Cooper v Howard
[2012] TASSC 24
•23 May 2012
[2012] TASSC 24
COURT: SUPREME COURT OF TASMANIA
CITATION: Cooper v Howard [2012] TASSC 24
PARTIES: COOPER, Damian
v
HOWARD, Michael Anthony
FILE NO/S: 1085/2011
JUDGMENT
APPEALED FROM: Cooper v Howard [2011] TASMC 30
DELIVERED ON: 23 May 2012
DELIVERED AT: Hobart
HEARING DATE: 15 March 2012
JUDGMENT OF: Blow J
CATCHWORDS:
Traffic Law – Licensing of drivers – Tasmania – Disqualification, cancellation or suspension of licences – Generally – Suspension – Whether suspension invalid – Direction of Director of Monetary Penalties Enforcement Service – Regulation requiring notification as to action that must be taken to avoid suspension.
Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2010 (Tas), reg33.
Aust Dig Traffic Law [1059]
REPRESENTATION:
Counsel:
Applicant: J Shapiro
Respondent: P Morgan
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2012] TASSC 24
Number of paragraphs: 20
Serial No 24/2012
File No 1085/2011
DAMIAN COOPER v MICHAEL ANTHONY HOWARD
REASONS FOR JUDGMENT BLOW J
24 May 2012
This a motion for the review of an order made by a magistrate, Mr C P Webster, dismissing a charge against the respondent, Michael Howard, of driving whilst his driver licence was under suspension, contrary to the Vehicle and Traffic Act 1999, s9(1).
A police officer saw Mr Howard driving on Gardenia Road at Risdon Vale on 31 December 2010. Mr Howard had some unpaid fines. They had been outstanding for some time. It appears from the material that was before the learned magistrate that, on 12 August 2010, the Director of the Monetary Penalties Enforcement Service ("the MPES") issued an enforcement order in respect of Mr Howard pursuant to the Monetary Penalties Enforcement Act 2005 ("the MPE Act"), Pt5, Div1. As a result, the Director had the power, under s54(1)(a) of that Act, to direct that Mr Howard's driver licence be suspended. It appears that the Director gave such a direction. On 18 November 2010 the Registrar of Motor Vehicles wrote to Mr Howard advising that, because he had not paid an outstanding penalty, his driver licence would be suspended on 1 December 2010.
At the hearing before the learned magistrate, Mr Howard contended that his licence had not been validly or effectively suspended. The learned magistrate held that the licence had not been validly suspended, and therefore dismissed the charge.
The letter from the Registrar of Motor Vehicles to Mr Howard did not contain a statement in accordance with the Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2010 ("the 2010 regulations"), reg33(2)(a). Regulation 33(1) and (2) read as follows:
"(1) If the Registrar decides to vary, suspend or cancel a person's driver licence under this Division, the Registrar must give the person written notice of —
(a)the variation, suspension or cancellation of the licence; and
(b)the reasons for the variation, suspension or cancellation; and
(c)the date on which the variation, suspension or cancellation takes effect.
(2) If the proposed variation, suspension or cancellation is based on a default that is capable of remedy, the Registrar —
(a)must state in the notice —
(i) the action that must be taken by the holder of the driver licence to avoid the variation, suspension or cancellation; and
(ii) the date by which the holder of the licence must take that action; and
(b)if satisfied that the holder of the licence has taken the necessary action by the specified date, must withdraw the notice."
The learned magistrate published written reasons for his decision to dismiss the charge. The concluding paragraphs of those reasons read as follows:
"28 Mr Howard was not advised that he could take any action prior to the suspension to avoid the suspension, and in particular, was not told that if he paid the outstanding fines immediately or by a specified date he could avoid suspension, or that if he contacted the MPES prior to a certain date and reached a satisfactory agreement a suspension may not occur.
29 The wording for the notice implied that irrespective of any action that Mr Howard took his licence would be suspended on 1/12/2010 and only reinstated after that date if satisfactory arrangements had been made after that date.
30 No mention was made of any date prior to which Mr Howard could take action to prevent a suspension of his licence.
31 In my opinion the purported Notice of Suspension was not a compliant notice and therefore Mr Howard was not suspended at the time of his driving.
32 The complaint is dismissed."
Counsel for the applicant submitted to me that the Registrar of Motor Vehicles was not obliged to comply with reg33 in relation to suspensions pursuant to the MPE Act. Counsel for Mr Howard submitted that the Registrar was obliged to comply with that regulation.
As I have said, the MPE Act, 54(1)(a), empowered the Director of the MPES to direct that an enforcement debtor's driver licence be suspended. Section 56(1) required the Director to give the Registrar written notice of such a direction. Section 56(2) required the Registrar, on receipt of such a notification, to "suspend the relevant driver licence until notified by the Director that the suspension has been revoked". At all material times there was nothing in that Act, nor in regulations under that Act, that required anyone to tell the enforcement debtor anything about his or her rights, the suspension of his or her licence, or the date of the commencement of that suspension.
Regulation 32(3) of the 2010 regulations provides as follows:
"(3) The Registrar must suspend or cancel a person's driver licence if required to do so —
(a)by order of an Australian court; or
(b)under a law of Tasmania or another jurisdiction about driving while under the influence of alcohol or other drugs; or
(c)under any other law."
Counsel for Mr Howard submitted to me that, because reg32(2)(c) required the Registrar to suspend a person's driver licence if required to do so under "any other law", it followed that the Registrar's letter of 18 November 2010 was required by reg33(2)(a) to give Mr Howard information as to the action that he had to take if he wished to avoid the suspension. Her reasoning can be summarised as follows:
· The Registrar was required to suspend Mr Howard's licence under the MPE Act, s56(2).
· Section 56(2) was an "other law" as referred to in reg32(3)(c). The Registrar was therefore required by reg32(3) to suspend Mr Howard's licence.
· Regulations 32 and 33 are both in the same Division of the 2010 regulations – Div5 of Pt2. This was a case where the Registrar had decided "to suspend … a person's driver licence under this Division" within the meaning of reg33(1).
· The Registrar was therefore required to give Mr Howard written notice of the suspension, the reasons for it, and the date on which it took effect pursuant to reg33(1).
· Since the suspension was based on a default that was capable of remedy, the Registrar was also required, by reg33(2)(a), to state in the notice the action that must be taken by Mr Howard to avoid the suspension, and the date by which he must take that action.
· Those things were not stated in the relevant notice, ie the letter dated 18 November 2010.
· Because those things were not stated, the purported suspension by the Registrar was invalid and of no effect.
Counsel for the applicant relied on the opening words of reg33(1) – "If the Registrar decides to vary, suspend or cancel a person's driver licence under this Division …". He submitted that when the Registrar is given a direction under s54(1)(a) of the MPE Act to suspend a licence, the Registrar does not decide to do anything, with the result that the provisions in question do not apply. According to his submissions, the Registrar was able to suspend a driver licence pursuant to s56(2) of the MPE Act without notifying the licence holder of anything.
If the submissions of counsel for the applicant are correct, then the situation would have been absurd. A person's driver licence could have been suspended without warning, and without the person's knowledge. Even after the suspension took effect, there would have been no requirement that the person be notified that he or she was no longer entitled to drive. In my view those absurdities should be avoided by interpreting the opening words of reg33(1) in such a way that the act of the Registrar of Motor Vehicles in suspending a licence pursuant to the MPE Act is treated as a decision on the part of the Registrar.
Ever since the Vehicle and Traffic Act was enacted in 1999, it has included the following provisions in s38:
"(1) A driver licensing scheme is to be established under the regulations.
(2) The driver licensing scheme —
(a)is to provide for the issue, duration, variation, expiry, renewal, suspension, cancellation and surrender of driver licences and ancillary certificates; and
…
(3) The driver licensing scheme may provide for the suspension or cancellation of driver licences or ancillary certificates for non-payment of penalties or for other reasons unrelated to the holder's suitability to be the holder of such a licence or certificate."
Regulations establishing a driver licensing scheme pursuant to that Act were originally contained in the Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2000. Regulations 25 and 26 thereof contained provisions identical to regs32(3), 33(1), and 33(2) of the 2010 regulations. Thus, when the MPE Act was passed in 2005, there already existed a legislative scheme governing the suspension of driver licences, not just under the Vehicle and Traffic Act, but also under "any other law". The MPE Act could easily have given the Director of the MPES the power to suspend a driver licence, but instead the role of implementing a suspension was given to the Registrar of Motor Vehicles. In my view that strongly suggests that Parliament intended the pre-existing legislative scheme governing the suspension of driver licences to be applicable to suspensions under the MPE Act.
The MPE Act, s47, requires an enforcement order to state certain things about its consequences. That section reads as follows:
"An enforcement order is to state —
(a)the offences and monetary penalties to which it applies; and
(b)that failure to pay the monetary penalty within the period allowed gives the Director the authority to —
(i) direct the suspension of the enforcement debtor's driver licence, vehicle registration or prescribed licence; and
(ii) proceed to civil enforcement that may include seizure of assets; and
(c)that the enforcement debtor may be imprisoned for failure to pay the monetary penalty; and
(d)that the enforcement procedures referred to in paragraphs (b) and (c) may be undertaken without further notice to the enforcement debtor."
The MPE Act does not require the Director of the MPES to afford an enforcement debtor an opportunity to be heard or make submissions before issuing an enforcement order or directing the suspension of a licence. Under s120, such decisions by the Director are not reviewable under the Judicial Review Act 2000. There is no statutory right of appeal from such decisions. Under ss51 and 52, an enforcement order can be suspended. However s53(1) requires an enforcement debtor, within 28 days of the suspension of an enforcement order, either to apply for the withdrawal of a relevant infringement notice, or to pay the relevant monetary penalty in full, or to apply to the Director for a variation of payment conditions, or to apply to a court under s40 for the setting aside of a conviction or the variation of a penalty. There is no statutory mechanism whereby a decision to direct the suspension of a person's driver licence can be reviewed on the basis that the decision was unfair, unjust or unreasonable. It is clear that the legislation was intended to create a very strict regime for the collection and enforcement of monetary penalties.
A common law obligation to afford procedural fairness attaches to an exercise of public power, subject to any statutory modification or exclusion of the common law in that regard: Kioa v West (1985) 159 CLR 550 at 576 – 584, 632; Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 574 – 575; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 57. In my view it is very likely, given the structure of the MPE Act, that the ordinary common law obligations of procedural fairness were not intended to apply in relation to decisions to issue enforcement orders, and to direct the suspension of driver licences. That is to say, it is unlikely that the Director of the MPES was required to give a licence holder any opportunity to be heard or to make representations before making a decision to issue an enforcement notice, or before making a decision to direct the suspension of a driver licence. But if there were no obligation to notify a licence holder of the suspension of his or her licence, that situation would not promote the purposes of the MPE Act in any way.
Such an absurd result can be avoided by treating a suspension of a driver licence by the Registrar of Motor Vehicles pursuant to the MPE Act as something that the Registrar "decides" to do, for the purposes of reg33 of the 2010 regulations even though, as a matter of law, the Registrar has no choice in the matter. The suspension of a driver licence involves an exercise of statutory power that is usually discretionary. Under the MPE Act, it is the Director, not the Registrar, that has the discretion to suspend. The authors of the regulations seem not to have adverted to the possibility that sometimes, when suspending a licence, the Registrar must do what he is told. When "the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and … it is possible as a matter of construction to repair the defect, then this must be done": Mills v Meeking (1990) 169 CLR 214 per Dawson J (dissenting) at 235; R v Boucher [1995] 1 VR 110 at 123 – 124; Thompson v Judge Byrne (1999) 196 CLR 141 per Gaudron J at 159; Pearce and Geddes, Statutory Interpretation in Australia, 6th ed (2006), par2.9. Such an approach is consistent with a purposive approach to the interpretation of the 2010 regulations, as required by the Acts Interpretation Act 1931, s8A.
Parliament amended the MPE Act, s56, in 2011 to require the Registrar to give a licence holder written notice of the suspension of his or her licence under that Act, and of when the suspension takes effect. Clearly Parliament believed that there was no applicable legislative requirement to that effect. In my respectful view, there was such a requirement since reg33(1) was applicable in such a situation. It has been said that "An Act of Parliament does not alter the law by merely betraying an erroneous opinion of it": Maxwell, Interpretation of Statutes, 6th ed (1920), at 544, cited with approval in Deputy Federal Commissioner of Taxes (South Australia) v Elder's Trustee and Executor Co Ltd (1936) 57 CLR 610 at 625 by Dixon, Evatt and McTiernan JJ.
It follows that the Registrar of Motor Vehicles was obliged to comply with reg33(2)(a) of the 2010 regulations when he notified Mr Howard of the suspension of his licence. That provision says that the Registrar "must" state the required things in the relevant notice. By virtue of the Acts Interpretation Act, s10A(1)(a), the word "must" is to be construed as being mandatory. It follows that, because reg33(2)(a) was not complied with, Mr Howard's licence was not validly suspended.
The motion to review is therefore dismissed.
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