RTA v Swait

[2005] NSWSC 342

CITATION:	RTA v Swait [2005] NSWSC 342
HEARING DATE(S):	12 April 2005
JUDGMENT DATE :	14 April 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Studdert J
DECISION:	I grant the relief sought in paras 1 and 2 of the summons. I make no order as to costs.

LEGISLATION CITED:	Road Transport (Driver Licensing) Act, ss 16, 43 Supreme Court Act, s 69
CASES CITED:	Roads and Traffic Authority of New South Wales v Wilson & Anor (2003) 58 NSWLR 240
PARTIES:	Roads and Traffic Authority of New South Wales (Plaintiff) Matthew Anthony Swait (1st Defendant) Local Court at Katoomba (2nd Defendant)
FILE NUMBER(S):	SC 10613/05
COUNSEL:	P.F. Singleton (Plaintiff) A.R. Jungwirth (1st Defendant) Submitting appearance (2nd Defendant)
SOLICITORS:	I.V. Knight (Plaintiff) I.V. Knight (2nd Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Wednesday 13 April 2005

10613/05 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v MATTHEW ANTHONY SWAIT & ANOR

JUDGMENT

1 HIS HONOUR: The Roads and Traffic Authority of New South Wales seeks relief in the nature of certiorari pursuant to s 69 of the Supreme Court Act. In the summons the plaintiff claims the following:

“1. A declaration that the second defendant did not have jurisdiction to hear or determine the proceedings which were initiated by the first defendant and which came before the second defendant on 22 December 2004 (being a purported appeal by the first defendant against the suspension of his motor vehicle driver’s licence).
2. A declaration that the purported decision of the second defendant on 22 December 2004 purporting to uphold an appeal by the first defendant against the suspension of his motor vehicle driver’s licence is null and void.”

2 The proceedings have been brought by reason of a decision of the Local Court upholding the first defendant’s appeal against the suspension of his licence. The Local Court at Katoomba has been joined as a second defendant and has filed a submitting appearance. Put shortly, it is the plaintiff’s contention that there was no jurisdiction in the Local Court to entertain the first defendant’s appeal.

3 Briefly stated, the relevant facts were that the first defendant accumulated eleven demerit points between 26 February 2002 and 26 January 2003. This prompted a warning, and then on 14 August 2003 the first defendant committed a further offence that attracted three demerit points. In the result the first defendant had accumulated more than twelve demerit points within a three year period, so the plaintiff gave him a notice of suspension pursuant to s 16(2) of the Road Transport (Driver Licensing) Act 1998 (the Licensing Act). The first defendant was notified that the suspension would commence on 21 January 2004 unless he elected instead to be of good behaviour for twelve months. The response of the first defendant was to execute a good behaviour election pursuant to s 16(8) of the Licensing Act, and I shall set out the provisions of s 16 shortly. The first defendant elected to be of good behaviour for twelve months rather than to have his licence suspended.

4 Then, on 29 September 2004, the first defendant’s vehicle was detected by camera exceeding the speed limit by not more than fifteen kilometres per hour. This was an offence that ordinarily attracted two demerit points, but more importantly for the first defendant, it involved a breach of his good behaviour election. By the operation of s 16(9) of the Licensing Act, the effect of this breach was to bring about a suspension of his licence for twice the period that would have applied had he not made the election.

5 On 29 November 2004 the plaintiff notified the first defendant that his licence would be suspended for a period of six months from 3 January 2005 and the first defendant appealed against this suspension. His appeal was heard by the second defendant on 22 December 2004. The Local Court held that it had jurisdiction to entertain the appeal and the appeal was successful.

6 The first defendant tendered in evidence in this Court documents which had been placed before the Local Court. It was the first defendant’s contention in the Local Court that he had not been the driver of his vehicle on 29 September 2004 when it was detected to be exceeding the speed limit. The driver had been a friend visiting the first defendant from England. This appears to have been accepted in the Local Court and accounts for the success of the appeal.

7 Did the Local Court have the jurisdiction it assumed on 22 December 2004? The answer to this question involves consideration of the legislation.

8 I referred earlier to s 16 of the Licensing Act. I set out sub-ss (1) to (10):

“(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.
(4) The notice of licence suspension must specify the date on which the suspension is to take effect and must contain any other matters specified by the regulations. The date specified must not be earlier than 28 days after the notice is given.
(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 Period of licence
incurred within previous suspension
3 years
12 to 15 3 months
16 to 19 4 months
20 or more 5 months
(6) If a person who has been served with a notice of licence suspension does not make an election under subsection (8), the person’s driver licence is suspended for the period applicable under this section from the date specified in the notice.
(7) On the commencement of a period of suspension or a period of good behaviour (see subsection (8)), all demerit points recorded in the demerit points register against the person at the date of the notice are taken to be deleted.
(8) Alternative to suspension A person who incurs at least 12 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 may, after being served with a notice of licence suspension by the Authority (but before the commencement of the period of suspension), notify the Authority in a form approved by the Authority that he or she elects, as an alternative to undergoing the suspension, to be of good behaviour for a period of 12 months from the day on which the licence would otherwise be suspended.
(9) If a person who makes an election in accordance with subsection (8) incurs 2 or more demerit points during the 12 months’ good behaviour period, the Authority must give the person a notice suspending the person’s driver licence, commencing on a day specified in the notice, for twice the period that would have applied to the person under this section if the person had not made the election.
(10) On the commencement of the period of suspension referred to in subsection (9), all demerit points recorded in the demerit points register against the person at the date of the notice, and taken into account for the purpose of the notice, are taken to be deleted…”
(Emphasis added)

9 It is to be observed that the requirement that the plaintiff give the person who incurs two or more demerit points in the period contemplated in s 16(9) is mandatory; the Authority must give the notice of suspension when the demerit points are incurred.

10 The Local Court was dependent upon the existence of some statutory power to entertain the appeal by the first defendant. What statutory authority was there for the jurisdiction assumed by the Local Court in this matter? Mr Singleton, for the plaintiff, submitted that the only provisions of possible relevance conferring appeals to the Local Courts from decisions of the plaintiff were to be found in cl 6(1) of Sch 2 to the Road Transport (General) Regulation 1999. This provided, at times relevant to this matter:

“An affected person may appeal to a Local Court constituted by a magistrate sitting alone against any of the following decisions of the authority:
(a) a decision not to take into account some or all of the period the person has held a licence to drive a motor vehicle in another country under clause 8(3) of the Road Transport (Driver Licensing) Regulation 1999,
(b) a decision not to grant an application for the issue, variation or renewal of a driver licence under the Road Transport (Driver Licensing) Regulation 1999,
(c) a decision to vary, suspend or cancel the person’s driving licence under the Road Transport (Driver Licensing) Act 1998 or the Road Transport (Driver Licensing) Regulation 1999.”

11 Sub-paragraphs (a) and (b) could have no arguable application in the present circumstances, but was there here a decision by the plaintiff to suspend the first defendant’s licence? Mr Singleton submitted that the suspension involved no decision by the plaintiff and hence cl 6(1)(c) gave the Local Court no appellate jurisdiction here.

12 In my opinion that submission is correct. It seems to me that on a proper reading of s 16(9) the suspension imposed upon the first defendant was an automatic consequence of the provisions of sub-s (9). It was for the plaintiff to specify the commencement date of the notice but no more.

13 Roads and Traffic Authority of New South Wales v Wilson & Anor (2003) 58 NSWLR 240 is directly in point. This was a decision of the Court of Appeal concerning the provisions of s 16(8) and (9) of the statute. Like the first defendant, the respondent, Wilson, made an election under s 16(9) following notification of suspension and in the period during which he had elected to be of good behaviour he incurred further demerit points. He was then given six months licence suspension and appealed to the Local Court. He was unsuccessful there but successful before a single judge of this court and hence the Authority appealed to the Court of Appeal. That ultimate appeal was successful, and the reasons for the success of the appeal are to be found in the judgment of Meagher JA, with whose judgment the other members of the court agreed. Meagher JA said (at p 244):

“[13] The central point is clear: Mr Wilson has no right to appeal against anything but a ‘decision’: that is what reg 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.
[14] As the Macquarie Dictionary opines (A Delbridge, ed, Macquarie Dictionary, 3rd ed (1997) Macquarie, Macquarie Library Pty Ltd), 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. Here there was no question, no controversy, no struggle, nothing to settle, nothing in dispute. The demerit points accumulated, the automatic consequence was the suspension. Nobody ‘decided’ anything. There was, therefore, nothing to appeal against.”

14 Mr Jungwirth, who put all that could be put on behalf of the first defendant, sought to distinguish Wilson upon the basis that there was no issue but that he was the person who committed the relevant offence. In the present case, unlike Wilson’s case, the first defendant contended he did not commit the final offence. Rather, it was the person who used his car, and the magistrate accepted that this was so. It was submitted that it would be unjust if the first defendant had no redress concerning his suspension in such circumstances.

15 I do not accept that submission. The opportunity existed for the first defendant to avoid liability when he was first notified of the speeding offence detected by camera: s 43 of the Road Transport (General) Act 1999. Where a motorist is served with a penalty notice or a summons in respect of a camera-detected speeding offence and he was not the driver at the relevant time, he is able to avoid liability by making appropriate disclosure in compliance with the provisions of s 43 and the matter can later be tested in court. The first defendant chose here not to take that course and the suspension that followed followed because, in the circumstances, it was the first defendant who incurred the demerit points that triggered the giving of the notice under s 16(9).

16 I do not consider that any grounds have been established for distinguishing the decision in Wilson. In my opinion, that decision is directly in point.

17 After Wilson was decided, cl 6(1)(b) and (c), set out in para 10 above, was amended, but the amendment was short term because the Legislative Council resolved to disallow the amendment on 29 June 2004, some three months before the camera-detected speeding offence concerning the first defendant. It is possible that the Local Court, which assumed jurisdiction in the first defendant’s case, was mislead by reason of the short term amendment and by information in a Local Courts bulletin to which Mr Singleton referred in his submissions, but whether this be so or not, the statutory provisions governing this case are the same as those which governed Wilson.

18 For these reasons, I conclude that the Local Court had no jurisdiction to make the order it purported to make, and I therefore grant the relief sought in paras 1 and 2 of the summons.

19 The plaintiff seeks no order as to costs, and I make no such order.

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