Wilson, Chief Executive Dept of Transport v Hall & Pegg

[2000] QSC 449

THE SUPREME COURT

[2000] QSC 449

OF QUEENSLAND

BRISBANE  No. 9083 of  2000

BETWEEN:

BRUCE GILMOUR WILSON, CHIEF EXECUTIVE,

DEPARTMENT OF TRANSPORT

Applicant

AND:

ELIZABETH HALL SM

First Respondent

AND:

MURRAY JAMES PEGG

SecondRespondent

ORDER AND REASONS FOR JUDGMENT

B.W. Ambrose J.

Delivered the Twenty-first day of November 2000

1. This is an application by the Chief Executive, Department of Transport for an order quashing the decision of the first respondent allowing the appeal of the second respondent against cancellation of his driving licence by the applicant on 16 June 2000 as a consequence of demerit points gained as a consequence of a traffic infringement on 20 March 2000.

1. For the applicant it is contended that the Court made an error manifest in the reasons given for allowing the appeal, which is an error on the face of the record and as well that those reasons demonstrate a jurisdictional error which permits this Court to quash the order made allowing the appeal pursuant to s 41(2) of the Judicial Review Act 1991 (Qld).

1. For the second respondent it is contended however that the reasons for judgment delivered immediately prior to the Court making the order allowing the appeal did not in fact on the cases become part of or “incorporated in” the record and reliance is placed upon Craig v South Australia (1994-5) 184 CLR 163; it is also contended that no jurisdictional error has been demonstrated.

1. For the applicant it is contended that the terms of s 47 of the Judicial Review Act are such as to make inapplicable the decision in Craig v South Australia to an application made under s 41(2) of that Act.

1. It is the contention of the second respondent that even if the first respondent made a clear error in her construction of the relevant legislation which led to her allowing the appeal this was simply an error of law she made within jurisdiction and not reviewable under s 41(2) in Part 5 of the Judicial Review Act 1991.

1. It is conceded that in considering appeals of this kind different courts have taken different views on the correct effect to be given to the relevant legislation.

1. The appeal brought by the second respondent against cancellation of his licence was brought pursuant to Reg 29(2) of the Transport Operations (Road Use Management – Drivers Licensing) Regulation 1999 (“the Regulations”).

1. Under Reg 29(8) it is provided –

“(8)Despite the Justices Act 1886 the Court’s decision is final and cannot be appealed against.”

1. It is for this reason that the applicant seeks relief pursuant to s 41(2) of the Judicial Review Act in respect of what is contended to be a clear error of law which but for subsection (1) of s 41 of that Act could have been corrected in this Court by certiorari.

1. The second respondent’s licence was cancelled pursuant to either Reg 24 or 26 of the Regulations made pursuant to s 171 and s 150(1) of the Transport Operations (Road Use Management) Act 1995 (Qld) (“the Act”).

1. Under s 132 of the Act it is provided –

“132.     The regulations may provide for an appeal (including to the Court or otherwise which appeal may be stated to be final) against the cancellation of a Queensland driver’s licence pursuant to the regulations solely on the grounds that such cancellation would cause extreme hardship to the person or the person’s family by depriving the person of the person’s means of earning the person’s livelihood.”

1. Regulation 29(2) provides –

“(2)The person may appeal against the cancellation only on the ground the cancellation would cause extreme hardship to the person or the person’s family by depriving the person of the means of earning a living.

(3)The person may appeal by –

(a)lodging a notice of appeal in the approved form with the Magistrates Court in the district where the person resides within twenty-one (21) clear days after the cancellation of the licence; and

(b)serving a copy of the notice on the Chief Executive.

(4)On lodging the appeal with the Court the cancellation is suspended until the Court decides to confirm or set aside the cancellation.

(5)The Court may set aside the cancellation only if satisfied –

(a)the cancellation would cause extreme hardship to the person or the person’s family by depriving the person of the means of earning a living;  and

(b)the person is an appropriate person to be licensed to drive a motor vehicle having regard to the person’s traffic history.

(6)The Chief Executive may give the Court information about the person’s traffic history.

1. The regulation making power under the Act is found, inter alia, in ss 147, 150 and 171(1) of the Act.

1. Section 147(1) of the Act provides, inter alia –

“(1)       A regulation may –

(a)prescribe rules about the operation of vehicles and their use in a public place including for example rules about -

(i)driver behaviour;”

1. Section 150(1) provides, inter alia –

“(1)A regulation may prescribe rules about the management of drivers including for example –

…

(c)rules about licences including in particular the circumstances in which and the reasons for which they can be cancelled or suspended or conditions imposed upon them.”

1. In the course of her reasons the Stipendiary Magistrate observed –

“The appellant says that the sole ground of the appeal is established by s 132 and repeated in Regulation 29(2). That is the ground of appeal being about extreme hardship and that is the sole ground – and I must say the use of the word “sole” in s 132 of the Act and the repetition of those words which provide the sole ground in Regulation sub-para (2) including the word not solely but only on the ground give some force to the appellant’s argument but Regulation 29(5) provide that the Court must be satisfied on two matters. First the ground which is mentioned for the third time – once in s 132, once in Regulation 29(2) and now in Regulation 29(5)(b) – that of an oppressive hardship and another ground is added that ground being in (b):

‘The person is an appropriate person to be licensed to drive a motor vehicle having regard to the person’s traffic history.’

This is never said to be a ground of appeal but it is clearly a matter about which the court must be satisfied.  The appellant says what else can it be but a ground of appeal and I must say I am inclined to that view.”

1. The Stipendiary Magistrate then referred to the outline of argument advanced for the second respondent which dealt with the “leading cases” of Morton v The Union Steamship Company of New Zealand (1951) 83 CLR 402 at 410 and 412, The Queen v The Commissioner of Patents (1953) 89 CLR 381 at 406 to 407, and Shanahan v Scott (1956) 96 CLR 245 at 254 and 255 and Macris v Lucas & Others [1971] SASR 329 at 332. She then observed –

“The positive provision contained in the Act is the ground of excessive hardship. Although the regulations do not depart or vary they add to that positive provision and I suppose therefore varies the grounds of appeal.”

She continued –

“I understood the argument that Regulation 29 stood alone – and was the only regulation to be consulted by an appeal court and that Regulation 29 refers only to matters which the court must be satisfied before the appeal is allowed and that is correct. But once more in my view 29(5)(b) is essentially and must be the ground of appeal and is clearly supplementary to the ground set out in s 132.”

She later continued –

“That brings me to the question of whether the legislature intended to limit the discretion of the decision maker in this appeal and that question must be answered in the affirmative.  There is one ground that appeal set out and even on the argument of the respondent the court must be satisfied of two things only excessive hardship and the appropriateness of the person having regard to the traffic history.”

She continued –

“- - there is only one ground of appeal established by the legislation but when the appellant comes to court he finds that there is essentially another ground and for those reasons I find that Regulation 5(b) is invalid.

In relation to the appeal by Mr Pegg then the only ground that I have to consider is that he or his family would suffer extreme hardship because he could not earn his living.”

1. Interestingly she continued –

“If it was necessary to decide – but it is not – on the question of whether he is an appropriate person to be licensed to drive a motor vehicle having regard to his traffic history in my view he is clearly not such a person.”

1. Before allowing the appeal she observed –

“There was no suggestion from Mr Pegg that he would change his diary to allow the hold-ups or to address his speeding behaviour in any other way other than he had enrolled in a defensive driving course yet to commence.  However it is not necessary for me to decide that so his appeal is allowed.”

1. In the course of argument on the review it was contended on behalf of the second respondent that having regard to the content of s 132 of the Act there was no power under the Act to make a regulation which imposed any constraint on the Court allowing an appeal against cancellation of a driving licence once extreme hardship was established.

1. It was conceded that Regulation 29 was not made pursuant to s 132 but pursuant to the general regulation making power under s 171(1) and s 150 and/or perhaps s 147.

1. In my view if there is no power under s 171(1) and s 150 to make Regulation 29(5)(b) because of the content of s 132 of the Act there is similarly no power to make Regulation 29(6). The only conceivable reason to make Regulation (6) was to enable a court considering an appeal to consider whether the appellant was “an appropriate person to be licensed” having regard to that person’s traffic history.

1. If the contention of the second respondent is correct the judicial function of the Magistrates Court is really limited to determining only whether a licence cancellation would cause extreme hardship by depriving the holder of that licence of the means of earning a livelihood.  Taken to its logical conclusion such an approach would compel a court to allow an appeal pursuant to Regulation 29 by every person who could show extreme hardship – as indeed the second respondent in this case did - irrespective of the potential danger to other road users having regard to that appellant’s very bad history of traffic offences extending over many years – as was the position in this case - should the cancellation be revoked.

1. Section 21 of the Statutory Instrument Act 1992 (Qld) provides –

“21(1)    A statutory instrument is to be interpreted as operating –

(a)to the full extent of but not to exceed the power conferred by the law under which it is made (the ‘authorising law’);  and

(b)distributively.

(2)Without limiting sub-section (1) if a provision of a statutory instrument would apart from this section be interpreted as exceeding power –

(a)the provision is valid to the extent to which it does not exceed power; and

(b)the remainder of the statutory instrument is not affected.”

1. I take it that a distributive operation of a statutory instrument is one which in context is empowered under more than one head of power conferred by the “authorising law”.  (cf s 31)

1. Section 22 of this Act provides –

“22(1)If an Act or statutory instrument (the ‘authorising law’) authorises or requires the making of a statutory instrument under the authorising law or an Act or statutory instrument (the ‘other law’) the power enables a statutory instrument to be made with respect to any matter that –

(a)is required or permitted to be prescribed by the authorising law or other law;  or

(b)is necessary or convenient to be prescribed for carrying out or giving effect to the authorising law or other law.

(2)Sub-section (1) applies to the authorising law even though the authorising law also authorises the making of a statutory instrument for a particular purpose.

(3)Power conferred by the authorising law to make a statutory instrument for a particular purpose is in addition to and does not limit the effect of power conferred by the authorising law to make a statutory instrument under the authorising law or other law unless the authorising law expressly provides otherwise.”

1. What is “necessary or convenient to be prescribed for giving effect to the Act and Regulations made under it” under s 22(1)(b) requires consideration of the expressed objects of the Act

1. Section 3(1) of the Act provides that the overall objectives of the Act include, inter alia –

(i)          the effective and efficient management of road use in the State;

(ii)         the provision of a management scheme that will improve road safety;  and

(iii)the effective and efficient management of vehicle use in a public place.

1. Section 3(2) contemplates the establishment of a scheme to allow, inter alia –

(i)          identification of drivers and road users;

(ii)         performance standards for drivers and road users;

(iii)        rules for on-road behaviour;

(iv)monitoring of compliance with the Act including using alternative compliance schemes;

(v)         management of non-performing drivers and road users.

1. The objectives listed in s 14(1) and (2) of the Act include –

(i)implementing enforcement procedures aimed primarily at deterring non-compliance by road users;

(ii) targetting road users least likely to comply with the Act;

(iii)prevention of the continued commission of offences under the Act by the imposition of appropriate penalties.

1. Section 31 of the Statutory Instrument Act 1992 (Qld) provides –

“31.A statutory instrument is taken to be made under all powers under which it may be made even though it purports to be made under a particular act or another statutory instrument (the ‘authorising law’) or a particular provision of the authorising law.”

1. In Craig v State of South Australia (1994-95) 184 CLR 163 the High Court considered the limits of judicial review under the Supreme Court Rules 1987 (SA).  Rule 98.01 provides –

“(1)An order in the nature of mandanus prohibition certiorari - - shall be sought by way of judicial review by summons in accordance with the provisions of this rule.

(2)The prerogative writs of mandanus prohibition certiorari shall no longer be issued by the court - -  But in any case in which relief could have been granted by means of any the said writs - - the court shall have jurisdiction to make an order in the nature and to have the effect of the remedies which would have been available if this rule were not enforced.”

1. In Craig’s case, upon application to review the decision of what was taken to be an inferior court, for the purpose of argument, to stay a prosecution the majority of the South Australian Full Court held that in determining whether there was error on the face of the record sought to be reviewed, the reasons for judgment and indeed the transcript of the proceedings were part of the record.  It further held that that the inferior court exceeded its jurisdiction in making that order to stay a prosecution because upon a proper application of principle the grounds to justify making a stay had not been established.

1. The High Court held that where available certiorari is a process by which a superior court in the exercise of original jurisdiction supervises the act of an inferior court but that it is not an appellate procedure permitting substitution of the order or decision which the superior court concludes should have been made by the inferior court.  The court held that certiorari was most importantly used to correct jurisdictional errors and that being used for this purpose a superior court may take into account any relevant material placed before it including reasons for judgment.

1. At page 177 it was said –

“- - an inferior court can while acting wholly within the general area of its jurisdiction fall into jurisdictional error by doing something which it lacks authority to do - - Similarly jurisdictional error would occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction require that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the particular case.  Again an inferior court would exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.”

1. With respect to what constitutes an error of law on the face of the record it was held at page 180 that the content of an inferior court’s “record” for the purposes of certiorari is confined to the “documents initiating and defining the matter in the inferior court and the impugned order or determination”.  It is  observed at 181 –

“In the absence of some statutory provision to the contrary the record of an inferior court for the purpose of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision.”

1. In my view the contentions of the second respondent which persuaded the first respondent to disregard Regulation 29(5)(b) as being beyond the regulation making power conferred by s 171(1), s 150 and s 147 were and are misconceived.

1. Regulation 29 was clearly made in conformity with s 132 of the Act.

1. Regulation 29(3) requires the appeal to be instituted by lodging a notice of appeal in the approved form.  Stated shortly the approved form headed “Notice of Appeal Against Cancellation of a Driver’s Licence” requires an appellant to provide name, address, date of birth, occupation, driving licence, type of licence held and a declaration that the appellant surrendered the driving licence and the date of surrender.  Immediately above the appellant’s signature on the approved form of notice of appeal is recorded –

“The court must not set aside the cancellation of the driver’s licence unless satisfied that –

(a)the person is an appropriate person to be licensed to drive a motor vehicle having regard to the person’s traffic history;  and

(b)the cancellation would cause extreme hardship to the person or the person’s family by depriving the person of the means of earning a living.”

1. Upon its proper construction the endorsement on the proforma notice of appeal merely indicates two essential issues for consideration of the Court upon appeal.  It does not expressly or impliedly constitute either issue a ground of appeal.

1. Regulations 29(5)(a) and (b) are so expressed as to merely expressly limit the power of the Court to set aside a cancellation. It is Reg 29(2) which provides that the only ground upon which a cancellation may be set aside is that specified in s 132 of the Act.

1. Properly construed, Reg 29(5)(b) merely requires that an appeal against cancellation be rejected if a licence holder is not an appropriate person to drive a motor vehicle because of his or her record of traffic offences even if cancellation of that person’s licence would undoubtedly cause extreme hardship etc.  It is unnecessary to determine upon whom the ultimate onus lies to satisfy the Court as to the appropriateness of an appellant to hold a current licence.  This matter was not debated and of course Reg 29(6) empowers the applicant to give the Court the appellant’s traffic history.  Assuming however that the onus is on an appellant, it does not follow that the fact required to be established under Reg 29(5)(b) therefore becomes a ground of appeal rather than a requirement that the appeal be dismissed even if extreme hardship has been established unless that fact be established to the satisfaction of the Court.

1. It was conceded by the second respondent that quite apart from Reg 29(5)(b) a Court would be entitled to consider whether an appellant was an appropriate person to be licensed to drive having regard to his or her traffic history when exercising the discretion it is given under Reg 29(5)(a) to set aside a cancellation; however it was contended that requiring the Court’s satisfaction upon the matter specified in Reg 29(5)(b) went beyond the regulation making power given under ss 171(1), 150 and 147.

1. In my view Reg 29(5)(b) is clearly designed to achieve the overall objectives of the Act to be found expressed in ss 3(1) and (2) and ss 14(1) and (2) to which I have already referred. The Regulation does not even arguably attempt to widen the purposes of the Act or to provide new and different means for achieving those purposes.

1. Prima facie in my view the Regulation which the learned Stipendiary Magistrate held to be invalid as going beyond the rule making power was within the rule making power and not invalid.

1. Because support for the view that the Regulation was invalid was sought to be found in the decisions and observations in the “leading cases” to which I have referred it is desirable to analyse those cases.  The statements of principle in those cases upon which the second respondent relied must of course be viewed in the context of the facts before the court when they were made.

1. In Morton v Union Steamship Co of New Zealand Ltd (supra) the impugned regulation was Reg 188 of the Excise Regulations 1925 made pursuant to the Excise Act 1901-1949 (Cth). The validity of the Regulation there under consideration depended upon the statutory power in pursuance of which it was promulgated. That power was to be found in s 164 of the Excise Act which provided –

“The Governor General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to the excise.”

1. The High Court in that case at 410 observed that the validity of the Regulation therefor depended upon the words -

“All matters - - as may be necessary or convenient to be prescribed for giving effect to this Act - -“

At 410 it was observed –

“A power expressed in such terms to make regulations enables the Governor in Counsel to make regulations incidental to the administration of the Act. - - But not regulations which vary or depart from the positive provisions made by the Act or Regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.”

At 411 it was observed –

“According to that construction Reg 188 imposed upon the custodian of the goods for the time being if they were lost, destroyed or disappeared an obligation to pay not the excise duty on the goods but a sum of money of equal amount so that the payment did not discharge the obligation of the manufacturer and the owner of the goods in respect of excise but left that liability outstanding. According to this construction Reg 188 would operate as a sanction not simply as a means of recovering the duty charged on the goods by s 161 which the statute made payable by the owner or the manufacturer.”

At 412 it was observed –

“The Excise Act 1901-1949 has given specific attention to the question who shall be liable to pay excise duty and to the mode in which the excise duty shall be recovered and the occasion upon which it shall be paid in the case of entry for consumption. There was given attention to the question of security for due removal and exportation and it has made specific provision in relation to these matters. The purpose of Reg 188 is to impose a liability in the events which it specifies upon another set of persons. It is a distinct and independent addition of liability to the liabilities which the legislature has provided. The liability for the safekeeping of the goods and to account for the goods to the satisfaction of the collector falls on each person who in the course of or after the removal of the goods has control or custody thereof and it would include carriers, warehousemen, wharfingers and perhaps stevedores. It is an important liability and to impose it marks a new step in policy. The Regulation is something which is far more than incidental to the provisions of the Act or to its more effective administration. Regulation 188 is beyond the power conferred by s 164 and is therefore void.”

1. In Martin v Commissioner of Patents (1953) 80 CLR 381 the issue was whether Regulation 147 of the Patent Regulations 1912-1949 was ultra vires and invalid because it went further than was “necessary or convenient to be prescribed for giving effect to this Act”.

1. In that case by inadvertence an applicant for registration of a patent asserted that he was the inventor of the article involved whereas in fact he had simply acquired from the inventor by way of assignment an entitlement to be registered as the holder of the patent.

1. An application by the registered holder was made to have the Patent Register amended to “regularise” the registration.  In essence that would have involved a correction of the error in the application and then an amendment of the registration of that application with possible adverse consequences for other persons who between the date of registration and date of the amendment of the Register might arguably be rendered liable for activities to which they would not be liable in the absence of a valid patent due to the mistake made in the application form.  At 400 Webb J observed –

“Parliament has revealed its intention that in the events that have happened here as sworn to by the patentee himself, i.e. the prosecutor, the letters patent should be void and has done so without adding the qualification that the letters patent should be void subject to any provision in the Act or the Regulations to the contrary. The intention is just as effectively revealed in the form of the letters patent in the schedule to the Act as if it appeared in the Act itself. To hold then that there is a power to amend so as to make valid these void letters patent would be to disregard that intention.”

He continued at 401 –

“In the face of this initial and insuperable difficulty it is unnecessary to determine the nature of the prosecutor’s error, i.e. whether it was a clerical error or otherwise or the scope of the powers of amendment in the Act and Regulations and more particularly in s 117 and Regulation 147. Those powers however broad do not include authority to disregard Parliament’s intention.”

1. Section 117 of that Act provided –

“The Commissioner may on request in writing accompanied by the prescribed fee correct any clerical error in the Register of Patents or any proceedings under this Act but no fee shall be required in respect of any correction necessitated solely by error in the Patent Office.”

1. It is clear that there had been no error clerical or otherwise made in recording in the Register an entry based upon the material which the grantee of the patent had provided to the Registrar.

1. Regulation 147 made under that Act provided –

“Any documents for the amending of which no special provision is made by the Act may be amended and any irregularity in procedure which in the opinion of the Commissioner may be obviated without detriment to the interest of any person may be corrected if and on such terms as the Commissioner thinks fit.”

1. At 406 Fullagar J observed –

“With regard to Reg 147 I do not myself think that it is a valid Regulation.  It seems to me to be in exactly the same case as the Regulation which was held invalid in Morton v Union Steamship Co of New Zealand. When the Act contains a number of specific provisions for the amendment of documents a Regulation cannot under the general power conferred by s 108 authorise the amendment of any document for which no provision is made. The Act must be taken to have provided for all such amendments as the legislature considered proper. It may be noted that by s 177 of the Patents Act 1952 (which as has been said is not yet law) a specific power is given to make such a regulation. In the absence of such a specific power I do not see how such a regulation can be supported. The two most important documents which come into existence under the Act are the letters patent themselves and the complete specification. For amendment of the latter the Act makes exhaustive provisions. It contains no provision whatever for the amendment of the letters patent themselves. I would not think it possible to hold that in these circumstances a regulation under the general power given by s 108 could give to the Commissioner an unlimited power or any power to amend so important a document. To adopt what was said in Morton’s case the conferring of such a power involves a new step in policy.”

1. I will turn finally to what was said in Shanahan v Scott (1956) 96 CLR 245. That was a case which the Court considered the validity of a Regulation under the Egg and Egg Pulp Marketing Board Regulations in Victoria which was made pursuant to s 43(1) of the Marketing of Primary Products Act 1935-1953 (Vic). That section conferred on the Governor in Counsel a power in very general terms to make regulations. It did however proceed to give powers to make particular regulations which was said not to effect the generality of the general power already conferred. The particular powers were divided into two lists the first of which related to matters “under the Act generally” and the second “to a new Board”. In respect of this second list of powers a Board was given power to make regulations regulating, inter alia, packing, storage, marketing, selling - - etc of eggs.

1. In that case the Regulation under review purported to deal not merely with eggs vested in the marketing board but to deal with storage of eggs generally in Victoria.  The matter was summarised in the joint judgment of Dixon CJ, Williams, Webb  and Fullagar JJ at 253 as follows –

“The prohibition extends to all eggs – eggs that have been vested in the Board and already marketed, eggs that have never vested in the Board and with which the Board has had nothing to do and eggs that have been brought from another State.

Can this be supported as a regulation for or with respect to regulating storage within the meaning of s 43(1)(b)(iv) - - Can Reg 44 be upheld as a regulation necessary or expedient for the administration of the Act or for carrying out the objects of the Act within s 43(1)? - - If the regulation were concerned only with eggs vested in the Board and with them while they were so vested there could be no objection to it. For the purpose of the legislation is to give the Board control of such eggs in all respects so that they could be marketed when, how and where the Board decides conformably with the provisions of the Act. To provide by regulation against chilling or preserving the Board’s eggs would be nothing but filling in a detail of the plan which the Act describes. But the regulation extends to eggs with which the Board has and can have nothing to do and it extends to those which the Board has sold unconditionally. The complaint against this provision is that it means much more than an elaboration, a filling in or fulfilment of the plan or purpose which the main provisions of the Act have laid down or if the expressions be preferred have ‘outlined’ or ‘sketched’. It means that an attempt has been made to add to the general plan or conception of the legislation and to extend it in to a further field of regulation, namely that of the use, handling or disposition of eggs independently of the Board’s marketing of the eggs vested in or otherwise acquired by the Board. Expressed in the phrase of Isaacs J repeated by him in Carbines v Powell (1925) 36 CLR 88 at 92 the objection is that the regulation is an attempt not to complement but to supplement the plan of the legislation or in another phrase used by that learned judge in the same case that it is not confined to the same field of operation as the provisions of the Act.

1. I think I have dealt sufficiently with the cases upon which the second respondent relies to demonstrate that the reasons for which the Regulations in those cases were held invalid and not supported by the “general” power to make regulations given by the relevant statute do not support the approach for which the second respondent in this case contends because –

(i)The making of Regulation 29(5)(b) under this Act is clearly designed to achieve the attainment of the objectives of the Act to which I have referred. The Regulations in Morton and Shanahan were clearly not designed to achieve the object of the relevant Act in those cases, but to extend the operation to achieve results beyond legislative policy to be inferred from the Acts in question.

(ii)In The Queen v Commissioner of Patents the Regulation held to be void was designed to achieve something which it was clearly against the policy of the legislation there under consideration.

1. In the present case in my view Regulation 29(5)(b) could not be categorised as amounting to “another ground of appeal” where the “sole” ground of appeal provided for under s 132 was based upon excessive hardship.

1. In my view it is simply impermissible to construe the requirement of Reg 29(5)(b) as adding another “ground of appeal” to that specified in s 132 of the Act – or indeed as an “additional ground” to that limited by Reg 29(2) of the Regulations. Upon its proper construction Reg 29(5)(b) does no more than impose what in essence is a condition or proviso which in accord with the overall policy objectives of the legislation is designed to prevent persons whom the court determines to be inappropriate persons from having the cancellation of their driving licence effected in accordance with the statutory scheme to achieve road safety revoked upon appeal enabling them to continue lawfully to drive motor vehicles on roadways putting the safety of other road users at risk.

1. In my judgment the applicant has shown a jurisdictional error of the sort described in Craig v State of South Australia (supra) at 177 in that the learned Stipendiary Magistrate was persuaded by the second respondent to disregarded the requirement of Reg 29(5)(b) and thereby misconceived the nature of the function she was required to perform under Reg 29(2).

1. As presently advised I take the view that the terms of s 47 are not sufficiently different in effect from those of r 98.01 of the South Australia Supreme Court Rules considered in Craig v State of South Australia (supra) to make the decision in that case relating to “error on the face of the record” inapplicable to the proper construction of s 41(2) of the Judicial Review Act 1991. However, in the light of the conclusion to which I have come on the question of jurisdictional error disclosed in the reasons for judgment it is unnecessary for me to decide that point.

1. I quash the order allowing the appeal and pursuant to s 47(3) of the Judicial Review Act 1991 remit the matter to the first respondent for further consideration on the basis that Reg 29(5)(b) is a valid regulation.