Kapiris v Registrar of Motor Vehicles No. Scgrg-97-1605 Judgment No. S6514

[1998] SASC 6514

KAPIRIS  v  REGISTRAR OF MOTOR VEHICLES

Magistrates Appeal
Nyland J (ex tempore)

This is an appeal against the order of a magistrate, made on 24 October 1997, wherein he dismissed an appeal against the cancellation of the appellant's probationary licence and disqualification. 

The appeal was filed on 25 November 1997.  I understand that the reason for the delay in filing the correct Notice of Appeal related to routine procedural matters.  I therefore consider it appropriate to extend the time in which the appeal can be lodged.  I order that time be extended to 25 November 1997. 

In this matter the appellant was the holder of a probationary licence, which was cancelled by the Registrar of Motor Vehicles pursuant to s81B of the Motor Vehicles Act 1959 (the Act) following the loss of in excess of four demerit points accumulated through detection for speeding offences.

Section 81B(2) of the Act provides that:

“(2).... Where a person who holds a learner's permit or a probationary licence -

(a) ... commits an offence of contravening a probationary condition; or

(b) ... commits an offence in respect of which a demerit point is, or demerit points are, recorded against the person and, in consequence, the total number of demerit points recorded against the person in respect of offences committed while the holder of a learner's permit or probationary licence equals or exceeds four,

the Registrar must, on becoming aware of that fact, give notice -

(c) ... that the person is disqualified from holding or obtaining a permit or licence for a period of six months commencing on a day specified in the notice; and

(d) ... that, if the person holds any permit or licence at the commencement of the period of disqualification, the permit or licence is cancelled.”

Section 81B of the Act further provides that:

“(6).... Where a person has been or is liable to be given  notice of disqualification under subsection (2), that person may, in accordance with the relevant rules of court, appeal to a local court against the disqualification. 

(7).... The appellant and the Crown are entitled to be heard upon the appeal. 

(8).... If the local court is satisfied by evidence given on oath by or on behalf of the appellant that the disqualification would result in undue hardship to the appellant, the court may allow the appeal.”

The appellant was represented by counsel in the Magistrates Court.  He made submissions on behalf of the appellant, in addition to which the appellant gave sworn evidence.  The appellant told the court that he was employed in a market garden at Two Wells, which is owned by his father.  He, however, lives at Thebarton with his girlfriend and her mother.  The appellant said that his employment required him to work seven days per week starting at 5 to 6 am on market days, and 6 to 7 am.  on other days.  He had been employed in that position for about three years.  He further gave evidence that he would not be able to go to work if he did not have his licence, that he had certain financial commitments amounting to about $200 per month and he had other domestic commitments.  In addition, there were proper reasons preventing him from living with his parents, which was the place of his employment, and his girlfriend would not be able to drive him to work without losing her employment. 

In the course of the appellant giving evidence, he was questioned by the magistrate about the nature of the offences leading to the loss of demerit points, the nature of his girlfriend's mother's employment, whether she had a driver's licence, and whether there was any impediment to the appellant living with his father at the Two Wells property.  The magistrate then dismissed the appeal.

The appellant complains that the learned magistrate erred in dismissing the appeal in that he had regard to considerations other than the criterion of undue hardship which is contained in s81B(8), and that he dealt with the appeal as though as it were an appeal against the cancellation of a full and unconditional licence.

The aforesaid section appears to establish that undue hardship is the sole criterion to be considered with respect to appeals thereunder.

In this case the appellant is a young man who will be unable to continue in his employment if the disqualification stands.  That will create a consequent inability to meet his financial commitments. 

In my opinion there was sufficient evidence before the court to establish undue hardship.  The magistrate erred in reaching a decision on matters extraneous to this section. 

In my opinion the appeal should be allowed.  I set aside the order cancelling the provisional licence as well as the order for disqualification and I reinstate the probationary driver's licence.