Mid Mountains Legal Blog


Anthony Steel

In New South Wales, some decisions regarding a licence suspension due to a speeding offence can be appealed while others cannot.

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 for NSW will issue a licence suspension under Section 59 of the Road Transport Act 2013 (the Act) suspending the licence due to the excessive speed offence.

You can appeal Transport for NSW’s decision to suspend your licence for these offences in the Local Court.

A P1 or P2 Provisional driver with demerit points for a speeding offence resulting in a suspension of their licence can also appeal to the Local Court.

Which decisions can’t be appealed?

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

  1. a decision by the Transport for NSW to suspend an interlock driver licence;
  2. a decision by Transport for NSW to suspend an unrestricted driver licence for accrual of demerit points; and
  3. 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 Transport for 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 Transport for NSW.

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

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

There is no test prescribed under the Act in determining the appeal, but in practice the court generally considers:

  1. whether the driver is a fit and proper person to hold a licence;
  2. their need for a licence;
  3. their criminal and traffic history; and
  4. the circumstances of the offence.

P1 And P2 Provisional Licence Suspension Appeal

Where a provisional P1 licence holder incurs four or more demerit points, Transport for NSW may suspend their licence. Where a provisional P2 licence holder incurs seven or more demerit points, Transport for NSW may suspend their licence. In each case, the Transport for NSW decision to suspend can be appealed to the Local Court.

The Local Court decision is final and binding on both Transport for NSW and the driver.

The court has the power to:

  1. allow the appeal (i.e. remove the suspension in full);
  2. dismiss the appeal but reduce the period of suspension; or
  3. dismiss the appeal (i.e. no change to the suspension period).

There is no test prescribed 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 risk of a criminal conviction accompanies a licence suspension appeal. 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 receiving a criminal conviction or paying a fine by pursuing a licence suspension appeal.

If you wish to dispute the offence that led to your licence suspension, you should make a court election on the offence (as opposed to lodging a licence suspension appeal).

Licence appeals vs court elections

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

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. In determining an appeal, the court can only:

  1. Set aside the decision;
  2. vary the decision;
  3. dismiss the appeal; or
  4. make such other order as the court determines as just 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. A conviction imposed by the court following a court election is recorded as a criminal conviction.

However, demerit points are not incurred against a licence 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 1999.

People wishing to avoid a licence suspension when a conviction would result in them exceeding their demerit point limit and/or breaching a good behaviour licence may make a court election. However, be cautious of making an election solely to avoid the imposition of demerit points. The court considers non-conviction orders granted solely to avoid the operation of other legislative provisions (such as the demerit point system) improper and impermissible.

How To Lodge Your Appeal

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

Contact us for free telephone legal advice or for legal representation.

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