Catalano v Department of Transport and Main Roads [2017] QCAT 199

CITATION: Catalano v Department of Transport and Main Roads [2017] QCAT 199 PARTIES: Vicki Catalano (Applicant) v Department of Transport and Main Roads (Respondent) APPLICATION NUMBER: GAR065-16 MATTER TYPE: General administrative review matters HEARING DATE: 18 August 2016 with final written submissions filed 7 October 2016 HEARD AT: Brisbane DECISION OF: Member Allen DELIVERED ON: 1 June 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Department of Transport and Main Roads is confirmed. 2. The Tribunal declares under s 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that Vicki Catalano is entitled to apply for a Queensland driver licence subject to the interlock condition in accordance with s 91K(2) of the Transport Operations (Road Use Management) Act 1995 (Qld) with the interlock condition being for the period of 24 months following the end of her disqualification period on 4 April 2016. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where Department of Transport and Main Roads cancelled drivers licence – holder of driver licence subject to mandatory interlock order in New South Wales – where question of whether there was a ground to cancel the applicants Queensland driver licence – whether the exercise of the discretion to cancel a driver -- 1 of 11 -- 2 licence was subject to consideration of the applicants personal or business circumstances – whether the applicant would be entitled to apply for a Queensland driver licence subject to an interlock condition for the period required to satisfy the mandatory interlock order made in New South Wales. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 21, s 24 and s 60 Road Transport Act 2013 (NSW), s 105, s 211, s 215, s 215A, s 225 Road Transport (Driving Licensing) Regulation 2008 (NSW), s 72 Transport Operations (Road Use Management) Act 1995 (Qld), s 91I, s 91J, s 91K, s 91M, s 127 and s 131(1AA) Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld), s 124, s 125 Fletcher v Chief Executive, Department of Transport and Main Roads [2011] QCAT 201 R v Osborne [2014] QCA 291 APPEARANCES: APPLICANT: Ms Vicki Catalano RESPONDENT: Mr Murray Shields appeared for the Department of Transport and Main Road REPRESENTATIVES: APPLICANT: Ms Catalano was represented by Mr Gregory of Counsel instructed by Connolly Suthers. RESPONDENT: Department of Transport and Main Roads represented by Anne Roseler REASONS FOR DECISION [1] Ms Catalano while visiting Leeton in New South Wales was subjected to a random breath test and was found to have a concentration of alcohol of 0.189 while driving her motor vehicle, a high range prescribed concentration of alcohol offence1, on the night of 4 October 2015. She appeared in the 1 Road Transport Act 2013 (NSW) (RT Act), s 105(a). -- 2 of 11 -- 3 Leeton County Court on 6 November 2015 and was fined $900.00 and made subject to a mandatory interlock order2:- a) a disqualification from holding any drivers licence for a period of six (6) months; and b) a disqualification from holding a driver licence (other than a learner licence or interlock driver licence) during the period of 5 years commencing on the day of the conviction unless she has first held an interlock driver licence for a period of 24 months. [2] Mrs Catalano at the time of her conviction was a resident of Queensland and held a Queensland drivers licence. The New South Wales authorities advised the Queensland Department of Mrs Catalano’s conviction which would constitute grounds for amending, suspending or cancelling a Queensland driver licence3. [3] The Department issued her with a show cause notice4 on 4 January 2016 proposing to cancel her driver’s licence on and from 9 February 2015 (sic) on the basis that she had been disqualified from holding or obtaining a driver licence in New South Wales for the period from 6 November 2015 to 6 November 2020 for the offence of Drive with high range concentration of alcohol. Mrs Catalano was invited to make personal or written representations to demonstrate why the proposed action should not occur if she believed it should not occur. The show cause notice stated that if you have been disqualified from holding or obtaining a driver licence by order of an Australian court then your driver licence is not valid for the period of disqualification and, pursuant to part 2 of the Driver Licensing Regulation, as you do not hold a valid licence you are not authorised to drive and that unlicensed driving is an offence under the Transport Operations (Road Use Management) Act 1995 (Qld) (TO(RUM) Act). [4] Mrs Catalano’s lawyers made submissions to the Department dated 8 February 2016 in response to the show cause notice. They confirm their clients instructions that she pleaded guilty to the offence of Drive with High range Concentration of Alcohol in the Leeton Magistrates (sic) Court in New South Wales and that her sentence included an initial (6) months disqualification period (which ends on 4 April 2016) followed by a 24 months interlock period. They enclosed an advice of Court Result which noted the 6 month disqualification and a 24 month Alcohol Interlock Program. They note that the Department advised Mrs Catalano that because Queensland does not offer a 24 month interlock program, her driver’s licence will be disqualified for period of 5 years. They submitted that it is undesirable and unfairly punitive for Mrs Catalano to be disqualified for a period of 5 years in circumstances where that disqualification is based on a technicality and 2 RT Act, s 211(1). 3 Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld) (TO(RUM-DL) Reg), s 124(d). 4 TO(RUM-DL) Reg, s 125(1). -- 3 of 11 -- 4 is far more severe than the period of disqualification imposed by the magistrate in New South Wales. They sought that the decision to impose a 5 year disqualification be overturned on a public interest basis. [5] The Department issued its decision notice5 on 9 February 2016. The decision confirms the representations made on behalf of Mrs Catalano. It states that “Information has been sought from the New South Wales Transport Department, confirming the disqualification period of 6 November 2015 to 6 November 2020.” Then goes on “the department is proceeding with the cancellation of your driver licence based on information that you have been disqualified by the New South Wales Courts for the period 6 November 2015 to 6 November 2020 for the offence “Drive with high range concentration of alcohol”. As discussed the minimum disqualification period of 6 months can only apply with a mandatory 24 month interlock period. The department is unable to overturn any order imposed by a court.” Cancellation of Mrs Catalano licence was stated to take effect on and from 19 February 2016. [6] Mrs Catalano was dissatisfied with the Department’s decision to cancel her driver’s licence and has applied to the Tribunal to have the decision reviewed6. The Tribunal when reviewing a decision such as this stands in the shoes of the decision-maker7 and the review is by way of a fresh hearing on the merits8. The Tribunal is required to make the correct and preferable decision9. The Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter for reconsideration to the decision maker10. The Department is required to provide the Tribunal with a written statement of reasons for the decision and any document or thing in the decision-maker’s possession or control that may be relevant to the Tribunal’s review of the decision11. [7] Mrs Catalano filed an affidavit sworn on 20 May 2016, in it she detailed that she had received advice from New South Wales Roads & Maritime Services in a letter dated 21 December 2015 that she had been convicted and disqualified from holding a driver licence in accordance with the details provided, disqualification until and including 6 November 2020, interlock disqualification period until 4 April 2016 and interlock period 24 months from date of issue of driver licence. The letter advised that if she held a driver licence in another State she would need to advise the licensing authority of the disqualification to make arrangements to surrender her licence. She attended at the Department and they advised that normally receive their advice from the Courts. She was told by an officer of the Department the next day that they had no choice but to suspend her Queensland licence 5 TO(RUM-DL) Reg, s 125(5). 6 TO(RUM) Act, s 131(1AA) and Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 17(1). 7 QCAT Act, s 19. 8 QCAT Act, s 20(2). 9 QCAT Act, s 20(1). 10 QCAT Act, s 24(1). 11 QCAT Act, s 21. -- 4 of 11 -- 5 for a period of 5 years in accordance with the wishes of the New South Wales Magistrates (sic) Court. The reasons for this was because the Department does not offer a 24 month interlock program and only offers a 12 month program. [8] She stated that she had sought advice from her New South Wales solicitor in regard to getting a New South Wales interlock licence and was told that she was not eligible as she did not reside in New South Wales. She had also contacted authorised interlock fitters in her home town and they had not been able to assist her. [9] Mrs Catalano filed a further affidavit sworn on 28 June 2016 in respect of the application. In it she confirms the details of the offence, her conviction and the periods of disqualification and the interlock period. She states that the disqualification of her driver licence was to commence on 4 October 2015. [10] I note that this is confirmed by correspondence from the New South Wales Transport and Road & Maritime Services, which states that she will be eligible to apply for an interlock licence on or after 5 April 2016. [11] That is one day after the 6 months period from the date of the offence and that date would be taken into account if Mrs Catalano licence was suspended in accordance with s 225(3) of the RT Act (NSW). [12] Mrs Catalano also confirmed that she had received advice from her New South Wales solicitor that if she chose not to fit an interlock device to her vehicle and obtain an interlock licence to allow her to drive in new south Wales, she would be unable to drive in New South wales for a period of 5 years. She was also advised that the disqualification period was the minimum period and that the 24 month interlock period was a mandatory period imposed by the New South legislation. [13] Mrs Catalano also set out details of the impact of the cancellation of her Queensland drivers licence on her personally and on her employment and her traffic history. I note that this is the first drink driving offence that Mrs Catalano has been convicted and that is reflected in the order that was made by the Court. [14] The decision under review here is the decision of the Department to cancel Mrs Catalano’s driver licence on and from 9 February 2016 in accordance with s125(5) TO(RUM) Reg. This decision was made as a result of Mrs Catalano being convicted of a Drive with high range PCA-1st Offence in New South Wales on 6 November 2015. That conviction was notified to the Department in accordance with s 29(3) of the RT Act (NSW). The conviction was a ground for amending, suspending or cancelling Mrs Catalano Queensland licence in accordance with s 124(d) TO(RUM-DL) Reg and a show cause process was commenced by the Department in accordance with s 125 of the TO(RU-DL) Reg. -- 5 of 11 -- 6 [15] It is important to note that s 127 TO(RUM) Act states that a person shall not apply for or obtain a Queensland drivers licence when the person is disqualified by an order made under any Act, including an Act from another State from holding or obtaining a driver’s licence. [16] Unfortunately, the order made in New South Wales was somewhat unclear. I am satisfied though having regard to the admitted facts that Mrs Catalano had at the time of the offence on 4 October 2015 a concentration of alcohol of 0.189 which is a high range concentration of alcohol in accordance with s108 RT Act (NSW). The offence to which driving with a high range concentration of alcohol corresponds to is under s 110(5) RT Act (NSW) and that is the offence for which Mrs Catalano was convicted of on 6 November 2015. The offence under s 110(5) RT Act (NSW) is mandatory interlock offence under s209 RT Act (NSW). A court which convicts a person of a mandatory interlock offence must at the time of conviction make a mandatory interlock order or an interlock exemption order in accordance with s 210 of the RT Act (NSW). [17] A mandatory interlock order is made under s 211 RT Act (NSW). The parties disagreed on the effect of a mandatory interlock order with the Department contending that as Queensland was not able to offer an interlock driver licence for the period required in New South Wales Mrs Catalano would be disqualified from a holding a driver licence for a period of 5 years from 4 October 2015. It was submitted on behalf of Mrs Catalano that once Mrs Catalano had completed the mandatory interlock period the 6 month disqualification period set out in the order would end. [18] I read the order made as firstly disqualifying Mrs Catalano from holding any driver licence for a period in this case of 6 months commencing on 4 October 2015 and ending on 4 April 2016 in accordance with s 211(1)(a), s 211(4) and s 225(3)(a) RT Act (NSW) and secondly, disqualifying Mrs Catalano from holding a driver licence (other than a learner licence or interlock driver licence) during the period of 5 years commencing on 6 November 2015 unless she has held an interlock driver licence for the period of 24 months in accordance with s211(1)(b), 211(4) and s215 RT Act (NSW). [19] An interlock driver licence is one issued in accordance with s 72 of the Road Transport (Driving Licensing) Regulation 2008 (NSW) (RT(DL) Reg), which is a licence issued subject to the condition that the holder of the licence may only drive a motor vehicle if an approved interlock device that was installed by an acceptable provider is fitted to the motor vehicle s 72(3) RT (DL) Reg. An interlock device means a device designed to analyse a breath sample for the presence of alcohol and prevent a motor vehicle being started if it detects more than a certain concentration of alcohol, s 44 RT Act (NSW). [20] A person commences the interlock period when they are issued with an interlock licence s 215 RT Act (NSW) and at the end of the day on which the holder of an interlock driver licence completes the interlock period, which in the case of Mrs Catalano is 24 months, the disqualification period referred to in s 211(1)(a), the initial 6 month disqualification, is taken to have -- 6 of 11 -- 7 expired and the holder (if otherwise eligible) is entitled to apply for a licence without an interlock condition in accordance with s 215A RT Act (NSW). This is in accordance with the submissions from Mrs Catalano. [21] There is clearly no disqualification from holding any driver licence for a period of 5 years as submitted by the Department. Within that 5 year period Mrs Catalano would in New South Wales be entitled to hold an interlock driver licence after the end of the initial 6 month disqualification in accordance with s 211(1)(b) of RT Act (NSW). Therefore an absolute disqualification of Mrs Catalano from holding a Queensland driver licence for a period of 5 years is not in accordance with the order of the Leeton County Court. [22] It was submitted on behalf of Mrs Catalano that s 215A(5) of the TA Act (NSW) makes provision for an “external interlock driver licence”, described as an Australian driver licence of another jurisdiction that is subject to a requirement under a law of that jurisdiction allowing the holder to drive only a motor vehicle fitted with an interlock device (however described). Importantly, s 215A(4) makes it clear that any period during which a person holds an external interlock driver licence while a mandatory interlock order is in force in respect of the person is taken to be a period during which the person holds an interlock driver licence. Accordingly, that period is to be taken into account in determining whether the person has completed the interlock applicable to the person (in respect of that mandatory interlock order) for the purposes of this section. [23] It was submitted for Mrs Catalano that she would be entitled to obtain a drivers licence in Queensland with an interlock condition in accordance with s 91I, s 91J(2) and s 91K(2) TO(RUM) Act for the period of 24 months following the end of her period of disqualification and satisfy the requirement of the New South Wales order. The Department considered that it was only able to issue a driver licence with an interlock condition for the period of 12 months within the period of 2 years following the persons disqualification and so would not be able to issue the driver licence with the interlock licence to Mrs Catalano for the period required and so she must be disqualified for a period of 5 years. [24] To determine if the interlock provisions in Queensland can be applied to Mrs Catalano it is necessary to look at the various definitions. Firstly, does the interlock device available in Queensland fulfil the requirements of the New South Wales legislation? Section 91I TO(RUM) Act (Qld) defines an “alcohol ignition interlock” as a device that, when fitted to a motor vehicle, prevents the motor vehicle from being started unless the device is provided with a specimen of a person’s breath containing either no alcohol or less than a particular concentration of alcohol. I am satisfied that an “alcohol interlock device” as defined fulfils the same function as an “interlock device” in New South Wales and that a Queensland driver licence issued subject to the condition that an interlock device be fitted to the vehicle which the licensee was licensed to drive would satisfy the requirements of s 215A(4) of RT Act (NSW). -- 7 of 11 -- 8 [25] Relevantly s 91I defines a “non-Queensland interlock requirement” as a requirement under, or imposed under, a law of another jurisdiction allowing a person to drive only a motor vehicle fitted with an alcohol ignition interlock during a particular period and “non-Queensland interlock period” as the period during which a person, under a non-Queensland interlock requirement, may drive only a motor vehicle fitted with an alcohol ignition interlock”. [26] The Department when discussing the decision to cancel Mrs Catalano’s licence rather than amending submitted that sections 91J and 91K of the TO(RUM) Act recognise non-Queensland drivers licences subject to a condition of an alcohol interlock requirement. However, if there is ambiguity, extrinsic aids may be used to interpret the intent of Parliament. It is submitted that the intention of the parliament is clear in that the Explanatory Notes to the TO(RUM) Act indicate that this recognition is intended to expressly allow for non-Queensland licence holders who are transferring their licences to Queensland to perform their alcohol interlock requirements rather impliedly allow holders of Queensland licences who have been ordered by other jurisdictions to perform non-Queensland alcohol interlock requirements.12 [27] It was submitted for Mrs Catalano that s 91M which deals with interlock periods could be read so that the period in respect of non-Queensland interlock requirements was 24 months. [28] There is nothing in the definition of “non-Queensland interlock requirement” or “non-Queensland interlock period” which states that they apply only in respect of the holder of a non-Queensland drivers licences with an interlock requirement who are coming to Queensland. While that example may have been used in the explanatory note the legislation has not been so limited and the words of the explanatory note cannot so limit the plain words of the Act. So therefore, the alcohol interlock condition on its face applies in the case of someone like Mrs Catalano who holds a Queensland driver licence and is now subject to non-Queensland interlock requirement. [29] This is made clear in s 91J(2) TO(RUM) Act (Qld) which states this division (Division 2 Interlock condition) also applies to a person who is subject to non-Queensland interlock requirement. It should be noted that s 91J(2) is made subject to s 91(J)(3) which states “despite subsection (2), this division does not apply to a person mentioned in the subsection if, were this division to apply to the person, the person’s interlock period would have ended 12 Explanatory note for Transport and other Legislation Amendment Bill 2010 page 39 – which relevantly states “s 91J(2) provides that the division also applies to a person who is subject to a law of a jurisdiction outside Queensland that allows the person to only drive motor vehicles fitted with an alcohol ignition interlock. This provision is necessary to ensure the interlock condition can be applied to the Queensland driver licence of a person who is transferring a non-Queensland driver licence that is subject to the equivalent of an interlock condition, s 91K(2) provides that a person transferring a non- Queensland driver licence that is subject to an interlock requirement will be granted a Queensland licence subject to the interlock condition.” -- 8 of 11 -- 9 under s 91M.” Submissions were made on behalf of Mrs Catalano about the effect of s 91M TO(RUM) Act and how it supported that the interlock period for her under a Queensland licence with an interlock condition would be for 24 months, which would meet the requirements of the New South Wales order. [30] I do not consider that that is the purpose of the provision in s 91M TO(RUM) Act in regard to non-Queensland interlock requirements. I consider that it relates back to s 91J(3) of the TO(RUM) Act. S 91M TO(RUM) Act defines “interlock period” and specific mention is made of s 91J(2) in s 91M(a)(ii) which states an interlock period starts when the person’s non-Queensland interlock period starts and ending in accordance with s 91M(b)(1)(B) a period of two years after the person was first issued with a non-Queensland driver licence after becoming subject to a non-Queensland interlock requirement of the jurisdiction that issued the licence. If a person’s interlock period as defined in s 91M would have ended as a result of an event described in s 91M(b)(i)(B) then in accordance with s 91J(3) the Division would not apply. This is a prospective requirement and it would not apply unless someone in Mrs Catalano’s circumstance were to obtain a driver licence in the future in New South Wales. [31] I do not consider that s 91M(b)(ii) which ends an interlock period when a person’s prescribed period ends which then references the person’s prescribed period as defined in s 91N applies as this would create an inconsistency with s 91K(2) by limiting the interlock period to 12 months when clearly the intention of 91K(2) is that the interlock condition will apply during the person’s non-Queensland interlock period. This would remove the efficacy of s 91K(2) for someone in Mrs Catalano’s position and I do not consider parliament would have intended that to occur. [32] In Mrs Catalano’s case I am satisfied that Chapter 5 Division 2 Interlock Condition applies to her in accordance with s 91J(2) TO(RUM) Act as she is subject to an non-Queensland interlock requirement under the order of the Leeton County Court. A Queensland driver licence granted to Mrs Catalano is subject to the interlock condition during her non-Queensland interlock period of 24 months in accordance with s 91K(2) TO(RUM) Act. [33] Having decided that Mrs Catalano is eligible for a Queensland driver licence subject to the interlock condition for the period which would satisfy the order of the Leeton County Court I will now consider the question of whether or not the discretion to cancel her Queensland drivers licence should be exercised under s 125 of the TO(RUM-DL) Reg. [34] It is submitted for Mrs Catalano that the Department failed to consider the discretion inherent in s 125 TO(RUM) Reg to take no action at all in respect of Mrs Catalano’s valid Queensland driver licence13. That her personal circumstances, work history and character are compelling. That the 13 Fletcher v Chief Executive, Department of Transport and Main Roads [2011] QCAT 201, [12] to [14]. -- 9 of 11 -- 10 practical effect of the Department’s decision is that Mrs Catalano now cannot apply for any class of licence by the operation of s 127(6) TO(RUM) Act which is both inconsistent with the NSW Scheme, disproportionate to the Queensland sentencing scheme for similar offences and excessively punitive to the circumstances of the offence. The decision in R v Christopher James Osborne14 was cited to illustrate the excessiveness of the penalty. In that case the dangerous operation of a truck had caused the death of a cyclist and the disqualification from holding a drivers licence was reduced from 5 years to two years. I note though that term of imprisonment was ordered as well in Osborne. [35] The Department submits in regard to the disproportionate nature of the sanctions that it has no discretion in respect of the orders made and sanctions imposed by any court within Queensland or any other jurisdiction in Australia and has no authority to make a decision which would effectively override a lawful sanction imposed by the Leeton Local Court. [36] There were also submissions made by both parties in regard to amending Mrs Catalano’s licence to include an interlock condition. It is clear that the orders which were made were that she be disqualified from holding any driver licence for a period of 6 months in accordance with s 211(1)(a) RT Act (NSW). A person who is disqualified from driving by an order made under any Act of a State shall not apply for or obtain a Queensland driver licence in accordance with s 127(6) TO(RUM) Act and it is a ground for amending, suspending or cancelling a Queensland driver licence under s 124(d) TO(RUM-DL) Reg. [37] The show cause notice under s 125 is based on whether the Chief Executive of the Department considers a ground exists and if after considering any personal written representations the Chief Executive still considers a ground exists the Chief Executive may take the proposed action under s 125(4) TO(RUM) Reg. While these powers are discretionary as submitted I note that the orders made by the Leeton County Court are mandatory in that if a person has a particular concentration of alcohol the court must make one of the mandatory orders in this case under s 211 RT Act (NSW). I do not consider that I, standing in the shoes of the decision- maker, have any discretion in regard to the personal circumstances raised by Mrs Catalano in her affidavit material or to consider not cancelling her licence if I was to be satisfied that a ground to cancel her licence existed. I would not therefore follow the decision in Fletcher. [38] The public must be able to assume that if a driving offence is committed in one State by a person licensed in another State that that person’s driving licence will be affected by any order or decision made in the first State, in regard to that offence. At times, we will all drive in other States and when we do we must be aware that our driving privileges are just as subject to consequences in our home State if we commit an offence for which we receive a penalty in the State we are visiting. Otherwise we may be less 14 [2014] QCA 291. -- 10 of 11 -- 11 likely to obey the road rules in States we are visiting thus putting other road users at risk. I therefore accept the submission of the Department that a decision made by the Department cannot alter the requirements of the order of the Court and by like token that order must find expression by having it enforced against the Queensland driver licence of Mrs Catalano. [39] I am satisfied that Mrs Catalano has been disqualified from holding a driver licence under a law of New South Wales and that the discretion to cancel her licence should be exercised in accordance with s 125(4)(c) TO(RUM- DL) Reg (Qld). I note that that Mrs Catalano is entitled to apply for a Queensland driver licence with an interlock condition in accordance with s 91K(2) TO(RUM) Act during non-Queensland interlock period. [40] Many of the issues raised in this application center around the question of whether or not Mrs Catalano is entitled to obtain a Queensland driver licence with an interlock condition under s 91K(2) of TO(RUM) Act for the period of 24 months to fulfil the requirements of the mandatory interlock order she is subject to in New South Wales. I am satisfied that she is and I will make a declaration under s 60 of the QCAT Act accordingly so that there is no doubt about the matter. Order [41] The decision of the Department of Transport and Main Roads is confirmed. [42] The Tribunal declares under s 60 QCAT Act that Vicki Catalano is entitled to apply for a driver licence subject to the interlock condition in accordance with s 91K(2) TO(RUM) Act with the interlock condition being for the period of 24 months following the end of her disqualification period on 4 April 2016. -- 11 of 11 --