Thiele v The Registrar of Motor Vehicles - [2016] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
THIELE v THE REGISTRAR OF MOTOR VEHICLES
[2016] SADC 141
Judgment of Her Honour Judge Davison
30 November 2016
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES
Appeal pursuant to provisions of Motor Vehicles Act 1959 against a decision to refuse to grant a learner's permit. Driver's licence had been cancelled pursuant to s82 following two fatal motor vehicle collisions in which the appellant was the at fault driver. In 2013 the Deputy Registrar refused the application for a learner's permit and the Review Committee confirmed that decision. Failure of the Deputy Registrar and Review Committee to disclose relevant information - appeal allowed - decisions of Deputy Registrar and Review Committee set aside - learner's permit subject to conditions substituted.
Motor Vehicles Act 1959 (SA) s 75A(2). s 82, s 98ZA; District Court Act 1991 (SA) s 42B(2), s 42E, s 42F, referred to.
Registrar of Motor Vehicles v Thiele [2012] SASCFC 51, considered.

THIELE v THE REGISTRAR OF MOTOR VEHICLES
[2016] SADC 141
Introduction

This is an appeal pursuant to the provisions of s 98ZA of the Motor Vehicles Act 1959 (the Act) against the decision of the Deputy Registrar of Motor Vehicles dated 29 July 2013, which decision was confirmed by the Review Committee on 25 October 2013.
The appeal
The conduct of this appeal is governed by the provisions of s 42E and 42F of the District Court Act 1991 which provides as follows:
42E—Conduct of appeal
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)     The Court, on an appeal—
(a)     Is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)     Must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
42F—Decision on appeal
The Court may, on an appeal—
(a)     Affirm the decision appealed against;
(b)Rescind the decision and substitute a decision that the Court considers appropriate;
(c)Remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
The provisions of s 42E require the court to examine the decision of the original decision maker. Section 42B(2) of the District Court Act defines ‘original decision maker’ to include, where the decision was reviewed, the initial decision maker as well as the body whose decision is appealed against. It is therefore necessary for me to consider both the decisions of the Registrar and the Committee.
Background information
This matter has had a significant litigious history. Much of this history was set out by the Full Court in Registrar of Motor Vehicles v Thiele.[1] I will repeat here some of the salient features. Michelle Leanne Thiele is 45 years old. She has resided on a farm on Thiele Road, Pompoota near Mannum since at least the beginning of 1998. The farm consists of a number of blocks located on both sides of Burdett Road also known as Mannum Road which is the main highway between Mannum and Murray Bridge. Mrs Thiele regularly travelled across the intersection of Thiele Road and Mannum Road.
[1] [2012] SASCFC 51.
In 1992 Mrs Thiele was involved in a collision with the rear of a vehicle in front of her while driving in Western Australia. She was convicted of or expiated for the offence of driving without due care.
In July 1998 Mrs Thiele was driving on Karoonda Road near Murray Bridge when she aborted an overtaking manoeuvre, upon sighting an oncoming vehicle, and lost control of her vehicle when braking. Her vehicle left the road and rolled down an embankment. She was cautioned for driving without due care. She was not convicted of nor did she expiate any offence in relation to this incident.
On 26 April 2000 Mrs Thiele was involved in a collision at the intersection of Thiele Road and Mannum Road Pompoota, whilst driving her Holden utility. The driver of the other vehicle, a bright yellow Toyota station sedan, was killed in the collision. The collision occurred while the driver of the Toyota was travelling south on Mannum Road and Mrs Thiele was crossing that road travelling east along Thiele Road. Mrs Thiele had been subject to a give way sign applying to traffic travelling along Thiele Road intending to cross Mannum Road. Mrs Thiele pleaded guilty to the offence of failing to give way to oncoming traffic and was fined $300.
On 23 June 2007 Mrs Thiele was involved in a collision with a motorbike at the intersection of Mannum Road and Thiele Road Pompoota while driving her Holden utility. The rider of the motorbike was killed in the collision. The motorbike was travelling south on Mannum Road. Mrs Thiele was crossing Mannum Road travelling east along Thiele Road. She had been subject to a give way sign. Mrs Thiele pleaded guilty to a charge of aggravated driving without due care. She was sentenced by a Magistrate in February 2009 to eight months imprisonment, seven of which were suspended upon her entering into a good behaviour bond. She was disqualified from holding or obtaining a driver’s licence for 18 months. She appealed against this decision to the Supreme Court and in June 2009 the sentence was varied by suspension of the whole of the term of imprisonment.[2]
[2] Thiele v Police [2009] SASC 159.
In September 2009 the Deputy State Coroner conducted an inquest into the deaths of the drivers involved in the collisions in 2000 and 2007. Mrs Thiele gave evidence at the inquest. She gave evidence that she was injured in the 2000 collision and as a result has no memory of it. She said that after this collision she developed a habit of stopping at the intersection but by 2007 she frequently did not stop at the intersection. In relation to the 2007 collision she said that as she approached the intersection with Mannum Road she slowed down to third gear, did not see any vehicles to the left or to the right and proceeded across Mannum Road in third gear. She estimated her speed at 20 to 30 km/h. She accepted that she had become complacent by that time. The Deputy State Coroner found Mrs Thiele was ‘a motorist of quite limited aptitude, competence and temperament’ and reminded the Registrar of the existence of his powers under s 82 of the Act.
In February 2010 the Registrar wrote to Mrs Thiele stating he was giving consideration to exercising his powers under s 82 of the Act and invited her to make written submissions. In March 2010 Mrs Thiele made a written submission to the Registrar. The submission was prepared by her solicitors. They made lengthy submissions concerning the circumstances of the 2007 collision. They contended that there was ‘no basis to conclude that the circumstances of two offences committed by Mrs Thiele … are such that Mrs Thiele should not be permitted to hold a licence or should hold a licence subject to conditions in order to prevent accident or injury or a repetition of the offence or offences by the person’.[3] On 14 July 2010 the Registrar wrote to Mrs Thiele’s solicitors stating he had determined to cancel Mrs Thiele’s licence effective immediately.
[3] Registrar of Motor Vehicles v Thiele [2012] SASCFC 51 at [13].
On 4 August 2010 Mrs Thiele lodged an application for review of the Registrar’s decision. On 9 December a Review Committee confirmed the Registrar’s decision and on 22 December 2010 it provided reasons.
Mrs Thiele appealed to the District Court against that decision on 9 December 2011. His Honour Judge Costello set aside the decisions of the Registrar and the Review Committee. He ordered that the Registrar issue Mrs Thiele a permit subject to conditions including conditions that she undertake driving lessons and, if the driving instructor deemed that she was competent, that a probationary licence be granted to her, subject to further conditions for a period of 12 months. If she was not involved in any motor vehicle accidents or convicted of or expiated for any offences under the Road Traffic Act or the Act then she would be granted an unconditional driver’s licence by the Registrar subject to a condition that the competency be assessed at 12 monthly intervals for a period of five years.
The Registrar appealed the decision of Judge Costello. On 4 May 2012 the Full Court of the Supreme Court allowed the Registrar’s appeal. They set aside the orders made by Judge Costello. This had the effect of reinstating the cancellation of Mrs Thiele’s licence pursuant to the Registrar’s original decision on 14 July 2010.[4] At [68] of that judgment the Full Court said:
Where the Registrar exercises his powers under s 82 to cancel a person’s licence, that cancellation in itself is no impediment to the person making an application for the grant of a learner’s permit (or indeed for a licence, whether provisional or non-provisional and whether conditional or unconditional). This was expressly conceded by the Registrar on the hearing of this appeal.
[4] Registrar of Motor Vehicles v Thiele [2012] SASCFC 51.
On 7 January 2013 Mrs Thiele applied for a learner’s permit. On 14 March 2013 the Deputy Registrar refused her application for a learner’s permit and provided written reasons citing deficiencies in Mrs Thiele’s driving and invited her to provide evidence supporting the actions taken by her to overcome her driving deficiencies. On 10 April 2013 Mrs Thiele provided further information to the Deputy Registrar. On 12 April 2013 Mrs Thiele made application for review of the 14 March 2013 decision of the Deputy Registrar to the Review Committee. In the interim, the Deputy Registrar reconsidered her application and by letter dated 29 July 2013 confirmed his decision to refuse to grant her a learner’s permit.
On 19 August 2013 and 2 September 2013 the Review Committee considered Mrs Thiele’s application for review and by letter dated 25 October 2013 advised her that it confirmed the Deputy Registrar’s decision.
The Appeal
The appeal proceeded on a further amended Notice of Appeal that was subsequently further amended.
The grounds of appeal are:
~~1.   The decision making process of the Deputy Registrar miscarried as a result of the actual bias.~~
2.   ~~In the alternative to ground 1,~~ the decision of the Deputy Registrar miscarried as a result of apprehended bias.
3.   The Deputy Registrar erred in concluding that driving under learner permit conditions would address the appellant’s ‘issues with complacency or prevent [her] from reoffending”.
4.   The reasons for decision of the Deputy Registrar in his reconsideration of the appellant’s application for a learners permit are inadequate as they fail to identify what account, if any, the Deputy Registrar took of the affidavits of Mr Fraser and the appellant’s written submission dated 10 April 2013, on the question of whether the presence of a qualified supervising driver (in addition to any other conditions imposed by the Deputy Registrar) would or could address complacency issues and prevent the appellant from re-offending.
5.   The decision making process of the Review Committee miscarried as a result of actual bias. In particular, the member of the Committee representing the Commissioner of Police had a conflict of interest which he should have disclosed and which should have resulted in him not sitting on the Committee when it decided the appellant’s appeal.
6.   ~~In the alternative to ground (5)~~ the decision making process of the Review Committee miscarried as a result of apprehended bias. In particular, the member of the Committee representing the Commissioner of Police had a conflict of interest which he should have disclosed and which should have resulted in him not sitting on the Committee when it decided the appellant’s appeal.
7.   The Review Committee erred in determining that it was not satisfied that issuing the appellant with a learner’s permit subject to conditions requiring further technical driver training would ‘necessarily address’ the appellant’s ‘attitudinal issues’. In its reasons for decision, the Review Committee said it was not satisfied that the appellant had ‘addressed and overcome [her] tendency for complacency and inattention to road rules’. On the assumption that the appellant had not done so, it did not necessarily follow that the issue of a learner’s permit subject to conditions requiring further technical driver training’ would not (or could not) address and overcome these problems.
8.   The Review Committee placed undue emphasis upon the expiation by the appellant of a speeding offence allegedly committed in 2008 and involving exceeding the speed limit by less than 15 km/hr.
9.   The reasons for decision of the Review Committee are inadequate as they fail to identify:-
9.1Why it was decided that the views of the Coroner were to be preferred and agreed with;
9.2Whether any or any adequate consideration was given to the remarks of Anderson J made when judgment was delivered on 4 May 2012 in Registrar of Motor Vehicles v Thiele (2012) 280 LSJS 288.
9.3What account, if any, the Committee took of the affidavits of Mr Fraser and the appellant’s written submission dated 12 April 2013, on the question of whether the presence of a qualified supervising driver (in addition to any other conditions imposed by the Deputy Registrar) would or could address complacency issues and prevent the appellant from re-offending.
10.   The Review Committee erred in concluding that the fact that the appellant had previously undertaken driver training in 1988 and 1992 was relevant in its assessment of the weight to be attached to the specific training the appellant had undertaken with Mr Fraser.
11.   The appellant was denied natural justice because the Deputy Registrar and/or the Review Committee took into account material which had not been disclosed to the appellant and of which she was unaware at all material times and in respect of which she was unable to and, in was denied the opportunity, to make comments or submissions.
The appellant seeks the following orders:-
1.   That the decision of the Review Committee to confirm the Deputy Registrar’s decision be set aside.
2.   That the Deputy Registrar’s decision to refuse to issue a Learner’s Permit to the appellant be set aside and a direction given to the Registrar to issue to the appellant a Learner’s Permit.
As a preliminary matter, there was an application to adduce further evidence on the hearing of the appeal. This further evidence was initially to be adduced from Mark Fraser, driving instructor and trainer, and Andrea Aitchison, occupational therapist. The appellant also applied for leave to issue subpoenas to the Deputy Registrar Ronald Shanks, and a Review Committee member Douglas Barr, to attend and give evidence.
The evidence of Mr Fraser and Ms Aitchison was to be led in response to the discovery of the correspondence that had occurred between the Registrar and the Commissioner of Police and had not been disclosed to the appellant during the determination of the application.
Two documents dated 19 August 2013 were before the Review Committee and not disclosed by the Review Committee to the appellant. Nor were these documents disclosed in the reasons provided by the Committee on 25 October 2013. In addition to this, reference was made in the letter to the Registrar dated 19 August 2013 (a copy of which appears hereafter) to correspondence between SAPOL and the Registrar in 2010. This material was not disclosed either until after the application had been determined.
On 6 August 2013 the Registrar of Motor Vehicles wrote to the Commissioner of Police in these terms:
Dear Mr Burns,
I write in relation to Mrs Michelle Thiele of Pompoota who was responsible for the deaths of two people in separate motor vehicle crashes that occurred at the same intersection (Thiele Road and Mannum Road, Pompoota) seven years apart.
Mrs Thiele has recently applied for a learner’s permit. I understand that SAPOL’s Major Crash and Investigations Unit have an interest in this matter and have recently conducted some investigation into Mrs Thiele’s current driving status. To assist with determining her application, I am seeking any relevant information that SAPOL believes may be of interest to the Registrar.
Mrs Thiele’s driver’s licence was cancelled using the discretionary powers provided to the Registrar of Motor Vehicles under section 82 of the Motor Vehicles Act 1959 (the MVA). Upon appeal this decision was overturned by the District Court and subsequently upheld by the Full Bench of the Supreme Court on appeal by the Registrar.
Mrs Thiele is not prevented from applying for the issue of a learner’s permit or a driver’s licence at anytime. Each application must be considered on its merits.
The Deputy Registrar has refused Mrs Thiele’s application for a learner’s permit as he is not satisfied that she has addressed her driving deficiencies, namely her lack of concentration and complacency, such that she no longer poses a danger to other road users.
Mrs Thiele has applied for a review of the Deputy Registrar’s decision under section 98Z of the MVA. Her Application for Review must be referred to the Review Committee for consideration. The Committee is likely to consider Mrs Thiele’s application in mid to late August.
If you require further information or clarification, please contact Mrs Clare Heathcote on the telephone number provided above.
Yours sincerely
Julie Holmes
REGISTRAR OF MOTOR VEHICLES
6 August 2013
On 19 August the Commissioner of Police responded in these terms.
Dear Ms Holmes
I refer to your letter dated 6 August 2013 requesting information that SAPOL believes may be of interest to the Registrar regarding Ms Michelle Thiele of Pompoota who is seeking a review of her application for a driver’s learner’s permit.
Information was provided to the Registrar by SAPOL in a letter dated 7 June 2010 by former Acting Assistant Commissioner Paul Schramm of Operations Support Service about Ms Thiele.
Despite police monitoring Ms Thiele as recent as this year, Ms Thiele has not been detected driving a motor vehicle and this has been further confirmed following a search of police records. Therefore there is no further information of relevance to provide beyond that already supplied other than the following observations.
Further analysis has been conducted of four collisions in which Ms Thiele has been the at fault driver as a result of your request for information. This has identified common themes of concern to SAPOL with respect to Ms Thiele’s previous dangerous driving behaviour, namely:
·A lack of recognition of road hazards.
·Poor judgement and decision making
·Impatience.
·A failure to acknowledge the right of way of other vehicles and to respond accordingly.
·A failure to acknowledge her own dangerous driving behaviour.
·A refusal to modify her driving behaviour based on learning from previous serious, including fatal collisions.
Yours sincerely
(Gary T Burns)
COMMISSIONER OF POLICE
Attached to this letter was a summary that had been prepared for the Commissioner and a further Commissioner’s briefing paper dated 26 May 2010 that been prepared in relation to an earlier application. This paper recommended that the Assistant Commissioner recommend that the Registrar of Motor Vehicles cancel the appellant’s licence permanently pursuant to s 82 of the Act. Also attached was a Commissioner’s briefing paper dated 14 August 2013 and signed 19 August 2013. The recommendation in that briefing paper was that the Commissioner continued to remain opposed to the appellant being issued with a driver’s licence.

I determined that I would admit the affidavit material of Ms Aitchison. Further, I permitted evidence from Mr Fraser to be elicited insofar as it was additional to the written materials that were properly before this court in particular to address the dot points as set out in the letter above from the Commissioner of Police dated 19 August 2013.
The materials of Ms Aitchison were tendered.[5] Mr Fraser gave evidence and was cross examined. In due course it became apparent that the issuing subpoenas to Mr Shanks and Mr Barr was otiose for reasons I will explain.
[5] Exhibit P6.
Affidavit material from the applicant, Mrs Thiele was also tendered.[6]
[6] Exhibits P3 and P4.
Evidence of Mark Fraser
Mr Mark Fraser has been a professional licenced driving instructor for over 14 years. In partnership with his wife he operates “Drive Smart” Driving School. He has done so since 2000. He is a member of the Australian Driver Trainers Association of South Australia Inc. (ADTA SA). This is affiliated with the national body the Australian Driver Trainers Association. His curriculum vitae was annexed to his affidavit dated 2 March 2015. Amongst other experience he has been working with the Hampstead Rehabilitation Centre, The Brain Injury Rehabilitation Community and Home through the Royal Adelaide Hospital and with a clinical neuropsychologist. In these roles he has dealt with drivers who have limitations, physical and cognitive. He assists in assessing their capacity to drive a motor vehicle. His qualifications were not challenged in relation to his area of expertise. Mr Fraser previously worked with the appellant following the decision of Judge Costello on 9 December 2011. He has therefore had the opportunity to observe both Mrs Thiele’s driving skills and her driving behaviours and attitude.
In his evidence before me Mr Fraser addressed each of the concerns that had been expressed by the Commissioner of Police as set out above.
A lack of recognition of road hazards
Mr Fraser gave evidence that this is a deficiency that can be dealt with in the training regime that he proposed. He went on to explain that many drivers who present as learner drivers or as a defensive driver who is experienced tend not to look far enough ahead. They tend not to look high enough or wide enough. By bringing certain road features to their attention they have the realisation that they have missed things or not seen things. An example of this may be having driven past a significant road sign. He checks this by asking drivers what they can expect to see ahead. If they have failed to notice the sign then he would start by asking ‘what’s happening ahead?’ He said that tends to open up their vision. He said he can assess how readily the driver has addressed this deficiency because he is able to see where the driver is looking through the aid of the additional mirror in the car and by the actions that they take to anticipate a hazard that is ahead. He went on to say that reinforcement through repetition is a useful tool.[7] Mr Fraser went on to give an example of the person he had worked with who, despite the training, was unable to remedy this deficiency. In that case the deficiency was so significant that the driver chose to with counselling from Mr Fraser, not to continue driving. In those circumstances he was unable to determine whether her lack of capacity was as a result of an attitudinal, physiological or some other deficit. He went on to say about a third of the people he has worked with have a deficiency in this particular area and with the exception of the example that he gave through his training he was able to satisfactorily address this deficiency.
[7] Transcript 47.
Poor judgment and decision making
Mr Fraser gave evidence that the training regime that he has suggested can address and potentially remedy this deficiency. He described the deficiency as one of awareness. He said that quite often when there was a risk factor present and it was pointed out then people have a realisation of it. He said that most of the clients he has dealt with in the past had a tendency or a deficiency in this particular area and that very few of them had not been able to remedy this deficiency with appropriate training. He explained that if people are determined to continue to make poor decisions and exercise poor judgment then the training will not be effective.[8]
[8] Transcript 52.
He said that he is able to adequately supervise individuals who may display these deficiencies as his car has a brake on his side and he is extremely vigilant in his observations of the surroundings and very experienced in preventing the driver ending up in a situation that will end badly.
Impatience
Mr Fraser gave evidence that a lot of his clients at all levels that is, inexperienced drivers and experienced drivers, are impatient in traffic. He explained in these terms. People tend to hurry. They think hurrying is going to get them somewhere. Helping them to understand that it makes little or no difference in travel time to travel faster by going for the gap in the traffic rather than waiting for a second more appropriate gap assists them to address these issues. He said helping people understand what they are doing is putting themselves in danger and has no advantage, is a part of his training program. In addition to this he has on occasions sought to demonstrate his instruction to them by timing the trips. He has done that with the appellant because she was displaying a certain degree of impatience and hurrying to get to a destination. He said with ongoing training the improvement in a person’s driving skill can be quite significant. He said he cannot remember an individual he has trained or instructed with this deficiency that he was unable to remedy. He added the caveat that he does not know what happens when he is not there. Mr Fraser said that during the time he had instructed the appellant he observed a significant change in her driving capacity. She was maintaining distance from the car in front and rather than feeling the need to be up to the speed limit was staying back off the limit and generally being a calmer driver.[9] At the time the driving instruction was curtailed as a result of the cancellation of her licence he believed he was close to remedying this deficiency.
[9] Transcript 55.
A failure to acknowledge the right of way of other vehicles and to respond accordingly
Mr Fraser said this was not a deficiency that he had recognised in his training session with Mrs Thiele. He said it wasn’t a particularly common deficiency but it does happen. He said that when it does occur it is generally not that people are choosing not to give way but rather that they are not looking sufficiently to be able to appropriately give way. He went on to say that he had observed that the appellant exhibited a failure to have a proper look out in her driving. He explained the issue as follows. Once the appellant had confirmed that the road was clear, she would then become very focussed on the right for example if the right had a poor view. He went on to say:[10]
QWhen you say when she had confirmed the road was clear, do you mean in any particular direction of travel or traffic.
AWell the case in point was having looked to the left and established the left was clear, looked to the right and it looked clear but was unsure, then had a much more significant look, moved the car, crept a bit, rechecked the right, and then having confirmed the right is clear proceeded into the intersection without rechecking the left even though a period of say, five to 10 seconds may have passed since she last looked for the left.
QAnd this happened during your driving instruction of her in 2011.
AYes.
[10] Transcript 57.
This deficiency was apparent during the driving instruction that he gave during 2011. Having identified the deficiency he then attempted to remedy it first by discussion and pointing out the issue and then proceeding to go to a number of intersections and locations where it was likely to be a problem and talking about it at those points. In relation to her driving behaviour he observed significant change. He looked over his notes from the sessions that he had conducted and noted that within a short period of time there were very good observations. It appeared to have been an issue he thought where there had been a lack of awareness that was quickly resolved.
This particular deficiency is, of course, the most significant of the deficiencies in relation to her driving in 2001 and 2007. If she had such a deficiency at that time it may explain how and why these collisions resulting in the unfortunate deaths of the other drivers occurred. This is clearly a deficiency that would need to be continually worked upon and recognised by the appellant if she were permitted to drive.
Mr Fraser said that this deficiency is a common one in particular with learners. He went on to say that this deficiency that he observed in the appellant was no more and no less than he has seen in experienced drivers. It is a very common deficiency. One of the reasons that this deficiency may occur is as a result of the level of complacency in a driver. It was this complacency in the appellant that led to the collision of 2007. Mr Fraser went on to say that to remedy an attitudinal issue of this type an individual needs to be aware of the issue and recognise the danger that it poses. With this understanding the issue can be remedied.
Failure to acknowledge her own dangerous driving behaviour
Mr Fraser said that during his sessions with Mrs Thiele he did not observe a failure to acknowledge her dangerous driving behaviour. He said that initially the appellant was worried that there wouldn’t be anything concrete that would be observed that would enable her to address it and thereby remedy her deficiencies. He said when the issue in relation to a failure to recheck to the left was discovered she readily embraced it as something she could change and then changed her behaviour. Mr Fraser gave evidence that he has, in the past, assisted clients who have admitted driving dangerously or been returning to driving as a result of their offending. He said that, in respect of these individuals, he sometimes observed that, at first, they did not acknowledge their own dangerous driving behaviour but, generally, after spending time with them and explaining the issues to them, there was a recognition of the problem. He had not had a client with such a condition that he considered could not be remedied.
A refusal to modify driving behaviour based on learning from previous serious collisions
Mr Fraser gave evidence that his observation of Mrs Thiele during the driving sessions he had with her was that she was ‘someone who was very careful and concerned and very keen to find and change any behaviour necessary’.[11] He contrasted this with other clients he’d had in the past who despite previous collisions had exhibited a refusal to modify their driving behaviours.
[11] Transcript 61.
Mr Fraser was cross examined. He was reminded of some evidence that he had given in the proceedings before Judge Costello. At that time Mr Fraser had opined that the A pillar of the car may have obscured the appellant’s vision at the time of the 2007 collision. He was asked whether the A pillar was obscuring her vision at the time of that collision. He said that tests have been done in relation to that and it was found that the A pillar of the appellant’s car does obscure her vision. He acknowledged, however, that as he wasn’t there at the time of the collisions in 2001 and 2007 he was unable to say whether the other motor vehicle and the motor cycle involved in the collisions were obscured from view as a result of the A pillar. He was also asked whether a blind spot within the eye may have contributed and said it may have contributed but he couldn’t say.
It was suggested to him that, looking specifically at the fatal incidents in relation to this matter, it cannot be said that the key issue was that the appellant had focussed on looking right to the exclusion of looking left given the topography of the area. Mr Fraser said the key issue that people he was talking about have is usually having looked to the left on a number of times and then focussed on the right and it is that time period passing before they have looked back to the left that is the critical issue and they do not recheck the left because they have a focus on the right hand side.
It was put to him that the situation that was described as ‘the Walkerville Terrace issue’[12] is a different scenario to that that occurred on Mannum Road (the scene of the collision) where the appellant had travelled for a substantial period of time, being a distance of 400 metres down an incline with a clear view to the left. Mr Fraser gave evidence that the similarity arises because the only place you get a fully uninterrupted view of the main road at the intersection is where you cross it from Thiele Road. That is where you’re at the hold line and you stopped and looked because that’s the only point at which the pillar or the strain post on the corner doesn’t actually block your view to the left. He said he had had this experience at that intersection and attributed this to the A pillar in his car.[13] He explained that on that occasion he was doing some sort of an experiment where as he drove down the road he looked towards the A pillar of the car and then back to the road and in doing so he made the observation that he had not observed a car that was in fact driving along the main road. He was in effect trying to replicate what the appellant might have experienced as she drove down the road. He said that in trying to replicate this, cars were approaching on quite a few occasions and it was only on one occasion that he failed to observe it until he reached the stop line. He went on to explain in some detail the observations that he had made in relation to the driving conditions on Burdett Road and the interaction with the A pillar. He said he was doing this research in order to work out what, if anything he could do to help the appellant overcome the issue if there was in fact an issue.
[12] See affidavit dated 29 March 2012 para 21 – 30.
[13] Transcript 77.
Mr Fraser was cross examined in relation the deficiencies that the Commissioner of Police had identified in the appellant. He was asked how he measures his success in training an individual to overcome these deficiencies. Mr Fraser said that the majority of his clients have an opportunity to do a driving assessment at a later stage and he can see the results. He said that sometimes this could be an informal assessment which can be a good guide because people do not behave in the way that they do for formal driving tests. He acknowledged that, despite the training, it is possible some of his clients have subsequently committed driving offences and said any driver at any time could drive inappropriately. He acknowledged that even though the appellant may address the deficiencies in her driving that she could subsequently drive in an inappropriate way.
Mr Fraser quite properly conceded in his cross examination that he couldn’t confirm that the appellant’s driving in the future will always be addressed so that there are no deficiencies. When asked whether if the cause of either or both of a particular fatal accidents was different to the key issue that was identified, whether he has a way of assessing the risk that the appellant presents to other drivers, Mr Fraser explained that if the comprehensive training programme is set out and the competency based training assessment course was also conducted but it was highly likely that any other issues would also be addressed but to date that had not been able to be undertaken.[14]
[14] Transcript 84.
When asked whether his training would assist an individual who had all of the defects identified by the Commissioner of Police in his letter dated 19 August 2013 he said he believes that the likelihood of remedying those defects is very good because he has dealt with a number of people over the years who could easily have been said to have all of those defects but once he works through the process he can bring that person to a point where they are a reliable, effective and safe driver.
In re-examination Mr Fraser was taken through a series of photographs that had been taken on Thiele Road near the scene of the collisions.[15]
[15] Exhibit P2.
In addition to the evidence given by Mr Fraser the affidavit with the annexures addresses the issues of training instruction and the progress of Mrs Thiele in 2011 and 2012 whilst he was undertaking driving instruction with her.
Evidence of Ms Aitchison
The materials from Andrea Aitchison that were tendered by consent included a report dated 29 February 2015 headed a Pre Drive Screen Assessment Report and a supplementary report to be read in conjunction with the Pre Drive Screen Assessment Report dated 20 July 2015.[16] Ms Aitchison is an occupational therapist who has been practising in the area of adult brain injury in Adelaide since 1983. As a result of the pre drive screening assessment Ms Aitchison concluded that there were nil physical or visual issues noted in the appellant. There were good visual scanning skills and general observation and attention to detail. There were nil significant cognitive issues noted. It was a good application of the road law knowledge. There were nil issues with insight and a good understanding of the need for assessment of driving capacity was noted. Ms Aitchison noted that although there were no significant issues noted in the results, given the driving history and the licence disqualifications, an on road driving assessment was recommended in order to provide a fuller assessment of driving capacity in addition to a fully updated optometric assessment.
[16] Exhibit P6.
The optometric assessment has since been undertaken and report provided by Kristin Guppy dated 18 March 2015 indicating there are no issues in relation to vision. The report reiterates that whilst there were no significant issues noted in the pre drive screen results, that the driving history and the licence disqualifications are such that an on road driving assessment is recommended by Ms Aitchison. She also suggests that this assessment be undertaken with both her and a driving instructor present in the vehicle.
Evidence of the appellant
An affidavit from the appellant[17] was received. She was born on the 17 April 1971. She has three children and she and her husband operate a mixed farming enterprise near Mannum. The farm is spread over 12 blocks of various sizes which stretch over a distance of some 18 kilometres. In her affidavit she addresses her personal need for a driver’s licence including driving her children to school approximately 20 kilometres from home and the need to do shopping etc. Her affidavit also addresses the benefits that she would receive from being permitted to drive on public roads between the farm blocks to assist with the work of the farm and the financial issues that have arisen as a result of her not being able to drive.
[17] Exhibit P4.
In an affidavit sworn on 21 July 2015 the appellant addressed the issue of a speeding fine that she received in 2008.[18]
[18] Exhibit P3.
Discussion
It was conceded by counsel for the respondent in argument that while the documents from the Commissioner of Police dated 19 August 2013 could not have been before the Deputy Registrar at the time he made his decision in all likelihood they were before the Review Committee when they met on 19 August 2013 and, by the time they met for the second occasion on 2 September 2013, the material was almost certainly before the Review Committee. It was also conceded that the material was not disclosed to the appellant prior to the decisions being made.

When the Review Committee conveyed their decision to the appellant with their reasons on 25 October 2013 they set out the material to which they had regard in the making of the decision. They did not include the information from the Commissioner of Police nor the Commissioner’s briefing papers that appears to have been before them.
It was conceded by counsel for the respondent that the Review Committee was in error in not disclosing the material to the appellant and not disclosing in their reasons for decision that they had had regard to this material and setting out what if any, part, it played in their considerations for the decision dated 25 October 2013. The respondent, despite diligent inquiry, was also unable to ascertain from the Deputy Registrar whether the 2010 material referred to above was before him but conceded that in all likelihood it was or alternatively the attendant uncertainty gave rise to difficulties that simply could not now be resolved.
It is not surprising that the Commissioner of Police is strident in his opposition to the application made by the appellant. In some respects the material that is referred to by the Commissioner and set out in the respective briefing papers is material that has been canvassed on many occasions in the past by the appellant.
Despite the fact that the Deputy Registrar of Motor Vehicles could not have had this material before him at the time of his decision, I consider that in all likelihood he had before him or had access to the material referred to by the Commissioner of Police in his letter dated 19 August 2013, being the letter dated 7 June 2010 by former Acting Assistant Commissioner Paul Schramm of Operations Support Service about the appellant. The only purpose of providing this material at that time was to ensure that it was taken into account in a previous application made by the appellant.
On this appeal I must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons. It is conceded by the respondent that the process that was undertaken in receiving the information and failing to disclose it or how it affected the decision making process by the Deputy Registrar and Review Committee is capable of giving rise to cogent reason to depart from the decision. The appellant did not have the opportunity to address that information before the original decision makers.
I am satisfied that the failure to disclose the material and to disclose the extent to which the views the Commissioner of Police expressed in 2010 and again in 2013 were taken into account by the Deputy Registrar and Review Committee respectively were such that the process undertaken has miscarried. I consider that there is cogent reason to interfere. In those circumstances I rescind the decision and will substitute a decision that I consider to be appropriate in all the circumstances. In other words, I will make a fresh decision on the merits of the appeal, taking into account all of the material before me.
I have set out the history of this matter in the course my judgment. I do not intend to repeat that. Section 82(1) of the Act provides:
82—Vehicle offences and unsuitability to be granted or hold licence or permit
(1)The Registrar may—
(a)refuse to issue a licence or learner's permit to a person or to renew a person's licence or learner's permit; or
(b)suspend a person's licence or learner's permit for a specified period; or
(c)cancel a person's licence and issue in its place a probationary or provisional licence subject to probationary or provisional licence conditions effective for a specified period; or
(d)cancel a person's licence or learner's permit,
if the person has been convicted of or has expiated an offence, or series of offences, involving the use of a motor vehicle (whether in this State or elsewhere) such that it appears that the person should not hold a licence or permit, or should hold a licence subject to conditions, in order to prevent accident or injury or a repetition of the offence or offences by the person.
The application in this case is for a learner’s permit. I therefore restrict my decision to this application.
There can be no doubt that there were major deficiencies in the capacity of the appellant to drive safely in 2001 and 2007. These episodes were the subject of a Coronial Inquest in which the Deputy State Coroner found that the appellant was a ‘motorist of quite limited aptitude, competence and temperament’.[19] Indeed he went so far as to remind the registrar of the existence of his powers under s 82 of the Act.
[19] BOD of the documents 3.4.
However, since that time, the appellant has had the opportunity to address some of the identified deficiencies. This has taken the form of driving instruction from Mr Fraser who has provided an affidavit and supplemented this with oral evidence. This was led to address the issues that had been the subject of comment by the Commissioner of Police and the summary document prepared by officers within the Department of Planning, Transport and Infrastructure (DPTI) (neither of which were disclosed to the appellant until after the decisions of the Deputy Registrar and the Review Committee). In particular the summary documents assertion ‘that the training programme ordered by the District Court is not considered suitable as it did not address the underlying issues’. Mrs Thiele has proven that she can pass a practical driving test and that she can drive within the law. It is her lapses of concentration, inattention and her complacency that presents a risk of a repeat of the offences that resulted in the other drivers’ deaths.[20]
[20] BOD of the documents 4.3 [21].
The evidence of Ms Aitchison is relevant to the question of the appellant’s capacity to drive a motor vehicle and attitudinal issues that have been identified.
In combination it is said that the evidence of Mr Fraser and Ms Aitchison addresses the concerns that have been raised by the Commissioner of Police in particular (1) a lack of recognition of road hazards; (2) poor judgment and decision making; (3) impatience; (4) a failure to acknowledge the right of way of other vehicles and to respond accordingly; (5) a failure to acknowledge dangerous driving behaviour and (6) a refusal to modify driving behaviour based on learning from previous serious collisions.
Consideration
The issue of a learner’s permit is governed by s 75A(2) of the Act.
75A—Learner's permit
(2) Subject to this Act, the Registrar must issue a learner's permit to an applicant if—
(a)the applicant—
(i)is at least 16 years of age; and
(ii)is resident in the State; and
(iii)has passed the theoretical examination prescribed for the purposes of section 79; and
(iv)has complied with any requirements of the Registrar under section 77B; and
(v)has complied with any other requirements prescribed by regulation in relation to the class of motor vehicle in respect of which the permit is sought; and
(b)the application—
(i)is made in a manner and form determined by the Minister; and
(ii)is accompanied by the prescribed fee.
Pursuant to s 75A(9) and (10) there are mandatory conditions and pursuant to s 10(d) the Registrar is empowered to impose any other condition limiting the kind of vehicle that may be driven pursuant to the permit or limiting the hours during which or the locality within which the vehicle may be driven pursuant to a permit or imposing any other restriction that the Registrar thinks is necessary. Any condition imposed on the learner’s permit must be endorsed on the permit. Whilst a person could theoretically be on a learner’s permit indefinitely the Act contemplates a process by which a person would qualify for a probationary provisional licence. The Registrar may also impose additional conditions that are necessary for the purpose of preventing accident or injury pursuant to s 81 of the Act.
Pursuant to s 82 of the Act, as I have already dealt with, the Registrar may refuse a licence or a learner’s permit in order to prevent accident or injury or a repetition of an offence or offences by the person. It was of course this power that the Registrar invoked to refuse the learner’s permit and upon which the review and the consequent appeal has revolved.
At the time of the application for a provisional licence that may follow from the learner’s permit a separate decision making process would need to be undertaken by the Registrar based on the material that was available at the relevant time.
Issuing a learner’s permit in any circumstances involves a degree of risk to the community. This degree of risk is increased, if, as in the present case, the driving of the appellant has been shown to be defective on not just one but a number of occasions. The fact that the driving in this case necessarily involves crossing or turning onto Mannum Road at the intersection where two fatal crashes has occurred or at an intersection in the country where similar conditions prevail is a matter to be taken into account. I consider the views of the Commissioner of Police as expressed in his letter dated 19 August 2013 and in the briefings prepared for him are legitimate and proper matters to be taken into account. The views expressed in the recommendation on 26 May 2010 are legitimate views that appropriately sum up the risk of allowing the appellant to drive a motor vehicle again on the road.
COMMISSIONERS BRIEFING PAPER
SUBJECT:         Section 82 MVA – cancel driver’s licence – Michelle Leanne THIELE
BACKGROUND
Michelle Leanne THIELE has been involved in two separate fatal collisions, both times as the driver at fault. She has also had two minor collisions, further demonstrating her exceptionally poor driving skills. At a recent inquest the Deputy Coroner noted her driving skills were manifestly unacceptable. This paper and accompanying letter are submitted with a view to preventing THIELE regaining her driver’s licence.
RELEVANT POINTS
·At about 8.20 a.m. on 26 April, 2000, Michelle Leanne THIELE, was travelling east along Thiele Road, POMPOOTA, which at the intersection with Mannum Road was controlled by a give way sign. All vehicles on Thiele Road had to give way to all vehicles travelling along Mannum Road. THIELE failed to give way to a southbound car, which was a bright yellow Toyota Corolla, driven by John Eric MITCHELL. Mr MITCHELL collided with the passenger side of her Holden Utility and died at the scene. THIELE was fined for Failing to Give Way.
·At about 10.55 a.m. on 23 June, 2007, Michelle Leanne THIELE was approaching that same intersection when she again failed to give way, this time to a motorcyclist, Graham BRYANT. Mr BRYANT collided with the passenger side of her Four Wheel Drive Utility and died at the scene. THIELE was convicted of Aggravated Careless Driving and received an 8 month suspended gaol sentence along with an 18 month driver’s licence disqualification.
·During the investigation of the 2007 fatal collision, ensuing court case and a subsequent Coronial Inquest, a number of other factors also came to light. Mrs THIELE had been involved in two previous collisions, that although did not result in a death or serious injury, demonstrated a serious impairment to her driving ability.
·The first occurred in 1992 when Mrs THIELE was involved in a collision in Western Australia, where she ran into the rear of a stationary vehicle and received an expiation notice for Careless Driving.
·The second occurred in 1998 when Mrs THIELE was driving on Karoonda Road, near MURRAY BRIDGE. When she moved onto the incorrect side of the road to overtake another car, THIELE realised that there was a car travelling towards her. THIELE pulled back to her side of the road so suddenly and braked so hard, that the wheels locked and she lost control. Her car left the road out of control and travelled down an embankment, rolling a number of times. During the inquest THIELE admitted that the cause of this incident was that she had been driving without due care or attention.
CORONIAL INQUEST
·Throughout Australia, there has never been another person who has had two separate fatal collisions, at the same intersection, in the same set of circumstances. As such, the matter was inquested by the Coroner. The Deputy State Coroner, Tony SCHAPEL, in concluding made the following two statements.
“Having regard to Mrs THIELE’S driving behaviour in both of these incidents, and bearing in mind her previous driving history, ignoring as I do the relatively unimportant collision that occurred in 1992 in Western Australia, I am driven to conclude that Mrs Thiele is a motorist of quite limited aptitude, competence and temperament. But whatever the position may be as to Mrs Thiele’s competence, she now has a driving record that by any standard is manifestly unacceptable.”
“It will be observed that section 81AB of the Motor Vehicles Act 1959 (the Act) only imposes probationary conditions following a period of disqualification in limited circumstances that do not apparently apply to Mr Thiele. It is a matter for the authorities and the legislature as to whether that is a desirable state of affairs. It is also a matter for the Registrar of Motor Vehicles as to whether the powers contained in section 82 of the Act that permit suspension of a person’s licence in order to prevent accident or injury or a repetition of an offence involving the use of a motor vehicle need be invoked in this case. All this Court can do is remind the Registrar of the existence of those powers.”
·SECTION 82 MVA – THIS SECTION OUTLINES THAT (refer to Part D) Vehicle offences and unsuitability to be granted or hold licence or permit
The Registrar may—
(a)     Refuse to issue a licence or learner’s permit to a person or to renew a person’s licence or learner’s permit; or
(b)     Suspend a person’s licence or learner’s permit for a specified period; or
(c)     Cancel a person’s licence and issue in its place a probationary or provisional licence subject to probationary or provisional licence conditions effective for a specified period; or
(d)     cancel a person’s licence or learner’s permit, if the person has been convicted of or has expiated an offence, or series of offences, involving the use of a motor vehicle (whether in this State or elsewhere) such that it appears that the person should not hold a licence or permit, or should hold a licence subject to conditions, in order to prevent accident or injury or a repetition of the offence or offences by the person.
RECOMMENDATION
Michele THIELE has demonstrated a driving incompetency beyond the comprehension of most people. After causing a fatal collision, a person should have a heightened awareness when driving in any circumstances, but especially at the very intersection where that fatal collision occurred. Mrs THIELE however negotiated it with such complacency that she again caused a person’s death. The likelihood of it happening a third time has to be taken very seriously and I request that the Assistant Commissioner recommend that The Registrar of Motor Vehicle cancels her driver’s licence permanently, vide Section 82 of the Motor Vehicles Act.
At that time, of course, Mrs Thiele had not undertaken the driver training as set out by Mr Fraser nor had she undertaken the practical training with him that occurred in 2011-2012. At the time the Commissioner’s briefing paper was prepared on 19 August 2013 the material that appeared to have been available to the Assistant Commissioner did not include the driver training that she had undertaken in the interim. The recommendation was based on the past history as disclosed by police records and no doubt taking into account the findings of the Deputy State Coroner as the Police Commissioner had been a party to those proceedings.
Each of the issues of concern raised by the Commissioner of Police in his letter dated 19 August 2013 has been addressed in the evidence by Mr Fraser.
There is, of course, proper acknowledgment by Mr Fraser that, when dealing with risk, it is not possible to be or to express a view that is definitive. Nevertheless, there needs to be an assessment of the risk associated with the driving by the appellant whilst she is accompanied by a qualified driver and subject to what other conditions are appropriate in relation to her learner’s permit. At this stage the appellant is not competent to hold a provisional or full driver’s licence.
Having regard to the evidence before me, however, particularly the evidence of Mr Fraser, I find that Mrs Thiele may now be considered to have an equivalent potential to be a safe driver as any applicant for a learner’s permit. Mrs Thiele is not presently competent to hold anything more than a learner’s permit. This is the only application she has made. She must effectively start again proceeding through the permit conditions before passing a formal assessment of her driving competency before consideration will be given to issuing a probationary licence to her.
I have determined that, giving consideration to all of the matters that have been raised, including the considerable amount of concern that is expressed by the Commissioner of Police, it is appropriate that the appellant be granted a learner’s permit with conditions that she undertake and successfully complete the regime as outlined by Mr Fraser and that she be subject to all conditions the Registrar considers appropriate on her learner’s permit beyond that. I therefore set aside the decisions of the Deputy Registrar and the Review Committee.
I direct the Registrar of Motor Vehicles to issue a learner’s permit subject to the conditions of s 75A(2) and such conditions as the Registrar considers appropriate under the Act. In addition to this the appellant must undertake and successfully complete the programs as outlined by Mr Fraser.