Marijancevic v Roads Corporation of Victoria

[2015] VSC 240

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 01939
S CI 2014 03238

JOSEPH MARIJANCEVIC	Plaintiff
v
ROADS CORPORATION OF VICTORIA	Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	24–25 February 2015, 20 March 2015, 26 May 2015
DATE OF JUDGMENT:	30 June 2015
CASE MAY BE CITED AS:	Marijancevic v Roads Corporation of Victoria
MEDIUM NEUTRAL CITATION:	[2015] VSC 240

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JUDICIAL REVIEW – Validity of demerit points notice – Withdrawal of traffic infringement notice – Jurisdictional error – Invalid points notice – Invalid suspension notice – Road Safety Act 1986 (Vic) ss 25(3), 25(3D).

JUDICIAL REVIEW – Requirement to undergo practical driving and knowledge tests – Five years since licence held – No evidence licence held – Alleged error in Roads Corporation records – Requiring person to drive while licence suspended – Improper purpose – Road Safety Act 1986 (Vic) ss 19, 24(1)(a), 24(2), 27(1)(a), 27(6), Road Safety (Drivers) Regulations 2009 (Vic) rr 30, 78(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person	–
For the Defendant	Mr N Wood	Maddocks

HIS HONOUR:

1. By originating motions, the plaintiff, Mr Joseph Marijancevic commenced related proceedings against the same defendant, the Roads Corporation of Victoria (‘VicRoads’). Both proceedings concerned decisions made by VicRoads in relation to Mr Marijancevic’s driver licence.  Pursuant to order, these proceedings were heard together.

1. Proceeding number S CI 2014 01939 was referred to by the parties as the ‘points notice proceeding’. Proceeding number S CI 2014 03238 was referred to as the ‘test decision and suspension decision proceeding’.

1. Mr Marijancevic represented himself and, as he properly submitted that I should, I have taken that fact into account in considering his submissions.

Proceeding 2014 01939 – ‘points notice proceeding’

1. In this proceeding, Mr Marijancevic challenged the validity of a points notice dated 27 February 2014 (‘Points Notice’), issued by VicRoads under s 25(3) of the Road Safety Act 1986 (Vic) (‘the Act’), and the suspension of his driver licence under s 25(3D) of the Act for a period of four months, commencing on 10 April 2014 (‘Points Notice Suspension’), in reliance on the Points Notice.

1. On 25 February 2015, the Court adjourned both proceedings, to enable VicRoads to investigate a conflict between its records and those of Civic Compliance.  VicRoads’ records indicated that Mr Marijancevic had incurred four demerit points for a speeding infringement on 19 February 2005.  Civic Compliance’s records indicated that a ‘Joseph Henderson’ had incurred those points.

1. On 26 May 2015, VicRoads informed the Court that, as a result of its investigation, it accepted that, at least for the purposes of this proceeding, Mr Marijancevic did not incur 4 demerit points on 19 February 2005. The relevant traffic infringement notice had been withdrawn within the relevant period permitted by the Act, after Mr Marijancevic made a statutory declaration in which he indicated that Joseph Henderson had been driving the vehicle at the relevant time. VicRoads accepted that the Points Notice was, therefore, invalid and that, as a consequence, the Points Notice Suspension was similarly invalid.

1. VicRoads conceded that this was a jurisdictional error, because the Points Notice wrongly indicated that the ‘demerit point period’ was 4 months.  VicRoads contended that the issue in this proceeding could have been determined by appeal to the Magistrates’ Court. However, it did not dispute that this Court should grant orders in the nature of certiorari to quash the demerit point option notice issued and to quash the purported suspension of Mr Marijancevic’s driver licence for a period of 4 months commencing on 10 April 2015.

1. I will make orders in the nature of certiorari quashing the purported decision of the defendant, VicRoads, on 27 February 2014 under s 25(3) of the Act to serve a demerit points options notice on Mr Marijancevic. I will also issue an order in the nature of certiorari quashing the purported decision of the defendant, VicRoads, under s 25(3D) of the Act to suspend Mr Marijancevic’s driver licence for a period of 4 months commencing on 10 April 2014.

Proceeding 2014 03238 – ‘test decision and suspension decision proceeding’

1. In this proceeding, Mr Marijancevic sought to challenge VicRoads’ decision of 3 June 2014, to require him to undertake and pass a road law knowledge test and a practical drive test (‘the tests’) on or before 1 July 2014 (‘the tests decision’). In a letter dated 3 June 2014, VicRoads advised Mr Marijancevic that he was required to complete the tests before a licence could be reissued. VicRoads’ decision was taken under s 27 of the Act.

1. VicRoads’ letter to Mr Marijancevic advising of the tests decision stated:

As more than 5 years had passed between the cancellation of your driver licence on 7 September 2005 and your application for a new licence on 27 February 2014, VicRoads’ ordinary business procedures would have required you to undertake the road law knowledge test and the practical drive test prior to the issue of a driver licence.  These procedures were overlooked as the result of an error made by the staff who issued your licence.  As a result of that error, your driver licence was issued without requiring you to undertake the usual tests.

However, VicRoads is entitled to require a person to undergo a test at any time, to determine if that person is unfit to drive motor vehicles, including a test in relation to the person’s competence or any other test that VicRoads considers necessary and appropriate: see ss 27(1)(a) and 27(2) of the Act. Where you have been unlicensed for a very significant period of time, and your previous driving history demonstrated a significant number of driving offences and traffic infringements, it is appropriate that tests be undertaken to assess your practical driving competence and knowledge of Victorian road laws.

1. In his originating motion, Mr Marijancevic set out 17 grounds of review. These grounds effectively comprise three grounds, as follows. First, that the records kept by VicRoads in relation to Mr Marijancevic’s driving and licence history were incorrect.  Secondly, that the requirement that Mr Marijancevic complete a practical driving test whilst his licence was suspended would require him to drive on Victorian roads contrary to law.  Thirdly, that VicRoads’ decision to require Mr Marijancevic to undertake these tests was made for an improper purpose, being to dissuade the plaintiff or otherwise impede him in seeking judicial relief in relation to the ‘points decision proceeding’. 

1. A further ground of review addressed VicRoads’ decision to suspend Mr Marijancevic’s licence.  On 24 October 2014, Elliott J granted Mr Marijancevic leave to amend his originating motion to include VicRoad’s decision of 6 August 2014 to suspend his driver licence.  In essence, this additional ground alleged that VicRoads’ decision to suspend Mr Marijancevic’s licence was invalid if VicRoads’ decision to impose the tests was invalid.

1. On 26 May 2015,  Mr Marijancevic applied to further amend his originating motion[1] to seek a number of declarations.

   [1]Mr Marijancevic’s summons bore the number of the points’ proceeding, but he also sought the amendment in the test matter.

1. He sought a declaration that he was the holder of a valid Victorian driver licence on 14 February 2006.  He also sought declarations that VicRoads’ records indicating that he was convicted at the County Court on 19 December 2004 of offences of recklessly engaging in conduct which endangers life and intentionally causing injury were in error because no conviction or sentence took place for those offences.

1. He said that the Court of Appeal set aside those convictions and that he was convicted in 2012 in the County Court to different and lesser charges. There was no order made that affected his driver licence.

1. He also sought declarations that VicRoads’ certification that he notified it of three changes of address were in error and false.

1. He also sought declarations that VicRoads’ records indicating that he had committed an offence on 19 February 2005 were in error. VicRoads conceded that error in the points notice proceeding.

1. I refused Mr Marijancevic’s application because I did not consider that the additional grounds proposed were relevant to the issues in the test decision and suspension decision proceeding. I indicated that, in deciding that proceeding, I would take into consideration Mr Marijancevic’s submission about the inaccuracy of VicRoads’ records and I have done so. That submission, however, was more relevant to Mr Marijancevic’s points notice proceeding and VicRoads has conceded in that proceeding that it made a jurisdictional error in respect of the demerits points notice which, by decision of 27 February 2014, it purported to decide to serve on him.

1. Mr Marijancevic’s licence has been suspended indefinitely because he has not undergone the tests or completed them successfully. The suspension was notified in a letter addressed to him dated 6 August 2014.

1. The basis of the tests decision was the application of a business test adopted by VicRoads, which was that if a person has not held a licence for a period of five years they must pass the tests before a new licence is issued to them. 

1. In this case, a licence was reissued to Mr Marijancevic in February 2014.  The Roads Corporation case is that, soon after it was reissued, VicRoads realised that this had been done in error and that Mr Marijancevic should have been required to undertake a driving test.  Mr Marijancevic contended that the records kept by VicRoads in respect of his driving history and the issue of a licence are incorrect.  He asserts that he obtained a licence in 2012 and also obtained a licence in 2014.  VicRoads disputed those assertions and said that no licence was issued in 2012 and that there is no evidence of one being obtained.  It said that the issuing of a licence to him in February 2014 was a mistake.

1. The business rule was in the following terms:

Business rule

Licence cancelled for more than five years

A person who has not held a valid licence within the previous five years due to a ban is required to undergo a knowledge and drive test prior to the re-issue of a Victorian driver licence. There is no requirement for the learner permit card to be issued unless the person wishes to practise driving.

The knowledge and drive tests are valid for 12 months. If other licensing requirements or procedures are not met during this period, (ie payment of fees) the applicant will have to re-sit the tests again.

If delays, past the twelve month or five year period, occur due to an administrative process, re-sitting the tests should be waived. This should not apply to clients who do not provide a satisfactory medical report within this period.

1. VicRoads submitted that the relevant period in excess of five years in relation to Mr Marijancevic was from November 2005 until 2014.

1. VicRoads submitted that it could require Mr Marijancevic to undergo the tests because of the provisions in s 27(1) and s 24(2) and Regulation 78(1).

1. Mr Marijancevic argued that he obtained the reissue of his licence in 2012 and that it was again reissued in 2014.

1. Mr Marijancevic relied on a VicRoads document dated 12 February 2014 addressed ‘To Whom It May Concern’, which commenced:

This is to certify that Mr JOSEPH MARIJANCEVIC, born 5 February 1950, is the holder of a current Victorian Driver Licence No.32036635 and has notified VicRoads of the following changes of address.

1. The document lists three changes of address and lists a current address in Sunshine. Mr Marijancevic challenges the accuracy of the change of address section of this document.  One of the addresses was of M Barbirotto of VicRoads’ address in Kew. There was some evidence from Mr Konstantinos Markopoulos, a former VicRoads employee, that that entry was explicable as a step to ensure that documents relating to Mr Marijancevic were sent to that particular officer. However, the incorrect address lessens the weight that can be given to the document.  I do not accept that it establishes that Mr Marijancevic held a driver licence on 12 February 2014.

1. Mr Marijancevic also relied on a VicRoads document dated 27 February 2014, which was the form he completed for the reissue of his licence. He said that he was applying for a new licence because he could not find his old licence. He was given a licence and applied for the option to extend it for 10 years.

1. Mr Marijancevic also argued that the tests decision was made for an improper purpose.

The relevant legislation and regulations

1. Section 19 provides in relevant parts:

19 Driver licences

(1) The Corporation may, on the application of a person over the age of 18 years, grant a driver licence if it is satisfied that the applicant is qualified to hold such a licence.

(2) The Corporation may, before granting a licence, require the applicant—

(a) to pass any appropriate tests; and

(b) to comply with any prescribed procedures and requirements; and

(c) to have any prescribed qualification.

(2A) Without limiting subsection (2)(b), a regulation for the purposes of that paragraph may provide for different procedures or requirements depending on a person's age, experience or any other factor.

…

(4) A licence may be applied for, granted, renewed or refused only in accordance with the regulations.

…

1. Regulation 30 provides the procedures for applying for the grant of a licence.

1. Section 27(1)(a) confers a power on VicRoads to require a relevant person to undergo a test to determine if the person is unfit to drive motor vehicles. A relevant person is defined in s 27(6) as including the holder of a driver licence.

1. Section 24(1)(a) of the Act provides that VicRoads may, in accordance with the regulations, suspend for the prescribed time the driver licence of any person. Regulation 78(1) relevantly provides that VicRoads:

may vary, suspend or cancel a person’s driver licence … if the person is required by [VicRoads] under s 27 of the Act to undergo a test; and the person has refused or failed to undergo the test or has not passed the test.

The witness evidence

Mr Marijancevic

1. Mr Marijancevic made a number of affidavits in which he challenged the accuracy of VicRoads’ records concerning his driving history. In his affidavit of 3 October 2014, he described the circumstances in which, in February 2012, he attended the Sunshine office of VicRoads and, he maintained, obtained his driver licence. He said that he paid money to a person at the counter, who gave him back his licence and said that he would take care of it.

Mr Markopoulos

1. Mr Konstantinos Markopoulos, who was formerly VicRoads’ licence and registration court officer, gave evidence. He signed certificates under s 84(1) of the Act, which stated that Mr Marijancevic did not hold any Victorian or interstate driver licence between 8 September 2005 and 26 February 2014. The certificates also stated that, on 27 February 2014, Mr Marijancevic was issued a driver licence at VicRoads’ Sunshine office, without any record of his having undergone a road knowledge test or a practical drive test.

Mr Marijancevic’s submissions

1. Mr Marijancevic pointed to a number of errors or inaccuracies in the VicRoads driving records.  Mr Marijancevic placed great emphasis on his contention that there were errors in VicRoads’ records and he relied on the doubt that those errors raised in relation to the accuracy of any decision made by VicRoads.  Mr Marijancevic argued that other avenues of appeal were not available to him.

1. Mr Marijancevic’s case was that he received a driver licence in 2012 and 2014.  He did not agree that he had not held a licence between 2005 and 2012.  He argued that VicRoads, having issued a licence to him in 2012 and 2014, did not then have power to suspend his licence because he did not comply with its requirement to undergo the test.

1. He argued that a number of orders of various courts indicated or proceeded on the basis that he had a valid Victorian driver licence and that he had permission to drive. 

1. Mr Marijancevic also submitted that VicRoads made the tests decision for an improper purpose and that its decision would require him to break the law.

VicRoads’ submissions

1. VicRoads submitted that there was no evidence that Mr Marijancevic was issued a driver licence in 2012. The issue of the licence to him in February 2014 was a mistake. In any event, it did not prevent the decision to require him to undergo the tests. His failure to comply with the tests requirement entitled VicRoads to suspend his driver licence.

1. VicRoads submitted that whether or not Mr Marijancevic’s driver licence was reissued, renewed or granted in August 2012, it was open to it in the exercise of its discretion, to require him to undergo a road knowledge test and a practical driving test.

1. There was no evidence to support a finding that its tests decision was made for an improper purpose.  Mr Marijancevic would not have broken the law by being required to undertake the tests.

1. VicRoads submitted that a driving test can be required even if the person does not have a driver licence. 

1. VicRoads, as an alternative contention, submitted that Mr Marijancevic could have appealed its decision to suspend his licence to the Magistrates’ Court under s 26(1)(b) of the Act and that this Court, in the exercise of its discretion, should refuse any remedy in the exercise of its judicial review powers, if it was otherwise intending to grant such relief.

Conclusion

1. I am not persuaded that any evidence establishes that Mr Marijancevic had a licence at any time in at least the five year period prior to the mistaken issue of a licence to him, in February 2014.  In those circumstances, I am not satisfied that Mr Marijancevic has made out his case. 

1. The document of 27 February 2014 appears to have been in error in a number of respects. I am not persuaded that Mr Marijancevic obtained a licence in 2012 and no copy of any such licence was produced. VicRoads was entitled to require him to undertake the tests under s 27 of the Act.

1. I am neither satisfied that the tests decision was made for an improper purpose nor that Mr Marijancevic would have broken the law by being required to undertake the tests.

1. Mr Marijancevic has not established that VicRoads made any jurisdictional error.

1. It is unnecessary for me to consider VicRoads’ alternative argument that Mr Marijancevic should be refused orders in the exercise of the Court’s discretion. 

1. Mr Marijancevic is entitled to the orders to which I have previously referred in the points notice proceeding SCI 2014 01939.

1. The tests decision and suspension decision proceeding, SCI 2014 03238, will be dismissed.

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