Registrar of Motor Vehicles v Vu
[2013] SASCFC 10
•8 March 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
REGISTRAR OF MOTOR VEHICLES v VU & ANOR
[2013] SASCFC 10
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Anderson and The Honourable Justice Stanley)
8 March 2013
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - EXERCISE - TIME FOR EXERCISE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - OBLIGATORY AND DISCRETIONARY PROVISIONS - GENERAL PRINCIPLES
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - GENERALLY
Appeal by the Registrar of Motor Vehicles against declarations made by a Judge of this Court that two disqualification notices issued pursuant to s 139BD of the Motor Vehicles Act 1959 (SA) were invalid. The respondents had expiated traffic offences in circumstances which made them liable to statutory disqualifications but the Registrar did not attempt to activate the disqualifications by notifying the respondents until approximately two years after the expiations. The respondents subsequently brought applications in this Court seeking declarations that the Registrar was neither duty bound nor empowered to make notifications which activated the periods of statutory disqualification by reason of that long delay and that the notices which she had issued were invalid. The Judge upheld the respondents’ contention, holding that the Registrar’s duty, and concomitant power, to issue the notices was subject to, and conditional upon, compliance with her obligation to act “with all convenient speed” in accordance with s 27(3) of the Acts Interpretation Act 1915 (SA).
Whether the Registrar acted “with all convenient speed” - whether the legislature intended non-compliance with s 27(3) of the Acts Interpretation Act 1915 (SA) to result in invalidity.
Held: appeal allowed – the declarations of invalidity made by the Judge to be set aside – the respondents’ actions be dismissed – the Registrar did not act “with all convenient speed” to issue notices to the respondents – the statutory disqualification provisions of the Motor Vehicles Act 1959 (SA) are not intended to limit the duty and power of the Registrar to make the prescribed notifications of cancellation and disqualification to those occasions when the Registrar has acted “with all convenient speed” – the legislature did not intend non-compliance with s 27(3) of the Acts Interpretation Act 1915 (SA) to result in invalidity.
Motor Vehicles Act 1959 (SA) s 139BD, s 5(6), s 98BC, s 98BE, s 98BE(2a), s 81D(1), s 81D(2), s 98BE(2a)(a), s 81C(2), s 81B(1) s 81BA(4), s 81BC(2), s 81BB(8), s 93; Acts Interpretation Act 1915 (SA) s 27(3); Road Traffic Act 1961 (SA) s 47BA(1); Expiation of Offences Act 1996 (SA) s 9(1), s 9(4), s 9(9), s 5, s 18, s 6(1)(e); Road Traffic (Miscellaneous) Regulations 1999 (SA) Sch 9; Australian Road Rules r 264(1); Magistrates Court Act 1991 (SA) s 13; Courts Administration Act 1993 (SA) s 6, s 10, s 17, s 21A; Summary Procedure Act 1921 (SA) s 52, referred to.
Helbers & Ors v Registrar of Motor Vehicles [2012] SASC 185, discussed.
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; Commissioner of the Australian Federal Police v Oke (2007) 159 FCR 441; Smith v Wyong Shire Council (2003) 132 LGERA 148, considered.
REGISTRAR OF MOTOR VEHICLES v VU & ANOR
[2013] SASCFC 10Full Court: Kourakis CJ, Anderson and Stanley JJ
KOURAKIS CJ: This is an appeal by the Registrar of Motor Vehicles (“the Registrar”) against declarations made by a judge of this Court that two disqualification notices issued pursuant to s 139BD of the Motor Vehicles Act 1959 (SA) (“the Act”) were invalid.
Various sections of Part 3 and Part 3B of the Act provide for the cancellation of licences and the disqualification of persons from holding or obtaining licences under the Act for periods of time prescribed by those sections. I will refer to those sections collectively as the statutory disqualification provisions. The cancellations and disqualifications operate by direct operation of the statutory provisions on the conviction of motorists for committing specified offences, or on the accumulation of a prescribed number of demerit points. Even though the cancellation or disqualification is not dependent on the exercise of a judicial or administrative discretion to order to that effect, the scheme depends, for its efficacy, on the Registrar giving the motorist a written notice (“the notice”) of the disqualification or cancellation in which the Registrar fixes the commencement date of the period of cancellation or disqualification.
The manifest purpose of the scheme is to promote adherence to road rules by mandating fixed periods of disqualification and cancellation for the purposes of punishment, deterrence and the protection of the public. To achieve those purposes, the scheme relies on a high degree of certainty that the consequence of prescribed offending will be a period of cancellation or disqualification. The scheme also relies, for its effectiveness, on the careful and detailed prescription of the circumstances which render an offender[1] liable to forfeiture and the administrative steps which must be taken to activate the legislatively mandated penalties. The scheme is generally designed to allow the Registrar, as the administrator of the scheme, to act in discharge of his or her duties and powers with relative certainty and to provide similar certainty to the persons rendered liable to disqualification. That is not surprising. It is an offence punishable by imprisonment for a person whose licence has been cancelled, or who has been disqualified from holding or obtaining a licence, to drive during the period of disqualification or cancellation.
[1] I will refer to both motorists who have been convicted of traffic offences and to those who have expiated offences as offenders.
The respondents expiated traffic offences in circumstances which made them liable to statutory disqualifications but the Registrar did not attempt to activate the disqualifications by notifying the respondents in accordance with the Act until about two years after the expiations. The respondents brought applications in this Court seeking declarations that the Registrar, by reason of that long delay, was neither duty bound nor empowered to make the notifications which activated the periods of statutory disqualification and that the notices which she had issued were invalid. The cause of the delay was a breakdown in the electronic communication of information between the Courts Administration Authority (“the CAA”[2]), the Commissioner of Police (“the Commissioner”) and the Registrar. The Judge upheld the respondents’ contention, holding that the Registrar’s duty, and concomitant power, to issue the notices was subject to, and conditional upon, compliance with her obligation to act “with all convenient speed” in accordance with s 27(3) of the Acts Interpretation Act 1915 (SA).
[2] See further footnote 6 below.
I would hold that the statutory disqualification provisions of the Act do not limit the duty and power of the Registrar to make the prescribed notifications of cancellation and disqualification to those occasions when the Registrar has acted “with all convenient speed”. I would therefore allow the appeal and set aside the declarations of invalidity made by the Judge. My reasons follow.
The factual circumstances
The respondent Vu was issued an expiation notice for a second offence of driving a vehicle on a road whilst a prescribed drug was present in his blood, contrary to s 47BA(1) of the Road Traffic Act 1961 (SA) (“the RTA”) on 5 July 2009.[3] Mr Vu successfully applied pursuant to s 9(1) of the Expiation of Offences Act 1996 (SA) (“the Expiation Act”) to be permitted to pay the expiation fee in instalments. I will refer to such an application as a hardship application and to an order granting the application as a hardship order. The hardship order in favour of Mr Vu was made pursuant to s 9(4) of the Expiation Act on 4 August 2009. Section 9(9) of the Expiation Act requires the Registrar of the Magistrates Court (“the MC Registrar”) to give notice of a hardship order to the applicant and to the authority which issued the expiation notice. Section 18 of the Expiation Act allows, subject to certain safeguards, the notification to the issuing authority to be provided electronically.
[3] The offence is an expiable offence pursuant to s 5 of the Expiation of Offences Act 1996 (SA) and Schedule 9 of the Road Traffic (Miscellaneous) Regulations 1999 (SA).
Section 5(6) of the Act provides that a person who is granted a hardship order under the Expiation Act in respect of an expiation notice for an offence that attracts demerit points will, for the purposes of the Act, be taken to have expiated the offence on the day on which the hardship order was granted.
Mr Abraham incurred 12 or more demerit points in the period between October 2006 and February 2009. He became liable to be disqualified for three months pursuant to s 98BC of the Act. However, Mr Abraham elected, pursuant to s 98BE of the Act, to accept a condition on his licence requiring him to be of good behaviour for a period of 12 months. He thereby became liable to be disqualified for a period twice the original disqualification of three months[4] if he incurred two or more demerit points in the 12 month period of the good behaviour condition. That 12 month period commenced on 29 April 2009. On 15 October 2009, Mr Abraham was issued with an expiation notice with respect to an offence of failing to wear a seatbelt contrary to r 264(1) of the Australian Road Rules. On his application, a hardship order was made on 17 November 2009. Mr Abraham thereby incurred three demerit points with the effect that he was liable to be disqualified for six months in accordance with s 98BE(2a)(a) of the Act.
[4] Section 98BE(2a) of the Act.
The duties of the Commissioner and the Courts to provide information to the Registrar
Section 93 of the Act provides:
93—Notice to be given to Registrar
(1)If a court—
(a) convicts a person of an offence that attracts demerit points under this Act; or
(b) finds a person guilty of the offence of contravening or failing to comply with a condition of a permit or licence under this Act; or
(c) makes an order affecting demerit points or disqualifying a person from holding or obtaining a driver's licence; or
(d) makes an order under section 47IAB of the Road Traffic Act 1961; or
(da) makes an order under section 47J(9) of the Road Traffic Act 1961 revoking a disqualification; or
(e) makes an order modifying a person's driver's licence,
the proper officer of the court must notify the Registrar in writing of the date of the finding or order, the nature and effect of the finding or order and short particulars of the grounds on which the finding or order was made.
(2)If any such finding or order is quashed or varied by a court on appeal, the proper officer of the court must forthwith notify the Registrar in writing of the date of the order made on the appeal and the effect of the order.
(3a)Where a person expiates an offence to which an expiation notice relates, and that offence—
(a) attracts demerit points under this Act; or
(b) is an offence of contravening a condition of a learner's permit, probationary licence or provisional licence,
the Commissioner of Police must send to the Registrar notice in writing of the expiation.
(3b)Where the Commissioner of Police withdraws an expiation notice in relation to which notice under subsection (3a) has been given, the Commissioner must, by further notice in writing, advise the Registrar forthwith of the withdrawal and the grounds upon which the withdrawal was made.
(4)In this section—
proper officer means—
(a) in relation to the Supreme Court, the registrar of that court;
(b) in relation to any other court, the clerk of that court.
As I earlier observed, s 18 of the Expiation Act allows the Commissioner and any other issuing authority to provide the prescribed information in an electronic form which is acceptable to the Registrar but there is no obligation to do so.
It should also be observed that the obligation to notify the Registrar of the loss of demerit points upon the expiation of an offence rests with the Commissioner, whereas the obligation to notify the Registrar of convictions which attract demerit points, or which, in other ways, activate a mandatory administrative disqualification, is imposed on the proper officer of the relevant court. The proper officer of the Magistrates Court is the clerk of that court.[5] The scheme does not make special provision for those cases in which an expiation is effected, not by payment of the fee, but by the making of a hardship order. For some time prior to June 2009 information was provided by the staff of the CAA[6] in an electronic form, both to the Commissioner and the Registrar. As a result of an unintended computer programming change, the CAA did not provide the Registrar with written notice of the hardship orders made by the MC Registrar in the period between June 2009 and June 2011.
[5] The Magistrates Court Act 1991 (SA) provides that the principal administrative officer of the Court is the Principal Registrar (s 13) and that the clerks of the Magistrates are part of the administrative staff of the Court. It appears that s 93(4) of the Act has not been amended to reflect the constitution, in 1991, of the Magistrates Court as a court of record.
[6] White J assumed that the CAA provided the information on behalf of the proper officer of the Magistrates Court. The State Courts Administration Council (“the Council”) is constituted by s 6 of the Courts Administration Act 1993 (SA). The Council is responsible for providing the administrative facilities and services of participating courts of which the Magistrates Court is one (s 10). The Council nominates the State Courts Administrator, who is appointed by the Governor, as the Council’s Chief Executive Officer (s 17). The State Courts Administrator appoints the staff of the Council which includes the Registrars of the participating court (s 21A). The CAA is a convenient shorthand reference to the staff of the Council which includes the officers of the participating courts organised as an administrative unit. In effect, therefore, the information is provided by the proper officers of the respective courts through the combined facility of that administrative unit.
Liability to Disqualification
Sections 81D(1) and (2) of the Act, which subjected Mr Vu to a mandatory period of disqualification by reason of the expiation, provide:
81D—Disqualification for certain drug driving offences
(1)This section applies to an alleged offence against section 47BA(1) of the Road Traffic Act 1961 other than a first offence.
(2)If a person expiates an offence to which this section applies, the Registrar must give the person written notice—
(a) 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 licence or learner's permit for—
(i)if the offence is a second offence—6 months; or
(ii)if the offence is a third offence—12 months; or
(iii)if the offence is a subsequent offence—2 years; and
(b) that, if the person holds any licence or learner's permit when the notice takes effect, the licence or permit is cancelled.
Section 98BE(2a) of the Act, which subjected Mr Abraham to a mandatory legislative period of disqualification on the expiation of his offence, provides:
(2a)If a person incurs 2 or more demerit points in relation to 1 or more offences committed by the person while the holder of a licence subject to the condition referred to in subsection (2), the Registrar must give the person written notice—
(a) 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 licence for a period that is twice the period for which the disqualification would have applied under section 98BC if the person's licence had not been subject to that condition; and
(b) that, if the person holds any licence when the notice takes effect, the licence is suspended during the period of disqualification.
It will be observed that the preceding sections respectively provide that the Registrar must give the prescribed notice if a person expiates an offence or incurs two or more demerit points. In that respect the precondition to the existence of the duty is framed in similar terms to s 81C(2) and s 98BE(2a) of the Act. In contrast, other of the statutory disqualification provisions qualify the word “must” with the phrase “on becoming aware of the fact”: ss 81B(1), 81BA(4), 81BC(2) and 81BB(8) of the Act. All of the latter group of offences except s 81BC(2) include, as one of the preconditions to the existence of the duty, the commission of the offence which, of course, may not come to the attention of the Registrar until he or she is advised of a conviction or expiation many months or more, after the commission of the offence. The provisions in which the duty is conditioned on the commission of the offence all deal with the consequences of offending by conditional licence holders. It is not clear why it was thought fit to frame the precondition by reference to the commission of the offence when, practically, the Registrar will not be in a position to act on that duty until after there is a conviction by a court. It is equally obscure why the Registrar’s duty to issue a notice imposed by s 81BC(2) was qualified by the phrase “on becoming aware of the fact” when the preconditions to the existence of the duty do not include the commission of an offence and like the former group of provisions, in which the duty is not qualified by the phrase “on becoming aware of a fact”, are limited to the recording of a conviction for an offence or the incurring of demerit points.
Relying on the absence of the phrase “on becoming aware of the fact” in s 81D(2) and s 98BE(2a) of the Act, the Judge held that the obligations to give a notice imposed by those sections arose as soon as the points were incurred and not at some later time when the Registrar became aware of that fact. His Honour held that pursuant to s 27(3) of the Acts Interpretation Act, the Registrar had to proceed with all convenient speed from the day the points were incurred to ensure that she was promptly and fully informed of the points incurred by the motorist so that she could proceed to give the notice. In practice, that construction imposed a duty on the Registrar to actively seek information about motorists who had incurred points instead of waiting to be informed by issuing authorities or courts pursuant to s 93 of the Act. The basis of that implication was the legislature’s limitation of the duty to issue notices in the other of the statutory disqualification provisions to the time at which the Registrar became aware of the fact. Because of the view I take of the consequences of failing to comply with that duty, it is not necessary to consider the appellant’s challenge to that construction and I will proceed on the basis of his Honour’s construction.
The giving of the notices which the Registrar is obliged to issue pursuant to the statutory disqualification provisions is regulated by s 139BD of the Act which provides:
139BD—Service and commencement of notices of disqualification
(1)A notice of disqualification authorised or required to be given under this Act must be given in accordance with this section.
(2)A notice of disqualification must in the first instance be sent by post, addressed to the person to whom it is required to be given, at his or her last known postal address.
(3)The Registrar must, in the notice—
(a) require the person—
(i)to attend, within the period specified in the notice, at a specified place of a kind prescribed by the regulations to personally acknowledge receipt of the notice in accordance with the notice; and
(ii)to pay to the Registrar, in accordance with the notice, the administration fee prescribed by the regulations; and
(b) inform the person that if he or she fails to comply with the requirements of the notice—
(i)another notice of disqualification will be issued and served on the person personally; and
(ii)the person will be liable to pay a service fee of the amount prescribed by the regulations; and
(iii)the Registrar may refuse to enter into any transaction with the person until the person pays the service fee; and
(c) inform the person that if another notice of disqualification is issued and an attempt to serve the notice personally is unsuccessful, the Registrar may refuse to enter into any transaction with the person until the person pays the service fee and personally acknowledges receipt of the notice in accordance with the notice.
(4)If a person to whom a notice of disqualification is posted fails to comply with a requirement made under subsection (3) within the period specified in the notice—
(a) the notice is to be taken for the purposes of this Act not to have been given to the person; and
(b) the Registrar must issue another notice of disqualification and cause it to be served on the person personally.
(5)If an attempt is made to effect personal service of a notice of disqualification—
(a) the Registrar may, if the attempt is successful, refuse to enter into any transaction with the person to whom the notice was given until the person pays the service fee prescribed by the regulations; or
(b) the Registrar may, if the attempt is unsuccessful, refuse to enter into any transaction with the person to whom the notice is required to be given until—
(i)the person personally acknowledges receipt of the notice in accordance with the notice; and
(ii)the person pays the service fee prescribed by the regulations.
(6)For the purposes of this Act, a notice of disqualification is to be taken to have been given to a person—
(a) in the case of a notice receipt of which is personally acknowledged by the person as required by the notice—on the day on which receipt of the notice is so acknowledged; or
(b) in the case of a notice that is served on the person personally—on the day on which the notice is so served.
(7)A notice of disqualification must specify when the notice will take effect in accordance with this section.
(8)Subject to subsection (9), a notice of disqualification takes effect as follows:
(a) in the case of a notice receipt of which is personally acknowledged by a person as required by the notice—28 days after the day specified in the notice;
(b) in the case of a notice that is served on a person personally—28 days after the day on which the notice is so served.
(9)If, at the time that a notice of disqualification is due to take effect, the person is already disqualified from holding or obtaining a licence or permit, the notice of disqualification will instead take effect on the termination of that prior disqualification.
(10)If the Registrar considers that there are proper reasons for doing so, the Registrar may, at any time before a notice of disqualification takes effect, reissue the notice.
(11)In this section—
notice of disqualification means a notice under section 81B(1), 81BA(4), 81BB(8), 81C(2), 81D(2), 98BD(2) or 98BE(2a).
Content of Duty to Act with All Convenient Speed
The Judge found that the Registrar failed to issue the disqualification notices to Mr Vu and Mr Abraham with all convenient speed. The Judge did not give extensive reasons for that finding,[7] probably because of the very long delay of nearly two years in both cases and because, in that time, the Registrar had not made any enquiries of the Commissioner or the clerks of the Magistrates Court to ascertain whether hardship orders had been made. On the premise that the Registrar’s duty arose as soon as the points were incurred, the finding of the Judge that the Registrar did not act without convenient speed is plainly right. However, in my view it is necessary to consider further the content of the Registrar’s duty to act with all convenient speed before turning to the question of invalidity. I will on occasion refer to the Registrar’s duty to act with all convenient speed as the expedition obligation.
[7] Helbers & Ors v Registrar of Motor Vehicles [2012] SASC 185 at [95]-[96] in relation to Vu; [99]‑[100] in relation to Abraham.
On the hearing of the appeal, the respondents’ counsel accepted that the timeliness and diligence of the Registrar’s enquiries to ascertain whether or not the duty to issue the notices had been enlivened would affect the factual question whether or not the Registrar had acted with all convenient speed. The respondents’ counsel accepted that if the Registrar made enquiries with all convenient speed but, through no fault of her own, failed to discover that a motorist had incurred the points rendering him liable to disqualification until after a delay as long as the delays in the cases before the Court, she would nonetheless have acted with all convenient speed. The respondents’ position on appeal is consistent with their position at trial. The Judge recorded in his reasons that the respondents accepted that the Registrar had to, in a practical sense, have knowledge of the circumstances requiring a notice to be issued and contended that the Registrar was, for that very reason, subject to an implicit obligation to take steps to learn of those circumstances. In summary, the respondents’ position is that if the Registrar at all times acts expeditiously to obtain the information and then expeditiously issues the required notices, he or she acts with all convenient speed even if, by reason of the failure of others to answer those enquiries, the delay is as long as two years or more.
In my view, the respondents’ position is sound. Whether or not a person subject to a legislative duty to act has acted with all convenient speed is a question of fact which will be affected by the exigencies of each particular case. A person subjected to a duty to act with all convenient speed can do no more than act as expeditiously as he or she can in the circumstances. The expression “with all convenient speed” is intractably indeterminate and incapable of precision. I doubt that the legislature intended that the phrase “at all convenient speed” in s 27(3) of the Acts Interpretation Act should be transmuted, by judicial fiat, into a finite period of time in which each statutory duty to which it applied should be performed irrespective of the circumstances of each particular case. Section 27(3) of the Acts Interpretation Act does not, in effect, delegate to the judiciary a legislative or administrative power to fix universally applicable time limits of fixed duration in which statutory duties must be performed. The most obvious reason for not prescribing a fixed period in which to perform a statutory duty, but instead subjecting office holders to the general obligation to act with all convenient speed is that the legislature recognised the desirability of allowing a flexible period to take into account varying circumstances. It is a term which is apt for measuring political or administrative responsibility even though, in a clear case, it may also found a judicial declaration that an officer has failed to act with all convenient speed if a decretal order is necessary to secure the performance of the officer’s statutory duty.
On that, fact sensitive, construction of the expedition obligation, a decision could not be made as to whether the Registrar discharged his or her duty until all of the surrounding circumstances were known. It follows that if the requirement to act with all convenient speed delimits the duty and power of the Registrar, it does not provide a clear bright line. On the contrary, the factual question is inherently contestable.
Delay and Invalidity
The Judge identified the following five indications of a legislative intention that a failure to act with all convenient speed invalidated the Registrar’s notices:
1.Section 27(3) of the Acts Interpretation Act 1915 (SA) is couched in mandatory terms and when read together with the close prescription of the procedure which the Registrar must follow in giving a disqualification notice indicates that non-compliance with either the procedural or temporal requirements would result in invalidity.
2.The Registrar has the technical capacity to act promptly through the electronic transfer of information.
3.Section 27(3) of the Acts Interpretation Act should be read in the context of a legislative intention that sanctions for traffic offences should be imposed with expedition evident in s 6(1)(e) of the Expiation Act which requires expiation notices to be given within six months of the date of offence and s 52 of the Summary Procedure Act 1921 (SA) which requires the prosecution of expiable offences to be commenced within six months of the date of the offence. It would be incongruous if the statutory disqualification provisions were not dependent on the Registrar acting promptly when those provisions are ancillary to the expiation and prosecution of offences, within strict statutory time limits.
4.A delay in the imposition of disqualifications under the statutory disqualification provisions is likely to impose an additional hardship on motorists because of changes to their lives and work commitments in the intervening period.
5.A delay in the issue of the notices would often frustrate the statutory purposes of disqualification so that a declaration of invalidity is “necessary, or at least desirable, to ensure compliance by the [Registrar] with the statutory duty”.
On the other hand, the Judge acknowledged that the punitive, protective and deterrent purposes of the statutory disqualification provisions would be frustrated, and the public interest compromised, if disqualifications were invalidated by reason of the Registrar’s delay.
The Judge explained his reasons for concluding that the failure to act with all convenient speed by the Registrar invalidated the notices in this way:[8]
Although the position is not entirely clear, I conclude that the failure of the RMV to issue the disqualification notices to Messrs Vu and Abraham with all convenient speed does have the effect of invalidating the notices issued to them. The considerations which I have mentioned point generally to this conclusion. I am particularly persuaded by the time limits in s 52 of the Summary Procedure Act 1921 (SA). Those time limits indicate a legislative policy that prompt action is required for action which may lead to disqualification.
[8] Helbers & Ors v Registrar of Motor Vehicles [2012] SASC 185 at [132].
Discussion
In Project Blue Sky Inc & Ors v Australian Broadcasting Authority,[9] the High Court described the evaluative task in which a court engages to ascertain the legal consequences of a breach of statutory duty:[10]
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
(emphasis added)
[9] (1998) 194 CLR 355.
[10] (1998) 194 CLR 355 at [91].
I turn to evaluate each of the indications identified by the Judge in accordance with that statement of principle.
To my mind the first consideration is not a strong one. The expedition obligation is sourced in the Acts Interpretation Act 1915 (SA), a general enactment, and is an obligation of a very different nature to the notice requirement. It is often the case that some of the obligations imposed on an administrative decision maker will be such that a failure to comply will result in invalidity when non-compliance with others will not. The location of the expedition obligation in the Acts Interpretation Act 1915 (SA) is significant in this respect. No intention that non-compliance will result from a failure to act can be implied from s 27(3) of the Acts Interpretation Act 1915 (SA) alone because it is devoid of context. It would be impossible to conclude that breach resulted in the invalidity of all the administrative acts to which it might possibly apply. Very little weight can therefore be given to the use of the word “must”; indeed it is difficult to see how the obligation could have been expressed in another way in a general enactment. The legislative choice not to impose a time limit in the Act itself in the same words, or in a form more tailored to the statutory disqualification scheme, suggests that a failure to act with all convenient speed was not intended to invalidate the notices issued by the Registrar. To put it another way, it is curious that if the Parliament intended to visit breach of the expedition obligation with invalidity, it did not expressly impose an obligation on the Registrar to attend to his or her function with all expedition, or even within a specified time.
There is another important distinction between the expedition obligation and the notice requirements. Compliance with the matters prescribed by s 139BD will appear on the face of the Registrar’s notices whereas non‑compliance with the expedition obligation could only be discovered after an evaluation, on which reasonable minds may differ, of the Registrar’s conduct. Even within s 139BD it is arguable that non-compliance with some of the provisions therein prescribed would not result in invalidity. Take, as an example, a case in which the Registrar does not post the notice to the offender’s last known address but the offender nonetheless received the notice and attends before the Registrar. It is arguable that in such a case the disqualification notice is valid despite the Registrar’s non-compliance with the obligation to send the notice to the person’s last known address.
It can be accepted with respect to the second indication, that the electronic transfer of information facilitates prompt compliance by the Registrar with her duties. However, as the very facts of this case show, electronic management of information is not without its risks. Perhaps more importantly, it cannot be assumed that all of the information which the Registrar requires will be transferred electronically by all of the authorities which may be empowered to issue expiation notices. Moreover, even though s 18 of the Expiation Act allows the electronic communication of information, it does not, as I earlier observed, oblige issuing authorities to communicate the required information in that form.
I turn to the third indication. There is, in my view, an important distinction between the strict and short statutory time limits within which offences must be charged and the giving of a disqualification notice pursuant to the statutory disqualification scheme. Strict time limits for prosecuting offences are calculated to guard against the loss of evidence and to put the offender on early notice of the possible consequences of conviction. Disqualifications imposed pursuant to the statutory disqualification scheme are imposed only after a conviction or expiation of the offence. There is, therefore, no incongruity in barring a tardy prosecution but preserving the validity of a delayed statutory disqualification.
It can be accepted with respect to the fourth indication, that in the period of a long delay between expiation and disqualification an offender’s personal circumstances may change. However, the changed circumstances may in some cases make the imposition of the period of disqualification less onerous. Perhaps more importantly, I would not attach much significance to this consideration because a motorist will usually be inconvenienced whenever the disqualification commences. Indeed, that is the very object of the statutory disqualification provisions.
To my mind, the fifth consideration, contraindicates an intention to invalidate a late notice.[11]
[11] Cf. Helbers & Ors v Registrar of Motor Vehicles [2012] SASC 185 at [125], [131].
Overall, I do not find the indications of invalidity to be particularly strong. On the other hand, there is a powerful indicator that the legislature did not intend a failure to serve the notices with all convenient speed to invalidate them. The circumstances of the respondents’ cases focus attention on the indications for and against invalidity when there has been a very long delay in a case in which the Registrar has failed to make any enquiry at all. However, it must be kept in mind that the question whether the Registrar has acted with all convenient speed may also arise in cases of much shorter periods of delay and in circumstances in which the question of compliance with the expedition obligation is much more evenly balanced.
Let it be assumed that it is possible to determine the time it should take to learn of the incurring of demerit points, or some other event, which triggers a disqualification under the administrative scheme and to issue the notices in accordance with reasonable bureaucratic practice. Let it be assumed that that period is X weeks. Let it also be assumed that an investigation of the time taken by the Registrar to issue notices shows that in 80 per cent of cases the notice is issued within X weeks. It is not difficult to see that in those circumstances a question of invalidity will arise in the 20 per cent of disqualification notices which are issued more than X weeks later, be it by matter of weeks or many months. The reason for the delay beyond the X weeks benchmark may be a computer malfunction within the office of the Registrar or in one of the issuing authorities, or it may be that a file was lost. It is not difficult to think of many other possible causes of delay. It may be that the office of the Registrar is affected by staff cuts[12] or industrial action. A computer system operated by the Registrar might malfunction. Such cases would raise, as questions of fact, whether or not the Registrar has acted with all convenient speed. The questions of fact will be decided on the facts and circumstances of each particular case. Those factual questions, as I earlier observed, are patently contestable ones over which judges may reasonably differ.
[12] The Registrar has no statutory power to control the resources, human and otherwise, of her office.
Moreover, the factual questions will not usually arise in an action for a declaration or injunction. In the first instance, the Registrar is bound to determine for herself whether or not the delay had enervated her power to validly issue the notice. The Registrar’s enquiry would require an examination of the conduct of the staff of her office, the issuing authorities and the Courts Administration Authority. Considerable public disquiet is likely to attend the Registrar’s decision to issue some notices but not others. Obviously enough, it will be impracticable for the Registrar to seek declarations from the Court every time the question arises. In those cases in which she considers it appropriate, to do so much expense and further delay will be suffered.
The question of the Registrar’s compliance with the expedition obligation is much more likely to arise when a motorist, who is charged with driving in the period of disqualification, defends the charge on the ground that the notice was not validly issued because of the Registrar’s delay. The prosecutions of offences in which the Registrar’s delay is put in issue will become protracted by an enquiry into the Registrar’s conduct.
In my view a construction of the statutory disqualification provisions which would hold void any notice which was not given with all convenient speed would substantially frustrate the legislative purpose of the scheme. It would undermine its administrative efficacy and substantially compromise the public interest. In my view those consequences are a powerful indication against invalidity.
In summary, I would hold that the legislature did not intend non‑compliance with s 27(3) of the Acts Interpretation Act to result in invalidity for these reasons:
(a)the expedition obligation is expressed in aspirational terms, compliance with which cannot readily be determined with any certainty in advance of the legal proceedings in which the question arises.[13] The obligation more aptly operates as a provision for administrative accountability than as a condition of invalidity;
(b)the failure to enact a fixed timeline or expedition requirement in the Act itself is inconsistent with a legislative intention to invalidate for delay the notices which the Act expressly and closely regulates in other respects;
(c)the Registrar’s power to compel timely and comprehensive disclosure by the issuing authorities and the Magistrates Court Clerk is very limited and so delays, sometimes very long delays, may still occur even if the Registrar acts diligently.
(d)the Registrar’s accountability to the Executive Government which controls the resources available to her office suggests that invalidity is both unnecessary and unintended.[14]
(e)the consequences of invalidity will substantially compromise the scheme and delay and protract the prosecution of offences of driving whilst disqualified.[15]
[13] Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [96].
[14] Commissioner of the Australian Federal Police v Oke [2007] FCAFC 94 at [34]; (2007) 159 FCR 441 at 447; Smith v Wyong Shire Council (2003) 132 LGERA 148 at [40]; [2003] NSWCA 322 at [40].
[15] Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [91], [97].
Finally, I mention, as is indeed apparent from my reasons, that the questions of when the Registrar’s duty arises and the content of that duty, on the one hand, and the intended statutory consequence of breach on the other, are interrelated. The more certain the content of the duty, and the more practicable it is for the Registrar to comply with it, the stronger the indication that non-compliance will result in invalidity. The converse is also true. My conclusion as to invalidity, thus far expressed, is founded on the premises that the duty first arises when the points are incurred, or the conviction recorded, and that the length of time in which the duty may be performed will vary according to all of the circumstances. However, the contraindications to which I have referred would, in my view, lead to the conclusion that a breach of the obligation to act with all convenient speed would not result in invalidity even if the Registrar’s duty arose only after she first became aware of the circumstances enlivening that duty and even if the content of that duty could be defined with much greater certainty.[16]
[16] If the duty was to issue the notices within a legislatively prescribed number of weeks or months, a more difficult question might arise but, in my view, for the reasons given in [37], it is not possible to so construe s 27(3) Acts Interpretation Act 1915 (SA).
Conclusion
I would allow the appeal. I would set aside the orders made by the Judge. I would order instead that the respondents’ actions be dismissed.
ANDERSON J: I have read the reasons of the Chief Justice and Stanley J. I agree generally with the reasons expressed by their Honours.
To my mind the interpretation of the words “with all convenient speed” is properly dealt with by the judge appealed from. I agree with the comments of Stanley J on this aspect.
In relation to the question of the invalidity of the notices it is my view that it is only necessary to consider the first point made by the judge appealed from in order to resolve the matter. I respectfully disagree with His Honour’s analysis on that topic.
The factors which influence me in coming to that conclusion are the two factors highlighted by Stanley J in his reasons. I agree also with what the Chief Justice says on this point. I agree that Parliament could not have intended that invalidity of the notices would be the natural consequence of failure to give notice “with all convenient speed”. In my view there is no such legislative purpose to be discerned.
I would allow the appeal for those reasons.
STANLEY J: I agree that the appeal must be allowed. The orders made by the judge of this Court should be set aside. An order should be made dismissing the respondents’ actions.
I agree with the conclusion of the learned judge below that the Registrar failed to issue the disqualification notices to the respondents with all convenient speed. In my view, the learned judge was correct in his construction of the provisions of s 81D(2) and s 98BE(2a) of the Motor Vehicles Act 1959 (SA) (“the Act”). This construction is supported by both textual and contextual considerations. A reading of the Act as a whole strongly favours a construction that the obligations to give notice imposed by those provisions arise as soon as the points were incurred, and not at some later time when the Registrar becomes aware of that fact. The absence of the phrase “on becoming aware of the fact” in those provisions, in circumstances where analogous provisions e.g. s 81B(1), s 81BA(4), s 81BC(2) and s 81BB(8) expressly condition the obligation to give the specified notice on the Registrar “becoming aware of the fact” indicates that the Parliament intended that the obligation imposed on the Registrar to issue a notice arises at different times under different sections. I reject the submission of the respondents that the difference in language is a result of Parliamentary oversight. The learned judge’s careful analysis of the history of the enactment of these provisions offers persuasive refutation of that proposition.
Given the delay, I agree with the learned judge that it necessarily follows that the Registrar did not act with all convenient speed to issue the notices to the respondents in accordance with s 27(3) of the Acts Interpretation Act 1915 (SA).
Nonetheless, I would allow the appeal.
I cannot discern a legislative intention that a failure on the part of the Registrar to give the notices required by s 81D(2) and s 98BE(2a), with all convenient speed, should invalidate the notices. On the contrary, I consider there are two persuasive factors against discerning a legislative purpose to invalidate the notices where the Registrar has failed to issue them with all convenient speed.
First, if the Parliament had intended that notices required to be issued by the Registrar pursuant to the Act would be invalidated if the Registrar failed to issue them with all convenient speed, the imposition of that requirement would have been found in the Act itself rather than in the default provisions of s 27 of the Acts Interpretation Act. It is to be remembered that s 27(3) only operates where no time is prescribed or allowed within which a thing must be done pursuant to any Act. If there was a legislative purpose that the failure to give the notice within a prescribed period of time would result in invalidity of the notice, I expect the Parliament would have made that purpose plain by the inclusion of the limitation period within the Act itself.
Secondly, as the Chief Justice notes, the terms of s 27(3) of the Acts Interpretation Act are intractably indeterminate, and incapable of precision. If the legislature had intended that the failure to give notice within a time limited period would carry the consequence of invalidity, I would expect the legislature to have expressed the limitation period in precise and finite terms, so as to provide a “clear bright line”. On the contrary, the requirement to give the notices “with all convenient speed” bristles with the potential for argument as to whether there has been sufficient compliance with the statutory obligation. To my mind, that is a contra-indication of a legislative purpose in favour of invalidity.
For these reasons, I consider that the learned judge erred in concluding that there was discernible a legislative purpose to invalidate the notice the Registrar was obliged to issue pursuant to s 81D(2) and s 98BE(2A) of the Act, where the Registrar failed to do so with all convenient speed.
It follows the appeal must be allowed and the respondents’ actions are dismissed.
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