Reported Decision : 58 NSWLR 240 New South Wales Court of Appeal CITATION : RTA of NSW v Wilson & Anor [2003] NSWCA 279 HEARING DATE(S) : 24/09/03 JUDGMENT DATE : 3 October 2003 JUDGMENT OF : Meagher JA at 1; Ipp JA at 16; Foster AJA at 17 DECISION : 1. Appeal allowed; 2. Orders of Hidden J set aside; 3. In lieu thereof, that the summons before Hidden J be dismissed with costs; 4. The respondent to pay the costs of the appeal, but to have a certificate under the Suitors' Fund Act. CATCHWORDS : MOTOR VEHICLES: Suspension of driver's licence - Whether right of appeal conferred by Road Transport (General) Regulation 1999 - meaning of "decision" - Jurisdiction of Local Court. LEGISLATION CITED : Road Transport (Driver Licensing) Act 1998 Roads and Traffic Authority of New South Wales PARTIES : v Kim Wilson & Geoffrey Edward Bradd FILE NUMBER(S) : CA 40743 of 2002 COUNSEL : A: T Lynch R1: P Johnson QC, K Rees SOLICITORS : A: Hunt & Hunt R: Milne Berry & Berger LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC 13407/01 FILE NUMBER(S) : LOWER COURT Hidden J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40743 of 2002 MEAGHER JA IPP JA FOSTER AJA Friday, 3 October 2003 ROADS AND TRAFFIC AUTHORITY of NEW SOUTH WALES v KIM WILSON & Anor FACTS The appellant, the Roads and Traffic Authority of New South Wales, appealed from a judgment of Hidden J, who reversed a Magistrate's decision to dismiss, for want of jurisdiction, an appeal against a suspension of the respondent's driving licence. In an application for declaratory and prerogative relief, Hidden J held that the learned Magistrate should have embarked on an examination, inter alia , of the good character and driving history of the respondent and other extenuating circumstances. On appeal, the Roads and Traffic Authority contended that there was no jurisdiction in the Local Court to do so. HELD per Meagher JA, allowing the appeal (Ipp JA and Foster AJA agreeing): The respondent had no right appeal against anything but a "decision". 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 (NSW), the suspension occurred automatically on the incurring of the demerit points. There was no "decision"; therefore, there was nothing to appeal against. [13-14] ORDERS 1. Appeal allowed; 2. Orders of Hidden J set aside; 3. In lieu thereof, that the summons before Hidden J be dismissed with costs; 4. The respondent to pay the costs of the appeal, but to have a certificate under the Suitors' Fund Act. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40743 of 2002 MEAGHER JA IPP JA FOSTER AJA Friday, 3 October 2003 ROADS AND TRAFFIC AUTHORITY of NEW SOUTH WALES v KIM WILSON & Anor Judgment 1 MEAGHER JA: This is an appeal by the Roads and Traffic Authority against Mr Wilson, the suspension of whose driving licence was the subject of a judgment by Hidden J. 2 The relevant facts can be simply stated. From 24 September 1997 to 9 September 2000 Mr Wilson incurred 13 demerit points. On 23 September 2000 he incurred a further demerit point. On 6 October 2000 he was notified that his driving licence was suspended for 3 months, to commence on 10 November 2000. On 13 October he elected to be of good behaviour for 12 months commencing 10 November 2000. Between 1 February 2001 and 25 June 2001 he incurred a further 4 demerit points. On 14 July 2001 the appellant Roads and Traffic Authority notified a further six months' licence suspension commencing on 18 August 2001. On 8 August 2001 he purported to appeal to the Local Court against this suspension. On 29 August 2001 the appeal was heard and dismissed. 3 The grounds of his appeal were: "Licence required for work and family commitments. Good character and driving history. Extenuating circumstances regarding recording of offence." 4 The learned Magistrate did not, apparently, deal with any of these three grounds, and dismissed the appeal, it would appear, on the ground of lack of jurisdiction. However, in an application for declaratory and prerogative relief, Hidden J held that the Magistrate erred in not embarking into an examination of these three matters. In this appeal, the Roads and Traffic Authority contended that there was no jurisdiction in the Local Court to do so. 5 The statutory background must be set out. Section 14 of the Road Transport (Driver Licensing) Act 1998 is (in part) in the following form: s.14 Demerit Points Register (1) The Authority must maintain a demerit points register in accordance with this Act and the regulations. (2) The Authority must record, in the demerit points register, against a person the number of demerit points specified in the regulations if the person: (a) is convicted, or found guilty, of an offence specified in the national schedule of demerit points or any other offence specified in the regulations, or recognised, under section 15, or (b) pays the penalty specified in a penalty notice issued to the person in respect of the offence, or (c) has not paid the penalty specified in a penalty notice issued to the person in respect of the offence, the person has not elected to have the matter dealt with by a court and the time for the person to have the matter so dealt with has lapsed. (3) Demerit points recorded against a person (whether or not a person holds an Australian driver licence) must be taken into account if the person subsequently obtains or applies for a driver licence within 3 years of the date of the offence for which the demerit points are incurred. (4) For the purposes of subsection (3), if a person applies for a driver licence (including for the renewal of a licence) having incurred 12 or more demerit points within a 3 year period ending on the day on which the applicant last committed an offence for which demerit points have been recorded against the applicant: (a) the Authority may refuse the person's application and take action under section 16A, or (b) the Authority may grant the licence and take action under section 16 or 16A. 6 Section 15 of the same Act says (again, in part): s. 15 Offences for which demerit points are incurred (1) The regulations may prescribe: (a) the offences (relating to the driving or use of motor vehicles), and the number of demerit points incurred for each offence, that comprise the national schedule of demerit points, and (b) additional offences (relating to the driving or use of motor vehicles) created under a law of this State for which demerit points may be incurred and the number of demerit points incurred for each offence. (2) The Authority may, by notice published in the Gazette: (a) recognise offences (relating to the driving or use of motor vehicles) created under a law of this State or another jurisdiction that are not on the national schedule of demerit points as being offences for which the Authority will record demerit points against persons, and (b) specify the number of demerit points incurred for each of those offences. (3) The Authority may, by notice published in the Gazette, revoke the recognition of an offence under subsection (2) or amend the number of demerit points specified for an offence. Any such revocation or amendment takes effect on the day the notice is published in the Gazette, or on such later day as may be specified in the notice. (4) A regulation or a notice under this section may specify different numbers of demerit points for the same offence in different circumstances (whether or not the offence is contained in the national schedule of demerit points). 7 Section 16 says, insofar as is relevant: s. 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. 8 [In subsection (2) it will be noted that the verb is "must" not "may"]. (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 incurred within previous 3 years Period of licence suspension 12 to 15 3 months 16 to 19 4 months 20 or more 5 months (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 [This was the subsection utilized by Mr Wilson.] (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 [Again, the verb, it will be observed, is "must" not "may".] 11 The law about appeals concerning driver licensing is contained in Division 3 of schedule 2 of the Road Transport (General) Regulation 1999. Regulation 6(1)(c) says: "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." 12 Sub-regulation (7) of the same Regulation is as follows: "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." 13 The central point is clear: Mr Wilson has no right to appeal against anything but a "decision": that is what Regulation 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, 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. 15 The orders should be: 1. Appeal allowed; 2. Orders of Hidden J set aside; 3. In lieu thereof, that the summons before Hidden J be dismissed with costs; 4. The respondent to pay the costs of the appeal, but to have a certificate under the Suitors' Fund Act . 16 IPP JA: I agree with Meagher JA. 17 FOSTER AJA: I agree with Meagher JA. ***** Last Modified: 10/09/2003 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.