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

1. [1]

   Roads & Maritime Services seeks orders under s 69 of the Supreme Court Act 1970 (NSW), quashing orders made in each case by the Local Court under s 221B of the Road Transport Act 2013 (NSW), removing the defendant’s licence disqualification. On its case, all of those orders were made without jurisdiction.

2. [2]

   It was in 2017 that the Road Transport Act was amended to create a scheme by which magistrates may order the removal of all licence disqualifications to which a disqualified person is then subject. The new scheme was explained in the Second Reading Speech to the Road Transport Amendment (Driver Licence Disqualification) Bill 2017: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 September 2017 at 37. There the Attorney General relevantly said that the reforms would “provide disqualified drivers with a clear way to return to lawful driving if they remained compliant with their disqualification period for a minimum period”: at 37–38. At 39 the Attorney also said that the scheme will:

3. [3]

   The Service contends that the Local Court had no power to make any of the challenged orders, because none of the defendants were entitled to make an application for removal of licence disqualification. That was because they were either not eligible to make the application, given the provisions of s 221D and in one case, because the minimum disqualification period specified in s 221B had not passed.

4. [4]

   The unchallenged background to this application is a review conducted by the Service, after becoming aware in November 2018 that the Department of Justice had received an enquiry from NSW Police about a person who had obtained a disqualification removal order from the Local Court, despite having an offence on his record which precluded him from making a s 221B application.

5. [5]

   The Service’s review of all of the Court’s s 221B orders identified six such cases, which are now the subject of these proceedings.

The issues

1. [6]

   There is no issue about the Service’s standing to bring the proceedings, given its obligation to maintain a register of driver licences and to administer the driver licensing system established by the Road Transport Act and the Road Transport (Driver Licensing) Regulation 2017 (NSW). The circumstances in these cases are analogous to those considered in Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 at [71].

2. [7]

   There is also no issue as to the Court’s power to make the orders sought under s 69 of the Supreme Court Act 1970 (NSW), if the Service establishes that the Local Court had no power, in any case, to make a license disqualification removal order.

3. [8]

   That the Court has a discretion to refrain from making an order quashing the Local Court’s order, was accepted, but that it would be exercised, was in issue.

4. [9]

   There was also an issue as to the adequacy of the reasons given for the disputed decision in one case.

The statutory scheme

1. [10]

   It will be necessary to consider the circumstances of each case separately, but it is convenient to begin by explaining the new statutory scheme.

2. [11]

   It is s 221B which now empowers the Local Court to order the removal of a licence disqualification. It provides:

3. [12]

   A “disqualified person” is defined in s 221A to mean “a person who is subject to a licence disqualification.”

4. [13]

   “Licence disqualification” is there defined to mean “a disqualification (imposed before or after the commencement of this Division) from holding or obtaining a driver licence that is imposed by a court or by the operation of this Act, and includes any consecutive or concurrent licence disqualification and any period of disqualification which does not commence until other disqualifications or other periods of licence cancellations or suspensions are completed.”

5. [14]

   Before the Local Court can exercise the s 221B power, however, it must be satisfied that the applicant was entitled to make the application, s 221D limiting as it does, those who may seek orders under s 221B. The first duty of every judicial officer being to satisfy him or herself as to jurisdiction, “if only to avoid putting the parties to unnecessary risk and expense”: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 415; [1911] HCA 31 per Griffith CJ.

6. [15]

   Section 221D provides:

7. [16]

   It follows that if a s 221B application is one which may be entertained by the Local Court, because the applicant is not precluded by s 221D from making the application, the applicant must establish that he or she has not been convicted of any driving offence during the relevant offence-free period. In determining this, the Court is obliged to have regard to information relating to the applicant’s driving record that “is as current as practicable”: s 221B(3)

8. [17]

   This information is dealt with in s 221C, which provides:

9. [18]

   “The Authority” is defined in s 4 to mean the “Roads and Maritime Services constituted under the Transport Administration Act 1988”.

10. [19]

    In determining whether to exercise the s 221B discretion, the Local Court must thus take into account both the s 221C information and the matters specified in s 221B(2). They include “the nature of the offence or offences giving rise to the licence disqualifications”, revealed by the evidence.

11. [20]

    Even when a s 221B order is made, after being notified of the Court’s order, if the Service has reason to believe that the applicant has committed a driving offence during the relevant offence-free period, ending at the time the order was made, which would preclude the making of the order, it may then make an application for a rehearing: s 221E.

12. [21]

    Applications may be made to the Local Court under s 45 of the Local Court Act 2007 (NSW). The section requires that proceedings to which Division 2 Commencement of Proceedings of Part 4 Special Jurisdiction applies, be commenced by the issuing and filing of an “application notice”. Section 47 provides:

13. [22]

    There is a standard form of application which makes provision for both the applicant and the Registrar to sign the application. The Local Court Rules 2009 (NSW) deal with grounds for refusal to sign an application notice in Rule 8.4, which relevantly provides:

14. [23]

    In some of these cases the proceedings were commenced by filing such an application form, but the forms were not signed by the Registrar, as s 47 requires. In one case it was not even signed by the applicant.

15. [24]

    On the evidence, each of the defendants applied to the Service for a s 221C statement, which was supplied and on the court file, when the application came on for hearing before the Local Court. The Service had also advised each applicant that they did not appear to be eligible to make a s 221B application, but still each application was pursued. That advice was also before the Local Court.

16. [25]

    There is no suggestion that any of the applications were served on the Service, nor that they needed to be, given the provisions of either the Local Court Act, or the Road Transport Act.

17. [26]

    Attached to each s 221C statement was a copy of the defendant’s actual driving record, which in each case evidenced that he or she was not entitled to make the application and that the Local Court had no power to entertain it. That was because all of the defendants had committed an offence which fell within s 221D. In one case the driving record also established that the relevant minimum disqualification period specified in s 221B, had not come to an end.

18. [27]

    It would appear that contrary to what s 47 of the Local Court Act envisages, either no consideration was given by the Registrar to these applications, or even when it was, insufficient attention was paid to what the s 221C information revealed, given that all of these applications were referred to the Local Court for hearing, when it had no power to entertain them. On the face of that material, none of the applicants were entitled to make an application under s 221B and thus seemingly, all of the applications could have been dealt with under Rule 8.4.

19. [28]

    A transcript of the proceedings in each case is also in evidence. They establish that:

    1. (1)

       Some of the defendants were unrepresented at the hearing, but even in the case of those who were represented, the Court was not addressed on its power to entertain the application, given the provisions of s 221D.

    2. (2)

       no contradictor appeared in any case to oppose the application;

    3. (3)

       despite what the s 221C statement before the Court revealed in each case, the requirements of s 221B and s 221D, if considered at all, were given perfunctory consideration, without the question of the Court’s jurisdiction to make the order sought being addressed; and

    4. (4)

       the reasons given for the making of the order was, in each case, inadequate.

The obligation to give reasons

1. [29]

   It is convenient to begin with this obligation, because as I will explain in each case, the reasons that were given were inadequate.

2. [30]

   It has long been recognised that there is a duty to give reasons, that being “a necessary incident of the judicial process” and that without adequate reasons, justice has not been seen to be done, as was discussed again in Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at [41].

3. [31]

   That obligation was again explained in DL v The Queen [2018] HCA 26 at [32]-[32], there in the context of criminal proceedings. Pertinently, it was there explained, reasons given will be inadequate, if a necessary step to the final conclusion is not explained.

4. [32]

   There was no issue that even when an application under s 221B is uncontested, as each of these applications were, the presiding magistrate must give reasons for the orders made, notwithstanding that there is no right of appeal against such an order. That is because giving reasons is even in such cases “an incident of the judicial process”: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA.

5. [33]

   Reasons given for the grant of a s 221B application may be short, but given the requirements of s 221B and s 221D, they must also:

   1. (1)

      explain the basis for satisfaction that the Court has jurisdiction to entertain the application, given what is provided in s 221D;

   2. (2)

      reveal that the mandatory considerations specified in s 221B(2) have been considered in light of the evidence; and

   3. (3)

      explain why the Court’s discretion to grant the application has been exercised in the circumstances which have arisen for consideration.

Should the Court’s discretion to refrain from making orders under s 69 of the Supreme Court Act be exercised?

1. [34]

   There is no issue that the Court has power under s 69 to make the orders which the Service seeks, quashing the orders made by the Local Court which removed each defendants’ licence disqualification, if it is found that the Local Court had no jurisdiction to make the orders, because they were made in disregard of the limitations on its statutory power: Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1 at [72]-[75].

2. [35]

   The Service finally conceded that the Court has a discretion to refrain from making such an order, but submitted that it would only be exercised in limited circumstances. For example, where it was established that if the order was quashed and the matter remitted to the Local Court for rehearing, the same order would result.

3. [36]

   In these cases it was submitted that the discretion would not be exercised, because there was no doubt that the Local Court’s orders had been made in disregard of the limitations imposed on its statutory power, when it had no jurisdiction even to entertain the application, let alone to make orders under s 221B.

4. [37]

   In my view the case which the Service advanced must be accepted. In none of these cases may the Court justly refrain from making the orders which the Service seeks.

5. [38]

   The reasons for this conclusion begin with the consideration that if the jurisdiction of the Local Court is limited, as it is by s 221D of the Road Transport Act, this Court has jurisdiction to deal with all errors on the face of the record, including those revealed by the reasons given for a decision: s 69(4) of the Supreme Court Act and Kirk at [56] and [100].

6. [39]

   That there is no right of appeal against a decision made under s 221B is also relevant, relief under s 69 not normally being appropriate when a jurisdictional error may be corrected on appeal: Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. In these cases, there being no right of appeal, an application under s 69 is thus the appropriate way for the Service to challenge a s 221B order which has been made without jurisdiction.

7. [40]

   That is so even though, unlike the case of orders made by this Court, an order of an inferior court such as the Local Court, when made beyond jurisdiction, is a nullity: Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19.

8. [41]

   It follows that even though an order of the Local Court removing an applicant’s license disqualification, made in circumstances where that Court had no jurisdiction to entertain the application, may be given administrative effect by the Service, as they have been in each of these cases because of the way its computerised systems operate, those orders are, nevertheless, nullities.

9. [42]

   The result is, as the Service contended, that the license disqualification removal orders which it had given effect before discovering that they had been made without jurisdiction, were not only legally ineffective, but they conflict with earlier, valid licence disqualification orders, which the Service is bound to give effect to.

10. [43]

    In my view, in those circumstances, this Court should not refrain from exercising its powers under s 69 to quash the Local Court’s invalid licence disqualification removal orders. That conclusion cannot be avoided, notwithstanding the undoubtedly difficult personal circumstances of some of the applicants, who desire to continue driving for good personal reasons.

11. [44]

    As explained in Higginson, the Service has responsibility for maintaining the register of driver licenses and administering the driver licensing system established by the Act, in the public interest and according to law. It is relevant that unlike what arose for consideration in Higginson, that the proceedings which the defendants each brought in the Local Court were civil, not criminal proceedings, albeit concerned with an important privilege, the defendant’s right to drive.

12. [45]

    In each case, as the statutory scheme required, the Service provided a s 221C statement, which was before the Local Court. Each statement revealed the correct position as to the defendant’s driving record and that he or she was thereby precluded by s 221D, from making an application for removal of his or her license disqualification.

13. [46]

    As I have explained, that material ought in each case to have resulted in the Local Court recognising that it had no jurisdiction to entertain the application for the s 221B orders which the defendants each pressed.

14. [47]

    The Service now seeks to have a conflict between invalid and valid orders affecting a person’s driving licence resolved by this Court, so that the Register it is obliged to maintain may be corrected, to reflect the operative order.

15. [48]

    In all of those circumstances, I am satisfied that the public interest would not permit the Court to refrain from making the order which the Service seeks.

16. [49]

    Even if the course which some of the defendants urged were accepted and I declined to make the orders the Service seeks in their cases, the Local Court’s order being a nullity, the Service would still be free to correct the Register, by administrative action. Indeed, it is difficult to see that it could refrain from doing so, given that the Register should reflect the earlier operative and validly made orders by which the defendants were each disqualified from driving.

17. [50]

    Accordingly, for reasons which I will further explain in relation to each case, I am satisfied that this Court should not refrain from making the orders under s 69 of the Supreme Court Act which the Service sought, in any of these cases.

Did the Local Court have power to order the removal of any of the defendants’ license disqualifications?

1. [51]

   In Ms Farrell’s case, the transcript reveals that the magistrate presiding in the Maitland Local Court noted that the last time that she had committed a driving offence was in 2014 and that in 2003, there had been an aggravated dangerous driving offence. But no consideration was given, as it had to be, to the impact of that conviction, given the provisions of s 221D.

2. [52]

   What transpired at the hearing was so quick, that it may conveniently be quoted in its entirety:

3. [53]

   These reasons were, undoubtedly, inadequate, not complying with the obligation to give reasons, which I have earlier explained.

4. [54]

   It was thus initially conceded for Ms Farrell that the presiding magistrate had erred in granting her s 221B application, not having considered:

   1. (1)

      the limits on who can make a s 221B application, which in her case flowed from s 221D(1)(b); or

   2. (2)

      that her 2003 conviction for aggravated dangerous driving occasioning grievous bodily harm, an offence under s 52A of the Crimes Act 1900 (NSW), precluded her from making a s 221B application: s 221D.

5. [55]

   In the result Ms Farrell also conceded that:

   1. (1)

      these errors went to the Local Court’s jurisdiction;

   2. (2)

      in her circumstances the Local Court had no discretion to grant her application, she having had no right to apply for removal of her licence disqualifications;

   3. (3)

      section 221B(8), which precludes an appeal under the Crimes (Appeal and Review) Act 2001 (NSW) against the decision, provided no bar to this Court quashing the Local Court’s order, there being no basis upon which her application could have been entertained; and

   4. (4)

      the Magistrate’s order should accordingly be quashed.

6. [56]

   These concessions were properly made.

7. [57]

   Ms Farrell’s application proceeded on a signed and dated “application for removal of licence disqualification (s 221) Coversheet”, in which she indicated that she was self-represented and that she sought orders that her license disqualification be removed from 13 September 2018.

8. [58]

   The documents before the Local Court included email advice attaching the Service’s s 221C report, which indicated that Ms Farrell was disqualified until 24 November 2020; a certified copy of her driving record, which included an aggravated dangerous driving occasioning grievous bodily harm (alcohol involved) offence, a s 52A Crimes Act offence committed in November 2003; and the Service’s March 2018 advice to her, that she did not appear to meet the criteria which permitted the Court to accept her application, given her record.

9. [59]

   There can be no question that the s 52A offence precluded Ms Farrell from making a s 221B application: s 221D(1)(b).

10. [60]

    In those circumstances, the Local Court simply had no power to entertain her application, nor any discretion to grant it. Still, it was finally submitted that this Court would refrain from making the order sought, because the Service had failed to prevent the Local Court from falling into error, because it did not appear to resist Ms Farrell’s application.

11. [61]

    That submission cannot be accepted.

12. [62]

    As I have explained, it was for the Local Court to be satisfied, before exercising the discretion granted by s 221B, that in Ms Farrell’s circumstances, it had the jurisdiction to do so. That is because it is the “first duty of every judicial officer” to satisfy him or herself that the Court has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd at 415 (Griffith CJ). That is in every case “the threshold consideration”: Commissioner of Taxation v Tomaras [2018] HCA 62; 93 ALJR 118, at [132].

13. [63]

    Not only had the Service advised Ms Farrell of its view that she was not entitled to make a s 221B application given her record, but both that advice and her record was before the Local Court, with the s 221C statement. The statutory scheme does not envisage that the Service will do more.

14. [64]

    Nor did any injustice result for Ms Farrell, when the Service did not appear in the Local Court to oppose her application. It was not a party to those proceedings and there is no suggestion that when she decided, despite the Service’s advice that the Court could not entertain her application, to make her s 221B application, that she served the application on the Service.

15. [65]

    Had the s 221C information which was before the Local Court been considered, as it needed to be, it should have been recognised that s 221D did not permit Ms Farrell’s application to be entertained and that the Court did not have jurisdiction to make the order which she sought.

16. [66]

    If the presiding magistrate considered that there was some other basis upon which the Local Court had the power to grant Ms Farrell’s application, that not only had to be indicated, but reasons for that conclusion had to be given.

17. [67]

    For Ms Farrell it was also submitted that in the circumstances, the Local Court’s order removing her licence disqualification was not a nullity, because it fell within that class of cases discussed in Attorney General for NSW v Mayas Pty Ltd (1988) 14 NSWLR 342 at 342 There McHugh J observed at 357 that:

18. [68]

    The licence disqualification removal order which the Local Court made in Ms Farrell’s case was submitted to have been within the Local Court’s power, but made on a mistaken foundation. Further, the error which had been made was factual.

19. [69]

    This may not be accepted because the order was made in circumstances where s 221B precluded the Local Court from entertaining Ms Farrell’s application. It is thus a nullity.

20. [70]

    It was also contended that the Local Court’s order was like that considered in State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32] and [55], where it was observed some decisions are given effect even though later set aside, such as orders of a superior court of record which are treated as valid until set aside. This submission may also not be accepted, given what was decided in Pelechowski.

21. [71]

    It was also argued that because the licence disqualification removal order was given administrative effect by the Service, despite legally being a nullity, this Court now exercising its power under s 69 would lead to injustice. That was because it would expose Ms Farrell, retrospectively, to criminal sanctions.

22. [72]

    I also do not accept this submission.

23. [73]

    As was conceded, the “orthodox” course in a situation such as this is for the Court to make the order sought. That is because it is not an order under s 69 of the Supreme Court Act which has the effect of making the Local Court’s order quashing Ms Farrell’s licence disqualification a nullity. That is the consequence of the Local Court having had no jurisdiction to make that order.

24. [74]

    What a s 69 order does is to quash the Local Court’s order, so that there can be no question as to the continuation of Ms Farrell’s licence disqualification, which is the result of the prior, valid order, which continues to have effect and was unaffected by the later order which the Local Court made without power, which is thus a nullity.

25. [75]

    This Court’s s 69 order will undoubtedly be given effect by the administrative steps which the Service will necessarily take, to ensure that the register of driver licences which it maintains, reflects that Ms Farrell’s disqualification remains in force.

26. [76]

    Even if, in the unlikely event that Ms Farrell was later charged with an offence of having driven unlicensed at a time when she understood that the Local Court’s order was valid, she having no defence of reasonable mistake of law available to her and so being vulnerable to conviction, she would obviously have a very strong argument for orders being made in her favour under s 10 or s 10A of the Crimes (Sentencing Procedure Act) 1999 (NSW).

27. [77]

    It is very difficult to see how such an application could be resisted by a prosecutor, but that this could conceivably arise, is not a proper basis for refusing now to make a s 69 order.

28. [78]

    As to the argument that any order made by this Court should have prospective operation, the fact is that the Court’s order will take effect from the date it is made. The order will not alter the position which existed beforehand, namely, that the Local Court’s license disqualification removal order was, in any event, a nullity.

29. [79]

    Mr Northcott did not appear to defend the application, advice being given on his behalf, that he is in custody and impecunious.

30. [80]

    The undisputed evidence was that Mr Northcott was also a “disqualified person” as defined in s 221B, when he applied in October 2018 to the Gosford Local Court to have his licence disqualification removed. His application was made by way of a document entitled “application to remove driver licence disqualification”, in which reference was made to s 221C of the Road Transport Act, signed by Mr Northcott.

31. [81]

    The order sought was “that my driver licence disqualification is removed”. The reasons advanced in support of the application were that Mr Northcott had not been convicted of any offence during the relevant offence free period and that he was therefore eligible to apply, a Local Court not having refused such an application with the last 12 months. The application also noted that “the RMS deem me not eligible”.

32. [82]

    Mr Northcott was represented and it was contended that his disqualification for “drive manner dangerous/reckless” expired on 9 June 2019; he had committed that offence on 6 January 2014; that this offence required a 4 year offence free period, before the Court could intervene; and that the RMS had wrongly calculated the date from the date of conviction, rather than of offending.

33. [83]

    Before the Court were also the s 221C report; Mr Northcott’s certified driving record; and the letter the Service had sent to Mr Northcott. There is no issue that it was Mr Northcott’s s 51B police pursuit offence, confirmed on appeal by the District Court in January 2014, which disqualified him from making his application: s 221D(1)(c).

34. [84]

    The case advanced in the Local Court and the reasons given for granting Mr Northcott’s application were again in such extremely short compass, that it is convenient to quote them in full:

35. [85]

    The evidence established, however, that Mr Northcott, too, was precluded from making a s 221B application, because he had committed a s 51B Crimes Act police pursuit offence in 2014: s 221D(1)(c).

36. [86]

    There can thus be no question that the Local Court had no jurisdiction either to entertain his application, or to make the orders sought under s 221B. The reasons given were entirely inadequate, the Court having failed to consider, let alone satisfy itself, that it had jurisdiction, or to explain why the Court’s discretion under s 221B was exercised.

37. [87]

    There is, accordingly, no conceivable basis upon which the order sought can be refused.

38. [88]

    Mr Le Thorn was unrepresented in both the Murwillumbah Local Court and this Court.

39. [89]

    In his case leave to proceed was required under Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), the Local Court’s order having been made on 24 July 2018; the 3 month time limit having expired on 24 October; and these proceedings commenced on 29 November, after the review of the Register which the Service commenced in November, which established that Mr Le Thorn’s case was one of the 6 cases identified, where the Local Court had made license disqualification orders, without jurisdiction.

40. [90]

    In the circumstances, I am satisfied that justice requires that the leave sought be granted, the relevant considerations under the Rule being the Service’s interest in challenging the decision; the possible prejudice to Mr Le Thorn and others caused by the passage of time, if the relief were to be granted; the time at which the Service became, or by exercising reasonable diligence, should have become aware of the decision; and any relevant public interest.

41. [91]

    The circumstances in which the Service came to investigate the Local Court’s orders are as I earlier explained. While it is apparent that granting the leave sought would prejudice Mr Le Thorn, the Local Court’s order being, in any event a nullity, I am satisfied that the leave sought should be granted.

42. [92]

    The Service, it must be accepted, has a real interest in challenging the Local Court’s decision, given its statutory role. The circumstances in which the Local Court’s error came to light and what these proceedings are concerned with, the new statutory scheme which regulates removal of licence disqualification, application for which is precluded in the case of those with specified serious offences on their record, I am satisfied, establishes that there is a real public interest in the leave sought being granted.

43. [93]

    The undisputed evidence was that Mr Le Thorn was also a “disqualified person” as defined in s 221B, when he applied in July 2018 to the Murwillumbah Local Court to have his licence disqualification removed and thus precluded from making that application, because of his driving record.

44. [94]

    Mr Le Thorn’s application was made by a printed form entitled “Application to the Local Court section 45 Local Court Act 2007 Part 4 Local Court Rules 2009”, which indicated that he was applying for removal of his driver license disqualification under s 221B(1) of the Road Transport Act.

45. [95]

    The reasons given in support of his application included:

    1. (1)

       He had not been convicted of any offence during the offence free period;

    2. (2)

       He was thus eligible to make the application;

    3. (3)

       His personal circumstances; and

    4. (4)

       There being no pending proceedings in relation to driving offences.

46. [96]

    Before the Local Court on 24 July 2018, again, was a s 221C report, as well as his driving record and the response to his request for the report, which also advised that Mr Le Thorn may be ineligible for removal of licences disqualification, because of his conviction for police pursuit offences.

47. [97]

    There is no question that on Mr Le Thorn’s record were two s 51B police pursuit offences, which precluded the Local Court from entertaining his application: s 221D(1)(c).

48. [98]

    Again, what transpired in the Local Court was so short, that it may conveniently be quoted in its entirety:

49. [99]

    The basis upon which the conclusion was reached that Mr Le Thorn had complied “with the requirements of removing the driver licence disqualification” was not disclosed. On what was before the Court, this conclusion was clearly not open. In Mr Le Thorn’s circumstances, the Court had no power to entertain his application.

50. [100]

    While reference was made to the personal circumstances which Mr Le Thorn advanced to support his application, which the presiding magistrate obviously considered sympathetically, the reasons given make apparent that his Honour failed to take into account the considerations specified in s 221B(2) and also failed to explain why the Court’s discretion was exercised.

51. [101]

    Again, there is no conceivable basis, in these circumstances, for refusing to make the orders which the Service sought, despite Mr Le Thorn’s submissions on the adjourned hearing.

52. [102]

    Then Mr Le Thorn explained that he had been in and out of custody since he was a kid; he was on parole when he made his application; his parole officer had assisted him in his pursuit of rehabilitation and his s 221B application; they both thought they had done the right thing and did not understand the new legislation which they had heard about; he believed that he was entitled to apply, having pursued driver training courses, drug and alcohol rehabilitation and had paid off his fines; and he believed that the Court had accepted that he had established that he was worthy of again having a licence.

53. [103]

    The magistrate was undeniably sympathetic to Mr Le Thorn’s circumstances, but the fact remains that under the new statutory scheme, the Local Court had no power to entertain or grant his application and accordingly, the orders which the Service seeks must be made.

54. [104]

    In issue in Mr Touba’s case was:

    1. (1)

       whether s 221D precluded him from making the application which he made under s 221B for removal of two habitual traffic offenders disqualifications, given that he had a conviction for two offences under s 51B of the Crimes Act, of drive recklessly or at a speed or manner dangerous (police pursuit), which he had committed in November 2012, which fell within s 221D(1)(c);

    2. (2)

       what jurisdiction the Magistrate exercised, to make the order granting the application;

    3. (3)

       whether the order was a nullity; and

    4. (4)

       whether the discretion to refrain from making the s 69 order would be exercised.

55. [105]

    Mr Touba’s habitual driver disqualifications did not cease to have effect, when the Act was amended in 2017 by the Road Transport Amendment (Driver Licence Disqualification) Act 2017 (NSW), to abolish the habitual offender scheme: cl 36 and 65 of schedule 4 Savings, transitional and other provisions of the Act considered in Dixon v Attorney General of NSW [2018] NSWSC 1618.

56. [106]

    Clause 65 provides:

57. [107]

    Clause 65 reflected that Part 7.4 “Sanctions concerning licences” of the Act was amended in 2017, by the repeal of Division 3, where s 220, which permitted the Local Court to “quash” a declaration of a person as a habitual traffic offender, appeared.

58. [108]

    The case advanced for Mr Touba in this Court was that while there was no issue that Mr Touba’s habitual traffic offenders disqualification fell within the definition of ‘licence disqualifications” in s 221A, s 221D did not apply to him, given the Local Court’s power to quash his habitual traffic offenders disqualification under s 220.

59. [109]

    Those submissions may not be accepted.

60. [110]

    The first difficulty is that while s 221B(11) provides that the section does not limit the Local Court’s other powers “to annul, quash, set aside or vary a licence disqualification”, if an application for orders removing a license disqualification is made under s 221B, the Court may not entertain the application if it is precluded by s 221D, as it was in Mr Touba’s case. If orders are sought under s 220, they do not require an application to be made under s 221B.

61. [111]

    The second is that s 221D does not, in its terms, exclude disqualification from driving as the result of a habitual traffic disqualification. Such a disqualification falls within the definition of ‘licence disqualifications” in s 221A. That supports the conclusion that s 221D applies to habitual driver disqualification, as does the definition in s 221A of “disqualified person” to mean “a person who is subject to a licence disqualification”. Given the introductory words of s 221D, that a “disqualified person is not eligible to make an application to the Local Court for the removal of licence disqualifications”, it is simply not open to conclude that s 221D does not apply to such persons, notwithstanding that s 221B(11) refers to the Court’s other powers to quash, set aside, or vary a license disqualification.

62. [112]

    The insurmountable difficulty is that Mr Touba made no application to the Local Court under s 220. Indeed, his application was made before Dixon was decided, which clarified that in circumstances such as his, even though s 221D precluded him from making an application for license disqualification “removal”, he was still entitled make an application under s 220, to have his habitual traffic offences license disqualification “quashed”.

63. [113]

    That is a different power to that which Mr Touba sought to have the Local Court exercise by the application which he made under s 45 of the Local Court Act. There he sought orders under s 221B. That is what he pursued at the hearing. Given what was then advanced and ordered, it is apparent that orders under s 220 were neither sought, entertained, nor made.

64. [114]

    Mr Touba’s application was made by way of a standard form s 45 application. It indicated that application was “for removal of license disqualification” and that the application was an “application to remove licence disqualifications Road Transport Act 2013 s 221B(1)”. The order sought was “that my driver license disqualification is removed”. Various reasons were advanced in the form, which addressed the s 221B(2) considerations and indicated that the s 221C statement was attached.

65. [115]

    The material before the Court included Mr Touba’s driving record and the Service’s April 2018 advice, that he did not appear to meet the criteria for the Local Court to accept his s 221B application, because of the offences of which he had been convicted.

66. [116]

    Mr Touba’s record established the s 51B offences he had committed in 2012, which precluded him making or pursuing that application, or the Local Court entertaining it: s 221D(1)(c).

67. [117]

    Despite this, the application which was signed by Mr Touba’s legal representative and filed on 17 August 2018, which was not signed by the Registrar, was still heard that day by the Burwood Local Court, without the requirements of s 221B being addressed. Nor was s 221D, or s 220.

68. [118]

    At the hearing Mr Touba’s legal representative confirmed, however, that the application was for “removal of a driver licence disqualification”. Her Honour observed that:

69. [119]

    No basis for that submission was advanced. There was then the following exchange:

70. [120]

    After an adjournment, her Honour announced:

71. [121]

    These reasons were also entirely inadequate, failing as they did to address the matters I discussed at [32].

72. [122]

    The order made was that Mr Touba’s application was “granted” and the court record noted that his driver license disqualification was “removed”, from a specified date. That order confirms that the power which the Court purported to exercise was that which it was asked to exercise, namely, that granted by s 221B. As I have already explained, that order was a nullity.

73. [123]

    Mr Touba’s right to make an application under s 221B depended upon the provisions of s 221D. He being a person who fell within s 221D(1)(c), that is a person who “at any time” had been convicted of a s 51B Crimes Act offence, there can be no question that he did not have the right to make a s 221B application. Nor did the Court have the power to entertain his application. As was conceded in final written submissions, the order made involved jurisdictional error.

74. [124]

    In Mr Touba’s circumstances, an application could have been made and dealt with under s 220 of the Road Transport Act. The statutory criteria which arise for consideration on such an application are not significantly different to those imposed by s 221B(2), but he neither made such application, nor was it heard or determined by the Local Court.

75. [125]

    The submission that the Local Court, nevertheless, had jurisdiction to make the order which it made, the power to order “removal” of the disqualification and the power to “quash” the disqualification being “interchangeable” because they have the same effect, may not be accepted.

76. [126]

    The application made to the Court under s 221B was one that it had no power to entertain, but it was not only heard, it succeeded. No application having been made or considered under s 220 and the order which was made being a nullity, this Court simply cannot now proceed as if a different application, which the Local Court could have entertained, had been made.

77. [127]

    In the result the orders which the Service seeks must also be made.

78. [128]

    Mr Culpan also did not appear to defend the application.

79. [129]

    His application under s 45 of the Local Court Act sought an order under s 221B for removal of his license disqualification and was signed by the Registrar, despite there being on the court file a s 221C report attaching his driving record. That precluded him from making an application, because of his conviction in 1987 of a culpable driving offence under s 52A of the Crimes Act, involving causing grievous bodily harm by the use of a motor vehicle: s 221D(1)(b).

80. [130]

    The application was dealt with by the Burwood Local Court, where the presiding magistrate considered Mr Culpan's record and from what he said during the course of the hearing, obviously concluded that his application was not precluded, despite the Service’s advice that he was ineligible to apply under s 221B, given the provisions of s 221D(1)(b).

81. [131]

    The proceedings began with:

82. [132]

    Mr Culpan then gave an account of his personal circumstances and answered the questions he was asked about his history, including about the police pursuit some 19 years previously, for which he was imprisoned, in which he said no-one had been hurt.

83. [133]

    The reasons then shortly given for the s 221B order were:

84. [134]

    There can be no question that these reasons were also inadequate and that the Local Court had no power to entertain the application, given Mr Culpan’s conviction for the s 52A offence to which s 221D(1)(b) applied.

85. [135]

    Accordingly, the order which the Service sought must also be made in his case.

86. [136]

    Mr Hooper also appeared in person in the Local Court and this Court.

87. [137]

    Mr Hooper also made his application under s 45 of the Local Court Act, seeking an order under s 221B for removal of his license disqualification. His application was signed by the Registrar, even though on the court file was a s 221C statement; Mr Hooper’s driving record and the Service’s advice that he was not eligible to apply because of his two 2016 police pursuit offences under s 51B of the Crimes Act.

88. [138]

    The “relevant offence free period” in Mr Hooper’s circumstances, had also not passed. Given that he had committed a “major offence” as defined in s 4 of the Road Transport Act, this period was 4 years: s 221A. “Major offence” is defined to include an offence under s 51B of the Crimes Act. In Mr Hooper’s circumstances, that period did not expire until April 2020.

89. [139]

    The case Mr Hooper advanced in this Court was an explanation of his medical history; the circumstances in which he had offended and come to be sentenced, having been unrepresented and pleaded guilty; how he had tried to “get under s 32 under mental health”, given his history of mental illness; his prior good driving record; his problems pursuing an appeal without legal aid; the advice he had received from the Service, about the correct procedure for attempting to get his license back; his understanding that after 2 years he was entitled to apply to have the disqualification removed; his current position as manager of a scaffolding business; the traffic offenders course he had undertaken; the circumstances in which he had been released from custody and had then finished parole; and errors made in relation to his sentencing, which he had yet to pursue.

90. [140]

    The transcript reveals that the presiding magistrate also took a sympathetic view of Mr Hooper’s circumstances, he having submitted in the Local Court that he was not precluded from making the application, despite his disqualification for his 2016 s 51B offences not concluding until March 2021 and that he had been encouraged to apply by his boss, in order to improve his life.

91. [141]

    His Honour noted that Mr Hooper had been sentenced to imprisonment for 20 months for his offences, with a 9 month non-parole period and that he was then working a scaffolder. After Mr Hooper answered other questions about his record, his Honour held:

92. [142]

    The Service’s case was that the transcript and the reasons given for the s 221B order which his Honour made, establish that there was a complete failure, in this case, to consider the applicable statutory scheme, no consideration at all having been given to the applicable statutory requirements under either s 221D or s 221B, before the order was made.

93. [143]

    Those submissions must be accepted.

94. [144]

    There is also no question, again, that the reasons given were quite inadequate, failing as they did to deal with jurisdiction, given the provisions of s 221D(1)(c), which precluded Mr Hooper from making his application or the Local Court from entertaining it. Nor were the considerations specified by s 221B(2) considered, or an explanation given for the exercise of the Court’s discretion.

95. [145]

    The Local Court unarguably had no power to entertain Mr Hooper’s application. Accordingly in his case, too, the orders sought by the Service must be made.

Costs

1. [146]

   Under the Uniform Civil Procedure Rules the usual order as to costs is that they follow the event, which in each case is that the defendant should pay the Service’s costs of the proceedings.

2. [147]

   In the circumstances I have discussed in each case, I can see no reason for departing from the usual order

3. [148]

   The question of whether the Court would grant a certificate under s 6(1) of the claim under the Suitors’ Fund Act 1951 (NSW) was also raised. It provides:

4. [149]

   The grant of such a certificate was not opposed.

5. [150]

   Section 69 of the Supreme Court Act does not provide a right of appeal, but rather gives the Court jurisdiction to exercise its supervisory jurisdiction over decisions of the Local Court, by granting relief of the kind which the Service sought in each case.

6. [151]

   In Ex parte Parsons; Re Suitors’ Fund Act (1952) 69 WN (NSW) 380, prohibition and certiorari had been sought. There it was held at 381 by Street CJ, with whom Owen and Herron JJ agreed, that there was jurisdiction to issue a certificate under s 6 of the Suitors’ Fund Act, because:

7. [152]

   This is a similar situation and in the circumstances I have discussed in each of these cases, I am well satisfied that each defendant should be granted such a certificate, given that the Local Court should not have entertained any of these s 221B applications.

Orders

1. [153]

   For the reasons given, I make the following orders:

   1. (1)

      The order made by the Local Court under s 221B of the Road Transport Act 2013 (NSW) removing Ms Farrell’s licence disqualification is quashed.

   2. (2)

      Ms Farrell is to pay the Service’s costs, as agreed or assessed.

   3. (3)

      Ms Farrell be granted a certificate under the Suitors' Fund Act 1951 (NSW) in relation to the costs of the proceedings, if she is otherwise qualified.

   4. (1)

      The order made by the Local Court under s 221B of the Road Transport Act 2013 (NSW) removing Mr Northcott’s licence disqualification is quashed.

   5. (2)

      Mr Northcott is to pay the Service’s costs, as agreed or assessed.

   6. (3)

      Mr Northcott be granted a certificate under the Suitors' Fund Act 1951 (NSW) in relation to the costs of the proceedings, if he is otherwise qualified.

   7. (1)

      Leave to bring the proceedings is granted under Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW).

   8. (2)

      The order made by the Local Court under s 221B of the Road Transport Act 2013 (NSW) removing Mr Le Thorn’s licence disqualification is quashed.

   9. (3)

      Mr Le Thorn is to pay the Service’s costs, as agreed or assessed.

   10. (4)

       Mr Le Thorn be granted a certificate under the Suitors' Fund Act 1951 (NSW) in relation to the costs of the proceedings, if he is otherwise qualified.

   11. (1)

       The order made by the Local Court under s 221B of the Road Transport Act 2013 (NSW) removing Mr Touba’s licence disqualification is quashed.

   12. (2)

       Mr Touba is to pay the Service’s costs, as agreed or assessed.

   13. (3)

       Mr Touba be granted a certificate under the Suitors' Fund Act 1951 (NSW) in relation to the costs of the proceedings, if he is otherwise qualified.

   14. (1)

       The order made by the Local Court under s 221B of the Road Transport Act 2013 (NSW) removing Mr Culpan’s licence disqualification is quashed.

   15. (2)

       Mr Culpan is to pay the Service’s costs, as agreed or assessed.

   16. (3)

       Mr Culpan be granted a certificate under Suitors' Fund Act 1951 (NSW) in relation to the costs of the proceedings, if he is otherwise qualified.

   17. (1)

       The order made by the Local Court under s 221B of the Road Transport Act 2013 (NSW) removing Mr Hooper’s licence disqualification is quashed.

   18. (2)

       Mr Hooper is to pay the Service’s costs, as agreed or assessed.

   19. (3)

       Mr Hooper be granted a certificate under the Suitors' Fund Act 1951 (NSW) in relation to the costs of the proceedings, if he is otherwise qualified.