Talon Legal won a probationary licence appeal for a full-time renderer with a serious driving history, by proving what losing his job would mean and how much his present risk had changed.
Our client held a probationary licence when he committed a handheld mobile phone offence, and a notice cancelling his licence and disqualifying him followed. His record also included drug driving offences, driving while disqualified and numerous earlier disqualifications. We appealed to the Mount Barker Magistrates Court under section 81BB of the Motor Vehicles Act 1959 (SA), and the appeal was allowed.
Outcome at a glance
- Probationary licence appeal allowed in the Mount Barker Magistrates Court under section 81BB
- Disqualification removed
- Full-time employment as a renderer kept
- The history answered with treatment, abstinence, traffic education and a practical safeguard
Background
Our client worked full-time for a plastering and rendering business. Each day he attended changing metropolitan and regional sites, taking a cement mixer, ladders, rendering material and the rest of his equipment with him.
The mobile phone offence was the trigger; our guide to mobile phone breaches on a probationary licence explains how those notices arise. The harder problem was the record behind it: repeated drug driving, driving while disqualified and a run of earlier disqualifications, the most recent drug driving offence only months before the hearing.
The appeal therefore had to prove two things. Losing the licence would cost him his job, and the record no longer described the risk he presented.
The law: hardship, and the risk question
Section 81BB applies to a driver disqualified under section 81B for an offence committed on a provisional or probationary licence. A Safer Driver Agreement is available only to provisional licence holders (section 81BA), so a probationary driver cannot enter one, and an appeal is how the disqualification is challenged. The court must be satisfied, on evidence given on oath, that the disqualification would cause severe and unusual hardship to the driver or a dependant (section 81BB(4)(a)). Where the Crown puts the driver’s previous offences before the court, it must also be satisfied that they do not indicate a substantial risk to the driver or other members of the public (section 81BB(4)(b)).
A long record does not decide the second question by itself. In Holden v Registrar of Motor Vehicles [2011] SASC 205, the Supreme Court allowed an appeal that a magistrate had dismissed on the risk question, finding that the evidence as a whole did not indicate a substantial risk where the driver had committed no further offences for two years ([15]). That is why the evidence has to show what has changed.
A successful appeal comes with conditions of its own. If the new licence is a probationary licence, its conditions run for 18 months instead of one year (section 81BB(7)(g) and section 81AB(3)). A further breach on the new licence brings a 12 month disqualification (section 81BB(8)), and there is no appeal against that: Registrar of Motor Vehicles v Magistrates Court of South Australia [2019] SASC 142 at [24].
Why the licence was critical
His employer confirmed that a current licence was an essential part of the job. The sites changed constantly, and the work could not be done without getting the mixer, ladders and materials to each one.
There was no fixed-site or non-driving position. The business could not collect him every day, carry his equipment or reorganise itself around a disqualification. Without a licence he could not keep his job.
The evidence of hardship
The appeal book contained two employer letters, payslips, a financial summary, bank records, a letter from his social worker, an apology, a completed traffic offender intervention program report and a photograph of the phone mount he had installed in his vehicle.
The financial material showed a working household with no buffer. His wage covered ordinary weekly expenses with only a modest margin, he had no savings to fall back on, and his bank balance shortly before the hearing was a little over $200.
Each transport alternative was dealt with separately, as section 81BB(5) requires. Public transport could not carry him, a cement mixer and construction equipment to changing sites. Daily lifts, taxis, rideshare, walking and cycling were not sustainable substitutes.
The appeal did not ask the court to overlook the history. It proved why the history no longer described our client.
Risk, rehabilitation and insight
Our client had worked with a social worker for about six months on recovery, relapse prevention, insight and stability. He gave evidence that he had not used illicit drugs since the most recent drug driving offence, and he had accepted a referral to a specialist alcohol and other drug service.
He completed a traffic offender intervention program shortly before the hearing. His apology accepted the mobile phone offence and the seriousness of his wider history. He installed a phone mount and adopted a firm rule that he pulls over before touching the phone.
Stable full-time work, treatment, abstinence, education and a practical safeguard were presented together, and no single document was treated as the answer.
The hearing
Our client gave sworn evidence about his work, the equipment, his finances, the transport alternatives, the mobile phone offence, the earlier drug-related offending and the changes he had made since. We submitted that the question was whether the history indicated a substantial risk now. That it was serious was plain.
Outcome
The Mount Barker Magistrates Court allowed the appeal under section 81BB. The disqualification was removed, and our client was able to take the steps required to be licensed again, subject to the licence conditions that continued to apply.
The result kept him in stable full-time work at a time when that work was itself part of his recovery.
Key takeaways
A serious history has to be confronted, expressly and accurately. Section 81BB(4)(b) asks whether the record indicates a substantial risk now, and the answer comes from evidence of change.
Objective material carries the risk question: treatment, a completed program, a specialist referral and a physical safeguard the driver explains on oath.
Employer evidence should say plainly whether the job will end and whether any non-driving role exists.
Treat a successful appeal as a last chance. A second appeal is barred for five years (section 81BB(2)(b)), and a breach on the new licence brings a disqualification that cannot be appealed.
Related licence appeal results
- Probationary licence appeal for a plant operator
- Provisional licence appeal for a warehouse shift worker
- Successful P2 licence appeal for a regional apprentice
Speak with Talon Legal about a licence appeal
If you hold a probationary licence and have received a disqualification notice, talk to us quickly. Lodging an appeal suspends the disqualification and any related cancellation until the appeal is decided (section 81BB(6)). 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 probationary licence appeals in South Australia.
