Supreme Court New South Wales Medium Neutral Citation: Transport for NSW v Clayton [2021] NSWSC 16 Hearing dates: 12 January 2021 Date of orders: 12 January 2021 Decision date: 12 January 2021 Jurisdiction: Common Law Before: Black J Decision: Orders made in the Local Court at Inverell on 2 November 2020 "dismissing the appeal" brought by the Defendant, subject to a condition that he "may only drive for work purposes and to and from work for three months" be set aside; the proceedings be remitted to the Local Court to be determined according to law; with no order as to costs. Catchwords: DRIVER'S LICENSING – withdrawal of exemption from licensing for interstate driver – whether Local Court may vary decision of Plaintiff to withdraw exemption so as to permit driving for limited purposes. Legislation Cited: • Crimes (Appeal and Review) Act 2001 (NSW), Pt 5 • Local Court Act 2007 (NSW), Pt 4 • Road Transport Act 2013 (NSW), s 59, s 268, s 270 • Road Transport (Driver Licensing) Regulation 2017, Pt 12, reg 95, reg 96 • Supreme Court Act 1970 (NSW) s 69 Cases Cited: • Kokou v Roads and Maritime Services and Local Court of NSW [2018] NSWSC 1692 • Roads and Maritime Services v Khan [2013] NSWSC 331 Category: Principal judgment Parties: Transport for NSW (Plaintiff) Tye Clayton (First Defendant) Representation: Counsel: B Hearnden (Solicitor) (Plaintiff) Solicitors: Hunt & Hunt (Plaintiff) File Number(s): 2020/342781 Judgment – ex tempore (Revised 12 January 2021) 1. By Summons filed on 2 December 2020, and heard as a vacation duty matter on 12 January 2021, Transport for NSW ("TfNSW") seeks an order that certain orders made in the Local Court at Inverell on 12 November 2020 be set aside, and that the matter be remitted to the Local Court to determine the matter according to law. Those orders dismissed an appeal from TfNSW's decision to withdraw an exemption for Mr Clayton, which would permit him to drive in New South Wales as the holder of a Queensland driver's licence, for the period to 14 January 2021, and imposed a condition that Mr Clayton may only drive for work purposes and to and from work for that period. 2. The application raises a question of law, although there is now little practical utility in determining it, because TfNSW's original decision, which was the subject of the appeal to the Local Court, withdrew the relevant exemption for Mr Clayton on and up to 14 January 2021, two days after this matter was heard. Although an order is sought remitting the matter to the Local Court, it is likely that the withdrawal of that exemption will have expired by the time any remittal takes place, and the matter will be moot. Mr Clayton filed a notice of submitting appearance, save as to costs, in this Court. 3. I now turn to the relevant facts, which are in narrow scope. TfNSW relies on two affidavits dated 2 and 9 December 2020 of a solicitor acting for it, Mr Mourani, which set out those facts. By letter dated 10 September 2020, TfNSW wrote to Mr Clayton advising, under reg 96 of the Road Transport (Driver Licensing) Regulation 2017, that visiting driving privileges for Mr Clayton, which allowed him to drive in New South Wales while he was the holder of a driving licence in another state, would be withdrawn commencing on 15 October 2020 and that Mr Clayton may recommence driving in New South Wales, provided he remains the holder of a current licence, on and after 15 January 2021. That advice relied on Mr Clayton's payment of a penalty notice in respect of driving with a low range concentration of alcohol on 14 June 2020. The letter drew attention to Mr Clayton's right to appeal against the decision under the Road Transport Act 2013 (NSW) and Mr Clayton in turn appealed against that decision. 4. By an appeal filed with the Local Court on 12 October 2020, Mr Clayton sought an order that TfNSW's decision to withdraw his visiting driver privileges be set aside, on grounds that he normally resided and worked in Queensland but was unable to return there after visiting his family in New South Wales, due to the COVID-19 pandemic; that he had sourced work in New South Wales working as a station hand and was required to travel and work hundreds of kilometres in different locations in New South Wales for that purpose and his ability to drive in New South Wales was required as a necessity of his employment. TfNSW made written submissions in respect of the appeal. The magistrate stated that he would "dismiss" the appeal and vary the relevant order, so that Mr Clayton was suspended from driving for all purposes other than going to and from work and to undertake work. I will return to the effect of that order below. 5. The question raised by this application is whether the Local Court had power to make an order in that form. The application is brought in this Court as an appeal on a question of law under Pt 5 of the Crimes (Appeal and Review) Act 2001 (NSW). Mr Hearnden, who appears for TfNSW, drew attention to a difference of opinion in the authorities as to whether an appeal is available under that Pt 5 of the Act in respect of a decision of the Local Court in a matter of this kind, referring to Roads and Maritime Services v Khan [2013] NSWSC 331 at [20]-[28] and the different view taken in Kokou v Roads and Maritime Services and Local Court of NSW [2018] NSWSC 1692. That question turns upon the effect of s 270 of the Road Transport Act which provides that, subject to the statutory rules, the decision of a Local Court in respect of an appeal under the part is final and binding on the appellant, and, in the case of an appeal, on the decision-maker who made the decision of the appeal. It seems to me that the question of the source of the Court's jurisdiction does not needs to be determined, where this Court's decision which will have continued practical effect for only two days and, if the Court does not have jurisdiction under Pt 5 of the Crimes (Appeal and Review) Act, it has such jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). That question can be left to be determined in a case in which the decision has greater practical significance than any decision in this matter. Mr Hearnden also draws attention to the fact that an appeal may be brought under Pt 5 of the Crimes (Appeal and Review) Act (or, alternatively, within the Court's jurisdiction under s69 of the Supreme Court Act) so far as a question of law arises. I am satisfied that this matter raises a question of law. 6. An exemption is available from the requirement to hold a New South Wales driver's licence in respect of a visiting driver under Pt 12 of the Road Transport (Driver Licensing) Regulation. Regulation 96(1)(a) allows that exemption to a visiting driver who holds a current Australian driver licence issued by a licensing authority in another jurisdiction. That exemption is, however, subject to reg 96(4) which provides that a visiting driver ceases to be exempt from the requirements to hold a New South Wales driver's licence in specified circumstances. Relevantly, under reg 96(4)(g), that exemption ceases if, in TfNSW's reasonable opinion, the visiting driver is not a fit and proper person to drive a motor vehicle in New South Wales. That was the first basis on which TfNSW withdrew that exemption for Mr Clayton, relying on the penalty for driving with a low range concentration of alcohol. Under reg 96(4)(o), a visiting driver also ceases to be exempt if, in TfNSW's reasonable opinion, it could, under s 59 of the Road Transport Act, suspend a New South Wales driver's licence held by the visiting driver because of an alcohol or other drug-related driving offence. That section provides that a driver's licence may be suspended, inter alia, because of an alleged alcohol driving offence if, relevantly, the holder pays the whole or any part of the penalty specified in the penalty notice, as occurred here and a period not exceeding three months may be specified as the period for the suspension in relation to an alleged alcohol offence. Regulation 96(9) in turn provides that, where a withdrawal of the exemption occurs, TfNSW must give the visiting driver notice that he or she is, on and from the date nominated in the notice, no longer exempt for a period specified in the notice. That regulation contemplates that such a notice may be given for a particular period, as occurred here. 7. Mr Hearnden in turn draws attention to the limits of the Local Court's jurisdiction in respect of appeals against decisions of TfNSW brought under Part 4 of the Local Court Act 2007 (NSW). In particular, s 268(2) of the Road Transport Act provides that, subject to specified provisions, the Local Court may determine an appeal by setting aside the decision; or varying the decision; or dismissing the appeal; or making such other order as it seems just to the Court in the circumstances. Section 268(3) in turn provides that, in varying a decision in an appeal under the Part, the Local Court may exercise only such powers as the decision-maker could have exercised under the Road Transport legislation when making that decision. 8. It seems to me that, although the magistrate here stated that he would dismiss Mr Clayton's appeal, his order cannot be understood as doing so since, as Mr Hearnden rightly points out, had the appeal been dismissed, then TfNSW's decision would have been left unaffected. The magistrate also indicated that he was proposing to "vary" the order and that seems to me to have been a variation of the decision made by TfNSW to withdraw the exemption, to impose the condition that it was available only for Mr Clayton to drive to and from work. It also seems to me that the magistrate did not seek, in indicating that he would vary the order, to make such other order as seemed just to the Local Court in the circumstances, since the condition that he imposed was not a court order which would give rise, for example, to any sanction for breach of it. 9. Mr Hearnden rightly points out that the Local Court's ability to vary a decision of TfNSW is limited, by s268(3) of the Road Transport Act, to which I referred above, to exercising only such power as TfNSW as decision-maker could have exercised under the Road Transport legislation when making the decision. Mr Hearnden submits that there is no power in the Road Transport (Driver Licensing) Regulation or other road transport legislation that permitted TfNSW to impose a limitation on an exemption under reg 96 of the Road Transport (Driver Licensing) Regulation, that permitted a visiting driver to drive in New South Wales in reliance on an interstate driver's licence, so that it was available for driving for a particular purpose only. Mr Hearnden submits that the Local Court therefore had no power to make an order varying the decision of TfNSW to limit the exemption in that way, and that its doing so was a jurisdictional error and an error of law. 10. That submission raises the question of the scope of TfNSW's powers under reg 96 of the Road Transport (Driver Licensing) Regulation, although I have also had cause to consider, and I heard submissions about, the scope of reg 95 of that Regulation. It seems to me that Mr Hearnden is correct that TfNSW has no power, under reg 96 of the Road Transport (Driver Licensing)Regulation to withdraw an exemption available to an interstate driver to a limited extent, or in a manner that permits driving for a particular purpose, and that the Local Court therefore also had no power to take that course under s 268 of the Road Transport Act. It seems to me that result follows from the language of the regulation, since reg 96(4) provides for the visiting driver to cease to be exempt in the relevant circumstances, which include, here, the relevant opinions being formed that the driver is not a fit at proper person to drive a motor vehicle or that TfNSW could suspend a New South Wales driver's licence because of an alcohol driving offence. Sections 96(5)-(8) provide specific limitations in respect of specific grounds on which the exemption may be withdrawn, but none of those provisions allow the imposition of a limitation upon the withdrawal of an exemption under regs 96(4)(g) or (o) to permit driving for a particular purpose. That result is consistent with the structure of the regulation, which operates as a recognition of a driver's licence obtained in another State, with the effect that either that interstate driver's licence is recognised in full or it is not recognised at all, and does contemplate that a person who is, for example, licensed without restriction in Queensland would be permitted to drive only for limited purposes in New South Wales. The regulation also does not support a limitation directed to driving for a particular purpose, since it creates no sanction for a breach of such a limitation. Here, once the relevant exemption was reinstated by the magistrate subject to the condition that Mr Clayton drive only in limited circumstances, no penalty would have been available had he disregarded that condition and driven for any other purpose. 11. I have also considered whether TfNSW had power under reg 95 of the Road Transport (Driver Licensing) Regulation to exempt a driver on condition, and that power would exist in some circumstances. That regulation provides that TfNSW may exempt, relevantly, a driver from the requirement to hold a driver's licence, and that exemption may be subject to conditions specified by TfNSW, and TfNSW must cause any exemption under the regulation to be published in the Gazette. It would be possible for TfNSW, in a proper case, to grant an exemption to a person who was not an interstate or international visitor, or a person who was an interstate or international visitor otherwise falling within the scope of reg 96, on that basis, and to do so subject to conditions. However, it does not seem to me that that power extends to granting such an exemption, where TfNSW has formed the relevant view that the visiting driver is not a fit and proper person to drive a motor vehicle in the State under reg 96(4)(g), or that it could suspend that licence because of an alcohol-related driving offence under reg 96(4)(o) of the Road Transport (Driver Licensing) Regulation. To put that proposition differently, where reg 96(4)(g) and (o) specifically provide that a visiting driver ceases to be exempt from the New South Wales driver's licensing requirements where TfNSW forms the relevant opinions, then reg 95 does not then create a power for TfNSW to reverse that result, conditionally, in a manner that would be inconsistent with the formation of those opinions and with the effect of those regulations, and where no sanction is available for breach of such a condition. 12. For these reasons, I am satisfied that the orders made by the Local Court were outside power. The consequence is that, at least upon notification of this decision to Mr Clayton, he will be unable to take advantage of the conditional exemption that arose from the Local Court's decision for the two days in which TfNSW's withdrawal of his exemption remains in effect. The matter will be remitted to the Local Court to be decided in accordance with law, but will likely be moot by the time it would be dealt with by the Local Court on that remittal. Appropriately, TfNSW did not seek an order as to costs against Mr Clayton, and no such order could have been made against him where he submitted to the decision of the Court other than as to costs. 13. For these reasons, I make the following orders: 1. An order that the orders made in the Local Court at Inverell on 2 November 2020 "dismissing the appeal" brought by Mr Tye Clayton, subject to a condition that he "may only drive for work purposes and to and from work for three months" be set aside. 2. The proceedings be remitted to the Local Court to be determined according to law. 3. There be no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2021