Talon Legal won a provisional licence appeal for a fly-in fly-out worker whose job required him to drive every day on a remote worksite, a duty no one else could take over.
Our client held a provisional licence and worked a fly-in fly-out roster on a remote resources project in Western Australia. Two speeding offences led to a disqualification notice. We appealed to the Magistrates Court under section 81BB of the Motor Vehicles Act 1959 (SA), and the appeal was allowed.
Outcome at a glance
- Provisional licence appeal allowed in the Magistrates Court under section 81BB
- Disqualification removed and a specialist FIFO role kept
- Employer evidence proved that driving on site was a mandatory part of the job
- Neither public transport nor redeployment could solve the problem
Background
Our client worked two weeks on and two weeks off. At the start of each swing he travelled from his home in regional South Australia to Adelaide Airport for flights his employer booked, then on to a remote worksite with no public transport.
The disqualification notice followed two speeding offences committed while he held a provisional licence. He accepted responsibility for both and completed road safety work before the hearing.
The appeal had to explain two separate transport problems: how he would reach his flights, and why he had to drive once he arrived on site.
The law: what makes hardship severe and unusual
An appeal under section 81BB is available only where a Safer Driver Agreement is not (section 81BB(2)(a)). The court may allow it if satisfied, on evidence given on oath, that the disqualification would cause severe and unusual hardship to the driver or a dependant, and, where the Crown tenders the driver’s previous offences, that they do not indicate a substantial risk (section 81BB(4)). The driver’s evidence must cover the transport that would be available and why it would not meet his needs (section 81BB(5)).
In Cavill v Registrar of Motor Vehicles [2013] SASC 33, the Supreme Court said that “unusual” suggests a comparison with the hardship disqualification causes others, that “severe” suggests an objective assessment of how harsh or hard to endure the hardship would be, and that the compound expression calls for an evaluative judgment ([13] to [15]). Plenty of people need a licence to get to work, so the evidence had to show what set this case apart.
Why the licence was critical
On site, our client worked swings of about 5:00 am to 5:30 pm, seven days a week, as one of a two-person crew. One of his core duties was to drive a light vehicle ahead of a heavy vehicle and its trailer, keeping the route clear and warning other road users of what was behind him.
His employer confirmed that a valid licence was mandatory, that the escort duty came up repeatedly each day and that it could not simply be handed to someone else. He had also completed site training and inductions that could not readily be replaced.
The flights were the second problem. He did not choose the times, and he had to reach the airport for them at the start of every swing.
The evidence of hardship
Two letters from his employer described the role, the roster, the driving on site and the consequences. Without a licence he would probably be stood down or put on unpaid leave. There was no suitable non-driving role, and his absence would put pressure on a small crew whose other members might have to work extended swings.
Flight and travel records showed the mobilisation pattern. Public transport from his home to the airport needed several connections and took more than two hours. A taxi or rideshare would cost roughly $70 to $150 each way, and family and his partner could not be relied on for every swing.
The appeal book also held an apology, a road safety certificate, a character reference, job documents, financial records and a short summary linking each document to the statutory test.
The strongest evidence was that driving on site was a mandatory part of the job, which no timetable or lift could replace.
Risk and insight
Our client accepted both speeding offences. His apology and character evidence dealt with insight and conduct, and his employer described him as responsible, reliable and professional, with no concern about him as a risk at work.
He had savings, and the application said so. It rested instead on the threatened loss of specialised work and the way the role actually operated.
The hearing
Our client gave sworn evidence about the roster, the trips to the airport, his duties on site, the two-person crew, the absence of any other role and what losing the job would mean. The employer letters gave the court the operation as explained by the people who ran it, so he was not left to describe a complex industrial role alone.
Outcome
The Magistrates Court allowed the appeal under section 81BB, and the disqualification was removed. Our client was able to continue his FIFO career, and a small, trained crew in a remote place was not left a person short.
Key takeaways
Separate the commute from the driving the job itself requires. The second is usually the stronger evidence, because it goes to whether the work can be done at all.
Employer letters should name the exact driving task and say whether anyone else can do it.
FIFO and remote cases need flight and mobilisation evidence, because section 81BB(5) asks what transport would be available and why it would not meet the driver’s needs, and getting to the flights is one of those needs.
Where the driver has savings, say so. A case built on the strongest true ground is more persuasive than one that overstates hardship.
Related licence appeal results
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- Successful P2 licence appeal for a regional apprentice
- Licence appeal for an international student
Speak with Talon Legal about a licence appeal
If you work a FIFO roster or drive as part of your job and have received a provisional licence disqualification notice, the appeal should be lodged before the disqualification takes effect, and employer evidence takes time to gather. Book a same-day free 30-minute consultation or call (08) 7094 2021 to speak with a senior traffic lawyer, or read our guide to severe and unusual hardship in licence appeals.
