Operators break silence after harrowing four-year battle to clear name

In many ways it would be easier for Sharon and Bob Middleton to stay under the radar and quietly get back on with the job at Whiteline Transport in Adelaide.

Perhaps they could just shrug off a four-year legal battle with South Australian Police (SAPOL) and the National Heavy Vehicle Regulator (NHVR) like it was a bump in the road, but that’s not the Middletons’ style. The couple will not go away meekly without saying their piece after the regulator withdrew all charges against Whiteline, its directors Sharon and Bob Middleton and 23 of its drivers.

The Middletons didn’t build up a thriving east-to-west transport business from scratch four decades ago without facing adversity head on and standing up for what they believe in.

By sharing the lessons learned from their efforts to quash a raft of alleged fatigue-related breaches and clear their name, Sharon Middleton hopes that their story will help others caught in a similar legal bind who feel they have nowhere to turn and importantly stop this from happening to others.

Speaking out is not about vengeance, Sharon, the President of the South Australian Road Transport Association (SARTA), stresses during a lengthy interview alongside SARTA Executive Officer Steve Shearer on October 8.

She says she’d hate anyone else to go through what her, Bob and the entire Whiteline ‘family’ have had to endure these past few years.

There are lessons to be learned and systemic procedural failures to be addressed, she believes, that can bring about lasting change for the good of everyone in the industry.

“We chose the harder road; to fight and not just clear our name but to prevent SAPOL doing the same thing to others,” Sharon Middleton said shortly after all charges were withdrawn.

“To be so quiet throughout this ordeal has been really, really difficult too, especially as I’ve watched different dialogue going on. I’ve thought, ‘I’d really love to correct this, and have my two bob’s worth to say’, but I had to think about the end game.”

Long fight mired in tragedy

The Middletons’ legal ordeal was triggered by a tragic fatality involving one of Whiteline’s most revered drivers, Kingsley ‘Kingy’ Bowley, on December 27, 2020.

The 18-year Whiteline veteran was on his usual run from Adelaide to Perth when his truck collided with a car in the smoke from an adjoining grass fire just two hours out of the depot at Redhill on Princes Highway.

“As he approached the smoke drifting across the highway, it was clear from the dashcam footage from Kingy’s truck, which we have watched several times, that for 10.5 minutes before he entered the smoke there was no sign of the car he eventually struck,” Sharon Middleton says.

“It just appeared right in front of him seconds after he entered the smoke that had suddenly become thick. At the scene Kingy was told by officers that he had nothing to worry about, although he was obviously shocked and distraught.”

On March 1 the following year, Middleton says Kingy, who had long since gone back to work, was asked to report to the Elizabeth police station where he had his shoes removed, DNA taken and was charged with aggravated driving and dangerous driving causing death.

Less than a week later Bowley died in his truck at the Whiteline depot from a heart attack, immediately after returning from a run to Perth.

“Losing Kingy, losing a Whiteline family member, losing that huge character that was Kingy, his laughter, his wit, was, and remains, deeply painful. For his family it was much worse,” Middleton says.

“Kingy was a classic case of don’t judge a book by its cover. He had a big bushy beard, but Kingy was a man of huge heart, a husband who daily missed his beloved Pauline who had died of cancer some years earlier.

“Kingy took months off to nurse Pauline in her final months of illness, he was a son, brother, father and very proud grandad taking enormous pride watching them grow and evolve with school and sport. He was a Whiteliner and we loved him.”

Middleton says that from her perspective, Kingy’s treatment by SAPOL in the three months after the tragic death of the motorist was appalling.

The Middletons arranged a meeting with the Assistant Commissioner of SA Police to discuss their concerns, but Sharon Middleton says it was cancelled the day prior without explanation.

“The very next day SAPOL raided Whiteline Transport’s office and treated us all like criminals,” Middleton says.

“One officer even said they were surprised we were all there because they thought Kingy’s funeral was on that day.”

Middleton said when she and the distraught staff questioned why they were being herded into the boardroom, the sergeant told her it was to prevent them from covering records with insecticide or shredding documents.

“That was an outrageous and unjustified slander completely at odds with Whiteline’s well-deserved and proven reputation as a responsible and professional organisation.

“We would co-operate, because we had done so openly when they came to us following Kingy’s incident. That stupid comment effectively said to us that as far as SAPOL was concerned, we were criminals who would obstruct them, and they would treat us as such; again displaying their confirmation bias and destroying any prospect of a professional approach.”

Whiteline’s National Operations Manager George Cushnie said he was appalled by the attitude of police during the raid.

“They wonder why people don’t want to interact with them or talk to them, the way they treat you, the way they went about the whole thing,” Cushnie says.

“It was just shocking. You would have thought that Whiteline Transport were the biggest criminals Australia’s ever had.”

Almost four years later, Sharon Middleton says she is still waiting for that meeting with the Assistant Commissioner to discuss their concerns about Kingy’s treatment.

“For Kingy to go to his grave with these charges unresolved is difficult to comprehend and I’m so sad about this. Kingy knew we were alongside him,” Middleton says.

SAPOL’s alleged aggressive and adversarial behaviour was just the start, according to Middleton.

“They leapt at what they obviously saw as an opportunity to go after a high-profile HV operator and launched an all-out investigation into Whiteline, on the false premise that the tragic fatality involving Kingy was fatigue-related.”

In an emailed statement from South Australia Police (SAPOL) in response to questions from Big Rigs about the investigation, SAPOL said it “will not be making comment in relation to any specific investigation”.

But as part of the South Australia Police (SAPOL), Road Safety Action Plan 2023 — 2026 and South Australia’s Road Safety Action Plan 2023 — 2025, SAPOL said it aims to stop people dying on our roads and to reduce the incidence and severity of road trauma in South Australia by making the roads a safer place for everyone in the community.

“This is achieved through education and enforcement, which encompasses investigations relating to compliance of heavy vehicles and heavy vehicle operators. 

“SAPOL’s Heavy Vehicle Enforcement Unit work closely with the National Heavy Vehicle Regulator and engage with the heavy vehicle industry as appropriate.

“SAPOL will investigate any alleged breaches of the heavy vehicle national law or any other associated road related law and will comply with lawful and ethical requirements when undertaking any investigation.”

Target on their backs

The next sign a possible legal case against the Middletons and Whiteline was brewing came in June 2021 when a flurry of ‘notice to produce’ emails began landing in Sharon Middleton’s inbox from the NHVR.

Middleton says she decided to get on the front foot and tackle the alleged issues head on, suggesting a meeting to identify whatever the NHVR and SAPOL thought was a problem and discuss a resolution. She says that meeting didn’t happen.

On this point, SARTA Executive Officer Steve Shearer sees an issue that is in desperate need of fixing.

“As I discussed with Sal Petroccitto [NHVR CEO] during our fireside chat session at the SARTA Conference in August, if enforcement agencies believe there is a safety problem with a heavy vehicle operation, they ought to engage with the operator to endeavour to resolve the alleged safety issue, as their first priority,” Shearer said.

“To refuse to do so and instead focus on building a case, without attempting to resolve the alleged safety issue, is unacceptable and it’s poor regulatory practise.

“Without effective engagement with the operator, the enforcement agencies can’t have a thorough understanding of the operator’s procedures and practices and therefore run the risk of basing their case on misunderstandings and false assumptions.

“This failure to engage is one of the key lessons from this case and one of the things which must change.”

Throughout August and September of 2021, Sharon Middleton says the screws were also beginning to tighten on Whiteline drivers.

Middleton says she received multiple reports from staff of troubling confrontations with police, both on the road and at their homes.

Middleton says many staff reported having three to five officers show up at their doors unannounced, threatening charges and fines so big they’d lose their homes if they didn’t supply evidence Whiteline was pushing them too hard.

She says the intimidation continued on the road and that while the police knew they could not interview any Whiteline drivers without a lawyer present, they still pulled them over.

“Clearly without any thought to the obvious safety implications, SAPOL proceeded to intercept drivers, mid-trip, to serve them with documents, knowing the drivers still had days ahead of them sharing the road with thousands of other road-users while they worried about what the police had just served on them,” Middleton says.

She says drivers from other companies were also telling her staff that SAPOL officers had said Whiteline was the reason there was a heightened level of police focus and blitzes on the highways.

“One of our drivers was intercepted at Ceduna and told by a local officer, ‘You have a target on your back working at Whiteline. If I were you, I’d work anywhere else than Whiteline’,” she says. “Others were told they were too old. These comments incited a sense of hatred and distrust towards the police.”

Fleet pulled from road

On Saturday, August 28, 2021, Sharon Middleton says SAPOL demanded to meet with her at Whiteline’s Adelaide depot.

She says that after 44 years of safe operation she was told they were shutting her down, claiming Whiteline was an “immediate and imminent risk” to the community.

The Prohibition Notice presented to Middleton required that Whiteline send all the trucks closest to Perth back to the WA capital and all those nearest Adelaide back to the SA HQ.

Middleton suspects this was purposely done on a Saturday because police knew it was impossible to take effective legal action to counter the notice until the following Monday.

“As they left the building, the constable wrapped his arm around the shoulders of the sergeant and congratulated him, just like you see footy mates do so as they leave the field,” Middleton says.

“If we were such an imminent and immediate risk to the community, why did they let us carry on operating [after the June raid on the office]?”

Bob and Sharon were so distraught by the notice, they were forced to cancel plans to attend Sharon’s goddaughter’s 21st birthday party that same night, where they were expected to turn up in fancy dress and Sharon was to give a speech.

“No level of compensation will ever get us that moment back in life,” Sharon Middleton says.

Middleton says six days later, the Supreme Court stayed the Prohibition Notice, finding it was unjustified, and SAPOL withdrew it soon after. Middleton says it took a further three days before the NHVR reinstated the company’s AFM accreditation.

She says that as the Whiteline team was leaving the Supreme Court on September 3, SAPOL immediately requested a meeting.

“At that meeting we discussed what would satisfy SAPOL to enable our trucks to get back on the road.

“We agreed on several measures, despite them making no sense and SAPOL agreed that after a period of time, they would come and see how we were going. They never showed up. All meetings we requested with SAPOL were refused.

“A meeting was of huge importance and significance to us, as there were issues from that post-court meeting that demonstrated why SAPOL’s suggested fix was not workable or effective.”

Middleton now believes SAPOL never intended to return because they were working on their own investigation to belatedly try to establish evidence Whiteline was operating unsafely.

“So, they got on with their ‘investigations’ conducted by a team of officers in SAPOL’s Heavy Vehicle Enforcement Unit and they eventually dropped a major set of proposed charges and brief in the lap of the NHVR,” Middleton says.

Case details

SAPOL’s investigations and subsequent charges were focused on two areas of the Heavy Vehicle National Law (HVNL): the alleged falsification of work diary entries by Whiteline drivers and its directors, and an alleged breach by Sharon Middleton of her Primary Duty as a director to ensure safety under Section 26 of the HVNL.

SAPOL presented the NHVR with a brief of evidence for their case against Whiteline and its drivers and the NHVR set about prosecuting 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. The first of 12 hearing dates listed against the NHVR v Tsouris case, was August 26, 2022.

Court documents show SAPOL’s investigations relied upon cross-referencing GPS data from the trucks with Safe-T-Cam data and hard copy work diaries in a bid to recreate the trips taken by Whiteline trucks and drivers to identify discrepancies in times recorded for rest and work.

The defence team questioned the validity of the data extraction and extrapolation process, the modelling used, and the way in which the data itself was requested in the first place.

Magistrate Brian Nitschke, in handing down his rulings on this test case on May 15, 2024, found much of the information the SAPOL investigation had relied upon, and the processes involved in gathering that information, did not meet the legal tests required for it to be admissible as evidence.

He also found the way in which much of the evidence had been gathered, through the use of specific Notices issued to telemetry providers involved in the case under Section 507A of the HVNL, would not stand up in Court.

Of the six Notices SAPOL had relied upon to gather information, Magistrate Nitschke ruled four were unlawful and therefore any information gathered by them would be inadmissible.

Following the handing down of Magistrate Nitschke’s rulings, the NHVR withdrew all charges against Whiteline Transport, its drivers and Sharon and Bob Middleton and  Steve Shearer said: “My impression is the matter is resolved  between Whiteline and the NHVR”.

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.

An NHVR spokesperson said the matter arose from a SAPOL investigation in 2020 involving a heavy vehicle fatality and several hundred alleged breaches of the Heavy Vehicle National Law.

“The NHVR responded to the matter in accordance with our prosecution policy,” the spokesperson said.

“The NHVR engaged with the company throughout the prosecution — a routine and legitimate process.

“The NHVR is unable to comment further on the resolution of this matter.”

Push for change

In the wake of this case,  Shearer says two critical changes should be implemented to protect heavy vehicle operators from further damaging and unjustified cases.

First, he says, enforcement agencies seeking to use GPS data to prosecute criminal cases, such as the Whiteline case, should be restricted to the use of data from telemetry systems certified by Transport Certification Australia.

Secondly, he says, analysis of that data should only be undertaken by officers who have been formally trained and appropriately qualified in understanding and analysing GPS data. 

For example, he says, in this case, the truck GPS system started a ‘trip’ record when a driver turned the ignition on and ended the ‘trip’ record when a driver turned it off.

Some of those unbroken ‘trips’, from ignition on to ignition off, ran for eight or more hours.

“SAPOL incorrectly interpreted this, regardless of whether or not the data showed the truck was moving, as meaning the driver was working for that entire time, even when they weren’t and the truck was not moving,” Shearer says.

Sharon Middleton says the SAPOL analysis of one set of data showed one of Whiteline’s trucks to have allegedly travelled 279km in 10 minutes. Another truck was supposedly stopped and fuelling, but also doing 90km/h at the same time.

She says it should have been obvious to SAPOL that their analysis was wrong.

Whiteline’s Compliance Coordinator Murray O’Neill, however, spent up to 30 hours a week over 18 months to refute the police claims using the Safe-T-Cam system data access he had through the thousands of records SAPOL had to provide as part of the court discovery process.

“Once we had a known time from the Safe-T-Cam data, we could look at the SAPOL reconstructions of the diaries and look at the GPS from there and that’s where the flaws became evident,” O’Neill says.

If Whiteline had been given the opportunity to show SAPOL where they had got it wrong,  Shearer says the company would have been able to prove very early on that what SAPOL was claiming was false. But Shearer says he believes that getting anyone to listen would have been a different story.

“Because the police were refusing to engage and discuss, the company would have had to fight that fight on the actual data evidence in Court, but the Court declined to admit the evidence, so it didn’t come to that,” he says.

Shearer says it all came down to vertical lines in the work diaries.

“You’re saying you started a rest here and stopped a rest here, whereas the SAPOL analysis of GPS data says it was a different time frame.

“There was very little argument coming from the police or prosecutors that Whiteline drivers are fatigued and not getting the appropriate rest. It was about false and misleading work diary entries, not systemic fatigue breaches.”

Shearer says the prosecution also accused Whiteline, in the company charges, of not having a safety culture.

“If things had proceeded, they would have had to run that case in court,” he says.

“There’s no doubt that part of their evidence would have been: ‘Well your drivers are getting it wrong in the work diary you’re not adequately checking so you don’t have a safety culture’.

“But Whiteline has had cops come for years, participating in the company’s toolbox meetings and SAPOL even referred other companies to come and have a look at how good it is, and looking at all the safety stuff.

“The trucks are properly maintained, they’ve got their AFM (Advanced Fatigue Management) and BFM (Basic Fatigue Management) accreditations, all of that’s fine.

“This was all about an opportunity to say, based on these lines, we reckon you don’t have a safety culture, but I can tell you the lawyers, when they saw those charges, just laughed at the absurdity of it.

“Whiteline is a safety model,” Shearer says.

Harrowing fight takes toll

Sharon Middleton estimates the fight to clear their name cost the business as much as $1.5 million in legal costs and lost revenue – and the physical and mental costs are immeasurable.

At her lowest ebb, the hits were coming from every angle, from crippling stomach ulcers to stints in hospital for pneumonia. Bob was also hospitalised due to back, heart and lung issues.

Sharon Middleton turned 60 on September 25, 2021, but with so much uncertainty ahead, celebrating one of life’s biggest milestones was the last thing on her mind.

For the first time in her life, the woman who co-founded Foundation Shine in 2008 and raised $400,000 to help people battling with mental health issues, was struggling to cope herself and admits to seeking professional help.

“It’s not normal to sit in your car sobbing uncontrollably, dialling numbers for a safe, trusted and settling voice on the other end of the phone, or totally paralysed unable to leave home to be social – it was all about, get up, go to work, come home and try to survive,” Middleton says.

One of the lowest points came just last year when she had her invitation to attend a federal government roundtable on the environment rescinded due to “information” about her and the company that had “come to hand”.

“I can’t explain to you how devastated I was,” says Middleton, who was awarded a Member of the Order of Australia for her services to road transport and is a current Australian Trucking Association board member.

“I felt like a leper.”

Drivers also left the business, the industry or moved interstate, fearful that the relentless police campaign could jeopardise their entitlements.

“This meant for a time we had trucks parked up with no drivers in them, but we still had the finance payments on the trucks, the rego and the insurances,” Middleton says.

Customers and suppliers stuck with Whiteline, but the Middletons were stretched to the limit trying to balance the books.

Sharon Middleton, who even dipped into her inheritance from her mum at one stage, felt like a juggler in a circus trying to stay afloat and most importantly, stay in the fight.

“We weren’t going to abandon our drivers and just leave them to their own devices,” she says.

“I had good days and bad days with it, I’m not going to lie, but I think knowing that I had a team of people who were relying on me and needed me to be the strong and resilient one and get them through it, your survival instincts kick in, and your protection instincts.

“I always laugh at George, our national ops manager. He calls me Mother Hubbard because of the way I worry about my flock.

“If you become a Whiteliner, you’re always a Whiteliner, even the ones who have left.”

“I knew they needed me to fight. I knew it was wrong. I knew I needed things to change.

“I had great support from customers and suppliers, and I just felt this enormous responsibility to do whatever I could to fight what I believed to be a massive injustice.”

Call for collaboration

Steve Shearer says the industry owes Sharon and Bob Middleton a huge debt for staying in the fight for so long.

“They stood up and fought for what they knew was right and the court’s judgements have fully vindicated them,” he says.

“In doing so, they have drawn an important line in the sand for the rest of the industry with this watershed case.

“There is a need for enforcement agencies to review their approach.

“They can’t keep trying to build cases on data which comes from GPS systems that aren’t certified by Transport Certification Australia (TCA) and which they don’t fully understand and don’t know how to analyse.” 

Shearer says there are many other lessons from this case which point to important and fundamental changes that must be made to the way police and the NHVR go about their investigations and enforcing the law.

“It’s not about vengeance, it’s about working out what needs to be done to guard against this happening again and make things better.

“We need an effective heavy vehicle regulator – it’s got to work fairly and responsibly.

“There is no way that either the police or the NHVR can achieve the best safety and compliance outcomes if they don’t collaboratively work with industry.

“They can get some outcomes, but they’ll never get the best outcomes.”

Sharon Middleton says there needs to be a formal system set up for operators to discuss allegations with authorities before they get to the prosecution stage.

“So, they have an opportunity to explain and show the authorities where they have got it wrong or misunderstood what they are looking at,” Middleton says.

“Assumptions made by investigators about procedures within a trucking business or misunderstandings about how a GPS system actually works and what its limitations are, can make all the difference.

“Instead of authorities only finding those things out in very expensive court proceedings, surely it would be better to enable the HV operator, or driver, to discuss and explain, through proper engagement, and stop court cases proceeding unnecessarily.

“This would also be much fairer, especially for the smaller operators and individuals who genuinely believe the authorities have got it wrong.

“As we know our great industry is made up of some 75 per cent of small to medium family businesses. 

“When you are faced with fighting, despite being innocent until proven guilty, it feels the opposite because you have to do so much work to prove your innocence.

“We all do millions of kilometres every year, and it doesn’t matter how good your systems are, how good your safety record is, at some point, unfortunately, you are going to be in the wrong place, wrong day, wrong time.

“It’s just how it is, and if something terrible happens, you need to be able to work with the authorities in a controlled and proper fashion to get the facts to get to the bottom of it. But instead, we were just being treated like we were criminals.”

Although still healing from the impacts of the last four years, a more guarded, but far from defeated Middleton, is now looking forward to getting back out on the frontline with her high-level campaigning and advocacy.

Her passion for the industry, she says, still burns just as strong.

“Amongst all the dark stuff there is a lot of good people achieving fantastic things.

“I’m watching some young people come up through some of the organisations around the country and I think ‘great, there are people to continue, they’re stepping up and grabbing the baton’.

“And as long as the people around me want to keep playing in the sandpit, I’m going to be there with them supporting them and making it happen.

“But I do want change – there’s no way we can carry on like this.”