GrainCorp Operations Limited v Executive Director (Heavy Vehicles & Prosecutions) Department Of Transport And Main Roads And Anor - [2023] QCAT 523

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

GRAINCORP OPERATIONS LIMITED V EXECUTIVE DIRECTOR (HEAVY VEHICLES & PROSECUTIONS) DEPARTMENT OF TRANSPORT AND MAIN ROADS AND ANOR [2023] QCAT 523

PARTIES:

GRAINCORP OPERATIONS LIMITED

(Applicant)

v

EXECUTIVE DIRECTOR (HEAVY VEHICLES & PROSECUTIONS) DEPARTMENT OF TRANSPORT AND MAIN ROADS

(First Respondent)

DEPARTMENT OF TRANSPORT AND MAIN ROADS

(Second Respondent)

APPLICATION NO/S:

GAR167-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

10 May 2023

HEARING DATE:

5 September 2022

HEARD AT:

Brisbane

DECISION OF:

A/Member Katter

ORDER:

1.   The Review Decision dated 16 April 2020 is set aside and substituted with a decision to revoke the Improvement Notice dated 17 February 2020.

2.   Any application for costs is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions in support of the application for costs by 4:00pm on 8 June 2023.

3.   If an application for costs is made:

(a) the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions in response to the party making the application for costs by 4:00pm on 6 July 2023;

(b) the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions in reply to the other party by 4:00pm on 20 July 2023;

(c) the application for costs will be determined on the papers on the basis of any documents filed unless a written request for an oral hearing regarding costs is made to the Tribunal before 27 July 2023.

4.   If no application for costs is made in accordance with Order 2 then there shall be no order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – where Applicant seeks review of decision by Department of Transport and Main Roads to issue improvement notice – whether Applicant has, so far as is reasonably practicable, eliminated public risks.

Heavy Vehicle National Law (Qld) s 3, s 5, s 26A 26B(4), s 26C(1), 26C(2), s 26H, s572(1), s572(2), s 572(3), s 572(4), s 640, s 647, 649(2)

National Heavy Vehicle Law Act 2012 (Qld) s 36

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 24

APPEARANCES & REPRESENTATION:

Applicant:

T Sullivan QC with N Derrington instructed by Holding Redlich

Respondent:

M Hickey for the Department of Transport and Main Roads

REASONS FOR DECISION

By application filed 14 May 2020, the Applicant seeks review of the decision made on 16 April 2020 by the First Respondent (“the Review Decision”). The decision of 16 April 2020 was a review decision regarding the prior reviewable decision by the Department of Transport and Main Roads to issue an Improvement Notice to the Applicant on 17 February 2020 (“the Improvement Notice”).
The Applicant submits that the Review Decision of 16 April 2020 should be set aside and that a substituted decision be made by the Tribunal to set aside or revoke the Improvement Notice.

Background

It was not controversial between the parties that during the period 27 March 2019 to 16 June 2019 six heavy vehicles loaded with grain by the Applicant at its facilities at the Port of Brisbane were weighed by Transport Inspectors and found to be overloaded on one or more axle groups.[1]
[1] Review Decision, 16 April 2020 at pages 6 -12.
In response to the instances of overloading, the Department of Transport and Main Roads issued the Applicant with the Improvement Notice of 17 February 2020. The Improvement Notice is a reviewable decision permitting application to the Department of Transport and Main Roads for internal review.
The Applicant applied for internal review on 17 March 2020. The internal review decision made by the First Respondent and dated 16 April 2020 is the Review Decision the subject of the present Application for review before the Tribunal.
On 14 September 2021, the Tribunal granted leave and made directions for the filing of further evidence[2] and submissions relating to four additional instances of overloading of heavy vehicles at the Applicant’s facilities at the Port of Brisbane between 20 February 2020 to 8 May 2020.
[2] Affidavit of Nathan Wright dated 9 July 2021 and Affidavit of James Wilson sworn 9 July 2021.

The Review Decision

The Review Decision of 16 April 2020 by the First Respondent, found that:
“GrainCorp, as the loading manager, has complete capacity to control, eliminate or minimise the risk posed by over mass heavy vehicles being operated on public roads. Drivers are liable under section 96 for driving a vehicle that is over the mass limit. They have a self-interest in controlling the mass, but they do not control the system in which they operate, hence the need for the chain of responsibility laws. As the problem is too much grain over the axle groups, and GrainCorp’s weighbridges do not allow axle weight to be measured, the only solution open is to expressly decrease the mass of grain being loaded on to each combination. GrainCorp has not taken that reasonably practicable measure, so in the circumstances I believe it is likely that GrainCorp’s contravention of section 26H of the HVNL will continue.”
The First Respondent directed the Applicant:
1.To stop the contraventions from continuing GrainCorp must implement a system that reduces the gross mass for each combination or single vehicle loaded by its Fisherman Island Terminal to adequately ensure that no axle mass groups are in excess of the permissible axle group mass limits that apply to them, pursuant to the Heavy Vehicle (Mass, Dimension and Loading) National Regulation.
Given the total number of possible combinations, it is not reasonable to require GrainCorp to reduce the load by a pre-determined, fixed percentage or tonnage.
Nonetheless, GrainCorp should create and maintain a document, and train its weighbridge operators accordingly (the 2020 Improvement Notice Policy) that addresses the requirement in Improvement 1. This document may be furnished upon authorised officers to exhibit compliance with the requirements of Improvement 1.
Improvement 1 must be complied with by 1 July 2020.
The Applicant submits that the Review Decision of 16 April 2020 should be set aside and that the Tribunal make a substitute decision to not issue an Improvement Notice.

The Tribunal’s jurisdiction to review

Section 647 of the Heavy Vehicle National Law (Qld) (the “HVNL”) confers jurisdiction on the Tribunal to determine appeals against a review decision relating to a reviewable decision made by Department of Transport and Main Roads.
section 640 of the HVNL provides that the expression “relevant appeal body” means the relevant tribunal or court for an appeal against a review decision.
Sections 640 and 647 of the HVNL contain the word “appeal”. Some enlivening acts do permit direct application to the Appeal Tribunal from departmental decision makers. However, section 36 of the National Heavy Vehicle Law Act 2012 (Qld) clarifies that:
A reference in the Heavy Vehicle National Law (Queensland) to an appeal against a decision is, for an appeal to QCAT as the relevant tribunal or court, a reference to a review of the decision as provided under the QCAT Act.
The “appeal” in these proceedings is, therefore, not an application to the Appeal Tribunal directly from a departmental decision maker but rather it is an application to the Tribunal to review a decision as clarified by section 36 of the Act. The “appeal” or review is by way of rehearing.[3] The Tribunal may confirm, set aside and substitute another decision or return the matter for reconsideration with directions to the decision maker.[4]
[3] Section 649(2) of the NVHL and section 20 of the QCAT Act.
[4] Section 649(3) of the NVHL and section 24 of the QCAT Act.

Relevant statutory provisions

Section 3 of the HVNL sets out that the object of the HVNL is to facilitate and regulate the use of heavy vehicles on roads in a way that:
(a)promotes public safety; and
(b)manages the impact of heavy vehicles on the environment, road infrastructure and public amenity; and
(c)promotes industry productivity and efficiency in the road transport of foods and passengers by heavy vehicles; and
(d)encourages and promotes productive, efficient, innovative and safe business practices.
The HVNL provides for shared responsibility at section 26A as follows:
26A Principle of shared responsibility
(1)   The safety of transport activities relating to a heavy vehicle is the shared responsibility of each party in the chain of responsibility for the vehicle.
(2)   The level and nature of a party’s responsibility for a transport activity depends on:
(a)The functions the person performs or is required to perform, whether exclusively or occasionally, rather than –
(i)      the person’s job title; or
(ii)      the person’s functions described in a written contract; and
(b)The nature of the public risk created by the carrying out of the transport activity; and
(c)The party’s capacity to control, eliminate or minimise the risk.
A “party in the chain of responsibility” is defined in section 5 of the HVNL to include a “loading manager for any goods in the vehicle”.
“Public risk” is defined in section 5 to mean “a safety risk” or “a risk of damage to road infrastructure”.
Section 26B(4) of the HVNL provides that a duty under the HVNL may not be transferred to another person.
The primary duty of a party in the chain of responsibility is set out at section 26C of the HVNL as follows:
(1)   Each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle.
(2)   Without limiting subsection (1), each party must, so far as is reasonably practicable –
(a)Eliminate public risks and, to the extent it is not reasonably practical to eliminate public risks, minimise the public risks; and
(b)Ensure the party’s conduct does not directly or indirectly cause or encourage-
(i)      The driver of the heavy vehicles to contravene this Law; or
(ii)      the driver of the heavy vehicle to exceed a speed limit applying to the driver; or
(iii)     another person, including another party in the chain of responsibility, to contravene this Law.
Section 5 of the HVNL lists the “safety duty” provisions. Section 26C is listed as a “safety duty” provision. Section 26H of the HVNL sets out that it is an offence to contravene the safety duty under section 26C.
Section 5 also defines the phrase “reasonably practicable” as follows:
“reasonably practicable in relation to a duty, means that which is, or was at a particular time, reasonably able to be done in relation to the duty, weighing up all relevant matters, including –
(a)The likelihood of a safety risk, or damage to road infrastructure, happening; and
(b)The harm that could result from the risk or damage; and
(c)What the person knows, or ought reasonably to know, about the risk or damage; and
(d)what the person knows, or ought reasonably way of-
(i) Removing or minimising the risk;
(ii) Preventing or minimising the damage; and
(e)The availability and suitability of those ways; and
(f)The cost associated with the available way, including whether the cost is grossly disproportionate to the likelihood of the risk or damage.
Improvement notices. If an authorised officer reasonably believes a person has contravened or is contravening the HVNL in circumstances that make it likely that the contravention will continue, the authorised officer may give the person an improvement notice requiring the person to take action to step the contravention from continuing or occurring again or to remedy the matters or activities occasioning the contravention.[5]
[5] HVNL section 572(1) and 572(2).
The improvement notice must be in the approved form and must state that the person must take action within a stated period to stop the contravention from continuing or occurring again or to remedy the matters or activities occasion the contravention.[6]
[6] Ibid at 572(3).
The improvement notice may state the way the action is to be taken.[7]
[7] Ibid at section 572(4).

Materials

The parties filed a joint list of material to be relied upon at the hearing. The joint list helpfully isolated out the relevant evidence and submissions from other materials filed for interlocutory purposes. The materials to be relied upon were as follows:
1.           Applicant’s submission dated 10 May 2021
2.           Respondents’ submissions dated 5 July 2021
3.           Applicant’s submissions in reply dated 2 August 2021
4.           Respondents’ submissions (supplementary) dated 24 September 2021
5.           Applicant’s submissions in reply (supplementary) dated 11 April 2022
Applicant’s evidence
6.           Affidavit of Matthew Elischer dated 8 March 2021
7.           Affidavit of Kieran Gardner dated 1 April 2021
8.           Affidavit of Kieran Gardner dated 11 April 2022
Respondents’ evidence
9. Documents in the possession or control of the Respondents relevant to the Tribunal’s review of the decision under section 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) filed 19 August 2020
10.         Affidavit of Karl Frank dated 28 September 2020
11.         Affidavit of Nathan Wright dated 9 July 2021
12.         Affidavit of James Wilson dated 9 July 2021
13.         Affidavit of Christopher Noyes dated 4 August 2021

Has the Applicant contravened its Primary Duty

In conducting a rehearing[8] of the Review Decision, the Tribunal must consider whether the Applicant has ensured, so far as is reasonably practicable, the safety of the Applicant’s transport activities relating to heavy vehicles.[9] The Tribunal must consider whether the Applicant has, so far as is reasonably practicable, eliminated public risks and, to the extent it is not reasonably practicable to eliminate public risks, minimised the public risks.[10]
[8] Ibid at section 649(2).
[9] Ibid at section 26C(1).
[10] Ibid at section 26C(2).
This review turns upon whether or not the Applicant has done what is “reasonably practicable” to eliminate or minimise the safety risk in relation to the instances of overloading as identified.
As set out above, the HVNL provides further definition for the phrase “reasonably practicable” and sets out relevant matters for consideration in relation to whether a duty has been contravened. The relevant matters are addressed as follows:
The likelihood of a safety risk, or damage to road infrastructure, happening and the harm that could result from the risk or damage
The Applicant submits that there is no evidence before the Tribunal to support a finding that a minor axle group overload causes a safety risk to the vehicle or to other road users.[11]
[11] Applicant’s submissions 5 July 2021 at paragraph 119.
The Applicant concedes, however, that it is possible to quantify the risk of road damage caused by minor axle over-loading. The Applicant refers to the affidavit evidence from a mechanical engineer, Matthew Elischer. Mr Elisher references the concept of Equivalent Standard Axle (ESA) which is a standard measurement for the wear and tear produced by a dual tyred single axle transmitting a load of 8 tonnes on the road.[12] Mr Elischer explains that a vehicle with minor overloading of an axle group would produce additional wear and tear approximately 0.49 ESAs or 4.5 percent above that produced by a correctly loaded vehicle.
[12] Affidavit of Matthew Elischer dated 8 March 2021 at paragraph 8.
The Applicant submits, in reliance on the evidence of Mr. Elischer,[13] that despite each axle group individually causing more wear and tear as a result of the overloading, each vehicle overall caused less wear and tear than it was legally entitled to cause had that vehicle been fully loaded.[14]
[13] Ibid at paragraph 26.
[14] Applicant’s submissions dated 5 July 2021 at paragraph 139.
The Respondents submit that the safety risks extend beyond merely damage to road infrastructure. The Respondents referred to the definition of “safety risk” in section 5 of the HVNL as including the risk to drivers and passengers, persons or property in the vicinity, to vehicles and combinations and to the environment.
The Respondents submit that the evidence before the Tribunal is that:[15]
“a. Heavy vehicles loaded at GrainCorp’s premises have been intercepted some 5 to 15 kilometres from its Terminal and, upon being weighed, have not been within prescribed axle mass limits;
b. GrainCorp has no method of satisfying itself as to whether those heavy vehicles left (or whether heavy vehicles continue to leave) its terminal with loads that exceed prescribed axle mass limits.”
[15] Respondents’ submission dated 5 July 2021 at paragraph 115.
The Tribunal does have before it evidence regarding the risk to road infrastructure. The Tribunal does not have before it any evidence that could quantify or directly identify any increased likelihood of a safety risk to drivers, passengers, persons or property, vehicles or combinations or the environment resulting from the identified axle overloading. The Tribunal accepts that there is an inherent risk in the use of heavy vehicles, or any vehicle, for that matter. It may be a matter of logic or reasoning to find an increased safety risk if a heavy vehicle is loaded above its gross mass limit. However, the Tribunal is not satisfied the same logic and reasoning should automatically apply to the identified axle group overloading if there is no gross mass overloading. In the absence of further evidence, the Tribunal is not satisfied that it can find any increased risk to safety or harm other than the risk as noted in relation to road infrastructure.
In relation to the risk to road infrastructure, the Applicant referred[16] to an example provided by Mr Elischer to demonstrate that a vehicle with axle overloading but not fully loaded to the concessional mass limit caused less wear and tear than a vehicle correctly loaded up to the concessional mass limit.[17]
[16] Applicant’s submissions dated 10 May 2021 at paragraph 128.
[17] Affidavit of Matthew Elischer dated 8 March 2021 at paragraphs 9 to 17.
What the person knows, or ought reasonably to know, about the risk or damage
The Applicant submits that it had no knowledge of the overloading contraventions at the time they occurred. The Applicant further submits that whilst the Improvement Notice brought the contraventions to the attention of the Applicant, the concern of the decision maker should be whether the Applicant knew or ought to have reasonably known about the risk at the time of the contraventions. The Applicant submits it did not know.
Section 649(2) of the HVNL permits consideration of further evidence if allowed by the Tribunal. The Tribunal did permit further evidence of further overloading incidents involving the Applicant subsequent to the issuance of the Improvement Notice. There is some evidence of some risk to road infrastructure before the Tribunal in relation to the axle overloading contraventions. Having regard to the timing of the filing of that evidence, it is correct to suggest that further axle overloading incidents have occurred after the Applicant became aware that axle overloading had occurred on six occasions at their Port of Brisbane facility.
If the Tribunal accepts that the evidence of further axle overloading post the Improvement Notice (as filed by leave) can be considered in arriving at the correct and preferrable decision, then it is open to find that the Applicant has had actual knowledge of the risk of axle overloading at times of loading.
The Tribunal must also consider whether the Applicant ought to have reasonably known about the risk of axle overloading prior to receipt of the Improvement Notice. There has been no articulation by any party of a specific system or procedure that would permit the Applicant to have complete control over the loading process so as to ensure that axle overloading does not occur. The Applicant submits that the only available interpretation from the direction in the Review Decision is that there be systematic “underloading”. The Respondents refute that systematic “underloading” is the correct interpretation of the direction in the Review Decision. The interpretation of the Review Decision direction will be discussed further below. Suffice to say, for present purposes, the Tribunal is not satisfied that any specific loading process or system has been identified by either party that would remove any risk of axle overloading and permit loading up to the legal limit. Therefore, it flows that in the absence of specific process or system, the Applicant ought reasonably to be aware that there is a risk of axle overloading.

Importantly, the risk of axle overloading does not, on the submission of the Applicant, necessarily give rise to a safety risk or to elevated damage. On the submission of the Applicant, and referring to evidence of Mr Elischer, the wear and tear from the identified axle overloading would not be as great as wear and tear from each subject heavy vehicle if it were fully loaded to the legal limit.[18]
[18] Affidavit of Matthew Elischer dated 8 March 2021 at paragraphs 9 to 17.
Whilst it may be said that the Applicant ought reasonably have known about the risk of axle overloading, the materials before the Tribunal do not support a finding that the Applicant knew or ought reasonably have known about a safety risk or an elevated risk of damage from any axle overloading.
What the person knows or ought reasonably to know about the ways of removing or minimising the risk, preventing or minimising the damage and the availability and suitability of those ways
As noted above, the parties have not presented the Tribunal with any reasonably practicable way to remove or minimise the risk of axle overloading other than loading below the legal limit. The Applicant submits that the Respondents have effectively directed a “way” by requiring the Applicant to systemically underload. The Tribunal, however, does accept the submission of the Respondents that “systematic underloading” has not specifically been directed. Instead, the Respondents submit that what has been directed (in the absence of any other technical capability on the part of the Applicant to ensure axle mass limits are not exceeded) is a reduction in the amount loaded to a level that means the Applicant is ensuring that prescribed axle mass limits are not exceeded. In other words, the direction is to simply load grain to a limit that does not exceed the axle mass limits. The resulting question is how can this be can this be achieved in a way that is reasonably practicable?
The Respondents do not set out precisely how the loading reduction can be achieved to ensure prescribed axle mass limits are not exceeded whilst still loading to the legal limit. It is not for the Tribunal to presume that a process or system different from the extant practice of the Applicant is available and that any such process or system will ensure compliance in a way that is reasonably practicable. It is certainly not a task for the Tribunal to suggest or speculate about some reasonably practicable way of achieving the reduction.
The Applicant has provided evidence regarding the systemic unloading that would be required to achieve the control for the Applicant to ensure axle mass limits are not exceeded.[19] Whilst systemic underloading may ensure axle mass limits are not exceeded, the cost implications (discussed below) are significant.
The cost associated with the available way, including whether the cost is grossly disproportionate to the likelihood of the risk or damage.
[19] Affidavit of Kieren Gardner dated 1 April 2021.
The Applicant submits that the costs associated with systemic underloading are grossly disproportionate to the likelihood of the risk.
The evidence of Mr Gardiner is that the Applicant would need to prevent the loading of vehicles to any mass greater than 90% of the permissible gross weight in order to minimise the risk of overloading.[20]
[20] ibid at paragraphs 96-97.
If the required systemic reduction is implemented, Mr Gardner estimates an increase by 1244 outbound truck movements per year.[21]
[21] Ibid at paragraph 157.
The Applicant submits that the additional vehicle movements, the additional labour costs and the system adaptations costs would result in $960,000.00 costs per annum.[22]
[22] Ibid at paragraph 162.
It is further submitted that third party users will bear increased freight costs totalling $462,000.00 per annum.[23]
[23] Ibid at paragraph 164.
The Applicant submits that underloading would also have an intangible and detrimental effect to the Applicant’s competitiveness vis-à-vis competitors that are able to load to their legal limit.
Further, the Applicant submits that systemic underloading would need to be adopted at all loading sites thereby multiplying costs.[24]
[24] Ibid at paragraphs 171-173.
The Respondents did not seek to cross examine any of the Applicant witnesses at the hearing.

The correct and preferrable decision

Safety duties are set out a Chapter 1A of the HVNL. Section 26A of the HVNL statutorily provides for shared responsibility by multiple parties in a chain of responsibility. It was stated in the Review Decision that the Applicant “… has complete capacity to control, eliminate or minimise the risk …” in relation to over mass vehicles. Over mass and overloaded axle groups are, of course, separate concerns. As was noted in the Review Decision “… the problem was too much grain over axle groups…” and not simply over mass vehicles. So the relevant question is how can the Applicant control, eliminate or minimise the risk in relation to overloaded axle groups in a manner that is reasonably practicable.
It was not in dispute that the Applicant does not have facilities available at Port of Brisbane to individually weigh axles and nor was it suggested by either party that it would be reasonably practicable to require the installation of any such facilities.
It is not for the Respondents to direct with specificity how the Applicant, or any private enterprise, should undertake its activities so as to comply with statutory obligations. That is a matter for the Applicant. However, the direct implication of the Improvement Notice is that the Applicant has not done something reasonably practicable to do to ensure the safety of the Applicant’s transport activities.
Directing specific actions in an improvement notice is something separate and distinct from providing evidence to the Tribunal that there are actions available that are reasonably practicable to improve the safety of a party’s transport activities. In considering what else the Applicant can do that is reasonably practicable to ensure that there is not too much grain over axle groups, it is not appropriate for the Tribunal to speculate as to potential methods or actions. Had there been evidence before the Tribunal as to a reasonably practicable method or action that could be taken to further control, eliminate or minimise the risk, the challenge for the Tribunal in considering this matter would have been removed.
The Review Decision stated that “… the only solution open is to expressly decrease the mass of grain being loaded on to each combination …”. One interpretation of this might be that the Applicant should ‘underload’ below the legal limit. Another interpretation might be that the Applicant should reduce the mass of grain not necessarily to ‘underload’ but merely to ensure the legal limit is not exceeded. The latter interpretation would mean that the solution in the Review Decision is nothing more than a restatement of a legal requirement that the Applicant must not overload vehicles. If the latter interpretation is accepted, the position remains that no method or action has been presented to the Tribunal for ensuring compliance beyond that already in place. If the former interpretation is accepted, then the method or action to be considered is some systematic loading reduction to an amount below the legal mass limit.
The Applicant provided evidence as to what reductions below the legal mass limit would be required in order to ensure no further contraventions in relation to overloaded axles. In his affidavit, Mr Gardner, a has calculated that it would be necessary for the Applicant to refrain from loading vehicles to any mass greater than 90 percent of the permissible gross weight.[25] . Having regard to the risks vis-à-vis the costs of the systemic reductions, as set out above, the Tribunal is not satisfied that systemic underloading is reasonably practicable.
[25] Affidavit of Gardner dated 1 April 2021 at paragraphs 96-97.
As noted, the Tribunal was not presented with any other specific action that the Applicant could take to ensure the risk of axle overloading was removed or minimised. The Tribunal cannot consider whether action is reasonably practicable if no action beyond “…decrease the mass of grain being loaded…” has been proffered. Again, it should be emphasised that the Improvement Notice does not need to set out the specific manner by which the recipient of the notice should make the improvement. Section 572(1) of the HVNL provides that an improvement notice “may” state the way the action is to be taken. Indeed, it might be inappropriate in some circumstances to do so. Irrespective, for the Tribunal to find that there has been a failure by the Applicant to take an action that was reasonably practicable to take, the Tribunal must be satisfied that there actually is an action available and then give consideration to whether that action is reasonably practicable.
Do the instances of overloading suffice to support the issuance of the Improvement Notice? The Improvement Notice is effectively premised on the basis that the Applicant has contravened the primary duty at section 26C of the HVNL. That is, the Applicant must not have ensured, so far as is reasonably practicable, the safety of their transport activities given the issuance of the Notice. There must be something reasonably practicable that should be done that has not been done. The legislation does not establish a res ipsa like regime that necessitates the issue of an improvement notice in response to an overloading incident. Instead, to find that there has been a contravention of a safety duty by the Applicant, there must be some identifiable action that the Applicant has failed to adopt or take. When that action is identified, the next step would be to consider whether the action is reasonably practicable. To proceed otherwise raises concern in relation to procedural fairness. The Applicant is, effectively, in a position where they have received notification that they have contravened the safety duty by not doing something that was reasonably practicable but there has been no identification as to precisely what it is that was reasonably practicable that should have been done or should be done.
In the absence of evidence as to what was reasonably practicable for the Applicant to do to avoid the axle overloading incidents, the Tribunal cannot be satisfied that there was a valid basis for issuing the Improvement Notice having regard to the requirements of the HVNL. That is, the requisite contravention of the HVNL has not been identified. The overloading incidents do, of course, contravene the HVNL but they do not in and of themselves give rise to a contravention of the Applicant’s safety duty as a loading manager or party in the chain or responsibility.
The Tribunal was eager to hear how the axle overloading incidents could be avoided in way that was reasonably practicable. There was nothing before the Tribunal that would permit the Tribunal to be satisfied that a reasonably practicable method, action or way (howsoever described) was potentially available (or is potentially available).
The Tribunal is not satisfied that it can make a finding that there was (or is) some reasonably practicable way available to the Applicant to avoid the axle overloading incidents. Therefore, the Tribunal is not satisfied that a contravention of the safety duty has been made out so as to permit the issue of the Improvement Notice.
The correct and preferrable decision is that the Review Decision dated 16 April 2020 be set aside with a substitute decision made revoking the Improvement Notice dated 17 February 2020.