268Determination of appeals against appealable decisions

#### 268 Determination of appeals against appealable decisions 268 Determination of appeals against appealable decisions (cf Gen Act, s 242(4) and (5); Gen Reg, cll 14(1) and (2), 16(1) and (2), 18(4), 20(1) and (4), 22(2), 23(1)–(3), 25(4), 28(3)–(4), 29A(3)–(4), 29B(3)–(4) and 140(6)) > > (1) The Local Court is to hear and determine an appeal made to the Court under this Part. > > > (2) Subject to subsections (3)–(6), the Local Court may determine an appeal under this Part— > > > > > (a) by setting aside the decision, or > > > > > (b) by varying the decision, or > > > > > (c) by dismissing the appeal, or > > > > > (d) by making such other order as seems just to the Court in the circumstances. > > > (3) In varying a decision in an appeal under this Part, the Local Court may exercise only such powers as the decision-maker could have exercised under the road transport legislation when making that decision. > > > (4) If the decision that is appealed against was based on an offence committed (or alleged to have been committed) by the appellant under the road transport legislation or any other law, the appeal against the decision does not permit review of— > > > > > (a) the guilt or innocence of the appellant for the offence, or > > > > > (b) the imposition of a penalty or the level of a penalty imposed on the appellant for the offence. > > > > Note. > > > > The effect of this provision is that, for example, in an appeal against a suspension or cancellation action taken under section 40 against the holder of a provisional driver licence because of demerit points, the Local Court cannot revisit the issue of an offence in relation to which the demerit points were incurred or the imposition of a penalty in relation to such an offence. In any such case, the Local Court may exercise only the powers that Transport for NSW could exercise under section 40 (see subsection (3)). > > > (5) In determining an appeal against a decision to give the appellant an immediate licence suspension notice, the Local Court— > > > > > (a) is not to vary or set aside the decision unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of the suspension, and > > > > > (b) is not, for the purposes of any such appeal, to take into account the circumstances of the offence with which the person making the application is charged, unless the statutory rules provide to the contrary. > > > (6) An appeal against a decision to give the appellant an immediate licence suspension notice must be made before the charge that occasioned the suspension has been heard and determined by a court or withdrawn.