Citation: R (NSW Police) v Mainfreight Pty Ltd [2023] NSWDC 459
Court: District Court of New South Wales
Date: 31 October 2023
Judge: Scotting DCJ
Background
In March 2022, NSW Police pulled over a B-double truck on the Sturt Highway and found the load protruding 750mm over the edge of the trailer, a severe-category offence under the Heavy Vehicle National Law (HVNL). The drivers told police the truck had been loaded by Mainfreight Pty Ltd, and a Load Manifest bearing the Mainfreight logo was photographed at the scene. Without making any prior enquiries of Mainfreight, police issued Court Attendance Notices charging the company with HVNL offences under the chain of responsibility provisions.
Two days before the scheduled hearing in November 2022, police withdrew the charges. Mainfreight sought a costs order in the Local Court, arguing that police had unreasonably failed to investigate whether any admissible evidence connected Mainfreight to the alleged offences. The magistrate agreed and ordered police to pay Mainfreight's legal costs of $85,968.
NSW Police appealed the costs order to the District Court, arguing both that the preconditions for a costs order had not been satisfied and that the quantum awarded was excessive.
Legal Issues
- Whether the magistrate erred by misconstruing the elements of the relevant HVNL offences when finding the prosecution lacked evidence against Mainfreight
- Whether the magistrate erred by awarding costs without an adequate evidentiary basis to assess whether the amount was just and reasonable
- Whether, on appeal, the just and reasonable quantum of Mainfreight's costs should be reduced
Decision
Issue 1: Misconstruction of the HVNL offences
The District Court found the magistrate did err by accepting Mainfreight's submission that the HVNL offences required proof of actual knowledge. The Court held that the relevant offences were strict liability offences and that constructive knowledge was sufficient. Mainfreight was required to have a system in place to ensure HVNL loading requirements were met, and it was not necessary to prove actual knowledge that the truck was being driven by a particular person on a particular road (at [35]-[37]).
Issue 2: Entitlement to a costs order
Despite the error on the elements, the District Court confirmed that Mainfreight was entitled to costs on an alternative basis (at [36]). Police had charged Mainfreight without making any prior enquiries and without gathering any admissible evidence of Mainfreight's involvement. The drivers' statements that the truck was loaded by Mainfreight were hearsay without proper foundation, the drivers were not present when the truck was loaded, and the Load Manifest showed only the Mainfreight logo without establishing any logistical involvement. Police also had powers under the HVNL to issue statutory notices compelling information from Mainfreight but did not use them (at [38]).
Issue 3: Quantum of costs
The magistrate erred by accepting Mainfreight's stated costs figure without an adequate evidentiary foundation. While police did not formally object to the note of costs being handed up, they did not concede the amount was just and reasonable and submitted that it could not be assessed as such without itemised bills. Mainfreight declined to tender itemised bills in response. The magistrate could not reach the required level of satisfaction without either evidence of how the costs were incurred or a clear concession from police (at [39]).
On the appeal, the District Court assessed the itemised bills of costs in evidence. It found that the case was patently very weak and that very little preparation work was genuinely necessary, noting that Mainfreight knew the extent of its own involvement and could have made representations to police seeking withdrawal at any earlier stage (at [46]-[48]). The Court allowed counsel's fees of $18,840, disbursements of $4,791.38, and solicitor's fees for four days (32 hours) at the senior associate rate totalling $23,760, arriving at a just and reasonable total of $47,391.38 (at [53]-[56]).
Orders Made
- Appeal allowed in part
- The magistrate's costs order varied
- NSW Police to pay Mainfreight's costs of the Local Court proceedings in the sum of $47,391.38
- All other orders made by the magistrate confirmed
Key Takeaways
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Under the HVNL chain of responsibility provisions, strict liability offences require only constructive knowledge, not actual knowledge; a party subject to those provisions must have systems in place to ensure compliance, and the prosecution need not prove that the party knew a specific driver was on a specific road at a specific time (at [35]-[37]).
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A costs order in favour of a defendant following withdrawal of HVNL charges may be warranted where police charged a company without making any prior enquiries, relied on hearsay statements from drivers, and failed to use available statutory powers to gather admissible evidence (at [38]).
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Where a defendant seeks a costs order under s 214 of the Criminal Procedure Act 1986 on an indemnity basis, a note asserting a costs figure is insufficient; without itemised bills or a clear concession by the prosecution that the amount is just and reasonable, the court cannot make the required finding (at [39]).
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In assessing just and reasonable costs on appeal, the District Court took into account the weakness of the prosecution case, the availability of instructions from the client, the strategic importance of the litigation to the defendant, and the proportionality of legal costs to the maximum penalty at stake (at [46], [52]).
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Costs are not automatically reduced to a nominal amount merely because a prosecution is weak; the District Court allowed senior junior counsel and an experienced instructing solicitor, travel, accommodation, and subpoena-related expenses as properly recoverable in the circumstances (at [50]-[54]).
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001
- Criminal Procedure Act 1986 (NSW)
- Heavy Vehicle National Law 2013 (NSW)
Cases
- Adelaide City Corporation v Australasian Performing Right Association Ltd (1928) 40CLR 481
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298