What to do when leasing out your trucks
Recently the NSW Supreme Court was asked to clarify when an owner who leases their truck to another person is liable for offences committed in the vehicle.
The case was dismissed on technical grounds, but still highlights important lessons for anyone who leases out their heavy vehicles.
A company finds itself unfairly charged
In 2018 Chalouhi Enterprises Pty Ltd leased a heavy vehicle to another company. While the vehicle was leased the RMS detected it overloaded.
Chalouhi Enterprises was charged with the mass breach offence. They decided to plead "not guilty" since they did not have any control over how the vehicle was used at the time of the offence.
It was at this point that the complex Heavy Vehicle National Law came into play.
Registered operators deemed to be in control
Under the Heavy Vehicle National Law, operators can be held liable for certain offences that occur in their trucks.
To understand the law we need to know the difference between a "registered operator" and an "operator".
•The "registered operator"' is the person under who's name the truck is registered with RMS.
•The "operator" is the person who is responsible for controlling or directing the vehicle's use.
Normally when a registered operator leases their truck to another person they don't have any control over it. They are not the actual operator.
However, the law contains a clause that makes it easier for the RMS to prosecute cases. The clause says that the registered operator "is taken to be the operator of the heavy vehicle"unless they provide a statutory declaration nominating the actual operator.
This means that unless the registered operator provides their declaration in time, they will be presumed to be the actual operator and will be responsible for the offence.
Strict time limit to nominate the actual operator
There are strict time limits to submit the nomination.
In Chalouhi Enterprises' case it needed to be submitted "as soon as practicable after the charge came to their knowledge but at least 28 days before the charge is heard."
The question is what day counts as the "day the charge is heard"? In Chalouhi's case this was important because they had several court dates before the final hearing. They were notified of the charge in October 2018. The first court date was in December 2018.
The final hearing date was in May 2019.
Chalouhi didn't submit their nomination until March 2019. This was more than 28 days before the final hearing date. But it was many months after the first court date.
The question was, is the "charge heard" on the first Court date? Or is it "heard" on the final hearing date (i.e. when the witnesses attend to give evidence and the Magistrate decides 'guilty' or 'not guilty'). This is the question that Chalouhi Enterprises asked the Supreme Court to clarify.
Appeal lost on technical grounds
Disappointingly, the Supreme Court did not answer the question about the time limit.
The appeal was dismissed for technical reasons. In short, the appeal was filed too early in the proceedings. Instead of waiting for the Magistrate to hear the whole case, Chalouhi Enterprises lodged its appeal as soon at the Magistrate suggested that their nomination was lodged out of time.
Because the appeal was made incorrectly the Supreme Court could not hear it.
As a side note, the Supreme Court did say that even if Chalouhi was within the 28 day limit, they didn't lodge the nomination "as soon as practicable" given the several months that passed between them becoming aware of the charge and submitting it. So their nomination was late anyway.
How can you protect yourself?
Without guidance from the Supreme Court it is still unclear which court appearance the time limit to submit the nomination is calculated from. For now, the best thing we can do is to play it safe and assume the time limit counts from the first court date.
If you are charged as the "operator" for an offence that occurred when you were not actually in control of the vehicle's use then you need to take action quickly.
The time limits to submit your nomination are:
•If you receive an Infringement Notice - within 14 days of the infringement being issued
•If you receive a Court Attendance Notice -
-If the charge is to be heard 28 days or less after you become area of it - as soon as practicable
-If the charge is to be heard more than 28 days after you become area of it - as soon as practicable, but at least 28 days before the charge is heard.
The safest thing to do is submit your nomination as soon as you become aware of the charge. This will ensure that it is done within both the number of days required, but also "as soon as practicable".
It is also important to keep evidence that the vehicle was leased and that you did not have control over it. Lodging the nomination in time doesn't mean you are automatically "not guilty". The Magistrate will still need to decide whether you had control over the vehicle's use at the time of the offence. Documents like the lease agreement, invoices and emails with the person who leased the vehicle can help.
If in doubt, the team of lawyers at Ainsley Law offer free consultations to help the heavy vehicle industry with problems like these.
You can reach them at www.ainsleylaw.com.au.