Lakeman -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 128

CITATION: Lakeman -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 128 DIVISION: General Division APPLICANT PARTIES: Eileen Lakeman RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 013121 HEARING DATES: 18/07/01 SUBMISSIONS CLOSED: 07/18/2001 DATE OF DECISION: 08/06/2001

BEFORE: Hennessy N (Deputy President) APPLICATION: Driver's licence suspension - Road Transport (General) Act - driver's licence suspension MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Road Transport (General) Act 1999 Road Transport (Safety and Traffic Management) Act 1999 Arps v Commissioner of Police, New South Wales Police Service [2000] NSWADT 35 Baskerville v Martin [1967] SASR 150 CASES CITED: Johnston v Clive (1992) 1 Tas R 183 Minnis v Commissioner of Police, New South Wales Police Service [2001] NSWADT 4 O'Kelly v Commissioner of Police, New South Wales Police Service (No 2) [2000] NSWADT 74 APPLICANT

REPRESENTATION: O Harrison, counsel RESPONDENT C Dawes, solicitor ORDERS: The decision to suspend the applicant's driver's licence is affirmed.

Introduction 1 On 12 May 2001, a police officer gave Ms Lakeman a Notice of Suspension and Confiscation of Drivers Licence. The notice was issued after Ms Lakeman was charged with driving with a prescribed concentration of 0.106 grams of alcohol per 100 millilitres of blood. 2 Under s 34 of the Road Transport (General) Act 1999 a police officer may suspend the driver's licence of a person who has been charged with an offence under s 9(3)(a) of the Road Transport (Safety and Traffic Management) Act 1999. One such offence is the presence of a middle range of prescribed concentration of alcohol (PCA) in the person's blood. The suspension continues until the charge is heard and determined by a court or withdrawn. (See s 34(3) of the Road Transport (General) Act 1999 .) 3 Ms Lakeman attended the Local Court on 23 May 2001 and the matter was adjourned at her request. She attended again on 20 June 2001 and pleaded not guilty. Mr Harrison, Ms Lakeman's legal representative, anticipates that her matter will be set down for hearing in December 2001. He anticipates that there is a good chance that her case will be dismissed. Jurisdiction 4 On 29 June 2001 Ms Lakeman applied to the Tribunal under s 48 of the Road Transport (General) Act 1999 for a review of the decision to suspend his licence. That section, in combination with s 34 of the same Act, allows the Tribunal to review a decision of a police officer to suspend a person's licence when that person has been charged with an offence of middle range PCA. Legislation 5 Under s 48(3) of the Road Transport (General) Act, the Tribunal's powers to review a police officer's decision are restricted. Section 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act) allows the Tribunal to decide what the correct and preferable decision is having regard to the material then before it and to affirm, vary or set aside that decision. Section 48(3) qualifies this provision. It states that: 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. Evidence 6 Ms Lakeman gave oral evidence and several exhibits were tendered. She is 82 years old and lives on her own. Her husband has dementia and has been living in a nursing home for the last three years. Ms Lakeman visits him five days a week between 10.30 and 1.15 and then again from 3.30 to 6.15. In the last six months she has employed a carer to attend to his needs on two days a week to give her a break. Ms Lakeman said that she visits her husband not only because she loves him and wants to be with him, but because he needs her to give him meals and drinks. She says that there is not enough staff at the nursing home to carry out these tasks. The regularity of her visits and her devotion to her husband are attested to in letters from staff and former staff of the nursing home. 7 Since losing her licence Ms Lakeman has been catching the bus to visit her husband. This involves her walking for 8 minutes from her home to the bus stop and then a further 14 minutes from the bus stop to the nursing home. She does this four times a day because she needs to go home in the middle of the day to sleep. She has caught taxis on occasions when it has been raining or the bus has not come in time, but she says she can't afford to catch taxis all the time. She is on an age pension and receives about $200 a month from investments. Ms Lakeman said that since she has not been able to drive her car she has is more easily upset and does not sleep very well. Applicant's submissions 8 Mr Harrison, on behalf of the applicant, submitted that the circumstances of this case were "exceptional" for a combination of reasons. Firstly, Ms Lakeman will be pleading not guilty to the drink driving charge and has, in Mr Harrison's opinion, a strong chance of having the case against her dismissed. Secondly, the hearing will not be until the end of the year, leaving Ms Lakeman without a licence for some seven months. Thirdly, the hardship to Ms Lakeman in having to use public transport to attend to her husband's needs, is significant. Respondent's submissions 9 The respondent submitted that these circumstances were not exceptional and that Ms Lakeman was managing on public transport and could continue to do so. Alternatively she could use taxis to the extent that she can afford to do so. Reasons and decision 10 Pursuant to s 48(3) of the Road Transport (General) Act the Tribunal is not to set aside a suspension decision unless it is satisfied that there are exceptional circumstances justifying a lifting of the suspension. The Tribunal cannot take into account the circumstances of the offence with which the person making the application is charged. 11 In Arps -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 35, the meaning of "exceptional circumstances" was explored at [16]: 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. Unfortunately, STAYSAFE did not elaborate on what would, in their view, constitute exceptional circumstances. Neither was this issue specifically addressed in the Second Reading speech. 12 In Arps, the Tribunal also considered the definition of "special reason" as applied by the Supreme Court of South Australia in Baskerville v Martin [1967] SASR 150 at 156. The court in that case said that: Nothing which is a common or usual factor in the ordinary typical case can constitute a special reason. There must be something extraordinary, unusual or atypical . . . there must be something 'clearly distinguishable from the general run of cases that Parliament had in mind' . . 13 "Exceptional" is defined in the Macquarie Dictionary, 3rd edition, as "forming an exception or unusual instance; unusual; extraordinary." The meaning of "exceptional" is very close, if not identical, to the meaning of "special" as interpreted by the court in Baskerville v Martin. But it is not enough, in my view, for the circumstances to be unusual or even extraordinary. There must be some significant hardship to the applicant, or a person associated with the applicant, which would justify the Tribunal lifting a suspension and allowing the person to drive pending resolution of the charges against them. 14 The "exceptional circumstance" can be a combination of circumstances, none of which, individually, may be exceptional. In Johnston v v. Clive (1992) 1 Tas R 183 [17] the Supreme Court of Tasmania adopted the court's reasoning in Baskerville v Martin. The issue in that case was whether "special circumstances" existed which would justify the court imposing a period of disqualification from driving which is less than the statutory minimum. The Court made the following comment: It appears to have been accepted by Bray CJ in Baskerville v Martin (supra), and it should be accepted for the purposes of s17(5), that there may be features which in combination constitute special circumstances. A good driving record, a likely loss of livelihood and other circumstances in combination with each other may or may not amount to "special circumstances" in each individual case. 15 In Minnis -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 4 I rejected a submission that the potential for the ultimate period of disqualification to be shorter than the period of suspension constituted an exceptional circumstance. I noted that while that situation may be regarded as unfair, it cannot be regarded as an exceptional circumstance justifying setting aside a decision to suspend Mr Minnis' licence. Mr Harrison sought to distinguish this decision on the basis that there was only a "mere possibility of an unfair outcome" in that case, whereas in this case there is a strong likelihood that Ms Lakeman will successfully defend the charge against her. 16 My response to this submission is that it is not the role of this Tribunal to make findings about the likelihood that a matter will be successfully defended. That is a matter for the Local Court, and it is clear from the legislation that the "circumstances of the offence" included the merits of any possible defence, cannot be taken into account. However, the Tribunal can take into account the fact that the applicant is pleading not guilty and that there will be a delay before a hearing takes place. Because there is nothing unusual about there being a delay before a matter is set down for hearing, this fact does not constitute an exceptional circumstance on its own. However, it must be considered in combination with all the other circumstances of the case. 17 Those circumstances are the fact that Ms Lakeman finds that she is more tired and easily upset since having to use public transport. It takes her much longer to get to and from the nursing home than it would if she could drive. She wants to keep visiting her husband to care for him and make sure he is eating and drinking as much as he needs. 18 While this situation is difficult for Ms Lakeman, the consequences for her are that it takes her longer to travel to and from the nursing home and she is more tired and emotional as a result. Although there is no doubt that this situation is causing her some hardship I am not satisfied that those circumstances, combined with the delay in the hearing and the possibility that the charges may be dismissed, justify a lifting of the suspension of her licence. 19 In coming to this view I am mindful of the importance of the Tribunal being consistent in its approach to these cases. While every case is different and must be decided on its merits, it is interesting to note that the degree of hardship apparent in the case of O'Kelly v Commissioner of Police failed to convince the Tribunal to lift the suspension. In O'Kelly v Commissioner of Police, New South Wales Police Service (No. 2) [2000] NSWADT 74, Member Skinner observed that: Mr O'Kelly lives in an area poorly serviced by public transport, has limited means for availing himself of taxis, and suffers from severe backache and other medical conditions which substantially impair his mobility and ability to walk any distance. However the remoteness from public transport and the effect upon the mobility of sick or disabled persons of withdrawing their privilege of a driving licence were things that the Staysafe Committee specifically considered, yet it nonetheless recommended to Parliament the enactment of these suspension powers. In the light of this reasoning, the Commissioner's decision is affirmed.