Roads and Maritime Services v Farrell; Roads and Maritime Services v Northcott; Roads and Maritime Services v Le Thorn; Roads and Maritime Services v Touba; Roads and Maritime Services v Culpan; Roads and Maritime Services v Hooper [2019] NSWSC 552

Roads and Maritime Services v Farrell; Roads and Maritime Services v Northcott; Roads and Maritime Services v Le Thorn; Roads and Maritime Services v Touba; Roads and Maritime Services v Culpan; Roads and Maritime Services v Hooper [2019] NSWSC 552 · Read the judgment on AustLII

Catchwords: Licence disqualification – eligibility to lift previous disqualifications – commencement of application proceedings

In this set of joint matters, a single judge of the Supreme Court has delivered a rebuke to Local Court registrars who simply sign application proceedings without considering jurisdiction, and has examined the eligibility of applicants under the Driver Disqualification Removal Scheme.

Since 2017, certain disqualified people have been able apply to the Local Court to have their remaining disqualification(s) removed or reduced provided they met a number of criteria, including that they have served a minimum period of disqualification (see generally: Road Transport Act 2013 (NSW) ss221A to 221E – ‘the Act’). But people with certain convictions were excluded (see s221D of the Act), including for murder and manslaughter, predatory driving and police pursuits, various forms of driving resulting in death or grievous bodily harm, and intentional menacing driving. The six defendants in this case were joined together because, as a group, the Roads & Maritime Service (‘the RMS’) asserted that their disqualifications had been removed even though they were ineligible.

In each defendant’s case, it appears to have been unchallenged (though many of the defendants either did not appear on the appeal, or were self-represented) that each defendant had been convicted of an offence which ought to have disqualified them from applying under this scheme. In each case, under s221C(3) of the Act the defendant had applied for an information statement from the RMS, and in each case the RMS had duly produced both a copy of the defendant’s driving record (which showed the disqualifying conviction), as well as advising both the applicant and the Local Court that the applicant was ineligible. But each application was pursued anyway, and in each case the Magistrate granted the application. So the RMS, effectively, appealed (though her Honour might take issue at whether this was technically an ‘appeal’: see [150]). The various matters came before Schmidt J, sitting alone, in one joint case.

Section 47 of the Local Court Act 2007 provides for the commencement of private actions (i.e. ‘application proceedings’). It requires a private application notice to be signed by a registrar. The registrar can refuse to sign the application notice if, amongst other things, they consider that the proceedings are without substance or have no reasonable prospects of success (for the legislative detail, see [21] – [22]). The key point for present purposes was that, contrary to the legislation and rules, in each case here either no consideration was given by a registrar to each of the applications, or if it was, insufficient attention was paid to whether the Local Court actually had power to entertain the applications at all; her Honour found that each of the applications ought to have been refused a signature by the registrar (that is, the proceedings ought not have been allowed to commence)(at [27]). That was an issue compounded by the errors of the magistrates, who allowed the applications notwithstanding they had jurisdiction. This was fundamental, because the first duty of every judicial officer is to satisfy themselves as to jurisdiction, if only to avoid putting parties to unnecessary risk and expense (at [14]).

The important point for practitioners is that, following this decision, registrars will presumably be carefully considering the eligibility of applicants to make applications – and presumably not just of the type discussed here. Practitioners should also be aware, then, that s47(3) of the Local Court Act does provide that if a registrar declines to sign the application, the issue ‘is to be’ (note mandatory language) determined by a Magistrate, which should allow genuine disputes about jurisdiction to be resolved.

Schmidt J also delivered a criticism of each of the Magistrates involved for the insufficiency of their reasons (at [29] to [33]). Her Honour considered that the reasons given may be short but needed to: explain the basis for the Court’s satisfaction that they have jurisdiction to hear the application; reveal the mandatory considerations in s221(B)(2) have been considered; and explain why the Court is exercising the discretionary power to grant the application in those circumstances. It follows that practitioners will want to be ready to provide the Court with all the assistance it needs to deliver judgment on those three key propositions.