New South Wales Supreme Court CITATION : Wilson v RTA & Anor [2002] NSWSC 645 FILE NUMBER(S) : SC 13407/01 HEARING DATE(S) : 13/12/2001 JUDGMENT DATE : 30 July 2002 PARTIES : Kim Wilson Roads and Traffic Authority JUDGMENT OF : Hidden J at 1 COUNSEL : P Johnson SC - Plaintiff T Lynch - Defendant SOLICITORS : Milne Berry & Berger - Plaintiff Hunt & Hunt- Defendant CATCHWORDS : MOTOR TRAFFIC: suspension of licence under s 16(9) Road Transport (Driver Licensing) Act - whether appeal lies to Local Court - extent of magistrate's powers on appeal. Road Transport (Driver Licensing) Act 1998 Road Transport (General) Regulation 1999 LEGISLATION CITED : Administrative Decisions (Judicial Review) Act 1997 Driving Instructors Act, 1992 Motor Traffic Act 1909 Century Yuasa Batteries Pty Ltd v Federal Commissioner of Taxation (1997) 143 ALR 477 at 487 Australian broadcasting Tribunal v Bond (1990) 170 CLR 321 Cummins v Mackenzie [1979] 2 NSWLR 803 CASES CITED : Cole v Director General of Department of Youth and Community Services (1987) 7 NSWLR 541 Turnbull v NSW Medical Board [1976] 2 NSWLR 281 Trist v Commissioner for Motor Transport (1986) Petty Sessions Review 4001 Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 DECISION : Matter remitted to Local Court. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Tuesday, 30 July, 2002 13407/01 – Kim WILSON v Roads & Traffic Authority & Anor JUDGMENT 1 HIS HONOUR: By a letter of 14 July 2001, the plaintiff, Kim Wilson, was notified by the first defendant, the Roads and Traffic Authority, that his driver's licence had been suspended for six months. He appealed against that suspension to the Local Court but the appeal was dismissed by the second defendant, a magistrate. He seeks declaratory and prerogative relief in this Court in relation to the magistrate's decision. In accordance with the usual practice, the magistrate has entered a submitting appearance. The case raises the question whether there is a right of appeal to the Local Court in these circumstances and, if so, what is its scope. 2 Within the three year period between September 1997 and September 2000 the plaintiff committed five driving offences, accruing thirteen demerit points under the Road Transport (Driver Licensing) Act 1998. Pursuant to s16(2) and (5) of that Act the first defendant, to which I shall refer as the "RTA", gave the plaintiff notice of suspension of his licence for three months. By s16 (8), a person liable to suspension may elect, "as an alternative to undergoing suspension, to be of good behaviour for a period of twelve months from the day on which the licence would otherwise be suspended." The plaintiff made that election, and on 13 October 2000 he signed a document entitled "good behaviour election/acknowledgment". That document informed him of the consequences of his incurring more demerit points during the good behaviour period, a matter to which I shall turn in a moment. 3 Section 16(2) requires the RTA to give notice of suspension of the licence of a driver who has incurred twelve or more demerit points within a three year period and, depending on the number of points, subsection (5) prescribes the length of the suspension. However, subsection (3) provides that the RTA need not give notice of suspension if it is of the opinion "that it would be unreasonable to do so, having regard to the date when any relevant offence was committed" or, in the case of an applicant for a licence, it would be more appropriate for the person to be dealt with by other provisions involving "a notice of licence ineligibility". By subsection (8) the plaintiff had the right to elect to be of good behaviour rather than undergoing the suspension, although the subsection fixed the good behaviour period at twelve months. 4 In February and June 2001 the plaintiff committed further driving offences, accruing an additional four demerit points. This, of course, was within the good behaviour period. As a result, he was required to be dealt with under s 16(9), which provides as follows:- "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." 5 ("The Authority" is, of course, the RTA.) It will be seen that the RTA had no discretion about whether to give the plaintiff notice suspending his licence nor about the period of suspension. The only matter which it had to determine was the commencement date of the suspension. 6 Accordingly, by the letter of 14 July 2001 to which I have referred, the RTA notified the plaintiff of the suspension of his licence for six months, specifying 18 August 2001 as the day on which the suspension would commence. The letter went on to inform the plaintiff that he had a right of appeal to the Local Court against "the decision" to suspend his licence. 7 Clause 6 of the Road Transport (General) Regulation 1999 – Schedule 2, enables an appeal to the Local Court by an "affected person" against a variety of decisions of the RTA. By Clause 5(1), an "affected person" includes "the holder of an Australian driver licence." Relevantly, Clause 6 provides: "6 Appeals to Local Court (1) An affected person may appeal to a Local court constituted by a magistrate sitting alone against any of the following decisions of the Authority: … (c) a decision to vary, suspend or cancel the person's driver licence under the Road Transport (Driver Licensing) Act 1998 or the Road Transport (Driver Licensing) Regulation 1999. … (7) A Local Court must hear and determine an appeal made to it under this clause and may confirm (with or without variation) or disallow the decision appealed against, or make such other order in the circumstances as to the Court seems just. … (8) For the purpose of varying a decision of the Authority under subclause (7), the Court may exercise only such powers as the Authority could have exercised under the Road Transport (Driver Licensing) Act 1998 or the Road Transport (Driver Licensing) Regulation 1999 when making that decision. …" 8 The plaintiff lodged an appeal to the Local Court, citing as his grounds: "Licence required for work and family commitments Good character and driving history Extenuating circumstances regarding recording of offence." 9 At the hearing of the appeal the plaintiff was unrepresented. He began his address to the magistrate by asking "that the Court should exercise some discretion in this matter …". He dealt with the grounds of appeal, arguing that some of his driving offences were attended by extenuating circumstances and referring to his background, his personal circumstances and his business commitments. He concluded by asking the magistrate "to exercise judgment which takes into account all of those circumstances and uphold my appeal." 10 In dismissing the appeal, his Worship recited the facts which led to the suspension of the plaintiff's licence and referred briefly to his history of traffic offences. He made no reference to the extenuating circumstances or the subjective matters upon which the plaintiff relied. In this Court it is common ground that, if the appeal were competent and those matters could properly have been taken into account, his Worship fell into error in failing to deal with them. 11 In the Local Court the RTA raised no issue about the availability or extent of an appeal in a case such as this. In this Court it has. Clause 6(1)(c) of the Road Transport (General) Regulation provides for an appeal against "a decision" to suspend a person's licence. The first argument of Mr Lynch, counsel for the RTA before me, was that the suspension of the plaintiff's licence for six months was mandated by s 16(9) of the Road Transport (Driver Licensing) Act, and could not fairly be described as a decision. 12 By way of analogy, Mr Lynch referred to CenturyYuasa Batteries Pty Ltd v Federal Commissioner of Taxation (1997) 143 ALR 477 at 487-8. Put very shortly, in that case Cooper J held that a demand of the applicant by the Commissioner for certain amounts due under the Income Tax Assessment Act was not a "reviewable decision" under the Administrative Decisions (Judicial Review) Act 1997, because any liability of the applicant arose from provisions of the Income Tax Assessment Act and did not require a determination by the Commissioner. However, that case was concerned with a significantly different legislative framework and, in particular, turned on the question whether the Commissioner's demand could be described as a decision which was "final or operative and determinative … of the issue of fact falling for consideration": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 337, in a passage to which Cooper J referred (at 487). The question posed in the present case is different. 13 In support of his submission that the action taken against the plaintiff is a decision in the relevant sense, Mr Johnson SC, for the plaintiff, referred to s18(4) of the Road Transport (Driver Licensing) Act. That subsection provides that the RTA "may decide to suspend or cancel a driver licence under this Division" without the licence holder being provided an opportunity to be heard about the matter. The words "this Division" refer to Division 2 of Part 2 of the Act, dealing with the demerit point system, which includes s16. Mr Johnson's argument was that the use of the word "decide" in that general provision suggests that any suspension under the Division should be classed as a decision. 14 On the other hand, apart from s16(9), the Division provides for suspension in circumstances where the RTA does have a discretion. I have already referred to s 16(3), which enables the RTA to refrain from giving notice of suspension to a driver who has incurred twelve or more demerit points within a three year period. In addition, s17(1) provides that the RTA "may" suspend or cancel a provisional licence if its holder incurs four or more demerit points. Nevertheless, I can see the force of the argument that s18(4) was intended to apply to any suspension or cancellation under the Division, including suspension under s 16(9). 15 More importantly, as Mr Johnson pointed out, the right of appeal against a decision to suspend a licence conferred by clause 6(1)(c) of the regulation is expressed in general terms which, on their face, accommodate an appeal from a suspension under s16(9) of the Act. There is abundant authority that a provision conferring a right of appeal or review is remedial and should be construed beneficially: see, for example, Australian Broadcasting Tribunal v Bond (supra) per Mason CJ at 335-6, Cole v Director General of Department of Youth and Community Services (1987) 7 NSWLR 541 per Kirby P at 543-4. If it were intended that this appeal provision was not to apply to a suspension under s16(9), one would expect express words to that effect. This is not to deny that in such an appeal the Local Court would not be able to exercise all the powers conferred upon it by clause 6(7). In particular, the Court would be unable to vary the length of the suspension for reasons to which I shall turn in a moment. 16 It is true that, in ordinary parlance, the notion of making a decision assumes that the decision maker is required to choose between two or more possible outcomes. Here, by the terms of the legislation, the only matter about which the RTA had any choice was the date upon which the suspension was to commence. The matter is by no means free of difficulty but, on balance, I am persuaded that the word "decision" is used in the Act and the regulation merely to connote the administrative act by which a licence is suspended. 17 The question remains what is the scope of an appeal against a suspension under s16(9). The RTA's alternative, and preferred, position is that there is a right of appeal but a very limited one. It was said to be confined to a review of the three matters which trigger action under the subsection, that is, the fact of the election to be of good behaviour, the accrual of two or more demerit points during the good behaviour period and the period of suspension which would have applied but for the election, together with the commencement date of the suspension. Thus, Mr Lynch argued, the Local Court could disallow the suspension if it found any of the triggering factors not to be established; otherwise the Court would be bound to confirm it. Its power to vary the suspension would be confined to alteration of the commencement date. 18 Mr Johnson, on the other hand, argued that in an appeal such as the present the Court has all the powers conferred upon it by clause 6(7) of the Regulation, that is, to confirm the RTA's decision (with or without variation), to disallow it, or to make any other order which appears just in the circumstances. It is convenient to deal first with the Court's power of variation. 19 By clause 6(8), for the purpose of varying a decision of the RTA the Court may exercise only such powers as the RTA could have exercised … "when making that decision." Mr Johnson submitted that, for present purposes, that subclause means that the Court could exercise any of the powers of the RTA relating to suspension of licences conferred by the Act and the Road Transport (Driver Licensing) Regulation, and is not fettered by the restraint imposed upon the RTA's discretion by 16(9) of the Act. He referred to other provisions of the Act and regulation granting the RTA the power, in certain circumstances, to determine not only whether a licence should be suspended but also for how long. Thus, it was said, it was open to the Court to vary the length of the plaintiff's suspension. 20 Mr Johnson acknowledged that this was something of an ambit claim and was aware of the difficulty which the argument faced. By its reference to the powers of the RTA "when making that decision", it is clear that the subclause is intended to confine any variation by the Court to an exercise of such powers as the RTA had when making the decision appealed against. In this case that was the decision to suspend the plaintiff's licence under s16(9), and the RTA had no power to depart from the period of suspension prescribed by that subsection. Accordingly, I am satisfied that the Court could not alter the length of the plaintiff's suspension and could do no more than change the date on which it was to commence. This might well be viewed as an unfortunate state of affairs and I can see the benefit of the Court having the power for which Mr Johnson contended. That, however, is a matter for the appropriate authorities. 21 This brings me, then, to the crucial question of the extent of the Court's remaining powers under clause 6(7), that is, to disallow the RTA's decision or to make such other order as seems just. Mr Johnson submitted that these words should be given a liberal interpretation, and are broad enough to enable the Court to set aside the suspension on the basis of the subjective material which the plaintiff advanced, even though there was no dispute about the three matters triggering the RTA's action under s 69(9). He added that, in the exercise of its power to make such other order as seems just, the Court could also extend the good behaviour period. 22 In support of his argument for a narrow construction of the Court's power, Mr Lynch referred to the decision of Hulme J in RTA v Parasiliti (unreported, 25 August 1995). In that case the RTA had cancelled the defendant's licence under the Driving Instructors' Act 1992, and the defendant had appealed successfully to a Local Court against that cancellation. The reason for the RTA's concern is apparent from the order which the magistrate made. His Worship disallowed the RTA's decision, but imposed a condition upon the defendant's licence that "in relation to any female student the licence-holder is not to place his hand on his student's upper thigh and is not to kiss or cuddle the student or offer to do any of the above …" 23 The RTA had cancelled the defendant's licence under s 26(2) of the Act, which provides that it must do so if it is satisfied that the licence holder is "not a person of good character" or "is not a fit and proper person to act as a driver instructor." Section 31 of the Act provides for an appeal to a Local Court against the cancellation of a licence, and s 33(2) confers upon the Court the same powers as those set out in clause 6(7) of the regulation with which I am concerned. 24 Hulme J referred to the observation of Moffitt P in Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 288 that the jurisdiction of an appellate tribunal "does not exceed that of the court or body appealed from, except so far as the terms of the statute which provide the appeal so dictate." Hulme J expressed the tentative view that the legislation with which he was dealing did provide "a contrary indication" from that principle, but considered that the Local Court was confined to the questions relevantly raised by s 26(2), that is, whether the licence holder was not a person of good character or not a fit and proper person to hold a licence under the Act. If either of those questions were resolved adversely to the licence holder, his Honour was of the view that the Court would be bound to uphold the cancellation of the licence. 25 For present purposes, it should be noted that what Hulme J had to say was strictly obiter and it is not clear to me that the matter was fully argued. On any view of it, the central question for the magistrate was whether the defendant was a person fit to hold a driving instructor's licence. His Honour found that that question had not been given adequate consideration. It was for that reason that the RTA was granted the relief it sought and the matter was remitted to the magistrate to be redetermined accordingly. 26 In addition, while s 33(2) of the Driving Instructors' Act is identical in its terms to clause 6(7) of the regulation the subject of the present proceedings, that section has no equivalent to clause 6(8): that is, there is no express limitation upon the power of the Court to vary a decision of the RTA under that Act. The fact that such a limitation is spelt out in the regulation presently under consideration suggests that there is no such restraint upon the other powers with which the Court is invested. 27 The other case on which Mr Lynch relied was Trist v Commissioner for Motor Transport (1986) Petty Sessions Review 4001, a case dealing with the legislative and regulatory scheme which preceded the present regime. The Commissioner had cancelled the plaintiff's licence pursuant to regulation 10(1)(a) of the regulations under the Motor Traffic Act 1909. That provision required the cancellation of the licence of a person if the Commissioner were of the opinion that, "having regard to such person's record as a driver of motor vehicles or his conduct or habits, it would not be in the interests in the public safety for him to hold a licence …". On appeal against the cancellation, a magistrate purported to vary the Commissioner's order "by reducing the period of disqualification to one of two months…". 28 The plaintiff appealed to this Court by way of stated case. Reynolds J noted that the magistrate made it clear that he was considering the matter only under regulation 10(1)(a) and, that being so, his Honour said that the only question for the magistrate to determine was that posed by the regulation, that is, whether it would not be in the interests of public safety for the plaintiff to hold a licence. If the magistrate were of that view, his Honour held, he had no more discretion than the Commissioner had and he would be bound to uphold the cancellation. Nothing in the regulation gave the magistrate the power to impose a period of disqualification from holding a licence. 29 Regulation 10(5) gave the Commissioner the power to suspend a licence. His Honour added that, if the magistrate were not of the opinion that it was desirable in the interests of public safety for the plaintiff's licence to be cancelled, it would have been open to him to have suspended the licence for a period under that regulation. However, he did take that course. The matter was remitted to the magistrate upon the basis that he had erred in holding that regulation 10(1)(a) left him with a general discretion to determine whether the licence should be cancelled, together with a power to disqualify the plaintiff from holding a licence for a period. 30 The case appears to have turned upon the terms on regulation 10(1)(a) and his Honour's judgment does not examine the provisions for appeal to a magistrate which were then in force. One can see the obvious difficulty in a magistrate setting aside the Commission's cancellation of a person's licence under that regulation if she or he were satisfied that it would not be in the interests of public safety for that person to hold a licence. (Similarly, it is difficult to see how the magistrate in Parasiliti could have set aside the cancellation of the defendant's driving instructor's licence if he were satisfied that he was not a fit and proper person to hold such a licence.) The scope of an appeal from a cancellation under regulation 10(1) was touched upon by Sheppard J in Cummins v Mackenzie [1979] 2 NSWLR 803 at 808-9, but it was not a matter which his Honour was called upon to decide and he expressed no concluded view about it. 31 Cummins v Mackenzie was also a case dealing with the old regime for the regulation of motor traffic, which differed in significant respects from that which is now in force. However, there appears to be no relevant difference between the appeal provisions, and Sheppard J's general observations about them remain applicable today. His Honour described the jurisdiction conferred upon the magistrate's court as "original judicial jurisdiction" and added that, apart from the limitation placed upon its power to vary an administrative decision, "the court was to have a very wide discretion to decide what should be done …" (also at 808-9). 32 I do not see either Parasiliti or Trist as authority for the proposition that, for the purpose of the current appeal provisions, the powers of the Local Court to disallow a decision of the RTA or to make any other order which seems just are confined to the exercise of such discretion as the RTA had when it made the decision appealed against. Nor do I consider that that proposition flows from any statement of general principle to be found in Turnbull v NSW Medical Board. 33 It follows that Mr Johnson's argument about the powers of the Court under clause 6(7) of the regulation in the present case, apart from the power of variation, is made good. It was open to the magistrate to disallow the RTA's decision to suspend the plaintiff's licence, or to make any other order which seemed just in the circumstances, on the basis of the material which the plaintiff presented to him. By not dealing with that material, his Worship failed to exercise the jurisdiction entrusted to him, and the plaintiff is entitled to relief in this Court: cf Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397, per Priestley JA at 418-9. The matter must be remitted to the Local Court to be heard and determined according to the law as I have stated it. 34 My decision obviates the necessity to deal with a separate matter which Mr Johnson argued, arising from the RTA's conduct in informing the plaintiff by its letter of 14 July 2001 that he had a right of appeal and in failing to argue before the magistrate the jurisdictional question which it raised in this Court. I shall consult the parties about the formal orders which should be made and, if necessary, hear argument on costs. I stayed the suspension of the plaintiff's licence until further order of this Court, and the parties may wish to consider what should be done pending the resumption of the hearing in the Local Court. ********** Last Modified: 08/23/2002 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.