Bukvic v Registrar of Motor Vehicles (No 1) - [2009] SADC 71

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
BUKVIC v REGISTRAR OF MOTOR VEHICLES (No 1)
[2009] SADC 71
Judgment of His Honour Judge Burley
1 July 2009
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - GENERALLY
TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - POWERS AND DUTIES OF REGISTERING AND LICENSING AUTHORITIES
Appeal pursuant to s98ZA of Motor Vehicles Act 1959 - Application for renewal of licence.
Refusal by Registrar to renew licence on the grounds that licence void - Review of Registrar's failure or refusal to deal with application to renew licence requested by appellant - Failure or refusal to conduct review - Appeal from failure or refusal to conduct review - Whether or not Registrar should be directed to proceed with review - Discussion of word "decision" - whether Registrar made a "decision" by holding the view that the licence was void under s75.
Held: Respondent made a decision by failing or implicitly refusing to deal with appellant's application to him for a review - Appeal allowed.
Motor Vehicles Act 1959 s98Z, s98ZA, s75, s98AAD, Regulation 51AA; District Court Act SA s42(B)1, referred to.

BUKVIC v REGISTRAR OF MOTOR VEHICLES (No 1)
[2009] SADC 71

By Notice of Appeal lodged in this Court on 16 April 2009, the appellant sought to appeal from a decision of the respondent pursuant to the provisions of s98Z of the Motor Vehicles Act 1959 (“MVA”). The respondent challenges the competency of the purported appeal and further asserts that even if the appeal is competent, it should be dismissed.
When the Notice of Appeal was lodged, the particulars of the decision complained about were inadequate. On the hearing of the appeal, Mr Tremaine appeared as counsel for the appellant and applied to amend the Notice of Appeal. The amended particulars of the decision appealed against are as follows:
The Deputy Registrar of Motor Vehicles on 3 April 2009 advised that the license S83715 is void and of no effect and implicitly refused to renew the same. The refusal to renew the licence was confirmed after a request for a review by the appellant on 15 May 2009.
Because the refusal to renew took place on 15 May 2009, I gave a direction, without opposition from the respondent that the Notice of Appeal be post‑dated to 20 May 2009.
The orders sought on the appeal are as follows:
1.Pursuant to section 42D(2) of the District Court Act that the determination of driver’s licence number S83715 be stayed pending the outcome of this review.
2.The driver’s licence number S83715 be reinstated upon payment of the appropriate renewal fee.
The application for a stay has not been pursued by the appellant and no more need be said on that topic.
As to the second order sought, it is technically incorrect in that it is not the function of the Court on this appeal to decide whether or not the licence should be “reinstated”, renewed or re‑issued. It was accepted by Mr Tremaine that if the appellant established a competent appeal, the only issue raised by the grounds of appeal was whether or not the respondent should be directed to proceed with an application by the appellant for the renewal of licence S83715 pursuant to s75 MVA.
Counsel for the respondent, Ms Leverenz, took no point that the orders sought were inaccurate and insufficiently stated in the Notice of Appeal.
In order to put the matter into perspective, it is appropriate briefly to refer to the facts and the law relating to appeals pursued pursuant to s98Z MVA.
It is common ground that the appellant has held two licences issued by the respondent, namely licence number S83715 and BH8585. This appeal concerns licence S83715.
Without going into the reasons why one person held two licences, it is sufficient, at this stage, to say that licence S83715, which expired in September 2008, was in the name of George Bukvic, showing a date of birth 6 May 1970, and the other in the name of Dorde Bokvic, disclosing the date of birth 6 July 1968. George Bukvic and Dorde Bokvic are one and the same person.
It is the appellant’s case that by letter forwarded to the respondent on about 9 January 2009 (FDN8D), the appellant made a request to the respondent to renew licence S83715, which had expired in the previous September. The letter was relatively lengthy and a number of matters were covered by the appellant, including what he said was a request for a renewal.
Further correspondence ensued between the parties, but the respondent’s detailed response to the letter of 9 January 2009 is set out in the respondent’s letter of 3 April 2009, a copy of which is attached to the Notice of Appeal and is also exhibited in the affidavits.
During the course of submissions it was submitted by Ms Leverenz that the letter of 3 April 2009 should be characterised merely as a response to various complaints made by the appellant in relation to the Registrar’s requirements as to the issue of a licence to the appellant. In other words, the letter of 9 January 2009 was not a formal request for renewal and the Registrar’s response to same was not a determination of such an application. In my opinion, a perusal of the correspondence, in particular the letters of 9 January 2009 and 3 April 2009 should be characterised in quite a different light. By the letter of 9 January 2009 the appellant was clearly seeking a renewal of licence S83715. He may have been making additional requests of the Registrar, but they did not detract from his clear request for a renewal of the licence. In addition, it is disingenuous to say that the letter of 3 April 2009 should be characterised merely as an attempt on the part of the respondent to deal with various complaints that have been made by the appellant. The fact is that the respondent, in response to the application for renewal of the licence, took the view that the licence was void and could not be renewed.
The Registrar relied on the provisions of s98AAD MVA. That section is as follows:
98AAD - Licence or learner’s permit falsely obtained is void
(1)A licence or learner’s permit that is issued or renewed by the Registrar on the basis of a false or misleading statement of the applicant or false or misleading evidence produced by the applicant is void and of no effect.
Mr Neville asserted in the letter (page 4):
Further, on 8 November 2006 you applied for reissue of this licence (S83715), in a name and with a date of birth you knew to the false....
Pursuant to s98AAD MVA, the provision of a false or misleading statement, that being the statement in your application for issue of a duplicate licence on 8 November 2006 that your name was George Bukvic and your date of birth was 6 May 1970 and the provision of false or misleading evidence on that same date, that being evidence that your name was George Bukvic, date of birth 6 May 1970, means that your licence S83715 is also void and of no effect.
Although the letter of 3 April 2009 referred to the appellant’s request that licence S83715 be re‑issued to him, there was no specific refusal of that request, but it is clear from the letter that there was an implicit refusal to re‑issue the licence to the appellant. This is apparent from the last two paragraphs, which are as follows:
The Register was amended on 3 April 2009 to record that licences BH8585 and S83715 are void and of no effect. As they are void and of no effect you are currently not licensed to drive in South Australia. It is an offence, under s74 of the Motor Vehicles Act to drive a motor vehicle on a road in South Australia if you are not authorised to drive a motor vehicle.
If you apply for a licence in the future, because the licences BH8585 and S83715 are void and of no effect, you will be required to apply for a learner’s permit and progress through the Graduated Licensing Scheme.
On 16 April 2009, the appellant lodged the Notice of Appeal. By letter, dated 1 May 2009, to the respondent, he stated:
Under s98Z I seek a review of the decision to void the above licence.
The licence referred to in the letter is licence S83715. It is common ground that that licence is in the name of “George Bukvic” and discloses a date of birth of 6 May 1970.
The appellant might have sought a review of the respondent’s decision to amend the Register, but that was not the way in which the appeal was argued.
I now turn to s98Z MVA which is as follows:
98Z - Review by Registrar or review committee
(1)A person who is aggrieved by a decision of the Registrar under Part 2, 2A, 3, 3A, 3C or 3D may, within one month of the making of the decision, apply to the Registrar for a review of the decision.
(2)An application for a review must be made in accordance with the regulations.
The relevant regulation is Regulation 51AA which is as follows:
51AA - Application for review under Part 3E of the Act
For the purposes of section 98Z(2) of the Act, an application for a review must‑
(a) be in writing; and
(b) set out the decision to which the application relates; and
(c)set out the grounds on which the applicant seeks the review and the decision sought on the review; and
(d)be accompanied by any information that the applicant considers should be taken into account on the review; and
(e)be accompanied by the appropriate fee prescribed by Schedule 5; and
(f)be lodged with the Registrar.
The respondent took a number of technical points on the question of whether or not the appeal was competent. First, it was submitted that the initial request in the letter of 9 January 2009 was not made in compliance with s75 MVA. Before turning to that section specifically, it is clear that an application for a renewal of an expired licence comes within s75 MVA. This is by virtue s75AAA(8) MVA which provides that the Registrar may renew a licence despite its expiry provided that the application for renewal is made within five years of the expiry.
Section 75 is as follows:
75‑Issue and renewal of licences
(1)Subject to this Act, the Registrar must issue a licence to, or renew the licence of, any person who‑
(aa)   is of or above the age of 16 years and 6 months and is resident in this State; and
(a)     makes a written application for the licence or renewal in a form determined by the Minister; and
(b)     forwards with the application the prescribed fee; and
(c)     has complied with any requirements of the Registrar under section 77B.
(2)     ...
(3)Where an application for the issue or renewal of a licence is not entirely in order or the prescribed fee has not been paid, the Registrar may return the application and any fee paid in respect of the application.
Section 75 MVA does not purport to confine an applicant for a licence renewal to a written application in the appropriate form accompanied by the appropriate fee. The section gives a discretion to the Registrar to return an application which is not in accordance with those requirements. Consequently, it was open to the appellant to apply for the re‑issue (or renewal) of licence S83715 by letter, as he did. Because the application was not in the appropriate form, nor accompanied by the prescribed fee, it was open to the Registrar to return that application to him, but he did not do so. Instead, by letter of 3 April 2009, he referred to, and dealt with the application. The respondent’s view was that the licence was void and (implicitly) that it could and would not be renewed.
The respondent argued in addition that the statement in the Registrar’s letter of 3 April 2009 that licence S83715 was void did not constitute a decision of the Registrar within the meaning of s98Z(1) MVA. If that contention is correct, I accept that whatever occurred after 3 April 2009 could not be characterised as a decision of the Registrar within the meaning of s98ZA(1) MVA which provides for appeals to the District Court. That section is as follows:
98ZA‑Appeal to District Court
(1)A person who is dissatisfied with a decision as confirmed, varied or substituted by the Registrar or the review committee on a review under section 98Z may appeal to the District Court against the decision.
However, if the submission is incorrect, it will be necessary to ascertain whether or not there has been a request for a review by the Registrar pursuant to s98Z followed by a confirmation or variation of or substitution for that decision within the meaning of s98ZA(1) MVA.
I turn now to that question. The word “decision” is not defined in the MVA, but it is (inclusively) in s42B(2) of the District Court Act which is as follows:
(2) In this Subdivision‑
decision includes an act (such as the giving or making of a notice, direction, determination, requirement or order) and a failure or refusal to make a decision or act;
That inclusive definition applies to s98ZA(1) MVA (which confers an appellate jurisdiction on the District Court) by virtue of s42B(1) of the District Court Act. That section is contained within Subdivision 2 of Division 2 of Part 6 of the District Court Act. By virtue of s42B(1), Subdivision 2 is subject to the provisions of the “special Act”, in this case the MVA. There is nothing in the MVA which qualifies the definition of “decision” in s42B(2).
Thus, “decision” includes:
(a)     an act;
(b)     a failure or refusal to make a decision; and
(c)     a failure or refusal to act.
In my opinion, the approach taken by the respondent in the letter dated 3 April 2009 constitutes a failure or refusal to act; the act being to re‑issue or renew licence S83715 as requested in the appellant’s letter delivered on about 9 January 2009. The failure or refusal stemmed from the respondent’s view that the licence was void. As I have said, if he was correct in that view, the appeal must be dismissed. The question becomes, therefore, was he correct?
Before dealing with that question, I mention that Ms Leverenz submitted that I did not have jurisdiction to review that opinion. If the opinion is taken in isolation, she may be correct in that assertion because holding an opinion may not be a decision. However, that does not mean that I am precluded, on this appeal, from determining whether or not the opinion of the respondent that the licence was void is or is not correct. On my characterisation of the events, the formation of the opinion led to the failure or refusal of the respondent to proceed to a determination on the appellant’s application for renewal of licence S83715. That being the case, the correctness or otherwise of the respondent’s opinion as to the applicability of s98AAD MVA necessarily falls for determination on this appeal. To hold otherwise would permit a decision maker, who is subject to the review and appellate structure contained in the MVA, to express an opinion without explicitly proceeding to an actual determination and thereby avoid either a review or an appeal. Such an approach would clearly undermine the review and appellate provisions contained in the MVA.
In arriving at these conclusions I have not overlooked that the definition of “decision” in s42B(2) of the District Court Act may not apply to the use of that word in s98Z MVA. The point was not argued, but for the purposes of this appeal, I am prepared to assume that it does not. This does not detract from the competency of the appeal. The original request, by letter delivered on about 9 January 2009, by the appellant to the respondent for the renewal of licence S83715, was dealt with the by the respondent and his determination was set out in his letter of 3 April 2009. The fact that there was no explicit refusal to proceed with the application for a renewal does not mean that there has not been, implicitly, a refusal or failure to do so. In my opinion, the respondent failed or implicitly refused to deal with the appellant’s application. That failure or refusal may properly be characterised as a decision on the part of the respondent independently of any definition contained in s42B(2) of the District Court Act.
I have not, as yet, dealt with the contention of the respondent that there is no effective application for a renewal of the licence because the prescribed fee was not paid. There are a number of comments which may be made.
The word “prescribed” is defined in s4 of the Acts Interpretation Act 1915 as follows:
prescribed means ‑
(a) when used in an Act‑prescribed by the Act or by a statutory instrument made, or to be made, under the Act; ...
There is nothing in the MVA which prescribes what the fee is for an application under s75. Consequently, if there is a fee, it is to be found in a statutory instrument made under the Act. No evidence has been adduced by either party as to the existence of a statutory instrument made under the MVA prescribing a fee for an application under s75. In the absence of such proof, I can take no heed of an argument based on non‑compliance for failure to pay a prescribed fee. In any event, the Registrar, in the letter of 3 April 2009, took no point about the absence of a fee.
I turn now to the respondent’s contention that the appeal is incompetent because there was no “decision as confirmed, varied or substituted by the Registrar ... on a review under s98Z”. The essential steps preceding an appeal are a decision, a review of that decision and then an appeal from the review. Ms Leverenz argued that there had been no decision that could be reviewed and therefore there could be no decision on a review capable of being the subject of an appeal. In addition, she asserted that even if there had been a decision capable of being reviewed, there had been no request for a review in compliance with Regulation 51AA. The letter of 1 May 2009 (Exhibit A2) requesting a review did not adequately set out the decision to which the application related, nor did it set out the grounds on which the applicant sought a review and the decision sought on review. She also relied on the fact that the appropriate fee had not been paid. In this instance, the fee was prescribed by Schedule 5 of the Regulations, but that was not proved on the appeal, nor did the respondent, when a response was made to the letter of 1 May 2009, take issue with the absence of the prescribed fee.
When, in the letter of 1 May 2009, the appellant sought “a review of the decision to void the above licence”, he was expressing in layman’s terms what he understood to be the situation derived from the letter of 3 April 2009. It was not suggested by Ms Leverenz that this letter of 1 May 2009 prejudiced the respondent by leaving him uncertain as to what the appellant required. In my opinion, there has been sufficient compliance with Regulation 51AA(b).
The appellant has not set out the grounds on which he seeks to review, but it is implicit in his letter of 1 May 2009 that he has asked the Registrar to reconsider the position taken by him in the letter of 3 April 2009 by reference to the information provided by the appellant up to that date. The letter had enclosed with it documents from the Immigration Department and what was referred to as “the reinstatement of the original licence S83715”. Inclusion of these documents with the letter lend support to the view that the letter of 1 May 2009 must be understood as requesting a review on the grounds advanced previously in the letter of 9 January 2009 and the additional documents forwarded with the letter of 1 May 2009. In my opinion, the failure to restate those grounds in the letter of 1 May 2009 does not prevent the letter from being an adequate request for a review.

The final part of the chain of events leading to a competent appeal is the decision appealed against namely, as stated in s98ZA MVA “a decision as confirmed, varied or substituted by the Registrar ... on a review under s98Z”. The respondent’s response to the appellant’s letter of 1 May 2009 must be examined to see whether or not it contains such a decision.
It is contained in the letter from Mr Neville, dated 15 May 2009, a copy of which is Exhibit GB2 to the affidavit of the appellant sworn on 19 June 2009. The relevant parts of the letter are as follows:
Dear Mr Bukvic
I refer to your letter of 1 May 2009 seeking a review under s98Z of the Motor Vehicles Act 1959 (“the Act”) of the Registrar of Motor Vehicles (“the Registrar”) decision to void your South Australian driver’s licence S83715.
The Registrar has not made a decision to void your licence. Your licence was void by operation of law, that is by operation of s98AAD of the Act which states: “a licence or learner’s permit that is issued or renewed on the basis of a false or misleading statement of the applicant or false or misleading evidence produced by the applicant is void and of no effect”.
A full explanation of why your licence is void and of no effect under s98AAD of the Act has already been provided to you in my correspondence of 3 April 2009. As the Registrar has not made a decision for the purposes of s98Z(1) of the Act, there is no power for you to apply to the Registrar for a review under that section. Your application for a review of the Registrar’s decision is, therefore, invalid.
It is apparent from this letter that the Registrar was taking the same view of the application for review that he took to the original application for renewal under s75 MVA. I have already dealt with the question of whether or not the Registrar made a decision coming within s98Z MVA. I have determined this point in favour of the appellant both as to the technical objections that were taken and as to the substance as to the argument advanced by the respondent that he had made no decision by the letter of 3 April 2009 which could be characterised as a decision within s98Z MVA.
As to the question of whether or not there has been a decision as referred to in s98ZA(1) MVA, the letter of 15 May 2009 from Mr Neville to the appellant must be viewed in the same light. Because of the assertion that the licences are void, the respondent has failed or refused to deal with the applicant’s request for a review of the decision contained in the letter of 3 April 2009. As to the technical objections taken to the lack of formality in the request, the result is the same for the same reasons given in relation to the technical objections taken to the want of formality in pursuing the application for a renewal of the licence pursuant to s75 MVA.
The respondent by the letter dated 15 May 2009 (Exhibit GB2) has effectively confirmed his failure or refusal to deal with the appellant’s original application pursuant to s75 MVA to renew licence S83715.
In light of these conclusions both as to the application for renewal of the licence and the application for a review of the decision in relation to that application, the requirements of s98ZA(1) MVA have been made out. In other words, in my opinion, the appeal is competent.
The only remaining matter to be decided is whether or not licence S83715 was void at the time of the application for renewal. As I have said before, if it was void, there was nothing that could be renewed and the approach taken by the respondent was correct. However, if on the facts before him, it was not open to the Registrar to form a view that the licence was void, the appeal should be allowed and a direction should be given that the respondent proceed to a determination of the appellant’s application for a review of the respondent’s failure or refusal to deal with the application for renewal of the licence.
The basis upon which the Registrar formed the view that the licence was void is set out in the letter of 3 April 2009.
Mr Neville, the author of the letter, sets out in some detail his understanding of the information supplied by the appellant in relation to the licences S83715 and BH8585. It is apparent from that letter, and from the evidence adduced by the respondent, that the appellant has provided inconsistent information as to his name and date of birth. I think it is a fair summary to say that the respondent, by Mr Neville, formed the view that the appellant had, prior to April 2009, given false information in relation to both licences as to one or more of the matters of name, date of birth, address, the licence theory test and records relating to hours of driving experience. This list is not exhaustive, but it is sufficient to demonstrate the nature of the respondent’s concerns.
I have set out above (see page 2 [15]) the parts of the letter stating the basis of the respondent’s contention that licence S83715 was void. In summarising the position I use the word “false” to include the concept “false and misleading”.
Mr Neville asserted that the appellant, on 8 November 2006, knowingly provided a false name and date of birth and provided false evidence of those matters. The question on this appeal is - was it open to the respondent to form those views?
The question is confined to matters of name and date of birth in relation to licence S83715, although when the appeal was argued, Ms Leverenz raised the question of whether a false address had been provided on 8 November 2006. In my opinion, the question of whether or not a false address was given does not arise on the appeal because the respondent, in the letter of 3 April 2009, asserted only that a false name and date of birth (and false evidence thereof) were given.
The appellant’s response to the assertions that he had provided a false name and date of birth and false evidence thereof when he applied for a “re‑issue” of licence S83715 on 8 November 2006 was to call his father, Lazo Bukvic, to give evidence of his [the appellant’s] correct name and date of birth. Mr Bukvic stated that his son’s first name was “Dorde”, the Serbian equivalent of “George”. “Dorde” is pronounced in Serbian as “Georgia”. He said that his son had been born on 6 May 1970 which, in Bosnia Herzegovina, was celebrated (by Christians) as St George’s Day. Mr Bukvic said that he had been in Australia since 1986 and that his son was invariably known and referred to as George.
In my opinion, Mr Bukvic was both a truthful and reliable witness. I accept his evidence. It follows that the assertion by Mr Neville that, on 8 November 2006, the appellant knowingly gave a false name and date of birth and false evidence thereof is incorrect.
The fact that the appellant’s first name is “Dorde” does not mean that the use of the name “George” is false or misleading. A translation from one language to another is not a falsity nor does it mislead. It is a common experience in Australia that immigrants from non‑English speaking countries Anglicise their names both officially and informally.
In my opinion, the respondent was wrong in concluding that licence S83715 was void because the factual “state of affairs”, to use Ms Leverenz’s phrase, did not support that conclusion.
If it cannot be said that, for the reasons advanced by the respondent, licence S83715 is void, it follows that the licence is at least capable of being renewed under s75 MVA. That does not mean that, where the respondent is ordered to determine the appellant’s application for a review of the respondent’s “decision” on the appellant’s application to renew licence S83715, he is precluded from determining, if it is lawfully open to him, that the licence is void for reasons different from those stated in the letter of 3 April 2009, or that there is some other lawful reason why the original decision not to renew the licence should be confirmed. For example, the respondent may, if it is lawfully open to him to do so, invoke s84 MVA which enables him to cancel a licence. In addition, there remains the problem of the two licences. Whether licence number BH8585 is valid or void is not for determination on this appeal. If it is not void and its existence is material to the appellant’s application to renew licence S83715, that is a matter for the respondent when he deals with that application.
For the above reasons I propose to make the following orders:
1. Appeal allowed.
2.That the confirmation by the Registrar by letter dated 15 May 2009 of the Registrar’s previous failure or refusal to deal with the appellant’s application to renew licence S83715 be set aside.
3.The Court directs the Registrar to proceed to deal with and determine according to law the appellant’s application to the Registrar pursuant to s98ZA MVA to review his decision not to renew licence S83715.
I will hear the parties as to costs.