Cannon v Police [2014] NZHC 3094 (5 December 2014)

Last Updated: 26 August 2015

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-125 [2014] NZHC 3094

BETWEEN	JOHN CHARLES DOMINIC CANNON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4 December 2014
Appearances:	N Rout for Appellant C Newman for Respondent
Judgment:	5 December 2014

_{JUDGMENT OF MANDER J}

[1] Mr Cannon was convicted of driving with excess blood alcohol (being a third or subsequent offence) and disqualified from holding or obtaining a driver’s licence for 12 months. He made application for a limited licence. This was declined by Judge Couch who was not satisfied that the statutory test of extreme hardship had been made out. Mr Cannon appeals that decision.

District Court decision

[2] At the time of Mr Cannon’s conviction, he was a trainee health and safety inspector for WorkSafe New Zealand which administers the Health and Safety in Employment Act. He resigned as a result of the conviction. Subsequent to his resignation, he incorporated a company, Safety Management Systems Ltd, for the purposes of establishing a health and safety consultancy focussed on the farming industry in Canterbury and Westland. He intends to operate this business from his home address.

[3] Mr Cannon informed the District Court at the time of his application for a limited licence that he was in the process of establishing a website and promoting his

CANNON v NEW ZEALAND POLICE [2014] NZHC 3094 [5 December 2014]

service to farmers. He provided evidence to support his view that there was a ready market for such services having regard to the growing incidence of farm accidents and the identified need to improve safety in the rural sector. Mr Cannon deposed that he needed the use of his personal vehicle for the purpose of this business, to travel to rural areas of Canterbury and Westland to meet and promote his health and safety service to farmers.

[4] Mr Cannon also provided details of the financial pressure he is presently under, which include commitments of rent and the repayment of credit card debt, as well as ordinary food and household outgoings. In the absence of obtaining a limited licence, Mr Cannon deposed that he would have to go on the unemployment benefit. At the hearing of the appeal it was confirmed Mr Cannon is now in receipt of the benefit and has exhausted his superannuation savings.

[5] Judge Couch took the view that Mr Cannon’s inability to proceed with his plans for what the Judge described as “a speculative business”, as a result of the disqualification, did not meet the extreme hardship test required by the Land Transport Act 1998.

The statutory test

[6] The Act provides the Court with a discretion to issue a disqualified driver a limited licence authorising the person to drive a motor vehicle to such extent as the Court specifies. The extent of that authorisation is limited to what is necessary to alleviate extreme or undue hardship.

[7] In order for the Court to be able to exercise its discretion, the Court must be satisfied that the disqualification has resulted or will result in extreme hardship to the applicant (whether in relation to employment or otherwise).¹ Accordingly, there is a two stage test. Firstly, the Court must be satisfied that extreme hardship has or will result from the disqualification order, which is a matter of assessment and evaluation for the Court. Secondly, if satisfied that the statutory prerequisite has been

_{established, whether as a matter of discretion a limited licence will issue.}

¹ Land Transport Act 1998, s 105(2)(a)(i).

The appellant’s submission

[8] Mr Cannon submits that Judge Couch erred in his approach to the application. He submitted the extreme hardship test had been made out. He emphasised that his employment options are limited. Potential employment in the mining industry, for wider economic reasons relating to that industry, is no longer available, and any health and safety position within a large building firm or other organisation would still require the need for a licence. Mr Cannon was critical of the Judge’s view that the starting of a new business venture was “speculative”, and submitted that the Court was not in a position to make an assessment of the likely success of his business venture. In that regard, Mr Cannon pointed to an identified work sector in need of his services, namely the farming community, the steps he has already taken, including the registering of a company, having business cards made, preparing promotional material and commissioning a website. In support of his appeal, Mr Cannon filed a copy of his business plan. Significant changes to the Health and Safety in Employment Act will also likely increase the need for the type of service he is seeking to offer.

[9] Mr Cannon made reference to a number of High Court judgments which appeared to favour the issuing of a limited licence in order to allow applicants to maintain their self-employment, and where, as in this case, the police had not opposed the application for the limited licence.²

[10] Mr Cannon acknowledged that his appeal lay against the exercise of a discretion, but submitted that the learned Judge had taken into account irrelevant matters, which were identified as the Judge’s own unsubstantiated views of the viability of Mr Cannon’s business, and had failed to take into account the limited options available to Mr Cannon to provide an income for himself because of his circumstances and the potential of a business targeted at the rural sector. He

_{submitted that Judge Couch was simply wrong in his assessment.}

2. McNally v Police HC Rotorua AP61/90, 11 October 1990, Fisher J; Gardner v Ministry of Transport HC Dunedin AP43/91, 24 May 1991, Tipping J; O’Brien v Ministry of Transport (1996) 3 CRNZ 35.

The respondent’s position

[11] The respondent submitted that no identified error of fact or law has been identified as having been made by the Judge in declining the application. The assessment of whether Mr Cannon’s inability to proceed with his planned business venture amounts to extreme hardship was open to the Judge on the material made available to him, and he did not err in the exercise of his discretion.

Decision

[12] I am not satisfied that Judge Couch fell into error in his evaluation of the statutory test of extreme hardship in the circumstances of this case. The purpose of s 105 is to alleviate the consequences of a disqualification or suspension of a driver’s licence which are well beyond those contemplated by the inconvenience and upset caused by not being able to drive a motor vehicle. The purpose of a disqualification is the punitive effect of the sentence and the specific and general deterrence that flows from such an order.

[13] The limited licence sought by Mr Cannon would involve unlimited travel between 7:00 am and 7:00 pm over the course of the working week and over a large part of the South Island. It may well be that had Mr Cannon an established business, reliant for its continued existence upon him being able to drive a motor vehicle, a case could be made for a limited licence in such circumstances. He does not have such a business. He hopes to develop such a business. He has no clients. Rather, given the difficult position he presently finds himself in, he has identified a business opportunity which he hopes to be able to implement.

[14] In my view, Judge Couch’s description of the business as “speculative”, while perhaps harsh, remains accurate. The evidence put before the Court demonstrates that the planned business is at a truly embryonic stage of development. Mr Cannon is not reliant upon any income from the business because, as yet, it generates no income and is unlikely to do so for some considerable period of time, if indeed it generates any profit at all. In oral argument it was confirmed that the purpose of the limited licence is to “cold call” potential client farmers.

[15] The cases relied upon by Mr Cannon are readily distinguishable. In McNally the appellant was a self-employed building contractor with an established business. He and his wife were dependent upon the business for their income, and it simply was not practical for him to be driven to the various building projects to which he was presently contracted. Similarly, in Gardner the appellant sought to join in partnership with another person to run a tourist business that involved him driving people in minibuses. The Court in that case was satisfied that extreme hardship would arise from preventing the applicant from at least obtaining a limited licence for the purpose of taking the tests required by the Ministry of Transport to enable him to obtain a passenger service licence. The limited licence that was issued on appeal was for the purpose of taking that test, including the right to drive between his home and the place where the test would be undertaken and his return. The applicant would then be required to go back to the District Court to make a further substantive application defining the vehicles, roads, hours and other conditions necessary to provide the tourist passenger service. What was proposed in that case was great deal more circumscribed than Mr Cannon’s application.

[16] For completeness, I also observe that the position taken by the police (be it in opposition, neutral, or supportive of an application) is not determinative of its merits. It is the Court’s responsibility to determine whether the statutory test of extreme hardship is established. While the views of the police may be relevant and, in some cases, of assistance to the Court, it will often be appropriate for the police to take no position, leaving the issue to the discretion of the Court.

[17] The respondent suggested other ways Mr Cannon could promote his business without being reliant on a vehicle. Whether such options are feasible are for Mr Cannon to assess. It may be that there are other preparatory steps that Mr Cannon can take in the interim which, if advanced, might suggest a renewed application, although realistically in the absence of an established viable income producing business that may be overly optimistic.

[18] It follows therefore that I am not satisfied that Judge Couch erred in his approach to this matter. Indeed, I observe that the District Court’s response to what

Mr Cannon proposed is unsurprising in the circumstances. The appeal is therefore dismissed.

Solicitors:

Better Lawyers Ltd, Christchurch

Raymond Donnelly & Co, Christchurch