The Registrar of Motor Vehicles v McIver
[2014] SASC 51
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THE REGISTRAR OF MOTOR VEHICLES v MCIVER
[2014] SASC 51
Judgment of The Honourable Justice Gray
16 April 2014
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - TO GIVE OPERATION AND EFFECT TO ACT
MAGISTRATES - JURISDICTION - GENERAL MATTERS - OTHER PARTICULAR CASES
This is an appeal from a decision of a Magistrate. The defendant and respondent pleaded guilty to the offence of driving whilst holding a hand held mobile telephone. At the time of the offending, the defendant held a probationary licence which had been issued following a successful appeal against a licence disqualification under section 81BB of the Motor Vehicles Act 1959 (SA). It was a prescribed condition of that licence that the defendant must not incur two or more demerit points. As a result of the offence, the defendant incurred three demerit points. Section 81BB(8)(a) provides that the Registrar of Motor Vehicles must give a notice of disqualification where the holder of a probationary licence issued under section 81BB commits an offence of contravening a prescribed condition. Section 81BB(8)(c) provides that the Registrar must give a notice of disqualification where the holder of a probationary licence issued under section 81BB incurs four or more demerit points. Counsel for the defendant made submissions to the Magistrate that there was an apparent conflict between sections 81BB(8)(a) and 81BB(8)(c). The Magistrate made an order that the defendant is not to be disqualified unless he is to incur 4 or more demerit points. This order was made ex parte and without notice to the Registrar.
Whether the Magistrate had jurisdiction to make the order. Whether the order was made in circumstances of an absence of procedural fairness. Whether the holder of a provisional licence issued under section 81BB is liable to a mandatory disqualification where they incur two or more demerit points in accordance with section 81BB(8)(a).
Held (allowing the appeal):
(1) The order made by the Magistrate was in effect an ex parte permanent prohibitive injunction (at [13]). There is no implied power in the Magistrates Court to make such an order (at [19-20]).
(2) The order should be set aside because of the want of procedural fairness, which was compounded by the absence of any reasons (at [21]).
(3) Section 81BB(8)(c) may be rendered otiose to the extent that it refers to a probationary licence (at [33]). However, the only means of avoiding this result would directly conflict with the express wording of the Act (at [34]).
Motor Vehicles Act 1959 (SA) s 5, s 81AB, s 81B and 81BB; Acts Interpretation Act 1915 (SA) s 21, referred to.
Roberts v Kowshu Enterprises Pty Ltd [1999] SASC 158; Director of Public Prosecutions v Alexander (2003) 86 SASR 577; Medical Board of SA v N, JRP (2006) 93 SASR 546; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, considered.
THE REGISTRAR OF MOTOR VEHICLES v MCIVER
[2014] SASC 51Magistrates Appeal: Criminal
GRAY J.
This is an appeal against a decision of a Magistrate.
The defendant and respondent, James Ryan McIver, was charged on complaint that on 15 August 2013, being the driver of a motor vehicle moving on a road, he used a hand held mobile telephone contrary to rule 300 of the Australian Road Rules (SA). On 22 November 2013, the defendant pleaded guilty before a Special Justice who recorded a conviction and imposed a $50.00 fine. At the time of the commission of the offence, the defendant held a probationary licence, a condition of which was that he must not incur two or more demerit points. As a result of the offending, the defendant incurred three demerit points.
The proceeding was then adjourned for the defendant to make a “demerit point application” before a Magistrate. On 26 November 2013, the defendant’s application came on for hearing. However, no application to reduce the demerit points was pursued. Apparently counsel appearing before the Magistrate sought a determination by the Magistrate as to the proper construction of relevant provisions of the Motor Vehicles Act 1959 (SA). The substance of the contention was that there was an ambiguity in these provisions and that the Registrar of Motor Vehicles did not have power to disqualify the defendant from holding a driver’s licence unless four or more demerit points had been incurred.
Following submissions, the Magistrate made an order purportedly under section 81BB(8)(c) of the Motor Vehicles Act that the defendant was not to be disqualified from holding a driver’s licence unless he incurs four or more demerit points. It is to be understood that the defendant’s application as finally advanced was made orally and without notice to the Registrar. The Magistrate provided no reasons for the making of what is, in effect, an ex parte permanent prohibitive injunction. Further, it is to be noted that counsel did not seek the order as made by the Magistrate. The Registrar has appealed against the decision.
On appeal, the Registrar relied on affidavits sworn by Jean Morag Phillips, a delegate for the Registrar, and Adam Jordan Randle, a police prosecutor. No affidavit material was filed on behalf of the defendant. It was said that the defendant’s solicitor had not had time to prepare an affidavit. However, counsel appearing on the appeal for the defendant had appeared before the Magistrate and provided information from the bar table as to what had occurred before both the Special Justice and the Magistrate. No objection was taken by counsel for the Registrar to the Court acting on this information.
Background
The affidavit material from the Registrar established the relevant history of the defendant’s licence status. There was no challenge to the accuracy of this history.
On 23 November 2009, the defendant committed the offence of driving with excess alcohol in his blood. He was convicted of this offence on 10 June 2010. The Court disqualified the defendant from holding or obtaining a driver’s licence for nine months commencing from 10 June 2010. An order was made cancelling the defendant’s driver’s licence. On 10 March 2011, the defendant incurred a further three month licence disqualification for the accumulation of 12 or more demerit points within a three year period. That disqualification commenced on 10 March 2011.
On 16 June 2011, the defendant applied pursuant to section 81AB of the Motor Vehicles Act to the Registrar for the reissue of his driver’s licence. The Registrar determined to reissue the defendant with a driver’s licence subject to probationary conditions and mandatory interlock scheme conditions.
On 24 April 2012, the defendant committed the offences of failing to wear a seatbelt while the driver of a vehicle and contravening a condition of his probationary licence. The contravention of the condition arose as a consequence of the seatbelt offence attracting three demerit points. As a further consequence, the defendant was liable to licence disqualification under section 81B of the Motor Vehicles Act. The Registrar sent a notice of disqualification to the defendant. This notice was not acknowledged and was reissued and served on 21 May 2013. The defendant lodged an appeal against that disqualification in accordance with section 81BB of the Motor Vehicles Act.
Section 81BB of the Motor Vehicles Act enables the holder of a provisional or probationary licence who has been or is liable to be given a notice of disqualification in accordance with section 81B to appeal against that disqualification. Section 81BB relevantly provides:
(1)Subject to subsection (2), if a person has been or is liable to be given a notice of disqualification under section 81B as a consequence of an offence committed or allegedly committed while the holder of a provisional licence or probationary licence, the person may appeal to the Magistrates Court against the disqualification.
(2) A person is not entitled to appeal against a disqualification under this section if—
…
(b) the Magistrates Court has, within the preceding period of 5 years, allowed an appeal by the person against a disqualification under section 81B.
(3) The appellant and the Crown are entitled to be heard upon an appeal against a disqualification under section 81B.
(4) The Magistrates Court may allow an appeal if the Court is satisfied—
(a) that, on the basis of evidence given on oath by or on behalf of the appellant, the disqualification would result in severe and unusual hardship to the appellant or a dependant of the appellant; and
(b) if the Crown submits evidence (whether orally or in writing) as to previous offences relating to the appellant's use of a motor vehicle for which the appellant has been found guilty or that the appellant has expiated—that such evidence does not indicate that the appellant is a substantial risk to himself or herself or to other members of the public.
(5) The appellant's evidence must include evidence relating to the forms of transport that would be available to the appellant if the appeal were not allowed and why those forms of transport do not adequately meet the needs of the appellant or a dependant of the appellant.
(6) Where an appeal against disqualification has been instituted under this section, the disqualification and any related cancellation are suspended until the determination or withdrawal of the appeal.
(7) If the Magistrates Court allows an appeal by a person against a disqualification, the following provisions apply:
(a) any licence that the person holds is cancelled and the person is, on application to the Registrar, entitled to a refund as if the person were surrendering the licence;
(b) the disqualification is removed and the person is entitled to apply for a licence;
(c) subject to paragraph (e), sections 81A and 81AB apply in relation to the person when applying for the licence as if, despite the removal of the disqualification, the person had been disqualified from holding or obtaining a licence as a consequence of the offence and were making the application at the end of the period of disqualification;
(d) section 79A(4) does not apply to the person when applying for the licence;
…
(8) If—
(a) a person who holds a provisional licence or probationary licence issued on an application referred to in subsection (7)(c) or (f) commits an offence of contravening a prescribed condition; or
(b) a person expiates an offence allegedly committed while the holder of a provisional licence or probationary licence issued on an application referred to in subsection (7)(c) or (f), being an offence of contravening a prescribed condition; or
(c) a person incurs demerit points in respect of an offence committed or allegedly committed while the holder of a provisional licence or probationary licence issued on an application referred to in subsection (7)(c) or (f), and, in consequence, the total number of demerit points recorded against the person in respect of offences committed or allegedly committed while the holder of that licence equals or exceeds 4,
the Registrar must, on becoming aware of that fact, give the person written notice—
(d) that, commencing on the day on which the notice takes effect in accordance with section 139BD, the person is disqualified from holding or obtaining a permit or licence for a period of 12 months; and
(e) that, if the person holds any licence when the notice takes effect, the licence is cancelled.
The defendant’s appeal was heard in the Magistrates Court and was successful. The defendant applied to the Registrar for a new licence to be re-issued. A new probationary licence was issued to the defendant. Pursuant to section 81BB(7)(c) of the Motor Vehicles Act, as extracted above, that licence included the conditions specified in section 81AB. Section 81AB relevantly provides:
(1)Without derogating from any other provision of this Act, where a person applies for the issue of a driver's licence following a period of disqualification from holding or obtaining such a licence imposed in prescribed circumstances, a licence issued to the applicant is subject to the following conditions:
(a) a condition that the holder of the licence must carry the licence at all times while driving a motor vehicle on a road pursuant to the licence;
(b) a condition that the holder of the licence must not drive a motor vehicle or attempt to put a motor vehicle in motion on a road while the prescribed concentration of alcohol is present in his or her blood, or a prescribed drug is present in his or her oral fluid or blood;
(c) a condition that the holder of the licence must not incur two or more demerit points.
(2) Subsection (1) does not apply where a person applies for the issue of a driver's licence following a period of disqualification—
(a) if the disqualification did not result in the cancellation of any driver's licence held by the person; or
(b) if the person is required to be issued a provisional licence.
(3) Subject to subsection (3a) or (3b), the conditions imposed under subsection (1) are effective for a period of one year or, if the court by which the order of disqualification was made ordered that the conditions were to be effective for a greater period, the period ordered by the court.
…
(5) A person must not contravene a condition of a probationary licence.
Maximum penalty: $1 250.
…
(7) In this section—
prescribed circumstances—a period of disqualification from holding or obtaining a licence is imposed in prescribed circumstances if the disqualification is imposed—
(a) pursuant to section 81B, 81BB, 81C or 81D; or
(b) by order of a court in this State or any other State or Territory of the Commonwealth; or
(c) in respect of an offence committed whilst the person was not authorised to drive a motor vehicle on a road under this Act;
prescribed concentration of alcohol means any concentration of alcohol in the blood.
[Emphasis added.]
On 15 August 2013, the defendant committed the offence of driving while holding a hand held mobile telephone contrary to rule 300 of the Australian Road Rules. This is the offending the subject of the within appeal. As earlier discussed, the defendant pleaded guilty to that offence in the Magistrates Court on 22 November 2013. The defendant was fined $50.00 and ordered to pay court fees, prosecution costs and the victims of crime levy. The defendant also incurred three demerit points against his probationary licence. In doing so, the defendant breached the condition of his licence imposed by section 81AB(1)(c) of the Motor Vehicles Act, namely that he not incur two or more demerit points. Following the imposition of this sentence, counsel for the defendant informed the Special Justice that the defendant intended to make what was described as a “demerit point application” and the matter was adjourned for that to occur.
As earlier noted, the defendant did not pursue any application to reduce the number of demerit points incurred as a result of the offending. However, on 26 November 2013, the Magistrate was invited to express a view as to the proper construction of the relevant provisions of the Motor Vehicles Act. As earlier observed, no notice of the application had been given to the Registrar. The Magistrate, apparently without any application, proceeded to make an ex parte mandatory injunctive order in the terms “pursuant to s.81BB(8)(c) of the Motor Vehicles Act that the deft is not to be disqualified unless he is to incur 4 or more demerit points”.
The Appeal
On the hearing of the appeal, counsel for the defendant outlined the course of events both before the Special Justice and before the Magistrate. It appears that there was little, if any, information before the Magistrate about the defendant’s prior road traffic offending. This Court was advised that all that was sought by counsel for the defendant was the resolution of a suggested ambiguity in the legislation and a conclusion that on the proper construction of section 81BB(8) of the Motor Vehicles Act, the Registrar was only authorised to provide a notice of disqualification in the event that the defendant incurred four or more demerit points.
It should be immediately pointed out that the procedures adopted were wholly inappropriate. On the assumption that the Magistrate’s Court had jurisdiction to make an order in the terms expressed, it was a final order made ex parte and without notice to the Registrar.
During the course of the hearing of the appeal, a question arose as to the jurisdiction of the Magistrate to make the injunctive order. In Roberts v Kowshu Enterprises Pty Ltd, Wicks J considered the reach of the jurisdiction of the Magistrates Court and relevantly observed:[1]
The Magistrates Court Act 1991 confers on the Magistrates Court certain limited powers to grant an injunction. S25 provides:
"The Court may, on such terms as appear just, grant an injunction or make any other order that may be necessary to preserve the subject-matter of an action intact until the questions arising in the action have been finally determined."
S 26 of the Act empowers the Magistrates Court to make restraining orders in the nature of mareva injunctions in the circumstances set out in the section. Clearly, s26 of the Act has no application in the present case.
As to s25, it is really concerned with the interim preservation of property, the subject matter of litigation. The order made in the present case has nothing to do with the preservation of property. It purports to prevent the institution of a particular kind of action or proceeding - one within the exclusive province of the Supreme Court and a number of other courts mentioned. In my opinion the words of s25 of the Magistrates Court Act, on their proper construction, do not authorise the making of an order of the kind made in this case.
The Magistrates Court is entirely the creature of statute, being established under s4 of the Magistrates Court Act 1991. It is a court of record but not a superior court of record. Its correct title is "The Magistrates Court of South Australia" but I have simply referred to it as the Magistrates Court for brevity. The court has no inherent jurisdiction: Palmer v Clarke (1989) 19 NSWLR 158 at p166. Its jurisdiction and powers are therefore confined by the metes and bounds of the Magistrates Court Act but subject to any other jurisdiction which might be conferred on the Court by Parliament.
The Magistrates Court has certain equitable jurisdiction under s8 of the Magistrates Court Act, but that section would appear to have no application in the present case.
[1] Roberts v Kowshu Enterprises Pty Ltd [1999] SASC 158, [13]-[15]; see also Director of Public Prosecutions v Alexander (2003) 86 SASR 577, [10].
On the appeal, counsel for the defendant sought to rely on the decision of this Court in Medical Board of SA v N, JRP.[2] In that case, the Court considered the jurisdiction of the Medical Practitioners Professional Conduct Tribunal to make an order staying proceedings as an abuse of process. In particular, attention was drawn to the following observations of Debelle J:[3]
[2] Medical Board of SA v N, JRP (2006) 93 SASR 546.
[3] Medical Board of SA v N, JRP (2006) 93 SASR 546, 553-554.
Notwithstanding that the jurisdiction of a statutory court is defined in its constituting statute, the court will possess the jurisdiction which is implied in the express grant of power. See also DJL v Central Authority (2000) 201 CLR 226 at [25]. As Dawson J said in Grassby (at 16):
However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.
A little later (at 17) Dawson J explained the circumstances in which jurisdiction
would be implied in these terms:
It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be “derived by implication from statutory provisions conferring particular jurisdiction”. There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings: cf R v Hush; Ex parte Devanny. [Citation omitted.]
Mason CJ, Brennan, Deane and Toohey JJ agreed with those observations. The principle expressed by Dawson J was expressed in these terms by Lord Morris in Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301:
There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.
His Honour went on to find that the Tribunal had implied power to stay proceedings for an abuse of process, observing:[4]
The jurisdiction of the Tribunal to inquire into the subject matter of the complaint requires it to hear and determine the complaint. The question whether the proceedings before the Tribunal are an abuse of process is a question which directly affects the question whether the Tribunal should inquire into the subject matter of the complaint. It is a question to be considered before the Tribunal embarks upon a full hearing of the issues raised by the complaint. In other words, it directly affects the jurisdiction of the Tribunal to inquire into the subject matter of the complaint. If a stay is ordered, the Tribunal will not inquire into a complaint. In that way, the power to order a stay has the capacity to affect the question whether the medical practitioner is guilty of the matters charged in the complaint and whether the practitioner is guilty of unprofessional conduct. The power to order a stay on the ground of abuse of process is, therefore, a power which is necessary for the proper exercise of the jurisdiction to hear and determine the complaint in the sense explained in Attorney-General v Walker, namely, reasonably required or legally ancillary to that jurisdiction. For these reasons, the grant of the power to inquire into the subject matter of the complaint necessarily implies that the Tribunal has power to stay proceedings on the ground of abuse of process. A decision to grant or refuse a stay will be subject to an appeal to this Court pursuant to s 66 of the Act in the same way as any other order made by the Tribunal.
[Emphasis added.]
[4] Medical Board of SA v N, JRP (2006) 93 SASR 546, 556.
It is to be noted that Debelle J was in dissent on this question, with Besanko and Layton JJ finding that the Tribunal did not have the implied power to stay proceedings on the ground of abuse of process. Moreover, to my mind, the power to order a stay of proceedings is of an altogether different nature to the power purportedly exercised by the Magistrate in the present case, namely, the power to make a permanent prohibitive injunction restraining an officer of the state from discharging his statutory obligation in a manner other than in accordance with a particular interpretation of that obligation. It cannot be said that such a power is reasonably required or legally ancillary to any power conferred on the Magistrates Court by the Motor Vehicles Act or any other statute.
The analysis advanced by Wicks J in Roberts v Kowshu Enterprises Pty Ltd,[5] as extracted above, would appear to provide an immediate answer to this appeal. In my view, the order made by the Magistrate was beyond power.
[5] Roberts v Kowshu Enterprises Pty Ltd [1999] SASC 158.
In any event, the order should be set aside because of the want of procedural fairness. To proceed to make such an order as a final order and without notice involved such a want of procedural fairness that the order should be set aside. This want of procedural fairness was compounded by the absence of any reasons. Further, in any event, it was not an order sought by the defendant.
Counsel for the defendant sought to use the appeal as a vehicle to make submissions regarding the proper construction of the relevant provisions of the Motor Vehicles Act. It was said that all the relevant facts were now before the Court and that both the defendant and the Registrar were represented. Counsel for the Registrar advised the Court that the Registrar proposed to give a notice of disqualification to the defendant. In these circumstances, I propose to express my views as to the construction of the relevant provisions.
Part 3 of the Motor Vehicles Act addresses drivers’ licences. Section 75A is concerned with learners’ permits, section 81A with provisional licences and section 81AB with probationary licences. Section 81B provides for consequences where the holder of a learner’s permit, provisional licence or probationary licence contravenes a condition of that permit or licence. In particular, section 81B(1) provides for a mandatory licence disqualification in certain circumstances. However, a person who has been or is liable to be given a notice of disqualification in accordance with section 81B may appeal against that disqualification in accordance with section 81BB, as extracted earlier. Where an appeal is successful, that person may apply for a new provisional or probationary licence in accordance with section 81BB(7). Section 81BB(8) provides for the mandatory disqualification of a licence issued pursuant to an application made under section 81BB(7) in certain circumstances.
As a consequence of the defendant’s road traffic offending, he was on 15 August 2013, at the time of the subject offending, the holder of a probationary licence issued pursuant to an application made under section 81BB(7). As noted above, this was the second probationary licence that the defendant had held and had been issued following the defendant’s successful appeal under section 81BB. Section 81AB(1) provides certain conditions which apply to probationary licences, including those issued following successful appeals under section 81BB. As earlier noted, section 81AB(1) relevantly provides:
Without derogating from any other provision of this Act, where a person applies for the issue of a driver's licence following a period of disqualification from holding or obtaining such a licence imposed in prescribed circumstances, a licence issued to the applicant is subject to the following conditions:
…
(c) a condition that the holder of the licence must not incur two or more demerit points.
[Emphasis added.]
Section 5 of the Motor Vehicles Act provides the following relevant definitions:
prescribed conditions means learner's permit conditions, probationary licence conditions or provisional licence conditions;
…
probationary licence conditions means conditions referred to in section 81AB;
It follows that the condition of the defendant’s licence specified in section 81AB(1)(c), namely that he must not incur two or more demerit points, was a prescribed condition of his licence.
Following the defendant’s conviction of the offence of driving while holding a hand held mobile telephone, the effect of the Motor Vehicles Act and the Motor Vehicles Regulations 2010 (SA) was that the defendant incurred three demerit points.
Section 81BB(8) raises the issue of suggested ambiguity. It is convenient to again set out the terms of that section:
If—
(a)a person who holds a provisional licence or probationary licence issued on an application referred to in subsection (7)(c) or (f) commits an offence of contravening a prescribed condition; or
(b) a person expiates an offence allegedly committed while the holder of a provisional licence or probationary licence issued on an application referred to in subsection (7)(c) or (f), being an offence of contravening a prescribed condition; or
(c) a person incurs demerit points in respect of an offence committed or allegedly committed while the holder of a provisional licence or probationary licence issued on an application referred to in subsection (7)(c) or (f), and, in consequence, the total number of demerit points recorded against the person in respect of offences committed or allegedly committed while the holder of that licence equals or exceeds 4,
the Registrar must, on becoming aware of that fact, give the person written notice—
(d) that, commencing on the day on which the notice takes effect in accordance with section 139BD, the person is disqualified from holding or obtaining a permit or licence for a period of 12 months; and
(e) that, if the person holds any licence when the notice takes effect, the licence is cancelled.
[Emphasis added.]
On the appeal, the defendant submitted that there was an apparent tension between sections 81BB(8)(a) and 81BB(8)(c). It was pointed out that section 81BB(8)(c) provides for a mandatory licence disqualification where the holder of a probationary licence incurs four or more demerit points. It was submitted that if section 81BB(8)(a) were to be enlivened whenever there was a breach of the condition specified in section 81AB(1)(c), namely that the holder of the probationary licence must not incur two or more demerit points, then section 81BB(8)(c) would be rendered otiose. It was contended that section 81BB(8)(a) should be construed so as to apply only where a person commits an offence of contravening a prescribed condition such as driving while the prescribed concentration of alcohol is present in their blood, and not where a person merely commits any traffic offence which incurs two or more demerit points.
It is to be noted that the submission that section 81BB(8)(c) is rendered otiose due to the combined effect of section 81BB(8)(a) and section 81AB(1)(c) is only accurate insofar as section 81BB(8)(c) addresses probationary licences, as opposed to provisional licences. A person who successfully appeals under section 81BB may be issued with either a provisional or a probationary licence, depending on the circumstances. Section 81AB(2)(b) makes it clear that a provisional licence issued following an appeal under section 81BB will not include the condition that the licence holder must not incur two or more demerit points. Therefore, to the extent that section 81BB(8) applies to the breach of a provisional licence issued following an appeal under section 81BB, section 81BB(8)(c) is given work to do.
In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ set out the relevant principles of statutory interpretation as follows:[6]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
[Emphasis added. Footnotes omitted.]
[6] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69]-[71].
Further guidance is provided by section 21 of the Acts Interpretation Act 1915 (SA), which provides:
Every Act will be considered as speaking at all times, and every enactment, whether expressed in the present or the future tense, will be applied to the circumstances as they arise, so that effect may be given to each Act and every provision according to its spirit, true intent and meaning.
In the present case, it appears that section 81BB(8)(c) may be rendered otiose to the extent that it refers to a “probationary licence issued on an application referred to in subsection (7)(c)”. Such a licence will include the prescribed condition that the holder of the licence must not incur two or more demerit points. The incursion of two or more demerit points will amount to a breach of that prescribed condition, thereby enlivening the mandatory disqualification under section 81BB(8)(a). Section 81BB(8)(c), which provides for a mandatory disqualification upon the incursion of four or more demerit points, appears to be left without any work to do in relation to a “probationary licence issued on an application referred to in subsection (7)(c)”.
However, the only means of avoiding this result would be to interpret the phrase “commits an offence of contravening a prescribed condition” as it appears in section 81BB(8)(a) so as to not include a breach of the condition set out in section 81AB(1)(c), namely that the holder of the licence must not incur two or more demerit points. Such an interpretation would directly conflict with section 5 of the Motor Vehicles Act as relevantly set out above, whereby “prescribed condition” is defined to include the conditions of a probationary licence referred to in section 81AB.
Conclusion
The appeal is allowed and the order made by the Magistrate set aside. In my view, the order was beyond the Magistrate’s jurisdiction. Moreover, the order was made in circumstances of a want of procedural fairness. There was no written application before the Magistrate’s Court. There was no affidavit material in support of the application. The defendant’s road traffic offending history was not before the Court. The order made by the Magistrate was not sought by the defendant. The matter proceeded ex parte. The Registrar of Motor Vehicles had not been given notice of the application. It was inappropriate for the Magistrate to proceed as he did.
In any event, I do not accept the construction of the Motor Vehicles Act as advanced on the appeal by the defendant.
In my view, the Registrar of Motor Vehicles should proceed to perform any relevant function or duty under the Motor Vehicles Act. If the defendant is dissatisfied, he may seek a review in the usual way.
6
0