R (NSW Police) v Mainfreight Pty Ltd

[2023] NSWDC 459

District Court

New South Wales

Medium Neutral Citation:

R (NSW Police) v Mainfreight Pty Ltd [2023] NSWDC 459

Hearing dates:

1 June and 24 August 2023

Date of orders:

31 October 2023

Decision date:

31 October 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)   Appeal allowed in part.

(2)   I vary the costs order made by the magistrate.

(3)   The appellant is to pay the respondent’s costs of the proceedings in the Local Court in the sum of $47,391.38.

(4)   I confirm the other orders made by the magistrate relating to payment of the costs order.

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Criminal Procedure Act 1986 (NSW)

Heavy Vehicle National Law 2013 (NSW)

Cases Cited:

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

Category:

Principal judgment

Parties:

NSW Police Service (Appellant)
Mainfreight Pty Ltd (Respondent)

Representation:

Counsel:
C Ireland (Respondent)

Solicitors:
Makinson d’Apice (Appellant)
Minter Ellison (Respondent)

File Number(s):

2022/174191

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Wagga Wagga

Jurisdiction:

Local Court

Date of Decision:

2 November 2022

Before:

Magistrate Rabbidge

JUDGMENT

Introduction

1. On 22 November 2022, his Honour Magistrate Rabbidge (the magistrate) sitting at Wagga Wagga Local Court made an order that New South Wales Police (the appellant) pay Mainfreight Pty Ltd’s (Mainfreight) costs in the sum of $85,968. The appellant brings an appeal as of right against that costs order under s 23(2)(b) of the Crimes (Appeal and Review) Act 2001.

2. The appellant contended that the magistrate erred in making a costs order in favour of the respondent for the following reasons:

1. None of the pre-conditions under s 214(1) Criminal Procedure Act for the award of costs in favour of accused were met.

2. In the event that one or more of the pre-conditions under s 214(1) was satisfied, the costs order was not for a just and reasonable amount as required by s 213(2) Criminal Procedure Act and should be significantly reduced.

3. In response, Mainfreight contended that the pre-conditions in s 214 had been satisfied and that it was entitled to a costs order. Mainfreight contended that the appellant should not be allowed to revisit the quantum of the costs order because it did not require the invoices to be tendered before the magistrate. In the alternative, Mainfreight contended that it should have leave to rely on fresh evidence to support the quantum of its claim and to explain the background of the proceedings before the magistrate. In the appeal Mainfreight sought to rely on affidavits of Tara Kahlovic, solicitor, sworn 24 May 2023 and 31 May 2023.

Background

4. At about 11.00am on 7 March 2022 police pulled over a B-double truck on the Sturt Highway at Gillenbah, New South Wales. The truck was transporting doors from Carlisle in Perth to Lansvale in Sydney. 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 protruding 750mm over the edge of the trailer which is an offence in the severe category. The truck was being driven by Harvinder Singh and another driver Rajat Dua was asleep in the bunk. The drivers were employed by New Maja Transport Pty Ltd, a company based in Queensland. The drivers produced a Load Manifest that displayed the Mainfreight logo on the top left corner of the document. The police took a photograph of the Load Manifest. The Load Manifest contained the pick-up address for the load at Hume Doors and Timber at Carlisle and specified a delivery address for the load to Hume Doors and Timber at Lansvale. The drivers had taken over driving the truck at a roadhouse in Mundrabilla, Western Australia. The drivers informed the police that the truck had been loaded by Mainfreight.

5. The Heavy Vehicle National Law (HVNL) contains chain of responsibility provisions intended to make all parties involved in a logistical sequence responsible for non-compliance with loading requirements.

6. Prior to the issue of the Court Attendance Notices (CANs), the police did not contact Mainfreight to make any enquiries relating to any alleged breach of the HVNL by Mainfreight arising from the events of 7 March 2022.

7. On 11 May 2022, the respondent was charged with the following offences:

1. 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

2. 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).

8. At the first return of the proceedings on 22 July 2022 before Narrandera Local Court a brief of evidence was requested by Mainfreight. As a fine only offence, the police were not required to prepare and serve a brief of evidence and refused to do so. Mainfreight’s solicitors were advised to subpoena the evidence in the possession of the police. A subpoena was issued and material and a series of 42 photographs taken on 7 March 2022 were produced on 19 August 2022, including a photograph of the Load Manifest. There were further interlocutory appearances on 23 and 26 September 2022.

9. The proceedings were ultimately listed for hearing at the Wagga Wagga Local Court on 2 November 2022.

10. On 31 October 2022, two days before the scheduled hearing date on 2 November 2022, the appellant informed Mainfreight’s solicitors that it intended to withdraw the charges.

11. On 2 November 2022 Mainfreight’s counsel and solicitor appeared before the magistrate at Wagga Wagga Local Court. The charges were withdrawn and dismissed. Mainfreight sought an order for its costs.

12. Mainfreight made an application for costs on the basis that the police had unreasonably failed to investigate the matter because they had never gathered any admissible evidence to demonstrate that:

1. it “permitted” Mr Singh to drive the vehicle at Gillenbah, because it did not know that he was driving the vehicle at the relevant time; and

2. it was involved in any failure to ensure that the vehicle was properly loaded.

13. Mainfreight tendered the bundle of material produced by the police on subpoena in support of its application for costs.

14. Mainfreight contended that it was entitled to an indemnity for the costs that it had incurred because an order for costs was compensatory. Counsel for Mainfreight handed up a note stating that Mainfreight’s legal costs were $85,968 comprised of solicitor’s costs of $70,345, counsel’s fees of $8,470 and disbursements of $7,153.25. The police prosecutor did not object to the handing up of the note relating to Mainfreight’s costs.

15. The police sought and were granted a short adjournment after submissions were made by Mainfreight.

16. After the adjournment, the police prosecutor indicated that the police wished to proceed to submissions. The police submitted that the subpoenaed material tendered was the material in the possession of the police at the time that the CANs were issued, it did not contain any evidence from the drivers and the Court could not be satisfied that there was no prima facie case. The police contended that they were not required to interview every available witness.

17. The police contended that a just and reasonable amount for costs may not be a full indemnity for the costs incurred by a defendant, particularly where there was no itemised bill of costs. The police contended that the costs claimed were manifestly excessive.

18. The magistrate awarded costs of the proceedings to Mainfreight in the sum sought and ordered that they be paid within 28 days.

Relevant Law

19. The applicable principles to be applied in determination of the appeal are as follows.

Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001

20. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].

21. The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

22. An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).

23. The term “error” has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of “error” in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).

24. The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).

25. An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).

Power to award costs

26. Section 213 of the Criminal Procedure Act 1986 provides:

(1)  A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

(2)  The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.

(3)  Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because—

(a)     the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or

(b)     the matter is withdrawn or the proceedings are for any reason invalid.

(4)    (Repealed)

(5)  The order must specify the amount of professional costs payable.

27. Section 214 of the Criminal Procedure Act 1986 provides:

(1)  Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following—

(a)  that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b)  that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c)  that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d)  that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.

(2)  This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.

(3)  An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.

Analysis of the Magistrate’s Reasons

28. The magistrate noted that the CANs did not state how Mainfreight was involved. He considered the Load Manifest to provide little support for Mainfreight’s involvement in the alleged offences.

29. The magistrate noted that the offences, pursuant to the chain of responsibility legislation, were strict liability offences.

30. The magistrate found that the prosecution had no evidence to satisfy two elements of the offences being that Mainfreight “permitted” the offence to occur and that it had the relevant intention. He concluded that there had been a significant failure by the prosecution to thoroughly investigate the means by which it was to prove its case to the criminal standard.

31. The magistrate accepted Mainfreight’s submission that the term “permit” carried a mental element of either actual knowledge or belief that it was highly likely or probable that Mr Singh would drive the truck as it had been loaded on the road. He accepted that to “permit” required an act of awareness of the act and the power to prevent it and it meant that Mainfreight had to intentionally allow the conduct. The magistrate accepted Mainfreight’s submission that there was no evidence that it had any knowledge whatsoever that Mr Singh would be driving the truck at Gillenbah on 7 March 2022 and as such Mainfreight could not have permitted the offence to occur. The magistrate also accepted Mainfreight’s submission that there was no evidence that it had failed to ensure that drivers complied with the load and dimension requirements because there was no evidence that it had any involvement with the load or the loading operation.

32. The magistrate accepted Mainfreight’s submission that a costs order should be compensatory and amount to an indemnity of the successful party against the expense to which it had been put by reason of the institution of the legal proceedings, noting that in some cases it may not be just and reasonable in the circumstances of a case to order costs against a prosecutor.

33. The magistrate concluded that he should make an order for costs given the failure to properly investigate the offences and the exceptional circumstances surrounding them.

34. As to quantum, the magistrate noted the procedural history of the case and the fact that counsel and an instructing solicitor had attended on the costs argument. He noted that the costs were very high but there would have been a need to spend some significant time reviewing the material and preparing for hearing. The magistrate did not consider the claim for costs to be unreasonable, unjust or unfair. He did not consider them to be excessive. He ultimately concluded the costs were fair and reasonable and should be awarded in the amount sought of $85,968.

35. In coming to his conclusion I am satisfied that the magistrate made two significant errors. First, he accepted Mainfreight’s submission as to the elements of the offence which was based on a misconstruction of the HVNL and second, there was no proper evidentiary basis from which the magistrate could determine that an order indemnifying Mainfreight for its costs was just and reasonable.

36. Not much turns on the first error because Mainfreight was entitled to its costs on an alternative basis under s 214 of the Criminal Procedure Act 1986. The relevant offences provided for by the HVNL were strict liability offences. It was not necessary for the prosecution to demonstrate that Mainfreight had actual knowledge that the truck was being driven on a particular road by a particular person, constructive knowledge of those matters was sufficient. Mainfreight was required to have in place a system to ensure that its obligations pursuant to the HVNL were complied with. As stated in Adelaide City Corporation v Australasian Performing Right Association Ltd (1928) 40CLR 481:

Indifference or omission is ‘permission’ within the plain meaning of that word where the party charged:

(a)   knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done;

(b)   has the power to prevent it;

(c)   makes default in some duty of control or interference arising under the circumstances of the case; and

(d)   thereby fails to prevent it.

37. On the assumption that Mainfreight acted as a “matchmaker” between Hume Doors and Timber and Maja Transport Pty Ltd for the purpose of transporting the load from Perth to Sydney, Mainfreight was required to have a system in place to ensure that the loading requirements of the HVNL were complied with by both of those parties.

38. However, Mainfreight was entitled to an order for its costs because the 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 or its journey thereafter. The statements of the drivers to the effect that the truck was loaded by Mainfreight was hearsay and without proper foundation. The drivers commenced driving the truck at Mundrabillah, some considerable distance after the journey had commenced and it was apparent that they were not present when the truck was loaded. The Load Manifest did not suggest any connection with Mainfreight other than the use of the Mainfreight logo. 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.

39. As to the second error, the magistrate proceeded on the assertion of an amount of costs, without any basis on which they could be properly assessed as being just and reasonable. Whilst it is true that the police prosecutor did not object to that course, the magistrate could not come to the required satisfaction without evidence of how the costs were incurred or a concession on behalf of the police that the costs were fair and reasonable. It was clear from the way that the argument proceeded before the magistrate that the police did not concede that the costs were just and reasonable and submitted that they could not be adjudged as just and reasonable in the absence of itemised bills. Notwithstanding that submission, Mainfreight did not tender the itemised bills on response. The magistrate erroneously accepted the submission that the costs order should indemnify Mainfreight, without determining if that amount was just and reasonable.

Consideration

The application to lead fresh evidence

40. For the reasons given, it is necessary to have regard to the itemised bills of costs to come to a decision as to whether the costs claimed are just and reasonable.

41. The balance of the fresh evidence sets out a chronology of the steps taken on behalf of Mainfreight and seeks to justify those steps. That kind of evidence was available to be led before the magistrate and if necessary tested in cross-examination. I am not satisfied that it is in the interests of justice to now allow that kind of fresh evidence to be led in the appeal and I will not have regard to it.

What are the just and reasonable costs of the proceedings?

42. Mainfreight engaged a national law firm to represent it in the Local Court proceedings. The HVNL is relatively new legislation and the chain of responsibility requirements could have significant impacts on Mainfreight’s operation in Australia. I infer that the potential outcome of the proceedings was strategically important to Mainfreight. It is also relevant that Mainfreight was based in Victoria and the proceedings were to be conducted in New South Wales.

42. The solicitors engaged by Mainfreight used a partner, senior associate and a variety of more junior lawyers at the following charge out rates:

1. Partner - $950 +GST;

2. Senior Associate - $675 + GST;

3. Associate - $525 + GST;

4. Lawyer - $350 +GST; and

5. Graduate - $350 + GST.

44. The senior junior counsel engaged by the solicitors was charging fees of $700 per hour plus GST.

45. From my analysis of the bills of costs the solicitors for Mainfreight undertook the following tasks in preparation for the hearing:

1. conferences with Sydney partner and solicitor with day-to-day carriage of the matter;

2. considering charges, strategy;

3. considering CANs;

4. preparation of subpoena;

5. preparation of observations and brief to counsel;

6. reviewing advice from counsel;

7. conferences with counsel;

8. instructions to agent;

9. reviewing subpoenaed material;

10. considering subpoenaed material in detail and noting inconsistencies with charge;

11. reviewing prosecution evidence;

12. telephone attendances and appearances at Local Court;

13. updating counsel’s brief;

14. researching cases;

15. preparation of court bundles, tender documents and subpoena bundle;

16. preparation and updating of legislative provisions folders;

17. consideration of legislative provisions;

18. preparation and reviewing of submissions.

46. As I have already referred to, the documents in the possession of the police relevant to the investigation were produced in subpoena. On any review of those documents it was clear that the prosecution did not have any admissible evidence that it could rely on to prove the charges. It was possible that the police might still seek to gather further evidence before the hearing. However, Mainfreight knew the extent of their involvement in the transport of the load and was in a position to provide instructions as to the extent of its involvement in the transaction to deal with any evidence that could be marshalled. In my view, there was very little work to be done in preparation for the hearing, where the case was patently very weak.

47. The solicitors for Mainfreight did not interview any witnesses. It appears from the bills of costs that Mainfreight only intended to rely on documentary evidence.

48. Mainfreight did not make any representations to the police seeking the withdrawal of the charges.

49. The proceedings required counsel and a senior associate to physically attend the Wagga Wagga Local Court to make the costs application and that necessitated the incurring of travel and accommodation expenses for counsel and the senior associate.

50. I have taken into account that the police’s refusal to provide a brief of evidence and the suggestion that Mainfreight issue a subpoena increased the costs incurred in preparing for the hearing. I have allowed for these costs which would not otherwise have been properly recoverable.

51. In all of the circumstances, it was just and reasonable for Mainfreight to retain the services of a senior junior counsel and an experienced instructing solicitor.

52. I have had regard to the proportionality of the costs. The maximum fine for each offence was $10,000. I infer from the fact that Mainfreight was prepared to pay significantly more than the maximum fines that could be imposed for the offences, that defending the matters were of strategic importance to the operation of its business. In my view, it was just and reasonable for Mainfreight to be compensated for its legal costs on the basis that it retained competent lawyers to deal with the particular offences on their merits rather than to retain lawyers to engage in a “test case” defence of these types of offences.

53. The fees claimed for the involvement of counsel in the matter are just and reasonable in the circumstances of the case and the amount of $18,840 should be allowed for counsel’s fees.

54. I would also allow the disbursements claimed of $4,791.38 to cover filing fees, agent’s fees, printing, flights and accommodation.

55. The charge out rate for the senior associate of $675 plus GST was just and reasonable for this kind of matter. However, the support provided by the solicitor in this matter was largely administrative and it is hard to justify an amount substantially more than the fees of counsel. In my view, it is just and reasonable to allow for 4 days of the solicitor’s time (32 hours), which includes a one-day attendance for the hearing. I would allow the sum of $23,760.

56. The total amount that I have determined as a just and reasonable award of costs is $47,391.38.

Orders

57. The orders I make are as follows:

1. Appeal allowed in part.

2. I vary the costs order made by the magistrate.

3. The appellant is to pay the respondent’s costs of the proceedings in the Local Court in the sum of $47,391.38.

4. I confirm the other orders made by the magistrate relating to payment of the costs order.

Decision last updated: 31 October 2023