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CHIEF EXECUTIVE OFFICER, DEPARTMENT OF TRANSPORT -v- ABERDOUR [2024] WADC 80 (13 September 2024)

Last Updated: 13 September 2024

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH

CITATION : CHIEF EXECUTIVE OFFICER, DEPARTMENT OF TRANSPORT -v- ABERDOUR [2024] WADC 80

CORAM : CURWOOD DCJ

HEARD : 10 SEPTEMBER 2024

DELIVERED : Ex tempore

PUBLISHED : 13 SEPTEMBER 2024

FILE NO/S : APP 37 of 2024

BETWEEN : CHIEF EXECUTIVE OFFICER, DEPARTMENT OF TRANSPORT

Appellant

AND

CHRISTOPHER ROSS ABERDOUR

Respondent

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE C CRAWFORD

File Number : PER/EDL/6322/2024

Appeal from magistrate - Dismissal of application for an extraordinary driver's licence - Effect and proper construction of Magistrate's orders dismissing application - Meaning of 'refusal' and 'dismiss'

Legislation:

Road Traffic (Authorisation to Drive) Act 2008 (WA) s 27, s 30, s 31

Result:

Appeal dismissed

Representation:

Counsel:

Solicitors:

Case(s) referred to in decision(s):

Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58

Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483

Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108

CURWOOD DCJ:

[These reasons for decision were delivered extemporaneously on 10 September 2024 and have been edited from the transcript.]

1. The Road Traffic (Authorisation to Drive) Act 2008 (WA) (the Act) makes provision for people who are disqualified from holding or obtaining a driver's licence to apply to courts for orders removing disqualifications or granting extraordinary licences on certain conditions.
2. In the case of an extraordinary licence, by s 30 of the Act, a court may make an order granting an applicant an extraordinary licence for a period not exceeding 12 months after taking into account certain mandatory considerations.
3. Upon the hearing of an application, s 30 of the Act prescribes that a court may:

(a) make an order directing the Chief Executive Officer of the Department of Transport (CEO) to grant to an applicant an extraordinary licence for a period not exceeding 12 months from the date on which it is granted as the court thinks fit; or

(b) refuse the application.

4. In the present case the respondent, Mr Aberdour, made an application to the Perth Magistrates Court for an extraordinary driver's licence.
5. Mr Aberdour made the application on the basis that a refusal to grant him an extraordinary licence would deprive him of his principal means of obtaining an income and/or the only practicable means of travelling to and from his employment, such matters being prescribed by s 30(4)(b) and (c) of the Act as being matters the court must be satisfied of before making an order for an extraordinary driver's licence.
6. The magistrate hearing Mr Aberdour's application was not satisfied that he had established the criteria upon which he sought his extraordinary driver's licence. In this respect, a short hearing was conducted during which Mr Aberdour was represented by a lawyer. An affidavit was submitted with other exhibits. Mr Aberdour was cross-examined by counsel for the CEO. At the conclusion of the evidence and submissions the magistrate gave short ex tempore reasons.
7. In those reasons the magistrate:
   1. Said that the application was made pursuant to s 30(4)(b) or (c).
   2. Insofar as the application was advanced on the basis that the requirement in s 30(4)(b)[1] was satisfied it failed.
   3. With respect to the requirement in s 30(4)(c),[2] the evidence led was limited. Specifically, the applicant was an estimator for a certain type of product of his employer and expected to undertake site visits as required but there was no evidence about the impracticability of using public transport to get to or from work. The magistrate accepted that it would be inconvenient but that requirement of s 30(4)(c) of the Act had not been met on the evidence.
8. The magistrate concluded 'for those reasons, the application is dismissed'.

Appeal to this court

9. The CEO has appealed the magistrate's decision to dismiss the application on the sole ground that the magistrate made an error of law in that the magistrate could only finally deal with Mr Aberdour's application by making an order directing the CEO to grant an extraordinary driver's licence by refusing the application.
10. Mr Aberdour was served with the CEO's appeal notice. Mr Aberdour had filed a notice of intention saying that he does not intend to take part in the appeal and will accept any order made by the court in the appeal other than as to costs.
11. The effect of s 31 of the Act is that if an application is refused, no further application can be made within six months after the date of the refusal.
12. No evidence is available to this court on the hearing of the appeal that Mr Aberdour has sought to make any further application for an extraordinary licence under s 27 of the Act.

Statutory provisions

13. The scope of this appeal is limited. No challenge is made to the substance of the magistrate's decision that, on the evidence led by Mr Aberdour, the magistrate could not be satisfied that a refusal of the application would deprive the applicant of his principal means of obtaining income and/or the only practicable means of travelling to and from his employment.
14. As such it is not contended that there was any error in refusing or failing to grant an extraordinary driver's licence. Rather the error arises from the magistrate's order dismissing the application rather than refusing it.
15. It would seem on an ordinary reading of s 30 of the Act, a court hearing an application for an extraordinary driver's licence holds a jurisdiction to either make an order directing the CEO to grant the applicant an extraordinary driver's licence or to refuse the application.
16. In my opinion, the issue for determination on this appeal is not the interpretation of s 30 (or any other provision of the Act), but rather the legal effect of the actual order made by the magistrate.
17. It seems that the only way of reading the magistrate's order was, notwithstanding it was stated to be a dismissal of the application, it was, in substance, a refusal of the application.
18. When one considers the transcript of the hearing in its context, the magistrate heard evidence and submissions in support of the application for the grant of an extraordinary driver's licence.
19. The magistrate took a short adjournment to consider the matter and then returned to court and gave ex tempore reasons dismissing the application. Her Honour considered the application on its merits and considered the requirements of s 27 which had to be satisfied by Mr Aberdour in order to succeed in his application. The magistrate concluded that the requirements of s 27 were not met or satisfied.

CEO's submissions

20. The CEO in written submissions sets out from the transcript, an exchange which occurred between the magistrate and counsel at the conclusion of the hearing. Specifically, the following exchange occurred.

HER HONOUR: ... For those reasons, the application is dismissed. Okay.
HORNIGOLD, MR: Your Honour, just for clarity, is it refused or dismissed? The reason I ask is the refusal would be the six-month - you can't come back within six months.
HER HONOUR: Okay.
HORNIGOLD, MR: And the dismissal would be you could come back at any time.
HER HONOUR: It's the latter.
HORNIGOLD, MR: As the court pleases, your Honour.
...
WITHAM, MS: Sorry. Was that refusal or dismissed?
HER HONOUR: Dismissed.

21. The CEO's submissions were directed to the proper interpretation of s 30 of the Act.
22. It would seem that on the face of the section a court has a jurisdiction to either make an order directing the CEO to grant the applicant an extraordinary driver's licence or to refuse the application.
23. As I have noted, I consider the interpretation issue in this case is not of the statutory provisions, which appear clear, but rather, what was the effect of the magistrate's order.

General principles as to the interpretation of court orders

24. As a general principle, court orders must be the subject of the ordinary rules of construction that must proceed in the same way as the construction of a contract.[3]
25. Recently the Court of Appeal in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2],[4] considered the relevant principles as to construing an order by reference to the surrounding circumstances which the order was made.
26. It would seem that the relevant principles are as follows:[5]
    1. In determining the meaning of an order, it is permissible to have regard to context including surrounding circumstances (much the same as it is permissible to have regard to the surrounding circumstances known to the parties and to the purpose and object of a transaction when construing a commercial contract).
    2. However, in having regard to surrounding circumstances, it is relevant to keep in mind that orders are generally framed with a view to their being self-contained and self-explanatory.
    3. Also, the surrounding circumstances are not admissible to contradict the language of the orders where that language is unambiguous or susceptible of only one meaning.
    4. Where the order is ambiguous, recourse may be had to the reasons for decision as an aid to construction of the order.

Ordinary meaning of the words 'refuse' and 'dismiss'

27. The New Shorter Oxford English Dictionary defines the word 'refuse' as meaning:

Decline to take or accept (something offered or presented; reject, turn down; decline to do).
Decline to give or grant; deny (something) to a person; decline to give (a person) something requested.

28. The same dictionary defines the term 'dismiss' as:

Send out of court; deny further hearing to (a legal action or claim).

29. It seems that in the current case what is clear is that the magistrate did not allow the application. The question is whether the proper construction of the order dismissing the application is whether that order constitutes a 'refusal' of the application. In my view the proper construction is that the dismissal of the application constituted a refusal within the meaning of s 30.
30. I do not consider that the language of the order in the present circumstances is susceptible of any other meaning given there was a binary decision that had to be made by the magistrate after the application was heard on its merits. In that sense the magistrate had two decisions open: whether to allow the application or refuse it.
31. The order dismissing the application could not be construed in any way other than a refusal of the application. The application was heard and considered on its merits. The magistrate did not make an order directing the CEO to grant Mr Aberdour an extraordinary driver's licence. Put another way, Mr Aberdour, colloquially speaking, lost. His application was dismissed, or put another way, refused.
32. In the event that I am wrong in my conclusion that there was no ambiguity as to the legal effect of the magistrate's order dismissing the application, and, it is susceptible to one or more meanings, by having resort to the reasons for decision, those reasons enable a construction of the order whereby the dismissal would constitute a refusal of the application.
33. There is no evidence before the court that Mr Aberdour has brought a further application for an extraordinary licence nor that he intends to do so before 28 November 2024, being within six months of the date of the hearing before the magistrate on 28 May 2024. To some degree this appeal seems to be one which is largely hypothetical. Namely, if Mr Aberdour did bring a fresh application for an extraordinary licence under the Act, by virtue of his previous application, the issues agitated by this appeal could then be addressed. In my view, Mr Aberdour could not make a further competent application for an extraordinary licence until six months had elapsed from 28 May 2024.
34. If Mr Aberdour did bring a fresh application to the Magistrates Court for an extraordinary driver's licence within six months of the dismissal of his previous application on 26 May 2024 the finer points of the interpretation argument could be argued at that time.
35. As I have noted, Mr Aberdour has not sought to be heard in this appeal. One may assume that the reason he has not done so is that he has no intention of applying for a further extraordinary driver's licence until the time period prescribed by s 31 of the Act has expired. If he did make a further application before the 6-month period had expired, an argument could be made by him as to any distinction between dismissal and refusal. Absent any argument being made, in my view, there is no such distinction. The effect of the order of dismissal made by the magistrate was a refusal within the meaning of the Act.
36. Given my interpretation of the legal effect of the magistrate's orders, the appeal should be dismissed.
    

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

LM
Associate to Judge Curwood

13 SEPTEMBER 2024

[1] Namely a refusal to grant an extraordinary licence would place an undue financial burden on the applicant or his or her family, by depriving the applicant of his or her principal means of obtaining income.
[2] The court must not make an order directing the grant for an extraordinary licence unless it is satisfied that the refusal of the application would deprive the applicant or a person who is a member of the applicant's family of the only practicable means of travelling to and from the place at which the applicant or that person, as the case may be, is employed.
[3] Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483, 503; Athens v Randwick City Council [2005] NSWCA 317 [28]; [2005] NSWCA 317; (2005) 64 NSWLR 58.
[4] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108.
[5] The summary of principles is derived from Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [156] - [158] and Athens v Randwick City Council [28] - [29].