Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Western Freight Management Pty Ltd v Roads and Maritime Services, New South Wales [2014] NSWCA 132 Hearing dates: 20 March 2014 Decision date: 22 April 2014 Before: McColl JA at [1], Basten JA at [25], Leeming JA at [56] Decision: Dismiss the application for leave to appeal with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - whether applicant identified ground of appeal involving a question of law - s 52 Crimes (Appeal and Review) Act 2001 (NSW) CRIMINAL LAW - substantial risk breach of mass requirement - reasonable steps defence - where loading of vehicle by third party not done in accordance with instructions - where driver failed to inspect after loading - where overloading of axles - - s 56, s 87 Road Transport (General) Act 2005 PROCEDURE - criminal law - whether prosecution obliged to particularise reasonable steps defendant should have taken - applicability of Kirk v Industrial Court (NSW) Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Occupational Health and Safety Act 1983 (NSW) Road Transport (General) Act 2005 (NSW) Road Transport (Vehicle and Driver Management) Act 2005 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Commissioner of Taxation v Glennan [1999] FCA 297; 90 FCR 538 Crampton v R [2000] HCA 60; (2000) 206 CLR Fingleton v R [2005] HCA 34; (2005) 227 CLR 166 Gipp v R [1998] HCA 21; (1998) 194 CLR 106 Gordian Runoff Ltd v Westport Insurance Corporation [2010] NSWCA 57; (2010) 267 ALR 74 Haddad v Chief Commissioner of State Revenue [2014] NSWCA 23 John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508 Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 Pham v NRMA Insurance Ltd [2014] NSWCA 22 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 331; [1999] 1 WLR 1526 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; 141 FCR 107 Category: Principal judgment Parties: Western Freight Management Pty Ltd - Applicant Roads and Maritime Services, New South Wales - Respondent Representation: Counsel: G J Hatcher SC with S R Coleman - Applicant J Agius SC with M Cahill - Respondent Solicitors: King Christopher and Associates - Applicant Sparke Helmore Lawyers - Respondent File Number(s): CA 2013/292467 Publication restriction: No Decision under appeal Citation: Western Freight Management Pty Ltd v Roads and Maritime Services, New South Wales [2013] NSWSC 1123; (2013) 64 MVR 415 Date of Decision: 2013-08-30 00:00:00 Before: Davies J File Number(s): SC 2013/16885 Judgment 1McCOLL JA: Western Freight Management Pty Limited, the applicant, seeks leave to appeal against the decision of Davies J in the Supreme Court of New South Wales (Western Freight Management Pty Ltd v Roads and Maritime Services, New South Wales [2013] NSWSC 1123; (2013) 64 MVR 415) upholding the decision of Magistrate Ryan given at Katoomba Local Court on 18 December 2012 which found the applicant guilty of a contravention of s 56(1) of the Road Transport (General) Act 2005 (NSW) (the "RTG Act"). 2This is the concurrent hearing of the applicant's application for leave to appeal and, if leave be granted, the hearing of its appeal against the primary judge's decision. 3Leave to appeal is required because the appeal from the Local Court decision was made pursuant to s 52, Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW): s 101(2)(h) Supreme Court Act 1970 (NSW). Section 52 limits an appeal to a "ground that involves a question of law alone". 4For the reasons that follow, I would refuse the application for leave to appeal. Factual Background 5Pursuant to s 56 of the RTG Act an operator of a vehicle or combination is guilty of an offence if a breach of a mass, dimension or load restraint requirement occurs. If the breach concerned is a substantial risk breach or a severe risk breach of a mass requirement, the operator has the benefit of a reasonable steps defence: s 56(3), RTG Act. That defence appears in s 87 of the RTG Act to which I refer below. (The RTG Act was re-named the Road Transport (Vehicle and Driver Management) Act 2005 (NSW) on 1 July 2013 which, in turn, was repealed on 10 February 2014, but nothing turns on that.) 6The applicant was issued with a Penalty Notice on or about 21 March 2012 for an offence described as "[o]perator - substantial risk breach mass axle requirement": s 56(1), RTG Act. The Penalty Notice alleged that at 3:30am on 15 March 2012 the applicant was the operator of a vehicle consisting of a prime mover tabletop and trailer driven on the Great Western Highway, when the load on "axle group 3" (hereinafter referred to as the "tri-axle") of the vehicle (22.68 tonnes), exceeded the weight allowed (20 tonnes), by an amount of 2.68 tonnes. The overload of 2.68 tonnes was an overload percentage of 13.40%, which, it is uncontroversial, constituted a substantial risk breach of the mass requirement. The applicant indicated by completing a part of the Penalty Notice form that it elected to have the matter determined by a court. 7On 28 June 2012 the respondent served a Court Attendance Notice ("CAN") on the applicant alleging a breach of s 56(1) of the RTG Act in substantially the same terms as those in the Penalty Notice. In essence, as the Magistrate who heard the matter explained in her judgment, the breach alleged was that rear axles four, five and six of the vehicle were over-loaded. 8The applicant admitted the axles were overloaded as alleged in the CAN, but sought to invoke the reasonable steps defence afforded by s 87 which provides: 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. (4) Subsections (2) and (3) do not apply if the defendant satisfies the court that at all material times that the defendant did not, either personally or through any agent or employee, have custody or control of the vehicle concerned. (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. 9Magistrate Ryan heard the matter in Katoomba Local Court in November 2012 and delivered her decision finding the applicant guilty as charged on 18 December 2012. Her Honour held that the applicant had not established it had taken reasonable steps to prevent the contravention because the driver of the vehicle had not checked the truck once it was loaded to ensure the load had been correctly distributed in the manner in which the loader had been instructed. 10The respondent accepts that the applicant established before her Honour that no director or person having relevant management functions knew, and could not reasonably be expected to have known, of the contravention: s 87(1)(a). The Magistrate found that the applicant failed to establish that it did not have custody or control of the vehicle at all material times (s 87(4)). The applicant does not seek to challenge that ruling. 11The Magistrate's critical reasons for the finding that the respondent had failed to establish its reasonable steps defence emerge from the following passages of her Honour's reasons. Her Honour explained the circumstances in which the tri-axle came to be overloaded as follows: "[T]he defendant company picked up goods from another company, called Minova Pty Ltd, pursuant to a transport contract the defendant had with Newcrest Mining Limited. The driver of the truck, Mr Alan Eggleton, is a truck driver of twenty-five years experience. He gave evidence of the process involved in loading the truck by forklift operated by an employee of Minova. That, I might add, is at the site of the Minova Company in Blacktown. Mr Eggleton instructed the forklift operator to distribute the load in a certain configuration which was given to him by WFM administration. Mr Eggleton instructed the forklift operator to load ten packs of dome plates on the goose neck. The configuration of the load was not carried out according to instructions given by Mr Eggleton, for reasons unknown. Mr Eggleton was the driver, was in the driver safety zone whilst the loading was being carried out. This is a requirement of the firm called Minova, that the drivers, whilst the loading is being undertaken, move to an area to ensure their own safety. The driver safety zone is about thirty metres from the loading area. Mr Eggleton stated that they were 'Really hurrying you along because of double parking. They just push us through. It was rushed.' ... "When asked what he would do if he had any indication that it [the loading] was not done properly he said: 'I would have requested him to do it again.' In his evidence-in-chief Mr Eggleton stated, 'I knew it was correct, if they misloaded, I would have told them to load it again.' He also stated that he had seen it done before. The chief executive officer of WFM, Brandon Kidner, gave evidence. Key to his evidence on the issue he stated in his evidence that, 'We would call if it is not loaded to the driver's request.' In exhibit 10 Minova Australia Chain of Supply Core Procedure 5.2.2 states that: 'It will be the responsibility of Minova Australia forklift operator as well as the driver of the outbound vehicle concerned to ensure that loads are within the axle and mass weight limits.' He also stated that, 'Once the trucks leave Minova no further checks are conducted.' He agreed that under the chain of responsibility it is the driver's responsibility as per the practice and procedure to ensure that weight management is complied with. He agreed that Alan Eggleton had signed up on the practice and procedure." 12The Magistrate found: "It is clear to me from the evidence of Eggleton and Kidner that the driver has the power to request that a truck be reloaded if the driver saw that it was being loaded incorrectly. WFM's practice and procedure manual clearly states the following - and this is highlighted, in capital letters, and underlined in the practice and procedure: 'You are the driver, axle weights are your responsibility.' ... It is up to the defendant to take all reasonable steps to ascertain the mass of the load over the various axles. The fact that the driver did not adequately check the load prior to driving out of Minova is, in my view, extremely poor practice. The final responsibility of compliance rests with the driver. How can compliance be met if the driver does not check visually the load? ... The driver acknowledged that if he noticed that the load was not correct then he would tell them to load it again. This gives rise to my belief that the driver had the ability to check the load but chose not to due to various possible reasons, primarily, it seems, including the fact that Minova were rushing trucks through as they were double parked outside. ... The key issue is axle overloading. All parties are aware of it as being significant in compliance with the Act. The driver said he would not allow it to happen. The driver never checked the truck once it was loaded. The fact is that the driver failed to take reasonable steps to meet a most common sense approach. If he had made certain observations on the day and made a complaint then there is no doubt that this would have been considered as taking a reasonable step, but he did not even make the observation. He relied on the so-called professionalism of the forklift operator [the person he instructed to load the truck in a particular manner]." 13The applicant relied upon four grounds of appeal before Davies J (primary judgment at [8]) which can be described as the Kirk point (Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531), a complaint about an alleged under-declaration of weight by the consignor of the load, an irrelevant consideration complaint that the Magistrate referred to the fact that since the contravention the applicant has weighed its trailers on a weighbridge following loading and a complaint about penalty. 14The Kirk point was a complaint that the Magistrate "erred in law by finding that the prosecutor had no obligation to particularise within the statement of charge, or in advance of the hearing, the steps it asserted in submissions were reasonable for Western Freight Management Pty Ltd to take to avoid the relevant acts or overload": primary judgment (at [8](1)). The primary judge rejected that ground of appeal, concluding (at [16]) that the relevant provisions of the RTG Act were sufficiently different from the provisions of the legislation considered in Kirk to make that case distinguishable. 15The applicant seeks to agitate the correctness of the primary judge's decision on the Kirk point if granted leave to appeal, albeit that its draft ground of appeal is slightly differently expressed from that before the primary judge, seeking to contend that: "To the extent that the prosecution was entitled to suggest a different regime for meeting the defendant's obligations under the Act, the defendant ought to have been put on notice of it before the matter went to trial." 16The applicant seeks to argue that it was incumbent upon the prosecution to indicate prior to trial who it alleged failed to take a step which was reasonably available, and what that step might be, in order that the applicant be able to defend itself. That argument is, in my view, misconceived. 17No ingredient of the s 56 offence concerned taking steps to prevent the contravention. Rather, the actus reus of the s 56 contravention was the overloading, in this case of the tri-axle, not any matter which went to requiring the applicant to take reasonable steps. That was the subject of its s 87 defence. As the primary judge said (at [16]), once the s 56 contravention was particularised in the Penalty Notice and the Court Attendance Notice, the applicant knew the charge it had to meet: see also Kirk (at [26]). 18The position was otherwise in Kirk. The vice of the charge in that case was the failure to particularise the actus reus of the offence, which failure prevented the defendant from relying upon a statutory defence which depended upon it establishing it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence: Kirk (at [27] - [28]). 19The applicant did not otherwise seek to agitate any of the other grounds of appeal relied upon before the primary judge. However it sought to argue that it was not open to the Magistrate to find it liable on the basis of the driver's failure to inspect the load contending that on the proper interpretation of the RTG Act, in particular s 87, it could not be found liable for any act or omission other than that of its directors and managers. It sought to rely in this respect on R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 331; [1999] 1 WLR 1526. In that case the English Court of Appeal held that on the proper construction of the relevant legislation, it was not necessary for the adequate protection of the public that the employer should be held criminally liable for an employee's negligent act, as those employees were themselves liable to criminal sanctions thereunder. 20This argument was not raised before the Magistrate. Indeed, before the Magistrate, the applicant's written submissions sought to rely upon the driver's conduct, as well as that of its management, to discharge its burden of establishing its reasonable steps defence. Nor as will be apparent from the foregoing was this argument relied upon before the primary judge. The applicant did not contend otherwise, nor did it seek to persuade the court that exceptional circumstances warranted granting it leave to raise the point for the first time on appeal: cf Gipp v R [1998] HCA 21; (1998) 194 CLR 106 (at [62] - [65]) per McHugh and Hayne JJ; (at [138]) per Kirby J; Crampton v R [2000] HCA 60; (2000) 206 CLR 161 (at [12] - [20]) per Gleeson CJ; (at [47] - [50]) per Gaudron, Gummow and Callinan JJ; (at [122]) per Kirby J and Fingleton v R [2005] HCA 34; (2005) 227 CLR 166 (at [6]) per Gleeson CJ; (at [62]) per McHugh J; (at [144] - [145]) per Kirby J; (at [195]) per Hayne J; Gordian Runoff Ltd v Westport Insurance Corporation [2010] NSWCA 57; (2010) 267 ALR 74 (at [237]) Allsop P (Spigelman CJ and Macfarlan JA agreeing). It is not, accordingly, a question which can be raised in this Court. 21As I have said, it is apparent from the applicant's written submissions before the Magistrate that its case that it took all reasonable steps for the purposes of s 87(1)(b) was advanced in reliance on conduct which included that of the driver, as well as asserting that the failure properly to load the vehicle was an act committed while the vehicle was not in its custody or control. As I have also said, it lost the latter point and has not challenged that ruling. 22Otherwise, the applicant sought to establish its reasonable steps defence before the Magistrate by adducing evidence concerning the system it had established to seek to ensure that no overloading occurred. That system, as is apparent from the evidence her Honour recited (see [11] above), included ensuring, if the vehicle was not loaded correctly, that it was reloaded. On the occasion the contravention occurred the driver did not inspect the load to ensure it was correctly distributed and, accordingly, did not require those loading it to correct their error: see primary judgment (at [33]). 23It was clearly open to the Magistrate given the manner in which the applicant presented its case before her Honour to conclude that it had failed to establish its s 87 reasonable steps defence. That conclusion was a finding of fact which raises no question of law susceptible to appellate review. 24I would dismiss the application for leave to appeal with costs. 25BASTEN JA: The applicant was, on 15 March 2012, the operator of a commercial vehicle with multiple axles. On 18 December 2012 it was convicted in the Local Court at Katoomba for breaching the weight limit for the rear axle on the Great Western Highway near Blackheath. The offence arose under s 56 of the Road Transport (General) Act 2005 (NSW) ("the Road Transport Act"), as then in force. Because of the degree of the overload, the breach was characterised as a "substantial risk breach" for the purposes of s 56(3). Pursuant to that provision, the applicant had the benefit of "the reasonable steps defence", as identified in s 87 of the Road Transport Act. The applicant did not dispute the elements of the offence, but sought to rely upon the defence under s 87. The magistrate rejected the defence, convicted the applicant and imposed a fine of $3,000 and costs totalling $3,383. 26The applicant appealed (as of right) on four grounds that were said to involve questions of law alone, pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 (NSW). Davies J, in the Common Law Division, dismissed the appeal on 30 August 2013: Western Freight Management Pty Ltd v Roads and Maritime Services, New South Wales [2013] NSWSC 1123. The applicant sought leave to appeal from that judgment. 27Although four grounds were relied upon before Davies J, the applicant accepted (with one qualification, which will be addressed below) that only one of the grounds was reflected in the grounds contained in the draft notice of appeal in this Court. 28As will be explained below, the qualification was misconceived and the single common ground had no reasonable prospects of success. Those conclusions would warrant refusal of leave to appeal. Nor should leave be granted to allow an appeal on grounds which were not agitated in the Court below, but could have been, had they merited attention. As will be explained, they did not raise any arguable question of law arising from the judgment of the Local Court. Judgment of magistrate 29The offence was originally identified when the applicant's vehicle was weighed at the Mount Boyce weighing station on the Great Western Highway, west of Blackheath. A penalty notice was issued, but the applicant elected to go to trial in order to run a defence that it had taken "all reasonable steps" to prevent the contravention. 30The offence was detected in the early hours of the morning of 15 March 2012. On the previous day, a driver employed by the applicant had taken the vehicle to the premises of a supplier known as Minova Australia to be loaded with a number of metal plates to be transported to Cadia East at Orange. The driver had given specific instructions to the Minova forklift operator as to how the load was to be distributed on the trailer. The offence occurred because the forklift driver did not comply with those instructions. The issue identified by Magistrate Ryan in the Local Court was whether the applicant had taken all reasonable steps to prevent the contravention. 31The driver of the vehicle was required to remain in a specified "driver safety zone" whilst the loading was being carried out. Nevertheless, in the course of the loading, he returned to the vehicle to put the gates on the truck. He said he did not watch the forklift operator to confirm he was carrying out his instructions because he (the driver) "assumed he [the forklift operator] was doing his job properly." He also agreed that he did not check that the pallets had been placed in the right positions after the loading had been completed. The magistrate stated in the key passages in her reasons at p 3: "The fact that the driver did not adequately check the load prior to driving out of Minova is, in my view, extremely poor practice. The final responsibility of compliance rests with the driver. How can compliance be met if the driver does not check visually the load? The driver stated throughout his evidence that he relied on the professionalism of the forklift operator to load the truck in accordance with his instructions. ... The driver acknowledged that if he noticed that the load was not correct then he would tell them to load it again. This gives rise to my belief that the driver had the ability to check the load but chose not to due to various possible reasons .... The driver never checked the truck once it was loaded. The fact is that the driver failed to take reasonable steps to meet a most common sense approach. If he had made certain observations on the day and made a complaint then there is no doubt that this would have been considered as taking a reasonable step, but he did not even make the observation." Statutory scheme 32To understand the statutory context in which these findings of fact were made and to understand the grounds of appeal, it is necessary to refer to the terms of s 87, which prescribes the available defence. 87 Reasonable steps defence for mass requirements: drivers, operators and owners (cf Roads Act 1993, s 235) (1) If a provision of 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. (4) Subsections (2) and (3) do not apply if the defendant satisfies the court that at all material times that the defendant did not, either personally or through any agent or employee, have custody or control of the vehicle concerned. (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. 33While the provision is carefully structured, its application is not without its difficulties, although they were not difficulties which were the focus of attention in the Local Court. That is in part because the provision covers a range of offences. It was not in doubt that the offence committed under s 56 was an offence "relating to a mass requirement" for the purposes of s 87(1). However, the term "mass requirement" was defined for the purposes of Ch 3 of the Road Transport Act to include a requirement of an applicable road law concerning mass limits relating to the mass of the vehicle excluding a load, the mass of the unladen vehicle together with the load, and the mass on an axle, amongst other categories: s 20. 34Subsections (2) and (3) of s 87 required 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": subs (2). The temporal element was not in dispute: the parties agreed that the journey began when the laden vehicle left Minova's premises. It is clear that these provisions would not have applied to an offence relating to the tare mass of a vehicle (that is unladen). What is less clear is whether the requirement that the load be weighed or that there be sufficient and reliable evidence from which that weight was calculated, applied only to the total mass of the load, or could apply to the mass on the rear axle, which was the particular breach in the present case. 35Ultimately, nothing turned on this uncertainty because Magistrate Ryan did not determine the case on the basis of satisfaction of subss (2) and (3). Nor was that course necessary. Those provisions constituted limitations on the availability of the defence: satisfaction of those provisions was a necessary but not sufficient element of the defence. 36As appeared from the submissions made in the Local Court, the applicant was undoubtedly concerned about the operation of those limitation (or gateway) provisions because it sought to argue that, during the loading process, it did not either personally or through its driver, have custody or control of the vehicle. That submission sought to engage the exclusion of subss (2) and (3) provided by subs (4). Because the magistrate did not rely upon a failure to comply with subss (2) and (3), she did not address subs (4) (although the argument that "at all material times" the applicant did not have custody or control of the vehicle must have been doomed to fail). 37There might also have been a further issue as to whether the applicant did not know and could not reasonably be expected to have known of the contravention, for the purposes of subs (1)(a). To that end the applicant, being a corporation, was required to satisfy the court that no director and no person having "management functions in the corporation in relation to activities in connection with which the contravention occurred" knew of or could reasonably be expected to have known of the contravention: subs (5). The sole director of the applicant gave evidence that he did not know and a finding that he could not reasonably be expected to have known could reasonably have been made. Such a conclusion might not have been reached in respect of the driver, and there might have been a live issue as to whether he was a person having relevant management functions in relation to the driving of the truck, in circumstances where he had been responsible for the loading. (He was not the driver at the time or place at which the offence occurred.) 38However, a careful reading of the magistrate's reasons indicates that she did not determine the case on that basis. In stating the issue and in reasoning to a finding that the offence was proven, the sole focus of the reasons was subs (1)(b). It appears to have been assumed that the defendant could not establish that it had taken all reasonable steps to prevent the contravention if there were steps open to the driver responsible for supervising the loading of the vehicle which were reasonable and were not taken by him. That understanding would be consistent with the terms of subs (4), which envisaged the possibility that a commercial owner or operator might have custody and control of the vehicle through an employee or agent. 39In these circumstances, the primary issue resolved against the applicant was one of fact, which could not be challenged on an appeal under s 52 of the Crimes (Appeal and Review) Act. Appeal to Supreme Court 40This Court was not provided with the summons by which the appeal was brought to the Common Law Division. However, counsel for the applicant agreed that the only grounds of appeal were those set out by Davies J at [8] in the following terms: "In those circumstances the grounds of appeal are these: (1) The learned Magistrate erred in law by finding that the prosecutor had no obligation to particularise within the statement of charge, or in advance of the hearing, the steps it asserted in submissions were reasonable for Western Freight Management Pty Ltd to take to avoid the relevant acts or overload. (2) The learned Magistrate erred in law by failing to take into account a relevant matter (the under-declaration of the pallet weights on transport documents by a third party) in determining that the driver would be able to, by more thorough checking, determine that the trailer had not been loaded in such a way as to be relevantly overloaded. (3) The learned Magistrate erred in law by taking into account an irrelevant consideration, namely that the Appellant Western Freight Management now weighs trailers on a weighbridge following loading but after the vehicle is operating on a road or road related area, in forming the view that the Appellant had not taken all reasonable steps to prevent a mass related offence. (4) The learned Magistrate erred in imposing a penalty significantly higher than that for which Western Freight was liable under the Penalty Notice, given the nature of the Defence, without providing reasons." 41If the grounds were not limited to pure questions of law, the scope of the appeal might have been expanded, with leave. Arguably they were not so limited, but no leave was sought and no leave was deemed necessary by the primary judge. 42The applicant accepted that the appeal to this Court did not raise any of the grounds set out as (2), (3) and (4). On that view, the only ground in which the applicant persisted in this Court was ground (1). The qualification to that conclusion was defensive, based on a concern that the primary judge had made a finding that the applicant could not satisfy the requirement of s 87(3)(b). 43That concern was unwarranted for three reasons. First, as already noted, the magistrate did not determine the case on the basis of that provision: as a finding with respect to that provision was not necessary in order to dismiss the defence, her approach could not have been impugned as legally erroneous. Secondly, it was not so impugned: the grounds of appeal before the primary judge did not raise that as an issue. Thirdly, if, which is by no means clear, the primary judge did purport to make a finding of fact, he exceeded the scope of his jurisdiction on the appeal. Failure to particularise flaw in defence 44The remaining ground, which was raised before the magistrate and before the primary judge and persisted with in this Court was the first ground identified by the primary judge. The matter was somewhat differently stated in the draft notice of appeal, the following terms being adopted: "(2) To the extent that the prosecution was entitled to suggest a different regime for meeting the defendant's obligations under the Act, the defendant ought to have been put on notice of it before the matter went to trial." 45That issue was raised before the magistrate: she concluded that there was "no obligation imposed on [the prosecutor] to provide a list of all reasonable steps that a defendant in a particular case could have taken. The [prosecutor] submits that this is nonsensical, and I agree that it would be almost impossible, given the myriad of steps that could be invoked." Both in the Local Court, before the primary judge and in this Court, the applicant sought in varying degrees to brings its case within the analysis adopted by the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 in relation to contravention of obligations imposed on employers by ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW). Section 15 contained the following provisions: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances .... 46As the High Court noted in Kirk, s 15(2) identified a non-exclusive list of the kinds of measures which the employer might need to take with respect to identifiable risks to health and safety. The Court held that an adequate statement of an offence "must identify the act or omission said to constitute a contravention of s 15 or s 16": at [14]. The Act provided a defence where the defendant proved that "it was not reasonably practicable" to comply with the provision of the Act, the breach of which constituted the offence: s 53. As the Court noted, "[s]uch a defence can only address particular measures identified as necessary to have been taken in the statement of offence": at [16]. 47The applicant sought to rely on this reasoning to impose an obligation on the prosecutor in the present case to identify, prior to trial, those steps which should reasonably have been taken but which it was alleged had not been taken. 48In this regard, Kirk broke no new ground: it was merely an application of an established principle to a grossly inadequate pleading. The principle is that a statement of an offence must identify "the essential factual ingredients of the actual offence": Kirk at [26], quoting John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508 at 520. The statement of the statutory offence did not require the incorporation into the offence of any relevant element of the defence. The significance of the reference to the defence was that, unless the putative offender were told what conduct constituted the offence, albeit the conduct was by way of omission, the defendant would not be in a position to say whether there was a reasonably practicable course for remedying the alleged omission. 49The present statutory scheme differs in material respects. The essential factual ingredients of the offence were not only specified, but were conceded. 50No doubt procedural fairness requires that various steps will need to take place before such a defence can be rejected. Thus, on the evidence presented by the defendant, the critical error occurred when the truck was being loaded at the Minova premises. The error could have occurred in one of a number of circumstances, including the failure of the driver to give the forklift operator correct instructions as to how to load the vehicle. That did not occur. According to the unchallenged evidence of the driver, the error was that of the forklift operator. It was also accepted by the applicant that the error was not detected. At that point, both prosecutor and defendant were aware of the precise nature of the defence. At that point, procedural fairness may have required the prosecutor to identify a reasonable step not taken, namely visual inspection of the load. That was done whilst the driver was giving evidence: he conceded that he had not undertaken a visual inspection of the load but had relied upon the forklift operator to carry out his instructions carefully (or as the driver put it, "professionally"). 51In order to submit that that involved a failure to take a reasonable step, it was necessary to explore whether there was any impediment to such a visual inspection. The reason for the omission was indeed explored by counsel for the applicant in his examination in chief of the driver. It was also explored in cross-examination. The issues were clearly identified at that stage and neither party could complain of procedural unfairness when the magistrate determined the case by reference to that quite limited factual situation. All of that goes beyond what is necessary to dispose of the present application. It illustrates, however, why the essential ground of the proposed appeal could not have complained of procedural unfairness in the conduct of the trial. Further, it illustrates why the actual complaint, namely that the prosecutor did not state the inadequacy of the defence prior to trial, was an absurd proposition. As counsel for the respondent correctly noted, prior to trial, the respondent did not know what evidence the applicant would call by way of defence. Just as procedural fairness does not require one party to take a step which would disclose nothing material to the other party, nor does it require a party to disclose its response to an unknown defence. As explained by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 52The applicant's case is far removed from such considerations. Indeed it turns the reasoning in Kirk on its head, imposing on the prosecutor the problem faced by the defendant in Kirk: that is, the difficulty of responding in ignorance of the case to be met. Conclusion 53The applicant has struggled to find a question of law erroneously determined by the magistrate. The applicant's defence was disposed of on the solitary ground that the magistrate was not satisfied that it had taken "all reasonable steps" to prevent the contravention occurring. That was an essential element of the defence. It was a pure question of fact. It was addressed and determined in entirely conventional terms. 54An appeal limited to a pure question of law was dismissed by the primary judge. On the sole ground raised before him and pursued in this Court, his conclusion was entirely sound. Although, in submissions in reply before this Court counsel for the applicant distanced himself from the direct application of the principles relied on in Kirk, that case was correctly distinguished by the magistrate and by the primary judge: no other relevant principles were relied upon. 55In these circumstances, there is no merit in granting leave to appeal. The application should be dismissed with costs. 56LEEMING JA: I agree with the reasons given by Basten JA, and with his Honour's conclusion that leave should be refused. Section 87 caused confusion when the application was heard, for which reason I wish to add the following by way of elaboration. 57It was at all times common ground that the applicant could seek to avail itself of the benefit of "the reasonable steps defence" created by s 87 of the Act. Section 87(1) makes it plain that the onus falls on the defendant ("if the defendant establishes that...") to establish two things. There was no dispute that the subjective and objective lack of knowledge required by s 87(1)(a) was satisfied. However, the Magistrate found that the s 87(1)(b) requirement to have "taken all reasonable steps to prevent the contravention" had not been established, and accordingly convicted the applicant. 58Subsections 87(2) and (3) are directed to courts, and restrict the ways in which the s 87(1)(b) defence may be established. Subsection 87(2) precludes a court from being satisfied that the all reasonable steps defence has been established unless that was done "at the start of the journey". Subsection 87(3) precludes the court from being able to be satisfied unless either s 87(3)(a) or (b) is made out. From those restrictions s 87(4) carves out an exception. The applicant sought at trial to bring itself within that exception, but failed and did not reagitate that issue on appeal, and so subsection (4) can be put to one side. It is true that, save where subsection (4) applies, subsections 87(2) and (3) are necessary gateways through which a defendant seeking to establish the all reasonable steps defence must pass. However, it is not necessary, in order to reject the defence, to address the matters arising in s 87(2) and (3). In short, subsections (2) and (3) are necessary, but not sufficient, requirements of a successful defence to the charge. 59In the present case, the Magistrate was satisfied that the defendant had failed to establish that it had "taken all reasonable steps to prevent the contravention". That being the only defence raised, the defendant was convicted. Some of the submissions advanced in this Court failed to recognise that (a) the finding on s87(2) was a finding of fact, outside the scope of appeal to this Court, and (b) the finding on s 87(2) was sufficient to convict the applicant, without any occasion to consider subsections (3) and (4). 60The applicant maintained that the Act required the prosecutor to specify the steps which were reasonable and had not been taken. It is not necessary in order to reject that submission to say anything about whether, during the course of the trial, it may become necessary for a prosecutor to identify how it is said that the defendant has failed to take all reasonable steps. It is not necessary to do so because the only point raised by the draft notice of appeal was error in failing to find that the prosecutor did not have an obligation "to particularise within the statement of charge, or in advance of the hearing" the steps asserted to have been reasonable which were not taken. That could only be so if an element of the offence was that the absence of those steps was an element of the offence. Indeed, that was what was submitted before the Magistrate. It was said that the offence "was, properly expressed, that it did not take all reasonable steps to prevent the axle overload" (written submissions in reply, para 10(g)). But that is not how the offence is defined by the Act. Were that not so, the Crown would not have been able to close its case upon the tender of two certificates, on page 2 of the transcript of 21 November 2012. 61Accordingly, although the applicant invoked Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, questions of duplicity do not arise. Instead, to the extent there is an obligation upon a prosecutor to specify steps which were reasonable and which had not been taken, it is to be seen not as an element of the offence created by the Act, but as an incident of natural justice in a particular case, in the manner to which Basten JA has referred. 62The principal case sought to be advanced on appeal was that it was wrong to rely upon what the driver had or had not done in determining whether the applicant had made out the offence. However, this was not raised before the Magistrate. There is ordinarily no error of law in failing to address an argument that has not been made: Commissioner of Taxation v Glennan [1999] FCA 297; 90 FCR 538; Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; 141 FCR 107 at [29]; Pham v NRMA Insurance Ltd [2014] NSWCA 22 at [33]; Haddad v Chief Commissioner of State Revenue [2014] NSWCA 23 at [30]. 63To the contrary, the applicant positively asserted at the trial that the driver was not in a position where he could supervise the loading of the truck, nor could he determine whether the forklift driver had actually loaded the load where he said he was going to: T21.18 and 39. The Magistrate's finding, contrary to those assertions, that the driver had not adequately checked the load prior to driving out for which reason the applicant had not taken all reasonable steps was a finding of fact, outside the scope of the appeal created by s 52 of the Crimes (Appeal and Review) Act 2001 (NSW). And it was a finding of fact which reflected the stance adopted before the Magistrate, inconsistent with the submissions sought to be advanced on appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2014