Busbridge v Police
[2015] SASC 201
•21 December 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BUSBRIDGE v POLICE
[2015] SASC 201
Judgment of The Honourable Justice Parker
21 December 2015
TRAFFIC LAW - ROAD TRANSPORT LEGISLATION - LOADS TO BE CARRIED BY VEHICLES - SOUTH AUSTRALIA - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
The appellant was transporting an air seeder loaded on a semi-trailer when he was stopped by police. He was charged with driving a heavy vehicle that did not comply with prescribed dimensional requirements in breach of s 102(1)(b) of the Heavy Vehicle National Law. He sought to rely on an exemption to the dimensional requirements pursuant to the Code of Practice for the Transport of Agricultural Vehicles as Loads. The magistrate found the appellant guilty on the basis that, while the air seeder came within the operation of the Code, two of the air seeders’ detached tyres did not. The grounds of appeal were that the magistrate erred in finding the appellant did not have an exemption pursuant to the Code and that the magistrate failed to provide sufficient reasons for his decision.
Held, dismissing the appeal:
1. The Code remains in operation as an exemption notwithstanding that it was introduced prior to the Heavy Vehicle National Law.
2. The Code prevails over the exemptions set out in the National Regulations.
3. The tyres did not come within the exemption for an agricultural vehicle because the tyres could be separated from the air seeder without great difficulty, expense or risk of damage.
4. Neither the tyres nor the air seeder came within the exemption for an agricultural combination as the air seeder was one machine or implement.
5. It was necessary to either rearrange the load so that the dimension limits were not exceeded or to use a second vehicle.
6. The magistrate did not err by failing to provide proper reasons for finding the appellant guilty.
Heavy Vehicle National Law s 100, s 102(1)(b), s 104, s 106, s 116(4), s 618, s 747, s 748, s 749; Heavy Vehicle National Law (South Australia) Act 2013 s 4, s 6, s 27, s 27(5); MR803 Code of Practice for the Transport of Agricultural Vehicle as Loads cl 1.2, cl 2.1, cl 2.2, cl 4, cl 10, cl 12; Heavy Vehicle (Mass Dimension and Loading) National Regulations (South Australia) s 2 of sch 6, s 7 of sch 6, s 2 of sch 7, s 13 of sch 8; Road Traffic Act 1961 s 61, s 68, s 161A, s 163AA; Heavy Vehicle National Law (South Australia) (Savings, Transitional and Declaratory) Regulations 2013 reg 4, referred to.
Dillon v The Queen [1982] AC 484; Fleming v The Queen (1998) 197 CLR 250; R v Mayger (2013) 116 SASR 488; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"“agricultural vehicle”, “divide”, “great difficulty, expense or risk of damage”"
BUSBRIDGE v POLICE
[2015] SASC 201Magistrates Appeal (Criminal)
PARKER J: This is an appeal against a finding by a magistrate that the appellant, Stephen Busbridge, was guilty of driving a heavy vehicle that did not comply with prescribed dimensional requirements in breach of s 102(1)(b) of the Heavy Vehicle National Law (the National Law) as adopted by the Heavy Vehicle National Law (South Australia) Act 2013 (the Act).
The notice of appeal advanced two grounds. The first ground was that the magistrate erred in finding that he did not have an exemption to the prescribed dimensional requirements pursuant to the Code of Practice for the Transport of Agricultural Vehicles as Loads dated May 2008 and issued by the Department for Transport, Energy and Infrastructure (the Code).[1] The second ground was that the magistrate failed to provide sufficient reasons for his decision.
[1] Numbered as MR 803.
Mr Busbridge sought an order that the finding of guilt be set aside and a verdict of not guilty be entered or, in the alternative, that the finding of guilt be set aside and the matter be remitted for rehearing before a differently constituted court.
For the reasons set out below, I find that the magistrate was not in error in holding that Mr Busbridge breached s 102(1)(b) of the National Law and the magistrate did not fail to provide sufficient reasons. Accordingly, I dismiss the appeal.
Background
When the relevant events occurred Mr Busbridge was working for All Size Equipment Transport as a truck driver. He was required to pick up and deliver machinery. On 14 March 2014 Mr Busbridge was driving a prime mover towing a semi-trailer on the Eyre Highway. The semi-trailer was loaded with an air seeder, which is a large piece of agricultural machinery. The trailer also carried four large tyres as well as hoses and other items stored in wooden crates. The tyres and other items belonged to the air seeder. The prime mover and trailer displayed signs indicating an oversized load. The items had been loaded onto the trailer in Western Australia by employees of McIntosh Distribution. Mr Busbridge was present during the loading.
The tyres were not attached to the air seeder. Two of the tyres were stacked one on top of the other. The other two tyres were placed side by side so that each tyre protruded beyond the width of the semi-trailer (the protruding tyres).
Mr Busbridge was stopped by police at Penong to conduct a heavy vehicle compliance check. Section 7 of schedule 6 to the Heavy Vehicle (Mass Dimension and Loading) National Regulations (South Australia) (the National Regulations)[2] requires that a heavy vehicle, together with its load, must not be more than 2.5 m in width (the prescribed width).
[2] As explained at paragraph 22 below, the National Regulations were drafted in Queensland and use the term “section” to describe the individual provisions in the body of the regulations and in the schedules. While that usage is contrary to ordinary drafting practice in South Australia, I have used the language of the enactment.
The police measured the width of the trailer as being 2500 mm, ie both the standard and maximum width. The air seeder extended 400 mm over the left side of the trailer and 70 mm over the right side. The police applied a measurement adjustment[3] of 20 mm for each measurement so that in total the air seeder was assessed as being 430 mm in excess of the prescribed width (rather than 470 mm). The protruding tyres extended 340 mm over the left side of the trailer and 200 mm over the right. After the measurement adjustment was applied, the protruding tyres were assessed as being 500 mm in excess of the prescribed width of 2.5 m. In other words, after deduction of the measurement adjustment, the combined width of the tyres as loaded was 3 m. For reasons that will become apparent, the basis for the prosecution was not that the air seeder exceeded the prescribed width but rather that the two tyres placed side by side exceeded that limit.
[3] While the purpose of the measurement adjustment was not explained in evidence, I infer that the basis for the adjustment was to provide some tolerance for any minor errors in measurement or slight inaccuracy in the measuring device.
A police officer directed Mr Busbridge to present any dimension exemptions he had for the carriage of the load. He presented a copy of the Code and a Gazette notice (the Notice). The central questions in this appeal are, whether the Notice and the Code were still in force as at 14 March 2014, and if so, whether the load was covered by an exemption.
I will return to those issues. For present purposes it is sufficient to note that the combined effect of the Code and the Notice is to allow for the carriage of certain oversize loads of agricultural machines, implements and vehicles that exceed the prescribed width of 2.5 m. Clause 10.1 of the Code also requires that the width of the load must not be greater than 4.5 m. That restriction was not exceeded.
Mr Busbridge was charged with failing to comply with the dimension requirement imposed by s 7 of schedule 6 to the National Regulations. It was alleged that there had been a “severe risk” breach under s 104 of the National Law, ie a breach where the load exceeds the prescribed width by 80 mm or more.
The legislative scheme
The earlier South Australian scheme
The legislative scheme has a complex structure. Because the Notice and Code were published under earlier enactments it is necessary to consider the previous regime.
Prior to 10 February 2014 the mass and dimension limits for heavy vehicles were found in the Road Traffic (Vehicle Standards) Rules 1999 and the Road Traffic (Mass and Loading Requirements) Regulations 1999. The application of the limits contained in those legislative instruments was modified by the Notice if the conditions set out in the Code were satisfied. It is not necessary to consider those former limits as they ceased to apply on 10 February 2014. The issue is whether Mr Busbridge was entitled to rely on the Notice and Code to exempt him from compliance with the limits now in force under the National Law.
The Notice was published in the South Australian Government Gazette on 16 June 2011[4] by the Director Transport Safety Regulation as the delegate of the Minister for Transport. It relevantly operated as an approval under s 161A of the Road Traffic Act 1961 permitting articulated motor vehicles carrying agricultural vehicles to travel on roads in South Australia even though, amongst other matters, their width exceeded 2.5 metres. The terms and effect of the Code are considered at paragraphs 55 to 87 below.
[4] At pages 2580 and 2581.
The Notice also operated as an exemption under s 163AA of the Road Traffic Act so as to exempt articulated motor vehicles towing one trailer carrying agricultural vehicles from the width limitations found in the Road Traffic (Vehicles Standards) Rules 1999 and the restrictions on side projections contained in the Road Traffic (Mass and Loading Requirements) Regulations 1999.
The Notice stated that the approval and exemption were subject to operation of the vehicle in accordance with the conditions and limitations specified in the current version of the Code. A further condition was that the driver of a vehicle who sought to rely upon the Notice must carry a copy of it as a hard copy or in an accessible electronic format. As I have already noted, Mr Busbridge satisfied that requirement.
The current legislative scheme
The Act commenced operation on 10 February 2014. Thus, it was in operation on 11 March 2014 when the relevant events involving Mr Busbridge occurred.
The schedule to the Act contains the National Law. Section 4 of the Act applies the text of the National Law as a law of South Australia.[5]
[5] Which may be referred to as the Heavy Vehicle National Law (South Australia).
Section 6 of the Act applies the Heavy Vehicle National Regulations as in force from time to time for the purposes of the National Law subject to modifications made by the local regulations. Section 6(b) provides that the National Regulations, as modified by the local regulations, may be referred to as the Heavy Vehicle National Regulations (South Australia).
Section 27 of the Act provides for the Minister to arrange for the tabling of a regulation made under the National Law in both Houses of Parliament. Such a regulation may be disallowed as if it were a regulation made under a South Australian Act. However, s 27(5) of the Act provides that if a regulation made under the National Law is disallowed in this jurisdiction it does not cease to have effect until it is also disallowed in a majority of the jurisdictions participating in the national scheme. The combined effect of s 4 and s 27 is that regulations made in another jurisdiction that participates in the national scheme may operate in South Australia. The South Australian Parliament cannot directly disallow such regulations.
The trial and the appeal were conducted on the basis that the National Regulations are in force as part of the law of South Australia, albeit that they were made elsewhere. There was no evidence before the Court of that fact. That caused me some concern for the reasons that follow.
Research conducted on my behalf showed that the National Regulations are not published on the South Australian legislation website operated by the Parliamentary Counsel. An entry on that site states that the National Regulations are to be found on the New South Wales legislation website. The research also established that there is an entry on the website operated by the National Heavy Vehicle Regulator[6] which states that the National Regulations commenced in South Australia, and in several other jurisdictions, on 10 February 2014. The website contains a further statement to the effect that the National Regulations were made by the Governor of Queensland following unanimous approval by State and Territory transport ministers and were first published on the New South Wales legislation website on 31 May 2013.[7]
[6] Based in Queensland.
[7] There was also no evidence that the Minister had tabled the National Regulations in the South Australian Parliament as required by s 27 of the Act. However, there are two notes in the SA Hansard on 6 May 2014 to the effect that “Interstate Regulations” made under the Heavy Vehicles National Law had been tabled in both Houses of Parliament that day. That appears to be a reference to the National Regulations made by the Governor of Queensland and published in New South Wales.
Both Mr Busbridge and the respondent accepted that the regulations published on the New South Wales website are in force in South Australia as the National Regulations. For that reason, and given the result of the research to which I have referred, I am prepared to apply the presumption of regularity[8] and proceed on the basis that the National Regulations were properly made and have operated in South Australia since 10 February 2014. Thus, the National Regulations were in force when Mr Busbridge drove the vehicle on 14 March 2014. That is of fundamental importance because the width limit on heavy vehicles of 2.5 m is imposed by s 7 of schedule 6 to the National Regulations.
[8] Albeit that I would ordinarily be very cautious about applying that presumption in a criminal matter, see Dillon v The Queen [1982] AC 484.
Whether the Code is still in operation
Section 748 of the National Law is a general savings and transitional provision that preserves the operation of things done under the former legislation. It provides as follows:
748—General savings and transitional provision
(1) This section applies if a provision of this Law corresponds to a provision of the former legislation.
(2)Anything done under the provision of the former legislation before the commencement day has effect as if—
(a) this Law had been in force when the thing was done; and
(b) the thing had been done under this Law; and
(c) any reference to a person in, or in relation to, the provision were a reference to the nearest equivalent person under this Law; and
(d)any reference in, or in relation to, the provision to another provision of the former legislation were a reference to the corresponding provision of this Law; and
(e) any other adaptations necessary to enable the thing to be effective under this Law have been made,
and accordingly the thing is taken to have been done under this Law.
Section 749 places a temporal limit upon the operation of the transitional provisions in s 748. It provides as follows:
749—Expiry of certain permits, exemptions, notices and authorities
(1) This section applies if a permit, exemption, notice or authority—
(a) is taken to have been made under this Law under section 748; and
(b) is not subject to an expiry date, or is subject to an expiry date—
(i)that, in the case of a permit, exceeds 3 years after the commencement day; or
(ii) that in any other case exceeds 5 years after the commencement day.
(2)In the case of a permit, it expires 3 years after the commencement day, unless it is cancelled before that day.
(3)In the case of an exemption, notice or authority, it expires 5 years after the commencement day, unless it is cancelled before that day.
(4)Despite subsections (2) and (3), a modification approval granted in respect of a vehicle is to continue for the life of the vehicle.
(5)For the purposes of this section, a permit that solely provides an exemption is to be considered to be an exemption.
The term “commencement day” is defined in s 747 to mean the day upon which that jurisdiction became a participating jurisdiction in relation to the particular provision. Counsel for the respondent suggested in her written submissions that the Code would expire as an exemption on 17 June 2016. Due to the five year period fixed by s 749(1)(b)(ii) that contention could only be correct if South Australia had become a participating jurisdiction in relation to the relevant provision on 18 June 2011. Given that the National Law did not commence in South Australia until 10 February 2014, this was almost certainly incorrect. It appears that counsel may have based her view on the date of publication of the Notice. I have no information about when South Australia became a participating jurisdiction in relation to the particular provision (whichever that may be) but suspect that it was 10 February 2014 so that the Code will expire in February 2019 (assuming that it otherwise remains in force). In any event, it is clear that the five year period has not expired.
The Heavy Vehicle National Law (South Australia) (Savings, Transitional and Declaratory) Regulations 2013 (the Transitional Regulations) were enacted under the National Law. Regulation 4 of the Transitional Regulations declares that s 163AA of the Road Traffic Act 1961 corresponds to ss 61 and 68 of the National Law.
Section 163AA of the Road Traffic Act empowers the Minister by instrument in writing, or by notice in the Gazette, to exempt any specified vehicle, any vehicles of a specified class or vehicles carrying loads of the specified kind from specified provisions in part 4 of the Road Traffic Act. As I have already indicated, the Notice and the Code were published under s 163AA.
Section 61 of the National Law empowers the Regulator to exempt by notice in the Commonwealth Gazette a category of heavy vehicles from complying with a heavy vehicle standard. Section 68 empowers the Regulator to grant persons exemption from compliance by issuing a permit.
The respondent has submitted that the Notice and Code continue to act as an exemption as if they were made under the current National Law. In other words, the contention is that those instruments continue to have effect until they expire by force of s 749 of the National Law. That submission will only be correct if the publication of the Notice and the Code were the doing of a “thing” within the meaning of s 748(2) of the National Law.
The ordinary meaning of the words in s 748 suggests that publication of the Notice and the Code was the doing of a “thing”. Any doubt about that question is removed by the references in s 749 to a permit, exemption, notice, or authority that is taken to have been made under s 748. Those references make it absolutely clear that the publication of the Notice and the Code was the doing of a “thing” and therefore given transitional effect by s 748. Thus, the Code remains in operation as an exemption.
Does the Code prevail over the National Regulations?
While there was no submission on the appeal to the effect that the Code did not prevail over the National Regulations, the different counsel who appeared before the magistrate on behalf of Mr Busbridge had submitted that the National Regulations prevailed. It is important to consider that question because the National Regulations operate differently in some respects from the scheme established by the Code. It will only be necessary to explore that issue if the Code does not prevail.
The closing words of section 748(2) state that the “thing” (ie the publication of the exemption in the Notice and the making of that exemption subject to the conditions set out in the Code) will be taken to have effect as if it had been done under the National Law. Schedule 8 to the National Regulations sets out certain exemptions published in the Commonwealth Gazette that apply to the mass and dimension limits for heavy vehicles that otherwise apply under the National Regulations. The terms of those exemptions differ from those found in the Code. I consider that the effect of the transitional provision in section 748(2) is to apply the Notice and Code in circumstances where the conditional exemption under the National Law might otherwise apply.
The offence
Mr Busbridge was charged with an offence created by s 102(1)(b) of the National Law:
102—Compliance with dimension requirements
(1) A person must not drive on a road a heavy vehicle that (together with its load) does not, or whose components do not or whose load does not, comply with the dimension requirements applying to the vehicle.
Maximum penalty:
(a) if the heavy vehicle does not have goods or passengers in it—$3 000; or
(b) if the heavy vehicle has goods or passengers in it—
(i) for a minor risk breach—$3 000; or
(ii) for a substantial risk breach—$5 000; or
(iii) for a severe risk breach—$10 000.
The dimension requirement relevant to this appeal is contained in s 7 of schedule 6 to the National Regulations:
7 Width
(1) A heavy vehicle must not be wider than 2.5m.
(...)
Section 2 of schedule 6 to the National Regulations specifies that the load of a vehicle is considered as part of the vehicle’s dimensions.
The National Law categorises breaches of s 102(1)(b) as either a minor risk breach, a substantial risk breach or a severe risk breach, depending on the extent to which the heavy vehicle exceeds the prescribed dimensions. Because the dimension limit was exceeded by more than 80 mm, Mr Busbridge was charged with a severe risk breach, as defined by ss 100, 104 and 106 of the National Law.
A driver of a heavy vehicle that exceeds a dimension requirement breaches s 102(1)(b) of the National Law unless an exemption applies. Mr Busbridge relied on the exemption in the Code.
The relevant clauses of the Code are:
1 What is a Code of Practice?
(...)
1.2 This Code replaces the requirements of the Road Traffic (Oversize or Overmass Vehicle Exemptions) Regulations 1999 when you are transporting oversize agricultural machines and implements.[9]
[9] The reference to the Road Traffic (Oversize or Overmass Vehicle Exemptions) Regulations 1999 is not relevant to this appeal. Those Regulations dealt with matters such as the display of warning signs and lights by oversize vehicles, the use of pilot vehicles and so forth. These Regulations did not impose dimension limits. The limits were found in the Road Traffic (Vehicles Standards) Rules 1999 and the Road Traffic (Mass and Loading Requirements) Regulations 1999. It is clear that the Notice operated as an exemption from the restrictions imposed by the latter statutory instruments subject to compliance with the Code.
(...)
2 What ‘agricultural vehicles’ can be carried under this Code?
2.1 For the purpose of this Code, an ‘agricultural vehicle’ is an agricultural machine or implement that:
2.1.1 cannot be divided without great difficulty, expense, or risk of damage; and,
2.1.2 cannot be carried on any vehicle or combination of vehicles without exceeding any of the general access dimension limits for length, width and height – refer to section 4.1.
2.2 Due to the nature and use of agricultural machines and implements, the following may also be transported under this Code:
2.2.1combinations or agricultural vehicles, machines or implements connected and operated by hoses, drive shafts, or other couplings;
(...)
Explanatory Note
Examples of oversize agricultural machines and implements covered by this Code include:
· a harvester;
· a tractor and air seeder combination;
· a conveyor or auger.
(...)
4 When do you use this Code?
4.1 You use this Code when your vehicle and load exceeds any of the following general access vehicle dimensions:
4.1.1 2.5 metres wide;
4.1.2 4.3 metres high; or
4.1.3 19 metres long for an articulated vehicle.
(...)
10 Width
10.1 For the vehicle, including the load and any cross members or framework to support the load - 4.5 metres
10.2 The following other restrictions apply:
10.2.1 the load must be carried to minimise the amount by which it exceeds 2.5 metres; and
10.2.2 the overall width of all axles or axle groups of the load-carrying part of the vehicle, measured between the outer edges of the tyres, must not be less than 2.1 metres; and
10.2.3 any cross member, supporting frame or outrigger fitted to support the load must not protrude beyond the load by more than 50mm.
(...)
12 Loading Requirements
12.1The load must be equi-spaced across the tray of the vehicle.
12.2 The side projection of a load must not exceed 1.0 metre on either side of the tray of the vehicle.
12.3 Where the load consists of more than one item, these must not be loaded:
12.3.1 side by side to more than 2.5 metres wide; and/or
12.3.2 one above the other to more than an overall vehicle height of 4.3 metres; and/or
12.3.3 one behind the other to more than an overall vehicle length of 12.5 metres for a rigid vehicle or 19 metres for an articulated vehicle.
The following definitions in the Code are also relevant to this appeal:
Agricultural implement is a vehicle built to perform agricultural tasks without its own motive power.
Agricultural machine is a machine built to perform agricultural tasks with its own motive power.
Agricultural vehicle is an agricultural implement, an agricultural machine or a tractor.
The evidence
The prosecution tendered affidavits by the two police officers whom had stopped the vehicle driven by Mr Busbridge. Their affidavits referred to the measurement of the vehicle and established that the air seeder (as carried without tyres attached) exceeded the prescribed width of 2.5 metres by 430 mm, while the tyres as loaded side by side exceeded the limit by 500 mm. Annexed to one of the affidavits was the record of the interview conducted by that officer with Mr Busbridge and photographs he had taken of the vehicle and its load.
Certain facts were also agreed. The agreed facts that I consider to be relevant to the appeal are as follows:
·The air seeder is delivered by the manufacturer without tyres. The tyres are fitted on the delivery of the seeder to the dealer.
·The width of the air seeder with tyres attached was 4.22 m.
·Its width without tyres was 3.28 m.
·The diameter of the tyres was 1.9 m.
·The air seeder was wider than the two tyres loaded side by side.
·The tyres had been loaded side by side so as to create an area to load the reels of hoses connected with the air seeder.
·All of the equipment loaded on the trailer was associated with the air seeder.
·The air seeder overhung the left-hand edge of the trailer by a greater distance than the tyres.
·On the right-hand side of the trailer the overhang by the air seeder and by the tyres was approximately equal.
·The tyres were loaded side by side so as to create an area in which to place the reels of hoses used with the air seeder.
·Mr Busbridge told the police that the tyres had been loaded side by side because it was safe to do so.
·He also told the police that he believed that it was not unlawful to place the tyres side by side as the tyres and machinery all comprised part of the one apparatus and were therefore covered by the exemption under the Code.
Of course, that final agreed fact simply states the belief of Mr Busbridge. It does not determine whether the exemption under the Code was available to him.
Mr Kenneth Pitt, the owner and operator of All Size Equipment Transport and the employer of Mr Busbridge, gave evidence about the action required to remove the tyres from the air seeder as follows:
Q.The tyres are reasonably easily and safely removed from the air seeder, are they not.
A.With the right equipment, yes.
I will return to the evidence of Mr Pitt.
The defence submissions at trial
Counsel for Mr Busbridge submitted that all of the tyres, including the protruding tyres, were part of the air seeder. Therefore, the dimension exemption that applied to the air seeder as an agricultural vehicle under the Code also covered the protruding tyres. This was so notwithstanding that the tyres could be and were separated from the air seeder.
Counsel submitted that the Code should not be read in isolation and that regard should be had to the National Regulations and in particular s 13 of schedule 8. It was submitted that s 13(3) allows a load comprised of an agricultural vehicle and detached parts to be carried as a load even where the detached items exceed the prescribed 2.5 m:
13 Carrying goods in addition to a large indivisible item
(1) A load-carrying vehicle must not carry more than 1 large indivisible item unless—
(a) the vehicle together with its load complies with the general mass limits; and
(b) the vehicle carrying more than 1 large indivisible item does not cause the vehicle together with its load to exceed a prescribed dimension requirement that would not be exceeded if the vehicle carried only 1 of the large indivisible items.
(2) A load-carrying vehicle carrying 1 or more large indivisible items must not carry any other goods unless—
(a) the vehicle together with its load complies with the general mass limits; and
(b) the other goods are contained within the limits set by the prescribed dimension requirements.
(3) Despite subsection (2), a load-carrying vehicle carrying a special purpose vehicle or agricultural vehicle may also carry equipment, tools, substances or detached parts to be used in conjunction with the vehicle being carried.
(4) In this section—
large indivisible item has the meaning it has under section 116(4) of the Law.
Counsel for Mr Busbridge stressed that if the prosecution submission was adopted, the effect would be to require two trailers to carry the load rather than one, resulting in added expense. It was said that this would defeat the purpose of the Code, which is to facilitate the transport of large agricultural machinery if it cannot be divided without great difficulty, expense or risk of damage.
Finally, the defence sought to raise a defence that reasonable steps had been taken to prevent contravention of the relevant laws and thus the defence provided for in s 618 of the National Law was available to Mr Busbridge.
The magistrate’s reasons
The magistrate identified the core issue at trial as follows:[10]
The air seeder being a single piece of machinery could not be broken down any further than as presented on the prime mover. It would not be unreasonable nor contrary to any legal caveat to assume it cannot be divided without extreme effort, expense or risk of damage to it. Without tyres fitted, it had a width of 3.280 metres as per the agreed fact herein. At issue is are [sic] the four tyres, the total [sic] coil hoses, the crates with the contents, together with the air seeder taken to be one single agricultural vehicle?
[10] Reasons at [26].
The magistrate made the following findings:[11]
From my reading and consideration of what amounts to an agricultural vehicle under the definition of the code, I do not for the purposes herein, accept that all of the various load items on the prime mover, together form an agricultural vehicle as defined in the code. In my view the only agricultural vehicle that could be, and come under this definition was the air seeder itself as a discrete item on its own. For this purpose I refer to the oral evidence of defence witness Mr Kenneth Pitt (DW1) and also from the submissions of counsel that the air seeder comes from the manufacturer without tyres fitted. Although the tyres, hoses and all accessories as load items on the prime mover at the material time are accepted as component parts and/or accessories and attachments of the air seeder by way of subsequent assembly, I am [sic] nevertheless, as they were transported as separate load items, these do not come under the definition of the code as one piece of agricultural machinery.
[11] Reasons at [28].
The findings of fact which led the magistrate to find the offence proved were as follows:[12]
a) At the material time the defendant was the driver of the prime mover with full knowledge of the load he was carrying.
b) The prime mover load consisted of the air seeder, the four tyres, reels of hoses and three wooden crates with contents related to the air seeder.
c) The air seeder as the low [sic: load] item by itself was an agricultural vehicle and was transported under the exemption applicable to it by the code.
d) The other load items were not indivisible parts of the air seeder, hence were separate load items and were not items exempted by the code.
e) The two tyres placed alongside each other projected over the left side of the semi-trailer.
f) When measured and assessed these tyre projections caused the load on the prime mover to be 50cm over that allowed width of 2.5 cm [sic: m].
[12] Reasons at [43].
The magistrate found no evidence to support the contention that reasonable steps had been taken “either from the agreed facts, the responses of the defendant in his record of interview as well as from the evidence of [Mr Pitt]”.[13] The rejection by the magistrate of the reasonable steps defence is not a ground of appeal. It is therefore not necessary to further consider that issue.
[13] Reasons at [41].
The magistrate found Mr Busbridge guilty and imposed a fine of $1,000.
The first ground of appeal
The first ground of appeal is that the magistrate erred in finding that the exemption provided by the Code to the prescribed width limit did not apply. This ground of appeal rested on three different contentions. Those contentions were that the magistrate:
·erred in finding that the entire load was not an agricultural vehicle;
·failed to take into account and apply the correct test under the Code as to whether the load was an agricultural vehicle; and
·failed to take into account and apply a second broader test under the Code that permitted combinations of agricultural machines and implements to be transported under the exemptions. This submission was based upon clause 2.2 of the Code.
Counsel also submitted that the magistrate’s identification of the “core issue” at trial was incorrect. It was insufficient to find that the air seeder as a discrete item was an agricultural vehicle. Rather, the Court was required to assess whether the prosecution had proved each element of the offence beyond reasonable doubt. This required the magistrate to consider whether the air seeder:
·was an agricultural vehicle;
·was an agricultural machine or implement;
·was an agricultural machine or implement that cannot be divided without great difficulty, expense, or risk of damage; and
·could not be carried on any vehicle or combination of vehicles without exceeding any of the access dimension limits for length, width and height.
Could the load be divided without great difficulty, expense or risk of damage?
It is clear that the load on the vehicle driven by Mr Busbridge was subject to the width restriction of 2.5 m unless an exemption under the Code was applicable. It was necessary for the prosecution to establish that an exemption under the Code did not apply.
The definitions included in the Code distinguish between an agricultural implement and an agricultural machine on the basis that the former lacks its own motive power while the latter operates under its own power. The evidence did not establish whether the air seeder was an implement or a machine. That omission has no consequences because both an implement and a machine are covered by the definition of agricultural vehicle. Thus, the air seeder was an agricultural vehicle regardless of whether or not it moved under its own power. The exemptions under the Code apply to agricultural vehicles. Accordingly, the air seeder was covered by the exemptions in the Code provided that each of the two requirements set out in clause 2.1 was satisfied.
The first requirement under clause 2.1 was that the machine or implement could not be divided without great difficulty, expense or risk of damage. I consider that the adjective “great” applies to each of the words “difficulty”, “expense” and “risk of damage”.
As I have noted at paragraph 44, the question asked of Mr Pitt in cross examination was whether the tyres could reasonably easily and safely be removed. He said, “With the right equipment, yes”. Counsel contended that this question and answer referred only to the degree of difficulty in removing the tyres and did not deal with the further issues of great expense and great risk of damage. In my view, the ordinary meaning of the words “reasonably easily and safely” may properly be taken to refer to each of the risks of difficulty, expense and damage.
It was an agreed fact that the air seeder was delivered from the manufacturer without its tyres attached and the tyres were fitted by the dealer. The evidence, including that of Mr Pitt, established that Mr Busbridge was delivering the air seeder to a dealer in New South Wales and the tyres would have been attached after delivery.
The evidence of Mr Pitt was that if the tyres had not been loaded side by side it would have been necessary to use a second vehicle to transport the air seeder. That would have incurred an additional cost of $8,500. Counsel submitted that this established that the division of the air seeder could not be undertaken without great expense.
Counsel for Mr Busbridge submitted that in the context of the legislative scheme the Court should adopt a broad interpretation of the term “divided” in clause 2.1.1 of the Code so as to cover the division of load items onto separate transport vehicles. From this it was said to follow that a relevant fact in determining whether the air seeder cannot be divided without great difficulty, expense, or risk of damage is the cost of using two rather than one vehicle to transport the load.
I do not consider that the text of the Code supports such a broad reading of the term “divided”. In the context of clause 2.1.1, the natural and ordinary meaning of the term “divide” means to separate or part from something else.[14] The magistrate adopted this meaning.
[14] Macquarie Dictionary.
It follows from the ordinary meaning of “divided” that in determining whether the vehicle can be divided without great expense, only expenses arising from the breaking down of the agricultural machine or implement are relevant. For that reason, the evidence that additional costs would have been incurred by using a second vehicle if the tyres had not been loaded side by side was not relevant. There was no error in the magistrate’s reasoning on this point.
I consider that the evidence clearly established that the tyres could be removed from the air seeder without great difficulty, expense or risk of damage. Thus, at least to that extent, the machine or implement could be divided without great difficulty, expense or risk of damage. In fact, it had been so divided. For that reason, the first requirement for the application of the exemption under clause 2.1 of the Code was not satisfied. I consider that the magistrate reached the correct conclusion on this point.
Could the air seeder be carried without exceeding the width limits?
The second requirement under clause 2.1 was that the machine or implement could not be carried on any vehicle or combination of vehicles without exceeding any of the ordinary dimensional limits. The ordinary width limit was 2.5 m. The width of the air seeder with tyres attached was 4.22 m and without tyres it was 3.28 m. It is clear from these dimensions that the second requirement was satisfied and it was not contended otherwise at trial or on appeal.
Were the tyres exempt under the Code?
A further contention on behalf of Mr Busbridge referred to the fact that the prosecution had not suggested that the air seeder (ie the chassis without the tyres) was not covered by the exemption.[15] Thus, if the tyres were an integral part of the air seeder, albeit temporarily detached from that vehicle, they were also covered by that exemption. Counsel pointed out that without its tyres the air seeder chassis would be immobile. Thus, it was submitted the tyres must be considered as part of the agricultural vehicle.
[15] I infer that the prosecution accepted that the air seeder chassis could not be further divided without great difficulty, expense or the risk of damage.
At paragraph 26 of his reasons the magistrate identified the question which the preceding submission required him to answer as: “are the four tyres, the total [sic] coil hoses, the crates with the contents, together with the air seeder taken to be one single agricultural vehicle?” The magistrate found at paragraph 28 of his reasons that because the tyres, hoses and crates of components had been separated from the air seeder they could not collectively be taken to be the one agricultural vehicle for the purposes of the Code.
The contention that the tyres were covered by the exemption that applied to the air seeder depends upon the application of the Code. Because of my finding that the Code does not apply to the carriage of the tyres because the air seeder could be divided from the tyres (and also apparently from the hoses and other components) without great difficulty, expense or risk of damage it is not strictly necessary to decide whether the tyres attracted the exemption which applied to the air seeder chassis. Nevertheless, in case I am wrong about that point, I will consider the issue.
The legislative intention
Counsel submitted that the interpretation adopted by the magistrate was contrary to the object of the Code which he described as the facilitation of the transport of oversized loads while minimising the risk. The interpretation adopted by the magistrate would allow a single undivided agricultural vehicle up to 4.5 m in width to be transported. The air seeder with its tyres would have been 4.22 m[16] and thus within the exemption, which allows loads up to 4.5 m in width. The air seeder with its tyres removed was 3.28 m.[17] That resulted in a safer load than if the tyres had been attached to the air seeder. He submitted that it cannot have been the intention of Parliament to punish a person for creating a lesser risk.
[16] Agreed facts.
[17] Although the police assessed the air seeder as being 2900 mm in width, the agreed facts state the air seeder was 3280 mm in width.
The fatal flaw in this argument is that the test imposed by clause 2.1.1 is whether an agricultural implement or machine could be divided without great difficulty, expense or risk of damage. I have found that the magistrate was correct in deciding that the air seeder could be divided relatively easily from its tyres. For that reason, if the tyres had been attached, the exemption under the Code would still not have been available. The exemption would only have applied if the tyres could not be removed without great difficulty, expense or risk of damage.
To put the matter another way, the clear object of the Code is to authorise the transport by road of large agricultural machinery that could not otherwise lawfully be carried without the grant of a specific permit. That authorisation is only available where the load cannot readily be divided. Once the load has been divided, as in the present case, it would be contrary to the scheme of the Code to continue to treat the separated items, in this case the tyres, as if they were still part of the indivisible item of agricultural machinery. In essence, that is the conclusion reached by the magistrate.
I consider that the magistrate correctly found that Mr Busbridge was required not only to transport the tyres detached from the air seeder but also to load the tyres within the prescribed width limit of 2.5 m.
Clause 2.2 of the Code and the explanatory note
There are several other points that must be considered. The first of these is the possible application of clause 2.2.1. The opening words of clause 2.2 state that “the following may also be transported under this Code”. The use of the word “also” suggests that the items described in clause 2.2.1 may be carried notwithstanding that the requirements of clause 2.1 have not been satisfied.
While the written submission made to the magistrate on behalf of Mr Busbridge mentioned clause 2.2, it was not submitted that it operated to allow the carriage of the air seeder even if the requirements of clause 2.1 were not met. More importantly, it was not suggested that the air seeder could properly be described as a combination of machines or implements connected and operated by hydraulic hoses, drive shafts or other couplings. The evidence clearly suggested that the air seeder was one machine or implement and not a combination joined by hydraulic hoses, shafts or couplings.
I do not consider that the explanatory note to clause 2.2 has the effect that the tyres, hoses and so forth will be an agricultural vehicle (ie an agricultural machine or implement) even when they are disassembled or detached from the air seeder. In my view the explanatory note simply provides examples of agricultural equipment that may be carried if the conditions set out in the Code are satisfied. The explanatory note does not operate so as to extend the exemption under the Code to all oversize tractor and air seeder combinations regardless of whether or not they meet the other requirements stipulated in the Code. In any event, the load carried by Mr Busbridge was not a tractor and air seeder combination, ie there was no tractor.
Clause 10.2.1 of the Code
Although the magistrate did not specifically address the issue in his reasons, the prosecution had submitted that Mr Busbridge had not complied with clause 10.2.1 of the Code, which requires that the load must be carried so as to minimise the amount by which it exceeds 2.5 m in width. Mr Busbridge stated in his record of interview that the tyres had not been placed vertically “because of the movement” and “restraint of a round object”. I understand these statements to mean that he considered that it would be safer to load the tyres side by side. While Mr Pitt was not involved in the loading he was permitted to give opinion evidence because of his long industry experience. He stated in evidence that the tyres would have been placed side by side so as to provide a space to store the hoses and other items and also because it was safer. He did not explain why it would be safer. His evidence also did not explain why the two protruding tyres could not have been placed one on top of the other in the same fashion as the other two tyres rather than side by side. Mr Pitt conceded that if the tyres had been carried on an additional vehicle the width restrictions would not have been exceeded. However, that would have incurred additional expense, ie $8,500.
In my view, clause 10.2.1 would not be breached if the means available to reduce the load below 2.5 m in width were plainly unreasonable or impracticable. If, in the particular circumstances, because of the nature of the particular cargo or for some other reason, it was unsafe to load a vehicle so that it did not exceed the 2.5 m limit then I do not consider that there would be any breach of clause 10.2.1. While in the present case the evidence about safety was not very specific, I am prepared to accept that safety issues were a significant consideration in loading the tyres side by side. However, it is also necessary to consider the operation of clause 12.3.1.
Clause 12.3.1 of the Code
Clause 12.3.1 requires that, where a load consists of more than one item, these items must not be loaded side by side to more than 2.5 m wide. This is expressed to operate as an absolute prohibition upon loading multiple items side by side if that will result in a breach of the 2.5 m limit. For the reasons given at paragraph 73, I agree with the conclusion of the magistrate that the tyres were separate to the air seeder. More particularly, the tyres were two separate items. For that reason, the prohibition under clause 12.3.1 applied. The tyres could not be loaded in a fashion that resulted in the 2.5 m limit being exceeded. If, as appears to be the case, safety considerations required that the tyres not be placed vertically, then it was necessary to either rearrange the load so that the dimension limits were not exceeded or to use a second vehicle, albeit at a greater cost.
Use of the National Regulations to interpret the Code
Counsel for Mr Busbridge submitted that the Code should be interpreted in light of schedule 8 to the National Regulations. Amongst other matters, schedule 8 sets out conditions that apply to mass or dimension exemptions granted to a class 1 heavy vehicle by a notice published in the Commonwealth Gazette under s 61 of the National Law.
Although the Notice and Code were published some six years before the National Law and National Regulations, as I have explained at paragraphs 30 and 31, s 748 of the National Law deems the Code to have effect as if had been made under s 61 of the National Law.
Notwithstanding the matters referred to in the preceding paragraph, I do not accept that the Code should be interpreted in light of the National Regulations, which were enacted some six years later. The approach suggested by counsel ignores the temporary supremacy given to the Code by the transitional provision. It would also result in the meaning of the Code potentially being altered by the subsequent promulgation of the National Regulations several years later. If that result had been intended it could have been expressly required by the transitional provision in s 748. The failure of the legislature to make any such provision leads me to conclude that the approach advocated by counsel must be rejected.
In any event, counsel’s submission was that, in interpreting the Code, the Court should apply the principle that counsel said was found in s 13 of schedule 8 to the National Regulations. Sections 13(2) and (3) provide that:
(2) A load carrying vehicle carrying one or more large indivisible items must not carry any other goods unless –
the other vehicle together with its load complies with the general mass limits; and
the other goods are contained within the limits set by the prescribed dimension requirements.
(3) Despite subsection (2), a load-carrying vehicle carrying a special purpose vehicle or agricultural vehicle may also carry equipment, tools, substances or detached parts to be used in conjunction with the vehicle being carried.
Section 116(4) of the National Law defines a “large indivisible item” in terms substantially similar to the definition of agricultural vehicle under the Code. Counsel contended that s 13(3) permitted detached parts of agricultural vehicles to be loaded to a width greater than that prescribed. He therefore submitted that a similar effect should be given to the Code.
That submission fails to recognise that the purpose of s 13(2) is to prohibit the carrying of other goods in conjunction with one or more large indivisible items unless the requirements set out in (a) and (b) are satisfied. Section 13(3) simply operates to remove the prohibition otherwise imposed by s 13(2) upon the carrying of other goods. It quite clearly does not operate as an overarching dispensation from the general mass limits and the dimension requirements. Accordingly, the reliance that counsel sought to place upon the National Regulations as an aid to the interpretation of the Code would not assist his client even if that approach were to be adopted.
For these several reasons, I consider that the magistrate did not err in finding that the protruding tyres were not covered by any relevant exemption. Thus, Mr Busbridge was correctly found guilty by the magistrate of exceeding the prescribed width limit of 2.5 m.
Second ground of appeal
Mr Busbridge’s second ground of appeal was that the magistrate failed to provide sufficient reasons for his decision. It was submitted that there was nothing in the magistrate’s reasons to explain his conclusion that the defence witness, Mr Pitt, was not a credible witness. A further complaint was that the judgment did not indicate how the magistrate had made his findings of fact and applied the Code to those facts. In particular, paragraph 28 of the magistrate’s reasons, containing the finding that the vehicle was an air seeder, did not adequately disclose the magistrate’s process of reasoning.
Counsel for Mr Busbridge referred to Fleming v The Queen to the effect that proper reasons for judgment are not:[18]
…satisfied merely by bare statements of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.
[18] (1998) 197 CLR 250 at [28].
Counsel also relied upon R v Mayger, where the Full Court held that:[19]
The question of whether in a particular case a judge has given adequate reasons will depend upon the circumstances of that case. So long as the judge has clearly set out the basis upon which the judge’s decision rests, it is not necessary for a judge to give extensive and elaborate reasons.
[19] (2013) 116 SASR 488 at [21], Gray, Sulan and Blue JJ.
Consistently with that observation, Kirby P (as he then was) observed in Soulemezis v Dudley (Holdings) Pty Ltd that the judicial officer need not enter into “a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion.”[20]
[20] (1987) 10 NSWLR 247 at 259.
While the judgment is endorsed as having been delivered extempore, I note that it was not published until 11 March 2015 although the taking of evidence and submissions had concluded on 19 February 2015. In the interim period defence counsel filed written submissions. Whether or not the reasons were properly described as extempore, they were delivered orally rather than in writing and some allowance must be made for that fact when analysing the reasons of the magistrate.
My findings at paragraphs 59 to 87 concerning the first ground of appeal indicate that the magistrate provided adequate reasons for his decision. He identified the key issues, made findings of fact and considered the relevant provisions of the Code. His Honour’s finding of guilt followed upon application of those provisions to the facts as found.
Counsel contended that “[t]here is no statement within the judgment which exposes the magistrate’s assessment of the witness, Mr Pitt, other than the bare statement that the magistrate ‘did not find him a credible witness’.”
The finding that Mr Pitt was not a credible witness was made at paragraph 43, being the final paragraph of the magistrate’s reasons. This conclusion was reached after the analysis set out in the preceding several paragraphs. While the magistrate did not expressly say so, it must be recognised that he had the benefit of seeing and hearing Mr Pitt give oral evidence in chief and respond to cross-examination.
In any event, it is clear from paragraphs 41 to 43 of the magistrate’s reasons that the finding that Mr Pitt was not a credible witness related to the reasonable steps defence. That issue has not been pursued on this appeal. Even if the magistrate had erred in rejecting the evidence of Mr Pitt (which I consider he was entitled to do) any such error did not affect his findings as to the application of the Code.
I consider that the magistrate did not err by failing to provide proper reasons for the finding that Mr Busbridge was guilty of the offence charged.
Conclusion
The first ground of appeal is not made out. The magistrate did not err in finding that the protruding tyres were not covered by the exemption and that the load exceeded the prescribed limits.
The second ground of appeal is also not made out. When the magistrate’s reasons are read in their entirety and in context it is clear that his Honour gave sufficient and proper reasons for the finding of guilt.
I dismiss the appeal. I will hear the parties as to costs.
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