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

Background 8On 31 January 2012, Western Freight was issued with a Court Attendance Notice (CAN). It alleged that, "on 6 January 2012, at Mt White, 27.67% overload on Axle Groups 1 (front axle); Operator offence under s 56 of the Road Transport (General) Act 2005." 9On 19 April 2012, at the hearing in the Local Court, Roads and Maritime Services sought to prove that the driver, Mr Nathan, was driving the vehicle with an item, a mantle, which had been placed on the vehicle in a manner contrary to an express instruction given to Mr Nathan for its placement. 10The mantle had been picked up at the premises of Specialised Welding Products (SWP) at Beresfield, New South Wales and was being driven to Western Freight's premises at Blacktown for onwards delivery to Parkes, New South Wales. Western Freight admits that the mantle was part of a load that Mr Nathan and been directed to carry on the relevant vehicle. 11In the Local Court proceedings Western Freight submitted that Mr Nathan's failure to adhere to that instruction had the consequence that he "was acting at the relevant time outside the scope of the [his] employment". The magistrate found that the conduct constituting the offence occurred in the course of a journey Western Freight had directed Mr Nathan to undertake. On 19 April 2012, the magistrate dismissed the charge and also dismissed Western Freight's application for costs.

The relevant legislation 12The Court Attendance Notice (CAN) alleged that Western Freight committed an offence under s 56 which is a strict liability offence. 13Section 56 of the Road Transport (General) Act, relevantly reads: "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. ... (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." 14In s 20 of the Road Transport (General) Act, "mass requirement" is defined as: "mass requirement means a requirement of an Australian applicable road law that relates to the mass of a vehicle or combination or the mass of or on any component of a vehicle or combination, and includes: (a) a requirement of an Australian applicable road law concerning mass limits relating to: (i) the tare mass of a vehicle or combination (that is, the actual mass of the vehicle or combination excluding any load in or on the vehicle or combination), or (ii) the gross mass of a vehicle or combination (that is, the unladen mass of the vehicle or combination together with any load in or on the vehicle or combination), or (iii) the mass of the load in or on a vehicle or combination, or (iv) the mass on a tyre, an axle or an axle group of the vehicle or combination, and (b) a requirement of an Australian applicable road law concerning mass limits relating to axle spacing, and (c) mass limits set out on signs erected or displayed under an Australian applicable road law (for example, a sign-posted bridge limit)." 15Mass requirements are prescribed by the Road Transport (Mass, Loading & Access) Regulation 2005. That regulation "... applies to a vehicle ... if it is on a road or road-related area". 16In the Local Court, Western Freight was the operator in accordance with s 56(1)(b). There was a breach of s 56(1)(a). The problem was not the weight the truck was carrying but the overload on the first axle group. There was evidence that established that had the mantle been loaded properly, there would not have been a breach of s 56(1)(a). 17Western Freight availed itself of two defences, namely s 87 (the reasonable steps defence referred to above in s 56(3)); and s 92 of the Road Transport (General) Act. The case before the magistrate focussed on s 92 so I shall adopt the same approach, referring to s 92 first and then s 87. Finally, I shall refer to the judicial review of the costs decision.

The magistrate's decision (other than costs) 18The facts were not in issue. Except where I otherwise say, the findings are those of the magistrate. The scope of William Nathan's, the driver's, authority was to drive this truck on that day to deliver to Cardboard King (T 48.27). After that delivery Mr Nathan was to pick up at SWP and Westrac. As both those premises were situated in the lower Hunter Valley it required him to travel to the lower Hunter Valley and return. On the return trip he was detected as being in breach of s 56 of the Road Transport (General) Act. 19Prior 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. 20Mr 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. 21Section 92 of the Road Transport (General) Act relevantly states: "92 Special defence for all owners or operators (1) It is a defence to an applicable road law offence alleged to have been committed by a person as an owner or operator of a vehicle or combination if the person establishes that the vehicle or combination was being used at the relevant time by: (a) another person not entitled (whether by express or implied authority or otherwise) to use it, other than an employee or agent of the alleged offender, or (b) an employee of the alleged offender who was acting at the relevant time outside the scope of the employment, or (c) an agent (in any capacity) of the alleged offender who was acting at the relevant time outside the scope of the agency. ..." 22After recounting the above facts, the magistrate stated in his reasons for decision: "I am satisfied that on the evidence - the special defence for the owner - is made out that at the relevant time, the vehicle was being used by an employee acting outside the scope of the employment and the statutory defence under s 92 is made out which relieves me of the obligation to address s 87."

Consideration of RTA v Macri 23In this current appeal, Roads and Maritime Services challenges the magistrate's finding that Mr Nathan was acting outside the scope of his employment. So far as the s 92 defence is concerned, Roads and Maritime Services relied on the decision of RTA v Macri [2009] NSWSC 15. RTA v Macri was an appeal from a decision of a magistrate where the factual situation was similar to the one raised in this appeal. Regrettably, the decision of RTA v Macri was not drawn to the attention of the magistrate. 24Despite RTA v Macri, counsel for Western Freight submitted that it had established on the balance of probabilities in the Local Court that the vehicle was being used by Mr Nathan outside the scope of his employment.

RTA v Macri 25In RTA v Macri the facts were that the Court Attendance Notice alleged that the defendant was the operator of a registered vehicle which did not comply with the mass requirements of a vehicle or combination on a road or road related area under s 56 of the Road Transport (General) Act at 6.45 am on 9 August 2007 at Windsor Road, Rouse Hill. It was alleged that the weight detected was 20.90 tonnes, the permissible weight being 16.50 tonnes on the fourth and fifth axles. 26Mr Serovich was the driver of the vehicle at the time of the offence alleged. Macri had engaged Mr Serovich to drive the combination, that is, a prime mover and trailer, from its premises at Austral, unload it at Prestons, to there collect and load an excavator and thereafter deliver the excavator to a site at Rouse Hill. Mr Serovich proceeded on the journey and during the journey from CJ Doyle's yard at Prestons to Rouse Hill the combination was pulled over and inspected by RTA officers at Windsor Road, Rouse Hill. The overload was then detected. Macri gave evidence that he had directed Mr Serovich to pick up an 18 tonne excavator from the premises of CJ Doyle. However, Mr Serovich in fact loaded another machine, a 23 tonne excavator (the wrong machine). 27It was Macri's case that for the purposes of s 92 of the Road Transport (General) Act that Mr Serovich's collection of the wrong machine was conduct outside the scope of his employment or, alternatively, agency. 28The magistrate, in Macri after referring to the s 92 defence, made a finding that the instruction within the employment "was not to pick up an excavator but rather to pick up an 18 tonne excavator" and the collection of the 23 tonne excavator was outside the direction of the employer. Her Honour said: "For whatever reason, be it a mistake, be it a genuine mistake on behalf of Mr Serovich or be it a conscious decision on behalf of Mr Serovich to load something other than the 18 tonne excavator, it's clear that he did indeed at that relevant time act outside the scope of his employment and for that reason the charge is dismissed." 29On appeal in RTA v Macri, Price J stated at [12] - [13]: "12 Mr Lynch, counsel for the plaintiff, contends that the prefatory words in s 92(1) direct the inquiry about scope of employment or agency to the 'use' of the vehicle 'at the relevant time'. As s 92 is a defence to the offence charged, the relevant time is the occasion of the offence; in this case 6.45am on 9 August 2007. The relevant 'use', the plaintiff submits, is that charged as the use at the relevant time. In the context of a s 56 offence, the proscribed 'use' is the combination being on 'a road or road related area' and overloaded, that is, on Windsor Road, Rouse Hill, bearing the weight that it did. In the context of these facts it follows that the issue arising from the defendant's reliance on s 92 becomes: 'Was Mr Serovich's driving of the combination on Windsor Road, Rouse Hill at 6.45am on 9 August 2007 with an excavator as his load outside the scope of his employment or, alternatively, agency because the excavator being carried was not the one he had been directed to load and transport?' 13 The plaintiff argues that her Honour erred in acceding to a submission which directed her attention to the time at which the excavator was loaded onto the combination before that particularised in the charge and to a 'use', the loading of the trailer with an excavator in the Doyle yard, which was not the use charged in the court attendance notice. It was further submitted that her Honour misconstrued the expression 'outside the scope of' in relation to Mr Serovich's employment or agency and failed to have regard to evidence relevant to the issue of scope in relation to the use charged." 30In RTA v Macri counsel for Macri conceded that the submissions made by RTA were in fact correct and the magistrate erred. Therefore, it was not necessary for Price J to discuss these matters any further. Price J decided that Macri had not established on the balance of probabilities that the combination was being used by Mr Serovich at the time of the offence outside the scope of his employment or agency. 31Using the same analysis, as in Macri, the issue arising from Western Freight's reliance on s 92 is, "was Mr Nathan's driving the truck at Mount White on 6 January 2012 with the mantle as his load outside the scope of his employment because the mantle was not loaded in accordance with instructions?" 32Roads and Maritime Services submitted that the misplacement of a load ("allowing a load to be placed otherwise than in accordance with a direction") does not take the performance of the task of driving that load outside the driver's "scope of employment." According to Roads and Maritime Services, the carriage of the load was the task performed by Mr Nathan for Western Freight and it was at all relevant times the very purpose of his employment. Thus, it remained in the course of his employment for the purposes of s 92, notwithstanding the mis-performance of the "loading task". 33Western Freight acknowledged that the decision in RTA v Macri related to employment and agency, and makes the terms "scope" and "use" equivalent. However, it contends that RTA v Macri fails to take account of the circumstances where a driver uses the vehicle for his own ends, or actively against the interests of his employer. According to Western Freight, it does not account for the situation where the act is not so connected with any act authorised so as to be a mode of doing it, relying upon the well know case of Deatons v Flew [1949] HCA 60; (1949) 79 CLR 370. 34Deatons v Flew was a decision in respect of intentional torts and the employer's alleged tortious vicarious liability. The barmaid threw a glass at a patron at a hotel causing his loss of sight. However, even in these circumstances where the employer has a non delegable duty of care, there still must be sufficient connection between what the employee is employed to do (considering the duties, the contract and so on) and the associated misconduct. In Deatons v Flew, it was held that the barmaid's act was an independent personal act which was not connected with or incidental in any manner to the work which she either expressly or impliedly was authorised to perform. Western Freight submitted that in the circumstances, the employee is "on a frolic of his own", and acting outside the scope of his employment. 35Counsel for Western Freight submitted that in the instant case, there was a specific instruction as to the scope and method in which the task was to be carried out, and it was not. Consequently, it was not an act in the furtherance of the employer's (operator's) interest or supposed interest and relied upon Sprod BNF v Public Relations Oriented Security Pty Limited [2007] NSWCA 319. 36In Sprod, the Court of Appeal stated at [79] and [80]: "[79] In my view, these three matters outweigh the violence of the assault. There may well have been an element of personal animosity and personal vindictiveness, but, in my view, the three matters indicate that this element was not the dominant cause of the assault. In my opinion, the dominant cause of the assault was a desire on the part of the guards to do their duty by ensuring that the appellant would not again make a pest of himself at the shop, would not return to the shop, and would not again molest the customers, particularly Ms Synnerdahl (who was told 'not to worry' by one of the guards after the assault had occurred). [80] In the light of the conclusion to which I have come concerning the reasons for the assault, I am of the opinion that the assault was 'incidental' to the employment of the guards in the sense that this word was used by Latham CJ in Deatons (at 378). The assault was not a gratuitous unprovoked act. It had a great deal to do with the performance of the guards' duties. And, to use the expression adopted by Latham CJ in Deatons (at 379), it was an act 'performed as on behalf of the employer' and 'in the supposed furtherance of the interests of the employer'. The guards were not acting as 'strangers' in relation to their employer with respect to the assault (in the sense that this phraseology was used in Bugge v Brown (at 118)). The guards, in the course of carrying out their employment, committed 'an excess beyond the scope of [their] authority (see Dyer v Munday (at 746))'." 37Western Freight says its employee did not "allow" the load to be misplaced by the loader. It was loaded against his instructions, (given to him by his superior, as observed by his Honour at T46.26-39), while he was undoing the second gates on the truck, and when he pointed out it had been loaded in the wrong place, the crane driver had left. However he then, despite the clear requirements of his employer as to the loading, exceeded the scope of his employment by acting against the interests of his employer. According to Western Freight, the specific instructions of the employer were such as to provide a modification to the general scope of the employee's employment. The scope was limited by an authority to perform the task in question in one way, and one way only. The task was not performed according to that authority, and the overload resulted. 38It is clear that Mr Nathan did not engage in a frolic of his own (T 48.27-33). The magistrate stated, "I am satisfied that the scope of William Nathan's authority was to drive this truck on that day to deliver to Cardboard King and thereafter to pick up at SWP and Westrac - with both those premises being in the lower Hunter Valley and return. On the return trip he was detected as being in breach" (my emphasis added). While the magistrate identified the "the scope of the employee's authority", that is not the same as "the scope of the employee's employment". 39Whether or not Mr Nathan complied with the specific directions given to him by his employer as to the loading of the mantle does not determine the scope of Mr Nathan's employment. The loading of the mantle was an act "performed on behalf of the employer Western Freight" and "in the supposed furtherance of the interests of the employer". For an employee not to carry out an act specifically as directed by his or her employer does not mean that an employee is acting outside of his or her employment. However, this is not to the point. Section 92 is directed to whether or not the employee is acting outside his or her employment at the time that the offence is detected. It is not directed to whether or not the employee is acting outside his or scope of employment at the time when the loading took place. 40Applying Macri, "the use" is the "use" also directed to the time when the offence occurred. That is, the use occurred when the truck was on the F3 Freeway at Mount White at 17.51 pm on 6 January 2012. It follows that in the Local Court, Western Freight had not established, on the balance of probabilities, that the truck was being used by Mr Nathan at the time of the offence outside the scope of his employment. The magistrate erred in deciding that the defence in s 92 was made out. This part of his Honour's decision should be set aside. 41In Macri, it was conceded on behalf of the defendant that the plaintiff's submission that the "relevant time" was at the occasion of the offence, that is, when the overloading was detected. As a consequence, it was not necessary for Price J to discuss the issues any further. However, in my view, the "relevant time" in relation to the offence charged under s 56 is any time when the combination is on a "road or road related area" and is overloaded. In this matter, as soon as Mr Nathan's truck left SWP, it was overloaded in relation to the position of the mantle and an offence under s 56 was being committed, not simply when the overload was detected on 6 January 2012 at Mount White at 17.51 pm.

Section 87 defence 42Section 87 of the Road Transport (General) Act reads: "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. ..." 43The magistrate stated at T46.13: "It is not in dispute that the particular item weighted 4.75 tonnes. It is not in dispute that the freight liner truck which was allocated for the task was capable of carrying such an item if correctly loaded and indeed it is not in dispute that even with the additional Westrac items which were to be collected and transported - that the truck would in any way be overloaded on any axel group if it was correctly loaded." 44With regard to s 87 the magistrate concluded: "The evidence does satisfy the Court that at all material times, the defendant - in this case - Western Freight Management Proprietary Limited was not through its employee in control of the vehicle concerned when the cause of the offence arose. That cause was the failure by the SWP crane operator to load the mantle on the place directed by Mr Nathan. ... he demonstrated where the load was to be placed but he did not see it being misloaded until he returned and made a complaint. ... I would also be satisfied that on the evidence that the defendant would make out the 1 (a) and (b) defence aspects of the defence - did not know of the contravention and had taken reasonable steps to prevent the contravention because of the clear directions and instructions given by the operations manager, Mr Ali." (T49.10-25) 45Section 87 provides a defence of having "... taken all reasonable steps to prevent the contravention". Ordinarily it is essential to the availability of that defence that certain specified steps, detailed in s 87(2) and (3), have been taken. However, these steps need not be taken "... if the defendant satisfies the court that at all material times the defendant did not... through... any ... employee have custody or control of the vehicle concerned." - s 87(4). 46In order for the Court to be satisfied that the defendant has taken reasonable steps, where the truck was not in the custody and control of the employee at all material times (s 87(4)), it need not: (1) consider the ascertainment of the mass at the start of the journey during which the contravention occurred, nor (2) be satisfied that the load was weighed or that there was sufficient and reliable evidence in the possession of the driver from which the weight could be calculated. 47While the Court below made a finding that the cause of the overloaded axle was the failure by the SWP crane operator to load the mantle as directed it made no finding about whether the requirements of subsection 87(2) and (3) had been satisfied. 48On this issue the Local Court concluded, "... Western Freight was not through its employee in control of the vehicle concerned when the cause of the offence arose. That cause was the failure by the SWP crane operator to load the mantle on the place directed by Mr Nathan ... he [Nathan] did not see it being misloaded..." 49Roads and Maritime Services submitted that the above passage contains two distinct but related misdirections as to when the offence "arose", and as to what were the "material times" relevant to the offence. 50In so far as when the offence "arose" the magistrate made findings that the mis-loading of the mantle resulted in the axle overload and that the driver did not have custody and control of the truck at the point it was loaded by SWP. 51In so far as the "material time" is concerned the Local Court made a finding that the mantle had been loaded at the premises of "SWP". Its premises being "private", they were not a road or road-related area. 52According to Roads and Maritime Services, the loading of the vehicle was not a "material time" for the purposes of s 87(4) of the Road Transport (General) Act. It says that the material time relevant to the offence charged was when the relevant vehicle was on the road or road related area as particularised in the CAN: the "F3 Freeway Mt White" at "17:51:00 pm on 6.01.2012". 53At that time the vehicle was: "... under the control or custody ..." of Western Freight's employee, Mr Nathan. Roads and Maritime Services submits that on either basis it was not open to the Local Court to conclude that vehicle was outside the custody and control of Western Freight "... at all material times..." for the purposes of s 87(4) of the Road Transport (General) Act. 54Counsel for Western Freight suggested that submissions by Roads and Maritime Services that the loading of the vehicle was not a material time is sophistry. The charge against Western Freight was that it had breached s 56 of the Act which states that a person is guilty of an offence if a breach of a mass or load restraint occurs, and the person is the operator of the vehicle or combination concerned. The breach was detected by inspectors at a Roads and Maritime Services facility. 55Western Freight contends that s 87(2) refers to the "start of the journey" as a relevant time at which the mass of the load is to be determined for the purposes of the operation of the defence where there is no issue with custody and control - that the load had been weighed. The loading at SWP was relevantly the start of the journey in this case, and where the vehicle was loaded. The logic of the submission against this, is that the defence could never be engaged unless the loading occurred on a public road or road related area which would have difficult logistical and safety implications. According to Western Freight, a defence of this nature should be interpreted beneficially, and the artificial narrowing of the application apart from being unsupported on the basis set out above, would nullify it. 56His Honour found as a matter of fact that the time at which the trailer was loaded was a material time. Western Freight submits his Honour's use of the word "all" is not sufficient to ground an appeal. The evidence is that the employer had instructed the employee to load the mantle in a particular fashion. The evidence before the Court, admitted without objection, was that had it been loaded in accordance with the directions, it would not have resulted in the axle overload. His Honour found that the operator had taken reasonable steps to prevent the breach, which was a factual finding entirely open to him. 57I accept, as did the magistrate, that the elements of the reasonable steps defence in s 87(1)(a) and (b) have been made out. However, for a court to be satisfied that the defendant took all reasonable steps, it is necessary to consider the requirements of s 87(2) and (3). Before doing so, I will consider whether "at all material times" the defendant did not, through its employee Mr Nathan, have custody or control of the vehicle concerned as required by s 87(4) so as for s 87(2) and (3) not to apply. 58The time of loading the mantle at SWP was a material time as, but for the incorrect loading, the offence under s 56 would not have occurred. 59As I stated above, in my view, an offence under s 56 occurs as soon as an overloaded vehicle begins its journey on a road or road related area, not just when the overload is detected. In this case, Mr Nathan was not in control of his vehicle at the time the mantle was loaded incorrectly, causing the overload. However, Mr Nathan elected to commence his return journey even though he knew that the mantle was not in the correct position on the truck (T30.31-36). Mr Nathan had control of the truck at the material time the offence occurred, that is, as soon as he began driving it home. 60In 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). 61Under 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. 62It 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). 63Under 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. 64Mr 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. 65As 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.

Western Freight's application for costs 66After the charge against Western Freight was dismissed, Western Freight applied for costs pursuant to s 213 of the Criminal Procedure Act. The Magistrate dismissed that application. 67Western Freight seeks judicial review in relation to the magistrate's decision not to award costs in its favour. These costs were sought under s 213 of the Criminal Procedure Act 1986. There is no express right of appeal conferred from a decision to refuse to make an order under s 213. It is common ground that Western Freight can seek judicial review under s 69 of the Supreme Court Act - see O'Brien v Hutchinson [2012] NSWSC 429 at [4].

Costs legislation 68Sections 212(1), 213 and 214(1)(c) of the Criminal Procedure Act 1986 provide: "212 When costs may be awarded (1) A court may award costs in criminal proceedings only in accordance with this Act ... 213 When professional costs may be awarded to accused persons (1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. (2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable. (3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because: ... (b) the matter is withdrawn or the proceedings are for any reason invalid. ... 214 Limit on award of professional costs to accused person against prosecutor acting in public capacity (1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following: ... (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought"

The magistrate's reasons 69The magistrate in his reasons stated at T55.17.41: "The evidence before me today which I accept - is that no inquiries were made of the defendant by RMS as to the defendant's manner of operations in connection with the load in question, instructions to the driver, et cetera, which have had been done would have disclosed both the statutory defences or the possibility of those statutory defences under ss 87 and 92 of the Road Transport General Act and that is what I found in dismissing the charge. I dismissed the charge principally under s 92 but for completeness, I considered the operation of s 87 and found that I would have dismissed it on that basis if I had to. That proposition - in my view - does not really go quite far enough though. The provisions of s 214(1)(c) requires other elements to be present in the consideration for as to whether the elements to allow the award of costs be present. What the section requires is that the prosecutor - RMS - was aware or ought reasonably have been aware of matters suggesting a lack of guilt. There is no evidence that RMS was aware of anything other than overload, truck registration, the driver and from its inquiries - the owner of the truck. There is no evidence that RMS should have reasonably been aware of the elements which would support the defences. It seems to me that there is no obligation on the prosecutor - in this case RMS - to investigate the defences unless they are raised or flagged in some way. Those defences are statutory defences provided in the Act. Parliament provided them for defendants to reduce the harsh operation of the legislation - bearing in mind that as Mr Coleman rightly points out - the penalties on conviction are severe." 70In relation to jurisdictional error in these circumstances, his Honour Justice Beech-Jones in O'Brien v Hutchinson [2012] NSWSC 429 at [7] observed that the formation of an opinion in s 214(1) (of the Criminal Procedure Act) is a "limit" on the function or power conferred by s 213(1) as discussed in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at [177], where a costs order is refused. His Honour goes on to express the logical conclusion that follows, in a case where a costs order was refused, jurisdictional error will be established if the plaintiff can establish that the Local Court misapprehended the limits placed on it by s 214, but six matters ought be borne in mind. They are summarised as follows: (1) The formulation of jurisdictional error extracted from Craig involves the plaintiff identifying and establishing that the inferior court "misapprehended" the limits on its power. (2) A number of aspects of s 214(1)(a) to (d) involve the exercise of a normative judgment by the Local Court, and where that judgment involves matters of opinion, or policy or taste, the task of demonstrating a relevant misapprehension is more difficult. (3) An erroneous construction of provisions such as s 214(1)(a) to (d) will sometimes be apparent on the face of the lower court's reasons. If so, the existence of both an error of law and a jurisdictional error will be established. (4) A relevant misapprehension is not demonstrated by pointing to a list of matters the court could have, or even should have, taken into account but did not, or by pointing to matters the court did take into account but should not have. (5)The failure to take into account a relevant matter or the taking into account of an irrelevant matter by an inferior court might constitute an error of law on the face of the record even if it does not constitute a jurisdictional error. However the relevant transgression would have to be apparent on the face of the "record". (6) An ex-tempore judgment of a Magistrate in the Local Court is well recognized, given the prodigious workload carried by that Court that such reasons are not to be construed strictly. Instead, their substance is to be examined to see whether the correct test was applied. 71Western Freight submits that, when referring to the failure to take into account a relevant matter or taking into account an irrelevant matter, his Honour Beech Jones is referring to the establishment of jurisdictional error. The failure to take into account relevant matters or the taking into account of irrelevant matters which is on the face of the record, it submits, is an error susceptible to certiorari, despite it not (on this ground) being a jurisdictional point. However, his Honour went on to note at [12]: "It is only if one took the further step of inferring that, because the inferior court took into account some irrelevant matter or failed to take into account some relevant matter, it thereby misconstrued a limit on its power, would any contention based on a failure to take into account relevant considerations or taking into account irrelevant considerations suggest the existence of jurisdictional error." 72Magistrate Day in his reasons as to why he was dismissing Western Freight's application for costs, said at T55.43 to T56.12: "If the issues are raised before the hearing and they are commonly called by lawyer's representations and then the situation changes in my view. Mr Kelly raised this in his short submissions and Mr Coleman of counsel addressed or rather, replied to that suggestion by saying that in this case, no brief was served and representations were not made. These are not proceedings which require service of a brief. Indeed, if provisions for service of a brief contained in the Criminal Procedure Act apply to only a limited class of proceedings, these do not fall within that class. Quite frankly, it is rather difficult to convince my colleagues of the requirement to serve a brief on such a matter without some specific and detailed submissions and evidence to support that situation. I take the view though that had matters been raised by the defendant with the prosecutor - and then the prosecutor having been appraised of the instructions to the driver, the situation at the SWP premises - then in those circumstances, if the prosecutor was aware of those matters and then disregards them, in my view, the prosecutor is then at peril for all costs or whatever. That is not the situation here. The defendant company was at all times aware of its operating systems. It obtained legal advice apparently - and it relied today on the statutory defences. Those defences were not put to RMS before today and that being the case I would dismiss the application..." 73Western Freight submitted that the error of law asserted is both an error on the face of the record, and also (as a misapprehended fetter on the learned Magistrate's discretion to award costs) a jurisdictional error. 74Western Freight submitted that s 214(1)(c) refers to "relevant matter" and "investigate properly". The existence of two statutory defences are unarguably "relevant matters". The implication of "investigate properly" is that relevant matters will be investigated. The obligation to investigate is the prosecutor's, not the defendant's. In support of this proposition Western Freight relies on Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95. A request for a brief of evidence was refused, so the defendant, Western Freight, had no indication of the merits of the substantive case against it (T55.45-46) and therefore of any other defences or objections it might have, any indication by the operator of its potential defences would have been premature and may well have been against its interests. Yet, it is submitted, this is what was found to be a prerequisite to the exercise of the discretion to award costs under s 214(1)(c). This is so despite a finding that there was no inquiry at all made of the defendant company and had such an inquiry been made, it would have disclosed the statutory defence. 75As was noted by the magistrate, the offence under which Western Freight was charged is not an offence to which the prosecution is obliged to provide a brief of evidence under the Criminal Procedure Act 1986. As Western Freight was aware from Mr Nathan's account of what occurred when the mantle was loaded, as well as the offence charged and the percentage amount of the overload detected, it is difficult to envisage what additional information would have been provided to Western Freight in a prosecution brief as the substance of the case against it that wasn't available to them already. 76Western Freight submitted that there is no requirement in the Act for a defendant to disclose its defence to the prosecution in advance, other than in a very limited and formal manner. Consequently, Western Freight says that by requiring it to provide the prosecution with notice of its defence, the learned magistrate misapprehended the limits placed on him by s 214(1)(c) and misdirected himself, which is an error of law. 77Western Freight further submitted that in the context of an acquittal on each of the statutory defences, and the learned magistrate having found that had the defendant disclosed its defence to the prosecution, the prosecution would then be at risk of costs. It was asserted that this constitutes an irrelevant consideration and it is thereby a jurisdictional error as it involves a misconstrued limit on a power. 78Roads and Maritime Services submitted that there does not appear to be any authority establishing that proposition. Western Freight's submission is that "responsibility to investigate" is implicit in the judgment in Petty v the Queen. Petty was concerned with what use, if any, may be made at the trial of an accused of her/his exercise of a right to silence and/or of the entitlement not to disclose a defence or a basis for a defence. The conclusion was that ordinarily the Crown can make no use of any such exercise as evidence that the accused is guilty of the offence being tried. 79Roads and Maritime Services submitted that it is not a logical corollary or consequence of that rule that an investigation that does not encompass all or some "defence" is "unreasonable" for the purposes of the exercise of a post verdict statutory discretion about costs. In addition, Petty v The Queen was concerned with the Crown's position on matters on which it bore the onus of proof at trial. By contrast, in this matter both the statutory defences relied upon by Western Freight were matters upon which it bore the legal burden of establishing. 80Magistrate Day found that s 214(1)(c) requires that Roads and Maritime Services was aware or ought reasonably to have been aware of matters suggesting a lack of guilt. His Honour stated that "[I]t seems to me that there is no obligation on the prosecutor - in this case RMS - to investigate the defences unless they are raised or flagged in some way. Those defences are statutory defences provided in the Act" (T55.36-39). His Honour found that as the statutory defences were not raised by Western Freight with Roads and Maritime Services until the hearing, there were no matters in relation to lack of guilt to which Roads and Maritime Services should have been aware. 81The award of costs in favour of an accused person under s 213 is discretionary. As was stated by his Honour Beech Jones in O'Brien at [8] - [9]: "8 Second, a number of aspects of s 214(1)(a) to (d) involve the exercise of a normative judgment on the part of the Local Court. For example, the Local Court must make an assessment as to whether something was 'unreasonable', 'improper' or that there were 'exceptional circumstances'. In Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 the Full Court of the Federal Court noted that conclusions on matters of 'opinion or policy or taste' may be 'very much a matter of opinion and thus not readily susceptible to review for error of law' (at 199G). Similarly, conclusions by the Local Court as to whether or not failure to take some particular step in the investigation process was 'unreasonable' or not can be very much a matter of opinion. In such a case, the task of demonstrating a misapprehension in the Craig sense is that much more difficult. 9 ... it must be remembered that a number of phrases in s 214(1) are not technical legal phrases but words which have a 'common understanding'. To demonstrate legal error in this latter type of case it would have to be demonstrated that, on the facts as found, no other conclusion was reasonably open other than that the criteria was established (Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24] to [28], per Gleeson CJ, Gummow and Callinan JJ)." 82As it was common ground that at the time the offence under s 56 of the Road Transport (General) Act was detected, the truck driven by Mr Nathan was in breach of a mass requirement, and the onus of establishing a statutory defence lies with Western Freight. Hence, Magistrate Day was correct when he stated that there was no obligation on Roads and Maritime Services to investigate whether Western Freight had a defence under the statutory defences provided by the Act and therefore the prosecutor did not "unreasonably" fail to investigate or investigate properly any relevant matter of which it was aware. The learned magistrate did not misapprehend or misdirect himself as to the requirements of s 214(1)(c). 83The magistrate stated that had the defendant disclosed its defence to the prosecution then the prosecution would then be at risk of costs. This in my view is not an irrelevant consideration. As discussed by his Honour Beech Jones in O'Brien at [14], consideration must be given to the heavy workload carried by the Local Court and that a transcript of such reasons are not to be construed strictly. Rather, their substance should be examined to ascertain whether the correct test was applied. In this matter, Magistrate Day applied the correct test, whether the prosecution had "unreasonably" failed to investigate and concluded it had not. The application by Western Freight for judicial review fails. 84The decision of his Honour Magistrate Day dated 19 April 2012 is affirmed. The plaintiff's amended summons filed 6 June 2012 is dismissed. The defendant's summons filed 5 June 2012 is dismissed. 85Costs are reserved.

The Court orders that: (1) The time for filing of an appeal from the Local Court is extended to 5 June 2012. (2) The notice of cross appeal filed on 5 June 2012 in these proceedings is to stand as if it were a summons for appeal. (3) The decision of his Honour Magistrate Day dated 19 April 2012 is affirmed. (4) The plaintiff's amended summons filed 6 June 2012 is dismissed. (5) The defendant's summons filed 5 June 2012 is dismissed. (6) Costs are reserved.

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