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Hohn v Department of Transport and Main Roads QCAT 192
Hohn v Department of Transport and Main Roads  QCAT 192
Tanya Louise Hohn
Department of Transport and Main Roads
General administrative review matters
On the Papers
20 June 2016
ADMINISTRATIVE REVIEW – EXTENSION OF TIME LIMIT – where an application to review a decision was brought out of time – where the decision maker relied on provisions of the Transport Operations (Road Use Management) Act 1995 (Qld) – where the applicant was disqualified from holding a driver licence in New South Wales – where interlock orders were made in New South Wales – where a mandatory period of disqualification applies in New South Wales if interlock order not complied with – whether the Queensland decision maker has any discretion – where the factors to be considered on an application for extension of time limit were considered – where the applicant has no prospects of success
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3), s 61
Road Transport Act 2013 (NSW), s 28(1), s 211, s 225(3)(b)
Road Transport (Driver Licensing) Act 1998 (NSW), s 21C
Transport Operations (Road Use Management) Act 1995 (Qld), s 127(6)
Cardillo v Queensland Building Services Authority  QCAT 574
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
represented by Doyle Wilson, Solicitors
represented by Self
REASONS FOR DECISION
- Ms Hohn lives in Goondiwindi in Queensland. She held a Queensland Drivers Licence. That licence was cancelled by a decision of the Queensland Department of Transport and Main Roads (‘the Department’) made on 18 December 2015.
- Ms Hohn applied to the Tribunal on 15 March 2016 for a Review of the decision of the department to cancel her Queensland driver licence.
- Section 33(3) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) provides that an application for review of a reviewable decision must be made, by filing it in the registry, within 28 days after the relevant day. That time period may be extended by the Tribunal pursuant to Section 61 of the QCAT Act.
- As Ms Hohn filed her application more than 28 days after the relevant day, she needs an order extending the time limit to file her application. She filed an Application to Extend the time limit on 15 March 2016.
- The Tribunal directed on 29 March 2016 that the application to extend time would be determined by a member of the Tribunal by written submissions from the parties, without an oral hearing. Written submissions on behalf of Ms Hohn and the Department were subsequently received.
- This is the decision on the Application to Extend Time Limit.
History of the matter
- Ms Hohn was convicted of a drink driving offence in New South Wales on 7 October 2015, and a six-month disqualification period was imposed together with a 24-month mandatory interlock order.
- Due to a chain of events, and the interplay of various legislative provisions in Queensland and New South Wales, a situation has resulted that Ms Hohn’s Queensland Drivers Licence is cancelled until 7 October 2020.
- The Department sent Ms Hohn a Show Cause Notice proposing to cancel her licence on 12 November 2015 and inviting her, if she believed the proposed cancellation should not occur, to demonstrate why it should not occur.
- Ms Hohn says that she did not receive the Show Cause Notice, and therefore did not make any response to it.
- The Department advises that as no representations in response to the Show Cause Notice were received, it then proceeded to review the information, and decided on 18 December 2015 that a ground existed to cancel Ms Hohn’s Queensland driver licence.
The disqualification event
- Ms Hohn was charged with High Range Drink Driving in Boggabilla, New South Wales on 16 September 2015 with a reading of 0.164. She appeared in the Bogabilla Local Court on 7 October 2015 and entered a plea of guilty. She was represented by the Duty Solicitor. No application for exemption from the interlock program was requested.
- Ms Hohn’s Solicitors submit that the Court imposed the following penalty:
- Fine in the sum of $400.00.
- Disqualified from holding a driver’s licence for 6 months, order made pursuant to section 225(3)(b) Road Transport Act 2013 (NSW).
- Subject to an Alcohol Interlock Program for a period of 24 months, under section 21C Road Transport (Driver Licensing) Act 1998 (NSW).
- Her Solicitors submit that Ms Hohn’s six month disqualification period ended on 7 April 2016 and she was due to start the 24 month interlock programme on that date, however she was unable to take part in the program as she does not hold a New South Wales drivers licence.
- They further submit that as Ms Hohn is unable to comply with the interlock order she has automatically been disqualified from driving for 5 years in New South Wales.
- The ‘Court Conviction’ obtained by the Department, and included in their submission provides as follows:
Result: Court Conviction
Result description: $400 fine / DISQ Until 07-10-2020 (Court Order) From 07-10-2015
- A more complete description of the sentence appears in the ‘Driving Record’ obtained from New South Wales by the department, and also attached to its submissions:
07-10-2015 Boggabilla Court
16-09-2015 Drive with High Range Concentration of alcohol
DISQ until 07-10-202 (Court Order) From 07-10-2015
Min Disq until 07-04-2016 From 07-10-2015
Mandatory Interlock order applies for 24M.
Order made under Section 225(3) Road Transport Act 2013
Not implemented – made without jurisdiction
Extension of Time
- Ms Hohns solicitors filed submissions on 12 April 2016. They advise that she did not seek legal advice until she was out of time to apply for a Review of the decision of the Department of 18 December 2015.
- They submit that the Department would suffer no prejudice by an extension of time, and that it is in the interest of justice for an extension to be granted as follows:
- 9.Should this Application to extend time not be granted our client stands to have her Queensland driver’s Licence disqualified for five years, until 7th October 2020, for her first drink driving offence, which she pleaded guilty to at the first available opportunity.
- 10.We submit that there is no prejudice because of the Applicant’s delay in seeking to have the decision reviewed.
- 11.The Applicant has been complying with her disqualification since she was charged and automatically suspended on 16th September 2015.
- 12.The Applicant’s loss of licence has already resulted in significant personal and financial hardship as she relies on her licence for work and to transport her two dependent children.
- 13.In the interest of justice, we submit that the Application to extend time should be granted to allow the matter of our client’s draconian disqualification to be heard by QCAT.
- The Department submits that Ms Hohn is ineligible to apply for or obtain a Queensland driver licence for the period of disqualification imposed by the presiding Magistrate, pursuant to Section 127(6) of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM’). It submits that the period of disqualification is not a reviewable decision in Queensland by the Tribunal.
- Section 127(6) TORUM provides as follows:
- (6)A person shall not apply for or obtain a Queensland driver licence or licence of any other kind, class, or description at a time when the person is disqualified—
- (a)by this Act; or
- (b)by an order made under this or any other Act (including any Act of a State or Territory or any other country);
from holding or obtaining a driver licence or, as the case may be, licence of that other kind, class, or description.
- The Department suggests that Ms Hohn’s remedy would have lain in an appeal against the order of the NSW Court, as the Department had no basis to reconsider the decision of the Court, and was bound to follow the Queensland statute consequent upon that order:
It is acknowledged that the decision to cancel Ms Hohn’s Queensland driver licence is a reviewable decision, with jurisdiction conferred to the Tribunal by section 131(1AA) of the TORUM Act. However, it is submitted that the period during which Ms Hohn is ineligible to apply for or obtain a Queensland driver licence is not a reviewable decision. The length of the ineligibility period is not a decision made under an Act, but rather applies as a matter of law based on the period of disqualification imposed by the presiding Magistrate, judge or justice. As there is no decision, review jurisdiction has not been conferred by an Act to the Tribunal regarding the period during which Ms Hohn is ineligible to apply for or obtain a Queensland driver licence.
In relation to the cancellation of Ms Hohn’s Queensland driver licence it is submitted that Ms Jacobi’s decision was a proper exercise of power, appropriately considering Ms Hohn’s circumstances. The length of the disqualification imposed by the court order was considered by Ms Jacobi, however this was balanced against Ms Hohn’s right to appeal the order, and principles such as the separation of powers. A decision not to exercise a power to cancel a licence on the basis that the court order was undesirable would in effect substitute the judicial decision with an administrative one.
The DL Regulation authorises the cancellation of a Queensland driver licence if the chief executive considers that a prescribed ground exists; Ms Jacobi reasonably considered that Ms Hohn was disqualified from holding or obtaining a driver licence in another State, a prescribed ground, and properly exercised the power to cancel the driver licence.
- There is some confusion as to what provisions the sentence of the Boggabilla Court was made under.
- Ms Hohn’s solicitors submit that an Order was made in relation to Ms Hohn under section 21C of the Road Transport (Driver Licensing) Act 1998 (NSW) for an Alcohol Interlock Program for a period of 24 months.
- However, a search of the New South Wales legislation database on AustLii reveals that the Road Transport (Driver Licensing) Act 1998 (NSW) was repealed on or about 2 July 2013. An order under that Act therefore could not have been made on 7 October 2015.
- The Driving Record however, refers to the Road Transport Act 2013 (NSW). That Act provides for a Mandatory interlock order as follows:
211 Mandatory interlock orders
- (1)A mandatory interlock order is an order that:
- (a)disqualifies a person convicted of a mandatory interlock offence from holding any driver licence for a period, being:
- (i)the minimum disqualification period for that kind of mandatory interlock offence, or
- (ii)a longer period (not exceeding the maximum disqualification period for that kind of offence) specified by the court, and
- (b)disqualifies the person from holding a driver licence (other than a learner licence or interlock driver licence) during the period of 5 years commencing on the day of the conviction unless the person has first held an interlock driver licence:
- (i)for a period (or periods in total) equivalent to the minimum interlock period, or
- (ii)for a longer period specified by the court.
- (2)In this section:
maximum disqualification period for a mandatory interlock offence of a kind described in Column 1 of the Table to this section means the maximum disqualification period set out opposite the offence in Column 3 of that Table.
minimum disqualification period for a mandatory interlock offence of a kind described in Column 1 of the Table to this section means the minimum disqualification period set out opposite the offence in Column 2 of that Table.
minimum interlock period for a mandatory interlock offence of a kind described in Column 1 of the Table to this section means the minimum interlock period set out opposite the offence in Column 4 of that Table.
- (3)Any disqualification under this section is in addition to any penalty imposed for the offence.
- (4)A mandatory interlock order made in respect of a person ceases to have effect if, before the person completes the applicable interlock period, another mandatory interlock order is made in respect of the person.
- The Conviction, as disclosed in the Driving record, appears to provide that Ms Hohn could not obtain any New South Wales driver licence until 7 April 2016 and then could obtain and hold an interlock driver licence for a period of 24 months after that.
- Section 211(b) of the Road Transport Act 2013 (NSW) provides that unless the person has first held an interlock driver licence then the mandatory interlock order disqualifies the person from holding a driver licence (other than a learner licence or interlock driver licence) during the period of 5 years commencing on the day of the conviction. This is the provision that appears to give rise to the disqualification period until 7 October 2020
- If she does not obtain a New South Wales Interlock Driver licence, then Ms Hohn is disqualified from holding a New South Wales driver licence from 7 October 2015 until 7 October 2020.
- Section 28(1) of the Road Transport Act 2013 (NSW) provides:
28 Authority not to issue or renew licence in certain circumstances
- (1)The Authority must not issue a driver licence to a person unless it is satisfied that the person is a resident of this jurisdiction and that:…
- Therefore, to obtain a New South Wales drivers licence of any type it is necessary to be a New South Wales Resident.
- Consequently, Ms Hohn cannot obtain a New South Wales Driver Interlock Licence because she is not a resident of New South Wales.
- The result is that Ms Hohn is disqualified from holding or obtaining a driver licence in New South Wales until 7 October 2020.
- Ms Hohn must attract a great deal of sympathy. She has been caught in a veritable ‘Catch 22’ situation arising because of the interplay of Acts from two jurisdictions. If she was a New South Wales resident she could have applied for an Interlock Driver Licence and entered the interlock programme – but because she resides in Queensland, she cannot obtain a New South Wales Interlock Driver Licence. Consequently, the New South Wales default provision of 5 years disqualification comes into effect, and must be applied in Queensland.
The accepted factors for consideration on an application for an extension of time have been set out in a number of decisions in the Tribunal:
1. Has a satisfactory explanation been given to account for the delay?
2. The strength of the case the applicant will bring if allowed to proceed.
3. Will other parties be prejudiced?
4. Has the delay been short or long?
5. Is it in the interests of justice to grant the extension?
- The factor as to the strength of the case the applicant will bring if allowed to proceed, means that regard has to be had as to the likely prospects of the Applicant. If the Applicant has no reasonable prospect of success, then it is futile to extend the proceedings, as that will simply prolong the inevitable dismissal of the Application.
- The Department makes an irrefutable submission that their decision was properly based on, and comes about as an inevitable result of, the New South Wales disqualification.
- Even if Ms Hohn had applied to this Tribunal within time, there is no decision that the Department, or this Tribunal standing in its shoes, could make, that would change the outcome for her, as to her ability to hold a Queensland driver licence under TORUM.
- The real problem for Ms Hohn is the New South Wales legislation, which has within it the requirement that only the holder of a New South Wales Interlock Driver Licence may enter the interlock programme.
- The solution to the real problem that faces Ms Hohn – her disqualification until 2020 in New South Wales, must be found within New South Wales, if one is available at all. Whether that arises by way of an appeal against the sentence (which would presumably require an application for extension of time to appeal in New South Wales); or in some challenge to the relevant interlock provision; or by some exercise of discretion which may be available under the New South Wales legislation to grant Ms Hohn a New South Wales driver licence; is beyond the jurisdiction of this Tribunal to determine.
- The Queensland department does have its hands tied. It is obligated to follow the provisions of the TORUM Act.
- Ms Hohn’s application in this Tribunal is therefore fated to fail, as there is no basis upon which to alter the decision of the Department. Ms Hohn would be unable to obtain a solution to her dilemma, either practically or legally, in this Application in this Tribunal.
- The Application being futile, there is no point in extending the time limits. Accordingly (whilst recognising this may seem frustrating to Ms Hohn), I am required to refuse the application for time to extend the time limit.
- I order that the Application to Extend time limit is refused.
- The Application to Extend time having been refused, the Application to Review cannot proceed, and I consequently order that the Application to Review a decision filed on 15 March 2016 be dismissed.
 Filed 19 April 2016.
 Submissions on behalf of Ms Hohn filed 12 April 2016.
 Submissions of the Department filed 19 April 2016.
 Subsequently affirmed in Molier v The Body Corporate for Q1 CTS 34498  QCATA 8; and applied in J & K Homes Pty Ltd v Queensland Building and Construction Commission  QCAT 72.
 QCAT 574.
- Published Case Name:
Hohn v Department of Transport and Main Roads
- Shortened Case Name:
Hohn v Department of Transport and Main Roads
 QCAT 192
20 Jun 2016