CITATION: Baxter v Commissioner of Police, New South Wales Police Service [2003] NSWADT 256 DIVISION: General Division APPLICANT PARTIES: William Montgomery Baxter RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 033326 HEARING DATES: 25/11/03 SUBMISSIONS CLOSED: 11/25/2003 DATE OF DECISION: 12/02/2003 BEFORE: Chesterman M - ADCJ (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 : Crimes (Sentencing Procedure) Act 1999 Road Transport (Safety and Traffic Management) Act 1999 Arps -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 35 Farrar v Commissioner of Police, New South Wales Police Commissioner [2000] NSWADT 79 CASES CITED: O'Kelly v Commissioner of Police, New South Wales Police Commissioner (No. 2) [2000] NSWADT 74 Tonnet v Commissioner of Police, New South Wales Police Commissioner [2000] NSWADT 42 Valarezo v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 244 Valarezo v Commissioner of Police, New South Wales Police Service, unreported, Administrative Decisions Tribunal, Appeal Panel, 18 November 2003 APPLICANT REPRESENTATION: T McKenzie, solicitor RESPONDENT M Buchanan, solicitor ORDERS: The decision of the Commissioner is affirmed Background and relevant law 1 This is an application under section 48 of the Road Transport (General) Act 1999 ('the Transport Act'). The applicant, Mr William Baxter, has asked the Tribunal to review a decision of a police officer to suspend his driver's licence. He has indicated in his application that he would be prepared to receive a restricted licence, permitting him to drive only between 9 a.m. and 5 p.m. 2 Section 34(1) of the Transport Act states 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 Baxter was given a suspension notice on 14 November 2003 after he was breath tested and found to have a blood alcohol concentration of 0.110. 4 The Tribunal has jurisdiction to determine this application under s 48 of the Transport Act. 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. 5 Under s 63 of the Administrative Decisions Tribunal Act 1997, the Tribunal can take into account any relevant factual material when making a decision. Section 63(1) of this 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, however, whether a decision by a police officer to suspend a person's driver's licence is the correct and preferable decision, the range of material that the Tribunal may take into account is restricted. Section 48(3) of the Transport 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', none of which is related to the offence with which the driver has been charged, before varying or setting aside a decision to suspend the driver's licence. 8 The meaning of 'exceptional circumstances' in this statutory context has been considered a number of times in this Tribunal. In Arps -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 35, Ms N Hennessy, Deputy President, set out some principles which have been applied in subsequent decisions. 9 She referred, at [14 – 15], 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. She 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. 10 At [16], Deputy President Hennessy 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. 11 At [18 – 19], she stated: 18…. 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. 12 As outlined in the judgment at [9 – 10], the relevant facts in Arps were that the driver was a self employed landscape gardener who needed his vehicle to transport plants and equipment, to take his wife (who was recovering from heart surgery) to appointments with doctors and to transport his three children to and from various activities. He had been compelled to employ a driver at a cost of $300 per week, which he could no longer afford. 13 In an unreported decision, delivered on 18 November 2003, dismissing an appeal from the decision of the Tribunal at first instance in Valarezo v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 244, the Appeal Panel of this Tribunal stated, citing Arps, that loss of employment is not generally sufficient to constitute an 'exceptional circumstance', and that inconvenience and even hardship is likewise not sufficient, unless 'out of the ordinary'. 14 Two considerations not mentioned in Arps, or indeed in the submissions put to me, were the lengths of time (a) between the suspension of a licence and the hearing of the charge against the driver in the Local Court, and (b) between the Tribunal's review of a suspension of the licence and the hearing of the charge. In Farrar v Commissioner of Police, New South Wales Police Commissioner [2000] NSWADT 79, the Tribunal held that if the former period was excessively long – in that case, it was 10 months – and was not attributable to conduct of the driver, this might constitute a reason for holding that there were 'exceptional circumstances'. In Tonnet v Commissioner of Police, New South Wales Police Commissioner [2000] NSWADT 42, the Tribunal held that where the latter period was comparatively short – in that case, it was 15 days – this would count against the driver's claim that the circumstances were exceptional. Evidence put before the Tribunal 15 Mr Baxter has held a standard New South Wales driver's licence for 50 years. He has not been convicted of any road traffic offence. He is 71 years of age. 16 He lives alone at Yamba, a small town inland from the North Coast. As far as he is aware, the nearest public transport is at Grafton, some 60 kilometres away. Since his licence was suspended, he has relied on neighbours to do his shopping. 17 Mr Baxter is recovering from a laminectomy. At present, he can only walk about 100 metres. On 2 December 2003, he has an appointment for a lengthy medical review at Miami, on the Gold Coast. He estimates the distance from his home to Miami to be about 300 kilometres. A bus service does exist between Grafton and Miami, but getting to Grafton in order to catch a bus to Miami would be expensive and would involve Mr Baxter in a very long and arduous journey. A further review is scheduled at Lismore, on 10 December. 18 None of Mr Baxter's friends or neighbours at Yamba is able to take him on the long return journeys required for these appointments. His children live in Sydney and, being fully occupied with their families and their employment, could not reasonably be asked to assist. 19 The offence with which Mr Baxter has been charged will be tried in the Local Court on 9 December 2003. Because of the length of his period of licensed driving without any charge, he expects that the offence will be found proved, but the charge dismissed, under s 10 of the Crimes (Sentencing Procedure) Act 1999. The Tribunal's conclusion 20 In determining whether there are exceptional circumstances, earlier decisions of the Tribunal can provide guidance only, as each case must be determined on its own facts. The principal guidance given is that the policy of suspending licences pending a hearing of the substantive offence is 'deliberately draconian and intended to be a powerful public safety measure and deterrent against drink driving' (O'Kelly v Commissioner of Police, New South Wales Police Commissioner (No. 2) [2000] NSWADT 74 at [22]). The circumstances justifying the lifting of a suspension must be genuinely 'out of the ordinary'. 21 A notable feature of the present case is that the length of time between this hearing and the hearing of the charge in the Local Court – fourteen days – is very short. The equivalent period in Tonnet was about the same – fifteen days. This factor weighs against granting his application. 22 I cannot characterise the other relevant aspects of this case as 'exceptional'. If, as Mr Baxter anticipates, the charge against him is dismissed by the Local Court, under s 10 of the Crimes (Sentencing Procedure) Act 1999, his driving licence will be returned to him in time for his journey to Lismore the next day. The only unusual difficulty upon which he relies in this application, therefore, is that he must make one return journey between Yamba and Miami without being permitted to drive his own car. The evidence indicates that there is at least one practicable, although expensive, way of doing this: that is, by taxi between Yamba and Grafton and by bus between Grafton and Miami. The other inconveniences that he is suffering – for example, not being able to do his own shopping – are not especially severe. 23 In making this assessment of the problems that confront him in undertaking his journey to and from Miami, I have endeavoured to give due weight to the importance of his medical review, his lack of mobility and his age. They are of course relevant factors. To a significant degree, however, the second and third of them would still affect him even if his licence were returned to him now. 24 Taking full account of the fact that the legislation has set a very high hurdle in front of applicants in cases of this type, my decision is that Mr Baxter has failed to show that there are 'exceptional circumstances' to justify setting aside the suspension of his licence. 25 The decision of the Commissioner is accordingly affirmed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.