Section 87 defence, my findings and Tillman
31If I am wrong and this Court's inherent jurisdiction should have been exercised to reopen the hearing, I shall consider whether the s 87(2) and (3) defence should be remitted to the Magistrate to be dealt with according to law.
32For ease of reference I shall once again reproduce s 87 of the Road Transport (General) Act 2005. It reads as follows:
"87 Reasonable steps defence for mass requirements: drivers, operators and owners
(1) If a provision of this Act, or a regulation made under this Act, states that a person has the benefit of the "reasonable steps defence" for an offence relating to a mass requirement, it is a defence to a prosecution for an offence alleged to have been committed by a person as the driver, owner or operator of a vehicle or combination if the defendant establishes that the defendant:
(a) did not know, and could not reasonably be expected to have known, of the contravention, and
(b) had taken all reasonable steps to prevent the contravention.
(2) If the relevant contravention resulted from the fact that the mass of the vehicle or part of the vehicle (together with the mass of any load on the vehicle or part of the vehicle) exceeded any limit prescribed by the regulations, then the court is not entitled to be satisfied that the defendant took all reasonable steps to prevent the contravention unless it is satisfied that the defendant took all reasonable steps to cause the mass of the load carried on the vehicle to be ascertained at the start of the journey during which the contravention occurred.
(3) The court is not entitled to be satisfied that the defendant took all reasonable steps to cause the mass of a load to be ascertained unless it is satisfied that:
(a) the load had been weighed, or
(b) the defendant, or the driver of the vehicle, was in possession of sufficient and reliable evidence from which that weight was calculated.
(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) f 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."
33It was submitted by RMS that my reasons for judgment do not appear to address the issue and RMS has not been heard as to whether the s 87(2) and (3) issues should be determined in favour of Western Freight.
34Western Freight submitted that this Court was specifically empowered to make the decision in the way that it did and was entitled to come to the decision it came to. It was submitted that the grounds upon which this Court found the s 87 test was satisfied were before this Court and were also available to Magistrate Day at first instance.
35On appeal after having heard the submissions of each party, I considered the legislation pursuant to which the charge had been laid, and the statutory defences available. The transcript of evidence of the proceedings before the Magistrate was before me. I decided that the Magistrate was correct in finding that the statutory defence in s 87, the reasonable steps defence, had been made out despite the Magistrate's incorrect view as to the timing of the relevant custody and control of the vehicle.
36RMS submitted that this Court can only determine a question of law alone and it is not permitted to indulge in fact finding.
37Western Freight submitted that RMS has overlooked the effect of s 65 of the Crimes (Appeal and Review) Act and that in my judgment, I specifically considered the grounds available to the Magistrate to be determined were s 87(2) and (3).
38Section 65 relevantly reads:
"65 Appeal not to succeed on narrow technical grounds
(1) A conviction, order or sentence is not to be set aside on an appeal merely because of:
(a) an omission or mistake in the form of the conviction or order, or
(b) an error in law in the order or sentence,
if it appears to the appeal court that there were sufficient grounds before the Local Court to have authorised a conviction, order or sentence free from the omission, mistake or error.
..."
39I accept that had there been no material before the Magistrate relevant to these matters, then this Court could not have determined the defence as having been made out. However, if there was relevant uncontested evidence or relevant factual findings then this Court can properly redetermine the matter taking that evidence into account.
40RMS submitted that the requirements of those provisions of s 87(2) and (3) have not been satisfied. RMS submitted that the offence charged was of being overweight on a particular axle and the evidence was that the weight on that axle had not been ascertained. Western Freight, however, submits that the weight on the axle had been ascertained.
41So far as s 87 is concerned, in my earlier judgment Western Freight Management Pty Ltd v Roads and Maritime Services, New South Wales [2013] NSWSC 260, I stated at [60] - [65]:
"60 In my view, Western Freight has not satisfied the Court that at 'all material times', Western Freight through its employee Mr Nathan did not have custody or control of the vehicle concerned. Thus, it is necessary to consider the requirements of s 87(2) and (3).
61 Under s 87(2), the Court must be 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.
62 It was common ground in the hearing before me that Mr Nathan was given instructions as to how the mantle was to be loaded. He was also given a manifest which instructed him to pick up a 4.75 tonne mantle from SWP and some other cargo from Westrac. I am satisfied that Western Freight took all reasonable steps to prevent the contravention pursuant to s 87(2).
63 Under s 87(3), the Court must be satisfied that the defendant took all reasonable steps to ascertain the mass of the load either by (a) the load had been weighed or (b) the driver of the vehicle was in possession of sufficient or reasonable evidence from which that weight was calculated.
64 Mr Nathan was provided with a manifest which stated the weight of the mantle. He was also provided with a consignment note by SWP which stated the weight of the mantle. He also had consignment notes for the other cargo which weighed approximately 3 tonnes (Ex 3). I am satisfied that Mr Nathan was in possession, when he commenced his return journey, of sufficient or reasonable evidence from which to calculate the weight of his cargo.
65 As the requirements of s 87(2) and (3) have been satisfied, I find that Western Freight has made out a reasonable steps defence pursuant to s 87(1) for an offence under s 56 of the Road Transport (General) Act. The result is that although the magistrate erred in deciding that the s 92 defence was made out, he was correct in deciding in the alternate that the s 87 defence was made out. The result is that his decision to dismiss the charge was correct. The result is that Roads and Maritime Services appeal is dismissed."
42It should be noted that in my judgment at [63] reference was made only to the driver being in possession of sufficient or reasonable evidence from which the weight is calculated. Section 87(3) states that the reasonable steps defence is satisfied if either the defendant, or the driver, is in possession of reasonable evidence. The driver Mr Nathan's evidence on this topic does not establish the reasonable steps defence.
43RMS has now drawn this Court's attention to Tillman, Dowd J stated at [1] - [7], [12] - [14]:
"1 ... This summons is an appeal from a determination of a Local Court Magistrate at Newcastle on 1 September 2000, seeking that the decision to dismiss the information be overturned; an order that the matter be remitted to the Magistrate to be determined according to law; and an order as to costs.
2 The statement of grounds in support of the appeal sets out that the plaintiff issued a summons against the defendant company on 15 November 1999, alleging that the defendant, being the registered owner of a vehicle, did not comply with the condition of the notice or permit under which the vehicle was operating, as required by the Road Transport (Mass Loading and Access) Regulation 1996.
3 There was no Issue that the over-loading, as alleged by the plaintiff which particularly related to the load on two axles, those being axles 2 and 3 where the permitted load was 18 tonnes, the weight actually recorded in respect of each axle being 21.82, making an overload on each axle of 3.82 tonnes.
4 The matter was defended on the basis that the offence could not have been avoided by any reasonable efforts on the part of the defendant. The statement of grounds in support of the appeal states that His Worship held that the defendant had proven that the offence could not have been avoided by any reasonable efforts, and dismissed the information. His Worship's actual finding was that he did not consider that it was a matter in which the prosecution had proved the offence being committed, and in those circumstances dismissed the information.
5 The appellant's contention is that His Worship erred in law and failed to apply s235(5) of the Roads Act 1993 ('the Act'). It was further contended that in finding that the defendant had proven that the offence could not have been avoided by any reasonable efforts, His Worship based his decision on the facts inferred by the court that there was no evidence to support such an inference. It was further submitted that the facts inferred by the Magistrate and supported by the evidence were incapable of justifying the findings made.
6 The case before me was that this appeal, which is brought pursuant to s104(2) of the Justices Act 190[2], was in respect of an information alleging a breach of reg 36 of the Road Transport (Mass Loading and Access) Regulation 1996, in that the defendant did not comply with the condition on the notice or permit issued under the regulations. The particulars provided stipulated that the condition was, as I have indicated, an excess axle mass on a load carried on the Hume Highway at Marulan on 18 September 1999.
7 The breach report was admitted in evidence and was not disputed. The RTA indivisible mass/over dimension permit number was tendered. A condition of that permit was that the relevant axle should be loaded to a maximum of 18 tonnes, and that the overall gross axle weight was not to exceed 75 tonnes. The subject information laid related to the overloading of a particular axle, not the overall weight. Regulation 36(1) creates an offence for breach of the condition of the permit."
44I interpose here to say that his Honour then referred to s 235(4) and (5) of the Roads Act 1993 which is substantially the same as s 87(2) and (3) of the Road Transport (General) Act 2005.
45Dowd J at [18], [20], and [21] continued:
"18 The defence that is permitted in my view by ss(4), permits a defence in respect of the whole load if the contravention relates to the whole load but requires in respect of a contravention relating to part of the vehicle, that it is required that the load of the part of the vehicle be ascertained at the start of the journey during which the contravention occurred.
...
20 The contemplation of s 235(5) of the Act is that you either weigh the vehicle and weigh the load on the particular axle, or you calculate that weight on that particular axis. It is not necessary to actually weigh, if you have information and make the necessary calculations. However you must make the calculation. This, although it carries a civil onus to raise the offence, nevertheless requires that actions contemplated in the defence set out in s 235(3), (4) and (5) of the Act are actually carried out.
21 In this particular case, there is no evidence that the vehicle was weighed nor specifically was there evidence of an actual calculation done, but the section requires that if there is no weighing, that an actual calculation must be done and clearly in this case, that calculation was not carried out because the weight on the axle was exceeded. It would make an absurdity of the section if the section permitted a gross overloading of a particular axle in excess of a permit on that axle, if in fact it was simply necessary to weigh the total vehicle and its load, or calculate that total weight." (My emphasis added)
46Western Freight submitted there was evidence given before the Magistrate as to the calculation of weight on the axle that was found to be overloaded. Magistrate Day, at T45.47-50 and T46.1-5, made the following findings:
"...Evidence was given by Mr Ali known as Shane Ali - he is known as Sahid Ali. Mr Ali gave very clear evidence of his experience in the employment of the company which he has recently left but he started as a driver - but at the relevant time, was the operations manager. His evidence was that he had on many occasions driven the particular route, carrying the same freight - that is to say an object called a mantel which forms part of the crusher or crushers used in hard rock mining operations in the central west - either by New Crest at Arcadia Valley Operations - south Orange - or the North Parkes Mine which is north of Parkes."
47Further, at T46.27-38, his Honour continued:
"The evidence of the driver - Mr Nathan - was that he received the instructions of Mr Ali as to where the mantel was to be loaded just slightly forward of the first drive axel. The particular truck - freight liner was a rigid truck with two drive axels. So there was a bogey at the rear there being A, B and C axels. The instruction was plain and conveyed by Mr Ali on Mr Nathan's evidence that it was to be loaded immediately to the front of B axel and fastened with chains. Mr Ali's evidence - just to go back to his evidence was it to be chained either forward and back or criss-crossed. I understand what he meant by that. I have seen many trucks in my travels throughout New South Wales over many years where heavy loads are chained down to the truck. I understand what that evidence means. Mr Nathan's evidence was plain that he was clearly instructed how it was to be loaded - where it was to be loaded - how the load was to be fastened."
48In my judgment dated 28 March 2013, reference was made to the Magistrate's findings at [19] and [20]. They read:
"19 Prior to leaving the depot, he was specifically instructed by Mr Ali, the operations manager, where the mantle should be loaded on the truck. Mr Ali was aware of the weight in tonnes of the mantle because of information he had to hand, and because of his experience having driven and carried out that particular task on previous occasions, transporting identical objects. The mantle is part of the rock crushing machinery being used by Hard Rock Mines. Further, the position of the load ordered, and the manner of fixing the load to the truck, was specified or ordered. That was the scope of the employment on that day, to go to SWP and Westrac, load the heavy item in accordance with the specific directions of Mr Ali and return.
20 Mr Nathan was not in charge of the actual loading, or of his vehicle when it was loaded, because that was part of the loading process undertaken by SWP. That loading was incorrect and Mr Nathan attempted to rectify that but was without a crane operator. Also, there was no one in the operating or yard side of the business available to assist him to rectify the load. The only people he could speak to were office staff and all they did was to give him documentation. He then chose to drive the truck contrary to the specific directions or orders given to him by Mr Ali and it is that driving that constitutes the offence."
49Mr Ali, the defendant's operations manager in the employ of Western Freight at the time, also gave the following uncontested evidence before the Magistrate (T6.36 - T8.50):
"Q. Casting your mind back to 6 January, do you remember discussing anything with William Nathan before he left on his run for the day?
A. Yes, I do.
Q. What was that?
A. I was explaining to him what he was picking up - where he was picking it up from and how I wanted the item loaded on that truck.
Q. What is your recollection of those things - what specifically was he to pick up and so on?
A. Well, I actually had the pick up request in my hand and I explained to him what he was picking up - the mantel - 4 and a half tonne and we were standing next to the truck that he was driving. So we both walked over to the truck. It was only a couple of steps and I pointed to him - I pointed to the truck and said that: 'Load the mantel here,' which was on the first drive axel. So all the
weight was still on the first drive axel and chained in a particular matter which would restrain the load from shifting.
...
Q. As operations manager, did you have any practice in terms of loading a heavy item such as the mantel?
A. Yes.
Q. What was that?
A. My driving history?
Q. No - no, the practices that you adopted in loading these heavy items?
A. My practice is that if you're driving a rigid from the headboard within the first two.
...
A. Yeah, within the first 2.4 metres from the headboard, I do not load over a tonne.
Q. Why is that?
A. Well, to keep most of the axel weight down - within the legal limit anyway. So within the first 2.4 metres not over a tonne which I explained to William that day - the driver that day, and I have never had an issue working on that principle.
Q. Where precisely did you tell him to load the mantel again?
A. On the first drive axle."
50In Tillman, as his Honour observed in [19], "It is not necessary to actually weigh, if you have information and make the necessary calculations". Mr Ali clearly was aware of how much the mantle weighed and that it was necessary to load it not less than 2.4 metres from the headboard so as to keep the weight over the axle within the legal limit. Mr Ali had made the "necessary calculations" in accordance with s 87(3) and 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 (s 87(2)).
51It was common ground in the hearing before me that Mr Nathan was given instructions by his employer as to how the mantle was to be loaded and had documentation that stated the weight of the mantle before he started his journey. He was also aware that the mantle was not in the correct position on the truck as it had been loaded too close to the headboard, contrary to Mr Ali's instructions (T26.32-50).
52It is my view that my earlier orders should not be amended. The reasons are firstly, because had the matter been properly argued by RMS in the Local Court there would be no need for the exercise of inherent power; and secondly, there is uncontested evidence that Mr Ali ascertained the mass of the load at the start of the journey and was in possession of sufficient and reliable evidence to calculate the weight of the load on the relevant axle. As provided for in s 65(1) of the Crimes (Appeal and Review) Act, this Court can properly determine this matter, as there were sufficient grounds before the Local Court to authorise an order that Western Freight had satisfied the reasonable steps defence under s 87 and Tillman. Consequently, there is no utility in remitting the matter back to the Local Court as to do so would only incur further costs to Western Freight.
53The result is that the notice of motion filed by RMS on 8 April 2013 is dismissed.
54Costs are discretionary. Costs usually follow the event. RMS is to pay the costs of Western Freight of this motion.