Holden v The Registrar of Motor Vehicles - [2011] SASC 205

Supreme Court of South Australia
(Magistrates Appeals: Civil)
HOLDEN v THE REGISTRAR OF MOTOR VEHICLES
[2011] SASC 205
Judgment of The Honourable Justice Kourakis (ex tempore)
16 November 2011
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GENERALLY
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF
Statutory disqualification of licence by Registrar of Motor Vehicles pursuant to s 81B(1) of the Motor Vehicles Act 1959 (the Act) - magistrate dismissed appeal under s 81BB(1) of the Act - appeal to the Supreme Court - s 42(1) of the Magistrates Court Act 1991 - Notice of Appeal filed out of time - application for extension of time not opposed - appeal by way of rehearing - whether severe and unusual hardship - whether substantial risk to appellant or public.
Held: Extension of time to appeal granted - no embarrassment or prejudice to the respondent - decision of magistrate set aside - disqualification would result in severe and unusual hardship - appellant does not present substantial risk to herself or public.
Motor Vehicles Act 1959 81B, 81BB; Magistrates Court Act 1991 42(1), referred to.

HOLDEN v THE REGISTRAR OF MOTOR VEHICLES
[2011] SASC 205
Civil. Magistrates Appeal

Kourakis J: The appellant appeals an order made by a magistrate pursuant to s 81BB of the Motor Vehicles Act 1959 (the Act). The Magistrate dismissed an appeal to him against a statutory licence disqualification imposed for breach of a provisional licence condition. The appeal to this Court in the ordinary course would have been listed for hearing in December. The appellant brought an application for an early hearing because of the impending birth of her fourth child which is due to be born on 19 December. Last week I made an order for an early hearing of this matter today.
The Crown Solicitor’s Office consented to the early hearing. Its officers have very quickly provided a useful outline. They are to be commended for the way in which they have quickly dealt with the matter and with the very proper concessions which they have made. I acknowledge that I will, in the course of these reasons, extract from the Crown’s outline various paragraphs for inclusion in these reasons.
The decision of the Magistrate was made on 27 September this year. The time within which to appeal, 21 days, expired before the appellant lodged her Notice of Appeal; the Notice of Appeal was filed 37 days after the order was made. The appellant asserts, and has provided some evidence, that the delay arose, in part while she was seeking legal advice and because she was under some financial constraints in paying the fee required to file the notice.
The respondent acknowledges that it is not embarrassed in the presentation of this matter and not prejudiced by the late filing of the Notice of Appeal. The respondent accepts that the appeal has merits and does not oppose the application for an extension of time. I grant the appellant an extension of time in which to bring the appeal to the date of the filing of the notice.
An appeal pursuant to s 42(1) of the Magistrates Court Act 1991 is in the nature of a re-hearing. I am in as good a position as the Magistrate was to assess the evidentiary material on which the appellant relies.
I set out the relevant history to this matter. On 31 August 2011, by way of notice from the Registrar of Motor Vehicles, the appellant was disqualified from holding a provisional licence for a period of six months pursuant to s 81B(1) of the Act. The disqualification was imposed by operation of the Act because the appellant breached a provisional licence condition.
The condition breached by the appellant was that she exceeded the applicable speed limit by more than 10 km/h. The events which gave rise to the disqualification occurred on 24 November 2009. The circumstances of the offence were that the appellant exceeded the speed limit by more than 10 km/h while driving on the Port Augusta Highway towards Whyalla. I take judicial notice of the nature of that highway. It is a very wide, well-sealed, straight road with very few access points.
As a result of that offending, the appellant is currently serving a licence suspension which commenced on 27 September 2011, the day on which the Magistrate dismissed her appeal against the disqualification. The licence has also, by reason of the provisions of the Act been cancelled. s 81BB of the Act provides:
81BB—Appeals to Magistrates Court
(1)Subject to subsection (2), if a person has been or is liable to be given a notice of disqualification under section 81B as a consequence of an offence committed or allegedly committed while the holder of a provisional licence or probationary licence, the person may appeal to the Magistrates Court against the disqualification.
(4)The Magistrates Court may allow an appeal if the Court is satisfied—
(a)that, on the basis of evidence given on oath by or on behalf of the appellant, the disqualification would result in severe and unusual hardship to the appellant or a dependant of the appellant; and
(b)if the Crown submits evidence (whether orally or in writing) as to previous offences relating to the appellant's use of a motor vehicle for which the appellant has been found guilty or that the appellant has expiated—that such evidence does not indicate that the appellant is a substantial risk to himself or herself or to other members of the public.
There are several peculiar features about those provisions and the nature of the appeal which should be noticed. First, s 81B of the Act provides an ‘appeal’ not against an administrative decision but against the statutory imposition of a liability to disqualification. The Registrar has no discretion pursuant to s 81B. The notice of disqualification must be given on breach of a prescribed condition.
There are two jurisdictional limitations on the ‘appellate’ jurisdiction exercised by the Magistrate. One is positive, the other is negative. The appellant must satisfy the Magistrate that the disqualification will result in severe and unusual hardship to the appellant or a dependent. The negative limitation is that any record of previous convictions submitted by the Crown, does not indicate that the appellant is a substantial risk to himself or herself or the public.
The function conferred by s 81BB(4) of the Act is largely administrative, but in my view it is susceptible of an exercise of judicial power when conferred on a court. Courts of summary jurisdiction have exercised similar dispensing powers enlivened by circumstances described as (special reasons) or (special circumstances) for many decades.
A nice question of construction arises out of s 81BB, whether, on satisfaction of the jurisdictional conditions, there is a residual discretion not to allow the appeal. I tend to think that there is not. In particular, the compound expression ‘severe and unusual hardship’ is a relative one. In my view, it’s connotation is of a hardship which goes beyond the hardship which can be expected in the generality of cases and which will operate harshly, and be hard to endure, in the particular circumstances of the appellant or his or her dependents. Whether or not it operates harshly can only be judged against the legislative purpose of the disqualification. In all, the section calls for an evaluative factual finding by reference to a normative judgment about the nature of the hardship which warrants a departure from the statutory consequence. If that normative standard is satisfied then the appeal must be allowed.
The Magistrate took into account the appellant’s personal circumstances and the circumstances of her family, and appears to have been satisfied that the appellant would have suffered severe or unusual hardship. At the very least, it can be said that the Magistrate did not dismiss the appeal on the grounds of a failure to satisfy that condition. Ultimately, the Magistrate dismissed the appeal because of what I have referred to as the negative jurisdictional limitation risk to the public. The Magistrate said:
It is the second aspect of this test which causes me concern. I am satisfied that the record provided by the Registrar does indicate that she would represent a substantial risk to herself or other members of the public. She says she has learnt from her prior offending and that the most recent was 2 years ago. However, there are consistent offences over a 6 year period and many of them involving speeding offences. It seems to me that record does demonstrate that she would represent a substantial risk to herself or other members of the public. I therefore decline the application.
The record to which the Magistrate referred was a list of the appellant’s traffic convictions, provided to the Magistrate by the Crown through the Registrar of Motor Vehicles. The appellant was only notified of the statutory licence disqualification, thereby bringing it into effect, two years after she became liable to be disqualified by reason of the commission of the offence, because of a breakdown in the communication of the expiation of offences between the Courts Administration Authority and the Registrar of Motor Vehicles. That breakdown in communication in itself is no reason to deal with the statutory provisions differently, but it does have a practical consequence with respect to satisfaction of the practical risk test.
The fact is that for two years the appellant has not committed any further traffic offences. The offence which she did commit which led to the breach of the licence, did not involve a significant risk to the public. The appellant’s familial circumstances, particularly with the expected birth of a fourth child, overall makes it less likely that she will drive in a way which is a risk to the public. Reviewing by way of re-hearing the decision of the Magistrate, I respectfully take a different view. In my view, the evidence as a whole does not indicate that the appellant is a substantial risk to herself or to other members of the public
For that reason, in my view, the negative jurisdictional limitation is satisfied. Proceeding by way of re-hearing, it is probably not sufficient for me simply to act on what, impliedly at least, the Magistrate seems to have accepted about the appellant’s personal circumstances. On a consideration of the material I find that the licence disqualification would result in severe and unusual hardship to the appellant and her family, for the following reasons.
The care of a family of three, soon to be four, is a substantial undertaking. The appellant’s recent experience with Families SA, because of its concerns about her children, indicates, at the very least how difficult it sometimes is to meet the proper standards of care. I do not suggest in any way that the appellant did not in fact meet those standards. The appellant’s children are all back in her care. The point I simply wish to make is that caring for a family takes much effort.
The appellant works as a receptionist in a medical practice. She will take leave from that practice at least for the period from 19 December to the end of January.
She may need to take longer leave depending on the needs of her fourth child. In any event, whether the appellant returns to work or not, caring for her newborn child and her three older children, will require considerable effort. They must be dropped off at, and picked up, from school and kindergarten. The appellant’s husband has a licence, so he can of course provide the necessary transport. But the financial needs of the family must also be met. He is a painter. Workers in the building industry ordinarily start work well before children are taken to school. It goes without saying that if transporting the children to school is left to the appellant’s husband, it will substantially interfere with his ability to obtain and keep work.
There is a further complication. The appellant suffers from a medical condition which causes her significant disability. It substantially limits the time she can spend on her feet walking and standing.
I accept that a disqualification of licence will almost always interfere with familial and work responsibilities. However, there are special difficulties, to which I have adverted, in the appellant’s case. In addition, the appellant and her family reside in a regional centre where distances are greater and there is less public transport.
For all of those reasons I am satisfied that the disqualification will operate so unusually harshly on the appellant and her family that it warrants a dispensation from the statutory disqualification. For those reasons I allow the appeal. I set aside the order of the Magistrate dismissing the appeal against the statutory disqualification and order instead that the appeal be allowed.