Wojtulewicz v Roads & Traffic Authority

Roads and Traffic Authority of New South Wales v Wilson & Anor [2003] NSWCA 279 CASES CITED : RTA v Salim [2004] NSWSC 127 RTA v Wilson & Anor (2003) 58 NSWLR 240

Julian Wojtulewicz (plaintiff) PARTIES : Roads & Traffic Authority of New South Wales (1st defendant) Vivien Margaret Swain (Magistrate) (2nd defendant)

COUNSEL : M Lynch (plaintiff) RK Weaver - (1st defendant)

SOLICITORS : David Ian Brown, Solicitor (plaintiff) Hunt & Hunt (1st defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROGRESSIVE LIST

10841/05 - Julian Wojtulewicz v Roads & Traffic Authority of New South Wales & Anor

JUDGMENT 1 HIS HONOUR: The plaintiff, Julian Wojtulewicz, accumulated twelve demerit points, within the meaning of Division 2 of Part 2 of the Road Transport (Driver Licensing) Act 1998, between November 2001 and November 2004. By s 16 of that Act, this rendered him liable to suspension of his driver's licence for three months. The first defendant, the Roads and Traffic Authority of New South Wales ("RTA"), notified him by letter of 12 January 2005 that his licence was suspended for three months from 16 February 2005. 2 The plaintiff lodged an appeal to the Local Court, relying on cl 6 (1)(c) of the Road Transport (General) Regulation 1999, but the second defendant, the magistrate before whom the appeal was listed, held that there was no jurisdiction to entertain it. In this Court the plaintiff seeks a declaration that her Honour erred in so holding and an order that the appeal be remitted to the Local Court to be heard according to law. The matter turns upon the construction of s16 of the Act, dealing with the effect of the accumulation of demerit points, and an examination of the right of appeal conferred at the relevant time by cl 6(1)(c) of the Regulation. 3 Relevantly for present purposes, s 16 provides: (1) Recording of Demerit points . …

(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) …

(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.

(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.

(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. … 4 Subsection (5) sets out the period of suspension to which the driver becomes liable, depending upon the number of demerit points accumulated within the three year period. The three month suspension imposed upon the plaintiff was in accordance with that subsection. He did not make an election under subs (8) before the period of suspension commenced. 5 At the relevant time cl 6(1)(c) of the Regulation provided: 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: (a) … (b) … (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.

An "affected person" is defined by cl 5(1) to include the holder of an Australian driver's licence. Clause 6(1)(c) has since been amended in a manner to which I shall refer later. 6 In its letter to the plaintiff informing him of the suspension of his licence, the RTA wrote: The RTA has considered whether it would be unreasonable to suspend your licence, having regard to the date on which any of the offences were committed. It considers your suspension would not be unreasonable.

This is clearly a reference to the discretion conferred by subs 16(3) set out above. It is the interaction of that subsection and subs (2) which is at the heart of this matter. 7 The RTA submits that giving a notice of licence suspension under s 16(2) of the Act does not involve a "decision" within the meaning of cl 6(1) of the Regulation and, accordingly, it is not appealable under that clause. Reliance is placed upon the decision of Barr J in RTA v Salim [2004] NSWSC 1276. Before I turn to that case, it is necessary to refer to the decision of the Court of Appeal in RTA v Wilson & Anor (2003) 58 NSWLR 240, in which a decision of my own was reversed. 8 Mr Wilson, having incurred the requisite number of demerit points, had been given notice of the suspension of his licence under s 16(2). He elected to be of good behaviour for twelve months under subs (8). However, during that period he incurred a further four demerit points, and he was notified that his licence would be suspended in accordance with subs (9). His appeal to a Local Court under cl 6(1)(c) of the Regulation was dismissed on the basis that there was no jurisdiction to entertain it. 9 The Court of Appeal confirmed that there was no jurisdiction, holding that the suspension under s 16(9) did not involve any "decision" by the RTA. Delivering the leading judgment, Meagher JA said at [13] - [14]: 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. 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. 10 In RTA v Salim, Mr Salim's licence had been suspended under s 16(2) for five months after he had accumulated more than twenty demerit points during the relevant period. For that number of points a period of suspension of five months is set by s 16(5) of the Act. On appeal to the Local Court, a magistrate reduced the period of suspension to two months. 11 In holding that the magistrate had no jurisdiction to do so, Barr J said at [8]: In Roads and Traffic Authority of New South Wales v Wilson & Anor [2003] NSWCA 279, it was held that the period of suspension which results from the application of s 16(5) consequent upon the accumulation by a licensed driver of excessive demerit points is a function of the statute alone and does not involve any decision on the part of the plaintiff. Regulation 6 of the Road Transport (General) Regulation 1999 , under which the appeal was brought, therefore had no application because it gave power to appeal to a Local Court only against a decision of the plaintiff. In my opinion there never was any power in the magistrate to deal with the period of suspension consequent upon the accumulation by the defendant of excessive demerit points. 12 His Honour considered an argument that the suspension was a decision for the purpose of cl 6(1) of the Regulation because the RTA had the power under subs (3) not to take the action that it did. In rejecting that argument, his Honour said at [10]: The fact that the plaintiff decided not to take action that would have staved off the effect of the statute does not seem to me to touch the principle explained in Roads and Traffic Authority v Wilson that the suspension which resulted from subs (5) of s 16 was the effect solely of the statute. Accordingly, in my opinion the suspension did not come about by any decision of the plaintiff and the magistrate had no power to hear the matter. 13 It was this decision upon which the RTA relied at the hearing of the appeal in the present case, and which led her Honour to find that there was no jurisdiction. The argument before me requires an examination of Barr J's reasoning and that, in turn, calls for close attention to the reasoning of the Court of Appeal in RTA v Wilson. 14 What the magistrate had purported to do in Salim was to reduce the period of suspension prescribed by s 16(5). No doubt, it was in that context that Barr J, in the first of the passages from his judgment quoted above, found Wilson to be authority for the proposition that "the period of suspension which results from the application of s 16(5)" results from the operation of the legislation and does not involve any decision by the RTA. 15 It must be borne in mind, however, that Wilson was concerned with a suspension under s 16(9), following the accumulation of further demerit points during the good behaviour period under subs (8). By subs (9), the RTA was bound in that event to give notice suspending Mr Wilson's licence for twice the period that would have applied if he had not made the election under subs (8). The determination of the period for the purpose of subs (9) necessitated reference to the period prescribed in subs (5), but the length of the period of suspension was not a matter with which the Court of Appeal was concerned. The question for the Court was whether suspension under subs (9), for whatever period, amounted to a decision in the relevant sense. The Court was not called upon to consider subs (5) itself. 16 That said, the reasoning of Meagher JA in concluding that suspension under subs (9) was not a decision was clearly applicable to the question which Barr J had to decide. The periods of suspension applicable to different ranges of demerit points are set by subs (5) and the RTA is afforded no discretion to vary them. Accordingly, as Barr J put it, the relevant period of suspension "is a function of the statute alone" and does not call for any decision by the RTA. 17 Salim is authority for no more than that. Counsel for the RTA in the present case relied upon Barr J's response to the argument based upon subs (3), to be found in the second passage from his Honour's judgment quoted above. However, I understand that passage to be saying no more than that, if the RTA declines to exercise the discretion conferred by subs (3) and gives notice of suspension of a licence under subs (2), the period of suspension is set by subs (5) and is not a matter for the Authority's determination. Nothing his Honour said in that judgment bears upon the question which I must decide. 18 Moreover, for the same reason Wilson itself is distinguishable. Its focus was upon s 16(9), which requires the RTA to give notice of suspension in the event of the accumulation of a certain number of demerit points during a period of good behaviour under subs (8), and as to which the Authority has no discretion. The Authority's power to refrain from taking action under subs (3) is confined to notices of suspension under subs (2). In Wilson, the Court of Appeal had no occasion to consider that power. 19 Relevantly for present purposes, subs (3) provides that the Authority need not give notice of suspension under subs (2) if it is of the opinion that "it would be unreasonable to do so, having regard to the date when any relevant offence was committed…" The present case demonstrates why that discretion might be conferred. The plaintiff's demerit points result from three traffic offences, one of them in November 2001 and the others in October and November 2004. The three year gap between the first offence and the other two might be seen as a matter relevant to whether his licence should be suspended. 20 However that may be, it appears to me that, whenever the RTA considers under subs (3) whether it should suspend a licence under subs (2), it embarks upon a discretionary judgment. Inescapably, that judgment is a "decision" in the relevant sense. It may be that the Authority is not obliged in every case to consider the exercise of that discretion. That is not a matter about which I need express any concluded view. In the present case, the passage from its letter to the plaintiff quoted in par [6] these reasons clearly conveys that it did. 21 As I have said, cl 6(1) of the Regulation has since been amended to remove any right of appeal from a suspension under s 16 of the Act: see the Road Transport (General) Amendment (Driver Licence Appeals) Regulation 2005. The explanatory note to the amending Regulation, while referring to RTA v Wilson, observed that there was "some doubt about the extent to which the current rights to appeal are available to persons whose driver licences have been suspended… by the Authority because of the incurring of demerit points." 22 I am satisfied that the learned magistrate fell into error in the manner for which the plaintiff contends. Accordingly, I declare that the second defendant erred in law in determining that the Local Court did not have jurisdiction to hear the plaintiff's appeal against the first defendant's decision under s 16(3)(a) of the Road Transport (Driver Licensing) Act 1998. I order that the appeal be remitted to the Local Court to be heard according to law. 23 I shall consult the parties about any other order which should be made, including any further stay of the suspension of the plaintiff's licence. If necessary, I shall hear argument on costs.

08/06/2006 - Attach judgment - published cover sheet without - Paragraph(s) 1-23

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