Towle v Registrar of Motor Vehicles
[2023] SASC 92
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge: Civil)
TOWLE v REGISTRAR OF MOTOR VEHICLES
[2023] SASC 92
Judgment of the Honourable Justice McDonald
9 June 2023
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE
The Registrar of Motor Vehicles (‘The Registrar’) made a determination to downgrade the drivers’ licence of Mr Towle such that he was no longer permitted to drive heavy duty vehicles. Mr Towle contended that the Registrar was in error in acting on medical information that it relied upon in its’ decision. That decision was subject of a review in the South Australian Civil and Administrative Tribunal (‘The Tribunal’). The Tribunal affirmed the decision of the Registrar to downgrade Mr Towle’s licence. It is that decision of the Tribunal that Mr Towle now appeals to this Court.
The Registrar wrote to Mr Towle in June 2020 advising him of the decision to downgrade his licence and impose certain restrictions. The decision of the Registrar was made pursuant to s 80(2) of the Motor Vehicles Act 1959 (SA) after the Registrar received medical advice from Dr Kochiyil.
Mr Towle proceeded to write to the Registrar several times over the following months in June 2020 September 2020, March 2021, and April 2021. Also in April 2021, Mr Towle applied for an internal review pursuant to s 98Z of the Motor Vehicles Act 1959 (SA), resulting in the decision of the Registrar being confirmed again in June 2021.
On 24 June 2021, Mr Towle made an application to the Tribunal for a review of the decision. The Tribunal hearing took place in March 2022, with the decision delivered in April 2022 with the Tribunal finding that it was not satisfied that the initial decision of the Registrar was not correct or preferable.
Held, that the grounds put forward by the appellant are not reasonably arguable, and finding that the Tribunal arrived at the correct and preferable decision:
1. Leave to appeal is refused.
2. The appeal is dismissed.
Motor Vehicles Act 1959 (SA) s 5, s 80, s 98Z and s 98ZA; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 34, s 35, s 37 and s 71; Uniform Civil Rules 2020 (SA) r 217.10, referred to.
R v Dorning (1981) 27 SASR 481; R v McIntee (1985) 38 SASR 432; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259; Kioa v West (1985) 159 CLR 550; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; Johnson v Johnson (2000) 201 CLR 488, considered.
TOWLE v REGISTRAR OF MOTOR VEHICLES
[2023] SASC 92
Appeal to a Single Judge: Civil
McDONALD J:
This appeal arises from concerns that Mr Towle has about the circumstances in which the Registrar of Motor Vehicles (‘the Registrar’) made the determination to downgrade his driver’s licence such that he is no longer permitted to drive heavy duty vehicles. It is his contention that the medical information on which the Registrar acted was incorrect and did not justify the decision that was made.
The Registrar’s decision was the subject of a review in the South Australian Civil and Administrative Tribunal (‘the Tribunal’). The Tribunal affirmed the decision of the Registrar to downgrade Mr Towle’s driver’s licence. It is against this decision that Mr Towle appeals. He does so on the basis that the Tribunal erred in arriving at this decision absent appropriate medical evidence and further that he was not accorded procedural fairness in the hearing before the Tribunal.
The events leading up to the Tribunal hearing
On 10 June 2020 the Registrar wrote to Mr Towle and advised that he had made the decision to downgrade Mr Towle’s driver’s licence from a HC (heavy vehicle) class to a C (car) class licence. The Registrar also imposed restrictions on his licence namely that he only be permitted to drive automatic vehicles, that he wears a right ankle foot up splint (‘splint’) and that he drives no further than a 10km radius of his residence in Barmera. Mr Towle was also directed to undertake a practical driving assessment (‘PDA’) to confirm his ability to safely operate a motor vehicle and to comply with the Australian Road Rules in an on-road situation. In that letter Mr Towle was also advised that a failure to undertake the test may result in the suspension of his driver’s licence.
The decision of the Registrar was based on medical advice that he had received from Dr Kochiyil, the head of the Driving Assessment Clinic at the Modbury Hospital. The Registrar’s decision was made under s 80(2) of the Motor Vehicles Act1959 (SA) (‘the MV Act’).
In a letter dated 13 May 2020[1] following a clinical examination of Mr Towle, Dr Kochiyil had notified the Department of Transport and Infrastructure (the Department’) that Mr Towle had a medical condition affecting the strength of his right ankle. He made the following recommendation:[2]
I am happy for him to continue driving under conditions (need to use a foot up splint, automatic car only, local driving) provided he successfully completes a department of transport road assessment as soon as COVID 19 related restrictions are lifted (within next 6 weeks).
[1] There have been two versions of the same letter produced one dated 13 May 2020 and one dated 15 May 2020. It was the letter dated 13 May that was forwarded to the Registrar.
[2] Letter from Dr Kochiyil dated 13 May 2020.
In that letter there was no reference to the category of drivers licence that was held by Mr Towle.
Subsequent to receiving the June 2020 letter from the Registrar Mr Towle raised concerns about the conditions and downgrading of his licence. In response to those concerns on 14 August 2020 Dr Kochiyil advised the Department that he was happy for Mr Towle to undertake the PDA in a manual vehicle and that the ‘local driving’ restriction could be removed. However in order to have his HC licence reinstated Mr Towle would be required to undertake a further PDA in a heavy vehicle.
On 25 August 2020 Mr Towle passed the PDA in a manual vehicle. The author of the PDA report recommended that he hold a C class licence. The Registrar advised Mr Towle by letter dated 4 September 2020 that the original decision had been varied to remove the condition limiting him to driving automatic vehicles, however his licence remained restricted to C class vehicles and he was still required to wear a splint.
On 18 September 2020 Mr Towle wrote to the Registrar raising various complaints about Dr Kochiyil and requesting that the September 2020 decision be reconsidered.
This decision was confirmed by the Registrar on 9 October 2020 and Mr Towle was advised that before the decision could be revisited a further report from a rehabilitation specialist was required confirming his fitness to drive a heavy vehicle.
It would appear that at this time there was a pause in the communications between Mr Towle and the Registrar.
On 17 March 2021 and 1 April 2021 Mr Towle again wrote to the Registrar requesting that the 10 June 2020 decision be reconsidered. On 20 April 2021 the Registrar responded to the request confirming yet again that before there could be any further consideration given to the reissue of his HC class licence a further report from a rehabilitation specialist was required, confirming that he was fit to resume driving heavy vehicles. The Registrar also advised Mr Towle of his right to apply for a review of his decision under s 98Z of the MV Act.[3]
[3] Motor Vehicles Act (1959) SA s 98Z.
On 30 April 2021 Mr Towle filed an application for a s 98Z internal review.[4] On 4 June 2021 the Deputy Registrar wrote to Mr Towle and advised that the decision to downgrade Mr Towle’s licence and impose a condition to wear an ankle splint was confirmed pending the receipt of a report from a specialist confirming his fitness by the specialist to drive a heavy vehicle. In that letter Mr Towle was also advised of his right to appeal to the Tribunal against the decision of the Registrar on the internal review if dissatisfied with the outcome.
[4] Ibid.
On 24 June 2021 Mr Towle filed an application in the Tribunal for a review of the decision made on 4 June 2021.
On 19 July 2021 Mr Towle attended at the Flinders Medical Centre for a medical examination by Dr Luker, a medical rehabilitation specialist based at the Flinders Medical Centre. He had arranged for that examination to assist him in contesting and removing the restriction of the splint and also to reinstate his HC licence.
Subsequent to that consultation Dr Luker provided a report setting out the results of the examination and his recommendations. Dr Luker recommended a two stage approach – that Mr Towle undertake a PDA in a manual vehicle without the foot splint to determine whether that condition should be removed from his licence. In the event that he passed this test Dr Luker proposed to refer Mr Towle for a PDA in a heavy vehicle in order to assess whether his HC licence should be reinstated. In light of that report, on 2 September 2021, the Tribunal adjourned the hearing to enable Mr Towle to participate in a further PDA as recommended by Dr Luker.
On 14 September 2021 Mr Towle successfully completed the PDA in a class C vehicle without a splint. Following that on 24 September 2021 the Registrar advised that a fresh decision had been made to issue him with a class C licence with no conditions.
The Registrar indicated that it was open to Mr Towle to take a further PDA in a heavy vehicle, however Mr Towle declined to do so. That option has remained open to Mr Towle during the proceedings before the Tribunal and this court however Mr Towle has remained steadfast in his refusal to undertake a heavy vehicle PDA.
The SACAT review
Pursuant to s 98ZA of the MV Act,[5] a person dissatisfied with a decision of the Registrar may seek a review of the decision by the Tribunal under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA).[6] An application to review a decision comes within the Tribunal’s review jurisdiction and the Tribunal is required to examine the decision under review by way of a re‑hearing[7] and must reach the correct and preferable decision, having regard and giving appropriate weight to the decision of the original decision maker.[8] The Tribunal in conducting a review of a decision and exercising those powers is taken to be standing in the shoes of the original decision maker, but also may have reference to additional relevant evidence as the review is by way of a rehearing. The Tribunal ‘may make any order the Tribunal considers appropriate’[9] and the Tribunal’s decision on a review is to be regarded as and given effect as a decision of the original decision-maker.[10]
[5] Motor Vehicles Act (1959) SA s 98ZA.
[6] South Australian Civil and Administrative Tribunal Act (2013) (SACAT Act) s 34(3).
[7] Ibid.
[8] SACAT Act s 34(4).
[9] Ibid s 37(1).
[10] Ibid s 37(3).
The hearing in the Tribunal took place on 25 March 2022.
Whilst Mr Towle’s submissions were broad ranging and at times digressive his principle argument appeared to be that the decision of the Registrar was wrong in that it was based on inadequate and incomplete information from Dr Kochiyil. He further submitted that before communicating with the Registrar, Dr Kochiyil was required to conduct an appropriate examination and in circumstances in which he did not do so, the Registrar was in error in acting on his advice. In particular it was Mr Towle’s contention that Dr Kochiyil was obliged to conduct an examination in accordance with the ‘Assessing Fitness to Drive’ 2016 Guidelines (‘the Guidelines’) and he had not done so.
The decision of the Tribunal was delivered on 19 April 2022. The Tribunal was ‘not satisfied that the initial decision of the Registrar made on 10 June 2020 was not correct or preferrable’.[11] This was on the basis that the Registrar had been provided with information from a legally qualified Medical Practitioner concerning Mr Towle’s competence to drive and had acted upon it. Under the MV Act the Registrar has an obligation to address concerns brought to his attention concerning the competence of a person to drive a motor vehicle. The Tribunal observed that ‘if the Registrar is presented with information by a health practitioner concerning a person’s competence to drive, as in this case, it would hardly be proper for the Registrar to ignore or not act on the information’.[12]
[11] Order of the Tribunal 2021/SA001942 (‘SACAT Decision’) [30].
[12] SACAT Decision [27].
In considering the matter afresh the Tribunal also had the benefit of Dr Luker’s report which effectively confirmed the position of the Registrar based on Dr Kochiyil’s advice which was that it was necessary for Mr Towle to undertake a PDA in a heavy vehicle before his licence could be upgraded.
The Tribunal found that although the subsequent decision made on 24 September 2021 was to remove the remaining conditions, the issue of the decision to downgrade the licence was still a live aspect of the original decision made in June 2020.
The Tribunal was also satisfied that the decision of 6 October 2020 (to confirm the previous decision) was correct and preferrable.
In those circumstances the orders of the Tribunal were to affirm the decision of 24 September 2021 and to vary the decision of 10 June 2020 such that Mr Towle’s driver’s licence was downgraded from a HC class licence to a C class licence but without any conditions. Whilst it is not entirely clear to me why the Tribunal adopted the approach of addressing each of the stages of the decision‑making process, the effect of the Tribunal’s decision is that the Registrar’s decision to downgrade Mr Towle’s HC licence to a C licence, without any conditions was affirmed.
A preliminary issue – Fresh evidence
Mr Towle has sought to rely on fresh evidence in this appeal, that is material that was not before the Tribunal. The court has a discretionary power to receive fresh evidence.[13]
[13] Uniform Civil Rules 2020 (SA) r 217.10(1)(c); South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(3b).
The exercise of the discretion to admit fresh or further evidence must take into account both the public interest in the finality of litigation as well as the prospect that it may have an important bearing in the outcome of the case.[14] It is generally accepted that an applicant seeking to adduce fresh or further evidence will usually be required to satisfy three conditions before that evidence will be received on appeal. These are:[15]
·It must be shown that the evidence could not have been obtained with reasonable diligence for use at the initial hearing.
·The evidence if adduced, would probably have an important influence on the result though it need not be decisive; and
·The evidence must be apparently credible.
[14] R v Dorning (1981) 27 SASR 481 at [485].
[15] Ibid
These considerations should not however be applied inflexibility. In R v McIntee,[16] King CJ described the approach to be adopted in considering whether to admit fresh evidence:[17]
The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.
[16] R v McIntee (1985) 38 SASR 432 at 435.
[17] Ibid.
That must be particularly so when a litigant did not have the assistance of legal representation throughout the course of the various proceedings.
The fresh evidence that Mr Towle seeks to put before the court takes the form of a number of documents. During the course of submissions, it was at times difficult to determine which document Mr Towle was referring to and whether that document had been before the Tribunal. That difficulty was compounded by the fact that although the respondent had assisted the court by providing an appeal book containing the most critical documents, Mr Towle had also provided a volume of documents ‘Appellant’s Documents’ which contained a vast amount of materials. As it transpired most of these documents were not relied upon.
As well as this, on occasions Mr Towle forwarded miscellaneous documents by email to chambers.
During the course of submissions when it appeared that documents that Mr Towle referred to were not in the appeal book or the s 35 book of documents[18] that was before the Tribunal I adopted the course of marking the documents with a view to determining the questions of admissibility and whether they should be received at the conclusion of the appeal.
[18] Section 35(1) of the SACAT Act provides that, in proceedings for the review of a reviewable decision, the decision maker – in this case the Registrar – must assist the Tribunal so that it may make its’ decision on review. Section 35(2) provides for the provision of a written statement of reasons for the decision and any document or thing in the decision-makers’ possession or control that may be relevant to the Tribunal’s review of the decision. These materials are referred to in the Tribunal as the s 35 book of documents.
I set out the documents that appear to be the fresh evidence that was produced during submissions.
MFI A1 A letter from Dr Kochiyil to AHPRA dated 14 January 2022 addressing the complaints made by Mr Towle against him. MFI A2 A Certificate of Fitness, to drive a light vehicle (C class) completed by Dr Luker on 19 July 2021. MFI A3 An email from Mr Towle dated 5 August 2022 forwarding attachments (MFI A4 and MFI A5). MFI A4 An extract from Mr Towle’s telephone records attached to MFI A3. MFI A5 A copy of Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 with commentary provided by Mr Towle attached to MFI A3. MFI A6 A copy of a ‘Client Action sheet’ for the Department of Planning Transport and Infrastructure - Licence Regulation containing communications in relation to Mr Towle. MFI A7 An email from Mr Towle dated 8 August 2022 attaching three copies of Dr Kochiyil’s letter of 13 May 2020 with various redactions.
The most significant of these documents is MFI A1, a letter from Dr Kochiyil to AHPRA. It sets out Dr Kochiyil’s response to a number of allegations made by Mr Towle. In particular it sheds some light on when Dr Kochiyil first became aware that Mr Towle held a HC licence which is relevant to the consideration of some of the grounds of appeal. On that basis counsel for the Registrar did not take a firm position on whether or not the letter should be received into evidence. In some respects it assists his client’s case. I propose to admit MFI A1.
MFI A2 is a proforma document that was filled in by Dr Luker at the time of his consultation with Mr Towle. It forms part of the notes of Dr Luker. Given the importance of Dr Luker’s report in the determination of the issues it would ordinarily be expected to form part of the materials before the Tribunal. There is no explanation as to why the document was not before the Tribunal. Regardless I propose to admit MFI A2.
MFI A3 is an email from Mr Towle to the Court and counsel for the Registrar explaining why Mr Towle forwarded two attachments (MFI A4 and MFI A5). Mr Towle has given that explanation in court. There is no proper basis for the email to be before the court. I do not propose to admit the document.
MFI A4 are excerpts from Mr Towle’s telephone records that were attached to MFI A3. Mr Towle explained during submissions that the purpose in providing MFI A4 was to assist in fixing the timing of telephone calls that are said to be relevant. Given the nature of these records I propose to admit them.
MFI A5, the second attachment to MFI A3 is a copy of a High Court judgment and Mr Towle’s typed summary which he has described as an ‘overview’ of that judgment. Clearly there is no requirement for the tender of a judgment for a court to have regard to it and in so far as it is relevant, I take Mr Towle’s summary to be a written submission. In those circumstances there is no basis for the tender of MFI A5.
MFI A6 is a Client Action Sheet in relation to the Department’s dealings with Mr Towle. It takes the form of a handwritten running sheet with various entries in different handwriting recording conversations with Mr Towle or with others about Mr Towle. This document is relevant to establishing a timeline of relevant events. There is no explanation as to why it comes before the court for the first time in these proceedings. Despite that I propose to admit this document.
MFI A7 is 3 copies of Dr Kochiyil’s letter of 13 May 2020, two of which have redactions made by Mr Towle. As I understand it these documents have been provided by Mr Towle as an aid memoire to assist the court in understanding some of Mr Towle’s submissions. As such they do not fall into the category of fresh evidence and I will admit them as exhibits.
There is a further group of documents that were emailed to my chambers after submissions were completed that also need to be considered. Dealing with them in chronological order; the first is a letter to Mr Towle from the Registrar said to have been sent on 30 May 2022. This appears to be a proforma document advising Mr Towle that as someone with a known medical condition he is required to have his medical condition reviewed in accordance with the guidelines. The two conditions referred to are ‘Neurological/Neuromuscular – other’ and ‘Macular degeneration.’ I surmise from the contents of this letter that this is the document that was sent to Mr Towle to instigate an annual review required by the MV Act.[19]
[19] Prior to the events that resulted in Mr Towle’s licence being downgraded he was required to undertake an annual vision test and an annual medical assessment as he was over 70 years of age and held a HC class licence, pursuant to the ‘Assessing Fitness to Drive’ 2016 Guidelines (‘the Guidelines’), Appendix A, page 139.
The second document is a letter from Professor John Crompton from Eye Consultants SA dated 27 July 2022. In that letter Professor Crompton reports on Mr Towle’s visual acuity and concludes that he meets the visual requirements for a car licence.
The third document is a letter from Mr Towle to the Registrar dated 3 August 2022 forwarding the letter from Professor Crompton.
The fourth document is a letter from the Registrar to Mr Towle dated 31 August 2022. In that letter the Registrar refers to a letter from Mr Towle received on 9 August 2022 requesting the reissue of his HC licence. I assume for current purposes that is a reference to the letter dated 3 August 2022. In that letter the Registrar makes reference to s 80(2) of the MV Act requiring a medical practitioner to conduct an examination in accordance with the guidelines published or adopted by the Minister by notice in the Gazette. The Registrar also reiterates that in order to have his heavy vehicle licence reissued Mr Towle is required to provide a completed Heavy Vehicle Certificate of Fitness indicating how he now meets the medical standards to drive a commercial vehicle. He goes on to say that given Mr Towle’s medical conditions a letter from an Ophthalmologist was insufficient for that purpose.
In a letter accompanying these various documents Mr Towle sets out the basis upon which he asserts that these documents are relevant and should be admitted. As best as I can distil, he appears to make the following points:
·The letter dated 31 August 2022 was sent prior to Mr Towle’s submissions on 5 September 2022 however was not received by him until after the completion of submissions on 6 September 2022. It follows that the letter was not available to him before that date. Had he received the letter prior to the completion of submissions he would have sought to put it before the court. The earlier correspondence forms the background to the letter of 31 August 2022.
·The reference in the letter from the Registrar dated 31 August 2022 to the guidelines undermines the Respondent’s submission that the guidelines ‘are not that important’.
Counsel for the Registrar opposed the admission of these further documents on the basis that the appeal has been heard, judgment had been reserved and Mr Towle had been given a fulsome opportunity to put his case. It was further submitted that in any event the documents did not satisfy the test for the admission of fresh evidence.
I do not propose to receive this group of documents into evidence. Whilst I accept that the letter dated 31 August 2022 did not become available to Mr Towle until after 5 September 2022, it adds nothing new to the submissions advanced before me. Mr Towle’s submission about the guidelines is clear and has been repeatedly made. The fact that the Registrar made reference to the guidelines in this letter in the context of s 80(2) of the MV Act does not advance his case any further.
Leave to Appeal
Before turning to the merits of the various grounds of appeal, there is a further preliminary issue as to whether Mr Towle should be granted leave to appeal. The decision under review is that of an ordinary member of the Tribunal. An appeal against a decision of the Tribunal lies to the Supreme Court constituted of a single judge in circumstances in which the Tribunal was constituted of an ordinary member.[20]
[20] SACAT Act s 71(1)(b).
Section 71(2) of the SACAT Act provides that an appeal against a decision of the Tribunal is only by leave of the Supreme Court.[21] It is well established that the applicable criteria for leave to appeal is that the appeal is reasonably arguable and that the subject matter of the appeal is of sufficient substance to justify consideration. In considering whether leave should be granted the overriding principle is always the interests of justice.[22]
[21] Ibid s 71(2).
[22] Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61 at [3].
In Jackson v Lepp Investments Pty Ltd, Parker J summarised the approach to be adopted when determining whether to grant leave to appeal.[23]
In deciding whether to grant permission to appeal from SACAT to this court I consider that the ordinary principles applied when the Court decides whether or not to grant permission for a civil appeal should be followed. The overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration. …
Because SACAT is a specialist tribunal with particular expertise in determining tenancy disputes, this Court must give substantial weight to its findings.
(Footnotes omitted)
[23] Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19].
It is Mr Towle as the appellant who must satisfy the court that the appeal is reasonably arguable. It is difficult when dealing with an unrepresented litigant with no legal training to tease out an argument in support of the question of leave as compared to an argument in support of the substantive issue.
Counsel for the Registrar submits that none of the grounds of appeal are reasonably arguable and on that basis leave should be refused. However given the nature of the matter and the circumstances of Mr Towle he accepts that it is appropriate to leave the question of leave to the time of the determination of the appeal.
I have decided that given the same considerations arise in determining the question of leave as apply to an assessment of the merits of the appeal it is appropriate that the question of leave be considered at the conclusion of submissions as to the merits of the appeal.
Nature of the appeal
This appeal is brought pursuant to s 71 of the SACAT Act and r 212.2(1)(b) of the Uniform Civil Rules 2020 (SA).[24] An appeal of this nature is by way of a rehearing. It is effectively a trial over again on the evidence relied upon in the Tribunal together with such additional evidence as may be received on appeal. The court must independently review the evidence and carefully consider the findings made at first instance. Significantly, where the matter involves a question of judicial discretion, the Court is not entitled to substitute its own decision unless an error is identified in the exercise of that discretion.
[24] SACAT Act s 71; Uniform Civil Rules (2020) (SA) r 212.2(1)(b).
It must be factored in that the decision under consideration is that of an administrative decision maker. In Collector of Customs v Pozzolanic Enterprises Pty Ltd,[25] it was said that the Court should not be ‘concerned with looseness in the language… nor with unhappy phrasing’[26] of the reasons of an administrative decision maker. The Court continued: [27]
The reasons for the decision under review are not to be constructed minutely and finely with an eye keenly attuned to the perception of an error.
[25] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.
[26] Ibid at [287].
[27] Ibid.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[28] the High Court also considered the issue and observed:[29]
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
[28] Minister for Immigration and Ethnic Affairs v Wu Shan-Liang (1996) 185 CLR 259.
[29] Ibid at [272].
The legislation
The MV Act places a clear responsibility on the Registrar to ensure that the holder of a driver’s licence, or a particular class of licence, is medically fit to drive a motor vehicle safely. The Registrar is required to take action, be it to refuse to issue, refuse to renew or suspend a person’s driver’s licence, upon receipt of advice from a health professional that a person does not meet the medical standards to hold a driver’s licence, or a drivers’ licence of a particular class. It is the role of the Registrar to protect the public by ensuring that they are not exposed to an unacceptable risk created by individuals who are not medically fit to drive a motor vehicle.
The relevant provisions fall within ‘Part 3 – Drivers Licences’ (s 148) and ‘Part 5 – Supplementary provisions’ (s 80 and s 81) of the MV Act.[30]
[30] Motor Vehicles Act s 148, s 80, s 81.
It is most instructive to start with the latter. Section 148 provides:[31]
[31] Ibid s 148.
148 – Duty of health professionals
(1) Where a health professional has reasonable cause to believe that—
(a) a person whom the health professional has examined holds a driver's licence or a learner's permit; and
(b) that person is suffering from a physical or mental illness, disability or deficiency such that, if the person drove a motor vehicle, the person would be likely to endanger the public,
the health professional is under a duty to inform the Registrar in writing of the name and address of that person, and of the nature of the illness, disability or deficiency from which the person is believed to be suffering.
(2) Where a health professional furnishes information to the Registrar in pursuance of subsection (1), the health professional must notify the person to whom the information relates of that fact and of the nature of the information furnished.
(3) A person incurs no civil or criminal liability in carrying out the person's duty under subsection (1).
It was a consequence of the professional obligation created by this section that Dr Kochiyil reported the results of his consultation with Mr Towle to the Registrar.
This section is not predicated on the satisfaction of any pre-conditions. It is a section that is broad and general in that it applies to any health professional[32] who holds the requisite belief about an individual’s risk to the public given a physical or mental illness.
[32] ‘Health Professional’ is defined as ‘a legally qualified medical practitioner, a registered optometrist a registered physiotherapist’ s 5 Motor Vehicles Act.
It is not surprising that such a provision exists given the immediate risk that a person suffering an impairment poses to other users of the road. The MV Act creates an obligation upon the health professional to notify the Registrar of their concerns.
It then falls upon the Registrar to determine how to best respond to the concerns raised.
Section 80 provides for the various options open to the Registrar in those circumstances:[33]
[33] Motor Vehicles Act s 80.
80—Ability or fitness to be granted or hold licence or permit
(1) If in the opinion of the Registrar it is desirable that the ability or fitness of an applicant for the issue or renewal of a licence or learner's permit, or of the holder of a licence or learner's permit, to drive a motor vehicle should be tested, the Registrar may require the person to undergo such tests or to furnish such evidence of ability or fitness to drive as the Registrar directs.
(1a) The Registrar may, with the approval of the Minister, direct that all applicants for the issue or renewal of a licence or learner's permit who are of a particular class must undergo such tests, or furnish such evidence as to ability or fitness to drive a motor vehicle, or a motor vehicle of a particular class, as the Registrar may require.
(2) Medical tests required by the Registrar under this section must be conducted in accordance with guidelines published or adopted by the Minister by notice in the Gazette and the results of the tests must be applied by the Registrar, in accordance with any policies published or adopted by the Minister by notice in the Gazette, in assessing the person's competence to drive motor vehicles or motor vehicles of a particular class.
(2a) If—
(a) a person fails to comply with a requirement of the Registrar under this section; or
(b) the Registrar is satisfied—
(i) after considering the results of tests or evidence required under this section; or
(ii)from information furnished to the Registrar by a health professional or from any other evidence received by the Registrar,
that a person is not competent to drive a motor vehicle or a motor vehicle of a particular class,
the Registrar may—
(c) refuse to issue a licence or permit to the person; or
(d) refuse to renew the person's licence or permit; or
(e) suspend the person's licence or permit for such period as the Registrar considers necessary in the circumstances of the case, or until the person satisfies the Registrar, in such a manner as the Registrar directs, that the person is competent to drive a motor vehicle; or
(f) remove a classification assigned to the person's licence, or substitute for a classification assigned to the person's licence another classification.
(3) The Registrar may issue to any person who has been required to undergo tests, or to furnish other evidence of ability or fitness to drive a motor vehicle, a temporary driving permit authorising that person, subject to such conditions and restrictions as may be specified in the permit, to drive motor vehicles.
(4) A temporary driving permit has, subject to any conditions and restrictions specified in the permit, effect as a licence.
(5) A person must not contravene any condition or restriction of a temporary driving permit.
Maximum penalty: $1 250.
There are a number of observations to be made about this section. The first is that s 80(1) empowers the Registrar to require that a person ‘undergo such tests or to furnish such evidence of ability or fitness to drive as the Registrar directs’.
Section 80(2) requires that medical tests performed under this section are to ‘be conducted in accordance with guidelines published or adopted by the Minister by notice in the Gazette’.[34] Importantly this requirement is limited to tests required pursuant to s 80(2).
[34] As set out in [114] the ‘Assessing Fitness to Drive’ 2016 Guidelines have been gazetted under s 80(2).
Section 80(2a)(c)-(f) provides the Registrar with the power to remove or restrict or prevent a person obtaining a licence.[35] The exercise of the Registrar’s powers pursuant to this section is not dependent upon any form of testing or medical examination. It is sufficient if the Registrar is satisfied that a person is not competent to drive a motor vehicle or a motor vehicle of a particular class. The Registrar can be so satisfied on the basis of ‘information furnished to the Registrar by a health professional or from any other evidence received by the Registrar’.[36] Again the basis upon which the Registrar may exercise this power is broad. Public policy concerns would necessitate that the Registrar hold such a broad discretion.
[35] Motor Vehicles Act s 80(2a)(c)-(f).
[36] Ibid s 80(2a)(ii).
Section 80(3) enables the Registrar to impose temporary restrictions or conditions on the licence of a person who has been required to undergo tests or to furnish other evidence of their ability or fitness to drive a motor vehicle.
Section 81 is the final section relevant to the resolution of this appeal. Under this section the Registrar has the ability to endorse a person’s licence with conditions. It relevantly reads:
81—Restricted licences and learner's permits
(1)Where, in such circumstances as the Registrar thinks fit and upon such evidence as the Registrar may require, the Registrar is satisfied that the holder of a licence or learner's permit, or an applicant for the issue or renewal of a licence or learner's permit, should only be permitted to drive a motor vehicle subject to restriction, the Registrar may endorse upon the licence or permit all or any of the following conditions:
(a) a condition that the holder of the licence or permit is permitted to drive only in specified localities; or
(b) a condition that the holder of the licence or permit is permitted to drive only a vehicle of a specified class, size or type or a vehicle fitted with specified equipment; or
(c) any other condition that the Registrar thinks necessary for the purpose of preventing accident or injury.
…
(4) A person must not contravene a condition endorsed upon a licence or permit pursuant to this section.
Maximum penalty: $1 250.
It was pursuant to this section that the Registrar imposed the conditions to Mr Towle’s driver’s licence.
Grounds of appeal
Mr Towle filed an initial notice of appeal containing 27 grounds. He subsequently filed additional appeal grounds. These additional grounds fall under the three broad headings; A) Discrimination based on disability, B) Denial of procedural fairness by the Registrar of the Motor Vehicles and SACAT and C) Flinders Medical Centre report.
I intend no disrespect to Mr Towle in making the observation that it was very difficult to understand his grounds of appeal. They are a combination of statements of facts, arguments and assumptions about legal principles that are often incorrect.
In an attempt to assist the Court counsel for the Registrar attempted to summarise and collate Mr Towle’s grounds of appeal. The collated version of the grounds reads:
1. The Tribunal erred in that there was no medical evidence to support the decision to downgrade the Appellant’s HC class driver’s licence to class C.
2. Further or in the alternative to ‘1’, the Tribunal erred in that the decision to downgrade the Appellant’s HC class driver’s licence to class C was unreasonable or plainly unjust as there was insufficient medical evidence to support a finding that the Appellant was unfit to drive.[37]
[37] Grounds 1 and 2 attempt to encompass grounds 2, 6, 7, 8(b), 8(d), 9, 10, 11, 14, 15, 16, 18, 19, 20, 21, 25 Amendment B and Amendment C of Mr Towle’s appeal grounds.
3. The Tribunal erred by failing to accord the Appellant procedural fairness by failing to grant the Appellant an opportunity to be heard adequately concerning the decision to downgrade his HC class licence to a C class licence. In that the Tribunal:
a. Failed to give an opportunity to make submissions as to asserted inconsistences or errors in Dr Kochiyil’s letter and the possibility that another patient may have been confused for the Appellant.[38]
[38] Ground 2 of Mr Towle’s initial appeal grounds.
b. Failed to consider the submission that Dr Kochiyil’s letter was provided for an improper purpose – that of unlawful discrimination.[39]
[39] Ground 26 and Amendment B of Mr Towle’s appeal grounds.
c. Failed to consider or adequately address the Appellant’s submission that there was an apprehension of bias in relation to the original decision of the Registrar of Motor Vehicles.[40]
[40] Grounds 22, 8(c)(vii), 8(d)(x), 12 and 7 of Mr Towle’s appeal grounds.
d. Failed to consider two statutory declarations provided by the Appellant.[41]
[41] Ground 24 of Mr Towle’s appeal grounds.
e. Failed to consider video evidence and a practical demonstration that the Appellant did not have any disability preventing safe driving.[42]
[42] Ground 24 of Mr Towle’s appeal grounds.
4. The Tribunal erred by misconstruing section 80(2a)(b) of the Motor Vehicles Act 1959 (SA) and finding that the power to downgrade his licence was enlivened in the absence of:
a. A practical driving assessment relevant to an HC class Licence, or any other practical driving assessment relevant to another class of vehicle.[43]
[43] Ground 4 of Mr Towle’s appeal grounds.
b. A relevant medical assessment conducted by a medical practitioner.[44]
5. That there is a reasonable apprehension of bias on the part of the Tribunal on the basis that it has the same employer as the Registrar of Motor Vehicles and the Crown Solicitor’s Office.[45]
6. The Tribunal erred in failing to have regard to relevant considerations or in having regard to irrelevant considerations in that:
a. The Tribunal took into account an irrelevant consideration ‘That I can [sic] drive private vehicles, cars, does not mean I cannot drive trucks.”[46]
b. The Tribunal failed to take into account a relevant consideration “No relevant evidence existed that I cannot safely drive commercial vehicles for which I was licenced, particularly as the Registrar had the report of a recent successful commercial medical assessment that the Registrar had instructed me to attend.”[47]
7. The Tribunal erred in downgrading the Appellant’s Licence without having regard to and complying with the Equal Opportunity Act 1984 (SA).[48]
8. The Tribunal erred by misconstruing the nature of the “Assessing Fitness to drive Guidelines 2016” and in finding that they were not mandatory.[49]
[44] Ground 5 of Mr Towle’s appeal grounds.
[45] Ground 13 of Mr Towle’s appeal grounds.
[46] Ground 8(b) of Mr Towle’s appeal grounds.
[47] Grounds 8(b) of Mr Towle’s appeal grounds.
[48] Amendment A of Mr Towle’s appeal grounds.
[49] Amendment B of Mr Towle’s appeal grounds.
Mr Towle has agreed that these composite grounds adequately capture the issues that he has raised.[50]
[50] Appeal Transcript p 4.
Grounds 1 and 2 – The inadequacy of the medical evidence before the Registrar
Although Mr Towle’s complaints about the basis of the decision of the Tribunal are multifaceted, central to his grievance is his belief that Dr Kochiyil failed to undertake an appropriate examination and as a consequence provided advice to the Registrar that had no proper medical foundation.
In order to put Mr Towle’s submissions into context it is necessary to delve further into the circumstances leading up to and during Dr Kochiyil’s dealings with Mr Towle.
By 2020 Mr Towle was of the age of 70 and consequently was required to submit to an annual medical assessment in order to retain his HC licence.[51] Such an assessment had been undertaken by his general practitioner Dr Ogba, on 17 April 2020 in accordance with the guidelines. At that time Dr Ogbo determined that Mr Towle met the relevant medical standard to retain his HC licence. In a Certificate of Fitness that was provided by Dr Ogbo he noted ‘Right foot drop following shingles complication but does not affect driving at this time’.
[51] The Guidelines, Appendix 1.
On 13 May 2020 Dr Kochiyil saw Mr Towle in the rehabilitation outpatient clinic at the Riverland General Hospital. Mr Towle had been referred to him for pain management for his right ankle and foot that was a product of having developed shingles.
There are differences between the accounts of Dr Kochiyil and Mr Towle about the details of what occurred during this consultation. In a Statutory Declaration sworn on 2 July 2021 Mr Towle declared that during the consultation Dr Kochiyil did not perform any practical assessments to determine the level of strength and function of his right foot and ankle relevant to walking or driving a vehicle of any class. During submissions both before the Tribunal and on appeal Mr Towle made many criticisms of what he perceived to be the inadequacy of the examination carried out by Dr Kochiyil. For current purposes it is not necessary to descend into the details of the complaints – other than to observe that Mr Towle holds the very firm view that the examination was an insufficient basis for Dr Kochiyil to have provided the Registrar with any form of advice.
In his letter to AHPRA[52] Dr Kochiyil described performing a detailed clinical examination of Mr Towle. Dr Kochiyil described ‘he had grade zero muscle strength in his right ankle dorsiflexors, invertos and evetors but had grade 4 strength in his ankle plantar flexors’. In that letter Dr Kochiyil said he formed the clinical impression that Mr Towle had ‘right foot drop secondary to Herpes Zoster neuropathy involving right common peroneal nerve and subacute Herpes Zoster related neuropathic pain’.
[52] Exhibit A1.
It is not necessary for me to resolve the conflict between the two accounts of what occurred during the examination. There is no dispute that Mr Towle attended at a consultation with Dr Kochiyil at the Riverland Hospital on 13 May 2020 in relation to pain management for his right ankle and foot. It was as a consequence of that consultation that Dr Kochiyil wrote to the Registrar pursuant to s 148 of the MV Act. As a result of that the Registrar had written advice from an experienced and well qualified doctor that in effect, Mr Towle posed a potential risk to other road users if permitted to continue to drive in an unrestricted fashion. That advice was moderated by the fact that the recommended restrictions were all subject to Mr Towle successfully undertaking a PDA.
I agree with the observation made by the Tribunal that it would have been entirely inappropriate for the Registrar to disregard this information and not act pursuant to s 80(2a) of the MV Act. It was not for the Registrar to second guess this advice or to undertake an investigation into the basis upon which it was given. The Registrar is not medically trained and is undertaking a practical and administrative role. In carrying out this role it is necessary for him to rely upon the advice that he is provided with.
Mr Towle also made the submission that the Tribunal erred in not placing greater weight on Certificate of Fitness completed by Dr Ogbo on 17 April 2020. On numerous occasions Mr Towle expressed the view that given the examination conducted by Dr Ogbo was for the very purpose of assessing Mr Towle’s suitability to retain a HC class driver’s licence, the Registrar should have preferred this certificate over the information that Dr Kochiyil provided.
The Tribunal directly addressed this issue in the reasons for the Tribunal’s decision, making the observation that Dr Kochiyil’s advice was more recent than that from Dr Ogbo. It is only logical that the Registrar would act on the advice from the medical practitioner who had most recently seen Mr Towle. It is to state the obvious that the Registrar does not know Mr Towle. He would have no knowledge of any medical condition that may have occurred subsequent to Dr Ogbo’s assessment that had the potential to impact on Mr Towle’s ability to drive. It is also an additional consideration that Dr Kochiyil had a particular area of relevant expertise that Dr Ogbo did not.
These grounds of appeal are not reasonably arguable.
Ground 3 – Was Mr Towle accorded procedural fairness in the Tribunal?
The High Court in Kioa v West recognised that:[53]
it is a fundamental rule of the common law doctrine of natural justice expressed in the traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
[53] Kioa v West (1985) 159 CLR 550 at [28].
The requirements of procedural fairness depend upon the circumstances of the case, the nature of the inquiry, the rules under which the court is acting, and the subject matter that is being deal with. Fairness is not however, an abstract concept but rather the concern is to avoid practical injustice.[54]
[54] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37].
The issue here is whether Mr Towle had an adequate opportunity to present his case before the Tribunal.
Mr Towle filed an application at SACAT for a review of the Registrar’s decision on 24 June 2021. The hearing did not take place until 25 March 2022. In those circumstances it cannot be suggested that Mr Towle had inadequate time to prepare for the hearing.
Mr Towle has raised complaints about particular aspects of the hearing. I will deal with each separately.
·The Tribunal failed to give Mr Towle an opportunity to make submissions as to asserted inconsistencies or errors in Dr Kochiyil’s letter and the possibility that another patient may have been confused for him.
There is no suggestion that the Tribunal in any way limited the documents that Mr Towle put before it. To the contrary it would appear that Mr Towle provided the Tribunal with a significant body of documents as well as a detailed 13 page written submission.
From reading the transcript of the hearing it is apparent that whilst the Senior Member made efforts to keep Mr Towle on track, she did not appear to in anyway substantially curtail his submissions in the Tribunal.
During the hearing Mr Towle made numerous references to Dr Kochiyil’s letter[55] and its purported inadequacy. At times he spoke at length with no interruption. On occasions the Senior Member asked Mr Towle if there were additional matters that he wished to make submissions about. There is nothing in the transcript of the hearing before the Tribunal that causes me any concern that Mr Towle was not given an adequate opportunity to make submissions about Dr Kochiyil’s letter.
[55] TT 3,7,11,12,13 and 17.
As to the question of mistaken identity although it is raised in Mr Towle’s grounds of appeal it is not a matter that was raised before the Tribunal. In fact Mr Towle’s submissions about the inadequacy of the examination were predicated on the basis that he was the subject of the letter written by Dr Kochiyil.
·The Tribunal failed to consider the submission that Dr Kochiyil’s letter was provided for an unlawful purpose – that of unlawful discrimination.
Although raised in the Appeal Grounds this is not an allegation that was made before the Tribunal. At no stage was the issue of unlawful discrimination raised. Given the opportunities that the Senior Member provided for Mr Towle to raise any additional matters it cannot reasonably be suggested that Mr Towle was deprived of an opportunity to raise this issue with the Court.
·The Tribunal failed to consider or adequately address the Appellant’s submission that there was an apprehension of bias in relation to the original decision of the Registrar of Motor Vehicles.
Mr Towle’s submissions about procedural unfairness and apprehended bias were of a general nature. In effect the whole basis upon which he sought the SACAT review was that the entirety of the process undertaken by the Registrar was attendant with procedural unfairness and bias against him. There is nothing in the transcript of the proceedings before the Tribunal that would suggest that Mr Towle was in any way limited in the submissions that he made on this topic.
·The failure of the Tribunal to consider two statutory declarations provided by Mr Towle.
Two statutory declarations made by Mr Towle dated 29 April 2021 and 2 July 2021 were contained within the s 35 Book of Documents prepared for the hearing in the Tribunal. The April statutory declaration is brief and comprises of one paragraph in which Mr Towle sets out his account of how he came to see Dr Kochiyil and details part of the conversation that they had. The July statutory declaration is also brief. In it Mr Towle sets out details of his driving history, the issues that he has had with his right foot and an assertion that:
Dr Kochiyil played no part interacting with me during my rehabilitation nor did he perform any practical assessments to determine the level of strength and function of my right foot and ankle relevant to walking or diving a vehicle of any class.
In the particulars of the grounds of appeal Mr Towle contends that two statutory declarations that he provided were ‘ignored’ by the Tribunal. The claim made by Mr Towle that the Tribunal failed to consider the statutory declarations is incorrect. They were specifically referred to during the course of the hearing. In response to the Senior Member asking Mr Towle whether there were any other matters in his submissions that he wished to draw to the Tribunal’s attention the following exchange occurred:[56]
MR TOWLE: I have put two statutory declarations in.
SENIOR MEMBER McEVOY: Yes, I saw those.
MR TOWLE: I’m aware of the penalties if they are lies. So, they are based on actual fact. They are T15. Do you want me to read them out?
SENIOR MEMBER McEVOY: No, thank you, I have got them here.
[56] SACAT Transcription of Hearing 2021/SA001942 at 13.
Given this passage in the transcript it is apparent that the Tribunal was aware of the statutory declarations. It was a matter for the Tribunal as to how much weight to place on the contents of the documents. Having said that the statutory declarations contained no information beyond that which was available elsewhere and was thoroughly canvassed in Mr Towle’s submissions.
·The Tribunal failed to consider video evidence and a practical demonstration that the Appellant did not have any disability preventing safe driving.
During the course of the SACAT hearing Mr Towle attempted to undertake a demonstration of the function of his right foot. This appeared to have occurred spontaneously and without forewarning. The following exchange then took place.[57]
[57] SACAT Transcription of Hearing 2021/SA001942 at 11.
MR TOWLE: I am now demonstrating – if you don’t mind ma’am?
SENIOR MEMBER McEVOY: Sorry, what are you doing Mr Towle?
MR TOWLE: I am demonstrating.
SENIOR MEMBER McEVOY: Sorry, what are you demonstrating?
MR TOWLE: I am going to demonstrate what the issue was supposed to have been. The so-called problem with my foot.
SENIOR MEMBER McEVOY: Well, I’m not a doctor –
MR TOWLE: I know you are not a doctor, I understand.
SENIOR MEMBER McEVOY: Mr Fursa isn't a doctor either.
MR TOWLE: No, that’s right. (Demonstrating) Foot drop is when the foot flaps around like this, you have no control of it. So this thing is supposed to hold it up. My feet – can you see my feet, ma’am?
SENIOR MEMBER McEVOY: No, I can’t. Mr Towle, I don’t know that this is useful because what you are demonstrating is not going to affect any decision I make because I can’t make an assessment that you are asking me to make.
In relation to the complaint about the Tribunal failing to take into account video evidence that Mr Towle’s ankle did not have any disability preventing safe driving, it is unclear as to what video Mr Towle is referring to. Given that the reference to the video appears in the same ground as the complaint about the Registrar refusing to allow the demonstration – it can be assumed that the video showed some other form of demonstration of Mr Towle’s ankle function.
The Senior Member was correct to put an end to the demonstration undertaken by Mr Towle in court. As she explained, she had no medical expertise that would assist her in understanding and assessing what it was that Mr Towle was attempting to demonstrate. In addition the condition of Mr Towle’s foot and ankle at the hearing (20 months after Dr Kochiyil’s examination) were temporally disconnected to the point of time at which the determinations were made. Even more fundamentally the functionality of Mr Towle’s ankle at the time of the SACAT hearing (even assuming that it could be appropriately assessed by the Senior Member) had little bearing on the Tribunal’s assessment of whether the Registrar made the correct and preferrable decision.
Was Mr Towle afforded procedural fairness before the Tribunal?
None of the matters raised individually or collectively cause me any concern about Mr Towle having not received procedural fairness. That is particularly so in circumstances in which I afforded Mr Towle the opportunity to make submissions on 2 separate days over 4 and a half hours. Had there been matters that Mr Towle had not been given the opportunity to raise at the SACAT hearing, it would have become apparent in the submissions before me. That did not occur.
This ground of appeal is not reasonably arguable.
Grounds 4 and 8
Ground 4 – The Tribunal erred by misconstruing s 80(2a)(b) of the Motor Vehicles Act 1959 (SA) and finding that the power to downgrade his licence was enlivened in the absence of:
a.A practical driving assessment relevant to an HC class licence, or any other practical driving assessment relevant to another class of vehicle.
b. A relevant medical assessment conducted by a medical practitioner.
Ground 8 – The Tribunal erred by misconstruing the nature of the ‘Assessing Fitness to Drive Guidelines 2016’ and in finding that they were not mandatory
It is convenient to deal with these grounds together in that they raise similar issues.
Underpinning these grounds are a number of concerns that Mr Towle holds about the circumstances in which the Registrar came to downgrade his driver’s licence.
These are:
·That Dr Kochiyil did not undertake a medical examination in accordance with the guidelines.
·At the time of writing to the Registrar Dr Kochiyil was not aware that Mr Towle held an HC class drivers licence and therefore did not turn his mind to the question of whether Mr Towle was fit to continue to hold that licence.
·The Registrar was in error in downgrading Mr Towle’s licence absent Dr Kochiyil directly raising the issue of his HC class licence.
·The Registrar was in error in downgrading Mr Towle’s licence absent a PDA relevant to an HC class licence or any other practical driving assessment relevant to another class of vehicle.
The application of the guidelines
A topic that Mr Towle repeatedly returned to during submissions was the fact that Dr Kochiyil had not undertaken an examination in accordance with the guidelines.
The relevant version of the guidelines was published jointly by Austroads[58] and the National Transport Commission[59] in 2016. Part A:1 sets out the primary purpose of the guidelines.
The primary purpose of this publication is to increase road safety in Australia by assisting health professionals to:
·Assess the fitness to drive of their patients in a consistent and appropriate manner based on current medical evidence.
·Promote the responsible behaviour of their patients, having regard to their medical fitness.
·Conduct medical examinations for the licencing of drivers as required by state and territory driver licencing authorities.
·Provide information to inform decisions on conditional licences, and
·Recognise the extent and limits of their professional and legal obligations with respect to reporting fitness to drive.
[58] Described in the guidelines as ‘the peak organisation of Australian road transport and traffic agencies’.
[59] Described in the guidelines as ‘an intergovernmental agency charged with improving the productivity, safety and environmental performance of Australia’s road raid and intermodal transport system’.
The guidelines were created for the assistance of any health professional who is involved in assessing a person’s fitness to drive or providing information to support fitness to drive decisions.
Appendix 2 of the guidelines set out the requirements for a medical examination in circumstances in which a driver licencing authority has required the holder of a licence to provide medical evidence of their suitability to drive. Although it varies between states, in each jurisdiction there is a proforma that must be completed by the professional who undertakes the examination. It was this form that was completed by Dr Ogbo when he undertook an assessment of Mr Towle in April 2020.[60]
[60] Appeal Book, p 49.
There is no dispute that the guidelines were gazetted under s 80(2). It follows that medical testing required by the Registrar under that section must be conducted in accordance with the guidelines.
This is where Mr Towle’s argument starts to fail. The examination undertaken by Dr Kochiyil was not at the request of the Registrar and therefore it did not occur under s 80(2). As I have said previously, this was a consultation and examination that occurred at Mr Towle’s request and as a consequence of which Dr Kochiyil formed concerns about Mr Towle’s ability to drive safely. Those concerns led him to writing to the Registrar as he was obliged to pursuant to s 148 of the MV Act. Dr Kochiyil was not required to conduct a medical examination in accordance with the guidelines.
Dr Kochiyil’s lack of knowledge of Mr Towle’s HC licence.
It is common ground that at the time of meeting with Mr Towle and writing to the Registrar Dr Kochiyil was not aware that Mr Towle held a HC class licence. There is no reference to a HC class licence in the letter to the Registrar.
In his January 2022 letter to AHPRA Dr Kochiyil expressly acknowledged that at the time of conducting the examination and writing the letter he was not aware of Mr Towle’s HC licence. He said:
… I called Mr Towle over the phone on 15/05/20 to advise him of my recommendations. Mr Towle told me that he also had a heavy vehicle licence which I was unaware of during my initial consultation on 13/05/20.
The Registrar of course would have access to the records to determine the class of licence that Mr Towle held. The first record that reflects the Registrar’s decision to downgrade Mr Towle’s licence appears as the first entry on the Client Action Sheet and reads: ‘22.05.20 – Downgrade C and conditions and PDA’. It follows that by this date the Registrar was aware that Mr Towle held a HC class licence.
On 10 June 2020 the Registrar wrote to Mr Towle and advised him of the conditions to be placed on his licence and that he was required to undertake a PDA. In that letter the Registrar also said:[61]
I have recently received information from Dr Kochiyil who has confirmed that you are medically fit to hold a car class driver’s licence only. However Dr Kochiyil has also recommended that you undertake a practical driving assessment.
[61] MFIA6.
It would appear that from this passage in the letter that there had been some communication between Dr Kochiyil and the Registrar subsequent to the letter of 13 May 2020 after Dr Kochiyil had become aware that Mr Towle held an HC class licence. If that is so, it is contrary to Mr Towle’s submission that there was no medical advice sitting behind the Registrar’s decision to downgrade Mr Towle’s licence.
In my view however, whether the Registrar received any further advice from Dr Kochiyil makes no difference to the appropriateness of his decision. By the letter of 13 May 2020 the Registrar was in receipt of information that raised concerns about Mr Towle’s driving ability. In circumstances in which it was suggested that conditions be imposed limiting Mr Towle to only driving an automatic car with a geographical restriction, it is only logical that upon learning of Mr Towle’s HC class licence, that the Registrar determined that at least temporarily Mr Towle be prevented from driving heavy vehicles.
Mr Towle submitted that it did not follow that because there were concerns surrounding his ability to drive a C class vehicle those concerns flowed through to him driving a HC class vehicle. I do not accept that submission. There can be no doubt that in driving a heavy vehicle whilst suffering a medical condition to his foot and ankle Mr Towle posed a far greater risk to the community than if driving a C class vehicle. In the guidelines that Mr Towle places much reliance upon it is made clear that there are two sets of medical standards for driver licencing: private vehicle standards and commercial vehicle standards. The authors of the guidelines observe:[62]
The choice of which standard to apply when examining a patient for fitness to drive is guided by both the type of vehicle (e.g. heavy vehicle) and the purpose for which the driver is authorised to drive (e.g. carrying passengers or dangerous goods) ... The commercial vehicle driver standards are more stringent than the private standards and reflect the increased risk associated with motor vehicle crashes involving such vehicles.
[62] Assessing Fitness to Drive Guidelines 2016 at page 20.
A further illustration of the different approach taken to the two categories of licences is that once a person turns 70 years of age they are required to undertake an annual vision test and an annual medical assessment if they hold a HC licence although they are not required to do so if they hold a C licence.
Regardless of whether Dr Kochiyil provided the Registrar any further advice subsequent to 13 May 2020, it would have been in dereliction of the Registrar’s duty to permit Mr Towle to continue driving heavy vehicles given the concerns that had been raised.
The decision of the Registrar was made without requiring Mr Towle to undertake a PDA.
As mentioned already the action taken by the Registrar was in response to issues that had been raised about the immediate risk that was potentially posed by Mr Towle driving any form of motor vehicle. It is evident from the letter sent to Mr Towle on 10 June 2020 that this was a temporary measure put in place until such time that Mr Towle could undertake a PDA to determine his ability to safely operate a motor vehicle and to comply with the Australia Road Rules in an on-road situation. The fact that conditions and restrictions were lifted as Mr Towle engaged in the process further reflects that this was the genuine position of the Registrar. For example, when Mr Towle successfully completed a PDA in a manual vehicle, the condition that he only drive automatic C class vehicles was removed.
An unfortunate feature of this matter has been that since June 2020 it has been open for Mr Towle to have his HC licence reinstated by undertaking a PDA in a heavy vehicle. He has consistently refused to do so and has instead chosen to pursue litigation. Whilst I accept that what Mr Towle has said about there being a significant cost involved in undertaking such a PDA, I would have thought that the cost of the course that he has chosen has been far greater.
Ground 5 – That there is a reasonable apprehension of bias on the part of the Tribunal on the basis that it has the same employer as the Registrar of Motor Vehicles and the Crown Solicitor’s Office
The test to be applied to the issue of apprehended bias is laid down in the majority judgment of Johnson v Johnson. It is:[63]
Whether a fair-minded lay observer might apprehend that the judge might not bring an impartial and unprejudicial mind to the resolution of the question the judge is required to decide.
[63] Johnson v Johnson (2000) 201 CLR 488 at [11].
The rule is based upon the need for public confidence in the administration of justice.
There must be a factual basis for such a submission to carry any weight. None has been identified by Mr Towle. There is no foundation for this ground of appeal.
Ground 6 – The Tribunal erred in failing to have regard to relevant considerations in that:
(a)The Tribunal took into account an irrelevant consideration ‘That I can [sic] drive private vehicles, cars, does not mean that I cannot drive trucks’.
This submission has already been dealt with earlier, at [116] –[125].
(b)The Tribunal failed to take into account a relevant consideration. ‘No relevant evidence existed that I cannot safely drive commercial vehicles for which I was licenced, particularly as the Registrar had the report of a recent successful commercial medical assessment that the Registrar had instructed me to attend’.
These submissions have already been dealt with at [85]-[86].
Ground 7 – The Tribunal erred in downgrading the Appellant’s licence without having regard to and complying with the Equal Opportunity Act 1984 (SA)
It appears that in relation to this ground Mr Towle is contending that in downgrading his licence the Registrar was in breach of s 73 of the Equal Opportunity Act 1984 (SA). An alleged breach of this section is beyond the scope of this appeal.
Additional Grounds of Appeal
There are three further grounds contained within Mr Towle’s notice of appeal that fall outside the composite grounds. These can be dealt with expeditiously.
I set out the three grounds and a consideration of each.
Ground 1
That there was no Registrar of Motor Vehicles decision dated 14 September 2021 (SACAT order 1) notwithstanding there is a decision dated 24/09/21 referring to a practical driving assessment performed 14/09/2021.
In this ground Mr Towle picks up on what is clearly a typographical error in the published reasons of the Tribunal. In making the relevant orders the Tribunal was plainly referring to the decision that was made on 24 September 2021, (that was based on Mr Towle having successfully completed a Practical Driving Assessment on 14 September 2021).
There is no merit to this ground of appeal.
Ground 17
That there are grounds to claim damages: The original decision directly led to the loss of my job, as a Disability Support Worker with about 11 years experience, where driving and transporting vulnerable people was a major part of my duties and where I had to be able to carry out my duties efficiently, effectively and safely.
Section 71(4) of the SACAT Act provides that on appeal this court may affirm, vary or set aside the decision appealed against. This issue is beyond the scope of this appeal as there is no power to award damages in an appeal of this type. There is no merit to this ground of appeal.
Ground 27
That Judicial Review of aggregation of administrative errors is in the publics and my interest [sic].
This ground fails to allege an apeallable error. It appears to be an overarching assertion that it would not only be in the interest of Mr Towle but also in the public interest to allow this appeal. For reasons that I have already provided I reject that assertion.
Was the Tribunal in error in affirming the Registrar’s decision to downgrade Mr Towle’s HC class licence to a C class licence?
The Tribunal had before it not only the material available to the Registrar but also the report of Dr Luker. Somewhat ironically that report was obtained by and put before the Tribunal by Mr Towle. That report effectively confirmed the view of Dr Kochiyil that was acted on by the Registrar. Dr Luker recommended that Mr Towle should first undertake a PDA in a C class vehicle without the splint to determine whether the splint was required. In the event that Mr Towle passed that test he could then arrange to take a PDA in a HC vehicle. Dr Luker went so far as to offer to make the arrangements for Mr Towle to undertake the two PDAs.
The Tribunal had before it the opinion of an independent medical practitioner that suggested the same approach be adopted as was recommended by Dr Kochiyil.
Determination
I have come to the view that none of the grounds put forward by Mr Towle are reasonably arguable. On that basis I refuse leave to appeal.
On all of the available evidence the Tribunal arrived at the correct and preferable decision.
Orders
1.Leave to appeal is refused.
2.The appeal is dismissed.
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