Burdon v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 61

CITATION:	Burdon -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 61
DIVISION:	General Division
PARTIES:	APPLICANT Ross Andrew Burdon RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013036
HEARING DATES:	23/02/2001
SUBMISSIONS CLOSED:	02/23/2001
DATE OF DECISION:	04/19/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Driver's licence suspension
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Road Transport (General) Act 1999 Road Transport (Safety and Traffic Management) Act 1999
CASES CITED:	Arps -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 35 Baskerville v Martin [1967] SASR 150
REPRESENTATION:	APPLICANT In person RESPONDENT J Tunks, solicitor
ORDERS:	1. The decision to suspend the applicant's driver's licence is affirmed.; Order made on 23 February 2001

Introduction

1 On 26 November 2000, a police officer gave Mr Burdon a Notice of Suspension and Confiscation of Drivers Licence. The notice was issued after Mr Burdon undertook a breath test which showed a reading of 0.080 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 The suspension continues until the charge is heard and determined by a court or withdrawn.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 Mr Burdon went to court on 26 November 2000 and pleaded not guilty to the offence. A hearing was set down for 27 April 2001.

Jurisdiction

4 On 14 February 2000 Mr Burdon 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 Mr Burdon gave evidence by phone that his parents live in Sydney and he lives in Canberra. His mother has palsy and her neurologist, Dr Grant Walker, has given her between 3 months and 3 years to live. Mr Burdon says his father is not coping well on his own and desperately needs his assistance.

7 Since mid January 2001 when he returned from overseas, Mr Burdon has only been able to get to Sydney once. Catching the bus or the train to Sydney is not adequate because his parents need him to drive them to doctor’s appointments and take them out while he is staying with them. He is keen to provide his parents with regular assistance but feels he cannot do that without his driver’s licence.

Respondent's submissions

8 Mr Tunks for the Commissioner of Police submitted that there was nothing "exceptional" about the facts as outlined by Mr Burdon. He said that while the loss of his licence was depriving him of quality time with his parents, that loss was only an inconvenience. He pointed out that for a mid-range offence, Mr Burdon would be looking at being disqualified from driving for at least 6 months.

Reasons and decision

9 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.

10 "Exceptional" is defined in the Macquarie Dictionary, 3rd edition, as "forming an exception or unusual instance; unusual; extraordinary." In Arps -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 35, the meaning of “exceptional circumstances” was explored at [16] and [17]:
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.
Mr Tunks submitted that the Tribunal should apply the meaning of "special reason" set out in Baskerville v Martin [1967] SASR 150 at 156:

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' . .
11 I would add to that that exceptional circumstances will often involve some significant hardship to the person involved or a third party. Mr Burdon’s situation is unusual. His mother is seriously ill and his father needs as much support as he can get from Mr Burdon. However Mr Burdon is able to get to Sydney and back to Canberra by public transport over a weekend. While he will not have the convenience of a car while in Sydney, he could use taxis. These circumstances give rise to a degree of inconvenience and expense for Mr Burdon. But they are not exceptional. They do not result in significant hardship to either him or his parents.

12 For these reasons, the decision of the administrator to suspend Mr Burdon’s driver’s licence is affirmed.