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Are you being incorrectly served

OPINION: How improper procedures can lead to a driver unwittingly driving while disqualified

 

In the ever-evolving landscape of legal proceedings in Australia, the methods of serving court and suspension notices have undergone significant changes, driven by the need for efficiency. However, the consequences of not receiving such notifications can be dire, especially in cases involving driving offences. This article examines a recent case in Victoria that underscores the potential ramifications of inadequate notice, particularly in driving while disqualified cases, which carry the threat of a prison sentence in many cases. Individuals who inadvertently drive while their licenses are suspended, even due to medical reasons, can find themselves embroiled in legal battles that threaten their freedom and livelihood.

A recent case in Victoria is a stark reminder of the pitfalls of inadequate notice systems. The client, who had been medically suspended by VicRoads (now known as the Department of Transport), faced legal proceedings for driving while medically suspended. The suspension had been lifted based on medical reports, and he had resumed driving in good faith. Unfortunately, further medical reports were sought due to a policy change, resulting in another suspension.

The crux of the matter lay in the alleged service of the suspension notice. VicRoads claimed that the client had been served the notice by normal mail. However, the client vehemently denied receiving any such notification. This discrepancy highlights the critical role of proper notice in ensuring individuals are aware of their legal status and obligations, particularly in cases where continued compliance is imperative.

Highway Advocates became involved, and the case progressed to what is known as a contest mention in Victoria. Case conferencing with the Police had gotten nowhere, and they had dug their heels in. Police claimed the suspension notice had been legally served on a Post Office box. We thought this strange. How can you be served at a PO Box? One of the reasons people use this service may be that they are away for long periods.

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Highway Advocates stepped in to navigate the intricate maze of legislation surrounding these cases. A crucial discovery was made within the Road Safety Act 1986 (Vic) section 93, which outlines the permissible methods of serving notices. This section delineates methods of notice delivery, emphasising that certain methods are authorised, while others are not. The case in question highlighted how improper notice could lead to false allegations and legal quandaries, potentially affecting countless others who may have suffered a similar fate.

Further methods may be used in order of ascendency, but not one of them allows a notice of suspension to be served on a Post Office box. The case was withdrawn. How many other people have suffered a similar fate?

VicPol Heavy Vehicle Unit

Still in Victoria, the VicPol Heavy Vehicle Unit is fairly active in that part of the world. Many of our clients have been subject to prosecutions initiated by the unit. There are serious issues surrounding how unit members search trucks, but for now, we will focus on the service of court summons and charge sheets.


RELATED ARTICLE: Prosecution makes for uneven playing field


When charges are laid, a charge sheet and summons are prepared. The Criminal Procedure Act in Victoria provides that, except where otherwise expressly enacted, every summons to answer a charge must be served personally in accordance with section 391. This section dictates that:

• personal service may be effected by giving a copy of the document to the person to be served; or

• putting the copy down in the person’s presence and telling the person the nature of the document; or

• leaving a copy of the document for the person at the person’s last known or usual place of residence with a person who appears to be of or over the age of 16 years.

It seems pretty clear, doesn’t it? So why isn’t it done this way in many cases? Because it is easier and cheaper just to email it, send it by text or perhaps not bother to send it at all. We say this isn’t good enough, and many of our clients have had amazing outcomes when the lack of lawful service has been ventilated before the courts.

Non-payment of fines

NSW doesn’t seem to do it any better, especially when licences are suspended for non-payment of fines. Legislation is there for a reason, and it would seem logical that some proof of service would be required if your licence was suspended or cancelled when you are unaware of why.

Over the years, the service of court and suspension notices in Australia has undergone transformations aimed at expediting legal processes. While this evolution has brought about efficiency gains, it has also introduced complexities that can have serious repercussions.

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In NSW, when a licence is suspended for non-payment of fines, Revenue NSW must notify Transport for NSW who then must, without further notice, suspend any driver licence of a driver licence of a fine defaulter. However, any such notice may only be served personally.

How many of you out there have received a notice from the debt collector, Revenue NSW, telling you that your licence is suspended for non-payment of fines? This notice is never personally served as required.

Space does not permit further detail, but you may be sure of one thing. As notice systems in Australia continue to evolve for expediency, the above serves as a cautionary tale. Inadequate or unlawful notice can have far-reaching consequences, especially in driving offences with the potential for imprisonment.

Legal professionals protect their client’s rights by meticulously examining notice procedures and advocating for fairness and justice. Here at Highway Advocates, we take that responsibility seriously. As the legal landscape adapts to changing times, upholding the principles of due process remains paramount to preserving the justice system’s integrity.

*ROBERT BELL and his team of legal professionals are Highway Advocates, a focused legal practice dealing with heavy vehicle offences throughout Australia. Robert is an ‘industry insider’ with a wealth of transport sector experience. He is the guiding force behind the successful outcomes that Highway Advocates consistently achieve. Contact Highway Advocates at admin@highwayadvocates.com.au or 0488 01 01 01. Visit their website at www.highwayadvocates.com.au

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