Special Hardship Orders

Legal Resource

17 January 2019

Paul is a Senior Criminal Lawyer in Anderson Fredericks Turner. Having practised exclusively in criminal law and traffic law cases since 2003, Paul is a highly experienced and well regarded lawyer who routinely assists clients with complex traffic cases across Queensland.

Application, Preparation & Courtroom Advocacy

As someone who has undertaken a lot of work to assist people with all kinds of traffic law cases, the rules relating to special hardship orders can be seen by people as either a blessing or a curse. If you are fortunate enough to be granted an order, it can feel like a real blessing to be allowed to continue to drive. If you discover a technicality that makes you ineligible, are out of time to make the application, or failed to make it properly, the consequences can be devastating.

Today I am going to provide an overview of applying for a special hardship order in Queensland.  Whilst the information will hopefully be of assistance to people interested in this issue, it is intended to be only general in nature.  In all circumstances in which a person is unsure of whether he or she may be eligible to apply for a special hardship order, or unsure of the process involved, I recommend seeking legal advice from an experienced traffic lawyer.

What is a ‘Special Hardship Order’?

In Queensland, a ‘Special Hardship Order’ (SHO) is a court order which allows a person to drive for specified purposes only, and subject to strict conditions, during the period of a licence suspension.

If you are the holder of a Queensland driver which licence has been suspended for one of the following reasons:-

  • You have accumulated more than 1 demerit point whilst subject to a 1 year good driving behavior period; or

  • You received an infringement notice for a speeding offence for more than 40 km/h over the speed limit,

then you may be eligible to apply to a Magistrate Court for a “special hardship order”.

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Eligibility Requirements

Not everyone is eligible for a special hardship order. The eligibility is exacting. For present purposes, a person seeking to apply for such an order will need to answer “yes” to the following questions:

  • Have I been suspended from driving for accumulating more than 1 demerit point during a 1 year good driving behavior period, OR for a high range speeding offence (i.e. more than 40 km/h over the speed limit)?

  • Am I the holder of a Queensland driver licence (either a provisional licence, or an open licence)?

  • Did my licence suspension commence less than 21 days ago?

  • Would the suspension of my licence cause extreme hardship to me or my family by depriving me of my means of earning a living, OR would it cause severe and unusual hardship to me or my family other than by depriving me of my means of earning a living?

Unless you can answer “yes” to all of the above, you will be ineligible to apply for a special hardship order.

However, even if you have answered “yes” to all of the above questions, you may still be ineligible to apply. You will be ineligible if, in the 5 years before the licence suspension took effect, the answer is “yes” to any of the following questions:

  • Have I had a driver licence cancelled or suspended (other than a SPER suspension, or an immediate suspension as a result of being charged with a drink or drug driving offence), or have I been disqualified by court order from holding or obtaining a Queensland driver licence?

  • Has any authority granted to me to drive on a Queensland road under a non-Queensland licence previously held by me, been suspended?

  • Have I been convicted of an offence of dangerous operation of a vehicle in Queensland?

Applying for a Special Hardship Order

Time Limits

First of all, there are very strict time limits involved in applying for an SHO.  An application needs to be filed in the registry of the Magistrates Court in the district which you reside within 21 days after the suspension of your licence commences.  There is no flexibility in this regard – if you seek to file your application even one day late, it will be rejected.

Due to the struct time limitations, it is really very important that you are aware of the current status of you licence.  By that, I mean that if you suspect that your licence may well be getting suspended (because you have committed traffic offences which will result in the accumulation of 3 or more demerit points during a good driving behavior period, or because you have committed a high range speeding offence), it is essential that you keep an eye out for your mail (or better still, call Queensland Transport).

Letters from Queensland Transport

Generally, if your licence is to be suspended, Queensland Transport will send you a letter to your registered address advising you of that fact.  It will state that your licence suspension will commence “the day after” a specified date.  So if the letter states that your suspension will commence the day after 4 April, it will commence as soon as the clock ticks over into 5 April.

The letter will also tell you that you may be eligible to apply for a special hardship order, and that the application (and supporting affidavits) must be filed within 21 clear days after your suspension commences.

Filing a Special Hardship Order Application

The evidence required to support an application for a special hardship order needs to be precise. If you fail to provide sufficient evidence to substantiate the reasons why you should be granted one, or it is submitted in an invalid format, the application may be rejected.

Once the supporting evidence is filed in the court, the date set down for the court hearing of the application will be advised.  You are also required to serve a copy of the application and supporting evidence on Queensland Transport.

Temporary Lifting of Suspension

Once the application and evidence has been filed and served as required, the suspension of your licence should be lifted until the date of the court hearing. So that means, on the date your matter is listed for hearing, you cannot drive unless and until the court hears the application and grants the special hardship order.

Basis for Application

Most people apply for a special hardship order on the basis that they require a driver licence for work purposes.  To succeed in such an application, it is necessary to satisfy a magistrate of two things:-

  • That you are a fit and proper person to be granted a special hardship order, having regard to your traffic history, and to the safety of other road users and the public generally; and

  • That a refusal to grant an order would:-

    • cause extreme hardship to you or your family by depriving you of your means of earning a living (i.e. your employment would be terminated, or you would be unable to continue in self-employment); OR

    • cause severe and unusual hardship to you or your family other than by depriving you of your means of earning a living.

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Meaning of “fit and proper person”

In determining whether a person is “fit and proper”, a magistrate will primarily focus on the person’s prior traffic record.  Many people seem to think that a magistrate will only look at the past 5 years, but this is not necessarily the case.

A traffic record from many years ago may be considered relevant to the issue of whether a person is “fit and proper” to be granted a special hardship order.  Obviously, as a general rule, the more extensive a person’s traffic history (even for things such as speeding offences), the more difficult it may be to satisfy a magistrate that the person is “fit and proper”.

Severe and Unusual Hardship

Being deprived of the means of earning a living

When I represent someone who is self-employed, there are occasions I only get evidence and affidavit material from my client. However, this is not always the case as each case really turns on its own facts.

Generally speaking, the evidence really needs to address such things as the person’s family situation, number of dependent children, employment history and current employment, as well as the tasks required of the person in their line of work. The reasons why a driver licence is essential to allow that person to continue to make a living must be convincingly explained. If a person overlooks other critical information in their case, such as alternative sources of income or anticipated or other expenditure, the application may fail.

It is absolutely essential to be able to satisfy the magistrate that refusal to grant a special hardship order will result in the person being deprived of the ability to earn the person’s living (with the consequence of extreme hardship being suffered). An experienced traffic lawyer can often identify whether the evidence is sufficient to satisfy that test, as well as convincingly outline why that is so to the court.

If the applicant for a special hardship order is not self-employed (i.e. is an employee), it is generally necessary to gather evidence from multiple sources, such as from the employer. In reality, an affidavit from an employer really assists to both confirm the fact that the applicant is employed and that their employment would be terminated if the application for the special hardship order were to be refused.

Other basis for Special Hardship Order

In my experience, applications for special hardship orders not related to the means of a person to earn a living are less common, however they can still be made.  A simple case example of this would be if a person requires regular medical treatment for a serious health complaint, and there is a lack of available (or affordable) public transport to take that person to hospital.  A special hardship order could be sought to allow that person to drive to and from medical appointments, and for no other purpose.

It is important to note that the wording is “severe and unusual hardship”. It is a phrase considered in Ranchigoda v Queensland Transport [2012] QMC 19. Generally speaking, it is unlikely that a court would grant a special hardship order to allow a parent to drive his or her children to or from school, or to and from extra-curricular activities.  This is because although the inability to drive children around might be considered “severe” hardship, it may not be regarded as “unusual” hardship.  In other words, it would not be unusual to conceive that a person who faces a suspension from driving might have children who go to school or play sport.  As I have already said, each case will turn on its own facts. For instance, living in a remote community where there is an unavailability of alternative transport may assist in tipping the balance.

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Court Hearings

Generally, a lawyer from Queensland Transport appears at the hearing, and may (or may not) oppose the application.  The best way to ensure that the application is not opposed, is to ensure that comprehensive, and compelling, evidence and arguments in support of the application is served on Queensland Transport.  A lawyer experienced in traffic law may be invaluable in that regard.

Generally speaking, cases in the Magistrates Court are heard quickly and efficiently. You can be given very little time to make your best case. People inexperienced with the courtroom environment may find the confronting or confusing, particularly if on reflection you think there was something you could have said that may have made a difference.

If the evidence is incomplete or called into question, you may be subjected to cross-examination in court by a lawyer representing Queensland Transport. You may also be subjected to scrutiny by the Magistrate.

Like other lawyers who represent people applying for a special hardship order, I understand that part of my role is to ensure that all of the necessary paperwork (application and affidavit evidence) is properly prepared. Where appropriate, I also seek to engage with lawyers from Queensland Transport in advance of the hearing to settle as many issues as possible prior to a hearing. Proper preparation is vital to effective advocacy in the courtroom.

Successful Applications

If your application is successful, the magistrate will make an order (the “special hardship order”) directing that Queensland Transport is to issue you with a “replacement licence” during the period of the suspension.  You will only be permitted to drive in accordance with the conditions imposed by the Magistrates Court.

The order will usually set out things such as:-

  • the days of the week that you are permitted to drive, and the hours between which you are permitted to drive;

  • the purposes for which you are permitted to drive during the stated days and times;

  • whether you are permitted to carry passengers;

  • whether you are required to wear a work uniform when driving; and

  • whether you are required to carry a log book when driving.

At the conclusion of the hearing, you will be given a sealed copy of the court’s order, which you will need to take to Queensland Transport. Given you are suspended from driving on the day of the court hearing, and have not yet been issued the replacement licence, you will need to arrange transportation to Queensland Transport. The order will not permit you to drive yourself there.  Once there, you should (upon payment of the relevant fee) be issued with your replacement licence.

Unsuccessful Applications

If your application for a special hardship order is unsuccessful, you have no right of appeal.  The decision of a magistrate is final.  If you are unsuccessful, your licence will remain suspended for 6 months.

For that reason alone, you might think that it is prudent to engage legal representation from the start, as you only get one shot at getting it right. Without being dramatic about it, it is pretty obvious the consequences to you and your family if you application is unsuccessful can be significant indeed.

Summary

It is not possible in this context to cover comprehensively the law relating to special hardship orders.  The purpose of outlining this information is to provide a useful starting pint for people who may be seeking a better understanding of applications of this kind.

If you are seeking specific advice or representation regarding a special licence application, or any other traffic law issue for that matter, you are welcome to contact our lawyers for a free case assessment.  Our firm will generally offer fixed fee legal costs for cases of this kind, which helps take the guesswork out of what you ultimate costs may be.

More Information

The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.

Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving special hardship orders.

Our experienced traffic lawyers are available for all courts across Queensland. Anderson Fredericks Turner operates from local offices in Brisbane, Beenleigh, Maroochydore, Southport and Townsville.

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