Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Appeal - Grant of extraordinary driver's licence - Whether applicant satisfied the requirements of s 30(4)(c) of the Road Traffic (Authorisation to Drive) Act 2008 (WA) - Meaning of 'is employed'

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40

Road Traffic (Authorisation to Drive) Act 2008 (WA), s 30

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158

Australian Securities and Investments Commission v Kobelt [2019] HCA 18

Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130

Chief Executive Officer, Department of Transport v RSR [2018] WADC 140

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Director General of Department of Transport v McKenzie [2016] WASCA 147

G v O [2022] WASCA 23

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

House v The King (1936) 55 CLR 499

Italiano v The Director General of Transport [1999] WASCA 40; (1999) 29 MVR 249

Jones v Darkan Hotel [2014] WASCA 133

Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12

Marks v Coles Supermarkets [2021] WASCA 176

McGree v The Chief Executive Officer of the Department of Transport [2024] WADC 96

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Pollard v Department of Transport [2021] WADC 110

Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 (2016) 331 ALR 550

Saunders v The Public Trustee [2015] WASCA 203

Smart v Power [2019] WASCA 106

Stonehealth Pty Ltd v ZAA Ventures Pty Ltd [2020] FCAFC 188; (2020) 280 FCR 519

The Chief Executive Officer of the Department of Transport v Messer [2024] WADC 60

1. On 10 February 2025, Andrew Dixon made an application to the Magistrates Court of Western Australia (Magistrates Court) for an extraordinary licence (EDL) pursuant to s 27 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) (the Act) (Application).
2. The Application was initially made on the basis of both s 30(4)(b) and s 30(4)(c) of the Act.
3. The Application proceeded to hearing on 5 March 2025 and was adjourned to 20 March 2025. At the hearing of the Application on 20 March 2025, Mr Dixon abandoned the first limb of the Application and proceeded solely on the second limb (ie s 30(4)(c) of the Act).
4. The Chief Executive Officer of the Department of Transport (CEO) opposed the Application on the basis that Mr Dixon did not meet the criteria under s 30(4)(c) of the Act, but otherwise did not take issue with Mr Dixon meeting the mandatory considerations under s 30(2) of the Act.
5. On 20 March 2025, her Honour Magistrate Harries granted Mr Dixon an EDL pursuant to s 30 of the Act (Decision).
6. By notice of appeal filed 10 April 2025, the CEO has now appealed to this court against the Decision.
7. For the reasons that follow, I am satisfied that the principal ground of appeal is made out, the appeal should be allowed, and the decision of the learned magistrate set aside and the proceedings remitted for rehearing before a differently constituted court.

1. By s 27(1) of the Act, a person who is disqualified under the Act or any other written law from holding or obtaining a driver's licence may apply to a court for an order directing the CEO to grant to the person an EDL.
2. The power to grant an EDL is found in s 30 of the Act, in the following terms:
   1. Matters for consideration of court

(a) make an order directing the CEO, on payment of the prescribed fee, to grant to the applicant an extraordinary licence for a period not exceeding 12 months from the date on which it is granted as the court thinks fit; or

(2) In making a decision for the purposes of subsection (1), the court is to have regard to -

(d) the nature of the offence or offences giving rise to the disqualification; and

(e) the conduct of the applicant subsequent to the disqualification.

[(3) deleted]

(4) Despite subsections (1) and (2), the court must not make an order directing the grant of an extraordinary licence unless it is satisfied that the refusal of the application would -

(a) deprive the applicant of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by the applicant or a person who is a member of his or her family; or

(b) place an undue financial burden on the applicant or his or her family, by depriving the applicant of his or her principal means of obtaining income; or

(c) deprive the applicant or a person who is a member of the applicant's family of the only practicable means of travelling to and from the place at which the applicant or that person, as the case may be, is employed.

1. The matters specified in s 30(2) of the Act are mandatory relevant considerations.[1]
2. The effect of s 30(4) of the Act is that the court is prohibited from making an order under s 30(1)(a) directing the CEO to grant to the applicant an EDL unless the court is satisfied that the refusal of the application would have the consequence specified in s 30(4)(a), s 30(4)(b) or s 30(4)(c).[2]
3. The court may only grant an extraordinary licence for the purpose of overcoming or relieving one or more of the specified consequences which the applicant has established, by evidence, to the court's satisfaction.[3]

1. Mr Dixon was disqualified from driving on 14 November 2006 by the Rockingham Magistrate's Court for the offences of driving under the influence of alcohol and no authority to drive (suspended).[4] Mr Dixon was disqualified from driving for life. On 1 December 2020, Mr Dixon was disqualified from driving for a period of 9 months (cumulative) for the offence of 'No Authority to Drive (cancelled)'.[5]
2. Mr Dixon has been permanently disqualified since 2001.
3. He received the second permanent disqualification in 2006.[6]
4. Subsequent to his disqualifications, Mr Dixon was convicted in respect of the following two matters: 5 September 2020 - no authority to drive (cancelled); 14 December 2017 - drove contrary to an EDL condition and exceeded the speed limit between 10 and 19km per hour.
5. The previous EDL obtained by Mr Dixon expired on 25 August 2020.[7]
6. On 10 February 2025, Mr Dixon made the Application for an EDL. The Application was made on the basis that the refusal to grant the extraordinary licence would:
   1. Place an undue financial burden on Mr Dixon by depriving him of his principal means of obtaining income, under s 30(4)(b) of the Act; and
   2. Deprive Mr Dixon of the only practicable means of travelling to and from the place at which he is employed, under s 30(4)(c) of the Act.
7. In his affidavit in support of the Application, Mr Dixon deposed that:[8]
   1. He was presently unemployed.[9]
   2. At the time of the Application, he had received an offer of employment from Portside Gas Contractors (Portside) for the position of storeperson/delivery driver.[10]
   3. Portside is located in Bibra Lake and services the Perth metropolitan area.[11]
   4. Given the critical need for a driver's licence, he had been informed by his (then) prospective employer that unless he is granted an EDL, he would be unable to commence his employment.[12]
   5. His prospective employer, Mr Glenn Piggin, Director of Portside, had provided Mr Dixon with a letter confirming the circumstances and requirements of his employment.[13]
   6. Since the loss of his driver's licence, he has been unable to commence work.[14]
   7. His role with Portside will involve driving a variety of vehicles of classes C, MR and HR. Owing to the fact that he does not have a driver's licence, he has been unable to commence work.[15]
   8. If the court were to refuse to grant him an EDL, it would place an undue financial burden on Mr Dixon and his family by depriving Mr Dixon of his principal means of obtaining income for the following reasons:

(a) for the past three years, Mr Dixon has been on workers' compensation and is now able to return to the workforce;

(b) however, if Mr Dixon is unable to obtain an EDL, he will be unable to commence his role with Portside; and

(c) furthermore, due to the fact that he has been on workers' compensation, Mr Dixon is unable to access Centrelink payments for a period of three years, and has no other sources of income.[16]

1. Matters to do with Mr Dixon's opportunity of prospective employment (emphasis added) as reflected in the transcript of the hearing:[17]

HER HONOUR: I don't think that's in dispute that it could be one or the other or the other. What's in dispute is this word 'is employed', that he is not employed.

...

HER HONOUR: And it's, as I understand it, the argument is as simple as that: the words are used 'is employed' in that part of the provision. And at the moment, you concede Mr Dixon is not employed. He has an offer of employment if an extraordinary driver's licence is granted, as I understand it.

NAUGHTON, MR: Correct, your Honour.

HER HONOUR: Yes.

NAUGHTON, MR: The employment will flow - will be possible and will flow from a successful application today. The contract of employment hasn't been signed by virtue of this precondition not yet being met. With respect to the statutory interpretation, I accept that the starting point is what's the simple English interpretation of the words.

1. At the hearing of the Application on 20 March 2025, Mr Dixon, who was legally represented at the time, abandoned the first limb of the Application (ie the consequence specified in s 30(4)(b) of the Act). This was done on the basis of Mr Dixon's financial position at the time of the Application, relevantly:[18]

NAUGHTON, MR: While it's the case that, should Mr Dixon remain without employment for a long term, he will certainly end up in a financially - well, in an undue financial burden situation, the circumstances at the last court occasion were such that I couldn't substantiate an application under that section.

HER HONOUR: All right. So notwithstanding that the affidavit provides that his weekly income is nil, what you're saying is that there's money in savings such that you couldn't say that he would be under undue financial hardship.

NAUGHTON, MR: Not at this stage, correct. Yes.

1. In electing to proceed with the Application solely on the second limb of the Application, (ie the consequence specified in s 30(4)(c) of the Act), it was put to the learned magistrate that:[19]

COVENTRY, MR: Yes, your Honour. So in relation to this matter, as I understand, I was observing in that long list last week, or was it the week before? But, yes, the main issue is really a legal one, and it's at the end of subsection (c) in which this application has been condensed to that. It says - the applicant - well:

A refusal grant an extraordinary driver's licence would deprive the applicant of the only practical means of travelling to and from the place at which they or a member of their family is employed.

With focus on the word 'is', in the present tense, and focus on the past tense of 'employed'. And the question is, essentially, can an applicant even have a place to go to if they're not currently employed? That is, use one as the condition for that extraordinary driver's licence.

And I believe Mr Pretorius at the time also raised the case of McKenzie and how the power impose the condition is limited to the actual application that is made under in subsection (4)(c). So the department still holds the same view that in this particular application, Mr Dixon has prospective employment, that Mr Dixon is not currently employed, and as a result, he has no place currently to travel to or from, or at least in terms of the legislation of subsection (c) is not employed. So it is strictly a legal interpretation issue.

1. The words 'is employed' was considered by the learned magistrate in the context of the 'prospective offer' from Portside to Mr Dixon. Relevantly, the learned magistrate observed that:[20]

HER HONOUR: The nub of the issue are the words 'is employed'. The provision provides that the court must not make an order granting an extraordinary driver's licence unless it is satisfied that refusal of the application would have one of the three consequences. The one that is relied on is that it would deprive the applicant, in this case, of the only practicable means of travelling to and from the place at which the applicant, in this case, is employed. The department's position is that those words, 'is' and 'employed', in the past tense, both indicate that that needs to be a present state of employment, and it cannot be a future offer of employment.

In relation to Mr Dixon, what I have is an offer of employment written by Glen Piggin [sic] from Portside Gas dated the 14th of the 1st, '28. That letter is not objected to by the department, and the letter indicates that Mr Dixon has a prospective job offer if he is able to get his extraordinary driver's licence, and I infer from the submissions that have been made - and I have not taken evidence, but, in essence, that Mr Dixon and has accepted that job offer, subject to being able to obtain his extraordinary driver's licence, because without a licence, that offer is no longer on the table.

There are details of what is required, and the job is as a store person delivery driver, which involves deliveries to and from many different locations, and that is not in dispute either. The defence submits that this provision ought to be construed more broadly than is indicated and submitted by the department. The defence essentially indicates and have submitted that the word 'employment' has been construed very broadly by the courts in terms of extraordinary driver's licence applications, and include employees and contractors, and as I understand the defence submission, though I am not sure that Mr Naughton has specifically said these words, and if I am attributing something to you that I should not, Mr Naughton, I am sure you will let me know.

1. The CEO opposed the Application on the basis that Mr Dixon did not meet the criteria under s 30(4)(c) of the Act, but otherwise did not take issue with Mr Dixon meeting the mandatory considerations under s 30(2).
2. At the hearing of the Application, the CEO submitted that the words 'is employed' in s 30(4)(c) of the Act should be construed narrowly to only refer to a person who is currently employed, referring to:[21]

(c) the need for specificity in granting an extraordinary licence; and

(d) the fact that Mr Dixon had made a voluntary choice to seek out employment that required a licence.

1. At the initial hearing of the Application, Mr Dixon submitted:

(a) broad interpretations given to other words in s 30(4)(c) of the Act favoured a broad construction of 'is employed';[22] and

(b) there was authority that s 30(4)(b) could extend to prospective employment, which should be applied in the context of s 30(4)(c).[23]

1. On 20 March 2025, the learned magistrate granted Mr Dixon an EDL pursuant to s 30 of the Act. In summary, the learned magistrate held:
   1. The ordinary meaning of s 30(4)(c) of the Act favoured a construction extending to current employment only.[24]
   2. The purpose of the Act was to grant extraordinary licences only in limited circumstances.[25]
   3. If s 30(4)(c) could extend to self-employed people, then it must also apply to people with prospective employment.[26]
   4. The purpose of s 30(4)(c) was to confine the terms of any extraordinary licence and ensure that any conditions could be expressed with clarity.[27]
   5. Mr Dixon was currently employed for the purpose of s 30(4)(c), due to the clear terms of the employment offer.[28]
2. In reaching this view, the learned magistrate conceded that whilst as a matter of law, there may be an argument that Mr Dixon is not employed, 'At the moment, there is an offer, and that offer is subject to conditions, and at this point in time, Mr Dixon cannot meet those conditions'.[29] The learned magistrate observed that:[30]

HER HONOUR: In essence, there is employment. If any licence is to be granted, it is going to be granted on terms related only to that employment, and in the circumstances, I have formed the view that Mr Dixon is employed within the meaning of the Act. Having formed that view, as I understand it, there is no other objection, Mr Coventry, in relation to this application. I have considered the mandatory considerations, and they are addressed substantively in the affidavit. I have also considered the exercise of my discretion.

One factor in the exercise of the discretion may be the very point that the department has raised, that is, that Mr Dixon does not need to work, that he has chosen to obtain a job where a licence is required, and other factors, of course, are the factors that way [sic] in favour of the making of an extraordinary driver's licence. That is, there has been no drink-driving since 29 July '25. Mr Dixon has had two previous extraordinary driver's licences. The last one expired with no breach. There is no record since 5 September 2020.

When I weigh all of those factors, and the other factor, which is that Mr Dixon has served a lengthy period of disqualification in terms of the deterrent and punishment effect of disqualification, he is in a position where he may very shortly be able to apply for that life disqualification to be set aside, and when I consider the public interest factors, I am of the view that the licence ought to be granted and I am going to grant it.

Also considering in the making of that decision the public interest in a person working rather than not working and contributing to the community, in circumstances where the concerns and risk that they may pose to the community is very limited, based on the materials that are before me.

...

1. As to the question of 'travelling to and from the place' at which Mr Dixon 'is employed', it was submitted to the learned magistrate, in the context of the terms of the ELD licence being granted, that multiple classes of licence are required pursuant to the Application because of the nature of the employment to be undertaken at Portside. The submission being put to the learned magistrate that 'It's not just a case of Mr Dixon has one place of work':[31]

NAUGHTON, MR: Broadly speaking. It's not just a case of Mr Dixon has one place of work. The company has one headquarter, sure, but their job sites are all over the place, scattered across the Perth metro area. So it's not simply a case that he would need to drive to and from the Bibra Lake address with multiple classes of vehicle. He would need to drive a C-class vehicle, effectively, to Bibra Lake and then the truck from there to job sites as required.

HER HONOUR: And you object to that part of the application?

COVENTRY, MR: In light of that information, if there's to and from, it's not - it's clear in the case law that there's not just one singular place.

HER HONOUR: Correct.

COVENTRY, MR: So that's accepted, and it's only just - if it's only to one place, then you only need one class of vehicle, because once you drive there, you're there, but if there are multiple places, and if those places do require multiple vehicles, the department would only want to know why exactly one can't just keep driving the same vehicle, the same class of vehicle, but if there are reasons for that, the department would accept them.

...

NAUGHTON, MR: Yes. Well, the submission is realistically that the multiple classes of licence are required simply because of the nature of the employment. What Mr Dixon is transporting varies. The - you know, the equipment and the materials that are required for these jobs cannot fit snugly in a C-class vehicle, hence the requirement for a larger truck. I don't know if I have put that elegantly.

1. The Appeal was commenced within the requisite 21-day time period.[32]
2. On 6 May 2025, Mr Dixon filed a notice of respondent's intention indicating that he would argue the Decision should be upheld on the grounds relied on by the primary court.
3. Both parties filed submissions.
4. Mr Dixon was self-represented at the hearing of the appeal on 26 August 2025 and relied on the matters set out in the notice of respondent's intention and the respondent's written submissions filed 21 July 2025.
5. The District Court must decide the Appeal on the material and evidence that was before the magistrate.[33] The Appeal is by way of a 'reconsideration of the evidence' that was before the magistrate.[34] The court does not hear afresh all of the evidence.[35] Rather, the appeal is to be undertaken by way of a rehearing.[36]
6. In an appeal by way of rehearing, ordinarily, and absent further evidence or a relevant change in the law, the court can exercise its appellate powers only if satisfied that there was an error on the part of the primary court; the power is to be exercised for correction of error.[37] There must be a material error of law, fact, discretion or other miscarriage of justice.[38] In doing so, the appeal court must conduct a 'real review' of the evidence given at first instance and of the primary decision-maker's reasons for decision to determine whether there has been an appealable error.[39]
7. The onus is on the CEO as the appellant to demonstrate the existence of an appealable error.[40] It is not sufficient for the CEO to satisfy the court that a decision other than that made by the magistrate was correct and preferable.[41]

1. The CEO brings this appeal on the following grounds:
   1. The learned Magistrate erred in law in finding that the words 'is employed' contained in s 30(4)(c) of the Act applied to Mr Dixon, being a person who was not currently employed but who had an offer of employment (Ground of Appeal 1).
   2. The learned Magistrate erred in fact in finding that Mr Dixon was currently employed (Ground of Appeal 2).
2. The CEO submits that the proper statutory construction of the words 'is employed' in s 30(4)(c) of the Act is the key issue to be determined in this appeal.
3. The CEO's position is that the interpretative question here is whether 'is employed' means 'is currently employed' (being a narrow construction) or 'is currently employed or has a current offer of employment' (being a broad construction). The CEO submits to this court that in light of the following interpretative indicators, the narrow construction is the preferable construction of 'is employed':
   1. The word 'is' is the third person singular present indicative of 'be'.[42]
   2. The ordinary meaning of 'employ' is 'to use the services of (a person); have or keep in one's service; keep busy or at work'.[43]
   3. The CEO submits that the word 'employed' used in s 30(4)(c) of the Act is the present passive form of 'employ'.
   4. The use of 'is employed' in the present tense indicates that its ordinary meaning refers to a present state of affairs.[44]
4. The CEO seeks to draw a distinction between the language used in s 30(4)(b) and s 30(4)(c) of the Act, and in this regard points to s 30(4)(a) which refers to an 'illness, disease or disability known to be suffered' (emphasis added), in support of the CEO's submission that the relevant ailment must be a current rather than an anticipated ailment. By way of comparison, the CEO submits that the language used in s 30(4)(b), which refers to a person's 'principal means of obtaining income' without confining this to the past, present or future tense, favours a prospective construction as opposed to s 30(4)(c) which, in using the term 'is employed' favours a current and therefore non-prospective construction similar to the rationale applied to s 30(4)(a).
5. In putting forward its submissions, the CEO accepts that there are limited relevant contextual indicia in s 30 of the Act more broadly.
6. The CEO relies on the legislative history leading to the enactment of the Act and points to the predecessor of the current Act, s 76 of the Road Traffic Act 1974 (WA) (RTA).[45] Section 30(4) of the Act reproduces s 76(3b) of the RTA prior to its repeal.[46] In pointing to the RTA, the CEO submits that s 76(3b) of the RTA was introduced as a higher threshold test that applied to certain extraordinary licence applications brought within a shorter period of time than usual, referred to as 'special applications'.[47]
7. In 2010, the RTA was amended again to apply the higher threshold in s 76(3b) to all extraordinary licence applications.[48] At this time, the amendments also repealed one of the mandatory considerations, namely 'the degree of hardship and inconvenience which would otherwise result to the applicant and his family, if it refrains from making the order'.[49] The CEO submits that the motivation behind these amendments was said to be to 'impose more onerous requirements upon an applicant for the grant of an extraordinary licence'.[50]
8. The CEO submits that the purpose of s 30(4) of the Act in its current form is to impose more onerous threshold criteria to all extraordinary licence applications and as such, the narrow construction should be preferred, in keeping with the purpose of the scheme under the Act being to limit the grant of extraordinary licences.
9. The CEO submits that the purpose of s 30(4)(c) of the Act is also relevant in identifying the proper construction of the term 'is employed', and in this context asserts that the preferred view is that aims to avoid the consequence of a person not being able to attend their place of work, rather than to enable the terms of an EDL to be clearly identified.
10. The CEO submits in essence that adopting the broad construction risks allowing EDL's to be granted too permissively and is inconsistent with the purpose of the intent of the legislation.
11. In The Chief Executive Officer of the Department of Transport v Messer,[51] Gething DCJ (as His Honour then was), observed that:[52]

The appropriate standard of appeal for a finding that RTAD Act s 30(4)(a) had been complied with is, in my view, the 'correctness' standard'.

1. Whilst his Honour's observations were made in the context of s 30(4)(a), it is useful to have regard to the following principles mentioned by his Honour in the context of meeting the preconditions under s 30(4), which I summarise here:
   1. It is a question 'to which there is but one legally permissible answer, even if that answer involves a value judgment'.[53]
   2. Although the task is evaluative, there is only 'one uniquely correct outcome', 'one right answer and an appeal from the decision is concerned with its correctness'.[54]
   3. This may be contrasted to the question of whether, the count being satisfied that a precondition in RTAD Act s 30(4) exists, it is appropriate in the exercise of the court's discretion to grant an EDL, the discretion being denoted by the use of the word 'may' in RTAD Act s 30(1).[55]
   4. The appropriate standard of review of that discretionary decision is the standard explained in House v The King.[56]
2. The task of the appellate court when an appeal concerns an evaluative judgment was explained by the Court of Appeal in G v O as follows:[57]

Where findings or conclusions involve elements of fact, degree, opinion or judgment, the demonstration of error may not be straightforward. The difficulty in doing so may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, or because the nature of the issue is one such that, while not a discretion, there cannot be said to be one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient to demonstrate error. The conclusion of error will not necessarily be arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge. Nevertheless, even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate the conclusion that the trial judge was wrong, and that the appeal court must interfere.

Ground 1: Proper construction of the words 'is employed'

1. Ground 1 of the notice of appeal alleges an error of law, which is in essence, a question of the construction in relation to the words 'is employed' as they appear in s 30(4)(c) of the Act.
2. To that end, the CEO submits that the words 'is employed' in s 30(4)(c) refers to a person who is currently employed (emphasis added) at the time of the Application only, and that it does not refer to people who have prospective employment - whether that constitutes an offer of employment or employment about to commence.
3. That is, to satisfy the 'is employed' precondition of s 30(4)(c) of the Act, the employment must be extant at the time that the application under s 30 of the Act is made to the court.

1. The purpose of the extraordinary licence scheme is to provide a limited exception to the punitive effect of disqualification, where that disqualification represents the revocation of a privilege and not a right.[58]
2. The scope of this ground of appeal is limited. No challenge is made to the substance of the learned magistrate's decision that, on the evidence led by Mr Dixon, that the learned magistrate could not be satisfied that Mr Dixon meets the mandatory requirements of s 30(2) of the Act and that Mr Dixon otherwise satisfies the preconditions in so 30(4)(c) but for the question of whether Mr Dixon was in fact employed (ie is employed) at the time of the Application.
3. Section 8 of the Interpretation Act 1984 (WA) (Interpretation Act) provides that:

A written law shall be considered as always speaking and whenever a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to every part of the law according to its true sprit, intent and meaning.

1. The words 'is employed' arises from the text of s 30(4)(c) of the Act itself, and are expressed in the present tense. They refer to a state of affairs that is extant at the time of that application. Nothing in the words used in the subsection indicates that the the section itself is forward looking, or contemplates looking beyond the state of affairs that is extant at the time of the application.
2. It would seem on an ordinary reading of s 30 of the Act, the court hearing an application for an extraordinary driver's licence holds a jurisdiction to either make an order directing the CEO to grant the applicant an extraordinary driver's licence or to refuse the application. It is established that the effect of s 30(4) of the Act is that the court is prohibited from making an order under s 30(1)(a) directing the CEO to grant to the applicant an EDL unless the court is satisfied that the refusal of the application would have the consequence specified in s 30(4)(a), s 30(4)(b) or s 30(4)(c).[59]
3. Each of subsections 30(4)(a), (4)(b) and (4)(c) respectively, set out separate and distinct preconditions (emphasis added) to be met depending on the basis on which the applicant has elected to bring the application to the court for determination. To conflate the preconditions in s 30(4)(b) with s 30(4)(c) thereby resulting in a hybrid consequence that corresponds with Mr Dixon's unique circumstances, is inconsistent with the true sprit, intent and meaning of s 30(4).
4. As President Buss explained in McKenzie:[60]

Section 30(4) specifies, in effect, three limited circumstances in which an applicant may be granted an extraordinary licence. An applicant must satisfy the court, by evidence, that the refusal of his or her application would have at least one of the consequences specified in par (a), par (b) and par (c) of s 30(4). The court may only grant an extraordinary licence for the purpose of overcoming or relieving one or more of the consequences specified in par (a), par (b) and par (c) of s 30(4) which the applicant has established, by evidence, to the court's satisfaction.

(emphasis added)

1. In this case, in order for Mr Dixon to satisfy the learned magistrate that s 30(4)(c) of the Act had been satisfied, it was necessary for the learned magistrate to be satisfied on the basis of the evidence that:[61]

(b) the EDL was the only practicable means of (emphasis added) Mr Dixon travelling to and from (emphasis added) the place (emphasis added) Mr Dixon is employed (emphasis added); and

(c) the refusal of the Application would deprive Mr Dixon of the only practicable means of travelling to and from the place at which Mr Dixon 'is employed'.

1. The CEO does not contend that the learned magistrate erred in finding that the EDL was the 'only practicable means' of Mr Dixon travelling to and from the place Mr Dixon is employed.
2. However, when one has regard to the evidence before the learned magistrate, the Dixon Affidavit does not depose to the EDL being the 'only practicable means' of Mr Dixon travelling to and from the place Mr Dixon is employed. Rather, that the absent the granting of the EDL, Mr Dixon would be unable to commence work with Portside as his prospective role with Portside 'will involve driving a variety of vehicles of classes C, MR and HR. Owing to the fact that he does not have a driver's licence, he has been unable to commence work'.[62]
3. The focus of the materials and submissions put to the learned magistrate was primarily in respect of whether Mr Dixon had satisfied the employment precondition of s 30(4)(c) (ie 'is employed').
4. It is accepted that the offer of employment from Portside to Mr Dixon for the position of storeperson/delivery driver, was prospective in nature, and expressly subject to the condition of Mr Dixon having a valid driver's licence. Mr Dixon himself deposes to Portside being his prospective employer and the evidence before the learned magistrate from Mr Dixon was that he would be unable to commence his employment without being granted an EDL.[63]
5. No evidence or material was put to the lower court about the precise terms of the offer of 'prospective employment' from Portside. The letter from Portside dated 14 January 2025 attached to the Dixon Affidavit simply sets out the requirements of the prospective employment, but not the terms of the proposed arrangement itself.[64] For example, it is not clear whether only on satisfying the precondition of obtaining a valid driver's licence for the required classes of vehicles would Mr Dixon be presented with the formal terms of the offer of prospective employment (ie full-time/part-time/casual/rates and hours of pay/ entitlements etc). No contract of employment was attached to the letter from Portside. There is therefore an additional element of uncertainty as to precisely what each of the parties understood the 'prospective employment' from Portside to mean which is difficult to reconcile with the clearly prescriptive requirements of s 30(4)(c) of the Act as set out in McKenzie.
6. The only authority involving a successful application for prospective employment and where the person was self-employed was made under s 30(4)(b) in McGree and that decision is distinguishable from the present matter.
7. McGree concerns a truck driver who had lost his licence in a road incident which resulted in the death of a person. Mr McGree applied under s 30(4)(b) for an extraordinary licence, which would enable him to resume his work as a truck driver, and continue to drive around on various roads, not necessarily to and from one fixed place of employment. Evidence of Mr McGree's employment, as it was, or his means of obtaining income, were set out in detail.[65] Importantly:

(a) Mr McGree had run his own business and was driving in the course of his employment, not just to and from a place of employment; and

(b) the business had wound down in the period in which Mr McGree wasn't driving. The court also had regard to Mr McGree's financial evidence which was before the court, and which was ultimately accepted by the court.[66] In granting application, the court had specific regard to the undue financial burden Mr McGree would be subject to should an extraordinary licence not be granted.[67]

1. In proceeding with his application pursuant to s 30(4)(c) of the Act, Mr Dixon was required to satisfy the learned magistrate, by evidence, that the refusal of the Application would have the consequence specified (ie depriving Mr Dixon of the only practicable means of travelling to and from the place at which Mr Dixon is employed).
2. Section 30(4)(c) itself comprises a number of elements, and that section should properly be read as a who consistent with the drafting of the legislation. There are therefore a number of factual matters to be determined in order to satisfy s 30(4)(c) of the Act.
3. The purpose of s 30(4)(c) is not one of financial hardship. That is the remit of s 30(4)(b) and that limb was abandoned by Mr Dixon at the hearings of the Application.
4. Ground 1 is made out.

Ground 2: Was Mr Dixon employed as a matter of fact at the relevant time?

1. Ground 2 alleges an error of fact, which is whether the learned magistrate erred in fact in finding that Mr Dixon was currently employed at the time of determining the Application. Ground 2 is a secondary ground.
2. For the reasons set out above, it is my view that the evidence before the lower court did not demonstrate that Mr Dixon was not 'currently employed' at the time of the Application being determined.
3. The evidence before the lower court demonstrated that whilst Mr Dixon had a prospective offer employment, and correspondence from Portside setting out the requirements of the prospective role, the precise terms of the offer of employment was not the subject of any evidence. In circumstances where there was no confirmed extant employment, the facts do not support a finding that Mr Dixon was 'currently employed' at the time of the Application.
4. However, in circumstances where the principal ground of appeal is made out, there is no need to substantively address this ground of appeal which is consistent with the CEO's submission at the hearing.

1. I will allow the appeal, set aside the decision of the Magistrates Court granting Mr Dixon an EDL pursuant to s 30 of the Act and remit the proceedings for rehearing before a differently constituted court.
2. I will hear from the parties in relation to the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Director General of Department of Transport v McKenzie [2016] WASCA 147 [52] (Buss P, with whom Murphy JA & Beech J agreed) (McKenzie).

[3] McKenzie [68] (Buss P, Murphy JA & Beech J agreeing).

[4] Magistrates Court matter book (MB), page 32; Affidavit of Andrew Dixon sworn 10 February 2025 (Dixon Affidavit), pars 2 - 3.

[5] MB, page 32; Dixon Affidavit, par 3.

[6] MB, page 2; Magistrates Court transcript of proceedings (MC ts), MC ts 2 (5 March 2025).

[9] MB, page 34; Dixon Affidavit, par 6.

[10] MB, page 34; Dixon Affidavit, par 6.

[11] MB, page 34; Dixon Affidavit, par 6.

[12] MB, page 34; Dixon Affidavit, par 7.

[13] MB, page 34; Dixon Affidavit, par 8, Attachment 'AD-3', page 46.

[14] MB, page 34; Dixon Affidavit, par 9(a).

[15] MB, page 34; Dixon Affidavit, par 9(b).

[16] MB, page 34; Dixon Affidavit, par 10.

[17] MB, pages 7 - 9; MC ts 7 - MC ts 9 (5 March 2025).

[18] MB, pages 14 - 25; MC ts 2 - MC ts 3 (20 March 2025).

[19] MB, pages 15 - 16; MC ts 3 - MC ts 4 (20 March 2025).

[20] MB, pages 17 - 18; MC ts 5 - MC ts 6 (20 March 2025).

[21] MB, pages 4 - 5; MC ts 4 - MC ts 5 (5 March 2025); MB, page 16; MC ts 4 (20 March 2025).

[22] MB, pages 7 - 8; MC ts 7 - MC ts 8 (5 March 2025), referring to McKenzie.

[23] MB, page 8; MC ts 8 (5 March 2025) referring to McGree v The Chief Executive Officer of the Department of Transport [2024] WADC 96 (McGree).

[24] MB, pages 19 - 20; MC ts 7 - MC ts 8 (20 March 2025).

[25] MB, page 19; MC ts 7 (20 March 2025).

[26] MB, page 20; MC ts 8 (20 March 2025).

[27] MB, page 20; MC ts 8 (20 March 2025).

[28] MB, pages 20 - 21; MC ts 8 - MC ts 9 (20 March 2025).

[29] MB, page 20; MC ts 8 (20 March 2025).

[30] MB, pages 20 - 21; MC ts 8 - MC ts 9 (20 March 2025).

[31] MB, pages 25 - 26; MC ts 12 - MC ts 13 (20 March 2025).

[32] Magistrates Court (Civil Proceedings Act) (WA) s 40(3) (MCCPA).

[34] District Court Rules 2005 (WA) r 50(1) (DCR).

[35] Smart v Power [2019] WASCA 106 [100] (judgment of the court) (Smart).

[36] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] (Gleeson CJ, Gaudron & Hayne JJ) (Coal and Allied).

[37] Coal and Allied [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ) (Allesch); Saunders v The Public Trustee [2015] WASCA 203 [84] (Mitchell J, with whom Buss JA & Beech J agreed).

[38] Allesch [23]; Marks v Coles Supermarkets [2021] WASCA 176 [124] (judgment of the court) (Marks); Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130 [460] (judgment of the court).

[39] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 (2016) 331 ALR 550 [43] (judgment of the court) (Robinson Helicopter); Australian Securities and Investments Commission v Kobelt [2019] HCA 18 [47] (Kiefel CJ & Bell J); Marks [127]; Smart [101].

[40] Smart [100]; Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court) (Jones).

[42] Macquarie Dictionary Online 'is' (def 1).

[43] Macquarie Dictionary Online 'employ' (def 1).

[44] See eg, Stonehealth Pty Ltd v ZAA Ventures Pty Ltd [2020] FCAFC 188; (2020) 280 FCR 519 [57] (Rangiah J).

[45] See Road Traffic Act 1974 (WA) (2013 reprint) s 76.

[46] Explanatory Memorandum, Road Traffic (Authorisation to Drive) Bill 2007 (WA) cl 30.

[47] Road Traffic Act Amendment Act (No. 2) 1976 (WA) s 4. See RTA (2011 reprint) s 76(12).

[48] Road Traffic Legislation Amendment (Disqualification by Notice) Act 2010 (WA) s 12 (amending s 76 of the RTA), s 24 (amending s 30 of the Act). This amendment occurred after the passage of the Act, but prior to its commencement.

[49] Formerly provided for by s 76(3)(f) of the RTA (2011 reprint) and s 30(2)(f) of the Act (as enacted).

[50] Explanatory Memorandum, Road Traffic Legislation Amendment (Disqualification by Notice) Bill 2010 (WA) cl 12. See also Western Australia, Parliamentary Debates, Legislative Assembly, 10 November 2010, 8502, 8504.

[51] The Chief Executive Officer of the Department of Transport v Messer [2024] WADC 60 (Messer).

[53] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 [16] (Kiefel CJ, Gageler & Jagot JJ); Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [57] (judgment of the court) (Keremestevski).

[54] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [154] (Edelman J) and [35] - [50] (Gaegler J) (SZVFW); Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 [128] (judgment of the court).

[55] Interpretation Act 1984 (WA) s 56. See generally Pollard v Department of Transport [2021] WADC 110 [30] (Pollard).

[56] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ) (House); SZVFW [38]; Keremestevski [53]; Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [184] - [185], [204], [241] (judgment of the court); As to when a decision will be discretionary, see generally: SZVFW [35] - [50].

[57] G v O [2022] WASCA 23 [103] (judgment of the court) (references omitted); Keremestevski [59].

[58] See Italiano v The Director General of Transport [1999] WASCA 40; (1999) 29 MVR 249 [19] - [25], cited in McKenzie [78].

[61] Pollard [44]; Chief Executive Officer, Department of Transport v RSR [2018] WADC 140 [20].

[62] MB, page 34; Dixon Affidavit, par 9(b).

[63] MB, page 34; Dixon Affidavit, par 7.

[64] MB, page 34; Dixon Affidavit, par 8, Attachment 'AD-3' page 46.