If your licence has been suspended, you may be able to appeal to the Local Court for it to be lifted if your licence was suspended by Transport for NSW (TfNSW) (the prosecuting authority) or by a police officer.

When you lodge an appeal, your licence suspension will be stayed (or in other words “paused”) until the Court hears your application. That means you can continue driving until your appeal is heard.

In any event, you should always double check with TfNSW whether your suspension has been stayed before you start driving again if you lodge an appeal.

You must file your appeal at least one (1) day before your suspension is due to begin. If you file on or a day before the suspension begins at the Local Court it will not be able to hear your case even if the Court Registry accepts your application.

You can lodge your appeal online or lodge an application notice at any NSW Local Court Registry by filling in the form called “Application to the Local Court” under section 45 of the Local Court Act 2007 (Part 4 of the Local Court Rules).

You can file any completed form at any NSW Local Court in person, by post, by fax, by email.

There is a filing fee, so your appeal will not be confirmed until you pay the $110 fee.

Police issued licence suspension notice

If you were suspended “on-the-spot” by the police, your licence will remain suspended until your appeal is heard.

If this happens the suspension begins immediately and your will not be able to drive away, you should call someone to pick you up or call an Uber or Taxi.

If you are caught driving after the issue of a licence suspension, you will likely be arrested and charged with a criminal offence which will likely result in a court ordered disqualification resulting in a criminal record.

If that happens call Richard immediately on 0411 460 034 before you decide to speak to the police in any form of interview.  

If you are not suspended on the spot, then the police have 48 hours to suspend you after issuing you a penalty notice or charge.

Depending on the offence the suspension may be an automatic 3 or 6 months or if you are charged, the suspension will remain in place until your case is heard by the court.

Which offences result in an immediate suspension?

Police can issue an immediate licence suspension for the following offences:

  • exceeding the speed limit by more than 45 kilometres per hour for a provisional or full licence holder,
  • exceeding the speed limit by 30 kilometres per hour for provisional licences or foreign licence holders,
  • low, mid, and high-range drink-driving with the prescribed concentration of alcohol (PCA) for both first and second/subsequent offences,
  • drug-driving for both first and second/subsequent offences,
  • an offence involving the death of, or grievous bodily harm to, another person caused by the use of a motor vehicle, being an offence that includes murder or manslaughter, wounding, grievous bodily harm with intent, reckless grievous bodily harm or wounding, dangerous driving.

Appealing a Suspension by a police officer

You must file your appeal within 28 days of the date you were suspended.

You remain suspended until the matter is determined by the court on the date of the appeal.

You should obtain legal advice before appealing a licence suspension, this is where McDonald Law can assist!

If you do not file within the 28-day period, then you cannot seek leave to file a late application. That’s it, your licence suspension is final.

Stay Applications

If you are charged with a criminal offence and your licence has been immediately suspended, you can apply to the Court to have that immediate suspension stayed pending the outcome of the court hearing.

You must be able to establish ‘exceptional circumstances’ as the court must apply Clause 148 of the Road Transport (General) Regulation 2021 and take into account each of the following:

  •  Strength of the Prosecution Evidence.
  • The affected persons need for a licence.
  • In relation to the decision of a police officer to give the person an immediate suspension notice – the potential danger to the community if an order is made.
  • In relation to the decision of TfNSW to suspend the registration of a heavy vehicle – the hardship likely to be experienced by the registered operator of the vehicle.
  • Any other matter the Local Court considers relevant.

What happens at a Licence Suspension Appeal?

You must show exceptional circumstances as to why your licence should not be suspended.

‘Exceptional circumstances’ is not defined under the Road Transport Act 2013 but guidance may be taken from Clause 148 of the Regulations (as above):

  • The applicants need for a licence.
  • Any hardship caused to the applicant as a result of the suspension.
  • The public interest if the order is made, dismissed, or varied, and
  • Any other matter the court considers relevant.

The test for arguing ‘exceptional circumstances’ is high but not insurmountable. Preparation of your personal circumstances is key.

Our licence suspension lawyers can help you put your best foot forward in the appeal process!

We will need evidence to support that your licence should not be suspended such as evidence of:

  • Good Character.
  • You need your licence for work or family reasons.
  • There is some other good reason that court should overturn the suspension.

That will include evidence of a good (not a perfect) traffic record, reliable personal and professional character references, an apology letter to the court, and any other evidence that might demonstrate that the suspension should be lifted in the circumstances.

Other evidence may include:

  • A letter from your employer explaining what work you do and why you need your licence,
  • A medical certificate from your doctor or specialist explaining your need for a licence because you must attend regular medical appointments or you are the carer for a person who must attend these appointments,
  • Evidence of lack of access to public transport, the distance between your home, children’s school, childcare, where you might exchange the children for custody with the other parent etc.

It is important to note, that loss of employment only and in isolation is not regarded as an exceptional circumstance.+

We will tailor the appeal to your specific personal circumstances!

The Decision

After the Court hears your appeal, it may:

  • Lift the suspension,
  • Vary the suspension period – it may decrease or increase the length of the suspension,
  • Dismiss the appeal altogether and confirm the suspension period.

If the court dismisses your appeal and your licence suspension was stayed beforehand, the time of the suspension period will start at the date of the decision minus any days you were subject to the licence suspension by the police.

If the court lifts your suspension, you will get your licence back.

If the police confiscated your licence, you will need to contact TfNSW to replace your licence before you can start driving again.

You do not have to replace your licence if it was taken from you, you may start driving straight away provided it is still valid and has not expired.

If expired, you will need to renew it before you start driving again.

The decision will be final and you cannot appeal the decision to any other court.

Other Considerations

A licence suspension applies to all categories of vehicle on your licence including, car, rider, and heavy vehicles.

If you drive while suspended, there are significant penalties such as licence disqualifications, which are court orders and will count as a criminal offence that may result in a criminal record. You may also receive a heavy fine or imprisonment or both.

Possible Defence of Honest and Reasonable Mistake of Fact

You cannot be found guilty of suspended driving or a similar licensing offence under certain circumstances.

The prosecuting authority (TfNSW) bears the full onus and burden of proving beyond a reasonable doubt that you knew you were suspended from driving at the time of the offence. For instance, you cannot be found guilty if they cannot prove that you were served with their suspension notice. For example, if the mailing address was sent to the incorrect address or to an address where you no longer reside or work. In variably unless they can prove you were served the notice, you cannot be found guilty of the offence.

Recap

When Can You Appeal?

  • For speeding more than 30 km/hr over the speed limit.
  • For speeding more than 45 km/hr over the speed limit.
  • For driving with a low, special or novice range prescribed concentration of alcohol.
  • On the spot by a police officer.
  • For driving with an illicit substance present in your oral fluid, blood, or urine.
  • For having too many demerit points, if you are a provisional or learner licence holder.

You cannot appeal a demerit point suspension if:

  • You have an unrestricted licence, and you were on a good behaviour licence.

What is a “Good Behaviour” Licence?

If you have an unrestricted NSW Driver Licence and you have received a notice of suspension because of excessive demerit points you may be eligible to elect for a 12-month good behaviour period.

You must apply to elect for a good behaviour period before your suspension starts.

You can apply online if there are at least 2 business days left before the start of your suspension period.

Eligibility:

You are eligible if:

  • your suspension letter states you can apply for the good behaviour period.
  • the suspension period has not started.
  • you hold at least one unrestricted NSW Driver Licence.

You are not eligible if:

  • your suspension letter does not mention the good behaviour period.
  • you only hold a provisional or learner licence.

 Conditions

If your application is successful, you’ll need to meet the conditions of the good behaviour period for 12 months.

  • If you need to take a Driver Knowledge Test, the good behaviour period will start after you have passed. If you do not pass before your suspension starts, all your licences will be suspended until you have passed.
  • If you get 2 or more demerit points during the 12 months, all your licences will be suspended for double the original suspension period.
  • After the 12 months, the demerit points on your suspension notice will be cleared from your licence, unless you:
    • get 1 demerit point during the 12 months.
    • have other points not listed in your suspension notice.

If these points take you over 13 demerit points, you may receive a new suspension notice.

Call Richard McDonald of McDonald Law for an appointment or for just some helpful advice on any Licence Appeal or Good Behaviour Licence matters on (02) 8824 4736 or 0411 460 034 or email him directly at [email protected]

What to do next?

If you have been issued a licence suspension call Richard McDonald of McDonald Law on (02) 8824 4736 or email richard directly at [email protected].

We will be able to assist you, provide you with honest feedback, and give you practical options to plan, prepare and resolve your case.