COSTLY AND FLAWED ADVICE FROM NSW REVENUE
LEGAL OPINION: A request for help came close to costing an operator a $10,000 fine due to incorrect advice
Recently I’ve helped a few operators with a confusing situation regarding Notices to Produce. It’s an issue that needs attention to stop others from falling into the same trap. The problem is how failures to respond to a Notice to Produce are dealt with. Currently, the process can be very confusing, leading drivers to receive huge fines without realising.
In New South Wales, when a Safe-T-Cam detects a possible fatigue breach, a Notice to Produce is issued. It usually asks for the driver’s details, work diary pages and proof of any fatigue management accreditations.
Failing to comply with the notice is an offence, but here’s where things can get confusing. Even though the request comes in a single Notice to Produce, legally it is two separate requests under two different sections of the law.
This means when someone fails to reply to a single Notice to Produce they’re actually committing two separate offences. One of failing to provide the driver details and one of failing to produce documents.
To make things even more confusing the two offences are dealt with in different ways. The failure to produce documents is dealt with by a penalty notice. It’s a $711 fine that you can choose to pay to wrap it up.
The other offence of failing to provide the driver details can’t be dealt with by a penalty notice. I’m yet to understand the logic behind this, but for some reason this offence has to go through the court system.
What this means is that the operator receives both a penalty notice and a Court Attendance Notice within a couple of days. The offence details on both are almost identical, so it’s very easy to mistakenly think that you’ve received both a fine and a court date for the same infringement.
RELATED ARTICLE: Costly consequences for ignoring Notice To Produce
It’s worth remembering too that, normally, the operator’s failure to reply wasn’t on purpose. Often the Notice to Produce has been mistakenly overlooked or not received. The arrival of the Court Attendance Notice and penalty notice is often the first time the operator realises the Notice to Produce even existed. This just adds to the confusion.
It’s not just operators who find this confusing. Even the authorities can get it wrong. Recently I helped an operator who found himself in this situation. He was confused and when he sought help was directed to Revenue NSW for advice. The Revenue NSW call centre operator told him that paying the penalty notice would resolve the entire case. This is not true. You still need to go to court even if you pay the penalty notice.
Having been told that the court date would be cancelled he didn’t attend. The result was a fine of more than $10,000, no doubt partially because the magistrate thought the company was ignoring both the Notice to Produce and their court date. In the end we were able to reverse that fine but it’s a headache that could have been avoided if the system was clearer.
My client made a good point. A simple letter with the Court Attendance Notice explaining that is separate to the penalty notice would have solved the problem. Had things been clearer he would have attended court to present his case.
Until the system is clearer, the best thing we can do is raise awareness. The more people know the less likely they are to make the same mistake. If in doubt, it’s a good idea to speak with a lawyer.
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*SARAH MARINOVIC is a principal solicitor at Ainsley Law – a firm dedicated to traffic and heavy vehicle law. She has focused on this expertise for over a decade, having started her career prosecuting for the RMS, and then using that experience as a defence lawyer helping professional drivers and truck owners. For more information email Sarah at sarah@ainsleylaw.com.au or phone 0416 224 601.
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