By Geoff Wilkinson http://www.news.com.au/common/story_...E26462,00.html
January 27, 2004
A MOTORIST'S David v Goliath court victory over VicRoads has thrown into turmoil laws that force 24,000 drivers off the road each year. Frank Parsons' successful appeal against the suspension of his driving licence could lead to a flood of similar legal cases.
The 63-year-old inventor and chemist had his licence restored after a magistrate found VicRoads acted unlawfully by not advising him he had a right of internal review when his licence was suspended.
Mr Parsons' solicitor, Michael Grey, said he believed thousands of Victorian drivers could have lost their licences without being aware of their rights.
"Anyone who's received a VicRoads options notice has been misled by not knowing they had a right of review," Mr Grey said. He said he expected other drivers to take legal action now a precedent had been set.
About 24,000 Victorians each year have their licences suspended after receiving the notice the magistrate found was unlawful.
Mr Parsons' licence was suspended after demerit points incurred by a family friend, who was driving his car, were twice debited against his points tally rather than hers.
He said he would seek compensation for loss of time and income and the inconvenience suffered while fighting the case and being without his licence.
Geelong magistrate Ian von Einem said several statutory declarations and pleas by Mr Parsons for a review were rejected by VicRoads without being considered on their merits.
Mr Parsons and his wife, Shirley, only discovered they had a right of review when they read a reference to it on VicRoads' internet website.
The magistrate said it seemed to him that neither VicRoads' lawyers "nor possibly even VicRoads were aware of the review provisions". Mr von Einem said VicRoads could not fulfil its task of maintaining an accurate register of licence demerit points if it failed to follow proper review and appeal procedures.
VicRoads was required by the Road Safety (Drivers) Regulations to record the appropriate number of points against a driver if the driver paid the relevant penalty, the magistrate ruled.
"In my opinion, if any reasonable person had reviewed the decision to suspend (Mr Parsons') licence they would have simply assigned or allocated the demerit points from Mr Parsons to (his friend) after they received the relevant statutory declarations," he said.
Mr von Einem ordered the demerit points recorded against Mr Parsons to be deleted and awarded costs against VicRoads.
The case also raised the possibility that some people charged with driving while suspended may have lost their licences unlawfully in the first place.
There are 3.2 million licensed drivers in Victoria.
VicRoads said about 24,000 Victorian drivers each year lost their licences because they had reached the limit of 12 demerit points within three years.
An options letter sent to all drivers who reach the 12-point limit advises them they can either accept a three-month suspension or keep their licence but run the risk of the suspension being doubled if they incur any further demerit points in the next 12 months.
The options letter tells drivers they can appeal against their licence suspension to a magistrates' court, but does not mention the right of review.
Mr Parsons said he had been confident he would win his case, despite being told by VicRoads' lawyers he had no valid right of appeal.
"It's there in the Act, and it's so well written I didn't see how any magistrate could find against me," Mr Parsons said.
"I couldn't believe VicRoads' cavalier attitude or their ignorance of the law," he said.
"Whoever pays the fine is the guilty party.
"Once they do, under the law they take on the full liability."
The magistrate was told Mr Parsons was not driving a car he had lent to a family friend when speeding offences were recorded against him in September 2000 and December 2001.
When traffic infringement notices for the two offences were received at his home, his wife, without his knowledge, sent them on to the woman who was driving the car on both occasions.
The friend, who had borrowed the car for an extended period, paid the fines but was not debited with the two demerit points.
Mr Parsons, whose inventions include a chemical analyser and oil-immersed brakes, said he was without his licence for 19 days until it was restored pending the hearing of his appeal.
A VicRoads spokeswoman said it would be inappropriate to comment on the court's decision because VicRoads planned to appeal.
She said the question of compensation would not be an issue until the appeal had been decided.
But independent lawyers told the Herald Sun the 30-day period allowed for an appeal against the magistrate's November 14 decision had passed.
It is believed no changes have yet been made to VicRoads' options letter or to its driver suspension procedures.