Coleman v Commissioner of Police, New South Wales Police Service [2000] NSWADT 15 (21 February 2000)

Last Updated: 29 February 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Coleman -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 15

PARTIES: APPLICANT

Adam Coleman

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 003026

HEARING DATES: 03/02/2000

SUBMISSIONS CLOSED: 03/02/2000

DECISION DATE: 21/02/2000

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Road Transport (General) Act 1999

CASES CITED: Schulz -v- Mill (1984 1 MVR 37)

APPLICATION: Review of decision to suspend driver's licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: In person

RESPONDENT REPRESENTATIVE: G Doherty, solicitor, NSW Police Service

ORDERS: 1. Decision to suspend applicant's driver's licence is affirmed.

Reasons for Decision:

1 This is an application under section 48 of the Road Transport (General) Act 1999 (the Act). The applicant, Mr Coleman, has asked the Tribunal to review a decision of a police officer to suspend his drivers licence.

2 Section 34(1) of the Act states that:

"If a person is charged by a police officer with an offence under section 9(3) or (4), 15(4), 16 or 22(2) of the Road Transport (Safety and Traffic Management) Act 1999, the same or another police officer may, at any time within 48 hours after the person has been charged, give the person a suspension notice."

3 Mr Coleman was given a suspension notice on 29 January 2000 after he was breath tested and found to have a blood alcohol concentration of 0.135.

Jurisdiction

4 The Tribunal has jurisdiction to determine this application under s 48 of the Road Transport (General) Act 1999. That section, so far as it is relevant to this case, states that::

.

(1) A person aggrieved by any of the following decisions made in relation to the person may apply to the Administrative Decisions Tribunal for a review of the decision:

(a) a decision of a police officer under section 34 to suspend the person's driver licence,

(2) An application for a review in respect of a decision referred to in subsection (1) (a) or (b) must be made before the charge that occasioned the suspension has been heard and determined by a court or withdrawn.

What can the Tribunal take into account?

5 Under s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act), the Tribunal can take into account any relevant factual material when making a decision. Section 63(1) states that:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

6 When deciding whether a decision by a police officer to suspend a person's drivers licence is the correct and preferable decision, the Tribunal is restricted in relation to the material it can take into account. Section 48(3) of the Act states that:

(3) Despite anything to the contrary in section 63 of the Administrative Decisions Tribunal Act 1997, in determining an application for a review of a decision referred to in subsection (1) (a) or (b), the Tribunal:

(a) is not to vary or set aside a decision to suspend a driver licence or authority to drive unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of the suspension, and

(b) is not, for the purposes of any such application, to take into account the circumstances of the offence with which the person making the application is charged.

Consequently the Tribunal must be satisfied that there are exceptional circumstances, not related to the offence, before varying or setting aside a decision to suspend a driver's licence. This departure from the normal situation where the Tribunal can consider any relevant factual material appears to be based on two considerations. Firstly, it is not appropriate for the Tribunal to assess the likelihood of success of the proceedings pending in the Local Court based on what can only be incomplete and untested evidence. Secondly, this provision is designed to ensure that the public safety considerations inherent in a police officer's powers to suspend a licence are not easily displaced.

Findings of facts

The applicant in this case was given a notice of suspension and confiscation of driver's licence on 29 January 2000, pursuant to section 9(3) of the Road Transport Act, which relates to mid-range prescribed concentration of alcohol offences.

Mr Coleman advised that he has been employed as a cleaner with Tempo Cleaning Services for approximately 12 months. His job involves cleaning a High School which is approximately 15 kilometres from his home. He also cleans some offices in Coffs Harbour in the evenings. He works from approximately 4 am to 8 pm and then again from 3 pm to 6 pm.

7 Mr Coleman said that he carries plastic bags and some cleaning products in his car and that after cleaning the offices he puts all the rubbish in his boot and disposes of it off site. Since losing his licence the person he lives with has driven him to and from work, but because of his commitments, he cannot continue to do this on a reliable basis.

8 There is no public transport available for Mr Coleman to get to work early in the morning and he estimates that he would need to catch at least two taxis a day at a cost of $17.00 each way. He may be able to manage the other trips on public transport. He says he cannot afford $170.00 a week for taxis.

9 Mr Coleman said that he would either have to move closer to the High School or he would lose his job. He also said that he had previously been convicted of negligent driving about seven years ago and had been fined for that offence.

10 This matter has been set down for hearing in the Local Court on 14 February 2000. Mr Coleman advised that he would be pleading guilty. He understands that he will almost certainly lose his licence at that time. The application is put on the basis that he is suffering hardship because he will not be able to continue working.

11 Mr Coleman gave his evidence in a straightforward style and I accept what he said.

What constitutes exceptional circumstances not related to the offence?

12 "Exceptional" is defined in the Macquarie Dictionary, 3rd edition, as "forming an exception or unusual instance; unusual; extraordinary." "Circumstances" is relevantly defined as "the existing condition or state of affairs surrounding and affecting an agent."

13 If the exceptional circumstances cannot be related to the offence, they must, in a general sense, be related to the offender. Circumstances which may be relevant include:

· the circumstances of the applicant relating to his or her employment or earning capacity;

· the circumstances of the applicant relating to his or her personal life or domestic situation, including whether the person has a disability or has dependants or other people who rely on him or her.

14 In deciding which circumstances are "exceptional" analogous cases in other jurisdictions are useful. For example, in both South Australia and Tasmania there is legislation which resembles the New South Wales legislation. Section 17(5) of the Road Safety (Alcohol and Drugs) Act (Tas) states that:

(5) Notwithstanding subsection (3), if a person who is convicted of an offence referred to in column 1 of the Table satisfies the court which convicted the person that there are special circumstances why the minimum fine specified in the Table or the minimum period of disqualification specified in the Table should not be imposed, the court may impose a lesser fine or a lesser period of disqualification (emphasis added).

While this provision relates to a decision to fine or disqualify, rather than a decision to suspend, the way it has been interpreted by the courts provides some relevant background to the provisions under consideration in this case. In Dellar v Crawford (16 MVR 207 at [20]) the Supreme Court of Tasmania found that for the purpose of considering special circumstances under s 17(5) of the Road Safety (Alcohol and Drugs) Act 1970 (Tas) a Court must take into account circumstances personal to the offender as well as circumstances surrounding the actual commission or the offence. What constitutes "special circumstances" in relation to the offender has been considered in several cases. In Lower v Plaister, (unreported 2 July 1986) the Supreme Court of Tasmania made a decision in relation to an applicant who was employed as a driver for a security firm delivering security documents. The Court held that they would not regard the possible loss of employment or other hardship as normally providing an exceptional or unusual circumstance."

Another circumstance which was not considered to be "special" was where a person will lose an opportunity for promotion (Davidson v Registrar of Motor Vehicles (Tas) 8 MVR 421).

In South Australia, s 102(2) of the Motor Vehicles Act 1959 s 102(2) states that:

Notwithstanding any other Act the minimum amount of time and the minimum period of disqualification prescribed by the section shall not be reduced or mitigated in any way except as follows:

(1) in the case of a first offence if the court for special reason thinks fit to do so, it may impose a fine of less than $100.00 and order disqualification for a period of less than 3 months." (emphasis added)

15 The term "special reason" was interpreted in Schulz v Mill (1984 1 MVR 37). The Supreme Court of South Australia held in that case that the interference with a small business due to disqualification in times of unemployment and restricted job opportunities, necessitating costly hire of a driver or closing the business, constitutes extensive hardship going beyond mere inconvenience.

This case appears to me to be one which marks clearly the distinction which the courts have drawn between instances where loss of employment will be caused by disqualification on the one hand and where great inconvenience will be caused (including loss by reason of having to take taxis or engage a driver) but without actual loss of employment on the other. Circumstances falling in the first group may constitute exceptional hardship so as to come within the category of special reasons; circumstances in the latter group ordinarily will not." )at p 377 check reference.

16 In the context of the New South Wales legislation the Tribunal is considering whether the decision to suspend a person's licence prior to hearing is the correct decision. At the time of the suspension the person has not had the opportunity put their side of the story. In legal terms, they have not been afforded procedural fairness. In my view s 48(3) was designed to avoid a situation where an applicant suffers significant hardship because of the exceptional circumstances which arise through suspension of a licence.

17 Merely being inconvenienced or out of pocket by having to use public transport or some other means of transport will not generally constitute exceptional circumstances. But where a person cannot undertake some essential requirement of their job or stands to lose their employment or earning capacity prior to a hearing being conducted, the Tribunal may consider it appropriate to intervene. Similarly where the applicant or a third person will suffer hardship because of exceptional personal or domestic circumstances, consideration should be given to reversing the decision to suspend the licence.

18 The Tribunal may overturn a suspension if there are exceptional circumstances but is not required to do so. One situation where, despite the presence of exceptional circumstances, the Tribunal could choose not to exercise its discretion is where allowing the applicant to drive would pose an unacceptable risk to public safety. This could arise, for example, where the person's previous driving record or bad character indicates that they should not be permitted to drive.

19 In my view, the circumstances of the offence, which cannot be taken into account, include the breath analysis or blood test reading which was recorded by the police, the events immediately preceding the alleged commission of the offence, the reason the applicant was driving and any defence on which the applicant intends to rely.

20 Mr Doherty for the Commissioner, opposed the application. He submitted that the hardship was personal to Mr Coleman and did not affect any other person such as an employer or a family member. Mr Doherty referred the Tribunal to its decision in White v Commissioner of Police [2000] NSWADT 9. Despite what I said in that case, on reflection, I do not think that it matters whether or not the exceptional circumstances relate to the applicant or a third person. As long as they are exceptional and they cause significant hardship, the Tribunal can make an order.

21 Similarly, despite Mr Doherty's submission, I do not consider that it is relevant that a period of suspension is to be taken into account by the court in determining any ultimate period of disqualification. (s 34(6) of the Road Transport (General) Act 1994) An applicant should be aware of this provision before making an application to the Tribunal but if the application is made, it is not relevant for the Tribunal to take account of the fact that the applicant's period of disqualification (if any) will include the period of suspension.

Application of these principles to the present case

22 Mr Coleman's situation represents a borderline case. He is having difficulty getting to and from work and it would cost him a considerable proportion of his earnings to catch a taxi. However, he has managed to make arrangements to commute since his licence was suspended and given all the evidence it is highly unlikely that he will lose his job, or suffer a significant reduction in his earning capacity, prior to the hearing in the Local Court on 14 February 2000. For these reasons I do not regard his circumstances as exceptional.

23 I affirm the decision to suspend the applicant's licence.