Fail To Nominate The Driver Of A Vehicle

In New South Wales, it is an offence to fail to nominate the driver of a vehicle who is responsible for the traffic offence/s in question. The maximum penalties for this offence are as follows:

First Offence via Penalty Notice

Person: $723.00 fine

Corporation: $1,528 fine

Second Offence via Penalty Notice

Person: $723.00 fine

Corporation: $4,097.00 fine

First Offence dealt with by a Court

Person: $5,500.00 fine

Corporation: $22,000.00 fine

Second Offence dealt with by a Court

Person: $5,500.00 fine

Corporation: $22,000.00 fine

What is Fail to Nominate Driver of a Vehicle?

The requirement and active duty to nominate the correct driver of a vehicle is set out in Section 186 of the Road Transport Act 2013 (NSW) which states:

1. A person who –

1. 1. Is issued with a penalty notice or a court attendance notice in respect of a camera recorded offence, and
   2. Was not the driver of the vehicle to which the offence relation at the time the offence occurred,

must, within 21 days after the issue of the notice, supply by relevant nomination document to the authorised officer under section 195 (in case of penalty notice) or the prosecutor (in the cause of a court attendance notice) the nomination details of the person who was in charge of the vehicle at the time the offence occurred. 

1A) However, a person is not required to provide a relevant nomination document under subsection (1), and is taken to have complied with this section, if the person who was in charge of the vehicle at the time the offence occurred has already provided a relevant nomination document containing the person’s nomination details to the authorised officer or the prosecutor.

1. For the purposes of this section, it is presumed that a penalty notice issued to a person by post is issued to the person 7 days after it is posted, unless the person establishes that it was not received by the person, or was not received by the person within a 7-day period.

1. Despite any other provision of this Act, a relevant nomination document may be provided in relation to a penalty notice for a camera recorded offence within 90 days of the notice being issued if the relevant nomination document is provided in the circumstances specified in section 23AA of the Fines Act 1996 (NSW).

The offence of Fail to Nominate the Driver of a Vehicle is set out in Section 188 of the Road Transport Act 2013 (NSW) which states:

1. Offence – failure to comply with section 186 A person must comply with section 186 unless the person satisfies – 

1. 1. In the case of a penalty notice – the authorised officer, or
   2. In the case of a court attendance notice – the court dealing with the camera recorded offence, or
   3. In either case – the court dealing with the offence of failing to comply with the camera recorded offence, or

That the person did not know and could not with reasonable diligence have ascertained the nomination details.

      1A)   For the purposes of subsection (1) – if a person is a corporation, the person must –

1. 1. Nominate an officer of the corporation to undertake to ascertain the nomination details of the person who was in charge of the vehicle at the time the offence occurred, and
   2. Require the nominated officer to complete a statutory declaration as to the efforts undertaken to ascertain the nomination details, and
   3. Provide the authorised officer or court, as the case may be, with the statutory declaration of the nominated officer.

Timeframe to make the Nomination

You must lodge the nomination within 21 days of the issue of the Penalty Notice.

The following acts might constitute Fail to Nominate the Driver of a Vehicle:

• Your sister took your car for a drive and was caught speeding by a camera, and you were issued a Penalty Notice, but did not nominate your sister as the driver within 21 days of being issued the Penalty Notice.
• Your company car was used by an employee, and they were caught speeding by a camera and your company was issued a Penalty Notice, but you did not nominate the correct driver of the vehicle, at the time the alleged offence occurred.

What must be proven?

For a person to be found guilty of Fail to Nominate the Driver of a Vehicle, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That a traffic infringement occurred;
• That the owner of the vehicle did not nominate the driver who was driving at the time the infringement occurred;
• That the nomination did not occur within 21 days of the Penalty Notice being issued.

If the Prosecution do not prove every single one of the above elements, you will be found not guilty.

Which Court Will Hear the Matter?

This offence is a summary offence and will be finalised in the Local Court.

Possible Defences for Fail to Nominate the Driver of a Vehicle:

The following defences may be available for a Fail to Nominate the Driver of a vehicle charge:

• The Penalty Notice was not issued within the specified timeframe
• You never received the Penalty Notice

Common Questions about Fail to Nominate the Driver of a Vehicle

What if I do not know who was driving the vehicle at the time of the infringement?

Although it may be difficult to identify who was driving the vehicle, especially for a corporation, the law still requires that you make a reasonable and genuine effort to identify the driver. This can be done through driving logs, messages and so on. 

In this circumstance, it is important that you contact Armstrong Legal who can assist with this.

Can I just nominate anyone, even if they were not the driver of the vehicle?

No, you cannot nominate someone who was not actually the driver of the vehicle at the time of the alleged offence, as this is another offence within itself, formally known as ‘Falsely Nominating Another Driver’. This offence is outlined in Section 188 of the Road Transport Act 2013 (NSW). This offence carries a maximum penalty of $11,000 if the vehicle is registered to a person and a maximum penalty of $22,000 if the vehicle is registered to a corporate entity.

Can I deal with this offence without having to go to Court?

If you received a Penalty Notice and it is within 21 days, you can nominate the driver, and you will avoid going to Court. However, if you/your company receive a Court Attendance Notice, you will be legally required to attend Court. The Court process is something our lawyers are well equipped to handle, and we can assist you along the way.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.