Unfair Yellow Sticker, infringments etc

[ButtNekid]

For those wondering what legal options are available to you if you truly have been the victim of over zealous policing, I offer the following informed thoughts.

Misfeasance in public office
The tort of misfeasance in public office is concerned with an intentional misuse of public power by a public officer. This tort has been referred to in two recent High Court cases in which the Court has found that for this tort to be established the plaintiff must establish that the act is:

• invalid or unauthorised;
• done maliciously;
• done by a public officer;
• done in the purported discharge of his or her public duties; and
• causes loss to the plaintiff.

The Court has also said that the following actions by a public officer will constitute the tort:

• action taken in excess of power with an intention to cause harm;
• action taken in knowledge that there is no statutory authority and the damage is foreseeable; or
• action done with reckless indifference.

Therefore, mere negligence by a public officer will not suffice unless it amounts to a reckless indifference to the harm that it has caused.
The tort of misfeasance in public office creates a personal liability. The State may not be liable for actions of its officers which amount to misfeasance.

Accordingly issuing a yellow sticker to someone for something the officer knows is NOT in breach of the standards could very well amount to misfeasance, particularly if you politely at the road side inform him or her of the relevant standards, why your vehicle meets those standards and the loss you will suffer if they continue with the yellow sticker, namely time off work to attend the pits and the cost of the inspection.

Misfeasance in Public Office MAY BE SUMMARISED AS
· Conduct by a public officer in the purported discharge of a public function;
· in bad faith:
o specifically intended to harm the plaintiff; or
o done knowing it was beyond power and likely to harm the plaintiff;
· resulting in damage.
The High COurt cases were Northern Territory v Mengel (1995) 185 CLR 307; Sanders v Snell (2003) 130 FCR 149
Hope this helps

[jonnyking]

Good write up. should help others out there!

[Scoundrel]

Once when I got a yellow a few years ago I wrote a curt letter to the District super and he rang me up and told me to bring the car in and have it looked at again to see whether it truly was "over the fence" to use his words.

[lee]

Thanks Simon, I can't imagine that was a 5 minute read to find.

I think the two main problems are tho;

1) People most of the time are actually operating their bikes outside of some ADR's
2) People aren't able to quote ADR's roadside

I mean a fender elim and you're technically able to be yellow stickered. Chances are if you're riding around on a stock bike and it's pick on you day, you haven't been memorising the ADR's on whatever they plan on doing you for.

General question not necessarily at buttnekid (because he's done heaps already), do cops still have to string together 3 things wrong with your vehicle? They used to have to, and I hadn't heard of it changing, yet a lot of people seem to get done for 1 or 2 'defects' these days.

[g0zer]

Originally Posted by ButtNekid

The Court has also said that the following actions by a public officer will constitute the tort:

• action taken in excess of power with an intention to cause harm;
• action taken in knowledge that there is no statutory authority and the damage is foreseeable; or
• action done with reckless indifference.

now thats very interesting^

my housemate has gotten 2x yellow stickers on his commodore in the space of a couple of months.

1st sticker was for dark tinting- fair enough.
2nd sticker was for a smashed rear quarter window.

now the smashed rear quarter window was the 3rd time that car had been vandalised being parked outside in Bentley. The officer had it explained to him that the car had recently been vandalised for the 3rd time and would be repaired as soon as it could be booked in. Yet the officer stickered the vehicle again anyway.

So this would surely consititute an act of reckless indifference?

edit: and thx for taking the time to dig that up.

[Pkunk]

Originally Posted by lee

General question not necessarily at buttnekid (because he's done heaps already), do cops still have to string together 3 things wrong with your vehicle? They used to have to, and I hadn't heard of it changing, yet a lot of people seem to get done for 1 or 2 'defects' these days.

Was that *ever* the case? What if you car/bike was spotless but had bald tyres? Oh no yellow for you!

[Semi]

or had no brakes...

[barfridge]

g0zer: no, that's application of the law. Having a broken window is stickerable. Stickers come with a time-frame for these exact situations.

Was in good policing? No. Was it a reckless or negligent criminal act by the cop? No

[lee]

Originally Posted by Pkunk

Was that *ever* the case? What if you car/bike was spotless but had bald tyres? Oh no yellow for you!

Unless it's a myth that's been passed down from car bogans for many many years, I've heard it in lots of different places.

[Pkunk]

I am going to go with "myth"

[Semi]

Originally Posted by g0zer

So this would surely consititute an act of reckless indifference?

Id say reckless indifference would be stickering a bike/car without caring if its actually stickerable or not (ie turbos bike)

[Dubs]

personally i think the thing that pisses most ppl is that an untrained person (mechanically speaking) can just sticker your bike coz they feel like it or in their opinion it is unroadworthy just coz they have the power to in a lot of cases.

For me it has been used as a "cant get you for speeding so we'll send you over the pits".

Dubs

[Semi]

thats the 'done maliciously' part

So if they sticker you for something thats not stickerable, and its to get at you for something, you might ahve a case for misfeasance

[out_in_front]

Someone really has to go over the motorcycle registration / compliance laws (Car and truck laws too) from an engineering and functionality point of view- rather than a 'pull this figure out of my arse' type of view that was actually used to come up with them. Neons, Fender eliminators etc are actually improving bikes in terms of visibility and stopping crap getting kicked up behind them. HID lights are helping riders see where they are going - and making them more visible, aftermarket cans - as long as they dont increase noise above the specified levels and do have Cats in them can improve the efficiency of the engine - reducing emissions etc.

The whole system is f*cked up. Why cant we have a system that covers all of Australia and stops discrepancies arising from state to state.

Also if something like R1's situation arises the yellow sticker should be revoked as well as all costs and compensation for time lost - people have to be held accountable for their actions.

[Karlos]

As alot of us have read turbo and I got one the same night.

Now i'd only said last week to moorby how i'd never been pulled up yet, guess I was tempting fate in saying that...


Now i know me f/e setup doesn't meet requirements in the regards to a number plate light and 45 degree. The light issue will be the next project for me...

Standing there listening to him bullshit and the first thing i think is are you making this up?? A couple of things stood out for me as straight up lies...

1) Carbon Fibre is Illegal - Now after replies from other PSB members, and visiting JCS today it is obviously not. New cars and bikes cme with that stock from the factory and pass all laws to have them allowed on ozzy roads. His reasoning was it would shatter on impact like glass, possible causing injury? And my response was i'd be a bit more concerned about me and the rest of the bike in the event of a accident, not some blingy bits of CF! FFS!

2) LED's are Illegal - Again alot of cars and bikes have them as standard as they are superior to a standard globe. In fact not 3 inches up from where he was flashing his torch was the standard LED light that comes on the dam bike! Again PSB members and JCS confirmed this was total and utter bullshit...

So i ask why make shit up????

Powertrip, dominance? I was polite enough but was quite annoyed by the time they drove away and they knew it. He just kept blabbing on and on, repeating the same stuff.

So very frustrating...

Lee i agree with you, i was trying to rack my brain about rules and regulations but to no avail

I'll fudge it to get the sticker off but bike will return to it's illegal and highly dangerous coondition afterwards....

Only thing i will do is install the two small white LED's for number plates lights (similar to Calculas's 750 gixxer setup)

NO MUDGUARD FTW!!!



edit; thanks to simon for finding that info, should be stickied!

[Semi]

how does a fender eliminator help stop cra being kicked up behind a bike?

[Pkunk]

Um the stock fender elim on most bikes, IS the mudguard my dear. Check out how big they are...

[out_in_front]

Carbon fibre is no more dangerous than fibreglass and certain types of plastic (some of which will be on a bike - take front / rear lights for example) are more brittle - thus making them shatter worse than the carbon fibre. Also with carbon fibre - there is a good chance most of the resin will still be attached by fibre strands and not go far from the parent material. That Cop does not sound like a materials engineer to me....

As For LED's being illegal, they are basically another type of lightbulb. As long as they emit above the minimum and below the maximum amount of light (in the right spectrum - I.e Visible) and are the the right colour they should be fine.

[Bulbous]

just pointing out that it you either have a stock fender, or a fender eliminator..... the stock fender is the big one, and the fender eliminator is the little one...... it is hard to figure out at first, but people get there in the end......

[Semi]

Originally Posted by Pkunk

Um the stock fender elim on most bikes, IS the mudguard my dear. Check out how big they are...

stock fender eliminator?