LEGAL OPINION: Not responding to a Notice to Produce will lead to an unwanted court appearance and big fines
Recently I’ve seen several operators charged with failing to reply to a Notice to Produce in time. Usually the failure isn’t deliberate, and often it’s the result of an administrative oversight. Unfortunately, it can mean having to go to court and risk large fines.
So this month I wanted to talk about what to do if you find yourself in this situation.
Before we dive in, a quick recap on what Notices to Produce are. Often when the authorities first become aware of a potential breach of the heavy vehicle laws, they don’t have enough information to pursue a charge or even be sure the breach has occurred.
To help with investigating, the Heavy Vehicle National Law gives the authorities power to require certain information and documents be provided to them. These are called Notices to Produce. They will set out what information is required and by when.
The most common situations what will trigger a Notice to Produce is when a truck passes between Safe-T-Cams too quickly or misses the exit to a checking station.
Failing to comply with a valid notice is an offence. In New South Wales the potential fines for a company can be over $30,000.
If you do find yourself having missed the deadline it can still be worth contacting the authority and providing the information. Sometimes, if you’re not too far overdue they will accept a late reply without any further action.
Often though, it’s the arrival of a Court Attendance Notice that first alerts people to their mistake. Unfortunately, providing the information at this point (in NSW at least), won’t usually be enough to convince the authorities to withdraw the court case. However, it can still be worthwhile to submit a late response because this can be a factor that warrants a lower penalty.
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The first important decision to make if you’ve received a Court Attendance Notice is whether to plead ‘guilty’ or ‘not guilty’. Although the Notice to Produce powers are broad, they’re not unlimited. Occasionally the authority asks for information they’re not entitled to or fails to serve the notice validly. In these cases you might have a defence for a ‘not guilty’ plea. It’s a good idea to speak with a lawyer at this stage because it can be quite technical.
Often though, the Notice will have been validly issued and the person accepts they failed to respond in time. In these situations many people choose to plead guilty and seek a lenient penalty. In my experience so long as the person is well prepared magistrates are often willing to significantly reduce the fines.
Court tips
If you have to go to court in NSW, some of my tips for putting your best case forward are:
1. ‘Right the wrong’: Providing a late nomination can often help reduce the penalty. The courts take failing to comply with Notices to Produce seriously because they worry it shields people who are breaching heavy vehicle laws. Providing the information reassures the court that the authorities have had the opportunity to investigate.
2. Work out what went wrong and how to fix it: There are many reasons people don’t reply to Notices to Produce in time. Maybe they didn’t update an address quickly enough, perhaps they’re swamped with business administration, other times an employee makes a mistake.
Most magistrates want to know what went wrong and why it won’t happen again. We recommend thinking carefully about why you didn’t reply in time and what steps you can put in place to remedy it. This can be simple things like updating addresses, getting help with the book-keeping, or retraining staff. Showing you’ve taken steps to fix the problem can equate to a lower penalty.
3. Engage with the court: When you receive a Court Attendance Notice you will be given the option to submit a ‘Written Notice of Pleading’. This lets you provide a short explanation and ask for the case to be dealt with in your absence. While it can be tempting, in our experience it’s better to attend court if you can. Being there means you can answer any questions that the magistrate might have and show them that you’re taking the case seriously.
If the case is at a location far from your home you can ask for the case to be transferred to a court closer to you (so long as it remains in NSW) or arrange for a lawyer to attend for you. If you do need to rely on the Written Notice of Pleading, then make sure to include a detailed letter and proof of anything you’d like to rely on.
Finally, if you find yourself needing help with a Notice to Produce my team at Ainsley Law are always willing to chat.
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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.
Photography: Greg Bush