New South Wales Supreme Court CITATION : Kosseris v RTA of NSW [2006] NSWSC 551 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 24/05/2006 JUDGMENT OF : McDougall J at 1 EX TEMPORE JUDGMENT DATE : 05/24/2006 DECISION : See paras [46] - [52] of judgment CATCHWORDS : COMMON LAW - STATUTORY CONSTRUCTION - Road Transport (Driver Licensing) Act 1998 - whether suspension of driver's licence under s 33(1) has the effect that demerit points incurred pursuant to s 15 for the relevant offence are "taken to be deleted" by s 16(7) - whether such demerit points available to found subsequent suspension under s 16 LEGISLATION CITED : Acts Interpretation Act 1901 (Cth) The Road Transport (Driver Licensing) Act 1998 PARTIES : Anthony John Kosseris (Plaintiff) Roads & Traffic Authority of New South Wales (Defendant) FILE NUMBER(S) : SC 30107/05 COUNSEL : J E Rowe (Plaintiff) N Perram (Defendant) SOLICITORS : Norman Waterhouse (Plaintiff) I V Knight, Crown Solicitor (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST McDOUGALL J Wednesday 24 May 2006 Ex tempore (revised 25 May 2006) 30107/05 ANTHONY JOHN KOSSERIS v ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES JUDGMENT 1 McDOUGALL J: The Road Transport (Driver Licensing) Act 1998 (the Act) provides, among other things, for the issue, suspension and cancellation of drivers' licences. Licences may be suspended under s 16 if sufficient "demerit points" for various prescribed offences are incurred. With some limited exceptions the s 16 scheme is automatic. Licences may also be suspended or cancelled under s 33 for certain speeding offences. Action under s 33 is at the discretion of the defendant (the RTA). In some cases, a speeding offence will result in both the incurring of demerit points for the purposes of s 16 and suspension under s 33. The question for decision is whether, in those circumstances, the demerit points for the offence are, in effect, wiped out by the s 33 suspension. Background 2 The plaintiff (Mr Kosseris) has an appalling driving record. Relevantly, it includes a number of offences committed between 2003 and 2005. (The word "committed" is inaccurate but sufficient, and convenient, in circumstances where it is not disputed that the relevant points were properly recorded on the register kept under s 14 of the Act for, among others, the offences to which I am about to refer): (1) On 24 October 2003, Mr Kosseris committed the offence of exceeding the speed limit by more than 30 kilometres per hour but less than 45 kilometres per hour at a speed greater than 130 per hour. This carried with it 4 demerit points. (2) On 2 August 2004, Mr Kosseris disobeyed a traffic control light. This carried with it 2 demerit points. (The reference to 2 demerit points comes from the unchallenged evidence of the RTA's officer, Mr Nicoletti, in paragraph 16 of his affidavit sworn 11 January 2006. However, other documents likewise unchallenged, suggest that in fact 3 demerit points were inflicted for this offence. Nothing turns on this.) (3) On 2 September 2004, Mr Kosseris committed the offence of exceeding the speed limit by not more than 15 kilometres per hour. This carried with it 2 demerit points. (4) On 6 May 2005, Mr Kosseris committed the offence of exceeding the speed limit by more than 45 kilometres per hour. This carried with it 6 demerit points. 3 On 26 February 2004, the RTA wrote to Mr Kosseris notifying him that his licence would be suspended for three months from 1 April 2004. It is clear that this was a suspension under s 33 of the Act. The speeding offence relied upon to found the suspension was that of 24 October 2003 (for which, as I have said, Mr Kosseris had incurred 4 demerit points). 4 On 15 June 2005 the RTA wrote to Mr Kosseris again, notifying him that his licence would be suspended for nine months from 20 July 2005. That suspension was composed of two elements. One element was, pursuant to s 33, a suspension for six months for the speeding offence of 6 May 2005. The other element was a further suspension for a period of three months for accumulated demerit points: clearly, pursuant to s 16(2). The demerit points included those for the offence of 24 October 2003 and those for the offence of 6 May 2005. 5 Mr Kosseris' case is that that the demerit points for the offence of 24 October 2003 were wiped out by the suspension for it pursuant to the first notice, that of 26 February 2004. If that were so, he had not by 15 June 2005 incurred sufficient (current) demerit points to trigger the operation of s 16(2). The proceedings 6 By his amended summons filed on 9 December 2005, Mr Kosseris claimed, relevantly, the following relief: "3. Declaration that a period of suspension in section 16(7) of the Road Transport (Driver Licensing) Act 1998 (the "Act") includes a period of suspension under Section 33 of the Act. 4. That the demerit points in relation to an offence of 24 October 2003 recorded on the Demerit Points Registrar [sic] by the Roads & Traffic Authority ("RTA") against the plaintiff be taken to be deleted from 1 April 2004. 5. As a matter of law "suspension" in Section 16(7) of the Road Transport (Driver Licensing) Act 1998 refers to a suspension under Sections 33 and 33A of the said Act"." 7 That relief, if granted, would not be sufficient to dispose entirely of the issues between Mr Kosseris and the RTA. Firstly, as I shall recount, Mr Kosseris submitted that the second suspension was invalid not only because it took into account the speeding offence of 24 October 2003, but also because it took into account the speeding offence of 6 May 2005, in circumstances where both had been the subject of separate s 33 suspensions. 8 Secondly, the relief claimed does not deal with the consequences (for either suspension) if Mr Kosseris' case is upheld. 9 To meet those problems, the RTA offered an undertaking inter partes as follows: " Kosseris v RTA Defendant's Inter partes undertaking 1. The Defendant undertakes that in respect of notice dated 26 February 2004 it will amend the register maintained by it under s 14 of the Road Transport (Driver Licensing) Act 1998 so that it records that all demerit points recorded therein against the Plaintiff as at 26 February 2004 are taken to be deleted as and from the commencement of the period of suspension referred to in the notice, that is, as and from 1 April 2004. 2. The Defendant undertakes that in respect of notice dated 15 June 2005 it will amend the register maintained by it under s 14 of the Road Transport (Driver Licensing) Act 1998 so that it records that all demerit points recorded therein against the Plaintiff as at 15 June 2005 will be taken to be deleted as and from the commencement of the period of suspension referred to in the notice. Notes : 3. The period of suspension in (2) has not yet commenced because of the Plaintiff's appeal to the Local Court. 4. If the Local Court decides not to impose a period of suspension then the undertaking in (2) will not come into effect." 10 The parties very sensibly accepted that this undertaking would deal adequately with the problems that I have identified (if, having regard to my decision, they were to arise), and that it was therefore unnecessary for Mr Kosseris to seek further to amend the summons. The issue 11 The question for decision is whether, upon the commencement of the suspension pursuant to the notice of 26 February 2004, the demerit points incurred by Mr Kosseris for the offence of 24 October 2003, on which that suspension was founded, were, by virtue of s 16(7) of the Act, "taken to be deleted." 12 If they were to be taken to be deleted, then they were not available to found the s 16 component of the suspension notified to Mr Kosseris by the notice of 15 June 2005. 13 Further, and for the same reason, Mr Kosseris submitted that on the commencement of the s 33 suspension notified to him on 15 June 2005, the 6 demerit points for the foundational speeding offence (that of 6 May 2005) were likewise taken to be deleted. It followed, he said, that they were not available for the s 16 suspension notified by the same notice, although clearly they had been taken into account (as had been the points for the offence of 24 October 2003) in calculating the relevant total. The legislation 14 I set out sections 3, 14, 15, 16, 18 and 33 of the Act: "3 Objects of Act The objects of this Act are: (a) to provide for the establishment of a driver licensing system, in accordance with agreements scheduled to the National Road Transport Commission Act 1991 of the Commonwealth, as part of a uniform national approach to driver licensing, that is designed to provide: (i) uniform licence classes for the drivers of motor vehicles, and (ii) uniform attendant eligibility criteria for those licence classes, and (b) to define the responsibilities of people in respect of driver licensing, and (c) to provide a means of identifying persons as licensed drivers of motor vehicles, and (d) to facilitate the regulation of drivers of motor vehicles in the interests of safety and efficiency and law enforcement generally, and (e) to provide a means of enforcing safety standards relating to the driving of motor vehicles on roads and road related areas, and (f) to facilitate: (i) the recovery of expenses incurred in administering the driver licensing system, and (ii) the collection of fees payable under this Act or the regulations, and (g) to provide for other matters relating to learner licences and provisional licences, and (h) to improve road safety and transport efficiency and reduce the costs of administering road transport. … Division 2 – Demerit points system 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. (5) Without limiting any other provision of this section, the Authority may correct any mistake, error or omission in the demerit points register, subject to any requirements of the regulations. 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). (5) An offence is taken to be recognised under this section on the day the notice is published in the Gazette, or on such later day as may be specified in the notice. (6) A revocation or amendment under subsection (3) does not affect any demerit points incurred before the revocation or amendment takes effect. 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. (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 (6) If a person who has been served with a notice of licence suspension does not make an election under subsection (8), the person's driver licence is suspended for the period applicable under this section from the date specified in the notice. (7) On the commencement of a period of suspension or a period of good behaviour (see subsection (8)), all demerit points recorded in the demerit points register against the person at the date of the notice are taken to be deleted. (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) 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) On the commencement of the period of suspension referred to in subsection (9), all demerit points recorded in the demerit points register against the person at the date of the notice, and taken into account for the purpose of the notice, are taken to be deleted. (11) Despite subsections (7) and (10), demerit points incurred by a person: (a) after the person is served with a notice of licence suspension but before the suspension begins, or (b) if the person makes an election in accordance with subsection (8), after the person is served with the notice of licence suspension and before the 12 months' period of good behaviour begins, are not taken to be deleted under this section when the suspension or period of good behaviour begins and are to be taken into account for the purposes of subsection (2) from the end of the period of licence suspension or period of good behaviour. (12) Nothing in subsection (7) or (10) prevents the Authority from retaining records of deleted demerit points incurred by any person. … 18 General matters relating to demerit points penalties (1) A period of licence suspension under section 16 is in addition to any period of licence suspension imposed under another law of this State. (2) Demerit points recorded in the demerit points register against a person are not affected by a period of licence suspension or disqualification imposed by a court in Australia, or under another law in force in this State. (3) Nothing in this section prevents the regulations from requiring the Authority to take into account any prior period of suspension ended by a disqualification when determining whether to issue a new driver licence to a person who has completed any such period of disqualification. (4) The Authority may decide to suspend or cancel a driver licence under this Division without the holder of the licence having been provided an opportunity to show cause why the licence should not be suspended or cancelled. … 33 Cancellation or suspension of driver licence by Authority (1) A driver licence may be cancelled or suspended by the Authority because of an alleged speeding offence, if, in respect of the alleged offence: (a) the holder has paid a penalty prescribed for the purposes of Part 5.3 of the Road Transport (General) Act 2005 , or (b) an order has been made under Division 4 of Part 3 of the Fines Act 1996 against the holder. (2) The Authority may decide to cancel or suspend a driver licence under this section without the holder having been provided an opportunity to show cause why the licence should not be cancelled or suspended. (3) If a person's driver licence is cancelled by the Authority under this section, the Authority may refuse to issue the person with any further licence for a period determined by the Authority and specified in a notice served on the person by the Authority. (3A) If a person's driver licence is suspended by the Authority under this section, the person's licence is suspended for such period as may be determined by the Authority and specified in a notice served on the person by the Authority. (4) Nothing in this section limits any discretion of the Authority to decline to issue a driver licence to a person. (5) In this section:"speeding offence" means an offence that involves exceeding a speed limit fixed by or under the Road Transport (Safety and Traffic Management) Act 1999 and that is prescribed for the purposes of this section." 15 Although s 33A was referred to in each of the notices, nothing turns on it and I shall not take up space by setting it out. Submissions 16 Mr Rowe of counsel, who appeared for Mr Kosseris, submitted that the word "suspension" should be given the same meaning wherever it appeared in the Act. Thus, he submitted, the reference in s 16(7) to "period of suspension" should be construed to apply to a period of suspension under any provision of the Act. 17 In Mr Rowe's submission, the point was brief and was not one that was improved by elaboration. 18 Mr Rowe did, however, submit that any other construction of the words "period of suspension" in s 16(7) would produce anomalous consequences and would expose drivers to double jeopardy. Indeed, Mr Rowe submitted, Mr Kosseris had been exposed to, and had suffered, double jeopardy in this case. 19 Mr Perram of counsel, who appeared for the RTA, submitted that on the proper construction of s 16, the words "period of suspension" in subs (7) applied, as did all other references in s 16 to suspension, only to a suspension imposed under or by s 16. 20 He submitted further that s 16 (or the scheme of which it formed part) and s 33 were directed to different ends and were intended to work concurrently and not in the alternative. 21 Mr Perram supported his submissions by reference to the history of the Act: in particular, to the circumstance that (as is shown by s 3 and by the Second Reading Speech) it was designed to implement in this State an intergovernmental agreement known as the National Driver Licensing Scheme Principles. 22 In this context Mr Perram submitted that Pt 4 of the Act (in which s 33 is found) did not form part of, or had no equivalent or foundation in, that national scheme; whereas s 16 (which is found in Pt 2 Div 2 of the Act) did. 23 Mr Perram also relied, in this context, on s 18(1). He submitted, by reference to s 12 of the Acts Interpretation Act 1901 (Cth) that "another law of this State" included s 33. (I interpose that the Acts Interpretation Act is the primary interpretational tool for the Act, by reason of s 5 of the Act. Indeed, this was something on which Mr Perram relied in support of his submissions.) 24 Mr Perram also referred to what he said were anomalous consequences if the plaintiff's argument were to be accepted. Those consequences included that s 16 would be otiose as to speeding offences caught by s 33(5): ie, speeding offences that enliven the discretion given by s 33. Analysis The objects of ss 16 and 33 25 The starting point, I think, is to identify what it is at which each of the sections is aimed. 26 When s 16 is considered in context, it may be seen to be aimed at discouraging repetitive driving offences - consistent bad driving - in circumstances where the individual offences are not, of themselves, seen to be so grave as to justify suspension. Section 16 does not, of itself, say anything about the character - serious or not - of the offences that give rise to the demerit points with which the section is concerned. That issue is dealt with only to the extent that different offences incur different amounts of demerit points. That in turn follows from the regulations, not from s 16 itself: see s 15(1). 27 Thus, the operation of s 16 is automatic, without right of appeal; and with limited exceptions (including s 16(3)) involves no element of discretion. In passing, I note that s 16(3), and ss 14(4) and 16A to which it refers, have no equivalent in the national scheme, at least as originally agreed. Whether s 16(3) and those other sections reflect subsequent changes to the national scheme is something that counsel were unable, in the time available, to demonstrate. 28 By contrast, s 33 is directed specifically at what, clearly, the legislature has decided are serious offences. The RTA is given a discretion to impose a period of suspension for any such offence, even if it is isolated or indeed unique. 29 Thus, the operation of s 33, both as to whether any suspension should be imposed and, if yes, what, is discretionary. And there is a right of appeal. 30 Those considerations seem to me to deal, to an extent at least, with the "double jeopardy" argument. They are consistent with the objects set out in s 3 (d), (e) and (h) of the Act. More importantly, they seem to me to throw light on the statutory purpose, bearing in mind that the process of construction should, so far as possible, give effect to the purpose as discerned from the terms of the legislation. The language of s 16 31 It is clear that all references to suspension in s 16, except the reference in subs (7), are expressly or by necessary implication references to suspension under the section. Indeed, if one puts aside subs (7) and subs (10), all references to suspension are to suspension under subs (2) or, in the case of subs (11)(a), subss (2) and (9). 32 Thus, in s 16(2) the RTA is required to give a notice of licence suspension to any holder of a driver's licence who incurs 12 or more demerit points within the relevant three year period. (The exception in subs (3) can be put to one side.) 33 In subs (4), the reference to "notice of licence suspension" is clearly a reference to the notice referred to in subs (2). 34 In subs (5), the period of licence suspension is explicitly that imposed under subs (2). 35 In subs (6), the reference to notice of licence suspension is by necessary implication a reference to the notice referred to in subs (2). Further, the reference to a licence being "suspended for the period applicable under this section" is again an explicit acknowledgment of the connection. 36 Again, in subs (8) the "notice of licence suspension" referred to is, necessarily, that served pursuant to subs (2). 37 Sub section (10) limits its operation by reference to the suspension referred to in subs (9). 38 Sub section (11)(a), where it refers to a notice of licence suspension, certainly refers back to subs (2) and may also refer to subs (9). Again, in subs (11)(b), the notice of licence suspension referred to is that under subs (2). 39 Prima facie, therefore, one would expect the suspension referred to in subs (7) to be one arising under s 16; indeed, because of subs (10), to one arising under subs (2). 40 That prima facie view is reinforced by the consideration that, as I have said, s 16 appears in Pt 2, Div 2: a group of self contained provisions dealing only with the topic of demerit points: what they are; how they are incurred; and what are the consequences of incurring them. 41 Suspension by operation of s 16(2) is for the accumulation of points, not for the underlying offences. By contrast, suspension under s 33 is for the particular offence that engenders the discretion. That the offence also carries with it demerit points is irrelevant to the operation of s 33. 42 With the exception of subs (3) (which again may be put aside for present purposes), s 16 does not involve any decision making on the part of the RTA. Suspension is automatic: by operation of the Act. Again with the exception of subs (3), the functions of the RTA are purely mechanical. 43 By contrast, s 33 does require the RTA to make a substantive decision. The suspension under that section is qualitatively different from one under s 16: both as to the means by which it is imposed and as to the availability of redress. 44 Thus, whilst I accept that the word "suspension" should be given a consistent meaning throughout the Act, it does not follow that the nature of suspensions under ss 16 and 33 are, or should be, identical. 45 Further, and in relation to Mr Rowe's primary submission, it is not sufficient to say that, because the word should be given the same meaning throughout the Act, a reference in s 16(7) to suspension is a reference to suspension howsoever arising. The question is whether, assuming the starting point, the proper construction of s 16(7) is to that effect. Indeed, although I have said "assuming the starting point", that is, I think irrelevant to the process of construction. Decision 46 Taking into account the matters to which I have referred, and bearing in mind the differing objectives of ss 16 and 33, I conclude that in s 16(7) the words "a period of suspension" refer only to a period of suspension imposed (by operation of law) through the operation of s 16(2). They do not refer also to a period of suspension imposed (by the exercise of discretion on the part of the RTA) under s 33. Conclusion 47 On the view to which I have come, it is unnecessary to deal with the other submissions put by Mr Perram and I shall not do so. 48 It follows from what I have said that the amended summons should be dismissed, and I so order. 49 I add that, in case it is not otherwise plain, nothing in my reasons or orders is in any way relevant to the question that will be required to be decided in connection with Mr Kosseris' application to a Local Court for review of the second s 33 suspension notified to him by the letter of 15 June 2005. Costs 50 The defendant asks for its costs of the proceedings. Mr Rowe opposes that, submitting that the question was one of public interest; that this was, in a sense, a test case; and that the question of construction was not easy. 51 I accept the first and the third of those points. However, there was no agreement between the parties that the proceedings were to be conducted as a test case. Further, the question that I have decided was agitated in correspondence between the parties, with the plaintiff putting his views to the RTA and the RTA putting its views back. 52 In those circumstances, I see no reason to depart from the prima facie position that costs should follow the event. I therefore order the plaintiff to pay the defendant's costs of the proceedings. ****** 23/06/2006 - incorrect date on cover sheet - correct date is 24 May 2006 - Paragraph(s) cover sheet date 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.