Blinco v Speer; Jones v Speer No. Scgrg-98-1230, Scgrg-98-1231 Judgment No. S211
[1999] SASC 211
•21 May 1999
BLINCO v SPEER; JONES v SPEER
[1999] SASC 211
Magistrates Appeal: Civil
MULLIGHAN J There are two applications before the Court for judicial review which raise the same issue for determination and for convenience they have been heard together.
Both of the plaintiffs, Mr Blinco and Mr Jones, were disqualified from holding or obtaining a licence to drive a motor vehicle by order of the Registrar of the Magistrates Court in consequence of not having paid fines imposed by Magistrates. Subsequently each of them was detected by the police driving a motor vehicle and was charged with driving whilst disqualified from holding or obtaining a licence contrary to s91(5) of the Motor Vehicles Act 1959. Each plaintiff seeks an order that the decision of the Registrar applying to him be quashed and certain declarations which are mentioned later.
Mr Blinco was convicted on 6th February 1997 at the Magistrates Court at Elizabeth of a speeding offence which had been detected by a camera and was fined and presumably order to pay costs. As at 14th June 1997 the amount outstanding was $268.00. On that date the Registrar of the Magistrates Court made an order disqualifying Mr Blinco from holding or obtaining a licence to drive a motor vehicle purportedly pursuant to s61A(1) of the Criminal Law (Sentencing) Act 1988 (the “Sentencing Act”)and notified the Registration and Licensing Section of Transport SA accordingly. The Registrar of Motor Vehicles sent a notice to Mr Blinco on 24th June 1997 informing him of the order for disqualification and that it was effective from 12.01 am on 11th July 1997. This notice was sent to Mr Blinco by ordinary post and was received by him.
On 1st August 1994 at the Magistrates Court at Elizabeth, Mr Jones was convicted of driving a motor vehicle on 31st March 1994 whilst there was present in his blood the prescribed concentration of alcohol contrary to s47b of the Road Traffic Act 1961 and whilst he was not the holder of an appropriate licence contrary to s74 of the Motor Vehicles Act 1959. He was fined and ordered to pay costs on both counts. As at 7th January 1995 the amounts due by him remained outstanding and were a total sum of $388. The Registrar of the Magistrates Court followed the same procedure as has been mentioned in relation to Mr Blinco. He made an order disqualifying Mr Jones from holding or obtaining a licence to drive a motor vehicle with respect to each of the outstanding fines and costs on each count and notified the Department accordingly. The Registrar of Motor Vehicles sent a notice to Mr Jones on 17th January 1995 with respect to each order of disqualification by ordinary post which was to take effect from 12.01 am on 3rd February 1995. The notices were received by him.
Before examining the issues raised by these applications, it is necessary to say something about the relevant legislation. In 1992 the Sentencing Act was amended to alter the position where there was default in payment of a pecuniary sum ordered to be paid by a court, which includes fines and costs. Pursuant to s61 of the Sentencing Act, the courts no longer fixed sentences of imprisonment to be served upon default of payment. The term of imprisonment was fixed by legislation. S61A of the Sentencing Act was introduced which permitted disqualification of a driver’s licence during the period of default and set out the procedure to be followed. At all times relevant to the circumstances of Mr Blinco and Mr Jones that provision of the Sentencing Act was as follows:
“61A(1).... Where a person is in default of payment of a pecuniary sum imposed in relation to an offence committed by him or her, being an offence arising out of the use of a motor vehicle, and the default has endured for one month or more, the court may disqualify the person from holding or obtaining a driver’s licence until the pecuniary sum has been fully satisfied.
(2)On receiving notification from the court of a disqualification under this section, the Registrar of Motor Vehicles must cause written notice of the disqualification to be given personally or by post to the person in default.
(2a)Subject to subsection (2b), the prescribed cost of issuing a notice of disqualification under this section will be added to the amount in respect of which the person is in default.
(2b)The appropriate officer may waive payment of the cost of issuing a notice of disqualification in such circumstances as he or she thinks just.
(3)A disqualification under this section takes effect 14 days after notice is given in accordance with subsection (2) unless the sum in default is paid before that time.
(4)The court -
(a).... may, on application by the person in default, revoke the disqualification if the court is satisfied that the sum in default, although not paid in full, has been reduced and that continued disqualification would result in undue hardship to the person; and
(b)must, on the person entering into an undertaking under section 67 to work off the sum in default by community service, revoke the disqualification.
(5)... Nothing in this section prevents the court from taking other proceedings against a person for the enforcement of a pecuniary sum during a period of disqualification imposed under this section in respect of that sum, if the court is of the opinion that it is appropriate to do so.
(6) The court must, on a pecuniary sum in respect of which disqualification under this section has been imposed being fully satisfied (whether by payment, imprisonment, detention or community service) or a disqualification being revoked under subsection (4), notify the Registrar of Motor Vehicles in writing accordingly.
(7)... In this section -
‘driver’s licence’ includes a learner’s permit.”
The offences committed by Mr Blinco and Mr Jones arose out of the use of a motor vehicle and each of them was in default of payment of the pecuniary sum ordered to be paid by them respectively for one month or more. S61A applied to them. It will be seen that this power is expressed in discretionary terms.
It is convenient to mention other provisions of the Sentencing Act. S35 provides that a defendant upon whom a fine has been imposed by a court may apply to the court for an order varying the time or manner of payment of the fine and upon such an application the court may make such order as it thinks appropriate. This section is also expressed in discretionary terms. S61(1) provides that an order for payment of a pecuniary sum is enforceable by imprisonment in default of payment. S67 provides that if payment of a pecuniary sum (not being a levy payable under the Criminal Injuries Compensation Act 1978) would cause “severe” hardship, the person liable to pay the sum may apply for permission to work off the sum, or the balance outstanding, by community service. If the Court is satisfied that the payment would cause severe hardship to the applicant or his dependants, the Court must, within two working days of reaching that decision, refer the application to the Chief Executive Officer of the Department for Corrections. It is unnecessary for present purposes to set out the procedure thereafter as it does not involve the Court. S72 of the Sentencing Act provides, inter alia, that the powers in s35, s61A and s67 are exercisable by “any appropriate officer”. “Appropriate officer” is defined in s3(1) of the Sentencing Act as meaning the Sheriff, a Registrar of the Magistrates Court or the Registrar of the Youth Court. S72(5) of the Sentencing Act provides that subject to rules of court or regulations, where an appropriate officer exercises the powers of a court pursuant to the section in relation to a person and that person is aggrieved by a decision or order made by the appropriate officer, the person may apply to the court for a review of the decision or order and, pursuant to s72(6) upon completion of such a review, the court may confirm the decision or order, quash it and substitute any decision or order that the court thinks should have been made in the first instance and make any ancillary order, including an order as to costs, it thinks fit. It may be seen that these provisions are also expressed in discretionary terms.
It is the contention of the plaintiffs that these, and other provisions, provide that certain functions of the court which can be more expeditiously carried out by an appropriate officer, may be undertaken by that officer but they are none the less functions of the Court. Consequently, considerations of natural justice and procedural fairness require that the person affected by any decision must be informed that a decision or order affecting that person may be made and also that it may be made by an appropriate person so that the right to seek review may be exercised. Neither Mr Blinco nor Mr Jones was aware of the orders made by the Registrar of the Magistrates Court until notified by the Registrar of Motor Vehicles.
At all relevant times regarding both plaintiffs, Mr Speer was the Registrar of the Magistrates Court. His duties included initiating enforcement proceedings for pecuniary penalties under s61A of the Sentencing Act. He was stationed at the Criminal Registry of the Adelaide Magistrates Court and that Registry undertook all cases of enforcement of this nature. According to him the computer system of the Courts Administration Authority is programmed to, and does, produce on a weekly basis a report which sets out information concerning fine defaulters, including the name of the defaulter, the offence or offences of which they have been convicted, the amount of unpaid fines and other pecuniary penalties as at the particular date of the report. The report is limited to defaulters involving offences arising out of the use of a motor vehicle and who have an address in South Australia. It is received each Monday morning. Mr Speer considered each report and looked at each entry. He deleted any persons erroneously included who had committed offences which did not arise out of the use of a motor vehicle or where the amount which remained outstanding was too small to justify the cost of collection. These amounts were written off by him.
Mr Speer, in his affidavit, describes how he discharged his duties. He expressed the opinion that he had sufficient information to make a determination whether or not to enforce payment of the fine by licence disqualification or imprisonment. He said:
“I scan each page of the report and eliminate those matters previously identified. In addition, if the offence committed by the defendant involves driving whilst under disqualification or driving unlicensed and it appears that a further order of disqualification would be ineffectual, I may exercise my discretion to delete those matters also. The effect of those deletions would be that a warrant of commitment would be issued in substitution the following week.”
Having undertaken this task, Mr Speer made the decision to order licence disqualification of those remaining on the list and then informed the Department by electronically transmitting the report for the Registrar of Motor vehicles to give the written notice to the defaulters pursuant to s61A(2) of the Sentencing Act. He says that the transmission of the data was, in effect, his order of disqualification in each case. However, he did endorse the report accordingly and it is probably more accurate to say that it was this endorsement rather than the transmission of the report which constituted his order in each case. He made the order with respect to Mr Blinco on 16th June 1997.
Mr Haig is the Acting Registrar of the Magistrates Court and a successor in that position to Mr Speer. He followed the same procedure as Mr Speer had followed when making orders under s61A. Whilst copies have not been retained by the Court, Mr Haig says that, in accordance with the usual practice and given knowledge respective of the files relating to the plaintiffs, a notice of the pecuniary penalties imposed on the plaintiffs would have been sent to Mr Blinco on 10th February 1997 and to Mr Jones on 4th August 1994 and a reminder notice would have been sent to Mr Blinco on 24th May 1997 and to Mr Jones on 17th December 1994. Pursuant to s60A of the Sentencing Act, the appropriate officer may cause a similar notice to be issued and sent to a defaulter where there has been default in payment for 14 days or more. From records available to him, Mr Haig says that Mr Speer made the order for licence disqualification with respect to Mr Jones on 16th January 1995.
Mr Jones made a payment of $20 towards the amount outstanding on 30th August 1994 but he did not make any further payments. A further sum of $50 was deducted in consequence of Mr Jones having been in detention for one day.
I now mention the procedure adopted by the Department and the Registrar of Motor Vehicles. The evidence of Mr Buss, who is the Supervisor, Information Services in the Department, is that on each Monday the report is received from the State Courts Administration Authority. Licence disqualification notices are then printed and checked and then dispatched to Australia Post where the final processing and posting to the defaulters occurs. From his knowledge of the system and the existing records, Mr Buss is able to say that previously mentioned notices entitled “Fines Enforcement Disqualification Notices” were sent to Mr Blinco and Mr Jones as previously mentioned.
The notices sent to each of the plaintiffs were in identical terms except with respect to the particular details appropriate to them. For ease of expression, I refer to one of the notices. The notice informed him that as a result of his failure to satisfy a Court imposed penalty, the Court had disqualified him from holding or obtaining a driver’s licence pursuant to s61A of the Sentencing Act, and of the time and date from which the disqualification was effective. The notice also informed him that the disqualification was effective unless the penalty was paid or otherwise satisfied before that date and that it remained in force or effect until the Court ordered that it be revoked. The notice disclosed the court which had imposed the pecuniary penalty, details of the offence and the amount outstanding. On the back of the form, there was a page entitled “YOUR RIGHTS - PLEASE READ CAREFULLY”. It is made clear that unless the amount outstanding is paid in full by the final date for payment, which is the date of commencement of the disqualification, he will be disqualified from holding or obtaining a driver’s licence until such time as an order is made that it be restored to him. He was informed of what action he could take. He could pay the amount due in full at any registry of the Magistrates Court, whereupon the order for disqualification will be removed as soon as a receipt is issued for the payment. The location, address and telephone number of each Registry was provided. He was informed that he could make an application at any registry for permission to perform community service instead of paying the amount due and what was involved in making such an application. Also, he was informed that he could apply to any registry for the order for disqualification to be revoked. The body of the notice concluded:
“If you have any enquiries about this matter, you should contact one of the Registries of the Court listed below. If you do nothing, your licence will remain disqualified indefinitely. In due course a warrant for your commitment to a correctional institution for a period of default detention will also be issued and given to the police for action.”
The plaintiffs made various criticisms of these notices as not providing complete information as to what action could be taken by the defaulter. The notice does not mention the option of an application to vary the time or manner of payment of the fine although, in my view, for all practical purposes, the time for making such an application had long since passed. The notice does not inform the plaintiff of the right to apply for a review of the order made by the Registrar of the Magistrates Court. It was submitted that this power of review, contained in ss72 (5) and (6), indicates that the appropriate officer is to act in a judicial manner and, if not, the power of review may be exercised.
The power of the court to disqualify a person from holding or obtaining a licence to drive a motor vehicle is of considerable importance. Driving whilst disqualified is a serious offence punishable by imprisonment. Because the power is exercised without prior notice to the defaulter, it was submitted that the defaulter could not make any representations as to whether the power should be exercised. The Registrar of the Magistrates Court did not inform the defaulter of what he had done and, in particular, that it was the Registrar and not a Magistrate who had made the order. It was left to the Registrar of Motor Vehicles to give the notice. The plaintiffs contend that it is contrary to the rules of natural justice to exercise any judicial function without the person affected being given the opportunity to be heard.
At the forefront of the argument of the plaintiff’s is that the licence to drive a motor vehicle issued pursuant to the Motor Vehicles Act is a right and not a mere privilege. If a person qualifies for such a licence by reason of age and capacity and competence to drive a motor vehicle, the licence will be issued. The point sought to be made is that the order made by the Registrar of the Court of disqualification of licence affects a legal right of each of the plaintiffs and not a mere privilege. Reference was made to Banks v Transport Regulation Board (Victoria) (1968) 119 CLR 222 where it was held that a licence to drive a taxi cab was property or a civil right for the purpose of enabling a party to appeal to the High Court as of right. It was established that such a licence, once issued, could not be revoked except in limited circumstances. It had a substantial monetary value and could be sold and transferred.
The driver’s licences held by the plaintiffs were, of course, entirely different in nature. They had no monetary value. They could not be sold or transferred and they did not, in themselves, enable the holder to engage in trade or business. I do not think they are property in the sense discussed in Banks; see Barwick CJ at pp230-232. In my view the decision in that case does not advance the argument of the plaintiffs.
It was contended that today the use of the motor vehicle is part of daily life and, in many cases, essential to undertaking work. Consequently, a driver’s licence should for that reason be regarded as more than a privilege. An order for disqualification is a matter of considerable importance to the holders of the licences. As the argument developed, it became plain that the plaintiffs contend that there was a denial of natural justice to them at two stages. They argue that if there is going to be an adverse decision by the Registrar of the Court, that fact should be communicated to the defaulter so that he or she may be heard before any decision is made and, secondly, that the defaulter should be informed of the right to have the decision reviewed by the Court. Support for these propositions is said to be found in the well known cases of Banks, FAI Insurances Ltd v Winneke & Ors (1982) 151 CLR 342 and Kioa & Ors v West & Anor (1985) 159 CLR 550 These cases mention the familiar principles of natural justice which apply in appropriate circumstances and include the obligation to hear a person before exercising the power affecting his or her rights. The principles are summarised in FAI Insurances by Mason J at pp360-361 and Aickin J at pp376-377 and Kioa & Ors v West & Anor per Mason J at p582. However, it is clear that the rules of natural justice do not apply if the contrary intention appears in the relevant legislation: see FAI Insurances per Aickin J at p377 and per Brennan J at pp407-408, Kioa & Ors v West & Anor per Mason J at p585 and Annetts & Anor v McCann & Ors (1990) 170 CLR 596 at p598.
In Kioa v West, Mason J accepted that what is appropriate in terms of natural justice depends upon the circumstances of the case which will include the nature of the inquiry, the subject-matter and the rules under which the decision maker is acting: see pp584-585. He went on to say that procedural fairness more aptly conveys the notion of:
“... a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf Salemi (No 2) (1977) 137 CLR at p451, per Jacobs J.”
He went on to say:
“When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplates by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.”
I do not think the principles of natural justice apply to the procedure of licence disqualification by the Registrar of the Magistrates Court for non payment of a pecuniary sum. First of all, a licence to drive a motor vehicle is not the type of licence discussed in the cases where the principles are said to apply. It is not the type of licence discussed in Banks and FAI Insurances which is a “right or interest “relating to personal liberty, status, preservation of livelihood and reputation, as well as proprietary rights and interests”: per Mason J in Kioa & Ors v West & Anor at p582. Secondly, the relevant provisions of the Sentencing Act make it clear that Parliament has excluded their operation when an order of licence disqualification is made under s61A of that Act. Thus far I have not mentioned the provisions of s66(1) and (2) of the Sentencing Act which are as follows:
“66(1)....... The power to issue a warrant of commitment or make an order for community service against a youth under this Division, to disqualify a person from holding or obtaining a driver’s licence or to suspend the registration of a motor vehicle will, unless the court decides otherwise, be exercised without hearing the person in default.
(2)Any other order under this Division may, at the discretion of the court, be made without hearing the person in default and, if so made, must be served on the person personally.”
The Division referred to in this section is, of course, Division 3 which relates to the enforcement of pecuniary sums and includes s61A.
It is clear that the power to disqualify a person from holding or obtaining a licence may be exercised without hearing the person in default which indicates that the rules of natural justice to give notice and the opportunity of being heard are excluded. I do not think it matters if in exercising the power under s61A, the court is acting judicially or administratively.
The disqualification of licence pursuant to s61A is one of the options open to the Court to enforce its own orders as well as the orders of other Courts. It is only to be exercised for that purpose and in the circumstances stipulated. It is not a penalty imposed by the court as punishment for an offence. Furthermore, it is a power available in the context of the other powers which have been mentioned, to extend time, enable payment by instalments, community service in lieu of payment, and the writing off of some part of a pecuniary penalty. In the scheme of things Parliament has included the power to suspend a driver’s licence to operate in future if the pecuniary sum is not paid in the meantime and only for the period whilst it remains unpaid as a means provoking a response from the defaulter. It is obviously recognised that driving a motor vehicle, as has been mentioned, is a part of daily life for many persons and the impending disqualification is seen as an incentive to pay. It is only to operate whilst the default continues, a matter which is made known to the defaulter. These matters are a further indication of legislative intention to exclude the principles of natural justice.
Furthermore, the right of review by the Court of the decision of the appropriate officer pursuant to ss72(5) and (6) of the Sentencing Act suggests that this rule of natural justice is not imported into s61A.
In the context of the plaintiffs there is a matter of fact which establishes that there has been no actual denial of natural justice even if those rules did apply. I have mentioned the notice of pecuniary penalty sent to Mr Jones on 4th August 1994. That notice was sent to him pursuant to s27C of the Summary Procedure Act 1921. It appears that when Mr Jones was originally sentenced he was not present and the matter proceeded ex parte. Consequently, pursuant to s27C(5) of that Act, the Magistrates Court was required to send to him, within seven days, a notice setting out, inter alia, particulars of the conviction and penalty imposed. Pursuant to R14 of the Magistrates Court Rules 1992, that notice had to comply with Form 18 of those Rules. A notice in the prescribed form was sent on 4th August 1994. It informed Mr Jones of the pecuniary sum to be paid by him and also that if the penalty became more than one month overdue for payment, he became liable to imprisonment and further:
“If the penalty has been imposed for an offence that involved the use of a motor vehicle, you may be disqualified from holding or obtaining a driver’s licence until such time as the penalty is paid or otherwise satisfied.”
A similar notice was sent to Mr Blinco on 10th February 1997.
So, both plaintiffs were made aware at an early stage after the respective penalties were imposed, that licence disqualification could occur if there was default in payment.
I have mentioned the reminder notices sent to each of the plaintiffs. S60A(1) of the Sentencing Act provides that where a person has been in default of payment of a pecuniary sum for 14 days or more, the appropriate officer may cause a reminder notice to be issued and sent by post to the defaulter. Such notices were sent to the plaintiff and informed each of them, once again, that if the default continued, he may be disqualified from holding or obtaining a driver’s licence until such time as the penalty is paid or otherwise satisfied. Each of those notices gave information as to the rights which could be exercised, namely, to apply for an extension of time, to satisfy the penalty by community service, and to have the penalty remitted. Also, each notice explained what the plaintiffs should do if they experienced any doubt or difficulty as to what to do.
Mention has been made of the notices sent by the Registrar of Motor Vehicles to the plaintiffs after the respective orders for disqualification were made and the criticisms made of them by the plaintiffs. It is submitted that the plaintiffs have been denied natural justice, or procedural fairness, because they were not informed that an appropriate officer had made the order of disqualification and consequently would have had no reason to appreciate that they had a right to apply for a review of the decision. These notices did inform the plaintiffs of their rights in other respects but were silent about the right to apply for review.
In my view, neither of those matters is indicative of rules of natural justice or procedural fairness applying to the Registrar of the Magistrates Court in these circumstances Having made his decisions and having informed the Registrar of Motor Vehicles accordingly, no further obligation is imposed upon him by s61A, or at all. The obligation on the Registrar of Motor Vehicles is simply to cause the written notice of the disqualification to be given to the defaulter personally or by post: s61A(2). There is no obligation cast upon the Registrar of Motor Vehicles to give any other information to the defaulter although, as has been mentioned, information as to rights of the defaulter is given.
I have been troubled by the omission of the Registrar of Motor Vehicles, in the notice given by him, to inform the defaulter of the right to apply for review given that the notice mentions other rights.
The notice does inform the defaulter to contact one of the Registries of the Magistrates Court if the defaulter has any enquiries but I think the notice tends to be misleading because it mentions certain rights under the heading “YOUR RIGHTS - PLEASE READ CAREFULLY”, but not the important right to apply for review of the order of disqualification.
This omission by the Registrar of Motor Vehicles cannot affect the validity of the order of the Registrar of the Magistrates Court. It is not a reason to import the principles of natural justice into operation of the legislative scheme at an earlier stage. If it has any significance, it is as to the decision of the Registrar of Motor Vehicles to send to the plaintiffs notices in those terms. Initially there was no challenge to the action of the Registrar of Motor Vehicles in these proceedings. He was not a party. However, when this issue was raised, the plaintiffs, without objection of counsel for the defendant who also had instructions to act for the Registrar of Motor Vehicles, applied for, and were granted, leave to amend by adding the Registrar of Motor Vehicles as a party. The claim against him could not be successful. At best for the plaintiffs, this omission by the Registrar of Motor Vehicles could only be categorised as an administrative error. It is not amenable to a declaration in proceedings for judicial review which could afford any tangible benefit to the plaintiffs: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 per Brennan J at pp35-36:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.”
Brennan J went on to discuss a limitation which is described as “Wednesbury unreasonableness”: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223. He said at p36:
“Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 atp249. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”
See also Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at p272.
Furthermore, it is not suggested in any of the cases referred to in argument that the omission to refer to a right to apply for review is a denial of procedural fairness. Reference was made, however, to Crook v Roberts (1990) 53 SASR 236 where Bollen J observed that when licence disqualification occurred under the points demerit scheme, and the Registrar of Motor Vehicles gave notice of the disqualification, neither her nor his agent was obliged to inform the driver of a right of appeal. No authority was referred to in support of that observation but, with respect, the observation appears sound. Reference was also made to Gibson v Ellis (1992) 59 SASR 420 where it was held that although s52 of the Controlled Substances Act 1953 conferred a right upon a suspect to be taken before a Justice of the Peace before being searched, it did not impose any obligation upon the person authorised to conduct the search to inform the suspect of that right. The same view was taken in R v Dean (1981) 26 SASR 437 regarding a similar provision of the Customs Act 1901 (Cth) and in Camilleri v Wilkinson (1983) 35 SASR 270 regarding a similar provision of the Narcotic and Psychotropic Drugs Act 1936. These cases are of assistance in that they acknowledge that persons in authority are not obliged to inform persons of a legal right and omitting to do so does not invalidate the statutory function which they are undertaking. In my view, they support the contention that the Registrar of Motor Vehicles was not obliged to inform the plaintiffs of their rights at law.
In my view, even though the notice of the Registrar of Motor Vehicles is misleading in the sense I have mentioned, it is not defective. It is still compliance by the Registrar of Motor Vehicles of his statutory obligation.
The declarations sought by the plaintiffs are that:
1...... Where the Registrar of the Magistrates Court acts in the capacity of “appropriate officer” and exercises the power under s61A of the Sentencing Act, the person affected by the decision or order must be informed that the powers have been so exercised and advised of the right of that person to apply for review of the decision or order.
2The failure of the Registrar of the Magistrates Court to notify the plaintiffs of that right before the time at which the disqualification is to take effect invalidates the orders of disqualification.
For the reasons given, there is no basis to conclude that the orders of the Registrar of the Magistrates Court disqualifying either plaintiff from holding or obtaining a licence to drive a motor vehicle are invalid. As the principles of natural justice did not apply, the orders and declarations sought must be refused. Also, those principles did not apply to the Registrar of Motor Vehicles in relation to the decision by him to send out the notice in the form selected by him. That decision is not invalid. The order and declarations sort by the plaintiffs regarding the Registrar of Motor Vehicles must be refused.
The respective proceedings of the plaintiffs were commenced out of time. As has been mentioned, the order for disqualification with respect to Mr Blinco was made on 14th July 1997 and with respect to Mr Jones on 16th January 1995. Both plaintiffs made their applications for judicial review on 4th September 1998. Pursuant to R98.06 of the Supreme Court Rules 1987, the proceedings of this nature must be commenced within six months from the date when the grounds for the review first arose. This rule also provides that the proceedings must be made as promptly as possible.
I heard extensive argument for and against the applications for extension of time to bring those applications. The delay has been occasioned for two reasons. First, it was not until the plaintiffs were charged with driving whilst disqualified that the issue of validity of the licence disqualification became immediately relevant to them. It was not until they received legal advice that the issue was brought to their attention which did not occur until early August 1997 in the case of Mr Jones and late October 1997 in the case of Mr Blinco. There were discussions about the issue before a learned Magistrate on 3rd April 1998 when charges of drive disqualified were before the Court.
Despite the substantial delay up until that time, no point about the delay until then is taken by the defendant. However, there was the further substantial delay before the proceedings were instituted. It is because of that delay that the defendant opposes the application for extension of time.
The basis of the substantive application is unusual. I accept that the legal adviser of the plaintiffs had to undertake considerable investigation and retain counsel. I do not propose to set out each step which was taken and the reason for the delay although disclosure has been made. I grant the extension of time to, and including, 20th September 1998 even though I have concluded that there is no merit in the proceedings. I make the order because I am satisfied that the reason for the delay has been satisfactorily explained.
I dismiss the applications for judicial review.
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