Richard Huston, a Magistrate sitting in Kalgoorlie, convicted an Indigenous man for driving while disqualified. He was fined $1,000, ordered to pay costs of $300.50, and disqualified for nine months.
The facts were undisputed. The “driver” was sitting in the driver’s seat of the car in Lane Street, Boulder. The car was stationary, and the engine was off. The police did not see the car moving.
There was an appeal to Justice Natalie Whitby of the WA Supremes, who had to get to grips with “driving”.
For Madge Huston, the meaning of driving was found in the Road Traffic Act (s.49(1(a) and it includes having “control” over the steering, movement, or propulsion of a vehicle.
Other than that, the term “drive” is not defined in the WA Road Traffic Act, so the magistrate had to draw on his inner resources.
He contended that “control” did not require a person to be engaged in steering, moving or propelling the car. In this case, the appellant had “control” over the steering by sitting in the driver’s seat with proximity to the steering wheel.
Whitby J looked at all the cases on this topic and found that “what is clear … is that whether someone is ‘driving’ a vehicle is a fact-specific determination”.
Reaching for the Oxford Dictionary, she found the word “drive” means “to operate and control the direction and speed of a motor vehicle”.
So in order to drive, the engine must be on, someone must be in a position to steer or move the car, or it must be moving with someone doing the steering”.
To sit in a stationary car with the engine off does not amount to driving.
Appeal allowed. Thank heavens for the Oxford Dictionary.
See more on Justice Whitby …
Laments From Across The Nullarbor
For The Record
Respectfully, you’re wrong
The Full Feds went out of their way to be nice to Justice John Logan as they rolled him in a tax appeal. It was all the more touchy because Logan is held as a tax guru.
While the WJJ case was all about the meaning of the word “drive”, here their Hons tangled with the meaning of “commercial parking station”.
The Grand Central Car Park at the shopping centre was within a kilometre of the council car park. It was argued that it was not a “commercial parking station” and that the parking benefits were not subject to Fringe Benefits Tax.
HH Justice Logan said:
“It is certainly, for those reasons, being operated in trade or commerce, but considered as a car parking facility alone, the range of free parking is inconsistent with it being operated commercially for profit, as opposed to commercially in the context of a shopping centre, not a standalone car parking facility.”
The Tax Commissioner disagreed, saying that it is a purpose-built complex designed for car parking, with customers charged more than a nominal fee determined by the time a car is parked.
Much swung on s.39A of the Fringe Benefits Tax Assessment Act.
Shaun McElwaine and Amelia Wheatley JJ found it fitted the description of a commercial parking station and therefore there was an FBT liability.
Michael Feutrill J agreed that the appeal should be allowed with the orders proposed by the other two, but arrived at that conclusion by a different route.
The grovelling to Logan started at [7]:
“With respect to the very considerable experience and ability of the primary judge in revenue law, we have reached a different conclusion as to the meaning of the statutory text.”
Thereafter, the “respect” was shovelled on in spades.
At paragraph 13, it was acknowledged that the relevant principles had been “correctly (with respect) stated” by Logan J.
At para 92: “As the primary judge observed, with respect correctly …”
At 116: Feutrill couldn’t have been nicer about finding that Logan was wrong:
“It follows that, with due respect to the primary judge, I have arrived at a different conclusion regarding the meaning of ‘permanent commercial car parking facility’.”
And at 122: “For the foregoing reasons and with due respect to the primary judge, from the ruled facts it is not ‘obvious’ that the Grand Central car parking facility was not operated ‘commercially for a profit’ on a stand-alone basis.”
One hopes that the multiple genuflections will keep Logan as a happy occupant at the pantheon of tax luminaries.