Registrar of Motor Vehicles v Thiele

[2012] SASCFC 51

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

REGISTRAR OF MOTOR VEHICLES v THIELE

[2012] SASCFC 51

Judgment of The Full Court

(The Honourable Justice Anderson, The Honourable Justice David and The Honourable Justice Blue)

4 May 2012

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES

The appellant Registrar cancelled the respondent's driver's licence pursuant to s 82(2) of the Act - a Review Committee upheld the Registrar's decision - a Judge of the District Court allowed the respondent's appeal and substituted an order that the respondent be issued a permit and later a licence subject to specified restrictions and conditions pursuant to s 80 and 81 of the Act. The Registrar appealed to the Full Court.

Whether the Registrar wrongly relied on an uncharged offence - what is the proper approach of a Judge on an appeal from a decision confirmed by review - whether the Judge erred in proceeding beyond the reasons for decision of the Review Committee to those of the Registrar - whether the Registrar erred by focusing on the respondent's driving deficiencies and their consequences as opposed to their underlying causes - whether the Registrar wrongly failed to consider an alternative exercise of his powers under sections 80 and 81 of the Act.

Held: Appeal allowed.

1. In the circumstances, despite wrongly characterising the reasons of the Review Committee as devoid of reasoning, the Judge was correct to proceed to consider the reasons for decision of the Registrar.

2. The Registrar had not relied on the uncharged offence.

3. The Registrar had not erred in focusing on the respondent's deficiencies and their consequences.

4. In the circumstances, the Registrar had not been obliged to consider the alternative exercise of his powers under s 80 of the Act.

5. The Judge inappropriately assumed the exercise of the Registrar's powers pursuant to s 80 of the Act.

6. There were no cogent reasons for the Judge to depart from the reasons of the Registrar.

7. The decision of the Registrar as confirmed by the Review Committee should be reinstated.

Motor Vehicles Act 1959 (SA) 75A, 79, 79A, 80, 81, 81A, 81AB, 82, 98Z, 98ZA; District Court Act 1991 (SA) 42B, 42E, 42F, referred to.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, considered.

REGISTRAR OF MOTOR VEHICLES v THIELE
[2012] SASCFC 51

Full Court:  Anderson, David and Blue JJ

1. THE COURT:  On 14 July 2010, the appellant, the Registrar of Motor Vehicles, cancelled the driver’s licence of the respondent, Mrs Thiele, pursuant to s 82(2) of the Motor Vehicles Act 1959 (SA) (“the Act”).

2. On 8 December 2010, a Review Committee[1] determined Mrs Thiele’s application for review by confirming the decision of the Registrar.

   [1] Pursuant to s 98Z of the Motor Vehicles Act 1959 (SA).

3. On 9 December 2011, a Judge of the District Court[2] allowed Mrs Thiele’s appeal against the decision to cancel her driver’s licence and substituted an order that Mrs Thiele be successively issued a permit under learner’s permit conditions, a probationary driver’s licence and a full driver’s licence subject to specified restrictions and on specified conditions pursuant to s 81(1) of the Act.

   [2] Pursuant to s 98ZA of the Motor Vehicles Act 1959 (SA) and s 42E and s 42F of the District Court Act 1991 (SA).

4. The Registrar appeals to this Court against that decision pursuant to s 43(3) of the District Court Act 1991 (SA).

   Background facts

5. Mrs Thiele is 41 years of age. 

6. Mrs Thiele has resided on a farm on Thiele Road, Pompoota near Mannum since at least the beginning of 1998.  The farm consists of twelve blocks located on both sides of Burdett Road (also known as Mannum Road) which is the main highway between Mannum and Murray Bridge.  Since 1998 she has travelled across the intersection of Thiele Road and Mannum Road on a daily basis.

7. In 1992, Mrs Thiele was involved in a collision with the rear of a vehicle in front of her while driving in Western Australia.  She was convicted of or expiated the offence of driving without due care. 

8. In July 1998, Mrs Thiele was driving along Karoonda Road near Murray Bridge.  She aborted an overtaking manoeuvre upon sighting an oncoming vehicle and lost control of her vehicle on braking. Her vehicle left the road and rolled down an embankment.  She received a caution for driving without due care but was not convicted of and did not expiate an offence.

9. On 26 April 2000, Mrs Thiele was involved in a collision at the intersection of Thiele Road and Mannum Road, Pompoota while driving her Holden utility.  The driver of the other vehicle, a bright yellow Toyota station sedan, was killed in the collision.  The collision occurred while the driver of the Toyota was travelling south along Mannum Road and Mrs Thiele was crossing that highway travelling east along Thiele Road.  Mrs Thiele had been subject to a give way sign applying to traffic travelling along Thiele Road intending to cross Mannum Road.  Mrs Thiele pleaded guilty to the offence of failing to give way to oncoming traffic and was fined $300.

10. On 23 June 2007, Mrs Thiele was involved in a collision with a motorbike at the intersection of Mannum Road and Thiele Road, Pompoota while driving her Holden utility. The rider of the motorbike was killed in the collision.  The motorbike was travelling south along Mannum Road.  Mrs Thiele was crossing Mannum Road travelling east along Thiele Road.  She had been subject to the give way sign.  Mrs Thiele pleaded guilty to a charge of aggravated driving without due care.  She was sentenced by a Magistrate in February 2009 to eight months imprisonment, of which the last seven months were suspended upon her entering into a good behaviour bond.  She was disqualified from holding or obtaining a driver’s licence for 18 months (until August 2010).  On appeal to this Court in June 2009 the sentence was varied by suspending the whole of imprisonment.

11. In September 2009, the Deputy State Coroner conducted an inquest into the deaths of the drivers of the Toyota station sedan and motorbike. Mrs Thiele gave evidence at the inquest. She gave evidence that she was injured in the 2000 collision, as a result of which she has no memory of it. Mrs Thiele said that, after the 2000 collision, she developed the habit of stopping at this intersection but by 2007 she frequently did not stop at the intersection. In relation to the 2007 collision, she said that as she approached the intersection with Mannum Road, she slowed down to third gear, did not see any vehicles to the left or the right and proceeded across Mannum Road in third gear. She estimated her speed at 20 to 30 km per hour. She accepted that she had become complacent by that time. The Deputy State Coroner found Mrs Thiele is “a motorist of quite limited aptitude, competence and temperament”. He reminded the Registrar of the existence of his powers under s 82 of the Act.

12. In February 2010, the Registrar wrote to Mrs Thiele saying that he was giving consideration to exercising his powers under s 82 of the Act and invited her to make a written submission.

13. In March 2010, solicitors for Mrs Thiele made a written submission to the Registrar.  They made lengthy submissions concerning the circumstances of the 2007 collision.  They contended that “there is no basis to conclude that the circumstances of the two offences committed by Mrs Thiele … are such that Mrs Thiele should not be permitted to hold a licence, or should hold a licence subject to conditions, in order to prevent accident or injury or a repetition of the offence or offences by the person”.

14. On 14 July 2010, the Registrar wrote to Mrs Thiele’s solicitors stating that he had determined to cancel Mrs Thiele’s licence effective immediately pursuant to s 82(d) of the Act.

15. On 4 August 2010, Mrs Thiele lodged an application for review of the Registrar’s decision. The application made a number of criticisms of the Registrar’s reasons. It contended that the Registrar erred in concluding that Mrs Thiele’s driving was a danger to the public. It characterised the Registrar’s decision as that Mrs Thiele should not be permitted to drive “at all and indefinitely”. It concluded by contending that the Registrar’s concerns could have been addressed by the issue, pursuant to s 80 of the Act, of a temporary driving permit authorising her, subject to conditions and restrictions deemed appropriate, to drive a motor vehicle and requiring her to undergo tests and furnish evidence of her fitness to drive a motor vehicle before being re-issued a full driver’s licence.

16. On 9 December, a Review Committee confirmed the Registrar’s decision and on 22 December 2010 it provided a summary of its reasons for that decision. 

17. Mrs Thiele appealed to the District Court against the decision of the Registrar confirmed by the Review Committee. 

    Appeal to the District Court

18. At the hearing of the appeal, the Judge admitted, without objection, evidence from a qualified driving instructor, Mr Fraser.  Mr Fraser said that he was able to tailor a program which he believed would address the deficiencies in Mrs Thiele’s driving which caused the 2000 and 2007 collisions, namely a grossly deficient lookout.  He proposed a course of training over six months and then to conduct an assessment at which point, if she passed, Mrs Thiele would be granted a provisional licence.  He proposed that Mrs Thiele undertake a two hour refresher course each year for the following five years. 

19. In his reasons for judgment, the Judge concluded that the decision of the Review Committee was “devoid of any reasoning” and “there is nothing in its decision which suggests that the Committee turned an independent mind as to why cancellation of the licence was necessary”.  As a result, he “accorded little weight to it” and turned to examine the Registrar’s decision.

20. The Judge concluded that the Registrar made three errors in his decision:

    (1)he took into account a traffic incident, namely the 1998 rollover, which was not the subject of an offence of which she was convicted or which she expiated;

    (2)he focussed on the dangers and consequences of driving with a defective lookout rather than the deficiencies in her driving which led to her defective lookout;

    (3)he failed to consider an alternative being the exercise of his powers under s 80 and s 81 to permit Mrs Thiele to drive but subject to conditions.

21. The Judge concluded that there were therefore “cogent reasons” within the meaning of s 42E(3) of the District Court Act to depart from the Registrar’s decision.

22. The Judge proceeded to exercise his own discretion.  He rescinded the decision to cancel Mrs Thiele’s licence.  He directed:

    (1)the issue of a permit subject to conditions that:

    (a)     Mrs Thiele undertake a defensive driver training course with   Mr Fraser over six months;

    (b)     Mrs Thiele be permitted to drive a motor vehicle under Learner’s    Permit conditions;

    (2)if, at the end of the six months, Mrs Thiele passes a formal assessment of her driving competency conducted by Mr Fraser, she be issued with a probationary driver’s licence for a further 12 months subject to conditions as to the roads upon which, the purposes for which and the times at which she could drive;

    (3)at the end of the further 12 months, if she had not been involved in any accidents or convicted of or expiated any offences, she be issued with an unconditional driver’s licence subject only to a condition that she undertake assessment of her competency by Mr Fraser each year for a further four years.

    The drivers’ licensing regime

23. The relevant aspects of the drivers’ licensing regime under the Act are as follows:

    1.The first stage involves a learner’s permit pursuant to s 75A being issued to eligible residents who have passed a prescribed theoretical examination.[3]  A learner’s permit is subject to three standard conditions, namely the driver must be accompanied by a person acting as a qualified supervising driver; the driver must not drive while alcohol or a prescribed drug is present in their blood (or bodily fluids) and the driver must not exceed a speed limit by 10 kilometres per hour or more.[4]  In addition, a learner’s permit is subject to such other conditions and restrictions as the Registrar may think necessary.[5]

    2. The second stage is a provisional P1 licence pursuant to s 81A(2) issued to eligible residents who have held a learner’s permit for at least six months if aged 25 or more,[6] have not less than 75 hours practical driving experience[7] and have passed a practical driving test conducted by an authorised examiner.[8]  A P1 provisional licence is subject to the same conditions as to alcohol/prescribed drugs and speed as apply to a learner’s permit.[9]

    3. The third stage is a provisional P2 licence issued to eligible residents who have held a P1 licence for 12 months[10] and have passed a hazard perception test.[11]  A provisional licence P2 is subject to the same conditions as to alcohol/prescribed drugs and speed as a provisional P1 licence.[12]

    4. The final stage is a non-provisional licence issued to a South Australian resident who has held a provisional licence for at least two years and a P2 licence for at least six months.[13]

    [3]    Motor Vehicles Act 1959 (SA), s 75A(2) and s 79.

    [4]    Motor Vehicles Act 1959 (SA), s 75A(10)(a), (b) and (c).

    [5]    Motor Vehicles Act 1959 (SA), s 75A(10)(d).

    [6]    Or 12 months otherwise.

    [7]    Including at least 15 hours at night.

    [8]    Motor Vehicles Act 1959 (SA), s 79A(1).

    [9]    Motor Vehicles Act 1959 (SA), s 81A(3).

    [10]   Or 24 months if they have incurred demerit points and not passed a driver awareness course.

    [11]   Motor Vehicles Act 1959 (SA), s 81A(5).

    [12]   Motor Vehicles Act 1959 (SA), s 81A(6).

    [13]   Motor Vehicles Act 1959 (SA), s 81A(7).

24. Subject to qualifications not presently relevant, generally the Registrar is required to be satisfied that an applicant has met the pre-conditions before issuing a provisional P1 or P2 licence or a non-provisional licence. 

25. Conversely, subject to s 80 and s 82 of the Act (and other qualifications not presently relevant), generally an applicant is entitled to the grant of a learner’s permit or a provisional P1, P2 or non-provisional licence if the Registrar is satisfied that the person has met the prescribed pre-conditions.

26. Section 80 empowers the Registrar to require an applicant to undergo tests or furnish evidence as to ability or fitness to drive a motor vehicle before issuing a learner’s permit or licence.

27. Section 82 empowers the Registrar to refuse to issue a learner’s permit or provisional P1 or P2 or non-provisional licence if the applicant has been convicted of or has expiated an offence involving the use of a motor vehicle, such that it appears that the applicant should not hold the relevant permit or licence, in order to prevent accident or injury or repetition of the offence.

28. Section 81 empowers the Registrar to impose, in such circumstances as the Registrar thinks fit and upon such evidence as the Registrar may require, conditions on the grant of a learner’s permit or provisional P1 or P2 or non-provisional licence as to the localities in which and vehicles which the applicant drives as well as any other condition that the Registrar thinks necessary to prevent accident or injury.

29. The regime for the progression from learners’ permits through to provisional P1 and P2 licences to non-provisional licences applies not only to new drivers but also (subject to qualifications not presently relevant) to any driver who has not held a licence for five years or more. In relation to applicants who have held a licence within the last five years, in general terms they do not need to pass through the progression again, subject to the discretion of the Registrar pursuant to s 82.

30. Generally, where a person has been disqualified from holding or obtaining a driver’s licence, a licence issued to them immediately following that period of disqualification is required to be a probationary licence for one year.[14]  A probationary licence is subject to conditions that the holder not drive with alcohol or a prescribed drug present in his or her blood (or bodily fluids), not incur two or more demerit points and carry his or her licence while driving.[15]

    [14]   Motor Vehicles Act (1959) (SA), s 81AB(1)-(3).

    [15]   Motor Vehicles Act 1959 (SA), s 81AB(2).

31. Section 82 applies to a holder of an existing learner’s permit or licence as well as an applicant. It empowers the Registrar to:

    (a)suspend a licence or learner’s permit for a specified period; or

    (b) reduce a non-provisional licence to a provisional licence (P1 or P2) or probationary licence for a specified period; or

    (c) cancel, or refuse to renew, a licence or learner’s permit.

32. Similarly, s 80 applies to a holder of an existing learner’s permit or licence as well as an applicant. It empowers the Registrar, if satisfied that, because of the results of tests or evidence received, the holder is not competent to drive a motor vehicle:[16]

    (a) to suspend or refuse to renew the existing learner’s permit or licence;

    (b)change the classification(s) on the existing licence.

    [16]   Or has failed to undergo a required test or provide required information.

    Approach to appeal under s 98ZA and s 42A

33. Section 98Z gives to a person aggrieved by a decision of the Registrar under, inter alia, Part 3 of the Act a right of review. The review is to be undertaken by a Review Committee (as opposed to the Registrar) in the case of certain types of decision or if the Registrar considers it desirable. A decision to exercise any of the powers conferred by s 82 must be referred to a Review Committee.

34. Section 98ZA confers a right of appeal to the District Court in respect of decisions under, inter alia, Part 3 of the Act. Section 98ZA is drafted in a manner which assumes that the original decision of the Registrar has already been subject to a review (either by the Registrar or the Review Committee) prior to the appeal to the District Court.

35. Section 98ZA(1) provides:

    A person who is dissatisfied with a decision as confirmed, varied or substituted by the Registrar or a Review Committee on a review under section 98Z may appeal to the District Court against the decision.

36. It is common ground on this appeal that s 42E of the District Court Act 1991 (SA) applies to an appeal pursuant to s 98ZA of the Act.

37. Section 42E(1) of the District Court Act provides:

    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, if it thinks fit, allow further evidence or material to be presented to it.

38. Section 42B defines “original decision maker” to mean:

    the person or body whose decision is appealed against, and includes, if that person or body made the decision on an appeal against, or review of, a decision made by some other person or body, that other person or body.

39. The interrelationship between s 98ZA(1) of the Act and s 42E(1) of the District Court Act gives rise to a question in this appeal as to the proper approach of a District Court Judge to a decision of the Registrar which has been confirmed by the Review Committee.

40. The appellant contends that the approach of the Judge in this matter to the respective decisions of the Registrar and the Review Committee was in error. 

1. The Judge quoted in his reasons the Committee’s letter dated 22 December 2010. That letter commenced by stating that the Committee had confirmed the decision of the Registrar to cancel Mrs Thiele’s licence pursuant to s 82. It then set out various matters which the Committee had considered (including Mrs Thiele’s application and supporting documents, the various sentencing remarks, the Coroner’s findings and Mrs Thiele’s driving record). The letter stated that the Committee did not determine a preferred account where any discrepancy existed between the findings of the Coroner and the reasons for judgment of a Judge of this Court on Mrs Thiele’s appeal against sentence. The letter concluded by stating:

   The Committee was unanimous in agreeing to uphold the decision of the Registrar of Motor Vehicles to cancel the licence of Mrs Thiele on the grounds to prevent accident or injury or a repetition of the offences committed by Mrs Thiele, pursuant to the provisions of section 82(d) of the MVA.

2. The Judge then proceeded as follows:

   [49] I have already reproduced the Committee’s decision in full.  In my opinion, while it contains Reasons, it is devoid of any reasoning. 

   [50] In short, other than by endorsing the Registrar’s Decision, there is nothing in its Decision which suggests that the Committee turned an independent mind as to why cancellation of the licence (as opposed to any other form of sanction) was necessary. As a result, and in accordance with section 42E(3) of the Court Act, I have accorded little weight to it.

   [51] It is the Registrar’s Decision which needs to be examined and accorded due weight.  It is this Decision which contains the reasoning to the conclusion that there was no other option available other than to cancel her licence.

3. On the appeal to this Court, the Registrar makes a two stage contention.  The first stage is a contention that the Judge erred in concluding that the Committee’s reasons were “devoid of any reasoning” and that “the Committee [did not turn] an independent mind as to why cancellation of the licence … was necessary”.

4. We accept that the Judge’s characterisation of the Committee’s reasons as being “devoid of any reasoning” is unfair.  The Committee’s reasons made plain that, subject to one qualification, the Committee adopted the reasoning of the Registrar, which in turn had been set out in the Registrar’s letter in comprehensive terms.  The expression of the reasons of an administrative decision maker ought not necessarily be expected to conform to standards expected of judicial decision makers. In the Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[17] the High Court said, in a different context, that “the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review”.

   [17] [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

5. We also accept that the Judge’s conclusion, that nothing in the Committee’s reasons suggests that the Committee had turned an independent mind to the question, is unfair.  It is apparent from the Committee’s reasons that it identified and addressed all of the relevant material and made its own determination that cancellation of the licence was necessary.

6. The second stage of the Registrar’s contention is that, in these circumstances, the Judge erred in proceeding to consider the Registrar’s reasoning when he ought to have proceeded no further than concluding that there was no cogent reason demonstrated to depart from the Review Committee’s decision.

7. However, the fact remains that the Registrar’s reasons are comprehensive and detailed and the Committee effectively adopted those reasons without setting out its own detailed or comprehensive reasoning process. In circumstances in which the Review Committee effectively adopts the reasoning of the Registrar, a District Court Judge on appeal must examine the reasoning of the Registrar as well as, and in order to examine, the reasoning of the Review Committee. This follows from the obligation in s 42E that the District Court must examine the decision appealed against and the provision in s 42B(2) that that decision includes the original decision. It also follows from s 98ZA(1) which gives the right of appeal to the District Court against the “decision as confirmed … by the … Review Committee”.

8. It is unnecessary to express a view about the proper approach to an appeal in a case in which the Review Committee has substituted its own decision for that of the Registrar on in which the Review Committee has provided detailed and comprehensive reasons for its decision which are different to those of the Registrar. It is also unnecessary to express a view whether there is a different focus as between s 982A (on the original decision as confirmed on review) and s 42E (on the review decision including the original decision).

9. Accordingly, despite the errors contained at [49] and [50] of his reasons, the Judge appropriately proceeded, and indeed was required, to examine the reasons of the Registrar.

   Traffic incident not subject of conviction

10. In the course of his reasons, the Registrar observed that Mrs Thiele “has been involved in a total of four crashes of varying seriousness, that have all been attributed to her driving behaviour, driving carelessly, without due care and failing to give way”.

11. The Judge noted that one of those “four crashes” was the 1998 rollover and Mrs Thiele had not been convicted of and had not expiated an offence in relation to that incident. 

12. The Judge held that the Registrar erred in taking into account that incident because s 82 refers to a person being convicted of or having expiated an offence or series of offences such that it appears that the person should not hold a licence or permit.

13. It is clear that the 1998 traffic incident did not give the Registrar jurisdiction pursuant to s 82 to cancel Mrs Thiele’s licence or take any other action pursuant to that section. If that incident formed an essential ground upon which the Registrar relied in forming his view that Mrs Thiele should not hold a licence in order to prevent accident or injury, it would have comprised an error.

14. However, a reading of the Registrar’s reasons as a whole, in light of the correspondence leading up to those reasons, shows that the Registrar relied upon the April 2000 and June 2007 offences to reach his conclusion that Mrs Thiele should not hold a licence and did not rely upon the 1998 traffic incident.  The Registrar expressly stated towards the beginning of his reasons that his determination to cancel Mrs Thiele’s licence was “on the basis that Mrs Thiele has been convicted of offences involving the use of a motor vehicle such that it appears to me that she should not hold a licence or permit in order to prevent accident or injury or a repetition of the offences”.  He then identified those offences as being the offences committed in April 2000 and June 2007.

15. The Registrar went on to deal in substantial detail with the circumstances of the June 2007 offence, and in so doing was responding to comprehensive submissions from Mrs Thiele concerning the circumstances of that offence. In her submissions to the Registrar, Mrs Thiele had put in issue her own general driving history by submitting that it was superior to that of two other drivers in respect of which the Registrar had received referrals inviting him to consider exercising his powers under s 82 of the Act. In context, the Registrar only made reference to the 1992 and 1998 traffic incidents as part of his response to the submissions made by Mrs Thiele. It is apparent that he did not rely upon those two incidents, as opposed to the 2000 and 2007 offences, as giving rise to his conclusion that Mrs Thiele should not hold a licence. To some extent, this was recognised in the Judge’s reasons for decision, when he said that “the main focus, of both the Registrar’s and the Committee’s concern, was on the offences resulting in death”.

16. The Judge therefore erred in his characterisation of the Registrar’s reasons and in concluding that the Registrar had erred in making reference to the 1998 traffic incident. In any event, the Judge proceeded on the basis that the 2000 and 2007 offences alone were sufficient to justify Mrs Thiele no longer holding an unrestricted licence under s 82 – the only issue was whether she should be granted a permit under learner’s permit conditions and a probationary licence or unrestricted licence at points in the future.

    Reasons for Mrs Thiele’s deficiencies

17. In his reasons, the Registrar referred to the deficiencies in Mrs Thiele’s driving which had led to the two fatal collisions, which he described as a failure to make a proper lookout.  The Registrar then referred to the danger and consequences of Mrs Thiele’s driving with such deficiencies, namely the risk of accident and injury.

18. The Judge accepted that Mrs Thiele suffered from these deficiencies and that they led to these dangers and consequences. However, the Judge considered that the Registrar had erred by focusing on Mrs Thiele’s deficiencies and their consequences and had thereby “allowed himself to be distracted from a consideration of the real issues i.e. the reasons for her failure to look or to see and whether there were measures available which might address any deficiencies in her driving leading to such failure to look or to see”. The Judge treated this as a separate error by the Registrar, independently of the third error which the Judge found (that the Registrar had failed to consider an alternative exercise of his powers under s 80 and s 81 to permit the appellant to drive subject to conditions).

19. Considered independently of this third issue of the alternative exercise of powers under s 80 and s 81, there was no error in the Registrar’s reasoning in considering the danger and consequences of the identified deficiencies in Mrs Thiele’s driving. The Registrar expressly was required by s 82 to consider whether the commission of the offences of which Mrs Thiele was convicted entailed that Mrs Thiele should not hold a licence “in order to prevent accident or injury”. The Registrar necessarily needed to consider the consequences of the deficiencies in Mrs Thiele’s driving which had led to the commission of those offences in the first place. The Registrar was not required to delve below the deficiencies to attempt to discern their underlying causes and in the ordinary case the Registrar would lack the necessary investigative powers and skills to attempt to do so.

20. Given that the Judge accepted that Mrs Thiele suffered from the deficiencies which were identified by the Registrar, the distinction drawn by the Judge between the deficiencies and the underlying causes of those deficiencies did not involve error in itself on the part of the Registrar.

    Failing to consider powers under s 80 and s 81

21. The gravamen of the Judge’s reasoning in setting aside the decision of the Registrar was the Judge’s conclusion that the Registrar:

    failed to consider his powers under s 80 or 81 (or a combination of the two) to fashion a licence, subject to a set of conditions which could initially test her ability to drive and then regulate the manner of her driving thereafter.

22. This raises for consideration the appropriate approach by the Registrar under s 82 in a situation in which the Registrar is properly satisfied that, in order to prevent accident or injury, a person should not hold either the full driver’s licence which they currently hold or a provisional or probationary licence. The Judge accepted that Mrs Thiele should not hold any such licence. This was reflected in his order which was that she should only hold a permit under learner’s permit conditions pending future testing and assessment of her driving competency.

23. The starting point is that s 82 itself sets out the specific steps which the Registrar is empowered to take if satisfied that it is necessary in order to prevent accident or injury. In the case of a person who already holds a full driver’s licence which is not due for renewal, those express powers are confined to:

    (a)suspending the licence for a specified period; or

    (b)reducing the licence to a provisional or probationary licence for a specified period; or

    (c)cancelling the licence. 

24. When s 82 goes on to refer to its appearing that a person should not hold a licence, or should hold a licence subject to conditions, it is plain that not holding a licence refers to suspension or cancellation as referred to in ss 82(b) and (d) and holding a licence subject to conditions refers to a licence subject to provisional or probationary conditions as referred to in ss 82(c).

25. There is no power granted by s 82 to the Registrar to impose conditions at large, being such conditions as he or she thinks fit.

26. This is not necessarily to say that, in an appropriate case, the Registrar ought not to exercise his powers under s 81 to impose a specific condition which he thinks necessary for the purpose of preventing accident or injury and to do so in the alternative to exercising his powers under s 82 to cancel a person’s licence. Nor is it necessarily to say that, in certain circumstances, a licence holder could not contend that a Registrar committed an error in the event that the Registrar refused to consider imposing such conditions under s 81 as an alternative to cancelling a licence under s 82.

27. However, the deficiencies in Mrs Thiele’s driving which had led to her commission of the 2001 and 2007 offences with their fatal consequences were not such that the ongoing danger to the public could be eliminated or sufficiently alleviated by the simple imposition of a condition under s 81. On the view which the Judge himself took, and which Mrs Thiele does not challenge on appeal, Mrs Thiele is simply not competent to hold a driver’s licence, whether provisional, probationary or not. On the view which the Judge himself took, the present position is that Mrs Thiele is not competent to hold anything more than a learner’s permit, being effectively in the same position as a 16 year old novice driver. The effect of the orders made by the Judge is that Mrs Thiele must effectively start again, proceeding through learner’s permit conditions to having to pass a formal assessment of her driving competency before being issued with a probationary licence subject to specific conditions.

28. Where the Registrar exercises his powers under s 82 to cancel a person’s licence, that cancellation in itself is no impediment to the person making an application for the grant of a learner’s permit (or indeed for a licence, whether provisional or non-provisional and whether conditional or unconditional). This was expressly conceded by the Registrar on the hearing of this appeal.

29. Circumstances may well arise in which the Registrar needs to act expeditiously in cancelling the licence of a person who has been convicted of an offence in order to prevent accident or injury.  In such circumstances, it would be inappropriate for the Registrar to delay cancelling that person’s licence during what might be an extensive period of investigation and to‑ing and fro‑ing with the licence holder concerning the exercise of alternative powers such as the grant of a learner’s permit or the grant of a learner’s permit or driver’s licence subject to tailored conditions.  In the present case, the hearings before the Judge extended over a period of three months during which such investigations were undertaken.

30. In circumstances in which the Registrar concludes that, by reason of the commission of an offence(s) of which a person has been convicted, a person should not continue to hold a driver’s licence, but at most should be obliged to start again and apply for a learner’s permit, the Registrar is empowered by the express provisions of s 82 to cancel that person’s licence and leave it to that person to apply for a learner’s permit.

31. In the present case, Mrs Thiele had explicitly submitted to the Registrar that there should be no interference at all with her full driver’s licence and that it should be neither cancelled nor subjected to any conditions.  Mrs Thiele thereby demonstrated a lack of recognition that her driving was deficient and thereby dangerous or that she ought not to be permitted to continue to hold a full driver’s licence.  Mrs Thiele did not propose to the Registrar, and apparently did not propose to take, any remedial steps in relation to the deficiencies in her driving.  She did not propose or formulate the imposition of any conditions upon her licence.  She did not propose that she be issued with learner’s permit in lieu of her full driver’s licence.

32. While Mrs Thiele did invite the Review Committee to consider exercising the Registrar’s powers under s 80 to require her to undergo tests and issue to her a temporary driving permit subject to conditions in the meantime, she still did not propose any specific steps or course to remedy the deficiencies in her driving and did not make application for a learner’s permit.

33. The Judge did not refer, nor have regard, to the prospect that Mrs Thiele could make a fresh application for a learner’s permit (subject perhaps to conditions) and that the Registrar would be obliged to consider any such application on its merits in light of information produced or available to him at that time.

34. In these circumstances, the Registrar (and in turn the Review Committee) did not err in deciding to cancel Mrs Thiele’s licence and leave it to her to make such application as she saw fit for a learner’s permit or limited form of driver’s licence, which the Registrar would then be obliged to consider afresh pursuant to s 82 on its merits.

35. Section 46E(3) of the District Court Act provides that the District Court on appeal must give due weight to the decision being appealed against and not depart from it except for cogent reasons.  For the reasons which we have given, there were no cogent reasons for the Judge to depart from the decisions of the Registrar and Review Committee.

    Appropriateness of orders made

36. The Registrar contends that in any event the Judge, on an appeal against the exercise of the Registrar’s powers under s 82, ought not to have assumed the Registrar’s jurisdiction to grant a temporary permit pursuant to s 80 of the Act.

37. Sub-sections 80(1) and (1a) empower the Registrar to require a person, or class of persons, to undergo such tests or to furnish such evidence of ability or fitness to drive as the Registrar directs. The language and legislative history of s 80 (in contradistinction to s 82 and other sections of the Act) suggests that the “ability or fitness to drive” envisaged is a person’s physical and mental ability or fitness to drive as opposed to a person’s actual level of driving skills.

38. In any event, it is plain that s 80(3), which empowers the Registrar to issue to a person who has been required to undergo tests a temporary driving permit pending completion of those tests, is nearly ancillary to the principal purpose of the section which is to require such tests to be undergone. Sub‑section 80(3) does not empower the Registrar to issue a temporary driving permit as an alternative to the issue of a learner’s permit or a driver’s licence and then to use tests required under s 80(1) as substantive tests to determine the person’s eligibility to progress to either a provisional or non-provisional driver’s licence. That would be the tail wagging the dog.

39. The order made by the Judge effectively utilizes s 80(3) as the primary provision to enable the issue to Mrs Thiele of a temporary driving permit which in substance is a learner’s permit which, (under the order), would remain in force for a minimum of six months and potentially could remain in force indefinitely (if Mrs Thiele did not pass the formal assessment of her driving competency).

40. If made by the Registrar, the issue of a temporary driving permit of that nature and in those circumstances would not be authorised by s 80(3) of the Act.

1. In any event, on an appeal against the Registrar’s decision to cancel Mrs Thiele’s licence pursuant to s 82, it was inappropriate for the Judge to assume the Registrar’s jurisdiction under s 80(3) to issue a temporary driving permit. Rather, the Judge ought to have remitted the matter to the Registrar for consideration pursuant to s 42F(c) of the District Court Act.

2. The Registrar also contends that, in any event, the Judge ought not to have assumed the Registrar’s jurisdiction to impose upon Mrs Thiele’s licence conditions pursuant to s 81 of the Act.

3. It is not necessary to consider whether there may be some circumstances in which it is appropriate for a Judge on appeal to order the endorsement on an existing licence of conditions pursuant to s 81 as an alternative to the cancellation of the licence pursuant to s 82.

4. Assuming that such circumstances might exist and that a Judge has power to so act, it was not appropriate for the Judge to so act in the present circumstances. 

5. The detailed and comprehensive order made by the Judge attempted to anticipate and regulate several stages in a progression of Mrs Thiele’s licence to drive.  It encompassed:

   (1)a learner’s permit subject to a condition requiring Mrs Thiele to undertake the defensive course with Mr Fraser which would last of at least six months;

   (2)a probationary driving licence subject to restrictive conditions concerning the roads on which, purposes for which and times at which Mrs Thiele might drive which would last at least 12 months;

   (3)a driver’s licence subject to a condition requiring annual assessments of competence by Mr Fraser which would last at least five years; and

   (4) an unconditional driver’s licence after a minimum of five years.

6. The order made by the Judge leaves to Mr Fraser’s discretion whether or not Mrs Thiele should progress from learner’s permit conditions to a probationary driving licence. It is prescriptive in a non-dynamic sense in that each stage is predetermined by the order and not at the time of and in light of the conditions pertaining at the time the stage is reached.

7. By contrast, if Mrs Thiele were to be left to proceed in accordance with the driver’s licensing regime laid down by the Act, it would be a matter for the Registrar to exercise his discretion at each stage of the process, to determine whether or not Mrs Thiele should progress to a more advanced form of licence and to determine what are the appropriate conditions and restrictions in respect of each form of licence at the relevant time in the future.

8. In particular, assuming that the Registrar were to determine that Mrs Thiele should be granted a learner’s permit, it would be a matter for the Registrar to determine, pursuant to s 81 and s 82, what additional assessment of her driving competence ought to be passed by Mrs Thiele in addition to a s 79A(1)(a)(iii) practical driving test and what conditions ought to be imposed in respect of a P1 or P2 licence issued to Mrs Thiele. The Registrar could determine that question in light of all of the circumstances at the time.

9. It was appropriate that these matters be left to be determined by the Registrar on a dynamic basis rather than the Judge attempting to prescribe them in advance.

   Conclusion

10. We allow the appeal.  We set aside the orders made by the Judge.  This has the effect of reinstating the cancellation of Mrs Thiele’s licence pursuant to the Registrar’s original decision of 14 July 2010.