Appealing Transport NSW Licence Suspensions

In New South Wales, a driver can receive a licence suspension from the NSW Police or from Transport NSW. Depending on the reason for the decision to suspend a licence, there may be an option to appeal the decision to the NSW Local Court. The circumstances under which a driver can appeal against a license suspension depend on whether the suspension was imposed by the police or by Transport NSW. This article deals with appeals against Transport NSW licence suspensions.

Which Transport NSW licence suspensions can Be Appealed?

The following Transport NSW licence suspensions can be appealed to the Local Court:

• A decision by the Transport for NSW to suspend or cancel a learner or provisional driver licence for exceeding the demerit point limit;
• A decision by the Transport for NSW to suspend a driver licence for exceeding the speed limit by more than 45 kilometres an hour;
• A decision by the Transport for NSW to suspend a driver licence for exceeding the speed limit by more than 30 kilometres an hour;
• A decision by the Transport for NSW to suspend a driver licence for a drink-driving offence as a novice, special or low range category (first offence);
• A decision by the Transport for NSW to suspend a driver licence for a drug-driving offence (first offence).

Which Decisions Cannot Be Appealed?

The following Transport NSW licence suspensions cannot be appealed:

• A decision by Transport NSW to suspend an unrestricted driver’s licence for accrual of demerit points. However, a person can often elect to go on a good behaviour licence. Alternatively, a person can elect to have the ticket dealt with in court to either plead not guilty and contest the ticket or seek the court’s leniency by not imposing a conviction;
• A decision by Transport NSW to impose a suspension for breaching a good behaviour licence. However, a person can elect to have the ticket dealt with in court to either plead not guilty and contest the ticket or seek the court’s leniency by not imposing a conviction.

Licence Appeals vs Court Elections

It is important to be aware of the difference between a licence appeal and a court election.

A licence appeal is a civil appeal to the Local Court, to review the decision of the Transport for NSW to impose a licence suspension. It does not involve a finding of liability (or a criminal conviction) in committing the offence and is limited to reviewing the decision to impose a suspension.

The court’s powers in relation to a licence appeal are to essentially re-make the decision to impose a suspension, exercising only those powers that were available to the original decision-maker, Transport for NSW. This means in determining an appeal, the court must only do the following.

• Set aside the decision;
• Vary the decision;
• Dismiss the appeal;
• Make such other order as seems just to the court in the circumstances.

A court election is an election to have the traffic offence decided by a court (in the criminal jurisdiction), and requires the person electing to enter a plea of guilty or not guilty. Any conviction imposed by the court following a court election is recorded as a criminal conviction.

However, demerit points are not to be incurred against a licence in circumstances where an infringement is court-elected and the matter is dealt with by a non-conviction order, as provided under the Crimes (Sentencing Procedure) Act.  

Court elections are often utilised by persons wishing to avoid a licence suspension as a conviction will result in the individual exceeding their demerit point limit and/or breaching a good behaviour licence. However, individuals should be cautious of making an election simply to avoid the imposition of demerit points. Non-conviction orders granted simply to avoid the operation of other legislative provisions (such as the demerit point system) is considered by the court as improper and impermissible.

Process of appealing Transport for NSW suspensions

Where an individual is issued with a penalty notice (fine) for any of the above-listed offences, the individual should expect to receive a notice of suspension from Transport for NSW upon:

• payment of the fine in full;
• partial payment of the fine; or
• where the person has not paid the fine and not otherwise elected for the matter to be dealt with by the court, and time for action has elapsed.

Once a notice of suspension is received, the notice will state the date the licence holder’s licence is to be suspended from, the length of the suspension, and any right of appeal.

In circumstances where the licence holder wants to appeal the suspension, it is important that the application to appeal the decision of Transport for NSW is filed with the Local Court before the first day of the suspension. Filing of the appeal will result in the suspension being stayed (put on hold) until the court otherwise deals with the appeal.

Further, in deciding an appeal against Transport for NSW the court is able to take into account the circumstances of the offending, which is not permitted in appeals against police imposed immediate suspensions.

The decision of the court is final and binding on both the applicant and Transport for NSW.

What Needs To Be Proved

There is no real test that the court applies when deciding an appeal against the decision of Transport for NSW to issue a licence suspension. However, the court does not permit a review of the guilt or innocence of the applicant for the offence, or the imposition of the fine.

Generally, the court will make a decision based on the following:

• The circumstances of the offence;
• The traffic record/character of the applicant;
• The applicant’s need for a licence; and
• The risk posed to the community.

The risk the applicant poses to the community is often a factor that dominates the decision of the Local Court when deciding appeals. For this reason, it is strongly encouraged that applicants, at a minimum, engage in a Traffic Offender’s Program to gain a deeper knowledge and understanding of the serious risks that many traffic offences pose to the community.

Time Limit For Lodging An Appeal

An appeal must be lodged within 28 days of receiving the notice of suspension from Transport for NSW.

Under the legislation, a letter is assumed to be received within four working days after it is posted (even if that is not the case). Generally, the last day to lodge the appeal is the day before the suspension is due to start.

If an application is not lodged in time, the court cannot hear the appeal and the suspension must be served.

Staff at any Local Court Registry can assist in completing the appeal documents. Once an appeal is lodged, the suspension is stayed (put on hold) until the appeal is decided in court.

If you have a traffic matter or are concerned about receiving a notice of suspension of your licence, please contact Armstrong Legal.