Jimenez v Transport for NSW

[2022] NSWSC 539

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Jimenez v Transport for NSW [2022] NSWSC 539

Hearing dates:

26 April 2022

Date of orders:

5 May 2022

Decision date:

05 May 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) Orders (1)–(3) and (5) of the relief sought in the Summons filed 25 March 2022 are refused.

(2) The balance of the Summons is to be referred to the Registrar for programming.

(3) Costs are reserved.

Catchwords:

TRAFFIC LAW AND TRANSPORT — traffic law — licensing of drivers — appeals and applications — cancellation of licence — powers of Transport for NSW — powers of Local Court — medical examination — licence conditions — declarations and injunctions – orders

Legislation Cited:

Point to Point (Taxis and Hire Vehicles) Act 2016 (NSW)

Road Transport Act 2013 (NSW)

Road Transport (Driver Licensing) Regulation 2017 (NSW)

Road Transport (General) Regulation 2021 (NSW)

Cases Cited:

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Category:

Principal judgment

Parties:

Magdaleine Elvira Jimenez (Plaintiff)
Transport for NSW (Defendant)

Representation:

Solicitors:
Self-represented (Plaintiff)
Hunt & Hunt Lawyers (Defendant)

File Number(s):

2022/90919

JUDGMENT

Introduction

1. By summons filed 25 March 2022, Magdaleine Jimenez ("the plaintiff") seeks injunctive and declaratory relief in the Court’s Duty List. The plaintiff sought to challenge decisions made by, Transport for NSW (formerly Roads and Maritime Services) (“the defendant”), in relation to her driver’s licence.

2. The plaintiff sought orders in the nature of urgent injunctive relief (orders (1)– (4)), declaration (orders (5) and (6)), damages (order (7)), rectification (orders (8) and (9)) and final declaratory relief (orders (10) and (11)). When the matter was called, the plaintiff indicated that the relief being sought are orders (1)–(3) and (5), which are as follows:

Urgent Injunctive Relief

That the Defendant is restrained from taking any action in relation to the driver’s licence of the Plaintiff arising from any of the matters disclosed by the Plaintiff in proceedings Magdaleine Jimenez v Roads & Maritime Services case number 2018/00369883-001 (the Proceedings) without an Order of a competent Court in NSW.

That in the event that the Defendant has taken any action restrained in Order 1 hereof (whether such action was taken before, on or after such Order was made), the Defendant must immediately rectify such action to restore the Plaintiff’s driver’s licence to the condition it was in before such action was taken and the Defendant must immediately communicate such rectification to the Plaintiff in writing.

That the Defendant be restrained form [sic] relying on the report of Dr Daniel Wardman dated 9 December 2021 in making any decision about the Plaintiff.

…

Declaration

A declaration that the Defendant has breached the Orders of the Local Court of NSW in the Proceedings (the Orders) by requiring the Plaintiff to submit to a periodic medical review on the basis of her purported neurological condition. …

The Evidence

Background

3. The plaintiff has held a NSW driver’s licence since about 1980. [1] Between 1973 and 1987, she experienced about ten seizures and commenced treatment for epilepsy. She has not had a seizure since 1987. [2]

   1. Affidavit of Magdaleine Elvira Jimenez, sworn 16 March 2022 and filed 25 March 2022 (Jimenez Affidavit), at [4].

   2. Jimenez Affidavit at [5].

4. On or about 2017, the plaintiff applied for a NSW driver’s licence which authorised her to drive vehicles up to the size and mass of a medium rigid vehicle (class MR driver’s licence) and was endorsed with the Passenger Transport Licence Code, which signifies she satisfied criteria to convey passengers for a fare and provide a passenger service pursuant to the Point to Point (Taxis and Hire Vehicles) Act 2016. [3] In this application, the plaintiff notified the defendant about her historical seizures. [4]

   3. Defendant’s Written Submissions dated 22 April 2022 (Defendant’s Written Submissions) at [2].

   4. Jimenez Affidavit at [9].

5. On 10 September 2018, the defendant wrote the plaintiff requiring her to undergo a medical examination by a neurologist to determine her medical fitness to drive, pursuant to cl 60 of the Road Transport (Driver Licensing) Regulation 2017 (the “Licensing Regulation”). [5] The defendant followed up on this request on 6 November 2018. [6]

   5. Affidavit of Richard O’Neill, sworn and filed 22 April 2022 (O’Neill Affidavit), Annexure A.

   6. O’Neill Affidavit, Annexure B.

6. On 18 November 2018, the plaintiff responded to the defendant by attaching a report by Dr Dowla, dated 15 February 2016. [7] Dr Dowla’s report purportedly stated that “[a]n underlying seizure disorder cannot be diagnosed”.

   7. O’Neill Affidavit, Annexure C.

7. On 22 November 2018, the defendant wrote to the plaintiff. [8] The letter referred to Part B:6 page 89 of the publication “Assessing Fitness to Drive”, which stated:

   8. O’Neill Affidavit, Annexure D.

A person is not fit to hold an unconditional licence:

If the person has experienced a seizure.

A conditional licence may be considered by the driver licence authority subject to annual review, taking into account information provided by a specialist in epilepsy as to whether the following criteria are met:

there have been now seizures for at least 10 years; and

an EEG conducted in the last six months has shown no epileptiform activity and no other EEG conducted in the last 12 months has shown epileptiform activity; and

the person follows medical advice, including adherence to medication if prescribed or recommended” (emphasis in original; footnotes omitted)

8. The defendant noted that there was no evidence that the plaintiff had provided a satisfactory medical report from a neurologist in response to the 10 September 2018 request. Therefore, the defendant suspended the plaintiff’s driver’s licence from 13 December 2018.

First Local Court Proceedings

9. On 1 December 2018, the plaintiff made an application to the Local Court (case number 2018/00369883) to appeal the decision of the defendant to suspend her driver’s licence (“the first Local Court proceedings”). [9]

   9. Jimenez Affidavit, Annexure B.

10. On 26 February 2019, the matter was heard before Magistrate Denes who adjourned the proceedings and made the following notations:

Appeal grounds amended to review/appeal RMS discussion [sic] requiring annual medical review.

Licence no longer suspended. [10]

10. Applicant’s Written Submissions at page 4.

11. I gather from these documents that the Local Court proceedings from then on proceeded on the basis that the plaintiff was appealing against the decision of the defendant to require her to undertake an “annual medical review”, not the decision of the defendant to impose a suspension.

12. On 1 July 2019, the matter was heard before Magistrate Feather. The plaintiff submitted that:

[T]here were substantiative arguments, evidence in support, various Affidavits, and neurological reports, both current and historical. The legislative arguments were well presented, reviewed and argued before Magistrate Feather. [11]

11. Applicant’s Written Submissions at [6]

13. However, the parties before me did not provide a transcript of the proceedings or reasons for judgment from Feather LCM or any of the evidence that had been relied upon in those proceedings.

14. Magistrate Feather “allowed” the appeal. The plaintiff tendered a document titled “Advice of Court Result” dated 9 August 2021 from the Local Court, [12] which appears to show that Magistrate Feather made an order on 1 July 2019 (“the 2019 orders”) in the following terms:

Appeal allowed. The decision of Roads and Maritime Services to require the applicant as a condition of her licence to submit an annual medical review arising from her historical seizures is removed.

12. Jimenez Affidavit, Annexure C.

Correspondence in 2020

15. On 27 July 2020, the defendant wrote to the plaintiff requesting her to undertake a medical examination by a neurologist. [13]

    13. Jimenez Affidavit at [15].

16. On 6 August 2020, the plaintiff responded by attaching a copy of the 2019 orders.

17. On 7 August 2020, the defendant noted “the [Local] Court notice advising that you are not required to provide an annual medical report” and withdrew the request to provide a medical report. [14]

    14. Jimenez Affidavit, Annexure D.

Correspondence in 2021

18. On 2 August 2021, the defendant issued a “Fitness to Drive request notice” requiring her to obtain a specialist review by a neurologist by 27 September 2021. [15]

    15. Jimenez Affidavit, Annexure E.

19. On 11 August 2021, the plaintiff responded by attaching a copy of the Local Court orders and stating that she has no neurological condition. [16]

    16. Jimenez Affidavit, Annexure F.

20. On 6 September 2021, the defendant wrote to the plaintiff, [17] stating that:

Following the decision of the court to remove the annual review requirement, we reduced the review period for you to maintain your conditional commercial licence to every two years. This is not in breach of the court order, which specifically refers to the annual review requirement.

The letter extended the requirement to provide a neurologist report to 29 October 2021.

17. Jimenez Affidavit, Annexure G

21. On 1 November 2021, the defendant wrote to the plaintiff. The letter stated that, because she had not completed the assessments required to hold a driver’s licence, her licence was suspended, pursuant to cl 65(1)(a) of the Licensing Regulation from 8 November 2021. [18]

    18. Jimenez Affidavit, Annexure J.

22. There followed further correspondence between the plaintiff’s solicitor and the defendant.

23. On 2 December 2021, the defendant wrote to the plaintiff extending the time to provide a satisfactory medical report from a neurologist, on the condition that she provide a further medical report by 16 December 2021, from a General Practitioner confirming that she was fit to drive until the specialist appointment date. [19] It may be inferred that the suspension of the driver’s licence was then lifted for some period while those steps occurred.

    19. Jimenez Affidavit, Annexure N.

24. On or shortly after 9 December 2021, the defendant received a Medical Condition Notification Form from Dr Daniel Wardman. [20] The plaintiff contended that she had not authorised the release of this medical report. In cross-examination, she agreed that it was a second opinion she had sought. On the form, Dr Wardman ticks a box that reads:

In my opinion, the person subject to the report: … does not meet the relevant medical criteria for an unconditional or conditional driver licence.

20. O’Neill Affidavit, Annexure E.

25. Dr Wardman stated:

1. The plaintiff “has previously been prescribed Epilim although has NOT been taking this medication for several months despite her GP prescribing the medication”;

2. “I am concerned that she is non-compliant for a private driving licence despite not having seizures for years”;

3. “Her most recent sleep deprived EEG (22/03/21) reported bilateral frontotemporal epileptiform discharges which had a polyspike morphology and maximal on the left” and that “[t]he sleep deprived EEG (22/03/21) is consistent with epilepsy”; and

4. “She should be reviewed by the comprehensive epilepsy service at Westmead hospital as planned in regard to both private and commercial driving licences.”

26. On 17 December 2021, the plaintiff obtained a letter from Professor Steve Vucic that stated:

This is a letter to certify that Mrs Jimenez is a lady who has epilepsy and her last seizure was well over 12 months ago. In actual fact the last seizure was pre 1987. As such I am happy for her to resume driving a motor vehicle.

27. On 20 December 2021, the defendant wrote to the plaintiff [21] as follows:

In view of medical information received, it is considered that you are not, at present, medically fit to continue to drive a motor vehicle. Accordingly, there is no alternative but to cancel your driver licence under the provisions of Road Transport (Driver Licensing) Regulations 2017 Clause 65(1)(b). As a result, you will no longer be authorised to drive a motor vehicle on a road or road related area. Additionally the Passenger Transport License Code has been expired from your driver licence.

21. O’Neill Affidavit, Annexure H.

28. The letter stated that the cancellation had effect from 29 December 2021.

Second Local Court Proceedings

29. On 24 January 2022, the plaintiff appealed the decision of the defendant in the Local Court (case number 2022/00020484) seeking an order that “the decision of Transport for NSW be set aside/varied”. [22] The parties indicated that the particular decision under appeal relates to the letter dated 21 December 2021.

    22. Application to the Local Court, 24 January 2022

30. The application appears to have been listed before the Local Court on 24 February 2022.

31. On 5 March 2022, the plaintiff obtained a Medical Specialist Fitness Assessment Report for Driver Licences from Professor Vucic. [23] The report states that “[t]here have been no seizures since 1987. Has been off all medications since 2010.” Professor Vucic ticks boxes that indicates “[t]he driver (applicant) detailed in Part A…[m]eets the criteria for a conditional driver licence – I recommend future review…[y]early”.

Injunctive Relief

23. Applicant’s Written Submissions at pages 17–18.

Submissions of the Parties

32. The plaintiff sought injunctive relief that would effectively restrain the defendant from taking any action arising from the 2019 order. The relief sought would require the defendant to “rectify” any acts taken contrary to those earlier orders and also prevent the defendant from relying on the report of Dr Wardman. The thrust of the plaintiff’s oral submissions is that the 2019 orders prevented the defendant from ordering her to submit to medical reviews in relation to her driver’s licence or acting on the basis of Dr Wardman’s report. A conclusion in such terms (consistent with the declaration sought) could, it was contended, taint the subsequent steps by the defendant such that any cancellation of her driver’s licence was invalid.

33. The defendant opposed that relief and submitted that they are entitled to require medical examinations from driver’s licence holders and the cancellation decision was made pursuant to cl 65(1)(b) of the Licensing Regulation. The requirement was thereby unrelated to the determination in the first Local Court proceedings even if the Court declared there was a breach of the 2019 orders.

Consideration

34. As interlocutory injunctive relief is sought, I am mindful of the principles enunciated by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46, who stated (at [65]):

65. The relevant principles [concerning the grant of interlocutory injunctive relief] in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) 118 CLR 618]. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [at 622-623]:

The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [at 620]. With reference to the first inquiry, the Court continued [at 622]…

How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.

35. I turn, first, to the plaintiff’s case. The plaintiff submitted that she could not be required to undergo a medical examination because it was not a condition of her licence. More precisely, the plaintiff submitted that the effect of the 2019 orders was to remove annual medical examinations as a condition.

36. It should be stated at the outset, a requirement to undergo a medical examination pursuant to cl 60 of the Licensing Regulation is different to a condition of a licence. This is so even if the requirement to undergo a medical examination is imposed with some regularity (such as annually or bi-annually) and the failure to undergo a medical examination may enliven the defendant’s power to vary, suspend or cancel a person’s driver licence under cl 65(1)(a).

37. This is made plain in the regulatory scheme. A condition can be imposed either when the licence is issued or when the licence is varied pursuant to cls 57(3) and (5) of the Licensing Regulation. A condition is shown by means of a code or symbol on the driver licence: cl 9. A failure to comply with a licence is an offence: cl 119(1). If it appears to the defendant that there has been a failure to comply with a condition of a licence, it may vary, suspend or cancel the licence: cl 65(1)(k).

38. A requirement to undergo a medical examination is pursuant to a separate power in cl 60 of the Licensing Regulation. That provision provides that:

60 Tests and medical examinations of licensed drivers

(1)   Transport for NSW may by notice require the holder of a driver licence, within a time specified in the notice—

(a)    to submit to tests of the holder’s knowledge of safe driving practices and road law, or

(b)    to submit to tests or assessments of driving ability, or

(c)    to undergo a medical examination, conducted in accordance with Assessing Fitness to Drive, by a medical practitioner or allied professional practitioner, or produce evidence of compliance with the medical standards set out in that publication, to determine the holder’s medical fitness to hold a driver licence, or a licence of a particular class, or

(d)    to attend a specified medical practitioner or allied professional practitioner for the purpose of that examination.

(2)    Transport for NSW may require the holder of a driver licence to provide to it any information relevant to the holder’s medical fitness to hold a driver licence.

39. If it appears to the defendant that there has been a failure or refusal to submit to a medical examination, the defendant may vary, suspend or cancel the licence under cl 65(1)(a) of the Licensing Regulation.

40. Here, the defendant required the plaintiff to undergo a medical examination under cl 60 of the Licensing Regulation. This requirement was made independent of any condition on the licence.

41. It follows that, even if Feather LCM was able in the first Local Court proceedings to validly make orders on the appeal by the plaintiff altering the conditions of her licence and assuming that such condition was, in fact, imposed, those circumstances did not affect the power of the defendant under cl 60 of the Licensing Regulation or, as I will now discuss, the exercise of the defendant’s power under cl 65(1)(b). I also note that the power of the Local Court to extinguish or alter requirements imposed by the defendant to undergo a medical examination may be doubted.

42. After receiving Dr Wardman’s report, the defendant cancelled the plaintiff’s licence pursuant to cl 65(1)(b), which provides that:

65 Variation, suspension or cancellation of driver licence by TfNSW

(1)    Transport for NSW may vary, suspend or cancel a person’s driver licence if it appears to Transport for NSW that— …

(b)    it would be dangerous for the person to drive a motor vehicle because of illness or incapacity, or because of the effects of treatment for such conditions

43. The plaintiff relied on evidence from Professor Vucic about her medical condition while the defendant relied on the report by Dr Wardman. It is not necessary nor appropriate for me to determine in these proceedings whose evidence I prefer or the correctness of each expert’s views. The resolution of this matter will likely involve further testimony and cross-examination. It may be that the Local Court in the plaintiff’s second appeal will form a view as to which of the expert evidence it prefers.

44. However, I am satisfied from the more detailed report of Dr Wardman, on which the cancellation decision was based, that the defendant could have been satisfied of the requirement in cl 65(1)(b) of the Licensing Regulation and thereby impose a cancellation.

45. On the evidence before me, I am not satisfied that the plaintiff has demonstrated a sufficient likelihood of success to justify interlocutory injunctive relief that would have the effect of restoring her driver’s licence.

46. Even if I was satisfied that there is a prima facie case, I would not grant interlocutory injunctive relief because the balance of convenience favours the defendant. This is because there are presently Local Court proceedings to appeal against the defendant’s cancellation decision pursuant to Pt 7.8 of the Road Transport Act 2013 (NSW) (“the Act”). The cancellation decision is an “appealable decision” pursuant to s 266(1)(l) of the Act (definition of “appealable decision”) and cl 140(c) of the Road Transport (General) Regulation 2021 (NSW). The Local Court has the power to set aside or vary the defendant’s decision, dismiss the appeal or make any order that seems just: s 268(2). I understand that the Local Court is due to hear the appeal on 12 May 2022. The better approach is to allow the Local Court appeal to run its course.

47. The plaintiff sought to attack the observations of Dr Wardman and injunct the use of his report. I consider that matters of the strength, accuracy and credibility of Dr Wardman and his report are quintessentially for the Local Court in the second appeal.

48. Those same considerations warrant the exercise of the discretion to refuse injunctive relief on an interim basis.

Declaratory Relief

Submissions of the Parties

49. The plaintiff sought a declaration that the defendant has breached the 2019 orders. The plaintiff submitted that this breach was occasioned by the requirement that she submit to periodic medical reviews. In oral argument, the plaintiff made a collateral attack on the defendant’s decision to cancel her licence as follows:

1. The order of the Local Court removed a condition of annual medical reviews for the plaintiff’s neurological condition;

2. There was a breach of the Local Court’s order by the defendant’s insistence that she obtain an annual review or equivalent;

3. As a result, Dr Wardman’s report came into existence by her compliance with the defendant’s requirement, which should never have happened; and

4. As the decision to cancel her licence was based on Dr Wardman’s report, it ultimately stemmed from a breach of the Local Court’s order and was thus invalid or unlawful.

50. The defendant’s submissions were two-fold. First, the Local Court exceeded its jurisdiction by purporting to vary a condition of the plaintiff’s licence when no such condition had been imposed. Therefore, the order of the Local Court was a nullity and of no effect. Secondly and in the alternative, there was no breach because the order only prevented “annual” medical reviews and the defendant had purported to impose bi-annual reviews.

Consideration

51. There is a preliminary question that requires this Court to determine the validity of the 2019 order. There is some doubt as to whether the 2019 order is valid because it does not appear that the defendant ever imposed a condition. However, it is undesirable to resolve this question at this stage of the proceedings. The parties have not provided me with a transcript of the hearing, their submissions in the Local Court and the amended originating documents indicating the relief sought in that Court. In the absence of these documents, and in circumstances where it is strictly not necessary to determine the question, it is not appropriate to decide the validity of the order.

52. However, assuming the validity of the 2019 order, it can be observed that the order was framed in a very particular way. On its face, it purported to remove a condition. When construed this way, it is clear that the defendant’s exercise of their statutory power under cl 60 of the Licensing Regulation was not in breach of the 2019 order. As I explained above, the requirement to undergo a medical examination is distinctly separate from the imposition of a condition.

53. Furthermore, assuming a condition was imposed, the nature of a bi-annual requirement makes it different to a condition to undergo an “annual” examination.

54. If, as the plaintiff submits, the order of the Local Court had the effect of prohibiting the defendant from requiring medical examinations under cl 60 of the Licensing Regulation, then there would be real questions as to the competency of the Local Court to make such an order. As the defendant submitted, such an order would fetter the discretion conferred in cl 60 of the Licensing Regulation for the life of the licence.

55. In these circumstances, declaratory relief in the terms sought by the plaintiff should not be made.

Orders

56. For these reasons, I make the following orders:

1. Orders (1)–(3) and (5) of the relief sought in the Summons filed 25 March 2022 are refused.

2. The balance of the Summons is to be referred to the Registrar for programming.

3. Costs are reserved.

**********

Endnotes

Amendments

01 June 2022 - Spelling of plaintiff's family name corrected where required.

Decision last updated: 01 June 2022