Marijancevic v Roads Corporation
[2014] VSC 339
•23 JULY 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 01939
| JOSEPH MARIJANCEVIC | Plaintiff |
| v | |
| ROADS CORPORATION OF VICTORIA | Defendant |
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JUDGE: | DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 15 JULY 2014 |
DATE OF JUDGMENT: | 23 JULY 2014 |
CASE MAY BE CITED AS: | MARIJANCEVIC v ROADS CORPORATION |
MEDIUM NEUTRAL CITATION: | [2014] VSC 339 |
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PRACTICE AND PROCEDURE – Appeal from Associate Judge – Challenged order an interlocutory injunction – Injunction beyond limits of an associate judge’s jurisdiction – Appeal allowed – Whether injunction should be granted – Plaintiff seeking to restrain the defendant from enforcing a licence suspension following accumulation of demerit points – Injunction refused - Supreme Court Act 1986 s 37, Road Safety Act 1986 ss 1, 17, 25(1), 25(3), 25(3D), Supreme Court (General Civil Procedure) Rules 2005 r 77.01, 77.02, 77.06.9, Road Safety (Drivers) Regulations 2009 reg 39.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr M Peckham, Maddocks |
HIS HONOUR:
On 12 June 2014, an associate judge made orders that included the following:
Until the hearing and determination of this proceeding, or further order, the defendant shall stay the suspension of the plaintiff’s driver’s licence No 32036635, such suspension operating pursuant to the demerit point option notice, issued pursuant to s 25(3) and s 25(3D) of the Road Safety Act 1986 on 27 February 2014 and taking effect on 10 April 2014, but subject to two conditions, as follows:
(a)first, a condition precedent that the driver undertake and pass a practical driving test and road law knowledge test at a VicRoads customer service centre;
(b)secondly, a condition subsequent, that the plaintiff prosecute this proceeding expeditiously and in accordance with the orders made this day.
The plaintiff appeals against this order. His notice of appeal raises two grounds:
(a)The primary judge erred when on his own motion he imposed a condition precedent before ordering a stay on the plaintiff’s suspension of licence in circumstances where the order sought is necessary for the preservation of the appeal.
(b)The primary judge erred in making an order that required the plaintiff to undertake and pass a practical driving test and a road law knowledge test (which I will collectively refer to as ‘licence testing’) at a VicRoads customer service centre when such order demonstrates a reasonable apprehension of bias.
The plaintiff now seeks an unconditional stay of the suspension of his licence.
The plaintiff, who is self-represented, contended that two questions of law arose. First, the primary judge did not have power to impose a condition precedent to compel the plaintiff to undertake and pass licence testing in circumstances where the applicant had made it clear that he intended in a subsequent proceeding to challenge a requirement made by the defendant that he submit to licence testing. There is, however, a more fundamental question about the jurisdiction exercised by the primary judge than that raised by the plaintiff that I will come to.
The second question of law raised was that of reasonable apprehension of bias. The plaintiff abandoned this bias ground and did not address it in either written or oral submissions. In view of the decision I have reached, it would have been unnecessary to consider this ground in any event.
It is convenient to state some background facts before explaining the claims the plaintiff brings in this and other proceedings, bearing in mind that some of the following matters will be contested at trial. The plaintiff’s driver’s licence was cancelled on 7 September 2005 by order of the Sunshine Magistrates’ Court. From that time until 26 May 2012, the plaintiff was disqualified from holding a driver’s licence by force of various court orders. The defendant maintains that the plaintiff did not hold any Victorian or interstate driver’s licence from 8 September 2005 until 26 February 2014. The plaintiff contends that in late August 2012, after paying ‘a sum of money’, the defendant renewed his licence at the Sunshine VicRoads centre. He does not exhibit this renewed licence or a copy of it. VicRoads disputes that it renewed the plaintiff’s licence prior to 26 February 2014. It certifies[1] that its driver licensing system database records that at 10.47 am on 13 July 2012, a licence was to be issued to the plaintiff. That record was subsequently deleted later that day. There is no record of the plaintiff being photographed or paying any fee. Further, a note made by a staff member on that date reads, ‘Unlicensed for more than 5 years, must undergo for I/drive test.’
[1]Certificate under s 84(1) Road Safety Act 1986.
The defendant has also certified that the plaintiff attended at the Sunshine VicRoads Customer Service Centre on 13 July, 16 July, 24 July and 24 August 2012 and on 2 and 7 May 2013. However, VicRoads has no record that the plaintiff sat any driving test, paid any fee to VicRoads in relation to the issue of a licence, was photographed by VicRoads, or has been issued with a Victorian driver’s licence. On 12 February 2014, the defendant issued a document recording the plaintiff’s change of address and stating that the plaintiff is the holder of a current driver’s licence. An affidavit filed on behalf of the defendant explains that it made the statement in the document that the plaintiff is licenced in error. The defendant’s database confirms, and it has certified, that it issued a driver’s licence at VicRoads’ Sunshine office on 27 February 2014 to the plaintiff without his having undergone licence testing.
Between 1 July 2004 and 2 September 2006, the plaintiff accumulated 19 demerit points by committing six traffic offences during the period to September 2005. However, at the time of cancellation of the plaintiff’s driver’s licence in September 2005, the defendant had only recorded seven demerit points against the plaintiff’s licence in its Demerit Points Register. It was not until 19 December 2006 that all 19 demerit points were recorded against the plaintiff’s licence, which was at that time cancelled.
On 27 February 2014, the defendant sent to the plaintiff a Demerit Point Option Notice under s 25(3) and s 25(3D) of the Road Safety Act 1986 and received no response to that notice or a subsequent reminder notice. The plaintiff contends that on 26 March 2014, he attended at the Melbourne Magistrates’ Court to appeal against the Demerit Point Option Notice. The deputy registrar informed him that an appeal could not proceed unless he chose one of the options in the notice. Because the plaintiff contended that making such a choice would acknowledge the validity of the notice, he declined to do so and, in consequence, was unable to file an appeal. On 10 April 2014, the defendant suspended the plaintiff’s driver’s licence for a period of four months under s 25(3D) of the Act, as the plaintiff had not elected to extend his demerit point period.
On 21 April 2014, the plaintiff was intercepted by police driving while his licence was subject to a demerit points suspension. On 3 June 2014, the defendant issued a letter to the plaintiff requiring that he undertake a practical driving test and a road law knowledge test, but he has not yet done so. Police have confirmed that the plaintiff has been charged with driving while suspended on 21 April 2014 and that charge is yet to be dealt with by a magistrate.
On 24 April 2014, the plaintiff commenced this proceeding by originating motion. He seeks the following relief:
(a)A declaration that the notice dated 27 February 2014 (Demerit Point Option Notice) is invalid.
(b)A declaration that the issue of the notice is an abuse of the process in respect of such notice pursuant to the provisions of the Road Safety Act.
The plaintiff contends that the calculation of demerit points in the notice relies on demerit points allegedly incurred by the plaintiff nearly 10 years prior to the notice. The plaintiff contends this is an oppressive use of the demerit points system and an abuse of the statutory process. Directions were made in this proceeding on 20 May 2014 but it was not until 12 June 2014 that the defendant filed the summons seeking an order that the defendant’s suspension of the plaintiff’s licence be stayed until the determination of the two extant Supreme Court proceedings. This application resulted in the order under appeal.
In proceedings on a charge of unlicensed driving alleged to have occurred on 27 August 2013, the plaintiff had issued and served a witness summons seeking the production of documents to a magistrate. On 14 April 2014, a magistrate ordered that the defendant was not required to respond further to that summons and by an originating motion filed 13 May 2014, the plaintiff sought a declaration that the magistrate’s order was invalid.
Subsequent to the order under appeal, the plaintiff issued a third proceeding by originating motion on 26 June 2014. By this proceeding, the plaintiff seeks a declaration that the requirement made of him by the defendant on 3 June 2014 that he undertake and pass a road law knowledge test and a practical driving test on or before 1 July 2014, is invalid, ultra vires, and an abuse of process.
The parties argued the appeal on the basis that the order made by the primary judge was a stay order and was within his jurisdiction. In fact, the order made was an interlocutory injunction, beyond the jurisdiction of an associate judge. The primary judge did not publish written reasons although at the conclusion of the hearing and prior to making his order, he provided a brief statement of reasons. I was able to determine his reasons for making the order from his brief statement of reasons read with the transcript of his exchanges with the parties during the hearing.[2] The nature of the order under appeal and the jurisdiction of the primary judge to make it were not the subject of any submission to the primary judge or of any consideration by him during the hearing. It is unsurprising that the plaintiff, a self-represented litigant, did not develop any argument based on an analysis of the limits of the jurisdiction of an associate judge.
[2]Oswal v Carson [2013] VSC 355 (19 July 2013).
Staying the operation of a licence to drive a motor vehicle pending a challenge to the validity of the suspension is, in many respects, analogous to a stay of execution. But the suspension is not by court process, it follows a statutory process. It is clear that neither R 64.25 nor R 66.16 of the Supreme Court (General Civil Procedure) Rules 2005, which govern the court’s power to stay execution, has application. However, a superior court of record has power to grant an injunction to preserve the subject matter of a proceeding until the proceeding is heard. The jurisdiction is derived from the court’s inherent or implied jurisdiction to enable it to discharge its duties as a court by preserving its processes and by preserving the subject matter of the proceedings before the court.[3] Most commonly, it is a power exercised by the grant of a stay pending the hearing of an appeal. In Re Minister for Immigration and Multicultural Affairs; ex parte Fejzullahu,[4] Gleeson CJ said -
The proceedings presently before the court, that is to say, the applications for urgent injunctions, invoke the court's power, in an appropriate case, to make an interim order which will, in practical effect, preserve the subject matter of a dispute pending its final resolution, or otherwise maintain the status quo so as to enable a court to do justice between the parties. The principles according to which such a power will be exercised are well established. As Mason ACJ pointed out in Castlemaine Tooheys Ltd v South Australia, the principles which are to be applied in the exercise of the discretionary power to grant or refuse an interlocutory injunction in private law cases are also applied in public law cases, notwithstanding that different factors may arise for consideration in giving practical effect to those principles. The applicants must show that there is a serious question to be tried in the principal proceedings, and that the balance of convenience favours the granting of an injunction.
[3]Tait v R (1962) 108 CLR 620, 623-4; Re Marks and Federated Ironworkers’ Association (1981) 34 ALR 208; Re Minister for Immigration and Multicultural Affairs; ex parte Fejzullahu (2000) 171 ALR 341, [7]; Williams v Minister for the Environment and Heritage (2003) 199 ALR 352, 356-359 [16]-[29].
[4] Ibid. (Footnotes omitted)
The order made by the primary judge is, in its plain terms and by its operation, an injunction. The High Court stated in CSR Ltd v Cigna Insurance Australia Ltd[5] that the term ‘injunction’ in the parlance of equity has no fixed definition, and that it is its legal usage that determines which court orders are to be identified as injunctions. In that case, the High Court observed that stay orders and anti-suit injunctions are not governed by the same principles although, in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings.
[5](1997) 189 CLR 345, 390.
As I have noted, this application is not concerned with the court staying any court proceeding or process. The underlying rationale for the order made by the primary judge was to preserve the status quo immediately prior to the issue of the impugned notice applying the principles to which I have already referred. Properly analysed, the primary judge sought to exercise a jurisdiction considered necessary for the protection of the court’s own proceedings or processes. He considered that a stay was necessary in the operation of the suspension was necessary to preserve the subject matter of the challenge, by judicial review, of the issue of the impugned notice. The distinction between a stay and an injunction is evident in these circumstances. It is by injunction that this jurisdiction must be exercised, as in a proper case the defendant must be restrained from acting on the impugned notice.[6]
[6]For examples of the use of injunctions against decision makers in judicial review proceedings see Williams v Minister for the Environment and Heritage (2003) 199 ALR 352, Zentai v Republic of Hungary (No 2) [2006] FCA 1735, Yu v Australian Community Pharmacy Authority [2013] FCA 713.
Rule 77.01 of the Rules identifies the authority of an associate judge to exercise the jurisdiction of this court. There are limitations on an associate judge’s authority set out in R 77.02, including that an associate judge shall not have authority to hear and determine any application for an injunction or other order under s 37 of the Supreme Court Act 1986. The application before the primary judge was not a trial.
I am satisfied that error has been shown on the part of the primary judge. This was not the error contended for by the plaintiff, but, during argument, I invited the solicitor representing the defendant to make any submission against the reasoning that I have set out above. The defendant did not contend that the primary order was arguably within the jurisdiction of an associate judge. Rather, it submitted that, should I allow the appeal, the appropriate disposition was to restrain the defendant from continuing the suspension on the same conditions as had been imposed by the primary judge. My power to adopt that course is found in R 77.06.9(2). The plaintiff submitted that I should restrain the defendant from enforcing the licence suspension but without imposing the conditions to which he objected. The parties effectively advanced the same arguments put about the ‘stay’ on the issue of whether I should grant the plaintiff an injunction.
The associate judge must dismiss an application, made to an associate judge that is required to be heard and determined only by a judge. The authorities in support of this practice are collected in Williams’ Civil Procedure – Victoria.[7] Although that was the proper order to have been made, there would have been no impediment to the plaintiff bringing another application before the Practice Court. Having regard to the terms of R 77.06.9(2) and the submissions made by the parties, I will next consider whether it is appropriate to order that the defendant be restrained from enforcing the suspension of the plaintiff’s licence.
[7]At [I 77.04.5].
The High Court has identified the principles that apply:[8]
(a)The plaintiff must demonstrate a prima facie case. This requirement is to be understood as whether there is a serious question to be tried as to the plaintiff’s entitlement to relief, not whether it is more probable than not that the plaintiff will succeed at trial. The sense in which the test is understood is that the plaintiff must prove, prima facie, a sufficient likelihood of success, to justify, in the circumstances, the preservation of the status quo pending trial. In context, it must show that it has a putative legal or equitable right in respect of which final relief is sought which will justify the restraint sought. The requisite strength of the probability of ultimate success depends on the nature or the rights asserted and the practical consequences likely to flow from the interlocutory order sought.
(b)The injury which the plaintiff is likely to suffer must be one for which damages will not provide an adequate remedy.
(c)The balance of convenience must favour the granting of an injunction. The balance of convenience requires a consideration of the relevant matters favouring or militating against the granting of an injunction and will necessarily involve a consideration of the strength of the plaintiff’s claim, assuming that a serious issue has been identified. This consideration is further clarified by the decision of the Court of Appeal in Bradto Pty Ltd v Victoria.[9] The court must, in determining whether to grant an interlocutory injunction ‘take whichever course appears to carry the lowest risk of injustice if it should turn out to have been wrong, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial’.
(d)There may be other discretionary considerations that militate against the grant of an injunction.
[8]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [19], [65]-[83]. See also Beecham Group Ltd v Bristol Laboratories Ltd (1968) 118 CLR 618 and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [8]-[13].
[9](2006) 15 VR 65. See also Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65, [35], Magna Alloys and Research Pty Ltd v Coffey [1981] VR 23.
For the reasons that follow, I will refuse the plaintiff the relief that he seeks. I do not propose to direct the defendant to stay the operation of the suspension of the plaintiff’s licence.
The preservation of the status quo pending trial involves, in practical terms, the restoration to the plaintiff of his licence for a period of three weeks, for that is all that remains to be served of the period of suspension. It has not been suggested, and neither would it be appropriate, for any effective stay of the suspension order to operate retrospectively. Assessing whether the plaintiff has a putative legal or equitable right to final relief that will justify the restraint sought requires an assessment of whether the plaintiff’s prospects of ultimate success are sufficient in the context of the practical consequences of permitting the plaintiff to drive a motor vehicle for the next three weeks.
The defendant is required to keep a demerits register by s 25(1) of the Road Safety Act. Regulations prescribe the circumstances in which demerit points are incurred, the number of points incurred, and the circumstances in which demerit points may be cancelled. If the defendant is duly notified of certain matters, it must record the appropriate number of points against a person in the demerits register. Where the holder of a full driver’s licence incurs 12 or more demerit points within any three-year period, the defendant must serve a Demerit Point Option Notice on that person. The regulations imposing these obligations are in mandatory terms.[10] There is no discretion. The requirement on the defendant to serve notice is enlivened by two circumstances. The relevant driver must hold a full driver’s licence and must have incurred 12 or more demerit points within any three-year period.
[10]See Part 3 Division 1 of the Road Safety (Drivers) Regulations 2009 and s 25 Road Safety Act 1986.
The plaintiff incurred the necessary demerit points between 1 July 2004 and 2 September 2006. However, there was delay in notifying the defendant of the demerit points for recording in the demerits register, which arose from the delay between offending and conviction. At the time that the plaintiff exceeded the threshold of 12 demerit points, he was not the holder of a full driver’s licence.
The defendant contends that once the plaintiff regained his driver’s licence on 27 February 2014, the mandatory provisions of s 25(3)(a) were enlivened and it was required to issue the impugned notice and did so immediately. When the plaintiff did not elect to exercise the option pursuant to s 25(3)(a) to extend the demerit point period, the defendant was required to suspend the plaintiff’s licence and did so with effect from 10 April 2014. It is pertinent to observe that s 25(3)(a) refers to the accumulation of 12 or more demerit points ‘within any three year period’. The plaintiff contends that the proper construction of the section does not permit the defendant to delay or postpone the issue of a Demerit Point Option Notice for a period in excess of seven years after the conclusion of the relevant three-year period. The defendant contends that the section must be construed to include a time limitation within which a notice must be served after the end date of the relevant three-year period and that such time must be a reasonable time.
The plaintiff contended that unless granted an unconditional injunction, the subject matter of the second and third proceedings would be lost. In the demerit point notice proceeding, the suspension through demerit point accumulation will have been served before trial. In the licence testing notice proceeding, the plaintiff would be required to submit to licence testing before his challenge to the Notice can be determined. I do not accept these contentions. The plaintiff’s challenge to the demerit point suspension remains necessary because the primary reason for it is the extant police prosecution for driving while his licence was suspended. Success in this proceeding would provide the plaintiff with a defence to that prosecution. With his bad driving record, the plaintiff may face a significant penalty. In the third proceeding challenging the licence testing notice, should the plaintiff succeed and obtain a declaration that the notice was invalid, the consequences of not submitting to the requirement for testing or not passing the tests would be avoided. As I will not order that the plaintiff be required to submit to licence testing, this contention falls away.
The proper construction of the Act and Regulations is a matter for trial. However, in the present context, I am not satisfied that the plaintiff has a sufficient likelihood of success to justify any restraint being imposed upon the operation of the suspension.
Where, as here, a suspension was imposed, the person whose licence had been suspended could appeal to the Magistrates’ Court.[11] The Act makes clear that on such an appeal the circumstances in which demerit points were imposed may not be reviewed. An appeal may only be made on two grounds:
(a)That the defendant recorded certain demerit points other than as required by the Regulations.
(b)That an error has been made in the addition of the number of demerit points incurred by the appellant in a relevant period.
The defendant contends that the grounds of appeal permitted by the Act constitute an exhaustive regime for a review of a licence suspension for demerit point accumulation. But, as I apprehend the plaintiff’s arguments, his complaint does not fall within either of those grounds but turns upon the proper construction of the statutory scheme. While that may be a matter for trial, it is pertinent to note the opportunity under the statutory scheme to elect to extend the demerit point accumulation period, and in that way be able to continue to drive.
[11]Section 26AA Road Safety Act 1986.
The plaintiff also contends that when the defendant issued the impugned notice it was abusing the demerit point suspension process, acting on an improper purpose or acting oppressively. On the one hand, there is no evidence on this application that would lead me to conclude that such an inference is likely to be drawn against the defendant. On the other hand, the plaintiff will need to persuade the court at trial that the issue of the impugned notice is not simply mandated by the express terms of the Act but involves either the exercise of discretion or a judgment as to reasonableness. On either contention, for the purposes of assessing the strength of the plaintiff’s prima facie case in the context of restraining the operation of the licence suspension, I consider it a weak case.
The purposes of the Road Safety Act include the following:
·To provide for safe, efficient and equitable road use.
·To set out the general obligations of road users in relation to responsible road use.
·To provide improved and simplified procedures for the licensing of drivers.[12]
Section 17 of the Act provides the purposes of licensing drivers, and includes the following:
·To ensure that people who drive motor vehicles on highways are competent drivers.
·To ensure that drivers are aware of safe driving practices and road law.
·To ensure that people who are, or who become, unsuited to drive are not permitted to drive on highways.
[12]Section 1 Road Safety Act 1986.
In his first affidavit in this proceeding sworn 2 May 2014, the plaintiff produced a copy from the defendant’s records of convictions recorded against him as at 2 May 2013. The certificate is a substantial document of 17 pages that predominantly records driving offences. More than 40 appearances are recorded before courts ranging from magistrates’ courts to the Court of Appeal from November 1983 to February 2012 . The plaintiff has numerous convictions for driving whilst disqualified, refusing a breath test, exceeding .05, exceeding the speed limit, driving whilst suspended, and disobeying traffic signs. This is a bad driving record. The explanation offered by the plaintiff is that police and other government officials frequently target him and his family for special treatment, including unlawful arrest, trespass at his home, failing to abide by court orders that prohibit them from examining his documents, creating false documents or records, destroying official records, fabricating evidence, stealing files from his home that directly relate to the preparation of litigation against police and generally engaging in unlawful activity to do harm to him and his family.
Having regard to the purposes of the Road Safety Act, the plaintiff’s driving record plainly warrants the exercise of care in determining whether he should hold a licence to drive a motor vehicle. The defendant contended that the suspended licence was issued by mistake and that upon realising the mistake the defendant issued the licence testing notice requiring the plaintiff to submit for licence testing. If the plaintiff fails to do so, or fails such testing, his licence may be cancelled. I need not pause to consider whether the plaintiff has any reasonable prospect of success in the proceeding that challenges that notice. The plaintiff contends that the condition imposed by the primary judge effectively denies the plaintiff the relief he seeks in that third proceeding. I disagree. The condition merely operates to determine whether the licence suspension is to be stayed pending the resolution of this proceeding. The operation of the notice for licence testing would be unaffected. To avoid the statutory consequences of non-compliance with that notice from affecting the plaintiff’s current licence, the plaintiff would need to succeed in the third proceeding.
At the time the plaintiff’s licence was cancelled he had served periods of disqualification. By February 2014 he had been unlicensed for more than 5 years. When a licence has been cancelled, regulation 39 of the Road Safety (Drivers) Regulations 2009 requires a person to apply for a new driver’s licence, as opposed to applying to renew the licence. An applicant for a new driver’s licence is required to undergo licence testing. The circumstances in which the plaintiff obtained the currently suspended driver’s licence are contentious. However, the plaintiff does not suggest that he obtained it after successfully completing licence testing. In my view, these circumstances quite properly influenced the primary judge to impose conditions upon his order that required the plaintiff to undergo licence testing. The circumstance remains relevant to my consideration of whether to restrain the defendant from enforcing the suspension.
After his suspension had been operative for about two months, the plaintiff claimed to be indigent, chronically ill, unable to purchase prescription medications, unable to attend medical appointments except by public transport, unable to attend to the health, sporting and social needs of his sons, and subject to financial and mental stress from defending ‘trumped up charges’. The plaintiff’s delay in seeking to stay the suspension suggests that the plaintiff is not greatly inconvenienced by being unable to drive, assuming that he does not do so. Furthermore, the plaintiff could have retained his licence by taking the option to extend the demerit point accumulation period at the risk of an increased suspension if he further offended. His reason for not doing so was fatuous, particularly if he would have been significantly disadvantaged by being unlicenced.
I am not satisfied that the strength of the plaintiff’s claims in the proceeding outweighs the public interest obligations imposed upon the defendant by the Road Safety Act. I am satisfied that refusing to direct that the defendant not enforce the suspension of the plaintiff’s licence is the course which carries the lower risk of injustice if it should turn out to have been wrong. The risk of injustice to the plaintiff, if I fail to grant him an injunction and he succeeds at trial, is that he is unable to drive a motor vehicle for a period of three weeks, and must suffer the inconveniences noted above to the extent they arise from being unable to drive. In all of the circumstances the risk of injustice to the plaintiff should it turn out that he was entitled to his licence, is insignificant when compared with the risk to community safety in permitting the plaintiff to drive without submitting to licence testing. The condition precedent contemplated by the primary judge could have alleviated the latter risk but the plaintiff has demonstrated that he does not intend to submit to licence testing.
Further, I would refuse an injunction on the grounds of unacceptable and unexplained delay. The suspension of the plaintiff’s licence became effective on 10 April 2014. His evidence of his attempts to appeal the Demerits Notice to the Magistrates’ Court shows that he was aware that the suspension process was underway and that licence suspension was imminent. He was aware of that suspension soon after when intercepted by police on 21 April 2014. He then issued this proceeding on 24 April 2014, but did not seek appropriate injunctive relief by his summons on originating motion, or promptly thereafter. The proceeding was before the court for directions on 10 May 2014, yet the application was not made until 12 June 2014. More than 80% of the period of suspension has now passed.
The court will order as follows:
(a) The appeal is allowed.
(b) Paragraph 1 of the order of the associate judge made 12 June 2014 is set aside.
(c) The appeal is otherwise dismissed.
I will hear the parties on the question of costs.
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