated 12 March 2024 to direct the CEO, on payment of the prescribed fee, to grant to the respondent an extraordinary licence be set aside.
2.The respondent's application for an extraordinary licence be refused.

I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EC
Associate to Judge Gething
8 AUGUST 2024