Kuhn v Registrar of Motor Vehicles - [2009] SADC 48

District Court of South Australia
(Civil)
KUHN v REGISTRAR OF MOTOR VEHICLES
[2009] SADC 48
Judgment of Her Honour Judge Shaw (ex tempore)
16 April 2009
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS
Procedure - Appeal against refusal to waive late payment fee for transfer of registration of a motor vehicle - whether reasonable cause exists to extend time.
Held: Respondent erroneously fettered exercise of discretion - cogent reasons existed to depart from respondent's decision.
Appeal allowed - considered afresh - time extended to enable application for transfer of registration within time.
Motor Vehicles Act 1959 (SA) ss 57(2), 57(4), 98Z; District Court Act 1991 (SA) s 42E, referred to.

KUHN v REGISTRAR OF MOTOR VEHICLES
[2009] SADC 48
Introduction

This is an appeal from a decision of the Registrar of Motor Vehicles (“the Registrar”) made on 9 December 2008, whereby the respondent refused to review a decision by his delegate, in relation to a late payment fee. The appellant had also sought a remittance of the $21 fee in relation to the application for the review. The appellant was unrepresented at the hearing of this appeal. The respondent was represented.
On 22 July 2007, the appellant purchased a second-hand caravan with registration number TVJ 228. On 14 August 2007, the appellant attended at the Christies Beach Customer Service Centre where he intended to effect a transfer to himself of the registration of the caravan. As the 14 day limitation period for registration had expired, a late payment fee of $66 was to be imposed. He was nine days outside the required limitation period. The appellant refused to pay the late payment fee. Accordingly, the transfer of registration has not proceeded.
The Legislation
I turn to the legislation. Section 57(2) of the Motor Vehicles Act 1959 (SA) as amended (“the Act”) provides that, within 14 days of the purchase of a vehicle, the purchaser must deliver an application to transfer the registration of the vehicle to the Registrar. I will assume for the purposes of this appeal, that “motor vehicle” includes a caravan. The application must be in a form determined by the Minister.
Section 52(2) and s 52(3) of the Act provide that where there has been a failure to transfer the registration within the required 14 day period and an application for registration is lodged after that 14 day period, the Registrar “may”, in addition to the prescribed fee for transferring registration, impose a late fee in accordance with the Regulations under the Act.
In addition, the failure to comply with the obligation to deliver the transfer application to the Registrar within the prescribed period of 14 days, carries a maximum penalty of a fine of $250.
Pursuant to s 57(4) of the Act, the Registrar has a discretion to extend the normal time available for making an application to transfer the registration of vehicles. In order to exercise the discretion, the Registrar must be satisfied that reasonable cause exists for doing so.
The Review
I turn to the review by the Registrar. Pursuant to s 98Z of the Act, on 17 November 2008, the appellant applied for a review of the decision of the Registrar upon the grounds that the decision at first instance was incorrect, and that the fine was disproportionate to the trivial nature of the appellant’s conduct, and failed to take into account the appellant’s limited means. Further, the appellant contended that the decision was both unfair and unreasonable.
Annexed to the application for review to the Registrar were copies of correspondence between the appellant and his local member of parliament and between the appellant and the Minister for Transport. This correspondence contained a detailed account of the circumstances of the late application for transfer of the registration that were relied upon by the appellant. He also provided a copy of his pension card and his driver’s licence.
Decision of the Registrar upon the Review
I turn to the decision of the Registrar upon review. By letter dated 9 December 2008, the Registrar advised the appellant of his decision to confirm the late transfer fee imposed in relation to the registration of the caravan and his decision to deny the appellant’s application for waiver of the review fee. The Registrar provided reasons for his decision. I set out those reasons in full.
The Registrar said:
I have considered your application and I am not waiving the late transfer fee in this instance.
The provision in the Motor Vehicles Act 1959 (the Act) that allows me to exempt a person from the payment of a late transfer fee is only used in limited circumstances. I note that examples of these circumstances have been outlined to you in Minister Conlon’s letter of 20 October 2008.
After considering your application I am not satisfied that there is any evidence that suggests that the late payment fee should be exempted in this instance.
I note that you were given the opportunity to present medical evidence that you were unable to apply for the transfer of registration within the 14 days provided for in the Act. If there were medical reasons that prohibited you from transferring the registration on your caravan within 14 days from acquisition and you can provide evidence to support your reasons, I will reconsider your application for exemption of the late transfer fee. I note that an application for transfer of registration can be made through the post or be delivered by an agent of the vehicle purchaser.
I also note that you are in receipt of Commonwealth disability pension; however this itself is not a reason to exempt you from the late transfer fee.
In reviewing your application I have considered fairness and equity to others, including those on a disability pension, who have transferred registration within the time limit imposed under the Act.
In relation to the administration fee charged for the lodgement of the application for review, this fee is prescribed in the legislation to cover the administrative cost of undertaking the review. Given the review has been undertaken, I am not prepared to refund the administration fee.
On 10 December 2008, the Registrar completed a separate document recording his reasons in relation to the review of the decision. The following Reasons for Review Outcome were given:
There is no evidence to suggest that the late payment fee should be waived in this instance.
Mr Kuhn was given the opportunity to present a medical certificate as evidence that he was unable to apply for the transfer of registration within the 14 days provided for in the Act. If Mr Kuhn has medical reasons that prohibited him from transferring the registration on his caravan within 14 days from acquisition and he can provide evidence to support his reasons, I will reconsider his application for exemption of the late transfer fee.
I also note Mr Kuhn is on a Commonwealth disability pension, however this itself is not a reason to exempt him from the late transfer fee which has been established as a penalty in lieu of prosecution for failing to transfer registration within 14 days of acquisition.
In reviewing his application I also considered fairness and equity to others, including those on a disability pension, that have been able to transfer registration within the time limit imposed under the Act.
In relation to the administration fee charged for the lodgement of the application for review, this fee is prescribed in legislation to cover the administrative cost to consider the review application and is therefore not refundable.
In making my decision on this review I have given careful consideration to all facts, previous correspondence, as well as Mr Kuhn’s comments and matters raised on the application for review. I conclude that there is nothing in the present circumstances that would justify providing Mr Kuhn with an exemption for the late transfer fee. Therefore, in this instance I have determined to adhere to the decision and maintain that Mr Kuhn’s request be denied.
Notice of Appeal
The appellant lodged an appeal to this Court against the decision of the Registrar. The grounds of appeal allege, inter alia, that the late payment fee was in the nature of a fine, and was disproportionate to the appellant’s conduct and circumstances. It was further alleged that the decision was a strict adherence to regulations and failed to take into account other relevant matters.
The appellant sought an acceptance of the transfer fee in the sum of $21, a waiver of the $66 late payment fee, a reimbursement of the review application fee of $21 and a waiver and reimbursement of the fee for appealing to this Court in the sum of $90.
The Appeal
I turn to the appeal hearing. The respondent sought to tender an affidavit of the Registrar which contained material beyond that which was before the Registrar at first instance. For example, the Registrar sought to admit material from the records of the Registrar, presumably to somehow influence the court in relation to the appellant’s case. In addition, the Registrar sought to inform the court of further action he proposed to take against the appellant in relation to his licence.
The purpose for which this information was included in the affidavit, which included an expansion of the written reasons already given by the Registrar, is unclear, but I have discussed this matter with counsel during argument and I need say no more about it.
Although the Registrar is represented and has the resources to prepare extensive affidavit material, the appellant is not. Further, the Registrar had already provided his reasons in writing on two separate occasions.
I refer to those matters merely to emphasise that my decision in relation to this appeal is based solely upon the written reasons provided by the Registrar and other material properly put before me.
The Appeal
I turn to the appeal itself. Pursuant to the provisions of s 42E of the District Court Act 1991 (SA), I am not entitled to interfere with the review decision of the Registrar unless I am satisfied that there are “cogent reasons” for departing from it.
Submissions of the Respondent
I turn to the submissions of the respondent. The respondent submitted that the appellant did not provide any medical information to support his contention that illness contributed to his inability to transfer the registration during the prescribed period. The respondent contended in his written submission, that a serious medical condition was necessary for the appellant to make out this submission. The respondent expanded on this written submission during the oral submissions before me. The respondent submitted that in correspondence, the appellant stated that he was unable to locate a form. It was submitted that this could not support the review application. The respondent submitted that the information provided by the appellant did not amount to “reasonable cause” for extending the time available to transfer the registration of the vehicle in question. The respondent submitted that the Registrar had taken into account all relevant circumstances and had exercised his discretion pursuant to the provisions of s 57(4) of the Act. However, the respondent also made a number of concessions about his concerns in relation to the content of a policy document of the Registrar that was exhibited to the affidavit of the Registrar. In particular, I refer to the failure of the Registrar, in his written reasons, to identify the test in the Act, but rather to use language which appeared in some respects, to adopt the policy document guidelines.
In relation to the requested refund of the review fee, the respondent submitted that this could not be justified where there was no error disclosed in the conduct of the review.
Findings
I turn to my findings. For the purpose of this decision, I accept that the appellant was told by the Registrar’s delegate at first instance that she could only accept a waiver of the late transfer fee if she had a sick certificate from the appellant. The appellant relied upon his disability pension card to argue that he was in effect sick during that time and, indeed, permanently so.
I have regard to the policy document which was annexed to the affidavit of the Registrar. This policy document is dated 1 July 2008. It is from the Manager, Customer Service Delivery and the subject is “Late Transfer Fee Registrations”. The topic of the policy document is the ‘considerable inconsistency’ in the application of late transfer fees for vehicle registrations across the customer service network. The policy document sets out s 57(4) of the Act. However, the policy document goes on to state:
In consultation with the Deputy Registrar, I have confirmed that there are only limited extenuating circumstances under which this fee may be waived.
Three dot points follow which purport to identify those limited extenuating circumstances. The policy document concludes by stating:
Managers should be consistently diligent in following up each waiver reported in the override report to ensure that the waiver has been appropriately applied and recorded.
In my view, the delegate of the Registrar at first instance erroneously fettered her discretion when she required the production of a sick certificate as the only basis upon which the extension of time could be granted. The information that is contained in the policy document provides an explanation as to why that may have been the approach of the delegate. Her approach seems to be consistent with the guidelines that are provided in the policy document.
In my view, the Registrar also erroneously fettered his discretion in his determination of the application for review. I refer in particular to the failure of the Registrar to identify and adopt the test provided for in s 57(4) of the Act. Indeed, in the written Reasons of Review Outcome that I have already referred to, the Registrar concluded as follows:
I conclude that there is nothing in the present circumstances that would justify providing Mr Kuhn with an exemption for the late transfer fee.
That is, the reasons for review appear consistent with the policy approach in the document annexed to the Registrar’s affidavit. There was no requirement under s 57(4) of the Act that the appellant’s circumstances fall within an exemption.
The respondent contended on the appeal that the Registrar had taken into account all facts and circumstances as they were placed before him in written material from the appellant. In my view, the Registrar undoubtedly did have regard to all the facts and circumstances placed before him. However, in the decision-making process, he did not adopt the correct test under s 57(4) of the Act. It appears that he may well have implemented the policy which came under the hand of the Deputy Registrar and therefore, wrongly fettered his discretion. I use the expression “Deputy Registrar” because during the hearing of the appeal, counsel indicated that the policy document emanated from the Deputy Registrar, although it is under the hand of the “Manager, Customer Service Delivery”.
In my view, this is confirmed by the statement of the Registrar that he would entertain a further application for a waiver of the late transfer fee if a medical certificate was produced.
If the Registrar was to entertain a further application, it would be one pursuant to s 57(4) of the Act. Therefore, all relevant facts and circumstances would need to be considered in the exercise of his unfettered discretion in the determination of whether or not reasonable cause existed to extend the time.
Conclusion
I therefore conclude that in my view, there are cogent reasons for departing from the decision of the Registrar. I find that the Registrar did not correctly apply the appropriate test under s 57(4) of the Act. Rather, I find that for the reasons that I have already given, he erroneously fettered his discretion.
Reconsideration
I have considered the matter afresh. I have regard to the detailed written and oral submissions of the appellant and of counsel for the respondent. I have regard to the documents that have been placed before me. I have regard to the combination of circumstances placed before me by the appellant. I refer for example, to the fact that the appellant was on a disability pension, his explanation about the effect of his condition upon him and that it can vary from day to day. That in itself is not decisive. However, having regard to the combination of circumstances, together with the fact that it was nine days after the required period allowed for transfer of registration, I am satisfied that reasonable cause exists for extending the time to make an application for transfer of the registration. Therefore the appeal is allowed.
Orders
I make the following orders: I extend the time to make an application for transfer of the registration for a period of 21 days from today’s date. I am of the view that the appellant ought not be liable to pay the application for review fee to the Registrar bearing in mind that it became necessary because the Registrar’s delegate adopted an incorrect approach at first instance.
In view of the appellant’s status as a disability pensioner and that he has been successful on the appeal, I order that the District Court fee for lodging an appeal to this Court in the sum of $90 be waived and that the appellant be provided with a refund.
MR KUHN:                Yes, I have already paid the fee on lodgement.
HER HONOUR:         Very well. So in relation to that fee, I have ordered that it   be refunded.
MR KUHN:                Thank you.
HER HONOUR:         Are there any other orders that you seek?
MR KUHN:I originally asked in my original appeal, that the Registrar of Motor Vehicles ceases being vexatious.
HER HONOUR:         I don’t see that as a matter for me.
MR KUHN:But I think our learned friend may be able to take that information back to deal with it.
HER HONOUR:         I think the matter of your licence is a matter between you and the Registrar. However, during the course of the appeal there have been discussions with the respondent’s counsel about the role of the Registrar and that is a matter that Mr Williams can take up with his client.
MR WILLIAMS:        I can certainly bring up that matter but obviously I don’t have any power myself to stop any sort of review process because I don’t work for the Registrar.
HER HONOUR:         I realise that. Thank you.
MR KUHN:                I understand.
HER HONOUR:         Nothing further from you, Mr Williams?
MR WILLIAMS:        Nothing further from me.
HER HONOUR:        Are there any errors in my extempore reasons that you picked up that I need to correct?
MR WILLIAMS:        No, there’s not.
HER HONOUR:         Very well.
MR WILLIAMS:        Will I be provided with that written copy for my file?
HER HONOUR:         Of the reasons?
MR WILLIAMS:        Because I don’t think my handwritten notes will suffice. Yes.
HER HONOUR:         No, extempore means that they will be typed up and settled and published.
MR WILLIAMS:        Good, because I just don’t want to rely on my notes.
HER HONOUR:          No, do not rely on your notes. I’ve reserved the right to edit them because as you probably gathered, I was backtracking from time to time. They will be in a publishable form.
MR WILLIAMS:        Thank you.