It is essential for anyone making a special hardship license application to ensure that the application is accompanied by a detailed and comprehensive affidavit. The affidavit for the special hardship order application needs to cover everything from your financial situation to the hours and days you need to drive. Its critical to get the affidavit right as it’s the primary thing the court will look at when determining whether to grant a hardship licence and if they do on what terms.
This page is just about the affidavit needed, for full information on hardship license applications in Queensland visit our main page.
Why do I need an affidavit?
The affidavit is a requirement under the law. The law states that;
For subsection (1)(b)(i), the applicant must give the court—
(a)an affidavit made by the applicant outlining how a refusal to make the special hardship order would cause extreme hardship to the applicant, or the applicant’s family, by depriving the applicant of the applicant’s means of earning a living; and
(b)if the applicant is not self-employed—an affidavit made by the applicant’s employer confirming the applicant would be deprived of the applicant’s means of earning a living if the application were refused.
What affidavits do I need?
You will need your affidavit as the applicant and if you are not self employed and are seeking to be able to drive under the order for work purposes you will need an affidavit of your employer.
Will a letter from my boss be enough?
No, the law requires an affidavit.
What is an affidavit?
An affidavit is a sworn statement in writing. It must be signed by the applicant and witnessed by a justice of peace, commissioner of declarations or a lawyer.
What needs to be in my affidavit?
The affidavit must set out all the details that shows how a refusal to make the special hardship order would cause extreme hardship to you.
Remember the law requires “extreme hardship” not just that something will be difficult or very hard. Typically the affidavit would cover;
- Your personal circumstances
- What work you do
- The days and hours you work
- Why you can’t use other transport
- Your financial circumstances
- How your employment/business income would be affected by not being granted a hardship licence
- What personal driving you need
- How the need for a special hardship came about
- What conditions the court should impose on your special hardship licence
Your personal circumstances
Name
Age
Address
Who you live with
Family details
What work you do
How long you have work with your employer/business
What your work consists of
What driving you do for work
Why you need a hardship licence
What will happen without the licence
The days and hours you work
What days/hours you work. This will need to include overtime, on-call requirements etc otherwise those extra hours won’t be included in the order.
Why you can’t use other transport
Why no other options such as taxis or uber are appropriate.
Your financial circumstances
You and your family’s finances including:
Income earned
Expenses
Liabilities
If you are not employed then business financial records may be required.
How your employment/business income would be affected by not being granted a hardship licence
What will be the financial impact if the court does not grant the hardship licence.
What personal driving you need
If you are wanting to drive for non-work reasons full details of this and why the court should grant I must go in the affidavit. The test is not extreme hardship like losing you job , the law states personal driving can only be granted if;
A court may make a special hardship order only if satisfied a refusal to make the order would cause severe and unusual hardship to the applicant or the applicant’s family, in a way other than by depriving the applicant of the applicant’s means of earning a living.
The test is therefore severe and unusual hardship.
In Davies v Shaw the Supreme Court of Tasmania considered an application by Mr Shaw to be allowed to drive to drive and collect his sons from school. Tasmanian law then used a similar test of severe and unusual hardship. The court found that the test only allowed granting an order in severe, extreme and unusual circumstances and thus denied the right for Mr Shaw to drive his children to school.
How the need for a special hardship came about
You can apply for a hardship order when you exceed 1 demerit points on a good driving behavior period or driving 40 km/h over the limit (as long as you are otherwise eligible to apply for a hardship licence). You will need to explain to the court what occurred, what you learned and how this won’t happen again. You may also need to explain your previous traffic history if applicable,
Doing a course like QTOP will always help.
What conditions the court should impose on your special hardship licence
You will need to set out the exact conditions on the order you require. We have an article on the hardship licence conditions.
Remember the Magistrate you are before might have a different view on what you need to put in the affidavit. Only an experienced traffic lawyer will know for sure what must go in the affidavit for a particular Magistrate and if the application for a hardship license is important you should seek legal advice.
Will I need to provide anything other than the affidavit?
If you are asking the court to grant conditions such as driving children to school, driving for medical appointments etc you may need to annexure documentation to the affidavit to prove this. The court may also require financial records if you have your own business.
How is the affidavit used in court?
The affidavit will be considered by both the Magistrate and the Prosecutor from Queensland Transport in assessing whether to grant the hardship licence or in the case of the Prosecutor whether to oppose the application.
What happens if I get the affidavit wrong?
The Magistrate might agree for you to adjourn the application to another date to fix any issues with the affidavit. If the Magistrate won’t do this then they will base the order conditions largely of what is in the affidavit.
I need to know more
Our main hardship license page explains everything or try our essential guide to hardship licences
What do you charge
We charge a fixed price of $2,000 to draft all the affidavits and appear with you in court to convince the court to give you the hardship license.
How do I get more help or engage you to act for me?
We have been operating since 2010 and undertaken over 1,000 successful special hardship licence applications throughout South East Queensland from Coolangatta to Hervey Bay.
If you want to engage us or just need further information or advice then you can either;
- Use our contact form and we will contact you by email or phone at a time that suits you
- Call us on 1300 952 255 seven days a week, 7am to 7pm
- Email This email address is being protected from spambots. You need JavaScript enabled to view it.
- Click here to select a time for us to call you back
- Visit our main website page
- Visit our special hardship page
