Tyree and Thoroughgood v Queensland Transport
[2008] QMC 13
•8 May 2008
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Tyree & Thoroughgood v Queensland Transport [2008] QMC 13
PARTIES:
JOSHUA STEPHEN ROBIN TYREE
(first applicant)
CYNTHIA THOROUGHGOOD
(second applicant)
v
QUEENSLAND TRANSPORT
(respondent)
FILE NO/S:
MAG54971/08(7), MAG54980/08(6)
DIVISION:
Magistrates Courts
PROCEEDING:
Application for Special Hardship Order
ORIGINATING COURT:
Magistrates Court at Southport
DELIVERED ON:
8 May 2008
DELIVERED AT:
Southport
HEARING DATE:
6 May 2008
MAGISTRATE:
Costanzo JJ
ORDER:
Each application is dismissed
CATCHWORDS:
TRAFFIC LAW – LICENCING – issue of a restricted licence during period of licence suspension - application for Special Hardship Order – time limitation and mandatory requirements – whether application must be accompanied by affidavit or other accompanying material – meaning of “information, or details of the information” which Applicant relies on for the application.
Transport Operations (Road Use Management) Act 1995
Transport Operations (Road Use Management—Driver Licensing) Regulation 1999), r 30V(2)
COUNSEL:
E Cooper (solicitor) for first applicant
C Rosser for second applicant
A Baptista for respondent
SOLICITORS:
Respondent on own behalf
The Applications
The Applicants, Joshua Stephen Robin Tyree and Cynthia Thoroughgood, have each filed applications under s 30V of the Transport Operations (Road Use Management—Driver Licensing) Regulation 1999 (The Regulation).
The same threshold issue has arisen in relation to each application.
The parties agreed that I should deal with the threshold issue in each application together.
The applications each came on for hearing before me on 21 April 2008. After pointing out the issues raised by the Application by Tyree (filed without any supporting material and without notice to Queensland Transport) each matter was adjourned to 6 May to also allow Queensland Transport the opportunity to be heard.
The other practical effect of the adjournment was that it gave each Applicant time for subsection 30V(4) of the Regulation to be complied with, that is— the applicants could each serve Queensland Transport at least 7 days before the day of the hearing with the affidavits they now intended to rely on in support of the respective applications at the adjourned hearing. Tyree has now done that. Thoroughgood has not.
In each application (made in the approved form) the Applicant did not tick any box whatsoever where it provides:
I have attached the following documents to support this Application:
My Affidavit
An affidavit completed by my employer (as required)
Statutory declarations from other persons supporting statements in my affidavit
Other documentary evidence.
On the approved form the term “(as required)” after the second tick box is italicised and appears just as I have typed it above.
Identification of a threshold issue
The approved form seems to envisage, and require, that at least some material must be filed with the Application. On the face of it so too does subsection 30V(2) of the Regulation (quoted below). This is the threshold issue. If the Application must be accompanied by some material relied on for the application but is lodged by itself in the approved form unaccompanied by anything at all can the Application still be heard? Is the omission curable by amendment or otherwise?
Relevant Acts and Regulations
Section 150(1A) of the Transport Operations (Road Use Management) Act 1995 is the relevant regulation making provision. Subsection (1A) provides:
150 Regulating driver management
...
(1A) Without limiting subsection (1)(c)[1], a regulation may provide that a court may make orders, on the basis of special hardship, authorising persons whose licences have been suspended to continue to drive motor vehicles under Queensland driver licences in stated circumstances (special hardship orders), including, for example—
[1] Section 150(1)(c) provides that a regulation may prescribe rules about the management of drivers, including, for example ... (c) rules about licences, including, in particular, the circumstances in which, and the reasons for which, they can be cancelled or suspended or conditions imposed on them
(a) the persons who are eligible, and who are not eligible, to apply for the orders; and
(aa) how and when applications for the orders are to be made; and
(b) the criteria to be used in deciding applications for the orders; and
(c) the types of restrictions the court may or must apply to licences; and
(ca) the periods for which orders are effective; and
(d) variation of the orders; and
(e) the consequences for failing to comply with the orders, including, for example, the creation of offences and the disqualification of persons from holding or obtaining driver licences.
Importantly, for present purposes, paragraph (aa) above provides that the Regulation may include how and when applications on the basis of special hardship are to be made. From the start it seems the legislature was concerned to ensure that any Regulation on this subject would provide not merely how and when applications could or “may” be made but how they “are to be made”.
Section 30V of the Regulation (including the legislative note at the end of subsection (2)) provides:
30V Applying for order
(1) A person may apply for a special hardship order only to a relevant court for the person.
(2) An application for a special hardship order must be—
(a) made within 21 clear days after the applicant’s open or provisional licence was suspended under a relevant provision; and
(b) made in the approved form; and
(c) accompanied by the information, or details of the information, the applicant intends to rely on for the application.
Note—
See section 30Z(2) and (3) for particular evidence the applicant must give to the court.
(3) Subsection (2)(c) does not prevent the applicant from producing further evidence at the hearing of the application.
(4) The applicant must give the chief executive a copy of the application, including the information or details mentioned in subsection (2)(c)—
(a) if the day of the hearing is within 8 days after the day the application is made—as soon as practicable but before the day of the hearing; or
(b) otherwise—as soon as practicable but at least 7 days before the day of the hearing.
(5) In this section—
relevant court, for a person, means—
(a) if the person resides in the Brisbane Magistrates Courts District—a court in the division of the Brisbane Magistrates Courts District in which the person resides;
or
(b) otherwise—a court in the Magistrates Courts district in which the person resides.
It is important to note the use of the word “must” and the connective use of the word “and” after each paragraph in subsection (2). Section 14(4) of the Acts Interpretation Act 1954 provides that a Note in an Act, to the Act, or to a provision of the Act, as opposed to a footnote, an editor’s note or an endnote, is part of the Act. I must therefore also have regard to the Note when interpreting the meaning of the subsection to which it relates.
The Dictionary, schedule 4 of the Transport Operations (Road Use Management Act 1995 (The Act) defines “Court” to mean a Magistrates Court constituted under the Justices Act 1886.
A “relevant provision” for subsection (2)(a) is defined in section 30S of the regulation to mean either section 25(8) where 2 or more demerit points are gained while under an agreement to be of good driving behaviour for 1 year (as in the Application by Thoroughgood) or section 30A(1) where the applicant has been convicted for a contravention of the Queensland Road Rules, section 20, for driving more than 40km/h over the speed limit (as in the Application by Tyree).
Section 30Z provides:
30Z Criteria for deciding application for order
(1) A court may make a special hardship order only if the court is satisfied—
(a) the applicant for the order is a fit and proper person to continue to drive, having regard to the applicant’s traffic history and the safety of other road users and the public generally; and
(b) a refusal to make the order would—
(i) cause extreme hardship to the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning a living; or
(ii) cause severe and unusual hardship to the applicant or the applicant’s family, other than by depriving the applicant of the applicant’s means of earning a living; and
(c) when the order is made, the applicant holds an open or provisional licence that would be valid but for the suspension, under a relevant provision, to which the
order relates.
Note—
See also sections 30T and 30U for requirements about eligibility for a special hardship order and the licence suspensions in relation to which a special hardship order may be made.
(2) For subsection (1)(b)(i), the applicant must give the following
to the court—
(a) an affidavit made by the applicant outlining how the refusal to make the order would cause extreme hardship to the applicant or the applicant’s family;
(b) if the applicant is not self-employed—an affidavit made by the applicant’s employer confirming the applicant would be deprived of the applicant’s means of earning a living if the application is refused.
(3) For subsection (1)(b)(ii), the applicant must give the court an affidavit made by the applicant that—
(a) outlines how the refusal to make the order would cause severe and unusual hardship to the applicant or the applicant’s family; and
(b) has attached to it statutory declarations from persons other than the applicant, other documentary evidence, or
certified copies of evidence, in support of each matter stated in the affidavit.
As the legislative note at the end of subsection 30V(2) states, subsections 30Z(2) and (3) state what the Applicant must give to the court. As Mr Cooper submitted, they do not state when the affidavits must be given. I pause to observe that taken by themselves they do not do so. Taken together with subsection 30V(2) (which includes the Note and cross-reference to subsections 30Z(2) and (3) perhaps they do.
The Issues
Here is not in dispute that each application is made in the approved form and that it was filed in the correct Magistrates Court and that it was filed within 21 clear days after the relevant suspension. Each Applicant is eligible to apply for a Special Hardship Order. Neither of them is made ineligible under s 30U of the Regulation.
The issue here is whether the Applicant in either case can now file and rely on affidavits when there was no accompanying material lodged at all with their respective Applications.
The Submissions and discussion of the issues
To say the least, the position taken by Queensland Transport was vague. On the one hand, I understood the Department to say it usually took no objection to applications being heard even though the requirements of section 30V had not been strictly met. It was open to interpret them liberally. On the other hand it was submitted there was no power to amend the application which had not had any tick box completed and which had not been accompanied by any information relied on for the application.
Mr Rosser, for Thoroughgood, submitted that a Fact Sheet he downloaded from the Queensland Transport web site supported his argument that the only information required by s 30V(2)(c) was the information on the approved form such as the applicant’s name, licence number, class of licence and expiry date.
Mr Rosser was peculiarly selective in his reference to only one paragraph on the second page of the Fact Sheet which reads:
What if I give Queensland Transport a copy of my SHO application without a copy of my affidavit?
If you give a copy of your court stamped SHO application to Queensland Transport without supporting evidence, the application may still be accepted.
However, you should return to Queensland Transport with your supporting evidence at least seven days prior to the hearing date.
It seems clear this paragraph does not address the requirements of subsection 30V(2) and addresses only the requirement of subsection 30V(4) of the Regulation.
This is even clearer when one reads more of the Fact Sheet.[2] Indeed, the very next Question and Answer are highly relevant. They state:
[2] The Fact Sheet can be downloaded at
Can I lodge a copy of my SHO application with Queensland Transport before lodging it with a Magistrates Court?
No. Your SHO application and supporting documents must be lodged with the Magistrates Court before a copy is given to Queensland Transport. Until that happens, your licence will remain suspended and you will be
unable to drive. After a copy is given to Queensland Transport, your licence suspension will then be stayed (lifted). You will then be able to drive until the day before your court hearing.
In fact, one does not even need to go past the first page to see a very clear direction where the Fact Sheet states:
How do I apply for a SHO?
1. Complete an Application for a Special Hardship Order form (F4401) form available from a Magistrates Court or Queensland Transport.
2. Lodge the application along with supporting evidence to a Magistrates Court in the division or district where you reside, within 21 days after your licence has been suspended.
3. Lodge a copy of the application and supporting evidence with Queensland Transport at least seven days (or as close as practicable) before the date of the court hearing.
Fact Sheets cannot prevail over or supersede the actual requirements of a section in an Act or a Regulation. However, I am satisfied that here it accurately reflects the statutory mandatory requirements. It serves as a useful and accurate guide to the lay person and lawyer alike.
Furthermore, the back of the Approved Form itself contains the following clear statement, including the bold type:
“How to apply
This application, accompanied by the required information, must be made within 21 clear days after your licence was suspended to the Magistrates Court in the division or district in which you reside.”
Mr Rosser also submitted that there was no inconsistency created between the Regulation and the Uniform Civil Procedure Rules (UCPR), if they applied, and that I could allow an amendment to the application despite the lapse of 21 days by the time the application was sought. He submitted the amendment could be made by allowing the tick box for the Applicant’s Affidavit to be checked and that I could allow the applicant to file her affidavit. He also said as the day had been set to hear legal argument he equated the hearing of this argument to a pre-trial hearing (even calling it a voir dire) and that he had therefore not yet filed the affidavit.
Mr Cooper, for Tyree, advised that he had in fact now served his client’s affidavit on Queensland Transport so that if I accepted his argument his client would also comply with the service requirements in s 30V(4) of the Regulation and so that I could hear the merits of the application in anticipation of the threshold issues being determined in his client’s favour.
Mr Cooper submitted that the wording of s 30V(2)(c) deals in broad issues and does not refer to s 30Z which only provides what the applicant must provide to the court. He submits s 30Z does not state when the affidavit must be supplied to the court. He submits that if it was intended that all affidavit material had to be served on Queensland Transport the section would have said so. I will return to this argument below.
He submits that filing the application at the hearing constitutes compliance with the section. It was submitted that the same procedure as applies to applications made under section 87 of the Transport Operations (Road Use Management) Act 1995 for a restricted licence should apply here. This is a baseless submission. Section 87(2) provides that the application for an order under that section may be made at the proceedings in which the conviction is recorded against the applicant by reason of which the applicant is disqualified from holding or obtaining a Queensland driver licence and before the court makes that order and not otherwise. Under subsection (2A) the application must be made in the approved form. Under subsection (5A), if the applicant is not self-employed, the applicant must produce to the court an affidavit made by the applicant’s employer confirming the applicant would be deprived of the applicant’s means of earning a living if the application is refused. The section does not require service of the affidavit on Queensland transport or the Commissioner of police. The statutory procedures in s 87 of the Act and s 30V of the regulation are therefore deliberately and vastly different.
Mr Cooper, like Mr Rosser, also submitted that the information on the approved form is enough, i.e. information such as the applicant’s occupation.
Mr Cooper submits that the adjournment of the hearing has cured any prejudice to Queensland Transport because the department has now had the opportunity to consider the material to be filed by the Applicant. This submission does not address the mandatory requirements of subsections 30V(2) and (4).
Mr Cooper also relied on the Registry practice and the fact the application was allowed to be filed without the supporting information or affidavit. There are two possible answers to this submission. There is no evidence before the court that the registry staff are, or are not, properly trained. In fact, it is common to find in the Magistrates Court Registry that claims are lodged at the insistence of claimants despite being told at the registry that the claim can not be lodged. This is commonly seen with Small Claims and Minor Debt Claims. It is the left to the Magistrate to explain to the Claimant why the claim is being dismissed, say, for want of jurisdiction. A further and perhaps better explanation is the fact that if the supporting information is still provided by the applicant within 21 days of the date of licence suspension it could be said the applicant is still complying with section 30V(2)(c) of the Regulation in that the information will still be accompanying the application within the 21 day limitation period.
Mr Cooper also submitted I have the power under Rule 375 of the UCPR to amend the application and allow the affidavit to be filed despite the limitation period in s 30V of the Regulation. I turn to this issue.
One approach to deciding the threshold issue could be to consider whether any procedural law governs an application to a Magistrates Court for a Special Hardship Order in addition to, or instead of, any procedure set out in section 30V itself.
There is nothing in either The Act or The Regulation which expressly requires a Magistrates Court to adopt the procedures under the Justices Act 1886 (which apply to the hearing of complaints for simple offences and breaches of duty) when it is considering such an application for a Special Hardship Order which is essentially civil in nature[3].
[3] Contrast the Peace and Good Behaviour Act 1982 (Qld), s 8:
“ 8 Application of Justices Act
Subject to this Part and subject to any necessary modifications and any modifications prescribed by regulation, the provisions of and proceedings and procedures under the Justices Act 1886 applicable in the case of the prosecution of an offence in a summary way under that Act are applicable in the case of proceedings by way of complaint in respect of which an order to keep the peace and be of good behaviour may be made pursuant to section 6 as if such complaint were a complaint in respect of such an offence.”
Also contrast the Domestic and Family Violence Act 1989 (Qld), s 38(2):
“(2) To remove doubt, it is declared that—
(a) for proceedings under this Act before a Magistrates Court or magistrate—the provisions of the Justices Act 1886 apply to the proceedings unless the application of that Act is inconsistent with this Act;”
However, under s 36 of the Acts Interpretation Act 1954 “Magistrates Court” means a Magistrates Court established under the Justices Act 1886.
As noted above, in the Dictionary, schedule 4 of the Transport Operations (Road Use Management Act 1995 (The Act) defines “Court” to mean a Magistrates Court constituted under the Justices Act 1886.
Further, section 44 of the Acts Interpretation Act 1954 relevantly provides:
44 Summary proceedings
(1) In an Act, a provision of the type mentioned in subsection (2) means that a proceeding for an offence, or a specified offence, against the Act is a summary proceeding under the Justices Act 1886.
(2) Subsection (1) applies to provisions of the following type—
(a) a provision to the effect that a proceeding for the offence is to be heard and decided summarily;
(b) a provision to the effect that a proceeding for the offence is to be heard and decided by or before justices or a magistrate;
(c) a provision to the effect that the offence is a summary offence or is punishable on summary conviction or summarily;
(d) a provision for an offence that does not expressly or impliedly make the offence an indictable offence.
(3) In an Act, a provision that provides that another type of proceeding is to be heard and decided summarily, or before justices or a magistrate, means that the proceeding is a summary proceeding under the Justices Act 1886.
There is nothing in the Justices Act which would allow the amendment sought in relation to such an application. The procedures set out in the Justices Act deal with the amendment of complaints, summons and warrants, procedures for dealing with simple offences and breaches of duty (for example, in absentia), the issuing of warrants or complaints and summonses, and for determining where cases are to be heard.
Conclusions
In my view, having considered all of the above, section 30V sets out its own mandatory procedure without any need to go to the Justices Act or UCPR to know how to proceed to hear and determine the application.
Even if the UCPR applies, if the mandatory requirements of s 30V are not satisfied the Application in each case is a nullity. Something which is a nullity cannot be amended. If the Application was never properly constituted, within the time limitation of 21 clear days from the licence suspension, then the court has no power to make an order which would overcome that deficiency. See Francis v National Mutual Life Association of Australasia Ltd [1999] 2 Qd R 355 at 360.
Rule 10 of the UCPR provides:
10 Application compulsory
A proceeding must be started by application if an Act or these rules require or permit a person to apply to a court for an order or another kind of relief and—
(a) the Act or rules do not state the type of originating process to be used; or
(b) a type of originating process (other than a claim or application) is required or permitted under a law.
Rules 375 and 376 of the UCPR provide:
375 Power to amend
(1) At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.
(2) The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
(3) If there is misnomer of a party, the court must allow or direct the amendments necessary to correct the misnomer.
(4) This rule is subject to rule 376.
376 Amendment after limitation period
(1) This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
(2) The court may give leave to make an amendment correcting the name of a party, even if the effect of the amendment is to substitute a new party, only if—
(a) the court considers it appropriate; and
(b) the court is satisfied that the mistake sought to be corrected—
(i) was a genuine mistake; and
(ii) was not misleading or likely to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.
(3) The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counterclaiming defendant, only if—
(a) the court considers it appropriate; and
(b) the changed capacity in which the party would then sue is one in which, at the date the proceeding was started by the party, the party might have sued.
(4) The court may give leave to make an amendment to include a new cause of action only if—
(a) the court considers it appropriate; and
(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.
Even if the UCPR does apply to applications for Special Hardship Orders made under s 30V of the Regulation, there is nothing in rule 375 or 376 which permits an amendment to cure a deficiency created by failing not only to tick a box but by failing to accompany the application with the information, or details of the information, the applicant intends to rely on for the application.
Also, section 150AB of the Transport Operations (Road Use Management) Act 1995 expressly provides:
150AB Driver licensing regulation prevails over rules of court
(1) This section applies if the driver licensing regulation provides for how and when an application is to be made to a court.
(2) If there is an inconsistency between the driver licensing regulation and any rules of court, the regulation prevails to the extent of the inconsistency.
(3) In this section—
driver licensing regulation means the Transport Operations (Road Use Management—Driver Licensing) Regulation 1999.
Section 30V of the Regulation does clearly set out its own originating process and requires that the application must be made in the approved form. It further requires that the application must be made within 21 clear days from the date of the licence suspension and that the application must be accompanied by the information, or details of the information, the applicant intends to rely on for the application. It therefore does provide for how and when an application is to be made to a court.
The rules in the UCPR about applications do not apply.
If they do apply the rule allowing amendments creates an inconsistency if it is intended to overcome the time limitation for the making of the application and the filing of the accompanying material. To that extent the Regulation must prevail.[4]
[4] Section 150 AB above was inserted several years after the decision in Horne v. Frank [2001] QDC 29. In that case McGill DCJ was considering the appropriate procedure to be adopted in a Magistrates Court to determine an application about the ownership of property under section 425 (now s 695) of the Police Powers and Responsibilities Act 2000 (Qld). At [12] McGill DCJ said:
“[12] If … the application is to a magistrate performing a judicial function as a member of a magistrates court, it follows that r 10 of the Uniform Civil Procedure Rules applies to such application … ”
Mr Cooper also submitted that his client ought to be able to give oral evidence of the information required by the section. This again ignores the time bar.
Subsection 30V(3) provides that “Subsection (2)(c) does not prevent the applicant from producing further evidence at the hearing of the application.” However, one can only lead ‘further’ evidence if one has already produced some evidence.
In my view the use of the phrase “information, or details of the information, the applicant intends to rely on for the application” when read together with the legislative Note — “See section 30Z(2) and (3) for particular evidence the applicant must give to the court.” — is intended to be a generic catch-all for the mandatory (s 30Z) material and any other non-mandatory information which the applicant may rely on.
Further, there would be sufficient compliance with the section if the application in the approved form is accompanied by either the affidavit material which section 30Z makes mandatory, other affidavits and documents or at least particulars of the information intended to be relied upon which is sufficient for the Court and Queensland Transport to identify the information which the applicant will rely on in support of his or her application. In this regard, simply ticking the box next to the word “Affidavit” would not suffice.
In the two cases before me no boxes were ticked and nothing at all accompanied the application when it was lodged.
Each application must therefore be dismissed.
The Merits of Tyree’s application
On the Application by Tyree I would have refused the application anyway. I have had regard to the Applicants traffic record and the circumstances of the High Speed offence. The Applicant is a 19 year old male, he was on a Provisional Licence and travelled at 121 kph in a 70 kph zone just to see if someone up ahead of him was someone he thought he recognised. On a provisional Licence he only had 4 points. The High Speed offence earned him 8 demerit points. Having regard to these factors, even taking into account the content of his Affidavit (filed notionally) and his attendance at the Gold Coast Traffic Offender Program, and having regard to the safety of other road users and the public generally, I find the applicant is not a fit and proper person to continue to drive at this time.
ORDERS
Each Application is dismissed.
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