Nadan v Police
[2024] NZHC 3939
•19 December 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-285
[2024] NZHC 3939
BETWEEN RAJEER NADAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 December 2024 Appearances:
J A Poff for Appellant
C M Hallaway for Respondent
Judgment:
19 December 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 19 December 2024 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
NADAN v NEW ZEALAND POLICE [2024] NZHC 3939 [19 December 2024]
Introduction
[1] Rajeeve Nadan was convicted of driving with excess breath alcohol.1 He was disqualified from holding or obtaining a driver’s licence for six months from 30 September 2024. He applied for a limited licence which was declined by Judge Orchard on 12 November 2024.2 Mr Nadan appeals this decision on the ground that extreme hardship was made out, and a limited licence should be granted.
Facts
[2] On 26 June 2024, Mr Nadan drove his car from his home in Riccarton to Spreydon following a fight with his wife. Mr Nadan subsequently called the police himself, stating he had drunk alcohol and driven with his two-year old in the vehicle. Police located Mr Nadan, and an evidential breath test produced a positive result of 512 micrograms of alcohol per litre of breath.
District Court decision
[3] On 12 November, Mr Nadan sought a limited licence to travel for work and childcare purposes. The limited licence was to allow Mr Nadan to work his standard hours, to drive to work when on call, and to pick up his children from school once a week on Friday and to drop them off at school after the weekend.
[4] The Judge held there was no extreme hardship to Mr Nadan, or undue hardship to others arising from the present arrangements which included Mr Nadan’s mother dropping him to work, around 7 km from his home, and, when she was unable to do so, Mr Nadan taking leave. Further, his mother would pick him up if he could not get a lift from a colleague to home. The Judge was satisfied his mother was in a position to continue providing assistance and, while Mr Nadan explained his mother was burdened as she worked in the opposite direction herself, there was no independent evidence of this arrangement being unsustainable.
1 Land Transport Act 1998, s 56(1); maximum penalty three months’ imprisonment or $4500 fine.
2 Police v Nadan [2024] NZDC 27790.
[5] The police made enquires directly with the employer, and confirmed Mr Nadan would not lose his job if he could not do the on-call work. While Mr Nadan’s counsel noted that the on-call work accounted for 20 per cent of his income, the Judge was not satisfied this work had to be given up, saying the use of a taxi or ride-share services, and the associated cost, would not amount to extreme hardship.
[6] Regarding childcare, Mr Nadan’s ex-partner had been dropping off his children, aged two and five to enable him to look after them in accordance with the agreed arrangements. While counsel said Mr Nadan’s ex-partner had indicated she wanted as much distance from Mr Nadan as possible, the Judge was not satisfied on the evidence that she would refuse to transport the children from school to him.
[7] The application for a limited licence was declined as the consequences were no more than the “ordinary inconveniences that can be expected from disqualification”.
Principles on appeal
[8] Section 107 of the Land Transport Act 1998 provides leave to appeal a decision of the District Court where that court has refused to grant a limited licence on the terms proposed.
[9] The appellate court must reach its own view on the merits of the appeal, bearing in mind that the appellant bears an onus of satisfying the court that it should differ from the decision under appeal.3
[10] A court may make an order authorising the applicant to obtain a limited licence if it is satisfied that:4
(a)the disqualification or suspension will result in extreme hardship to the applicant or undue hardship to a person other than the applicant;
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [4].
4 Land Transport Act 1998, s 105(2).
(b)the application meets the criteria specified under ss 103 and 104 of the LTA; and
(c)an order is not contrary to the interests of public safety.
[11] The commentary in the Law of Transportation observes that there is little authority on the meaning of the word “extreme”, but suggests when determining whether hardship is of this nature, all of the circumstances surrounding the offence and the offender must be taken into account.5
[12]In Wheeler v Ministry of Transport, Grieg J observed:6
[H]ardship is to be anticipated and has to be accepted whether by the applicant himself, his employer or other persons with whom he is associated. Undue hardship must be something less than extreme hardship but more than hardship simply. The adjective “undue” has, I think a comparative connotation, whereas the adjective “extreme” has a superlative or absolute connotation. Therefore there has to be something more, something greater, something excessive, to bring it within the term “undue”.
Submissions
Appellant’s submissions
[13] Mr Poff, for the appellant, submits a limited licence would only allow Mr Nadan to drive for work and childcare purposes, enabling him to work his standard hours, and to drive to work when on call. Second, Mr Nadan’s licence would allow him to pick up and drop off his children from school in accordance with the care arrangements agreed with his former partner.
[14] Mr Poff submits Mr Nadan cannot continue to rely on his mother or colleagues to provide transport to and from work. While Mr Nadan utilised these options during the mandatory standdown period, to rely on this for balance of the period of disqualification is “entirely unrealistic”, and would place pressure on those people, such that they would likely suffer undue hardship.
5 Christine Sanders (ed) Law of Transportation — Land Transport Act 1998 (online ed, Thomson Reuters) at [LT105.03].
6 Wheeler v Ministry of Transport HC Palmerston North M125/85, 11 October 1985.
[15] Beyond the impact on relying on others to transport him, taking leave, or paying for taxis or ride-share services, Mr Poff submits there is now a real and appreciable risk of Mr Nadan losing his employment if he continues to have to rely on such measures. In support of this submission, Mr Poff provided a further letter from Mr Nadan’s manager, Nicholas Narbey. Mr Narbey states that, without a licence, Mr Nadan is struggling to get to work. He also says Mr Nadan has used 80 per cent of his annual leave and sick leave. Mr Narbey states that “[l]ately it has affected his attendance and questions [sic] on leadership skills” and that “moving forward in future this cannot continue and can lead to disciplinary actions or termination of his employment”. Mr Narbey supports the application for a limited licence as Mr Nadan “has worked for the company for more than 11 years and has been a model employee”.
[16] Beyond the direct employment consequences, Mr Poff reinforces that the on-call work makes up 20 per cent of Mr Nadan’s income and the loss of this would result in extreme hardship.
[17] Further, Mr Poff says the proposition that Mr Nadan’s ex-partner can drop off the children when he has a resolution order is inappropriate. On appeal, he has provided a letter from her which says she no longer wants to drive the children to and from Mr Nadan’s place as she “wants to maintain our boundaries”. Mr Poff has also provided a letter from Mr Nadan’s mother which explains the hardship she incurs in driving Mr Nadan to work by 6 am in the morning, and the fact if he is called out in the weekend, she has to get the children up too, so they are not left at home alone in the middle of the night.
[18] Mr Poff submits that during the District Court hearing, the Judge questioned why the limited licence was required now with only ‘one month to go’ and this may have coloured her decision. In fact, at that point he still had five months to go on his disqualification period as it does not conclude until 30 March 2025.
Respondent’s submissions
[19] Ms Hallaway, for the respondent, submits the District Court did not err when concluding a six-month disqualification would not result in extreme hardship to Mr Nadan or undue hardship to anyone else.
[20] Regarding employment, Ms Hallaway submits it is clear the Judge enquired of Mr Nadan and determined his mother could continue to drive him to work and that where this was not possible, he could catch a lift from a colleague, take leave, or use taxi or ride-share services. Further, the police confirmed with Mr Nadan’s employer that he would not lose his employment if he could not do the on-call work, though the Judge noted he could continue the on-call work with the assistance of taxi or ride-share services.
[21]Importantly she pointed out there is still no evidence before the Court:
(a)quantifying the cost of using an Uber or other ride share service and the impact this would have on his finances; and
(b)explaining whether he has in fact used leave because he was unable to get to work or whether the leave has simply been used in the normal way.
[22] Regarding childcare, Ms Hallaway submits there is no evidence to support the submission Mr Nadan’s ex-partner would not continue bringing their children to him on the weekends. The resolution order confirms the childcare arrangements but does not govern which parent can carry out the pick up and drop offs.
[23] There was no evidence before the Court to support any submission his mother or colleagues would suffer undue hardship if required to continue to transport Mr Nadan throughout the disqualification period, or to his ex-partner if she had to continue driving his children to him on the weekends.
[24] While Mr Nadan has now provided letters which address the claimed hardship to some extent, that evidence is not provided in affidavit form.
Analysis
Extreme/undue hardship
[25] The route from Mr Nadan’s home address to work is not served by public transport, nor would public transport assist him when called out at night. In addition, as Mr Nadan has never ridden a bike, he requires private transport to get to work.
[26] The increased difficulty in getting to work during his regular hours, and the impact on his income if he either turned down the on-call work, or incurred the added cost of getting a taxi or ride-share service to undertake on-call work, do not, in my view, establish extreme hardship as described in Wheeler.7 There is no evidence of what it would cost to use a ride-share service and how much that would affect Mr Naden’s income. Without evidence quantifying the financial impact, I cannot be satisfied that the threshold of extreme hardship is met.
[27] I am also highly sceptical that Mr Nadan would simply give up his job rather than incur the cost of getting a ride-share service to take him to work, or that he would allow himself to be dismissed by failing to attend work (which seems to be the implication of the letter from his employer). Furthermore, I have no cogent affidavit evidence from Mr Nadan’s employer covering:
(a)what impact the loss of licence has had to date;
(b)how often if ever, Mr Nadan has used leave because he can not get to work; and
(c)why, when Mr Nadan is described as a model employee, Mr Narbey is now suggesting Mr Nadan could lose his job.
[28] When an application is being made for a limited licence which is a statutory exception to the imposition of a period of disqualification, this Court expects the supporting evidence to be presented in affidavit form. It also expects the evidence will address, with some specificity, the relevant statutory test relied on, whether that is of
7 Wheeler v Ministry of Transport, above n 6.
“extreme hardship” to the applicant or “undue hardship” to another person. It is not sufficient to provide letters at the last minute from which this Court is invited to “infer” that the requisite level of hardship is met.
[29] In the present case, I simply do not have sufficient evidence before me to satisfy the test for “extreme hardship” to Mr Nadan. Furthermore, unless I have evidence that he cannot afford to get to work in any other way than by relying on his mother, and I have affidavit evidence from her confirming the undue hardship to her, again I can not be satisfied that the statutory test of “undue hardship” in s 105 of the LTA is met. Similarly, without affidavit evidence of undue hardship to Mr Nadan’s former partner, I can not issue a limited licence to alleviate hardship to her. A letter which effectively says no more than that she would prefer not to have to do this, is wholly insufficient.
Public safety
[30] Given I am not satisfied that there is evidence to support the statutory test being met, strictly speaking I do not need to consider public safety.
[31] However, for completeness, I note that there would be no risk to public safety if a limited licence was granted. The offending is at the lower end of the scale for driving with excess breath alcohol, and it was not brought to light because of bad driving that was reported by others. Instead, it was Mr Nadan himself who called the police to notify them of his actions. This indicates personal accountability and remorse for this offending, and ultimately a low risk to public safety.
Result
[32]The appeal is dismissed.
Solicitor
Crown Solicitor, Christchurch
Copy to:
M Smit, Barrister, Christchurch
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