Applicant v Respondent

1. In support of the application the Secretary relied upon:

(a) the summons filed 11 November 2025 and amended on 3 December 2025;

(b) the affidavits of Ella Bilton-Gough, solicitor for the Department, affirmed on 11 November 2025 and 3 December 2025, respectively; and

(c) written submissions filed on 3 December 2025.

1. In opposition to the Secretary's application, Mr Myers relied upon:

(a) the amended originating motion filed 24 September 2025;

(b) his affidavit affirmed on 16 August 2025;

(c) his further affidavits affirmed on 15 September 2025, 23 October 2025 and 20 January 2026, respectively; and

(d) his written submissions filed 26 January 2026.

The Road Safety Act 1986, Regulations and the AFD Guidelines

1. In order to understand the background facts to this matter and the arguments raised by Mr Myers, it is convenient to set out some of the statutory provisions and guidelines relevant to suspension of drivers' licences and medical assessments of a person's fitness to drive.
2. The purpose of the Road Safety Act 1986 relevantly includes: 'to provide for safe, efficient and equitable road use', 'to set out the general obligations of road users in relation to responsible road use', and 'to improve and simplify procedures for the registration of motor vehicles and the licensing of drivers'.[3]
3. Part 3 of the Road Safety Act deals with licensing of drivers. Section 24 falls within Part 3 and provides:

Cancellation, suspension or variation of licences and permits by Secretary

(1) The Secretary must, if required by the regulations to do so -

(a) suspend for the prescribed time the driver licence or learner permit of any person;

(b) cancel the driver licence or learner permit of any person;

(ba) disqualify a person whose driver licence or learner permit has been cancelled under paragraph (b) from obtaining a driver licence or learner permit for the period determined in accordance with the regulations;

(c) vary the driver licence or learner permit of any person by excluding or including a category of motor vehicle;

(d) vary the conditions to which the driver licence or learner permit of any person is subject by imposing, removing or amending a condition.

...

(2) The Secretary may, in accordance with the regulations -

(a) suspend for any time that the Secretary thinks fit the driver licence or learner permit of any person;

(b) cancel the driver licence or learner permit of any person;

(ba) disqualify a person whose driver licence or learner permit has been cancelled under this section from obtaining a driver licence or learner permit for the period determined in accordance with the regulations;

(c) vary the driver licence or learner permit of any person by excluding or including a category of motor vehicle;

(d) vary the conditions to which the driver licence or learner permit of any person is subject by imposing, removing or amending a condition.

(3) In suspending, in accordance with the regulations, a driver licence or learner permit on the ground that it would be dangerous for the person to drive a motor vehicle because of illness or disability, medical condition or injury or because of the effects of treatment for any of those things, the Secretary may do so on the basis of a report given by a registered medical practitioner and without conducting any other hearing or investigation into the matter before the suspension is imposed.

1. Registered medical practitioner is defined as 'a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student)'.[4]
2. Section 26(1)(b) of the Road Safety Act provides a right of appeal to the holder of a driver licence in the event the Secretary decides, under s 24(2), to suspend, cancel or vary in any way a driver licence.
3. Section 27 of the Road Safety Act provides:

Power of Secretary to require tests to be undergone

(1) Subject to subsection (3A), the Secretary may require a relevant person to undergo a test or assessment to determine -

(a) if the person is unfit to drive motor vehicles or a category of motor vehicles; or

(b) if it is dangerous for the person to drive motor vehicles or a category of motor vehicles; or

(c) whether any driver licence or learner permit held by the person should be subject to conditions and, if conditions are to be imposed, the type of conditions to be imposed.

(1A) Subject to subsection (3A), the Secretary may require a person who is authorised under the regulations to drive a motor vehicle on a highway to undergo a test or assessment to determine -

(a) if the person is unfit to drive motor vehicles or a category of motor vehicles; or

(b) if it is dangerous for the person to drive motor vehicles or a category of motor vehicles.

(2) For the purposes of subsections (1) and (1A), the person may be required to undergo -

(a) a test or assessment in relation to the person's fitness, including a test or assessment in relation to the person's health or medication the person is taking and its effect on the person's ability to drive; or

(b) a test or assessment in relation to the person's competence; or

(c) any other test or assessment the Secretary considers necessary and appropriate in the circumstances.

(3) If the Secretary requires a person to undergo a test or assessment under this section -

(a) the test or assessment must be carried out -

(i) by a person of the class prescribed in relation to that class of test or assessment; and

(ii) in accordance with any relevant guidelines; and

(b) the use of the results of the test or assessment by the Secretary to determine a matter referred to in subsections (1) and (1A) must be in accordance with any relevant guidelines.

...

relevant guidelines, in relation to a test or assessment undergone by a person, means guidelines issued by the Minister under section 96B that are relevant to the test or assessment;

relevant person means a person who is -

(a) the holder of a driver licence or a learner permit...

1. The objective of the Road Safety (Drivers) Regulations 2019 includes to make provision under the Road Safety Act for driver licences and learner permits.[5] Part 3 of the Regulations deals with variation, suspension or cancellation of driver licences and learner permits. Division 2 of that Part deals with variation, suspension and cancellations by the Secretary.
2. Regulation 80 provides:

Variation, suspension or cancellation of driver licence or learner permit on the grounds that the person is unfit to drive or that it is dangerous for the person to drive

(1) The Secretary must vary, suspend or cancel a person's driver licence or learner permit if, based on the results of a test or assessment required by the Secretary under section 27 of the [Road Safety] Act or a report from a registered medical practitioner, the Secretary believes it would be dangerous for the person to drive a motor vehicle, or a category of motor vehicle, because of any illness, disability, medical condition or injury, or because of the effects of the treatment for any of those things, that may impair the person's ability to drive safely.

(2) A person who is the holder of a driver licence or learner permit that has been cancelled under subregulation (1) is disqualified from obtaining a driver licence or learner permit until the Secretary is satisfied on the basis of results from another test or assessment required by the Secretary under section 27 of the [Road Safety] Act or another report from a registered medical practitioner, that the grounds for cancellation under subregulation (1) no longer exist.

(3) The Secretary may suspend or vary a person's driver licence or learner permit until the person has undergone a test of fitness or competence or any other appropriate test or assessment if -

(a) the Secretary receives information which discloses or suggests that a person is unfit to drive or that it may be dangerous to allow that person to hold a driver licence, a particular category of driver licence, or a learner permit; and

(b) the Secretary is satisfied on reasonable grounds that the information is reliable.

Procedure for variation, suspension or cancellation of driver licence or learner permit

(1) Subject to subregulation (2), the Secretary must give written notice to the holder of a driver licence or learner permit in compliance with subregulation (4) if the Secretary, under regulation 79, 80 or 81(1) -

(a) decides to vary the licence or permit by imposing a new condition on it; or

(b) decides to suspend or cancel the licence or permit.

(2) The Secretary is not required to give written notice to the holder of a driver licence or learner permit if -

....

(d) the Secretary suspends the licence under section 24(2) of the [Road Safety] Act in the circumstances referred to in section 24(3) of the [Road Safety] Act; or

(e) the licence or permit is suspended, cancelled or varied because the holder of the licence or permit refuses or fails to undergo a test or assessment under section 27(1) of the [Road Safety] Act or does not pass the test or assessment.

(3) If the Secretary varies a driver licence or learner permit on any of the grounds under regulation 80(1), the Secretary must give written notice to the holder of the driver licence or learner permit stating the details of the variation of the licence or permit including -

(a) the reasons for the variation of the licence or permit; and

(b) that the notice takes effect immediately upon service of the notice or on a later date specified in the notice; and

(c) the conditions, if any, to which the licence or permit is subject; and

(d) the action, if any, that the holder of the licence or permit must take to comply with any conditions imposed on the licence or permit; and

(e) that the person has a right under Part 5 to apply within 28 days after the date that the notice to have the decision reviewed was sent.

(4) A notice under subregulation (1) or (3) must state the following -

(a) the decision and the reasons for it;

(b) the date the decision takes effect;

(c) the action, if any, that may be taken by the person to avoid the variation, suspension or cancellation;

(d) the date by which the person must take that action;

(e) if the person must return the physical driver licence document or physical learner permit document to the Secretary, the date by which it must be returned;

(f) that the person has a right under Part 5 to apply within 28 days after the date of the notice to have the decision reviewed.

(5) The date specified in the notice as the date on which the decision takes effect must be at least 28 days after the date of the notice.

(6) The driver licence or learner permit is varied, suspended or cancelled in accordance with the notice unless the Secretary, by further written notice, withdraws the notice.

1. There was no dispute between the parties that the relevant guidelines issued by the Minister under s 96B of the Road Safety Act were the 2022 edition of 'Assessing fitness to drive for commercial and private vehicle drivers: Medical standards for licensing and clinical management guidelines' (the AFD Guidelines). The AFD Guidelines are made up of three parts. Part A concerns fitness to drive principles and practices. Part B concerns medical standards. Part C contains various appendices.
2. Chapter 3 of Part B addresses diabetes mellitus. Subsection 3.2, titled 'General assessment and management guidelines' states:

General management of diabetes in relation to fitness to drive is summarised in Figure 10. Note, for the purpose of the diabetes standard, appropriate specialist means an endocrinologist or consultant physician specialising in diabetes. For general guidance on diabetes management refer to relevant best practice guidelines...

1. The part of Figure 10 dealing with people with diabetes treated with insulin is as follows:

1. Chapter 3 of the AFD Guidelines contains a table entitled 'Medical standards for licensing - diabetes mellitus'. The table notes that '[h]ealth professionals should familiarise themselves with the information in this chapter and the tabulated standards before assessing a person's fitness to drive'. The table contains three columns: '[c]ondition', '[p]rivate standards' and '[c]ommercial standards'. The condition relevant to Mr Myers is '[i]nsulin-treated diabetes (except gestational diabetes)'. The private standards relevant to that condition state:

A person is not fit to hold an unconditional licence:

• if the person has insulin-treated diabetes.

A conditional licence may be considered by the driver licensing authority subject to at least 2-yearly review, taking into consideration the nature of the driving task and information provided by the treating doctor on whether the following criteria are met:

• there is no recent history of a 'severe hypoglycaemic event'; and

• the person is following a treatment regimen that minimises the risk of hypoglycaemia; and

• the person experiences early warning symptoms (awareness) of hypoglycaemia (refer to section 3.2.1) or has a documented management plan for lack of early warning symptoms; and

• there are no end-organ effects that may affect driving as per this publication.

For private drivers who do not meet the above criteria, a conditional licence may be considered by the driver licensing authority, taking into account the opinion of an endocrinologist or consultant physician specialising in diabetes and subject to regular specialist review.

(emphasis in original).

1. I interpose here to note that as a person with diabetes treated by insulin, Mr Myers was not eligible for an unconditional licence. At the time of the accident Mr Myers' driver licence had been conditional for many years.
2. The commercial standards for a person with Mr Myers' condition, which are relevant to drivers of heavy vehicles and public passenger vehicles, state that:

A conditional licence may be considered by the driver licensing authority subject to at least annual review, taking into consideration the nature of the driving task and information provided by an endocrinologist or consultant physician specialising in diabetes on whether [specified] criteria are met...

(emphasis in original).

1. On 23 May 2025, the Department wrote to Mr Myers. The letter stated that the Medical Review team had been notified by police that Mr Myers had been involved in a recent driving incident which 'raised serious concerns' about whether it was safe for him to keep driving. The Medical Review team received a police report on 21 May 2025 that Mr Myers had collided with a car that was slowing in front of him and that Ambulance Victoria noted that Mr Myers had low blood sugar and that this could have contributed to the collision. The letter required Mr Myers to provide an endocrinologist's report by 30 May 2025 that would satisfy the Medical Review team that Mr Myers was fit to drive, failing which his licence would be suspended from 31 May 2025. The report was required to address Mr Myers' 'health and circumstances at the time of the incident on 21 May 2025 and [his] current fitness to drive'. The letter explained that tight timeframes had been imposed because the Medical Review team urgently needed to make sure it was safe for Mr Myers to drive.
2. The letter advised Mr Myers that the decision had been made under reg 80(3) of the Regulations and s 24(2) of the Road Safety Act and that, therefore, Mr Myers had a right to an internal review within 28 days of the decision and the right to appeal to the Magistrates' Court.
3. On 7 June 2025 Mr Myers submitted an appeal under s 26 of the Road Safety Act to the Magistrates' Court.[6] The application was not accepted for filing by the registry who advised Mr Myers that his appeal should be filed in the Magistrates' Court's criminal jurisdiction.
4. On 11 and 16 June 2025, Mr Myers emailed the Department requesting information about whether an appeal under s 26(2) of the Road Safety Act[7] was a civil or criminal proceeding and requesting the Department reimburse him the Magistrates' Court application fee.
5. On 17 June 2025, the Department responded declining to reimburse Mr Myers and referring his earlier emails to the Medical Review team. Mr Myers responded the same day requesting the Department call him urgently to clarify matters.
6. On 26 June 2025, the Department wrote to Mr Myers informing him that, having reviewed his medical report, the suspension of his licence would remain. The letter advised that the Medical Review team would reconsider the suspension if Mr Myers provided a medical report from his general practitioner addressing his health and circumstances at the time of the collision on 21 May 2025 and his diabetic control, detailing his fitness to drive a motor vehicle. The letter advised Mr Myers that the decision was made under reg 80(1) and s 24(1) of the Road Safety Act and so Mr Myers had the right to an internal review within 28 days of the decision.
7. On 16 July 2025, Dr Samantha Hutchinson, Endocrinologist at the Monash Health Diabetes Department sent a report to the Medical Review team. The report commences by stating: 'I elect to refer this driver directly to the driver licensing authority without a recommendation regarding health and circumstances at the time of the incident on 21 May 2025 and fitness to drive'. Dr Hutchinson stated that her report was compiled from information received from Mr Myers over two consultations conducted on 2 July 2025 and 16 July 2025.
8. In relation to the first consultation, Dr Hutchinson reported that when asked about the collision Mr Myer requested she use the email he sent to the clinic. That email, extracted in the report, says that Mr Myers panicked when he was redirected by Google Maps and mistakenly entered the ramp to the Monash freeway. He then inspected his map screen. In doing so, he realised the car in front of him was stationary and misjudged the time and distance required to stop and collided with the car. Mr Myers told Dr Hutchinson that he was wearing his sensor at the time of the accident, that he activated and tested it prior to driving, that he tested his blood sugar level but his phone recorded an error and so no reading was obtained. While Mr Myers showed Dr Hutchinson some data at the consultation, Dr Hutchinson reported that Mr Myers had declined offers to be connected to Monash Health Diabetes unit and so all the numbers she saw were from Mr Myers showing her the app screen on telehealth. Dr Hutchinson reported that she did not see any data from the day of the collision. Dr Hutchinson recorded her advice to Mr Myers that, among other things, he attend a face to face and DNE[8] review, enable Bluetooth connection for real-time blood glucose monitoring and connect his sensor to Monash Health Diabetes Unit.
9. In relation to the second consultation on 16 July 2025, Dr Hutchinson reported the Mr Myers had enabled Bluetooth connection and was using real time blood glucose monitoring with alarms turned on. Mr Myers had declined to connect to Monash Health Diabetes Unit and so all the data provided by Mr Myers to Dr Hutchinson at the second consultation was either by Mr Myers showing her the app on telehealth or verbally as the screen was intermittently blurry. Dr Hutchinson recorded her recommendations that Mr Myers attend a face to face and DNE review and connect his sensor to the Monash Health Diabetes Unit. Mr Myers declined a further consultation. Dr Hutchinson reported that she did not have an eye report for Mr Myers at that time. Dr Hutchinson advised Mr Myers not to drive and that the Department would be in contact with him.
10. On 22 July 2025, the Department sent Mr Myers a further letter. This letter acknowledged that Mr Myers had provided an endocrinologist's report from Monash Hospital's diabetes department and confirmed that, based on the Medical Review team's consideration of the report, Mr Myers' licence would remain suspended. The letter informed Mr Myers that the Medical Review team would reconsider his licence suspension if Mr Myers provided an endocrinologist's report 'specifically addressing [his] fitness to drive'. The letter advised that the decision had been made under reg 80(1) of the Regulations and s 24(1) of the Road Safety Act and so Mr Myers had the right to an internal review within 28 days of the decision.
11. On 23 July 2025, Dr Hutchinson sent the Medical Review team an addendum to her earlier report requesting she be contacted about the process and timing for Mr Myers' review by VicRoads medical staff. The addendum noted that Mr Myers had been waiting several weeks to be seen by a specialist and reported that he urgently required his licence. Relevantly, the addendum stated:

I would like to clarify that I am asking Vic[R]oads Medical staff to urgently review this patient as he urgently requires his licence but given the complex scenario, I elect to refer this driver directly to the driver licensing authority without a recommendation regarding health and circumstances at the time of the incident on 21 May 2025 and fitness to drive.

1. On 24 July 2025, the Department sent another letter to Mr Myers confirming that based on a review of his medical report the previous suspension decision remained in place. The letter stated that, '[f]ollowing discussion with your endocrinologist, the Medical Review team still need your help in getting the information requested in the previous letter, to make sure it is safe for you to drive'. The letter advised Mr Myers that the suspension decision would be reconsidered if he provided an endocrinologist's report confirming his diabetes is well controlled, that he had not suffered any more hypoglycaemic events and was fit to drive.
2. On 24 July 2025, Mr Myers emailed the Department asking the Department to call him as he had been unable to obtain assistance from the Medical Review team.
3. On 26 July 2025, Mr Myers sent an email to the Medical Review team requesting, among other things, an internal review, noting that he still believed the Secretary's decisions under s 24(1) of the Road Safety Act to be invalid.
4. On 30 July 2025, Mr Myers sent a follow-up email to the Medical Review team requesting a response to his earlier emails. In this email, Mr Myers reports being told by Monash Health that the Medical Review team can arrange independent medical assessments for drivers but that he had been unable to verify that information. That email was responding to one sent earlier that day by the Medical Review team informing Mr Myers that the endocrinologist's report following his consultations on 16 and 23 July 2025 recommended further follow up with Mr Myers at a face-to-face appointment to ensure his diabetes control was optimised and his risk of hypoglycaemic events mitigated. Accordingly, the team had requested a further report from an endocrinologist to inform the Medical Review teams' decision whether Mr Myers was fit to drive.[9]
5. On 3 August 2025, Mr Myers emailed the Department complaining that the Medical Review team was demanding, without explanation, that Mr Myers be assessed by a specialist as if he were a commercial driver. Mr Myers further stated that in order for the Department to make a decision under s 24(1) of the Road Safety Act, the requirements of reg 80(1) of the Regulations must be met. Mr Myers argued that, as the endocrinologist's report did not address his safety to drive, the requirements of the regulation allowing the Secretary to suspend his licence were not met.
6. On 5 August 2025, Mr Myers sent a further email to the Medical Review team. In this email, Mr Myers complained that the team was unjustly requiring he meet criteria different to those required in the AFD Guidelines to be considered fit to drive.
7. On 8 and 12 August 2025, Mr Myers sent follow up emails to the Medical Review team complaining that the team had imposed criteria on him beyond that required by the AFD Guidelines and asking why the team had not advised him that it had asked Monash Health to see Mr Myers in person.
8. On 20 August 2025, the Department sent an email to Mr Myers attaching a letter containing the response and outcome of his internal review request. A copy of the attached letter was not in evidence before the Court but, from Mr Myers' email in response of the same day, it is apparent that the outcome of the internal review was to maintain Mr Myers' licence suspension. In his email, Mr Myers, among other things, disputed that the AFD Guidelines required a private driver to be assessed by an endocrinologist rather than his treating general practitioner.
9. On 29 August 2025, the Department responded to Mr Myers indicating that the Department was required to consider all available information, notwithstanding that Mr Myers disputed the information provided by the police and ambulance worker. The email noted that Mr Myers had not submitted any supporting evidence that the incident was not caused by a glycaemic episode apart from his own statement that he was using the car's navigation system at the time of the accident. Mr Myers had not submitted a medical report confirming his fitness to drive in accordance with the AFD Guidelines, specifically those related to drivers with persistently impaired hypoglycaemia awareness. The email stated that because the incident involved a collision the Medical Review team required confirmation from a specialist that Mr Myers was medically fit to drive.
10. On 9 September 2025, Mr Myers filed a summons seeking an urgent order granting him a temporary conditional licence to allow him to drive to his local supermarket, general practitioner, appointments to inspect rental properties and to go to his storage unit. Mr Myers' summons was heard on 16 and 25 September 2025 and refused by Tsalamandris J on 25 September 2025. Mr Myers was ordered to pay the Department's costs of the summons.[10]
11. On 6 October 2025, after making a freedom of information request, Mr Myers obtained the Ambulance Victoria records from the 21 May 2025 incident.[11] The records show that, at 7:07pm on 21 May 2025, Mr Myers had a blood glucose reading of 3.6 mmol/L. The records also state:

Pt states he was travelling in his car, onto freeway on ramp at approx. 60kph, was distracted by his phone and impacted the stationary car in front. Pt denies HS, denies LOC, has full recall. Pt denies any drugs or alcohol. Pt also states his reactions may have been impaired due to low sugars.

Pt states he has been unable to check his BSL due to non functioning sensor but had a scone 20-30 mins prior to accident.[12] Pt states he has been otherwise well.

1. On 14 October 2025, Mr Myers was assessed by Dr Rebecca Foskey, an endocrinologist at Royal Melbourne Hospital.[13] Dr Foskey assessed Mr Myers by telehealth appointment and provided a report the following day to the Department. Dr Foskey's report states that her report related to Mr Myers' diabetes and not his other conditions. In addition to her consultation with Mr Myers, Dr Foskey had access to Mr Myers' correspondence with a previous endocrinologist dated 2 July and 16 July 2025, screenshots of Mr Myers' glucose monitor, the ambulance report from 21 May 2025 showing Mr Myers' blood glucose level of 3.6 mmol/L on the day of the accident, an optometrist report from October 2024 and pathology results from June 2025. Dr Foskey assessed Mr Myers as fit to drive subject to conditions, being that he undergo the standard periodic medical review and wear corrective lenses as required by his optometrist.
2. On 17 October 2025, the Department sent Mr Myers a letter notifying him that the Medical Review team had considered the endocrinologist's report which indicated there was no medical reason for Mr Myers not to drive and so the suspension of Mr Myers' licence had been lifted.
3. On 4 November 2025, the solicitors for the Department wrote to Mr Myers inviting him to withdraw this proceeding, given his licence was no longer suspended. On 7 November 2025 Mr Myers responded refusing to withdraw the proceeding.
4. On 26 January 2026, Mr Myers filed an affidavit in this proceeding which exhibited various letters to him from the Medical Review team from 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020 and 2021. It is unnecessary to rehearse the content of each of these letters in detail but it is sufficient to note they demonstrate an extensive history of the Secretary suspending Mr Myers' driver licence pending his provision of various medical reports, including from his endocrinologist, confirming his medical fitness to drive and his compliance with diabetic treatment and control.

1. Mr Myers seeks judicial review of the decisions made by the Secretary on:

(a) 23 May 2025 to suspend Mr Myers' licence if he did not provide a report of an endocrinologist within 7 days under s 24(2);

(b) 26 June 2025 to suspend Mr Myers' licence under a different provision, s 24(1);

(c) 22 July 2025 to maintain the suspension;

(d) 24 July 2025, a subsequent decision to maintain the suspension; and

(e) 21 August 2025, an internal review decision affirming the original suspension.

1. His amended originating motion sets out the relief Mr Myers seeks as follows:

(a) an order quashing the decision to suspend Mr Myers' licence from 31 May 2025 made under s 24(2) of the Road Safety Act;

(b) an order quashing the decision to suspend Mr Myers' licence under s 24(1) of the Road Safety Act and reg 80(1) of the Regulations;

(c) an order prohibiting the Secretary from requiring Mr Myers be assessed by a specialist, unless there is a requirement or means to do so specified in the AFD or other guidelines approved by the relevant Minister;

(d) an order prohibiting the Secretary ever imposing any criteria on Mr Myers beyond those already specified in the AFD or other guidelines approved by the relevant Minister; and

(e) an acknowledgement that an appeal under s 26 of the Road Safety Act is heard in the civil jurisdiction of the Magistrates' Court of Victoria.[14]

1. Mr Myers is a self-represented litigant and thus entitled to the assistance of the Court. In the section of Mr Myers' amended originating motion dealing with his grounds of review, Mr Myers includes a discursive chronology of his dispute with the Department over his licence and material that is more in the nature of submissions. Leaving this additional content to one side, I understand Mr Myers' grounds of review, in summary, to be:

(a) the Secretary denied Mr Myers natural justice when he decided to require Mr Myers to be assessed by an endocrinologist without seeking Mr Myers' views on the causes of the car accident on 21 May 2025;

(b) the notice issued by the Secretary on 23 May 2025 requiring Mr Myers to be assessed by and provide a report from an endocrinologist by 30 May 2025, failing which his licence would be suspended, was invalid because:

(i) regulation 82(5) requires a period of 28 days to be given before a decision takes effect;

(ii) the AFD Guidelines require a private driver to be assessed by their treating doctor and not a specialist, the latter being required only for commercial drivers; and

(iii) there was no basis for the Secretary to be satisfied on reasonable grounds that the information provided by the police, who did not witness the car accident and are not medically qualified, disclosed or suggested Mr Myers is unfit to drive or that it may be dangerous to allow Mr Myers to hold a driver licence, as required by reg 80(3);

(c) the notice issued by the Secretary on 26 June 2025 suspending Mr Myers' licence under s 24(1) of the Road Safety Act was invalid because it was not based on the results of a test or assessment required by the Secretary under s 27 of the Road Safety Act or a report of a medical practitioner, as required by reg 80(1); and

(d) the decisions of the Secretary made on 22 July 2025, 24 July 2025 and 21 August 2025 were invalid because:

(i) they were made relying on a report of an endocrinologist that did not include a recommendation by the endocrinologist whether Mr Myers was fit or unfit to drive; and

(ii) the Secretary impermissibly required the endocrinologist to address the circumstances at the time of the incident on 21 May 2025, which was beyond the requirements of the AFD Guidelines.

Relevant legislative provisions and principles

1. Section 47 of the CPA provides:

Judicial powers of case management - overarching purpose and active case management

(1) Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made -

(a) in the interests of the administration of justice; or

(b) in the public interest.

Striking out pleading

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading -

(a) does not disclose a cause of action or defence;

(b) is scandalous, frivolous or vexatious;

(c) may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court -

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

1. Section 63 of the CPA permits the Court, subject to s 64, to give summary judgment in any civil proceeding if satisfied that a claim, or part of the claim, has 'no real prospect of success'.
2. The principles relevant to the application of s 63 of the CPA were helpfully set out by Warren CJ and Nettle JA in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd:[15]

Upon the present state of authority:

(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

1. An application by a defendant for summary judgment must be made in accordance with Part 3 of Order 22 of the Rules. The application must be made on summons supported by any affidavit the defendant intends to rely upon.[16] The plaintiff may show cause against the application by affidavit or otherwise to the Court's satisfaction.[17] The plaintiff must satisfy the Court that in respect of the claim the subject of the summary judgment application, the plaintiff's claim has a real prospect of success or there is some other reason the claim should be permitted to proceed to trial.
2. Section 64 of the CPA allows the Court to order that a civil proceeding proceed to trial if the Court is satisfied that, despite there being no real prospect of success, the proceeding should not be disposed of summarily because 'it is not in the interests of justice to do so' or because 'the dispute is of such a nature that only a full hearing on the merits is appropriate'.
3. Section 7(1) of the CPA sets out the overarching purpose: 'to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'. The Court is required to have regard to this purpose in making any order or giving any direction in a civil proceeding.[18]

1. In his amended origination motion, Mr Myers stated that the basis of his claim that the decision to suspend his licence made on 23 May 2025 was invalid was the imposition of 'demanding criteria', namely a requirement to provide an endocrinologist's report, despite the relevant Minister not approving of such a requirement in the AFD Guidelines.
2. He also said that he was denied natural justice because of the time it took the Secretary to take the decision to suspend his licence, the letter being dated two days after the accident. Mr Myers submitted that this decision was taken 'without ever asking me or allowing me an opportunity to submit submissions or evidence to support how and why the incident occurred'. In oral submissions he elaborated, stating:

[The Secretary] didn't want to even get my response, they... just took the word of an unreliable person... and never wanted to question [the word of the] police officer. Didn't want to rely [on] the paramedic's opinion that proves otherwise. So this is like when they suspended this they didn't do it in accordance with law. They need to have that medical report to rely upon.[19]

1. Mr Myers submitted that the decision made on 23 May 2025 was invalid because his licence was to be suspended seven days from the date of the letter advising him of the decision. Mr Myers submitted that, pursuant to reg 82(5) of the Regulations, the suspension could not take effect until 28 days after the date of the notice.
2. At the hearing, the solicitor for the Department submitted that the decision made by the Secretary was exempted from the notice requirements under reg 82(2)(d) of the Regulations which provides that notice is not required where 'the Secretary suspends the licence under section 24(2) of the [Road Safety] Act in the circumstances referred to in section 24(3) of the Act'. Mr Myers submitted, in response, that the decision was not one exempted from the notice requirements in reg 82(2) of the Regulations.[20] Mr Myers submitted reg 82(2)(d) of the Regulations is not engaged, contrary to the Department's submission, 'because no medical report had been provided by any doctor until quite some time after' which he submitted is a requirement of s 24(3) of the Road Safety Act.[21]
3. Mr Myers said that the decision made in May 2025 did not comply with s 27(3)(a)(ii) of the Road Safety Act because Mr Myers was required to undergo a test or assessment that was not required by the AFD Guidelines. He submitted that, as a private driver, the only medical report that was required was one from his treating doctor and that the requirement for a report from an endocrinologist or physician specialising in diabetes was only required for commercial licence holders.
4. Mr Myers submitted that the Secretary based their decision on the report of a police officer which the Secretary was prohibited from doing under reg 80(3). That regulation provides the Secretary may suspend or vary a licence until a person has undergone an appropriate test if they receive information that the person is unfit to drive or if it may be dangerous for them to hold a drivers licence and 'the Secretary is satisfied on reasonable grounds that the information is reliable'. Mr Myers submitted that the police officer's opinion was not reliable because they are not medically qualified and lied to the Secretary about statements Mr Myers made after the accident on 21 May 2025.
5. Mr Myers submitted that the suspension made under s 24(1) of the Road Safety Act on 26 June 2025 was invalid because the Secretary was 'legally incapable of making a decision to suspend under s 24(1)'. He claimed the Medical Review team had not received a report from a medical practitioner and so the power under s 24(1) had not been enlivened. He submitted that the decision was made on a fabricated basis to frustrate an appeal to the Magistrates' Court as only decisions made under s 24(2) of the Road Safety Act are appealable to the Magistrates' Court under s 26 of that Act.
6. As to the decisions made on and after 22 July 2025, Mr Myers submitted Dr Hutchinson's report lacked a 'vital part' of what is required to enliven the Secretary's powers under s 24(1) of the Road Safety Act, being the provision of a recommendation as to his fitness to drive. Mr Myers submitted that, as Dr Hutchinson's report on 16 July 2025 declined to make a recommendation, the Secretary's power under s 24(1) was not enlivened. Mr Myers submitted that the Secretary improperly treated Dr Hutchinson's report 'as if it was a recommendation that [he] was unfit'.[22] Therefore, the decisions made by the Secretary on 22 and 24 July 2025 and 21 August 2025 were unlawful.
7. Mr Myers also contended that the Secretary imposed additional, 'demanding' criteria on the content of the medical report including:

(a) a requirement he provide an endocrinologist report addressing his health and circumstances at the time of the incident, and his fitness to drive;[23]

(b) a requirement referred to in the letter the Medical review team sent on 24 July 2025 that he not have suffered further hypoglycaemic events. He submitted hypoglycaemic events are common and 'natural' for type 1 diabetics like himself and that a mild occurrence would have only a small impact on a person,[24] and that such a requirement would prevent him from engaging in many non-driving related activities; and

(c) a requirement that his diabetes be 'well controlled', which he submitted was an 'absurd' requirement because there is 'no medical research' that reveals a person's average blood sugar 'being a little too high can cause any impairment to driving'.

The only thing that really needs to be assessed, is for fitness to drive. If having an extremely high [average blood sugar] caused an impairment to being able to drive safely, then this would be assessed under the context of fitness to drive and found to be unfit. The Secretary is wrong to want things related to general health to be assessed and should just focus on 'assessing fitness to drive' instead, just like the guidelines provide for.

1. Mr Myers also sought an acknowledgement from this Court that an appeal of the Secretary's decisions under s 26 of the Road Safety Act is heard in the Magistrates' Court's civil jurisdiction. He said that hearing an appeal under s 26 in the criminal division of the Magistrates Court of Victoria was contrary to the requirement of a charge sheet to commence a matter in that division.[25]
2. In response to the Secretary's application for summary judgment, Mr Myers submitted, in his written submissions filed on 26 January 2026, that:

(a) the Secretary fails to disclose why Mr Myers first claim has no prospect of success;

(b) the Secretary's submission that Mr Myers has already been granted the relief he seeks ignores that Mr Myers does not merely seek an order quashing the decision but also orders acknowledging the Secretary's misapprehension of the relevant legislative guidelines and orders prohibiting them from further suspending Mr Myers' licence;

(c) as to the Secretary's submission that this Court does not have the jurisdiction to make the orders in nature of prohibition which Mr Myers seeks, those issues 'relate directly to breaches of the s 27(3) [of the Road Safety Act] committed by the [Secretary], as opposed to matters relating to merits of administrative actions, the Court clearly does have power to make [orders in the nature of prohibition] within its review jurisdiction'; and

(d) the Secretary's claim that the acknowledgement that Mr Myers seeks that the Magistrates' Court's jurisdiction to hear an application under the Road Safety Act is beyond the power of this Court misconstrues the remedy which Mr Myers seeks which is not an order but a mere acknowledgement.

1. Mr Myers commenced this proceeding on 16 August 2025. Rule 56.02(1) of the Rules requires an application for judicial review to be made within 60 days after the date when grounds for the grant of the relief or remedy sought first arose. To the extent that Mr Myers seeks relief in relation to the Medical Review team's decision of 23 May 2025, he thus requires an extension of time. Rule 56.02(3) states the Court shall not extend the time fixed by r 56.02(1) except in 'special circumstances'. '[S]pecial circumstances' is a deliberately flexible phrase. The existence of such circumstances is to be determined by reference to the whole of the circumstances of a particular case.[26] This aspect of Mr Myers' case was not the subject of submissions by either party at the hearing but I note that the delay in commencing the proceeding in relation to the decision made on 23 May 2025 was relatively short and that decision can be viewed as part of a series of decisions all related to the same subject matter. While I make no decision regarding an extension of time, I note that my finding below that Mr Myers' grounds of review lack merit weighs against an extension being granted.
2. Mr Myers does not dispute that the Secretary has the power, under ss 24(2) and 24(1) of the Road Safety Act to suspend, cancel or vary the conditions of a driver licence to ensure safety on the State's roads. That power, however, is not unlimited and must be exercised in accordance with all the provisions of the Road Safety Act and the Regulations. Mr Myers identifies five 'breaches' of the Road Safety Act and Regulations by the Secretary that lie at the heart of his grounds of review. In my view none of these breaches or Mr Myers' grounds of review have any real prospect of success.
3. The first breach was that the decision on 23 May 2025 of the Medical Review team to suspend his licence was not based on credible evidence or a report by a registered medical practitioner that Mr Myers may be unfit to drive.
4. Mr Myers was informed in the letter dated 23 May 2023 that the decision to suspend his licence was made under reg 80(3) of the Regulations and s 24(2) of the Road Safety Act. The terms of reg 80(3) empower the Secretary to suspend a person's driver licence until the person has undergone a test of fitness or competence 'or any other appropriate test or assessment' if the Secretary receives information which discloses or suggests that a person is unfit to drive or that it may be dangerous to allow that person to drive and the 'Secretary is satisfied on reasonable grounds that the information is reliable'. The information relied upon by the Secretary was the police report of the traffic accident in which Mr Myers had collided with the car in front of him. The requirement that the information be credible does not include that the information be in a form admissible as evidence in court. Nor is there any requirement on the Secretary to seek the views of the holder of the driver licence in assessing whether the information is credible. Such a requirement would be contrary to the purpose of the Road Safety Act and its Regulations to ensure safety on the State's roads because it would likely delay a decision to suspend a licence until the person's fitness to drive could be assessed.
5. While Mr Myers may dispute the information provided by the police officer's report, that does not mean the Secretary could not find that information credible for the purpose of reg 80(3). There was nothing in the information that, on its face, the Secretary was bound to find incorrect or unbelievable. Once the conditions of reg 80(3) had been met, the Secretary was empowered to exercise the powers under s 24(2) of the Road Safety Act to suspend Mr Myers' driver licence pending further medical assessment.
6. I find that Mr Myers' grounds of review identified in paragraph 53(a) and 53(b)(iii) above which are relevant to this breach have no real prospect of success.
7. Mr Myers argued that the Medical Review team's letter dated 26 June 2025 was invalid because the power to suspend his licence was not enlivened at that time because he had not provided any further medical report. The letter advised Mr Myers that, based on a review of his 'reports', his licence would remain suspended, in circumstances where he had not provided any further medical reports. The Medical Review teams letter stated that the decision to confirm the suspension was made pursuant to reg 80(1) and s 24(1) of the Road Safety Act and that Mr Myers had the right to apply for an internal review within 28 days of the decision. This letter required Mr Myers to provide a medical report from his general practitioner addressing his health and circumstances at the time of the accident and his diabetic control.
8. The Medical Review team's earlier letter to Mr Myers dated 23 May 2025 required, under s 27(1) of the Road Safety Act, Mr Myers to provide a report of an endocrinologist addressing his health and circumstances at the time of the incident on 21 May 2025 and his fitness to drive by 30 May 2025 or his licence would be suspended from 31 May 2025. The additional information annexed to both the Medical Review team's letters dated 23 May 2025 and 26 June 2025 states that the Medical Review team will suspend a person's driver licence if they do not provide a report when requested to do so.
9. I accept that the wording of the Medical Review team's letter dated 26 June 2025 is cumbersome and perhaps misleading in that it said Mr Myers' licence would remain suspended, 'based on a review of your report(s)' in circumstances where Mr Myers had not provided a report. However, reg 82(1) requires the Secretary to give written notice to the holder of a driver licence if the Secretary, under regs 79, 80 or 81(1) decides to suspend the licence. That notice is not required if the licence is suspended because the holder of the licence 'refuses or fails to undergo a test or assessment under section 27(1) of the [Road Safety Act] or does not pass the test or assessment'.[27] Regulation 80(3) confirms the Secretary may suspend a person's driver licence until the person has undergone a test of fitness or any other appropriate test or assessment. Regulation 80(1) provides the Secretary must suspend a person's driver licence if based on the results of a test or assessment required by the Secretary under s 27 of the Road Safety Act the Secretary believes it would be dangerous for the person to drive a motor vehicle.
10. In my view, reg 80(1) must be construed to include circumstances where the Secretary has required a person to undergo an assessment and the person has not undergone that assessment or provided a report of an assessment. This is because the purpose of the regulation and the Road Safety Act provisions relating to the suspension of licences is to ensure the Secretary, on receipt of credible information that a person may not be fit to drive, suspends driver licences pending an assessment of a person's fitness to drive. This is in keeping with the Act's purpose of providing for safe road use. It would be contrary to this purpose if reg 80(1) were construed in a manner which allowed a person of doubtful driving fitness to avoid suspension of their driver licence by simply not submitting the required medical report.
11. Even if I am wrong about the proper construction of reg 80(1), nothing can turn on the Department's decision to continue the suspension Mr Myers' licence on 26 June 2026. Even if I accept that the Department's decision was invalid in that the Department's power under reg 80(1) and s 24(1) of the Road Safety Act was not enlivened due to the non-receipt of a medical report, the suspension imposed as a result of the Secretary's decision on 23 May 2026 to suspend Mr Myers' licence would remain and the later receipt of Dr Hutchinson's report enlivened the power by the time the subsequent decision on 22 July 2026 to continue the suspension under reg 80(1) was made.
12. The report of Dr Hutchinson did not address the matters required to be addressed by the Medical Review team and made no recommendation in relation to Mr Myers' fitness to drive. Mr Myers argued that the absence of this information in Dr Hutchinson's report meant that the Secretary did not have a basis in a report of a medical practitioner to suspend his driver licence under s 24(1) and reg 80(1). This argument is misconceived. It rests on the premise that unless a medical practitioner recommends a driver is unfit to drive, the Secretary does not have a medical report on which to base the decision to suspend the driver licence. This runs against the clear intent of the legislation which allows the Secretary to suspend a driver licence on the basis of credible information that a driver may be unfit to drive or dangerous and require the driver to be assessed for their fitness to drive. Dr Hutchinson did not assess Mr Myers as either fit or unfit to drive. She explicitly refused to do so. That being the case, the Secretary had no medical report upon which the earlier credible information suggesting Mr Myers was unfit to drive could be displaced. This aspect of Mr Myers' argument has no merit.
13. The second breach was that the Secretary did not comply with s 27(3) when they required Mr Myers to be assessed by an endocrinologist rather than his treating doctor. Mr Myers was required to be assessed because the Secretary had received credible information that Mr Myers had been involved in a car collision and told the ambulance officer who attended the scene that his blood sugar level may have been low at the time of the accident. A test of Mr Myers' blood sugar levels revealed that his levels were low, 3.6 mmol/L, following the accident.
14. Chapter 3 of the AFD Guidelines notes that the main driving hazard in people with insulin-treated diabetes is 'the unexpected occurrence of hypoglycaemia'. The Guideline says that there is a 'small but appreciable increase in motor vehicle crash risk for drivers with diabetes' with the potential effects of hypoglycaemia being of most concern to road safety. The risk is higher among people with a history of severe hypoglycaemia which the Guidelines define as:

[A]n event of hypoglycaemia of sufficient severity such that the person is unable to treat the hypoglycaemia themselves and so requires someone else to administer treatment. It includes hypoglycaemia causing loss of consciousness or seizure... A severe hypoglycaemic event is particularly relevant to driving because it affects brain function and may cause impairment of perception, motor skills or consciousness.

1. Under the heading 'General assessment and management guidelines', the Guidelines note that for the purpose of the diabetes standard, appropriate specialist means an endocrinologist or consultant physician specialising in diabetes.
2. The Guidelines state that drivers should be advised to take appropriate precautionary steps to help avoid a severe hypoglycaemic event, for example, not driving if their blood glucose level is at or less than 5 mmol/L and treating mild hypoglycaemia if symptoms occur when driving by pulling over, turning off the engine, self-treating the low blood glucose and not recommencing driving until feeling well and the elapse of at least 30 minutes after the blood glucose level is above 5 mmol/L. After a severe hypoglycaemic event, the Guidelines say the person should not drive for a 'significant period of time', normally six weeks, and not until a specialist recommends the person return to driving based on the person's behaviour and objective measures of glycaemic control over a reasonable interval.
3. The Guidelines provide that the Secretary may consider issuing a conditional licence to a person with insulin-treated diabetes if certain criteria are met. The criteria are to be assessed taking into consideration the nature of the driving task and information provided by the treating doctor about whether the criteria are met. The criteria are that:

(a) there is no recent history of a severe hypoglycaemic event;

(b) that the person is following a treatment regimen that minimises the risk of hypoglycaemia;

(c) the person experiences awareness of early warning symptoms of hypoglycaemia; and

(d) there are no end-organ effects that may affect driving.

Where those criteria are not met, a conditional licence may be considered taking into account the opinion of an endocrinologist or consultant physician specialising in diabetes.

1. The evidence provided by Mr Myers of previous correspondence over many years shows that, at the time of the accident, Mr Myers had a conditional driver licence the validity of which was subject to regular assessment by an endocrinologist. It was apparent from the correspondence exhibited to Mr Myers' affidavit filed 26 January 2026 that Mr Myers' licence has been subject to regular review by an endocrinologist of his fitness to drive for over a decade and that the Medical Review team has received a significant number of medical reports about Mr Myers as a result.[28] It is also clear from the exhibited correspondence that medical reports received by the Medical Review team about Mr Myers have not supported his fitness to drive at various times.
2. At the time the Medical Review team referred Mr Myers for assessment by an endocrinologist, it had the police report of the collision and the record of Mr Myers' hospital treatment. Those records showed that Mr Myers reported to the ambulance officer that at the time of the accident his reactions may have been impaired because his blood sugar level may have been low. They also showed that when Mr Myers' blood sugar level was checked at the hospital it was measured at 3.6 mmol/L. Additionally, Mr Myers told the ambulance officer that he 'has been unable to check his BSL due to non functioning sensor...'.
3. The Guidelines make clear that, where certain criteria are not met, a conditional licence may be considered, subject to regular review, taking into account the opinion of an endocrinologist. The criteria includes, among other things that there have been no recent history of a severe hypoglycaemic events and the person is following a treatment regimen that minimises the risk of hypoglycaemia. In my view, based on Mr Myers' history with the Medical Review team and the credible information the Secretary had obtained about the circumstances of the accident, including Mr Myers' statement that low blood sugar could have contributed and that his sensor was not functioning, the Medical Review team were well able to decide that Mr Myers did not meet the criteria for a conditional licence and that a report from an endocrinologist was required. In light of Mr Myers' history and the known circumstances of the accident, it would have been illogical for the Medical Review team not to require an endocrinologist's opinion of Mr Myers' fitness to drive.
4. It follows that I am satisfied that Mr Myers' ground of review identified in paragraph 53(b)(ii) which related to this second breach has no real prospect of success.
5. The third breach was that the Secretary imposed criteria to be addressed by the endocrinologist that were beyond those required under the AFD Guidelines. Specifically, the endocrinologist was required to address the circumstances at the time of the incident in its medical report. Mr Myers described this additional criteria as absurd because no doctor would ever be in such a position to comment on the circumstances of the incident unless they were present and witnessed the incident.
6. The issue with this aspect of Mr Myers' argument is that s 27(2)(c) of the Road Safety Act permits the Secretary to require a person to undergo 'any other test or assessment the Secretary considers necessary and appropriate in the circumstances'. Accordingly, the Secretary has a very wide discretion, subject only to the Secretary considering it necessary and appropriate, in the type of test or assessment they require the person to undergo. The absence of a reference to s 27(2)(c) in the Guidelines did not curtail the Secretary's power to order the scope of the assessment they required Mr Myers to undertake.
7. It follows that I am satisfied that Mr Myers' ground of review identified in paragraph 53(d)(ii) which related to this third breach has no real prospect of success.
8. The fourth breach was that the Secretary's letter of 23 May 2025 required Mr Myers to provide the endocrinologist's report within seven days, failing which his licence would be suspended, while reg 82(5) requires that the date specified in the notice as the date on which the decision takes effect must be at least 28 days after the date of the notice.
9. The 28 day timeframe required by reg 82(5) refers to notices issued under regs 82(1) or (3). While reg 82(1) requires the Secretary to provide a written notice to the holder of a driver licence if the Secretary decides to suspend the licence under reg 80, that requirement is subject to reg 82(2). Regulation 82(2)(d) provides that the Secretary is not required to give written notice if the Secretary suspends the licence under s 24(2) of the Road Safety Act. Given that the power of the Secretary to suspend Mr Myers' licence when they made their decision on 23 May 2025 arose under s 24(2) of the Road Safety Act, the Secretary was not required to provide a written notice to Mr Myers and so the Secretary was not required to give Mr Myers the 28 days' notice required by reg 82(5). It follows that Mr Myers ground of review related to this alleged breach, being that identified at paragraph 53(b)(i), has no real prospect of success.
10. The fifth breach was that the Secretary's decision to suspend Mr Myers' licence was not based on a report by a registered medical practitioner but rather upon an 'unverified source of a non-medically trained police officer that gave their opinion... of what they thought they heard spoken by paramedics and [Mr Myers]'. Mr Myers submitted this was hearsay evidence that did not provide reasonable grounds upon which the Secretary could be satisfied in circumstances where the report of the ambulance officers, available a few hours later, showed that Mr Myers' blood sugar level was not so low as to have impacted his driving.
11. This breach appears to repeat aspects of Mr Myers' first alleged breach which I have found have no real prospect of success. It follows that Mr Myers' grounds of review based on this alleged breach also have no real prospect of success.
12. Mr Myers sought orders prohibiting the Secretary from requiring him to be assessed by a specialist and from imposing what he claims are additional criteria on his licence in the future. In my view, the orders Mr Myers sought are pre-emptive and inappropriate in an application for judicial review. In FUD18 v Minister for Home Affairs,[29] Lee and Wheelahan JJ held, in relation to the writ of prohibition sought in that case that:

The prohibition sought in this case is 'anticipatory' or 'pre-emptive' in nature as the proposed order precedes a determination by the Minister to either grant or refuse the appellant a visa. The fact that the relief sought by the appellant is pre-emptive in nature goes to the Court's discretion to grant the relief. Indeed, the authorities suggest that when an order in the nature of prohibition is sought in relation to future conduct, there must be more than a risk of procedural unfairness; there must be a strong probability that procedural unfairness will result...

(citations omitted).

1. In my view, given Mr Myers has not identified an arguable ground of review, there is no real basis upon which the Court would foreseeably exercise its discretion to grant the pre-emptive order Mr Myers seeks.
2. By the time of the hearing, Mr Myers had provided the Medical Review team with a further report from an endocrinologist recommending that he is fit to drive, subject to conditions. The Department, relying on this latest report, has lifted the suspension on Mr Myers' driver licence. While I have found that none of Mr Myers' grounds have any prospect of success, if I am wrong about that, the fact that Mr Myers' licence is no longer suspended would strongly weigh against the exercise of the Court's discretion to grant judicial review.
3. The Court will not to grant an order in the nature of certiorari 'in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent'.[30] In Transport Workers' Union of New South Wales v Australian Industrial Relations Commission,[31] Gray and North JJ commented on the appropriateness of granting a remedy in a judicial review where the primary remedy or remedies would have no practical effect:

Both mandamus and certiorari are remedies to which there is no absolute entitlement. They may be refused, in the discretion of the Court, particularly when it would be futile to grant them, because their grant would achieve nothing, or nothing of sufficient significance to warrant the grant of a remedy. They may also be refused on the ground that some other course exists which would achieve the result sought to be achieved by the remedies.

1. Having found that none of Mr Myers' grounds of review have a real prospect of success, it remains for the Court to consider whether, under s 64 of the CPA, his proceeding should nonetheless be allowed to proceed to trial. I am satisfied that it would not be in the interests of justice to allow Mr Myers' proceeding to continue. To allow the proceeding to continue would impose further costs on the Secretary in circumstances where Mr Myers has not articulated a case that has a real prospect of success. There is nothing about Mr Myers' grounds of review, which largely involve interpretation of the relevant statutory provisions and the Guidelines, that would require a full hearing on the merits. Mr Myers was well able to articulate his arguments on these matters at the hearing of the Secretary's application. The fact that Mr Myers' licence is no longer suspended also weighs against permitting this proceeding to continue to trial.
2. I have decided that because none of Mr Myers' grounds of review have any real prospect of success, the appropriate course is to grant summary judgment rather than to strike out Mr Myers' grounds, which would afford him an opportunity to reformulate them. To allow Mr Myers an opportunity to reformulate his grounds in circumstances where his licence is no longer suspended would not be in the interests of justice.
3. For completeness, I would note that it would be inappropriate for this Court, on an application for judicial review of the decisions of the Secretary, to provide the acknowledgement sought by Mr Myers about the process of appeals in the Magistrates' Court. Those processes were neither the subject of Mr Myers' application, nor the subject of proper submissions in this Court. I decline to provide the acknowledgement.

1. For the reasons given above, I am satisfied that Mr Myers' amended originating motion for judicial review has no prospects of success and that there are no grounds for the Court to nevertheless allow the matter to proceed to a full hearing on the merits under s 64 of the CPA. Accordingly, I will dismiss Mr Myers proceeding.
2. My preliminary view, subject to any submissions either party may wish to make, is that there is no reason for the Court to depart from the usual practice that the losing party pay the winning party's legal costs, and so Mr Myers should pay the Secretary's costs of the proceeding. I request the parties confer on the question of costs. If the parties are unable to reach agreement on the terms of any costs order within 7 days of the date of this judgment, the proceeding will be relisted for oral submissions on costs.

[2] I note, for completeness that, in her oral submissions, the solicitor for the Department referred to an internal review conducted on 20 August 2025 and an email from 'InternalReview' attaching a letter was sent to Mr Myers on 20 August 2025: T6 L31-T7 L5. Nothing turns on whether the internal review decision was made on 20 August or 21 August 2025.

[3] Section 1(a)-(b).

[4] Road Safety Act 1986, s 3(1).

[5] Regulation 1(a).

[6] Affidavit of Mr Myers affirmed on 16 August 2025, PDF page 11.

[7] The relevant section is s 26(1) of the Road Safety Act but nothing in this proceeding turns on this.

[8] While not explained during the hearing, I understand that in this context DNE, refers to a Diabetes Nurse Educator.

[9] Affidavit of Mr Myers affirmed on 15 September 2025, PDF pages 14 to 16.

[10] Order of Tsalamandris J in Myers v Department of Transport and Planning (Supreme Court of Victoria, S ECI 2025 04864, 25 September 2025).

[11] Affidavit of Mr Myers affirmed on 23 October 2025, 1 [2].

[12] I note this information appears to contradict information given by Mr Myers to Dr Hutchinson.

[13] Affidavit of Mr Myers affirmed on 23 October 2025, 3 [10].

[14] At the hearing of the application, Mr Myers said his understanding was that declaratory relief was not available in this proceeding so he instead sought a 'mere acknowledgement' by a judicial officer of the Magistrates' Court's jurisdiction to hear matters arising under s 26 of the Road Safety Act: T14 L8-13.

[15] [2013] VSCA 158; (2013) 42 VR 27, 40 [35].

[23] In the letter the Medical Review team sent to Mr Myers on 26 June 2025, they advised Mr Myers that a report from his General Practitioner might suffice but noted they may require him to attend further specialist appointments or practical driving tests in the future.

[26] Mann v Medical Practitioners Board of Victoria (2002) 18 VAR 458; [2002] VSC 256, [18]-[19] (Osborn J).

[27] Regulation 82(2)(e).

[29] [2021] FCAFC 132; (2021) 285 FCR 505, 531 [122] (Wigney J agreeing at 507 [4]).

[30] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 492 [25] (French CJ, Crennan, Bell, Gageler and Keane JJ).

[31] [2008] FCAFC 26; (2008) 166 FCR 108, 134 [55], quoted in Brown v Corrections Victoria [2022] VSC 217, [45] (Hetyey AsJ).