McHale v Police
[2014] NZHC 658
•3 April 2014
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2014-441-03 [2014] NZHC 658
BETWEEN PAUL MARTIN McHALE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 20 February 2014 Appearances:
E J Forster for the appellant
J D Lucas for the respondentJudgment:
3 April 2014
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Paul Martin McHale, was convicted on 21 October 2013 of driving with excess breath alcohol. Mr McHale was sentenced to a fine of $1,100.00 and, as required by s 56(3)(b) of the Land Transport Act 1998 (the Act), the Court ordered him to be disqualified from holding or obtaining a driver licence for six months or more. Mr McHale was disqualified for seven months.
[2] Mr McHale subsequently applied to the District Court for an order under s 105 of the Act authorising the grant to him by the New Zealand Transport Agency (the Agency) of a limited licence. On 17 December 2013 the District Court declined that application,1 ruling that s 104(2) precluded it from making such an order.
[3] Mr McHale now appeals against that decision of the District Court, saying it is wrong in law.
1 McHale v Police DC Hastings CIV 2013-020-2678, 17 December 2013.
McHALE v POLICE [2014] NZHC 658 [3 April 2014]
Facts
[4] Mr McHale has lived in New Zealand for approximately 10 years. He came here from Ireland. Mr McHale does not hold and has never held a New Zealand driver licence. He holds a valid Irish driver’s licence. Rule 88 of the Land Transport (Driver Licensing) Rule 1999 (the Rule) treated that Irish licence as a New Zealand driver licence for the continuous period of 12 months after Mr McHale’s arrival in New Zealand. Mr McHale accepts that that period expired some nine years ago. He
has, since then, been an unlicensed driver.2
[5] Section 104(2) of the Act provides as follows:
An order may be made under section 105 authorising a person to drive a motor vehicle of a particular class only if the person held a driver licence or endorsement for that class immediately before he or she was disqualified.
[6] Notwithstanding Mr Forster’s argument (as here) to the contrary, the District Court concluded that a plain reading of s 104(2) prohibited a person who did not hold a licence at the time of disqualification from obtaining a limited licence. Given that Mr McHale was an unlicensed driver at the relevant time, the Court was therefore unable to make an order under s 105.
Case on appeal
[7] Mr Forster’s argument for Mr McHale in this appeal can be summarised as follows:
(a) The mandatory order under s 56(3)(b) disqualifies a person from both holding or obtaining a driver licence. The disjunctive reference to “obtaining” must have some meaning.
(b)An obvious application of that disjunctive reference is that it applies, as here, in circumstances where the disqualified driver does not hold a
driver licence.
2 This is, of course, a separate offence (s 31(1)(a)(ii) of the Land Transport Act 1988) to drive a motor vehicle on a road without an appropriate driver licence. As far as I am aware, Mr McHale has never faced a charge under that section.
(c) As a matter of policy, there is no reason why the provisions of Part 8 of the Act, which mitigate penalties and of which the limited licence provisions are a part, should not apply in favour of unlicensed drivers who are disqualified for drink driving offences.
(d)Section 104(2) is a machinery provision. In effect it provides that where the Court makes a s 105 order, it may only require the grant of a licence of the same class as that held by the disqualified driver before disqualification. Where the disqualified driver did not hold a driver licence before disqualification, it has no application. If the District Court’s interpretation was correct, the disjunctive reference to “obtain” would have no application as an unlicensed driver would not, by dint of a literal application of s 104(2), be able to obtain a limited licence in any circumstance.
(e) Reflecting the disjunctive significance of “obtain”, the Agency’s obligation under s 105(6) to issue a limited licence following a Court order to that effect is expressly subject to s 30(5). Section 30(5), as relevant, requires the Agency to be satisfied a person is “entitled to apply for and be granted a driver licence” before it issues a limited licence.
(f) Therefore, the Agency would only issue such a licence to Mr McHale if, in terms of ss 105(6) and 30(5), it was satisfied that Mr McHale was entitled to be granted a driver licence: that is, Mr McHale would have first to pass the licence test.
[8] In other words, any grant by the Court of a limited licence to Mr McHale would require him first to qualify as a licensed driver before his limited licence could issue. In that way Mr McHale could access the Part 8 mitigation provisions, as Mr Forster argued was appropriate as a matter of policy.
[9] The argument for the New Zealand Police was straightforward:
(a) The Judge had correctly applied the prohibition contained in s 104(2).
(b)Once the Court had made an order authorising a disqualified driver to obtain a limited licence, the Agency was required to issue such a licence. There was no room, therefore, for the procedure of testing that Mr Forster said would be involved.
Analysis
[10] The Courts gain their power to authorise applicants to obtain limited licences from s 105 of the Land Transport Act. That section provides, as relevant here:
105 Court may make order authorising grant of limited licence
(1) A court may at any time make an order under this section authorising the applicant to obtain, immediately or after the expiration of such period as the court may specify, a driver licence (“a limited licence”) authorising the applicant to drive to such extent (being the least extent that it is necessary to alleviate extreme or undue hardship) as the court specifies in the order.
(2) The court may make an order under this section if satisfied that—
(a) the disqualification or suspension has resulted or will result in—
(i) extreme hardship to the applicant (whether in relation to employment or otherwise); or
(ii) undue hardship to a person other than the applicant
(whether in relation to employment or otherwise); and
(ab) the applicant meets the criteria specified in sections 103 and
104; and
(b) an order under this section is not contrary to the interests of public safety.
[11] Authorisations to obtain limited licences are, therefore, granted to alleviate extreme or undue hardship that might otherwise arise if a person is deprived of the ability to drive at all. But applicants must meet the ss 103 and 104 criteria.
[12] As to those criteria, s 103(1) provides:
(1) Unless prevented by subsection (2), the following persons may apply for an order under section 105 authorising the grant of a limited licence:
(a) persons who are disqualified by an order made under this Act from holding or obtaining a driver licence:
(b) persons who are subject to a licence suspension under section 90 (as a result of demerit points).
[13] So, up to this point, Mr McHale is a person who may apply.
[14] Section 103(2) then enumerates persons who may not apply, because they are subject to a range of particular disqualifying orders. Mr McHale is not subject to any of those orders, and hence s 103(2) does not preclude him from applying.
[15] Section 104 contains further criteria. Subsection (1) lists a series of offences. If one of those offences gave rise to the disqualification, no order may be made. Subsection (3) precludes an order being made for specified purposes, including conducting driving tests or acting as a driving instructor. Neither of those subsections apply to Mr McHale.
[16] Section 104(2) provides, as above, that an order may be made under s 105 to authorise a person to drive a motor vehicle of a particular class “only if the person held a driver licence or endorsement for that class immediately before he or she was disqualified”. That is a further criterion that an applicant must satisfy. It is not, as Mr Forster argued, simply a machinery provision. Rather it is, by my assessment, a substantive requirement. Mr McHale cannot satisfy that criteria.
[17] Nor do I think that s 30(5) is to be given the interpretation Mr Forster argues for. Section 30 is, by contrast with ss 103 and 104, a relatively mechanical provision. As reflected by its heading, it provides that driver licences are the property of the Agency and are to be surrendered in certain circumstances to certain persons. Where a Court disqualifies a person from holding or obtaining a driver licence, s 82 operates to suspend that person’s licence “while the disqualification continues in force”. Pursuant to s 30(3) that person must immediately surrender their licence to the Court, to a constable or at any office of the Agency. The Court or the police, having received a suspended licence, must immediately forward it to the Agency per s 30(4).
[18] A licence having been surrendered, s 30(5) then provides:
The Agency must, subject to sections 82A, 83, and 105(6A) and as soon as practicable after being satisfied that a person is entitled to apply for and be granted a driver licence,—
(a) issue a new driver licence to the person when the disqualification or suspension expires or is removed; or
(b) in the case where a court authorises the issue of an alcohol interlock licence, issue an alcohol interlock licence to the person; or
(c) in the case where a court authorises the issue of a zero alcohol licence, issue a zero alcohol licence to the person; or
(d) in the case where a court authorises the issue of a limited licence, issue a limited licence to the person.
[19] Section 30(5), therefore, provides for the issue of new licences, when periods of disqualification or suspension expire or are removed, and where the Court makes an appropriate order, including to authorise the issue of a limited licence, notwithstanding the disqualification and subsequent surrender of the person’s driver licence.
[20] In my view the phrase “after being satisfied that a person is entitled to apply for and be granted a driver licence” means the Agency is required to check that the eligibility requirements of that part of the Act are met, being – for a limited licence – ss 103-105. If upon checking the Agency is not satisfied those provisions are met, it could not be satisfied the person was entitled to apply for and be granted a driver licence (as a disqualified person is not otherwise entitled to apply for and be granted a licence). It would in those circumstances not be authorised to grant a limited licence by s 30(5). Section 105(6A) confirms the Agency may decline to issue the limited licence in such a case. That section provides:
If, after the court makes an order under this section, the Agency becomes aware that the applicant is not entitled to apply for or be granted a limited licence in accordance with sections 103 and 104, the Agency may—
(a) decline to issue the limited licence; and
(b) refer the applicant to the right of appeal under section 106.
[21] This interpretation of s 30(5) is confirmed by the history of that section and of s 105. From 22 June 2005 to 9 May 2011, s 105(6) read:
If the court makes an order under this section, the Authority [Director/Agency] must, despite anything in this Act to the contrary but otherwise subject to the provisions of this Act, issue to the person entitled to it a limited licence in accordance with the terms of the order.
[22] During that period s 30(5) read:
When either–
(a) The disqualification or suspension expires or is removed; or
(b) A court authorises the issue of a limited licence,–
the Authority [Director/Agency] must, subject to section 83 and as soon as practicable after being satisfied that the holder is eligible to hold such a licence, return the licence to the holder or issue a new licence.
[23] In Land Transport New Zealand v Ho,3 Miller J considered an appeal against a District Court decision to grant a limited licence allowing a disqualified driver to drive a taxi. There was a clear prohibition against granting a limited licence for the purpose of taxi driving in s 104(3). Justice Miller read down s 105(6) and held that the words “despite anything in this Act to the contrary” must be taken to refer only to the provisions under which the applicant may have been suspended or disqualified in the first place. The implication was that the Director did not have to issue a limited licence in accordance with the order (and contrary to the s 104(3) prohibition) because the Director was required by s 105(6) to issue a limited licence only when authorised to do so by the limited licence provisions.
[24] Section 30(5) was not discussed in that case. In my view, however:
(a) the introduction of s 105(6A), explicitly authorising the Agency to decline a limited licence in such a situation;
(b)the amendment of s 105(6) to clarify that the Agency’s power to issue a licence is subject to the provisions of the Act but can be exercised despite the fact the person is suspended or disqualified; and
(c) the making of s 30(5) subject to s 105(6A),
confirm that s 30(5) involved the Agency being satisfied that the limited licence provisions were complied with.
[25] The Agency’s inquiry cannot be broader as there is no other source of the
disqualified driver’s ability to obtain a licence. In the absence of the limited licence
3 Land Transport New Zealand v Ho HC Wellington CIV-2005-485-1047, 14 June 2005.
provisions the Agency would never be satisfied a disqualified driver was “entitled to apply for and be granted a driver licence”, as they are not so entitled. It is irrelevant whether they originally held or never held a driver licence. Due to their disqualification they are, but for ss 103 to 105, not entitled to apply for and be granted a driver licence. That is the effect of their disqualification.
[26] If s 104(2) did not apply to a person in Mr McHale’s situation then the Agency would be satisfied that she or he was entitled to a limited licence as she or he meets the other criteria and, if the Court so ordered, would – pursuant to s 105(6) and s 30(5) – have to grant a limited licence in accordance with the Court order.
[27] I therefore conclude, as did the District Court, that s 104(2) precluded the grant to Mr McHale of a limited licence. In my view, that conclusion fits sensibly into the scheme whereby limited licences are granted. That scheme essentially depends upon the driver in question, prior to their disqualification or suspension, having held a driver licence. To suggest that, between the Court’s order granting the obtaining of a limited licence and the Agency being required to do so, the Agency may be required to allow an applicant to go through the driver licensing regime does not fit into that basic scheme.
[28] The answer to Mr Forster’s question, namely what is the purpose of the reference to “obtain”, is simple. A conviction under s 56 requires the Court to order disqualification. The licence of a disqualified driver is automatically suspended. The use of the phrase “hold or obtain” reflects the statutory consequence that a driver may no longer hold, and may not obtain, a licence during the period, subject to the limited licence provisions, of their disqualification.
Result
[29] Mr McHale’s appeal is therefore dismissed.
“Clifford J”
Solicitors:
E J Forster, Barrister, Hastings for the appellant.
Crown Solicitor, Napier for the respondent.
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