Court of Appeal (WA)|1999-04-21|Before: Kechnie J

Italiano v The Director General of Transport [1999] WASCA 40 (21 April 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ITALIANO -v- THE DIRECTOR GENERAL OF TRANSPORT [1999] WASCA 40

Road Traffic Act s 76 - Extraordinary driver's licence - Same Magistrate who imposed penalty hearing application - Whether bias - Matters to be taken into account - Turns on own facts

Devries v Australian National Railways Commissioner (1993) 177 CLR 472

Hopkins v Traffic Board, unreported; SCt of WA; Library No 970590; 5 November 1997

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

Manfredi v The Traffic Board, unreported; SCt of WA; Library No 950030; 10 January 1995

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 60 ALJR 560

Re Thies & Department of Aviation (1986) 9 ALD 454

Stonehouse v Commissioner of Police, unreported; SCt of WA; Library No 5669; 5 October 1984

Traffic Board v Smith, unreported; SCt of WA ;Library No 950394; 25 July 1995

1 McKECHNIE J : On 12 February 1998, the appellant was involved in a motor vehicle accident when the car he was driving ran into the rear of another vehicle in Ocean Drive, Bunbury, injuring all four occupants of the other vehicle. The appellant was alone in the vehicle at the time.

2 As a result, on 9 September 1998 he was convicted after trial of four charges of dangerous driving causing bodily harm. He was fined a total of $4000 and disqualified for 18 months on each charge, the period of disqualification to be served concurrently. The minimum period of disqualification under the Act is a period of 12 months.

3 On 8 October 1998, the appellant applied for an extraordinary motor vehicle driver's licence for classes A, B and C, within a 350 kilometre radius of his employer's premises at Collie, for a period of 24 hours a day. In the affidavit filed by the appellant in support of the application he deposed that he was 24 years old and a truck driver by occupation. He asked to dispense with the requirements for display of the E plates. He deposed that he would lose his job as a truck driver and that that loss of employment would cause financial hardship.

4 On 23 October 1998, the application was heard by the same Magistrate who had convicted the appellant. After hearing the appellant the Magistrate refused the application. This appeal is brought as a consequence of that refusal.

5 The appellant has not put the outline of the facts in the appeal book, relying instead upon the version put forward by him in his affidavit. That version, frankly, tends to minimise the offences which on his version would hardly amount to dangerous driving.

6 The Magistrate, on the other hand, found that the circumstances of the offence were extremely serious. That view is reflected in the substantial financial penalty imposed and in the length of the period of disqualification.

7 Complaint is made by way of appeal that the Magistrate should have disqualified himself from hearing the application because he had presided over the trial. That is not a complaint generally that Magistrates in such a position should do so but is limited to the facts of this case.

8 Of course there are times when a judicial officer, in resolving the issues of a case, will form such a view as to the credibility of a person as to preclude that judicial officer from sitting in future proceedings involving that person.

9 It would be hard to imagine circumstances where this might apply to applications for an extraordinary driver's licence. By the nature of the application a Magistrate must take into account the circumstances of the offence. Who better to know of those circumstances than the Magistrate who presided over the trial?

10 Furthermore, this application did not involve issues of credibility which could give rise in some cases to a perception of prejudgment. In the trial, the applicant had not given evidence. Country Magistrates in particular will often hear extraordinary driver's licence applications in respect of disqualifications which they have imposed. Only in a very rare case will it be necessary for the Magistrate to disqualify himself or herself.

11 This application is put on a more limited basis as I understand the submission. It is that although there may not have been reason to disqualify himself in the beginning, a comment at p10 of the application book gives rise to a perception of judgment. The comment arose in this way. After the only witness in the application, the applicant, had been examined and cross-examined, the Magistrate invited the prosecutor to make a submission. The prosecutor replied, "The circumstances place a dilemma, I know, for the court in regard to" - his Worship responded, "There is no dilemma for me, Sergeant."

12 The prosecutor then briefly made some submissions and his Worship then invited counsel for the applicant to make some submissions, which were made. In my view, this material does not come within the area of bias such as to disqualify a Magistrate from further hearing. It is important to note that the comment was made at the conclusion of the evidence - where it might be expected that a judicial officer has formed a preliminary view of the facts. His Worship went on to invite counsel for the applicant to nevertheless address him, and I do not see that as an empty exercise. He may well have been persuaded from the tentative view which he must have formed. However, there is nothing, in my judgment, wrong with a Magistrate making a comment to evoke response from either side and the mere fact that comment was made in this case, in the form that it was, does not in my opinion indicate bias on the part of the Magistrate. I therefore would not uphold that ground of appeal.

13 The principles which govern the exercise of the judicial discretion to grant an extraordinary driver's licence are well settled, as are the principles which govern appeals from decisions from Magistrates granting or refusing applications.

14 I do not need to set them out. They are conveniently gathered together by Templeman J in Damianopoulos v Director-General of Transport (1997) 26 MVR 182.

15 The appellant complains that the Magistrate failed to have regard to the principles set out in the Road Traffic Act s 76(3) and in particular asserts that the safety of the public is but one factor to be considered and not the paramount consideration as found by the Magistrate.

16 Section 76(3) sets out a number of factors to be considered. In my view the section gives rise to a mix of factors any one of which may, in a particular case, be decisive. In some cases the safety of the public may overwhelm all other factors. In another case the degree of hardship and inconvenience to the applicant and his family may be the dominant feature.

17 The discretion which arises in assigning appropriate values to each of the factors is one peculiarly for the Magistrate. That is why there is a presumption in favour of the correctness of the decision in this area of the law. That presumption is, in my respectful view, strengthened when the same Magistrate who has the best judicial understanding of the circumstances of the offence sits in judgment on the application for an extraordinary driver's licence.

18 Of course if a Magistrate misdirects himself or herself as to the law, or relevant principle, that is a different matter. I do not consider that in this case the Magistrate did so err. His comments about paramountcy are preceded by the phrase: "In the overall circumstances of this application." This is clearly a reference to his evaluation of the case as "extremely serious circumstances of the offence".

19 It may be accepted that the Magistrate found that the appellant would suffer hardship and inconvenience and would probably lose his employment. This I accept from what was said by the appellant in the court below and on affidavit. Clearly, the Magistrate weighed this factor in the balance in considering the application. A motor vehicle driver's licence is not a right, it is a privilege, the continued maintenance of which depends on avoidance of traffic offences.

20 As a direct result of his dangerous driving the appellant lost that privilege. The offences with which he was convicted carried a mandatory period of disqualification. The disqualification actually imposed, as I have said, was 18 months, not 12 months, so there was necessarily an element of punishment for the extremely serious offence.

21 The breadth of the licence sought, if granted, would have greatly minimised the punitive aspects of the disqualification, turning an 18 month 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 appellant's personal life.

22 The appellant was entitled to make application at the time that he did.

23 However, the consequence of making an application at the minimum period, meant that, effectively, he precluded the Magistrate's considerations under s 76(3)(e), namely, the conduct of the applicant subsequent to the disqualification, so that the magistrate could not really attribute any weight to that particular ground.

24 The appellant under the Road Traffic Act s 76(4) may shortly bring a further application. I do not consider that the same result as applied in the application presently appealed from necessarily would apply in a new application, in part because an application after this length of time would have to take into account to a greater measure than the Magistrate could, the provisions of the Road Traffic Act s 76(3)(e).

25 Other factors may also be relevant. I mention this simply to say that in my opinion the decision of the Magistrate in this matter appealed from was correct on the material before him and no error has been shown that he erred. However, that decision, and this decision, does not foreclose a fresh application being made on factors which may or may not now be different.

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

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Italiano v The Director General of Transport [1999] WASCA 40 (21 April 1999)

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