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How do I apply for a special hardship order?

If you want to apply for a special hardship order, you need to follow these four steps:

  • Step 1 – Prepare your application for a special hardship order
  • Step 2 – Prepare copies of your documents and file them with the court
  • Step 3 – Give a copy of the documents to the Department of Transport and Main Roads
  • Step 4 – Go to the court for the hearing of your special hardship order application.

Step 1. Prepare your application for a special hardship order

What documents do I need to prepare my application?

You will need:

  1. a Special hardship order application (your application form)
  2. your Affidavit
  3. an Affidavit by your employer, ie your boss, unless you’re self-employed (if you need an order to keep your job)
  4. a statutory declaration or other document that explains why you need an order for study, health or another special reason
  5. your traffic history, which is a record of your traffic offences, ie any time you’ve been caught for breaking road rules, drink driving etc
  6. your criminal history, which is a record of your criminal convictions (if you have any).

Where do I get the forms and documents?

Application form

You can get an application form from any Department of Transport and Main Roads Customer Service Centre. You can also get an application form from any magistrates court registry (it doesn’t have to be the magistrates court you’re applying to for the special hardship order).

Affidavits

An affidavit is a written statement to support your application and it is used as your evidence in court. You can get an Affidavit form from any magistrates court registry or you can download one from the Queensland Courts website (Form 46 under the Uniform Civil Procedure Rules 1999).

Statutory declaration or other supporting document

You can get a statutory declaration from a post office or the Department of Justice and Attorney General’s website. If you don’t have a statutory declaration, you may need another back up document to support your application for a special hardship order. The type of document you need, what the Statutory Declaration should say and who it is from will depend on why you need your licence. For example:

  • If you are a student and you need a licence to attend your course, get a copy of your class timetable and something to prove you are enrolled.
  • If you live out of town and you need to take your children to school or for extra tutoring due to learning difficulties, provide information about the hours, distance and location you need to drive them. You could get a statutory declaration/letter from the school or the tutor outlining the class times and explaining the need for the extra lessons (if applicable), and the bus/train timetable showing there is no suitable public transport in the location for the times you need it.
  • If a relative needs to attend medical appointments and you are the only one who can take them, get a letter from the doctor explaining your relative’s medical condition and the type of appointments they need to attend.
  • If you don’t know what sort of supporting documentation is appropriate in your circumstances, seek legal advice.

Traffic history

To get your traffic history, you need to fill in a Driver’s Record Information Request form, which is available from any Department of Transport and Main Roads Customer Service Centre or on the department’s website. You also need to pay a fee. If you mail the form to the Department of Transport and Main Roads with the fee, you will need to provide proof of identity. Telephone the department or visit the website to get a full list of acceptable proof of identity documents.

Criminal history

If you know you have criminal convictions, or you’re not sure, it’s a good idea to get a copy of your criminal history. To get a copy, you need to fill in an Application for Copy of Own Criminal History form at your local police station and pay a fee.

What do I do when I have all the forms and documents?

There are several forms and paperwork you must prepare and sign. The following steps describe how to do this.

A. Complete the application form

The application should be clearly written in blue or black ink. You need to fill in your personal details and licence details. Read the application carefully to make sure the information you have included is correct and then sign it. You need to attach any documents that support your application to this form.

See the sample Special Hardship Order Application form in sample documents and forms.

B. Prepare your affidavit

Your affidavit is a written statement to support your application and it is used as your evidence in court. It tells your story to back up your request for a special hardship order and is presented on an Affidavit form, which is almost completely blank – you have to write most of it.

Your affidavit should include your:

  • name, address and occupation
  • family details, including if you have children or other people you help support or fully support
  • details about the offences you committed, which led to your licence being suspended –
    • your reasons for breaking the law, ie how/why you were driving the way you were when you shouldn’t have been
    • how you feel about breaking the law, eg you’re sorry, and if you’ve done anything to make sure you won’t do something similar again
  • details that you are a ‘fit and proper person’ that respects the safety of other road users and the public –
    • attach any sort of criminal history with an explanation
    • if you don’t have a criminal history, say so
    • attach your traffic history and state if it’s good or average; if it’s not good, explain why things are different now.

If you need a special hardship order because you’ll lose your job and will experience extreme hardship without a driver licence, your affidavit should also include:

  • job details –
    • your current job and how long you’ve had it
    • what your job usually involves and the hours you work
    • why you need a licence to keep your job (eg you need to drive for your job, you need to carry tools to and from your job, you can’t get to and from work by public transport so you have to drive)
    • how it is not possible for you to keep your job without a licence (eg no one else can do the driving for a while and you can’t be given a different job while you don’t have a licence, or if you can you would get less pay)
    • that if you don’t have your current job you won’t be able to pay your bills, or you would be offered less hours of work and you wouldn’t be able to live on the reduced income
    • that realistically you can’t just walk into another job that will pay your bills and for which you don’t need a licence
  • family finances –
    • what you get paid each week for your job
    • any other family income, eg if your partner works, money from Centrelink for children
    • what you spend each week on the most important things, eg rent/mortgage, food, transport, health, school fees
    • other things you think are important that you need or want to spend money on.

If you need a special hardship order for study, health or another special reason (not related to losing your job or income) because you will experience severe and unusual hardship without a driver licence, your affidavit should also include:

  • information about why you need your driver licence
  • If you need it to attend a study course, you should include -
    • your course details and how long you’ve been studying
    • the hours you need to be at your school, TAFE, university, practical training etc
    • why you can’t catch public transport (eg you need to carry bulky equipment, public transport is not available)
    • why someone else can’t drive you to and from wherever you need to go or why you can’t change the dates and times to a date or time someone else is available to drive you.

See the heading ‘Statutory Declarations and other supporting documentation’ above for guidance on what documents to attach to your affidavit.
See the sample Affidavit in sample documents and forms.

If you need to attach a document to your Affidavit, (eg your traffic history or criminal history), this document is called an ‘exhibit’. You need to put a certificate of exhibit on the document or attached to it, which is signed by the justice of the peace who witnesses your affidavit. A certificate of exhibit is a statement that confirms the document is the true copy of the document referred to in the affidavit. See the sample certificate of exhibit attaching a traffic history in sample documents and forms.

The affidavit must be sworn or affirmed in the presence of a commissioner of declarations, justice of the peace or solicitor. To find one near you, call 1300 301 147 or visit www.justice.qld.gov.au

C. Organise your employer’s affidavit if you are asking for a special hardship order for work

If you’re not self-employed, you must give the court an Affidavit by your employer confirming you will lose your job or a lot of your income if you don’t have a driver licence.

If your employer is an organisation, eg a company, get your immediate boss or someone further up in the organisation to provide the employer’s Affidavit. Whoever provides the employer’s Affidavit must be able to truthfully say you’ll lose your job if you don’t have a licence or that you would get less work and therefore a lot less pay.

Your employer’s Affidavit should include:

  • your employer’s name, address and position (or whoever is doing the affidavit for your employer)
  • your job details (similar to your affidavit) –
    • your current job and how long you’ve had it
    • what your job usually involves and the hours you work
    • why you need a licence to keep your job
    • that if you don’t have a licence, you won’t be able to keep your job or your hours would be reduced.

See the sample employer’s Affidavit in sample documents and forms.

The affidavit must be sworn or affirmed in the presence of a commissioner of declarations, justice of the peace or solicitor. To find one near you, call 1300 301 147 or visit www.justice.qld.gov.au

Step 2. Prepare copies of your documents and file them with the court

You need to make three copies of all the documents:

  1. a copy for the Department of Transport and Main Roads
  2. a copy for you to take to court in case you need to look at it
  3. a spare copy.

The original and two copies of the documents should be filed at the magistrates court registry in the court division or district where you live within 21 days after your licence has been suspended. You will need to pay the court’s application fee. Check with the court to find out the current fee. The registry staff will stamp the documents and give you a hearing date. They will keep the original documents and give you back the two copies.

Step 3. Give a copy of the documents to the Department of Transport and Main Roads

You must give the Department of Transport and Main Roads a copy of your application and supporting documents as soon as possible, but at least seven days before your hearing date. If possible, take the documents to a Department of Transport and Main Roads Customer Service Centre yourself.

At the same time you should also give a letter to the Department of Transport and Main Roads prosecutor asking if your boss will need to come to court. If your boss isn’t at court and the prosecutor wants to ask them questions, the matter may have to be adjourned until a later date.

See the sample letter to the police prosecutor on page 45, which will give you an idea about what to include in your letter to the Department of Transport and Main Roads prosecutor.

Once the Department of Transport and Main Roads gets a copy of your documents, your driver licence suspension will be temporarily lifted until the day before your court hearing. So if your suspension started on 1 June, your court date is 1 July and the Department of Transport and Main Roads gets the documents on 15 June, your licence is not suspended and you can drive without breaking the law from 15 June to 30 June. If you’re not sure, ask a lawyer for legal advice.

Step 4. The court hears your special hardship order application

You must go to court for your application to be heard.

Does my boss need to go to court?

If you have an affidavit from your employer, your boss should be at court if the prosecutor has told you your boss is needed. Many magistrates don’t need the employer to be there if the affidavit covers all the information needed, but some do. If your boss can’t come to court, make sure you have a number they can be contacted on. If the magistrate wants your boss to be in court and they’re not there, the magistrate may adjourn the matter until a later date.

When you arrive

  • Arrive 15 minutes before your hearing time and see the staff at the counter and:
    • tell them your name
    • find out the courtroom your case will be in or check the daily law list, which is displayed on the notice boards or television screens in the foyers and waiting areas.
  • Look for the Department of Transport and Main Roads prosecutor in the courtroom and see if you can speak to them about your application (sometimes the police prosecutor will be there on behalf of the Department of Transport and Main Roads prosecutor). Make sure you’re on the list to apply for a special hardship order and that they have a copy of your application and supporting documents. Give a copy of your documents to the prosecutor if you haven’t done this already. If you’ve already given the prosecutor a copy and they haven’t got it, give them your spare copy. If you haven’t given the Department of Transport and Main Roads a copy of your application at least seven days before the court date, the prosecutor may ask the magistrate for the matter to be adjourned, or they may even ask them to dismiss your application because you haven’t followed the rules.
  • Wait for your turn. You can sit quietly at the back of the courtroom and watch other cases to get an idea of what happens. Your boss can wait in the courtroom too, or outside. Otherwise, wait outside in the foyer. The court clerk will call your name when the magistrate is going to hear your matter.
  • Turn off your mobile phone. Don’t eat, drink or chew gum in court.

Who’s who in the courtroom?

  1. Magistrate — hears your applicationfor a special hardship order and decides whether or not an order will be issued.
  2. Depositions clerk — assists the magistrate and records proceedings.
  3. Police prosecutor or the Department of Main Roads prosecutor — acts as the respondent in the case and may make submissions for or against an order being issued.
  4. Applicant — the person who is making the application (you).

    laguwl-whos-in-courtroom.jpg

When you are called

  • Stand when the clerk says “all rise” when the magistrate enters or leaves the courtroom.
  • Bow your head to acknowledge the magistrate when you enter or leave the courtroom.
  • Address the magistrate as ‘Your Honour’ and call the Department of Transport and Main Roads or police prosecutor ‘the prosecutor’.
  • Speak clearly and follow the magistrate’s instructions. You can read from your notes.

When your name is called you stand at the bar table in front of the magistrate so you are facing the magistrate.

Tell the magistrate you are applying for a special hardship order and make sure the magistrate and prosecutor have a copy of your application and affidavits. Tell the court your boss is there in the courtroom or outside, or that you have a phone number that your boss can be contacted on.

The magistrate hears your special hardship order application

The magistrate may ask you and your boss to go into the witness box to give evidence. You will need to refer to your application and affidavits and answer any questions from the prosecutor or the magistrate about your special hardship order application. In some country and regional courts, the prosecutor may not come to court but may send a letter to the court to let the magistrate know what the department thinks about your application. After hearing from you and the prosecutor, the magistrate will then decide whether they will give you a special hardship order. The special hardship order will be in place for the suspension period.

What happens if the magistrate gives me a special hardship order?

If the magistrate gives you a special hardship order, you will need to take the court order to a Department of Transport and Main Roads Customer Service Centre and apply for a replacement driver licence within 14 days of the court order being made. You should read the special hardship order conditions very carefully and make sure you follow them.

If you drive outside the special hardship order conditions, you are breaking the law and your order will be cancelled if you get caught. If this happens, you will be disqualified from driving for a period of time.

If your circumstances change after the magistrate makes a special hardship order, you’ll need to apply to the court to change your order’s conditions.

If you have questions about your special hardship order, you should get legal advice.

Remember: Unless your special hardship order allows you to drive to and from the Department of Transport and Main Roads Customer Service Centre to get your replacement licence (which is unlikely), if you do so, you will be driving outside the court ordered conditions.

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