Alaeddin v Registrar of Motor Vehicles - [2011] SASC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
ALAEDDIN v REGISTRAR OF MOTOR VEHICLES
[2011] SASC 72
Judgment of The Honourable Justice Gray
29 April 2011
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - DISCLOSURE OF EVIDENCE AND MATERIAL FACTORS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - OPPORTUNITY TO PRESENT CASE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY
Application for judicial review - decision by Registrar of Motor Vehicles to suspend authorised examiner endorsements on plaintiff's Motor Driving Instructor licence for 12 months - where Registrar failed to provide sufficient information to plaintiff to allow him to address matters of concern - where Registrar acted on matters in which plaintiff had no notice and had no opportunity to comment - whether Registrar failed to accord with requirements of procedural fairness.
Power under which Registrar made the decision considered.
Held: application for judicial review granted - decision suspending plaintiff's authorised examiner endorsements on his Motor Driving Instructor licence set aside - matter remitted for reconsideration.
Motor Vehicles Act 1959 (SA) s 5, s 79, s 79A, s 80, s 81A, s 98A and s 139D; Motor Vehicles Regulations 2010 (SA) reg 93 and reg 98; Acts Interpretation Act 1915 (SA) s 36, referred to.
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; Kioa v West (1985) 159 CLR 550; Russell v Duke of Norfolk [1949] 1 All ER 109; University of Ceylon v Fernando [1960] 1 WLR 223; Furnell v Whangarei High Schools Board [1973] AC 660; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, considered.

ALAEDDIN v REGISTRAR OF MOTOR VEHICLES
[2011] SASC 72
Civil
GRAY J:
Introduction

This is an application for judicial review.
Kamal Alaeddin, the plaintiff and applicant, seeks judicial review of the decision of Ronald Shanks, the Deputy Registrar of Motor Vehicles[1] within the Department of Transport, Energy and Infrastructure, to suspend Mr Alaeddin’s authorised examiner endorsements on his Motor Driving Instructor licence for a period of one year commencing on 21 January 2011.
[1] In these reasons, the Deputy Registrar is referred to as the Registrar as he was, insofar as is relevant to this proceeding, acting as a delegate of the Registrar.
The evidence in this application was wholly written. I received a statement of facts and book of documents, both agreed by the parties. I also received two affidavits of the plaintiff dated 10 February 2011 and 10 March 2011, as well as an affidavit of Mr Shanks dated 23 March 2011. There was no application to cross-examine on these affidavits. The facts were largely not in dispute. My findings follow.
The present proceeding gives rise to the need to interpret extended provisions of the Motor Vehicles Act 1959 (SA). Those provisions present inconsistencies which make the interpretation of the Act difficult. As a consequence, these reasons for judgment are unavoidably lengthy.
Before providing my reasons in detail, I have decided to first summarise my findings. I have decided to grant the application for judicial review, to set aside the decision suspending Mr Alaeddin’s authorised examiner endorsements on his Motor Driving Instructor licence and to remit the matter for reconsideration. The essential reasons underpinning my decision are that Mr Shanks failed to accord Mr Alaeddin procedural fairness[2] in important respects; by failing to provide sufficient information to him to allow him to address matters of concern, and by ultimately acting on matters of which Mr Alaeddin had no notice and had no opportunity to comment.
[2] In these reasons, procedural fairness and natural justice are used interchangeably as dictated by the context.
Background
In June 2008, the Registrar of Motor Vehicles, the defendant, discussed with the Minister of Road Safety his concerns about the issuing of licences to individuals who are licence holders in foreign countries, which countries are regarded by Australian road authorities as having a licensing system which is not sufficiently robust so as to ensure persons holding licences in those countries are safe and competent drivers. Those countries are apparently known as non-recognised countries. The Registrar became concerned following the rejection by a division of the Department of Transport of a number of applications made by foreign licence holders to become taxi drivers. The applications were rejected due to gross incompetence and lack of driving ability.
Persons holding licences from non-recognised countries are issued with a full licence in South Australia upon passing the required practical and theoretical testing. They are exempt from the graduated licensing scheme which usually applies to persons who have recently obtained a licence in South Australia.
In response to the Registrar’s concerns, the Minister gave approval for the Registrar to direct that all persons from non-recognised countries who have applied for a driver’s licence in South Australia undergo such tests as the Registrar might require. The Registrar issued Policy and Procedure Directive No 27/2008 which modified the assessment process for persons exempt from the graduated licensing scheme. That process required that a sample of applicants exempt from the graduated licensing scheme who had been issued a certificate of competency by an examiner, present to a departmental officer for a validation assessment before they are issued with a full South Australian driver’s licence.
On 2 July 2008, notification of the modified assessment process for applicants exempt from the graduated licensing scheme was provided by letter to all Motor Driving Instructors. The letter also informed the Motor Driving Instructors that action would be taken where an authorised examiner was found to have issued a certificate of competency to three drivers exempt from the graduated licensing scheme within a three month period and where those drivers were subsequently determined to be grossly incompetent.
On 16 July 2009, the Registrar sent a question and answer sheet to all Motor Driving Instructors providing them with additional information about validation assessments. The question and answer sheet described, inter alia, the purpose of a validation assessment as ensuring that the applicant is able to drive in a safe and competent manner. Validation assessments are considered to be easier to pass than Vehicle On Road Tests or Competency Based Training assessments, as, for example, the driver undertaking a validation assessment is not required to undertake a parking manoeuvre, a three-point turn or a U-turn, and the driver does not have to strictly comply with a series of checks known as ‘the cabin drill’. Further, during a validation assessment, a driver is deemed grossly incompetent once they accrue 41 penalty points. A breach of an Australian Road Rule causes accrual of 20 penalty points. Consequently, a driver, who accrues no other penalty points, can pass a validation assessment even if they breach two Australian Road Rules. By contrast, in Vehicle On Road Tests or Competency Based Training assessments, drivers cannot pass if they breach any Australian Road Rules.
The applicants who undertake validation assessments are selected pursuant to Policy and Procedure Directive No 27/2008. This directive relevantly provides:
Driver Training and Audit Section (DT&A) receives, from Authorised Examiners, the details of all booked Vehicle On-Road Tests and [Competency Based Training] (i.e. Logbook) Last Training Sessions 2 clear days in advance of the event.
From that information, DT&A will identify the subset of applicants who are exempt from the Graduated Licensing Scheme provisions and determine a sample of applicants that will be required to present to a departmental officer for validation of driving competence. DT&A will determine individual applicants to participate in validation assessments based on the identified risk criteria.
If an applicant fails a validation assessment, the Registrar considers testing of other applicants who are exempt from the graduated licensing scheme and who were assessed by the relevant examiner. When three applicants tested by the same examiner are assessed as grossly incompetent within a three month period, this is brought to the attention of the Registrar. Pursuant to clause 7 of the examiner’s instrument of appointment, the Registrar informs the examiner of the failed validation assessments by letter and includes a copy of the assessment sheets. However, the letter would not identify the applicants who failed the validation assessment and would not include the route upon which the assessments were conducted. The examiner is given an opportunity to respond in writing to the Registrar’s letter by explaining why the examiner’s endorsements or appointment as an examiner should not be revoked, suspended or varied. The Registrar considers the relevant information, including the written response by the examiner, to decide whether to suspend, vary or revoke the examiner’s endorsements or appointment. This decision is communicated to the examiner in writing.
It is against this background that I turn to consider the facts specific to Mr Alaeddin.
The Facts
In January 2000, Mr Alaeddin applied to the Registrar of Motor Vehicles to be appointed as a Motor Driving Instructor. By letter dated 17 March 2000, Mr Alaeddin’s application was accepted and he was appointed as a Motor Driving Instructor subject to conditions of appointment set out in his instrument of appointment. This appointment allowed Mr Alaeddin to train and instruct driving students, but did not allow him to examine the driving ability of the students for the purpose of issuing a driver’s licence. In order to be eligible for appointment as a Motor Driving Instructor, Mr Alaeddin had to complete a training course and a literacy test, as well as provide a police clearance and certificates relating to his fitness to perform the role.
In September 2004, Mr Alaeddin was appointed with his first endorsement. He became an accredited examiner. To become an accredited examiner, Mr Alaeddin was required to have successfully completed testing including a theoretical test and a practical test. This endorsement authorised Mr Alaeddin to conduct Competency Based Training assessments in the car class of vehicle. This involved assessing various tasks which, upon successful completion of all of the tasks, would allow an accredited examiner to issue a certificate of competency to the student. The certificate of competency would be used by the student to apply for a driver’s licence.
On 21 November 2005, Mr Alaeddin’s endorsement was upgraded, allowing him to conduct Vehicle On Road Tests in the car class of vehicle. This upgrade caused Mr Alaeddin to become an authorised examiner. Authorised examiners are able to conduct Vehicle On Road Tests of student drivers who have not previously been taught to drive by the authorised examiner conducting the assessment. Authorised examiners issue a certificate of competency to each student who successfully passes the Vehicle On Road Test. To become an authorised examiner, Mr Alaeddin was required to have completed a training course which included theoretical and practical components.
Mr Alaeddin applied for his endorsements to be further upgraded. Each upgrade required Mr Alaeddin to complete a course and to demonstrate that he was able to drive and teach the particular class of vehicle the subject of the upgrade. Mr Alaeddin’s endorsement was upgraded on 19 October 2006, to conduct Competency Based Training assessment in the light rigid and medium rigid classes of vehicle; on 8 February 2007, to conduct Competency Based Training assessment in the heavy rigid class of vehicle; and, on 16 June 2008, to conduct Competency Based Training assessment in the heavy combination class of vehicle. On 15 October 2008, Mr Alaeddin’s endorsement was further upgraded to allow him to conduct Vehicle On Road Tests in the light rigid and medium rigid classes of vehicle and, on 24 July 2009, it was upgraded to allow him to conduct Vehicle On Road Tests in the heavy rigid class of vehicle.
Mr Alaeddin’s Motor Driving Instructor licence is required to be renewed every five years following successful completion of a theory test and confirmation of his fitness to instruct through certificates and a police clearance. Mr Alaeddin’s endorsements are required to be renewed annually by paying a fee and by providing evidence that he has public liability and professional indemnity insurance.
Mr Shanks deposed that the applicants who had been assessed by Mr Alaeddin and who were required to undertake a validation assessment were selected in accordance with Policy and Procedure Directive No 27/2008. Between 17 June 2010 and 7 July 2010, nine applicants who had been assessed by Mr Alaeddin were required to undertake a validation assessment. Three of those applicants failed; they were assessed as grossly incompetent.
By letter dated 23 September 2010, Mr Shanks provided Mr Alaeddin with details of the three failed validation assessments and a copy of the assessment sheets. The letter invited Mr Alaeddin to indicate in writing by 7 October 2010 why his endorsements as an authorised examiner should not be revoked, suspended or varied. This time period was extended to 21 October 2010 in a subsequent letter from the Registrar.
By an undated letter, Mr Alaeddin responded to Mr Shanks’s letter of 23 September 2010. Mr Alaeddin indicated that he would like to arrange a meeting with Mr Shanks to discuss ten particular matters. Mr Alaeddin further indicated that he would take legal action if he was not given an opportunity to meet with Mr Shanks.
After receiving Mr Alaeddin’s response, Mr Shanks decided that Mr Alaeddin’s letter did not satisfactorily address the concerns that Mr Shanks had raised in his letter of 23 September 2010. Mr Shanks did not arrange a meeting with Mr Alaeddin. He decided that Mr Alaeddin had breached condition 6 of his instrument of appointment due to his non-compliance with rule 1.31 of the Rules Governing the Authorised and Accredited Driving Instructors Scheme (2001). Section 1 of the Rules, which contains rule 1.31, relevantly provides:
The following General Rules governs the operations of both the Authorised and Accredited instructor.
In this section the words ‘Authorised Instructor’ and ‘Accredited Instructor’ means an Authorised Examiner under ‘Definition of Terms’.
The Authorised Examiner:
…
1.31 must not issue a Certificate of Competency to any person unless that person has been assessed in the prescribed manner and has demonstrated competency to or above the standards prescribed.
[Original emphasis removed.]
In a letter dated 23 December 2010, Mr Shanks communicated the following to Mr Alaeddin:
…During the period from 5 June 2010 to 3 July 2010 you certified three (3) people as being competent to or above the standards prescribed, who were found, when retested, to be grossly incompetent to drive a motor vehicle. The Registrar in each case refused to issue a licence to each of these three persons under s 80 Motor Vehicles Act 1959 (“MVA”) on the basis of their incompetence to drive.
Mr Shanks deposed that he made the decision regarding Mr Alaeddin’s breach of a condition of his instrument of appointment on the basis of the gross incompetence demonstrated by the three applicants during their validation assessments in which each applicant breached at least two Australian Road Rules, and further on the basis of the small time period between the assessment conducted by Mr Alaeddin and the validation assessment of each applicant.
With reference to clause 8 of Mr Alaeddin’s instrument of appointment, Mr Shanks ultimately decided to suspend Mr Alaeddin’s authorised examiner endorsements on his Motor Driving Instructor licence for a period of 12 months, commencing on 21 January 2011. Mr Shanks deposed that the 12 month suspension was to ensure that Mr Alaeddin and other examiners understood the serious consequences of major breaches of section 1 of the Rules Governing the Authorised and Accredited Driving Instructors Scheme. To justify this decision, Mr Shanks further deposed that it was his responsibility to act having regard to road safety and to the interests of the community in order to ensure that drivers’ licences are only issued to persons who meet the required standards. Mr Shanks communicated his decision to Mr Alaeddin in the letter dated 23 December 2010. In doing so, he addressed, in writing, the ten matters raised in Mr Alaeddin’s earlier letter.
As a result of the suspension, Mr Alaeddin cannot examine students using Vehicle On Road Tests or Competency Based Training assessments for a 12 month period. He remains a qualified Motor Driving Instructor and is able to teach students to drive. Upon the expiry of the 12 month suspension period, Mr Alaeddin will be able to apply to the Registrar to obtain endorsements again as an examiner.
Mr Alaeddin has come before this Court seeking judicial review of the decision made by Mr Shanks.
A Preliminary Matter
A preliminary matter which is necessary for me to address is to identify the statutory power which provided the Registrar with the ability to suspend Mr Alaeddin’s authorised examiner endorsements on his Motor Driving Instructor licence. However, it is relevant to note at the outset that Mr Alaeddin did not present his case on the basis that there was no statutory provision empowering the Registrar to so suspend.
Further, it is necessary to note that the Registrar’s decision to suspend the authorised examiner endorsements on Mr Alaeddin’s Motor Driving Instructor licence was, in my mind, a decision to suspend Mr Alaeddin’s appointment as an authorised examiner. This is the way the argument proceeded before me.
The Registrar’s submissions
Section 5
The Registrar contended that the definition of “authorised examiner” in section 5 of the Motor Vehicles Act, provided the requisite statutory power. That provision is in the following terms:
authorised examiner means—
(a)     a police officer appointed by the Commissioner of Police for the purpose of conducting practical driving tests; or
(b)     a person appointed by the Registrar for the purpose of conducting practical driving tests; or
(c)     a person appointed by some public authority, and approved by the Registrar, for the purpose of conducting practical driving tests;
[Emphasis added.]
It was argued that the use of “appointed” in the past tense implied that the Registrar had the power to appoint an authorised examiner. It was said that by virtue of section 36 of the Acts Interpretation Act 1915 (SA), the Registrar’s power to appoint authorised examiners includes the power to suspend the appointment. Section 36 is in the following terms:
Words giving power to appoint to any office or position, or to appoint a deputy, will be taken to include power, exercisable at the discretion of the person in whom the power to appoint is vested—
(a)     to suspend or remove any person appointed under that power; or
(b)     to reinstate or reappoint any person so suspended or removed; or
(c)     to appoint some other person, temporarily or permanently, in the place of a person so suspended or removed; or
(d)     to appoint some other person, temporarily or permanently, to the office or position—
(i)where a person previously appointed is, for any reason, unable to carry out the duties of the office or position; or
(ii)     where the office or position is vacant.

The Registrar’s reliance on section 5 to appoint authorised examiners is further illustrated by the following statements in a pro forma instrument of appointment of an authorised examiner:
I, Ron Shanks, the Registrar of Motor Vehicles appointed by the Governor pursuant to section 7 of the Motor Vehicles Act, 1959 (“the Act”) hereby appoint from the date of this Instrument
XXXX
Of XXX SA XXX
as an authorised examiner (“the Examiner”) pursuant to Section 5 of the Act subject to the following conditions:
[Emphasis added.]
Section 79
The Registrar also sought to rely on section 79 as providing for the appointment of authorised examiners. The Registrar submitted that the definition of authorised examiner as provided by section 5 of the Motor Vehicles Act is to be read in conjunction with section 79. It was said that the reference to an examiner in section 79 was a reference to an authorised examiner as defined in section 5 of the Act.
In my view, this argument has no substance. Section 79 provides:
(1)     Subject to this Act, the Registrar may not issue a licence or learner's permit to an applicant who has not held a licence at some time during the period of 5 years immediately preceding the date of the application unless—
(a)the applicant produces to the Registrar a certificate signed by an examiner certifying that the applicant has passed the prescribed theoretical examination conducted by that examiner in the prescribed manner; or
(b)the applicant satisfies the Registrar, by such evidence as the Registrar may require, that—
(i)at some time during the period of 12 months immediately preceding the date of the application the applicant held an interstate learner's permit; or
(ii)at some time during the period of 5 years immediately preceding the date of the application the applicant held an interstate licence; or
(iii)at some time during the period of 5 years immediately preceding the date of the application the applicant held a foreign licence of a type approved by the Registrar by notice in the Gazette.
(1a)   If—
(a)an applicant for a licence or learner's permit has been disqualified from holding or obtaining a licence or learner's permit in this State, or in another State or Territory of the Commonwealth, as a consequence of an offence committed or allegedly committed (whether in this State or elsewhere)—
(i)while the person held a learner's permit or interstate learner's permit (provided the person did not also hold a licence or interstate licence in respect of another class of motor vehicle); or
(ii)after the expiry of such a permit but before obtaining any licence or interstate licence; and
(b)the applicant has not held a learner's permit, licence, interstate learner's permit or interstate licence since the end of the period of disqualification,
the Registrar must not issue a licence or learner's permit to the applicant unless the applicant produces to the Registrar a certificate signed by an examiner certifying that the applicant has, since the end of the period of disqualification, passed the prescribed theoretical examination conducted by that examiner in the prescribed manner.
(2)     Regulations made for the purposes of this section may provide that, for the purposes of this Act, a person will not be regarded as having passed an examination unless the person has answered correctly not less than a prescribed number of questions asked in the examination (but, despite such a regulation, the Registrar may treat a person as not having passed an examination for the purposes of this Act if an incorrect answer has been given to a question dealing with a matter that, in the Registrar's opinion, is of special importance).
(3)     In this section—
examiner means—
(a)a police officer; or
(b)a person appointed by the Registrar as an examiner for the purposes of this section.
[Emphasis added.]
Section 79 refers to “examiner”, but not “authorised examiner”. The examiner referred to in this section is to conduct theoretical tests. Conversely, the authorised examiner referred to in section 5 of the Act is to conduct practical driving tests. This suggests that the difference in language was deliberate.
Consideration of sections 79A and 81A of the Act further support the view that reference to the term examiner in section 79 was not intended to be a reference to an authorised examiner.
In section 81A(1), examiner is defined in the following terms:
In this section—
…
examiner means—
(a) a police officer; or
(b) a person appointed by the Registrar as an examiner for the purposes of conducting a hazard perception test;
Examiner is referred to in section 81A(5) in relation to a person who is conducting a hazard perception test:[3]
[3]    Motor Vehicles Act 1959 (SA), section 81A(5).
(5)Despite subsection (2), the Registrar may issue a P2 licence to an applicant referred to in that subsection but only if—
(a)     the applicant—
(i)    is not an applicant referred to in subsection (2)(d); and
(ii)has, during the period of 5 years immediately preceding the application, held a relevant licence for 12 months or periods totalling 12 months; and
(iii)produces to the Registrar a certificate signed by an examiner certifying that the applicant has, in the manner required by the Registrar, passed a hazard perception test conducted by the examiner; and
(iv)    either—
(A)has not incurred any demerit points before the application in respect of offences committed or allegedly committed during the 12 months or periods totalling 12 months for which the applicant held a relevant licence last occurring before the application; or
(B)produces to the Registrar a certificate signed by the provider of a driver awareness course certifying that the applicant has satisfactorily completed a driver awareness course; or
(b)     the applicant—
(i)has, during the period of 5 years immediately preceding the application, held a relevant licence for 2 years or periods totalling 2 years (excluding, if the applicant is an applicant referred to in subsection (2)(d), any period preceding the period of disqualification); and
(ii)produces to the Registrar a certificate signed by an examiner certifying that the applicant has, in the manner required by the Registrar, passed a hazard perception test conducted by the examiner (which test must, if the applicant is an applicant referred to in subsection (2)(d), have been conducted since the end of the period of disqualification).
[Emphasis added.]
The examiner referred to in section 81A is different to the examiner referred to in section 79. This provides an explanation as to why a definition of examiner is not included in section 5.
Section 79A appears to be the only section in the Act, other than section 5, which uses the term authorised examiner. Section 79A provides:
(1)     Subject to subsection (2), the Registrar must not issue a licence to an applicant who has not held a licence at some time during the period of 5 years immediately preceding the date of the application unless—
(a)     the applicant—
(i)    has held a learner's permit—
(A)    in a case where the applicant is under the age of 25—
•if the applicant has been disqualified from holding or obtaining a licence or learner's permit in this State, or in another State or Territory of the Commonwealth, as a consequence of an offence committed or allegedly committed (whether in this State or elsewhere) while he or she held a learner's permit or interstate learner's permit (provided he or she did not also hold a licence or interstate licence in respect of another class of motor vehicle) or after the expiry of such a permit but before obtaining any licence or interstate licence, and the applicant has not held a licence or interstate licence since the end of the period of disqualification—for a period of at least 15 months or for periods totalling at least 15 months; or
•in any other case—for a continuous period of at least 12 months; or
(B)     in a case where the applicant is aged 25 or over—
•if the applicant has been disqualified from holding or obtaining a licence or learner's permit in this State, or in another State or Territory of the Commonwealth, as a consequence of an offence committed or allegedly committed (whether in this State or elsewhere) while he or she held a learner's permit or interstate learner's permit (provided he or she did not also hold a licence or interstate licence in respect of another class of motor vehicle) or after the expiry of such a permit but before obtaining any licence or interstate licence, and the applicant has not held a licence or interstate licence since the end of the period of disqualification—for a period of at least 9 months or for periods totalling at least 9 months; or
•in any other case—for a continuous period of at least 6 months;
(ii)     produces to the Registrar a logbook that—
(A)    is in a form approved by the Registrar; and
(B)has been completed in accordance with the instructions contained in the logbook so as to verify that the applicant has satisfied the prescribed requirements relating to the applicant's driving experience; and
(iii)produces to the Registrar a certificate signed by an authorised examiner certifying that the applicant has passed a practical driving test conducted by the examiner; or
(b)the applicant satisfies the Registrar by such evidence as the Registrar may require that—
(i)the applicant has at some time during the period of 5 years immediately preceding the date of the application held—
(A)    an interstate licence; or
(B)a foreign licence of a type approved by the Registrar by notice in the Gazette; or
(ii)     the applicant—
(A)     has at some time held a licence issued under this Act, an interstate learner's permit, an interstate licence or a licence issued under the law of some other place outside this State; and
(B)     has obtained satisfactory driving experience.
(2)     The Registrar may dispense with the requirement—
(a)that an applicant must have held a learner's permit for the continuous period referred to in subsection (1)(a)(i)(B) if the Registrar is satisfied that the applicant has held a learner's permit for periods that are sufficient in aggregate; or
(b)that an applicant must have produced a logbook in accordance with subsection (1)(a)(ii) if the application is for a licence of a class prescribed by regulation.
(3)     If—
(a)an applicant for a licence has been disqualified from holding or obtaining a licence or learner's permit in this State, or in another State or Territory of the Commonwealth, as a consequence of an offence committed or allegedly committed (whether in this State or elsewhere)—
(i)while the person held a learner's permit or interstate learner's permit (provided the person did not also hold a licence or interstate licence in respect of another class of motor vehicle); or
(ii)after the expiry of such a permit but before obtaining any licence or interstate licence; and
(b)the applicant has held a licence or interstate licence at some time during the period of 5 years immediately preceding the date of the application but has not held a licence or interstate licence since the end of the period of disqualification,
the Registrar must not issue a licence to the applicant unless—
(c)the applicant has, since the end of the period of disqualification, held a learner's permit for a continuous period of at least 3 months; and
(d)the applicant produces to the Registrar a certificate signed by an authorised examiner certifying that the applicant has, since the end of the period of disqualification, passed a practical driving test conducted by the examiner.
(4)     If—
(a)an applicant for a licence has been disqualified from holding or obtaining a licence or learner's permit in this State, or in another State or Territory of the Commonwealth, as a consequence of an offence committed or allegedly committed (whether in this State or elsewhere)—
(i)while the person held a P1 licence or an interstate provisional licence; or
(ii)after the expiry of such a licence but before obtaining a non provisional licence or interstate non provisional licence; and
(b)the applicant has not held a licence or interstate licence since the end of the period of disqualification,
the Registrar must not issue a licence to the applicant unless the applicant produces to the Registrar a certificate signed by an authorised examiner certifying that the applicant has, since the end of the period of disqualification, passed a practical driving test conducted by the examiner.
[Emphasis added.]
The use of the term authorised examiner in section 79A is in relation to persons who conduct practical driving tests. Admittedly, section 79A does appear to use the terms authorised examiner and examiner interchangeably. However, it is evident from the above analysis that the reference to examiner in section 79A is to an authorised examiner. This contrasts with the references to examiner in sections 79 and 81A, which are to a person who conducts theoretical tests and to a person who conducts hazard perception tests respectively.
What flows from this is that section 79 of the Motor Vehicles Act does not provide the statutory power for the Registrar’s decision to suspend Mr Alaeddin’s appointment. This is of particular concern because the definition section of the Rules Governing the Authorised and Accredited Driving Instructors Scheme provides the following meaning to the term authorised examiner:
‘Authorised Examiner’ means any person who is authorised by the Registrar of Motor Vehicles pursuant to Section 79(3)(b) of the Motor Vehicles Act 1959-1995.
[Original emphasis.]
As section 79(3)(b) does not use the term authorised examiner, rule 1.31 of the Rules Governing the Authorised and Accredited Driving Instructors Scheme, which applies to authorised examiners within the meaning of the Rules, does not appear to apply to Mr Alaeddin. Accordingly, on a strict reading of the Rules, Mr Alaeddin’s appointment as an authorised examiner could not be suspended on the basis that he breached rule 1.31 and, thus, breached his instrument of appointment. However, it is evident that the Rules were intended to apply to Mr Alaeddin because they are referred to in the instrument of appointment and because the Rules, when read as a whole, relate to duties of a person conducting a practical driving test. Accordingly, it would lead to an absurdity to adopt a literal approach to the meaning of authorised examiner as defined in the Rules. In my view, the Rules do apply to Mr Alaeddin.
Regulation 93
During the hearing, the Registrar indicated that regulation 93 of the Motor Vehicles Regulations 2010 (SA) refers to authorised examiners in the context of their appointment. However, the Registrar contended that regulation 93 does not deal with the appointment of authorised examiners in the sense of providing for conditions as to the appointment in terms of competency or anything of the like. Rather, it was contended, that regulation 93 sets out restrictions that may be placed on an authorised examiner for the purposes of conducting tests under section 80 of the Motor Vehicles Act on behalf of the Registrar.
Regulation 93 is in the following terms:
Appointment of authorised examiners
(1) The Registrar may, when appointing a person as an authorised examiner, or at any time by notice in writing to an authorised examiner, impose conditions limiting the kinds of tests that the authorised examiner may conduct as required by the Registrar under section 80 of the Act to assess the ability or fitness of applicants for the issue or renewal of licences and learner's permits.
(2) The Registrar may, for the purpose of testing the proficiency of an applicant for appointment as an authorised examiner, require the applicant to undergo such tests (whether written, oral or practical) as the Registrar considers necessary.
(3) An applicant for appointment as an authorised examiner (other than an employee in the Transport Department) is not entitled to undergo a proficiency test required by the Registrar under subregulation (2) unless he or she has paid the appropriate fees set out in Schedule 1 Part 1.
Mr Alaeddin’s submissions
As mentioned, it was not Mr Alaeddin’s case that the Registrar’s decision to suspend his authorised examiner endorsements on his Motor Driving Instructor licence was ultra vires. However, rather than relying on section 5, 79 or 79A, Mr Alaeddin relied on section 98A of the Motor Vehicles Act as the basis for providing the requisite power to the Registrar.
Section 98A, headed Instructors’ licences, is in the following terms:
(1)    A person who is not the holder of a current motor driving instructor's licence must not, for fee, reward, salary, wages or other remuneration or for any other consideration paid or payable by any person, teach any other person to drive a motor vehicle.
Maximum penalty: $250.
(2)     If the Registrar is satisfied that an applicant for an instructor's licence—
(a)holds an unconditional licence and has, during the period of 5 years immediately preceding the application, held such a licence for 2 years or periods totalling 2 years (excluding, if the applicant has been disqualified from holding or obtaining a licence in this State, or from holding or obtaining an interstate licence in another State or Territory of the Commonwealth, any period preceding the period of disqualification); and
(b)has, during the period of 5 years immediately preceding the application, held a driver's licence in this State or elsewhere for 4 years or periods totalling 4 years (excluding, if the applicant has been disqualified from holding or obtaining such a licence in this State or elsewhere, any period preceding the period of disqualification); and
(c)     is a fit and proper person to hold an instructor's licence; and
(d)     is proficient as a motor driving instructor,
the Registrar must issue to the applicant an instructor's licence in a form determined by the Minister.
(2aa) An instructor's licence may be issued subject to such conditions as the Registrar thinks fit.
(2a)   An application for an instructor's licence must be made in a manner and form determined by the Minister and must be accompanied by the prescribed fee.
(3)     Every instructor's licence will, subject to this Act, remain in force for a period, not exceeding five years, specified on the licence, but nothing in this subsection precludes the issue, subject to this Act, of a further instructor's licence to the holder to take effect upon the expiration of an earlier instructor's licence.
(4)     On surrender of an instructor's licence, the person surrendering the licence is, subject to the regulations, entitled to a refund of a proportion of the licence fee determined in accordance with the regulations.
(5)     In order to test the proficiency of any applicant for an instructor's licence (whether or not the applicant is or has been the holder of such a licence) the Registrar may require the applicant to undergo such tests as the Registrar may think necessary, whether written, oral or practical, and those tests must, without limiting the generality of the foregoing, include examination in traffic laws, driving practices, vehicle manipulation and teaching technique.
(6)     Where the driver's licence of any holder of an instructor's licence is cancelled or suspended or any such holder otherwise ceases to hold a driver's licence, the instructor's licence automatically ceases to have any effect, and where the driver's licence of any such holder is suspended, the instructor's licence, unless cancelled pursuant to the provisions of this Part, is automatically suspended for the same period.
(7)     The Registrar may cancel any instructor's licence or suspend any instructor's licence for such term as the Registrar thinks fit if satisfied that the holder has been guilty of conduct making him or her unfit to hold such a licence.
(8)     Where an instructor's licence is suspended, it has no effect during the term of the suspension.
(9)     The provisions of sections 96, 98AAC, 139BA and 141(1)(a) apply to and in respect of holders of instructor's licences as if the words "instructor's licence" were substituted for the word "licence" wherever it occurs in those sections and that paragraph.
(10)   This section does not apply to—
(a)     a police officer acting in the execution of duty; or
(b)a person who teaches another to drive a motor vehicle if both the teacher and the learner are employed by the same employer and are acting in the ordinary course of their employment.
[Emphasis added.]

Mr Alaeddin submitted that the Registrar’s statutory power flows from section 98A because the instructor’s licence can be issued subject to conditions, and because those conditions have within them a power to suspend. Mr Alaeddin also directed the Court’s attention to subsection 98A(7), indicating that that subsection contains a separate power to suspend. Mr Alaeddin suggested that subsection 98A(7) may be able to be broadened by subsection 98A(2aa).
Consideration
I do not accept that section 98A of the Motor Vehicles Act provides the requisite power to the Registrar, as section 98A deals with Motor Driving Instructor licences. A person holding a Motor Driving Instructor licence is not necessarily an authorised examiner. In the present proceeding, the relevant enquiry concerns the suspension of an authorised examiner.
I turn now to the Registrar’s submissions. Although it is problematic to rely on section 5 of the Motor Vehicles Act as the source of statutory power as section 5 is the interpretation section in the Act, I accept the Registrar’s submission that the definition of authorised examiner in section 5 implies that the Registrar has the power to appoint authorised examiners. The existence of such a power is recognised by regulation 93 of the Motor Vehicles Regulations, which relevantly provide: “[t]he Registrar may, when appointing a person as an authorised examiner…”. In my view, it is implicit that Parliament intended for the Registrar to have a power to appoint authorised examiners. By virtue of section 36 of the Acts Interpretation Act, the power to appoint includes the power to suspend. In addition, it is my view that it is implicit that the power to appoint includes the power to set conditions and deal with necessary and incidental matters to the power of appointment.[4] These matters, in the ordinary course, would deal with conditions of revocation, suspension and variation of the appointment.
[4] In a constitutional context, see Granall v Marrickville MargarinePty Ltd (1955) 93 CLR 55.
Therefore, I am of the view that the suspension of the authorised examiner endorsements on Mr Alaeddin’s Motor Driving Instructor licence was not ultra vires.
Grounds of Appeal
Factors considered by the Registrar
As mentioned, the Registrar communicated his decision to suspend Mr Alaeddin’s authorised examiner endorsements on his Motor Driving Instructor licence by letter dated 23 December 2010. In that letter, the Registrar made the following remarks in response to earlier statements, italicised, made by Mr Alaeddin:
I have in my possession all my relevant information in regards to how I perform on my [Vehicle On Road Tests] and how your department assesses me with audits during this period.
This submission is irrelevant to the Validation Assessment audit process. As you are aware, the process for validating the driving competence of persons exempt from the graduated licence scheme, communicated to you in 2008 and 2009 is a different process from the Vehicle on Road Tests to which you are referring. Further, I have information that your last audit in class car was in 2008, recently you have worked almost exclusively in Heavy Vehicles. Further, your test history shows that you have failed 37% of clients when examining alone, however when a [Department of Transport, Energy and Infrastructure] auditor is in the vehicle, your fail rate increases to 100%. This difference in your fail rate is alarming. I also note that when you have been notified of an upcoming validation assessment, you have often cancelled the event. I regard this as very serious.
…
For this reason I believe that you have to look at ALL the facts in relation to the type of Driving Instructor you are discussing in breach of this appointment.
Correct. I have your file and full history of your examinations. It is on this basis that I am concerned.
Mr Alaeddin argued that these remarks indicated that the Registrar’s decision to suspend was tainted by consideration of material of which Mr Alaeddin had not been given notice and in relation to which Mr Alaeddin had not been given the opportunity to make submissions. Mr Alaeddin was particularly concerned with the Registrar’s consideration of his apparently differing fail rates with and without the presence of a Department of Transport, Energy and Infrastructure auditor. The reference above to the cancellation of validation assessments appears to be a reference to assessment of Mr Alaeddin himself. Mr Alaeddin was also particularly concerned with the Registrar’s conclusion that he regarded these apparent cancellations as very serious as well as the Registrar’s purported consideration of Mr Alaeddin’s file and the full history of his examinations. None of these matters were put to Mr Alaeddin in the letter dated 23 September 2010 and, accordingly, he was never afforded an opportunity, it was said, to answer these allegations.
The Registrar contended that he was only required to disclose information which is “credible, relevant and significant” and that he was only required to disclose enough information to accord with the requirements of procedural fairness.[5] I agree with these contentions. However, contrary to the Registrar’s submission, I do not think that the Registrar’s disclosure in the within matter was sufficient to accord with the principles of procedural fairness.
[5] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 96-100.
Mr Alaeddin was entitled to procedural fairness. In my view, Mr Alaeddin’s concerns were warranted. Although the principles of procedural fairness are flexible, it is well established that Mr Alaeddin must be provided with a reasonable opportunity to present his case. This is observed by Tucker LJ in the following passage in Russell v Duke of Norfolk:[6]
…The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case. …
[Emphasis added.]
[6] Russell v Duke of Norfolk [1949] 1 All ER 109, 118; cited with approval in University of Ceylon v Fernando [1960] 1 WLR 223, 231; Furnell v Whangarei High Schools Board [1973] AC 660, 679; see also Kioa v West (1985) 159 CLR 550, 613.
As can be seen above, in the present proceeding, the Registrar considered information, some of which was adverse to Mr Alaeddin, but did not provide him with an opportunity to make submissions in relation to that information. The comments of Brennan J in Kioa v West are pertinent in this respect:[7]
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v. Government of Malaya; Ridge v. Baldwin per Lord Morris; De Verteuil v. Knaggs. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. …
…
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.
[Footnotes omitted. Emphasis added.]
[7] Kioa v West (1985) 159 CLR 550, 628-629.
In Kioa v West, Brennan J applied those principles and concluded that the failure to give Mr Kioa the opportunity to deal with an allegation which was credible, relevant and damaging to him amounted “to a non-observance of the principles of natural justice”.[8]
[8] Kioa v West (1985) 159 CLR 550, 629.
In the present proceeding, the argument for the need to disclose the additional information complained of by Mr Alaeddin is heightened by virtue of the fact that the Registrar has not only had this information made available to him, but he has also had regard to it. He considered some of the information as “alarming” and “very serious”. The information, comprising Mr Alaeddin’s apparently differing fail rates, the apparent cancellation of his own validation assessment appointments and his file and full history of examinations, was “credible, relevant and significant”. Its disclosure was not impeded by issues of confidentiality and its disclosure would not have caused an administrative overload. Accordingly, procedural fairness required that Mr Alaeddin be given the opportunity to make submissions in relation to the additional information considered by the Registrar and, as that did not occur, Mr Alaeddin was denied his right to observance of the principles of procedural fairness.
Non-disclosure due to confidentiality
The letter dated 23 September 2010, which was sent by the Registrar to Mr Alaeddin, did not disclose the names of the applicants who failed the validation assessment. In that letter, the Registrar indicated that in order to protect confidentiality, the names had not been disclosed. Mr Alaeddin did not request for the Registrar to disclose the names until after the Registrar had communicated his decision to suspend the authorised examiner endorsements on Mr Alaeddin’s Motor Driving Instructor licence.
It was the Registrar’s contention that section 139D of the Motor Vehicles Act permitted the Registrar to disclose the names, but did not require that disclosure. Section 139D prevents the disclosure of confidential information obtained in the administration of the Act unless one of the exceptions set out in subsection 1 applies. Section 139D is in the following terms:
(1)     A person engaged or formerly engaged in the administration of this Act must not divulge or communicate information obtained (whether by that person or otherwise) in the administration of this Act except—
(a)     as required or authorised under this or any other Act; or
(b)with the consent of the person from whom the information was obtained or to whom the information relates; or
(c)     in connection with the administration of this Act; or
(d)to a public authority of any jurisdiction for law enforcement purposes or a prescribed public authority of any jurisdiction; or
(e)     to a court or in connection with any legal proceedings; or
(ea)as may be required by authorised officers for purposes connected with tracing the whereabouts of debtors, or making penalty enforcement orders, under Part 9 of the Criminal Law (Sentencing) Act 1988; or
(f)    in accordance with guidelines prescribed by the regulations.
Maximum penalty: $5 000.
(2)     The Registrar or a person authorised by the Registrar may—
(a)require a person applying for the disclosure of information obtained in the administration of this Act to provide such evidence as the Registrar or authorised person considers necessary to determine the application;
(b)if the Registrar or authorised person thinks fit, require any such evidence to be verified by statutory declaration.
(3)     Information that has been disclosed under subsection (1) for a particular purpose must not be used for any other purpose by—
(a)     the person to whom the information was disclosed; or
(b)any other person who gains access to the information (whether properly or improperly and whether directly or indirectly) as a result of that disclosure.
Maximum penalty: $5 000.
(4)     For the purposes of this section—
(a)a reference to the administration of this Act is to be taken to include a reference to the administration of the Road Traffic Act 1961; and
(b)an approved alcohol interlock provider, and a person engaged in the activities of an approved alcohol interlock provider for the purposes of this Act, are to be taken to be engaged in the administration of this Act.
It is undisputed that the Registrar obtained the names of the applicants who failed the validation assessments whilst engaged in the administration of the Act, as the names were obtained from the applicants’ applications for drivers’ licences pursuant to section 75 and Part 3 of the Motor Vehicles Act.
The Registrar submitted that section 139D is a penal provision that contains exceptions which operate as defences to a breach of the provision, rather than imposing positive duties to act. The Registrar highlighted the difficulties in the operation of the section if it were to be interpreted as imposing an obligation to disclose if an exception applies and as imposing an obligation not to disclose, which is subject to a pecuniary penalty, if an exception does not apply.
The Registrar further submitted, inter alia, that the second reading speech for the Bill which introduced section 139D indicates that the intention behind the Bill was to enact the process which was already occurring within the Department; that is, information was released on a restricted basis only, and the view was that there was no right to information under the Act.
The Registrar also contended that regulation 98(2) of the Motor Vehicles Regulations which provides guidelines for the disclosure of confidential information pursuant to section 139D(1)(f) of the Act, supports the view that the exceptions allowing disclosure of information in section 139D are discretionary rather than mandatory. Regulation 98(2) provides:
Pursuant to section 139D(1)(f) of the Act, confidential information the disclosure of which is not authorised by a preceding paragraph of section 139D(1) may, subject to such conditions as the Registrar thinks fit, be disclosed in accordance with this regulation.
The Registrar supported this argument by emphasising the use of “may” in regulations 98(2) and 98(7).
Conversely, Mr Alaeddin contended that section 139D, or any other principle of privacy, does not operate so as to override the requirement for the Registrar to provide sufficient detail about the applicants who failed the validation assessments in order to allow Mr Alaeddin to make submissions about those applicants and their competency when they were assessed by him. Mr Alaeddin submitted that the names of those applicants should have been disclosed pursuant to section 139D(1)(c) of the Act.
The relevance of the disclosure of the names of the applicants who failed the validation assessment is discussed below, as are my conclusions on this issue.
Inference drawn by the Registrar
In making his decision to suspend the authorised examiner endorsements on Mr Alaeddin’s Motor Driving Instructor licence, the Registrar drew an inference, which he described as an ‘overwhelming inference’, that the applicants who had failed the validation assessment had been certified by Mr Alaeddin as competent to drive when, at the time of the assessment by Mr Alaeddin, those applicants did not demonstrate competency to or above the prescribed standards. It was necessary for the Registrar to draw this inference as the basis of a breach of rule 1.31 and, thus, as the basis of the breach of Mr Alaeddin’s conditions of appointment.
Mr Alaeddin contended that there was no evidence for the Registrar to reasonably consider that Mr Alaeddin had issued a certificate of competency to an applicant who was not assessed in the prescribed manner or who did not demonstrate competency to or above the prescribed standards.
In response, the Registrar submitted that he had evidence which related to the driving abilities of the three applicants who had been issued certificates of competency by Mr Alaeddin, but who subsequently failed the validation assessment and that the evidence available supported the conclusion that Mr Alaeddin had breached rule 1.31 of the Rules Governing the Authorised and Accredited Driving Instructors Scheme. The Registrar submitted that judicial review can only intervene when the decision in question was based on absolutely no evidence or material. The Registrar relied on, inter alia, the High Court decision in Australian Broadcasting Tribunal v Bond[9] for the proposition that even a very small amount of evidence or material which has been used by the decision maker as part of an illogical reasoning process to arrive at the impugned factual finding will survive the no evidence ground of judicial review.[10]
[9] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[10] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356 where Mason CJ observed:
“…So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”
Mr Alaeddin further contended that he had been denied procedural fairness because he was not provided with the names of the applicants who he had tested and who had subsequently failed the validation assessment. Without this information, Mr Alaeddin contended that he could not appropriately address the manner of assessment undertaken by the applicant when assessed by him and the competency of the applicant demonstrated during that assessment. Therefore, it was contended that Mr Alaeddin was unable to appropriately address the ‘overwhelming inference’ that he had certified as competent to drive applicants who did not demonstrate competency to or above the prescribed standards at the time that they were assessed by him.
As mentioned earlier, the Registrar submitted that there was no obligation to disclose the names of the applicants who had failed the validation assessments. The Registrar exercised his discretion not to disclose that information. In any event, the Registrar submitted that the requirement for disclosure in an administrative process only extends to that which is “credible, relevant and significant” to the circumstances of the particular case.[11] It was contended that the information disclosed to Mr Alaeddin, without disclosing the names of the applicants who failed the validation assessment, was sufficient to accord with the requirements of procedural fairness.
[11] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 96-100.
In my view, it is open to draw an inference that if an applicant is a grossly incompetent driver at the time of the validation assessment, then that applicant was not competent to drive to or above the prescribed standards at an earlier date, only days or weeks before, when the applicant’s driving was tested by an authorised examiner. However, whether this inference should be drawn in a particular case requires consideration of the facts and circumstances of that case. Further, I consider the use of ‘overwhelming’ by the Registrar as providing no assistance.
In the present proceeding, Mr Alaeddin required the names of the applicants who he had tested and who subsequently failed the validation assessment so that he could adequately address the inference which was being drawn by the Registrar. Knowing the applicants’ names would have allowed Mr Alaeddin to consider each of their positions and the testing that he conducted of them, and to enable him to present that material to the Registrar to discourage the Registrar from drawing an inference. Accordingly, in my view, failing to provide the names of the applicants to Mr Alaeddin was a breach of procedural fairness.

A number of other arguments were advanced which, in light of my conclusions, I do not propose to address.
Conclusion
The application for judicial review is granted. The decision of Mr Shanks to suspend the authorised examiner endorsements on Mr Alaeddin’s Motor Driving Instructor licence for a period of one year is set aside. The matter is to be remitted for reconsideration. I will hear the parties as to costs.