Fail to Nominate the Driver of a Vehicle
When a person receives a traffic infringement for an offence that was ‘Camera-Recorded’ and they were not responsible for the offence (i.e. they were not driving the car when the offence occurred), they have an active duty to nominate the correct driver within 21 days of the issue of the penalty notice in accordance with Section 186 of the Road Transport Act 2013. A person who fails to do so may be charged with the offence fail to nominate the driver of a vehicle. This offence also applies to companies who have cars registered in the company name, requiring the company to nominate the correct driver within 21 days.
Where a nomination is made after 21 days or a person fails to nominate the driver at all, they may be issued with a penalty notice or a Court Attendance Notice for the offence of “Failure to Nominate” under Section 188 of the Road Transport Act 2013.
The penalties imposed for a fail to nominate the driver offence differ depending on whether the offence is a first or second offence and on whether the offender is a natural person or a corporation.
Penalties for fail to nominate the driver of a vehicle
Where a fail to nominate the driver offence is dealt with by penalty notice the penalty that applies is as follows:
First offence
Natural Person – $723.00
Corporation – $1,528.00
Second offence
Natural Person – $723.00
Corporation – $4,097.00
Where a fail to nominate the driver of a vehicle offence is dealt with by Court Attendance Notice, the maximum applicable penalties that apply are:
First offence
Natural Person – $5,500.00
Corporation – $22,000.00
Second offence
Natural Person – $5,500.00
Corporation – $22,000.00
How Do I Transfer The Fine?
You must lodge a statutory declaration nominating the person who was in charge of the vehicle at the time of the offence. You can obtain a copy of the statutory declaration from the Revenue NSW Website. It is a common misconception that the person you are nominating must sign the form or agree to be nominated for the offence. This is not the case. As the responsible person for the vehicle, you have an obligation to nominate the driver who committed the offence.
All you need to do is fill out the form and provide the nomination details and then have your signature witnessed by a lawyer or Justice of the Peace. If Revenue NSW receives the nomination within the 21 day time frame, they will withdraw your penalty notice and issue a new one to the nominated person.
You Need To Make Your Nomination Quickly
You must lodge the nomination within 21 days of the issue of the penalty notice in accordance with Section 186 of the Road Transport Act 2013 to avoid being charged with fail to nominate the driver of a vehicle.
If you don’t lodge your nomination in time, Revenue NSW may chose to issue either a penalty notice for failing to nominate, or a Court Attendance Notice requiring the person to attend court for failing to nominate. However, this is not always the case, even where the nomination is filed outside of time, Revenue NSW may exercise its discretion and decide not to pursue a charge of failing to nominate against the person.
What Happens If I Miss the 21 Days to Nominate?
Where the 21 days has passed and an offence is not nominated to another person, the law presumes that the responsible person for the vehicle was the driver, and the offence and demerit points will be attributed to them.
If the 21 day time-frame to make an election is missed, Revenue NSW is entitled to issue a penalty notice or a Court Attendance Notice for failing to nominate. These matters are often prosecuted where a nomination is not made on the offence, or when a nomination is made far outside the 21 day time frame.
In some circumstances where a responsible person has missed the time frame and nominates outside the 21 days, Transport NSW may exercise their discretion and decide not to prosecute for failing to nominate.
What If I Nominate The Wrong Person?
It is an offence to falsely nominate another person as being in charge of the vehicle at the time of the offence.
A court can impose the following penalties for this offence:
- If the vehicle is registered to a person the maximum penalty is $11,000.
- If the vehicle is registered to any other type of entity (for example a business or company) the maximum penalty is $11,000.
Defences for fail to nominate the driver of a vehicle
Yes, under Section 188 of the Road Transport Act 2013, it is a defence for a ‘Failure to Nominate’ offence if the responsible person who received the penalty notice did not know and could not with reasonable diligence have ascertained the nomination details.
What are the Usual Penalties for fail to nominate the driver of a vehicle
The most common sentencing outcome for these matters is a fine penalty. The severity of the sentence will relate to the seriousness of the offence, whether the offence has since been nominated and any steps the person/business has taken since to prevent an additional failure to nominate offence.
How Should I Prepare for Court?
For these offences, the court is likely going to inquire into the following:
- The reason why the nomination did not occur with in 21 days,
- Whether the offence has been nominated (even if outside the 21 days),
- Steps taken since the offence to avoid reoffending.
Accordingly, in preparing for court, you should address the above reasons and attempt to nominate the driver for the offence. On sentence, the court will also have regard to your previous traffic record and any additional failure to nominate offences.
Some steps that can further be taken by a person or company that has been charged with this offence include:
- For companies – Installation of electronic management systems for businesses to track fines and required nominations ensure nominations can be made within the 21 day time frame including logbooks, electronic check in/check out systems, or the Transport NSW eNoms system; and the creation of personalised filing systems to ensure that any fines received are nominated in time.
- For an individual, the completion of a Traffic Offender Program, a letter of Apology to the court, and obtaining character references from people who know the well and can attest to their prior good character.
For advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Sophie Ogborne
Sophie Ogborne has a Bachelor of Laws from University of Wollongong and a Graduate Diploma of Legal Practice from the College of Law. She was admitted to practice in New South Wales in 2020. Sophie has experience in criminal law, civil law, family law and in the criminal and equity divisions of the Supreme Court. Sophie now practices exclusively in...