Director General of Transport v Moody - [2000] WASCA 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: DIRECTOR GENERAL OF TRANSPORT -v- MOODY [2000] WASCA 235

CORAM: TEMPLEMAN J

HEARD: 27 JULY 2000

DELIVERED : 29 AUGUST 2000

FILE NO/S: SJA 1044 of 2000

BETWEEN: DIRECTOR GENERAL OF TRANSPORT
Appellant
AND
JOHN ALAN SINCLAIR MOODY
Respondent

Catchwords:

Traffic law - Licensing of drivers and offences - Appeal from finding of a Magistrate that an extraordinary driver's licence does not fit within the general difinition of driver's licence under s 5 of the Act and decision not to cancel extraordinary driver's licence after respondent was convicted for driving under the influence of alcohol - Whether there was a right of appeal from Magistrate's decisions - Whether an extraordinary driver's licence is cancelled automatically following conviction for an offence under the Road Traffic Act - Whether an extraordinary driver's licence falls within the definition of a driver's licence for the purposes of different provisions of the Act

Legislation:

Road Traffic Act 1974 (WA), s48, s 75(2a), s76, s77

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr R M Mitchell
Respondent: Mr P G Giudice

Solicitors:

Appellant: State Crown Solicitor
Respondent: G Guidice

Case(s) referred to in judgment(s):

Craig v South Australia (1995) 184 CLR 163
Re Bennett-Borlase SM; Ex parte the Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997
Road Traffic Authority v Copley, unreported; FCt SCt of WA; Library No 2733; 23 October 1997
Warren v Coombes (1979) 142 CLR 531

Case(s) also cited:

Commissioner of Police v Batty (1990) 11 MVR 246
Commissioner of Police v Plumb, unreported; SCt of WA (Pidgeon J); Library No 6606; 20 September 1985
Creed v Dudley p1984] WAR 344
House v The King (1936) 55 CLR 499
Marshall v Llewellyn (1995) 79 A Crim R 49
Nabanardi v Minner (1992) 62 A Crim R 325
Power v Jasharovski (1994) 19 MVR 337

TEMPLEMAN J:

Background

On 31 May 1996 in the Carnarvon Court of Petty Sessions, the respondent, who was then under permanent disqualification from holding a driver's licence, was granted an extraordinary driver's licence pursuant to s 76 of the Road Traffic Act 1974.
On 19 March 1999, the respondent was convicted in the same Court of Petty Sessions of driving under the influence of alcohol and of contravening the conditions imposed by the extraordinary licence. He was sentenced to 12 months imprisonment (suspended for two years) and again disqualified permanently from holding or obtaining a driver's licence. However, the court declined to cancel the respondent's extraordinary licence. Having regard to certain special circumstances, the court was of the view that a fine would be an adequate punishment for the offence.
I am told by counsel for the respondent that in August 1999 the respondent was charged with driving without a valid driver's licence. I understand this charge to have been brought on the basis that the disqualification which had been imposed on the respondent in March 1999 had the effect of revoking his extraordinary licence.
I am told that the charge was dismissed because the court held that the disqualification had not affected the respondent's right to hold the extraordinary licence which had been granted to him in 1996 and which the court had declined to cancel in March 1999.
I emphasise that these are not matters of evidence. However, I received the information without objection by counsel for the appellant, the Director General of Transport.
On 14 October 1999 the Director General sent the respondent a notice of suspension of his extraordinary licence pursuant to s 48(1) of the Road Traffic Act. The grounds relied upon were those available to the Director General pursuant to pars (b) and (e) of the subsection. The notice, which was under the hand of the Executive Director of the Licensing Division of the Department of Transport, stated he had reason to believe that:
"(b)You are addicted to alcohol or drugs to such an extent as to render you a danger to the public when in control of a motor vehicle on a road.
…
(e)You should not, by reason of the number and nature of your convictions for offences against the Road Traffic Act and Regulations, be the holder of an Extraordinary driver's license."
The notice informed the respondent of his right to apply by way of complaint to a Court of Petty Sessions for a review of the decision.
The respondent did apply for a review: by way of complaint dated 10 December 1999.
In the meantime, on 19 November 1999, the Director General had himself made an application to the court pursuant to s 76(7)(b) of the Road Traffic Act, for cancellation of the respondent's extraordinary licence.
The grounds on which the Director General relied referred to the fact that the respondent had been disqualified for driving for life on 24 September 1977 and that the extraordinary licence which had been issued to him on 31 May 1996 was his third such licence. Further, his conviction on 19 March 1999 was his ninth conviction of driving under the influence of alcohol. In the circumstances, the Director General considered that the respondent:
1.was addicted to alcohol to such extent as to render him a danger to the public when in control of a motor vehicle; and
2.should not by the nature of the conviction incurred since the granting of the licence be the holder of a driver's licence.
Both applications were heard by a Stipendiary Magistrate in the Carnarvon Court of Petty Sessions on 3 February 2000. The learned Magistrate reserved his decision and then published written reasons in which he held that the provisions relating to extraordinary licences, which are contained within s 76 and s 77 of the Road Traffic Act, are in the nature of a code. That being so, the Magistrate held, an extraordinary licence did not fall within the definition of "driver's licence" in s 5 of the Road Traffic Act, with the result that the Director General's power to suspend a driver's licence had no application to an extraordinary licence. Hence, the Magistrate concluded, the respondent must succeed in his application for review of the Director General's decision to suspend his licence.
In dealing with the Director General's application the Magistrate noted that he had not called evidence, but had invited the court to infer from the respondent's record that he was addicted to alcohol to such an extent as to render him a danger to the public.
However, the respondent had given evidence that he was not addicted: and that since his court appearance in March 1999, he had consumed alcohol only in moderation.
Furthermore, the respondent's evidence was that the two offences which he had committed since the grant of his current extraordinary licence (namely driving under the influence of alcohol and contravening the conditions of his extraordinary licence) were in the nature of an aberration, after almost three years of uneventful driving.
In these circumstances, the Magistrate was not persuaded that the respondent was addicted to alcohol; nor that the number and nature of his relevant convictions were capable of establishing, on the balance of probabilities, that the respondent was such a risk to the safety of the public as to require his extraordinary licence to be cancelled or suspended.
For those reasons, the Magistrate concluded that the Director General's application should be dismissed and that the respondent's application for review should succeed on the merits in any event.

The appeal

The Director General was granted leave to appeal from the Magistrate's decision. The grounds of appeal raised the questions whether the Magistrate had erred in holding that an extraordinary licence did not fall within the definition of "driver's licence" as defined in s 5 of the Road Traffic Act: and whether the Magistrate erred in holding that the number and nature of the respondent's convictions did not warrant its cancellation or suspension.
The Director General has now raised two threshold questions. The first is whether an appeal is competent in the circumstances: the second is whether the Magistrate ought to have decided that he had no jurisdiction to entertain either application.
I deal with each of these questions in turn.

The first threshold question: was there a right of appeal from the Magistrate's decisions?

The appellate jurisdiction of the Supreme Court is contained in s 184 of the Justices Act 1902 which provides that, subject to any other Act, an appeal lies to the Supreme Court by leave, from "a decision of Justices".
By s 4 of the Justices Act, "decision" is defined to mean (unless the context requires otherwise):
"(a)a conviction or a finding whether made following a plea of guilty or an admission of the truth of any matter or following trial;
(c)the dismissal of a complaint;
(d)any other final determination of a proceeding …."
By s 42, a proceeding before Justices is to be commenced by a complaint unless provided otherwise. In the present case, the review of the Director General's decision to suspend the respondent's extraordinary licence was initiated by a complaint, as required by s 48(4) of the Road Traffic Act.
It follows that the Magistrate's decision on the application for a review was a final determination of "a proceeding". This, being a decision within the meaning of s 184 of the Justices Act, was properly the subject of an appeal to this Court.
In relation to the application for cancellation of the extraordinary licence, the Director General has raised the question whether the application was in the nature of an administrative appeal such as that considered in Re Bennett-Borlase SM; Ex parte the Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997. There, the Full Court was concerned with an application for a writ of certiorari sought for the purpose of quashing the decision of a Stipendiary Magistrate to grant a firearms licence to a person who had been refused such a licence by the Commissioner of Police.
Parker J, with whom the other members of the court agreed, held, (applying Craig v South Australia (1995) 184 CLR 163, 176 ‑ 177) that when exercising the special jurisdiction conferred on her by s 22 of the Firearms Act, the Magistrate was properly categorised as an anomalous court or tribunal which, for the purpose of applying the principles of jurisdictional error, could be regarded as exercising governmental powers. Thus, a writ of certiorari would lie.
In a sense, the jurisdiction to cancel an extraordinary licence has an administrative character. Having made the decision to grant an extraordinary licence, the court is called upon to review that decision in the light of circumstances which will have changed in the intervening period.
However, the question is not whether the jurisdiction is administrative, but whether the decision made on such an application is a "decision of Justices" from which an appeal lies to the Supreme Court pursuant to s 184(1) of the Justices Act.
As I have noted above, the term "decision" is defined in several ways in s 4 of the Justices Act.
It was submitted by counsel for the Director General that for present purposes, the decision of the Magistrate fell within par (a) of the definition because it involved "… a finding … following trial". Counsel submitted that the application proceeded on an adversarial basis. Witnesses were be called to give evidence, and were cross‑examined. Submissions were then made. Thus, counsel submitted, the proceedings were, in substance, a trial as that expression is commonly understood.
While I see the force of that submission, I do not accept it. In my view, the meaning given to the term "decision" in the context of par (a) of the definition involves a finding made in the course of criminal proceedings.
More appropriate, I think, is par (d): "any other final determination of a proceeding".
As I have noted above, s 42 of the Justices Act provides that: "unless otherwise provided" proceedings before Justices are to be commenced by a complaint. In the present case, s 76(10)(b) of the Road Traffic Act does provide for proceedings for the cancellation of an extraordinary licence to be commenced otherwise than by a complaint: namely in accordance with regulations made under the Justices Act. Those are the Justices Act (Extraordinary Licences) Regulations 1972. Regulation 4(4) requires an application to be made in the prescribed form.
That being so, I conclude that an application for the cancellation of an extraordinary licence is "a proceeding" from the final determination of which, an appeal lies to this Court.
I do not regard that conclusion as inconsistent with the decision of the Full Court in Re Bennett-Borlase, where there was only an application for a writ of certiorari. The Full Court was not required to consider, and did not consider, whether an appeal would lie to the Supreme Court pursuant to s 184 of the Justices Act.

The second threshold question: was the extraordinary licence cancelled automatically on 19 March 1999?

It is submitted by counsel for the Director General, that on 19 March 1999, when the respondent was convicted of driving under the influence of alcohol and disqualified permanently from holding or obtaining a driver's licence, the extraordinary licence which he then held was cancelled automatically. This, it is submitted, is the result of s 75(2a) of the Road Traffic Act which provides relevantly:
"Where a person is disqualified from holding or obtaining a driver's licence upon being convicted of a prescribed offence … and that person has previously been convicted of a prescribed offence any driver's licence … held by that person shall by force of this section be cancelled." (My emphasis)
It is common ground that the respondent was a person to whom that provision applied. The issue is whether the provision is intended to effect the cancellation of an extraordinary licence. In short, whether an extraordinary licence is a driver's licence, for this purpose.
Counsel submits that if the respondent's extraordinary licence was cancelled automatically on 19 March 1999, the Director General's subsequent notice of suspension was a nullity: as were the proceedings to review that decision and the Director General's own application to cancel the extraordinary licence.
However, as counsel for the respondent pointed out, this matter was not raised before the Magistrate. It was raised only in August 1999 when the respondent was charged with driving without a licence. The basis for that charge could only have been that the extraordinary licence had been cancelled by the automatic disqualification following the respondent's conviction in March 1999.
I am told that the learned Magistrate who dealt with the matter in August 1999 concluded that the charge should be dismissed because the respondent had an extraordinary licence. That being so, the Magistrate must have considered the very question which is now sought to be raised: and decided it adversely to the Director General. However there was no appeal from that decision.
In these circumstances, counsel for the respondent submits, this question does not fall to be considered in this appeal and cannot be considered.
Faced with that submission, counsel for the Director General sought leave to add an additional ground of appeal in the following terms:
"The learned Magistrate erred in failing to find that the extraordinary driver's licence issued on 31 May 1996 had not been cancelled automatically on 19 March 1999, pursuant to section 75(2a) of the Road Traffic Act 1974."
I granted leave because counsel for the respondent accepted that this ground raised a question of some importance.
It may be thought odd that when a point is not taken before a Magistrate and is therefore not considered by him, his disposition of the matter can be regarded as involving a decision on that point. However the submission underlying the new ground is, in substance, that the Magistrate acted without jurisdiction. That is one of the grounds on which an application for leave to appeal may be made, pursuant to s 186 of the Justices Act.
It follows, in my view, that since the Director General was entitled to appeal from both decisions made by the Magistrate, he may raise the question of jurisdiction at this stage.
In any event, s 186(1)(b) permits an application for leave to appeal to be made if there is "some other reason that is sufficient to justify a review of the decision".
There is such a reason in the present case: namely the need to clarify an important issue. I am told there is a widely held view among the Magistracy that s 75(2a) of the Road Traffic Act does not effect the cancellation of an extraordinary licence.
In these circumstances, the new ground does, I think, raise a matter which it is within my jurisdiction to resolve.
It will be convenient to deal with the matter together with the first substantive ground of appeal, because both grounds raise a similar question of construction: whether an extraordinary licence falls within the definition of a driver's licence, for the purposes of different provisions of the Road Traffic Act.

Is an extraordinary licence a driver's licence for the purposes of s 48(1) or s 75(2a) of the Road Traffic Act?

By s 5(1) of the Road Traffic Act "driver's licence" means, unless the contrary intention appears:
"A licence issued under this Act authorising a person to drive a motor vehicle of the claim or classes therein specified, on a road".
On a literal interpretation, therefore, an extraordinary licence is a driver's licence because it authorises a person to drive a motor vehicle on a road.
Section 48(1) provides:
"The Director General may refuse to issue a driver's licence,
or may cancel, suspend or refuse to renew a driver's licence,
where the Director General has reason to believe …." (My emphasis)
Clearly, the Director General could not refuse to issue an extraordinary driver's licence if directed by the court to do so, pursuant to s 76(3). Thus, the first reference to driver's licence in s 48(1) cannot include an extraordinary licence.
It must follow further that if the Director General has power to cancel or suspend an extraordinary licence, the second reference to driver's licence in subs 48(1) must be taken to include an extraordinary licence, whereas the first reference excludes such a licence.
Furthermore, if that were the correct construction, then the Director General, having issued an extraordinary licence in compliance with a direction of the court under s 76(3), could immediately suspend it.
I accept counsel's submission that the Director General could not act arbitrarily or capriciously in the exercise of his statutory power. However, even without such considerations, it seems to me that a construction which prevents the Director General from refusing to issue an extraordinary licence while at the same time permitting him to cancel or suspend such a licence is somewhat unsatisfactory.
It was submitted by counsel for the Director General that if there was no power to suspend an extraordinary licence, the Director General would be unable to perform his proper statutory function if, for example, it came to his attention that the holder of such a licence had become incapable of controlling a motor vehicle, perhaps as a result of some acute medical condition. In those circumstances, counsel submitted, it would be desirable for the Director General to be able to act promptly to suspend the extraordinary licence.
While I see the force in this argument, it does not, I think, overcome the fundamental difficulty to which I have referred above. If a situation of that kind did arise, it would be open to the Director General to make prompt application to the court pursuant to s 76(7)(b) for the purpose of varying the limitations and conditions to which the extraordinary licence was subject, or for its cancellation.

That provision, in my view, illustrates the overriding principle that the grant and subsequent variation or cancellation of extraordinary licences is a matter for the court. This, I think, is because the grant of an extraordinary licence is not merely an administrative matter. An application for an extraordinary licence can only be made by a person who had already been disqualified from holding or obtaining a driver's licence. The applicant must demonstrate that there are special circumstances which qualify him for that special privilege.
Since the discretion to grant an extraordinary licence is vested in the court, it seems wholly appropriate that a decision to suspend or cancel an extraordinary licence should also be vested in the court.
I therefore conclude that the second reference to driver's licence in s 48(1) is also inapplicable to extraordinary licences. Thus the Magistrate was correct in holding that the Director General had no power to issue the notice on 14 October 1999 whereby he purported to suspend the respondent's extraordinary licence.
The learned Magistrate came to the conclusion, in his consideration of s 48 of the Road Traffic Act, that the law relating to extraordinary licences is codified in s 76 and s 77 of that Act.
If the code argument is correct, then s 75(2a) would not apply to an extraordinary licence.
This would be a somewhat odd result. It would mean that the holder of an extraordinary licence who, ipso facto, has already been disqualified from holding or obtaining an driver's licence, would not suffer cancellation of his extraordinary licence upon further disqualification: whereas a person who had not been disqualified previously would suffer the immediate cancellation of his licence. Furthermore, such a person would be required to wait for the expiration of the period prescribed by s 76(1a) before he could make application for an extraordinary licence.
However, in my view, that is not the correct construction. I consider that s 75(2a) does effect the automatic cancellation of any driver's licence, including an extraordinary licence. I take that view because of subs 75(3) which provides that:
"A driver's licence (other than an extraordinary licence under section 76) or a permit under section 48C obtained by any person who is disqualified from holding or obtaining a driver's licence shall be of no effect."
The mischief to which s 75(3) is directed, is the fraudulent acquisition of a driver's licence by a person who has been disqualified: that is, as a result of an application made after the disqualification has taken effect. Section 75(3) provides that if such a person did obtain a licence in those circumstances, it would be of no effect. Hence the exclusion of extraordinary licences from this provision. If there were no such exclusion, then an extraordinary licence granted by the court would be of no effect.
If an extraordinary licence was not subject to automatic cancellation under s 75(2a), there would be no necessity for a further application to be made under s 76. That is because the extraordinary licence would continue, unless cancelled by the court under s 77.
That being so, I conclude that for the purposes of s 75(2a) the term "driver's licence" does include an extraordinary licence.
It follows that on 19 March 1999, when the respondent was convicted of driving under the influence of alcohol and permanently disqualified from holding or obtaining a driver's licence, his extraordinary licence was cancelled automatically.
I shall consider, below, the implications of that conclusion both for the disposition of this appeal and for the respondent.
I have reached these conclusions without reference to authority: there apparently being none in point. However, the Director General relies on a decision of the Full Court in Road Traffic Authority v Copley, unreported; FCt SCt of WA; Library No 2733; 23 October 1997.
The respondent, Mr Copley had been granted an extraordinary licence following his disqualification from holding an ordinary driver's licence. Shortly after the extraordinary licence was granted, the Road Traffic Authority served a notice of suspension of Mr Copley's original driver's licence, pursuant to s 103. The notice was based on accumulated demerit points.
In response to the notice, Mr Copley attended at the office of the Authority and surrendered his extraordinary licence. He had already surrendered his original licence on his conviction. He then immediately applied to the Court of Petty Sessions for an order "extending" the extraordinary licence.
Mr Copley's application was opposed by the Authority on the basis that an extraordinary licence was merely an extension of the original driver's licence, which had been suspended by the notice. That being so, it was submitted, the court had no jurisdiction to extend the extraordinary licence.
The court held that although by virtue of s 42(2) of the Road Traffic Act the Authority had a discretion whether or not to issue a driver's licence, an extraordinary licence could be issued only as a result of a court order: and could only be extinguished in the same way.
By parity of reasoning the court held that s 103 was inapplicable to extraordinary licences.
Thus, the court concluded, the action of the Authority in purporting to suspend Mr Copley's extraordinary licence had been unlawful. The court ordered that the licence be returned and extended for the balance of the term of the disqualification.
The Authority appealed on the question whether an extraordinary licence was a driver's licence for the purposes of s 103 of the Road Traffic Act. Mr Copley was not represented on the appeal.
In the Full Court, Lavan SPJ noted that the Authority had no express power in s 76 of the Road Traffic Act to cancel an extraordinary licence. However, he held that "the legislative intention as reflected in each provision was that the term 'extraordinary licence' was mutatis mutandis, synonymous with 'driver's licence'."
Lavan SPJ appears to have reached that conclusion on the basis that if an extraordinary licence was not included within the definition of driver's licence, then the holder of an extraordinary licence who was called upon to produce his driver's licence to a police officer, would be unable to do so, and would therefore commit an offence. The relevant provision was then s 52(2): it is now s 53(2).
Brinsden J held that Mr Copley's application for extension of his extraordinary licence had been misconceived, there being no provision in the Road Traffic Act which empowered the court to extend the period of an extraordinary licence. However, Brinsden J went on to review various provisions of the Road Traffic Act, from which he concluded that there was no significant difference between a driver's licence and an extraordinary licence "which compels one to consider them as altogether different things". Having regard to the definition of "driver's licence" which was to apply unless the contrary intention appeared, his Honour said:
"It is not necessary to go through every section except to say that some do and some do not include in my view extraordinary driver's licence within the phrase 'driver's licence'."
Although Brinsden J did not consider s 75 (or its then current equivalent) he held that an extraordinary licence was a driver's licence for the purpose of s 103 of the Road Traffic Act. His Honour took this view because, if that were not so, a person who incurred demerit points while holding an extraordinary licence would not be disqualified from holding a driver's licence, whereas a person holding an ordinary driver's licence would suffer disqualification in the same circumstances. This is analogous to the view I have reached in relation to the operation of s 75(2a).
The other member of the court, Jones J, decided to the contrary. He was of the view that the Magistrate had been correct in holding that an extraordinary licence, having been granted by the court, could only be cancelled by a court, not by the Authority or by force of the Act.
It will therefore be apparent that the decision in Copley is of limited use. It is not directly in point, and it reflects a divergence of judicial views. At least the reasons of Brinsden J support the conclusion which I have reached.

The appeal on the merits

Given my conclusions thus far, it is not necessary to deal with the merits of either the respondent's application to review the Director General's suspension of his extraordinary licence or the Director General's application to have the licence cancelled. However, if I was wrong thus far, I would dismiss the appeal on the merits because I am not persuaded that the Magistrate erred.
As I have noted above, the Director General called no evidence: he relied solely on the number and nature of the respondent's convictions from which, it was submitted, an inference should be drawn that the respondent was addicted to alcohol to such an extent as to render him a danger to the public when in control of a motor vehicle on the road.
The respondent did give evidence. Having considered the evidence, I am satisfied that the Magistrate was entitled to say of it, as he did, that it depicted:
"An industrious person who works long hours in the open air and partakes of mid‑strength beer in moderation, at home after work."
Having regard to s 76(9)(b)(v), only the number and nature of the respondent's convictions for offences committed after the grant of the extraordinary licence could be taken into account on the Director General's application. There were two such matters, both arising out of the same incident on 19 March 1999. The respondent had contravened the conditions of the extraordinary licence by driving other than in the course of his employment: and he had driven while under the influence of alcohol.
The Magistrate concluded that the number and nature of these convictions were not of themselves capable of establishing, on the balance of probabilities, that the respondent was such a risk to the safety of the public that his extraordinary licence should be cancelled.
In my view, the Magistrate directed himself correctly in relation to that issue and made a finding which was open to him on the evidence.
In relation to the respondent's application to review the Director General's decision to suspend his extraordinary licence, different considerations applied. There, it was open to the Director General to rely on all of the respondent's convictions. These were put before the Magistrate and set out by him in his reasons. It was, as the Magistrate said, undoubtedly a bad record. Between 1971 and 1999 the respondent had been convicted of some 17 contraventions of the Road Traffic Act. A lifetime disqualification from holding a driver's licence had been imposed upon the respondent on four occasions. Two previous extraordinary licences which had been issued to him in 1978 and 1985 had been cancelled.
The Magistrate took account of these matters. He held that:
"While the number and nature of [the respondent's] convictions may demonstrate that at various times in the past his presence behind the wheel could have been regarded as a risk to the safety of the public, regard to the more recent portion of his track record would suggest that the risk has diminished."
Again, in my view, that was a finding which it was open to the Magistrate to make on the totality of the evidence before him.
It was submitted by counsel for the Director General that the Magistrate's decision is based on the inferences he drew from the evidence to the effect that the respondent did not represent a risk to public safety. That being so, it is submitted, although I should give respect and weight to the Magistrate's conclusions, I should decide for myself what inferences may properly be drawn from the evidence: Warren v Coombes (1979) 142 CLR 531.
While I accept that submission, it does not, in my view, advance the Director General's case. That is because the Magistrate did not base his decision solely on the respondent's record. He took into account the respondent's evidence and must therefore have formed an impression of the respondent in a way which is impossible on appeal. That being so, I do not accept that the Magistrate's decision was based simply on the inferences which he drew from primary facts.
For these reasons, if it were necessary for me to decide the appeal on the merits, I would uphold the learned Magistrate's decisions.

The result of the appeal

My primary conclusion is that the respondent's extraordinary driver's licence was cancelled automatically, by operation of s 75(2a) of the Road Traffic Act, when he was convicted on 19 March 1999.
That being so, there was no licence in existence for the Director General to suspend, even if he had power to suspend an extraordinary licence, which, in my opinion, he did not.
Further, the Magistrate had no jurisdiction to entertain the Director General's application for cancellation of the respondent's extraordinary licence.
Given the Magistrate's lack of jurisdiction, it would be open to me to quash his decision, pursuant to s 199(1)(a) of the Justices Act. However, that would leave the respondent in a precarious position: he could be prosecuted for driving without a licence, although he might have a defence under s 24 of the Criminal Code.
The respondent could now make an immediate application for an extraordinary licence. But that would, I think, impose an unreasonable burden on him because the Magistrate decided, on the merits, that he should be permitted to hold an extraordinary licence.
In these circumstances, I propose to exercise my powers under s 199(1)(b), which permits the court to:
"… dismiss the appeal notwithstanding that any point raised in the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred".
That is precisely the position here: the Director General has succeeded on the question of jurisdiction raised in the appeal. But because the respondent has succeeded on the merits, no miscarriage of justice has occurred.
That is not the end of the matter. An order in those terms would still leave the respondent without any licence. That result can be avoided by the exercise of the court's power, contained in s 199(1)(9), to make such order as it thinks fit.
In all the circumstances, I think it fit to make an order that the respondent's application for a review of the Director General's decision to suspend his extraordinary licence be treated as an application for the grant of such a licence. It was an application which the respondent could have made, because more than four months had elapsed since the conviction which resulted in the automatic cancellation of his previous licence.
There remains the question of costs. I deal with that question now, because I excused counsel for the respondent, who practises in Geraldton, from attending when I delivered my judgment. My provisional view is that because the appeal has been dismissed, the Director General should pay the respondent's costs, to be taxed if not agreed.
If the Director General wishes to oppose such an order, he must apply within seven days, and give notice to the respondent's solicitors. If no such application is made, the order will become final.