plaintiff. Order that the respondent grant the applicant an extraordinary licence permitting HR-class (and prescribed) vehicles limited to employment purposes within a 150 km radius of Perth District...
Key principles
A court may only order the grant of an extraordinary licence if it is satisfied that refusal would have one of the consequences specified in s 30(4) of the Road Traffic...
In deciding an application under s 30(1) the court must also consider the mandatory factors in s 30(2): the safety of the public generally, the character of the applicant, the...
Section 30(4)(b) requires proof on the balance of probabilities that refusal would impose an undue or disproportionate financial burden; the court must assess whether the...
When considering s 30(4)(c) the court must identify the applicant's other transport options, evaluate each option in context of the statutory scheme and the applicant's personal...
Issues before the court
Whether the applicant satisfied s 30(4)(b) of the RTAD Act so that refusal would place an undue financial burden on him or his family.
Whether public safety concerns arising from the nature of the offence and the applicant's history precluded the grant of an extraordinary licence.
Plain English Summary
The District Court granted Jacob Davis an extraordinary restricted driver's licence for work purposes after finding on the balance of probabilities that refusing the licence would impose an undue financial burden on him and his family. The court balanced public safety concerns, the seriousness of the original offence, the applicant's subsequent conduct and rehabilitation, and required a medical fitness certificate and conditions limiting vehicle class, geographic radius and hours to mitigate safety risks.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,925 words · generated 16/06/2026
What happened
This is an application by Jacob Eli Davis in the District Court of Western Australia for an extraordinary licence under the Road Traffic (Authorisation to Drive) Act 2008 (WA) (RTAD Act). The application (filed 15 May 2019) sought a restricted licence to permit the applicant to drive HR-class (and other prescribed) vehicles for the purposes of employment with DJ MacCormick Contractors within a 150 kilometre radius of the Perth District Courthouse, and to travel between his residence and workplace within set hours (see Background [1]–[2]).
Whether s 30(4)(c) (only practicable means of travel) needed to be established in addition to or instead of s 30(4)(b).
Cited legislation
3 cited instruments linked from this judgment.
The applicant had been convicted after trial of dangerous driving occasioning death on 13 March 2017, sentenced to imprisonment and disqualified from driving for five years. His disqualification runs from his release on parole on 12 December 2018 and expires on 12 December 2023 (Offence paragraph [1]–[4]). The fatal collision occurred on 22 October 2015 when the applicant, driving an MC-class road train, collided with and crushed a Toyota Camry causing the death of its driver (Offence summary [6]).
Post-release, the applicant obtained casual employment with DJ MacCormick Contractors from January 2020; his employer gave evidence that full-time employment would be available only once the applicant obtained an appropriate licence and that continued casual work was increasingly difficult without a licence (Evidence [7]–[18]). The applicant and his wife gave evidence of mortgage commitments on the family home, financial reliance by the wife (who is not working) on the applicant's contributions, and the applicant's attempts to obtain other work without success (Evidence [20]–[22], [38]–[39]). The respondent (Department of Transport) opposed the application, relying on the seriousness of the offending and the applicant's prior traffic record to advance safety concerns (Respondent position).
Prior DCJ heard the matter (9 December 2020) and delivered reasons on 25 January 2021. The court concluded on the balance of probabilities that refusal would place an undue financial burden on the applicant and his family by depriving him of his principal means of obtaining income, and accordingly ordered the respondent to grant an extraordinary licence subject to conditions and a requirement for a medical fitness-to-drive certificate (Conclusion and Order).
Why the court decided this way
Statutory framework and threshold: The RTAD Act permits a court to order the respondent to grant an extraordinary (restricted) licence only if the court is satisfied that refusal would produce one of the consequences listed in s 30(4): urgent medical treatment being denied, an undue financial burden by depriving the applicant of his principal means of income (s 30(4)(b)), or depriving the applicant or a family member of the only practicable means of travelling to/from employment (s 30(4)(c)). The court must also have regard to the mandatory considerations in s 30(2): public safety, the applicant's character, case circumstances, the nature of the offending, and subsequent conduct (Relevant provisions).
On the evidence available, Prior DCJ applied that framework as follows.
The statutory threshold (s 30(4)(b)) was satisfied.
The applicant provided contemporaneous affidavits, employer testimony and documentary material establishing that his present casual employment was conditional, and that full-time employment and a material increase in earnings (to an estimated $80–85,000 pa) were contingent on him obtaining an appropriate licence ([9]–[18], Evidence). The employer's evidence was accepted: the company had managed to find casual work while awaiting licence outcome but continuing to find work was becoming difficult and the offer of full-time employment was expressly conditional on licence attainment ([26], [27]).
The applicant's wife was not employed, the family home carried a substantial mortgage and both parties relied on limited assets and prior worker's compensation withdrawals; the applicant had been contributing to household expenses and intended to continue doing so ([20]–[22], [42]–[48]). The court explicitly found on the balance of probabilities that refusal would most likely result in the loss of the applicant's employment and a reduction of income that would impose an undue and disproportionate financial burden on the family (Analysis of the evidence [1]–[3], Considerations [9]).
Public safety concerns were considered and mitigated.
The court addressed mandatory safety considerations. It characterised the offence that led to disqualification as "low to mid-level" of its type and noted no aggravating circumstances ([Considerations 5]). The applicant had no driving or criminal offences during the two years of the disqualification he had served; his conduct post-disqualification was described as "very good" ([Considerations 7]).
The applicant's mental-health symptoms (anxiety/depression) were treated and controlled, and a medical practitioner's letter (Dr Witherow) indicated there was no formal PTSD diagnosis. The court accepted that any remaining concerns could be addressed by requiring an M107A fitness-to-drive certificate as a condition precedent to issue ([Considerations 2]–[4], [2nd quote]).
The court considered that conditions under s 32 could be tailored to the employment purpose and would mitigate safety risks: limiting vehicle class (HR rather than MC), geographic radius, stipulated hours and the requirement for the medical assessment.
Choice of statutory basis and pragmatics.
The court found it unnecessary to decide s 30(4)(c) (only practicable means) once s 30(4)(b) (undue financial burden) was established ([Conclusion 1.2]). The judgment follows the approach in McKenzie to s 30 generally and Lenegan on undue financial burden.
Combined, these findings justified the discretionary relief: having determined the statutory threshold under s 30(4)(b) was satisfied, and balanced the mandatory considerations under s 30(2) with suitable mitigations, the court ordered the grant of the extraordinary licence subject to defined conditions (Conclusion).
Before and after state of the law
Before: The RTAD Act requires the statutory threshold in s 30(4) be met; judicial guidance on application of those subsections had been developed in prior authorities, notably McKenzie [2016] WASCA 147 and Lenegan [2012] WADC 102. Those authorities explain that an applicant must prove on the balance of probabilities that refusal would have one of the enumerated consequences, and set out how to approach considerations such as 'practicable' under s 30(4)(c) and what constitutes an 'undue' financial burden under s 30(4)(b).
After: This decision applies and re-confirms the approach in McKenzie and Lenegan. It emphasises that:
Proof on the balance of probabilities that refusal would impose an undue financial burden is sufficient to ground an extraordinary licence (and that distinct inquiry into practicability under s 30(4)(c) is unnecessary where (b) is established).
Employment offers conditional on licence, employer evidence of expectations, and family mortgage and dependency can collectively establish undue financial burden.
Public safety concerns arising from past serious offending can be addressed by careful limitation of vehicle classes, time and geographic conditions and by requiring medical fitness evidence.
Thus the decision fits within the existing line of authority and applies established tests rather than changing the law.
Key passages with plain-English translation
"I am satisfied on the balance of probabilities that if the Applicant is not granted an extraordinary licence it is most likely he will lose his employment at DJ MacCormick Contractors." (Order reasoning)
Plain English: The judge accepted the applicant's and employer's evidence that not getting the licence would probably mean the applicant loses his job.
"As the Applicant has made out his case for the grant of an extraordinary licence under s 30(4)(b) of the RTAD Act, it is unnecessary for me to consider... s 30(4)(c)." (Order reasoning)
Plain English: Because the judge found undue financial burden, there was no need to consider whether driving is the only practical way to get to work.
"In my view, the offence... can be described as a low to mid-level offence of its type. There were no aggravating circumstances."
Plain English: The judge decided the original dangerous-driving offence, though serious, did not have factors making it exceptionally bad for purposes of this licence decision.
"I am satisfied if the Applicant was to provide a medical assessment certificate (A Fitness to Drive M107A)... the issue as to the Applicant's mental health and his ability to safely drive commercial vehicles could be resolved."
Plain English: The judge required a doctor’s certificate to make sure any mental-health issues would not make driving unsafe.
What fact patterns trigger this precedent
This decision is particularly instructive where:
An ex-offender with a disqualification seeks an extraordinary licence for employment purposes;
The applicant can produce employer evidence that significant employment, or a promised transition from casual to full-time work, depends on holding a licence;
The applicant's family circumstances include a sole- or primary earner spouse, mortgage obligations and limited assets, so refusal would materially threaten housing or family finances;
The offending that led to disqualification, though serious, has mitigating features: absence of aggravating circumstances, passage of time without further offences and evidence of rehabilitation;
Safety concerns can be ameliorated by limiting the licence by class, geographic area, times of driving and by requiring medical fitness certificates.
If these features are present, a court applying this precedent would likely consider s 30(4)(b) seriously and may be persuaded to grant a limited, conditioned extraordinary licence.
How later courts have treated it
This decision explicitly applied McKenzie and Lenegan. It reiterates their approaches without departing from them. It is itself a District Court decision; higher courts (WASCA) decisions like McKenzie remain the principal appellate authority. Practitioners should treat this decision as consistent application of existing precedent rather than a new principle. Subsequent decisions (noted in this judgment) may cite this reasoning where a factual pattern involves conditional employment and mortgage vulnerability; where courts find strong employer evidence and family reliance, they have relied on s 30(4)(b) grounds. Always check for any subsequent appellate review if relying on District Court authorities in materially novel circumstances.
Still-open questions
Degree of proof and granularity of employer evidence: This decision accepted employer assertions that full-time work was conditional on a licence. Future cases may explore the level of specificity required: written offers, firm contractual terms, or continued ad hoc employer support. How much objective proof must an applicant provide to satisfy s 30(4)(b) remains a practical question.
Relationship between s 30(4)(b) and s 30(4)(c): Although this case determined s 30(4)(b) made it unnecessary to decide s 30(4)(c), there can be hard cases where refusal does not deprive an applicant of principal means of income but does make driving the only practicable method of travel for a family member. The precise dividing line and interplay in marginal cases remain to be refined.
Medical fitness and psychiatric disclosure: The decision shows courts will accept a medical assessment (M107A) as a condition. But questions remain about who bears the cost, the standards applied by the Department or delegated decision-makers in accepting such certificates, and how post-diagnosis monitoring or periodic re-assessment should be structured.
Scope of conditions as mitigation: The case confined the applicant to HR-class vehicles and limited hours and radius. Whether more intrusive or monitoring-type conditions (telematics, supervised driving, immediate revocation triggers) are necessary in other cases to balance safety and rehabilitation is an open practical issue.
Weight to be given to historical traffic offences: This applicant's earlier offences were mostly old; courts may differ about how much weight to give a concentrated cluster of historic offences versus more recent conduct. The assessment remains highly fact-dependent.
Conclusion: Prior DCJ applied the established statutory tests in McKenzie and Lenegan and granted a narrowly-tailored extraordinary licence on the basis the applicant proved undue financial burden, with conditions to address safety. The decision is a carefully reasoned application of prior authority and is useful for practitioners advising clients in similar factual circumstances, while leaving several practical evidentiary and administrative questions to future determination.
Judgment (35 paragraphs)
[1]
The Applicant's criminal and road traffic record indicates he has been convicted of a variety of road traffic offences including driving under suspension (eight offences), driving with a blood alcohol in excess of 0.08%, reckless driving and careless driving.
The majority of the traffic offences are driving under suspension offences. Except for one offence committed on 18 April 2008, they do not involve driving a vehicle in a careless, dangerous or reckless manner but driving a vehicle when the Applicant's licence was suspended.
The Applicant has either been fined, sentenced to a suspended imprisonment order or had his driver's licence disqualified for all his road traffic offences.
The Applicant has also incurred numerous demerit points and in 2006 had been subject to a three month licence suspension for accumulation of 12 demerit points.
Excluding the offence the subject of the Applicant's present licence disqualification all the Applicant's road traffic offences for driving a motor vehicle occurred between April 2006 and July 2010 when the Applicant was a younger person. The majority of the Applicant's demerit points were incurred from October 2003 to September 2013.
[2]
An extraordinary licence is a restricted driver's licence. The extraordinary licence holder is still disqualified but the licence he or she holds is subject to the conditions the court considers appropriate pursuant to s 32 of the RTAD Act.
The conditions imposed on an extraordinary licence are usually reflective of the purpose for which an extraordinary licence is sought.
The court's discretionary power to impose conditions on an extraordinary licence must be exercised consistently with the objects of the statutory scheme for extraordinary licences.[6]
The conditions imposed on an extraordinary licence may in some cases mitigate concerns arising if an applicant was permitted to drive a motor vehicle pursuant to an extraordinary licence.
Section 30(1) of the RTAD Act provides that a court may make an order directing the respondent to grant an extraordinary licence for a period not exceeding 12 months from the date on which it is granted as the court thinks fit or refuse the application.
In making a decision for the purposes of s 30(1) of the RTAD Act:
[3]
(a) the safety of the public generally; and
(b) the character of the applicant; and
(c) the circumstances of the case; and
(d) the nature of the offence or offences giving rise to the disqualification; and
(e) the conduct of the applicant subsequent to the disqualification.
[4]
(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 -
[5]
(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
[6]
(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
[7]
(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.
[8]
The above provisions of the RTAD Act and how they should be applied were outlined in McKenzie.[7]
The court may only make an order directing the granting of an extraordinary licence if it is satisfied that the applicant has established, by evidence, to the court's satisfaction, that the refusal of the application would have a consequence specified in s 30(4)(a), s 30(4)(b) or s 30(4)(c)[8] and that it is appropriate to grant the licence after considering the factors in s 30(2) of the RTAD Act which are mandatory relevant considerations.
The consideration by the court of the mandatory considerations in s 30(2) of the RTAD Act will often result in weighing countervailing considerations.[9] The court may, in a particular case, by the imposition of conditions under s 32(b) of the RTAD Act, reconcile countervailing considerations under s 30(2) of the RTAD Act in a manner which makes it appropriate, in all the circumstances, to grant an extraordinary licence.[10]
Section 30(4)(b) of the RTAD Act requires the court to consider whether it is satisfied that the refusal of the application would impose a disproportionate financial burden on the applicant by preventing him from doing his normal work.[11]
The court must decide whether the applicant is deprived of his means of obtaining an income without an extraordinary licence and if this is the case, the court must look at whether the effect of this places an undue financial burden, namely beyond what is warranted, excessive or disproportionate.[12]
Section 30(4)(c) of the RTAD Act requires the court to be satisfied that the refusal of an extraordinary licence will deprive the applicant of the only practicable means of travelling to and from the place at which the applicant is employed.[13]
The meaning of the word 'practicable' depends to a significant extent on the context, but it ordinarily connotes that which is reasonably feasible or reasonably capable of being put into practice, done or accomplished.[14]
The court must assess what is practicable for the applicant and not what is practicable for the hypothetical reasonable person.
[9]
The respondent opposes the Application. The respondent submits that the Applicant has failed to satisfy the evidential burden for the court to make an order pursuant to s 30(4)(b) or s 30(4)(c) of the RTAD Act.
The Applicant's previous road traffic record including the factual circumstances of the case relating to the offence the subject of his existing disqualification and the fact the applicant may suffer from post-traumatic disorder, the respondent submits, raises a significant concern as to the safety of the public generally if the Applicant was to be issued an extraordinary licence.
[10]
In support of the Application the Applicant has filed affidavits he has sworn on 13 May 2019 (first affidavit), 18 September 2020 (second affidavit), 18 November 2020 (third affidavit) and an affidavit sworn by his wife on 21 September 2020.
In response to the Application the respondent has filed affidavits sworn by Clifford Henry Warner on 27 August 2019 and 7 December 2020.
Materials which were annexed to the various affidavits included the following:
the Applicant's criminal and traffic record;
the Applicant's traffic infringement record;
the transcript of the Applicant's sentencing in this court on 13 March 2017;
a publication from the National Transport Commission 'Assessing Fitness to Drive for Commercial and Private Vehicle Drivers';
a letter from Dr Anne Witherow dated 24 October 2020; and
a letter from Stephen Gill the Operations Manager at DJ MacCormick Contractors dated 29 October 2020.
At the hearing of the Application I heard evidence from the Applicant, the Applicant's wife, Stephen Allan Gill, the Operations Manager at DJ MacCormick Contractors and Mr Warner.
Some of the original evidence filed by the Applicant in his affidavit sworn on 13 May 2019 is now irrelevant. The Application is now based on the applicant's present employment which he has held at DJ MacCormick Contractors since January 2020. The width of the Application in terms of hours the Applicant seeks to use an extraordinary licence has been reduced.
When the Applicant filed his Application in May 2019 he was not represented by counsel. The hearing of the Application was adjourned on a number of occasions to allow the Applicant to obtain further evidence in support of his Application and address issues raised by the respondent in its submissions.
The Applicant's evidence is that he works approximately 38 hours a week and earns $26.90 an hour, earning approximately $840 a week in his role as a labourer, storeman and yard person at the DJ MacCormick Contractors' workshop in Maddington.[18] He works between 7.00 am and 3.30 pm.
Mr Gill corroborated that the Applicant works causally for DJ MacCormick Contractors in Maddington and can work from four to five days a week depending on the work available.
[11]
I am satisfied on the balance of probabilities that if the Applicant is not granted an extraordinary licence it is most likely he will lose his employment at DJ MacCormick Contractors. The evidence indicates that DJ MacCormick Contractors employed the Applicant on the basis he would obtain a licence.
On the evidence, I am satisfied, even if the Applicant was to maintain his present casual employment role at DJ MacCormick Contractors his employment hours and income would decrease.
The Applicant has been employed at DJ MacCormick Contractors in his present role over the last 12 months whilst his employer has been waiting for the Applicant to obtain a licence.
I am satisfied on the evidence that since the Applicant has been released from prison on parole, notwithstanding his separation from his wife, he has tried to financially support his wife and three children.
I am satisfied that the Applicant intends to continue to financially support his family.
[12]
Considerations pursuant to s 30(1) of the RTAD Act
[13]
The Applicant's criminal and road traffic record shows significant gaps in his road traffic record which indicates the Applicant is capable of complying with the road traffic laws. The Applicant's record also indicates since he has entered into a relationship with his wife and had three children, his offending has decreased.
The applicant's original material filed in support of his Application suggests he suffers from post-traumatic stress disorder (PTSD). The Applicant gave evidence that whilst in prison he was told he suffers from PTSD. There has been no formal diagnosis that the Applicant suffers PTSD.[52]
The letter of Dr Witherow dated 24 October 2020 states that the Applicant 'has not been diagnosed with PTSD'. Dr Witherow in her letter went on further, saying:
[14]
He has exhibited symptoms of anxiety and depression following his motor vehicle accident in 2015 for which he was treated with medication and psychology. His symptoms are now well controlled on Effexor 75mg daily.
[15]
The Applicant presently sees a counsellor once a month for anxiety and depression. He also takes prescribed medication for anxiety and depression.[53]
On consideration of the Applicant's evidence and the letter from Dr Witherow, I am satisfied the Applicant's mental health does not pose a risk to the public if an extraordinary licence was granted to him for work purposes.
The evidence of Mr Warner indicates that if the Department of Transport becomes aware or if an applicant for a licence declares they have a psychiatric condition that impairs their ability to safely operate a motor vehicle, the Department of Transport will require that person to undergo an assessment by a medical practitioner as to their fitness to operate a motor vehicle before any licence is granted.[54]
I am satisfied if the Applicant was to provide a medical assessment certificate (A Fitness to Drive M107A), completed by a medical practitioner, the issue as to the Applicant's mental health and his ability to safely drive commercial vehicles could be resolved.
In my view, the offence the Applicant committed which led to his disqualification can be described as a low to mid-level offence of its type. There were no aggravating circumstances.
The Applicant does not seek an extraordinary licence for the class of vehicle he was driving when the offence the subject of his present disqualification occurred.
The Applicant's conduct subsequent to his disqualification has been very good. He has been released from custody after serving the minimum non-parole period of his prison sentence. He has made concerted efforts to obtain employment. He has not committed any criminal offences or offences in relation to driving a motor vehicle during the two years of the disqualification he has now served.
In my view, the rehabilitation of the Applicant is a relevant consideration in the Applicant's case. Granting him an extraordinary licence which will allow him to continue to be employed will only assist his rehabilitation.
I am satisfied if the Applicant's Application for an order directing the respondent to grant an extraordinary driver's licence is refused, the Applicant and his family will suffer an undue, disproportionate, financial burden by virtue of the fact that he may, at best, continue to be employed casually probably receiving a lesser income than he does at present carrying out duties which are not his normal work, but more likely he will lose his employment through DJ MacCormick Contractors. In either event, the Applicant and his family will not be able to maintain their financial liabilities and this probably will result in the loss of their family home.
[16]
I order that the respondent grant to the Applicant an extraordinary licence that allows him to drive on the following conditions:
driving only in the course of his employment with DJ MacCormick Contractors within a 150 km radius of the Perth District Courthouse located at 500 Hay Street, Perth, WA, and for the purpose of travelling from his residence to his place of employment at DJ MacCormick Contractors workshop, 94 Maddington Road, Maddington and to DJ MacCormick Contractors' contracted worksites and return;
between the hours of 6.00 am and 6.00 pm Monday through to Friday and Saturday 6.00 am and 3.00 pm inclusive; and
the Applicant to provide to the delegate of the respondent a completed medical assessment certificate (A Fitness to Drive M107A) before the extraordinary licence is issued by the respondent.
I will hear from the parties as to any other terms considered appropriate for the issue of the extraordinary licence to the Applicant and costs.
[17]
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
[18]
[3] Section 103(1) Sentencing Act 1995; and ts 12, District Court sentencing, 13 March 2017.
[19]
[4] ts 2 - ts 4, District Court sentencing, 13 March 2017.
[20]
[5] ts 11, District Court sentencing, 13 March 2017.
[21]
[6]Director General of the Department of Transport v McKenzie[2016] WASCA 147 [65] (McKenzie).
[22]
[7]McKenzie [49] - [71] (Buss P with whom Murphy JA & Beech J agreed).
[11]Lenegan v Director General of the Department of Transport[2012] WADC 102 [26] (Lenegan). Staude DCJ considering the provisions of the repealed s 76(3b) of the Road Traffic Act 1974 (WA) which were replaced with the identical provisions of s 30(4) of the RTAD Act.
[25]
[21] The applicant's second affidavit par 51, and Annexure A; the Applicant's third affidavit par 6; and ts 84.
[26]
[23] The Applicant's second affidavit par 52, and Annexure A; the Applicant's third affidavit Annexure A; and ts 78.
[27]
[40] The Applicant's second affidavit par 42; and the Applicant's wife's affidavit par 17.
[28]
[41] The Applicant's second affidavit par 42; and the Applicant's wife's affidavit par 17.
DAVIS -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT [2021] WADC 6 (25 January 2021)
Director General of the Department of Transport v McKenzie [2016] WASCA 147
Lenegan v Director General of the Department of Transport [2012] WADC 102
AI Analysis
Outcomeplaintiff
Disposition:
Order that the respondent grant the applicant an extraordinary licence permitting HR-class (and prescribed) vehicles limited to employment purposes within a 150 km radius of Perth District Courthouse, travelling between residence and workplace and contracted worksites, between 6.00 am and 6.00 pm Monday to Friday and to 3.00 pm on Saturday; condition precedent that the applicant provide a completed medical assessment certificate (Fitness to Drive M107A) to the respondent's delegate; further hearing reserved as to any other terms and costs.
To determine whether s 30(4)(c) of the RTAD Act is established involves:
identifying the applicant's other available transport options (if any);
evaluating each other available transport options (if any) in the context of the statutory scheme and all the relevant facts and circumstances including the applicant's personal circumstances; and
making a judgment as to whether any other available transport option would be a 'practicable means' (that is, a reasonably feasible means) for the applicant to travel to and from his place of employment, in the context of the statutory scheme and all the relevant facts and circumstances including the applicant's personal circumstances.[16]
Section 30(4)(c) of the RTAD Act does not mandate or involve a comparison between the applicant driving a motor vehicle to and from his place of employment and the use of another available transport option. The correct approach is for the court to evaluate separately each available transport option (if any), apart from driving a motor vehicle, in the context of the statutory scheme and all the relevant facts and circumstances, including the applicant's personal circumstances and to make a judgment as to whether the transport option under consideration would be a 'practicable means' for the Applicant to travel to and from his place of employment.[17]
The Applicant has the onus of proof on the application and the standard of proof is the balance of probabilities.
The Applicant's evidence is that he began employment with DJ MacCormick Contractors on the proviso of being offered full-time employment by DJ MacCormick Contractors once he obtained his extraordinary licence[20] and therefore able to earn a higher income.[21]
Mr Gill gave evidence that the Applicant's offer of employment at DJ MacCormick Contractors was conditional upon him having an extraordinary driver's licence.[22] The Applicant's evidence is that he believes, based on conversations with his employers, he will lose all employment with DJ MacCormick Contractors should his Application for an extraordinary licence be refused and he then would have to receive Centrelink payments.[23]
Mr Gill gave evidence that the Applicant has been employed casually as a yard hand with DJ MacCormick Contractors in Maddington since either February or March 2020 and the Applicant reports directly to him.[24] In cross-examination, he accepted the Applicant started his employment in January 2020.[25]
Mr Gill gave evidence that the Applicant was employed on the basis he was obtaining his driver's licence and whilst waiting for an outcome of the Application, the company had managed to find work for the Applicant but continuing to find work was becoming difficult.[26]
Mr Gill gave further evidence that if the Application was successful, then the Applicant would have a full-time job with DJ MacCormick Contractors and the predominant role would be driving a flat top truck, a HR class vehicle, to different contractual work sites for DJ MacCormick Contractors delivering equipment and supplies working from 7.00 am to 5.00 pm.[27] He stated that as a full-time employee, the Applicant would receive a higher wage due to longer work hours being at least five to six days a week and each day working 10 hours,[28] Saturday work[29] and he would also be entitled to annual and sick leave benefits.[30]
The Applicant gave evidence that the role offered to him would double his income. He would work between 50 to 57 hours a week at a rate of $30 an hour,[31] which is a weekly salary of $1,500 to $1,710 before tax. Mr Gill gave evidence that the Applicant's annual income would be around $80,000 to $85,000.[32]
The Applicant's evidence is that if a HR licence is issued to him he will be driving HR vehicles and other classes from his employer's workshop in Maddington to contracted worksites. The worksites are within the Perth metropolitan area. He will also be required to take work vehicles home and drive them directly to worksites the following day. Mr Gill in his evidence stated all DJ MacCormick Contractors' vehicles are marked with the business name.[33]
Mr Gill gave evidence that if the Application was unsuccessful, he would be unable to guarantee the Applicant any more than 30 hours a week casually.
Mr Gill gave evidence that if the Application was successful to the extent that the Applicant held an extraordinary licence for C class vehicles, there was more scope to give him full-time employment because the Applicant could travel to sites, but this would only be 38 hours a week.[34] A contractor would still be required to deliver equipment to sites for DJ MacCormick Contractors.[35]
The Applicant gave evidence that if he maintains his casual employment, he would 'be lucky to maybe get 30 hours a week' and 'maybe no job at all, being a casual'.[36] Mr Gill also gave evidence that if the Application was unsuccessful that DJ MacCormick Contractors could not guarantee even 30 to 38 hours a week.[37]
The Applicant's evidence is that following his release from prison, he was receiving Centrelink benefits, applying for thirty to forty jobs a fortnight and received no job offers.[38] The two jobs the Applicant did secure did not continue long-term because the Applicant did not hold a driver's licence.[39]
The Applicant's wife owns the property in Brookdale. The house is valued at approximately $300,000[40] and the approximate balance of the mortgage, with KeyStart, is $300,000.[41] Before he was incarcerated and since being released from prison the Applicant has contributed to paying the mortgage.[42] The Applicant's wife also gave evidence that the Applicant contributed to the mortgage prior to being incarcerated.[43]
The Applicant's wife's evidence was that she has been and continues to be unable to solely financially support the couple's three children and maintain the mortgage on the family home. Both the Applicant and Mrs Davis gave evidence that the couple have relied upon the Applicant's worker's compensation payout,[44] withdrawals from the Applicant's wife's superannuation,[45] making hardship applications with KeyStart[46] and the Applicant's wife's parents to assist them in maintaining the mortgage payments and other day-to-day expenses.[47]
The Applicant's wife gave evidence that since the Applicant has been employed at DJ MacCormick Contractors, she relies on the Applicant's contributions to pay for all other expenses, excluding the mortgage.[48]
The Applicant has no other assets except for nominal superannuation.[49] The Applicant's wife's only asset (other than her home) is her motor vehicle valued at approximately $4,000[50] and nominal superannuation.[51]
As the Applicant has made out his case for the grant of an extraordinary licence under s 30(4)(b) of the RTAD Act, it is unnecessary for me to consider the Applicant's case for the grant of an extraordinary licence pursuant to s 30(4)(c) of the RTAD Act.