Licence & Speeding Appeals (NSW)

In New South Wales, some decisions regarding a suspension of licence due to speeding offences can be appealed while others cannot. This article outlines the speeding offences for which a licence may be suspended by Transport NSW and the process for initiating a licence suspension appeal in these situations.

For information on Police Immediate Suspension and Licence Appeals, please visit this page.

Which Decisions Can Be Appealed?

Where a person commits and then pays a penalty notice for a speeding offence of over 30km/h or 45km/h, Transport NSW will issue a licence suspension under Section 59 of the Road Transport Act 2013 suspending the licence due to the excessive speed offence.

The decision of Transport NSW to suspend your licence for these offences is an appealable decision and the suspension of licence can be appealed to the Local Court.

Additionally, a P1 or P2 Provisional driver who has accrued demerit points for any speeding offence where this has resulted in a suspension of licence can also appeal to the Local Court.

Which Decisions Can’t Be Appealed?

The following licence and speeding decisions can’t be appealed:

• A decision by the RMS (Transport NSW) to suspend an unrestricted drivers licence for accrual of demerit points.
• A decision by the RMS (Transport NSW) to suspend an interlock drivers licence.
• Where a driver on a good behaviour licence incurs two or more demerit points in 12 months and breaches their good behaviour licence.

Licence Suspension Appeals

A person whose licence is suspended by the RMS/Transport NSW due to an offence for exceed speed by over 30km or 45km/h can appeal the suspension in the Local Court. The decision of the court is final and binding on the driver and on the RMS (Transport NSW).

When deciding an appeal, the court has the power to:

• Allow the appeal (removing the suspension in full);
• Dismiss the appeal but reduce the period of suspension; or
• Dismiss the appeal with no change to the suspension period.

There is no test prescribed under the Road Transport Act 2013 in determining the appeal, but in practice the court generally considers whether the driver is a fit and proper person to hold a licence with further consideration to the circumstances of the offence, their criminal and traffic history and their need for a licence.

P1 And P2 Provisional Licence Suspension Appeal

Where a provisional P1 licence holder incurs four or more demerit points, the RMS may suspend their licence. Where a provisional P2 licence holder incurs seven demerit or more points the RMS) may suspend their licence. The RMS decision to suspend in each case can be appealed to the Local Court.

The decision of the Local Court is final and binding on both the driver and on the RMS (Transport NSW).

The court has the power to:

• Allow the appeal (removing the suspension in full meaning )
• Dismiss the appeal but reduce the period of suspension, or
• Dismiss the appeal with no change to the suspension period.

There is no test prescribed under the Road Transport Act 2013 in determining the appeal, but in practice the court generally considers whether the driver is a fit and proper person to hold a licence with further consideration to the circumstances of the offence, their criminal and traffic history and their need for a licence.

Will I Receive A Criminal Conviction for Appealing My Suspension?

No. A licence suspension appeal does not involve any risk of a criminal conviction. A licence suspension appeal is an administrative appeal to the Local Court that is concerned only with the suspension of your licence, not the offence which led to your licence being suspended. You do not risk paying a fine or receiving a criminal conviction/record by pursuing a licence suspension appeal.

If you are interested in disputing the offence that led to your licence being suspended, you should make a court election on the offence as opposed to lodging a licence suspension appeal.

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 NSW/RMS 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 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.

How to Lodge Your Appeal

Once the fine for the offence has been paid, Transport NSW will send you a Notice of Suspension which specifies the date on which your licence will be suspended and the last date available to file the appeal. After you receive the Notice of Suspension you only have 28 days to file the appeal. Generally the last day to lodge the appeal is the day before the suspension is due to start and will be specified in the Notice of Suspension.

If you do not lodge your application in time the court has no jurisdiction to hear the appeal, and you must serve the suspension.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.