Fisher v Roads and Maritime Services New South Wales

[2018] NSWSC 139

Supreme Court

New South Wales

Medium Neutral Citation:	Fisher v Roads and Maritime Services New South Wales [2018] NSWSC 139
Hearing dates:	15 February 2018
Date of orders:	15 February 2018
Decision date:	15 February 2018
Jurisdiction:	Common Law - Administrative Law
Before:	Johnson J
Decision:	1. The Plaintiff’s Notice of Motion filed on 13 February 2018 is dismissed. 2. The Plaintiff is to pay the Defendant’s costs of the Notice of Motion.
Catchwords:	ROAD TRANSPORT - suspension of driver’s licence under demerit point system - notice of suspension posted to Plaintiff’s mailing address - Plaintiff states he did not receive notice - suspension for three months comes into effect - Plaintiff claims denial of procedural fairness - Plaintiff makes application for stay of suspension pending final hearing - only 13 days remaining of three-month suspension - claim for final relief not sufficiently arguable for grant of stay - stay refused
Legislation Cited:	Road Transport Act 2013 (NSW) Road Transport (General) Regulation 2013 Transport Operations (Road Use Management) Act 1995 (Qld) Transport Operations (Road Use Management-Driver Licensing) Regulation 2010 (Qld)
Cases Cited:	Brown v Roads and Traffic Authority [2004] NSWSC 494 Roads and Traffic Authority v Weir (2004) 60 NSWLR 304; [2004] NSWSC 154 Roads and Traffic Authority v Hillyard [2003] NSWCA 284 Roads and Traffic Authority v Wilson (2003) 58 NSWLR 240; [2003] NSWCA 279
Texts Cited:	Aronson, Groves & Weeks, “Judicial Review of Administrative Action and Government Liability” Law Book Co, 6th edition 2017
Category:	Procedural and other rulings
Parties:	Brian Stanley Fisher (Plaintiff) Roads and Maritime Services New South Wales (Defendant)
Representation:	Counsel: Mr BS Fisher (Plaintiff in person) Mr B Hearnden, Solicitor (Defendant)   Solicitors: Hunt & Hunt (Defendant)
File Number(s):	2018/15839
Publication restriction:	---

Judgment

1. JOHNSON J: By Summons filed in the Administrative Law List of the Common Law Division on 16 January 2018 the Plaintiff, Brian Stanley Fisher, sought judicial review with respect to various alleged decisions of the Defendant, Roads and Maritime Services New South Wales, with respect to the Plaintiff’s driver’s licence.

2. By Notice of Motion filed on 13 February 2018 and returnable today, the Plaintiff seeks a stay of the alleged decisions of the Defendant which have given rise to the suspension of his driver’s licence. The Notice of Motion has come before me today as Duty Judge.

3. Mr Hearnden, for the Defendant, has opposed the grant of a stay and has made submissions which effectively challenge the entire utility of the proceedings commenced by the Plaintiff by the filing of the Summons.

4. The Summons was drawn by the Plaintiff himself. He has appeared unrepresented today. The essence of the complaint which he makes is that he was denied procedural fairness in a process which saw a notice of suspension of his driver’s licence issued on 26 October 2017, to take effect on 29 November 2017 unless he had made a good behaviour election in the meantime.

5. As will be seen, the Plaintiff says that he did not actually receive the letter of 26 October 2017 and that it did not come to his attention until early December 2017 when he was informed by a police officer that his driver’s licence was suspended.

6. I note that the period of suspension relevant to this application is one of three months, commencing on 30 November 2017 and expiring on 28 February 2018. The suspension has been operating since 30 November 2017, and unless some other order is made, will continue until it expires by effluxion of time on 28 February 2018. The Plaintiff will be entitled to obtain his driver’s licence again on 1 March 2018.

7. The present application for a stay relates effectively to a period of 13 days out of a three-month suspension period.

8. Because of the urgency of the matter (given the suspension which is running) the matter has proceeded today by way of a hearing, which has taken a little time. It may be seen that the utility of the Plaintiff’s Summons itself is called into question by arguments raised by the Defendant. In effect, the resolution of the stay application would seem to have the effect of resolving any live controversy which the Plaintiff has, given that the period of suspension will in any event expire on 28 February 2018.

9. The evidence adduced at the hearing included an affidavit of the Plaintiff affirmed on 12 December 2017, in relation to which he was cross-examined shortly by Mr Hearnden. In addition, a number of documents were tendered by both the Plaintiff and the Defendant which reveal various notices which had been issued, together with the Plaintiff’s driving record and his Display Customer Address History, to which further reference will be made.

10. It is necessary to say something about the factual circumstances for the purpose of determining the present application.

11. The Plaintiff is a holder of a New South Wales driver’s and rider licence. His traffic record, which is in evidence, discloses a number of offences over the years in relation to which various action has been taken.

12. For present purposes, it should be noted that the Plaintiff’s traffic record indicates that he accumulated 14 demerit points in the period between 1 May 2015 and 19 March 2017.

13. The Plaintiff argued that a number of the matters relied upon included offences in Queensland. He contended that it was not open to allow these matters to effectively migrate to the State of New South Wales for the purpose of the decision presently under challenge. I am satisfied that a combination of s.29(3) Road Transport Act 2013 (NSW) (“Road Transport Act”) (which provides for mutual recognition of interstate offences), and s.77(1) Transport Operations (Road Use Management) Act 1995 (Qld) and Clause 75 Transport Operations (Road Use Management-Driver Licensing) Regulation 2010(Qld) operate to permit these Queensland matters to be taken into account. It has certainly not been demonstrated by the Plaintiff that there was any irregularity or error in those matters being taken into account in the way they were. Accordingly, there were matters which accumulated 14 demerit points in the period which I have mentioned.

14. Section 33(1) Road Transport Act provides that the Authority must give a notice of licence suspension to the holder of an unrestricted driver’s licence who incurs 13 or more demerit points within a three-year period. Subsection (2) permits for certain alternative action to be taken by the relevant Authority, (which I take to be the Defendant). It is clear that the circumstances referred to in s.33(2) do not apply to this case. On its face, s.33 required the Defendant to give notice of licence suspension in the circumstances which came to exist with respect to the Plaintiff.

15. On 26 October 2017, in accordance with s.33(1) Road Transport Act, the Defendant sent a notice to the Plaintiff that his New South Wales Unrestricted Class HC driver licence would be suspended for a period of three months commencing on 30 November 2017. In the notice, the Plaintiff was offered as an alternative to the suspension in accordance with s.36 Road Transport Act, the opportunity to continue driving if he agreed to be of good behaviour for a period of 12 months.

16. The notice which was sent on 26 October 2017 was addressed to the Plaintiff at “PO Box 1450 Surfers Paradise Qld 4217”. That address is the mailing address provided by the Plaintiff to the Defendant with respect to communications, certainly since May 2017 (Exhibit 3). I note that Exhibit 3 also shows a residential address of 9 Darling Avenue, Cowra NSW 2794 which was said to operate from 14 June 2016. The records of the Defendant therefore provided for a single mailing address for the period after April 2017, being the Surfers Paradise post office box, and a single residential address for that period, being the Cowra address.

17. The Plaintiff’s affidavit reveals that he was experiencing a number of difficulties and that, in the period in and after October 2017, he was largely in the Cowra district for personal reasons. The Plaintiff states that he did not learn of the licence suspension until he was so informed by a police officer on 4 December 2017. He states that, by that time, the period for taking up the good behaviour option had expired so that the suspension was already on foot.

18. The Plaintiff indicates in his affidavit that he sought to make various enquiries with an office of the Defendant, by a phone call to Justice NSW, and by attending Cowra Local Court where a Registrar refused to accept an application by him which sought to challenge in the Local Court what had happened with respect to his licence.

19. It is against that background that, on 16 January 2018, the Plaintiff commenced the present proceedings.

20. The Plaintiff submits that he has been denied procedural fairness or natural justice because the notice was sent to his Surfers Paradise post office box, that it did not come to his attention, and by the time he learned of the effect of the notice it was too late for him to take up the good behaviour licence option. He argued as well that he was deprived of an opportunity of approaching the Local Court to (in some way) seek a review or appeal from the suspension contained in the notice.

21. It is certainly the case that, if the Plaintiff made the application within time, he could have sought the good behaviour licence. However, he did not make an application within that time.

22. With respect to any application in the Local Court, I have heard submissions and I am satisfied that the rigorous statutory scheme contained in the Road Transport Act did not operate to provide a means of appeal to the Local Court with respect to a s.33 suspension notice.

23. Section 266 Road Transport Act provides for a range of appealable decisions and applications which may be brought to the Local Court. To the extent that there is the facility to approach the Local Court concerning decisions or steps which the Defendant has taken with respect to driver licencing, no such pathway was open to the Plaintiff in the circumstances of this case.

24. The rigorous nature of the scheme has been emphasised in a number of decisions. In Brown v Roads and Traffic Authority [2004] NSWSC 494, Greg James J considered aspects of the scheme in a manner which does not help the Plaintiff, in particular, at [27] and following of the judgment. In Roads and Traffic Authority v Wilson (2003) 58 NSWLR 240; [2003] NSWCA 279 (“Wilson”) at 244 [13]-[14], Meagher JA (Ipp JA and Foster AJA agreeing) emphasised that, in the circumstances of that case, there was no “decision” of the Roads and Traffic Authority which could be the subject of an appeal. In Roads and Traffic Authority v Hillyard [2003] NSWCA 284 (“Hillyard”) Meagher JA (Ipp JA and Foster AJA agreeing) noted that, although that case had been argued upon an assumption that the Magistrate had jurisdiction to entertain an appeal with respect to the particular licence notice, such an assumption was doubtful for the reasoning set out in Wilson.

25. The nature of the step taken by the Defendant here involved compliance with the mandatory requirement in s.33(1) Road Transport Act. Accordingly, I am satisfied that there was no capacity for the Plaintiff to lawfully approach the Local Court for any relief and the approach of the Registrar at the Cowra Local Court in declining to accept any application was correct.

26. The notice which was sent to the Plaintiff, as I have said, was addressed to a post office box at Surfers Paradise. That was the mailing address provided by the Plaintiff to the Defendant for the period commencing April 2017 and covering the relevant period.

27. The question of service of notices on persons under driver licencing laws is referred to in Clause 6(2) Road Transport (General) Regulation 2013. That clause states that the Authority may give or serve a notice under the driver licencing law on a person by sending the notice by post, or by some other means to the person’s last known home address or the address for service of notices, if any, recorded in the New South Wales driver licencing register. Clause 6(3) states that the date on which a person is taken to have been given or served with the notice is, if the notice is sent by mail, the fourth working day after the notice was posted.

28. Here, the Plaintiff had provided a mailing address to the Defendant. Clause 6(2) did provide that a notice could be served by sending it by post or by some other means to the person’s last known home address or the address for service of notices recorded in the register. If the Plaintiff wished multiple addresses to be utilised for the service of notices, it would have been open to him to inform the Defendant of the Surfers Paradise post office box and, as a further mailing address, his residential address of 9 Darling Avenue, Cowra or, for that matter, his email address which was utilised for the service of a notice since this litigation has been on foot.

29. However, the relevant register of the Defendant only contained the Surfers Paradise post office box address. It may have been open to the Defendant to send the notice of 26 October 2017 to the Surfers Paradise post office box and to the residential address and, if it was known, to the Plaintiff’s email address. However, there is no obligation to do all of those things. There was no obligation to send the notice to the residential address. The structure of the legislative scheme, it seems to me, is intended to place some onus on the licensed person to provide a current and relevant mailing address (or addresses) for the service of notices.

30. The only address for the relevant period provided by the Plaintiff was the Surfers Paradise post office box address. Accordingly, the notice was sent, in accordance with Clause 6(2) Road Transport (General) Regulation 2013, to the mailing address provided by the Plaintiff. It was beyond the control of the Defendant to ensure that the Plaintiff received it within the relevant time.

31. Insofar as the Plaintiff has complained that there was a denial of procedural fairness, I have given consideration (in the limited time available) to relevant principles where there is a claim of a denial of procedural fairness because of non-receipt of a notice or non-receipt of a notice in time. The relevant principles may be found in different places but they are helpfully summarised in Aronson, Groves & Weeks, “Judicial Review of Administrative Action and Government Liability” Law Book Co, 6th edition 2017 at [8.170]. It is made clear there that whether non-receipt of a notice may constitute a denial of procedural fairness will depend on all the circumstances of the case.

32. Having considered the circumstances of this case, it seems to me that the fact that the Plaintiff did not receive the notice, which was sent to his authorised mailing address, is not something that constitutes a denial of procedural fairness. Certainly, for the purpose of the stay application, in my view, that proposition is not sufficiently arguable as to warrant a stay.

33. I should note that Aronson, Groves & Weeks also comment (at [8.170)] that in this modern age, there is a lot to be said for the use of email addresses for service of documents. However, the Plaintiff did not offer the Defendant his email address as a mailing address on the Register. I do not think that there can be any legitimate criticism of the Defendant in those circumstances.

34. The Plaintiff in submissions has complained about the Queensland matters being taken into account for the purpose of this notice. I have already indicated (at [13] above) that this is, in my view, a permissible use of the mutual recognition provisions in what is, after all, a national scheme.

35. The Plaintiff has complained about his inability to go to the Local Court and has contended that he ought to have been allowed an opportunity to make application to that Court. I have already noted (at [23]-[25] above) that I do not accept that submission.

36. It has not been demonstrated that there is any legal error in the process involved here. Service could be undertaken in the way in which it was and it is the fact that it was because of the Plaintiff’s own circumstances that he did not check the mail at his given Surfers Paradise post office box as he was, for personal reasons, in Cowra. That is a regrettable state of affairs but it does not, in my view, support a finding of denial of procedural fairness.

37. The statutory scheme for demerit points and licence suspension is complex. It has been considered in the cases to which I have referred. Shaw J noted in Roads and Traffic Authority v Weir (2004) 60 NSWLR 304; [2004] NSWSC 154 at 308-309 [13]-[15], in following the decisions in Wilson and Hillyard, that there has been some controversy about the demerit point system and the system for suspension of licences. Members of the public can at times be caught in difficult circumstances because of it. Parliament has provided for a rigorous scheme in this respect. That scheme has stood and it emphasises the need for drivers to comply with the law and to understand that there will be consequences if drivers run up the necessary number of demerit points.

38. I make that observation for two reasons. Firstly, to note that the scheme sometimes can give rise to difficult circumstances for people. The Plaintiff has clearly reacted to this situation by coming to Sydney and commencing proceedings in the Supreme Court. However, and secondly, the legislation is there for a reason, as part of the scheme for compliance with the road laws and the public safety issues which lie behind those laws.

39. This is not a case where a notice was sent to a wrong address. This is a case where the notice was sent to the right address but the Plaintiff, for reasons personal to him, was not able to view the notice until the notice had effectively expired.

40. In dealing with the stay application, I have made an assessment of the strength or otherwise of the Plaintiff’s case. On a stay application, it is necessary to consider if the Plaintiff has a sufficiently arguable case and, if the balance of convenience warrants it, a stay might be granted in an appropriate case to allow that sufficiently arguable case to go forward.

41. I have reached the view that this is not a sufficiently arguable case. Indeed, I am not persuaded that there is a case at all.

42. From the point of view of the utility of the proceedings, I note, as well, that the three-month period is but 13 days away from its completion. Although those 13 days may be important to the Plaintiff, the application has been made at a time when the relevant period is close to expiry.

43. The Plaintiff has not demonstrated a foundation for the stay sought in the Notice of Motion. The Notice of Motion filed on 13 February 2018 is dismissed.

[Submissions were made on costs and future course of the proceedings]

44. I have delivered judgment dismissing the application for a stay and the Notice of Motion of the Plaintiff seeking a stay.

45. Mr Hearnden seeks an order for costs. He also submits that in the light of my judgment, bearing in mind that there are only 13 days left of the three-month suspension, that there is simply no utility in these proceedings going forward.

46. As to the second point, the Plaintiff has indicated that he wishes to press for a final hearing of his Summons. He is aware that the period of suspension will expire, I suspect, long before any hearing of the Summons came on. He submits that he wishes to press for the claim for relief at a final hearing because of the impact of the suspension on his traffic record which is in evidence at this hearing.

47. I will not force the dismissal of the Summons upon the Plaintiff. It is clear that the view I have taken of the issues on the stay application, to the extent that I have considered the merits of the proceedings, does not augur well for the outcome of any final hearing for the Plaintiff.

44. However, I will not effectively bring to an end the whole proceedings unless I am invited to take that step by the Plaintiff as well as the Defendant. It will be a matter for a Court at a later time to take such course as it considers fit depending upon the material before it, if the Plaintiff presses the claim for relief in his Summons. I have explained to him the potential costs consequences if he takes that course but it is, of course, a matter for him to consider which approach he wishes to take.

45. Returning to the question of costs, Mr Hearnden has sought the costs of the Notice of Motion. The Plaintiff has submitted that, if he ultimately succeeds on the Summons, then any order for costs which I may make would not fit with such an outcome.

46. I propose to confine my ruling on costs to the application which I have considered. It has occupied more than two hours of Court time today and has proceeded in some detail and I have delivered a reasonably lengthy judgment with respect to it.

47. I am informed from the Bar table that the Plaintiff was informed earlier this month of the approach which the Defendant would take. The written submissions of the Defendant were provided to him today.

48. The usual rule is that costs follow the event. This is an interlocutory application for a stay which I have refused. In some circumstances, the resolution of a stay application by refusal may not call for an order for costs against the unsuccessful party.

49. In all the circumstances, I am satisfied that the appropriate course is to order that the Plaintiff pay the Defendant’s costs of the Notice of Motion.

50. I order that the Plaintiff pay the Defendant’s costs of the Notice of Motion.

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Decision last updated: 21 February 2018