Registrar of Motor Vehicles v Magistrates Court of South Australia - [2019] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
REGISTRAR OF MOTOR VEHICLES v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2019] SASC 142
Judgment of The Honourable Justice Doyle
16 August 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW
MAGISTRATES - JURISDICTION
The Registrar of Motor Vehicles seeks judicial review of an order made by a Magistrate purporting to allow an appeal brought by Ms Round against the cancellation of her provisional driver’s licence and her disqualification from holding a licence for a period of 12 months.
The Registrar contends that the Magistrate had no jurisdiction to hear the purported appeal under the Motor Vehicles Act 1959 (SA).
Held (per Doyle J):
1. The Magistrate fell into jurisdictional error in hearing and allowing Ms Round’s purported appeal.
2. The Magistrate’s order is quashed.
Motor Vehicles Act 1959 (SA) ss 81, 81A, 81B, 81AB, 81BB, 139BD, referred to.

REGISTRAR OF MOTOR VEHICLES v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2019] SASC 142
Civil.

DOYLE J: The plaintiff (Registrar of Motor Vehicles) seeks judicial review of an order made by the first defendant (Magistrates Court of South Australia) purporting to allow an appeal brought by the second defendant (Ms Round) against the cancellation of her provisional driver’s licence and her disqualification from holding a licence for a period of 12 months.
The Registrar seeks to set aside that order on the basis that the Magistrates Court had no jurisdiction to hear the purported appeal. It would seem that the Magistrates Court proceeded on the basis that the appeal was one against a cancellation of licence and disqualification under s 81B of the Motor Vehicles Act 1959 (SA) (the Act), whereas the Registrar contends that Ms Round’s licence cancellation and disqualification was under s 81BB of the Act. The Registrar contends that there is no right of appeal against a licence cancellation and disqualification under that latter section.
For the reasons which follow, the Registrar’s contentions should be accepted and the order of the Magistrates Court quashed.
The legislation
Sections 81, 81A and 81AB in Part 3 of the Act provide for the issue of learner’s permits, provisional licences and probationary licences.
Under s 81A(4) of the Act, the conditions attached to a provisional licence include that the holder of the licence must not drive a motor vehicle with the prescribed concentration of alcohol present in his or her blood. Prescribed concentration of alcohol is defined in s 81A(1) to mean any concentration of alcohol in the blood. Section 81A(9) creates an offence of contravening a condition of a provisional licence.
Section 81B of the Act addresses the consequences of contravention of a condition of a provisional licence. In particular, s 81B(1) provides:
81B—Consequences of holder of learner's permit, provisional licence or probationary licence contravening conditions
(1)     Subject to this section, if—
(a)     a person who holds a learner's permit, provisional licence or probationary licence commits an offence of contravening a prescribed condition; or
(b)     a person expiates an offence of contravening a prescribed condition allegedly committed while the holder of a learner's permit, provisional licence or probationary licence; or
(c)     demerit points are incurred by a person and, in consequence—
(i)the total number of demerit points recorded against the person in respect of offences committed or allegedly committed while the holder of a learner's permit or provisional licence equals or exceeds 4; or
(ii)the total number of demerit points recorded against the person in respect of offences committed or allegedly committed while the holder of a probationary licence equals or exceeds 2,
the Registrar must, on becoming aware of that fact, give the person written notice—
(d) that, commencing on the day on which the notice takes effect in accordance with section 139BD, the person is disqualified from holding or obtaining a permit or licence for a period of 6 months; and
(e)     that, if the person holds any permit or licence when the notice takes effect, the permit or licence is cancelled.
Appeals to the Magistrates Court are governed by s 81BB, which is in the following terms:
81BB—Appeals to Magistrates Court
(1)Subject to subsection (2), if a person has been or is liable to be given a notice of disqualification under section 81B as a consequence of an offence committed or allegedly committed while the holder of a provisional licence or probationary licence, the person may appeal to the Magistrates Court against the disqualification.
(2)     A person is not entitled to appeal against a disqualification under this section if—
(a)     the person is, or was, entitled to elect to enter into a Safer Driver Agreement in accordance with section 81BA in lieu of suffering the disqualification; or
(ab)   the person has, within the preceding period of 5 years, been disqualified from holding or obtaining a permit or licence in accordance with section 81BA(4); or
(b) the Magistrates Court has, within the preceding period of 5 years, allowed an appeal by the person against a disqualification under section 81B.
(3)The appellant and the Crown are entitled to be heard upon an appeal against a disqualification under section 81B.
(4)     The Magistrates Court may allow an appeal if the Court is satisfied—
(a)     that, on the basis of evidence given on oath by or on behalf of the appellant, the disqualification would result in severe and unusual hardship to the appellant or a dependant of the appellant; and
(b)     if the Crown submits evidence (whether orally or in writing) as to previous offences relating to the appellant's use of a motor vehicle for which the appellant has been found guilty or that the appellant has expiated—that such evidence does not indicate that the appellant is a substantial risk to the appellant or to other members of the public.
(5)The appellant's evidence must include evidence relating to the forms of transport that would be available to the appellant if the appeal were not allowed and why those forms of transport do not adequately meet the needs of the appellant or a dependant of the appellant.
(6)Where an appeal against disqualification has been instituted under this section, the disqualification and any related cancellation are suspended until the determination or withdrawal of the appeal.
(7)If the Magistrates Court allows an appeal by a person against a disqualification, the following provisions apply:
(a)     any licence that the person holds is cancelled and the person is, on application to the Registrar, entitled to a refund as if the person were surrendering the licence;
(b)     the disqualification is removed and the person is entitled to apply for a licence;
(c) sections 81A and 81AB apply in relation to the person when applying for the licence as if, despite the removal of the disqualification, the person had been disqualified from holding or obtaining a licence as a consequence of the offence and were making the application at the end of the period of disqualification;
(d)     this Act applies in relation to the person when applying for the licence as if, despite the removal of the disqualification, the person had been disqualified from holding or obtaining a licence as a consequence of the offence and were making the application at the end of the period of disqualification;
(g) if the licence issued to the person on the application referred to in paragraph (c) is a probationary licence, section 81AB(3) applies in relation to the person as if the reference in section 81AB(3) to 1 year was a reference to 18 months.
(8)     If—
(a)     a person who holds a provisional licence or probationary licence issued on an application referred to in subsection (7)(c) commits an offence of contravening a prescribed condition; or
(b)     a person expiates an offence allegedly committed while the holder of a provisional licence or probationary licence issued on an application referred to in subsection (7)(c), being an offence of contravening a prescribed condition; or
(c)     a person incurs demerit points in respect of an offence committed or allegedly committed while the holder of a provisional licence issued on an application referred to in subsection (7)(c), and, in consequence, the total number of demerit points recorded against the person in respect of offences committed or allegedly committed while the holder of that licence equals or exceeds 4; or
(ca)   a person incurs demerit points in respect of an offence committed or allegedly committed while the holder of a probationary licence issued on an application referred to in subsection (7)(c) and, in consequence, the total number of demerit points recorded against the person in respect of offences committed or allegedly committed while the holder of that licence equals or exceeds 2,
the Registrar must, on becoming aware of that fact, give the person written notice—
(d) that, commencing on the day on which the notice takes effect in accordance with section 139BD, the person is disqualified from holding or obtaining a permit or licence for a period of 12 months; and
(e)     that, if the person holds any licence when the notice takes effect, the licence is cancelled.
Background
Ms Round was issued a learner’s permit in June 2007, and a provisional licence in December 2008.
On 27 October 2013, Ms Round committed the offence of driving while having a prescribed concentration of alcohol in her blood, thus incurring four demerit points. On 11 December 2013, the Registrar became aware that Ms Round had incurred four or more demerit points while holding a provisional licence, and was thus a person to whom s 81B(1)(c)(i) of the Act applied. As required by s 81B(1), the Registrar issued a written notice to Ms Round that her licence was cancelled and that she was disqualified from holding a licence for a period of six months.
As this notice was not acknowledged by Ms Round, the Registrar issued a second written notice of this cancellation and disqualification on 8 January 2014. The cancellation and disqualification was to take effect from 5 February 2014.
However, on 5 February 2014, Ms Round filed a notice of appeal under s 81BB of the Act. Under s 81BB(6), the effect of filing this notice of appeal was to suspend the cancellation and disqualification until the determination of the appeal.
Notice of the appeal was provided to the Registrar by the Magistrates Court. Pursuant to the Crown’s right to submit evidence under s 81BB(4), the Registrar’s delegate provided the Court with a certificate under s 141 of the Act disclosing Ms Round’s driving offences, and the notice of disqualification.
On 28 February 2014, the appeal was heard and allowed by the Magistrates Court. This enlivened the operation of s 81BB(7) of the Act. In particular, s 81BB(7)(a) applied to cancel Ms Round’s licence, but s 81BB(7)(b) removed her disqualification from holding a licence and hence entitled her to apply for a licence. Under s 81BB(7)(c), ss 81A and 81AB applied to any such application as if Ms Round had been disqualified from holding or obtaining a licence, and as if the application were brought at the end of a period of disqualification. Further, upon Ms Round successfully applying for a provisional licence, under s 81BB(8) she was exposed to a licence cancellation and disqualification for a period of 12 months if she committed an offence of contravening a prescribed condition or incurred four or more demerit points.
On 20 September 2015, Ms Round committed a (further) s 81A(9) offence by being a provisional licence holder who drove while there was alcohol in her blood. On 6 January 2016, under s 81BB(8), the Registrar issued Ms Round a notice of her licence cancellation and disqualification for a period of 12 months.
On 5 February 2016, the Registrar issued a second notice under s 81BB(8) because Ms Round had not acknowledged the first notice as required by s 139BD of the Act. Attempts to personally serve Ms Round with the second notice were unsuccessful.
Section 139BD(5)(a) allows the Registrar to refuse to enter into any transaction with a person if the attempt to serve the notice is unsuccessful – until the person personally acknowledges receipt of the notice and pays the prescribed fee. Accordingly, a ‘cessation of business’ alert was placed on Ms Round’s record. This prevented her from undertaking further transactions with the Registrar until she attended a Service SA Customer Service Centre, was served with and acknowledged the notice, and paid the prescribed fee.
Over two years later, on 20 December 2018, Ms Round attended a Service SA Customer Service Centre. A document replicating the second notice mentioned above was printed and served upon Ms Round. Ms Round signed a form acknowledging receipt of this document and paid the prescribed fee.
The second notice was expressed as notice of a licence cancellation and 12 month disqualification under s 81BB of the Act. It was expressed as taking effect 28 days after personal service, and thus Ms Round’s licence cancellation and disqualification took effect from 17 January 2019. It also contained a notation that “you are not entitled to appeal”.
On 28 February 2019, Ms Round purported to file a notice of appeal against her disqualification in the Magistrates Court of South Australia. The notice of appeal claimed that she was appealing from a licence cancellation and disqualification under s 81B.
The Registrar having been notified of the appeal, the Crown provided a letter to the Magistrates Court attaching a copy of Ms Round’s driving record. The Registrar did so believing the appeal was one regularly commenced against a licence cancellation and disqualification under s 81B(1) (rather than s 81BB(8)), and hence believing she was doing so in exercise of the Crown’s right to submit evidence on such appeals under s 81BB(4).
On 2 April 2019, the Magistrates Court purported to hear and allow Ms Round’s appeal.
On 8 April 2019, the Registrar became aware that the Magistrates Court had purported to hear and allow the appeal in circumstances where the relevant licence cancellation and disqualification had in fact occurred under s 81BB(8) and not s 81B(1). The Registrar promptly caused these judicial review proceedings to be issued, contending that the Magistrates Court fell into jurisdictional error on the basis that the Act does not provide any right of appeal against a licence cancellation and disqualification under s 81BB(8).
No jurisdiction to hear the purported appeal
Ms Round did not contest any of the above. Indeed, she accepted that her purported appeal was against a licence cancellation and disqualification under s 81BB(8) rather than s 81B(1). She did not contest the Registrar’s submission that in those circumstances there was no right of appeal under the Act.
I am satisfied that the Registrar’s contentions are well-founded. In particular, I am satisfied that the cancellation and disqualification of Ms Round’s provisional licence was under s 81BB(8) and not s 81B(1) of the Act. I am also satisfied that in those circumstances there was no right of appeal to the Magistrates Court under the Act.
Considered in the context of the legislative regime governing the cancellation and disqualification of licences (and in particular provisional licences), it appears that the absence of any right of appeal against a cancellation and disqualification under s 81BB(8) is deliberate rather than an instance of legislative oversight. It would seem that the grant of a licence applied for under s 81BB(7) (following a successful appeal against a licence cancellation and disqualification on the grounds of “severe and undue hardship”) is intended to be a last-chance extension of mercy in circumstances of hardship.
In any event, regardless of the rationale for the absence of any right of appeal, I am satisfied that there is no right of appeal. It follows that the Magistrate fell into jurisdictional error in hearing and allowing Ms Round’s purported appeal.
No discretionary basis to refuse relief
Ms Round’s challenge to the relief sought by the Registrar was confined to a submission that I should exercise my discretion to decline that relief.
Ms Round relied in this context upon the hardship that the loss of her licence would occasion her. In particular, she relied upon the inconvenience to her in travelling to and from her present employment. She also relied upon the effect it would have in terms of limiting her future employment opportunities when she soon finishes her studies. She is also concerned about the implications of being without a licence for 12 months given that she suffers from epilepsy, particularly in circumstances where she has recently married and is planning upon becoming pregnant in the near future.
While I accept that being without a licence for the balance of the 12 month period prescribed by s 81BB(8) of the Act will occasion Ms Round some inconvenience and hardship, I do not think this provides a sufficient basis for me to exercise my discretion to withhold the relief sought. The degree of hardship is limited. Further, and in any event, in circumstances where an appeal on grounds of hardship is provided in the case of cancellation and disqualification under s 81B but not s 81BB it would be contrary to the apparent legislative policy to withhold relief on the grounds of hardship.
I also consider it relevant that Ms Round has a poor history of driving offences, dating back to 2011. She has on several occasions either incurred demerit points or breached conditions of her provisional licence. She has had the benefit of a successful appeal following her earlier licence cancellation and disqualification. Whilst Ms Round did spend a period of time without a licence for medical reasons (following her diagnosis with epilepsy), I do not think this can be used as some form of ‘credit’ warranting leniency in the present context.
In my view, there is no proper basis for me to exercise my discretion to withhold the relief sought by the Registrar.
Conclusion
For the reasons set out above, I will make an order in terms of the draft minutes of order put forward by the Registrar quashing the Magistrate’s order allowing Ms Round’s purported appeal.