Khan v Registrar of Motor Vehicles - [2019] SADC 2

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application for Review)
KHAN v REGISTRAR OF MOTOR VEHICLES
[2019] SADC 2
Judgment of His Honour Auxiliary Judge Clayton
18 January 2019
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - GENERALLY
Review of the decision of the Registrar of Motor Vehicles who dismissed an application for Mr Khan to be licenced as a motor driver instructor.
Held:
There are reasons to depart from the decision of the Delegate.
Mr Khan was a person who satisfied Standards 1, 2 and 3 of the South Australian Motor Driving Instructors Code of Conduct.
Order rescinding the decision of the Delegate and the decision of the Deputy Registrar and substituting a decision that Mr Khan is a fit and proper person to hold an instructors' licence pursuant to s 98A of the Motor Vehicles Act.
Motor Vehicles Act 1959 s 98; District Court Act 1991 s 42E, referred to.

KHAN v REGISTRAR OF MOTOR VEHICLES
[2019] SADC 2

Imran Khan has applied to be licenced as a motor driver instructor. The requirement for a licence is established by s 98A(1) of the Motor Vehicles Act 1959. Sub-section (2) provides:
(2)     If the Registrar is satisfied that an applicant for an instructor's licence—
(a)     holds an unconditional licence and has, during the period of 5 years immediately preceding the application, held such a licence for 2 years or periods totalling 2 years (excluding, if the applicant has been disqualified from holding or obtaining a licence in this State, or from holding or obtaining an interstate licence in another State or Territory of the Commonwealth, any period preceding the period of disqualification); and
(b)     has, during the period of 5 years immediately preceding the application, held a driver's licence in this State or elsewhere for 4 years or periods totalling 4 years (excluding, if the applicant has been disqualified from holding or obtaining such a licence in this State or elsewhere, any period preceding the period of disqualification); and
(c)     is a fit and proper person to hold an instructor's licence; and
(d)     is proficient as a motor driving instructor,
the Registrar must issue to the applicant an instructor's licence in a form determined by the Minister.
Sub-section (5) provides:
(5)In order to test the proficiency of any applicant for an instructor's licence (whether or not the applicant is or has been the holder of such a licence) the Registrar may require the applicant to undergo such tests as the Registrar may think necessary, whether written, oral or practical, and those tests must, without limiting the generality of the foregoing, include examination in traffic laws, driving practices, vehicle manipulation and teaching technique.
Mr Khan first enquired about obtaining driver instructor qualifications in 2014 but he had not held an Australian licence for two years and he had to wait. While he was waiting the fees increased and he had to wait a further year before he had the necessary finance in 2016. Service SA had recommended two driving schools and Mr Khan enrolled with the Allan Miller Training School which quoted a fee of $6500. He commenced training on 8 May 2017.
On 28 September 2017 Mr Khan attempted a final assessment but was unsuccessful. On that occasion two officials from DPTI attended for the purpose of auditing the assessment. Mr Khan was unsuccessful because he committed a breach of road law and made many minor errors. Before undergoing the test he had told the instructor from Allan Miller that he felt unwell. The instructor has advised that the demeanour of Mr Khan confirmed that to him. The instructor suggested that the assessment be rescheduled but Mr Khan declined the offer and chose to proceed with the assessment.
Mr Khan attempted a final assessment again on 30 October 2017 when he was successful and was provided with a certificate from Allan Miller Transport Training that he had fulfilled the requirements of a Certificate IV in Transport and Logistics (Road Transport-Car Driving Instruction), National Course Code: TL 141216.
Prior to the assessment on 30 October 2017 Allan Miller Transport Training had given DPTI the mandatory seven days’ notice but the department failed to schedule an auditor to oversee the assessment. The instructor from Allan Miller, Mr Greig, was aware that the Department intended to attend all final assessments and he rang the appropriate section of DPTI seeking direction, but the phone was unattended. He then proceeded with the assessment. He has stated that historically when an auditor did not attend they were to go ahead with the assessment. The instructor requested that the administrative staff of Allan Miller notify him if an auditor did arrive so that he could return to the office and collect them, but no auditor arrived.
Attempts by Allan Miller to obtain an explanation from DPTI as to the non-attendance of an auditor on 30 October 2017 were unsuccessful until the hearing of this appeal on 14 December 2018 when counsel for the respondent advised from the bar table that the reason for non-attendance was that there was no auditor available.
By the time Mr Khan was issued with the certificate the fees charged by Allan Miller had more than doubled from the original quote.
On December 1, 2017 Ms Heathcote, a Delegate of the Registrar of Motor Vehicles, wrote to Mr Khan referring to the requirement in s 98A(2)(d) of the Motor Vehicles Act which requires that the Registrar of Motor Vehicles must be satisfied that an applicant for a motor driving instructors licence is proficient as a driving instructor. After referring to the assessments on 28 September 2017 and 30 October 2017 the letter referred to s 98A(5) and continued:
Pursuant to section 98A(5) of the Act, I now require you to undertake a Regulator Final Assessment with a Government Officer from the Department of Planning, Transport and Infrastructure to assess your proficiency to hold a MDI licence.
The letter advised that under s 98Z of the Motor Vehicles Act should Mr Khan feel aggrieved by the decision to conduct a Regulator Final Assessment before issuing him with a MDI licence, he was entitled to apply for a review of the decision.
On receipt of Ms Heathcote's letter Mr Khan attended at the office of Allan Miller and events which are central to this appeal took place. When advised by employees of Allan Miller of those events a delegate of the Registrar determined that Mr Khan was not a fit and proper person to hold a licence pursuant to s 98A(2) of the Motor Vehicles Act.
In December 2017 Ms Phoebe Olley had been employed by Allan Miller Transport Training for about 10 months as a Client Services Officer. She knew Mr Khan, having dealt with him on numerous previous occasions. On 20 December 2017 she provided a statement to an investigator with DPTI in which she referred to an occasion, on a date which he could not remember, when Mr Khan had completed a training session and he appeared to be quite agitated about something to do with his lesson. He was speaking loudly and very quickly but she could not understand what he was saying because of his accent. She said she was petrified at the time because of his aggressive manner towards herself and another employee. She had seen him behave in a similar manner on other occasions but not to the same extent. They had to get the Business Manager or Operations Manager to calm him down.
Ms Olley also overheard a conversation which the Senior Administration Officer, Ms Bianco Longo, had with Mr Khan over the telephone on 7 December 2017. She overheard some of what was said although she was on the phone herself at the time to another client. She said that when she finished her own conversation she looked at Ms Longo who looked shaken from the conversation she was having with Mr Khan. Later Ms Longo told her that Mr Khan had said inappropriate and disturbing things towards the trainer and the department.
Ms Olley said in her statement that she had dealt both face-to-face and over the telephone with Mr Khan in excess of 40 occasions.
In her oral evidence to the court Ms Olley suggested it was 100 occasions. She said that frequently he would become agitated and frustrated over scheduling his training sessions and become angry when his trainer was not available. She said he was difficult to deal with. She felt anxious and apprehensive at having to deal with him. She said Mr Khan was unpredictable in his behaviour. On some occasions he was very nice and easy to deal with but on others he could be quite angry, aggressive and impossible to deal with. When she first started dealing with Mr Khan she found him to be ‘happy and engaging’ but in her statement she said she now found him ‘very angry and aggressive more often than not’.[1]
[1] Statement p 4.
In her evidence she repeated that when she first met Mr Khan he was ‘very polite and kind, very welcoming’ but his behaviour changed and during the middle to the end of this course ‘he started getting quite agitated, quite aggressive towards the admin staff at the front as well as the business manager as well, as the trainer as well.’[2] She found his behaviour intimidating and she felt ‘quite upset and concerned for our safety as well when he was getting quite agitated at the situation.’[3]
[2] T 79.8.
[3] T 81.
During the hearing an issue arose as to whether Ms Olley had 40 conversations or 100 conversations with Mr Khan. Nothing turns on that dispute.
The significance of the evidence of Ms Olley is diminished by the fact that she never actually heard what was said between Mr Khan and Ms Longo on 7 December 2017.[4]
[4] T 87.35.
In cross-examination Ms Olley conceded that Mr Khan appeared to be a man who got frustrated because of the delays in Allan Miller's teaching and the extra costs that were being put upon him.[5]
[5] T 88.
In December 2017 Ms Bianca Longo had been working with Allan Miller as Senior Administration Officer for approximately four years. On 7 December 2017 she received a telephone call from Mr Khan, whom she knew well, having had numerous dealings with him over the previous 12 months. Mr Khan advised that he had received the letter from DPTI and that he had to be reassessed. Ms Longo replied that she was unaware of the letter and requested Mr Khan to send a copy of the letter to the mobile phone of Mr Khan's Motor Driving Instructor so that she could read the letter and call him back. Before she had an opportunity to do that Mr Khan rang again. Ms Longo advised Mr Khan that she had not had an opportunity to read the letter. Mr Khan replied that he believed the letter to be ‘racist’. Ms Longo advised him to speak with someone from DPTI because she was not aware of the letter and was unable to offer any advice. Mr Khan then became very worked up and sounded aggressive over the telephone.
Ms Longo said he was angry due to all the delays in trying to complete his training which were costing him a lot of money. He went on to state that he would be contacting his lawyer with regards to the letter and that he was going to ‘cut’ himself so that if the matter went to court he could show how mentally drained he was from dealing with the delays experienced whilst attempting to complete his training. Mr Khan also stated that he would go to the media and expose Allan Miller for their poor business practices.
The statement he made during the telephone conversation that upset Ms Longo most was that he threatened to hurt someone. He stated to Ms Longo that she should warn Colin, his trainer, that if an auditor from DPTI got into the vehicle whilst he was training to do an audit as required in the DPTI letter, he would speed up the car to 100 kph and crash the car into a tree.[6]
[6] AB 58, 59.
In her statement to the investigator Ms Longo said:
During my dealings with Khan both face to face and over the telephone, I have found him to be difficult on occasion when things don't go his way. He has not been like this on every occasion. He has in the past become angry and aggressive over issues such as the delay he has experienced with his driver training with Allan Miller. He also becomes angry and states that he has spent a significant amount of money to not get very far with his training. I find him difficult to explain things to and have a conversation with as when he gets angry, he becomes frustrated and tends not to listen to what I have to say and will often speak over the top of me. He will speak in a loud voice, he tends to speak faster making it harder to understand him due to his accent and will raise his voice at me he will always mention the same topics and I would say that he can "ramble on" quite a bit sometimes. I couldn't say exactly on how many occasions he has behaved like this with me, however it has been a significant amount of times over the last 12 months.
The next day Friday, 8 December 2017 at about 10.00 am I received another telephone call from Khan. In this telephone call he stated to me that he will go to DPTI and tell them that he paid his instructor so that Colin would pass him and give him his Motor Driving Instructors Licence. I didn't speak with him for very long and he was aggressive with me on this occasion.
When I see him come through the front doors or realise that he is on the other end of the telephone, this fills me with a sense of dread. I find Khan to be unpredictable in nature and very moody. It's hard to know what sort of mood he will be in when you next deal with him and I find him to be aggressive towards me when he is not happy with something that he perceives has happened.[7]
[7] AB 60.
In addition to her written statement Ms Longo also gave evidence. She said she sat in the reception area of the office and oversaw the two reception girls one of whom was Ms Olley. She had dealt with Mr Khan on at least 50 occasions. When she first met him she found his behaviour to be that of ‘a nice man’, but his behaviour changed towards the end. When asked how his behaviour changed Ms Longo said:
A little bit more aggressive. Obviously I know that he was very frustrated in the time it took to do the course and obviously those frustrations come out in conversations. So I felt, yeah, a lot more aggressive towards my end dealings with him.
Ms Longo confirmed her written statement about the first telephone conversation on 7 December 2017 and continued:
... by the time I received the second phone call I believe yeah, Mr Khan was quite angry because no one had any answers for why he received that letter. So, basically, I just tried to calm him down and say "you just need to give us a little bit of time to figure out why you received this letter". The phone call was very aggressive. I understand that he was angry but there were some things in there that I did not like that was said.[8]
When asked to explain to the court what Mr Khan said Ms Longo replied:
… so basically he felt that it was racist, the letter was, no-one else from the course receive this letter. Once again, I don't know if anyone received a letter like that. That it was mentally distressing for him to pay all this money and then have to be reassessed and if he was reassessed he would crash the car into a tree with Colin and the auditor in there.[9]
[8] T 57.
[9] T 58.
When asked to describe the tone and volume and the demeanour of Mr Khan during the conversation Ms Longo said ‘... like I said, aggressive is the only way that I can describe it; aggressive, angry, venting I guess. Just really frustrated’.
Ms Longo was asked whether Mr Khan had presented in the same way on the occasions when she dealt with him before and she replied:[10]
No, no. So there were times when, I understand that towards the end of the course you're frustrated, you've paid a lot of money but the majority of the conversations we had were fine.
At the end of the conversation Ms Longo said to Mr Khan:[11]
We can't talk like that, we just need to get to the bottom of why this letter was sent. So, making a statement like that isn't going to make the situation go away any faster.
She was asked what the response to that statement was and replied:[12]
I think in the end we both sort of, you know, settled down and I said that we would try to find the reasoning why. "I need to have a chat to Colin". I think the end of that conversation we ended on a civil matter. Yeah.
[10] AB 59.
[11] AB 60.
[12] AB 61.
Ms Longo confirmed that Allan Miller had let the Department of Transport know seven days prior to final assessment on 30 October 2017 that it was taking place and that it was up to the Department to schedule the auditor. She sent the booking sheet.[13] Notwithstanding the booking sheet the department failed to send an auditor out although they did not send auditors to every final assessment.[14] In order to assist Mr Khan, Ms Longo did attempt to ascertain what was going on with the Department but she never received a satisfactory answer.[15]
[13] AB 67, 68.
[14] AB 73.
[15] AB 73.
In cross-examination Ms Longo agreed that in all of her dealings with Mr Khan there were only two occasions when he had vented frustration over the telephone or in person.[16]
[16] AB 70.
Ms Longo was asked whether she understood why Mr Khan had become angry and she said ‘I completely 100% understand the frustration, I get it’.[17]
[17] AB 71.
Her cross-examination continued:[18]
[18] T 72.
QSo you've got a man who's been pretty well behaved up until he gets frustrated about costs and delays, and we're going to agree to disagree, but even assuming he vented, it was twice; yes.
AYes.
QAnd everybody then calmed down. You and he did anyway.
AYeah.
The cross-examination of Ms Longo, concluded with the following exchange:[19]
QHe's frustrated and vented twice within two days and that's the end of it.
AYep.
QHe's not behaved like that before.
AThat's right.
QAnd he didn't behave like that at least in your hearing afterwards.
ACorrect.
[19] T 75.
When interviewed by Mr Fugler, an experienced psychologist, Mr Khan denied the accusations made by Ms Longo and Ms Olley that he threatened to harm himself, cut himself or crash his car into a tree at 100 kph.[20] He also denied having made those statements in evidence to the court.
[20] T 15.
Ms Longo was a mature and sensible witness whose evidence I accept without reservation. To the extent that there might be any variance in their evidence I prefer the evidence of Ms Longo to the evidence of Ms Olley. I find that Mr Khan did make the statements which are referred to in the evidence of Ms Longo. However that finding does not dispose of the matter.
The question is whether there are cogent reasons to disturb the finding of the Delegate of Registrar that Mr Khan was not a fit and proper person to hold an instructor's licence as required by s 98A(2)(c). In passing I mention that the question raised by s 98A(2)(d), that is whether Mr Khan ‘is proficient as a motor driving instructor’, the question raised by Ms Heathcote's letter of December 1, does not arise on this appeal.
Mr Fugler is an experienced psychologist. I accept his evidence without reservation. It is his opinion that Mr Khan is a fit and proper person and that in his opinion the department was a little hasty in taking away his right to teach others to drive.[21]
[21] T 12-13.
Ms Stirling, for the Delegate, cross-examined Mr Fugler about the fact that Mr Khan had denied the allegations of Ms Longo and Ms Olley. The evidence of Ms Olley is more concerned with the conduct of Mr Khan over a period of time. She did not overhear the telephone conversation between Mr Khan and Ms Longo.

Taken as a whole the evidence of Ms Longo about the telephone conversation, to which I preferred above, puts the statements of Mr Khan into context. The conversations with Ms Longo took place in circumstances where Mr Khan had been required to pay over $7000 more than he had been quoted for the course, he was frustrated by the delays which had occurred, and was then confronted by Ms Heathcote's request for him to undertake a further Regulator Final Assessment with a Government Officer, the auditor having failed to attend as requested on 30 October 2017 and Allan Miller being unable to obtain any explanation form DPTI for the non-attendance.
The fact that Mr Khan was frustrated and angry is confirmed by Ms Longo. The statements attributed to Mr Khan appear to have been out of character and irrational, which is a likely consequence of the frustration and anger that he was experiencing. In the passages of her evidence to which I have referred Ms Longo agreed that Mr Khan had not behaved like that before and has not behaved like that since. Overall the evidence of Ms Longo does not establish that Mr Khan was not a fit and proper person to hold an instructors’ licence.
While I accept the submission of Ms Stirling that the denial of Mr Khan that he made the alleged statements cannot be accepted I do not, in the circumstances, regard his false denial as a matter of consequence in the ultimate resolution of this appeal.
On 14 December 2017 Mr Khan forwarded an email to Ms Heathcote enclosing a three-page submission.[22] In the covering message Mr Khan said that he had tried calling Ms Heathcote several times in the past week and had left several messages with a person called Michael, but had not heard back. He concluded the email stating that he felt that he had been victimised and discriminated on racial grounds.
[22] AB 27-30.
In the covering letter Mr Khan pointed out that he had paid a $600 examination fee for the assessment on 30 October 2017. The consequence is that Mr Khan was $600 out of pocket by reason of the failure of the department to arrange for an auditor to attend at the assessment. DPTI had not provided any explanation for the non-attendance of an auditor. The frustration and anger of Mr Khan which is detailed in his attached letter is understandable.
On 5 January 2018 Mr Khan forwarded a further email to DPTI advising that he had not had a reply and requesting an update. He also advised that he had requested a review (presumably under s 98Z of the Motor Vehicles Act in accordance with the statement in Ms Heathcote's letter of 1 December 2017) and paid the $22 fee at Mitcham Service SA.[23]
[23] AB 35.
On 8 January 2018 Margaret from the Compliance, Investigations and Prosecutions/Regulation Directorate of DPTI, forwarded an email to Mr Khan advising that a letter would be sent to him by the end of that week detailing the process for him.
On 12 January 2018 Emma Kokar, the Deputy Registrar of Motor Vehicles, forwarded a three-page letter to Mr Khan.[24] She referred to Mr Khan's application for a Motor Driving Instructors licence and mentioned that amongst other criteria, in order to approve an application she must be satisfied that an applicant is a fit and proper person to hold an instructors licence and, is proficient as a MDI. She advised that she was considering whether to refuse Mr Khan's application for a MDI licence and that the purpose of the letter was to inform Mr Khan of the matters giving rise to the consideration of whether she should refuse the application. She invited information or submissions as to the matters which were set out in the letter.
[24] AB 37.
The Deputy Registrar referred to the events of 28 September 2017 and 30 October 2017, Ms Heathcote's letter of 1 December 2017 and Mr Khan's response dated 14 December 2017. She also acknowledged receipt of Mr Khan's application for a review of Ms Heathcote's decision dated 27 December 2017. She then stated: ‘Prior to consideration being given to the review of Ms Heathcote's decision, I advise I am now in possession of information provided by staff members employed at Allan Miller Driving School which raises concerns as to your fitness and propriety to hold an MDI's licence’. She then outlined the information which had been provided to her referring to the statements of Ms Longo and Ms Olley.
The Deputy Registrar advised that no decision had been made to refuse the application for a MDI licence and invited Mr Khan to provide any information and/or submissions in writing about the matters which she had raised.[25]
[25] AB 40.
Mr Khan replied by a three-page letter dated 30 January 2018 which enclosed 13-character reference letters and other documents.[26] In his letter Mr Khan explained why he was agitated or frustrated with Allan Miller. He explained that he had to pay extra money towards the transition from course 41210 to course 41216. He said he had completed the old course and was just about to take the final assessment when Allan Miller changed the course without prior notice. He said the unnecessary delays in completing the course affected him and his family mentally and financially.[27]
[26] AB 66.
[27] AB 66.
Mr Khan responded to the statements of Ms Longo and Ms Olley. As to the alleged statement about crashing a car he pointed out that the instructor drove a double control car and that the instructor had full control over the car while training a student. He queried why he should pay another fee for reassessment.
In conclusion he sincerely apologised to Allan Miller and DPTI and said that if he hurt them it was purely unintentional. Counsel for Mr Khan referred to the apology in response to the submission for the respondent which criticised Mr Khan's denial that he made the alleged statements.
Without descending to detail the 13-character reference letters which were enclosed indicate that Mr Khan is a fit and proper person to hold an MDI licence. The authors of the references include his supervisors, work colleagues, a retired schoolteacher, neighbours and his wife’s employer.
About three weeks later, on 22 February 2018, Mr Khan followed up his letter which was unanswered.[28]
[28] AB 87.
The Deputy Registrar published her decision on 28 February 2018. The primary focus of the reasons was the statements of Ms Longo and Ms Olley. The Deputy Registrar concluded:
… Given the comments made in the signed statements of Phoebe Olley and Bianco Longo and your response to the allegations, I am not confident you would deal with your clients in a calm and considerate manner
Whilst it is clear from the references that you supplied that you have had a positive impact on many people, I cannot be confident that if you are placed in a stressful situation as can quite often be the case with learner drivers, you will not display behaviour as identified by the staff at Alan Miller.
Of greater concern are the comments made with regards to driving your vehicle into a tree. This was seen as a "threat" to harm others whether that was your intention or not. Displays of this type of behaviour will not be accepted or tolerated within the Driver Training Industry.
The Deputy Registrar said ‘After careful consideration of the above documentation, I am satisfied that you are guilty of conduct making you unfit to hold an instructor's licence.’[29] That, with respect, was not the relevant test. It was not a question of whether Mr Khan was guilty of the alleged conduct and to focus only on his conduct on the 7 December 2017. The question of whether Mr Khan was a fit and proper person to hold an instructor's licence required a wider enquiry.
[29] My underlining.
In conclusion the Deputy Registrar referred to Mr Khan's right of review pursuant to s 98Z of the Motor Vehicles Act.
On 21 March 2018 Mr Khan wrote a five-page letter to the Deputy Registrar headed ‘Reply to Motor Driving Instructor Licence Application Decision’. The letter traverses a wide range of issues and concludes with a request to reconsider the whole situation and grant Mr Khan an MDI licence. (AB 95 to 99). Attached were statutory declarations from persons for whom Mr Khan had voluntarily acted as a driving instructor. They all support the contention that he was a fit and proper person to be a driving instructor.
A review of the decision dated 21 March 2018 was conducted pursuant to s 98Z of the Motor Vehicles Act by Ms Sarah Clark, a Delegate of the Registrar of Motor Vehicles. For reasons set out in a letter to Mr Khan dated 3 July 2018 the Deputy Registrar’s decision to refuse his application for appointment as a MDI was confirmed.
The Delegate referred to Ms Heathcote's letter of 1 December 2017, Ms Kokar's letter of 12 January 2018 and Mr Khan's application dated 21 March 2018. She then set out what are described as Reasons. She advised that she had had regard to the materials previously provided to Mr Khan, to his submissions of 30 January 2018 and 21 March 2018. She said that she paid particular attention to the character references provided although there is no reference to or analysis of the substance of the references. The Delegate then said:
I confirm the Deputy Registrars decision to refuse your application for appointment as an Authorised Examiner. I do not consider that you are a fit and proper person to fulfil this role. This is for the following reasons. (My underlining).
1.After carefully considering your submissions and the character references provided, I accept the statements of Phoebe Olley and Bianca Longo as to your conduct and the effect it had on them. Both witnesses had similar concerns about your behaviour and I have identified no reason why I should not accept their statements.
2.Based on the content of both statements, I am not satisfied that you would deal with your clients in a calm and considerate manner particularly if placed in a stressful situation as can often occur when instructing learner drivers. I am particularly concerned by your use of abusive and threatening language. While I accept there is potential for some misunderstanding due to language and cultural differences I find it improbable that both witnesses could misunderstand the intent of your behaviour.
3.In relation to your submission that you have been targeted by the Department on racial grounds, MDIs play an important role in teaching people to drive a motor vehicle and for this reason the Registrar must be satisfied that any applicant is proficient as a motor driving instructor, the Motor Vehicles Act 1959 (the Act) provides for the Registrar (or their delegate) to require any applicant to undergo tests to an applicant's proficiency.
The letter concluded with a reference to the right of appeal to the District Court under s 98ZA.
The reference by the delegate to an application for appointment as an ‘Authorised Examiner’ is incorrect. However in the first paragraph the delegate does refer to an application for appointment as a Motor Driving Instructor and I pay no regard to the reference to ‘an Authorised Examiner’.
The reference in the paragraph numbered 3 in the Delegate's letter to the requirement that the Registrar must be satisfied that the applicant is proficient as a motor driving instructor is a reference to the requirement in s 98A(2)(d). The question of whether Mr Khan was proficient as a motor driving instructor was not the subject of the review. The matter under review was whether the Deputy Registrar correctly found that Mr Khan was not a fit and proper person to hold an instructors licence pursuant to s 98A(2)(c).
On 6 August 2018 Mr Khan lodged a notice of appeal from the decision of the Deputy Registrar listing eight grounds. Only the first two grounds were argued on the hearing. They are (quoted directly from the notice of appeal):
.I am 100% sure that my case is not studied properly and the decision is made against me.
.I or my witness all my supporting are ignored and the full attention is given to 2 ladies whom I hardly interact and also on who’s statement I have provided evidence that it is not correct.
One of the grounds in the notice is that there is a person in the Department who is a racist. That ground was not argued and is unsupported by any evidence. I disregard grounds three to eight.
Section 42E of the District Court Act 1991 directs the Court to examine the decision of the original decision maker on the evidence or material before the original decision maker, although the court may, as I did in this case, allow further evidence to be presented. The court is not bound by the rules of evidence but may inform itself as it thinks fit and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
I am required to give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons. The question for me is whether there is cogent reason to depart from the decision of the Delegate of the Registrar of Motor Vehicles that Mr Khan was not a fit and proper person to hold an instructors licence pursuant to s 98A of the Motor Vehicles Act.
The decision of the Delegate was based solely upon her acceptance of Ms Olley and Ms Longo as to the conduct of Mr Khan and the effect that it had on them.
Ms Olley was not a persuasive witness. She did not overhear the conversation between Mr Khan and Ms Longo and the Delegate appears to have placed too much emphasis upon the subjective effect that the conduct of Mr Khan had upon her. The relevant enquiry was to consider objectively the conduct of Mr Khan rather than the subjective reaction of Ms Olley.
I accept the evidence of Ms Longo. However while it does demonstrate unusual behaviour on the part of Mr Khan her evidence does put that behaviour into context. The evidence which I have considered indicates that there was reason for Mr Khan to be frustrated and angry and demonstrate his anger to employees of the organisation which had charged him $14,000 against an original quote of $6500 in circumstances where after many months he had yet to receive a licence.
It is significant that while Allan Miller had continued to receive payments from Mr Khan for the purpose of instructing him how to be a MDI that firm never had reason to counsel him with respect to the conduct which is alleged by Ms Olley which was the basis of the report by Allan Miller to DPTI. Allan Miller had received a significant sum to train Mr Khan to be a motor driving instructor. If there had been some problem with the behaviour of Mr Khan, Allan Miller should have counselled him with respect to that problem, but Allan Miller never did that. That fact indicates that it was not a significant issue and minimises the impact of the evidence of Ms Olley.
When it is analysed the evidence of Ms Longo to this court, which was not available to the Delegate, puts the conduct of Mr Khan into perspective. It was Mr Khan’s statements to Ms Longo, which Ms Olley did not hear, which formed the catalyst for Ms Olley's complaints as to the events of 7 December 2017.
The enquiry before both the Deputy Registrar and the Delegate was whether Mr Khan was a fit and proper person to hold an instructors’ licence. In considering that question they should have had regard to all of the available evidence, not just the evidence of Ms Longo and Ms Olley.
Taken as a whole the evidence of Mr Fugler, Mr Khan's wife, all of the persons who provided references together with the evidence eventually given by Ms Longo in cross-examination demonstrates that Mr Khan is a fit and proper person to hold an instructors licence. The Delegate fell into error in focusing on the statements of Ms Olley and Ms Longo to the exclusion of the other evidence. In addition the Delegate did not have the benefit of the evidence of Mr Fugler, the oral evidence which I have heard, in particular the oral evidence of Ms Longo.
I acknowledge the submission on behalf of the respondent that even one example of unacceptable behaviour can be enough to support a finding that a person lacks fitness and propriety, if that behaviour satisfies the decision maker that the person is not suitable to carry out the responsibilities accompanying the role in question.[30] However this is not such a case. Ultimately the question is whether Mr Khan is a fit and proper person to hold a licence, not whether his conduct on a particular occasion was inappropriate. As I have mentioned the conduct of Mr Khan on 7 December 2017 can be explained by the unfortunate situation that he found himself in.
[30] Outline, para 20.
Taken as a whole the evidence establishes that Mr Khan was a person who satisfied Standards 1, 2 and 3 of the South Australian Motor Driving Instructors Code of Conduct.
In my opinion there are cogent reasons to depart from the decision of the Delegate.
In the circumstances there will be an order rescinding the decision of the Delegate and the decision of the Deputy Registrar and substituting a decision that Mr Khan is a fit and proper person to hold an instructors’ licence pursuant to s 98A of the Motor Vehicles Act.
The question of whether Mr Khan is proficient as a motor driving instructor is not before the court and I make no comment with respect to that question.