Special Hardship Order
What is a special hardship order?
A special hardship order (SHO) is a court order which allows you to continue to drive whilst your licence is suspended because:
- you have committed a high speed offence by driving more than 40km/hr over the speed limit; and/or
- you have lost your good driving behaviour licence due to an accumulation of demerit points.
The process to apply for a SHO is quite technical and involves many steps that must be completed within tight timeframes. Unfortunately, it is not just a matter of filling out a form but rather is a hearing before a Magistrate who ultimately decides whether or not to grant you the order. You must ensure that you meet a large number of conditions and properly prepare the supporting documentation which must be filed with your application.
You cannot appeal the decision if a Magistrate refuses your application. It is therefore important that you get legal advice from an expert traffic lawyer on whether you meet the eligibility criteria and on your prospects of making a successful application.
Given the work involved with these applications it is best to seek advice as early as possible, preferably at the time you receive the traffic infringement that will lead to a driver licence suspension. This will allow preparations to get underway so that your application is ready for filing as soon as the suspension starts. You will then be able to continue driving up to the day before your Court hearing. We have outlined below a brief summary about SHO's for your information. However, these applications are complicated and we suggest you contact us today so that we can discuss your particular circumstances and prospects of success.
Am I eligible for a special hardship order?
You must meet a number of strict criteria to apply for a SHO, including:-
- you must have held a current Queensland provisional or open driver licence immediately before the licence was suspended
- you can satisfy the court that you are a "fit and proper" person to continue to drive, having regard to the safety of other road users
- a refusal to grant the SHO would cause:-
- extreme hardship to you or your family by depriving you of your means of earning a living; OR
- severe and unusual hardship to you or your family for another reason other than by not being able to work (for example, you are the only person available to get a family member to medical treatment).
In the last 5 year period, you must not have:-
- previously made a SHO application;
- been convicted for dangerous driving
- had your provisional or open licence suspended, cancelled or disqualified (apart from a few exceptions, for example, a SPER suspension)
- your authority to drive on Queensland roads under a non-Queensland driver licence previously held by you has been suspended
- you were made ineligible to apply for a Queensland driver licence because you exceeded your demerit point threshold, or were convicted of driving more than 40 km/hr over the speed limit, at a time when you were unlicensed
You cannot get a SHO if:-
- you are unemployed and looking for work
- to get children to and from school or attend to household errands
- your employer has another position for you in the business that does not require you to have a driver licence
You may be eligible to apply if you need your driver lience to travel to and from work. However, you would need to demonstrate that there is no public transport available and you have no-one who could drive you.
You should get legal advice if you are not sure whether you meet all the eligibility criteria.
Court process and procedure
The application is made to a Court under Part 14 Transport Operations (Road Use Management - Driver Licensing) Regulation 2010.
You must apply within 21 days from the start of your licence suspension.
The following documents must be prepared in support of your application:-
- Special Hardship Order Application;
- an affidavit from you that sets out details of the offences that led to your suspension, your family details, your employment and your need for a driver licence, income & expenditure and details to support that you are a "fit and proper" person; and
- an affidavit from your employer that confirms your position, details of your employment and how your job will be affected if you lose your licence.
The affidavits must be sworn or affirmed before a Commissioner of Declarations, Justice of the Peace or Solicitor. They must then be filed with your application to the Court. Copies must be served upon Queensland Transport Prosecution Unit as soon as practicable, but at least 7 days before your Court hearing.
Once you have filed and served your application, your suspension will be lifted by Queensland Transport and you can continue to drive until the day before your Court hearing.
At the hearing, the Magistrate will read your supporting documentation and may require you or your employer to give evidence if further information is needed (This is not ordinarily required if your affidavits are properly prepared). The Magistrate will hear oral submissions from the representative for Queensland Transport and you/your lawyer.
Upon completion of the hearing, the Magistrate will decide whether or not to grant you an SHO. The Magistrate's decision is final and there is no avenue of appeal if your application is dismissed.
What conditions can be ordered?
If you are granted an SHO the Magistrate can order that it be subject to special conditions, for example:-
- the class of vehicle which may be driven
- the purpose for which a vehicle may be driven
- the days and times a vehicle may be driven
- that you keep a log book
- that you wear a uniform, if applicable
- that you have no passengers
It is an offence to drive in breach of the conditions. If you were caught doing so, then you would lose your SHO and a penalty and 3 month disqualification period would be imposed. The 3 month disqualification period would be additional to the suspension period.
You can make an application to the Court to vary the conditions should your circumstances change during your suspension period.
What happens after court?
If you are granted a SHO, you will be given an Order that you will need to take to your nearest Queensland Transport department to be issued with a replacement licence prior to driving. The replacement licence will be issued with an X3 condition code. You CANNOT drive from the court to Queensland Transport, to do so would be breaking the law. You CANNOT drive until the replacement licence is issued to you.
Do I need legal representation?
These applications are not always straightforward and Magistrates consider whether or not to grant a SHO very seriously. Our traffic lawyers will ensure your application is comprehensively and professionally presented to the Magistrate. We are experienced advocates who will speak for you in a persuasive manner and aim to get the result you are after.
Other benefits of legal representation include:-
- we will save you time and stress by doing all of the preparatory work
- we will deal with your employer directly and prepare their affidavit to minimise any inconvenience to them
- we will deal with Queensland Transport on your behalf
- you will get priority in Court when your matter is heard
- we know what information the Magistrates need and will speak for you in Court
- you have better prospects of achieving the desired outcome
We often get enquiries from people seeking help after a failed attempt at applying for a SHO simply because they did not properly prepare and did not understand the process. Don't let this be you. We strongly recommend that you get expert advice and assistance as you only get one chance.
6/140 Ann St