Lochner v NSW Roads and Maritime Services [2017] NSWSC 974

Supreme Court New South Wales

Medium Neutral Citation: Lochner v NSW Roads and Maritime Services [2017] NSWSC 974 Hearing dates: 18 July 2017 Date of orders: 18 July 2017 Decision date: 18 July 2017 Jurisdiction: Common Law Before: Wilson J Decision: (1) Time in which to file the application for leave to appeal is extended to 21 September 2016. (2) Leave to appeal refused. (3) Costs in favour of the defendant on an ordinary basis. Catchwords: COMMON LAW – application for leave to appeal decision of the Local Court – relevant decision dismissed an appeal to the Local Court against a decision of the Roads and Maritime Service NSW to withdraw visiting driver privileges – basis upon which the application brought – question of jurisdiction to hear application – nature of magistrate's task in the Local Court – application misconceived – no point of principal Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Local Court Act 2007 (NSW) Road Transport (Driver Licensing) Act 1998 (NSW) Road Transport (Driving Licensing) Regulation 2008 (NSW) Supreme Court Rules 1970 (NSW) Category: Principal judgment Parties: Plaintiff – Clive Rodney Lochner Defendant – Roads & Maritime Services Representation: Solicitors: Plaintiff – Self represented litigant in person Defendant – Mr Brett Hearnden from Hunt & Hunt lawyers File Number(s): 2016/283165 Publication restriction: None

EX TEMPORE Judgment 1. WILSON J: Listed before the Court today is an application for leave to appeal a decision of the Local Court, brought by the plaintiff, Clive Lochner. The decision of the Local Court against which Mr Lochner seeks leave to appeal is one made exactly a year ago, on 18 July 2016, to dismiss an appeal brought by the plaintiff against the withdrawal by Roads and Maritime Services NSW ("RMS") of Mr Lochner's driving privileges in this State. 2. As the holder of a driving licence issued in Victoria the plaintiff was entitled to drive in NSW pursuant to clause 99(1)(a) of the Road Transport (Driving Licensing) Regulation 2008 (NSW). That privilege, however, was one which could be withdrawn in certain circumstances, including in circumstances where the relevant authority, the RMS, formed the reasonable opinion that the visiting driver was not a fit and proper person to drive a motor vehicle in NSW: cl 99(4)(f) of the Regulation. 3. On 31 March 2016 the defendant sent the plaintiff a "Show Cause" notice advising him that consideration was being given to withdrawing his driver privileges on the basis that he was not a fit and proper person to drive. He was invited to make any submissions as to his propriety as a driver within a period of 21 days from the date of the correspondence. 4. Mr Lochner maintains that he did not receive the show cause notice, either because he had been away (as he told the Local Court on 18 July 2016) or because of a withdrawal of mail delivery services due to an unpaid post box fee, as he said at [14] of his affidavit to this Court of 16 March 2017. 5. Having not received any representations following service of the show cause notice, the RMS proceeded to determine the question of the plaintiff's fitness as a driver, determining that he was not a fit and proper person to drive a motor vehicle in NSW. On 12 May 2016 the defendant sent a notice to the plaintiff advising him of its determination, and of the withdrawal of his visiting driver's privilege from 1 June 2016 to 1 October 2016 pursuant to cl 99(4)(f) of the Regulation. The grounds upon which the decision was made was that [the plaintiff was] "not a fit and proper person to drive a motor vehicle in this State in view of the offences committed within a three year period as indicated in [his] traffic record". 6. A copy of the traffic record referred to in the notice and attached to it is not in evidence in these proceedings, although other later copies of the plaintiff's traffic record, additionally showing the withdrawal of privileges, are. The traffic record can best be described as extensive. 7. The plaintiff sought to appeal the decision of the RMS, filing an Application to the Local Court pursuant to s 45 of the Local Court Act 2007 (NSW). Although the plaintiff maintains that his appeal was heard during a mention of the matter, it is clear from the Local Court's bench sheets, in evidence as annexure A to the affidavit of Emma Nicole Swords of 18 April 2017, that the appeal came on for hearing on 18 July 2016 and was heard that day. 8. Having given the plaintiff an opportunity to be heard about his driving history, and specifically to advance any mitigating feature as to the accrual of traffic offences, the Local Court Magistrate dismissed the plaintiff's appeal. It is that decision which is in issue before this Court.