Lochner v NSW Roads and Maritime Services

[2017] NSWSC 974

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Lochner v NSW Roads and Maritime Services [2017] NSWSC 974
Hearing dates:	18 July 2017
Date of orders:	18 July 2017
Decision date:	18 July 2017
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	(1)   Time in which to file the application for leave to appeal is extended to 21 September 2016. (2)   Leave to appeal refused. (3)   Costs in favour of the defendant on an ordinary basis.
Catchwords:	COMMON LAW – application for leave to appeal decision of the Local Court – relevant decision dismissed an appeal to the Local Court against a decision of the Roads and Maritime Service NSW to withdraw visiting driver privileges – basis upon which the application brought – question of jurisdiction to hear application – nature of magistrate’s task in the Local Court – application misconceived – no point of principal
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Local Court Act 2007 (NSW) Road Transport (Driver Licensing) Act 1998 (NSW) Road Transport (Driving Licensing) Regulation 2008 (NSW) Supreme Court Rules 1970 (NSW)
Category:	Principal judgment
Parties:	Plaintiff – Clive Rodney Lochner Defendant – Roads & Maritime Services
Representation:	Solicitors: Plaintiff – Self represented litigant in person Defendant – Mr Brett Hearnden from Hunt & Hunt lawyers
File Number(s):	2016/283165
Publication restriction:	None

EX TEMPORE Judgment

1. WILSON J: Listed before the Court today is an application for leave to appeal a decision of the Local Court, brought by the plaintiff, Clive Lochner. The decision of the Local Court against which Mr Lochner seeks leave to appeal is one made exactly a year ago, on 18 July 2016, to dismiss an appeal brought by the plaintiff against the withdrawal by Roads and Maritime Services NSW (“RMS”) of Mr Lochner’s driving privileges in this State.

2. As the holder of a driving licence issued in Victoria the plaintiff was entitled to drive in NSW pursuant to clause 99(1)(a) of the Road Transport (Driving Licensing) Regulation 2008 (NSW). That privilege, however, was one which could be withdrawn in certain circumstances, including in circumstances where the relevant authority, the RMS, formed the reasonable opinion that the visiting driver was not a fit and proper person to drive a motor vehicle in NSW: cl 99(4)(f) of the Regulation.

3. On 31 March 2016 the defendant sent the plaintiff a “Show Cause” notice advising him that consideration was being given to withdrawing his driver privileges on the basis that he was not a fit and proper person to drive. He was invited to make any submissions as to his propriety as a driver within a period of 21 days from the date of the correspondence.

4. Mr Lochner maintains that he did not receive the show cause notice, either because he had been away (as he told the Local Court on 18 July 2016) or because of a withdrawal of mail delivery services due to an unpaid post box fee, as he said at [14] of his affidavit to this Court of 16 March 2017.

5. Having not received any representations following service of the show cause notice, the RMS proceeded to determine the question of the plaintiff’s fitness as a driver, determining that he was not a fit and proper person to drive a motor vehicle in NSW. On 12 May 2016 the defendant sent a notice to the plaintiff advising him of its determination, and of the withdrawal of his visiting driver’s privilege from 1 June 2016 to 1 October 2016 pursuant to cl 99(4)(f) of the Regulation. The grounds upon which the decision was made was that [the plaintiff was] “not a fit and proper person to drive a motor vehicle in this State in view of the offences committed within a three year period as indicated in [his] traffic record”.

6. A copy of the traffic record referred to in the notice and attached to it is not in evidence in these proceedings, although other later copies of the plaintiff’s traffic record, additionally showing the withdrawal of privileges, are. The traffic record can best be described as extensive.

7. The plaintiff sought to appeal the decision of the RMS, filing an Application to the Local Court pursuant to s 45 of the Local Court Act 2007 (NSW). Although the plaintiff maintains that his appeal was heard during a mention of the matter, it is clear from the Local Court’s bench sheets, in evidence as annexure A to the affidavit of Emma Nicole Swords of 18 April 2017, that the appeal came on for hearing on 18 July 2016 and was heard that day.

8. Having given the plaintiff an opportunity to be heard about his driving history, and specifically to advance any mitigating feature as to the accrual of traffic offences, the Local Court Magistrate dismissed the plaintiff’s appeal. It is that decision which is in issue before this Court.

A Preliminary Question of Jurisdiction

9. There is a preliminary jurisdictional question that needs to be considered. The plaintiff filed a Summons Seeking Leave to Appeal to this Court. In the summons a number of grounds were set out. Grounds 1 – 3 all raise questions of fact or, at best, questions of mixed fact and law. Ground 4 claims there was a denial of procedural fairness in the Local Court proceedings.

10. In his submissions in support of the summons the plaintiff refers to the basis of these proceedings as ss 39 – 41 of the Local Court Act.

11. These sections fall within Division 4 of Part 3 of the Local Court Act, with Part 3 governing the Local Court’s Civil Jurisdiction.

Division 4 Appeals from the Local Court

38 Judgments and orders final

Subject to this Division, all judgments and orders of the Court exercising jurisdiction under this Part are final and conclusive.

39 Appeals as of right

(1)   A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

(2)   A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.

40 Appeals requiring leave

(1)   A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.

(2)   A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court:

(a)   an interlocutory judgment or order,

(b)   a judgment or order made with the consent of the parties,

(c)   an order as to costs.

41 Determination of appeals

(1) The Supreme Court may determine an appeal made under section 39 (1) or 40:

(a)   by varying the terms of the judgment or order, or

(b)   by setting aside the judgment or order, or

(c)   by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions, or

(d)   by dismissing the appeal.

(2) The District Court may determine an appeal made under section 39 (2):

(a)   by varying the terms of the judgment or order, or

(b)   by setting aside the judgment or order, or

(c)   by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the District Court’s directions, or

(d)   by dismissing the appeal.

12. The proceedings before the Local Court were not, however, commenced within the Civil Jurisdiction of that Court. They arose from an application notice pursuant to s 45 of the Local Court Act 2007, with such proceedings falling within the Local Court’s Special Jurisdiction.

13. As ss 39 – 41 relate to the Local Court’s Civil Jurisdiction, it would appear that those provisions have no application and do not provide a basis for an appeal to this Court.

14. The defendant asserts that the power of this Court to review the decision of the Local Court derives from s 70(1)(c) of the Local Court Act which provides for an appeal to the Supreme Court against an order of the Local Court arising from an application notice. Section 45 appears in Division 2 of Part 4 of the Act, with s 70 governing appeals from matters arising from an application notice. Part 4 of the Local Court Act as I have observed deals with the Local Court’s Special Jurisdiction.

15. Section 70 is (relevantly) in these terms:

70 Appeals

(1)   In relation to any order arising from an application notice:

(a)   […], and

(b)   […], and

(c) an appeal to the Supreme Court may be made in accordance with Part 5 of the Crimes (Appeal and Review) Act 2001,

in the same way as such an application or appeal may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.

16. Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) as it applies to an application or appeal in relation to a conviction arising from a Court attendance notice is in these terms:

Part 5 Appeals from Local Court to Supreme Court

Division 1 Appeals by defendants

Subdivision 1 Making of appeals

52 Appeals as of right

(1)   Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone.

(2)   An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.

53 Appeals requiring leave

(1)   Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves:

(a)   a question of fact, or

(b)   a question of mixed law and fact,

but only by leave of the Supreme Court.

(2)   Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

(3)   […]

17. An appeal as of right can only be brought upon a ground advancing a question of law alone: s 52. Where the appeal concerns a question of fact or a question of mixed law and fact, the leave of this Court is required: s 53.

18. Having considered the jurisdictional question, I have concluded that the only power the Court has to review the decision of the Local Court is pursuant to s 70 of the Local Court Act, and ss 52 and 53 of the Crimes (Appeal and Review) Act. Whether s 52 or s 53 is the relevant provision depends upon the nature of the grounds.

19. There is a further issue in that time limits apply to proceedings brought pursuant to Part 5. The Supreme Court Rules 1970 (NSW) provide for a period of 28 days after the material date for an appeal to be filed. The material date is 18 July 2016; 28 days thereafter being 15 August 2016. The present proceedings were instituted on 21 September 2016. Leave to extend the time in which to bring the proceedings is thus required.

20. The plaintiff explains the delay in initiating the proceedings to his need to “research and properly understand the logistics of filing and preparing [the] case” ([45] of the affidavit of 16 March 2017, Ex CL) and to his impecuniosity, and the resultant need for time to gather funds to pay the Court’s filing fee.

The Evidence before the Local Court

21. Before the magistrate was a copy of the plaintiff’s traffic record, together with photographs and other data relevant to a number of specific offences committed from 20 February 2013 to 4 February 2016. Copies of the show cause notice and the notice of withdrawal of driving privileges were also before the Court.

22. The traffic record shows that the plaintiff was first licenced to drive a motor vehicle in NSW in 1974. His first traffic offence occurred in 1980 and thereafter, the plaintiff was regularly dealt with for traffic offences. His first demerit point licence cancellation was in 1983, with another such cancellation in 1986. In 1988 there was a cancellation of an unrestricted licence issued due to fine default. The plaintiff also faced periods of disqualification from driving, for offences such as Drive Speed Dangerous (in 1989). The entries in the traffic record continue on through the years, for offences such as negligent driving, drive after licence cancelled, not make turn with safety, number plates calculated to deceive, drive with unrestrained passenger, use mobile device as driver, drive in a bus lane, and (frequently) speeding.

23. It is not clear from the record when the plaintiff secured a Victorian licence, although it may have been as early as 1986 or 1988. Whenever it may have been, the plaintiff has relied upon an interstate licence for some years, and drove in NSW as a visitor. In 2011 the plaintiff’s visiting driver privileges were withdrawn by the RMS, for a three month period until January 2012.

24. The traffic offences continued and, more recently, there were four offences in 2013, four offences in 2014, one offence in 2015 and another in 2016.

The Application for Leave to Appeal

25. The grounds are as follows:

“Ground 1: In making his determination to suspend the applicants’ [sic] driver privileges his Honour Magistrate Pierce erred in his finding that the applicant had accrued over 13 demerit points. This finding was made without consideration of the fact that the appellant had already been penalised for three of the 13 demerit points in question in a previous licence suspension in Victoria in 2014. The applicant provided the Court with paperwork to verify suspension and offences it related to and ignored the documented fact that the applicants [sic] Victorian licence currently had only 10 points against it.

Ground 2: With regards to the above fact, his Honour Magistrate Pierce of the Local Court erred in making the determination to suspend the appellants’ [sic] driver privileges as the 12-15 demerit point requirement for licence suspension had not been satisfied under Section 18 of the Road Transport (Driver Licensing) Act 1999

Ground 3: His Honour, Magistrate Pierce erred in his determination of suspending the appellants’ [sic] driver licence as he effectively penalised the applicant twice for the same offence under national schedule of demerit point offences under Road Transport (Driver Licensing) Amendment (Demerit Point Offences) Regulation 2010 under the Road Transport (Driver Licensing) Act 1998.

Ground 4: The application also requests a review of the decision on the basis of procedural fairness. The applicant notes that the matter was listed for mention on the material date and Magistrate Pierce made a determination on that day, despite the applicant stating he wished to appeal against the RMS decision.”

26. Grounds 1 – 3 largely relate to a question of fact concerning the accrual of demerit points against the plaintiff’s licence. At best, they can be regarded as questions of mixed fact and law, requiring leave to advance them. Ground 4 asserts a denial of procedural fairness which may be a question of law, but in this instance is dependent upon a question of fact, relating to the nature of the listing on 18 July 2016. This ground too requires leave.

27. Ground 4 is quickly dealt with as the Local Court Bench sheets are in evidence. Although the plaintiff contends that the matter was listed in the Local Court for mention only on 18 July 2016, and thus he was denied procedural fairness in being forced to hearing of the matter, it is clear that the listing was for hearing on 18 July 2016. As is clear from the transcript of proceedings, also in evidence, there was no application for an adjournment of the hearing. There could be no denial of procedural fairness in the magistrate proceeding to hear a matter set down for that purpose, and where no application for an adjournment was made.

28. This ground rests upon the plaintiff’s mistake of fact and is incapable of being made good. I would not grant leave to advance it.

29. The remaining grounds are also, to an extent, dependent upon a misunderstanding by the plaintiff of the nature of the proceedings in the Local Court, and are misconceived.

30. The plaintiff’s principal complaint is that he had not accrued sufficient demerit points to warrant his suspension in NSW, but that is not the basis upon which the initial decision of the RMS to withdraw driving privileges was made, and neither was it the basis upon which the magistrate dismissed the appeal.

31. The decision made by the magistrate was not one which involved the suspension of a driver because of the accumulation of a particular number of demerit points. The question for the magistrate was whether the opinion of the RMS that the plaintiff was not a fit and proper person to drive a motor vehicle in NSW was reasonable.

32. The magistrate was entitled to consider the accrual of demerit points by the plaintiff, but he was not confined to that issue. Neither was he prevented from considering particular evidence, that being the evidence of the commission of traffic offences which had already been taken into account by another traffic authority when determining to suspend the plaintiff’s Victorian licence.

33. It is clear that the magistrate had regard to the plaintiff’s traffic history which, as the magistrate noted, showed a “continuous stream” of traffic offences (T4:18 of Annexure B to the affidavit of Ms McKelvey, Ex. PM). In dismissing the appeal, the magistrate concluded that the plaintiff’s “very long record” (T5:05, ibid) and history of repeatedly offending against the traffic laws supported the conclusion that he was not a fit and proper person to drive in NSW.

34. His Honour’s reasons were very brief, and given in the context of explaining to the unrepresented plaintiff why the appeal was to be dismissed, but they are clear enough.

35. Ground 1 complains that the magistrate erred in concluding that the plaintiff had accrued over 13 demerit points, but the magistrate in fact made no such finding. His conclusion was that the plaintiff had a lengthy traffic history for a variety of traffic offences (that being relevant to the question of fitness as a driver). This ground cannot be made out.

36. Ground 2 refers to s 18 of the Road Transport (Driver Licensing) Act 1999 [sic – 1998] but that Act was not in force at the relevant time. Setting aside the statutory reference, the ground complains that the magistrate was in error in concluding that the plaintiff had accrued the requisite number of demerit points to require suspension from driving. That consideration, however, formed no part of the magistrate’s determination. He did not refer to the number of demerit points recorded against the defendant; he referred to the plaintiff’s lengthy traffic record, which demonstrated the commission of a variety of traffic offences by him on a regular basis. It was because of the frequency and regularity of the plaintiff’s traffic offending, and the inherent dangerousness of some of the offences, that the magistrate determined to dismiss the appeal, and not because of any specific number of demerit points that he concluded had been incurred.

37. This ground cannot be made out.

38. Ground 3 refers to error in doubly penalising the plaintiff. It is contended by the plaintiff that, in having regard to the offences already relied upon in Victoria to suspend the plaintiff’s driving licence, the magistrate erred.

39. The magistrate clearly did take into account those offences which had led to the Victorian suspension, being offences of November 2013, and January and March 2014, but there was no error in so doing. The question of whether or not punishment had already been imposed in another jurisdiction was irrelevant to the task of the magistrate, who had only to consider whether the plaintiff was a fit and proper person to drive on NSW roads, and whether the opinion of the RMS that he was not such a person was reasonable. As the magistrate observed in the course of an exchange with the plaintiff, who raised the purported unfairness of “double dipping” in penalising him twice,

New South Wales is entitled to say that the Victorians should have done more and they may wish to prevent you driving based on the record, however many matters you’ve had (T2:07, ibid).

40. In discharging the court’s task his Honour had regard to the extensive list of traffic offences the plaintiff had incurred (including those material to the Victorian suspension), the regularity with which the plaintiff offended against the traffic laws, and the apparent dangerousness of some of the offences in particular, such as speeding in a school zone. It was open to him to consider all of those matters, including the offences relevant to the Victorian suspension and the action taken against the plaintiff in that state. These not being criminal proceedings, no consideration of double jeopardy arose, and there was no error in the approach by the magistrate to the task before the court.

41. This ground has not been made good.

The Question of Leave

42. In view of the plaintiff’s impecuniosity I would extend the time in which to commence these proceedings to 21 September 2016. However, I would not grant leave to the plaintiff to advance the appeal. The proceedings are based upon the plaintiff’s misunderstanding of the nature of the task undertaken in the Local Court, and his mistake as to the nature of the listing. The appeal is without merit. Further, the period of suspension has now expired, and there is no identifiable utility in pursuing the appeal.

orders

1. Time in which to file the application for leave to appeal is extended to 21 September 2016.

2. Leave to appeal refused.

3. Costs in favour of the defendant on an ordinary basis.

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Amendments

24 July 2017 - [13] "license" amended to "licence"

Decision last updated: 24 July 2017