NSW Police have been ordered to pay $47,391 in legal fees to Mainfreight following a botched investigation into alleged loading breaches in March last year.
Mainfreight was orginally awarded $85,968 in costs but that amount was almost halved upon a successful appeal by police with the decision handed down by the Disctrict Court late last month.
The B-double in question had been transporting doors from Carlisle in Perth to Lansvale in Sydney when it was pulled over by police on the Sturt Highway at Gillenbah, NSW on March 7, 2022.
According to the court documents, the load had moved in transit and was bulging through the curtains of the trailer and the trailer appeared to be leaning towards the nearside of the vehicle.
Measurements were taken and the load was found to be protruding 750mm over the edge of the trailer, which is an offence in the severe category.
The drivers were employed by New Maja Transport Pty Ltd, a company based in Queensland, and had taken over driving the truck as a two-up combination at a roadhouse in Mundrabilla, WA.
The drivers informed the police that the truck had been loaded by Mainfreight.
On May 11, 2022, Mainfreight was charged with the following offences:
- drive or permit a person to drive a vehicle that does not comply with loading requirements (severe) contrary to s 111(1)(c) of the Heavy Vehicle National Law 2013 (NSW); and
- drive or permit a person to drive a vehicle that does not comply with dimension requirements (severe), contrary to s 102(1)(b)(iii) Heavy Vehicle National Law 2013 (NSW).
As fine-only offences, with a maximum penalty of $10,000 each, police were not required to submit a brief of evidence and refused to do so.
But Mainfreight’s solicitors issued a subpoena for the police evidence, which amounted to 42 photographs and included one of the load manifest.
The matter was ultimately listed for hearing before Magistrate Robert Rabbidge in Wagga Wagga Local Court in November 2022. However, two days prior to that, police informed Mainfreight’s solicitors they intended to withdraw the charges.
At that November hearing, the charges were dismissed and withdrawn.
The magistrate found there was no evidence to satisfy the charges and found there had been a significant failure by police prosecutors to thoroughly look into how to prove their case to the criminal standard.
The magistrate accepted a submission by Mainfreight there was no evidence it had any knowledge whatsoever it knew who would be driving the truck at Gillenbah that day and in light of that, he found the transport company could not have permitted the offence to occur.
Magistrate Rabbidge accepted a compensation request by Mainfreight and ordered police to pay $85,968 in legal costs to the company despite police arguments this figure was “manifestly excessive”.
In the subsequent appeal judgment, Judge Andrew Scotting said the magistrate made multiple errors in his ruling and found the decision ordered police to repay an amount which was not supported by the evidence.
Judge Scotting said assuming Mainfreight was acting as “matchmaker” between Hume Doors and Timber and Maja Tranpsort Pty Ltd, it was required to have a system in place to ensure the parties complied with the law.
But despite this, the judge found Mainfreight was entitled to legal costs as police “unreasonably failed to investigate the offences and gather any admissible evidence of Mainfreight’s involvement with the load, or in the loading of the truck at Carlisle (in Western Australia) or its journey thereafter”.
“The Load Manifest did not suggest any connection with Mainfreight other than the use of the Mainfreight logo,” the judgment said.
“It did not explain Mainfreight’s involvement in the logistics transaction to any extent and could not have proved the offence to the criminal standard. The police had the power pursuant to the HVNL to request information from Mainfreight through the issue of statutory notices under ss 569, 570 or 570A of the HVNL. The police did not take any of those steps.”