Nolan v Sims Group Australia Holdings Limited; Nolan v Delta Pty Limited [2015] NSWSC 1424

Supreme Court New South Wales

Medium Neutral Citation: Nolan v Sims Group Australia Holdings Limited; Nolan v Delta Pty Limited [2015] NSWSC 1424 Hearing dates: 10 September 2015 Date of orders: 06 October 2015 Decision date: 06 October 2015 Jurisdiction: Common Law Before: Bellew J Decision: In proceedings 2014/321864: 1. I convict the defendant Sims Group Australia Holdings Limited of an offence against s. 53 of the Road Transport (General) Act 2005. 2. I impose a fine of $3,000.00 with respect to that offence. 3. Pursuant to s. 210 of the Road Transport (General) Act 2005, I order that the defendant pay to Roads and Maritime Services compensation in the sum of $55,494.85 for the damage to road infrastructure, namely the road and M5 Tunnel infrastructure, incurred by Roads and Maritime Services as a consequence of the commission of the offence in (1) above. 4. Pursuant to s. 257B of the Criminal Procedure Act 1986 and s. 214 of the Road Transport (General) Act 2005, I order that the defendant pay the prosecutor's costs in the sum of $40,000.00. In proceedings 2014/321874: 1. I convict the defendant Delta Pty Limited of an offence against s. 55 of the Road Transport (General) Act 2005. 2. I impose a fine of $6,000.00 with respect to that offence. 3. Pursuant to s. 210 of the Road Transport (General) Act 2005, I order that the defendant pay to Roads and Maritime Services compensation in the sum of $66,593.83 for the damage to road infrastructure, namely the road and M5 Tunnel infrastructure, incurred by Roads and Maritime Services as a consequence of the commission of the offence in (1) above. 4. Pursuant to s. 257B of the Criminal Procedure Act 1986 and s. 214 of the Road Transport (General) Act 2005, I order that the defendant pay the prosecutor's costs in the sum of $42,500.00. Catchwords: CRIMINAL LAW – Offences – Breaches of load dimensional requirements by consignor and loader – Where combination loaded with scrap steel collided with an overhead beam in tunnel – Substantial damage occasioned to tunnel as a result - Necessity to close the tunnel to traffic following the incident - Consequent traffic congestion for a period – Where consignor had no direct control over or knowledge of the circumstances of the loading – Where loader's safety measures at the time of loading were essentially limited to carrying out a visual check of the load by reference to the upper lip of the trailer bin – Culpability of loader greater than that of consignor – Mitigating factors in each case including early plea of guilty, expressed remorse, agreement to pay substantial compensation and substantial steps taken directed towards ensuring that there would be no future offending - Fine imposed in each case Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Road Transport (General) Act 2005 (NSW) Road Transport (Vehicle and Driver Management) Act 2005 Cases Cited: Department of Transport Energy and Infrastructure v Neil [2009] SASC 285; (2009) 53 MVR 467 Endycott (Roads and Martime Services) v Griffiths Garage Pty Limited [2012] NSWSC 1131 Kemp v Air Liquide Australia Pty Limited [2014] NSWSC 1200 Kemp v Doble; Kemp v Doble Express Transport Pty Limited [2014] NSWSC 785; (2014) 67 MVR 167 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Roads and Traffic Authority of NSW v Fletcher International Exports Pty Limited [2008] NSWSC 936; (2008) 51 MVR 41 Roads and Maritime Services v L&M Scott Haulage Pty Limited [2013] NSWCCA 107; (2013) 63 MVR 367 Category: Principal judgment Parties: Nicholas Nolan - Prosecutor Sims Group Australia Holdings Limited - Defendant Delta Pty Limited - Defendant Representation: Counsel: M P Cahill - Prosecutor P Strickland SC – Sims Group Australia Holdings Limited J Catlin – Delta Pty Limited