Eldridge v Department of Transport and Main Roads [2019] QCATA 155

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Eldridge v Department of Transport and Main Roads [2019] QCATA 155 PARTIES: JAMES ELDRIDGE (appellant) v DEPARTMENT OF TRANSPORT AND MAIN ROADS (respondent) APPLICATION NO/S: APL069-19 ORIGINATING APPLICATION NO/S: GAR 383/18 MATTER TYPE: Appeals DELIVERED ON: 19 November 2019 HEARING DATE: 13 November 2019 HEARD AT: Brisbane DECISION OF: Senior Member Aughterson Member Hughes ORDERS: Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where applicant applied for leave to appeal – where applicant sought to introduce evidence not adduced at first instance – whether evidence should be admitted – where evidence not sufficient to outweigh other factors sufficient to overturn exercise of discretion APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – GENERALLY – where applicant applied for leave to appeal – where Tribunal exercised discretion to not issue tow truck driver certificate – where applicant previously issued certificate on condition that he maintain clear criminal offence record – where applicant convicted for driving with a relevant dug in his system – where applicant’s decision to drive with cannabis in his system exposed himself and others to risk of harm and undermines public confidence in tow truck industry – where lack of insight into responsibilities of holding a tow truck driver -- 1 of 6 -- 2 certificate – where proper exercise of discretion – where mitigating factors do not outweigh public interest of maintaining confidence in tow truck industry as a whole – where evidence was capable of supporting the Tribunal’s conclusions - where Tribunal did not act on any wrong principle or take into account any irrelevant matter Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Tow Truck Act 1973 (Qld), s 4C, s 14A, s 18, s 21 Transport Operations (Road Use Management) Act 1995 (Qld), s 3 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Eldridge v Department of Transport and Main Roads [2019] QCAT 57 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 House v The King (1936) 55 CLR 499 InBalance Motorbike Training v Chief Executive, Department of Transport and Main Roads [2017] QCAT 103 Lovell v Lovell (1950) 81 CLR 513 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Novak v Chief Executive, Department of Transport and Main Roads [2012] QCAT 160 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: J Warr REASONS FOR DECISION What is this appeal about? [1] Like many people, James Eldridge is trying to get by and make ends meet. To provide for his family, he has held a tow truck driver certificate since December 2016. -- 2 of 6 -- 3 [2] However, holding a tow truck driver certificate is a privilege and not a right. Tow truck driver certificates are issued within the context of the public interest.1 Because holding a tow truck driver certificate requires a person to also hold a driver licence,2 that public interest extends to management of traffic to enhance safety.3 [3] Within this context, because Mr Eldridge failed a random drug test for a third time, the Tribunal dismissed his application to review a decision by the Department of Transport and Main Roads to refuse him a tow truck driver certificate. Mr Eldridge has applied for leave to appeal the Tribunal’s decision. To the extent that Mr Eldridge’s appeal involves a question of fact or mixed fact and law, he requires the Tribunal’s leave to appeal.4 What are the grounds for seeking leave to appeal? [4] In determining whether to grant leave, the Tribunal will consider established principles including: whether there is a reasonably arguable case of error in the primary decision;5 whether there is a reasonable prospect that the appellant will obtain substantive relief;6 whether leave is needed to correct a substantial injustice caused by some error;7 and whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.8 [5] Mr Eldridge’s application for leave to appeal and supporting submissions do not address any of these, but instead seek to submit further evidence for consideration by the Appeal Tribunal: A Notice to Remedy Breach dated 22 August 2019 for rent arrears of $4,700; Letter from Gold Coast Mental Health Service to A Eldridge dated 8 May 2019; That he is suffering financial hardship; Email James Eldridge to QCAT and Janine Wall dated 27 August 2019; Email James Eldridge to QCAT dated 8 October 2019; and Newspaper article extract undated. 1 Tow Truck Act 1973 (Qld), s 21. 2 Tow Truck Act 1973 (Qld), s 18(2)(b). 3 Transport Operations (Road Use Management) Act 1995, s 3(2)(g). 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), 142(3)(b). 5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 6 Cachia v Grech [2009] NSWCA 232, 2. 7 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 8 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. -- 3 of 6 -- 4 Should the Appeal Tribunal admit fresh evidence? [6] The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:9 Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible? [7] All of the fresh evidence relates to financial hardship and stress that Mr Eldridge claims he and his family are suffering due to him not having his tow truck driver certificate. Although this evidence post-dates the hearing, the Tribunal did consider Mr Eldridge’s ability to earn a living and financial hardship at the original hearing.10 [8] Even if the fresh evidence were admitted, for the reasons below the Appeal Tribunal is not satisfied that it would outweigh the factors against issuing Mr Eldridge with a tow truck driver certificate, sufficient to overturn the exercise of the original Tribunal’s discretion. Did the Tribunal properly exercise its discretion? [9] The Tribunal’s decision at first instance required the exercise of a discretion.11 The Appeal Tribunal will not interfere with the exercise of a discretion unless it can be shown that the Tribunal acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters.12 Just because the Appeal Tribunal might have exercised the discretion differently is not a basis to change the decision; it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.13 [10] At the start of the appeal hearing, Mr Eldridge submitted that the Tribunal did not consider other cases where tow truck drivers with worse records have been granted certificates. However, the Tribunal did consider this submission at the original hearing.14 Moreover, none of these previous cases were provided to the original Tribunal or the Appeal Tribunal. This was not an improper exercise of the discretion. [11] Having considered the impact upon Mr Eldridge and his family, the Tribunal then made the following salient finding: Although sympathy can be extended to the Applicant for the trauma symptoms he has recently experienced, the fact remains that the law holds tow truck drivers to a particular 9 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 10 Transcript page 1-2, lines 27 to 28; Transcript page 1-3, lines 15 to 46; Transcript page 1-23, lines 26 to 28; Transcript page 1-27, lines 34 to 46, page 1-28, lines 1 to 3; Eldridge v Department of Transport and Main Roads [2019] QCAT 57, [9]. 11 Tow Truck Act 1973 (Qld), s 4C, s 14A. 12 House v The King (1936) 55 CLR 499, 504. 13 Lovell v Lovell (1950) 81 CLR 513. 14 Transcript page 1-28, lines 25 to 46; Transcript page 1-29, lines 1 to 32. -- 4 of 6 -- 5 standard. That standard requires industry participants to hold in high regard all matters going to road safety and one in which suitability for industry participation is assessed with particular regard to a person’s traffic offence history. Marijuana use is inimical to road safety, and the Applicant’s most recent drug driving offence now marks the third occasion within 38 months in which he has been convicted for driving with a prescribed drug in his system, this showing insufficient regard for road safety. Given the difficulties experienced by the Applicant in initially obtaining approval for the grant of a tow truck driver certificate (in January 2017), the Applicant should have been fastidious regarding his future need to abstain from all drugs, lest any further convictions deprive him of the right to continue as a regulated tow truck driver. Yet the Applicant has not been fastidious, and has let his guard down. The Applicant having now failed a random drug test for a third time has the effect that the Applicant is not able to be assessed as an appropriate person to hold a tow truck driver certificate.15 [12] Unfortunately for Mr Eldridge, nothing in the material or the transcript persuades the Appeal Tribunal that this was not a proper exercise of the Tribunal’s discretion. [13] The evidence is that Mr Eldridge has already been given a chance. He was initially refused a tow truck driver certificate due to convictions for drug and other offences. Despite this, after an internal review on 6 January 2017 where he provided medical and character evidence, he was issued a certificate on condition that he maintain a clear criminal offence record. Sadly, Mr Eldridge was unable to comply with this condition, culminating in his conviction for driving with a relevant drug in his system. [14] Mr Eldridge explained that he had taken cannabis to help alleviate the impact of attending the scene of an accident where a youth he had assisted died in his arms.16 While Mr Eldridge’s actions to help the youth were over and above the ‘call of duty’ and are to be commended, they do not outweigh the risk to which he then exposed himself and others. [15] The inherent nature of a tow truck driver’s duties means they are often ‘first on the scene’ to tragic accidents where they may be exposed to considerable trauma. Instead of seeking counselling or other help to develop appropriate coping mechanisms for the confronting aspects of his work, Mr Eldridge chose to self-medicate. Mr Eldridge was granted a tow truck driver certificate on the specific condition to keep a clean criminal record. Driving his tow truck with cannabis in his system - despite this condition - shows a lack of insight into the responsibilities of holding a tow truck driver certificate. [16] He placed himself in a situation where he presented a hazard to other road users. He did this while being granted a conditional tow truck driver certificate - partly because of submissions he made about his prior drug use being related to stress and references that he understood that as a tow truck operator, he must be “free of any substances” and that “he now sees the error in his ways”.17 [17] By driving a tow track (albeit off-duty) with cannabis in his system, Mr Eldridge undid all his good work. Although Mr Eldridge appears to have used cannabis to self- medicate, his decision to drive his tow truck with cannabis in his system exposed 15 Eldridge v Department of Transport and Main Roads [2019] QCAT 57, [30] to [31]. 16 Transcript page 1-9; page 1-3, line 6. 17 Reference of Chad LaChapelle dated 20 December 2016. -- 5 of 6 -- 6 himself and others to a risk of harm from similar tragedies. This undermines public confidence in the tow truck industry. The public must be confident that those attending scenes of accidents in a support capacity do not themselves pose a risk. [18] The Tribunal’s finding that Mr Eldridge is not able to be assessed as an appropriate person to hold a tow truck driver certificate was therefore a proper exercise of its discretion and the Appeal Tribunal can find no reason to come to a different view. It was implicit from the Tribunal’s finding that the mitigating factors of Mr Eldridge’s individual circumstances do not outweigh the public interest of maintaining confidence in the tow truck industry as a whole. The Appeal Tribunal finds no error in this exercise of the Tribunal’s discretion, reflecting previous Tribunal findings that financial hardship is secondary to public safety and the wider public interest. 18 Because of this, it is not in the public interest for Mr Eldridge to have a tow truck driver certificate at this stage. Should the Appeal Tribunal grant leave to appeal? [19] The appeal process is not an opportunity for a party to again present their case.19 It is the means to correct an error by the Tribunal that decided the proceeding.20 [20] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.21 A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.22 An application for leave to appeal is not, and should not be, an attempt to reargue a party’s case at the initial hearing.23 [21] Having read the transcript and considered the evidence, the Appeal Tribunal can find nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting their decision, or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions. The Tribunal did not act on any wrong principle or take into account any irrelevant matter. The Tribunal’s decision reflected a proper exercise of its discretion. [22] There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. [23] Leave to appeal is refused. 18 Novak v Chief Executive, Department of Transport and Main Roads [2012] QCAT 160, [30], [31]; InBalance Motorbike Training v Chief Executive, Department of Transport and Main Roads [2017] QCAT 103, [25]. 19 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]. 20 Ibid. 21 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 22 Ibid. 23 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. -- 6 of 6 --