Toward v Slater (Ruling)
[2014] VCC 1681
•10 October 2014 (revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-14-1891
| BENJAMIN ROBERT TOWARD | Appellant |
| v | |
| ADAM FRANK SLATER | Respondent |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 September 2014 | |
DATE OF RULING: | 10 October 2014 (revised) | |
CASE MAY BE CITED AS: | Toward v Slater (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1681 | |
RULING
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Subject: ROAD SAFETY
Catchwords: Order for forfeiture of the appellant’s motor vehicle – discretion to allow any other person to be heard on the question of forfeiture – whether forfeiture would cause exceptional hardship to the other person – evidence of exceptional hardship – meaning of exceptional hardship
Legislation Cited: Road Safety Act 1986, s84C, s84T, s84W, s84Z(1AA), (1), (3), (3A), (3B) and (3C)
Judgment: The appeal is allowed and the Order made on 14 August 2014 is set aside.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S Kermath | - |
| For the Respondent | Mr D Gray | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1 By a Notice of Appeal filed 21 August 2014, the appellant seeks to appeal from an Order made by a Magistrate sitting at the Ringwood Magistrates’ Court, that his motor vehicle be forfeited pursuant to an application made by the Chief Commissioner under s84U of the Road Safety Act 1986 (“the Act”).
2 Ms S Kermath of Counsel appeared for the appellant. Mr D Gray appeared for the respondent.
The agreed facts
3 Ms Kermath informed me that the appellant admitted all of the following facts:
· At all material times, the appellant was the registered owner of a motor vehicle bearing registration number QQV 491.
· The appellant’s licence to drive a motor vehicle was suspended from 12 February 2014 to 11 May 2014. The suspension was imposed by a Magistrate sitting at the Dandenong Magistrates’ Court on 12 February 2014.
· On 16 March 2014, the appellant was apprehended by the respondent driving the motor vehicle.
· On 9 October 2008, the appellant appeared before a Magistrate sitting at the Dandenong Magistrates’ Court charged with driving whilst his authorisation to drive was suspended. The offence occurred on 31 May 2008. He was convicted and sentenced to one month’s imprisonment which was wholly suspended for a period of twelve months.
The legislative scheme
4 Section 84T provides that on the application of the Chief Commissioner, orders can be made for forfeiture of a motor vehicle if certain precise conditions are satisfied:
“(1)On the application of the Chief Commissioner of Police under section 84U(1), if a driver is found guilty of—
(a) a tier 1 relevant offence; or
(b)a tier 2 relevant offence and within the period of 6 years immediately preceding the commission of that offence the driver has committed one or more relevant offences (whether a tier 1 relevant offence or a tier 2 relevant offence)—
the relevant court must order, subject to section 84Z, that the motor vehicle used in the commission of the relevant offence before the court or a substituted motor vehicle—
(c)be impounded or immobilised for a period of 45 days or, on the application of the Chief Commissioner of Police, any longer period not exceeding 3 months in total (including any period of impoundment or immobilisation during the designated period); or
(d) be forfeited to the Crown by order under section 84T(1).”
5 Section 30(1) makes it an offence for a person to drive a motor vehicle on a highway while the authorisation granted to him to do so is suspended. On 12 February 2014, the appellant was found guilty of that offence.
6 The appellant’s prior conviction for driving a motor vehicle on a highway while the authorisation granted to him to do so was suspended, was within the six years referred to in s84T(1).
7 Therefore, the Chief Commissioner was empowered by s84T(1) to make an application to a relevant court pursuant to s84U(1) for forfeiture of the appellant’s motor vehicle.
8 The foregoing is the statutory scheme which applied to the appellant. Ms Kermath also informed me that the appellant admitted that the application for forfeiture had occurred consistently with the legislative scheme, which I have summarised above.
The issue
9 Ms Kermath submitted that the appellant’s mother, Alaina Toward, is a person whose interests are substantially affected by the forfeiture. Furthermore, she submitted that Mrs Toward’s evidence should persuade me to exercise the discretion found in s87Z(3) to decline to make a forfeiture order.
10 The question of Mrs Toward’s standing is dealt with in s84Z(1). It is in the following terms:
“(1)The relevant court hearing an application for an impoundment or immobilisation order or a forfeiture order—
(a)must allow any person served with a notice under section 84W(1) or 84Y(1) to be heard at the hearing of the application and to show cause why an impoundment or immobilisation order or a forfeiture order should not be made; and
(b)may allow any other person to be heard if the court is satisfied that an impoundment or immobilisation order or a forfeiture order may substantially affect that person's interests.”
11 Although the motor vehicle is registered in the appellant’s name and this appeal has been brought by him in his name, ss(1)(b) gives the Court a discretion to allow Mrs Toward to be heard if I am satisfied that the forfeiture order might substantially affect her interests. For reasons which will become plain, I am satisfied that her interests will be substantially affected by the forfeiture order. Therefore, no question of standing arose when Ms Kermath focused the direction of the evidence and her submissions on the effect the forfeiture order would have on Mrs Toward.
The legislative test
12 Section 84Z(3) provides for a discretion in the Court relevant to an application that the Court should decline to make a forfeiture order. It is in the following terms:
“(3) Subject to subsections (3A), (3B) and (3C), the court may decline to make an impoundment or immobilisation order or a forfeiture order if the court is satisfied that such an order would cause exceptional hardship to any person.”
13 The reference to “any person” must be read in the context of ss(1)(b) and must include a person who applies to be heard, whose interests might substantially be affected by the forfeiture order. Therefore, it appears to me that there is no impediment to the appeal proceeding on the basis that the Mrs Toward can put evidence before the Court and make submissions that the discretion in the Court should be exercised in her favour.
14 If the appellant alone applied to the Court for the exercise of that discretion, then he would need to satisfy ss(3A) and (3B). It would appear that both of those subsections only apply to the appellant. The subject matter dealt with in each subsection is prefaced by that subject matter being relevant to “the offender”. “Offender” is defined in ss(1AA) as the person believed to have committed the relevant offence in relation to which the motor vehicle is to be forfeited. I am in no doubt that the reference to “the offender” in the subsections is a reference to the appellant.
15 It would appear that the legislature intended that the discretion, when exercised at the suit of “any person”, is only restricted by the necessity for that person to satisfy the Court that the forfeiture order “would cause exceptional hardship” to that person. However, in the case of the appellant, the exercise of the discretion would, firstly, be limited by ss(3A)(a)(ii). That subsection provides that in the case of a forfeiture order, the Court must not decline to make such an order if the offender’s driver licence or permit is suspended. The appellant’s driver licence was suspended, therefore the exercise of the discretion in ss(3) could not be exercised in his favour even if he could establish exceptional hardship within the limitations of the application of that test in ss(3B).
16 Even if the Court were to find exceptional hardship relevant to a person other than the appellant, the Court must then weigh into account questions of the safety of the public and the public interest, referred to in ss(3C), which is in the following terms:
“(3C)In determining whether to decline to make an impoundment or immobilisation order or a forfeiture order on the ground of exceptional hardship, the court must have regard to the safety of the public and the public interest in preventing the use of a motor vehicle that the court considers is reasonably likely in all the circumstances to be used for further driving offences.”
The evidence
17 The only witness called by the appellant was Mrs Toward. Her evidence can be summarised as follows:
· She is the mother of the appellant. The appellant lives with her. She is a disability pensioner. She receives about $400 per week by way of a disability pension. The appellant is an unemployed bricklayer by occupation.
· Mrs Toward walked to the witness box with an ungainly gait, needing to use a walking stick. She is significantly overweight. According to Dr Di Carlo, general practitioner, the plaintiff suffers from “a chronic illness which affects her mobility”.[1] The nature of the chronic illness was not disclosed in the evidence. However, she said that she has had a knee replacement and is waiting to have a second knee replacement.
[1]Exhibit 10
· She has a daughter who suffers from bouts of depression. Her daughter has three children. The eldest is eight years of age. The younger children are twins, who are five years of age.
· She purchased the motor vehicle. She paid $3,500 for it. She produced a withdrawal from her banking account for that sum. The withdrawal was made on 23 October 2013.[2] She described the motor vehicle as “a lemon”. It is clear from the balance of her evidence that she has expended a very considerable amount of money in attempting to have the vehicle returned to mechanical soundness: $600 for a reconditioned transmission;[3] $863 for the fitting of the reconditioned transmission;[4] $4,748.15 for the fitting of an alternate engine;[5] $254.25 for mechanical repairs;[6] $120 for towing;[7] $712.10 for payment of registration,[8] and $179.30 for vehicle registration transfer.
[2]Exhibit 1
[3]Exhibit 3
[4]Exhibit 4
[5]Exhibit 5
[6]Exhibit 6
[7]Exhibit 7
[8]Exhibit 8
· She uses the vehicle herself as her only means of personal transport. She estimated that she used it up to three times per week. Part of her use of it was directed to assisting her daughter by minding her daughter’s three children. She described the motor vehicle as being useful because of its size to accommodate the three children, who continue to occupy child car seats when they travel in the motor vehicle with her. On other occasions, it was used by the appellant to drive her to appointments which she needed to keep. I assume she meant medical appointments.
· The primary purpose behind the purchase of the motor vehicle was to provide the appellant with a means to carry the tools of his trade, and to travel from his home to various places of work.
18 There was very little challenge to the substance of Mrs Toward’s evidence. I accept that she is a woman in a poor state of health. Her physique, her ungainly gait, and the very short note from Dr Di Carlo demonstrate that adequately for me to conclude that having a private motor vehicle for her personal use is a significant advantage to her. Furthermore, as a mother, it is an important component of her capacity to assist her daughter in her depressive state, and in the minding of her daughter’s children.
19 I also accept that Mrs Toward is on a disability pension. She receives a modest pension as her source of income. Although there was no direct evidence of her receipt of other income and her asset position, I infer that if she is on a disability pension that she must be in a relatively parlous financial state, otherwise she would not satisfy the test for the receipt of such a pension.
Exceptional hardship
20 The Act does not define what amounts to exceptional hardship. There is probably good reason why it has not been defined, because what constitutes exceptional hardship will inevitably vary from person to person and depend upon the particular circumstances of the person claiming exceptional hardship.
21 Some meaning can be given to that expression in the context of an order for forfeiture by reference to ss(3B)(c). It provides that the test of exceptional hardship is satisfied if there is no other transport available to the offender to get to his or her place of employment, and if, after making reasonable enquiries, the offender is unable to arrange for another person to drive the offender to his or her place of employment. This demonstrates the degree of hardship which can fairly be described as exceptional.
22 The other person contemplated by ss(3) may not be in employment. It may be a child who is ill, who requires regular transport for the purpose of obtaining medical treatment, or a parent who provides assistance to a needy child; however, it needs to be hardship of a quality which tends to equate with the level of hardship referred to in ss(3B)(c).
23 The Shorter Oxford Dictionary has a number of definitions of the word “hardship”. The one which I think is of assistance is “the quality of being hard to bear”. One definition of the word “exceptional” is “unusual”. It is a tenet of statutory interpretation that one should not substitute the words of the statutory test by other words because of the risk of creating a different statutory test than was intended by the legislature; however, the definitions I have sought and found give some understanding of what exceptional hardship means. The hardship which Mrs Toward must demonstrate is not just hardship in the sense of being hard to bear, but something qualitatively more to the extent of being exceptional, in the sense of being unusual.
Conclusion
24 There are some parallels between what the legislature considered amounted to exceptional hardship in ss(3B)(b) and (c). Of course, one can understand that not being able to get to work and not being able to find an alternative form of transport, is not just hardship but exceptional hardship because of the risk that it will lead to loss of employment, which could be catastrophic to a breadwinner. Similarly, an inability of a person suffering chronic ill health resulting in disablement to be able to have a personal mode of transport generally, and to keep to medical appointments, would likewise be catastrophic because of the inability of that person to access necessary services. Additionally, the inability of a person to assist in the care of a child who is ill and to care for that child’s own children, adds to the catastrophe.
25 Whilst the words “exceptional hardship” appear to create an almost insurmountable test, commonsense must be imported into the interpretation of those words from the context in which they appear. A commonsense approach leads me to conclude that Mrs Toward will suffer hardship if the Order for the forfeiture is allowed to stand. Furthermore, I think that the level of hardship she will endure will be exceptional because of the consequences of being deprived of her only mode of personal transport. I am fortified in reaching that conclusion because I think her level of exceptional hardship broadly equates with the legislature’s policy supporting the setting of the standard said to amount to exceptional hardship in ss(3B) (c). In the end, I think depriving her of the motor vehicle would be harsh, and in that respect more than exceptional hardship.
26 I am not satisfied that the fact that the appellant has driven the motor vehicle whilst suspended puts the safety of the public at risk or that it is in the public interest that the Order for forfeiture should stand. It appears to me that the safety of the public must be guarded where the continued use of a motor vehicle by a person is likely to see that person drive, manage and control the motor vehicle in a manner that will expose members of the public to the risk of injury or damage to property. There is no evidence of that in this appeal. I do not think making the orders that I contemplate will offend the public interest for the same reasons; however, I do think it is in the public interest to permit Mrs Toward to have the use of the motor vehicle, given her particular circumstances.
Orders
27 The Orders I will make are as follows:
(1) The Orders imposed at the Magistrates' Court of Victoria on 14 August 2014 are set aside.
(2) No further order made.
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