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Currie v Road Traffic Authority [1986] VicRp 40; [1986] VR 401 (21 October 1985)

CURRIE v ROAD TRAFFIC AUTHORITY

SUPREME COURT OF VICTORIA

SOUTHWELL J

7, 21 October 1985

Southwell J: This is the return of an order nisi for review granted pursuant to  s3  of the  Administrative Law Act 1978 , seeking an order that a decision of the Road Traffic Authority (the "RTA") whereby the latter cancelled the applicant's motor car driver's licence, should be declared void.

In granting interim relief on 17 September 1985 McGarvie J granted the order nisi on the ground "that the making of the decision was in breach of the rules of natural justice by depriving the applicant of a right without notice or an opportunity to be heard".

The applicant, who is aged 23 years, was at the material times the holder of a probationary motor car driver's licence endorsed to permit him to drive articulated vehicles; he also holds a temporary tow truck licence. On 15 October 1984 he was convicted at the Local Court at Bathurst, New South Wales of the offence of driving at a dangerous speed, and upon conviction he was fined $750 and was disqualified from holding any licence in New South Wales for two years.

In July 1985, in response to a telephone call from the applicant to the RTA, an officer of the latter told the applicant that consideration was being given to the cancellation of the applicant's licence. It was not suggested before me that this conversation constituted a notice which could comply with the rules of natural justice. By letter dated 3 September 1985 the RTA notified the applicant that his licence was cancelled. Relevant parts of the notice are as follows:--

"Motor Car Act. Notice of Cancellation of Driver's Licence. Road Traffic Authority records indicate that you have been convicted in another State or Territory of an offence and disqualified from driving. Pursuant to the powers conferred upon the Road Traffic Authority by s25(1)(e) of the Motor Car Act 1958 and in accordance with the authority delegated to me by the Road Traffic Authority I hereby cancel your driver's licence. Cancellation is effective from the date shown below."

Below that appears: "Cancellation commences 17 September, 1985", and "Licence reissue permitted from 15.10.86."

A note at the bottom of the notice referred to the right of appeal being given by s25(2) of the Motor Car Act, and went on to point out:--

"However s25(3) provides that the Court shall not quash the decision if it is satisfied that you are in fact disqualified in some other State or Territory of the Commonwealth."

In support of this application, the applicant swore that:--

"I am informed that if I had committed the offence in Victoria it is highly unlikely that my licence would have been cancelled for the length of time chosen by the Local Court at Bathurst."

He then sets out details of the hardship which will result to him from cancellation, including possible loss of employment, and loss of his part-time employment as a tow truck driver. He complains that he has been denied the opportunity of putting his case, including an endeavour to persuade the RTA that it should merely suspend rather than cancel the licence and for a considerably less period of time than is presently fixed. I interpolate the comment that the cancellation would be effective here for a period of about 13 months, which is of course substantially less than the two years imposed by the New South Wales Court. Presumably, McGarvie J in exercising the discretion conferred upon him by  s4(2)  of the  Administrative Law Act 1978  did not form the view that the refusal to grant the order nisi would impose no substantial injustice upon the applicant.

It is I think necessary to set out most of the provisions of s25 of the Motor Car Act:--

"25. (1) The Authority may refuse to issue to a person a learner's permit or a driver's licence and the Authority may suspend for such time as it thinks fit or cancel a person's interim permit, learner's permit or driver's licence if--

(a) the person, having been required under subs(5) to submit himself within a specified time for examination by a legally qualified medical practitioner or certified optometrist, fails or refuses to do so;

(aa) in the case of the issue of a driver's licence, the person has failed to comply with the prescribed requirements or procedures for obtaining a driver's licence;

(b) it would be dangerous for the person to drive a motor car by reason of illness or bodily infirmity, defect or incapacity or by reason of the effects of treatment for any such illness or bodily infirmity, defect or incapacity;

(c) the person has at any time been convicted in Victoria or in any other State or Territory of the Commonwealth of an offence which renders him unfit to have such a permit or licence;

(d) the person has within the preceding three years been convicted in Victoria on more than three occasions of offences connected with driving a motor car;

(e) the person is disqualified from driving motor vehicles (of one or more types) in another State or a Territory of the Commonwealth by reason of a judgment, order or decision given or made pursuant to a law of that State or Territory;

(f) in relation to a conditional licence, the Authority is satisfied that the person has failed to comply with a condition of the licence or of an earlier licence;

(g) in relation to an interim permit or learner's permit, the Authority is satisfied that the person has failed to comply with a condition of the permit or of an earlier permit; or

(h) the Authority is satisfied upon information supplied by an authorized insurer pursuant to s27 and after causing the person to be tested or examined that the person is unfit to have such a permit or licence upon the ground that the safety of the public is being or is likely to be endangered.

"(2) In any case where the Authority refuses to issue a learner's permit or a licence or cancels or suspends a learner's permit or a licence pursuant to subs(1) the applicant or the person whose learner's permit or licence is so cancelled or suspended on giving to the Authority and to the clerk of the magistrates' court at least fourteen days' notice in writing of his intention so to do may appeal against such refusal cancellation or suspension to any magistrates' court; and every decision of such court shall be given effect to by the Authority.

"(3) Upon any appeal pursuant to the provisions of the last preceding sub-section the court shall re-determine the matter of the refusal cancellation or suspension, shall hear any relevant evidence tendered whether by the applicant or Authority and, without limiting the generality of its discretion, shall take into consideration all the matters which the Authority ought to have taken into consideration in determining the matter of such refusal cancellation or suspension. "Provided that in the case of a refusal cancellation or suspension pursuant to paragraph (e) of subs(1) of this section the court shall not quash the cancellation or suspension or direct the issue of a learner's permit or licence if the court is satisfied that the applicant or the holder of the learner's permit or licence (as the case may be) is in fact disqualified in some other State or Territory of the Commonwealth as provided in that paragraph."

Before me, it was virtually conceded by Mr. Loewenstein, who appeared for the RTA, that within the meaning of  s3  of the  Administrative Law Act  the applicant was a "person affected by a decision". However, it was said that in the circumstances of this case the RTA was not a "tribunal" which had to observe the rules of natural justice. "Tribunal" is defined in  s2  of the Act in this way:--

"Tribunal means a person or body of persons ... who, in arriving at the decision in question is, or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice."

As will be seen, it was implicit in Mr. Loewenstein's submission that upon the consideration of some matters under s25(1), the RTA would be "a tribunal" within the meaning of  s2  in that it was bound to observe one or more of the rules of natural justice, but it was said for reasons with which it will be necessary for me to deal that, in respect to cases coming within s25(1)(e), there was no such requirement.

The point in issue is whether on the application of well-established principles concerning the necessity for certain tribunals to act in accordance with the principles of natural justice, the RTA was here bound to give the applicant notice of the proposal to cancel his licence and an opportunity to be heard.

In a helpful submission, Mr. Hurley, for the applicant, referred first to Banks v Transport Regulation Board [1968] HCA 23; (1968) 119 CLR 222, a case where the respondent Board, pursuant to its statutory power to revoke taxi licences upon proven breaches of a condition of the grant of the licence, had revoked the appellant's licence. At p. 233, Barwick CJ said: "The principles upon which to decide whether a body such as the Board is bound to act judicially are widely discussed in Ridge v Baldwin and need no elaboration here. I would express with the utmost respect my entire agreement with the speech of Lord Reid in that case."

In the latter case [1963] UKHL 2; ([1964] AC 40) the House of Lords was considering an appeal by a Chief Constable dismissed from office. In his speech, Lord Reid, after observing that: "It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle", proceeded with a painstaking review of various lines of authority. After holding that the Watch Committee which dismissed the appellant was bound to observe the rules of natural justice, Lord Reid succinctly stated the obligation in these words, at p. 80: "The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case." However, it is now well established that the principle may not apply if, upon the true construction of the relevant legislation, the legislature has displaced the rule. In Commissioner of Business Franchises v Borenstein [1984] VicRp 29; [1984] VR 375, Murray J, with whom Young CJ and O'Bryan J agreed, after listing, at p. 378, several cases in which the High Court has considered problems similar to that raised in this case, quoted as the relevant law a passage from the judgment of Barwick CJ in Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at pp. 109-10; [1976] HCA 58; 12 ALR 379, at pp. 382-3. That quotation is here apt, but so much has been written on this subject in recent years that I cannot see it as desirable that I should lengthen this judgment by again setting out that passage. Mr. Hurley also relied upon FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342; 41 ALR 1, a case where the High Court held that an insurer who had been refused approval to act as an insurer for the purposes of the Workers Compensation Act was entitled to an opportunity to be heard by the Minister or the appropriate departmental officer and that the failure to give that opportunity rendered the refusal void. Mr. Hurley submitted that the same principle should here be applied.

In that case Gibbs CJ rested his conclusion to a significant extent upon the natural and legitimate expectation of the insurer that its business would be permitted to continue to operate so long as it was properly conducted. Before me, Mr. Loewenstein, correctly as I believe, pointed out that in the present case the applicant could scarcely have had any natural, reasonable or legitimate expectation that having been disqualified in one State for dangerous driving (an offence which in Victoria carries a minimum disqualification of six months: see s80A of the Motor Car Act) and having regard to the provisions of s25, he would be permitted to retain his licence in Victoria.

However, there are other dicta in FAI. Insurances which are relied upon by Mr. Hurley as being of general application. Mason J said, at (151 CLR) p. 360; (41 ALR) p. 13: "The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power." And on the same page: "It is now authoritatively established that the exercise of a power revoking a licence will attract the rules of natural justice, certainly when the revocation results in the loss of a right to earn a livelihood or to carry on a financially rewarding activity." The latter elements are at least in part present here. See also, at (151 CLR) p. 376; (41 ALR) p. 26, per Aickin J; (151 CLR) p. 390; (41 ALR) p. 37, per Wilson J; (151 CLR) pp. 407-8; (41 ALR) pp. 51-2, per Brennan J.

Mr. Loewenstein submitted that the fact that the applicant was the holder merely of a probationary licence which would in Victoria have been cancelled upon a conviction for dangerous driving is relevant as indicating legislative policy directed to ensure that a probationary licensee so convicted should have his licence cancelled. I do not see that the fact that the appellant is a probationary licence holder affects the question of the applicability of the rules of natural justice to the decision-making process: particularly is that so where disqualification is inevitable for any licence holder convicted in Victoria of dangerous driving (I exclude from consideration the remote possibility of adjournment without conviction, pursuant to s80 of the Magistrates (Summary Proceeding) Act 1975).

Mr. Loewenstein was, I think, on stronger grounds when, having conceded that s25(1) of the Motor Car Act confers a discretion on the RTA, he submitted that a consideration of the relevant sections leads to the conclusion that the legislature has made clear an intention to exclude the principles of natural justice. I have referred to his submission relating to the absence in the applicant of a legitimate expectation. Mr. Loewenstein pointed to s25(3) as indicating the intention of the legislature that disqualification by a court of another State should be followed by a similar order here. Mr. Loewenstein referred to Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487; 14 ALR 519, a case dealing with the exercise of the Commission's statutory power to "warn off" persons from racecourses. At (137 CLR) p. 491; (14 ALR) p. 521, Barwick CJ said: "The court thus, if it is of opinion that the statute properly construed does require, though not expressly but implicitly, the observance of natural justice, does supplement the express language of the statute by effecting the qualification of the grant of power.

"It has become quite clear that this qualification may be found in a statute although the granted power is not a power judicial in its nature but purely administrative. Because the legislature is not presumed to authorize injustice, it is easier to imply the qualification where the statute is silent. But this does not mean, in my opinion, that because the statute is silent, the provision of natural justice is presumed. It remains always a question of construction, bearing in mind the subject matter of the power, the repository of the power, and the terms of the statute as a whole." (The fact that Barwick CJ in the result dissented does not affect the authority of those remarks.)

In my opinion the authorities show that a stringent test is to be applied in deciding whether the legislature has intended to exclude observance of the rules of natural justice. Various expressions used in the authorities are these--it must be "unambiguously clear", per Barwick CJ in Twist v Randwick Municipal Council; "But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment" per Dixon CJ and Webb J in Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, at p. 396; and "only language of unmistakable meaning could displace this presumption", per Murphy J in Heatley's Case, at (137 CLR) p. 496; (14 ALR) p. 525.

I do not find in s25(3) or in any other sections to which Mr. Loewenstein referred, language which satisfies those tests. In my opinion, that would suffice to enable the applicant to succeed. But there is more--if the legislature had wished to compel the RTA to impose like cancellation as has been imposed by another State, it could easily have said so; but as Mr. Loewenstein conceded, there is a discretion. Furthermore, if his submission is correct, the odd result would logically follow that while the RTA is not bound to observe the rules of natural justice in cases where s25(1)(e) applies, it is indeed bound where any other clause is applicable. That is so for the reason that the proviso to s25(3), which relates only to para. (e), is central to the present submission of the RTA.

It is in my opinion understandable that the legislature would not wish to deny natural justice to those whose rights may be severely affected by licence cancellation, even to the extent of loss of livelihood. It may be that local conditions and the prevalence of an offence in some part of Australia leads a court to impose a sentence of a severity greater than would be appropriate elsewhere: it may be that there is lack of uniformity concerning offences which attract mandatory disqualification rather than mere suspension: it may be that circumstances occurring since the original sentence, or peculiar to a person affected, could lead the RTA. to take a course in some respects different to that taken elsewhere. This is no exhaustive list, but it refers to matters which may well be within the knowledge of a person affected and not within the knowledge of the RTA. One means of acquisition of that knowledge and in my view a just one, is compliance with the rule of natural justice that a person who may be affected should be informed that consideration is being given to the question and that any submissions will be considered.

It is not to the point that in this case the decision would or would probably have been the same had natural justice been observed: General Medical Council v Spackman [1943] AC 627, at pp. 644-5, per Lord Wright.

In any event it cannot be assumed that the decision would or would probably have been the same. The applicant while understandably enough not expressing any degree of sanguinity that he might altogether escape, harbours hopes that he might persuade the RTA to take a more lenient course than was in fact taken. It would be quite inappropriate for me to comment on his prospects of success; however, the applicant is in law entitled to be heard in that effort of persuasion.

As Gibbs CJ pointed out in FAI. Insurances, at (151 CLR) p. 350; (41 ALR) pp. 4-5: "The nature of the hearing to which a person affected is entitled must always depend on the circumstances of the case, and in a case such as the present fairness requires that the applicant company should be apprised of the allegations against it and should be given a full and fair opportunity to answer those allegations in writing."

This is not a case where the applicant would be entitled to a hearing at which he should be present; there are no informants or accusers who are alleging facts in controversy and who he might reasonably wish to cross-examine: he should, however, be given "a full and fair opportunity to answer those allegations in writing".

For the reasons I have endeavoured to state, I am of opinion that the applicant is entitled to succeed. The appropriate order is, I believe, that the subject order of the RTA be declared void, the respondents must pay the cost of these preceedings to be taxed, with a certificate for counsel.

Order of first respondent declared void.

Solicitors for the applicant: Taylor, Splatt and Parker.
Solicitor for the respondent: MA Pollard.