Flanagan v Registrar of Motor Vehicles
[2006] SADC 118
•29 September 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of MOTOR VEHICLES ACT 1959
FLANAGAN v REGISTRAR OF MOTOR VEHICLES
[2006] SADC 118
Judgment of His Honour Judge Boylan
29 September 2006
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
Appellant had committed two drink-driving offences within 3 years - when pleaded on second occasion Magistrate ordered an assessment for alcohol dependance pursuant to s47J of Road Traffic Act 1961 - Appellant was assessed as being dependent on alcohol - report sent to respsondent - Magistrate noted report ordered in error and disqualilfied appellant from holdling or obtaining a driver's licence for four months - before expiry of this period appellant was refused granting of licence after the expiry period pursuant to s80 of Motor Vehicles Act - decision was confirmed by respondent - appellant appealed that decision - whether respondent can take into account as assessment erroneously ordered
Held: Decision of respondent affirmed
Road Traffic Act 1961 s47J; Motor Vehicles Act 1959 s80, referred to.
FLANAGAN v REGISTRAR OF MOTOR VEHICLES
[2006] SADC 118
Mr Flanagan committed two drink-driving offences within a three year period, specifically on the 6th of February 2003 and the 11th of February 2005. On the 29th of April 2005, he pleaded guilty in the Magistrates Court to the offence which he had committed on the 11th of February 2005. The Magistrate who was dealing with the matter ordered that he be assessed for alcohol dependence pursuant to section 47J of the Road Traffic Act 1961. Accordingly, Mr Flanagan was assessed by the Driver Assessment Clinic on the 18th of August 2005. It was the opinion of the doctor who assessed Mr Flanagan that he was dependent on alcohol. The Clinic’s report was sent to the court and to the Registrar.
On the 28th of September 2005, Mr Flanagan appeared again in the Magistrates Court to be sentenced for the offence committed on the 11th of February 2005 in light of the contents of the report. But the Magistrate presiding on that occasion noted (correctly) that the report obtained from the Clinic had been ordered in error. The Magistrate noted that the offence which Mr Flanagan committed on the 11th of February 2005 was not a Category 2 offence. Accordingly, the Magistrate informed Mr Flanagan that he should not have been required to be assessed at the Clinic. The Magistrate then disqualified Mr Flanagan from holding or obtaining a driver’s licence for four months. Mr Flanagan understandably assumed that that was the end of the matter.
Towards the end of January 2006, shortly before his period of suspension was due to expire, Mr Flanagan attended at the Department of Motor Vehicles to find out whether or not he had to pay a fee before his licence would be renewed at the end of the period of suspension. He was then advised that the Registrar was refusing to grant him a licence on the basis of the doctor’s opinion that he was alcohol dependent. In so acting, the Registrar was acting pursuant to Section 80 of the Motor Vehicles Act 1959. Mr Flanagan applied to the Registrar to review the decision. On the 19th of July 2006, the Registrar confirmed the decision to refuse to issue a licence to Mr Flanagan. This is Mr Flanagan’s appeal against that decision.
In my opinion, Mr Flanagan’s appeal must fail. Mr Flanagan should never have been required to be assessed at the Clinic. As a result of the assessment, material has become known to the Registrar which plainly suggests that Mr Flanagan may be a danger to other road users. In those circumstances, the Registrar has acted correctly in refusing to issue a licence to Mr Flanagan until the Registrar is satisfied that he does not present a danger. The Registrar could be so satisfied if a further report from the Assessment Clinic is favourable to Mr Flanagan.
Before explaining my reasons for my decision in a little more detail, I make the following observations: Mr Flanagan has reason to feel that he has been treated unjustly, in one sense. He appeared unrepresented before the Magistrate on the 29th of April 2005. The Magistrate did not realise that he had not committed an offence which brought him within the terms of Section 47J. Had the Magistrate not acted in error, Mr Flanagan would never have had to attend the Assessment Clinic and would not be in his present position. He is also justified in feeling some resentment at the fact that he found out late in the piece that the Registrar was refusing to grant him a licence on the basis of the contents of the report. The delay has had unfortunate practical consequences. Mr Flanagan, had he known about the Registrar’s attitude, could have made an appointment to return to the Assessment Clinic in the hope that he would receive a favourable report. But it takes six to eight months to get an appointment at the Clinic. Accordingly, when he did make an appointment, he was unable to have an appointment at the Clinic to be further assessed until December this year. In the meantime, he is unable to drive and the consequence of that is that he is unable to obtain employment. He could pay a private clinic to prepare a report but he is unable to afford to do so. In those circumstances, it is plain that the innocent error of the Magistrate in April 2005 has had serious consequences for Mr Flanagan.
But one must look at the matter from the point of view of the Registrar of Motor Vehicles. It is plain from the scheme of Part 3 of the Act that the Registrar is given the task of ensuring that licences are not issued to people who may present a danger to the public. Section 80 of the Motor Vehicles Act 1959 addresses that issue. Where relevant, it reads as follows:
“Section 80(1) If in the opinion of the Registrar it is desirable that the ability or fitness of an applicant for the issue or renewal of a licence … to drive a motor vehicle should be tested, the Registrar may require the person to undergo such tests or to furnish such evidence of ability or fitness to drive as the Registrar directs.
… (2) (a) If –
(a) …
(b) the Registrar is satisfied –
(i) …
(ii) from information furnished to the Registrar by a health professional or from any other evidence received by the Registrar, that a person is not competent to drive a motor vehicle … ,
the Registrar may –
(c) refuse to issue a licence to the person …”
In this case, the Driver Assessment Clinic furnished to the Registrar information that Mr Flanagan is not competent to drive a motor vehicle. Acting on that information, the Registrar exercised his discretion to refuse to issue a licence to Mr Flanagan. In my view, it does not matter that the Registrar came into possession of that information as the result of an error made by a Magistrate. Once he is in possession of information, however obtained, that suggests that a person is not competent to drive a motor vehicle then the Registrar should consider the exercise of his discretion to refuse to issue a licence to that person. Here, the Registrar exercised his discretion against Mr Flanagan. The Registrar was plainly entitled to do so. Indeed, it seems to me that it would have been a dereliction of the Registrar’s duty to do otherwise. There is no basis at all on which I should interfere with the exercise of that discretion. Mr Flanagan has not disputed that there was information before the Registrar that he is not competent to drive a motor vehicle owing to alcohol dependence. His argument to me was that the Registrar should not have exercised his discretion in circumstances where the Clinic’s report should never have been ordered. As I have said, I reject that argument.
The appeal is dismissed.
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