CITATION: Pulo v RTA [2005] NSWLC 7
JURISDICTION: Civil
PARTIES: Louis Pulo
RTA
FILE NUMBER:
PLACE OF HEARING: Parramatta
DATE OF DECISION:
11/26/2004
MAGISTRATE:
CATCHWORDS: Drivers License - RTA - Demerit Points - Accumulation
LEGISLATION CITED: Road Transport (Driver Licensing) Act 1998 s 14 (2), s 16 (5)
Abdullah v DPP unreported, Hulme J NSWSC 11 Oct 04
CASES CITED: R v Miller [1986] 2 Qd R 518 (QCCA)
Smith v Wyong Shire Council [2003] NSWCA 322
State of NSW v Paige [2002] NSWCA 225
REPRESENTATION: P C Proctor Appellant
R O'Neill
ORDERS:
[2]
On 1/1/03 Mr Pulo committed two speeding offences. The first (Offence 1) involved him exceeding the speed limit by more than 45kph. This offence attracted 12 points and would in the normal course of events result in a suspension of Mr Pulo's licence. Were he to be convicted of this offence by a court, it would have been obliged to disqualify his driver licence for not less than 6 months Road Transport (Safety & Traffic Management) (Road Rules) Reg, reg 154(3).. The second offence (Offence 2) involved exceeding the speed limit by between 15 and 30 kilometres per hour, and attracted six points, with no attendant mandatory disqualification on conviction. In both cases the offences attracted double points because they took place on New Year's Day.
Prior to 1/1/03 Mr Pulo had already accumulated 12 demerit points. On 23/1/03 the RTA issued him with a notice of suspension covering a number of offences occurring on and before 7/9/02. However, this suspension was not implemented as Mr Pulo exercised his option to take a good behaviour license Road Transport (Driver Licensing) Act 1998, s16(8).. The effect of this was that at 26/2/03 all demerit points recorded against Mr Pulo's name in the register as at 23/1/03 were taken to be deleted Road Transport (Driver Licensing) Act 1998, s16(7)..
Pulo v RTA [2005] NSWLC 7 | Case summary | Zoe
It appears however, that the points in respect of the two offences of 1/1/03 had not been recorded in the register as at 23/1/03 when the notice of suspension issued. This is not particularly surprising. Under the Road Transport (Driver Licensing) Act 1998, s. 14 (2), points are to be recorded on the occurrence of any one of three different events, namely, where the driver
(a) is convicted of the relevant offence,
(b) pays the penalty in the penalty notice for the offence, or
(c) has not paid the penalty or elected court action and the time for such action has expired.
Consequently, it may take a considerable time before points in respect of a particular offence are recorded in the register, and any delay occasioned by the driver's action or inaction with respect to these matters is beyond the control of the RTA.
According to the RTA's driving record, which appears to be accepted by both parties as an accurate record of the driver's offences and points, the points in respect of Offence 1 were recorded in the register on 20/05/03, and the points in respect of Offence 2 were recorded in the register on 21/06/03. If this record is correct, these points were completely unaffected by the issue of the notice of 23/1/03, not having been recorded in the register at the date of issue of the suspension notice.
On 24/5/03 a second notice of suspension issued to Mr Pulo. This notice had nothing to do with demerit points (although they are noted on it), but was a discretionary suspension under s 33 of the Road Transport (Driver Licensing) Act 1998. Under that section a license may be cancelled or suspended by the RTA because of an alleged speeding offence if the holder has paid the prescribed penalty for that offence, as Mr Pulo had in respect of Offence 1 (and Offence 2). Under s33(3A), such a suspension is to be for such period as the RTA determines, in this case six months which, not unrealistically, corresponds to the period of mandatory disqualification on court conviction. It is noteworthy that the RTA has much wider power to determine the length of the suspension by reducing it, even to nil, than does the Local Court on conviction for this offence, just one of the many anomalies in the current traffic laws. It appears that Mr Pulo served this period of suspension without incident.
On 22/7/04 Mr Pulo committed a further speeding offence (Offence 3) attracting 2 demerit points, although this offence has little effect on the overall issues. Suffice it to say that on 24/8/04 Mr Pulo was issued with a further notice of suspension on the basis of 12+6+2 = 20 demerit points, being points incurred for each of Offence 1, Offence 2, and Offence 3. The suspension, in accordance with s 16(5) of the Road Transport (Driver Licensing) Act 1998, was for a period of 5 months. On 20/9/04 Mr Pulo lodged an appeal against the RTA's decision to suspend his driver licence.
It is worth observing that Offence 1 alone attracted 12 points. Without the commission of Offences 2 or 3 the RTA would still have been entitled to issue the notice of suspension of 24/8/04. On its own, that offence would have authorised a suspension of 3 months. Road Transport (Driver Licensing) Act 1998, s 16(5). In effect, the RTA suspended Mr Pulo on two different occasions for two separate periods for the same offence.
Is Accumulation Required?
To justify this course of action, the RTA relies on the scheme of the legislation which clearly provides for separate suspensions for particular speeding offences and for accumulated points. Reliance is also placed on s. 18 of the Road Transport (Driver Licensing) Act 1998, subsection (1) of which provides "A period of license suspension under section 16 is in addition to any period of license suspension imposed under another law of this State." But what do the words "another law of this State" meaning in this context? It seems to me that, in order to have any content, they must be referring to a law other than the Road Transport (Driver Licensing) Act, including any regulations made under that Act. That Act itself would not be "another" law.
And such a construction is not itself lacking in content. Drink driving offences, which carry automatic periods of suspension between the date of offence and the date of disposal, are contained in the Road Transport (Safety and Traffic Management) Act. Such suspensions would clearly be "imposed under another law this State."
A number of other factors need to be considered here. First, it would appear that accumulation of penalties (with the obvious exception of fines) requires legislative authority Abdullah v DPP, Unreported, Hulme J, NSWSC, 11 Oct 04.. Secondly, the usual common law principle that the law does not take account of parts of a day would naturally entail that two penalties imposed on the same day occur for legal purposes at the same time. See R v Miller [1986] 2 Qd R 518 (QCCA).
This produces some further anomalies with s 18(1) of the Road Transport (Driver Licensing) Act 1998. If the points suspension is imposed first in time, there is no other suspension for it to be "in addition to". I would suggest that, if both suspensions are imposed at the same time, the same concept obtains if the rule applied in R v Miller is also applied here. It is only if the excess speed suspension is applied first that there would be any suspension to which the points suspension could be added, and if the suggested construction of s 18(1) is correct, there is in this case no suspension imposed under another law of the State that might attract accumulation of suspensions. Taking account of all those circumstances, I think there is no statutory authority requiring the accumulation of points and excess speed suspensions incurred in respect of the same offence(s).
The Realities of Points Accumulation
As noted above, points may reach the RTA for recording in the register long after the offences in question. Obviously, the points cannot be recorded in the register before the RTA is aware of the existence of the relevant offence. Equally obviously, once the RTA becomes aware of the existence of the offences and the relevant points, it must be taken to be aware of them for all purposes. In fairness to the driver, the RTA should make all decisions with respect to a particular offence at the one time.
As the law apparently stands, and subject to the matters to be discussed below, the holder of an unrestricted driver license cannot appeal a points suspension of that license because such a suspension is mandatory and there is no decision of the RTA to be appealed from: RTA v Wilson [2003] NSWCA 279.. However, because the excess speed suspension is a discretionary matter under s 33, the driver is entitled to appeal against that suspension.
There are three possible scenarios. First, the RTA determines that there is a basis for a points suspension and a basis for an excess speed suspension. Logically, it cannot be aware of one basis without being at the same time aware of the other. It issues a single notice to the driver with respect to both suspensions. The driver may appeal the excess speed suspension, and seek to have it quashed, or perhaps made concurrent with the points suspension. In this scenario, Mr Pulo would have faced a potential 9 months suspension, being 6 months for the excess speed offence plus 3 months for the 12 points on his record as at 25/5/03. I leave aside the question whether the RTA has power to impose cumulative suspensions in these circumstances, merely noting that it does not appear to be obliged to do so. He might have persuaded a court on appeal to make the two terms concurrent, resulting in only 6 months suspension. Having accumulated only 8 points on the record since 24/5/03, he would not be facing any further points suspension.
Secondly, the RTA could determine the points suspension first and notify the driver thereof. The driver is bound to accept that suspension if it is not appellable. However, when the second excess speed suspension notice is sent to the driver, he or she may wish to appeal and seek some concession from the Local Court on the basis that the points suspension for the same offence has already been served in whole or in part. Here the driver would serve a 3 month suspension for 12 points, then a potential but variable 6 months for the excess speed offence, again with the prospect of the 6 months being reduced on appeal because of the 3 months already served. Again, having accumulated only 8 points on the record since 24/5/03, he would not be facing any further points suspension
Both of these scenarios preserve some right in the driver to ameliorate the harshness of cumulative suspensions. However, the course adopted by the RTA seems to negate any such right. A driver who is given notice of an excess speed suspension first may well be unaware of the prospect of a related points suspension. Even if he or she is aware of that prospect, there is no means of forcing the RTA to act, and a court is likely to be unsympathetic to reducing the excess speed suspension on the uncertainty of a future points suspension. The driver may therefore not seek to appeal the excess speed suspension, believing that is it is the full suspension applicable to the particular offence or offences. However when the notice of points suspension is later sent to the driver, if that suspension is not itself appellable, and the excess speed suspension has already been served, the driver is left with no remedy at all. Given that Parliament has deliberately retained the right of the driver to appeal the excess speed suspension, it must be highly doubtful whether it intended that that right could capable of being be rendered nugatory by the administrative actions of the RTA.
It seems to me that the only scenario that the RTA is legitimately entitled to adopt is the first. Whilst there may be some delay in the RTA becoming aware of the relevant offence or offences, once it is aware of them, it must be taken to be aware of them to all purposes and in fairness to the driver, it should deal with all the ramifications of a traffic offence at the one time.
Whether or not that conclusion is correct, there remains the issue of what remedy, if any, the driver may have in the present situation particularly since the decision of the Court of Appeal in RTA v Wilson. In his grounds of appeal, the driver refers to s 16 (3) of the Road Transport (Driver Licensing) Act 1998. That subsection provides:
" (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 the relevant offence was committed, or
(b) it would be more appropriate for the person to be dealt with under section 14 (4) and 16A."
It is conceded that s 16(3)(b) has no present application. However, it seems to me that this case falls within s 16(3)(a). Under that paragraph, whilst one must have regard to the date when the relevant offence was committed, that does not appear be the only factor to which regard must be had: certainly the words of the legislation to not make it the sole factor. No doubt if Parliament had wished that to be the case it could easily have said "having regard only to the date", but it did not do so. Clearly the date of the relevant offence or offences must be a factor in determining whether a decision of the RTA is unreasonable, but the substance of the paragraph is that the action of the RTA is "unreasonable", and that must allow consideration of other factors as well.
If, as I understand the general thrust of interpretation of "unreasonableness" in statutes, this term relates to the very high test of "Wednesbury" unreasonableness (ie the decision is one which no reasonable authority in possession of all relevant facts could have come to) Derived from the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, per Lord Greene MR, and as the term is consistently used in the Court of Appeal: see for recent examples Port Stephens Shire Council & Anor v Tellamist [2004] NSWCA 353; Smith v Wyong Shire Council [2003] NSWCA 322; State of NSW v Paige [2002] NSWCA 225, I am of the view that the paragraph is applicable. And this view is only strengthened when one has regard to the relevant dates. The notice of points suspension issued almost 20 months after Offence 1 and 15 months after the notice of the excess speed suspension for that same offence. Logically, of course, this meant that it issued 9 months after the excess speed suspension had been completed. And, as noted above, by virtue of the double points, Offence 1 alone provided the basis for both forms of suspension. In my view, there is no way that it could be said to be reasonable to delay the second suspension for 15 months when the effect of such a delay would be to ensure that the driver could not exercise any right of appeal against the second suspension. For an administrative body to so act as to frustrate a person's legal right of review of that body's actions must, with respect, be labelled "unreasonable".
Since I am, in effect, concluding that (at least in the present circumstances) the points suspension was appellable, to avoid possible circularity of reasoning, it should be noted that, even if points suspensions were generally appellable, the delays in acting in the present case would still make the RTA's decision to impose the points suspension when it did unreasonable. It could not, with respect, be reasonable for a decision maker which is aware of and has control over two consequences of an offence to so act as to separate those consequences for the person affected by such a lengthy period. As I have said before in these reasons, the RTA must be taken to become aware of an offence for all purposes at the same time, and it cannot simply choose to impose one consequence only at a particular time, reserving the other for later action, without good and sufficient reasons.
Under cl 6 of Sched 2 of the Road Transport (General) Regulation 1999 a driver may appeal to the Local Court as follows:
"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 ."
A regulation narrowing this right of appeal was disallowed in the Legislative Council, and I understand the above to remain the appropriate form of the right of appeal. This form was taken from the website of NSW Parliamentary Counsel http://www.legislation.nsw.gov.au on 18 Nov 04.
[3]
Because there was a decision that was unreasonable having regard to the date of the relevant offence(s), this case falls outside the scope of the Court of Appeal's decision in RTA v Wilson. The operation of, and the making of a decision under, s 16(3)(a) of the Road Transport (Driver Licensing) Act 1998 were not considered by the Court of Appeal in that case, and, applying the reasoning of Meagher JA, if the RTA has made a decision, that decision is open to appeal under Sched 2 cl 6(2) as set out above. But, of course, such an appeal will have any prospects of success only if, "having regard to the date when the relevant offence was committed", the RTA's decision was "unreasonable".
Cases like the present aside, this is not likely to be a very common occurrence. In fact, it is only where a single offence incurs both an excess speed suspension and takes the driver over the points limit that the considerations above really come into play at all.
I note that the RTA itself acknowledges the making of a decision, and the apparent continuation of the right of appeal on this basis in the notice of points suspension, which in the case of Mr Pulo's 24/8/04 notice expressly states,
"The RTA has considered whether it would be unreasonable to suspend your licence, having regard to the date on which ony of the offences were (sic) committed. It considers your suspension would not be unreasonable."
The RTA's decision in this case was unreasonable within the meaning of s 16(3)(a). It may therefore be disallowed. The court's powers on appeal are set out in subcl (7) as follows:
"(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 purposes 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."
However, to simply disallow outright the decision of the RTA would fail to take account of the fact that the points suspension was imposed in respect of 3 offences, not just Offence 1. Furthermore, such a disallowance would leave 20 points still on Mr Pulo's record, as none of the grounds for deleting those points would appear to have been made out. In such circumstances, there would be nothing to prevent the RTA from simply re-imposing the points suspension at a later date, especially if Mr Pulo were to accumulate any more points before 1 Jan 2006. Any such further points suspension would necessarily have to be the subject of separate appeal proceedings.
In those circumstances, it seems to me that the fairest course would to formally confirm the RTA's decision, but to vary the period of suspension to 2 months to date from today. However, that course is not open to me. Despite the scope of subcl 6(7), this Court on appeal can only vary a decision to the extent of doing what the RTA could have done because of the existence of subcl 6(8). The periods of suspension consequent on particular points levels are set out in the Road Transport (Driver Licensing) Act 1998, s 16(5) and the RTA has no power to vary those periods: consequently the Local Court has no power to vary them either. In those circumstances, the only available option is to disallow the RTA's decision to suspend Mr Pulo's licence.
[4]
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