Favetta v Commissioner of Police, New South Wales Police Service [2003] NSWADT 14 (20 January 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Favetta -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 14

PARTIES: APPLICANT

Mark Bruno Favetta

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 023302

HEARING DATES: 07/01/2003

SUBMISSIONS CLOSED: 07-01-2003

DECISION DATE: 20-01-2003

BEFORE: Montgomery S - Judicial Member

LEGISLATION CITED: Road Transport (General) Act 1999

Administrative Decisions Tribunal Act 1997

CASES CITED: Arps -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 35

APPLICATION: Driver's licence suspension

Road Transport (General) Act - driver's licence suspension

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

C Capper, advocate

ORDERS: Date of Order: 7 January 2003

1. The decision fo the Commissioner is affirmed.

Reasons for Decision:

Background

1 This is an application under section 48 of the Road Transport (General) Act 1999 ("the Act"). The applicant, Mr Favetta, 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 Favetta was given a suspension notice on 15 December 2002 after he was breath tested and found to have a blood alcohol concentration of 0.105.

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(a) or (b) must be made before the charge that occasioned the suspension has been heard and determined by a court or withdrawn."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) of the ADT Act 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 driver's 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."

7 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.

Findings of facts

8 The applicant in this case was given a notice of suspension and confiscation of driver's licence on 15 December 2002. The matter has had an initial listing in the Local Court and will be finalised later this year. Mr Favetta indicated that the presiding magistrate may deal with the matter without conviction upon Mr Favetta successfully completing a traffic offender's program. It is uncertain when such a program will be held.

9 Mr Favetta is 19 year old student who works casually as a sales assistant in a hardware store. Mr Favetta's mother is ill with breast cancer, and Mr Favetta has taken on additional responsibilities with regard to his family and their farm. As Mr Favetta's mother is no longer able to lift heavy objects or drive for prolonged periods Mr Favetta has accepted responsibility for a great deal of the produce delivery. He delivers farm produce over distances of up to 50 km. This was a function that his mother previously carried out.

10 Mr Favetta attends University studying Engineering at a campus approximately 200 km away from his family. He returns home most weekends to assist his family and he maintains a part-time job to provide additional assistance. He indicated that he requires a licence in order to continue with these activities.

11 Due to the lack of public transport in the area, commuting without personal transportation is difficult. Although catching a bus is an alterative the bus timetables are inconvenient and it places an additional financial burden on him.

12 Employment in his local area is difficult to obtain. Mr Favetta has applied for a cadetship with the Local Council with respect to his engineering studies. A condition of the employment is that he has a licence. He submitted that in order to continue to perform his obligations to his family, carry out his employment and undertake his studies it is essential that he keep his licence.

What constitutes exceptional circumstances not related to the offence?

13 In Arps -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 35 the Deputy President of this Tribunal set out some principles to guide the Tribunal in considering what constitutes exceptional circumstances. In her reasons she referred to the Second Reading Speech of the Traffic (Road Safety) Amendment Bill in the NSW Legislative Assembly on the 21 November 1989 and the April 1989 Staysafe Committee report entitled Immediate and Certain Loss of Licence for Extreme Drink Driving. The Deputy President observed that the Staysafe Committee report related to a proposal that motorists having 0.15 gms of alcohol/100ml of blood should be immediately prohibited from driving. This measure was subsequently enacted and extended to mid range offences of between .08 and 0.15. In the Staysafe 13 Report at 4.19- 4.20 the following comments were made:

"The committee considers that those for whom a licence is specially important have a special obligation to drive in accordance with drink drive laws.

Loss of employment has been claimed as an exceptionally harsh penalty for those dependent on licences for their livelihood, but a US report (Wells-Parker and Cosby, 1988) indicates that unemployment does not significantly increase for those losing licences for drink-driving offences."

14 The Deputy President also observed that the loss of employment, convenience in commuting for those in remote areas or performing shift work and transporting people who are sick or disabled were not considered by the Committee to be exceptional circumstances. She stated at paragraphs 18 and 19 of her reasons:

"The example used by the Committee at 4.17 of a motorist being stranded hundreds of kilometres from home when picked up for drink driving or of a person needing to transport another person in a life and death situation do not seem to me to be "the general run of cases". However, on the basis of material in the STAYSAFE report, I now agree that loss of employment should not be regarded as an exceptional circumstance. It is quite common for people to rely on their vehicles to earn a living, either because they need it to perform their job or because they cannot reach their place of employment by public transport.

19 Mr Arps has not made out a case of exceptional circumstances in relation to his employment or in relation to the need to transport his wife to the doctor. There was no evidence that this was exceptional in any way. I would be more reluctant to come to the same view in circumstances where a person needed a licence to transport a person with a severe or unpredictable medical condition. Transporting children to and from activities is not an exceptional circumstance."

15 I agree with the views expressed by the Deputy President. In my view, the circumstances in relation to Mr Favetta's studies, employment or the need to assist his family are not exceptional. These considerations lead me to find that the Commissioner made the correct decision in suspending Mr Favetta's licence and that decision is affirmed.

Orders

16 The decision of the Commissioner is affirmed.