Russo v Vicroads [2001] VSC 327 (31 August 2001)

Last Updated: 7 September 2001

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

SALVATORE RUSSO	Applicant
v
VICROADS	Respondent

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 AUGUST 2001
DATE OF JUDGMENT:	31 AUGUST 2001
CASE MAY BE CITED AS:	RUSSO v. VICROADS
MEDIUM NEUTRAL CITATION:	[2001] VSC 327

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CATCHWORDS: Administrative Review of decision of Statutory Corporation - No decision made by Corporation - No matter of substantial importance - No injustice - Administrative Law Act 1978 s.4(2)

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. D. Gurvich	Rosendorff Lawyers

HIS HONOUR:

1. The applicant, Salvatore Russo, is the holder of a Victorian driver licence. On or about 16 August 2000 he received by mail, from the respondent VicRoads, a document which purported to be a notice under ss.25(3) and 25(3D) of the Road Safety Act which, on its face, alleged that the applicant had incurred 12 or more demerit points as a consequence of driving offences committed by him from 2 October 1997 to 26 July 2000.
2. The notice pointed out that the applicant then had two options. The first option was to keep his driving licence, however if he accumulated any further points within the 12 month period commencing on 27 September 2000 his driver licence would be suspended for a period of six months. The second option was simply to have his driver licence suspended.
3. The applicant elected to take option one and complied with the appropriate procedure insofar as that was concerned, so that he was thereafter able to drive for a period of 12 months from 27 September 2000, but if during that period he should incur one or more demerit points then his licence would automatically be suspended for six months.
4. On or about 2 August of this year the applicant received a notice of suspension of driver licence pursuant to s.25(3B) of the Road Safety Act. The suspension is to commence on 2 September 2001 and is for a period of six months.
5. The applicant, through his solicitors, sought a review of the decision to suspend his licence. However, VicRoads, in a letter to the applicant's solicitors of 28 August 2001, stated that the applicant had no right to an internal review in this case.
6. I have had the opportunity, since the applicant's papers were handed to me at approximately 11 a.m. this morning, to consider the content of that material and to consider the relevant provisions both of the Road Safety Act and the Road Safety Drivers Regulations 1999. Having done so, the opinions I have formed in the matter are the following:

1. There is no right to an internal review of a suspension pursuant to s.26(3B) because, in my opinion, that suspension is not made pursuant to a decision made by the Corporation such as a suspension pursuant to s.24(2), it is something which occurs by the very operation of s.26(3B). That imposes a mandatory obligation upon the Corporation to suspend a person's licence if the person incurs one or more additional demerit points within the extended 12 month period. There, in my view, is no decision-making process on the part of the Corporation, it is simply required to perform the obligation imposed upon it by the sub-section.

2. As to the applicant's allegation of non-service of the details of the demerit points incurred by him, a matter that is clearly challenged by the Corporation, it is my opinion that it would be inappropriate to grant any application for review in respect of such a matter. In my opinion, no matter of substantial importance is involved in the point and the refusal will impose no substantial injustice upon the applicant. (See s.4 of the Administrative Law Act).

7. The applicant does not challenge the fact that he incurred the demarcation points referred to in p.2 of the notice forming part of Exhibit SR6 to the affidavit of the applicant sworn 30 August 2001. Indeed, when he was served with the s.25(3) notice on or about 24 August 2000 he took the option available to him pursuant to s.25(3A) and elected to extend the demerit point period for 12 months. He was then unfortunate enough to incur one further demerit point, bringing into operation the mandatory provisions of s.26(3B).
8. Whilst the suspension may well cause hardship to the applicant, I do not consider that it can be said that the refusal to grant the order will result in substantial injustice to the applicant. There is a clear distinction between injustice on the one hand and hardship on the other.
9. For those reasons the application is refused.
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