The State of SA v Montgomery No. Scgrg-00-1003

[2000] SASC 423

THE STATE OF SOUTH AUSTRALIA  v  MONTGOMERY
[2000] SASC 423

Magistrates Appeal

1................ DUGGAN J....... This appeal gives rise to the interpretation of provisions of the Motor Vehicles Act, 1959 (the Act) concerned with provisional driving licences.  The appellant has appealed against an order made by a magistrate pursuant to s 81B(9) of the Act.  Before dealing with the question of interpretation it is necessary to outline the factual background which gave rise to this issue.

1. The respondent is a self-employed truck driver.  In mid-1999 he was convicted of a drink driving offence and he was disqualified from holding or obtaining a driver’s licence for a period of six months.  He regained his licence on 24 December 1999.  The re-issued licence was a provisional licence subject to certain conditions which are required by s 81A of the Act.  They include a condition that the appellant not drive a motor vehicle on a road without a “P” plate.

2. On 26 July 2000 the respondent was detected driving without a “P” plate.  This breach resulted in the respondent being disqualified by the Registrar of Motor Vehicles from holding or obtaining a driver’s licence for a period of six months from 12 September 2000 (s 81B(2)).

3. The respondent appealed against the disqualification pursuant to s 81B(6).  On 5 October 2000 the learned magistrate allowed the appeal and removed the disqualification.  The magistrate then purported to comply with s 81B(9)(b) of the Act by directing that the licence be subject to the prescribed probationary conditions for a period of one year from the date on which the respondent had been issued with his licence, namely, 24 December 1999.  The effect of this was to backdate the order so that the conditions were to operate for a period of less than three months instead of a period of one year if the order had operated from the date of the hearing of the appeal.  The appellant contends that under the relevant provisions of the Act the magistrate was required to direct that the conditions operate from the date of the order.

4. Section 81B(9) prescribes the course to be followed in the event that an appeal against the disqualification by the Registrar of Motor Vehicles is allowed.  It provides:

   “Where the Magistrates Court has allowed an appeal against disqualification under this section, the Court must order -

   (a)    that the disqualification be removed; and

   (b)... that any licence held by or issued to the appellant be subject to prescribed conditions for the following period:

   (i).... in the case of a licence subject to prescribed conditions held by or issued to a person under the age of 19 years - a period of six months commencing on the expiry of those previous conditions;

   (ii)    in any other case - for a period of one year commencing on the date of the order or the issue of the licence, as the case may require; and

   (c).... if the appellant is the holder of a licence - that the Registrar vary the endorsements on the licence, or cancel the licence and issue a provisional licence, as the case may require.”

   (emphasis supplied)

5. The appellant has argued that the reference in s 81B(9)(b)(ii) to “the issue of a licence” contemplates an issue of a licence in the future which would then be subject to the prescribed conditions for a period of one year.  In other words, the sub-section cannot be read as referring to a prior issue of a licence which would enable an order to be made backdating the operation of the conditions to the date of the issue of the licence.

6. I agree with the appellant’s submission.  The sense in which the words “issued” and “issue” are used is apparent from the reference in the opening words of sub-s(9)(b) to “any licence held by or issued to the appellant”.  In my view the word “held” contemplates an existing licence and the word “issued” refers to a licence which might be issued in the future.  The effect of the learned magistrate’s approach is to treat both words as referring to a licence which is already in existence; the word “held” connoting an existing licence and the word “issued” referring to the occasion on which the licence came into existence.

7. If Parliament had not intended to distinguish between a licence already held and a licence to be issued in the future, it would have been sufficient simply to refer to a licence which was “held” at the time of the court order.  The reference to “issued” would have been superfluous.

8. I do not think that it should be assumed that nothing more than repetition was intended.  I respectfully adopt the approach taken by Viscount Simon in Hill v William Hill (Park Lane) Ltd [1949] AC 530 at 546. In that case it was argued that the second limb of a section in the Gaming Act, 1845 (UK) was mere repetition of the first limb.  His Lordship rejected the argument:

   “... it is to be observed that though a Parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in the case of an Act of Parliament is not to be assumed.  When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before.  The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out.”

9. In the present case, I think it is plain enough that the intention behind  sub-s(9) was to ensure that, except in the case of a person under the age of 19, if an appeal against disqualification is allowed the licence is to be subject to the prescribed conditions for a period of one year.  If there is an existing licence, the order is to operate from the date on which it is made; if no licence is in existence, then the order is to commence from the date on which the licence is issued.  If the section is read in this way meaning and effect are given to the phrase “or issued”.

10. It is highly unlikely that the intention was to allow a discretion to be exercised so as to lessen the effect of the restrictions in a deserving case.  An anomaly would then exist by reason of the fact that the extent of the concession would be dependent upon the date on which the licence had been issued.  In some circumstances the restrictions could be backdated for the full period of one year; in other cases the backdating might extend only to a period of days or weeks.  There would be no logical correlation between these periods and the extent to which it was appropriate to make a concession in a particular case.

11. In summary, therefore, I am of the view that a court which allows an appeal against disqualification under the section and proceeds to make an order under sub-s(9)(b)(ii) must order that the prescribed conditions operate in the future for a period of one year.  If the driver is the holder of a licence, the order is to take effect from the date on which it is made.  If the driver is not the holder of a licence the period during which the conditions are to operate commences on the date on which any licence is issued in the future.

12. It is unnecessary to deal with the appellant’s further argument that this interpretation is supported by the second reading speech in Parliament at the time the Bill to enact these provisions was introduced.

13. I should add that the form used in the Magistrates Court to record the making of orders under this sub-section at the time the appeal was heard is misleading in that it does not cater for the two situations to which I have referred.

14. The appeal will be allowed and the order of the learned magistrate will be varied by directing that the respondent’s licence will be subject to probationary conditions for a period of one year from 5 October 2000.  In all other respects the magistrate’s order will be confirmed.