Appeal Licence Suspension

The Roads & Maritime Services (the RMS) and the NSW Police can suspend your licence for a number of reasons. Most licence suspensions can be appealed to the Local Court, where the Court is asked to essentially review the decision. If you have received a suspension or suspension notice, you may be able to appeal the suspension to either reduce the suspension period to a lesser period or to have the suspension completely quashed and therefore, have your licence reinstated.

It is important to not take any shortcuts when appealing a licence suspension because after the matter is finalised in the Local Court, there is no further right of appeal. We therefore employ experts in this area of law and the importance of engaging an experienced Traffic Lawyer to appeal a licence suspension (NSW) cannot be overstated.

Offences/reasons giving rise to suspension

The following are some of the reasons that a driver's licence may be suspended:

Suspensions that can be appealed

The following are some of the suspensions that can be appealed to the Local Court:

RMS Suspensions

Suspensions from the RMS are the most common that are appealed. The RMS can suspend a driver's licence for a variety of reasons, the most common being:

The RMS does not have the ability to issue immediate licence suspensions. The RMS is required to send a notice to the licence holder (a "Notice of Suspension") advising that the licence is to be suspended; the reason for the suspension; that the licence holder can appeal the decision to suspend the licence; and that a time limit of 28 days for lodging an appeal applies.

It is a misconception that suspensions for excessive speeding offences are "mandatory". In fact, the legislation makes it clear that the RMS has a discretion to suspend drivers in these circumstances. However, due to policy reasons and the lack of resources for each case to be assessed on its merits, the RMS approaches licence suspensions as though they are all mandatory. For that reason, appeals against these decisions to the Local Court are common.

The time limits that apply to lodgement are strict and the Court does not have the power to hear a licence suspension appeal if it has been lodged out of time. Despite some misunderstanding regarding time limits among practitioners and some court registries, the law holds that the 28 day window for lodgement commences four working days after the Notice is sent. As there is no discretion to the Court to hear an appeal lodged out of time, it is important to seek legal advice on the merits of an appeal as soon as possible after receiving a notice to ensure that the strict time limits are complied with.

Once an application for an appeal is lodged, you are able to continue driving until the Court finally determines the matter. When it comes to determining the appeal, the Court only has the same powers the RMS has when deciding what to do. Essentially, this means that the Court can dismiss the appeal outright (which means that the suspension period sought to be imposed by the RMS is in fact imposed); uphold the appeal (which means that the RMS decision is quashed/overturned and no suspension is imposed); or vary the RMS decision (which generally means, reducing the suspension period). The Court does technically have power to increase the suspension period, however, this is very uncommon.

The Court is not limited in the matters it can take into account when determining an RMS licence suspension appeal. However, it can be argued that some matters that are relevant to most appeals are the person's previous driving history; the extent to which the person has offended; whether the person has completed a driver education course; the risk to public safety posed by the person's offending; the persons's need for a licence and the benefit to the community for the person to continue driving or have their suspension reduced. As the matters to be taken into account are not limited, an experienced Traffic Lawyer should be able to tailor his or her submissions to the specific circumstances of each case. What may seem like a favourable factor in one case could actually be an unfavourable factor in another. Of course, if a licence is suspended due to medical reasons, then the issues that need to be addressed are fewer and specific to the reason for suspension. 

It is also important to note that licence suspensions can have different consequences for different licence holders, depending on the circumstances. For example, if a provisional licence holder receives a Notice of Suspension due to accumulation of demerit points, appeals the RMS decision and is successful (and therefore not suspended), then the accumulated demerit points carry over. This can mean that the licence holder is then driving on a licence that does not allow any demerit point accumulation and any minor offence that carries with it demerit points will cause the driver to receive another Notice of Suspension. If, however, the Court decides to reduce the suspension, then, after the suspension has been served, the licence holder commences driving with a "clean" licence.

Police suspensions

The Police powers of suspension are limited to the following:

Again, the Police power to suspend a licence is discretionary. However, it is very rare for the Police to not suspend a driver if receiving a penalty notice for one of the excessive speed offences or being charged with a serious drink driving or other serious driving offence (such as street racing or driving in a manner dangerous to the public).

A major difference between the Police power to suspended and the powers of the RMS is that the Police can issue an "immediate" licence suspension. An immediate licence suspension notice is to be given to a driver within 48 hours of having committed a relevant offence. The driver is suspended from the moment he or she is served with the notice. The driver still has the option to appeal the Police officer's decision to a Local Court and must lodge an application to do so within 28 days of receiving the notice.

There are two appeals that can be made against a police officer's suspension - an appeal seeking that the suspension is quashed or varied and an appeal seeking that the suspension is stayed (placed on hold).

Appeal against Police suspension: Unlike RMS suspension appeals, a Court cannot vary or set aside an immediate police suspension unless it is satisfied that there are exceptional circumstances to justify such action. This is a very high threshold to meet and although the law does not specify what are exceptional circumstances, a Court would require something out of the ordinary. Therefore, typically, requiring a licence for work purposes would not amount to an exceptional circumstance. 

As the suspension has been imposed due to the allegation that a serious offence has been committed, it makes sense that the law requires a very high threshold to be met. The Court is also not to take into account the circumstances of the alleged offending. This may also seem unfair, particularly where a licence holder may actually wish to defend the allegations and should be given an opportunity to get their licence back in the meantime. That is where an application to stay the Police suspension can be made.

Application to stay Police suspension: In circumstances where someone is considering defending a penalty notice or charge that gives rise to a Police suspension, the licence holder can make an application to the Local Court for the suspension to be stayed (or placed on hold) until the matter is finalised. Once again, the applicant needs to shows that there are "exceptional circumstances". For the purpose of this particular application, in determining whether there are exceptional circumstances, the Court must take into account each of the following:

Making an application to stay a police suspension can still prove very difficult, as the Court often has only limited material before it when making a decision, and a prosecution case can often appear to be a lot stronger on paper than it actually is or, when dealing with something that is as simple as a speeding ticket, the initial material before the Court is of no assistance.

Our traffic lawyers are experienced in appealing licence suspensions NSW wide and will be able to advise you on the prospects of an appeal and, where your instructions are to proceed with an appeal, will draft and lodge the appeal on your behalf and represent you at the hearing.

If you have received a Notice of Suspension from the RMS or the Police and require legal assistance, our experts at Prime Lawyers - Traffic Law Division can help. Contact us to make an appointment with a traffic lawyer at your nearest Prime Lawyers office.

Habitual Offender Declarations

The habitual offenders scheme imposes an automatic licence disqualification to drivers who have repeatedly committed serious traffic offences. Although drivers are "declared" habitual offenders, becoming an habitual traffic offender is essentially an automatic process and is not a decision that is made by a Court or the RMS. A Court does not declare a person an habitual offender but does have the power to reduce the automatic disqualification period or to quash the declaration altogether. When and how the Court can exercise its powers is often misunderstood by lawyers and Courts alike.

**Important Notice**

The habitual offenders scheme was abolished in October 2017. However, any habitual offender declaration already made prior to this date is still valid and remains in place until quashed or set aside. 

The below article was written prior to the abolition of the scheme, but for most part, remains relevant.

There is currently some confusion amongst some of the profession and judiciary as to how the new law applies to previous declarations. Contact our Traffic Law team for further information on the current status of the law in NSW.

How can I be declared an habitual offender? 

You will be automatically declared an habitual offender if you are found "guilty" in a Court of 3 "relevant offences", occurring at different times, within a 5 year period. 

The moment you are dealt with for your third offence, you are declared an habitual offender. This is not an order of the Court - in fact, a Court cannot declare someone an habitual offender and is not required to even mention the declaration in Court. 

After the court proceedings, you will receive a notification from the RMS that you have been declared an habitual offender, nominating the offences that gave rise to the declaration. 

What happens if I am declared an habitual offender? 

You will be automatically disqualified from driving for 5 years. This is in addition to any existing disqualification periods and any disqualification period imposed by the Court as a result of the third relevant offence giving rise to the declaration. 

For example, if the third offence was a drink driving offence and you were disqualified by the Court for a period of 12 months, the declaration will automatically add an additional 5 years to that disqualification period, so the overall disqualification will be 6 years.

The Court does not have the power to make an habitual offender declaration, however, at the time of the third offence giving rise to the declaration, the Court has the power to vary the habitual offender disqualification period. The Court can increase the automatic 5 year period (which is uncommon) or, the Court can reduce the period to no less than 2 years.

It is important to note that if you are declared an habitual traffic offender, the 3 offences that were taken into account can still be used for future habitual offender declarations. For example say you commit relevant offences in 2003, 2005 and 2006 and are subsequently declared an habitual offender and receive a 5 year disqualification period on top of your disqualification period for the 2006 offence that the court imposed. If you then commit another relevant offence in 2009 you will receive another habitual offender declaration that will again take into account the 2005 and 2006 offences and you will receive an additional 5 year disqualification. 

What is a relevant offence?

For the purpose of an habitual offender declaration, "relevant offences" include: 

• All drink driving offences including:

Removing Licence Disqualifications