Can I appeal the suspension of my drivers licence?

Licence Appeals in NSW

In New South Wales, there are some decisions regarding a suspension of licence due to speeding offences which can be appealed. There are also other circumstances, depending on the nature of your licence and its conditions for which there may be no avenue for Appeal. This article outlines will shed light on when a licence may be suspended by Transport NSW and the process for initiating a licence suspension appeal in certain situations.

Which Decisions Can Be Appealed?

Where a person has committed a speeding offence and then pays the penalty notice for the prescribed 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. This is what is reffered to as an “Automatic Licence Suspension” and occurs due to the commission of the above traffic offences.

This decision of Transport NSW to suspend your licence for speeding over 30km/h or 45km/h is an appealable decision and the suspension of licence can be appealed to the Local Court.

The ability to Appeal an automatic licence suspension for speeding over 30km/h or 45km/h is seperate from whether or not the driver has adeqaute demerit points. Most if not all traffic offences carry demerit points. If you have been caught speeding over 30km/h or 45km/h, you may need to contend with two accrued suspensions (one for the demerit points and one for the automatic suspension).

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. This is different for full licence holders who are not entitled to appeal a deicsion to suspend your licence for demerit points.

When is a driver precluded from lodging an Appeal?

Unfortunately, the following licence and speeding decisions cannot be appealed to the Local Court of NSW:

• 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.

What are the outcomes of a Licence Appeal in Court?

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). Essentially, there is no other avenue of Appeal from the decision of the Local Court.

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.

What about Demerit Point Suspensions?

Unfortunately, a full licence holder cannot Appeal a decision to suspend their licence based solely on demerit points.

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.

Good Behaviour Bond Licence?

As a full licence holder is unable to appeal a decision to suspend their licence due to demerit points, the RMS (or Transport NSW) will offer an alternative to suspension.

This alternative is the invitation to go on a “good behaviour licence” for a peroid of 12 months with a threshold of 2 demeirt points. Should the licence holder accept, they will be required to drive for the next 12 months without accruing more than 2 demeirt points. If succesful, the driver will receive their full licence back without further demerit points. Should the driver breach their good behaviour bond licence, the RMS will suspend the driver’s licence for double the time of the original suspension. It is important to note that there is no appeal in this regard and the driver will be required to serve their doubled suspension or risk criminal sanctions.

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. It is for this reason that it is imperative you seek legal advice before undertaking a Licence Appeal or Court Election.

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

Evidence forms the backbone of any legal case, serving to establish facts and substantiate claims made by both parties involved. However, not all evidence is admissible in court, and its admissibility hinges on various factors governed by statutory law and legal precedents.

The Evidence Act of New South Wales outlines the rules and procedures governing the admissibility of evidence in court proceedings. This legislation sets forth stringent criteria that evidence must meet to be considered admissible, safeguarding the integrity of the judicial process and ensuring fairness for all parties involved.

How Do I Lodge My Licence Appeal?

Before making the decision to lodge your Licence Appeal, it is imperative that you obtain expert legal advice on the associated costs and ramifications of going to Court. Factors such as your need for a licence, your traffic history and suitability to undertake a Traffic Offenders Program can bear considerable weight upon a Magistrate’s decision in the Local Court. If you have received appropriate legal advice, the expert traffic lawyers at Barsha Defence Lawyers can assist you in obtaining a favourable outcome.

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 lodge 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. You are able to lodge your Appeal online and will be asked to nominate a NSW Local Court as the appropriate venue. In most circumstances, the deicsion to suspend your licence will be put on hold whilst your Appeal is being considered by the Courts.

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

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