RTA of NSW v Hillyard & Anor

MEAGHER JA: In this case the facts are: between 6 April 1999 and 16 October 2000 Mr Hillyard incurred 10 demerit points because of driving offences; on 19 February 2001 his car disobeyed traffic lights, an offence which incurred a further 3 demerit points. On an appeal to the Local Court, on 5 September 2001 the offence was found proved, but no conviction was recorded. The fact that no conviction was recorded, however, did not prevent the ruthless accumulation of demerit points. On 4 October 2001 he was advised that his licence had been suspended. He appealed to the Local Court against his suspension. That appeal was heard and allowed in the Local Court on 5 December 2001. The Magistrate’s decision was affirmed by Adams J. The New South Wales Roads and Traffic Authority now seeks prerogative relief questioning the decision.

The statutory framework relevant to this appeal has been set out in Roads and Traffic Authority of New South Wales v Kim Wilson & Anor [2003] NSWCA 279. There is no need to repeat it.

The reason why the learned Magistrate disallowed the suspension was that Mr Hillyard was not the driver on the 19 February 2001 occasion. In all the circumstances he found that a suspension was an unnecessarily harsh punishment.

No question has been taken on jurisdiction. Both parties argued the case on the assumption that the Magistrate had jurisdiction to entertain the appeal. This assumption is doubtful, if not erroneous (see Wilson’s Case ). However, we are prepared to make the same assumption, but only for the purposes of this case.

If one makes this assumption, I cannot detect any error in the learned Magistrate’s decision. The Authority submitted that the decision is inconsistent with (a) the fact that an offence had been committed, and (b) the operation of the demerit points system. It is, plainly, neither. Mr Hillyard clearly committed an offence, and equally clearly incurred three demerit points thereby. All the learned Magistrate decided was that, notwithstanding this, the suspension he otherwise would have suffered should be quashed.

I would dismiss the appeal with costs.

IPP JA: I agree with Meagher JA.

FOSTER AJA : I agree with Meagher JA.