White v The Commissioner of Police [2000] NSWADT 9 (10 January 2000)

Last Updated: 25 January 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: White -v- The Commissioner of Police [2000] NSWADT 9

PARTIES: APPLICANT

Matthew Peter White

RESPONDENT

Commissioner of Police, NSW Police Service

FILE NUMBERS: 003004

HEARING DATES: 10/01/2000

SUBMISSIONS CLOSED: 10/01/2000

DECISION DATE: 10/01/2000

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Road Transport (General) Act 1999

CASES CITED:

APPLICATION: Review of decision to suspend driver's licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

P Stitz, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

G Doherty, solicitor, Legal Services Branch, NSW Police Service

ORDERS: 1. The Tribunal affirms the decision to suspend the applicant's licence,

Reasons for Decision:

Delivered Ex-Tempore

1 This is an application under section 48 of the Road Transport (General) Act 1999. Section 48(1) allows a person aggrieved by a decision of a police officer under to suspend the person's driver's licence to apply to the Administrative Decisions Tribunal for a review of that decision. When making a decision the Tribunal is not to vary or set aside the police officer's decision unless it is satisfied that there are exceptional circumstances justifying such a decision. In particular, the Tribunal cannot take into account the circumstances of the offence with which the person is charged (s48(3) Road Transport (General) Act 1999).

2 Section 34(1) of the Road Transport 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 The applicant in this case was given a notice of suspension and confiscation of driver's licence on 26 December 1999, pursuant to section 9(3) of the Road Transport Act, which relates to mid-range prescribed concentration of alcohol (PCA) offences.

4 Although this application was made for a stay of the administrator's decision, with the consent of the parties, given the time limits involved, I have heard the application as a substantive application under the Administrative Decisions Tribunal Act 1997.

5 The solicitor for the applicant advised that the applicant works for Woolworths in Yennora and resides in Crows Nest. He holds a managerial position with that company and normally would drive to work in a company car. Since his licence has been suspended he has used public transport involving a bus to Town Hall Station, a train to Fairfield station, and a taxi from Fairfield to Woolworths at Yennora. I am advised that this trip takes between two and two and a half hours each way.

6 There was no evidence that the applicant's job was under threat or that there was any more than inconvenience to the employer resulting in the suspension of the applicant's licence. I was also advised that the applicant's employer is to move offices, either to Parramatta or to the city, and that that should be finalised within the next two months or so. The application is put on the basis that the applicant is suffering hardship in the interim, that is before the employer moves offices, by having to travel between two and two and a half hours each way to work.

7 I have also been advised that the offence for which the applicant has been charged will be heard on 1 February 2000, and that the applicant intends to plead guilty to that offence. It is also agreed between the parties that there is generally an automatic disqualification period of 12 months with a minimum of six months, for medium range PCA offences and that any period of suspension is normally taken into account in calculating any period of disqualification.

8 The case for the respondent was that inconvenience in travelling to and from work by public transport does not constitute exceptional circumstances which would justify a lifting or variation of the suspension. Examples were given where third parties, such as an elderly relative or a person with a disability, may suffer hardship as a result of a person not being able to drive, and it was suggested that these situations would be more likely to fit into the category of exceptional circumstances. Similarly where an employer is disadvantaged as a result of an employee losing a licence, it was suggested that that would be more likely to constitute exceptional circumstances.

9 My task in determining this case is to decide whether the facts, as put by the applicant's solicitor and which I accept, constitute exceptional circumstances justifying a lifting or variation of the suspension. There will always be a range of circumstances that applicants find themselves in as a result of their licence being suspended. Those circumstances will vary from no inconvenience at all, to moderate inconvenience and severe inconvenience.

10 Although I can see that in the circumstances of this case the applicant will be significantly inconvenienced, in terms of the time that it takes him to get to and from work, I do not consider those circumstances to be exceptional. Many people need to travel across the city on routes that are not serviced well by public transport. I do not consider the applicant's circumstances to be exceptional in that respect. I also note that there is no hardship to any other person such as a relative or the applicant's. I do not consider this case fits within the category of exceptional circumstances that would justify the variation or suspension of the decision.

11 Consequently, I affirm the decision to suspend the applicant's licence.