Many truck drivers and operators in NSW have been ordered to pay the RMS’ legal fees after trying to defend charges. The practice raises some interesting questions about ensuring a fair and accessible justice system.

The law in NSW allows Courts to order the defendant pay the prosecution’s legal costs. The RMS routinely seeks these costs orders when it wins hearings and defendants are found guilty.

Costs orders involve significant sums of money. In many cases the costs order is several times larger than the fine imposed for the offence itself. It is not unusual for the RMS lawyer’s costs to be more than $5,000. In more complex cases I’ve heard of orders for $20,000 or more.

One impact of these orders is that innocent people are pleading guilty to offences they didn’t commit. Part of my job as a lawyer is to ensure my clients are aware of all the risks involved with going to court. When a client is considering defending a matter, I need to warn them that they will likely be liable to pay significant costs if they lose. Some people simply can’t afford to risk it, even if they don’t feel they have committed the offence.

This undermines our industry’s confidence in the Road Transport Laws and relationship with the RMS. Many drivers and operators already feel backed into a corner. The industry is increasingly regulated and scrutinised. Drivers cop fines for small, unintentional mistakes. But on top of that they’re now accepting fines for offences they may not have committed because they simply can’t afford the risks attached to defending them. It feels even more unfair when I explain that they usually won’t be able to get a costs order against the prosecutor if they are acquitted.

This also raises some interesting questions about who should be responsible for funding the enforcement of the HVNL.

I can understand why the RMS seeks to recover its costs from unsuccessful defendants. From its perspective, the defendant has insisted on a defended hearing in a case that would have come to the same result if they had pleaded guilty, but at a much greater cost in time and resources; resources that the government could use on other important things. And I agree, I’d prefer my taxes not be wasted on frivolous court cases.

However, things aren’t always black and white with the HVNL. Many offences turn on whether someone exercised ‘due diligence’ or took steps ‘as far as reasonably practicable’. These tests involve shades of grey. People can defend them honestly believing that they have done all they could, but the magistrate might decide they fall short. In these cases, the defendant isn’t frivolously defending a case where they are clearly guilty.

I think that when it comes to charges where the application of the law isn’t black and white, the RMS should rethink its approach to making costs applications.  When it makes applications and is successful in these cases, the owner/driver/operator is stuck wearing the price of applying these laws as they were meant to be applied: on a case by case basis.  And because this is so common, it puts others off defending themselves when they might not actually be guilty.

To be honest, I don’t think the policy of seeking costs is going to change any time soon. What we need to do in the meantime is be aware that the application will be made and ready to lessen the impact. Be ready to explain why your decision to defend the case was justified and why the Court shouldn’t make an order that you pay RMS costs. Ask the magistrate to make the RMS lawyer provide an itemised list of their fees. If there is anything excessive, request that the magistrate reduce the fees that you are required to cover.

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