New South Wales Supreme Court CITATION : Roads and Traffic Authority of NSW v Time Road Express Pty Ltd [2007] NSWSC 93 HEARING DATE(S) : 13 February 2007 JUDGMENT DATE : 19 February 2007 JUDGMENT OF : Simpson J DECISION : Order dismissing Court Attendance Notice set aside; matter remitted to Magistrate for further consideration; defendant to have certificate under s6 of Suitor's Fund Act 1951. CATCHWORDS : APPEAL - Local Court Decision - Court Attendance Notice - heavy transport loading - breach of mass requirements - reasonable steps defence - start of journey Crimes (Appeal and Review) Act 2001, s56, s59(2) LEGISLATION CITED : Road Transport (General) Act 2005, s56, s57, s87 Road Transport (Mass, Loading and Access) Regulation 2005, cl 8 Suitors' Fund Act 1951, s6 PARTIES : Roads and Traffic Authority of NSW - Plaintiff Time Road Express Pty Ltd - Defendant FILE NUMBER(S) : SC 15724/06 COUNSEL : T Lynch - Plaintiff M Gelbert - Defendant SOLICITORS : Hunt and Hunt - Plaintiff McGrath Dicembre and Co - Defendant LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : Mr Maloney LCM LOWER COURT DATE OF DECISION : 16 October 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY JUDGE LIST SIMPSON J Monday 19 February 2007 15724/06 Roads and Traffic Authority of New South Wales v Time Road Express Pty Ltd JUDGMENT 1 HER HONOUR: By summons filed on 23 November 2006 the plaintiff, the Roads and Traffic Authority of NSW ("the RTA"), appeals against an order made on 16 October 2006 by the Local Court at Sydney dismissing summary proceedings against the defendant (Time Road Express Pty Ltd), the subject of a Court Attendance Notice. The appeal is brought pursuant to the provisions of s56 of Crimes (Appeal and Review) Act 2001. By s59(2) of that Act, on such an appeal this Court is empowered either to set aside the order of the Local Court and make any other order it thinks fit, or to dismiss the appeal. The RTA seeks orders setting aside the order dismissing the proceedings, and remitting the matter for further consideration according to law. 2 At the conclusion of the argument, I indicated that I would make orders of the kind sought by the RTA. Since that entails a finding that the Magistrate erred in the approach he took to the proceedings at first instance, and remitting the proceedings to him to be determined according to law, it is necessary that relatively comprehensive reasons be given. The proceedings in the Local Court 3 The proceedings in the Local Court were commenced by Court Attendance Notice filed in the court in Glen Innes on 29 May 2006. The RTA alleged an offence committed on 30 January 2006, against s56 of the Road Transport (General) Act 2005 (the "RT(G) Act"). This is an offence of operating a vehicle on a road or road related area in breach of the mass requirements of an Australian applicable law (here, the RT(G) Act, and the Road Transport (Mass, Loading and Access) Regulation 2005 ("the Regulation") made thereunder). As I understand the purpose of the legislation (and perhaps putting it too simply), it regulates the manner in which heavy road transport is loaded. 4 Clause 8 of the Regulation prescribes mass limits for single axles and axle groups. Relevantly, for vehicles other than those otherwise specified, the mass limit per axle is 6 tonnes. Having regard to the course the proceedings in the Local Court took, it is unnecessary to be more specific. It might, however, here be observed that the load limits imposed by the legislation are intended to protect the road using public and, specifically, to impose clear obligations on operators of road transport to take appropriate measures to ensure the safety of drivers of their own vehicles, as well as others using public roads. 5 In short, the RTA alleged that on the date in question and in contravention of the mass limit prescribed by cl 8 of the Regulation, a vehicle (a 14 tonne Kenworth truck) of which the defendant was operator (as defined by s21 of the RT(G) Act) was driven by Renai Russo on Parramatta Road at Auburn, carrying a load that exceeded the axle mass limit (6 tonnes) prescribed by cl 8 of the Regulation. The RTA alleged that one axle of the vehicle was overloaded by 2.2 tonnes, or 36.67%. 6 By S56 of the RT(G) Act the operator of such a vehicle is liable for an offence if a breach of the mass requirement occurs. S57 similarly makes the driver of such a vehicle liable for a similar offence. By subs(3) of s56, a defence, called "the reasonable steps defence", is provided for a person prosecuted for "a substantial risk breach", or "a severe risk breach" of a mass requirement. The breach alleged against the defendant is of such a character. 7 The "reasonable steps defence" is spelled out in s87 of the RT(G) Act. That section relevantly provides: "(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 … operator of a vehicle … 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. (4) ... (5) If the defendant is a corporation, then, in order to satisfy the court that the corporation did not know and could not reasonably be expected to have known of the relevant contravention, the corporation must satisfy the court that: (a) no director of the corporation, and (b) no person having management functions in the corporation in relation to activities in connection with which the contravention occurred, knew of the contravention or could reasonably be expected to have known of it." 8 The prosecution came on for hearing in Sydney before Mr Maloney LCM. Two officers of the RTA, who had detected the contravention, provided statements. One, Stuart Richter, gave oral evidence. His evidence was unchallenged. There was no dispute that the contravention had occurred, or that, as operator, and subject only to the reasonable steps defence, the defendant was liable under s56. In issue, and the only matter in issue, was whether the defendant was able to make out the defence provided by s87. 9 That calls for examination of what is required, by s87, to be established. As subs(1) makes abundantly clear, the section casts the onus upon the defendant to establish the elements of the defence. 10 There are three separate and cumulative components to the reasonable steps defence, each of which must be proved by the defendant. They are: (i) that the defendant did not know of the contravention; (ii) that the defendant could not reasonably be expected to have known of the contravention; (iii) that the defendant had taken all reasonable steps to prevent the contravention (s87(1)). 11 A reasonable steps defence under s87 is made available in respect of a number of offences against the RT(G) Act. Where, as here, the contravention alleged is of exceeding mass limits, subss(2) and (3) place a further gloss upon what must be proved before a court can be satisfied of the third of the matter set out above. In these cases, in order to succeed in the defence, such a defendant must also prove: (iv) that the defendant took all reasonable steps to cause the mass of the load carried to be ascertained at the start of the journey during which the contravention occurred (subs(2)). 12 That fact, in turn, may be established by a defendant only by proof of one or other of the following facts: (v) that the load had been weighed; OR (vi) that the defendant or driver of the vehicle was in possession of sufficient and reliable evidence from which the weight was calculated (subs(3)). 13 The question posed above as (iv) itself involves a further inquiry: the identification of "the start of the journey …" 14 Mr Aristodies Straits gave evidence on behalf of the defendant. So also did Mr James Westwood, and the driver of the truck, Ms Russo. Mr Straits was a director of the defendant, which conducts a trucking business between Western Australia and Sydney; it operates from an office in Wetherill Park. Mr Westood was a depot supervisor employed by the defendant. Mr Straits explained the system by which the defendant took orders. Orders for consignments were taken by telephone. The defendant's staff taking orders were expected to ask the weight of the goods to be consigned, and they then allocated an appropriate truck and driver. The driver took the truck to the dispatch address, where the goods were loaded, and a consignment note was given to the driver. Mr Straits was unable, however, to comment specifically on what occurred in relation to the consignment in question. Mr Westwood gave some, although limited, evidence concerning the load that gave rise to the prosecution. The consignor was a company called Plasdip, which had premises in Granville. It had previously used the services of the defendant. The goods in which it dealt were plastic piping. Mr Westwood also gave some evidence of the office system. There was no evidence of what transpired on the occasion that the Plasdip transaction was arranged. There was no evidence as to any inquiry actually made of Plasdip as to the weight of the load to be consigned or any information given to the defendant's staff at that time about weight. Mr Westwood said that employees (I assume that he was here referring to drivers) were instructed to ensure that the weight of a load was measured before a vehicle commenced a journey and that, if the load was too heavy for the truck, were instructed to "pick up a certain amount of weight" and leave the remainder to be picked up by another truck. He said, however, that employees were not required to check the weight of a load over individual axles. 15 Ms Russo, the driver of the truck, said that she drove the empty truck from Wetherill Park to Granville, that she opened the curtains, removed the gates and prepared the truck for loading. A Plasdip company forklift driver loaded the truck. Ms Russo did not give evidence of what actually occurred on 30 January, but is recorded as saying: "I usually say 'what have we got', 'how much weight is in it', if it's not a standard pallet it could be more … he said, yeah the twelve pallets of … and I said how much weight is in that, he said he wasn't sure, he couldn't tell me off the top of his head whether it was him that makes up the order or not or he is probably just the forklift driver designated to put the load on so he couldn't specifically tell me at the time." 16 After she had completed the loading and closed the truck she was given a completed pro-forma consignment note. This contained assorted information, including a description of the goods to be transported. This identified only "twelve pallets". A column on the form provided for insertion of "weight or cubic". In this column the figure of "11,105" had initially been inserted, and crossed out, and was replaced by "12000". It was common ground that this meant that the load was 12 tonnes. The Magistrate's reasons 17 The Magistrate delivered an ex-tempore judgment. He accepted that the breach had occurred, there having been no dispute on this issue. He referred to s87(1). He then referred to subs(2) and turned his attention to "the start of the journey". He considered that, insofar as the defendant (as the operator) was concerned, the start of the journey occurred with the dispatching of the vehicle from the defendant's Wetherill Park premises. He gave no reasons for having reached that view. 18 His Honour then digressed, and considered what the start of the journey would have been had it been Ms Russo, the driver, who was the subject of the prosecution. He considered that the start of the journey for the driver occurred where the loading took place in the Granville dock. He did not explain why the start of the journey was different for the driver and for the operator. He considered that Ms Russo did not take reasonable steps at the Granville dock to ascertain the mass of the load because she failed to check the pallets or to organise the even distribution of weight. 19 His Honour concluded by saying: "If it was a breach alleged to have occurred under 57 but because there is a differentiation between the two you would have to say, or it would have to follow, I should say, that the breach of section 56, the time of the commencement of the journey applying 87(2) would have to be when Mr Westwood sends out that truck, the 14 tonner to do the 12 tonne load and that's why I'm going to dismiss the information." The appeal 20 Counsel who appeared on the appeal for the RTA (perhaps rather generously) construed this as containing the following findings: (i) that for the defendant operator, the journey commenced on dispatch of the truck from the Wetherill Park premises; (ii) that, at that point, the defendant had in its possession sufficient and reliable evidence from which the weight of the load was calculated; (or, perhaps, that the load had in fact been weighed); (iii) that, accordingly, the defendant had taken all reasonable steps, at the start of the journey, to ascertain the load; (iv) that, therefore, the defendant had taken all reasonable steps to prevent the contravention. Implicit in this construction (and having regard to the result) are the further findings that: (v) the defendant did not know of the contravention; and (vi) that the defendant could not reasonably have been expected to have known of the contravention. 21 His Honour appears also to have made the factual assumption that office staff of the defendant were advised, on taking the booking, that the load was of 12 tonnes. (There was no evidence to that effect.) 22 Essentially two challenges were made to his Honour's findings. The first concerned his determination that, so far as the defendant was concerned, the journey commenced when the truck left the Wetherill Park premises; the second concerned his (implicit, at least) finding that the defendant, at that time, took all reasonable steps to ascertain the mass of the load. The start of the journey: 23 In my opinion the RTA is on strong ground in challenging the conclusion that the journey commenced on dispatch of the truck from Wetherill Park. In my opinion "the start of the journey during which the contravention occurred" was at Granville, when and where the truck was loaded, and from whence it set out on its journey in its loaded state. This is an inevitable construction when the purpose of the legislation is borne in mind. The provisions in question are concerned not simply with weight, but also with distribution. That could not reasonably be ascertained merely from information as to the weight of the goods to be consigned. That being so, his Honour's further observation, that Ms Russo (the only employee of the defendant present at the Granville premises) had failed to take all reasonable steps to ascertain the mass at that time has obvious and inevitable implications for the defendant. She was the defendant's agent for that purpose. 24 I am also satisfied that the second error has been established. Even if it were correct to say that the journey commenced on the dispatch of the truck from Wetherill Park, there was no evidence from which it could reasonably or properly have been concluded that the defendant then took all reasonable steps to ascertain the mass of the load: as I have set out above, that could be established only by proof either that the load had been weighed or that the defendant or Ms Russo was in possession of sufficient and reliable evidence from which the weight was calculated. (This, in itself, appears to require evidence of an actual calculation of the weight, not merely the basis on which the weight was capable of being calculated.) There was no evidence that the load had been weighed; and there was no evidence capable of satisfying the court that either the defendant (by any other of its employees), or Ms Russo, was in possession of sufficient and reliable evidence from which that weight was calculated, nor that it had in fact been calculated. Such evidence as there was, was scanty, to say the least. It consisted of some evidence of the usual practice in the defendant's offices when a request for a truck was received, with some estimate of the weight of the load. That could never be sufficient to satisfy the court of the subs(3) matters. 25 I am not persuaded that his Honour did make the all of findings set out above. He proceeded on the trebly false basis that the start of the journey was the defendant's own premises; that the weight (of 12 tonnes) of the load was conveyed to the defendant's office staff; and that this was sufficient to establish that the mass of the load was then ascertained. He does not appear to have turned his mind to the other questions. 26 Even if his Honour did make a finding that the defendant (or Ms Russo) was in possession of sufficient and reliable evidence from which the weight was calculated, that finding was not, on the evidence, open; nor was it, on the evidence, open to the Magistrate to find that the defendant had taken all reasonable steps to cause the mass of the load to be ascertained at the start of the journey. 27 Accordingly, the order dismissing the Court Attendance Notice must be set aside. The matter is remitted to the Magistrate for further consideration of the issues raised by s87(2) and (3) in accordance with these reasons. The defendant is to have a certificate under s6 of the Suitors' Fund Act 1951. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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