I dissent for the reason that the majority impose an unfair procedural burden on Evans to raise the issue that he failed to receive actual notice of the hearing at which his license was revoked.
*978The majority indulge the assumption, with which I agree, that, notwithstanding that the notice by certified mail satisfied the requirements of Government Code section 11505, subdivision (b), in an appropriate case reconsideration may be granted where the respondent fails to receive it.
Government Code section 115211 confers discretion on an administrative agency to order reconsideration “on petition of any party.” Neither the section nor any other provision of law prescribes the manner or form of such a petition. Nonetheless, the majority opinion concludes that the form of Evans’s petition was insufficient to raise the claim that reconsideration should be granted because of lack of actual notice of the disciplinary proceedings against him. “Evans merely made a bare, unsworn allegation that he had not received notice of the hearing; he provided no evidence or argument supporting his assertion, nor did he establish that the alleged lack of notice was not due to his avoidance of service or inexcusable neglect.” (Maj. opn., ante, at p. 973.)
In my view the majority unfairly rely upon hindsight, the sort of decision which Jeremy Bentham condemned as “dog law,” after the manner in which some people trained their dogs by kicking them without warning to indicate displeasure. The majority point to Code of Civil Procedure section 473.5 as the guide for the procedure that Evans should have followed. That provision, addressed to judicial proceedings, supplies a rule, which the Legislature might well be wise to enact or DMV to promulgate for application to administrative proceedings. They have not. Evans should not be faulted for failing to anticipate that he would be required to satisfy the requirements of a judicial procedure in an administrative petition for rehearing in order to perfect his claim of failure to receive actual notice.
Administrative proceedings have never been held subject to the rigorous formality of judicial proceedings. “An application for rehearing before an *979administrative tribunal ... is not to be construed with the same strictness required for instance in a motion for a new trial before a court of law.” (Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303, 320 [144 P.2d 4].) In light of this policy the majority’s borrowed formalism is unforseeable. It is also inconsistent with the statutory policy that to put in issue a defense in an administrative proceeding a respondent need only file a written notice of defense, which “need not be verified or follow any particular form.” (Gov. Code, § 11506, subd. (c).)
Administrative agencies exercise enormous power over the citizenry, which, as with Evans, often lack the benefit of legal counsel until too late in the game to do any good. I cannot countenance cutting off a potentially meritorious claim of lack of actual notice of the administrative proceeding on the ground that unrepresented citizens failed to comply with unannounced procedural requirements identified only when the case has reached the appellate courts. In my view Evans’s layman’s letter was adequate to raise his claim that he should be granted full reconsideration and a hearing on the merits of the accusation.
Faced with Evans’s claim DMV should either have granted full reconsideration, asked him to make a more formal showing, or granted provisional reconsideration to decide the merits of the claim of excusable lack of actual notice. The lattermost action could be sensibly accomplished by affording him a hearing on the merits of the accusation only if his claim of failure of actual notice was first shown to be meritorious. In failing to proceed in this manner DMV abused the discretion afforded it under Government Code section 11521 by effectively failing to entertain the potentially valid claim of excusable lack of notice.
Faced with these circumstances, the trial court did not err in considering the evidence which Evans proffered in support of his claim of excusable lack of actual notice. Code of Civil Procedure section 1094.5, subdivision (e) provides that the administrative record may be augmented “[wjhere the court finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before respondent . . . .” The Legislative policy which animates this provision applies to this case.
A court is not bound to suffer injustice for lack of an express statutory invitation to apply a salutary statutory policy. In the absence of an express statutory direction a court may exercise its common law powers to fill out the statutory scheme to avoid injustice. (See Traynor, Statutes Revolving in Common-Law Orbits (1968) 43 State Bar J. 509.) Having correctly decided *980that Evans was diligent in advancing his relevant evidence concerning excusable lack of notice, the trial court could consider that evidence and resolve the merits of the question. (See Code Civ. Proc., § 1094.5, subd. (e).)
Since the resolution by the trial court presents no abuse of discretion, I would uphold the judgment insofar as it directs DMV to afford Evans a hearing on the merits of the accusation against him.
A petition for a rehearing was denied January 27, 1994, and February 10, 1994, and respondent’s petition for review by the Supreme Court was denied March 31, 1994. Mosk, J., was of the opinion that the petition should be granted.
Section 11521 is as follows: “(a) The agency itself may order a reconsideration of all or part of the case on its own motion or on petition of any party. The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period or at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration. If additional time is needed to evaluate a petition for reconsideration filed prior to the expiration of any of the applicable periods, an agency may grant a stay of that expiration for no more than 10 days, solely for the purpose of considering the petition. If no action is taken on a petition within the time allowed for ordering reconsideration, the petition shall be deemed denied.
“(b) The case may be reconsidered by the agency itself on all the pertinent parts of the record and such additional evidence and argument as may be permitted, or may be assigned to an administrative law judge. A reconsideration assigned to an administrative, law judge shall be subject to the procedure provided in Section 11517. If oral evidence is introduced before the agency itself, no agency member may vote unless he or she heard the evidence.”