Lolagis v Chief Executive Officer Queensland Transport
[2002] QDC 162
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- Lolagis v Chief Executive Officer Queensland Transport[2002] QDC 162
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Lolagis v Chief Executive Officer Queensland Transport[2002] QDC 162
Lolagis v Chief Executive Officer Queensland Transport[2002] QDC 162
DISTRICT COURT OF QUEENSLAND
CITATION: | Peter Arthur Lolagis v Chief Executive Officer Queensland Transport [2002] QDC 162 |
PARTIES: | peter arthur lolagis Appellant v chief executive officer queensland transport Respondent |
FILE NO/S: | 1120/ 2001 |
DIVISION: | District Court |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court Southport |
DELIVERED ON: | 19 Feb 2002 |
DELIVERED AT: | Southport |
HEARING DATE: | 15 Jan 2002 |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – DISCRETION – ERROR OF LAW Application for return of driver’s licence refused by Magistrate – failure to give sufficient weight to matters touching discretion under Transport Operations (Road Use Management) Act 1995, s 131(2). Transport Operations (Road Use Management) Act 1995, s 131(2). Burton v Commissioner of Police (Qld) (1990) 10 MVR 329, discussed. |
COUNSEL: | Mr R Frigo for the Appellant Miss C McAnally for the Respondent |
SOLICITORS: | Jacobson Mahony for the Appellant Queensland Police Service for the Respondent |
DISTRICT COURT OF QUEENSLAND
SOUTHPORT
No: 1120 of 2001
peter arthur lolagis
Appellant
v
chief executive officer queensland transport
Respondent
REASONS FOR JUDGMENT – ALAN WILSON SC DCJ
(Delivered the 19th of February 2002)
- [1]This is an appeal under s 222 of the Justices Act 1886 against an order made by Mr Mellors, Stipendiary Magistrate in the Magistrate's Court at Southport on 12 October 2001 refusing an application by the appellant under s 131(2) of the Transport Operations (Road Use Management) Act 1995.
- [2]On 29 April 1999 the appellant had been disqualified, absolutely, from holding or obtaining a driver’s licence in Queensland, and his application to the learned Stipendiary Magistrate was to have that disqualification removed.
- [3]The appeal record consists of the appellant’s affidavit in support of his application and a typed transcript of the proceedings before the learned Magistrate, including submissions made on his behalf by his solicitor, the submissions of the prosecuting Police Sergeant, and the Magistrate’s reasons; and, Outlines of Argument filed in this appeal for the appellant, and the respondent.
- [4]The appellant is a male born 31 October 1963, now aged 38. His relevant traffic history is short, but dramatic. On 21 October 1997 he exceeded the speed limit by at least 30 kph. On 19 December 1997 he was detected driving with a blood alcohol level of more than .13, but less than .15 and given a restricted licence for 18 months. Three months later he was convicted of driving well over the speed limit, again; and, within six months he was detected driving with a blood alcohol level of .227, and whilst under restriction, and disqualified absolutely for 20 months. Ten months later he was detected driving while still subject to that disqualification and, on 29 April 1999, was disqualified absolutely.
- [5]His application to the Magistrate was brought, then, after he had been subject to the last order for about 2.5 years, during which he had not been detected to be driving and, it may be presumed, had obeyed that order.
- [6]A consequence of the learned Magistrate’s refusal of the application, known to him, was that a further application could not be made until another year had passed - i.e., the effect of the refusal was to continue the disqualification until 12 October 2002. The learned Magistrate’s reasons, at p 7 of the transcript, are terse and may be summarised by saying that he held the application involved a discretionary power; he accepted there had been no misconduct since the original order was made; he did not think effects on the applicant’s social life were a “real consideration”; and:
“…He appears to me to me to have adopted a rather cavalier attitude to his responsibilities under the - under the respective legislation and in terms of traffic history and having considered al the matters raised in my opinion the application should be refused…”.
- [7]In determining whether the learned Magistrate’s exercise of his discretion miscarried it is proper to consider whether an error has been made in that exercise because, say, a wrong principle has been acted upon; or extraneous or irrelevant matters have affected or guided the decision; or, there has been a mistake as to the facts; or, there has been a failure to take account of a material consideration: House v The King (1946) 55 CLR 499 at 504/5. In essence, an appellant must show the primary Court was wrong in exercising the discretion in the way it did.
- [8]Section 131(2C) directs the Court to specific matters which it may, “as is thought proper” take into account: the character of the person disqualified; that person’s conduct subsequent to the order; the nature of the offence; and any other circumstances of the case. It is not clear, with respect, whether or not the learned Magistrate took all or any of these matters into account and, when it is noted that the effect of his refusal will result in the appellant’s disqualification being, at least, almost 3.5 years, a concern arises that he may have fallen into error, and his discretion has miscarried. Hence, the decision warrants scrutiny.
- [9]The transcript reveals the learned Magistrate was unsure whether s 131(2C) gave him the power to order removal of the disqualification at some future date, when this is a matter about which there can be no doubt, as the last phrase in the subsection shows: “…Remove the disqualification as from such date as may be specified in the order…”. For the appellant, it was submitted this mistaken belief tainted all of the Magistrate’s deliberations and he may have been incorrectly influenced by a false premise. Certainly, at an early part of the hearing the Magistrate asked a question indicating doubt about his power to order removal at some date in the future but, at p 7 of the transcript in a passage commencing at about l 40 he made it clear that if he did have the power, he would nevertheless refuse the application. I do not think it can be said the discretion necessarily miscarried because of any incorrect interpretation of the law.
- [10]I am persuaded, however, that, in exercising the discretion, no sufficient weight was given to the matters mentioned in s 131(2C). Save for his traffic record, the appellant seems to have an unblemished character. His affidavit shows he was in business at the time of the convictions in 1999 but that business is now “crippled”; but, relevantly, he has apparently continued to conduct himself as a law-abiding citizen as to the relevance of this (see, generally, the remarks of Sachs LJ in R v Shirley (1969) 3 All E R 678, at 679). He was at the time of conviction actively involved with SES, and the volunteer coastguards. He has what appears from his affidavit to be realistic plans to go into business in the building industry, in which he apparently has skills. He has also continued to renovate a home he shares with his fiancee, a bank employee, although their wedding plans have been delayed and some strains have been placed upon the relationship which otherwise, he says, would have involved marriage by now and, perhaps, children.
- [11]The offences, while serious, occurred within a short period of time (18 months); were, apparently, preceded by an absence of any serious traffic history or antisocial conduct; and, seem to have ceased absolutely with the last conviction almost three years ago. There is nothing to suggest the appellant’s conduct subsequent to the order (to which the subsection directs the Court) has not been law-abiding; or, that there has been any re-offending or any indicia suggesting that might occur.
- [12]The final category to which the subsection refers the Court (“any other circumstances of the case”) must include, as the judgment of Sachs LJ mentioned earlier shows, and Williams J reiterated in Burton v Commissioner of Police (Qld) (1990) 10 MVR 329, the effects of the penalty already imposed touching, for example, employment, recreation, and personal life. The hardships experienced by the plaintiff in this area are, as Counsel for the respondent properly submitted, part of his sentence but the period for which they have been endured, measured against the original offence, is plainly a material part of the exercise of the discretion. Further, the appellant swears he now hopes to go into partnership with his fiancee’s parents in a building business on the New South Wales north coast which would, necessarily, involve a deal of driving. As Williams J said in Burton:
“…It is in the interest of the community that this young man…be able to continue a law-abiding, self-sufficient lifestyle and not become a further burden on the public purse. He can best do that if he is able to retain his employment and provide for his wife and family. In my view he has been punished enough and he ought to be given the opportunity of driving a motor vehicle again so that he can further his law-abiding, self-sufficient lifestyle.”
While the sentence, and penalty in Burton’s case were far more serious, the comments are apposite.
- [13]The learned Magistrate’s apparent failure to consider each of the matters mentioned in the subsection and, rather, to focus only upon two of them (the effect upon the appellant’s “lifestyle”, and the “cavalier attitude” manifested by his conduct at the time the original offences were committed) constitutes, with respect, an apparent failure to recognise the importance, and relevance of the clear legislative guideposts contained within the subsection, and the need to consider each of them carefully. It is also relevant, I think, that this appellant had not rushed to apply, but, rather, waited some six months after the expiration of the minimum period set out in s 131(2).
- [14]The original offences were disturbing and did show a propensity to treat important safety legislation with disdain, but that is not the only factor and, when the other matters I have traversed are taken into account, there are compelling reasons for concluding the discretion miscarried.
- [15]At the outset and, again, toward the conclusion of the Magistrate’s Court proceedings the police representative appears to have suggested, albeit in indirect terms, that the learned Magistrate would only consider removing the disqualification at some time around or after the commencement of the year 2002, by which time the appellant would have served a disqualification of about 2.75 years. The submission was an appropriate one. It meant the ultimate suspension was lengthy, and commensurate with the seriousness of the original offences (which, it must be remembered, did not involve any harm to any other person) but the setting of a finite date would give the appellant both certainty, and a time to which he might work in reorganising his affairs; and, of course, it would restore hope to him.
- [16]Had the discretion been appropriately exercised in that way, the disqualification would have been removed on, say, 1 January 2002 and that, it seems to me, is the order which should be substituted. I order:
- (a)The appeal is allowed;
- (b)The order of the learned Stipendiary Magistrate at the Magistrate's Court at Southport on 12 October 2001 be set aside;
- (c)The appellant’s application pursuant to s 131(2) of the Transport Operations (Road Use Management) Act 1995 for the removal of an absolute disqualification order imposed in the Southport Magistrate's Court on 29 April 1999 be allowed as and from 1 January 2002;
- (d)The respondent pay the appellant’s costs of and incidental to the appeal, fixed at $1,800.00.