Registrar of Motor Vehicles v. Dainer, J.J. & Anor [1985] FCA 10

ORDER JUDGE MAKING ORDER 3 Neaves J. DATE OF GRDER : 1 February 1985

AUSTRALIAN CAPITAL TERRITORY No. ACT G 31 of 1984 DISTRICT REGISTRY

BETWEEN : REGISTRAR OF MOTOR VEHICLES Applicant AND: JOHN JOSEPH DAINER

This application, made pursuant to section 5 of the

Administrative Decisions (Judicial Keview) Act 1977, seeks

an order of review in respect of a decision made by John Joseph Dainer ("the Magistrate") sitting as the Court of Petty Sessions at Canberra in the Australian Capital Territory setting aside a decision of the Registrar of Motor

Vehicles ("the Registrar") refusing to renew the registration

under the Motor Traffic Ordinance 1936 ("the Ordinance") of the Australian Capital Territory of a motor vehicle owned by

Kevin Patrick Mann and directing the Registrar to renew the

In the absence of any provision in the Ordinance providing that the Registrar be a corporation sole or that he may bring proceedings in his official name, the proceedings should have been brought in his personal name.

The facts giving rise to the application may be shortly stated. On 1 July 1981 Mr Mann arranged for the side windows of his motor vehicle. a Renault sedan, to be fitted with Madico 100-200 bronze-grey type tinting film by Just-Rite Insulations Pty. Limited. That company had previously been informed by letter dated 4 February 1981 from the Controller of Technical Standards at the Motor Vehicle Registry that motor vehicles fitted with WNLW-100-20 film were acceptable for registration in the Australian Capital Territory when the film was fitted in accordance

with an approval given on10 November 1980. It is not

disputed that the film fitted to Mr Mann's vehicle was

identical with, or equivalent to, the type of film referred to in that letter. It is also not disputed that the film was fitted to Mr Mann's vehicle in accordance with the

After the vehicle was fitted with the tinted film, the vehicle was submitted to the Motor Vehicle Registry on 2

September 1981 for inspection for registration. The vehicle

Standards at the Motor Vehicle Registry wrote to Just-Rite

"New requirements for the fitting of Solar Control Film to Motor Vehicle glazing apply

It is necessary that we now revoke your previous approval to fit Solar Control Film to Motor Vehicle glazing.

The new requirement to fit this film will be in line with the N.S.W. requirements.

approval Number starting with 82 will be evidence that the film complies with this new

Requirement. Should you want written approval to fit this film please contact this

Department with proof that your film complies with the attached requirements.

Control film in accordance with your previous authorisation will be continued.

The owner however may have to prove that the film was fitted before lst of August 1982.

approved Solar Control Film is fitted to A.C.T. reqistered vehicles."

The Registrar does not dispute that that letter should be read as conveying not only that no steps would be taken to cancel a then existing registration because the tinted film which had been applied prior to 1 August 1982 did not comply with the new requirements but also that renewal of the registration of such a vehicle would not be refused on that ground. It is also to be noted that, although the letter refers to "the attached requirements",

the copy of the letter in evidence has no attachment.

On 9 September 1982 the reqistration of the vehicle

was again renewed after inspection at the Motor Vehicle

On 26 April 1983 the Motor Vehicle Registry wrote to Just-Rite Insulations Pty. Limited in the following

"T am writing in regard to tinted films fitted to motor vehicle windows.

As you are probably aware in the ACT we currently allow tinted films with a light

transmittance value of 70% on windows adjacent to the driver and 35% on windows rearward of the driver. The reflective value on all windows is limited to 10%.

You may also be aware that, as a method of identifying films, we have been accepting New South Wales Department of Motor Transport approval stickers.

It has become increasingly apparent that such a method of identification 18 open to abuse by disreputable marketters of tint films for example:

• DMT stickers have been fitted to tinted windows, where the approval number in no way relates to the film applied;

• DMT stickers have been handed out "by the handful" to anyone

• Non-existent DMT approval numbers have been printed on stickers;

• Non-approved films have been fitted without identification and the

vehicle owner left to prove that the film 1s acceptable.

As a result of the foregoing, the Department has obtained a light transmittance measuring

device which will be used as the only criterion for passing or failing tinted films.

That is to say, that if the light transmittance of windows adjacent to the driver does not measure greater than 70% and of windows rearward of the driver greater than 35%, the vehicle will be rejected.

If a window is fitted with what appears to be a fraudulent DMT sticker, the vehicle owner will be referred to the ACT Consumer Affairs Bureau and/or the Australian Federal Police.

The foregoing method of inspection for tainted films is intended to result in a more consistent application of the existing standards.

• On windows adjacent to the driver, tinted film may be fitted which results in a light transmittance value of at least 70% and a reflective value of less than 10%;

• On windows rearward of the driver, tinted film may be fitted which results in a light transmittance

value of at least 35% and a reflective value of less than 10%;

x Tinted film may not be applied to any body tinted ("factory tinted") glass;

fitted with both left and right hand external mirrors.

I trust the foreqoing is of assistance and look forward to your continued co-operation in this matter."

On 24 August 1984 Mr Mann submitted the vehicle for inspection in connection with the renewal of its registration. On that occasion the vehicle was not approved

because there was only 50 per cent transmittance of light on

each of the side front windows of the vehicle. The vehicle

was re-submitted for inspection on 21 September 1983 but the

vehicle was made under section 104 of the Ordinance to which

1t will be necessary to refer in some detail. By section 165 of the Ordinance it is provided that a person shall not drive or leave standing a motor vehicle upon a public street unless, inter alia, it is registered under the Ordinance. Sub-section 7(1) provides that the Registrar may register, and may, from time to time, renew the registration of, a motor vehicle for the purposes of the Ordinance. The Registrar 1s not to register or renew the registration of a motor vehicle unless he 1s satisfied that the motor vehicle, its parts and equipment comply with such of the requirements of Part I of the Second Schedule as are applicable to such a motor vehicle and are capable of complying with such cf the requirements of Part XII of the Ordinance as would be

applicable to such a motor vehicle if it were upon a public street (sub-section 7(2)). Part I of the Second Schedule sets out a number of requirements expressed objectively with

which a motor vehicle must comply. Part XII deals with equipment and loads, the requirements in the main aiso being expressed objectively. None of the provisions contained in Part I of the Second Schedule or in Part XII of the

Ordinance are of direct relevance to the issue that arises

Further requirements for registration are contained in Part II of the Second Schedule to the Ordinance those

requirements being prescribed by reference to the type of

vehicle, the year of manufacture and the provisions of

specified Australian design rules issued by the relevant Department of State of the Commonwealth and endorsed by the Australian Transport Advisory Council (see section 7A). Sub-section (3) of that section provides that the Registrar may refuse to register or renew the registration of a motor vehicle specified in Part II of the Second Schedule unless the motor vehicle complies with the condition or conditions set out in that schedule in relation to that motor vehicle.

Although there is a reference in the Magistrate's reasons

for decision to Australian design rules relevant to the grounds upon which renewal of the registration of Mr Mann's vehicle was refused, no design rules are in evidence before

me and I was not referred to any relevant prescription in Part II of the Second Schedule to the Ordinance. Clearly, however, any such rules would be relevant to the exercise of the discretion which section 104 confers on the Registrar and, where an appeal is taken to the Court of Petty

"(1) Subject to this Ordinance. the grant or renewal or transfer of any licence or registration shall be in the discretion of the Registrar.

(2) Without affecting the generality of the last preceding sub-section, the Registrar may -

(c) refuse to register, or cancel or suspend for such period as he thinks fit, the registration of any motor vehicle or trailer which by reason of 1ts condition, design or construction, he considers is or is likely to bea source of danger or annoyance' to the public;

Any person aggrieved by a decision of the Registrar, made on or after the

commencement of this sub-section, refusing to grant or renew a licence or registration ... may, within fourteen days after notice of the decision is served on him, appeal to the Court against the decision.

The Registrar shall be the respondent to an appeal. .

(a) affirm, set aside or vary the decision of the Registrar;

(b) make such order as to the Court seems proper; and

On the hearing of an appeal under this section from a decision of the Registrar based upon the opinion or belief of the Registrar in relation toa matter, the Court shall determine the appeal on its opinion or belief in relation to that matter.

Where an appeal is made under this section against a decision of the Registrar refusing to renew or cancelling or suspending a licence or registration, the licence or

reqistration shall, notwithstanding the Registrar's decision but subject to this Ordinance, be deemed to have continued,

and continues, in force pending the determination of the appeal."

Court of Petty Sessions established under the Court of Petty

Sessions Ordinance 1930 (see the definition of "the Court"

Pursuant to sub-section 104(6) of the Ordinance Mr Mann appealed to the Court of Petty Sessions at Canberra

from the decision of the Registrar refusing to renew the

registration of his motor vehicle. The Magistrate who constituted the Court of Petty Sessions for the purpose of hearing that "appeal", heard oral evidence from Mr Mann, from the proprietor of Just-Rite Insulations Pty. Limited and from two experts in the field of the physical laws of

light, Professor McConnell and Professor Trigg. The reasons for decision of the Magistrate refer to the evidence of the

"Both those witnesses gave evidence of an expert nature in relation to the effects of tinting the windows of motor vehicles. Both gaid that so far as the beneficial effects of tinting were concerned, there was some minor reduction in the heat which 1s. transmitted into a motor vehicle with some minor reduction in glare so far as daylight driving conditions were concerned, but both those effects were minimal and they suggested that so far as glare was concerned, the best way to handle that problem was to wear dark glasses.

But each witness, and in particular Professor Trigg, said that the danger of

driving at night-time with tinted windows was quite material. Professor Trigg gave evidence of experiments which he was aware of in relation to the reduced visibility which was caused by having the windows adjacent to the driver tinted at night-time. The difficulty seems to be in relation to the hours of dusk and darkness. There is no safety detriment so far as daylight draving is concerned. That

night-time driving conditions and dusk-time driving conditions certainly pose a risk to

the driver of a vehicle where the windows are tinted adjacent to that driver and to other road users, and I think it must be said that

that evidence was unchallenged. At least, 1t was unchallenged by Mr Swift who appeared as counsel for Mr Mann, and I accept 1t."

The Magistrate then referred to the Australian design rules which, he said, required that there be at least 70 per cent transmittance of light through the front' side windows of a motor vehicle where those windows have fitted to them tinted film. He referred to similar specifications un the United Kingdom, other parts of Europe, the United States of America and Japan and concluded that the requirement was soundly based. The Registrar was justified, he said, in taking the view that he did regarding the amount

"However, the Registrar's change of attitude seems to me to be based not s0 much on the evolution of technology which is involved in this matter, but on his concern

that some people were, ina spurious way, putting forward tinted windows for approval

which, in fact, had not been approved, and I refer to his letter of 26 April 1983 ...

Now, the Registrar said in that letter that because of those problems, henceforth he would only pass vehicles with tinted windows which complied with the McConnell tests. That is, that they had to transmit 70 per cent of light on the windows adjacent to the driver. So, it seems to me that that change of attitude was, primarily, because of the fraudulent claims being made by some people regarding tinted windows, not so much because of the evolution of technology.

Now, the Ordinance provides that whilst the court may affirm, set aside or vary the decision of the Registrar, it may also make such other order as justice requires, and whilst, as I say, I accept completely what the Registrar has done 1s proper in the circumstances insofar as vehicles which are fitted with that type of window after 1 August 1982, I do take the view that the justice of this case requires that Mr Mann have his vehicle accepted for registration because of that previous assurance given by the Registrar that vehicles which were so registered before 1 August 1982 continue to be registered. That assurance was given, as I say, in an official way, and I believe it should be honoured, and I do not say, of course, the Registrar 1s acting in any other than a proper way in relation to this matter."

The Magistrate held that, in the circumstances of Mr Mann's case because of the assurances given, the renewal of the registration of the vehicle should not be refused because of

For the Registrar it was contended that, in placing

reliance upon the letter dated 13 July 1982 addressed by the

Motor Vehicle Registry to Just-Rite Insulations Pty. Limited, the Magistrate took into account - indeed relied upon as the sole basis for his decision - an irrelevant consideration. Attention was directed to the circumstance that the letter was not one written to Mr Mann and the further circumstance that it was written approximately one

year after Mr Mann had had the film fitted to the windows of

his vehicle. It could, therefore, not be treated as a letter giving any assurance to Mr Mann that may have misled him or upon which he may have acted to his detriment. On that basis the letter was said to be irrelevant to the

question whether the renewal of the registration of the

It was also submitted that, even 1f contrary to the fact, Mr Mann had, before having the tinted film fitted, obtained an assurance from the Registrar that renewal of the registration of the vehicle would never be refused by reason of the presence of the tinted film, such an assurance would have been of no effect as amounting to an attempt to fetter the Registrar in the proper exercise in the future of the discretion vested in him by sub-section 104(1) of the Ordinance. It was not suggested that the Magistrate had regarded such assurance (assuming it to have been given to Mr Mann) as binding him to approve the registration of the

vehicle. The point of the submission was that to take any

such assurance into account as a factor in determining whether the renewal of the registration of the vehicle should be approved and to give it any weight in the decision-making process was to take into account an

irrelevant consideration and thus to demonstrate error.

There is, I think, much force in the first, at least, of the arguments presented on behalf of the Registrar

but, before it may receive further consideration, there is a

threshold question as to the Court's jurisdiction to

entertain the Registrar's application. To this I now turn.

application being properly described as a decision to which

the Administrative Decisions (Judicial Review) Act 1977 applies. The expression "decision to which this Act

"a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion of not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1".

The provisions of Schedule 1 are of no relevance in the

There is no doubt that the decision of the Magistrate the subject of this application is a decision made under an enactment, being a decision made under section

104 of the Motor Traffic Ordinance 1936 (see paragraph (b) of the definition of "enactment" in sub-section 3(1) of the

Administrative Decisions (Judicial Review) Act 1977). What

is in issue is whether that decision is properly to be characterised as a decision "of an administrative

There 1s equally no doubt that the decision of the Registrar refusing to renew the registration of the motor vehicle in exercise of the power conferred upon him by section 104 of the Ordinance 1s properly described as a decision "of an administrative character" made under an enactment which might, subject to the discretion residing in this Court pursuant to paragraph 10(2)(b)(1i) of the Administrative Decisions (Judicial Review) Act 1977 arising by reason of the provisions for appeal to the Court of Petty Sessions, have been made the subject of an order of review under that Act. Counsel for the Registrar referred to this circumstance and to the provisions of sub-section 104(10) of

the Ordinance which, it was submitted, was designed to

ensure that the Court of Petty Sessions was charged with the task not of examining the decision of the Registrar to see whether any error of fact or law could be discovered but of

deciding, on such material as might be placed before the

Court, what was the correct or preferable decision. These considerations were relied upon to support the submission that the decision of the Court of Petty Sessions was

properly characterised as a decision of an administrative

As the source of constitutional power to support section 104 of the Ordinance is to be found in section 122 of the Constitution, the issue that arises 1n this case is quite different from that which arises when the question 1s whether the jurisdiction with which a court 1s invested by a federal law forms part of the judicial power of the Commonwealth within Chapter III of the Constitution. That issue has been the subject of much judicial consideration. However, notwithstanding that it is an issue of a different character, some of the matters which have been taken into consideration as relevant to the resolution of that issue are, I think, of relevance in considering the matter which

now falls for decision: see, for example, Steele v. Defence

Forces Retirement Benefits Board (1955) 92 C.L.R. 177: The

Farbenfabriken Bayer Aktiengesellischaft v. Bayer Pharma Pty.

Ltd. (1959) 101 C.L.R. 652: The Queen v. Quinn; Ex parte

Consolidated Food Corporation (1977) 138 C.L.R. 1: cf. Queen

Victoria Memorial Hospital v. Thornton (1953) 87 C.L.R. 144.

I have also derived assistance from the judgments in Medical

Board of Victoria v. Meyer (1937) 58 C.L.R. 62: Boulus v.

Broken Hill Theatres Pty. Ltd. (1949) 78 C.L.R. 177:

British Medical Association v. The Commonwealth 79 C.L.R.

291 and The Adelaide Fruit and Produce Exchange Co. Ltd. v.

The first matter to notice is that the function is conferred upon the Court of Petty Sessions as such: the magistrates comprising that court are not chosen as persona

Secondly, the ""appeal" to the Court of Petty Sessions 1nvolves a proceeding in which there are parties and in which the applicant is entitled to a formal hearing with the right to examine and cross-examine witnesses and to

Thirdly, the clear implication from the provisions is that the decision of the Court of Petty Sessions is to be binding on the Registrar. Although there is no express provision to that effect, the Ordinance should be construed

as imposing on the Registrar an imperative duty to register

the vehicle or renew its registration if that be the

judicial rather than an administrative function on the Court of Petty Sessions 1s supported by an examination of the history of the provision. The right of appeal to the Court of Petty Sessions against a refusal of the Registrar to

register, or renew the registration of, a motor vehicle first appeared in the Ordinance as a result of the

amendments made by the Motor Traffic Ordinance (No.3) 1971 (Ordinance No. 37 of 1971). Prior to that Ordinance coming into operation there was what was clearly an appeal of an

administrative nature to the relevant Minister of State (see

sub-section 51(6) of the Motor Traffic Ordinance 1936 as in

Fifthly, mere similarity, or even identity, of the language used in describing the function conferred on the Registrar and that conferred on the Court of Petty Sessions 1s not decisive that the function of the Court is to be

characterised, as that of the Registrar undoubtedly is, as

administrative in nature. But, in any event, the function of the Court of Petty Sessions under section 104 of the Ordinance would seem to be somewhat wider than that of the Registrar. Not only may the Court affirm. set aside or vary

the decision of the Registrar, but 1t may also "make such

order as to the Court seems proper" and "such other order as

"appeals" to the original furisdiction of a court in which

the discretion vested in the functionary from whose decision

the appeal is brought is not reviewable and is only

examinable for the purpose of deciding whether 1t has miscarried in point of law. The obvious purpose of sub-section 104(1) is to make clear that the Court of Petty Sessions in hearing the "appeal" is not limited to determining whether or not the Registrar was right, upon the

provision shows that the Court is not limited to correcting errors made by the Registrar but 1s to deal with the whole matter on the material brought before 1t and, even where the decision of the Registrar is based upon his opinion or belief, the Court is to form its own opinion or belief. But there is nothing in the provision which, in my view, is

inconsistent with the decision of the Court being a decision

of a judicial rather than of an administrative nature.

No one of the above factors 1s decisive of the question but, taken in combination, they require, in my opinion, the conclusion that the purpose of sub-section 104(6) is to transfer the question whether registration, or

renewal of registration, of a motor vehicle is to be refused

from the ordinary administrative process to a judicial tribunal to investigate as part of its judicial function.

So understood, the decision of the Court upon an "appeal"

under the sub-section is not properly described as a

The appeal is, therefore, dismissed. As neither the Magistrate nor Mr Mann took any part in the proceedings

I certify that this and the preceding 19 pages are a true copy of the Reasons