District Court of WA|2015-05-15

McKENZIE -v- DIRECTOR GENERAL OF DEPARTMENT OF TRANSPORT [2015] WADC 55 (15 May 2015)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : McKENZIE -v- DIRECTOR GENERAL OF DEPARTMENT OF TRANSPORT [2015] WADC 55

Road traffic - Extraordinary licence application - Whether refusal of application would deprive the applicant of the only practicable means of travelling to and from place of employment

Chugg v Pacific Dunlop Ltd (1990) 170 CLR 253

Italiano v The Director General of Transport [1999] WASCA 40

1 The applicant seeks an order directing the respondent to issue an extraordinary driver's licence that would allow her to drive on weekdays between certain hours for the purposes of driving to and from her place of employment.

2 Although the application is said to be made pursuant to s 76(1) of the Road Traffic 1974, the right to apply for an extraordinary is now provided by s 27(1) of the Road Traffic (Authorisation to Drive) Act 2008 (the Act).

3 The application is brought on the basis that, for the purposes of s 30(4), its refusal would deprive the applicant of the only practicable means of travelling to and from the place at which the applicant is employed.

(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.

5 On 18 July 2013 in this court the applicant was convicted on her pleas of guilty of one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. These offences were committed on 7 October 2012 when the applicant was involved in a motor vehicle crash on Toodyay Road, Toodyay in which fatal injuries were caused to Kerry Anne Christenson, and grievous bodily harm to Rodney Allan Christenson.

6 Subsequently, in the Perth Magistrates Court on 21 October 2013 the applicant was convicted on her pleas of guilty of one count of dangerous driving occasioning bodily harm and one count of driving with a blood alcohol content exceeding 0.08 grams per 100 ml (and less than 0.14 grams per 100 ml) contrary to s 64(1) of the Road Traffic Act 1974. These offences were in respect of the same incident.

Dangerous driving occasioning death - imprisonment for 18 months and motor driver's licence disqualification for five years.
Dangerous driving occasioning grievous bodily harm - imprisonment for 6 months (cumulative) and motor driver's licence disqualification for five years (concurrent).
Dangerous driving occasioning bodily harm - fine $2,000 and motor driver's licence disqualification for 12 months (concurrent).
Excess 0.08 grams per 100 ml - fine $750 and motor driver's licence disqualification for 9 months (concurrent).

8 Effectively, the applicant was sentenced to 2 years' imprisonment with eligibility for parole and disqualification from holding or obtaining a motor driver's licence for five years.

9 The circumstances of the applicant's offending are disclosed in the transcript of the sentencing hearing in this court on 18 July 2013.

10 The incident occurred at about 6.23 pm. The applicant had been to the Toodyay races with her husband Troy McKenzie and her two young children. The children are said to be now aged 6 and 5 respectively and were therefore quite young. The applicant drank wine during the afternoon. The applicant had not intended to drive back to Perth that day and had made an arrangement with her husband that he would drive.

11 However, when the family came to leave Toodyay the applicant's husband asked her to drive as he had also been drinking. She declined and he then drove the vehicle. During the first part of the journey he became extremely abusive and threatening towards the applicant and her children. This was audio-recorded. It was accepted for the purposes of sentencing that the applicant's husband was abusive and threatening towards her. After a period of time he stopped the vehicle and walked away from it leaving the applicant with her two young children on a dark and quiet country road without any mobile telephone service available.

12 It was in those circumstances that the applicant's decision to drive was made. The audio-recording, which continued after that point, revealed the applicant to be quite upset and to seek comfort from and give comfort to her children. At the point prior to the fateful collision the applicant reached towards the rear passenger seat to hold her daughter's hand. In doing so she allowed her car to veer to the incorrect side of the carriageway thereby causing a collision with a Honda Civic sedan driven by Mr Christenson, in which Mrs Christenson was a passenger.

13 The applicant was before the court as a person with no prior traffic convictions and no criminal record. She was then aged 43 years of age and was employed as a legal secretary and as a carer for a person with quadriplegia. She was separated from her husband and had no immediate family support available to her.

14 It was the State's case that the dangerous driving was constituted by the applicant reaching around to hold the hand of her daughter and in doing so taking her eyes off the road and one hand off the steering wheel.

15 Although the applicant's level of alcohol intoxication was found to be an aggravating feature of the applicant's offending, the State did not rely heavily upon intoxication because of the invidious position in which the applicant was placed, but rather pointed to the fact that she could have refrained from driving until the effects of the alcohol had worn off and could have pulled off the road in order to deal with her child. It was not the State's case that the driving was reckless. The prosecution did not submit that personal deterrence was a significant sentencing consideration.

16 The sentencing judge found that the applicant's decision to continue to drive in the circumstances were affected by her alcohol consumption. In sentencing the applicant the learned trial judge indicated that he had taken into account her age, her lack of prior convictions, her family situation, her work history, her plea of guilty, her expressions of remorse and the low risk of re-offending.

17 The applicant lodged an affidavit on which she was cross-examined. Although there are some marked inconsistencies between her affidavit and her evidence in court, no substantial challenge was made to the applicant's credibility as such. Some time has elapsed between the date of the affidavit (17 March 2015) and the hearing, which may explain some differences, but there was no attempt made by her counsel in examination-in-chief or re-examination to reconcile those differences as there should have been.

18 The applicant is aged 45 years. Since being released on parole in July 2014 she has been employed as a legal secretary by Kings Park Corporate Lawyers on a permanent part-time basis for two days per week, but presently works three days to three and a half days per week. She lives in Beechboro. Her place of employment is in West Perth.

19 In oral evidence she said she earned up to $1,500 net per fortnight, working three and a half days per week, and received $584 per month in child support from her former husband. In her affidavit she said she earned $1,200 per fortnight for six days' work. She has received some financial support from her sister and brother-in-law because her inability to drive restricts the number of hours she can work. She has no substantial assets or other form of income. From her income she pays $300 per week for rent.

20 The applicant stated in her affidavit that she and her former husband have a shared parenting arrangement 60/40 in her favour. In oral evidence she said that the arrangement was 50/50 and that she had the children every other week. They attend a nearby school and receive out-of-school care on the days the applicant works, except on Friday when they are picked up by their father from school.

21 In her affidavit the applicant said that in order to get to work she needed to catch 'a bus, two trains and walk 2,564 metres'. Her affidavit annexed a result from a Transperth journey planner application which demonstrated that if she left her home at 7.20 am it would take 81 minutes to walk 1.4 km to the nearest bus stop, take a bus to Bassendean Station, a train to Perth and another to West Perth, and then walk 1.1 km to her place of work, arriving at 8.41 am: annexure SM2. That, however, is not the way she goes to work.

22 The applicant gave oral evidence that when she did not have her children she would take three buses: to Morley, then Perth, and from there to West Perth. Travelling by bus, she leaves home at 7.15 am in order to get to work by 9.05 - 9.10 am. On the days that she does not have the children the applicant works from 9.00 am to between 4.00 and 5.00 pm.

23 When she has the care of her children she takes a taxi from home at 8.00 am to the school and then to the train station. On the days that she catches taxis the cost is $50 - 60. She finishes work at 3.30 pm in order to pick up the children from out-of-school care by 4.30 pm, normally getting home between 4.45 and 5.00 pm. On Friday afternoons the children are picked up from school by their father.

24 Obviously, it takes the applicant much less time to go to and from work when she utilises a taxi in conjunction with the train, about an hour each way, as opposed to at least one hour and three-quarters by bus.

25 If she catches a taxi directly to work the cost varies between $45 and $62, according to traffic conditions. She conceded that a taxi fare calculator application indicated a fare of $28 - 38 from Beechboro to West Perth at 8.00 am, but said that in her experience it was more, due to traffic hold-ups.

26 The applicant said she did not consume alcohol in compliance with a condition of her parole. She has returned negative results to urinalysis and random breath testing.

27 The applicant stated in her affidavit that she was not one to drink and drive and took driving 'very seriously'. She deposed to having a good record in terms of traffic infringements and stated at par 9, 'I rarely speed'. Her record was not annexed. In cross-examination the respondent's counsel produced a certified copy of traffic infringements which indicated that between 29 April 2010 and 13 November 2012, a period of just over two and a half years, the applicant incurred seven speeding infringement notices, four of which were for exceeding the speed limit by not more than 9 km per hour and three for exceeding the speed limit by not more than 19 km per hour. A total of six demerit points was lost in that period. Not such a 'good record', perhaps.

28 She stated in her affidavit that she had been required to relinquish her job as support worker for quadriplegics as it was difficult to combine with her work as a legal secretary and parenting her young children. In cross-examination she explained that she had not gone back to that job because she required a driver's licence to do it.

29 The applicant's affidavit does not annexe any proof of earnings or hours of employment. No objective proof of the cost of transport by taxi has been produced.

30 The inconsistencies in the applicant's evidence reflect more on the preparation of her case, than her credibility. The importance of the quality of evidence in an application for discretionary relief should not be underestimated.

31 The applicant submits that it is not practicable for her to spend 80 to 100 minutes twice a day journeying to and from work as she does by bus, or at a cost of up to $60 per day using a taxi when she has the care of her children. Travelling time reduces the time that she is available for remunerative work. Her income is modest.

32 If she were able to drive to work she would have parking provided by her employer such that she would not have to pay more than the running costs of a motor vehicle in order to commute.

33 She has applied for a licence to enable her to drive to and from her place of employment only. (In her evidence she indicated that her children's school is en route to her place of work.)

34 The respondent's submission is that the refusal of the application would not deprive the applicant of the only practicable means of travelling to and from her place of work as she has demonstrated in the last 10 months since being released on parole that she can get to and from her place of work using public transport and taxis.

35 The respondent's counsel referred to the second reading speech in respect of the Road Traffic Legislation Amendment (Disqualification by Notice) Bill 2010 in the Legislative Assembly on 23 September 2010 in which the Minister for Police stated:

The amendments will ensure that more onerous requirements are imposed upon applicants for extraordinary licences making it necessary for them, in order to be successful in their application, to satisfy the court that if the extraordinary licence is not granted, extreme hardship will be suffered.

36 It was also submitted that the court should be concerned only with the applicant's means of getting to and from work, not with her children's means of getting to school.

37 It was also submitted on behalf of the respondent that the applicant's history of speeding infringements is relevant to the question of public safety. The respondent accepts the applicant had a relatively good record prior to the offending which gave rise to the disqualification but suggests that her history of speeding infringements together with the relevant offences indicates that she does pose a risk to the safety of the public.

38 It is further submitted on behalf of the respondent that the punitive aspect of a disqualification is a relevant consideration. In this regard reference was made to Italiano v The Director General of Transport [1999] WASCA 40 in which McKechnie J observed [21]:

The breadth of the licence sought, if granted, would have greatly minimised the punitive aspects of the disqualification, turning an 18 months' disqualification for driving so dangerously as to cause bodily harm to four people into a 1-month disqualification and thereafter some minor inconvenience in the applicant's personal life.

39 Section 30 empowers the court to direct that an extraordinary licence be issued. It is a discretionary power governed by the considerations set out in s 30(2) which may not be granted unless one of the three consequences of refusal set out in s 30(4) is shown.

40 The question in this case is whether the refusal of the application would deprive the applicant of the only practicable means of getting to and from her place of employment. That is the only s 30(4) criterion the applicant seeks to meet. It is not easily met in circumstances where the applicant has proved her ability to work up to three and a half days per week over a period of 10 months.

41 In my view, the evidence given and submissions made on behalf of the applicant barely meet the requirements of proof. The applicant's evidence indicated that little attention has been paid to the detail of her travel arrangements in terms of times, means and cost.

42 I do, however, accept her evidence that the journey by bus takes over an hour and three-quarters each way, and that by train and taxi it takes one hour, but costs up to $60 per day.

43 Moreover, I can find as a matter of common sense that regularly taking two young children to school on the way to work by taxi is likely to be particularly difficult from time to time. This aspect is part of 'the circumstances of the case'. It is relevant to the s 30(2) considerations.

44 There is no existing judicial authority on the meaning to be given to 'practicable' in the context of s 30(4)(c), although it is a word commonly used in legislation. I have not been referred to any authorities on point and have discovered none. In those cases where 'practicable' has been considered, what satisfies that requirement has been discerned from the context taking into account the legislative purpose: see, for example, Chugg v Pacific Dunlop Ltd (1990) 170 CLR 253 where 'so far as is practicable' was a considered in the context of the provision of a safe working environment, and MRR v GH (2010) 240 CLR 461, where 'reasonably practicable' was construed for the purpose of reviewing a parenting order made under the Family Law Act 1974 (Cth).

45 The ordinary and natural meaning of 'practicable' is, as defined in the Shorter Oxford Dictionary, 'able to be put into practice; able to be effected, accomplished or done; feasible'.

46 The purpose of the legislation in my opinion is to alleviate the burden of disqualification from driving in cases where that punishment results in an inappropriately harsh outcome. That result will occur where the disqualification causes disproportionate hardship (relative to other cases of disqualification) to a person who relies on a motor vehicle to obtain urgent medical treatment (s 30(4)(a)), to generate their principal source of income (s 30(4)(b)), or as the only practicable means of getting to and from work (s 30(4)(c)).

47 With this purpose in mind, I consider that what is 'the only practicable means' is to be determined by taking into account all of the circumstances of the case and making a comparison of the transportation options available to the applicant by reference to factors such as time, cost and inconvenience. The court is required to consider what is reasonable in the particular circumstances of the case, as opposed to what is merely possible.

48 It is a notorious fact that many people commute long distances by public transport to work. It is something many people do as a matter of necessity. It may involve walking some distance and changing from one bus to another, or from bus to train. The applicant's circumstances are not unusual in that respect.

49 However, it is to be observed that the applicant is a single parent who works part-time. The hours of work available to her are variable. Her current income is modest at $600 to $750 per week net. Her main outgoing is rent at $300 per week. Every second week she has the care of her two young children who attend a local primary school. She is required to take the children to school and pick them up from out-of-school care. On those days, at considerable cost, relative to her income, she takes taxis to and from the train station. Regular commuting by taxi is unaffordable. The applicant has been able to draw on financial support from her family to fund her taxi use.

50 That the applicant has been able to maintain her employment in these circumstances over the last 10 months stands to her credit. It is not a fact that I find proves that the means of transportation she has employed in that time are practicable alternatives. The use of public transport and taxis by the applicant is unduly expensive having regard to her income. It is unduly time-consuming having regard to the nature of her work, including the opportunity she has to work longer hours to support herself and her children and the provision of parking by her employer, and her parenting responsibilities. It is also, in my opinion, unduly inconvenient, having regard to the same circumstances.

51 I am satisfied that to refuse the application would deprive her of her only practicable means of travelling to and from her place of work.

52 I am satisfied that the safety of the public would not be put at risk by the grant of an extraordinary licence. The applicant had a good driving record prior to the offences for which the disqualification was imposed. Her offending was out-of-character and occurred in unusual and unexpected circumstances. The record of minor speeding infringements, without more, does not support an adverse inference with respect to the general manner of the applicant's driving in terms of public safety.

53 The applicant is a person of good character. She was able to garner favourable references for the purpose of informing the sentencing judge in that respect. That she holds the position she does is in itself some indication of her good character. Moreover, she met the requirements of her parole to date. She is deeply remorseful of the tragic consequences of her wrongdoing.

54 The circumstances of the case have been fully addressed in these reasons. The applicant is a hard-working single parent who, it seems to me, is doing her best to rehabilitate herself and to meet her responsibilities as a parent and as an employee.

55 The nature of the offences giving rise to the disqualification has been outlined. They are particularly serious offences by reason of their catastrophic consequences, but they resulted not from reckless or egregious driving. Rather, they were due to poor decision-making at a time of acute personal stress when the applicant was affected by alcohol. The applicant had expected that her husband would drive the family home from Toodyay. When that plan did not eventuate because of an upsetting verbal altercation she found herself, with her children, in a difficult situation in which she made a wrong decision to drive. She also erred by continuing to drive when she was emotionally upset, thus creating the situation in which she became distracted and allowed her vehicle to veer to the wrong side of the road. The consequences were catastrophic. There is no question that the bereavement and injury caused by the applicant's driving have caused immeasurable grief, loss and pain.

56 The applicant has been punished by a sentence of 2 years' imprisonment and five years' disqualification. I do not accept the submission that the intended punitive effect of the disqualification is of relevance in this case. The point made by McKechnie J in Italiano was in relation to the breadth of the licence sought. It is not authority for the proposition that an applicant who would otherwise satisfy the statutory criteria for an appropriate extraordinary licence should be precluded by reason of the extent of their particular sentence.

57 The breadth of the proposed licence is narrow in that it would only permit the applicant to drive for the purposes of going to and from her place of employment and, incidentally, to take her children to school. It hardly diminishes the enormity of the deprivation of an unrestricted motor driver's licence for five years to permit the applicant to drive to this limited extent.

58 The conduct of the applicant post-conviction does not suggest any reason for concern as to her eligibility for an extraordinary licence.

59 Upon consideration of the s 30(2) factors I am satisfied that the application is merited. The s 30(4)(c) criterion having been met as a threshold requirement.

Conditions

An order directing the grant of an extraordinary licence may impose -

(a) a condition requiring the applicant to comply with the requirements of regulations under Part 2 about applying for a driver's licence before the extraordinary licence is granted to the applicant; and

(b) such conditions as the court thinks proper subject to the observance of which the authority to drive under the licence may be exercised, including conditions as to -

(i) the locality in which and roads on which the applicant is entitled to drive; and

(ii) the purposes for which the applicant is entitled to drive; and

(iii) the hours during which the applicant is entitled to drive; and

(iv) the vehicle or class of vehicle that may be driven under the authority of the licence.

61 Section 32(b) does not mandate any conditions. Nor does it restrict the purposes for which the applicant may be entitled to drive. It does not, by reference to s 30(4) or otherwise, expressly limit the exercise of the court's discretion in respect of the conditions to be imposed.

62 The evidence satisfied me that the applicant's personal situation was such that, to avoid extreme hardship to herself and her young children, she required a licence that would not only enable her to drive to and from work, but between her place of residence and her children's school, and to obtain medical treatment for herself and her children. The evidence, directly and by inference, demonstrated the particularly heavy responsibilities of the applicant as a working single parent of two young children living in an outer suburb, and the extent to which the exigencies of work and parenting were likely to cause, without a driver's licence, extreme hardship.

63 As I had not heard from counsel with respect to the conditions of the extraordinary licence sought in the application, I provided draft reasons indicating my inclination to grant an extraordinary licence in terms wider than sought in the application and invited counsel to make further submissions. My draft reasons proposed a condition in terms that would allow the applicant to drive to and from work, and also to take her children to and from school or out-of-school care and to attend for medical treatment. I heard from counsel on 15 May 2015.

64 Counsel for the applicant submitted that the course proposed was open to the court. Counsel for the respondent, on the other hand, argued the legislation should be construed to give effect to the evident intention of the Parliament that an extraordinary licence could only be granted for the purpose of alleviating one or more of the three situations prescribed by s 30(4). In the respondent's submission, by meeting one or more s 30(4) conditions, an applicant did not become entitled to a licence for another purpose, not specified by s 30(4).

65 The question, then, is whether the court may direct the grant of an extraordinary licence for a purpose incidental or in addition to that for which the applicant has qualified for a licence under s 30(4).

66 In that respect it is noted that the Minister in the second reading speech did not identify or refer to the s 30(4) conditions, but spoke of the amendment as being necessary 'to ensure that the section properly achieves its important public policy objectives'. The Minister observed in his remarks that the court's power to grant an extraordinary licence was 'an essential safety net, particularly when an innocent family member of the disqualified person would suffer as a result of the offender's disqualification'.

67 It is clear from these remarks and the legislation itself that it is remedial in nature and the relief is afforded is discretionary, subject of course to the operation of one or more of the s 30(4) conditions.

68 I am of the opinion that s 30(4) does not limit the court's discretion as to the purposes for which the licence can be exercised. That opinion is based upon an analysis of pt 3 div 3 of the Act.

69 First, the Act does not define 'extraordinary licence' restrictively. It is a driver's licence granted by the CEO as ordered under an application pursuant to s 27: see s 3(1). 'Driver's licence' is defined to mean 'a licence ... authorising the holder to drive a motor vehicle on a road': s 3(1). Otherwise, the scope of an extraordinary licence, i.e. what it licenses the holder to do, is not prescribed.

70 Second, s 30(1) empowers the court 'to make an order directing the CEO ... to grant an extraordinary licence ... as the court thinks fit'; in other words, in the court's discretion.

71 Third, the matters prescribed by s 30(2) for the consideration of the court in deciding whether to make an order directing the grant of an extraordinary licence do not specifically include the purposes for which the licence may be exercised, but are general discretionary factors.

72 Fourth, s 30(4) in its terms and structure, does not prescribe a set of limited purposes for which a court may order the grant of an extraordinary licence. Rather it is in the nature of a proviso. It prohibits the making of an order directing the grant of a licence, unless refusal of the application would have one or more of three privative effects. In effect it prescribes three conditions, one of which must be satisfied before an application that is otherwise merited on the basis of the s 30(2) factors may be granted.

73 Fifth, as I have observed, s 32 affords a general discretion as to the conditions to be imposed. The court 'may impose such conditions as the court thinks proper'. Arguably, if no conditions were imposed the extraordinary licence would amount to an unrestricted driver's licence. As that would be an unreasonable result, the section must be construed so as to effectively require the court to fix the terms on which the licence may be used. Accordingly, it is by s 32 that the court in its discretion determines the scope of the licence to be granted. The matters detailed in s 32(b)(i) - (iv) are not exclusive.

74 It is by this approach that I have come to the conclusion that the court's discretion to impose conditions on the licence to be granted, in terms of locality, purpose, hours, vehicle class, and generally, is not restricted to relieving the applicant of any the circumstances set out in s 30(4). Rather, such conditions should take into account all of the circumstances of the case, as the court is required by s 30(2) to consider.

62 The application is granted. Pursuant to s 30(1) the chief executive officer is directed to grant an extraordinary licence for 12 months from the date of this order drive a class C vehicle from Monday to Friday inclusive between the hours of 7.00 am and 7.00 pm for the purposes of, and incidental to, travelling between her residence in Beechboro and her place of work in West Perth and taking her children to and from school or out-of-school care, and for the purpose of attending for medical treatment for herself or her children. The order will in terms of the usual form, a minute of which has been agreed by the parties.

Traffic (Authorisation to Drive) Act 2008

Chugg v Pacific Dunlop Ltd

At a glance

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Judgment (98 paragraphs)

McKENZIE -v- DIRECTOR GENERAL OF DEPARTMENT OF TRANSPORT [2015] WADC 55 (15 May 2015)

Parties

Legislation Cited (3)

Cases Cited (2)