Lam v Registrar of Motor Vehicles - [2019] SADC 28

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Motor Vehicles Act 1959)
LAM v REGISTRAR OF MOTOR VEHICLES
[2019] SADC 28
Judgment of His Honour Judge Chivell
14 March 2019
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
Appellant’s appointment in 2002 as an authorised examiner of driver’s licence candidates revoked by the Registrar in 2015 for repeated breaches of his responsibilities. Appellant sought reappointment in 2017. Application for reappointment refused by the Registrar on the ground that appellant was not a fit and proper person. Refusal confirmed by the Registrar’s delegate.
Six grounds of appeal. Reasons of both decision-makers considered pursuant to s 42B and s 42E of the District Court Act.
Held: None of the appellant’s grounds of appeal made out - no cogent reason to depart from the decision of the Registrar as confirmed by the delegate. Appeal dismissed.
District Court Act 1991 (SA) s 42B, s 42E; Motor Vehicles Act 1959 (SA) s 5, s 79A, s 98A, s 98Z, s 98ZA; Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72; Commissioner of Consumer Affairs v McMurray (2017) 128 SASR 1; House v The King (1936) 55 CLR 499; Registrar of Motor Vehicles v Thiele [2012] SASCFC 51; Alaeddin v Registrar of Motor Vehicles [2011] SASC 72; Registrar of Motor Vehicles v Lawson [2017] SASCFC 88; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Teachers Registration Board of South Australia v Edwards (2013) 117 SASR 246; Hughes and Vale Pty Ltd & Anor v The State of New South Wales & Ors (1955) 93 CLR 127; Albarran v Companies Auditors and Liquidators Disciplinary Board & Anor (2007) 231 CLR 350; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Ex parte Tziniolis; re The Medical Practitioners Act (1966) 67 SR (NSW) 448, referred to.

LAM v REGISTRAR OF MOTOR VEHICLES
[2019] SADC 28

This is an appeal by Mr Lam against a decision by the Registrar of Motor Vehicles refusing to appoint him an Authorised Examiner (‘AE’).
Mr Lam was first appointed an AE in 2002. An AE is a person appointed by the Registrar of Motor Vehicles for the purpose of conducting practical driving tests.[1] He was initially authorised to conduct ‘Competency Based Training and Assessment’ (‘CBTA’) on cars. By that, I understand that he was authorised to assess the competency of the driver in stages over a period of driver education, and then, if all relevant competencies were achieved, to certify that the student was sufficiently competent to receive a driver’s licence.
[1] Motor Vehicles Act 1959 (SA), s 5.
In 2009, Mr Lam’s authorisation was extended to conduct CBTA on light rigid, medium rigid and heavy rigid vehicles.
On a number of occasions, the Registrar had to deal with breaches of Mr Lam’s responsibilities as an AE. He was suspended for three months in May 2014 because a number of his students, whom he had certified as competent, were found on testing to be grossly incompetent.
In 2015, Mr Lam certified seven applicants for a heavy rigid vehicle licence as competent, when in fact he had not tested them at all. There was no heavy rigid vehicle present at the testing location in which tests could have been conducted.
On 28 July 2015, the Registrar determined to revoke Mr Lam’s appointment as an AE. Mr Lam did not contest this determination. On 5 March 2017, he applied for reappointment.
On 16 October 2017, the Registrar refused the application for reappointment. His reason for doing so was that Mr Lam was not a fit and proper person to be appointed an AE.
Mr Lam exercised his right under s 98Z of the Motor Vehicles Act 1959 (SA) (‘MVA’) to review the Registrar’s decision. On review, the Registrar’s delegate confirmed the decision.
Mr Lam now appeals to this Court pursuant to s 98ZA of the MVA.
Nature of the Appeal
Section 42E of the District Court Act 1991 (SA) sets out the approach I must take to the appeal:
42E—Conduct of appeal
(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
‘Cogent’ has been defined to mean ‘compelling, convincing, powerful’.[2] To succeed, the appellant must not only demonstrate error, the error must be such that had the original decision-maker proceeded correctly, it would have arrived at a different conclusion.[3]
[2] Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72 at [315] per Stanley J.
[3] Commissioner of Consumer Affairs v McMurray (2017) 128 SASR 1 at [82], [84] per Hinton J and see Blue J at [45]-[46].
In McMurray, Blue J referred to the principles established in House v The King.[4] The principles are that appellable error occurs where the decision-maker:
… acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
[4] (1936) 55 CLR 499 at 504-506 per Dixon, Evatt and McTiernan JJ.
In the context of this appeal, and keeping in mind s 42E, an error of the type outlined in House v The King will only result in a successful appeal if ‘the appellant … demonstrates that there should have been a different outcome’,[5] except where the error is of the type more recently described as ‘outcome error’, that is, an error which is determinative of the result. In such a case, ‘No question of deference to the decision of the decision-maker arises’.[6] That follows as a matter of course since, if the error is determinative of the result, a cogent reason must exist to depart from it.
[5] Blue J in McMurray (supra) at [45].
[6] Ibid at [47].
The Decision Appealed From
The Amended Notice of Appeal states that the ‘decision-maker appealed from’ is the Registrar of Motor Vehicles. The date of the decision is stated as ‘17/4/2018’. The order complained of was ‘Refuse application for accreditation as an Authorised Examiner’.
The appeal is brought pursuant to s 98ZA(1) of the MVA. That subsection provides:
(1) A person who is dissatisfied with a decision as confirmed, varied or substituted by the Registrar on a review under section 98Z may appeal to the District Court against the decision.
As I have mentioned, in this case Mr Lam initially sought a review of the Registrar’s decision dated 16 October 2017, and that was determined by a delegate of the Registrar pursuant to s 98Z(6) of the MVA. The Registrar’s decision was confirmed on 17 April 2018.
Strictly speaking, the decision appealed from was therefore the decision of the Registrar’s delegate, not the Registrar. The delegate’s decision, in a letter dated 17 April 2018, is appended to the Amended Notice of Appeal as the decision appealed against. Her decision was to confirm the Registrar’s decision, not to ‘refuse application for accreditation’.
I do not think anything turns on it, however. Section 42B of the District Court Act defines the ‘original decision-maker’ as:
the person or body whose decision is appealed against, and includes, if that person or body made the decision on an appeal against, or review of, a decision made by some other person or body, that other person or body.
The Registrar’s reasons, in a letter to Mr Lam dated 16 October 2017, were comprehensive. The delegate gave more limited reasons for confirming the Registrar’s decision. They were:
I have carefully considered your submissions and all the materials referred to in Appendix A to this letter. Having done so, I agree with the findings set out in the Registrar’s letter to you of 16 October 2017 and on the basis of those findings confirm the Registrar’s 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.
I note that the prosecution against you was withdrawn. However, I accept the evidence contained in the witness statements of A, B, C, D and E.[7] I note that each statement concerned separate incidents where it was clear that you provided very little training to the clients before issuing them with a certificate of competency. There is no countervailing reason in the materials that I have considered why I should not accept that evidence.
[7] Names omitted.
The delegate essentially adopted the reasons set out in the Registrar’s letter. In these circumstances, the following passage from Registrar of Motor Vehicles v Thiele[8] is apposite:
However, the fact remains that the Registrar’s reasons are comprehensive and detailed and the Committee effectively adopted those reasons without setting out its own detailed or comprehensive reasoning process. In circumstances in which the Review Committee effectively adopts the reasoning of the Registrar, a District Court Judge on appeal must examine the reasoning of the Registrar as well as, and in order to examine, the reasoning of the Review Committee. This follows from the obligation in s 42E that the District Court must examine the decision appealed against and the provision in s 42B(2) that that decision includes the original decision. It also follows from s 98ZA(1) which gives the right of appeal to the District Court against the “decision as confirmed … by the … Review Committee”.
For those reasons, I will consider both the reasons of the Registrar and the reasons of the delegate in the determination of this appeal.
[8] [2012] SASCFC 51 at [47] per Anderson, David and Blue JJ.
The Statutory Provisions
As mentioned, s 5 of the MVA provides that an AE is ‘a person appointed by the Registrar of Motor Vehicles for the purpose of conducting practical driving tests’.
There are no criteria in the MVA for the appointment of AEs which limit the Registrar’s power of appointment. This is to be contrasted with the appointment of Motor Driving Instructors (MDIs). Section 98A sets out a number of criteria for appointment of MDIs which require that the applicant has been a licensed driver for specified periods, is a ‘fit and proper person’, and is ‘proficient as a motor driving instructor’. If the Registrar is satisfied that those criteria are fulfilled, then s 98A(2) provides that the Registrar must issue an instructor’s licence to the applicant.
In Alaeddin v Registrar of Motor Vehicles,[9] Gray J was considering an application for judicial review of a Registrar’s decision to suspend Mr Alaeddin’s ‘endorsement’ as an AE for 12 months. His Honour held that s 98A had no application to AEs. He said:[10]
I do not accept that section 98A of the Motor Vehicles Act provides the requisite power to the Registrar, as section 98A deals with Motor Driving Instructor licences. A person holding a Motor Driving Instructor licence is not necessarily an authorised examiner. In the present proceeding, the relevant enquiry concerns the suspension of an authorised examiner.
I turn now to the Registrar’s submissions. Although it is problematic to rely on section 5 of the Motor Vehicles Act as the source of statutory power as section 5 is the interpretation section in the Act, I accept the Registrar’s submission that the definition of authorised examiner in section 5 implies that the Registrar has the power to appoint authorised examiners. The existence of such a power is recognised by regulation 93 of the Motor Vehicles Regulations, which relevantly provide: “[t]he Registrar may, when appointing a person as an authorised examiner…”. In my view, it is implicit that Parliament intended for the Registrar to have a power to appoint authorised examiners. By virtue of section 36 of the Acts Interpretation Act, the power to appoint includes the power to suspend. In addition, it is my view that it is implicit that the power to appoint includes the power to set conditions and deal with necessary and incidental matters to the power of appointment. These matters, in the ordinary course, would deal with conditions of revocation, suspension and variation of the appointment.
(Footnote omitted)
[9] [2011] SASC 72.
[10] Ibid at [73].
Mr Alaeddin’s application for judicial review was granted on the ground that the Registrar had denied him procedural fairness.
Here, both the Registrar and the Registrar’s delegate based their decisions on a finding that Mr Lam was not a ‘fit and proper person’ to be appointed an AE. The use of this criterion seems to have emanated, not from the words of the statute, but from the remarks of Kourakis CJ in Registrar of Motor Vehicles v Lawson.[11]
[11] [2017] SASCFC 88.
Mr Lawson was an AE whose status was revoked by a delegate of the Registrar. An appeal to the District Court was made. The power of the court to hear the appeal was challenged by the Registrar. The challenge failed because the District Court Judge held that the power to appoint an AE came from the MVA (the Registrar argued to the contrary), specifically s 7, and was therefore reviewable under s 98ZA.
Kourakis CJ held that the appointment power came not from s 5 of the MVA and s 36 of the Acts Interpretation Act 1915 (SA), as Gray J had held in Alaeddin, or from s 7 of the MVA, as the District Court Judge had held, but from s 79A of the MVA. His Honour said:[12]
I turn to the definition of authorised examiner and its place within the scheme enacted by s 79A of the MVA. The definitions found in s 5 of the MVA must be read into the substantive provisions of the MVA. In particular, the definitions of authorised examiner and practical driving test must be read into s 79A of the MVA. When that is done, it is plain that s 79A, by necessary implication, empowers the Registrar to approve a practical driving test and to appoint a person to be an authorised examiner. The power is necessary in order to make s 79A of the MVA effective. The power is implied for authorised examiners in the same way as it must be for testers, who are defined within s 79A of the MVA itself. Section 79A of the MVA must include an implied power on the part of the Registrar to appoint a tester if paragraph (b) of the definition of tester in s 79A of the MVA is to have any effect. So too for the definition of authorised examiner written into s 79A by s 5 of the MVA.
If there were no express definition of authorised examiner, it would be a necessary implication of s 79A of the MVA that the Registrar could appoint a person to be an authorised examiner unless the Regulations made under the MVA provided otherwise.
It is convenient to observe here, even though it relates to the Registrar’s additional contentions, that the definitions of tester and authorised examiner do more than refer to the approval by the Registrar as a mere factum on which s 79A of the MVA operates. The Registrar is not free to appoint any person to be a tester or authorised examiner. The persons appointed must be fit and proper persons to perform the statutory function. The determination of that issue must be made pursuant to, and in accordance with, the considerations impliedly prescribed by the MVA.
(My emphasis)
[12] Ibid at [16]-[18].
As to the decision in Alaeddin, his Honour said:[13]
The decision in Alaeddin is not authority for the proposition that s 5 itself confers the power. Properly understood, that passage holds that s 5 of the MVA is premised on the existence of the power. That is plainly right. For the reasons I have given, that implied power is located in s 79A of the MVA. Section 79A is contained in Part 3 of the MVA therefore I also find, subject to further discussion below, that a decision to authorise to revoke a person’s status as an authorised examiner is reviewable pursuant to s 98Z of the MVA.
[13] Ibid at [20].
The argument of Mrs Shaw QC, counsel for Mr Lam, is that Mr Lam was, and remains, a licensed MDI, so he already satisfies the criteria in s 98A of the MVA. One of those criteria is that he be a fit and proper person.
The difficulty with that argument is that, as Gray J observed in Alaeddin:[14]
A person holding a Motor Driving Instructor licence is not necessarily an authorised examiner.
[14] Supra at [49].
The same applies in reverse. There is nothing in the MVA that requires that in order to be appointed an AE, the person must also be a licensed MDI. Clearly, in most cases a person will be both. But, for example, an appointment as an MDI may have lapsed for some reason. The MVA does not require that the person’s appointment as an AE must also lapse if that is the case. It is clear from the distinction in Lawson and Alaeddin that the power to appoint an AE comes from a different section of the MVA. Section 98A has no role to play in the appointment of AEs.
It follows that a person who is a fit and proper person to be an MDI is not necessarily a fit and proper person to be an AE. The Registrar’s delegate made that clear in her letter of 17 April 2018:
This decision does not prevent you from continuing to operate as a Motor Driving Instructor (MDI). As a MDI you are only permitted to teach students to drive a motor vehicle. You are not permitted to conduct any Vehicle on Road Test (VORT) examinations or training under the Competency Based Training and Assessment (CBTA) System, including the signing off on tasks or issuing of Certificates of Competency.
The rationale for the differentiation between an MDI and an AE is clear. An MDI may be competent and sufficiently responsible and organised to teach a person to drive. But an AE carries an authority, delegated from the Registrar pursuant to the MVA, to assess and certify competency in driving vehicles so that the Registrar can be satisfied that the person is competent to drive a particular class of vehicle on the road without presenting a danger to the public.
I accept the submission of the respondent that this approach is consistent with the approach of the High Court in Australian Broadcasting Tribunal v Bond.[15] In that case, Toohey and Gaudron JJ said:[16]
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation. (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
(My emphasis)
[15] (1990) 170 CLR 321.
[16] Ibid at 380.

In this specific context, Kourakis CJ made it clear in Lawson that the test for a ‘fit and proper person’ comes from the context of s 79A of the MVA. His Honour said:[17]
The persons appointed must be fit and proper persons to perform the statutory function. The determination of that issue must be made pursuant to, and in accordance with, the considerations impliedly prescribed by the MVA.
(My emphasis)
[17] [2017] SASCFC 88 at [18].
There is a clear distinction between the considerations impliedly prescribed by s 79A and those explicitly prescribed in s 98A, which relate to a different statutory function. The ‘activities in which the person is or will be engaged and the ends to be served by those activities’ are clearly different.
Mrs Shaw also referred to Teachers Registration Board of South Australia v Edwards.[18] One of the questions before the court in that case was whether Ms Edwards, who was profoundly deaf, was a fit and proper person to be a teacher. This is one of the criteria required by s 21 of the Teachers Registration and Standards Act 2004 (SA).
[18] (2013) 117 SASR 246.
In Edwards, Gray J referred to Hughes and Vale Pty Ltd & Anor v The State of New South Wales & Ors (No 2)[19] and Albarran v Companies Auditors and Liquidators Disciplinary Board & Anor.[20] His Honour held that the Judge appealed from had erred in finding that physical impairment or disability does not fall within the ambit of fit and proper person.[21]
[19] (1955) 93 CLR 127 at 156.
[20] (2007) 231 CLR 350 at [23].
[21] (2013) 117 SASR 246 at [54].
Anderson J disagreed with Gray J that the Judge appealed from had erred.
Nicholson J preferred not to express a view on the fit and proper person issue because his Honour considered that it was unnecessary to do so for the purposes of the appeal.
I do not accept that Edwards takes Mrs Shaw’s argument any further.
The Grounds of Appeal
In her submissions, Mrs Shaw referred to grounds 1 to 5 collectively as ‘the earlier grounds’ and put her client’s position as follows:[22]
Our third argument which I will not stay with is really represented by the earlier grounds, namely that - and this is a matter which plainly is to be considered on the basis of the reasons of the delegate whether or not her reasons disclose that she considered the question of fit and proper person once one's deduced its implication and its content as at the date of her decision or merely adopted the reasons of the registrar which related back to the breaches under the previous instrument of appointment.
[22] T 3.
For the reasons expressed earlier, I must consider not only the reasons of the delegate, but also the reasons of the Registrar, which the delegate effectively adopted.
Having regard to the way Mrs Shaw’s oral submissions were presented, I will consider ground 6 first and return to grounds 1 to 5. Ground 6 was:
6.The Registrar and the reviewing delegate erred in the manner in which each respectively employed and applied the test of fit and proper person to be appointed as an authorised examiner in refusing the appellant’s application to be appointed as an authorised examiner.
Particulars
6.1 The appellant had been approved as a fit and proper person to be a motor driving instructor (“MDI”) for the purposes of section 98A of the Motor Vehicles Act 1959 (“the Act”); and
6.2 The employment of the single criteria by the Registrar and the reviewing delegate to refuse the application was not authorised by and/or was contrary to and/or inconsistent with the criteria that was to be found in the Act, Regulations, Rules and published policy of the Registrar as at the time of his decision and that of his delegate.
6.3 The Registrar and the reviewing delegate failed to consider adequately or at all whether as at the date of each of their respective decisions, the appellant was a fit and proper person and otherwise fulfilled the criteria in the relevant rules and practice.
6.4 The Registrar and the reviewing delegate failed to determine whether the appellant was a fit and proper person having regard to the terms of the character test included in the Registrar’s instrument of appointment of an authorised examiner.
The appellant seeks to rely on the affidavit of the appellant in relation to additional material to be adduced to that contained in the affidavit of Sarah Louise Clark affirmed on 6 September 2018.
Mrs Shaw summarised her client’s argument as follows:
1.The criterion applied by the Registrar, and the delegate, that Mr Lam be a fit and proper person to be an AE is not implied in the legislation.
For reasons already given, that submission is contrary to the reasoning of the Full Court in Lawson, where it was specifically held that such a criterion is implied in the MVA, s 79A in particular. The ruling in Lawson was that the Registrar’s power to appoint an AE was implied in s 79A. That was the ratio decidendi of the case. The criterion for appointment, namely that the person be a fit and proper person, was also said to be implied. The latter observation was obiter dictum. However, I agree with the submission of Mr Boisseau, counsel for the respondent, that it was ‘seriously considered obiter’ of the Full Court, and therefore binding on me by parity with the reasoning of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd.[23]
2.In the alternative, Mrs Shaw argued that if a requirement that an AE be a fit and proper person is implied in the legislation, then ‘one doesn’t know the context that the registrar applied’.[24]
The first basis put forward by the appellant for this submission is that the Registrar should have held that Mr Lam was a fit and proper person because he remained an MDI, and being a fit and proper person is a requirement for such appointment.
For reasons already given, I reject that submission.
The reasoning adopted by the Registrar was clearly set out in his letter of 16 October 2017.[25] He made the following findings:
·       Mr Lam’s previous appointment as an AE in July 2015 was revoked because he had issued certificates of competency to applicants who had not been assessed in the prescribed manner, and who had not demonstrated competency to or above the standards required;[26]
·       he had reason to doubt the honesty and accuracy of Mr Lam’s monthly returns for October, November and December 2014 because they indicated that Mr Lam had operated for excessive hours on most occasions. For example, on one occasion the returns indicated that Mr Lam worked 32 hours in one day;[27]
·       statements taken from four applicants indicated that Mr Lam had failed to provide them with any substantial training before issuing certificates of competency to them.[28] Mr Lam had filed returns indicating that he had supplied training for the specified hours, leading to the inference that either another person may have undertaken the training he had declared or the returns were false.
The Registrar provided further details of this evidence of Mr Lam’s behaviour.
[23] (2007) 230 CLR 89.
[24] T 3.
[25] Affidavit of Sarah Louise Clark affirmed 6/9/18, Exhibit SLC 7.
[26] On the materials before me, I take this last point to mean that the applicants whom Mr Lam certified as competent were later assessed and found to be grossly incompetent.
[27] I infer from this observation that the Registrar suspected that Mr Lam was delegating the task of assessing applicants to non-AEs.
[28] Indeed, the materials indicate that surveillance undertaken at the time showed that Mr Lam failed to provide a heavy vehicle at the specified location so that an assessment could occur, yet certificates of competency were issued.
The Registrar concluded that:
·       Mr Lam displayed a complete disregard for road safety and the safety of his students;
·       his failure to provide adequate training and assessment was ‘inexcusable’;
·       his offers to undertake further training and to work with the Department provided ‘no reassurance … that practically you would apply these learnings and carry out the duties of an Authorised Examiner with honesty and integrity’;
·       his statements that he had provided adequate training to the four applicants lacked credibility;
·       in particular, at least two of them did not undertake a ‘last training session’ so that they could be assessed;
·       Mr Lam’s ‘failure to perform the essential functions of an Authorised Examiner could have had catastrophic consequences for your students and the public generally’.
The Registrar was amply justified in concluding, on the basis of the findings of fact he made, that Mr Lam was not a fit and proper person. Mr Lam was entrusted with the authority to assess the competence of drivers of vehicles ranging from a car to a heavy rigid truck. It is clear on those findings that he certified the competency of a substantial number of applicants without carrying out a proper, and in some cases, any, assessment of their competence, and where subsequent assessment established that they were incompetent to drive such vehicles. The potential danger this created to public road safety was substantial.
It was essential that the Registrar should apply a rigorous approach to whether Mr Lam should be reappointed, having regard to the statutory responsibilities he carried to preserve the integrity of the AE system, and the potential risk to public safety which would be created if he did not.
I will now deal with the specific grounds of appeal in ground 6.
Ground 6.1
The appellant has been approved as a fit and proper person to be a motor driving instructor (“MDI”) for the purpose of section 98A of the Motor Vehicles Act 1959 (“the Act”).
I reject this ground for the reasons already expressed. The fact that Mr Lam had been assessed as a fit and proper person to be an MDI in 2002 is irrelevant to whether he was a fit and proper person to be appointed an AE in 2017.
Ground 6.2
The employment of the single criteria by the Registrar and the reviewing delegate to refuse the application was not authorised by and/or was contrary to and/or inconsistent with the criteria that was to be found in the Act, Regulations, Rules and published policy of the Registrar as at the time of his decision and that of his delegate.
I reject this ground. The employment of the criterion ‘fit and proper person’ by the Registrar was in compliance with the decision of the Full Court in Lawson. It was not contrary to any Act, Regulations, Rules or policy.
Ground 6.3
The Registrar and the reviewing delegate failed to consider adequately or at all whether as at the date of each of their respective decisions, the appellant was a fit and proper person and otherwise fulfilled the criteria in the relevant rules and practice.
I reject this ground. The reasons expressed by the Registrar, and the shorter reasons of the delegate adopting the Registrar, demonstrate that both officers adequately considered whether, as at the date of their respective decisions, Mr Lam was a fit and proper person to be appointed an AE.
Ground 6.4
The Registrar and the reviewing delegate failed to determine whether the appellant was a fit and proper person having regard to the terms of the character test included in the Registrar’s instrument of appointment of an authorised examiner.
Mrs Shaw drew my attention to the ‘template’ for an instrument of appointment as an AE,[29] which is made subject to certain standard conditions. Condition 6 reads:
6.Any of the following shall constitute a breach of conditions by the examiner:
6.1     Breach of or failure to abide by a condition referred to in this Appointment or any of the Rules which is not capable of correction;
6.2     Breach of or failure to abide by a condition referred to in this Appointment or any of the Rules which is capable of correction and which remains uncorrected for a period of 21 days following notice to correct such breach;
6.3     Criminal, disreputable or unprofessional conduct;
6.4     Suspension, cancellation or disqualification of a driver’s licence held by the examiner;
6.5     Suspension or cancellation of the Motor Driving Instructors licence held by the examiner.
[29] Affidavit of Sarah Louise Clark, affirmed 6/9/18, Exhibit SLC 50.
I assume that Mr Lam’s original appointment in 2002 was subject to similar conditions. The actual instrument of appointment at that time is not before me. That is not to the point, however. I am not considering a suspension or revocation of appointment as an AE as a result of a breach. I am considering the refusal to reappoint Mr Lam on the basis of whether he is a fit and proper person. It was not necessary that the Registrar should specifically find that any of the categories of behaviour in condition 6 had been made out.
If I am wrong and the standards for a breach of conditions by an AE were to be applied to Mr Lam, the Registrar would have been amply justified in finding that Mr Lam was in breach of condition 6.3, in that it constituted disreputable or unprofessional conduct.
I reject this ground.
I return to the ‘earlier grounds’.
Ground 1.1
(The delegate) failed to have regard to and bring to account the material included in the subsequent Application for Review that was in conflict with the material upon which the Registrar’s earlier decision was based.
In her letter dated 17 April 2018, the delegate wrote:
I have carefully considered your submissions and all the materials referred to in Appendix A to this letter.
The appendix referred to all the relevant documentation on the file.
In her affidavit affirmed on 6 September 2018, the delegate also confirmed that she had considered all of the material before her, and in particular:
·a letter from Mr Lam’s solicitor, Mr Steven Clark, in which he –
.    pointed out that a criminal prosecution based on evidence referred to by the Registrar ‘failed’;
.    said that Mr Lam ‘does not admit to the alleged wrongdoing or any wrongdoing at all’ without drawing attention to any evidence to contradict the evidence in the possession of the Registrar;
.    submitted that the circumstances affecting Mr Lam’s judgment when the ‘facts alleged by the Registrar occurred’, were ‘different to those under which (he) finds himself at the present time’. Mr Clark asserted that Mr Lam had been suffering stress and anxiety over family issues, difficulties with his business in obtaining qualified examiners to assist him, and difficulty with the Department of Transport in relation to accreditation for certain matters, financial issues and ‘others’;
·Mr Clark further submitted that:
.    Mr Lam had admitted that there were ‘occasions when requirements weren’t met’;[30]
[30] This was an extraordinary understatement of Mr Lam's breaches, not only of his requirements to provide appropriate records and returns of his work, but also the requirement that he carry out a proper assessment of each applicant's competence to drive.
.    Mr Lam had complained about the difficulties of conducting a small driving school in competition with larger driving schools;
.    Mr Lam had experienced difficulties with departmental auditors;
.    there had been conflict between Mr Lam and various departmental officers in terms of making arrangements for interaction between them;
.    the ‘small number of overseas licence holder candidates assessed by our client as being competent but then retested by you and failing (which our client believes numbers 4)’ was a small percentage and could not ‘be relied upon by the Department to denigrate the quality’ of Mr Lam’s training and assessment;
.    some of Mr Lam’s clients had complained that they had felt intimidated by the process of being retested, which would ‘invariably account for an adverse performance’;
.    Mr Lam had suffered financial hardship as a result of the fact that the Department had ‘organised the police to arrest our client’ as a result of which he suffered ‘shame and humiliation’, financial difficulties and difficulty in finding alternate employment;
·Mr Clark’s summary of his submissions was:
Our client remains deeply committed to continuing as a trainer and assessor of vehicle drivers of the classes of his competence.
He is a highly competent and experienced trainer and assessor.
He no longer has the financial and other pressures that he was under that caused him to come to the attention of the department prior to his accreditation being revoked.
He admits to failings in the past and has learnt a salient lesson. He is committed to doing his utmost to ensure that he will meet his obligations in a timely manner honestly and diligently.
He is prepared to work closely with the department to ensure that he is well up to speed with what is required of him including whatever training is necessary to reach that end.
He is prepared to be audited by the department as it deems fit.
Our client has learned the hard way. He is now fully appreciative of how valuable the privilege that had been bestowed upon him by the Department is to be able to train and assess.
We remain confident that our client will not transgress if he is given a second chance.
The delegate also took into account an email from Mr Lam to the Registrar dated 31 July 2017. This email had been taken into account by the Registrar in his determination of 16 October 2017. The email is summarised in the Registrar’s reasons for determination as follows:
1.    You migrated to Australia for a better life with your family;
2.    You set up Conquest Driving Centre and have assisted the community by providing driving instruction for over 17 years;
3.    Due to the fact you were not granted an opportunity to upgrade to HC by DPTI, you were put into financial stress and took on a business partner to ease the financial burden;
4.    You took on a contract Examiner who was never consistent with his assessments and made inappropriate demands of your business partner;
5.    Due to these inconsistences within your business at this time, you were forced to start training by the logbook method and conducted recognition of prior learning with students;
6.    You state in earlier correspondence that you acknowledge that you did short-cut the system of assessment for students [A, C, B and D]. You later state that those persons were adequately trained by both yourself and Instructor ‘Peter’;
7.    You regret your decision to short-cut the system, you apologise for not following the rules and wish you could turn back time;
8.    You have suffered financially and find it difficult to make ends meet;
9.    You are willing to co-operate with all rules and regulations and would like a second chance.
The delegate also took into account a large amount of other correspondence on the file, as well as the statements of the four students referred to earlier and a statement of another authorised examiner, who had assessed a person who had received a heavy rigid driver’s licence as a result of an assessment by Mr Lam and, upon reassessment, found that the driver was completely incompetent to drive a heavy vehicle.
The delegate acknowledged that Mr Lam did not admit the truth of the factual allegations being made against him and gave a number of explanations as to how the four drivers had passed his assessment. However, there was, to use the delegate’s words, ‘no countervailing reason in the materials that I have considered why I should not accept that evidence’. I agree. Mr Lam did not present any evidence or explanation which should have caused the delegate to doubt the truth of the statements of the four drivers. It was corroborated by the surveillance evidence and the evidence of the independent driving instructor.
Accordingly, I reject this ground.
Ground 1.2
(The delegate) failed to have regard to and bring to account the additional material relied upon by the Registrar in its earlier decision.
For the reasons given in relation to ground 1.1, I also reject this ground.
Ground 1.3
(The delegate) purported to accept the ‘evidence’ in various statements without acknowledging the Appellant’s contest and explanations for allegations in those statements.

The appellant did not provide any evidence to the contrary. His lawyer’s statement that his client denied wrongdoing was not evidence. As mentioned, Mr Lam’s explanations for what had happened were specious.
I also reject this ground.
Ground 2.1
(The delegate) merely expressed a conclusion based on the earlier conclusion of the Respondent.
It is apparent from the material before me that this assertion is not correct. The delegate has expressed in her letter of determination, and made clear in her affidavit, that she personally analysed all of the materials before coming to the view that she agreed with the earlier determination of the Registrar.
Ground 2.2
(The delegate) failed to consider the up to date information in the review application and determine whether the Appellant was currently a fit and proper person to be accredited as an Authorised Examiner.
There was very little up-to-date information in the review application upon which the delegate should have concluded that Mr Lam was no longer unfit to be appointed as an AE. The assertions in Mr Clark’s submissions were really to the effect that Mr Lam had changed his ways. Mr Boisseau referred me to the remarks of Walsh JA in Ex parte Tziniolis; re The Medical Practitioners Act:[31]
Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.
I agree that these observations are pertinent to this case.
[31] (1966) 67 SR (NSW) 448 at 461.
A further difficulty is that there was no evidence before either the Registrar or the delegate that if the circumstances described by Mr Lam reoccurred, he would not behave in the same or similar way. There was no suggestion that Mr Lam has undertaken any rehabilitative treatment, counselling or other measures. In those circumstances, I consider that both the Registrar and the delegate were justified in finding, as the Registrar observed, that ‘your previous conduct provides no reassurance for me that practically you would apply these learnings and carry out the duties of an Authorised Examiner with honesty and integrity’.
Ground 3
There was not a proper basis for the Respondent to reasonably conclude that the Appellant was not a fit and proper person to be accredited as an Authorised Examiner.
I reject this ground for the reasons expressed earlier.
Ground 4
The Respondent considered evidence gathered in the context of a criminal investigation and subsequent prosecution of the Appellant which failed when she should not have done so.
The use of the word ‘failed’ in relation to the criminal investigation and subsequent prosecution of Mr Lam is not a technical term, and it does not accurately describe what happened. The prosecution was discontinued, it was not determined on its merits. There were no materials before me as to what may have happened in this regard, but it may be that the decision was made at the time that it was more appropriate to pursue disciplinary action against Mr Lam, of the type which is presently before me. The outcome of the criminal investigation is irrelevant to the matter before me. This is an administrative proceeding, the burden of proof is different and the criteria are different. I also reject this ground.
Ground 5
The Respondent failed to have regard to and bring to account the changed circumstances and the Appellant’s good prospects of success as an Authorised Examiner.
This is a repeat of grounds 1.2, 2.2 and 3. For the reasons expressed earlier, I reject this ground of appeal.
Conclusion
In all of these circumstances, I find that none of the appellant’s grounds of appeal are made out. There is no cogent reason to depart from the decision of the Registrar, as confirmed by the delegate.
I dismiss the appeal.