Last week a mother came in to see us quite distressed and told us that her Son had been driving her car registered in her name. Her son had been caught speeding, 120kph in an 80kph speed zone.
- A penalty notice had issued in her name 28th March 2014
- Due date for payment 25th April 2014
- Mum paid penalty notice 2nd May 2014
A Suspension notice was issued to the mother by the Transport Roads and Maritime Services (RMS) on the 15th May 2014 as there was an automatic suspension of the mother’s driving licence for this infringement.
Mother is furious and wants son to accept the speeding infringement notice.
What are mother’s options?
Option 1: Take the Rap
On reflection mum decides to take the rap for her son.
This is an appealable decision under s 266 Road Transport Act 2013. The appeal is under s267. Mother has 28 days from the service of notice of suspension to lodge appeal.
The appeal is in relation to the suspension order, not that she is not responsible for the offence. Under the Act the court will not be able to go behind the offence that triggered the suspension.
The offence is the mother’s not the sons. The mother will have to argue that she accepts the offence but given other considerations (such as a nil record or emergency situation) the court should vary the RMS decision to suspend.
Option 2: Son Take the Rap
On further reflection mum does not want to take the rap for her son
There are review provisions under the Fines Act 24A.
The review will be based on the fact that mum was not driving and that the son was. She would have to include a statutory declaration to verify that it was the son. It would also be prudent if she was to include a statutory declaration from the son stating that he was the driver.
If the explanation is accepted then the penalty notice will be withdrawn and another will issue against the son. Mum will be off the hook.
Although the fine has been paid this will not preclude the application to review.
If the whole of the penalty has been paid and a penalty reminder notice was not served, then you have 60 days from the service of the penalty notice to make the application.
If there was a penalty reminder notice issued then payment you only have 28 days from the due date specified in the penalty reminder notice.
THIS IS NOT A PENALTY NOTICE ENFORCEMENT ORDER application for annulment under s 48 Fines Act 1996.
S49A of the Fines Act does not apply so the Commissioner does not have to conduct a review on the original penalty enforcement order.
Please note that the above information is given in general terms as a guide only to the possible solution of the problem presented. It should not be used as legal advice for a problem that you may be facing.
Paul P Falzon can be contacted at email@example.com or (02) 9502 2922