Kekes v Police; Kekes v Registrar of Motor Vehicles - [2009] SASC 250

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
KEKES v POLICE; KEKES v REGISTRAR OF MOTOR VEHICLES
[2009] SASC 250
Judgment of The Honourable Justice Gray
25 August 2009
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - OTHER CASES
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - MANDAMUS - GENERALLY
Appeal from decision of Magistrate not to order that alcohol interlock scheme apply to period of licence disqualification imposed on defendant and appellant - on 18 February 2009 defendant's licence disqualified for offence of driving while present in blood a prescribed concentration of alcohol contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA) - defendant subject to notice of immediate suspension at time of offence - at time of sentence, Magistrate declined to order that alcohol interlock scheme apply to period of licence disqualification - defendant's licence had expired on 13 January 2009 - valid licence is a pre-condition for eligibility to participate in alcohol interlock scheme - defendant issued judicial review proceedings seeking order in nature of mandamus directing Registrar of Motor Vehicles to issue defendant with driver's licence effective 13 January 2009 - whether Registrar entitled to deal with suspension and disqualification of licence as though of same effect - construction of section 91 of Motor Vehicles Act 1959 - whether decision of Registrar not to send defendant a licence renewal form amounted to pre-determination of eligibility to renew licence - whether this decision amounted to constructive refusal - whether decision reviewable.
Held: judicial review granted - order in nature of mandamus made - appeal allowed - licence disqualification and suspension distinct concepts - Registrar not entitled pursuant to section 91 of Motor Vehicles Act to treat suspended licence as though it were disqualified - effect of notice served on defendant at time of offence one of suspension not disqualification - defendant entitled to renew suspended licence - defendant's eligibility to renew licence pre-determined on basis of suspension - decision not to send licence renewal notice on basis of pre-determination is decision of Registrar in exercise of Registrar's statutory duties - determination of eligibility and consequent failure to renew the defendant’s licence amounted to constructive refusal or failure to exercise jurisdiction.
Road Traffic Act 1961 (SA) s 43, s 45B, s 47(3)(d), s 47IAA, s 47B(1)(a), s 49 and s 50; Motor Vehicles Act 1959 (SA) s 75, s 77B, s 85 and s 91; Supreme Court Rule Civil Rules 2006 (SA) r 199(2)(c), referred to.
Varverakis v Police (2003) 225 LSJS 286; Craig v State of South Australia (1995) 184 CLR 163; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Brygel v Stewart-Thornton [1992] 2 VR 387; Potter v Tural (2000) 2 VR 612; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; Wade v Burns (1966) 115 CLR 537; Attorney-General (NSW) v Quin (1990) 170 CLR 1, considered.

KEKES v POLICE; KEKES v REGISTRAR OF MOTOR VEHICLES
[2009] SASC 250
Magistrates Appeal
GRAY J:
Introduction
The Proceedings

On 18 February 2009, Miklos Kekes, the defendant, appellant and applicant for judicial review, was sentenced for the offence of driving while there was present in his blood a prescribed concentration of alcohol contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA). A licence disqualification for the term of eight months and 25 days was imposed.
At the time of sentencing, the Magistrate declined to order that the alcohol interlock scheme should apply to the period of licence disqualification imposed. The Magistrate did not give reasons for this refusal. This appeal is from that decision.
Subsequent to the lodging of the appeal, it was discovered that Mr Kekes’ probationary licence had expired on 13 January 2009. A valid licence is a pre-condition for eligibility to participate in the alcohol interlock scheme. As a consequence, Mr Kekes issued judicial review proceedings seeking an order in the nature of mandamus directing the Registrar of Motor Vehicles to issue him with a driver’s licence effective 13 January 2009.
The Interlock Scheme
Pursuant to sections 49 and 50 of the Road Traffic Act, when a court convicts a holder of a driver’s licence of a relevant drink driving offence, and orders a period of disqualification of six months or more, the court must make an order that the person will be entitled to be issued with a driver’s licence that is subject to the alcohol interlock scheme conditions.
It is convenient to set out the relevant provisions in full.
49—Cases where Division applies
(1)     This Division applies in a case where a court—
(a)convicts a holder of a driver's licence (not being a learner's permit) of a relevant drink driving offence, whether the offence was committed before or after the commencement of this section; and
(b)orders a period of disqualification for the offence of 6 months or more.
(2)     A relevant drink driving offence is—
(a)an offence against section 47(1) that involved driving a motor vehicle, or attempting to put a motor vehicle in motion, while so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle; or
(b)    an offence against section 47B(1), 47E(3) or 47I(14).
50—Order to be made by court if Division applies
(1)     In a case where this Division applies, the court concerned must, in addition to making the order of disqualification for the relevant drink driving offence, make an order to the effect that, despite the order of disqualification, the offender will, on application made to the Registrar of Motor Vehicles at any time after the half-way point in the period of that disqualification, be entitled to be issued with a driver's licence that is subject to the alcohol interlock scheme conditions for the required period (in addition to any conditions otherwise required).
(2)     However, the offender will not be entitled to be issued with a licence in accordance with the order under subsection (1) if—
(a)the offender does not meet the requirements of the Motor Vehicles Act 1959 for the issue of the licence; or
(b)a disqualification (other than the disqualification for the relevant drink driving offence) has been imposed in relation to the offender and is in force at the date of the offender's application for the licence or will commence at a later date.
(3)     The disqualification for the relevant drink driving offence ends if the offender is issued with a driver's licence subject to the alcohol interlock scheme conditions.
(4)     The required period for which the driver's licence is subject to the alcohol interlock scheme conditions is a number of days equal to twice the number of days remaining in the period of the offender's disqualification for the relevant drink driving offence immediately before the issuing of the licence.
In the decision of Varverakis[1] I summarised the purpose of the alcohol interlock scheme as follows:
The alcohol interlock scheme applies to offenders meeting the statutory criterion. All persons convicted of relevant drink driving offences under the Road Traffic Act where a period of licence disqualification of six months or more has been imposed come within the scheme. The scheme enables offenders to regain their driver’s licence subject to conditions at any time after the half way point in the period of their disqualification. Participation in the scheme by eligible offenders is voluntary and participants will bear all costs in relation to the installation, monthly rental, servicing and removal of the alcohol interlock device and the obligatory counselling sessions.[2] Participation is required for twice the number of days left in the offender’s period of licence disqualification for the relevant drink driving offence prior to entering the scheme.[3] …
An alcohol interlock device is … an electronic breath alcohol analyser with a micro-computer and internal memory. It is attached to the ignition and other control systems of a motor vehicle nominated by the offender. This is the only vehicle that the offender is permitted to drive. The offender must blow into the alcohol interlock device for a few seconds. The device measures blood alcohol concentration. It prevents a vehicle from being started or operated if the offender’s blood alcohol exceeds a pre-set limit, thereby preventing drink driving.[4]
If the offender does not ‘pass’ the breath test then the vehicle will not start for anywhere between five and 30 minutes. If the vehicle stops for more than three minutes the offender will need to successfully blow into the device again before the vehicle will re-start. The device may require a re-test as the offender drives along. The offender is provided with three minutes in which to pull over and provide a breath sample whilst the ignition is still running. If the offender is below the pre-set limit then driving can continue. If the offender does not provide a sample or fails the test an alarm involving the vehicle’s horn and lights will start until the ignition is turned off or the offender undertakes a successful re-test.[5]
Alcohol interlock devices must be installed by one of two approved installers.[6] Approved installers monitor the device at regular monthly intervals. Each service involves checking the equipment and downloading the event log. This is information recorded about the previous month’s usage.[7] This includes the date and time of all attempts to start the vehicle, breath tests and lockouts. This information is then forwarded to the registrar for evaluation. If the device is not serviced within the maximum period allowed, the device will lockout the offender and can only be re-set by an approved service provider and the registrar will be notified.[8]
The alcohol interlock licence holder must agree not to interfere with the interlock device or permit it to be interfered with by someone else. As earlier observed there is a requirement that the offender attend at stipulated times and locations to enable the interlock data to be downloaded. When driving “P” plates must be displayed. A minimum of two counselling sessions with the Drug and Alcohol Services Council upon entry and exit from the scheme are compulsory. The intention of mandatory counselling is to assist in correcting the offender’s driving behaviour. Failure to attend will result in a breach of the interlock licence and may result in cancellation.[9] An offender who has been convicted of two or more drink driving offences within a three year period is required to undertake alcohol and drug assessment prior to being eligible to apply for an interlock licence.[10] If after an interview and medical assessment at the Drug and Alcohol Services Council the offender is assessed as being dependent on alcohol or drugs then the person cannot be issued with an interlock licence.[11] In the event of a breach of any of the interlock conditions a disqualification period equal to the balance of the original disqualification or six months whichever is the greatest will be imposed.[12] A person disqualified under this provision will not be eligible to apply for an alcohol interlock licence during the period of disqualification.
[1]    Varverakis v Police (2003) 225 LSJS 286 at [4] –[10].
[2]    South Australian Alcohol Interlock Scheme Transport SA October 2001 provided that it is expected that the initial cost for entrance into the scheme will be $400 and the monthly rental, service and administration fee will total $160. Provision has been made in the legislation for a ‘Low Income Participant Subsidy Scheme’ to ensure equality of access for all eligible offenders regardless of income.
[3] Section 50 of the amending legislation provides: “Under subsection (4) the period for which the new licence is required to be subject to the alcohol interlock scheme conditions is a number of days equal to twice the number of days remaining in the period of the offender’s disqualification for the relevant drink driving offence immediately before the issuing of the new licence.” For example if a 12 month licence disqualification has been ordered then the offender will be eligible to enter the scheme after six months and can then participate for 12 months.
[4]    South Australian Alcohol Interlock Scheme Transport SA October 2001at 10
[5]    South Australian Alcohol Interlock Scheme Transport SA October 2001 at 3 and 10.
[6]    The alcohol interlock scheme is administered by the Department of Registration and Licensing.
[7]    The event log records the date, time and day of the following:
Initial tests passed; Initial tests failed – Low/High BAC; Initial tests not presented; Retests not presented; Incorrect sample presentations; Engine starts and stops; Bypass detection; Power connects and disconnects; handset disconnects; Lockouts; Hardware errors; Start violations (any attempts to disable or fraudulently start the vehicle etc.) South Australian Alcohol Interlock Scheme Transport SA October 2001at 6 and 9.
[8]    South Australian Alcohol Interlock Scheme Transport SA October 2001at 5
[9]    If an offender breaches a condition of the alcohol interlock scheme a penalty of up to $1,250 and a further licence disqualification can be imposed. The period of the disqualification will be six months or the number of days remaining in the period of the person’s disqualification for the relevant drink driving offence immediately before the licence was issued, whichever is the longest period. See South Australian Alcohol Interlock Scheme Transport SA October 2001at 4 and 10.
[10] South Australian Alcohol Interlock Scheme Transport SA October 2001 at 4
[11] South Australian Alcohol Interlock Scheme Transport SA October 2001 at 4.
[12] See >
Counsel appearing for the Registrar accepted that if an order were to be made in the nature of mandamus, it would follow that the appeal should be allowed and that an alcohol interlock order should be made. In these circumstances it is convenient to first address the judicial review proceedings.
Judicial Review
The Facts
Evidence was placed before the Court by way of affidavit. There was no application to cross-examine any of the deponents. In short, the facts were not in dispute.
Edward Thomas Collins of the Adelaide Criminal Justice Section deposed to the events that took place when Mr Kekes was sentenced by the Magistrate. Mr Collins recalled that counsel for Mr Kekes had requested the Magistrate to order that he be eligible for participation in the alcohol interlock scheme. This request was refused.
By affidavit dated 14 April 2009, Mr Kekes deposed to the history of the matter. At the time of the offence on 13 July 2008, he was issued by the Police with a notice of suspension of driver’s licence. He was not required to surrender his driver’s licence. Prior to the expiry of his licence on 13 January 2009, Mr Kekes did not receive any correspondence from the Registrar of Motor Vehicles advising that his licence was due to expire and inviting him to lodge an application to renew his licence.
In compliance with the notice of immediate suspension served on 13 July 2008, Mr Kekes did not drive from that date and was not aware that his licence had expired on 13 January 2009.
Mr Kekes engaged the services of solicitors to represent him in relation to the offence charged. The solicitor advised that if the period of disqualification was six months or more, he would be entitled to participate in the alcohol interlock scheme once half of the period of disqualification had been served.
Mr Kekes deposed that he wished to participate in the alcohol interlock scheme and was not aware or informed that he would not be eligible to participate if he was not the holder of a driver’s licence. He was subsequently sentenced by the Magistrate who, as earlier noted, refused to make an order enabling him to participate in the interlock scheme. Mr Kekes deposed that had he known that a valid driver’s licence was a pre-condition to eligibility to participate in the alcohol interlock scheme, and had he known his licence had expired, he would have requested the Registrar of Motor Vehicles to send a licence renewal application form in order to renew his licence prior to pleading guilty to the charges on the complaint. Had that application been rejected, Mr Kekes contended that he would have instructed the solicitor to commence proceedings to review that decision.
A Deputy Registrar of Motor Vehicles, John William Neville, provided affidavit evidence on behalf of the Registrar. Mr Neville holds delegations to exercise all of the powers, functions and discretions assigned to the Registrar of Motor Vehicles under the Motor Vehicles Act. Mr Neville deposed that Mr Kekes was issued a driver’s licence with probationary conditions on 14 January 2008, that this licence was suspended on 13 July 2008 and expired on 13 January 2009.
Mr Neville described the practice of the Registrar to send out renewal application forms to persons who are eligible to renew their driver’s licence or learner’s permit approximately 42 days prior to the expiry of the licence or permit. According to Mr Neville, a person whose licence is suspended or who is disqualified from holding a licence is treated by the Registrar as a person who is not eligible to renew their licence. As a consequence, such persons are not sent a renewal application form. However this form is available to any member of the public attending at a Transport SA Customer Service Centre or from the Transport SA website. Mr Neville deposed that the Registrar did not send Mr Kekes a licence renewal application form as his licence was suspended from 13 July 2008 until 12 July 2009 and consequently, at the time his licence was due to expire, he was not considered eligible to renew his licence. The Registrar did not receive a completed renewal of licence form from Mr Kekes prior to the expiry of his licence on 13 January 2009.
According to Mr Neville, had Mr Kekes attempted to renew his licence prior to its expiry and during the period of suspension, the Registrar would have refused to renew the licence, as due to the licence suspension Mr Kekes was not considered eligible to renew his licence.
Mr Kekes contended that the failure of the Registrar to forward a licence renewal application form amounted to a constructive refusal by the Registrar to exercise his jurisdiction to renew the driver’s licence held by Mr Kekes. The Registrar submitted that an order in the nature of mandamus could not be issued, as there was no actual or constructive refusal to renew Mr Kekes’ licence.
Mandamus
Before examining the parties’ contentions in greater depth, it is appropriate to consider the legal principles relevant to the seeking through judicial review proceedings an order in the nature of mandamus.[13]
[13] Supreme Court Rule Civil Rules 2006 (SA) rule 199(2)(c).
Judicial review at common law is concerned with the legality of the exercise of power or its purported exercise.[14] Relevantly to this application, judicial review has been invoked to set aside administrative acts and decisions when the exercise of power in performing those acts and making those decisions is outside the boundaries of the instrument granting the relevant power. Such exercise of power is said to be ultra vires and the body or individual purporting to exercise the power is said to fall into jurisdictional error.[15]
[14] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 26.
[15] Craig v State of South Australia (1995) 184 CLR 163.

In Craig v State of South Australia[16] the High Court defined the limits of “jurisdictional error” and discussed “less obvious” jurisdictional errors that may arise: [17]
Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.
(emphasis added)
[16] Craig v State of South Australia (1995) 184 CLR 163.
[17] Craig v State of South Australia (1995) 184 CLR 163 at 177-178.
This review was undertaken in the context of a review of a decision of an inferior court. It is instructive to note that the distinction between jurisdictional and non-jurisdictional errors of law, although retained in relation to inferior courts, no longer exists in relation to tribunals.[18] As explained in Craig, most errors of law committed by tribunals are jurisdictional errors, as tribunals are not constituted with the authority to determine questions of law.[19] Similarly, in the within proceedings, if the Registrar were to fall into an error of law which caused him to identify a wrong issue or ask himself a wrong question, to ignore relevant material or rely on irrelevant material or, in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the Registrar’s exercise or purported exercise of power was thereby affected, he would exceed his authority or power. Such error is a jurisdictional error which would invalidate any order or decision of the Registrar reflecting that error.[20]
[18] Craig v State of South Australia (1995) 184 CLR 163 at 178; cf Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [30]-[32] (Gleeson CJ, Gaudron and Hayne JJ).
[19] Craig v State of South Australia (1995) 184 CLR 163 at 178; cf Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [30]-[32] (Gleeson CJ, Gaudron and Hayne JJ).
[20] Craig v State of South Australia (1995) 184 CLR 163 at 179; see also Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31]; see discussion of “jurisdictional error” in context of Craig in Stephen Gageler SC S-G, “The Impact of Migration Law on the Development of Australian Administrative Law” (Paper presented at the Annual Judge’s Conference, Hobart, Tuesday 27 January 2009).
The prerogative writ of mandamus, and an order in the nature of that writ, is a judicial command addressed to and compelling a respondent to perform a public duty. An order in the nature of mandamus will usually be available where there has been an error which amounts to a refusal or failure, whether actual or constructive, to exercise jurisdiction.[21] The failure or refusal to exercise jurisdiction may be an actual or constructive failure to exercise a power or to perform a duty or a function. Mandamus will be invoked to compel the decision maker to exercise its powers or perform its duty according to law.
[21] See for example Brygel v Stewart-Thornton [1992] 2 VR 387 (JD Phillips J); Potter v Tural (2000) 2 VR 612 at [26] (Batt JA, with whom Tadgell JA agreed); and at [6] (Callaway JA); see also Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41]-[42] (Gaudron J).
Whether there has been a constructive failure involves questions of law as to the extent of the decision maker’s power. In the case of a constructive refusal, a purported performance of the statutory duty is treated as a case of the decision maker refusing or declining to perform that duty, because the purported performance is deemed legally void. This reasoning is illustrated in the following extract from the judgment of Rich, Dixon and McTiernan JJ in War Pensions Entitlement Appeal Tribunal & Anor, Ex parte Bott:[22]
A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void.
[22] R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243
In Minister for Immigration and Multicultural Affairs v Yusuf[23] Gaudron J discussed the scope of jurisdictional error applicable to an administrative tribunal, and the distinction between an actual and constructive failure to exercise jurisdiction: [24]
For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be "an actual failure to exercise jurisdiction". On the other hand, there is said to be a "constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.
Although the notion of constructive failure to exercise jurisdiction developed in relation to the grant of prerogative relief and, later, the grant of relief under s75(v) of the Constitution, it is one that has some bearing on statutory schemes for judicial review of administrative decisions of the kind set out in Pt8 of the Act. For example, it may be that the failure of the Tribunal to take a particular matter into account indicates that, in the circumstances, the Tribunal has misunderstood its duty or applied itself to the wrong question and has, on that account, failed to conduct a review as required by s414 of the Act.
[23] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[24] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41]-[42].
The language used by Gaudron J finds its genesis in the reasons of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council,[25] where the general principles with respect to constructive failure or refusal to exercise jurisdiction were outlined: [26]
Yet it appears from the learned magistrate’s report that he regarded the problem set for him by the section as that of determining whether any part of the land the subject of an appeal would derive benefit from the lighting, it following, if it would, that the whole of it must necessarily be included in the scheme, whether the rest of it would derive any benefit or not. In so doing, I think, with all respect, that he misunderstood the question which the section invested him with jurisdiction to decide, which was whether any, and if so what part, of the land the subject of an appeal would derive benefit and should therefore be included in the lighting district, and whether any, and if so what part of it, would not derive benefit, and should therefore be excluded.
It was contended, however, that even if this be so, at the worst all that the magistrate had done was to make a mistake of law in construing the section, and the fact that a tribunal has made such a mistake in exercising its jurisdiction does not amount in law to a constructive failure to exercise it. I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R. v. Minister of Health (1939) 1 KB 232, at p 245-246 . But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply ‘a wrong and inadmissible test’: Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust (1937) AC 898, at p 917; or to ‘misconceive its duty’, or ‘not to apply itself to the question which the law prescribes’: R. v. War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228, at pp 242-243 ; or to misunderstand 'the nature of the opinion which it is to form': R. v. Connell (1944) 69 CLR 407, at p 432 , in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R. v. Board of Education (1910) 2 KB 165. This is, I think, the predicament of the learned magistrate in the present case.
(emphasis added)
This statement of Jordan CJ as to what constitutes a constructive failure to exercise jurisdiction has received repeated approval from the High Court.[27]
[25] Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416.
[26] Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420.
[27] See, for example, R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 267-268 (Aickin J); Re Coldham; Ex parte Brideson (1989) 166 CLR 338 at 350 (Wilson, Deane and Gaudron JJ); Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132 at 143-144 (Brennan J); Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ); Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at [80] – [82] (Gaudron J).
Ex parte Hebburn was applied in Wade v Burns[28] in the context of a warden appointed under the Mining Act refusing to determine an application for authority to enter lands and search for minerals not reserved to the Crown. The warden refused to determine the application on the grounds that the application was precluded by a provision of the Mining Act. The applicant sought a writ of mandamus requiring the warden to determine the application. In the course of his decision, Menzies J noted:[29]
It remains to consider whether the errors I have found justify mandamus to the mining warden to hear and determine the application according to law. In my opinion, they do. For an administrative authority to refuse an application under the mistaken belief that there is a statutory prohibition against granting it would call for mandamus to hear and determine according to law unless the statute made it clear that it was within the function of the administrative authority to determine finally the extent of his authority and to determine finally whether or not an application was within his authority. I do not read s. 46(3) as conferring any such authority upon the mining warden. That provision forbids the granting of an application for an authority in the circumstances there stated, and if it appears that a mining warden has mistakenly decided that an application must be refused because in the circumstances he is prohibited from granting it, mandamus lies to compel him to hear and determine the application according to law.
and Owen J observed:[30]
The fact is that it was not for that reason that the application was refused. It was refused because the warden wrongly considered himself bound to apply ss. 46(3) and 50(2)(a) and applied them. In doing so he constructively failed to hear and determine the matter according to law and mandamus should, in my opinion, go.
[28] Wade v Burns (1966) 115 CLR 537 at 555 (Barwick CJ).
[29] Wade v Burns (1966) 115 CLR 537 at 562.
[30] Wade v Burns (1966) 115 CLR 537 at 568-569.
Duty of the Registrar
The Registrar has a duty under the Motor Vehicles Act to issue or renew the licence of a person who satisfies the statutory eligibility criteria. This duty is outlined in sections 75 and 77B:
75—Issue and renewal of licences
(1)     Subject to this Act, the Registrar must issue a licence to, or renew the licence of, any person who—
(aa)is of or above the age of 16 years and 6 months and is resident in this State; and
(a)makes a written application for the licence or renewal in a form determined by the Minister; and
(b)    forwards with the application the prescribed fee; and
(c)has complied with any requirements of the Registrar under section 77B.
(2)     A licence will be in a form determined by the Minister.
(3)     Where an application for the issue or renewal of a licence is not entirely in order or the prescribed fee has not been paid, the Registrar may return the application and any fee paid in respect of the application.
77B—Powers of Registrar in relation to applicant for licence or permit
(1)     Where a photograph of a person is to be included on a licence or permit, the Registrar may, for the purpose of obtaining such a photograph—
(a)require the person to attend at a specified place for the purpose of having the person's photograph taken; or
(b)require the person to supply to the Registrar one or more photographs of the person as specified by the Registrar.
(1a)   The Registrar may require an applicant for the issue or renewal of a licence or learner's permit to provide such evidence as the Registrar thinks appropriate as to the identity, age or address of the applicant.
(2)     Where—
(a)a person of whom a requirement is made under this section refuses or fails to comply with the requirement; or
(ab)the Registrar is not satisfied as to the identity, age or address of an applicant for the issue or renewal of a licence or learner's permit; or
(b)     a photograph of a person taken or supplied pursuant to subsection (1) is not, in the opinion of the Registrar, suitable for inclusion on a licence or permit,
the Registrar may determine that the licence or permit in question not be issued or renewed as the case may be.
These provisions demonstrate that if the criteria contained therein are satisfied, the Registrar’s statutory duty is to issue the licence or permit, or renew the same.
The affidavit of Mr Neville outlines the system in place within the Department for Transport, Energy and Infrastructure, whereby the Registrar determines which of the persons whose names are recorded on the Register of Licences are eligible to renew their driver’s licences. Once the determination of eligibility is made, the practice of the Registrar is to send those persons a renewal form approximately 42 days prior to the expiry of the relevant licence, by which an application to renew that licence can be made. Upon the return of the completed form prior to the date of the expiry of the licence, and upon fulfilment by the applicant of the criteria in section 75 of the Motor Vehicles Act, the licence of that person is renewed by the Registrar.
The affidavit of Mr Neville makes clear that the Registrar, as a component of the exercise of his jurisdiction, is required to make a decision by reference to the criteria in section 75 and 77B as to the eligibility of any person recorded on the Register of Licences to renew his or her licence. Once this decision is made, if the person is determined to be ineligible, no renewal application form is sent to that person prior to the date of expiry of their licence. If such a person were to make an application to renew their licence on their own motion, the Registrar would refuse their application. Accordingly, counsel for Mr Kekes contended that the failure to send a renewal form was a predetermination of eligibility and a constructive refusal to exercise jurisdiction.
As earlier noted, the Registrar submitted that an order in the nature of mandamus could not be issued as there was no actual or constructive refusal to renew Mr Kekes’ driver’s licence. It was contended that there was no actual refusal, as Mr Kekes did not make any application to renew his licence. Counsel submitted further that there was no constructive refusal, as the Registrar did not take any action that amounted to an attempt to perform his duty.
According to counsel, the Registrar does not have a duty to advise licence or permit holders that a licence is due to expire. It was contended that the issuing of a written application form to a person whose licence is due to expire does not involve an exercise of the Registrar’s duty to issue or renew a licence. Counsel submitted that the duty to issue or renew a licence can only be exercised upon receipt of an application, payment of the prescribed fee and compliance with section 77B and other sections of the Motor Vehicles Act.
Counsel for the Registrar submitted further that if the act of issuing renewal notices were considered to be an attempt to perform the duty of renewing licences, the Registrar was not in error in determining that a person whose licence was suspended was ineligible to renew that licence. Counsel contended that pursuant to section 91 of the Motor Vehicles Act, a suspended licence cannot be renewed as it is of “no force or effect”. Section 91 provides:
(1)     This section and section 93 apply to suspensions and disqualifications imposed under this or any other Act.
(2)     While a licence or learner's permit is suspended it has no force or effect.
(3)     While a person is disqualified from holding and obtaining a licence or learner's permit, any licence or learner's permit held or obtained by that person has no force or effect.
(4)     The Registrar must not issue a licence or learner's permit to any person who is so disqualified.
(5)     A person must not drive a motor vehicle on a road while his or her licence or learner's permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner's permit.

Counsel submitted that sections 91(2) and (3) demonstrate that the effect of suspension is the same as disqualification. When a licence is suspended and when a person is disqualified from holding and obtaining a licence, any licence held has “no force or effect”. According to counsel, the directive contained in subsection (4) that the Registrar must not issue a licence or learner’s permit to any person who is “so disqualified” ought to be read in the context of those subsections. Accordingly, subsection (4) applies to persons who hold a suspended licence. Counsel contended that a construction of section 91 that would enable a suspended licence to be renewed would create confusion amongst suspended licence holders, as a renewal of a suspended licence might engender a belief by the licence holder of an entitlement to drive. As a consequence, counsel submitted that section 91 should be construed broadly to give effect to the legislative intent that a suspended licence ought not to be renewed.
Counsel for Mr Kekes submitted that suspension and disqualification are two distinct concepts and the statutory prohibition that prevents the Registrar from issuing a licence to any person who is disqualified from holding or obtaining a licence, does not apply to persons whose licence is merely suspended. Counsel contended that disqualification of licence has the effect of cancellation of licence, while suspension has the effect of withdrawing the authorisation to drive.[31]
[31] Springall v Police [2007] SASC 425 at [12] (Duggan J).
Counsel for Mr Kekes drew the Court’s attention to several sections of the Road Traffic Act and the Motor Vehicles Act said to support the contention that suspension and disqualification are not interchangeable concepts.
Section 47IAA of the Road Traffic Act permits a police officer to impose a notice of instant disqualification or suspension and relevantly provides:
(4) If a person is given a notice of immediate licence disqualification or suspension under subsection (2)—
(a)in the case of a person who does not hold a driver's licence—the person is disqualified from holding or obtaining a driver's licence for the relevant period; or
(b)in the case of a person who holds a driver's licence—the person's driver's licence is suspended for the relevant period.
Counsel for Mr Kekes contended that this section not only demonstrates that the concepts of suspension and disqualification are distinct, but, as Mr Kekes was the holder of a valid and current driver’s licence at the time that he was served with the notice of suspension, the effect of the notice was one of suspension and not disqualification.
Counsel contended that this was one of several provisions in the Motor Vehicles Act and the Road Traffic Act that distinguish between suspension and disqualification. For example, section 85 of the Motor Vehicles Act provides a power to the Registrar to suspend or cancel a person’s licence or learner’s permit:
Procedures for suspension, cancellation or variation of licence or permit
If the Registrar decides to exercise a power to suspend, cancel or (otherwise than on the person's application) vary a person's licence or learner's permit, the Registrar must give the person notice in writing of—
(a)     the reasons for the suspension, cancellation or variation; and
(b)     any action required to be taken to have the suspension removed or to avoid the cancellation or variation; and
(c)     the date on which the licence or permit is to be suspended, cancelled or varied; and
(d)     the right to apply for a review of the decision.
According to counsel, this section emphasises that suspension and cancellation are distinct concepts.
A further example highlighted by counsel was section 45B of the Road Traffic Act which provides:
Power of police to impose licence disqualification or suspension
(1)     Subject to this section, if a person is given an expiation notice for—
(a)     an offence against section 45A; or
(b)     an offence against section 79B constituted of being the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of an offence against section 45A,
a police officer may give the person a notice of licence disqualification or suspension in the prescribed form.
(7)     If—
(a)     a period of licence disqualification or suspension has applied to a person as a result of the person having been given a notice of licence disqualification or suspension under this section; and
(b)     a court convicts the person of the offence in relation to which the notice was given or another offence arising out of the same course of conduct; and
(c)     a mandatory minimum period of disqualification would (apart from this subsection) be required to be imposed for the offence,
then—
(d)     the court must order that the person be disqualified from holding or obtaining a driver's licence for a period determined by the court (and if the person is the holder of a driver's licence, the disqualification operates to cancel the licence from the commencement of that period); and
(e)     despite any other provision of this or any other Act, the court must, in determining the period, take into account the period of licence disqualification or suspension that has applied to the person as a result of the notice and may impose a period that is less than the mandatory minimum period of disqualification (provided that the period imposed is not less than the difference between the mandatory minimum and the period that has applied as a result of the notice).
The Court’s attention was also drawn to section 43 of the Road Traffic Act.Section 43(1) provides the penalty for failing to stop or give assistance in the event an accident and section 43(2) further provides:
Where a court convicts a person of an offence against subsection (1)—
(a) the disqualification prescribed by that subsection cannot be reduced or mitigated in any way unless, in the case of a first offence, the court is satisfied that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;
(b) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification.
Counsel finally drew attention to section 47(3)(d) which also refers to disqualification as having the effect of cancellation.
Where a court convicts a person of an offence against subsection (1) in which the vehicle concerned was a motor vehicle, the following provisions apply:
(a)     the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)in the case of a first offence—for such period, being not less than twelve months as the court thinks fit; or
(ii)in the case of a subsequent offence—for such period, being not less than three years, as the court thinks fit;
(b)     the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;
(d)     if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification;
Counsel further contended that the very words of section 91 demonstrate that the concepts of suspension and disqualification are not interchangeable.
Consideration of the matter
The determination of the matter necessarily rests upon the construction of section 91 and the concepts of suspension and disqualification. If the construction contended for by the Registrar is to be accepted, Mr Kekes’ case would fall at this hurdle. In considering the proper interpretation of section 91, the question of whether the Registrar had authority to deal with suspensions and disqualifications as though they have the same effect, arises for determination.
Further questions that arise for consideration include whether the Registrar is entitled to predetermine the eligibility of those subject to a suspension of licence in the manner that has transpired and whether the Registrar was under any obligation to provide Mr Kekes with notice of his impending expiry of licence.
There is a fundamental difference between the concepts of disqualification and suspension. Under the Motor Vehicles Act, a person is disqualified from holding or obtaining a driver’s licence for a period of time. The order of the court would preclude a renewal of a driver’s licence, as the driver no longer holds a driver’s licence. If a driver sought to renew a licence, it would offend the court order that the driver not obtain a licence. The disqualification is a disqualification of the person. It is an order that affects the person.
By contrast, the notice of immediate suspension operates on the licence. The suspension does not operate on the person. The licence rather than the person is suspended. This fundamental distinction is expressly recognised in the text of section 91.
Section 91 refers to both suspension and disqualification. As noted, section 91(2) refers to a suspended licence having no force or effect and section 91(3) makes reference to the licence of a person who is disqualified from holding or obtaining a licence or learner’s permit, having no force or effect.
As earlier observed, subsection (4) prohibits the Registrar from issuing a licence to any person “who is so disqualified”. Having regard to the fact that the section earlier refers to the two concepts of disqualification and suspension, according to the plain meaning of the words, this prohibition does not apply to those licences which are merely suspended. Had Parliament intended the prohibition to operate in relation to suspensions in addition to disqualifications, the section might have been drafted to read, “…who is so disqualified or suspended”.
This is particularly noteworthy having regard to the terms of section 91(5) where Parliament has specifically prohibited those whose licences are suspended, or those who are disqualified from holding or obtaining a licence, from driving a motor vehicle on the road. As a consequence, it is clear that Parliament sought fit to treat the issue of a licence in relation to suspension differently from the issue of a licence in relation to disqualification.
Having regard to the above, the Registrar does not have authority pursuant to section 91 to treat a suspended licence as though it has the same effect as disqualification.
It is of further importance to highlight that if suspended licences could not be renewed, the result would be an arbitrary treatment of persons who receive an immediate suspension on being apprehended for the relevant offence in comparison with those who do not. Although two such people may have committed an identical offence, and could potentially receive the same sentence, the person who is not served with an immediate suspension would be eligible for the alcohol interlock scheme, while the person who receives an immediate suspension and their licence could not be renewed would not be eligible. It is relevant to observe that if suspended licences were not capable of being renewed prior to sentencing, the intent of the alcohol interlock scheme would be undermined.
As contended by Mr Kekes, pursuant to section 47IAA(4)(b) of the Road Traffic Act, the effect of the notice served on him was one of suspension and not disqualification. Accordingly, had Mr Kekes made an application for renewal of his licence, section 91(4) would not prohibit the Registrar from renewing that licence. Had such application been made and the requirements in section 77B complied with, the Registrar would have been required to renew the suspended licence pursuant to section 75. As a consequence, the issues of predetermination of eligibility and constructive refusal must be examined.
Constructive refusal
The affidavit of Mr Neville reveals that Mr Kekes was not sent a licence renewal application form as a consequence of the determination by the Registrar that he was not eligible to renew his licence due to the suspension of his licence. The affidavit evidence makes clear that Mr Kekes satisfied the other relevant criteria of the Motor Vehicles Act. The determination of the eligibility of Mr Kekes to renew his licence, by reference to the fact of licence suspension rather than licence disqualification, was flawed. This decision was based on an incorrect understanding of section 91, and a misunderstanding of the differences between the concepts of suspension and disqualification.
The predetermination of eligibility led to the decision of the Registrar not to send the renewal application form to Mr Kekes. In these proceedings, this decision is subject to judicial review and the issue of a writ in the nature of mandamus will only be available if the failure to send the form can be considered to be a decision made by the Registrar in the exercise of his statutory duties.
As noted earlier, the Registrar contended that the statute only requires the Registrar to consider the eligibility of an applicant for renewal of a licence on application in writing according to the requirements of section 75 of the Motor Vehicles Act. The Registrar contended that Mr Kekes is seeking review of the decision not to send out a renewal notice rather than any decision as to the eligibility of Mr Kekes to be issued with a licence and this decision is not a reviewable decision.
I reject this submission. As earlier noted, a component of the exercise of the Registrar’s jurisdiction is the statutory duty to make a decision as to the eligibility of persons to renew their licences. According to the affidavit of Mr Neville, the practice is that once this decision is made, if the person is considered eligible, the Registrar causes a renewal application form to be sent to that person prior to the expiry of their licence.
The determination as to the eligibility of Mr Kekes to renew his licence in these proceedings was a predetermination of eligibility. The decision not to send Mr Kekes a renewal application form was a decision made on the merits, on the basis of that predetermination. It was predetermined that he would not be entitled to renew his licence on the basis of the suspension and therefore was not sent the renewal application form. As the evidence makes clear, any application by Mr Kekes to renew his licence prior to its expiry and during the period of his licence suspension, would have been refused on the basis that he “would have been viewed as a person who was not eligible to renew his licence due solely to the fact that his licence was suspended…”.
As a consequence, the decision not to send Mr Kekes a renewal application form was a decision made in the course of the exercise of the Registrar’s statutory duty. In the circumstances, the predetermination of eligibility and the consequent failure to renew Mr Kekes’ licence was a constructive refusal or failure to exercise jurisdiction.
In light of the earlier discussion regarding the legal principles pertinent to the grant of an order in the nature of mandamus, once it is demonstrated that the Registrar predetermined eligibility to renew the licence of Mr Kekes based on a misconstruction of section 91, an error of law is established which amounts, in this case, to a constructive failure to exercise jurisdiction. The error of law related to the construction of the provision which invests the Registrar with jurisdiction. This error led the Registrar to apply a wrong and inadmissible test in determining the eligibility of Mr Kekes to renew his licence. To put it another way, the Registrar has misconceived his duty in the exercise of his jurisdiction or authority to determine the eligibility of Mr Kekes for a grant of a renewal of his licence. This determination was given in a purported rather than actual exercise of jurisdiction and amounted to a constructive failure to exercise jurisdiction.
The decision of the Registrar not to send the renewal application form is a reviewable decision.
Conclusion
I grant judicial review and make an order in the nature of mandamus. Subject to the renewal of Mr Kekes’ licence, I will allow the appeal from the Magistrate’s decision refusing to order that Mr Kekes is entitled to be issued with a driver’s licence that is subject to the alcohol interlock scheme.
I adjourn further consideration of both proceedings. I direct that counsel for Mr Kekes prepare minutes of order with respect to the judicial review proceedings and proposed minutes of order with respect to the appeal.