TRANSPORT NSW AND LICENCE APPEALS

In New South Wales some decisions regarding a suspension of a licence can be appealed and others cannot.

Licence Suspension Appeals (Transport NSW)

Where a person commits and then pays a penalty notice for a speeding offence over 30km/h or 45km/h, Transport NSW (the RMS) will issue a licence suspension notice. This decision to suspend a licence due to excessive speed can be appealed to the Local Court by any licence holder. The decision of the court is final and binding on the driver and on Transport NSW.

When deciding an appeal the court has the power to:

  • Allow the appeal completely (removing the suspension in full); or
  • Dismiss the appeal but reduce the period of suspension; or
  • Dismiss the appeal completely with no change to the suspension period.

There is no test prescribed under the Road Transport Act 2013 in determining the appeal but in practice the court generally considers whether the driver is a fit and proper person to hold a driver’s licence. The court also considers the circumstances of the offending, the driver’s criminal and traffic history and their need for a licence in determining the appeal.

Decisions that cannot be appealed

The following licence decisions cannot be appealed:

  • The decision by Transport NSW to suspend an unrestricted driver’s licence for accrual of demerit points;
  • The decision by Transport NSW to suspend an interlock driver’s licence; and
  • Where a driver on a good behaviour licence incurs two or more demerit points in 12 months and breaches their good behaviour licence.

P1 and P2 Provisional Licence Suspension Appeals

Where a provisional P1 licence holder incurs four or more demerit points or where a provisional P2 licence holder incurs 7 or more demerit points Transport NSW may suspend the licence. This decision in each case can be appealed to the Local Court. The decision of the court is binding on the driver and Transport NSW.

In this circumstance the court has power to:

  • Allow the appeal completely (removing the suspension in full); or
  • Dismiss the appeal but reduce the period of suspension; or
  • Dismiss the appeal completely with no change to the suspension period.

There is no test prescribed by the Road Transport Act 2013 in determining the appeal but in practice the court generally considers whether the driver is a fit and proper person to hold a drivers licence and also considers the circumstances of the offence/s, the driver’s criminal and traffic history and their need for a licence.

Licence Appeals vs Court Election

A licence appeal is a civil appeal to the Local Court that asks the court to review the decision of Transport NSW to impose a licence suspension. It does not involve the finding of liability or a criminal conviction in committing the offence. The court’s powers in relation to a licence appeal is to re-make the decision to impose a suspension, exercising only those powers that were available to the original decision-maker, Transport NSW.

A court election is an election to have the traffic offence itself decided by a court (in the criminal jurisdiction) and requires the person electing to enter a plea of guilty or not guilty to the offence. Any conviction imposed by the court following a court election is recorded as a criminal conviction on the person’s criminal history.

However, demerit points are not to be incurred against a licence in circumstances where an infringement is court-elected and the matter is dealt with by a non-conviction order.

Court elections are often utilised by people wishing to avoid a licence suspension, as a conviction will result in the individual exceeding their demerit point limit and/or breaching a good behaviour licence. Anyone wishing to elect should be cautious of making an election simply to avoid the imposition of demerit points. Non-conviction orders granted simply to avoid the operation of other legislative provisions (such as the demerit point system) is considered by the court as improper and impermissible.

Lodging your Transport NSW Appeal

Once the fine for the offence has been paid, Transport NSW will issue you with a Notice of Suspension which specifies the date on which your licence will be suspended and the last date available for an appeal to be lodged. After receiving the Notice of Suspension you have 28 days to file the appeal with the Local Court. If you do not lodge your appeal before this date the court has no jurisdiction to hear the appeal and you will have to serve the suspension period.

Appeals against Police Suspension

An immediate police licence suspension appeal is very different to an appeal against a Transport NSW decision. They are issued on the spot by NSW police only in certain circumstances.

Appealing against a police licence suspension is also more difficult as the test is higher.

Police can immediately suspend a driver’s licence if you have been charged or issued with a penalty notice for the following offences:

  • Drink driving (both PCA and DUI offences)
  • Street racing or aggravated burnout
  • Serious driving offences occasioning death or grievous bodily harm
  • Learner drivers who are driving unaccompanied
  • Learner, P1 or P2 drivers exceeding the speed limit by 30km/h or 45km/h

Immediate police suspension appeals must be filed within 28 days of the Notice of Suspension being served.

An immediate police suspension appeal is successful if the court is satisfied that there are ‘exceptional circumstances’ that warrant the granting of the appeal. The courts have interpreted exceptional to be something that is extraordinary, unusual and distinguishable from ordinary cases. Exceptional circumstances can be made up of one single factor or a combination of factors.

Courts have held that loss of employment, inconvenience and lack of access to public transport are common to almost all licence suspension appeals and are not exceptional. The law also prohibits the court from taking into account the circumstances of the offence which has resulted in the immediate suspension of the licence.

Possible outcomes for this type of appeal include:

  • The appeal is allowed and you can resume driving; or
  • The appeal is varied meaning that the court has decided to make an order it deems fit. For example, this may mean that the period of suspension may be ordered to be less than the 3 month or 6 month period specified on the Notice of Suspension; or
  • The appeal is dismissed entirely meaning you are required to serve the period of suspension specified on the Notice of Suspension.

There is no avenue of appeal if you are unhappy with the court’s decision.

If you would like to lodge or be represented for a licence suspension appeal, call Karnib & Co Lawyers at any time on 0450503696 or email us on [email protected] to arrange a free consultation. For those who are unable to attend our offices, we offer conferences by telephone, Skype, Zoom and FaceTime anywhere around the world.