Jimenez v Transport for NSW

By summons filed 25 March 2022, Magdaleine Jimenez ("the plaintiff") seeks injunctive and declaratory relief in the Court’s Duty List. The plaintiff sought to challenge decisions made by, Transport for NSW (formerly Roads and Maritime Services) (“the defendant”), in relation to her driver’s licence.

The plaintiff sought orders in the nature of urgent injunctive relief (orders (1)– (4)), declaration (orders (5) and (6)), damages (order (7)), rectification (orders (8) and (9)) and final declaratory relief (orders (10) and (11)). When the matter was called, the plaintiff indicated that the relief being sought are orders (1)–(3) and (5), which are as follows:

The plaintiff has held a NSW driver’s licence since about 1980. [1] Between 1973 and 1987, she experienced about ten seizures and commenced treatment for epilepsy. She has not had a seizure since 1987. [2]

On or about 2017, the plaintiff applied for a NSW driver’s licence which authorised her to drive vehicles up to the size and mass of a medium rigid vehicle (class MR driver’s licence) and was endorsed with the Passenger Transport Licence Code, which signifies she satisfied criteria to convey passengers for a fare and provide a passenger service pursuant to the Point to Point (Taxis and Hire Vehicles) Act 2016. [3] In this application, the plaintiff notified the defendant about her historical seizures. [4]

On 10 September 2018, the defendant wrote the plaintiff requiring her to undergo a medical examination by a neurologist to determine her medical fitness to drive, pursuant to cl 60 of the Road Transport (Driver Licensing) Regulation 2017 (the “Licensing Regulation”). [5] The defendant followed up on this request on 6 November 2018. [6]

On 18 November 2018, the plaintiff responded to the defendant by attaching a report by Dr Dowla, dated 15 February 2016. [7] Dr Dowla’s report purportedly stated that “[a]n underlying seizure disorder cannot be diagnosed”.

On 22 November 2018, the defendant wrote to the plaintiff. [8] The letter referred to Part B:6 page 89 of the publication “Assessing Fitness to Drive”, which stated:

The defendant noted that there was no evidence that the plaintiff had provided a satisfactory medical report from a neurologist in response to the 10 September 2018 request. Therefore, the defendant suspended the plaintiff’s driver’s licence from 13 December 2018.

On 1 December 2018, the plaintiff made an application to the Local Court (case number 2018/00369883) to appeal the decision of the defendant to suspend her driver’s licence (“the first Local Court proceedings”). [9]

On 26 February 2019, the matter was heard before Magistrate Denes who adjourned the proceedings and made the following notations:

I gather from these documents that the Local Court proceedings from then on proceeded on the basis that the plaintiff was appealing against the decision of the defendant to require her to undertake an “annual medical review”, not the decision of the defendant to impose a suspension.

On 1 July 2019, the matter was heard before Magistrate Feather. The plaintiff submitted that:

However, the parties before me did not provide a transcript of the proceedings or reasons for judgment from Feather LCM or any of the evidence that had been relied upon in those proceedings.

Magistrate Feather “allowed” the appeal. The plaintiff tendered a document titled “Advice of Court Result” dated 9 August 2021 from the Local Court, [12] which appears to show that Magistrate Feather made an order on 1 July 2019 (“the 2019 orders”) in the following terms:

On 27 July 2020, the defendant wrote to the plaintiff requesting her to undertake a medical examination by a neurologist. [13]

On 6 August 2020, the plaintiff responded by attaching a copy of the 2019 orders.

On 7 August 2020, the defendant noted “the [Local] Court notice advising that you are not required to provide an annual medical report” and withdrew the request to provide a medical report. [14]

On 2 August 2021, the defendant issued a “Fitness to Drive request notice” requiring her to obtain a specialist review by a neurologist by 27 September 2021. [15]

On 11 August 2021, the plaintiff responded by attaching a copy of the Local Court orders and stating that she has no neurological condition. [16]

On 6 September 2021, the defendant wrote to the plaintiff, [17] stating that:

On 1 November 2021, the defendant wrote to the plaintiff. The letter stated that, because she had not completed the assessments required to hold a driver’s licence, her licence was suspended, pursuant to cl 65(1)(a) of the Licensing Regulation from 8 November 2021. [18]

There followed further correspondence between the plaintiff’s solicitor and the defendant.

On 2 December 2021, the defendant wrote to the plaintiff extending the time to provide a satisfactory medical report from a neurologist, on the condition that she provide a further medical report by 16 December 2021, from a General Practitioner confirming that she was fit to drive until the specialist appointment date. [19] It may be inferred that the suspension of the driver’s licence was then lifted for some period while those steps occurred.

On or shortly after 9 December 2021, the defendant received a Medical Condition Notification Form from Dr Daniel Wardman. [20] The plaintiff contended that she had not authorised the release of this medical report. In cross-examination, she agreed that it was a second opinion she had sought. On the form, Dr Wardman ticks a box that reads:

Dr Wardman stated:

On 17 December 2021, the plaintiff obtained a letter from Professor Steve Vucic that stated:

On 20 December 2021, the defendant wrote to the plaintiff [21] as follows:

The letter stated that the cancellation had effect from 29 December 2021.

On 24 January 2022, the plaintiff appealed the decision of the defendant in the Local Court (case number 2022/00020484) seeking an order that “the decision of Transport for NSW be set aside/varied”. [22] The parties indicated that the particular decision under appeal relates to the letter dated 21 December 2021.

The application appears to have been listed before the Local Court on 24 February 2022.

On 5 March 2022, the plaintiff obtained a Medical Specialist Fitness Assessment Report for Driver Licences from Professor Vucic. [23] The report states that “[t]here have been no seizures since 1987. Has been off all medications since 2010.” Professor Vucic ticks boxes that indicates “[t]he driver (applicant) detailed in Part A…[m]eets the criteria for a conditional driver licence – I recommend future review…[y]early”.

The plaintiff sought injunctive relief that would effectively restrain the defendant from taking any action arising from the 2019 order. The relief sought would require the defendant to “rectify” any acts taken contrary to those earlier orders and also prevent the defendant from relying on the report of Dr Wardman. The thrust of the plaintiff’s oral submissions is that the 2019 orders prevented the defendant from ordering her to submit to medical reviews in relation to her driver’s licence or acting on the basis of Dr Wardman’s report. A conclusion in such terms (consistent with the declaration sought) could, it was contended, taint the subsequent steps by the defendant such that any cancellation of her driver’s licence was invalid.

The defendant opposed that relief and submitted that they are entitled to require medical examinations from driver’s licence holders and the cancellation decision was made pursuant to cl 65(1)(b) of the Licensing Regulation. The requirement was thereby unrelated to the determination in the first Local Court proceedings even if the Court declared there was a breach of the 2019 orders.

As interlocutory injunctive relief is sought, I am mindful of the principles enunciated by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46, who stated (at [65]):

I turn, first, to the plaintiff’s case. The plaintiff submitted that she could not be required to undergo a medical examination because it was not a condition of her licence. More precisely, the plaintiff submitted that the effect of the 2019 orders was to remove annual medical examinations as a condition.

It should be stated at the outset, a requirement to undergo a medical examination pursuant to cl 60 of the Licensing Regulation is different to a condition of a licence. This is so even if the requirement to undergo a medical examination is imposed with some regularity (such as annually or bi-annually) and the failure to undergo a medical examination may enliven the defendant’s power to vary, suspend or cancel a person’s driver licence under cl 65(1)(a).

This is made plain in the regulatory scheme. A condition can be imposed either when the licence is issued or when the licence is varied pursuant to cls 57(3) and (5) of the Licensing Regulation. A condition is shown by means of a code or symbol on the driver licence: cl 9. A failure to comply with a licence is an offence: cl 119(1). If it appears to the defendant that there has been a failure to comply with a condition of a licence, it may vary, suspend or cancel the licence: cl 65(1)(k).

A requirement to undergo a medical examination is pursuant to a separate power in cl 60 of the Licensing Regulation. That provision provides that:

If it appears to the defendant that there has been a failure or refusal to submit to a medical examination, the defendant may vary, suspend or cancel the licence under cl 65(1)(a) of the Licensing Regulation.

Here, the defendant required the plaintiff to undergo a medical examination under cl 60 of the Licensing Regulation. This requirement was made independent of any condition on the licence.

It follows that, even if Feather LCM was able in the first Local Court proceedings to validly make orders on the appeal by the plaintiff altering the conditions of her licence and assuming that such condition was, in fact, imposed, those circumstances did not affect the power of the defendant under cl 60 of the Licensing Regulation or, as I will now discuss, the exercise of the defendant’s power under cl 65(1)(b). I also note that the power of the Local Court to extinguish or alter requirements imposed by the defendant to undergo a medical examination may be doubted.

After receiving Dr Wardman’s report, the defendant cancelled the plaintiff’s licence pursuant to cl 65(1)(b), which provides that:

The plaintiff relied on evidence from Professor Vucic about her medical condition while the defendant relied on the report by Dr Wardman. It is not necessary nor appropriate for me to determine in these proceedings whose evidence I prefer or the correctness of each expert’s views. The resolution of this matter will likely involve further testimony and cross-examination. It may be that the Local Court in the plaintiff’s second appeal will form a view as to which of the expert evidence it prefers.

However, I am satisfied from the more detailed report of Dr Wardman, on which the cancellation decision was based, that the defendant could have been satisfied of the requirement in cl 65(1)(b) of the Licensing Regulation and thereby impose a cancellation.

On the evidence before me, I am not satisfied that the plaintiff has demonstrated a sufficient likelihood of success to justify interlocutory injunctive relief that would have the effect of restoring her driver’s licence.

Even if I was satisfied that there is a prima facie case, I would not grant interlocutory injunctive relief because the balance of convenience favours the defendant. This is because there are presently Local Court proceedings to appeal against the defendant’s cancellation decision pursuant to Pt 7.8 of the Road Transport Act 2013 (NSW) (“the Act”). The cancellation decision is an “appealable decision” pursuant to s 266(1)(l) of the Act (definition of “appealable decision”) and cl 140(c) of the Road Transport (General) Regulation 2021 (NSW). The Local Court has the power to set aside or vary the defendant’s decision, dismiss the appeal or make any order that seems just: s 268(2). I understand that the Local Court is due to hear the appeal on 12 May 2022. The better approach is to allow the Local Court appeal to run its course.

The plaintiff sought to attack the observations of Dr Wardman and injunct the use of his report. I consider that matters of the strength, accuracy and credibility of Dr Wardman and his report are quintessentially for the Local Court in the second appeal.

Those same considerations warrant the exercise of the discretion to refuse injunctive relief on an interim basis.

The plaintiff sought a declaration that the defendant has breached the 2019 orders. The plaintiff submitted that this breach was occasioned by the requirement that she submit to periodic medical reviews. In oral argument, the plaintiff made a collateral attack on the defendant’s decision to cancel her licence as follows:

The defendant’s submissions were two-fold. First, the Local Court exceeded its jurisdiction by purporting to vary a condition of the plaintiff’s licence when no such condition had been imposed. Therefore, the order of the Local Court was a nullity and of no effect. Secondly and in the alternative, there was no breach because the order only prevented “annual” medical reviews and the defendant had purported to impose bi-annual reviews.

There is a preliminary question that requires this Court to determine the validity of the 2019 order. There is some doubt as to whether the 2019 order is valid because it does not appear that the defendant ever imposed a condition. However, it is undesirable to resolve this question at this stage of the proceedings. The parties have not provided me with a transcript of the hearing, their submissions in the Local Court and the amended originating documents indicating the relief sought in that Court. In the absence of these documents, and in circumstances where it is strictly not necessary to determine the question, it is not appropriate to decide the validity of the order.

However, assuming the validity of the 2019 order, it can be observed that the order was framed in a very particular way. On its face, it purported to remove a condition. When construed this way, it is clear that the defendant’s exercise of their statutory power under cl 60 of the Licensing Regulation was not in breach of the 2019 order. As I explained above, the requirement to undergo a medical examination is distinctly separate from the imposition of a condition.

Furthermore, assuming a condition was imposed, the nature of a bi-annual requirement makes it different to a condition to undergo an “annual” examination.

If, as the plaintiff submits, the order of the Local Court had the effect of prohibiting the defendant from requiring medical examinations under cl 60 of the Licensing Regulation, then there would be real questions as to the competency of the Local Court to make such an order. As the defendant submitted, such an order would fetter the discretion conferred in cl 60 of the Licensing Regulation for the life of the licence.

In these circumstances, declaratory relief in the terms sought by the plaintiff should not be made.

For these reasons, I make the following orders: