So, you have filed your application for a special hardship licence, you have a court date and all of your material has been filed with Queensland Transport and Main Roads (TMR), you think you're ready and then you get a letter from TMR saying they are going to oppose your application.

What do you do now?

What is a special hardship application?

Let's first look at who can apply for a special hardship application. 

Special hardship applications are only for people who are in one of two situations:

• You have exceeded 1 demerit point while on a good driving behaviour period or
• You have exceeded the speed limit by more than 40 km/h

Special hardship applications don't apply to people who are face the loss of licence due to any other reason such as drink driving.

We have a full article on special hardship applications that explains more on who can apply and how.

What material needs to be filed in court?

Is it up to you to prove you both qualify for a special hardship application and that you need one.

The way you do this is by filing with the court affidavits set out generally the following:

Family details

Name, age, address, who you live with

Details of your employment or business

               How long you have work with your employer/business

               What your work consists of

               What driving you do for work

               What days/hours you work

               Why you need a hardship licence

               What will happen without the licence

               Why no other options such as taxis are appropriate

You and your family’s finances including:

               Income earned

               Expenses

               Liabilities

If you are wanting to drive for non-work reasons full details of this and why the court should grant it need to be in the affidavit. It's important to note that you just can't turn up to the court and tell the court that you need the licence, it must be clearly stated in your affidavit material. 

If you have a job then you're going to need an affidavit of your employer not just a letter and an affidavit setting out why you need a licence, the days and hours you work and if you are not given a hardship licence that you won't have a job.  All of the affidavit evidence must be filed before the court date in your local Magistrates Court and a copy served on TMR.

Why are TMR involved in this process?

If you had a criminal charge then you would be prosecuted by the Queensland police prosecution service however in the case of a special hardship licence as this is not a criminal offence, it is in fact a civil application to the court, and so the police are not involved.

Because the police are not involved the government decided that they would create a prosecution service at TMR and that is who appears for the government at these applications. because they are prosecution service they are permitted to tell the court whether they object or do not object to the application being granted.

Why is TMR telling me they object to my application?

If TMR has objected to your application they will provide their reasons in writing. It is very important that you get a copy of this so you can see what you need to change or modify in your application.

We have found the following reasons of the most likely objections that TMR have to an application for a special hardship licence.

Insufficient information

This would generally be the thing that trips up most people. They simply don't put in enough information into their application.  As you can see above there is a lot of details that must go into the affidavit.  The court has to be sure that you will suffer hardship from the loss of licence or other reasons.  We often see people who have just not put enough details about the income and expenses and all the types of driving that they will need to do under the special hardship licence.  People who are not employed and operate their own business or are contractors may need to put information in from their accountant to show how much income they have and how much their expenses are.

Another common thing we see is that a person has not put in details of when and where they need to drive under the special hardship license. You don't get the ability to drive whenever and wherever and for whatever reasons you want the court needs to know exactly when you will drive and why.

No special hardship specified

The legal test is if the application is not granted a person will suffer:

• 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, other than by depriving you of your means of earning a living

The terms extreme hardship or severe and unusual hardship are there for a reason. The court wants to limit who can get a special hardship licence, it's not enough to simply suffer a hardship it must be extreme hardship when it comes to losing the ability to make a living or severe and unusual hardship for any other reason such as needing to drive the children to school etc.

If you have not specified the hardship you're suffer in the court can't grow it the licence turn this is often a reason that TMR object to a person getting a special hardship licence.

The person is ineligible to apply

To be able to get a special hardship licence the applicant must not have had a loss of licence, except in rare exceptions, in the last 5 years.   If you have lost your licence in court in the last 5 years you are not going to be able to apply for a special hardship licence or if your licence has been suspended by TMR you likely will not be able to apply for the hardship licence.

TMR will print out copy of your traffic history and may check other states and if they see that you are not eligible to apply they will object to the application being granted and will provide the court with a copy of your traffic history.

Material is not in an affidavit 

Simply telling the court verbally the reasons why you need to drive is insufficient it must be in the affidavit.    Therefore TMR may object to the special hardship order where you are seeking something that is not contained in your affidavit evidence.

The type of driving or days /hours for driving are not properly defined

The court is going to limit your driving to certain days and hours.   If you have not properly defined in your affidavit the reasons you need to drive and where and when you need to drive then TMR may object.

You have not addressed a poor traffic history

People with a poor traffic history or those applying because they were driving more than 40 kim/h over the speed limit need to show the court that they are driving behaviour will change.  This might be through a road safety course or other programme.  The best course in Queensland is undoubtedly QTOP which provides an online course well recognised by all the magistrates courts in Queensland.

TMR objects what now?

If you have received an objection from TMR the best course of action is to try and provide the information that they require. This could be done through additional affidavit evidence or annexing new material to an affidavit.

This might mean you will have to seek an adjournment of your application to another court date so that you can provide the additional information to TMR so hopefully they will lift their objection.

I added extra information but TMR still objects

It might be that TMR say you do not qualify for a special hardship licence and in that case no additional information is going to make them change their mind that you are not eligible to apply.

If however you believe that you have provided the material they need then don't forget TMR objecting to the application being granted is not the final say the magistrate makes the decision.   We have seen many applications granted even if TMR have objected.  In the end it's all up to the magistrate whether the application is granted or not the objection to the application by TMR is just one of the factors they will take into account in deciding whether you should get a special hardship order.