Zucco v Registrar of Motor Vehicles

[2000] TASSC 170

[2000] TASSC 170

CITATION:              Zucco v Registrar of Motor Vehicles [2000] TASSC 170

PARTIES:  ZUCCO, Marti

v
REGISTRAR OF MOTOR VEHICLES

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 104/2000
DELIVERED ON:  7 December 2000
DELIVERED AT:  Hobart
HEARING DATE:  4 December 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Applicant:  In person
           Respondent:  K Brown
Solicitors:
           Applicant:  In person
           Respondent:  Director of Public Prosecutions

Judgment  Number:  [2000] TASSC 170
Number of paragraphs:  8

Serial No 170/2000
File No LCA 104/2000

MARTI ZUCCO v REGISTRAR OF MOTOR VEHICLES

REASONS FOR JUDGMENT  COX CJ

7 December 2000

1. This is a notice to review the refusal of a magistrate to grant a Restricted Driver Licence pursuant to the Vehicle and Traffic Act 1999, the applicant having been disqualified for holding or obtaining a licence to drive a motor vehicle for six months in consequence of the accumulation of 12 demerit points within a three year period.

1. The applicant sought authorisation to drive in the morning between his home at Geilston Bay to a business conducted by him at Main Road, Glenorchy and then to a shop at Claremont, at each of which premises he conducted a TAB business, and to return to his home in the evening on week days other than Tuesdays, which he seems to have taken as a day of leave.  Similar authorisation at different times was sought for Saturday and Sunday each week.  In addition, because the applicant is an alderman of the City of Hobart, he sought a licence which would permit him to drive between his places of business and home via the offices of the Hobart City Council on those days when he was required to attend meetings at the Town Hall.  It appears there are three such meetings each fortnight.

1. He claimed that the licence disqualification was imposing, and would impose, severe and unusual hardship upon him because his home, accessible by a single lane dirt road, was situated about 1.5 kilometres from the nearest bus stop and because, although it would be possible to travel by public transport from Geilston Bay to Glenorchy in the mornings of week days, the last bus for the return journey left too early for him to utilise it.  Furthermore, there was no practicable connecting bus from Glenorchy to Claremont.  On the weekends, he claimed that the bus times were similarly impracticable.  The cost of regularly travelling by taxi between all four locations was in the order of $450 per week.  The Glenorchy premises were manned by a full time employee, but the applicant claimed he needed to visit them each day in order to "pick up the newspapers, prepare the morning for the staff, make sure the previous day's balancing has occurred, do the banking … on a Monday and a Thursday of each week".  Challenged as to why the employee could not conduct these duties, he agreed that the employee could do so:

"… but ultimately I am responsible for everything that happens then and I am not employing a manager, I am managing it myself.  So again that would cost money in further costs of wages.  If I had to get other people to do other duties.  And I've got to say, there is a fine line between making a profit and not making a profit in this business". 

Evidence showed that he engaged a part time employee to assist him at the Claremont premises and that this employee worked during the hours he normally took off, including those necessary to attend council meetings.  No explanation was offered as to why it would be impracticable or unduly expensive to extend that person's hours to enable him to accommodate himself to the bus timetables.  The applicant is divorced and lives on his own.  He claims he has no one on whom he could rely for transport.

1. Although the evening bus timetable between Claremont and Geilston Bay requires him to leave Claremont a good deal earlier than usual (hence requiring a part time substitute), the timetables in evidence indicate that buses nevertheless run from Claremont to the City and thence to Geilston Bay at times which would enable him to use public transport to return to his home.  As to the use of taxis, although, if it is necessary to visit the Glenorchy premises each day, a taxi trip from Glenorchy to Claremont might be necessitated, the cost, according to an annexure to his application, was $10.  In any event, the need to visit Glenorchy each day seems debatable having regard to the reasons advanced and cited above.

1. The learned magistrate said in respect of the hardship aspect:

"I do also say that I think, with the size of this city and the geographical areas that we have talked about - the northern suburbs, the eastern shore and Hobart, the alternatives available to the applicant by way of bus service or taxis was simply not beyond possibility here.  I would have thought a combination of energies in relation to those particular facilities would have alleviated the applicant's situation in any event, so I am not satisfied in relation to either ground and the application is dismissed."

1. It is trite law that the onus of establishing hardship which is severe and unusual lies upon the applicant (Manning v Foster 87/1971; Strickland v Parsons 57/1981).  A walk of 1.5 kilometres to the nearest bus stop and the use of public transport through metropolitan areas, even by circuitous routes, with the occasional use of taxis, would no doubt be very inconvenient and would involve not insignificant expense; but in the circumstances and having regard to the failure of the applicant to demonstrate an inability to re-arrange his working hours and those of his staff, it is not surprising that the learned magistrate was not persuaded that the disqualification was imposing, or would impose, severe and unusual hardship which should be alleviated by the issue of a Restricted Driver Licence.

1. That is sufficient to dispose of the appeal, but for the sake of completeness I will deal with the complaint against the learned magistrate's ruling that he was not satisfied that the issue of the licence would not be contrary to the public interest. 

1. The applicant has now been the subject of disqualification due to the accumulation of demerit points three times.  In 1989 he was disqualified for 90 days, but was given a restricted licence.  In 1997 he was again disqualified for three months, but granted a probationary licence in lieu of disqualification pursuant to the Traffic Act 1925, s43EA. Between 16 May 1998 and 26 July 2000, the applicant again accumulated 12 demerit points, the last four by virtue of four separate speeding offences in a six month period. All save one of the applicant's offences are for speeding. Since 1987 he has committed 21 such offences. The learned magistrate observed that the applicant had 22 moving traffic offences in a 16 year period, that he had had a restricted licence and one probationary licence, yet he kept offending and was properly characterised as a persistent offender. In the view of the learned magistrate "the granting of a restricted licence would so diminish the deterrent effect of that disqualification as to be contrary to the public interest". I reviewed an application for a restricted licence in not dissimilar circumstances in Steers v Registrar of Motor Vehicles [2000] TASSC 5 and referred to some of the cases in which the Court's approach to the question of public interest had been formulated. Although many of those cases dealt with situations where disqualification had been imposed by a Court of Petty Sessions as a matter of discretion for offences including drink driving offences, I said, at 7, that I could see no reason why the comments made therein 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. I concluded that:

"… 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".

The fact that in Steers' case the unsuccessful applicant had accumulated demerit points more rapidly because he drove at higher speeds may have accentuated the potential for danger to other road users but does not diminish the importance of deterrence in considering an application by an offender who persistently exceeds the speed limits by lower margins.  The learned magistrate has not been shown to be in error and the appeal must therefore be dismissed.