Whiteline Transport wins long legal fight to clear name

Adelaide-based Whiteline Transport and its high-profile owners have won a four-year legal battle against SA Police and the NHVR to quash a raft of alleged fatigue-related breaches.

The regulator confirmed to Big Rigs that it had withdrawn all charges against Whiteline, its directors Sharon and Bob Middleton and all 23 of its drivers after the Adelaide Magistrates Court refuted much of the prosecution’s evidence in preliminary trial hearings.

In one ruling about an order on evidence improperly and unfairly obtained, four of six notices were ruled to have been issued unlawfully.

Magistrate Brian Nitschke also described one SAPOL officer’s actions in issuing a notice as “lazy and unlawful”.

“To assert on a notice that he or she holds a reasonable belief when they in fact hold no belief whatsoever is worrying,” he said.

“I exercise my discretion to exclude the evidence obtained by this notice.”

A source close to the Middletons told Big Rigs that the parties are now negotiating what is expected to be a “very substantial” costs settlement, and they may return to Adelaide Magistrates Court next month if an agreement can’t be reached beforehand.

The charges stemmed from a fatality involving Whiteline driver Kingsley ‘Kingy/No.1’ Bowley on December 27, 2020.

Bowley, 67, had allegedly failed to see a motorist up ahead in time due to smoke on the road that suddenly thickened from a grass fire adjacent to the motorway.

At the time, Bowley had been two hours out of Adelaide en route to Perth on his regular run across ‘The Paddock’ after returning from four days off. SAPOL based their investigation of Whiteline on an allegation the fatality was fatigue-related but under cross examination in court admitted they knew a couple of weeks after the crash that it was not.

On March 1 the following year, Bowley was charged with aggravated driving and dangerous driving causing death.

Just five days later Bowley died in his truck at the Whiteline depot from an apparent heart attack immediately after returning from a run to Perth.

Much-loved Bowley had been with Whiteline for 18 years and until the December 2020 tragedy, had driven four million-incident free kilometres, Sharon Middleton said at the time.

Almost six months after friends, family and colleagues said their farewells at a packed funeral service in Gawler, South Australia Police issued a Prohibition Notice taking all Whiteline trucks off the road on August 28, 2021.

After two hearings in the Supreme Court, the judge quashed the notice, and the trucks were rolling again on September 3, but the Middleton’s long legal fight was far from over.

The NHVR persisted, laying fatigue-related charges against 23 drivers and also against company directors Sharon and Bob Middleton for alleged false work diary entries.

The regulator also laid further charges against the company and against the Middletons under Section 26 of the HVNL, alleging failures of primary duties, based on the fatigue-related charges against their drivers.

The court began the process by using one driver, Damien Tsouris, as a test, in what is known as a voir dire, or pre-trial proceeding to decide whether the evidence would be admissible in a trial proper.

Much of SAPOL’s investigation relied on cross-referencing data from Whiteline’s GPS systems, the inbuilt GPS in the trucks and the GPS within the Guardian fatigue monitoring system, with the drivers’ work diaries to ascertain whether they had been falsified.

But the court found that it did not consider the systems used, the police processes in securing the data and analysing it, provided it with any confidence in the accuracy and reliability of the data, so the court refused to admit the data.

In a written statement to Big Rigs, an NHVR spokesperson confirmed that the decision to discontinue proceedings with this matter was in-line with the NHVR’s Prosecutions Policy.

“The NHVR is committed to performing its prosecution functions fairly, in an open, reasonable, consistent, impartial, efficient, and accountable manner, and in the public interest,” the spokesperson said.

“Because aspects of the withdrawal are still before the court, the NHVR makes no further comment.”

Sharon Middleton, a Member of The Order of Australia and one of the most respected operators in the country, also chose not to comment about the case as the costs settlement was still being negotiated.

But in her recent welcome speech at the South Australian Road Transport Association’s annual conference, the association president and long-time board member of the Australian Trucking Association, gave an insight into the toll the legal battle had taken.

“All I will say about it today  [the legal battle] is that all the charges against our company, Bob, myself and 23 of our drivers have been withdrawn,” Middleton told attendees who included NHVR CEO Sal Petroccitto and a large table of his high-ranking senior staff.

“We have really appreciated the amazing support from industry which has helped us through this extremely difficult time.

“Now it’s about healing mentally, physically and financially; to learn to live again –  and smile again.”

Regulator’s prosecution policy is working, says CEO

NHVR CEO Sal Petroccitto is adamant that the regulator’s enforcement policy of informing and educating before enforcement is a good one – and is working.

At a ‘fireside chat’ with SARTA executive director Steve Shearer during the association’s annual conference, Petroccitto said he believes the NHVR’s “proportionate” approach is successfully driving enforcement activity throughout the organisation.

“It’s across everything, not only on roads,” Petroccitto said.

“It’s in our prosecutional space, it’s in our investigation space. It’s in the way we start to look at our policy development.

“It’s right up and down the organisation, and it has to be.

“Are we perfect? No. I’ve got 1000 staff now, so we’re not a small organisation anymore. It’s going to take us time, but I think the foundational pieces are being put there.”

Given that policy, Shearer asked Petroccitto if he’d then expect his officers to engage with an operator to try and resolve any apparent “significant” safety issues in a bid to resolve them.

“Or let them run for a year, or more, while stuff’s collected and a case is built, because I see a real dilemma there, a huge dilemma,” said Shearer to Petroccitto.

“I just don’t see how as the national regulator with a principle concern of safety, if you’re aware of an issue, I don’t see how you cannot work with the operator, if they’ll work with you,” Shearer said.

“Surely, you’re duty bound to work with them. You might still prosecute them for something they’ve done. Why let stuff run for a year or more and refuse to have engagement?

Petroccitto said he has the fundamental view that if the NHVR knows something is wrong, “we should be having the discussion”.

“We should be alerting earlier, which is why we’re working on a lot of the systems where, when we see something on the side of the road, the operator should be told, and we’ll continue on that digital program of work.

“I think the days of keeping things close to the chest, in my view, is old school regulation.

“But I’m one individual that’s trying to change that philosophy. I think we’re getting there, but it’s going to take some time.”

Petroccitto said the one thing he wanted to assure industry is that the regulator is starting to capture “some pretty good data”.

“The reason we have to capture the data is it then allows us to determine which of the operators we know are doing the right things and which of the operators that we need to go focus on.

“But what we’ve also realised is that as we capture that information, I need to share it so the offer the operators they know the areas that they should be focusing on.”

“We’re not going to move away from that. We’re just working out the mechanics of that.”

When Big Rigs later asked Shearer whether he was referring to the Whiteline case during the conference interview he said not specifically.

“But many of the fundamental NHVR policy and procedural questions I put to Sal were certainly relevant to major failings in the Whiteline case, as well as more broadly.”