The Roads & Traffic Authority of New South Wales v Alto Rural Pty Limited [2007] NSWSC 1123

New South Wales Supreme Court

CITATION : The Roads & Traffic Authority of New South Wales v Alto Rural Pty Limited [2007] NSWSC 1123

HEARING DATE(S) : 09/10/2007

JUDGMENT DATE : 16 October 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The decision and orders of the Magistrate are set aside. The matter is remitted back to the Local Court for determination according to law. The defendant is to pay the costs of the Summons. If so entitled, it is to have a certificate under the Suitors Fund Act. The exhibits may be returned.

CATCHWORDS : Breach of mass requirements - liability of occupier - defence of reasonable steps - statutory construction - corporation - actual and constructive knowledge of directors and management

LEGISLATION CITED : Road Transport (General) Act 2005 (NSW)

CASES CITED : Proudman v Dayman (1941) 67 CLR 536

PARTIES : The Roads & Traffic Authority of New South Wales (Pl) Alto Rural Pty Limited (Def)

FILE NUMBER(S) : SC 12875/07

COUNSEL : Mr T. Lynch (Pl) Mr M. Fraser (Def)

SOLICITORS : Hunt & Hunt (Pl) Ralph Fitzgerald Solicitor (Def)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : n/a

LOWER COURT JUDICIAL OFFICER : Swain LCM

LOWER COURT DATE OF DECISION : 12/04/2007

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

16 OCTOBER 2007

12875/07 The Roads & Traffic Authority of New South Wales v Alto Rural Pty Limited

JUDGMENT 1 HIS HONOUR: Proceedings were brought in the Local Court against the defendant by way of Court Attendance Notice alleging an offence under s56 of the Road Transport (General) Act 2005 (NSW) (the Act). It concerned a single 'mass requirement" (overloading) offence, which allegedly took place on 27 March 2007. 2 The proceedings were heard by Ms Swain LCM. The Magistrate dismissed the proceedings. 3 The evidence before the Magistrate was entirely documentary. The case was conducted on the basis that allegations of fact contained in the documentation might be accepted by the Local Court as being true. 4 The defendant did not dispute any element of the offence (inter alia, that there was overloading). The mass of the load over the vehicles rear axle group was 21.76 tonnes (the permitted "mass requirement" was not more than 20 tonnes). 5 The defendant relied on "the reasonable steps defence" provided by s87 of the Act (Division 3 of Part 3.4 of Chapter 3). Certain of the relevant provisions thereof are as follows:- "87 Reasonable steps defence for mass requirements: drivers, operators and owners (1) If a provision of this Act, or a regulation made under this Act, states that a person has the benefit of the reasonable steps defence for an offence relating to a mass requirement, it is a defence to a prosecution for an offence alleged to have been committed by a person as the driver, owner or operator of a vehicle or combination if the defendant establishes that the defendant: (a) did not know, and could not reasonably be expected to have known, of the contravention, and (b) had taken all reasonable steps to prevent the contravention. (2) If the relevant contravention resulted from the fact that the mass of the vehicle or part of the vehicle (together with the mass of any load on the vehicle or part of the vehicle) exceeded any limit prescribed by the regulations, then the court is not entitled to be satisfied that the defendant took all reasonable steps to prevent the contravention unless it is satisfied that the defendant took all reasonable steps to cause the mass of the load carried on the vehicle to be ascertained at the start of the journey during which the contravention occurred. (3) The court is not entitled to be satisfied that the defendant took all reasonable steps to cause the mass of a load to be ascertained unless it is satisfied that: (a) the load had been weighed, or (b) the defendant, or the driver of the vehicle, was in possession of sufficient and reliable evidence from which that weight was calculated."