Endycott (Roads and Maritime Services) v Bulga Coal Management Pty Ltd [2012] NSWSC 1124

Supreme Court New South Wales

Medium Neutral Citation: Endycott (Roads and Maritime Services) v Bulga Coal Management Pty Ltd [2012] NSWSC 1124 Hearing dates: 3 - 6, 11 September 2012 Decision date: 20 September 2012 Before: Grove AJ Decision: 1) Summons dismissed. 2) That the prosecutor is to pay to the defendant the costs of the litigation referable to the proceedings for a compensation order. Such amount to be agreed or assessed in accordance with the provision that I have mentioned. Catchwords: ROAD TRANSPORT - collision between load being moved by carrier and bridge - liability of a hirer as consignor or loader Legislation Cited: Carriage of Goods by Land (Carriers' Liabilities) Act 1967 (Qld) Criminal Procedure Act 1986 Legal Profession Act 2004 Road Transport (General) Act 2005 Cases Cited: Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 Penn Elastic Company Pty Ltd v Sadleirs Transport Co (Vic) Pty Ltd [1976] HCA 28; (1976) 136 CLR 28 Category: Principal judgment Parties: Paul Harold Endycott (Roads and Maritime Services) (Prosecutor) Bulga Coal Management Pty Ltd (Defendant) Representation: Counsel: Ms P McDonald SC, Mr P Knowles (Prosecutor) Mr J Sexton SC, Mr M Izzo (Defendant) Solicitors: Henry Davis York (Prosecutor) Sparke Helmore (Defendant) File Number(s): 2011/74887

JUDGMENT 1HIS HONOUR: As had occurred previously, the defendant, Bulga Coal Management Pty Ltd ("Bulga") perceived a need for a large (135 foot straight boom) elevated work platform ("EWP") and it contracted to hire such an implement for 2 weeks (16 - 27 February 2009) from Rapid Access Australia Pty Limited ("Rapid"). Rapid contracted with a carrier, which for the moment I will call Griffiths Transport, to deliver and collect it. On the collection journey between Bulga's mine site and the intended destination at Rapid's yard, the EWP, which was being conveyed on a prime mover and trailer combination driven by Matthew Riley, an employee of Griffiths Transport, struck and demolished a pedestrian overbridge which crossed the roadway locally titled Les Darcy Drive, a part of the New England Highway. I shall return to more detail about these matters. 2Relying on provisions of the Road Transport (General) Act 2005 ("the Act"), the Prosecutor issued a summons charging Bulga with liability as a "consignor" of goods (EWP) or alternatively, as a "loader" of them. In each capacity there were further alternatives asserting the relevant breach for which Bulga was responsible to be either of a dimensional requirement or of a load restraint requirement. In addition to pecuniary penalty, the Prosecutor seeks a "road compensation order" on the basis that Bulga contributed to the damage to the overbridge. 3In the second reading speech to the Bill which became the Act, it was stated that the liability provisions establish, "a so called chain of responsibility throughout the road transport supply chain". In the instant circumstances, multiple prosecutions were instituted. 4The prosecution of Bulga was, by consent, heard concurrently with prosecutions of Rapid and, ultimately, Griffiths Garage Pty Ltd. On an amended summons, Rapid pleaded guilty to liability as a consignee of the EWP in relation to breach of a relevant dimension (height) requirement. Proceedings were brought against Karachelle Pty Limited as the operator of the prime mover and trailer combination, the name of the defendant being substituted as Griffiths Garage Pty Ltd by an amended summons charging that corporation with liability as an operator in relation to breach of a dimension (height) requirement to which a plea of guilty was entered. In evidence, Matthew Riley said that he had been prosecuted and fined. 5In order to deal with the issues, it is necessary to have reference to definitions and other provisions which appear in various parts of the Act and I extract a number of these. 6Section 3: road means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles. ... transport documentation means: (a) any contractual documentation directly or indirectly associated with: (i) a transaction for or relating to the actual or proposed transport of goods or passengers by road or any previous transport of the goods or passengers by any mode, or (ii) goods or passengers themselves so far as the documentation is relevant to their actual or proposed transport, or (b) any associated documentation: (i) contemplated in the contractual documentation, or (ii) required by law, or customarily provided, in connection with the contractual documentation or with the transaction, whether the documentation is in paper, electronic or any other form, and whether or not the documentation has been transmitted physically, electronically or in any other manner, and includes (without limiting this definition) an invoice, vendor declaration, delivery order, consignment note, load manifest, export receival advice, bill of lading, contract of carriage, sea carriage document, or container weight declaration, relating to the goods or passengers. 7Section 20: consignor of goods means a person who: (a) with the person's authority, is named or otherwise identified as the consignor of the goods in the transport documentation relating to the transport of the goods by road, or (b) if paragraph (a) does not apply to the person or anyone else: (i) engages an operator of a vehicle or combination, either directly or indirectly or through an agent or other intermediary, to transport the goods by road, or (ii) has possession of, or control over, the goods immediately before the goods are transported by road, or ... dimension requirement means a requirement of an Australian applicable road law that relates to the dimensions of a vehicle or combination or a load or component of a vehicle or combination, including (for example): (a) the dimensions of a vehicle or combination, disregarding its load (if any), or (b) the dimensions of a vehicle or combination including its load, or (c) the dimensions of the load on a vehicle or combination, or (d) the internal measurements of a vehicle or combination, including (for example) the distance between: (i) components of a vehicle or combination, or (ii) vehicles in a combination, or (iii) a vehicle in a combination and a component of another vehicle in the combination. ... load restraint requirement means a requirement of an Australian applicable road law that relates to the restraint or positioning of a load or any part of a load on a vehicle or combination. loader means a person who: (a) loads a vehicle or combination with goods for transport by road, or (b) loads a vehicle or combination with a freight container (whether or not containing goods) for transport by road, or (c) without limiting the above, loads a freight container already in or on a vehicle or combination with goods for transport by road, or (d) supervises an activity mentioned in paragraph (a), (b) or (c), or (e) manages or controls an activity mentioned in paragraph (a), (b), (c) or (d). 8Section 53 Liability of Consignor: (1) A person is guilty of an offence if: (a) a breach of a mass, dimension or load restraint requirement occurs, and (b) the person is the consignor of any goods that are in or on the vehicle or combination concerned. Maximum penalty: see Table to Division. ... (3) A person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section. 9Section 55 Liability of Loader: (1) A person is guilty of an offence if: (a) a breach of a mass, dimension or load restraint requirement occurs, and (b) the person is the loader of any goods that are in or on the vehicle or combination concerned. Maximum penalty: see Table to Division. (2) A person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section. 10Specifics in relation to the reasonable steps defence are set out in section 88 which I will not repeat here. 11I turn to the events on 5 March 2009. The mine site was, for obvious reasons, secured and vehicle access was limited by a boom gate. Mr Riley is recorded as arriving at 9:20am (and departing at 10:00am). He was met on arrival by a Bulga employee, Mr Quinnell, and taken to an office for what was described as an induction. It consisted of giving answers to pre-set questions and, as Mr Riley recognised, substantially addressed matters of occupational health and safety. 12Mr Riley had parked the combination next to the EWP which was standing in a parking area. He loaded it on to the trailer by using the joystick controls located in the basket of the implement. He put the main boom down by hydraulic pressure and chained down the load. I am satisfied that the main boom was not brought down to the horizontal but left angled upwards. An appropriate excess permit had been obtained so that the height dimension limit to the load was 5 metres. Mr Riley was aware of this. 13Mr Quinnell accompanied Mr Riley whilst he was on the mine site and asked him in effect whether he was competent to drive the 135 foot EWP and Mr Riley responded in the affirmative. This and other conversation I find, was, as in Mr Riley's description, "mostly small talk". Whilst Mr Quinnell watched the operation of loading, he did no more than that, save that, for the apparent security procedures of the mine site, he escorted Mr Riley to the exit gate. To the extent that any inquiry was made of Mr Quinnell as to any opinion he may have held regarding the height or any other aspect of the load, any exchange did not purport to instruct, authorise or otherwise impinge on Mr Riley's independent conduct of the EWP collection activity. 14Mr Riley departed through the boom gate and stopped in an area beyond it but before driving on to the road. He thought he was still on Bulga's premises but he was outside of the boom gate restriction and not yet upon the public road. Whilst there he had a telephone conversation with Mr Maytom, his superior in the transport company. 15I am satisfied that, when Mr Riley chained down the load, the height exceeded 5 metres and remained so until the collision. I reject the speculation that, during the journey, the height of the load increased in any significant way as a result of "hydraulic bounce". 16The minimum clearance under the overbridge (eastbound as Mr Riley travelled) was 5.37 metres. The height of the load necessarily exceeded that minimum in order for the collision to take place. 17Bulga cannot be liable unless it was either, within definition, consignor or loader of the goods. 18I turn first to whether Bulga has been shown to be consignor. 19It is not alleged by the Prosecutor that Bulga is named or otherwise identified as the consignor within the meaning of s 53(1)(a), as set out in paragraph [8], however, by reason of the proviso in s 53(1)(b) it is common ground that, before the Prosecutor can rely upon s 53(1)(b) it must be proved beyond reasonable doubt that s 53(1)(a) does not apply to anyone else. 20It is the Prosecutor's contention that the naming or identifying of the consignor has to be evident on the face of transport documentation. I reject that contention. The statutory language is "in" the documentation, not "by" the documentation which is consistent with the very wide ambit of the definition of transport documentation much of which by its very nature would be unlikely to specify parties by name. I hold that it is available to look at received evidence to determine whether or not any person is otherwise identified as the consignor (not a consignor) in the transport documentation. 21Bulga had no part to play in the arrangements for collection, the contract was made between Rapid and Griffiths. I interpolate that the transport entity seemed to be divided into various corporate and business names, some of the latter being registered and others not. Documents of different kinds referred to Griffiths Tilt Tray, Griffiths Group, Griffiths Garages, Karachelle and as well, there was painted on the door of the prime mover, but seemingly unregistered, Griffiths Transport. It will be convenient simply to refer to the carrier as Griffiths. 22I recognise that arising out of its contract with Rapid, Bulga was charged fees described as delivery fees as well as hiring charges. The delivery fee was payable by Bulga to Rapid for the provision of that service and was entirely divorced from any contract of carriage between Rapid and Griffiths. That view is fortified by the observation that the delivery fee charged by Rapid to its customer, Bulga, was different from that which Griffith charged Rapid. Bulga, whose chattel hire was concluded, would have nothing to do with its destination, whether Rapid was having it returned to its yard, to some site of a new hirer or to anywhere else. 23In the instance under consideration, Rapid contracted with Griffiths to collect its own goods and return them to its yard. Rapid was in possession of the particular implement pursuant to an income share arrangement with the owner but for present purposes that possession sufficiently qualifies it as Rapid's property. 24The definition of consignor in paragraph (a) includes a circumlocution of the word itself and its meaning in the statute can have light cast upon it by reference to ordinary meaning. The Macquarie Dictionary (3rd edition) similarly defines a "consignor" as one who consigns goods but "consign" is given several meanings, the most pertinent to present circumstances, being "to transmit, as by public carrier, especially for sale or custody". 25Consistent with that meaning, Jacobs J in Penn Elastic Company Pty Ltd v Sadleirs Transport Co (Vic) Pty Ltd [1976] HCA 28; (1976) 136 CLR 28 observed that "a person cannot be described as a consignor until he has consigned goods for carriage to a consignee". It is true that this was said in a case turning upon the provisions in the Carriage of Goods by Land (Carriers Liabilities) Act 1967 (Qld) but his Honour's statement as to what constitutes a consignor should not be limited to the context of that Act and it would be generally (absent statutory provision to the contrary) applicable. It is entirely consistent with ordinary meaning. 26The issue then is, whether the prosecution has proved that the transport documentation does not identify, in this case Rapid, as the consignor of the EWP. 27I am not satisfied that that Prosecutor has proved that negative. The comprehensive scope of that which can fall within transport documentation enables resort to a variety of sources including directly or indirectly associated documentation of actual, proposed or previous transport of the goods. 28By letter of 17 May 2007, sent inter alios, to Griffiths, Rapid set out terms for "our machinery to be transported to and from our Newcastle/Sydney yard". The specifications were clearly contractual and articulated requirements of Rapid to be met by its contracted carriers. 29Documentation relating to a previous hire (December 2008) of this EWP (Rapid had only one machine of this size) shows that, as between Bulga and Rapid, it was Rapid that undertook the obligation to deliver and collect the implement. 30The same conclusion is derived from the documentation concerning the February hire. The hire and, more significantly, the collection note generated by Rapid records the collector as "Griffo", a commonly used reference to Griffiths. To the extent that Rapid's authority to be identified as the consignor is required, it is apparent in its own documentation. 31Irrespective of any views held by Rapid's employees the contract between Rapid and Bulga was entirely fulfilled when Rapid's agent, Griffiths, took possession of the EWP at the mine site. 32Although I did not understand the contrary to be advanced by the Prosecutor, I do not find difficulty in the notion of the same entity (Rapid) being consignor and consignee. It must be a frequent occurrence that a single entity dispatches its own goods from one place to another and it does not challenge logic that in such circumstances the dispatcher is both consignor and consignee. 33My finding makes its unnecessary to investigate the facts concerning the breaches as to dimension or load restraint. It is not contested by Bulga that there was a dimension breach but its contention on the first two alternatives in the summons is that it is not liable as a consignor. 34If my opinion as to (a) in the definition of consignor, as applicable in this case, might be wrong, I will record my further opinion that the prosecution of Bulga, as consignor, would also fail even if paragraph (b) were engaged and I will shortly state my reasons for it. 35In order to impose liability as a consignor upon Bulga, pursuant to paragraph (b)(i) of the definition, it needs to be shown that Bulga, on the facts of this case, engaged Griffiths indirectly through Rapid to transport the EWP by road. There was no evidence of Bulga so doing directly, nor was it suggested. 36The argument centred initially upon the content within the definition of the word "engages". Bulga contended that it meant entry into some commercial transaction which must be contractual in nature and this is contested by the prosecutor who rejected the construction that contract was connoted. I am unable to perceive what non-contractual arrangement could be within the concept of "engages" in the context of having goods conveyed by road. Even if the operator were to act gratuitously, the concept of engagement would still apply. 37More fundamentally, however, I consider that Bulga's submissions correct that there is a misconception on the part of the prosecutor that Bulga had some obligation to return the EWP or, at least, to initiate its return transport by road. That was not the case. Bulga was required to yield possession to the collector, Griffiths, which it did when Mr Riley took it and placed it on to his trailer. 38Liability on paragraph (b)(ii) also has difficulty for the prosecutor. Bulga had yielded possession of the EWP in the parking area. Assuming for the moment that, whilst within the mine site, Bulga had control of the EWP (a finding which I am not making) immediately before the goods were transported by road, they were on the trailer and the combination moved into the area outside of the boom gate and before the road. 39To the extent that it might be argued that, being on Bulga's property, it had (in some broad sense) control, this overlooks the extent of Bulga's power or, if so described, control. This was limited to terminating Griffiths licence to be on its property and demanding ejectment, a situation describing relinquishment of assumed control rather than the exercise of it. 40I am conscious that the content of the word "immediate" is open to debate but, as with the constructions that I have applied to words in the statute throughout, ambiguity has been resolved favourably to the party in jeopardy of criminal sanction: Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569. 41Immediately before the EWP was transported by road, that is moved onto a road as above defined, Bulga neither had possession or control of it. 42I turn to the charges in the summons asserting the liability of Bulga as the loader of the goods. 43The prosecutor seeks to affix this liability by reliance on paragraphs (d) and (e) of the definition of loader set out above. In written submissions, the prosecutor pointed to the following factors as demonstrating Bulga's control over the loading: a) Mr Riley was not permitted to drive anywhere on the mine site without being under the escort of a Bulga representative; b) Mr Quinnell observed Mr Riley at all times while he was loading the EWP; c) The Bulga Coal induction checklist clearly establishes the control that Bulga had over the EWP before it left the site; d) The combination could not leave the mine site without the cooperation of Bulga. Closed boom gates prevented Mr Riley leaving the site without the consent of Bulga; and e) Mr Riley gave evidence that he did not feel able to move freely whilst on the mine site. 44The evidence shows that Mr Quinnell watched Mr Riley's activity. Factor (d) above is not fulfilled by mere observation. To find that Mr Quinnell supervised the activity requires some evidence of superintendence or involvement in the direction of at least part of the activity of loading. Reference to dictionaries would confirm that meaning. 45The terms of paragraph (e) of the definition of "loader" are specifically that the management or control (to make the definition applicable) must relate to an activity mentioned in paragraphs (a), (b), (c) or (d). I have dealt with paragraph (d). Paragraphs (a), (b) and (c) all specify the activity of loading, hence it is not to the point whether or not Mr Riley himself was or felt inhibited about moving about or egressing from the mine site. Nor is the issue the mere existence of the EWP, the activity must be loading it. In short, a control of movement of the chattel, is not a control of loading it. 46Conviction cannot follow unless the prosecution has established to the requisite standard that Bulga was either a consignor or a loader. For the reasons expressed, I am not satisfied that either has been established. 47I order that the summons be dismissed.