Peter Harris v Roads and Maritime Services

[2018] NSWLC 14

Local Court

New South Wales

Medium Neutral Citation:	Peter Harris v Roads & Maritime Services [2018] NSWLC 14
Hearing dates:	19 July 2018
Decision date:	09 August 2018
Jurisdiction:	Criminal
Before:	Magistrate Hiatt
Decision:	The Local Court has no jurisdiction to hear and determine an appeal in this matter.
Catchwords:	CRIMINAL LAW – Particular offences – Driving offences – Driver license disqualification in another jurisdiction – Cancellation of driver license in NSW – Operation of section 207 Road Transport Act 2013 – whether a “decision” by Authority – whether “appealable decision” - whether right of appeal to Local Court under section 267 of Road Transport Act 2013
Legislation Cited:	Local Court Act 2007 (NSW) s 45 Road Safety Act 1986 (Vic) ss 89A, 89C Road Transport Act 2013 (NSW) ss 29, 207, 266, 267 Road Transport (Driver Licensing) Regulation 2017 cll 65(1)(j), 65(7) Road Transport (General) Regulation 2013 cl 126
Cases Cited:	Roads and Traffic Authority of New South Wales v Salim [2004] NSWSC 1276 RTA v Wilson & Anor (2003) 58 NSWLR 240 Wojtulewicz v Roads & Traffic Authority (NSW) [2006] NSWSC 525
Category:	Principal judgment
Parties:	Peter Harris (Appellant) Roads & Maritime Services (Defendant)
Representation:	J Klarica for and with the appellant R Tandy for the defendant
File Number(s):	2018/00139061
Publication restriction:	Nil

Judgment

1. The appellant, Peter Harris, has lodged an appeal against a purported decision made by Roads & Maritime Services, hereafter referred to as the Authority, to cancel his NSW Driver License.

2. The matter came on for hearing of the appeal before this Court on 19 July 2018. A preliminary issue raised by the Authority related to whether the Local Court has jurisdiction to hear an appeal in the subject matter.

3. Following argument by the parties I adjourned the matter to today for determination. However, in the course of considering the issues raised, the Court formed the view that other matters in particular the interplay of s 207 of the Road Transport Act may have some bearing on the matter.

4. As the parties had not specifically addressed that section in argument the Court allowed further submissions to be made today. Following further consideration of the arguments these are my reasons for the decision I have reached on the matter.

Background

5. Mr Harris is the holder of a NSW Driver License.

6. On 31 March 2018 Mr Harris was disqualified in the State of Victoria pursuant to s.89C(3A) of the Road Safety Act 1986 (Vic) for a period of 12 months.

7. On 18 April 2018 the Authority sent to Mr Harris a letter titled “Advice of Disqualification and Cancellation of License”. The letter was directed to him at the address nominated in the Authority’s records for service of notices.

8. The opening paragraph of the letter states in the following terms:

“Roads and Maritime Services has been advised that you have been convicted and disqualified from holding a driver license. The details are listed on the reverse side of this letter”.

9. Those details were listed as:

“Exceed Prescribed Concentration of Alcohol.

Court – Victoria.

Hearing date: 31/3/18.

Disqualified until and including 27/2/19.

Interlock Disqualification period – N/A.

Interlock period – N/A”.

10. The letter provided further advice under the following headings:

“If you held a NSW Driver License…

If you held a Driver License for another State or Territory…

Further penalties for driving whilst disqualified or cancelled, including outside NSW…

Period of imprisonment may extend the disqualification period…

Mandatory Interlock orders….”.

11. It is clear from the letter that the advice provided to Mr Harris arose as a consequence of a period of disqualification imposed 31 March 2018 in the State of Victoria for a drink driving offence.

12. Relevantly under the heading “If you held a NSW driver license” the following advice was provided:

“As a consequence of the disqualification, provided you have not lodged a Notice of Appeal which is yet to be determined or been granted leave to appeal, your driver license is cancelled.

If you have not lodged a notice of appeal and you are still in possession of your driver license, you must as soon as practicable surrender your driver license at a Service NSW centre or registry. Under section 207(3) of the Road Transport Act 2013 you could be prosecuted if you fail to surrender your license. If you have lodged a notice of appeal in relation to your conviction and provided you are not prohibited from driving as a result of a suspension of your driver license, you may retain your driver license and continue to drive”.

13. There is no dispute that following receipt of this advice Mr Harris filed on 3 May 2018 an application notice in the Local Court of NSW at Penrith under section 45 of the Local Court Act 2007 (NSW). The application notice states the description as “Appeal against the decision of Roads and Maritime Services”.

Contentions of the Parties

14. There is no contention between the parties that if jurisdiction lies with the Local Court to hear and determine the appeal that the appeal has been filed within time.

15. The Authority contends that the Local Court has no jurisdiction to entertain an appeal in this matter, as there is no appealable decision made by the Authority. The Authority says that the notification sent to Mr Harris was no more than advice of a procedural nature alerting him to the status of his license, and his obligations under the NSW Road Transport Legislation having regard to cl 65(7) of the Road Transport (Driver Licensing) Regulation 2017 (NSW) and s 29 (6) of the Road Transport Act 2013 (NSW).

16. The Authority further contends that it made no decision to cancel Mr Harris’ driver license by way of an administrative decision made by a functionary within the authority. The notification sent arose as a consequence of the automatic application of the legislative provisions referred to in paragraph 16 above.

17. Mr Harris contends that the Local Court has jurisdiction to entertain an appeal in this matter because the action taken by the authority was one of cancelling the appellant’s driver license under cl 65(1)(j) of the Road Transport (Driver Licensing) Regulation 2017. As a consequence of which it became an appealable decision by virtue of cl 126(c) of the Road Transport (General) Regulation 2013, thus bringing it within a prescribed class of decisions for the purposes of s 266(1) of the Road Transport Act 2013.

18. Mr Harris contends that the provisions of s 207 of the Road Transport Act do not apply in regards the present matter. He says simply that the section is not applicable because he does not hold a driver license issued in another State or internal Territory.

19. The Authority contends that s 207 is applicable to Mr Harris because it is a disqualification to hold a driver license by Mr Harris held under a law in force in another State or internal Territory by a person who holds a driver license issued in this State and for the purposes of subsection(1) is to be treated as if it were a disqualification to hold a driver license issued in this State.

The Applicable Victorian Legislation

20. Section 89C(3A) of the Road Safety Act 1986 (Vic) provides that:

• A person who is issued with an infringement for a drink driving offence, and who holds an interstate license, is disqualified from driving if the person does not lodge an objection to the infringement notice within 28 days.

• The person is disqualified for the same period that would apply to a Victorian licence holder.

21. The periods of disqualification that apply are set out in Schedule 1 of the Act.

22. Section 89A(2) provides that:

(2) Subject to section 89B and despite Division 5 of Part 2 of the Infringements Act 2006, a traffic infringement notice that is issued in respect of a drink-driving infringement, drug-driving infringement or excessive speed infringement takes effect, 28 days after the date of the notice, as a conviction for the offence specified in the notice, unless within that time the person to whom the notice was issued:

(a) objects in accordance with this section, to the infringement notice.

The Relevant NSW Legislation

23. Part 7.8 of the Road Transport Act 2013 (NSW) provides for ‘Appeals and applications to the Local Court’. Section 266(1) defines an appealable decision for the purposes of this Part to mean any of the following decisions:

(k) (not relevant to this matter)

(l) any other decision under the road transport legislation made in relation to the person, or a vehicle of the person, that belongs to a class of decisions prescribed by the statutory rules for the purpose of the definition.

24. Section 267 of the Road Transport Act 2013 provides:

(1) A person may appeal to the Local Court under this Part against an appealable decision made in relation to the person by another person (the decision-maker) by filing a notice of appeal with the Court.

25. Clause 126 of the Road Transport (General) Regulation 2013 (NSW) provides that each of the following classes of decisions is prescribed for the purposes of paragraph (1) of the definition of appealable decisions in s 266(1) of the Act:

(c) a decision of the Authority to suspend or cancel a person’s driver license under clause 24, 30, 65 or 66 of the Road Transport (Drivers Licensing) Regulation 2017.

26. Clause 65(1)(j) of the Road Transport (Driver Licensing) Regulation 2017 provides that:

(1) The Authority may vary, suspend or cancel a person’s driver license if it appears to the Authority that:

…

(j) the person has been convicted in another jurisdiction or another country of any offence which, if the person had been licensed in that jurisdiction or country, would have enabled the driver licensing authority of that jurisdiction or country to vary, suspend or cancel the person’s license.

27. Clause 65(7) provides that the authority must suspend or cancel a person’s driver license in accordance with “an order made by a Court in Australia, or a law in force in this State”.

28. Section 29 of the Road Transport Act 2013 provides for mutual recognition between jurisdictions and driver licenses issued in those jurisdictions. In particular s 29 provides:

(1)  The Authority must, in accordance with the statutory rules, recognise:

(a)  driver licences issued by another jurisdiction, and

(b)  licence conditions that apply to those licences, other than conditions that apply only in circumstances that are unique to that other jurisdiction or that are prescribed by the statutory rules.

…

(6)  If the Authority receives information about a person from another driver licensing authority under a provision of a law of the other jurisdiction that corresponds to this section, the Authority must take the action it would have taken if the offence had been committed in this jurisdiction.

29. Whilst the parties in the course of argument did not raise s 207 of the Road Transport Act 2013, it is my opinion that the section is highly relevant to the consideration of the matter before court. Section 207 provides that:

(1)  If, as a consequence of being convicted of an offence by a court, a person is disqualified under the road transport legislation (whether or not by an order of the court) from holding a driver licence, the disqualification operates to cancel, permanently, any driver licence held by the person at the time of the person’s disqualification.

(2)  A disqualification to hold an Australian driver licence held under a law in force in another State or internal Territory by a person who holds a driver licence issued in this State is, for the purposes of subsection (1), to be treated as if it were a disqualification to hold the driver licence issued in this State.

(3)  A person who is so disqualified must:

(a)  if present at the court (being a court in this State) and in possession of the person’s driver licence—surrender the licence to the court immediately after being convicted, or

(b)  if present at the court (being a court in this State) but not in possession of the licence or if not present at the court—surrender the licence to the Authority as soon as practicable after being convicted, or

(c)  if the person is to be treated under subsection (2) as having been disqualified from holding a driver licence issued in this State—surrender the licence to the Authority as soon as practicable after being disqualified from holding the Australian driver licence referred to in that subsection.

(4)  Subject to the provisions of Division 2, a person who is disqualified from holding a driver licence cannot obtain another driver licence during the period of disqualification.

(5)  If a driver licence is surrendered to the court, the licence is to be delivered to the Authority.

(6) Any period for which a stay of execution is in force under section 63 of the Crimes (Appeal and Review) Act 2001 is not to be taken into account when calculating the length of a period of disqualification under this Division.

Resolution of Issue

30. It is clear from the material available that Mr Harris was disqualified from driving in the State of Victoria by virtue of the statutory application of the provisions of ss 89A and 89C of the Road Safety Act 1986 (Vic) following his not objecting within the statutory timeframe to the infringement notice issued in that jurisdiction.

31. That circumstance gave rise to the relevant Victorian authorities notifying the NSW Authority of the disqualification so imposed.

32. The central issue for determination is whether the notice forwarded to Mr Harris on 18 April 2018 by the NSW Authority gives rise to an appealable decision made by the Authority sufficient to enliven the Court’s jurisdiction pursuant to s 266(1) of the Road Transport Act 2013.

33. I have considered carefully the arguments as limited as they were by both parties.

34. In my view the argument advanced by the Authority in relation to the application of s 29(6) of the Road Transport Act 2013 to the present proceedings is not relevant to present considerations. Subsection 29(6) and the mandatory action to be taken by the Authority only arises when the information received by the Authority from another driver licensing Authority relates to a provision of a law of the other jurisdiction that corresponds to s 29 of the Act. Whilst s 29 gives effect to mutual recognition it is only in the context of information received relating to an offence included in the National Schedule of Demerit Points. The information received by the Authority concerning Mr Harris related to an offence of “exceed prescribed concentration of alcohol”. This is not an offence included in the National Schedule of Demerit Points (see Schedule 1 and 2 of the Road Transport (Driver Licensing) Regulation 2017).

35. Significantly the argument turns on consideration of the content of that notification to Mr Harris and whether it conveyed a determination made by the Authority to cancel his driver license. A plain reading of that document discloses that there was nothing conveyed in it that any decision had been made by a functionary of the Authority to cancel the appellant’s driver license. In my opinion the notification merely provided procedural advice to the appellant under the heading “If you held a NSW Driver License” in the following terms:

“As a consequence of the Disqualification, provided you have not lodged a Notice of Appeal which is yet to be determined or been granted leave to appeal, your driver license is cancelled”.

36. The reference to an appeal being in relation to the substantive offence which brought about the disqualification in the State of Victoria.

37. What also fortifies my opinion is that the letter contains no information in it to alert the appellant of any right of appeal to the Court, which would normally be the case where the Authority makes an administrative decision affecting the rights of an individual or a corporation.

38. Further, what is clear from the letter is reference to the provisions of s 207(3) which follows as a consequence of sub-sections (2) and (1) of the same provision and the clear inference that the Authority when notifying Mr Harris was acting under the provisions of s 207 of the Road Transport Act.

39. In RTA v Wilson & Anor (2003) 58 NSWLR 240 Meagher JA said at [13] – [14] (considering prior road transport legislation but analogous to the present matter):

“The central point is clear: Mr Wilson has no right to appeal against anything but a “decision”: that is what Regulation 6(1)(c) says. In the present case, Mr Wilson was trying to appeal against the suspension of his licence. But at no stage did any person make any “decision” to suspend the licence. By virtue of the operation of s 16(9) of the Road Transport (Driver Licensing) Act 1998, the suspension occurred automatically on the incurring of the demerit points. No functionary of the Roads and Traffic Authority made a decision about anything”.

40. As the Macquarie Dictionary opines, to “decide” something one must determine or settle a question, controversy or struggle by giving victory to one side; adjust or settle something in dispute or doubt.

41. In Roads and Traffic Authority of New South Wales v Salim [2004] NSWSC 1276 Bar J said at [8]

“In Roads and Traffic Authority of New South Wales v Wilson & Anor [2003] NSWCA 279, it was held that the period of suspension which results from the application of s 16(5) consequent upon the accumulation by a licensed driver of excessive demerit points is a function of the statute alone and does not involve any decision on the part of the plaintiff. Regulation 6 of the Road Transport (General) Regulation 1999, under which the appeal was brought, therefore had no application because it gave power to appeal to a Local Court only against a decision of the plaintiff. In my opinion there never was any power in the magistrate to deal with the period of suspension consequent upon the accumulation by the defendant of excessive demerit points”.

42. In Wojtulewicz v Roads & Traffic Authority (NSW) [2006] NSWSC 525 Hidden J confirmed the correctness of the approach adopted in the decisions of Wilson and Salim, but allowed an appeal on different grounds to the present.

43. Having considered those decisions it is my opinion that the notification by the Authority to Mr Harris was to give effect to the statutory provisions of s 207 of the Road Transport Act 2013 and clause 65(7) of the Road Transport (Driver Licensing) Regulation 2017 as it related to the circumstances of Mr Harris following notification received by the Authority from another jurisdiction. It was not a decision made by the authority which brought it within a class of appealable decisions as defined for the purposes of s 266(1) of the Act. Specifically it was not a decision, as contended by Mr Harris, made under clause 65(1)(j) of the Road Transport (Driver Licensing) Regulation 2017.

44. Further, I would reject the contention of Mr Harris that s 207 is not applicable to him and accept the submission by the Authority that s 207 does apply to Mr Harris. A plain reading of s 207(2) demonstrates that Mr Harris, as a consequence of the Victorian offence, had a disqualification imposed upon him preventing him from being able to hold an Australian driver license held under a law in force in another State or internal Territory and being the holder of a driver license issued in this State which is to be treated as if it were a disqualification to hold a driver license issued in this State.

45. Here in my opinion there is no question, no controversy, no struggle, nothing to settle, nothing in dispute. The disqualification in the State of Victoria brought about the automatic consequence of Mr Harris’ driver license being cancelled in NSW in accordance with s 207(2) of the Road Transport Act 2013. There is, therefore, nothing to appeal against.

46. As a consequence I find that there is no jurisdiction for the Local Court to hear and determine an appeal in this matter.

Magistrate Hiatt

9 August 2018

Penrith Local Court

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Decision last updated: 13 December 2018