Shilkin v Chief Executive Officer of the Department of Transport - [2024] WASC 477

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SHILKIN -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT [2024] WASC 477
CORAM:   SEAWARD J
HEARD:   7 NOVEMBER 2024
DELIVERED          :   13 DECEMBER 2024
FILE NO/S:   GDA 7 of 2024
BETWEEN:   STEVEN ANDREW SHILKIN
Appellant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT
Respondent

ON APPEAL FROM:
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   MEMBER OWEN-CONWAY
File Number            :   CC 1744 of 2019

Catchwords:

Appeal from decision of the State Administrative Tribunal - Leave to appeal - Application for an extension of time - Unreasonable delay - Utility of the appeal

Statutory construction - Road Traffic (Authorisation to Drive) Act 2008 (WA) - Road Traffic (Authorisation to Drive) Regulations 2014 (WA)

Whether there was apprehended bias - Whether the decision of the Tribunal is unreasonable

Legislation:

Interpretation Act 1984 (WA) s 75, s 76
Road Traffic (Authorisation to Drive) Act 2008 (WA) s 4, s 59
Road Traffic (Authorisation to Drive) Regulations 2014 (WA) r 7, r 8, r 64, r 72, sch 1, sch 2

Result:

Application for an extension of time is refused
Leave to appeal is refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	T Loo

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Beba Enterprises Pty Ltd v Elle Pty Ltd [2014] WASC 141
Chang v Legal Professional Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263
City of Swan v LWP Property Group Pty Ltd [2013] WASCA 90
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
De Alwis v The State of Western Australia [No 4] [2015] WASCA 43
Donaldson v Nolan [No 2] [2015] WASC 158
Dreja v The State of Western Australia [2012] WASCA 151
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Engwirda v Owners of Queens Riverside Strata Plan 55728 [2019] WASCA 190
Feldman v Nationwide News Pty Ltd [2020] NSWCA 260
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Michael v The State of Western Australia [2007] WASCA 100
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Mohareb v Kelso (No 2) [2018] NSWCA 246
MTI v SUL [No 2] [2012] WASCA 87
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Reynolds v Rayney [2023] WASCA 144
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SH v Chief Executive Officers of the Department of Communities [2019] WASCA 31
SZULC v Commissioner of Soil and Land Conservation [2019] WASCA 41

SEAWARD J:

The appellant, Steven Shilkin, seeks leave to appeal a decision of the State Administrative Tribunal (the Tribunal) made on 20 October 2021. The matter before the Tribunal concerned a decision made by the respondent, the Chief Executive Officer of the Department of Transport, to affirm an earlier decision to suspend Mr Shilkin's driver's licence for a period of seven months in 2018.
An appeal to this court from a decision of the Tribunal requires leave.
An appeal to this court from a decision of the Tribunal is also required to be commenced within 28 days of the decision of the Tribunal (or the date upon which written reasons are provided) unless the court grants an extension of time.
The Tribunal delivered oral reasons on 20 October 2021, and a copy of the transcript of those oral reasons was provided to Mr Shilkin on 1 November 2021. Accordingly, Mr Shilkin was required to lodge his appeal notice by 29 November 2021. Mr Shilkin filed his appeal notice on 24 April 2024, and therefore requires an extension of time.
Mr Shilkin represented himself both in the Tribunal and in this court.
I heard Mr Shilkin's application for both leave to appeal and an extension of time on 7 November 2024. For the reasons which follow, I do not grant Mr Shilkin leave to appeal or an extension of time in which to appeal.

Background facts

The facts underpinning the decisions of the respondent and the Tribunal span several years, and it is necessary to set out the background in some detail for the purposes of considering the applications. The summary below is a summary of the key background facts, including details of the various pieces of correspondence sent by the respondent to Mr Shilkin. It is necessary to observe that Mr Shilkin does not accept that all of the pieces of correspondence sent by the respondent are accurate and he makes submissions about the meaning of those documents. Mr Shilkin also refers to other communications, but these are not annexed to any affidavit evidence before the court. Therefore, this portion of these reasons details the facts as revealed by the affidavit evidence before the court, without reaching any conclusions on the issues in contention.
The respondent is the licensing authority for Western Australia and is responsible for granting and administering drivers' licences under the Road Traffic (Authorisation to Drive) Act 2008 (WA) (Authorisation to Drive Act) and the Road Traffic (Authorisation to Drive) Regulations 2014 (WA) (Authorisation to Drive Regulations).
Mr Shilkin is the holder of a Western Australian driver's licence, and has held a licence since 1970. Details of the statutory regime applicable to driver's licences is set out later in these reasons. In accordance with that statutory regime, as at January 2016 Mr Shilkin held a driver's licence with a 'HR' class authorisation (being a motor vehicle, other than a motor cycle or motor carrier, that has at least 3 axles and a GVM of more than 8 t, also described as 'commercial heavy rigid'). In accordance with the statutory regime,[1] that authorisation also entitled Mr Shilkin to drive the following classes of motor vehicles: 'MR' class (commercial medium rigid), 'LR' class (private light rigid); 'C' class (private motor car); and a moped.[2]
[1] Authorisation to Drive Regulations, reg 7, reg 8, sch 1 and sch 2.
[2] Authorisation to Drive Regulations, sch 2. The full descriptions of these vehicle types are contained in the Authorisation to Drive Regulations, sch 1.
In accordance with the requirement under reg 64 of the Authorisation to Drive Regulations, Mr Shilkin notified the respondent on 31 January 2016 that he had suffered a stroke.
By letter dated 16 February 2016, an officer of the Department of Transport (the Department) sent a notice to Mr Shilkin requesting that he obtain a medical assessment. That notice provided:[3]
Regulation 64 of the Road Traffic (Authorisation to Drive) Regulations 2014 requires the Chief Executive officer (CEO) be satisfied that the holder of a driver's licence remains capable of controlling the classes of motor vehicle for which they hold a licence.
In order to satisfy the CEO of your fitness to hold a driver's licence, please present the enclosed medical assessment to your health professional. If you hold a driver's licence authorising you to drive heavy vehicles (class MR and above), a driver's licence with an F or T extension, or a Driving Instructor's licence, you may be required to have this assessment completed by a specialist.
Your health professional will forward the completed medical assessment to us and we will use this information to assess your fitness to drive.
[3] Affidavit of Johannes Hendrik Pretorius sworn 20 August 2024 (Pretorius affidavit), JHP 2.
On 23 May 2016, the Department received a medical assessment certificate completed by Dr Jack Faigenbaum GP on 18 May 2016 in relation to Mr Shilkin.
By letter dated 30 May 2016, an officer of the Department sent a letter to Mr Shilkin concerning the medical assessment. The text of this letter is significant to Mr Shilkin's case, and it provides:[4]
[4] Pretorius affidavit, JHP 4.
Please note we have been unable to complete the assessment of your fitness to hold a driver's licence due to the following:
Information provided by your treating health professional, Dr Faigenbaum in a Medical Assessment Certificate dated 18 May 2016 states that you were assessed as meeting private vehicle medical standards only. However, since you hold authorisations HR and MR you are required to be assessed at commercial vehicle standards.
To enable the assessment to be completed you are required to obtain written confirmation from your treating health professional that either:
●You meet the National Guidelines for Assessing Fitness to Drive 2012 at commercial vehicle standards.
●You no longer meet the National Guidelines for Assessing Fitness to Drive 2012 at commercial vehicle standards.
To assist I have attached your Medical Assessment Certificate. Please note any amendments to the Medical Assessment Certificate must be signed by Dr Faigenbaum and emailed directly to [email protected].
Alternatively, should you no longer wish to hold authorisations HR and MR please complete and return the attached variation or surrender of driver's licence form.
Please be aware that should you fail to satisfy the CEO of your fitness to hold a commercial driver's licence by the 30 June 2016 the CEO may suspend your driver's licence authorisation/s HR and MR.
(emphasis in original)
On 12 August 2016, the Department received a copy of the medical assessment certificated completed by Dr Faigenbaum on 18 May 2016, with the reference 'private vehicle standards' crossed out and the reference to 'commercial vehicle standards' ticked.[5]
[5] Pretorius affidavit, JHP 5.
On 1 September 2016, an officer of the Department wrote to Mr Shilkin advising him of the results of the assessment of Mr Shilkin's fitness to drive:[6]
Following your recent medical assessment we are pleased to advise that you have been certified medically fit to hold a driver's licence with authorisations HR, MR, LR and C subject to the following conditions:
●To have a further medical assessment before 12 March 2018
●To take medication as prescribed by your practitioner
●Wear suitable visual aids whilst driving
[6] Pretorius affidavit, JHP 6.
The next relevant events took place in 2018. By letter dated 9 March 2018, an officer of the Department wrote to Mr Shilkin requesting a medical assessment be completed prior to 12 April 2018, and provided:[7]
[7] Pretorius affidavit, JHP 7.
You were previously passed fit to hold a driver's licence until 12 April 2018, this fitness to hold period is due to expire and you are required to provide an updated medical assessment prior to the expiry.
If your completed medical assessment is not received by the Department of Transport (DoT) prior to the expiry of your fitness to hold period the Chief Executive Officer (CEO) may suspend your driver's licence and you will no longer be authorised to drive. You should allow sufficient time to enable processing.
Please follow the steps below:
●complete and sign the Patient Questionnaire (page 2) of the Medical Assessment Instructions (M106A); and
●complete and sign the Applicant Details section (page 1) of the Medical Assessment Certificate (M107 A). Please ensure you circle the class/es of vehicle you want to continue driving; then
●take the completed forms to your treating health professional who will assess your fitness to drive. You may be required to have this assessment completed by a specialist. Please refer to 'Assessing Fitness to Drive' guidelines at
Your health professional will forward the medical assessment certificate to DoT, and once processed, you will be notified of the outcome. Please note, some health professionals have the functionality to complete the assessment via an Electronic Medical Assessment, you are encouraged to seek this option if available.
(emphasis in original)
On or about 12 April 2018, the Department received a medical assessment certificate from Dr Samuel Mansour GP. However, that medical assessment form was incomplete. Dr Mansour had written in handwriting on the form that he was seeking an extension of time for two weeks to enable the form to be completed once additional information was provided.[8]
[8] Pretorius affidavit, JHP 8.
On 24 May 2018, a delegate of the respondent wrote to Mr Shilkin informing him that his driver's licence would be suspended from 2 June 2018 because he had failed to satisfy the respondent of his fitness to drive by providing a medical assessment by the required date of 12 April 2018. The text of this letter is significant, and it provides:[9]
[9] Pretorius affidavit, JHP 9.
Notice of Suspension of Driver's Licence [redacted]
Regulation 41 of the Road Traffic (Authorisation to Drive) Regulations 2014, (the Regulations) enables the Chief Executive Officer (CEO) of the Department of Transport (DoT) to suspend or cancel a driver's licence if he is no longer satisfied that the holder meets the requirements to hold that driver's licence.
As delegate of the CEO I have carefully considered all the information before me, including the 'Assessing Fitness to Drive 2016' (AFTD) national medical standards for licensing and clinical management guidelines for determining a person's fitness to drive (an Austroads publication at and having done so, I have decided to suspend your driver's licence, which includes all authorisations and extensions that you currently hold.
This is notice to you that your driver's licence will be suspended ten days from the date of this notice. This means you are no longer authorised to drive from 2 June 2018 (inclusive of this date).
In reaching my decision I have considered the following:
●You were previously assessed as medically fit to drive for a period of 18 months and were required to complete a further medical assessment before 12 April 2018.
●A letter addressed to you dated 9 March 2018, advising you of the requirement to complete a medical assessment by 12 April 2018 to satisfy the CEO of DoT of your fitness to drive.
●You have failed to satisfy the CEO of your fitness to drive by providing a completed and satisfactory medical assessment.
To satisfy the CEO that you are medically fit to hold a driver's licence you are required to produce a completed and satisfactory medical assessment of your fitness to drive from your treating health professional. To assist you in this process we have enclosed a medical assessment form.
The letter also stated that the decision communicated by the letter was a reviewable decision and provided details of Mr Shilkin's right to request an internal review of the decision by the respondent, and also the right to apply to the Tribunal for a review of the decision of the respondent.
The letter was sent to a PO Box in Northam. This was the same address as used for the letter dated 9 March 2018. Mr Shilkin's case is that he never received the letter dated 24 May 2018. There is no dispute that Mr Shilkin did not seek an internal review, nor a review to the Tribunal of the decision communicated in the letter.
On 20 December 2018, Mr Shilkin was stopped by officers of the Western Australian Police whilst driving when his licence was suspended. Mr Shilkin was charged with one count of driving with no authority to drive contrary to s 49(1)(a) and s 49(3)(ca) of the Road Traffic Act 1974 (WA) (RTA). Mr Shilkin's case is that he was not aware that his licence had been suspended.
On 24 December 2018, the Department received a letter from Dr Mansour requesting that the suspension of Mr Shilkin's licence be lifted for six weeks:[10]
I, Dr Samuel Mansour am writing to request the Private Drivers License Suspension to be lifted for a maximum of 6 weeks for Mr Steven Shilkin.
The patient attended the surgery to have his medical done in April however did not provide us with all the details I require to sign his license.
Patient has stated that Dr Jack Faigenbaum was the original Doctor who completed his fitness to drive in 2016. The patient states that he is going to organise his drivers assessment fitness to be done with Dr Faigenbaum. The patient states that he will ensure this is done within the next 4 - 6 weeks.
Consideration in this matter would be greatly appreciated.
[10] Pretorius affidavit, JHP 11.
On the same day, that is 24 December 2018, an officer of the Department sent a letter to Mr Shilkin regarding the suspension of his driver's licence. The text of this letter is significant, and it provides:[11]
[11] Pretorius affidavit, JHP 12.
Following your recent medical assessment, we wish to advise that you are fit to hold a driver's licence with extension/authorisations LR and C subject to the following conditions:
•To have a further medical assessment before 4 February 2019
•Take medication/treatment as directed by health professional
•To wear suitable visual aids whilst driving
The decision to suspend your driver's licence extension/authorisations LR and C is now reversed.
You driver's licence with extension/authorisations HR and MR remains suspended until you produce a completed and satisfactory medical assessment of your fitness to drive, from your regular medical practitioner.
Please be aware that should you fail to satisfy the CEO of your fitness to control a motor vehicle, by the 4 February 2019 the CEO may suspend your driver's licence authorisations LR and C.
(emphasis in original)
On 3 January 2019, the Department received a medical assessment certificate completed by Dr Faigenbaum dated 30 December 2018. The assessment related only to Mr Shilkin's 'C' class authorisation.[12]
[12] Pretorius affidavit, JHP 13.
By letter dated 17 January 2019, an officer of the Department advised Mr Shilkin that the Department had varied his driver's licence to indicate that Mr Shilkin now only holds a 'C' class authorisation. The letter advised Mr Shilkin that this decision was a reviewable decision and set out his review rights. The letter also states that:[13]
Following your recent medical assessment, we are pleased to advise that you have been certified medically fit to hold a driver's licence with authorisation C subject to the following conditions:
•To have a further medical assessment before 12 March 2021.
•To take medication or undergo treatment as directed by your health professional.
•To wear suitable visual aids whilst driving.
[13] Pretorius affidavit, JHP 14.
On 5 March 2019, Mr Shilkin was convicted by the Northam Magistrates Court for the offence which occurred on 20 December 2018. Mr Shilkin did not attend the hearing and filed an endorsed plea of guilty. Mr Shilkin was fined $400 and disqualified from holding a licence for nine months, from 5 March 2019.[14]
[14] Certified Copy of History for Court - Criminal and Traffic of Mr Shilkin dated 19 August 2024.
On 13 March 2019, Mr Shilkin was stopped by police for driving whilst he was disqualified from driving. Mr Shilkin was charged with driving whilst his driver's licence was under a court ordered disqualification contrary to s 49(1)(a) and s 49(3)(c) of the RTA. Mr Shilkin's case is that he had not received the notification from the court as to his disqualification, and in any event he was only expecting to be fined.
On 1 May 2019, Mr Shilkin was granted an extraordinary driver's licence, expiring on 4 December 2019.
On 29 August 2019, the Department received a letter from Mr Shilkin in relation to the handling of his driver's licence by the Department. The letter outlines a number of complaints regarding the events which occurred. Relevant for present purposes are the following:
(a)Mr Shilkin maintains that the letter from the Department dated 30 May 2016 reinstated Mr Shilkin's 'C' class licence authorisation unconditionally, and Mr Shilkin was only required to obtain a further medical assessment for his 'HR' and 'MR' authorisations;
(b)Mr Shilkin elected to forgo holding his 'HR' and 'MR' licences after having a medical assessment in 2018 (submitted by Dr Mansour on 13 April 2018);
(c)the Department mistakenly cancelled all Mr Shilkin's licences on 2 June 2018, as his 'C' class licence ought not to have been cancelled;
(d)Mr Shilkin never received the letter dated 24 May 2018 advising him of the cancellation of his licence. Mr Shilkin was shocked when stopped by police on 20 December 2018 as he had no knowledge his licence had been cancelled;
(e)Mr Shilkin requested a letter from the Department advising that there has been 'an error or at least a mishandling of my situation' by the Department for use at a trial in the Northam Magistrates Court on 24 September 2019; and
(f)Mr Shilkin attached a copy of a submission he was proposing to make to the Northam Magistrates Court at his trial on 24 September 2019.

By letter dated 20 September 2019, a delegate of the respondent responded to Mr Shilkin's letter dated 29 August 2019.[15] Relevantly, the letter states that the delegate did not consider Mr Shilkin's letter to be a request for an internal review of the decision made on 24 May 2018 as the letter was sent outside the 28 day internal review period. Nonetheless, the delegate went on to state that he had reviewed Mr Shilkin's letter and records; that he agrees with the decision to suspend Mr Shilkin's driver's licence from 2 June 2018; and that he had not identified any administrative errors in dealing with Mr Shilkin's licence. The letter also states that:
Whilst I can appreciate you feel dissatisfied in the loss of your privilege to drive in 2018, I am unable to retrospectively approve your driving outside the Driver Licensing Scheme.
…
Please be advised this information is not a reviewable decision.
[15] Pretorius affidavit, JHP 18.
By application dated 11 November 2019, Mr Shilkin filed an application in the Tribunal for a review of the respondent's decision dated 20 September 2019.
A preliminary issue was raised by the respondent as to whether there was a reviewable decision for the Tribunal to review; if so whether Mr Shilkin was out of time; and if so whether an extension of time to review should be granted by the Tribunal.
The preliminary issue was determined on the papers, with reasons delivered orally on 11 December 2020. The Tribunal concluded that:[16]
(a)the respondent did conduct an internal review in response to Mr Shilkin's letter dated 29 August 2019;[17]
(b)the decision dated 20 September 2019 constitutes a reviewable decision;
(c)Mr Shilkin's application to review the decision dated 20 September 2019 was within time and would be listed before the tribunal to consider the merits; and
(d)to the extent Mr Shilkin was seeking to review the decision of the delegate dated 24 May 2018, such an application was out of time and an extension of time was refused. Mr Shilkin's application to review the 24 May 2018 decision was accordingly dismissed.
[16] Tribunal orders dated 11 December 2020.
[17] ts Tribunal 11 December 2020, 15.
Mr Shilkin's application to review the decision made on 20 September 2019 was ultimately heard in the Tribunal on 6 October 2021. The Tribunal delivered oral reasons for that decision on 20 October 2021, and the transcript was provided on 1 November 2021. The Tribunal affirmed the decision of the respondent made on 20 September 2019.[18]
[18] The transcript refers to the decision being made on 20 September 2019, as does the application for review. The orders of the Tribunal made on 20 October 2021 refer to the decision being made on 1 September 2019. There does not appear to be any dispute that the decision in question is the decision conveyed by letter dated 20 September 2019.
By way of overview, the Tribunal rejected:
(a)Mr Shilkin's contention that his 'C' class authorisation was not the subject of a condition that he obtain a medical assessment before 12 March 2018. The Tribunal found that the letter dated 1 September 2016 did impose such a condition;[19]
(b)Mr Shilkin's contention that when the history of the matter, especially the letter from the respondent dated 30 May 2016, was reviewed it revealed that the inclusion of a reference to his 'C' class authorisation in the letter dated 1 September 2016 was a mistake;[20]
(c)Mr Shilkin's contention that it was unreasonable to suspend Mr Shilkin's 'C' class authorisation from 2 June 2018 because Mr Shilkin did not receive the letter dated 24 May 2018 advising him of the suspension;[21] and
(d)Mr Shilkin's alternative submission that the respondent should not have imposed the medical assessment condition on his 'C' class authorisation on 1 September 2016.[22]
[19] ts Tribunal 20 October 2021, 4 ‑ 5.
[20] ts Tribunal 20 October 2021, 5 - 10.
[21] ts Tribunal 20 October 2021, 10 - 12.
[22] ts Tribunal 20 October 2021, 12 - 15.
On 1 November 2021, Mr Shilkin was convicted of the offence of driving whilst disqualified on 13 March 2019. The transcript records that Mr Shilkin did not attend that hearing and the magistrate dealt with the matter in Mr Shilkin's absence. Mr Shilkin was fined $400 and was disqualified from holding a licence for nine months cumulative from 1 November 2021. The transcript records that this charge had been adjourned on numerous occasions waiting for the decision of the Tribunal.[23]
[23] ts Northam Magistrates Court 1 November 2021.
From Mr Shilkin's criminal and traffic record,[24] and the transcript from the appearance on 1 November 2021, it appears that at some point Mr Shilkin applied to have his conviction in relation to the offence which occurred on 20 December 2018 set aside. The record and the transcript record that this charge was re‑heard on 1 November 2021 (at the same time as the second offence), and Mr Shilkin was convicted and fined $400 and disqualified from holding a licence for nine months cumulative, from 1 November 2021. The record also states that this sentence was then corrected on 2 November 2022, with the disqualification to commence from 5 March 2019 (and not 1 November 2021).[25]
[24] Pretorius affidavit, JHP 15.
[25] Pretorius affidavit, JHP 15.
Since 1 August 2022, Mr Shilkin has held a valid driver's licence with a 'C' class authorisation.

Legal principles - appeals from the Tribunal

Section 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) governs appeals from decisions of the Tribunal.
An appeal can only be brought 'on a question of law' and leave of the court is required.[26] In the present case, as the decision of the Tribunal was made by a non‑judicial member, the appeal lies to the general division of this court.[27]
[26] SAT Act, s 105(1) and s 105(2).
[27] SAT Act, s 105(3).
Mr Shilkin submitted that s 105(13) of the SAT Act applied, with the consequence that as the decision of the respondent had the effect of depriving Mr Shilkin of his capacity to lawfully pursue a vocation, his appeal could be brought on any ground, whether it involves a question of law, a question of fact or question of mixed law and fact. Contrary to Mr Shilkin's submission, s 105(13) of the SAT Act only applies if the Tribunal's decision is made under a 'relevant Act' or in a proceeding for the review of a decision made under a 'relevant Act'. The term 'relevant Act' is defined in s 105(14) of the SAT Act and, in accordance with that definition, the decision of the Tribunal was not made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act. Therefore, s 105(13) of the SAT Act does not apply.
The concept of an appeal 'on a question of law' was explained by the Court of Appeal in Paridis v Settlement Agents Supervisory Board as follows:[28]
An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2).
[28] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53].
The appeal is in the nature of judicial review proceedings, albeit that the question of law extends to jurisdictional and non‑jurisdictional errors of law.[29] The error of law must also be material.[30]
[29] Chang v Legal Professional Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263 [232].
[30] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 [129] ‑ [130].
The power to grant leave to appeal is conferred in general terms, and should be granted if, in all the circumstances, it is in the interests of justice to do so. Factors which may be relevant to ascertaining the interests of justice include whether a question of law can be articulated; whether the Tribunal's decision is attended with sufficient doubt; the importance of the question of law; and whether a substantial injustice would be imposed if the Tribunal's decision remains uncorrected.[31]
[31] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [17]; SZULC v Commissioner of Soil and Land Conservation [2019] WASCA 41 [41] and the authorities cited therein.
Leave may be refused where, even if the appellant might establish the errors which it asserts, the decision of the court would have had no impact upon the rights and obligations of the parties, and there was no prospect that allowing the error to go uncorrected would impose substantial injustice.[32]
[32] City of Swan v LWP Property Group Pty Ltd [2013] WASCA 90 [24] ‑ [25]; Beba Enterprises Pty Ltd v Elle Pty Ltd [2014] WASC 141 [29] and the authorities cited therein.
Section 105(5) of the SAT Act provides that an application for leave to appeal must be made within the period of 28 days after the day on which the Tribunal's reasons are given, or if no written reasons are given, 28 days after the day on which requested written reasons are given to a party.
In the present case, the Tribunal delivered oral reasons on 20 October 2021, and the transcript was provided on 1 November 2021. Mr Shilkin was therefore required to file his application for leave to appeal by 29 November 2021, but did not do so until 24 April 2024, being some two years and five months out of time.
Section 105(7) of the SAT Act provides that the court may extend the time fixed for filing an application for leave to appeal. The Court of Appeal outlined the test for granting an extension of time in the decision of Engwirda v Owners of Queens Riverside Strata Plan 55728 as follows:[33]
The power to grant an extension of time is a broad one to be exercised in the interests of justice having regard to all the circumstances of the case. Those circumstances are often, but not exclusively, organised around the factors of:
1. the length of the delay;
2.the reasons for the delay;
3.the prospects of the applicant succeeding in the appeal; and
4.the extent of any prejudice to the respondent.
[33] Engwirda v Owners of Queens Riverside Strata Plan 55728 [2019] WASCA 190 [97].

Legal principles - statutory framework

The decisions made by the respondent were made under the Authorisation to Drive Act and the Authorisation to Drive Regulations which together provide for a driver licensing scheme under which the Chief Executive Officer (amongst other matters) grants people licences to drive motor vehicles on roads.[34]
[34] Authorisation to Drive Act, s 4.
Regulation 7 provides that the CEO may grant a person a licence authorising the person to drive a motor vehicle on a road. Schedule 1 identifies the classes of motor vehicles to which the regulations refer.
Regulation 8(1) provides that the extent to which a driver's licence authorises the licence holder to drive on a road depends on the class or classes of authorisation given in the licence. Those classes of authorisation are contained in sch 2 to the Authorisation to Drive Regulations. A driver's licence giving a particular class of authorisation authorises the licence holder to drive on a road:[35]
(a)a motor vehicle the class of which has the same designation as the class of authorisation; or
(b) a motor vehicle of any other class shown in schedule 2 column 2 for that class of authorisation.
[35] Authorisation to Drive Regulations, reg 8(3).
The scheme established under the Authorisation to Drive Act and the Authorisation to Drive Regulations provides for the granting of one driver's licence, but with the capacity for a person to be authorised by that single licence to drive more than one class of motor vehicle. A separate driver's licence is not issued for each authorised class of motor vehicle.
Relevantly for present purposes, prior to January 2016, Mr Shilkin held a driver's licence with a 'HR' class authorisation. In accordance with reg 7, reg 8, sch 1 and sch 2 of the Authorisation to Drive Regulations, a 'HR' class authorisation entitled Mr Shilkin to not only drive a motor vehicle, other than a motor cycle or motor carrier, that has at least 3 axles and a GVM of more than 8 t, but also to drive the following classes of motor vehicles: 'MR' (commercial medium rigid), 'LR' class (private light rigid); 'C' class (private motor car); or a moped.[36]
[36] The full descriptions of these vehicle types are contained in the Authorisation to Drive Regulations, sch 1.
Regulation 24 provides that the CEO may grant an applicant a licence if satisfied of the matters referred to in reg 24(1), which include that the applicant can demonstrate the ability referred to in reg 16 to safely drive motor vehicles as the licence would authorise.[37] Under reg 25, the CEO may refuse to grant a driver's licence to a person if the CEO has reason to believe that the person suffers from a mental or physical condition that is likely to, or treatment for which is likely to, impair the person's ability to control a motor vehicle.[38] Regulation 33 provides that the CEO may grant the licence on conditions.
[37] Authorisation to Drive Regulations, reg 24(1)(b).
[38] Authorisation to Drive Regulations, reg 25(b).
Regulation 64(3) provides that if a person who holds a driver's licence becomes affected by any driving impairment the person must, as soon as practicable, inform the CEO in writing of the impairment. The term 'driving impairment of the person' is defined as:[39]
any permanent or long-term mental or physical condition (which may include a dependence on drugs or alcohol) that is likely to, or treatment for which is likely to, impair the person's ability to control a motor vehicle either —
(a)in all circumstances; or
(b)except under certain conditions or subject to certain limitations; or
(c)unless measures are taken to overcome the impairment.
[39] Authorisation to Drive Regulations, reg 64(1).
Regulation 41 is concerned with the CEO's power to suspend or cancel a driver's licence. Regulation 41(1) provides that the CEO may, by notice in writing given to the licence holder:
(a)suspend a person's driver's licence if the CEO has reason to suspect that there are grounds on which the CEO could, if then considering whether to grant the driver's licence, refuse under regulation 25 to grant it; or
(b) suspend or cancel a person's driver's licence if —
(i)the CEO has reason to believe that there are grounds on which the CEO could, if then considering whether to grant the driver's licence, refuse under regulation 25 to grant it; or
(ii)the CEO is no longer satisfied of each of the matters referred to in regulation 24.
In order to decide whether there is a basis for suspending or cancelling a person's driver's licence under reg 41(1) the CEO may, by notice in writing given to the licence holder, require the person to satisfy the CEO within the period specified in the notice, being not less than 14 days, as to any matter relevant to that decision.[40] If a person fails to satisfy the CEO within that period or within any further period that the CEO allows, reg 41(3) provides that the CEO may:
(a)cancel the person's driver's licence; or
(b)impose or vary any condition on the licence; or
(c)suspend the licence until the CEO is satisfied as to the matter.
[40] Authorisation to Drive Regulations, reg 41(2).
Regulation 41(4) deals with cancellation or suspension of a driver's licence and provides:
The CEO may, by notice in writing given to the licence holder, cancel or suspend a person's driver's licence if —
(a)the licence was granted contrary to a road law; or
(b)the person obtained the grant of the licence on the basis of incorrect or misleading information, whether or not fraud or misrepresentation was involved, by means of a form of payment that was subsequently dishonoured, or in a manner contrary to this Act; or
(c)the holder of the licence has failed to comply with any condition imposed on the licence.
A decision of the respondent to suspend or cancel a driver's licence is a reviewable decision for the purposes of the Authorisation to Drive Regulations.[41] A decision to vary a driver's licence, whether by imposing or varying a condition, is also a reviewable decision.[42] As soon as practicable after making a reviewable decision, the CEO must give the person affected by the decision notice in writing of the decision, including the reasons for the decision and outlining the person's review rights, both internally and to the Tribunal.[43] Regulation 72 then sets out the process by which a person may seek an internal reconsideration of a reviewable decision. Regulation 72(4) provides that within 28 days of receiving a request for a reconsideration, the CEO must reconsider the reviewable decision and:
(a)confirm the decision; or
(b)amend the decision; or
(c)set aside the decision and substitute a new decision.
[41] Authorisation to Drive Regulations, reg 70(f).
[42] Authorisation to Drive Regulations, reg 70(d).
[43] Authorisation to Drive Regulations, reg 71.
The CEO must, in writing, inform the person of the result of the reconsideration, including providing reasons for the result and outlining the person's review rights, including to the Tribunal.[44]
[44] Authorisation to Drive Regulations, reg 72(5).
The reference to a notice being 'given' to the licence holder is not defined in the Authorisation to Drive Act or the Authorisation to Drive Regulations (save for one presently irrelevant instance[45]). Therefore, in accordance with s 76(b) and s 75 of the Interpretation Act 1984 (WA), the documents referred to above can be 'given' to the licence holder by pre‑paid post to the last known address of the licence holder.
[45] Authorisation to Drive Act, s 59 and Authorisation to Drive Regulations, reg 69.

Should an extension of time and leave to appeal be granted?

In all the circumstances, I am not satisfied that it is in the interests of justice for Mr Shilkin to be granted an extension of time within which to appeal or to grant Mr Shilkin leave to appeal.
I have reached this conclusion having considered the following factors and for the following reasons.

Length and explanation for delay

Mr Shilkin filed his application for leave to appeal two years and five months out of time. This delay is significant.
Mr Shilkin did not file any affidavit evidence providing any explanation for this lengthy delay. As Mr Shilkin is unrepresented, at the hearing of the leave application I asked Mr Shilkin whether he did wish to give an explanation as to the reasons for the delay. Mr Shilkin indicated that he did, and so he was affirmed and gave oral evidence.
Mr Shilkin's explanation for the delay is that in November 2021, he received notification in the mail from the Magistrates Court of his sentence for his offence of driving whilst his licence was disqualified (being the second offence). As Mr Shilkin does not have street delivery for his post, he received the notification in his post office box in Northam. After receiving the court documentation stating that he had been disqualified from driving, he went to the Northam Police Station to fill out the required paperwork to have the decision set aside. Mr Shilkin then drove in his car from the police station to his home, which is approximately 10 kilometres out of town. Mr Shilkin explained that he did this because he lived out of town and did not want to spend the $25 on an Uber.
Mr Shilkin explained that approximately 15 minutes after he got home, two police officers came to his door and he was charged with driving under suspension. This is the third charge associated with this course of events. Mr Shilkin's evidence is that this third charge is still proceeding through the courts, with its next appearance on 6 December 2024.

On the basis of Mr Shilkin's evidence, it seems that this third charge has been adjourned at least four times and has also been transferred to the Perth Magistrates Court. Mr Shilkin is represented in that matter.
Mr Shilkin explained that he was hoping that 'common sense would come to bear' and that the police would drop this third charge. However, in April 2024, just before he filed his appeal notice, his lawyer indicated to him that it seemed unlikely that the police were going to drop the third charge and that it would be listed for trial. As a result, Mr Shilkin thought that his 'only option now is to make an appeal in the Supreme Court against the SAT decision'. Mr Shilkin's evidence is that the delay was not due to 'slackness' but rather an attempt to deal with the third charge, as a further inability to drive will limit his day‑to‑day life, including visiting his grandchildren.
I am not satisfied that Mr Shilkin's explanation provides a reason to grant Mr Shilkin an extension of time. Mr Shilkin was aware of the third charge in November 2021 and the impact that being without a licence may have on his life. He has had more than sufficient time to file his application for leave to appeal. Mr Shilkin did not give evidence that he did not know he could appeal or how to appeal. Mr Shilkin has engaged lawyers in the past and could have done so after the decision of the Tribunal. Rather, the position is that Mr Shilkin made a decision not to appeal, and to instead engage in negotiations with the police prosecutors for over two years.
I do not consider this explanation provides a sufficient reason to grant an extension of time.

Prejudice to the respondent

The respondent accepts that he will not suffer any specific prejudice if an extension of time is granted.
However, I consider that the respondent will suffer general prejudice in the form of the need to incur costs and time in responding to an appeal which has already taken some time to be heard, and is now being continued well outside of the 28 day period.

Strength of Mr Shilkin's case

I am also of the view that Mr Shilkin's case on the question of law identified as forming the basis of his appeal does not have reasonable prospects of success, and the decision of the Tribunal is not attended with sufficient doubt.

Apprehended bias

The question of law identified in Mr Shilkin's appeal notice is that Mr Shilkin was denied natural justice through apprehended bias. The legal principles regarding when a judge must disqualify themselves on the basis of apprehended basis were recently summarised by the Court of Appeal in the decision of Reynolds v Rayney.[46] It is not necessary to set out the relevant paragraphs in full, however the key matters relevant to the present appeal are:
(a)The test for the disqualification of a judge on the ground of apprehended bias is whether or not a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. This test is sometimes referred to as the 'double might' test. The test is not demanding and reflects the importance that justice must not only be done but also manifestly be seen to be done. The test for apprehended bias is objective.
(b)Application of the test involves two steps: first an identification of what might lead the judicial officer to decide a case other than on its legal and factual merits; and second, there must be a 'logical connection' established between that matter and the 'feared deviation from the course of deciding the case on its merits'. Some authorities also include a third step, being consideration of the reasonableness of the apprehension of the deviation being caused by the factor identified in step one.[47]
[46] Reynolds v Rayney [2023] WASCA 144 [28] - [34] and the authorities cited therein.
[47] See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [59] and the authorities cited therein.
Reynolds v Rayney (and the other authorities referred to) are concerned with situations in which the decision maker is a judge. However, as the plurality observed in Isbester v Knox City Council,[48] the governing principle as articulated in Ebner v Official Trustee in Bankruptcy,[49] has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision makers, albeit the test must recognise the differences between decision makers and the various decision‑making processes. I have considered the application of the above principles in the context of the statutory framework establishing the Tribunal and the task it was required to perform. Significantly, I consider that the requirement for impartiality in the performance of the decision‑making process applies equally to the non-judicial members of the Tribunal.
[48] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [22] ‑ [23] and the authorities cited therein.
[49] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
The basis of Mr Shilkin's case that there was apprehended bias on the part of the member can be ascertained from a review of the appeal notice and the affidavit evidence filed in support. The factors identified by Mr Shilkin in these documents are:
(a)that the member and the respondent's lawyer discussed the case in his absence and the preliminary issue was not decided on the papers;[50]
(b)bias being displayed by the member when refusing to allow Mr Shilkin to speak and for telling Mr Shilkin 'I am not interested in your evidence sit down Mr Shilkin';[51]
(c)the differences between the exchanges between the member and the respondent's lawyer and the member and Mr Shilkin. Mr Shilkin submits that the member did not challenge any propositions put by the respondent's lawyer, but did challenge propositions put by Mr Shilkin.[52] Further, the member's demeanour with the respondent's lawyer was friendly, but was aggressive with Mr Shilkin;[53] and
(d)facts being misunderstood, wrongly interpreted or misstated by the member.[54]
[50] Appeal notice [2] ‑ [3]; Affidavit of Mr Shilkin sworn 25 April 2024 (Shilkin affidavit) [20].
[51] Appeal notice [6]; Shilkin affidavit [14].
[52] Shilkin affidavit [15].
[53] Appeal notice [8].
[54] Appeal notice [6]; Shilkin affidavit [9].
I do not consider Mr Shilkin's case as articulated has reasonable prospects of success for the following reasons.
First, there is no evidence before the court that the member and the lawyer for the respondent discussed the case in Mr Shilkin's absence. There is nothing in the transcripts that suggests that this has occurred. On 11 December 2020, when the member delivered her oral reasons for her decision in relation to the preliminary issue, a representative from the respondent appeared by way of telephone.[55] However, the transcript makes it clear that the preliminary issue was decided on the papers,[56] and there is no interaction between the member and the respondent's lawyer other than the taking of an appearance.
[55] ts 11 December 2020, 2.
[56] ts 11 December 2020, 2
Secondly, there is no exchange in the transcript of the hearing on 6 October 2021 in which the member told Mr Shilkin 'I am not interested in your evidence sit down Mr Shilkin'. Mr Shilkin was not able to identify any such exchange, and instead pointed to other exchanges which he submitted revealed that the member did not allow Mr Shilkin to speak.[57] There are some exchanges between the member and Mr Shilkin where both are speaking over the other, and/or the member asks Mr Shilkin to stop talking. At one point the member says:[58]
SHILKIN, MR: Can I just finish?
OWEN-CONWAY MS: No.
SHILKIN, MR: No.
OWEN-CONWAY MS: I don't think you've understood the reasons for the preliminary issue.
[57] See for example ts 6 October 2021, 23 ‑ 25.
[58] ts 6 October 2021, 24.
It will often be necessary with a self‑represented litigant for a judge to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays or disruptions.[59] It can be seen from the transcript, fairly read as a whole, that at times the member was attempting to draw to Mr Shilkin's attention the effect of the ruling on the preliminary question of law, the matters that Mr Shilkin needed to address, or matters which the member would find of assistance to her consideration of the review. At times, this resulted in the member and Mr Shilkin speaking over each other. On occasions the exchanges between Mr Shilkin and the learned member can be described as robust.[60] However, after the member had clarified the issues and the matters relevant to the decision, the member then provided Mr Shilkin with the opportunity to make his submissions.[61]
[59] Michael v The State of Western Australia [2007] WASCA 100 [65] (Steytler P, McLure JA & Miller AJA agreeing); De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [71]; Donaldson v Nolan [No 2] [2015] WASC 158 [19] (Beech J).
[60] ts 6 October 2021, 10 ‑ 11 and 45.
[61] ts 6 October 2021, 4, 23, 25, 26, 30, 45, 74 and 76.
Thirdly, in the reasons for decision delivered on 21 October 2021, the member went through each of the submissions raised by Mr Shilkin.
Fourthly, it is not possible to judge the physical demeanour of two persons over a written transcript. The transcript also reveals that the member questioned or put forward tentative or alternative propositions for Mr Shilkin to consider and respond to during his oral submissions. However, this is consistent with the member providing Mr Shilkin with an opportunity to respond to the matters which the member considered may be relevant to her determination. It is necessary to remember that Mr Shilkin was unrepresented during the hearing, whilst the respondent was represented by a lawyer. In giving Mr Shilkin this opportunity, the member was according Mr Shilkin procedural fairness.[62] I also do not consider that any of the exchanges display prejudgment on the part of the member.
[62] See Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [13]; SH v Chief Executive Officers of the Department of Communities [2019] WASCA 31 [92].
Finally, at its heart, Mr Shilkin's real complaint is that the learned member did not accept Mr Shilkin's submissions as to the correct characterisation of the events and correspondence from 2016, and in particular did not accept Mr Shilkin's submission that to the extent the 1 September 2016 letter imposed a condition on Mr Shilkin's 'C' class authorisation that he obtain a medical assessment before 12 March 2018, that was a mistake on the part of the Department. Mr Shilkin's submission is in essence that in making this decision, the member has misunderstood the facts, or wrongly interpreted the facts or misstated the facts. Merely because a court has decided matters against a party and that party feels aggrieved does not provide a basis for a claim of reasonable apprehension of bias.[63] The making of error, including appealable error, does not demonstrate prejudgment.[64] The fact that a judge has ultimately rejected an appellant's case does not and cannot (on its own) demonstrate actual or apprehended bias.[65]
[63] MTI v SUL [No 2] [2012] WASCA 87 [14]; De Alwis v The State of Western Australia [No 4] [2015] WASCA 43 [8]; Donaldson v Nolan [No 2] [2015] WASC 158 [21].
[64] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]; Donaldson v Nolan [No 2] [2015] WASC 158 [21].
[65] Mohareb v Kelso (No 2) [2018] NSWCA 246 [15]; Feldman v Nationwide News Pty Ltd [2020] NSWCA 260 [43] (Bell P, Macfarlan & Payne JJA agreeing); SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 [38].
Therefore, I am of the view that Mr Shilkin's case that the conduct of the member might lead a fair‑minded lay observer to reasonably apprehend that the member might not bring an impartial and unprejudiced mind to the resolution of Mr Shilkin's application does not have reasonable prospects of success.

Unreasonableness

Mr Shilkin was unrepresented at the hearing before this court. I have therefore considered Mr Shilkin's filed documents with a degree of flexibility.
Whilst the appeal notice identifies only one question of law, being that of whether the decision of the member was attended by apprehended bias, given the content of Mr Shilkin's submissions, I have also considered whether the matters raised by Mr Shilkin in his written and oral submissions raise a question of law as to whether the decision of the Tribunal was unreasonable in the sense of outcome unreasonableness as that concept is explained in the decision of Minister for Immigration and Citizenship v Li,[66] and if so the strength of that case.
[66] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.
In Minister for Immigration and Citizenship v Li, the High Court affirmed the principle that the legislature is taken to intend a statutorily conferred discretionary power will be exercised reasonably. Thus, the discretion is conferred on the implied condition that the duty must be performed within the bounds of reasonableness. There are two types of legal unreasonableness: process unreasonableness and outcome unreasonableness. Outcome unreasonableness arises in circumstances where, without necessarily identifying another underlying jurisdictional error, the outcome is seen by the supervising court as lacking an evident and intelligible justification.[67]
[67] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [63], [88] - [89] and the authorities cited therein.
Even if it were to be assumed that Mr Shilkin was also raising a question of law as to whether the decision of the Tribunal was unreasonable, I do not consider that any such case has reasonable prospects of success or that the decision of the Tribunal was attended with sufficient doubt.
The reasons of the member delivered on 21 October 2021 detail the various submissions made by Mr Shilkin and provide the member's findings and conclusions in relation to them. It cannot be said that those reasons lack an evident and intelligible justification.
Mr Shilkin's case that the decision of the Tribunal is unreasonable is based on a number of flawed propositions.
First, Mr Shilkin's case is based on the proposition that the member has misunderstood the plain language of the letter dated 30 May 2016. Mr Shilkin's case is that given the content of this letter, it should be clear to all persons reading it that the letter states that Mr Shilkin was medically fit to hold a 'C' class authorisation for his driver's licence and there was no intention to impose any conditions on this authorisation.
The member's findings in relation to the meaning of the letter dated 30 May 2016 are consistent with the text of the letter. The letter commences by stating that the Department has been unable to complete their assessment of Mr Shilkin's fitness to hold a driver's licence. The letter goes on to explain what must be done by Mr Shilkin to enable the assessment to be completed. The letter concludes by noting that if Mr Shilkin should fail to satisfy the respondent of his fitness to hold a commercial driver's licence by 30 June 2016, the respondent may suspend his driver's licence authorisations for 'HR' and 'MR' classes. This is understandable given the medical assessment provided to date only assessed Mr Shilkin in accordance with the standards applying to private licence authorisations. Contrary to Mr Shilkin's submissions, the letter says nothing about the 'C' class authorisation and nothing about the respondent's final decision in relation to Mr Shilkin's fitness to drive assessment. Rather, the letter provides Mr Shilkin with an opportunity to provide further information, if he wishes, before that final decision is made. That final decision is then communicated in the letter dated 1 September 2016, being that Mr Shilkin has been certified medically fit to hold a driver's licence with authorisations HR, MR, LR and C subject to the listed conditions.
Secondly, Mr Shilkin's case is based on the proposition that, given the history of the matter (including Mr Shilkin's interpretation of the 30 May 2016 letter) the decision of the respondent in the letter dated 1 September 2016 to impose a condition on Mr Shilkin's driver's licence that he obtain a medical assessment before 12 March 2018 was a mistake insofar as it applied to his 'C' class authorisation. For the reasons I have outlined above, to the extent this proposition is based on Mr Shilkin's interpretation of the 30 May 2016 letter, Mr Shilkin's case is misconceived. Further, Mr Shilkin has not at any stage sought a review of the decision dated 1 September 2016 to impose the conditions on his driver's licence.
Thirdly, Mr Shilkin's case is based on the proposition that the letter dated 24 May 2018 advising him that his licence would be suspended, was required to be served on him personally. Mr Shilkin relies on s 59 of the Authorisation to Drive Act in support of this proposition. There are no provisions of the Authorisation to Drive Act or Authorisation to Drive Regulations which detail how a decision of the respondent suspending a person's driver's licence is to be served on or given to a person. Contrary to Mr Shilkin's submissions, s 59 of the Authorisation to Drive Act applies to only a limited category of documents and does not include a decision to suspend a person's driver's licence. Absent any provision in the statutory regime, s 76 and s 75 of the Interpretation Act 1984 (WA) address the question of the service of the letter. Service by way of post to Mr Shilkin's ordinary address is sufficient, and this was what was done. Mr Shilkin's submission that he did not receive the letter was considered and not accepted by the member.
Fourthly, Mr Shilkin places significance on the decision of the respondent dated 24 December 2018. Mr Shilkin submits that by this letter, the respondent reversed the decision to suspend his licence with a 'C' class authorisation and that this reversal took place from 2 June 2018. The Tribunal rejected this submission and concluded that the effect of the letter dated 24 December 2018 was that Mr Shilkin's suspension of his driver's licence was lifted in relation to his 'C' class authorisation only from 24 December 2018 onwards (that is prospectively and not retrospectively). I have considered this issue further below, and for those reasons do not consider the decision lacks an evident and intelligible justification.

Utility of the appeal

Finally, even if Mr Shilkin was able to establish an arguable case on a question of law, I do not consider that the appeal has any utility.
Mr Shilkin's explanation for bringing the appeal is directed to the effect that setting aside the CEO's decision will have on the third driving charge that is still to be determined by the Magistrates Court, and also his driving record generally.
Mr Shilkin submits that if the decision made on 20 September 2019 is reversed or set aside, then it will take effect from the date of the original decision to suspend his licence, being 24 May 2018. Mr Shilkin's submission is that this would mean that he could not be convicted of the third driving charge. Mr Shilkin also submits that this would result in his driving convictions for the first two offences being overturned.
Leaving aside for now the issue that neither this court in this appeal, nor the Tribunal, is able to make any decision to set aside the driving convictions for the first two offences (that would involve a separate appeal under the Criminal Appeals Act 2005 (WA) for which Mr Shilkin would require leave to appeal and an extension of time), the respondent submits that Mr Shilkin's submission as to the effect of any successful challenge in the Tribunal is legally incorrect.

The respondent submits that any variation or setting aside of the decision of the respondent dated 20 September 2019 would only take effect prospectively from that date, which is after Mr Shilkin had committed the acts constituting the first two driving offences. The respondent therefore submits that, regardless of the merits of Mr Shilkin's case, no practical result could flow from the appeal.
I accept the respondent's submission.
The questions of when a reconsideration by the respondent takes effect; when a decision of the Tribunal takes effect; and when a decision of this court in an appeal from a decision of the Tribunal takes effect are all questions of statutory interpretation.
Starting with the Tribunal, s 29 of the SAT Act details the powers of the Tribunal when exercising its review jurisdiction. Section 29(1) provides that the Tribunal has functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
When considering an application for review, the Tribunal may affirm the decision that is being reviewed; or vary the decision that is being reviewed; or set aside the decision and either remit the matter to the decision maker or substitute its own decision.[68]
[68] SAT Act, s 29(3).
As to the timing of when any decision of the Tribunal takes effect, s 29(5) of the SAT Act provides:
The decision-maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision-maker's decision —
(a) is to be regarded as, and given effect as, a decision of the decision-maker; and
(b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
That is, the decision of the Tribunal takes effect from the time when the decision of the respondent would have, or would have had, effect.
This court, when hearing an appeal from a decision of a Tribunal may affirm, vary, or set aside the decision of the Tribunal; or make any decision that the Tribunal could have made in the proceeding; or remit the matter to the Tribunal for reconsideration.[69] That is, the scope of this court's powers corresponds to those of the Tribunal. The difference between this court and the Tribunal in exercising these powers is that this court only considers appeals on a question of law, whilst the purpose of a review in the Tribunal is to produce the correct and preferable decision at the time of the review.[70]
[69] SAT Act, s 105(9).
[70] SAT Act, s 27 (2).
The key question is then the nature and scope of the respondent's powers upon a reconsideration under the statutory regime. The Tribunal held (in the preliminary issue decision) that the respondent's letter dated 20 September 2019 was a reconsideration decision made pursuant to reg 72 of the Authorisation to Drive Regulations. That decision is not challenged for the purposes of the hearing before me. The Tribunal also held that only the application for review of the reconsideration decision dated 20 September 2019 was within time. The Tribunal did not grant Mr Shilkin an extension of time within which to seek review of the decision to suspend his licence dated 24 May 2018.
When reconsidering a reviewable decision, the respondent only has the powers contained in the relevant statutory regime. Regulation 72(4) provides that within 28 days of receiving a request for a reconsideration, the CEO must reconsider the reviewable decision and the respondent then has the following options:
(a)confirm the decision; or
(b)amend the decision; or
(c)set aside the decision and substitute a new decision.
The reviewable decision which the respondent was being asked to reconsider was the decision to suspend Mr Shilkin's driver's licence which was made on 24 May 2018. The suspension took effect on 2 June 2018. The question is whether if the respondent were, as part of a reconsideration under reg 72, to set aside the decision to suspend Mr Shilkin's driver's licence, when would the decision to set aside the suspension take effect? From the date of the reconsideration decision, or the date of the earlier decision to suspend?
The Court of Appeal considered the meaning of the term 'set aside' in the decision of Dreja v The State of Western Australia.[71] Pullin JA (with whom Newnes and Mazza JJA agreed) held as follows:[72]
The expression 'set aside', like the word 'quash', has a range of meanings. It may mean to 'put to one side' or 'discard from use', or it may mean 'annul or quash': Macquarie Dictionary. That the word 'quash' has a range of meanings was noted in Roads and Traffic Authority of New South Wales v Papadopoulos [2010] NSWSC 33; (2010) 77 NSWLR 189, where James J said at [50]:
The decision in Hancock v Prison Commissioners shows that the word 'quash' in a legal context does not necessarily mean to make null and void ab initio and can simply mean to make null and void for the future. What interpretation should be given to the word in particular legislation depends on the terms of the legislation, the context in which the word 'quash' is used and the subject matter to which the word must be applied.
[71] Dreja v The State of Western Australia [2012] WASCA 151.
[72] Dreja v The State of Western Australia [2012] WASCA 151 [12].
As a matter of statutory construction, I consider a reconsideration decision of the respondent would take effect prospectively from the date of the reconsideration, and not retrospectively from the date of the earlier decision to suspend.
Unlike the SAT Act, there is no express provision in the Authorisation to Drive Act or the Authorisation to Drive Regulations which specifies when a reconsideration decision takes effect. There are also no provisions in the Authorisation to Drive Act or the Authorisation to Drive Regulations which make provision for a stay of a reviewable decision while under reconsideration, or deal with matters that might be expected to be addressed if reconsideration decisions took effect retrospectively. For example, clarifying that a person can continue to use their driver's licence as it existed prior to the reviewable decision, pending the determination of the reconsideration decision.
The Authorisation to Drive Act and the Authorisation to Drive Regulations establish a statutory scheme whereby persons wishing to drive motor vehicles on a road must obtain a driver's licence and appropriate authorisations. The purpose of that statutory scheme is to ensure safety on the roads. This is clear from the various features of the scheme, including that the CEO's discretion to grant a driver's licence is conditional on the CEO being satisfied that the person can demonstrate the ability to safely drive a motor vehicle and can demonstrate knowledge of traffic laws and safe driving techniques,[73] and that the CEO may refuse to grant a driver's licence if the CEO has good reason to believe that the person suffers from a mental or physical condition that is likely to impair the person's ability to control a motor vehicle.[74]
[73] Authorisation to Drive Regulations, reg 16 and reg 24(1).
[74] Authorisation to Drive Regulations, reg 25(b). For other textual indicators, see Authorisation to Drive Regulations, reg 16A, reg 27, reg 19, reg 41, reg 64(3) and pt 5A.
Another essential feature of the statutory scheme is certainty. That certainty is not only relevant for the person driving but also the CEO, who is responsible for the administration of the licencing scheme and keeping an accurate driver's licence register to record information about drivers' licences.[75] It is also relevant for the police, who are responsible for enforcing the laws of Western Australia, including s 49(1) of the RTA which makes it an offence to drive a motor vehicle on a road if the person is not authorised under the Authorisation to Drive Act.
[75] Authorisation to Drive Act, s 4(1)(a).
It would undermine these two statutory purposes if a decision to set aside a reviewable decision on reconsideration were to take effect retrospectively, absent a clear indication in the individual reconsideration decision. It would lead to uncertainty as to the status of a person's authorisation during the period in between the reviewable decision being made and the reconsideration decision, and may also lead to the potentially dangerous situation in which a person who has had their driver's licence suspended on safety grounds ignores that suspension and continues to drive pending a determination on the reconsideration decision.
There was nothing in the reconsideration decision itself which suggested anything different to Mr Shilkin or lead him to have any expectation to the contrary. Rather, the letter expressly states that the delegate was 'unable to retrospectively approve your driving outside the Driver Licensing Scheme'.
This conclusion applies equally to the respondent's letter dated 24 December 2018. Mr Shilkin places significance on the use of the word 'reversed' in this letter. I am of the view that the legal effect of this letter, and the decision of the respondent, must be understood in the statutory context in which it was made. In this context, the reference to the word 'reverse' must be understood as taking effect from the date of the letter, and not any earlier date.

Conclusion

I am therefore of the view that it is not in the interests of justice to grant Mr Shilkin an extension of time within which to appeal. The delay is excessive, and Mr Shilkin has not provided sufficient explanation for the delay that justifies the grant of an extension. I also do not consider that the Tribunal's decision is attended by sufficient doubt to warrant an extension of time.
I am also of the view that it is not in the interests of justice to grant Mr Shilkin leave to appeal. I do not consider that Mr Shilkin's case on a question of law has reasonable prospects of success. Further, even if (contrary to my conclusions as to the strength of Mr Shilkin's case) an appeal were to be successful and the decision of the respondent was set aside, that decision would only take effect from 20 September 2019. As this is after the driving conduct the subject of the first two driving offences, it could not have any utility in relation to these offences. This would also mean that there would be no utility in the appeal in relation to the third driving charge, which is linked to the disqualification imposed in relation to the second offence. Accordingly, there is no substantial injustice if the decision of the Tribunal remains uncorrected.
I propose to make orders to the following effect, but I will first hear further from the parties as to the precise orders and as to costs:
1.The appellant's application for an extension of time within which to appeal is refused.
2.Leave to appeal is refused.
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HY
Associate to the Hon Justice Seaward
13 DECEMBER 2024