Morgan v Registrar of Motor Vehicles - [2011] SADC 153

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
MORGAN v REGISTRAR OF MOTOR VEHICLES
[2011] SADC 153
Judgment of His Honour Judge Beazley
28 September 2011
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
Appeal against decision of Registrar of Motor Vehicles to decline to offer for sale the proprietary rights to the numeric motor vehicle plate "SA 2" to the appellant who is currently registered as the holder of that plate - Registrar determined that if the plate became available for sale, it would be sold by public auction only - Whether Registrar effectively excluded the appellant from being able to purchase the subject plate for as long as he maintained possession of the plate - Whether the appellant effectively obliged to surrender the plate to the Registrar
Held: Appeal allowed - matter remitted to Registrar for further consideration.
Motor Vehicle Act 1959 ss 46, 47, 47A, 47C, 98Y, 98Z, 98ZA; District Court Act 1991 ss 42E(3); 42F; 42G; Green v Daniels (1977) 51 ALJR 463; Hughes Aircraft International Airservices Australia (1977) 76 FCR 151; Perder Investment Pty Ltd v Lightowler (1990) 25 FCR 150; Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; Mauro v Hooper [2008] SASC 159; Quark Technologies Pty Ltd v WorkCover (1997) 70 SASR 153; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, referred to.

MORGAN v REGISTRAR OF MOTOR VEHICLES
[2011] SADC 153
Introduction

Peter Ranembe Morgan (“the appellant”) appeals pursuant to s 98 ZA of the Motor Vehicles Act 1959 (“the Act”) against the decision of the Registrar of Motor Vehicles, on 13 March 2008, to decline a proposal to sell to him the proprietary rights to the numeric motor vehicle plate “2”.
The appellant is currently registered as the holder of the plate ‘SA 2”. The decision of the Registrar was confirmed by a Review Committee, established pursuant to s 98Z of the Act, (“the Review Committee”) on 16 March 2009, which decision was conveyed to the appellant by letter dated 20 November 2009. The Review committee was empowered to confirm or vary the decision of the Registrar, or to set aside that decision and substitute a new decision.[1]
[1] Section 98 Z(11) Motor Vehicles Act 1959
This appeal involves matters not merely of importance to the appellant, but also to the administration by the Registrar of his discretionary powers in Division 8 of the Act. There are undoubtedly various commercial matters to be considered by the Registrar when determining whether to enter into an agreement for the allocation of particular number plates, and for the sale of certain proprietary rights to such plates.
The respective decisions of the Registrar and the Review Committee are contained in correspondence from them to the appellant, the wording of which is unhelpful. As will be seen, the Registrar’s decision referred, somewhat obliquely, to reasons conveyed by his predecessor in previous correspondence,[2] which was suggestive of a blanket refusal to sell the subject plate. From the absence of any detailed reasons from the Review Committee, one might infer that it may not have properly considered the Review at all.
[2] Letter from Registrar 13 March 2008
While it is possible to glean from other correspondence from the Registrar, the basis for the decision to decline to offer the subject plate for sale to the appellant, it would have been of greater assistance to the appellant and this Court had the reasons for that decision been more clearly expressed.
As it transpired, the reasons have been somewhat refined over the long period of delay from 13 March 2008 to the hearing of the subject appeal. By the time of the appeal the parties had engaged experts to express opinions as to the true value of the subject plate, and the appropriate process to achieve that value. The appeal proceeded on an entirely different basis to the way in which it was considered by the Registrar.
Before discussing the factual background and the respective reasons of the Registrar and the Review Committee it is necessary to set out the relevant sections of the Act.
The Act
Since the commencement of the Motor Vehicle Act Amendment Act 1985,[3] the Registrar has been empowered to establish classes of number plates, and inter alia, to sell certain proprietary rights with respect to some plates.
[3] No. 61 of 1985, which commenced on 5 September 1985
Section 46(2) provides that except in circumstances where a number plate is the subject of an agreement granting a person proprietary rights to such a plate, the Registrar may vary or amend the number allotted to a vehicle.
Section 47A(4) provides that the Registrar may enter into an agreement with a person providing, inter alia, for the right to be allotted and to attach a particular number in respect of a vehicle registered or to be registered in the person’s name as an owner; and for the assignment of rights conferred under the agreement. The Registrar is thus empowered to sell proprietary rights to individual numeric plates.
In my opinion the purposes underlying this amendment were to enable those members of the public with an interest in such plates, including, logically, those who are in possession, pro tem, of a plate, to obtain proprietary rights in such plates and to enable the Registrar to recover the capital value of those rights.
Section 47A(5) provides that the Registrar may fix a fee by private treaty or alternatively by the sale by public auction of the rights so conferred.
Section 47C(2) provides that if the registration of a vehicle is not renewed within the permitted period, the Registrar must take steps to recover the number plate which had been allotted to it.
Background
Following the respective decisions of the Registrar and the Committee, the parties have filed a bundle of documents which have been included in what was styled a “Book of Copy Documents”.
These consist mainly of affidavits and exhibits thereto, and which detail the history of the appellant’s “acquisition” of plate “SA 2”, and his subject application. I gave leave to the parties for those documents to be tendered and used by them in the appeal.[4]
[4] See in particular, affidavit of Claudia Lepore sworn 15 March 2010
Following the completion of submissions the parties filed a further written submission which detailed some facts which had been the subject of agreement.
There is no dispute about the following chronology: -
·Between 1906 and December 1966 all numeric plates allocated by the Registrar consisted only of numbers abutted by a white letter S positioned above a white letter A with the relevant white number set against a black background.
·The number plate “SA 2” was originally allocated to the appellant’s great-grandfather on 20 August 1906.
·The subject number plate has at all times been retained by the appellant’s family. Ultimately a 1965 X2 Holden Sedan was registered in his name with the subject number plate and has remained so registered ever since.
·Prior to 1967 registered owners of vehicles to which number plates had been allotted were able to transfer the number to another vehicle. Although pursuant to s 46(2) of the Act the Registrar could vary or amend the number allotted to a vehicle, such a discretion has never been exercised by the Registrar.
·In January 1967, the Registrar adopted a policy which permitted the registered owners of vehicles, to which numeric number plates had been allotted, to retain the use of their existing number plates so long as the vehicle remained registered in that owner’s name and that registration continued to be renewed within the respective periods allowed for renewal.
·Following the commencement of the Motor Vehicles Amendment Act No 61 of 1985 the Registrar adopted the policy of offering for private sale proprietary rights and restricted rights in respect of the then existing numeric number plates. In October 1985 the Registrar conducted an auction to determine the fees for the issue of such numeric number plates.
·By letter dated 5 March 1986, the appellant was invited by the Registrar to purchase either the proprietary rights or some restricted rights in respect of the numeric plate number 2 held by him. He declined to make an offer at that time.
·The policy of the Registrar, at least since 5 March 1986 is that the appellant may retain possession of the subject numeric plate “2” for so long as the vehicle to which it is allotted remains continuously registered by the appellant. Accordingly the appellant could no longer transfer the subject plate and would lose it if its registration lapsed.
·By letter dated 10 January 1996 the Registrar noted that if the subject plate became available, the proprietary rights to it would be offered for sale by auction, or closed tender.
·The appellant has at all times renewed the registration of the motor vehicle to which the subject plate is attached, and remains the holder of the subject plate. He has indicated his intention to continue to renew such registration in the future.
·By letter dated 8 May 1998 the appellant offered to purchase the proprietary rights in the subject plate from the then Registrar for the sum of $15,000.
·By letter dated 5 June 1998 the then Registrar noted that while the appellant was the registered holder of the subject number plate in respect of a motor vehicle, the RAA had held that number plate in respect of a trailer. He stated that he had “chosen not to exercise my discretion and create a precedent by entering into an agreement that does not provide for the exclusive rights to display the number”. Accordingly, he declined to enter into any agreement for the sale of the proprietary rights to the subject plate to the appellant.
·By letter dated 15 June 1999 to the then Registrar, the appellant again offered to purchase the proprietary rights to the subject plate for the sum of $15,000. He proposed that all of the registered holders of any numeric plate, be approached with an invitation to purchase that numeric plate at a reduced market value, so as to reflect the fact that the respective numeric plates would not otherwise be available for sale by the Registrar so long as they remained registered in the names of those holders.
·By letter dated 22 June 1999 the then Registrar declined to enter into any agreement for the sale of proprietary rights to numeric number plates in those cases where the numeric number continued to be displayed on a trailer or motor cycle as well as the subject motor vehicle.
He explained:
As stated in my letter to you of 4 December 1998, the advice provided to me by the Crown Solicitor’s Office was that it would be inappropriate for me to enter in different agreements for the same numeric number, even if the agreements are for different classes of vehicles.
While I appreciate your continued interest in obtaining proprietary rights to this number, it is still my intention to remain with the current practice of not entering into any agreements for proprietary rights to numeric numbers, in those cases where the numeric number continues to be displayed on a trailer or motor cycle.
·By letter dated 14 October 1999 to the appellant the then Registrar repeated that as a matter of practice he would only enter into agreements which would provide a purchaser with full rights to numeric number plates rather than one restricted to motor vehicles alone.
He stated:
While I acknowledge that section 47A of the Motor Vehicles Act 1959 would permit me to enter into an agreement for reduced rights to numeric number plate “SA 2”, my practice has been to enter into agreements that provide the purchaser with the full rights to numeric number plates.
There are a number of reasons for this practice, which I have previously outlined in my letters to you. There are, in my view, sound policy reasons for continuing this practice.
Your contention that the value of number plates with full rights would not be affected by the value of number plates with reduced rights is something that could only be tested in the marketplace.
I disagree that your offer for reduced rights to “SA 2” is in accordance with its market value.
In my view, it would be remiss of me to enter into agreements for numeric number plates at a price below their true market value. I believe that I have an obligation to ensure that the true market value of any given numeric number plate is realised. In the case of single digit numbers, the only way that their true value could be realised is to offer the full rights by way of an auction or tender process.
The subject application to the Registrar
By letter dated 30 November 2007, the appellant again requested the Registrar to reconsider those earlier decisions, and exercise his discretion to sell to the appellant, the proprietary rights to the subject numeric plate number 2, restricted to a motor vehicle alone, for the sum of $15,000.
The subject decision of the Registrar of Motor Vehicles
By letter dated 13 March 2008 the Registrar notified the appellant that his request had been declined, on the following basis:
It is not my intention to offer this number for sale in the near foreseeable future for the reasons previously stated by (the former Registrar). If this number plate becomes available for sale it will be by way of public auction.
I readily accept that a court should hesitate before criticising allegedly inadequate reasons given by an administrative decision maker. As was explained by Brennan CJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:[5]
The reasons of an administrative decision-maker are meant to inform and not meant to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
[5] (1996) 185 CLR 259 at 272
It is reasonable to infer that “the reasons previously stated”, are those contained in the abovementioned letters dated 22 June 1999, and 14 October 1999. When the appeal came on for hearing in this court the reasons of the Registrar had become somewhat refined, however it seems that the two bases for the rejection of the offer by the Registrar, by reference to the above letters were respectively that:
1.It would be inappropriate to enter into agreements for the sale of proprietary rights restricted to different classes of “vehicles”.
2.That the only way the true value of a single digit numeric plate could be realised is by public auction.
Although it is obvious that the Registrar was only being asked to consider a proposal in the sum of $15,000; it is significant that in so refusing that proposal, the Registrar did not invite any alternative offer, nor the opportunity to negotiate a price.
The application for review
The appellant sought a review by the Review Committee of the decision of the Registrar pursuant to s 98Z of the Act.
The grounds of that review were detailed in a written submission by the appellant dated 17 November 2008, inter alia, that:
·The Registrar had erred in concluding that he was restricted in some way from entering into an agreement for the sale of proprietary rights in respect of the subject numeric plate because there was in existence a trailer plate, with the same number “2” held by the RAA.
·That there was no basis in fact or law to suggest that it would be inappropriate to enter into “different agreements” for the same numeric plate on different classes of vehicles.
·That no or alternatively insufficient regard was given by the Registrar to the fact that the subject numeric plate had been in the appellant’s family since 1906, and the proprietary rights to it could not be sold by the Registrar so long as the appellant continued to renew his registration.
·That the Registrar had failed to have regard to the fact that the appellant had offered to purchase the subject plate for many years during which similar numeric plates had been sold by the Registrar by private treaty.
·That no or alternatively insufficient regard had been given by the Registrar to the existing rights of the appellant as the current holder of the subject numeric plate.
The decision of the Review Committee
On 16 March 2009 the Review Committee purported to confirm the decision of the Registrar to refuse the sale of Class Specific Rights for the subject numeric plate.
There was an unexplained delay in the appellant being advised of this decision. However by letter dated 20 November 2009 the appellant was notified of the Committee’s decision, the reasons being stated as:
The longstanding legislative provisions of Division 8 Motor Vehicles Act 1959 provides discretion to the Registrar of Motor Vehicles in the entering of agreements for the assignment of rights. The Registrar has exercised his discretion pursuant to the provisions.
Very properly the respondent concedes that on the face of its reasons, the Review Committee either did not properly undertake its function to consider the merits of the Registrar’s decision, or alternatively has provided reasons which were inadequate. I accept however the respondent’s submissions that I should put to one side the decision of the Review Committee and consider the appeal in the light of the Registrar’s decision on 13 March 2008.
Notice of Appeal
The appellant, by notice dated 18 December 2009, appealed to this Court against the decisions of the Registrar and Committee pursuant to s 98ZA of the Act. The principal ground of appeal, was that the Review Committee had failed to specify any reasons for confirming the Registrar’s decision, save for noting that the Registrar was vested with a discretion. In his alternative grounds the appellant repeated the submissions which he had made to the Review Committee, none of which had been referred to by the Review Committee in its reasons.
Nature of the appeal
Section 42E of the District Court Act 1991 provides that:
(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 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.
Hearing of the appeal
The appeal in this case was somewhat unusual. As can be seen, the decision of the Registrar on 13 March 2008 was to reject the offer of $15,000 for the rights to the subject plate. There was no counter proposal put by the Registrar, simply an indication that the rights to the subject plate were not currently for sale.
The parties sought and obtained leave to adduce further evidence in two categories, firstly that as to the history of the sale of rights to plates contained in various affidavits, and secondly to permit new material, namely expert evidence as to the value of the subject plate.
The further evidence
· The affidavits
The relevant affidavits were as follows:-
·Affidavits of the appellant sworn on 18 December 2009, 21 December 2009, 29 March 2009 and 29 March 2010;
·The affidavit of the appellant’s solicitor John Peter Marchant sworn on 29 March 2010; and
·The affidavit of Claudia Lepore, the Principal Policy Officer, Safety and Regulation Division of the Department for Transport, Energy and Infrastructure sworn on 15 March 2010.

I do not need to set out in detail the matters deposed to in those affidavits, save for some matters referred to in the affidavit of Claudia Lepore. Ms Lepore deposed to the fact that the practice adopted by the Registrar in respect of the sale of rights had varied over time. At one time the Registrar had adopted a policy of offering for private sale, proprietary rights and restricted rights, in respect of then existing numeric number plates. However as and from 1 January 2008, the Registrar had determined that the new Class Specific Rights to numeric plates should only be sold through public auction.
The parties tendered by agreement, tables detailing the respective prices obtained for the sale of proprietary rights of numeric class number plates by private sale on the one hand, and by auction on the other.[6]
· Expert valuation evidence
[6] Pages 216-225 of the agreed Book of Documents
Upon the appeal both parties sought leave to call expert witnesses as to the value of the subject numeric plate.
It is clear that the Registrar did not have before him any evidence as to the value of the subject plate at the time he made his decision to refuse to sell it to the appellant on 13 March 2008.
The appellant called Dr Philip Williams, the Executive Chairman of Frontier Economics and a former Professor of Law and Economics at the Melbourne Business School of the University of Melbourne.
In addition to his oral evidence, an expert report by Dr Williams dated 10 August 2010 was tendered by the appellant.[7]
[7] See Exhibit A1
The respondent called Steven Kincaid, a Certified Practising Valuer and Auctioneer to depose to his opinion as to the value of the subject numeric plate in the event that it was sold by public auction. In addition to his oral evidence, an expert report by Mr Kincaid dated 20 May 2010 was tendered by the respondent.[8]
[8] See Exhibit D2
When respectively giving their oral evidence, both expert witnesses had regard to the evidence of plate sales since the preparation of their respective reports.
The respective expert witnesses approached the question of the valuation of the subject plate on entirely different bases. For reasons which will become clear I propose to set out in only a brief form the respective approaches taken by those experts.
Dr Philip Williams
Dr Williams is an eminent economist. His Curriculum Vitae is extremely impressive. He is highly qualified to express opinions as to valuation based upon statistical analysis. He stated that in his opinion, the relationship between the price of the plate, and a particular number on a plate should be estimated by means of regression analysis. He explained that he had sought the assistance of Professor Bartels, a person highly qualified in that field, to develop a regression model, which he employed for the purpose of his report.[9] He explained the standard method by which economists test for statistical significance is by multiple regression analysis. He had regard to what he described as the three factors identified in the report of Mr Kincaid, which allegedly influenced the value of a particular numeric number plate. I do not need to detail those factors.
[9] Exhibit A1A and A3
He explained that the relevant data from the Department of Transport Energy and Infrastructure to the month of May 2010 had identified some 139 sales of one or two digit plates in South Australia since 1985.
He noted that, on occasions, purchasers had paid significantly higher prices for certain plates based upon idiosyncratic reasons, and therefore any analysis attempting to predict market prices had to rely upon the broad average trends in the 139 sales. Accordingly he said that little weight ought to be ascribed to individual prices. He explained that regression analysis converts the basic statistical data into a mathematical equation which takes into account, some of the factors identified by Mr Kincard, including that the prices are higher, when the number of the plate is lower; and what he described as a time trend variable to incorporate increases in prices over time. That is to say that both the number of the plate and the year in which it was traded had a statically significant effect on market price.
Employing that equation, Dr Williams predicted the market price for the subject numeric plate “2” plate in 2010 as being $28,300. After making allowance for the additional data which increased the total sales of such plates from 139 to 147, he predicted that the market price for the subject “2” plate in 2011, was $34,873.
Dr Williams was critical of the methodology employed in Mr Kincaid’s report, and in particular the use of sales of plates from interstate; and, he asserted, that it did not take into account all of the relevant one and two digit plate sales in South Australia.
He explained that interstate sales were irrelevant, and could not be explained within the variation in the sales of South Australian number plates in the one and two digit range.
When cross-examined, Dr Williams explained that the purpose of regression analysis is to discover a pattern of relationships from a series of figures, in this case the data of sales. When asked about the difference between actual sales, and the estimate gained from the use of the formula, Dr Williams stated that the formula merely shows average relationships, and does not predict any particular sale. Accordingly an individual sale which might be affected by idiosyncratic matters, does not adversely impact upon the validity of the formula, as the latter is based upon an average.
When it was put to him that one particular sale in South Australia had represented an increase in time over 400% in value, he explained again that a particular number may vary in a highly idiosyncratic way, and one would need more data to determine whether the sale was at arms length or what in fact was the true basis of the sale.
He conceded that in respect of an individual sale of the subject plate, he could not know what actual price the subject plate would bring if placed on the market, as it could be affected by those idiosyncratic factors.
Steven Kincaid
Mr Kincaid explained that he had been an auctioneer and a valuer for some 32 years, and held professional qualifications in both of those areas. He had specialised in valuing non-real estate assets including plant, machinery, general goods and chattels. Mr Kincaid said that, contrary to the comments of Dr Williams, he had in forming his opinion, had regard to all of the single and two digit sales in South Australia. He had simply highlighted a number of those sales, namely those in respect of the plates numbered 9, 22, 47 and 52.
He acknowledged that he had not had cause to apply statistical analysis when attempting to provide a valuation of a plate.
He said however that he did take into account comparable sales in fixing his valuation. He was cross-examined about the basis of his valuation and a letter which had been written by a member of his then firm on 13 September 2010, in which the author had explained the basis of the valuation as follows:
One of the reasons for this was in our opinion there was insufficient reliable information available for us to be able to approach the valuation and comply with the methodology required and the various valuation standards.
Mr Kincaid could not explain why that letter had been written and reiterated that he was content with the basis of the valuation contained in his report. He had valued the subject plate for sale by public auction at a sale price falling between $140,000, and to $180,000.
He accepted however that if a graph had been prepared in respect of all of the numeric plates in South Australia since 1985, whilst excluding some four sales which may be explained on an idiosyncratic basis, then all bar one of the single and double digit sales between 1985 and 2009, were sold for prices below $20,000.
When he was asked to explain the difference between those prices and the value of between $140,000 and $180,000 so estimated by him for the subject plate, he explained that his valuation was based upon the uniqueness of the subject plate and the small number of sales of single digit plates.
He accepted that the interstate prices to which he had referred were in a different market and that different considerations must apply to those sales.
He conceded that for the most part, the sales in South Australia were by private treaty. He had noted in his report that one could not know whether the higher prices referred to in respect of some sales were achieved by arms length negotiations nor whether there were some idiosyncratic factors in place. He accepted that these latter factors might undermine the reliability of those sales. He accepted that even if one took into account those transactions which may be inflated and not at arms length, then despite those factors, no licence plate in South Australia had ever sold for over $120,000.
He accepted that if one were to analyse the past sales in the manner suggested by counsel for the appellant, then the data did not support the figure suggested by him of $140,000 to $180,000.
As to the question of sale by private treaty or public auction he said that notwithstanding the fact that there were occasions when a private sale might produce a higher figure than at auction, that in his professional opinion the transparency and competition created in a properly conducted auction sale would be likely to achieve the best possible price.
He explained that ultimately it was his long history and experience as an auctioneer which principally influenced his opinion as to the value, saying that:
Look, I suppose it’s a little bit like an antique value worth and we’ve all seen the Antique Roadshow where they are faced with items of a very one off and unique nature, and based upon their auctioneering experience they come up with a range. That criteria also formed part of forming our opinion.[10]
[10] T. p63
Appellant’s submissions
Counsel for the appellant, Mr Tokley, referred to the object of the Motor Vehicles Amendment Act (No 61 of 1985) which, he submitted, was to enable the Registrar to recover the capital value of the rights to licence plates. He submitted that as the subject plate had at all times remained in the appellant’s family, it had never been available for sale by the Registrar.
Mr Tokley referred to the history of sales by the Registrar since 1986 and submitted that there was no proper basis for what he submitted was a refusal to exercise the discretion to sell the plate to a person in the position of the appellant.
He noted that over time the Registrar had altered his policy from approving sales of proprietary rights by private treaty to effectively now excluding any method of sale other than by public auction. He correctly submitted that the inflexible application of policy can give rise to relief in proceedings in the nature of judicial review. He referred to Green v Daniels.[11]
[11] (1997) 51 ALJR 463
He submitted that the highest prices had in fact been achieved through private treaty and not through the auction process and any policy of the Registrar insisting upon sale by public auction had the effect of excluding the appellant from purchasing the proprietary rights unless he voluntarily gave up his present possessory right. He noted that had the Registrar accepted the offer of the appellant in the sum of $15,000 when it was first offered it would have been then the highest price obtained for any single digit licence plate in South Australia.
Finally Mr Tokley submitted that the subject decision of the Registrar on 13 March 2008 was clearly made in error, in that it was based upon a misunderstanding as to the sale of rights restricted to motor vehicles alone. He submitted that the Registrar had in effect, closed his mind to the sale of the plate to the appellant so long as he held what he described as “a possessory right” to the plate. He repeated his submission that the Review Committee had failed to properly review the decision of the Registrar.
He submitted that I ought set aside the decision of the Registrar and direct that the plate be sold for the price that had been identified by Dr Williams.
Respondent’s submissions
Counsel for the respondent Mr Keane correctly submitted that the appeal related to the decision of the Registrar on 13 March 2008, and therefore any offer made by the appellant in 1999 cannot be used as a measure of value. Mr Keane submitted that I ought to accept the opinion of Mr Kincaid that the most appropriate way of fixing a value is by public auction.
He acknowledged the somewhat unusual position in which the appellant finds himself in that his family has been in possession of this plate since it was first issued in 1906. He referred to the fact that the Registrar had offered the appellant the opportunity to purchase the proprietary rights in 1985 however that opportunity was declined by the appellant. As to the evidence of the two experts, he submitted that one cannot disregard the reality that idiosyncratic factors might come into play, in that there may be an individual who specifically wants that particular number. Accordingly a true value of the plate could only be determined at a public auction.
He accepted that it was unfortunate that the letter of 13 March 2008 did not specifically detail the reasons for decision but simply referred to earlier correspondence. He submitted that the policy of the Registrar is not a blanket policy and stressed that over the years, the Registrar has varied that policy from time to time. He submitted that there was nothing on the papers to indicate that the Registrar had closed his mind to selling the plate to the appellant. He submitted that it was not a policy decision that resulted in the rejection of the appellant’s offer but upon the merits of the particular offer of $15,000 in relation to plate number “2”.
In his written summary of argument the Registrar’s position was somewhat refined. It was said that the “Registrar is prepared to make available for sale the rights to the number plate by way of public auction”. The respondent also accepted that the fact that the RAA was the holder of the subject plate number for a different class of “vehicle” did not prevent the Registrar from entering into an agreement with the appellant in respect of the rights to the subject motor vehicle plate.
Mr Keane conceded however that the Registrar in effect was saying to the appellant that if he did wish to obtain the proprietary rights to the plate in respect of a motor vehicle, then he must surrender the plate. In that event the Registrar would sell it in circumstances where the whole of the public would have the opportunity to obtain those rights at a public auction. He submitted that the decision of the Registrar is no more than an acknowledgement of his obligation to try and obtain the best value for the number plate and that best value can only be determined by the sale of the full proprietary rights in respect of a motor vehicle.
He repeated that the only decision which is the subject of the written appeal is in respect of the offer of $15,000 as the valuation evidence was not before the Registrar. In those circumstances one could not determine what the Registrar might or might not do in light of those valuations. He submitted that there was nothing to support an assertion that the Registrar had not exercised the powers vested in him simply because he declined to sell the particular number plate in the possession of the appellant. He submitted that the figures suggested by Dr Williams, while they may be statistically probable, cannot be said to be a proper basis for a valuation, and in these circumstances the court could not properly determine an appropriate sale value for the subject plate.
He sought orders that the appeal be dismissed, and that the Registrar’s decision be affirmed. In the event that the court was against that submission he submitted that it ought to be remitted to the Registrar to take into account the information now available, including the valuation evidence and any further information which the Registrar may receive in order to make a decision with respect to the sale of the plate.
Discussion
I have already noted the irresistible inference that the Review Committee did not conduct a proper review of the decision of the Registrar on its merits. That however is not the end of the matter. It is necessary for this Court to examine for itself the reasons of the Registrar for his decision to decline to sell to the appellant the proprietary rights to the subject plate.
· The discretion
Pursuant to s 47A of the Act the Registrar’s discretion is unfettered. The Registrar is not bound to sell the rights in respect of any number plate. If the Registrar did decide to offer any such rights for sale, he has a choice as to whether it be by private treaty or public auction.
There are no express criteria in that section which would dictate the matters to be considered by the Registrar upon an application by a member of the public for the sale of proprietary rights. It is perhaps more correct to say that the discretion is unconfined save for a consideration of the purpose of that section, which I repeat, is to enable those members of the public, including the holder pro tem, of a plate, to obtain proprietary rights in respect of licence plates and to enable the State to receive the capital value of those rights.
I repeat that upon a proper consideration of any proposal to sell an individual plate, there are various commercial matters which may be considered by a Registrar so as to ensure that the State receives proper value for the sale of rights. It may be that those factors may lead a Registrar to sell by public auction, to decline to sell at all, or to enter into negotiations for the sale of a plate.
· Blind adherence to a policy?
The primary question to be determined on this appeal is whether the decision by the Registrar on 13 March 2008 to decline to sell the proprietary rights to the subject plate “number 2” to the appellant, was made “in blind adherence” to a policy requiring the sale of the full proprietary rights to such numeric plates by public auction, and without regard to the merits of the appellant’s case.
It is trite that the adoption of a practice or guideline is simply to assist the decision maker in reaching a decision. The practice should not be employed in a blanket or blind fashion so as to deny a proper assessment of the merits of an application.[12]
[12] Green v Daniels (1997) 41 ALJR 463
In Quark Technologies v WorkCover Pty Ltd,[13] Debelle J for the Full Court said:
It is well settled that an authority invested with a discretionary power must exercise that power according to the merits of the particular case and not inflexibly apply a policy to cases coming before it irrespective of their merits.
…
The general rule is that anyone who has to exercise a statutory discretion must not ‘shut his ears to an application’ … I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urge any change of policy. What the authority must not do is to refuse to listen at all.
[13] (1997) 70 SASR 143 at 165
In a different context, McHugh J in Minister for Immigration and Multicultural Affairs v Yusuf,[14] said:
Identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision maker exceeding the authority or powers given by the relevant statute.
[14] (2001) 206 clr 323 at [82]
I turn again to the reasons for the refusal of the Registrar to sell the subject plate on 13 March 2008.
While the failure to give adequate reasons can in some cases of itself constitute a “cogent reason” to depart from the decision appealed against,[15] it must be seen in the context of the request which was made to the Registrar.
[15] See Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323; Mauro v Hooper (2008) SASC 159

In my opinion the failure to give more detailed reasons for the refusal to sell the proprietary rights to the appellant in this case is not, of itself, cogent reason to so depart.
The Court is simply left with the reasons for refusal which appear on the face of the correspondence of 22 June 1999, and 14 October 1999 to which the Registrar had apparently referred. Implicit in that correspondence is an intention by the Registrar to remain with the current practice of not entering into any agreements for the sale of proprietary rights in those cases where the numeric plate was also displayed on a trailer or motorcycle. On the face of that correspondence, the only reasonable inference is that the Registrar had adopted that blanket policy irrespective of the merits of the particular application.
While on 14 October 1999 the then Registrar acknowledged that s 47A of the Act would permit him to enter into an agreement for restricted rights, he restated that his practice was only to enter into agreements that provide the purchaser with the exclusive rights to numeric number plates. In my opinion there can be no doubt that, at least at that time, the then Registrar had maintained a blanket refusal to sell such rights on a restricted basis, and did so, without any consideration of the merits of an individual application. By this time it was plain that the RAA would not surrender its plate at any time in the future and accordingly the full rights to the subject plate could never be acquired by the appellant nor the public.
Such a result, of course, would be entirely contrary to the purposes of the amendment to the Act.
There is nothing expressly stated in the subject letter of refusal of 13 March 2008 to indicate any change in that approach by the Registrar, save that if the number plate became available it would be sold only by public auction.
On the appeal the Registrar argued that on 13 March 2008, he did not give a blanket refusal without regard to the merits of the appellant’s application. It was suggested that the Registrar was only being asked to consider one offer, namely for $15,000, which he had rejected, and accordingly it could not be said that he had maintained a blanket refusal. It was submitted that it was implicit in the letter of 13 March 2008, that if the plate became available, then the Registrar may indeed sell the rights restricted to a motor vehicle, but only at a public auction, because it was the most likely process to derive the best price.
I do not accept that submission. The Registrar did not simply reject the offer of $15,000 as being inadequate. He, in effect, refused to contemplate any offers at all, for the reasons stated in the previous correspondence. I reach this conclusion from the reasons expressed by the Registrar in that decision of 13 March 2008. The Registrar made no reference at all to the merits of the application by the appellant. On any view the application was unusual and demanded a proper assessment by the Registrar. The appellant’s family had been in possession of the subject plate for its entire history since 1906.
In my opinion the Registrar, on 13 March 2008, had indeed closed his eyes to the merits of the appellant’s request, and, consistent with the previous correspondence, had given a blanket refusal based solely on a policy which was to sell only the full and exclusive proprietary rights, and only by public auction.
While the Registrar has the power, in s 46(2) of the Act to, in effect, remove that plate, from the appellant, there is an expectation that no plate will be removed while the vehicle to which it is allotted remains registered. It therefore does not matter whether the appellant’s “possession” of the subject plate is properly described as a “right” or not.[16]
[16] Contrast Further written submissions, 20/9/11, paragraphs 2.4 and 2.5
In insisting upon the plate being sold by auction the Registrar is in effect obliging the appellant to surrender possession of the plate. A sale by public auction subject to such possession would be futile.
To effectively oblige the appellant to surrender possession of the plate, something he simply cannot do, as a condition precedent to it being placed on the open market and without regard to that possession, is to deny that class of applicant the opportunity to purchase the proprietary rights.
I do not mean to indicate that the Registrar could not properly determine that such proprietary rights to the subject plate should not be sold. However he could only properly reach that decision after having considered the merits of the appellant’s request.
In adhering blindly to such a practice the Registrar unwittingly, has excluded all those in possession of such numeric plates from purchasing the proprietary rights to those plates, while they remain in possession of the plates. Such a policy also denies the Registrar the opportunity to recover at an early time the capital value of those rights. I repeat that in the subject case, the full and exclusive proprietary rights could never be sold, because the RAA will never surrender its number “2” plate in respect of its somewhat peculiar class.
I do not accept the submission of the Registrar that a sale by private treaty will disadvantage the wider public. The plate has never been available to the public; and, so long as the registration is maintained, the subject plate will continue not to be available. The Registrar’s principal concern ought be to obtain the appropriate value for the rights. At all times it would have been expected that the logical purchaser of those rights would have been the current holder of the plate. In 1986 the then Registrar had specifically recognised the special position of the holders of such plates, by offering them the opportunity of first purchase.
There are features of this case which are unusual, which include the position of the RAA and the long and exclusive possession of the subject plate by the appellant’s family. Section 47A itself permits the sale of such rights by private treaty or by public auction and in the past the Registrar has approved sales by private treaty.
I do not accept the opinion of Mr Kincaid that a public auction will necessarily produce a higher price. The evidence as to past sales in South Australia is indeed consistent with high prices being obtained by private treaty.
· Conclusion as to the grounds of appeal
For the above reasons I find that the Registrar erred on 13 March 2008 in blindly adhering to the policy of not permitting the sale of proprietary rights to the plate unless it involved the full proprietary rights and was by public auction, without regard being had to the merits of the appellant’s application.
In my opinion the Registrar erred in the exercise of his discretion when he determined to refuse the appellant’s application. The discretion miscarried and that decision cannot stand. Accordingly I find that there are cogent reasons to depart from the decision of the Registrar.
· The consequences of such a conclusion
Having reached such a conclusion it is open to this court to substitute its own decision for that of the Registrar. I note the refined submissions of the Respondent that the Registrar would, if the appellant so requested, be prepared to sell class-specific rights to the subject plate at public auction.
With respect that is hardly much of a concession.
It is trite that an appeal Court should not hesitate to make the most appropriate orders, which may include, in some circumstances, an order for sale.[17]
[17] See Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33, and Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323.
The appellant submits that I ought order that the proprietary rights to the subject plate, restricted to the motor vehicle class, be sold to the appellant at the value determined by Dr Williams, namely $34,873.
I have reflected carefully upon that submission.
I am satisfied in general that a sale by private treaty to the appellant of those rights restricted to a motor vehicle, would accord with the purpose of the Act, namely to enable the State to obtain a fair value expeditiously. I appreciate that the Registrar would prefer a sale by public auction for a myriad of reasons including concerns about probity. However I am satisfied that the Registrar ought not blindly exclude a sale by private treaty. Such a decision would effectively exclude the appellant, and would not necessarily achieve a higher price.
The state of the valuation evidence however is such that it does not enable this Court to determine a proper value. Both expert opinions were properly the subject of criticism on the basis of insufficient relevant comparable sales. Dr Williams conceded that the formula employed by him discloses average relationships and does not predict any particular sale which might be influenced by idiosyncratic matters. His evidence is however extremely helpful in detailing those average sales, and is a useful guide to value such plates. I do not accept the broad range suggested by Mr Kincaid. It simply cannot be justified by relevant comparable sales. Mr Kincaid’s extensive general experience does not assist him to determine such a value for a plate in light of the limited sales.
In addition neither valuation takes account of any reduction to allow for the appellant’s existing possession of the plate.
The Registrar is in the best position to determine a value, which may include idiosyncratic factors.
As any sale of the proprietary rights is dependant upon the value fixed by the Registrar, it would not be appropriate for the Court to order a sale by private treaty for a price to be agreed. If the rights are sold in due course the Registrar will need to fix the conditions of sale.
Conclusion
In my opinion the appropriate relief is to allow the appeal and remit it to the Registrar for further consideration. The Registrar did not properly exercise his discretion previously, and did not turn his mind at all to the question of the valuation of the subject plate. In my opinion it is proper that the Registrar be permitted to consider the discretion afresh.
I have reached that conclusion because the appeal was conducted on an entirely different basis to the way in which it was presented to the Registrar. The Registrar ought to be given the opportunity to exercise what is essentially a commercial decision, afresh, taking into account the merits of the appellant’s case.
Pursuant to s 42F of the District Court Act, this court may, inter alia, remit “the matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the court”.
It is for the Registrar to determine having regard to the merit of the appellant’s request whether to sell the class-specific proprietary rights to the appellant by private agreement and, if so, at a price to be negotiated with the appellant.
In order to assist the Registrar in the proper exercise of the discretion, I do note the following conclusions from the subject appeal:
1.The appellant’s circumstances including his exclusive and long standing possession of the subject plate are most unusual and clearly merit proper consideration.
2.The evidence of the experts as to value discloses at the very least that it is possible for the Registrar to determine an appropriate value based upon proper advice and without the need for a sale by public auction.
3.A sale by private treaty is likely to obtain as high a price as a sale by public auction.
4.That in the event that the Registrar determines to sell the restricted rights to the subject plate to the appellant by agreement, that price ought to allow for the fact that the appellant remains entitled to possession of the plate for the foreseeable future.
5.That the appellant has offered on the appeal to purchase the rights restricted to a motor vehicle plate for the sum of $34,873.
6.It is open to the Registrar to reject that offer and propose a sale at an alternative price if in the Registrar’s opinion it does not represent its true value.
Formal orders
Having regard to my conclusions, pursuant to s 42F of the District Court Act; I make the following orders:
1. I allow the appeal.
2.I remit the matter to the Registrar for further consideration in light of these reasons. The Registrar should consider the matter afresh in light of the further evidence presented on the appeal and any other material presented to the Registrar.
I will hear the parties as to the question of costs.