Rogers v Registrar of Motor Vehicles
[2008] SADC 105
•15 August 2008
District Court of South Australia
(District Court Administrative and Disciplinary Division)
ROGERS v REGISTRAR OF MOTOR VEHICLES
[2008] SADC 105
Judgment of Her Honour Judge Cole (ex tempore)
15 August 2008
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS
Appeal against the suspension by the respondent of a driver's licence - basis for formation of opinion by Registrar pursuant to s 80(1) of the Motor Vehicles Act 1959 - decision of respondent affirmed - appeal dismissed.
Motor Vehicles Act 1959, referred to.
ROGERS v REGISTRAR OF MOTOR VEHICLES
[2008] SADC 105
Mr Rogers has appealed against the suspension by the Registrar of Motor Vehicles of his driver’s licence. The appeal is an appeal by way of rehearing, it is not a strict appeal.
The Department of Transport received a letter dated 30 October 2007 from Dr Patrick Clarke. Dr Clarke said that he had received information that Mr Rogers’ driving had deteriorated and that he had had another minor vehicular accident. Dr Clarke did not purport in his letter to be providing information pursuant to s 148 of the Motor Vehicles Act 1959. The Motor Vehicles Act provides, in s 80(1):
If, in the opinion of the Registrar it is desirable that the ability or fitness of an applicant for the issue or renewal of a licence or learner’s permit, or of a holder of a licence or learner’s permit, to drive a motor vehicle should be tested, the Registrar may require the person to undergo such tests or to furnish such evidence of ability or fitness to drive as the Registrar directs.
The Registrar has delegated this to the Deputy Registrar. The Deputy Registrar, pursuant to s 80(1), required Mr Rogers to undergo a driving test.
On 26 November 2007 Mr Rogers undertook a driving test. He failed. The report of the test says that he:
(1) Exceeded the 60 km/h speed limit by continuously driving at 68-70 km/h on three separate occasions;
(2) Exceeded the 50 km/h speed limit by continuously driving between 58-60 km/h. This occurred after the safety education officer cued the client re his speed;
(3) Other areas also noted including fail to give adequate signal when turning and failed to check blind spot area when changing lanes.
Mr Rogers’ licence was suspended following that test.
He was issued with a temporary permit allowing him to drive when accompanied by a licence’s driver. He was given the opportunity to be retested. Mr Rogers’ second driving test in this process took place on 14 December 2007. He failed again.
The report says that he:
(1) Exceeded the speed limit three times, 70 km/h in a 60 km/h zone, once on Diagonal Road and twice on Morphett Road;
(2) Failed to give way to a truck during a lane change on Morphett Road;
(3) Cut into danger during a lane change on Morphett Road.
The following faults were also noted:
(1) Safety margin following not suitable, being too close to the vehicle in front;
(2) Failed to give the appropriate signal twice;
(3) Failed to check mirrors three times;
(4) Short right-hand turn, cut corner substantially;
(5) Straddled lanes three times;
(6) Failed to check blind spot prior to lane change;
(7) Failed to check blind spot prior to right turn from incorrect approach position too far left.
The suspension was continued. Mr Rogers was notified.
Mr Rogers sought internal review. The decision to suspend was upheld on the review. Mr Rogers now appeals to this Court.
In the outline of argument filed on behalf of the appellant and in the appellant’s argument before me today, s 148 of the Act is raised. Pursuant to s 148 a health professional who has examined a patient who holds a driver’s licence and has formed the view that the patient would be likely to endanger the public if he or she drove, has a duty to inform the Registrar of this.
It has been argued on behalf of Mr Rogers that because Dr Clarke did not have a duty to disclose his concern to the Registrar and did not qualify on the pre‑conditions of s 148, on account of the fact that the information he provided was not gathered while Mr Rogers was his patient, the Registrar should not have sought to have Mr Rogers tested.
The argument is misconceived. A report under s 148 is not the only way in which the Registrar’s discretion under s 80 may be triggered. The Registrar may form the requisite position for s 80 based on information coming to him from the vast conceivable range of sources. There is no reason to think that it is confined to reports under s 148.
There is no reason to think that the Registrar cannot rely upon hearsay. The Registrar here had a clear basis as a matter of substance, for seeking to have Mr Rogers tested and Mr Rogers, in fact, submitted to that testing. Dr Clarke did not purport to provide information under s 148. He was conveying the information as a concerned member of the public.
It does not matter that at some stage subsequent to the process, the Registrar might mistakenly have thought that the information came to him under s 148. It is the substance of the matter that is important in a review of the kind being undertaken before this Court.
As a matter of substance, the Registrar had the requisite basis for forming the requisite opinion under s 80. In any event, that is not the decision under review here. The suspension is under review.
I note in passing in any event that the initial letter from the Registrar to Mr Rogers requiring him to undertake testing made no mention of s 148.
There is a suggestion that Mr Rogers should have been afforded some versions of procedural fairness in relation to the opinion formed by the Registrar to test him.
In my opinion, the procedural fairness was afforded by the testing procedure itself. The decision of substance is whether or not the licence should have been suspended. There is no basis whatsoever for interfering with the Registrar’s decision. In substance, there was ample basis for each decision leading to the suspension. Mr Rogers submitted to the test. The information about his driving is before me. To ignore it would be quite unreal and contrary to the intention of the Motor Vehicles Act.
Mr Rogers’ lack of insight in his response to failing his driving test, in fact, reinforces the correctness of that decision in that he seems, in taking this appeal, not to be taking into account the substance of the tests which is the critical issue.
The appeal is therefore dismissed.
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