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Local Court 9 August 2018

Peter Harris v Roads & Maritime Services

[2018] NSWLC 14

Traffic & driving
CRIMINAL LAW PARTICULAR OFFENCES DRIVING OFFENCES CANCELLATION OF DRIVER LICENSE IN NSW WHETHER A “DECISION” BY AUTHORITY WHETHER “APPEALABLE DECISION”

Citation: Peter Harris v Roads & Maritime Services [2018] NSWLC 14
Court: Local Court of NSW
Date: 9 August 2018
Judge(s): Magistrate Hiatt

Background

The appellant held a NSW driver licence. In March 2018, a Victorian court disqualified him from holding a driver licence for 12 months following a drink driving offence processed through the infringement notice system in that state.

Roads & Maritime Services (the Authority) subsequently sent the appellant a letter headed "Advice of Disqualification and Cancellation of Licence." The letter informed him that, as a consequence of the Victorian disqualification, his NSW driver licence was cancelled, and that he was obliged to surrender it.

The appellant filed an appeal in the Local Court at Penrith, framing it as an appeal against the Authority's "decision" to cancel his licence. The Authority contested the court's jurisdiction to hear the appeal, arguing that no appealable decision had in fact been made.

  • Whether the Authority's notification to the appellant constituted a "decision" capable of being appealed to the Local Court under s 267 of the Road Transport Act 2013 (NSW)
  • Whether the cancellation of the NSW licence fell within a "prescribed class of decisions" under cl 126(c) of the Road Transport (General) Regulation 2013, so as to qualify as an "appealable decision" under s 266(1) of the Act
  • Whether the cancellation was effected under cl 65(1)(j) of the Road Transport (Driver Licensing) Regulation 2017 (as the appellant argued) or automatically by operation of s 207 of the Road Transport Act 2013 and cl 65(7) (as the Authority argued)
  • Whether s 207 of the Road Transport Act 2013 applied to the appellant, given that he held a NSW licence rather than an interstate licence

Decision

Magistrate Hiatt found that the Authority's letter was not an administrative decision made by a functionary of the Authority. Rather, it gave effect to the automatic statutory operation of s 207(2) of the Road Transport Act 2013 and cl 65(7) of the Road Transport (Driver Licensing) Regulation 2017. Once the Authority received notification of the Victorian disqualification, the cancellation of the appellant's NSW licence followed as an automatic legal consequence, not as a discretionary or deliberative act by the Authority.

The Magistrate rejected the appellant's argument that the cancellation was made under cl 65(1)(j), which would have created a discretionary decision and, in turn, an appealable decision under cl 126(c) of the Road Transport (General) Regulation 2013. Clause 65(1)(j) confers a power on the Authority to act where a person has been convicted in another jurisdiction; it does not govern situations where, as here, cancellation flows directly and automatically from the statutory scheme.

The Magistrate also rejected the appellant's contention that s 207 did not apply to him because he held a NSW licence rather than an interstate licence. A plain reading of s 207(2) confirmed that a disqualification imposed in another state on a person who holds a NSW licence is treated as a disqualification to hold a NSW licence. That provision applied squarely to the appellant's circumstances.

Drawing on the Supreme Court decisions in RTA v Wilson and Roads and Traffic Authority v Salim, the Magistrate confirmed that where a legal outcome arises automatically from legislative provisions rather than from a decision of the Authority, there is no decision against which an appeal can lie. The Local Court therefore had no jurisdiction to hear the appeal.

Orders Made

• The Local Court has no jurisdiction to hear and determine the appeal in this matter.

Key Takeaways

  • Where a NSW driver licence is cancelled as an automatic consequence of an interstate disqualification, the operation of s 207(2) of the Road Transport Act 2013 produces that result by force of statute, not by an administrative decision of Roads & Maritime Services.
  • No "appealable decision" exists under s 266(1) of the Road Transport Act 2013 where the Authority's notification does no more than communicate the automatic legal effect of a statutory provision, rather than reflect a deliberate administrative act.
  • The distinction between cl 65(1)(j) (a discretionary cancellation power exercisable by the Authority) and cl 65(7) (a mandatory cancellation obligation arising from a court order or statutory provision) is critical to determining whether a right of appeal to the Local Court arises.
  • Section 207 of the Road Transport Act 2013 applies to holders of NSW licences who are disqualified in another Australian jurisdiction: the interstate disqualification is treated as a disqualification to hold a NSW licence.
  • The Magistrate applied and confirmed the reasoning from RTA v Wilson & Anor (2003) 58 NSWLR 240 and Roads and Traffic Authority v Salim [2004] NSWSC 1276, both of which hold that automatic statutory consequences do not constitute decisions susceptible to appeal.

Legislation and Cases Referenced

Legislation
- Road Transport Act 2013 (NSW), ss 29, 207, 266, 267
- Road Transport (Driver Licensing) Regulation 2017 (NSW), cll 65(1)(j), 65(7)
- Road Transport (General) Regulation 2013 (NSW), cl 126
- Local Court Act 2007 (NSW), s 45
- Road Safety Act 1986 (Vic), ss 89A, 89C

Cases
- RTA v Wilson & Anor (2003) 58 NSWLR 240
- Roads and Traffic Authority of New South Wales v Salim [2004] NSWSC 1276
- Wojtulewicz v Roads & Traffic Authority (NSW) [2006] NSWSC 525