Western Freight Management Pty Ltd v Roads and Maritime Services, New South Wales

Supreme Court of NSW|2013-08-16|Before: Davies J

Judgment 1This is an appeal pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 against a decision of Magistrate Ryan given at Katoomba Local Court on 18 December 2012. As a precaution the Plaintiff also seeks leave to appeal pursuant to s 53 of the Act in the alternative. 2Section 52 gives any person who has been convicted or sentenced by the Local Court a right of appeal to this Court against the conviction or sentence but only on a ground that involves a question of law alone. Section 53 enables a person in that position to appeal to this Court on a ground that involves a question of fact or a question of mixed law and fact but only by leave of this Court.

The offence 3The Plaintiff was charged for contravening s 56(1) of the Road Transport (Vehicle and Driver Management) Act 2005. That section provides: 56 Liability of operator (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 operator of the vehicle or combination concerned. Maximum penalty: see Table to Division. (2) If the breach concerned is a minor risk breach, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section. (3) If the breach concerned is a substantial risk breach or a severe risk breach of a mass requirement, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section. 4The word "operator" is defined in s 21 of the Act but there is no dispute that the Plaintiff was the operator of the vehicle. 5Section 87 contains the reasonable steps defence referred to in s 56. Section 87 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. 6The issue before the Magistrate was whether reasonable steps had been taken by the Plaintiff to ensure that no contravention occurred. The learned Magistrate held that reasonable steps had not been taken. 7The Magistrate then turned to consider the penalty. Her Honour noted there had been two previous breaches by the Plaintiff in 2008 with the first receiving a fine of $300 and the second a fine of $600. In those circumstances her Honour fined the Plaintiff $3,000 together with amounts for court costs and professional costs, neither of which was resisted by the Plaintiff. 8In 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. 9In my opinion all of these grounds involve questions of law. The Defendant did not contend otherwise. Leave is not required. 10The Plaintiff was issued with a Penalty Notice on or about 21 March 2012. The Penalty Notice alleged that at 03:30am on 15 March 2012 the Plaintiff was the operator of a motor vehicle described in the Notice which was given upon a public street being the Great Western Highway near Blackheath. The Short Title of Offence in the Notice was: Operator - substantial risk breach mass axle requirement - first offence 11The penalty was said to be $853. The Plaintiff elected to have the matter determined in a court. 12On the first occasion it was listed at court the prosecution did not attend. However, the Plaintiff informed the Court that it intended to defend on the basis of s 87 of the Act - the "reasonable steps" defence.

The Magistrate's reasons 13In order to understand the arguments put it is necessary to set out the Reasons of the learned Magistrate. Her Honour first made reference to ss 21, 56(1) and 87(1) of the Act. She noted that there was a plea of not guilty and that the issue was the matter of axle overload and whether the Plaintiff had taken all reasonable steps to prevent the contravention. Her Honour continued (noting that her Honour's references to the defendant are references to the present Plaintiff Western Freight): The evidence in this case is that the 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." He was watching the truck being loaded from a distance and was talking to other drivers during the process. He commented that, "You expect them to carry out the instructions." He said that: "I roughly know what the truck is going to load with. I actually pointed it out, saying, 'I want these ten plates on the gooseneck.' Then I walked to the safety area. I put the gates on halfway through the process. You load from front to back. They load three quarters of it and you go back to finish." When asked in cross-examination: "Q. Did you look at what he loaded? A. No, I assumed he was doing his job properly." When asked what he would do if he had any indication that it 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. In re-examination Mr Kidner disclosed that since the issue has been highlighted the loads go to the public weighbridge for weighing. I find that WFM had custody and control of the truck at all material times. Mr Eggleton believed that he had the power of instructing the forklift operator to reload if he didn't think it was done properly. Despite the fact that the driver was not within close proximity of the truck whilst it was being loaded he gave evidence that he was moving between the truck and the safety area during the loading process. 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." The defence concedes in its written submissions of 20 November 2012 that: Even the actual higher masses loaded in accordance with the driver's instructions would most probably have resulted in no axle overload. That's paragraph 11. 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 stated throughout his evidence that he relied on the professionalism of the forklift operator to load the truck in accordance with his instructions. It is true that Minova is part of the supply chain, but it is my view that the driver bears the final responsibility in that chain. 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. Further, the fact that WFM now have the loads checked in a public weighbridge gives weight to this Court's belief that it is a reasonable step in reaching compliance with the Act. 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 case of Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) HCA 1 is cited by the defence to support their submission. It is my view that Kirk is to be distinguished from this case. The legislation involved in this charge describes no such act or omission which was the subject of Kirk. Present legislation does not impose a broad non-specific duty on the defendant. It sets out penalties for exceeding specific weight limitations. I find there is no obligation imposed on RMS to provide a list of all reasonable steps that a defendant in a particular case could have taken. The RMS submits that this is nonsensical, and I agree that it would be almost impossible, given the myriad of steps that could be invoked. THE DEFENDANT HAS NOT SATISFIED THE COURT THAT THEY TOOK ALL REASONABLE STEPS TO AVOID CONTRAVENTION OF THE ACT AND THE OFFENCE IS PROVEN.

Ground One - the Kirk Point 14The Plaintiff submitted that there was an obligation on the prosecution to specify as part of the charge the reasonable steps which it contended the Plaintiff should have taken to make out the defence under s 87. Reliance was placed on the High Court's decision in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2009) 239 CLR 531. In that case the appellant was charged with contraventions of the duties imposed upon employers by ss 15 and 16 of the Occupational Health and Safety Act 1983. 15The joint judgment set out the terms of sections 15 and 16 and then discussed what flowed from those sections. The judgment said: [9] Section 15 commenced with the following general statement of an employer's duty: (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. Sub-section (2) provided examples of what may amount to a contravention of that obligation: (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, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. Section 16(1) referred to the obligations of an employer to persons present at the workplace: (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. [10] A few observations may be made at this point. The obligation upon the employer is expressed in terms personal to that employer. It is the employer who must ensure the health, safety and welfare of employees at work. The obligation is the kind of non-delegable duty spoken of in Kondis v State Transport Authority. It is not expressed in terms of the standard recognised by the common law, to take reasonable care. It is higher. So much is evident from the requirement "to ensure" the health, safety and welfare of employees or that persons are not exposed to risks to their health and safety at the place of work. The exclusion of the common law standard is confirmed by the terms of the defences provided by s 53, to which reference will shortly be made. [11] Section 15(2) identified, in general terms, some types of measures which an employer may need to take in order to ensure the health, safety and welfare of employees. The list is not exhaustive. What measures are necessary to be taken will depend upon the particular circumstances prevailing at the workplace, what activities are there conducted, what machinery, plant or substances are involved, the tasks undertaken by the employees and the skills of the employees in question, to mention but a few factors. What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees' health and safety, and must implement systems concerning their use so as to obviate any such risk. An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard "as may be necessary". An employer is to "take such steps as are necessary" to make available information concerning the use for which plant is designed and conditions necessary for its safe use. Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace. [12] Sections 15 and 16 comprehend that the generally stated duty is contravened when a measure should have been taken by an employer to obviate an identifiable risk. That those provisions are contravened where there has been a failure, on the part of an employer, to take a particular measure, is confirmed by references in ss 15 and 16 to what constitutes an offence. Sections 15(4) and 16(3) referred to "the act or omission concerned" which "constituted a contravention" of s 16 or s 15 respectively. Section 49 in Pt 6, which concerned the time for instituting proceedings for offences, provided that they must be instituted within two years "after the act or omission alleged to constitute the offence". [13] To this point reference has been made to the identification of what should have been done by an employer, which will arise in a case such as this, where an employee has been harmed. It is not necessary that harm has already befallen an employee for an offence to have been committed. Where an inspector authorised under the OH&S Act identifies a risk to the health, safety or welfare of employees present at a workplace, which an employer has not addressed, s 15 may be contravened. An obvious example would be the failure to guard dangerous machinery. Upon conviction of such an offence the Industrial Court may order the employer "to take such steps as may be specified in the order for remedying that matter" within a prescribed period, where it is "within the person's power to remedy", in addition to imposing a penalty. It would be necessary for the charge to identify the "matter" to be remedied to enable such an order to be made. [14] A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act. But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence. [15] The necessity for a statement of offence to identify the act or omission of the employer said to constitute a contravention of s 15 or s 16 is even more apparent when regard is had to the defences which were available to employers in proceedings for offences against the provisions. Section 53 provided: It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) 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, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. [16] The scheme of this legislation stood apart from other legislation of this type in Australia. In other States the employer's obligation, to take measures for the health and safety of employees and others, was limited to the taking of such measures as were practicable. This Court has held that such a provision places the onus upon the prosecution to show that the means which should have been employed to remove or mitigate a risk were practicable. A feature of the legislation here in question is that where an employer is charged with an act or omission which is a contravention of s 15 or s 16, it will be necessary for the employer to establish one of the defences available under s 53 in order to avoid conviction. Where reliance is placed by the employer on s 53(a), it would be necessary for the employer to satisfy the Industrial Court, to the civil standard of proof, that it was not reasonably practicable to take the measure in question. Such a defence can only address particular measures identified as necessary to have been taken in the statement of offence. [17] Section 53(a), in the context of proceedings for offences against ss 15 and 16, referred to the situation where it is not reasonably practicable for an employer to comply "with the provision of this Act". It is not to be understood as requiring an employer to negative the general provisions of ss 15 and 16 and to establish that every possible risk was obviated. It requires that regard be had to the breach of the provision which it is alleged constituted the offences. A breach or contravention of s 15 or s 16 is the measure not taken, the act or omission of the employer. [18] The duties referred to in ss 15(1) and 16(1) cannot remain absolute when a defence under s 53 is invoked. The defence allows that not all measures which may have guaranteed against the risk in question eventuating have to be taken. The measures which must be taken are those which are reasonably practicable. The term is not defined in the OH&S Act, but it may often involve a common sense assessment. An understanding of the scheme of Pts 3 and 6 precludes acceptance of the appellants' contention that it is necessary to imply the common law standard of care in ss 15(1) and 16(1). The OH&S Act delimits the obligations of employers by the terms of the defences provided in s 53. [19] What was necessary to be done in connection with the health, safety and welfare of employees and others at the workplace depended upon the presence of identifiable risks and measures which could be taken to address them. The question which may follow, as to what was or was not reasonably practicable for the employer to have undertaken, is directed to the measures so alleged. It is the employer's act or omission with respect to those measures which had to be identified in the statement of any offence charged under ss 15 and 16. 16In my opinion the legislation in the present case is sufficiently different from the provisions of the Occupational Health and Safety Act to make Kirk distinguishable. There are a number of reasons for this. First, the provisions of ss 15 and 16 were general in nature and the charges "did little more than follow the words of the sub-section": Kirk at [25]. In the present case the offence established by s 56 was specific, particularly when contravention of it was alleged in conjunction with the particulars set out in the Penalty Notice and the Court Attendance Notice. At that point the Plaintiff knew what charge it had to meet. This is to be compared with a charge that said (for example) that an employer had failed to ensure the health, safety and welfare of a particular employee (s 15 OH & S Act). 17Secondly, nothing said in Kirk suggested that there was an obligation on the prosecutor in the charge laid to negative the defences that were provided in s 53 OH & S Act or to specify (for example) that it was reasonably practicable to comply with some part of the Act or Regulations. 18Thirdly, the construction of the Act, and particularly s 87(3) does not require any specification of steps by the prosecution. The obligation under sub-s (2) and (3) is for a defendant to establish one of the two matters in sub-s (3): Roads and Traffic Authority of NSW v Time Road Express Pty Ltd [2007] NSWSC 93 at [9]-[12]; The Roads & Traffic Authority of New South Wales v Alto Rural Pty Limited [2007] NSWSC 1123 at [17]-[18] and [28]. Those decisions suggest strongly that the establishment of either sub-s (3)(a) or sub-s (3)(b) is both a necessary and sufficient condition to make out the defence. On that basis there can be no obligation on the prosecution to identify all the reasonable steps that ought to have been taken. 19Fourthly, and even putting aside the precise specification of the steps in sub-s (3), the section places the onus on a defendant to establish that it took all reasonable steps. There is no principle that suggests that the prosecution in the charge itself should identify the reasonable steps that ought to have been taken. Once the evidence of the steps taken is adduced the prosecution is at liberty to challenge those steps by leading evidence to suggest that those steps were inadequate and, to emphasise the argument, to point to other matters that could have been done. 20Fifthly, the terms of s 87 are to be compared with s 88 of the Act which also provides a reasonable steps defence for an offence not relating to a mass requirement such as s 56. Section 88 provides: 88 Reasonable steps defence for other mass, dimension and load restraint requirements (1) Application This section does not apply to an offence relating to a mass requirement if the defendant is the driver, operator or owner of the vehicle concerned. (2) Defence 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, it is a defence to a prosecution for an offence to which this section applies if the defendant establishes that: (a) the defendant did not know, and could not reasonably be expected to have known, of the contravention concerned, and (b) either: (i) the defendant had taken all reasonable steps to prevent the contravention, or (ii) there were no steps that the defendant could reasonably be expected to have taken to prevent the contravention. (3) Matters that court may have regard to Without limiting the above, in determining whether things done or omitted to be done by the defendant constitute reasonable steps, a court may have regard to: (a) the circumstances of the alleged offence, including (where relevant) the risk category to which the breach concerned belongs, and (b) without limiting paragraph (a), the measures available and measures taken for any or all of the following: (i) to accurately and safely weigh or measure the vehicle or combination or its load or to safely restrain the load in or on the vehicle or combination, (ii) to provide and obtain sufficient and reliable evidence from which the weight or measurement of the vehicle or combination or its load might be calculated, (iii) to manage, reduce or eliminate a potential breach arising from the location of the vehicle or combination, or from the location of the load in or on the vehicle or combination, or from the location of goods in the load, (iv) to manage, reduce or eliminate a potential breach arising from weather and climatic conditions, or from potential weather and climatic conditions, affecting or potentially affecting the weight or measurement of the load, (v) to exercise supervision or control over others involved in activities leading to the breach, and (c) the measures available and measures taken for any or all of the following: (i) to include compliance assurance conditions in relevant commercial arrangements with other responsible persons, (ii) to provide information, instruction, training and supervision to employees to enable compliance with relevant laws, (iii) to maintain equipment and work systems to enable compliance with relevant laws, (iv) to address and remedy similar compliance problems that may have occurred in the past, and (d) whether the defendant had, either personally or through an agent or employee, custody or control of the vehicle or combination, or of its load, or of any of the goods included or to be included in the load, and (e) the personal expertise and experience that the defendant had or ought to have had or that an agent or employee of the defendant had or ought to have had. 21In the first place, a defendant in reliance on this section must establish that it did not know and could not reasonably be expected to have known of the contravention. Then, in contradistinction to s 87 such a defendant must show either (a) that it had taken all reasonable steps to prevent the contravention or (b) that there were no steps it could reasonably be expected to have taken. 22Section 88 does not specify what the reasonable steps are for the defence to be made out. Rather, sub-s (3) lists a number of matters to which the Court may have regard to come to the view that what a defendant did or omitted to do constituted reasonable steps. In such a case an argument is at least available by a person in the Plaintiff's position that as part of the charge brought the prosecution should specify what it should have done before the defence could be made out. 23The Plaintiff suggested that it was denied procedural fairness because the steps that the prosecutor relied upon, and even the grounds found by the Magistrate for the breach, were not notified in advance to the Plaintiff in a way that would have enabled the Plaintiff to lead evidence about those matters. In particular, the Plaintiff submitted that specific findings were made that the driver failed to inspect the load before driving away, and that was found to be a "reasonable step". However, the Plaintiff submitted that it was not on notice about a failure to inspect and did not call evidence about it. 24The Plaintiff submitted that, in any event, there was insufficient evidence available for the Court to determine the practicability of inspecting in the circumstances. It was said that the failure to inspect was a prosecution's submission made at the end of the hearing and that it could only be answered by way of submissions "on evidence which happened to be available by chance". The Plaintiff submitted there was no evidence in relation to the practicability or possibility of inspection. 25The Plaintiff further submitted that the prosecution should have nominated the step that was appropriate and reasonable so that the Plaintiff could have elected to defend that specified step as unreasonable. Not to do so was to ambush the Plaintiff. 26The Plaintiff's submissions in relation to what must be specified by the prosecution are rejected. The prosecution was not, in the first instance, obliged to disprove all potential matters that the defence might raise in reliance on s 87. Whilst the prosecution demonstrated that one of the axles was overloaded the onus shifted to the Plaintiff to show that it took all reasonable steps as s 87 stipulated. That meant that the Plaintiff had to prove that (a) it did not know of the contravention, and (b) it could reasonably be expected to have known of the contravention, and (c) it had taken all reasonable steps to prevent the contravention which in turn involved demonstrating (d) that the load had been weighed, or (e) that the driver of the vehicle was in possession of sufficient and reliable evidence from which the weight was calculated: Time Road Express at [9] - [12]; Alto Rural at [17] -[18]. 27Before the learned Magistrate the Plaintiff defended the matter on the basis that the driver relied on (a) stickers affixed to the pallet as well as on documentation including the consignment note, (b) on his instructions to the forklift driver to load in a particular way, (c) on the fact that the driver was required to stay in an area away from the truck where it was being loaded, and (d) on the fact that the company responsible for loading the truck was always rushing the drivers once the goods had been loaded. 28The evidence of the driver was that the weight as shown on the stickers on the pallets was 680kg. That evidence was led in chief but in cross-examination he agreed that he got close enough to see the stickers and the weights that were on them before they started loading. 29His evidence was that when he arrived at the consignor's premises somebody there filled out the consignment note and handed it to him. He then looked at the consignment note and the notes that were on it and told the forklift driver where he wanted the items placed. 30He gave the following evidence in chief: Q. When you drove the loaded freight out of the Minova yard what was your view about the axle weights and so on at the time? A. Well as far as I knew, it was correct. Q. What would you have done if you had of (sic) realised that they had misloaded the loads? A. I would have made them unload it and redo it the way I told them. 31The complaint that the Plaintiff was denied procedural fairness because the driver's failure to inspect was not notified in advance is a little difficult to understand. The Plaintiff gave this further evidence in chief: Q. So were you present when they actually loaded the truck? A. We, we're not allowed anywhere near the truck. We stand in a, a driver safety zone which is away from, away from the vehicle. ... Q. Were you in a position to be able to determine whether the forklift driver had actually loaded all the dome plates where he said he was going or you told him to load them? A. Well actually what, what it is like once you, once they get a truck in and they finish loading them, like you get, you're rushing around to strap it, close it up, because where, where it is they load one truck at a time and there's no actual parking for trucks waiting. They have to double park out on the street and which is, you know, makes it very hazardous. Q. You're saying I take it that they really hurry you along? A. Yeah, yeah, sort of rush, rush, rush. 32That evidence suggests that the Plaintiff was dealing in a pre-emptive way with any suggestion that might be made that the driver should have inspected the way the pallets had been loaded. 33Then in cross-examination there were these exchanges: Q. Are you allowed to watch what's going on or -- A. It's probably from here to the, the, the, the door before you come, come into that section, like, the waiting room there. JOSEPH: I'd say a distance of about 30 metres. I'm not sure if my friend will disagree. COLEMAN: 30 metres will do, your Honour. JOSEPH Q. Were you watching it that morning? Were you watching them load it? A. Around then, I, I, like, I was look, look ... (not transcribable) ... cause I was talking to the other drivers, or, you know that - like I said, you know, like, you tell the bloke specifically where, where you want certain pallets or that, and you expect them to carry out as, as the - you instructed. Q. Let's go back to that, where you were telling - it's a forklift driver, is that right? A. Yeah. Q. Where you're telling the forklift driver what to do, so you've got what my friend referred to as the con note from Minova. Is that right? A. Yeah, yeah, the -- Q. That -- A. The forklift driver brings that, brings it over to you and then you just sit down and say, right, I want this there, there, and this there, this there. JOSEPH: Can I be given a copy of exhibit 7, your Honour? That's the consignment note. Q. So is that when you get the con note from Minova that morning, that's the first you know about what the truck's going to be loaded with, is that right? A. No, I roughly know what the truck's getting loaded with when I leave, when I leave my depot. Q. Yes. A. It - when I get there, like, I get the actual weights and everything. Q. So you had a broad idea of what sort of cargo you were going to be carrying? A. Mm. Q. How do you go about dividing - because they're rounded weights of - if there's 10 items it just gives you the total weight. A. Yeah. ... Q. But did you give the forklift driver anything written or you just stood there with him and told him? A. I actually point, pointed it out, I said, you know, "I want these 10 plates on the gooseneck." Q. Did you write it down for him, or you just -- A. No, no, I actually showed him, like, like, I went through the, the con note with him and I said, "I want these on the gooseneck, I want this there, this there, so on and so on. Q. He went away, you went back to your quarantine area, whatever it is. A. Yeah. Q. You looked a couple of times to see it was loading and then I take it he came back or you got some indication that he was finished. A. No, he, he - when he sort of got three quarters of the way to the trailer he went away, stopped his forklift, that indicates me to come in, put the, put the front of the trailer, like the gate and, and strap the front of the trailer, pull, pull the curtains forward so we can finish the back of the trailer and once you finish the back of the trailer I come, come back and finish putting the gates on, strapping it, close the curtains. Q. I see, so you actually do go about halfway through the process and - so he can do the back end? A. Yeah, yeah, like, the way it is, like, when you lay it you lay it from the front to back, so when you open the curtains you, you pull the front to the, the front of the curtain to the back of the trailer, and they load three quarters of it and then you -- Q. You come back? A. Yeah, pull, pull the curtains back and - so they can load the back of it. Q. When you went back to adjust the curtains for him, did you have a look at what he already loaded? A. No, as, as I said, like, I expected him to do as I said. Q. So you assume he knows what he's doing, he's there -- A. Yeah. Q. -- working for Minova. A. That's right. Q. You assume he's got all the -- A. Yeah. Q. You assume he's doing his job properly. A. Well, that's right, yeah. Like, just same, same as me, like, I'm going to presume, like everyone who - I, I'm given a job I'm required to do to my utmost best, you know? Like, carry, carry it out as a professional, and same, same as with them. Q. If you had had any indication that he hadn't done it properly you wouldn't have gone anywhere? A. I would, I would have called him back and said, now, listen, this is, this isn't loaded properly, I want everything pulled off and loaded the way I requested. (emphasis added) 34There was no re-examination of the driver. 35Mr Coleman of Counsel for the Plaintiff submitted that the nub of the issue, as he had pointed out to the Magistrate, related to loading only 6 of the pallets on the gooseneck rather than 10. Yet the Plaintiff led no evidence about this other than that he had instructed the forklift driver to load 10 pallets onto the gooseneck. 36There was a suggestion in the Plaintiff's submissions to me that there was a difficulty in the driver being able to inspect the load to see that instructions had been followed. However, that was not the reason the driver gave in his evidence. The evidence was that he did not inspect it because he assumed the forklift driver would have loaded following instructions. 37The Plaintiff had anticipated the issue of inspecting the way the pallets had been loaded. Yet no evidence was led from the driver about his ability to check whether his instructions had been followed in that regard. It could have been led in chief and by reason of questions asked in cross-examination it could have been asked in re-examination. In that way it is difficult to see where the surprise or unfairness was nor how the issue only arose in submissions at the close of the evidence. 38What the evidence shows is that the driver had a number of opportunities to ascertain that the pallets had not been loaded as he had instructed but that he did not bother checking that it had been done that way - rather, he just assumed that the forklift driver had done what he had been told. 39It is scarcely surprising that the prosecution submitted, and the Magistrate accepted, that in failing to ensure that the forklift driver had properly followed instructions reasonable steps could not have been taken. It is difficult to see how there was any unfairness in this. The Plaintiff's evidence in chief raised the issue of what he would have done if he had realised it had not been properly loaded. The cross-examiner then asked him, in effect, what he had done to see that it was not properly loaded. The answer was that he had not inspected it despite having three opportunities to do so. Evidence had already been led about the fact that the consignor was rushing him although the evidence did not go so far as to show that the driver was not able to check what had been done despite being rushed. 40It is also difficult to see how the prosecution could have known in advance that the driver did not bother to inspect when he had the opportunity to do so. That only arose from the driver's own evidence. In those circumstances it is difficult to see where the unfairness was. 41I do not consider that there was any obligation on the prosecution to specify what steps ought to have been taken by the Plaintiff. On a strict reading of s 87 as interpreted in Time Road Express and Alto Rural the only two possible steps were those specified in subs (3). Even if those are necessary but not sufficient steps and something more needs to be shown the onus was on the Plaintiff here to demonstrate the further steps. There was no unfairness in the way the evidence unfolded as a result of what the prosecution submitted to the Magistrate.

Ground 2: Under-declaration of weight by Minova 42The Plaintiff submitted that the Magistrate erred in law by failing to take into account a relevant matter being the under-declaration of the pallet weights by Minova. 43There was evidence at the hearing that the weights provided by Minova to the Plaintiff were understated. Since the Plaintiff charges by weight it is important not only for compliance with the Act that weights provided by the consignor are correct. There was evidence from Mr Kidner, the Chief Executive Officer of the Plaintiff, that there was certainly no financial benefit to the Plaintiff to be loading weights heavier than was allowable because they did not get paid for it. 44In her Judgment nothing was said by her Honour about this issue. However, after she had determined that the Plaintiff had not taken all reasonable steps to avoid the contravention, she asked for submissions from the Plaintiff's solicitor on penalty. The transcript discloses this exchange: CHRISTOPHER: Only that, as was raised at hearing, there was no commercial benefit to the defendant in ... HER HONOUR: No, I understand that. CHRISTOPHER: --relation to this transaction and there was the complicating factor of the weights of the items being under-declared and that then dovetailed into the loading incident. HER HONOUR: I understand that, and I didn't mention it in my decision because it really complicates the matter. In the end, if you get down to it, it was basically just an axle overload. I accept that there was no other charge before the Court. 45The Magistrate's stated reason for not referring to the understatement of the weight in the documentation was, on one view, unsatisfactory because the matter had been raised. However, on another view it was not relevant for reference to be made to it because it was not the reason, ultimately, that the Plaintiff failed in its defence. 46The Plaintiff could not show that the driver was in possession of sufficient and reliable evidence from which the weight was calculated (s 87(3)(b)). In the present case the Plaintiff had two different sources of information about the weight of the load. He had the evidence of the stickers on the pallets and he had evidence of the weights in the consignment note. The weights were not the same. Had he compared the two he would have ascertained that. If he had ascertained that discrepancy he could not have been satisfied that he had sufficient and reliable evidence about the weight. 47I accept that there are problems with the construction of s 87(3)(b) because if the driver is given wrong information from the consignor it is difficult to see how it can be reliable. However, if the driver relies on it he will not have satisfied s 87(3)(b) (and therefore will not have satisfied s 87(2)) without any fault on his part. It seems unlikely that such a result could have been the intention of the subsection. In that regard s 87(3)(b) perhaps should be construed as if it read "apparently reliable" or "purportedly reliable". 48However, that difficulty does not arise here where the driver had information in two different forms provided by the consignor which were inconsistent. That ought to have put him on notice that the evidence was, or may have been, unreliable. Put another way, it could not be said in the circumstances that the driver was in possession of sufficient and reliable evidence from which the weight was calculated. 49Accordingly, if the Magistrate had adverted to the under-declaration of the weight by the consignor it could not have assisted the Plaintiff. Ultimately the offence was committed and the reasonable steps defence failed because the driver failed to ensure that the trailer was loaded as he had directed.

Ground 3: The weighbridge 50The Plaintiff's submission was that the Magistrate erred in law by taking into account an irrelevant consideration, namely that the Plaintiff now weighs trailers on a weighbridge following loading. 51This reference was made in passing in the part of the judgment that said this: 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. Further, the fact that WFM now have the loads checked in a public weighbridge gives weight to this Court's belief that it is a reasonable step in reaching compliance with the Act. 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. 52The reference to the checking on a public weighbridge was unnecessary and unfortunate because it was not a matter that was a relevant step within the meaning of s 87. What had to be satisfied were the matters that I have set out in paragraph [26] above. Moreover, the relevant time is at the start of the journey which is at the time the vehicle was driven from the consignor's yard onto the public road: Time Road Express at [23]. By the time the vehicle reached the public weighbridge the offence would have been committed whether detected or not. 53However, it is apparent from reading the judgment as a whole and, even the paragraph in which the reference appeared, that it did not form part of the Magistrate's reason for holding that the defence had not been made out. It is clear that the Magistrate found that the offence was not made out because the driver did not check the load. In turn, that meant that the Plaintiff could not establish that the driver was in possession of sufficient and reliable evidence from which the weight was calculated. If he did not check where the pallets were loaded he was not in a position from reliable evidence to calculate the weight on each axle.

Ground 4: Penalty 54The Plaintiff's complaint is that the Magistrate erred in imposing a penalty significantly higher than it would have been if paid under the penalty notice given the defence it ran, and that she did so without giving reasons. 55Immediately after the Magistrate found that the Plaintiff had not satisfied the Court that it took all reasonable steps to avoid the contravention she proceeded to deal with the penalty to be imposed. The prosecutor said that the maximum penalty was $22,000 and said that there were several previous matters. 56The Magistrate asked the Plaintiff's solicitor if he would like to say anything. He raised the matter of there being no commercial benefit to the Plaintiff by the vehicle's being overloaded and he said there was no gross overload. He said that he had no objection to the application for costs nor to the amount sought of $3,300 but the Magistrate then said this: All right, I note that there were two previous breaches of max axle, severe breach, by the operator back in 2008, each receiving a fine, first for $300 and then $600. Today I am fining the Defendant $3,000, $83 court costs, professional costs of $3,300. 57The fine and the penalty notice was $853. The Magistrate was correct in noting the prior breaches but (in the Plaintiff's favour) she did not mention a number of dimension offences in respect of which the Plaintiff had been found guilty of minor breaches. There were other matters on the Plaintiff's record as well. 58The Plaintiff did not submit that the fine imposed was manifestly excessive and accepted that an error of a House v The King nature would need to be found before the penalty would be interfered with. The only complaint was that $3,000 bore no relationship to the amount in the penalty notice. Reference was made to what Lloyd J said in Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 at [6] that the penalty notice is not necessarily an irrelevant consideration when determining the penalty. The submission appeared to be based on the false assumption that the matter proceeded to court without a Court Attendance Notice but only as a result of the Plaintiff's election to have the matter determined by a court. 59Section 37 of the Fines Act 1996 provides: 37 Matter to proceed If a person duly elects, in accordance with this Part, to have the matter dealt with by a court, proceedings against the person in respect of the offence may be taken as if a penalty notice or penalty reminder notice had not been issued. 60It is regrettable that the Magistrate gave no reasons for imposing the fines she did. It may be accepted that only brief reasons were necessary and it may also be accepted that virtually nothing was put to her to assist her in coming to a view on the appropriate penalty. Nevertheless, the solicitor for the Plaintiff raised the issue of the lack of commercial benefit from any overloading and, by implication, the fact that the matter was at least contributed to by the misstatement of the weight by the consignor. However, the Magistrate noted that she did not mention that in her principal judgment because she thought it was not relevant. 61I cannot discern any error in her imposition of the fine apart from the fact that she did not give any reasons for the view she reached. When the maximum penalty and the two prior offences are borne in mind there is nothing in the fine imposed which suggests an error of the House v The King kind. 62This ground is rejected.

Conclusion 63I make the following orders: (1)The Amended Summons filed 18 June 2013 is dismissed. (2)The Plaintiff is to pay the Defendant's costs.

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: 30 August 2013

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