New South Wales Court of Appeal CITATION : RTA of NSW v Hillyard & Anor [2003] NSWCA 284 HEARING DATE(S) : 24/09/03 JUDGMENT DATE : 3 October 2003 JUDGMENT OF : Meagher JA at 1; Ipp JA at 7; Foster AJA at 8 DECISION : Appeal dismissed with costs. CATCHWORDS : MOTOR VEHICLES: Suspension of driver's licence - Jurisdiction of Local Court - Quashing of suspension. CASES CITED : Roads and Traffic Authority of New South Wales v Kim Wilson [2003] NSWCA 279 Roads & Traffic Authority of New South Wales PARTIES : v Craig Hillyard and Magistrate of the North Sydney Local Court FILE NUMBER(S) : CA 40307 of 2002 COUNSEL : A: T Lynch R 1: J McLachlan SOLICITORS : A: Hunt & Hunt R: Carbone Anderson LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC 10279 of 2002 FILE NUMBER(S) : LOWER COURT Grove J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40307 of 2002 MEAGHER JA IPP JA FOSTER AJA Friday, 3 October 2003 ROADS AND TRAFFIC AUTHORITY of NEW SOUTH WALES v CRAIG HILLYARD & Anor FACTS Between April 1999 and October 2000, the respondent incurred ten demerit points for driving offences; three more were incurred in February 2001 when the respondent's car disobeyed traffic lights. On appeal to the Local Court, the February 2001 offence was proved, but not recorded, because it was found that that the respondent was not the driver of the car. That notwithstanding, the three demerit points still accumulated, and the respondent's licence was suspended. An appeal to the Local Court was allowed, and the learned Magistrate's decision was later affirmed by Adams J, whereupon the Roads and Traffic Authority appealed. HELD per Meagher JA, dismissing the appeal (Ipp JA and Foster AJA agreeing): 1. No question was taken on the jurisdiction of the Local Court, and both parties argued the case on the assumption that it existed. The assumption is doubtful, if not erroneous, but is made for the purposes of this case only. Roads and Traffic Authority of New South Wales v Kim Wilson & Anor [2003] NSWCA 279, referred to. [4] 2. On this assumption, there is no error to be detected in the learned Magistrate's decision. All that the learned Magistrate did was to decide that, notwithstanding the commission of a traffic offence, and the incurring of three demerit points, the suspension should be quashed. [5] ORDER That the appeal be dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40307 of 2002 MEAGHER JA IPP JA FOSTER AJA Friday, 3 October 2003 ROADS AND TRAFFIC AUTHORITY of NEW SOUTH WALES v CRAIG HILLYARD & Anor Judgment 1 MEAGHER JA: In this case the facts are: between 6 April 1999 and 16 October 2000 Mr Hillyard incurred 10 demerit points because of driving offences; on 19 February 2001 his car disobeyed traffic lights, an offence which incurred a further 3 demerit points. On an appeal to the Local Court, on 5 September 2001 the offence was found proved, but no conviction was recorded. The fact that no conviction was recorded, however, did not prevent the ruthless accumulation of demerit points. On 4 October 2001 he was advised that his licence had been suspended. He appealed to the Local Court against his suspension. That appeal was heard and allowed in the Local Court on 5 December 2001. The Magistrate's decision was affirmed by Adams J. The New South Wales Roads and Traffic Authority now seeks prerogative relief questioning the decision. 2 The statutory framework relevant to this appeal has been set out in Roads and Traffic Authority of New South Wales v Kim Wilson & Anor [2003] NSWCA 279. There is no need to repeat it. 3 The reason why the learned Magistrate disallowed the suspension was that Mr Hillyard was not the driver on the 19 February 2001 occasion. In all the circumstances he found that a suspension was an unnecessarily harsh punishment. 4 No question has been taken on jurisdiction. Both parties argued the case on the assumption that the Magistrate had jurisdiction to entertain the appeal. This assumption is doubtful, if not erroneous (see Wilson's Case). However, we are prepared to make the same assumption, but only for the purposes of this case. 5 If one makes this assumption, I cannot detect any error in the learned Magistrate's decision. The Authority submitted that the decision is inconsistent with (a) the fact that an offence had been committed, and (b) the operation of the demerit points system. It is, plainly, neither. Mr Hillyard clearly committed an offence, and equally clearly incurred three demerit points thereby. All the learned Magistrate decided was that, notwithstanding this, the suspension he otherwise would have suffered should be quashed. 6 I would dismiss the appeal with costs. 7 IPP JA: I agree with Meagher JA. 8 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. 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