Category Archives:Traffic and transport legal advice

Special Hardship Orders

In circumstances where your provisional or open driver’s licence has been suspended following accumulation of two or more demerit points whilst driving during a good driving behaviour period or if you are convicted of a high speed offence of driving more than 40km/h over the speed limit you may be able to obtain a special hardship order from the court which would have the effect of reactivating your suspended driver’s licence.

Not unlike an application for a work licence following an offence of drink / drug driving, you must meet certain eligibility criteria in order to be entitled to apply.

An important point to remember is that you must lodge the application with supporting affidavit material with the court within 21 days after your licence has been suspended.

Therefore, we strongly recommend that upon receiving written notification that your licence has been suspended following the accumulation of points during a good driving behaviour period or a high speed offence, that you contact a law firm to determine whether you are eligible to apply for a special hardship order.

If you are eligible to apply for such an order, we are required to prepare the necessary applications and supporting affidavit material to meet the relevant criteria required by the legislation.

This material is then filed before the court and at which time we will be able to provide you with the date and time that this matter will be heard by the court.

Please note that the letter from the Department of Transport will state the date of your licence suspension. Until the Department of Transport is notified of an application for a special hardship order being filed with the court, you will not be able to drive. Even if you have actually filed the application, if you are pulled over by the police prior to having notified Queensland Transport, you will most likely be charged by the police with the offence of driving without a licence.
This is why we lawyers are always eager to have clients visit our office upon receipt of the letter from Queensland Transport so that the material may be filed at the first available opportunity thereby reducing the period of time that you are unable to drive freely.

At the first return date of the application (the date that your application is heard by the court), we will appear with you and do all of the talking to the magistrate. Your experience will therefore be as easy and comfortable as it can be in the circumstances.

If you are successful in having your application granted, the court will make orders setting out the particular way your restricted licence will operate. For example, you may only be able to drive between the hours of 8.30am and 5.00pm from your home to your work and for no other reason. You may also be required to wear a uniform. If you breach any of these orders, you will be subject to a charge by the police.

Please note that the order you receive from the court is NOT a licence and you will still not be entitled to drive until the order has been processed by Queensland Transport who will note the specifics of the order on your driver’s licence which will then enable you to drive within the criteria set out by the court. Should you have any queries regarding applying for a special hardship order please do not hesitate to contact our office.

What is a Work Licence?

A work licence is a restricted licence obtained by applying to the court in circumstances where the driver satisfies the criteria for the court to grant the licence.

There are two situations in which a driver may be able to apply for a work licence:

1. For a drink driving offence where the blood alcohol concentration (BAC) was below 0.15% at the time of the offence; and
2. A special hardship order, where the driver of a vehicle has accumulated more than 1 demerit point whilst on a good behaviour driving period.

Work Licence Following Drink Driving Offence

The Transport Operations (Road Use Management) Act 1995 (Qld) allows a driver who has been charged with driving or being in charge of a motor vehicle whilst under the influence of alcohol or being in charge of a vehicle while a relevant dangerous drug is in saliva / blood, to apply to the court for a restricted work licence if the following criteria are met:

1. You are the holder of a Queensland open or provisional licence;
2. At the time of the offence, you were not driving in the course of your employment;
3. At the time of the offence, you were detected with a blood alcohol concentration of not more than 0.15%.

Despite satisfying these criteria, you will not be entitled to make an application if, within the five years immediately prior to the date of your application:

1. Your Queensland driver’s licence has been previously suspended or disqualified;
2. You have been disqualified from holding or obtaining a Queensland driver’s licence;
3. You have been convicted of dangerous operation of a motor vehicle.

Please note your eligibility to apply is not affected in certain circumstances such as when your driver’s licence was suspended as a result of non-payment of a State Penalties Enforcement Registry (SPER) fine and a number of other circumstances.

If you are in any doubt please contact Hall & Co Solicitors to discuss your eligibility.

Refusing to Provide a Breath Specimen

If you refuse or fail to provide a breath test or blood test as directed by the police, you may be charged with the offence of “failing to provide a specimen of breath or blood” and you will be required to go to court to have this charge dealt with.

If the court finds you guilty of this offence, you will be penalised as if you had committed a ‘major drink driving offence’, meaning that you will be deemed to have had a blood alcohol concentration of 0.15% or higher and you will therefore be penalised accordingly with a fine and licence suspension.

You will not be able to apply for a work licence in this circumstance.

The Process

In the case of drink / drug driving offences, prior to being released by members of the Queensland Police Service you will be issued with a Notice to Appear, which will set out the particulars of which court you are to attend and the date and time you are required to appear in person.

At this time, it is imperative that you seek legal advice to determine the appropriate course of action you should take and whether you are eligible to apply for a work licence.

You should remember that you only get one chance to apply for a work licence and the legislation requires a number of conditions are met. If unsuccessful, the consequences may be disastrous for both your family and your ability to maintain your employment.

Once you have contacted our office to arrange a mutually convenient time to attend we will obtain the relevant facts from the Queensland Police Service directly and then go about taking your instructions to prepare the necessary material to be filed at court in anticipation of your application.

A good lawyer will ensure that the affidavit (a document explaining your circumstances which is sworn by you and filed in the court) will explain the circumstances of the offence in question, the type of work you perform, why a licence is required to enable you to perform that work, your family and financial circumstances.

If you are not self-employed, your solicitor will also draft the necessary affidavit of your employer for them to sign to support you. The next step is filing the affidavit and application material to allow the court to set down a date to hear your application.

On the day of the application a representative of your law firm will stand by your side and make the application to the court, so that you are not required to say or do anything in most circumstances. For many of our clients, a court appearance is daunting as they have never been to court and they find that having a legal professional with them is an enormous stress relief. Added to this is the knowledge that the solicitor has made similar applications numerous times before and the likelihood of success is therefore higher.

Upon the successful hearing of the application, you will be required to take the order of the court to Queensland Transport office. It is important to remember the court order is not a licence and you are not entitled to drive a vehicle simply because you have the order. When you go to Queensland Transport, your licence will be amended to include the details of the order made by the court. You are further required to carry a copy of the court order with you at all times, along with your licence.

If you are successful in your application for a work licence you will be entitled to drive within the criteria of the order of the court but you should also note that in order to obtain the licence you must make a plea of guilty to the offence you are charged with.

A fine will be imposed at this point along with a prescribed time that the work licence restrictions will be in force. You should note that a court is not obliged to provide a work licence order to you so upon an application being made it is necessary for the criteria to be met to allow the court to exercise its discretion to make an order in your favour. If you find yourself in this situation, contact a solicitor to discuss this matter without delay.

We have significant experience in making this type of application to the court, in courts such as Holland Park Magistrates Court, Beenleigh Magistrates Court and all courts in the greater Brisbane region, and we are able to provide certainty and reassurance to you in what is no doubt a stressful time in your life.

Australian fatigue management legislation

In 2008 the Queensland Government brought in laws with the intention of reducing crashes on our roads by way of fatigue management. Whilst this may very well have been the government’s intention, the practical effects have been very different.

The issue of monetary penalties and the loss of demerit points for failing to record a name or date in a work diary or the need for drivers to drive a cab-over are to reduce the length of the prime mover and therefore increase the length of the load that they are required to carry are just two examples of the practical effects of this fatigue management legislation. However it seems neither of these examples do anything whatsoever to reduce road safety risks associated with driver fatigue.

There is also the ongoing burden to drivers to deal with the inconsistency of laws between states and territories and the need for drivers to be familiar with different requirements around our country. Clearly this detracts from the original intention of the law, being the safer operation of heavy vehicles both to drivers and other road users.

After years of discussion between state governments, the Queensland Parliament passed the Heavy Vehicle National Law Act being the principle piece of law and as at 14 February 2013 the Heavy Vehicle National Amendment Act to resolve the finer points raised as concerns following public consultation, particularly with the transport industry.

The legislation creates a national regulator and it is intended that the laws will be mirrored by all states of Australia (except Western Australia) so that there is one set of rules rather than the complex legislative maze that currently exists. Now that the two pieces of legislation have been passed by parliament, they are set to become effective as at 1 July 2013.

The legislation, which applies to all vehicles weighing more than 4.5 tonnes is 719 pages long and seeks to address all the issues relevant to the transport industry in Australia.

In constructing this new legislation, there has been significant input from the National Transport Commission, other transport related bodies and individuals so it is hoped that this legislation, whilst being nationally consistent, will also be practical for all levels of our industry from the owner-driver to major fleets.

One key point to consider is the extent to which liability can be imposed under the new laws, not just on the driver but other related parties. The responsibility now also extends to employers and other related entities as they will need to show that they took reasonable steps to ensure that drivers don’t speed by imposing unrealistic time limits on drivers etc.

The legislation establishes the National Heavy Vehicle Regulator, which is the single administrator and national point of contact for heavy vehicle operators rather than state transport authorities as has previously been the case.

All applications for mass management, maintenance management, basic fatigue management and advanced fatigue management will be through the national regulator. Registration, licensing and issues to do with the carriage of dangerous goods will remain the responsibility of the states and state police and authorised officers will continue to enforce heavy vehicle offences though this will all be under the new national laws.

The real question is now what do these laws mean for you. There are a number of key changes that we will address in future issues though the first point that is immediately relevant is the focus by the government on fatigue management. There have been significant increases in monetary penalties for breaches of hours and thankfully a reduction in penalties for minor unrelated fatigue management offences such as typographical errors in the recording of work diaries.

We will ensure that in further editions we will outline some key changes created by the new laws relating to drivers and owners as this is a major change for the transport industry as a whole.

Chasing transport industry debts

Happy new year and welcome to 2013.

In the course of the past year Hall & Co Solicitors saw many situations where companies, trusts and sole traders were not paid for work they had performed as a consequence of customers being wound up or being declared bankrupt.

With stressed cash flow due to not being paid on time by their customers, many of our clients struggled to stay afloat themselves and in some situations found themselves facing bankruptcy or insolvency as a result. In the transport industry, cash flow is critical to pay for tyres, bills, petrol, loan repayments etc and late payment or worse non-payment of your invoices can be disastrous.
Whilst we are not in the business of providing financial planning advice, there were a few key factors which, once put into practice, provided our clients with some assurance that they would be paid for work they had completed and limited the amount of damage that would occur if a non-payment situation arose.

  • Proper Contracts
    • Where possible, ensure that there is a concise agreement between you and your customer which sets out the terms and conditions of payment and your rights if those terms and conditions are breached by the customer.
    • Terms and conditions may include the ability to register an interest over property owned by the customer so that recovering larger debts becomes possible and your ability to recover your legal costs incurred in enforcing the agreement.
  • Contracting with the Proper Person
    • Understanding who you are contracting with is very important. If your contract is with an individual trading as a business name, it is the individual person who will be liable to you. If the customer is a corporation / company (usually ending in “Pty Ltd”), it is common that the company may only be worth $2 and therefore there should be provisions in your agreement to appoint a guarantor, meaning that if the company is unable to pay your debts, you are able to chase an individual (usually a director of the company).
  • Invoice
    • Whilst the last thing on your mind may be issuing invoices once you have returned from days or weeks away from home, the sooner your invoice is issued, the sooner you will be paid for the hard work you have done. This will improve your cash flow and your ability to pay your own debts such as fuel card accounts.
  • Time to pay
    • Strictly adhere to the time which you have stipulated in your agreement or invoice that your customer must pay you by. Each business is different, however if, once the account becomes 60 days old (for example), don’t rely on promises of payment as in our experience talk is cheap. Have a debt recovery system in place and remember that the sooner you chase the debt, the sooner the sometimes lengthy process of debt recovery can begin and the sooner you will have your cash flow back to normal.
    • Often companies try to trade out of bad situation which often makes the situation worse – in our experience, the longer your account remains outstanding the less likely it is that you will be paid at all as your customers may be moving towards bankruptcy or insolvency.

If the situation arises that you have not received payment within the time you have prescribed on your invoice, it may only be the cost of a letter of demand from a solicitor which is necessary to recover that money. Alternatively, you may have to go down the path of briefing solicitors to institute legal proceedings against your customer if the amount of time is significant enough to justify this and if there is a question as to the financial solvency of your corporate customer, you may also wish to consider applying to have the company wound up.

Irrespective of how good your work ethic is, or the quality of service you provide, it is important to make sure that you have systems in place to give you the best opportunity to be paid fully for the work you have performed. This should make 2013 a more enjoyable year without so much worry about not being paid your outstanding accounts.

Drink driving - be safe over Christmas

Well the festive season is upon us and it is at this time of year that we can embark upon a little too much Christmas cheer. As is the case every year at this time, the police services of Australia will be out in force in an effort to reduce road traffic accidents and remove drink drivers from our roads.

Whilst we all are familiar with responsible consumption of alcohol and when we can and cannot drive, it is often the morning after a big night when offending drivers are caught out. You can feel fine to drive even if your blood alcohol limit exceeds that which is legally allowed.

We would like to remind readers that, depending upon certain criteria, if you are charged with a drink driving offence you may be eligible to apply for a work licence to enable you to keep driving.

In Queensland, a work licence may be granted in the following circumstances:

• Drink driving;
• Being in charge of a vehicle whilst over the legal alcohol limit;
• Driving with cannabis, ecstasy or ice in your saliva or blood;
• Being in charge of a vehicle with a relevant drug in your saliva or blood; or
• Failing to supply a breath or saliva sample at the roadside (not at the police station).

Exceptions to this include any readings where your blood alcohol content is 0.15% or more or if you are the holder of a provisional licence. Further you must have been the holder of a current licence at the time of the offence and not been convicted of a drink driving, dangerous driving or similar offence in the last 5 years.

Also, your licence must not have been disqualified, suspended or cancelled in the previous 5 years, though if your licence was suspended by the State Penalties Enforcement Registry (SPER) as a consequence of failing to pay a fine, then this will not prohibit your application from proceeding.
Importantly, if you wish to make an application for a work licence you must apply to the Magistrates Court of Queensland at your first appearance there, as it will be too late if you wait until the court disqualifies your licence. Therefore, once you are charged make sure you seek appropriate legal advice before your first court appearance to determine whether or not you fit within the criteria to make an application for a work licence.

If you do fall within the criteria, the other points which you will need to prove are as follows:

• You are a fit and proper person;
• You are without a licence;
• You and/or your family would experience extreme hardship if you are not able to drive;
• It is likely you would lose your job (if you are self-employed, that you would be unable to earn an income).

All of these particulars will be set out in affidavit material (sworn statements) that are submitted to the court for consideration together with submissions by your lawyer.

Hopefully you will not need to go down this path this festive season or thereafter, though it can never hurt to be aware of your rights if things don’t go to plan.

Transport Work Diaries Legal Issues

Gone are the days where blowing a steer tyre or frying a turbo on the Nullarbor are the most dreaded situations for a truck driver.

Both state and federal legislation has brought about requirements for drivers to complete work diaries in the course of their employment with a view to providing a structure for fatigue management to make our roads safer. Despite the good intentions of this legislation, each day I hear from drivers who have failed to comply with the recording rules of a work diary on points that don’t relate to fatigue, leading to the widespread feeling that work diaries are a tool to generate revenue for governments.

Even though these requirements have been around for some time now, there are still interpretations rolling around as to what are and are not the correct methods of filling out work diaries and when they should or should not be completed.

To clarify some key points which have lead to fines being issued to our clients:

1. When starting work, you must record the following:

a. Your name and current driver’s licence number (including the state where the licence was issued);
b. The day and date of the week;
c. The address and time zone of your base (and if you have more than two employers, the base of each employer);
d. The address where the driver’s records are kept;
e. Whether you are working as a solo or a 2-up driver;
f. The work rest option you are working under;
g. The accreditation number of the operator of the vehicle if you are working under BFM or AFM accreditation.

2. Immediately before and after each work and rest change, you must record:

a. The nature of the work or rest change;
b. The length of rest time spent anywhere since the last work and rest change;
c. The time and place of the work and rest change;
d. The odometer reading;
e. The registration number of each heavy vehicle driven at the time of the change.

3. Before finishing work, you must complete the totals of the work time and the rest time for that day.

At this stage, at the completion of a period of work and prior to commencing rest time, you should be completing your work diary prior to leaving your truck and equally at the end of a rest time and before commencing work time you should complete your work diary.
The other area drawing attention from the authorities is the spelling of names of places. Though the name of the location would obviously relate to the general area you are in, this is also a subject that is leading to the issuing of fines to drivers along with penalty points which have implications for licensing.

Regarding fatigue management (or revenue raising… I will let you decide), make sure you are complying with the rules relating to recording in your work diary so that the next time your diary is inspected it is a far more enjoyable experience.