Court of Appeal (WA)|2003-07-22|Before: Mr P, Miller J

Director General for Planning and Infrastructure v Nealon [2003] WASCA 161 (22 July 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIRECTOR GENERAL FOR PLANNING AND INFRASTRUCTURE -v- NEALON [2003] WASCA 161

BETWEEN : DIRECTOR GENERAL FOR PLANNING AND INFRASTRUCTURE

Criminal law - Justices - Road Traffic - Review of notice of suspension of driver's licence - Section 48(1)(d) of the Road Traffic Act 1974 - Whether conditions other than those contained within s 44 of Act can be imposed - Validity of service of notice in precincts of Court

Road Traffic Authority v Lamont, unreported; SCt of WA; Library No 2523; 28 February 1979

1 MILLER J: This is an appeal from a decision of Mr P Heaney SM given in the Court of Petty Sessions at Perth on 28 February 2003 when the learned Magistrate granted to the respondent a motor driver's licence by reason of hardship that he was suffering due to the decision of the applicant to suspend his motor driver's licence pursuant to the provisions of s 48 of the Road Traffic Act 1974 (WA) ("the Act").

2 On 4 April 2003 I gave the appellant leave to appeal the decision of the learned Magistrate on the grounds that his Worship erred in granting the licence in question in that he :

"(a) erred in law in finding that the hardship caused to the Respondent by the suspension of the licence was a reason to review the decision of the Applicant to suspend the Respondent's licence; and

(b) erred in law in finding that it was open to the Court to make an order that a licence be issued to the Respondent subject to conditions other than conditions of the kind contemplated by section 44 of the Road Traffic Act 1974 (WA)."

3 The history of the matter is that on 7 October 2002 the appellant served on the respondent a notice of suspension of driver's licence under s 48(1)(d) of the Act. Section 48 of the Act gives to the appellant the right to refuse to issue a driver's licence or to cancel, suspend or refuse to renew a driver's licence where the appellant has reason to believe that an applicant for, or the holder of a driver's licence should not, for one reason or the other, hold such a licence. Section 48(1)(d) prescribes that one of those reasons is where an applicant is debarred from driving a motor vehicle under the law in force in any other State or in a Territory or other country.

4 Pursuant to this provision the appellant, by notice dated 24 December 2002, gave to the respondent a Notice of Suspension advising that his driver's licence was suspended until 15 August 2004 on the ground that the appellant had reason to believe that the respondent was debarred from driving a motor vehicle under the law in force in another State, namely Victoria. The notice was served upon the respondent "in Court" on 24 December 2002 and an affidavit filed on the proceedings reveals that service was effected in one of the court rooms at the Court of Petty Sessions.

5 Pursuant to s 48(4) of the Act the respondent, being a person aggrieved by the decision of the appellant to suspend his motor driver's licence, applied by way of complaint to the Court of Petty Sessions at Perth for a review of the decision.

6 The matter came before the learned Magistrate on 28 February 2003 at which time counsel for the respondent first complained that the notice served upon the respondent was not a valid notice by reason of the fact that it had been served in a court room at the Court of Petty Sessions. This submission failed in the Court below and in my view, rightly so. In the present case the Court was not dealing with service of process but with the giving of notice to the person affected by the appellant's decision by notice in writing of the decision. The decision of the appellant had already been taken and what the respondent was receiving was notice of that decision, albeit served upon him in the precincts of the Court of Petty Sessions.

7 Brookfield & Anor v Davey Products Pty Ltd, unreported; Fed Ct of Aust; 25 September 1998 is authority for the proposition that service of a notice upon a respondent within the precincts of a court building is not necessarily invalidated. In that case the court was concerned with service of a bankruptcy notice upon a respondent in a lift on the ninth floor of a court building in Grenfell Street, Adelaide. The court occupied the ninth floor of the building with court rooms and public areas, but the lifts serviced the building generally. Mansfield J (at 9 - 10) said:

"In these circumstances, I do not think it is accurate to say that the lifts in the building constitute part of the Court precincts.

Even if they were, the rule concerning service in court precincts is a confined one, if it still exists. In my view, the circumstances in which Mr Brookfield was served would not render the service upon him invalid in any event. In Re O'Sullivan ex parte O'Sullivan v Commonwealth Bank of Australia [1995] FCA 1184; (1995) 57 FCR 145, Lindgren J reviewed in detail the authorities concerning service of process in the precincts of a court. His Honour came to the conclusion that it is not the law that service in the court precincts constitutes a contempt of court. He found that:

'... even if it were, it would not follow that service would be set aside. Whether conduct constitutes contempt of court by reason of its being calculated to interfere with the administration of justice by a court is to be determined by reference to matters of greater substance...' (at 149)

I respectfully agree with his Honour's observations. As the law currently stands, service in the precincts of the court may be a contempt if it has 'such a deterrent effect as to obstruct the administration of justice': Baldry v Jackson [1976] 1 NSWLR 19 at 25.

In O'Sullivan (above), Lindgren J noted that the foyer in that case, like the lifts in the instant case, are used by a large number of people, and that he did not think that the knowledge that process could be served in that foyer as freely as elsewhere was apt to interfere with the administration of justice in the courts by, for example, discouraging litigants and witnesses from attending court (at 150).

Equally, in my judgment, the service on Mr Brookfield in a lift in the building of which the Court occupies a floor or floors would not deter litigants from attending court, or amount to a contempt of court. Accordingly, I reject that submission."

8 In my view, the service upon the respondent of a notice under s 48(4) in a court room in the Central Law Courts complex was valid service upon him of that notice.

9 Counsel for the respondent submitted to the learned Magistrate at the hearing on 28 February 2003 that the respondent should be issued with a licence without any conditions but if the Court felt it necessary to impose conditions "then the normal conditions that are imposed on an extraordinary licence (should be imposed)". Counsel said:

"But in reality that's what in essence it is. It's the only way that we can go to relieve the hardship. Now, I don't -- no. As I understand it, the director general is not disputing that he's suffering from hardship. If they want me to establish the hardship I'll call Mr Nealon to give evidence. If they're happy that he is suffering from a hardship, then we can just then have the argument over whether it can or can't be granted."

10 The respondent was called to give evidence and he explained to the Court that he required a motor driver's licence because he was a consultant in the investigation of fires and explosions and attended many fire scenes in circumstances where he required a motor driver's licence to do so.

11 After hearing submissions on the matter the learned Magistrate took the view that pursuant to s 48(4) and s 48(5) of the Act, he was entitled to grant to the respondent a motor driver's licence in circumstances where he was suffering hardship, that licence to incorporate certain conditions. His Worship said:

"HIS WORSHIP: Well, I accept your arguments, Mr Bowden, pursuant to section 48(4) and (5) and I can see no reason why in fact the hardship that Mr Nealon has referred to would not be a reason to review the decision of the director general. So accordingly I shall review it. What does it say I can do? '... and make such order including an order for the issue of a driver's licence with or without conditions.' So pursuant to the hardship that Mr Nealon has indicated he's suffering, I think he ought to be granted a driver's licence but with some conditions.

...

...for use in the course of employment only, an dif he's an investigator of fires, unfortunately they occur at all time of the day and night and every day of the week.

...

HIS WORSHIP: Logbook to be kept in respect of each and every journey undertaken, noting time and place of departure and destination and time of arrival at destination."

12 The grounds of appeal contend that the learned Magistrate confused the grant of an extraordinary motor driver's licence (s 76) with the grant of a driver's licence under the provisions of s 48 of the Act. In the former case the issue of hardship is a relevant consideration (s 76(3)(f)) whereas in the former it is not.

13 The appellant's submission is correct. In Commissioner of Police v Plumb, unreported; SCt of WA; Library No 6009; 20 September 1985, Pidgeon J made it clear that the grant of a licence pursuant to s 48(5) of the Act is quite a separate and distinct process from that which applies under s 76 of the Act. His Honour said (at 6 - 7):

"It was suggested in argument by the respondent that the Court of Petty Sessions has some further and perhaps supplementary powers which the Board does not have and that is sub-s 5 empowers the Court to make an order for the issue of a driver's licence with or without conditions and limitations as it thinks fit. This may suggest that if the Board sees the need to suspend or cancel a licence, it is open to the Court to modify the effect of that order by imposing conditions, a power not given to the Board under s 48. I would not read the section that way. Section 44 empowers the Board to issue to an applicant a driver's licence, subject to conditions. The relevant part of this section reads:-

'44. (1) Where an applicant for a driver's licence-

. . .

. . .

(c) should not, in the opinion of the Board, drive a motor vehicle, except subject to conditions or limitations,

the Board may issue a driver's licence subject to such conditions as it thinks fit to impose; ...'

I would see the words 'such conditions' as referring to the conditions and limitations previously referred to in sub-s (c). I would consider this section combined with s 48 would entitle the Board to issue a licence subject to limitations and conditions in appropriate circumstances. If, therefore, the Court is of the view that the Board was correct in refusing an unconditional licence, but considered it ought to issue a licence with limitations or conditions, then the Court is empowered to make an order for the issue of a licence with limitations or conditions. Section 48 does not empower the Board in respect of a holder of an existing licence merely to add conditions to that licence. No doubt it could cancel one licence and issue a conditional licence. However, the conditions are authorised to be imposed on the issue of a licence. I would see the same position in respect of the power of a Court under sub-s (5). That is, the Court can order the issue of a driver's licence with or without conditions and limitations, but it would not be empowered to make an order that conditions and limitations be added to an existing licence. The conditions and limitations would, I consider, be conditions and limitations contemplated by s 44. I do not consider it was contemplated that these conditions and limitations be the types of conditions that are imposed on extraordinary licences issuing under s 76."

14 In Commissioner of Police v Batty, unreported; SCt of WA; Library No 8185; 21 March 1990, Kennedy J (at 8) followed the decision in Commissioner of Police v Plumb, saying:

"In Commissioner of Police v Plumb, Supreme Court of Western Australia (Pidgeon J), unreported; No 6009; 20 Sept 1985, in the course of his reasons, Pidgeon J indicated that the granting of an extraordinary licence under s 76 was an entirely different exercise from that conducted under s 48. His Honour observed that it was not open under sub-s (5) of s 48 to consider aspects of hardship and character and that they would not be factors for the Board or for the Commissioner, as delegate, to take into account in making a decision under s 48(1), its or his inquiry being limited to whether the facts authorising the exercise of the power existed. His Honour, it should be noted, was not there speaking of a case depending upon s 48(1)(a) in which the character of the applicant would clearly be of significance. He was concerned with a case where the applicant was debarred from driving a motor vehicle under the law of another State. I entirely agree with his Honour, however, that questions of hardship and inconvenience to the respondent are of no relevance under s 48."

15 I respectfully follow and adopt what has been said by Pidgeon J and Kennedy J respectively in Commissioner of Police v Plumb and Commissioner of Police v Batty. In this case the learned Magistrate was limited to a consideration whether, under s 48(1)(d) of the Act the appellant had acted within power in suspending the respondent's motor driver's licence. The question simply was whether the facts authorised the appellant to exercise the power as he did. There was no question of the respondent's character being in issue, but simply whether he was debarred from driving a motor vehicle under the law in force in another State. On the face of it he was, and accordingly the decision of the appellant was within power.

16 The review of the appellant's decision to which the respondent was entitled under s 48(4) and s 48(5) entitled the learned Magistrate only to review the decision of the appellant in the sense of review of the question whether the facts authorised the exercise of the power as it was in fact exercised. The provisions did not entitle the learned Magistrate to issue to the respondent a motor driver's licence with conditions similar to those by which an extraordinary motor driver's licence would be issued under the provisions of s 76 of the Act. The reference to "with or without conditions and limitations" in s 48(5) of the Act refers only to the issue of a driver's licence subject to conditions or limitations under s 44 of the Act. Those conditions are entirely inapplicable in circumstances in which, pursuant to s 48(1)(d) of the Act the appellant has suspended a driver's licence.

17 It follows that the learned Magistrate erred in taking into account the question of hardship and in granting a motor driver's licence with conditions which were designed to alleviate hardship. In the circumstances the only course open is to quash the decision of the learned Magistrate. No ground has been shown upon which the matter should be remitted to the Court of Petty Sessions for rehearing.

Director General for Planning and Infrastructure v Nealon [2003] WASCA 161

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Director General for Planning and Infrastructure v Nealon [2003] WASCA 161 (22 July 2003)

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