Roads and Traffic Authority of New South Wales v Ali Salim

[2004] NSWSC 1276

CITATION:	Roads and Traffic Authority of New South Wales v Ali Salim [2004] NSWSC 1276
HEARING DATE(S):	2 February 2005
JUDGMENT DATE:	2 February 2005
JUDGMENT OF:	Barr J at 1
DECISION:	Magistrate's order varying period of suspension set aside. Defendant's appeal to Local Court against suspension dismissed.
CATCHWORDS:	MOTOR VEHICLES: Suspension of driver's licence - whether right of appeal conferred by Road Transport (General) Regulation 1999 - jurisdiction of Local Court.
PARTIES :	Roads andTraffic Authority of New South Wales, Ali Salim
FILE NUMBER(S):	SC 13359/2004
COUNSEL:	T Lynch No appearance
SOLICITORS:	Hunt & Hunt No appearance

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

2 FEBRUARY 2005

13359/2004 ROADS AND TRAFFIC AUTHORITY OF
NEW SOUTH WALES v ALI SALIM
JUDGMENT

1 HIS HONOUR: This is an application by summons in which the plaintiff, the Roads and Traffic Authority of New South Wales, seeks an order setting aside a decision of a magistrate and consequential orders. There is also an informal application for leave to amend the summons.

2 The defendant, Mr Ali Salim, was a licensed driver, who had committed a number of traffic offences. The plaintiff had to determine what action to take over two matters. One was a speeding offence and the other was the accumulation by the defendant of demerit points which exceeded the maximum allowable by statute. Either might lead to a period of suspension of the defendant’s licence.

3 The plaintiff, in the undoubted exercise of its discretion, decided to suspend the defendant for a period of six months for the speeding offence. No issue arises about that matter.

4 The consequences of the accumulation of more than the permissible number of demerit points are dealt with in s16 of the Road Transport (Driver Licensing) Act 1998. The relevant subsections are as follows -

16 Consequences of incurring demerit points

(1) Recording of demerit points Demerit points incurred by a person for an offence for which demerit points may be incurred under this Act or the regulations are to be recorded in the demerit points register in respect of the day on which the offence was committed.

(2) Licence suspension for demerit points The Authority must give a notice of licence suspension to the holder of a driver licence (not being a provisional licence or learner licence) who incurs 12 or more demerit points within the 3 year period ending on the day on which the person last committed an offence for which demerit points have been recorded against the person.
Note. Provisional licence holders are dealt with in section 17.

(3) Despite subsection (2), the Authority is not required to take action under that subsection if it is of the opinion:
(a) that it would be unreasonable to do so, having regard to the date when any relevant offence was committed, or
(b) it would be more appropriate for the person to be dealt with under section 14 (4) and 16A.

...

(5) The period of licence suspension under subsection (2) is the period applicable under the following table:

Licence suspension for demerit points Number of demerit points incurred within previous 3 years	Period of licence suspension
12 to 15	3 months
16 to 19	4 months
20 or more	5 months

5 The plaintiff had regard to subs (3) and decided that the circumstances contemplated by paragraphs (a) and (b) did not apply and that it should therefore allow subs (5) to have its effect. Since the defendant had accumulated more than twenty demerit points there was therefore a suspension for a period of five months.

6 The plaintiff sent the defendant a letter informing him about both periods of suspension. The letter informed him that he could appeal. He appealed to the Local Court. When the matter came on for hearing a person, apparently unqualified, represented the plaintiff before the magistrate. That person told the magistrate with respect to the period of suspension imposed for the excessive accumulation of demerit points that he could uphold the appeal or refuse the appeal, that is to say, cancel the period of suspension or let it stand, but not vary it.

7 The magistrate took a different view and varied the five month period, substituting a period of two months.

8 In my opinion, the officer representing the plaintiff was wrong. In Roads and Traffic Authority of New South Wales Re 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.

9 Mr Lynch, who appears for the plaintiff, submitted that it is still possible to see what happened as a decision of the plaintiff so as to make applicable the appeal provisions provided for in General Regulation 6. It is submitted that the plaintiff could, in the exercise of its power under subs (3), have decided not to take the action that it did take. Instead, it exercised its discretion and decided not to exercise that power. But for the exercise of that discretion the period of suspension prescribed by the statute would not have taken effect. Mr Lynch has informed the Court that that was a matter that was canvassed in Roads and Traffic Authority v Wilson. It is not, however, mentioned in the judgment.

10 I do not consider that the argument has merit. The fact that the plaintiff decided not to take action that would have staved off the effect of the statute does not seem to me to touch the principle explained in Roads and Traffic Authority v Wilson that the suspension which resulted from subs (5) of s16 was the effect solely of the statute. Accordingly, in my opinion the suspension did not come about by any decision of the plaintiff and the magistrate had no power to hear the matter.

11 The six-month period of suspension which was imposed by the plaintiff in its discretion for the speeding offence dated from 17 August 2004 and will expire on the 16th day of this month. The five-month period for the accumulation of demerit points will not begin to run until the 17th day of this month.

12 Although the summons as framed seeks an order in the usual way, setting aside the decision appealed from and remitting the matter to the Local Court to be dealt with according to law, it does not seem necessary to send the matter back to the Local Court because all that Court could do would be to dismiss the appeal. This Court has power to do that - see s 59 Crimes (Local Courts Appeal and Review) Act 2001.

13 Accordingly, I make the following orders -

1. I set aside the order of the Local Court made on 16 September 2004 varying the suspension
of the defendant’s licence pursuant to s 16(2) and (5) of the Roadd Transport (Driver Licensing) Act 1998.

2. I dismiss the defendant’s appeal against his suspension under s16 of the Road Transport
(Driver Licensing) Act 1998 .

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Last Modified: 07/16/2007