M and J Mitchell Pty Ltd v Director General of the Department of Transport

[2012] WADC 2

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   M & J MITCHELL PTY LTD -v- DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT [2012] WADC 2

CORAM:   COMMISSIONER GETHING

HEARD:   30 NOVEMBER 2011

DELIVERED          :   20 JANUARY 2012

FILE NO/S:   APP 66 of 2011

BETWEEN:   M & J MITCHELL PTY LTD

Appellant

AND

DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT
Respondent

Catchwords:

Road traffic vehicle standards - Exemption - B-double combination

Legislation:

Road Traffic (Vehicle Standards) Rules 2002 (WA)

Road Traffic (Vehicle Standards) Regulations 2002 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     Mr D H Solomon

Respondent:     Ms M J Paterson

Solicitors:

Appellant:     Solomon Brothers

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Ashby v Gillingham Nominess Pty Ltd [2008] WADC 50

Balcomb v Morris [2003] WADC 80

Blyth v Birmingham Waterworks Co (1856) 11 Exch 781

Butler v Bennett [2007] WADC 107

Butler v Fife Coal Co Ltd [1912] AC 149

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522

Gronow v Gronow (1979) 144 CLR 513

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18

House v R (1936) 55 CLR 499

Keet v Ward [2011] WASCA 139

Kondis v State Transport Authority (1984) 154 CLR 672

Lovell v Lovell (1950) 81 CLR 513

M & J Mitchell Pty Ltd v The Director General of the Department of Transport [2011] WASC 66

Mallet v Mallet (1984) 156 CLR 605

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Norbis v Norbis (1986) 161 CLR 513

Regan v Gibson [2010] WADC 144

Wyong Shire Council v Shirt (1980) 146 CLR 40

Zangzinchai v Millanta (1994) 125 ALR 265

1. COMMISSIONER GETHING:  The appellant operates a business by which it transports live animals.  It operates a fleet of prime movers and semi‑trailers, including a number of 'B double' combinations.  A B‑double combination is a combination of vehicles consisting of a prime mover towing two semi‑trailers.  It is characterised by the fact that the articulation point of the rear trailer is located at the rear of the lead trailer and is mounted on a tail section commonly located immediately above the rear axle group of the lead trailer.  Eight of the B-double combinations owned by the appellant have a combined internal deck length of over 18.8 m.  These eight trailers comprise about half of the appellant's fleet.  They were all acquired by the appellant before 1 November 2002. 

2. 1 November 2002 is a critical date because on that date the Road Traffic (Vehicle Standards) Rules 2002 (WA) (RTVS Rules) came into operation. The RTVS Rules provide that B-double combination trailers built to carry cattle, sheep, pigs or horses must not have over 18.8 m of their combined internal length deck available for the carriage of animals: r 63(2). The effect of the RTVS Rules was that the appellant could not lawfully operate about half of their fleet of semi trailers.

3. For some years after 2002, neither Main Roads WA nor the Department of Transport (Department) enforced RTVS Rules r 63(2) for combinations licensed prior to 1 November 2002. (For the purposes of this decision, it is not necessary for me to drawn any distinction between the actions of the Department, Main Roads WA and the Minister for Transport.) The appellant was able to continue to operate its semi‑trailers. In August 2008, Main Roads WA announced that after 1 September 2008, it would enforce RTVS Rules r 63(2) for combinations licensed prior 1 November 2002.

4. On 25 November 2008, the appellant was granted a Ministerial exemption from complying with r 63(2) pursuant to Road Traffic (Vehicle Standards) Regulations 2002 (WA) (RTVS Regs) r 37. This exemption was until 25 May 2009, with a further Ministerial exemption being granted until 31 December 2010.

5. On 16 July 2010, the appellant made an application under RTVS Regs r 42 to the respondent for a further exemption, this time for the operational life of the trailers.  The application was refused on 26 August 2010.  On 20 September 2010, the appellant invited the respondent to review his decision pursuant to RTVS Regs r 59.  After reconsideration, the respondent declined to further extend the exemption. 

6. On 12 November 2010, the appellant made an application to the Magistrates Court for a review of the decision of the respondent. The review power is contained in RTVS Regs r 60. While these proceedings were on foot, there was an application to the Supreme Court to challenge the validity of RTVS Regs r 60. McKechnie J upheld the validity of the review power: M & J Mitchell Pty Ltd v The Director General of the Department of Transport [2011] WASC 66.

7. The application proceeded to a hearing and on 24 August 2011 her Honour Magistrate Boon declined to overturn the decision of the respondent.  The present appeal is from this decision.

Power of the District Court to hear an appeal

1. Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 40(1) gives a party to a 'case' a right of appeal to the District Court against 'the judgment of the Magistrates Court in the case'. The term 'case' is defined in MCCPA s 3(1) to mean 'any proceedings in the Court involving or in connection with the Court's civil jurisdiction'. A review pursuant to RTVS Regs r 60 is a 'case' for the purposes of the MCCPA and thus the District Court has jurisdiction to hear an appeal.

2. The appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court: District Court Rules 2005 (WA) (DCR) r 50(1). Neither party has asked the court to exercise its discretion to admit further evidence, so the appeal is to be determined on the evidence before the magistrate: MCCPA s 40(4); DCR r (2).

3. An appeal from a decision of a magistrate to the District Court is by way of rehearing: Regan v Gibson[2010] WADC 144 [7]; Butler v Bennett[2007] WADC 107 [10]. It is thus necessary for the appellant to demonstrate error in the court below: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission[2000] HCA 47 [14]; (2000) 203 CLR 194, 203 ‑ 204.

4. The decision under appeal depended upon the exercise of a judicial discretion, namely the review under RTSV Regs r 60 of the respondent's decision. The nature of the inquiry an appellate court is to undertake when reviewing a discretionary decision is conveniently summarised in the decision of Dixon, Evatt and McTiernan JJ in House v R (1936) 55 CLR 499 (504 ‑ 505, references omitted):

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

5. In Norbis v Norbis (1986) 161 CLR 513, Mason J and Deane J made the following comments elaborating on the principles set out in House ((518) – (519)):

   Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion.  The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

   The principles enunciated in House … were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined.  If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance.  In conformity with the dictates of principled decision‑making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part.  According to our conception of the appellate process, the existence of such an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal. 

Legislative framework

1. RTVS Rules r 63(2) prescribes the maximum length of a B-double, as follows:

   63.     Length of combinations

   (1)A combination must not be over —

   (a)for a B‑double — 25 m long;

   (b)for a road train — 53.5 m long;

   (c)for a combination, except a road train, designed to carry vehicles on 2 or more partly or completely overlapping decks — 25 m long; and

(d)for another combination — 19 m long.

(2)In a B‑double built to carry cattle, sheep, pigs or horses, the 2 semi‑trailers must not have over 18.8 m of their combined length available for the carriage of animals.

(3)For subrule (2), the length available for the carriage of animals on a trailer is measured from the inside of the front wall or door of the trailer to the inside of the rear wall or door of the trailer, with any intervening partitions disregarded.

1. There is a prohibition on driving or permitting a combination to be on a road unless it complies with vehicle standards applying to the combination:  RTVS Regs r 10.  Penalties apply for a breach.

2. The respondent has the power to exempt a person from complying with the vehicle standards:  Road Traffic Act 1974 (WA) s 111AB(2); RTVS Regs r 41(1). Two types of exemption are specified: 'in respect of all persons or vehicles of a kind specified in the exemption' or 'in the circumstances set out in regulation 43': RTVS Regs r 41(2).

3. The RTVS Regs r 42 sets out the application process.  RTVS Regs r 43 sets out the framework within which decision to exempt must be made:

43.     Making decisions on application

(1)The Director General must decide an application under regulation 42 as soon as practicable after receiving the application.

(2)A departmental exemption may exempt a vehicle from a provision of these regulations or the Vehicle Standards only if —

(a)complying with the provision would prevent the vehicle from operating in the way in which, or for the purpose for which, the vehicle was built or modified, and non‑compliance with the provision would not be likely to have an adverse effect on the safety of the vehicle or of road‑users;

(b)the vehicle is an experimental vehicle, a prototype, or another vehicle, that could not reasonably be expected to comply with the provision;

(c)the vehicle —

(i)was registered, or otherwise authorised, to be driven or towed on a road by the Director General (or an authority of another State or a Territory whose functions correspond to those of the Director General) before the commencement of the provision; and

(ii)was not required to comply with a similar provision before that commencement;

(d)the vehicle has been constructed, equipped or adapted so as to enable it to be driven by a person with a physical disability who cannot safely drive a vehicle that has not been so constructed, equipped or adapted; or

(e)it would be unreasonable to require the vehicle to comply with the provision.

(3)A departmental exemption may exempt all vehicles for which a person is responsible from a provision of these regulations or the Vehicle Standards if it would be unreasonable to require the vehicle to comply with the provision.

(4)A departmental exemption may exempt a combination from a provision of the these regulations or the Vehicle Standards only if —

(a)complying with the provision would prevent the combination from operating for the purpose for which the combination is, or is proposed to be, used;

(b)the combination is an experimental combination, or prototype, or another combination, that could not reasonably be expected to comply with the provision; or

(c)it would be unreasonable to require the combination to comply with the provision.

(5)A departmental exemption may exempt, under subregulation (4), all combinations in the charge of a particular person from a provision of these regulations or the Vehicle Standards if it would be unreasonable to expect all the combinations to comply with the provision.

(6)The Director General may amend a departmental exemption only if —

(a)since the exemption was given, a change has happened in relation to something the Director General considered in deciding to give the exemption; and

(b)the exemption would have been given as it is proposed to be amended if the change had happened before the exemption was given.

(7)The Director General may revoke a departmental exemption only if the applicant has a sufficient interest in seeking the revocation.

(8)In deciding whether to grant or amend a departmental exemption, the Director General must take into account the likelihood and significance of any adverse effect on safety or the environment if the exemption were given or amended.

(9)In deciding whether to grant a departmental exemption on the basis that it would be unreasonable for the vehicle or combination to comply with the provision, the Director General must take into account —

(a)the use or proposed use of the vehicle or combination;

(b)the nature of the exemption;

(c)whether or not the vehicle or combination can be operated safely despite not complying with the provision; and

(d)the public interest in the vehicle or combination not complying with the provision.

1. There is then a general right of an applicant for an exemption (among other applications) to ask the respondent to reconsider the decision:  RTVS Regs r 59.  The right is in the following terms (so far as is relevant): 

   59.     Decisions may be reconsidered

   …

   (4)A request for reconsideration must state the decision that the person wants the Director General to make after reconsideration of the initial decision and outline why the Director General should make that decision.

   (5)Within 28 days after receiving the request, the Director General must reconsider the initial decision and —

   (a)confirm the decision;

   (b)amend the decision; or

   (c)set aside the decision and substitute a new decision.

   (6)The Director General must tell the person who made the request in writing —

   (a)the result of the reconsideration; and

   (b)if the Director General does not make the decision sought by the person —

   (i)the reasons for the reconsidered decision; and

   (ii)that the person may apply to the Magistrates Court to have the decision reviewed by the Magistrates Court.

2. The power to review a decision that has been reconsidered is contained in RTVS Regs r 60:

   60.     Review of decisions

   Application may be made to the Magistrates Court for review of a decision that has been reconsidered by the Director General under regulation 59.

Proceedings in the Magistrates Court

1. The hearing before Magistrate Boon took place on 8 August 2011, with further submissions being filed on 12 August 2011.  Her Honour delivered written reasons on 24 August 2011 (Appeal Book (AB) 9 – 33). 

2. Her Honour began with a consideration of RTVS Rules r 63(2). Her Honour summarised the discretionary framework from the RTVS in the following terms (AB 19):

   1)Would it be unreasonable to require Mitchells' combinations to comply with the requirements of rule 63(2)? (regulation 43(4)(c))

   2)In deciding whether it would be unreasonable to require Mitchells' combinations to comply with the requirements of rule 63(2), this court must take into account:

   a)the use or proposed use of the combination (regulation 43(9)(a));

   b)the nature of the exemption (regulation 43(9)(b));

   c)whether or not the combination can be operated safely despite not complying with rule 63(3) (regulation 43(9)(c)); and

   d)the public interest in the combination not complying with rule 63(2) (regulation 43(9)(d)).

   3)What are the likelihood and significance of any adverse effects on safety or the environment if the exception were granted?  (regulation 43(8)).

3. It was apparent that Mr Mitchell, the sole director of the appellant, sought to demonstrate that the policy behind RTVS Rules r 63(2) is incorrect. The respondent submitted that the policy behind RTVS Rules r 63(2) is that it is in effect a secondary method of enforcing the gross mass restrictions otherwise applying to B‑double combinations given significant non‑compliance by relevant sectors of the industry (AB 18). Her Honour accepted that 'on the evidence that there is a correlation between the length of vehicles over 18.8 metres and a higher risk of overloading' (AB 21). She accepted that RTVS Rules r 63(2) was 'a reasonable response by the legislature to issues of national and state concern: namely, wear and tear of roads and safety' (AB 17).

4. The respondent's position at trial was that the appellant could readily comply with the 18.8 m restriction by installing partitions in the front section of the trailers.  Both parties provided expert evidence from qualified engineers about the effects of erecting a partition. 

5. The appellant relied on the evidence of a Mr Rob Di Cristoforo, an engineer specialising in the safety and productivity of road transport vehicles.  Mr Di Cristoforo's evidence was to the effect that erecting a partition would degrade vehicle safety and increase the impact on infrastructure (that is, roads) when compared with an unmodified vehicle. 

6. The respondent relied on the evidence of a Mr John Marcolina, who is the Manager of Vehicle Safety and Standards within the Driver and Vehicle Services Directorate of the Department.  Her Honour found that Mr Marcolina 'concluded that the modification of the combinations by the installation of partitions would significantly reduce the propensity for overloading and consequent excessive road wear, and if performed in line with regulatory requirements and good engineering practice, need not make the conditions unsafe' (AB 22). 

7. Usefully, both experts conferred prior to the hearing and produced a report of the outcome of the conference.  They agreed as follows:

   3.The main difference between our reports arises from our understanding of how the trailers would be loaded after installation of the partitions.  In particular, whether the same number of cattle, or a reduced number of cattle, would be loaded.

   a)Mr Di Cristoforos' report assumes that payload mass is the same before and after the installation of partitions, and that payload density increases as a result of the floor area reduction brought about by the partition installation; that is, the same number of cattle is loaded into the reduced area. 

   b)Mr Marcolina's report assumed that payload density is the same before and after the installation of partitions and that payload mass reduces as a result of the floor area reduction brought about by the partition installation; that is, the number of cattle is reduced in proportion to the reduced area. 

   4.Our reports present conflicting conclusions largely as a result of this different in assumption of the loan [sic].  We would probably have arrived at similar conclusions if we had both started with the same assumption (i.e. either constant payload mass or constant payload density). 

1. Consequently, a key decision for her Honour was whether the same (constant payload mass) or a reduced (constant payload density) number of cattle would be loaded into the reduced area.  Her Honour preferred the position of Mr Marcolina that the cattle would be loaded at the same density and thus that the number (and thus mass) of cattle would reduce with the reduced area of the truck.  Her Honour accepted the respondent's submissions to the effect that (AB 24):

   (a)compliance with animal welfare guidelines for the density at which cattle should be loaded for road transport would lead the same density of cattle being loaded in the smaller area; and

   (b)it was sensible and logical to assume that a truck with less area would load less cattle.

2. The magistrate thus concluded that if the partitions are erected as suggested there need not be a reduction in safety (AB 24).  Specifically, her Honour stated (AB 24):

   I agree with the department's submission that assuming the same density of cattle accords with animal welfare guidelines and is the safe and fair assumption to make.  As the department submits, it is consistent with the sensible and logical assumption that a truck with less area available would load less cattle. 

3. The finding that the density of the cattle would be the same with the smaller area, leading to less mass of cattle being loaded, was pivotal to a number of further grounds of the decision.  Her Honour rejected the evidence of Mr Cristoforo that the installation of partitions would give rise to safety issues, as those safety issues only arose where the gross mass of the B‑double combination was 70.5 tonnes (AB 23-24).  Her Honour accepted Mr Marcolina's evidence that the longer the vehicles, the higher the total weight that is likely to be loaded, and that this will increase wear and tear on road surfaces (AB 25 ‑ 26). 

4. As to the cost of complying with the rule, the appellant submitted that, taking into account the time which the trailers would not be able to be used, the cost of compliance would be in the order of $873,000.  Her Honour preferred the respondent's evidence that the cost of modifying each set of trailers was $5,000, $40,000 in total.  This is about half the cost of replacing the tyres in each set of trailers.  Consequently, her Honour found that the option of modifying the trailers by erecting a partition was a reasonable one (AB 28). 

5. The appellant submitted that applicable animal welfare guidelines did not require it to load cattle at a particular density.  The appellant led evidence from a Professor Clive Phillips, an expert in cattle nutrition and behaviour.  Professor Phillips' evidence was that a key issue in animal welfare is that the cattle be loaded at a density that enables them to maintain their balance, and that both very high and very low densities can cause loss of balance (AB 30).  In the end, her Honour concluded that the appellant had control over the density at which animals were loaded, so that it became a neutral factor (AB 31).

6. The magistrate was satisfied that there is a correlation between the length of vehicles over 18.8 m (internal deck length) and a higher risk of overloading (AB 21). 

7. Other factors her Honour found that were against the grant of an exemption were:

   (a)the fact that it can be difficult to know the weight of cattle being loaded, the length of the vehicle being used as a secondary method of enforcing weight controls (AB 25, 31);

   (b)the fact that the exemption was to last for the lifespan of the trailers, being until 2017 (AB 31); and

   (c)that although the appellant's over length B‑double combinations can be operated safely, there is a real risk that they will not be operated safely (AB 32, using her Honour's underlining)

8. On balance, her Honour concluded (AB 33);

   In summary, taking into account the fact that the combinations are to be used for loading cattle and this involves uncertainties regarding the weight of each load; that the exemption is sought for 8 vehicles for at least 6½ years when Mitchells have had considerable warning of the requirement to make the modifications; that the combinations can be operated safely despite not complying with the provision but that there are risks that they won't be; that any safety concerns raised by Mr Di Cristoforo are not significant given the fact that Mitchells can maintain the density of the cattle loaded; and that there is therefore no public interest in the combinations not complying with the regulation, I am not satisfied that it would be unreasonable to require the combination to comply with rule 42(3).  There is a risk of an adverse effect on safety and the environment.  I decline to exercise my discretion in favour of Mitchells in these circumstances and the application should therefore be refused. 

Appeal Grounds 1

1. The grounds of appeal are set out in the appeal notice filed 9 September 2011.  Ground 1 asserts that the magistrate erred in law in approaching RTVS Rules r 63(3) with a predisposition against granting the exemption.  It provides:

   Ground 1

   1.The Magistrate erred in law in applying the wrong test in that:

   1.1the application for exemption was made under Regulation 60 of the Road Traffic (Vehicle Standards) Regulations 2002 (WA) ('the Regulations'), which conferred jurisdiction on the Magistrates Court to grant an exemption from Rule 63(2) of the Road Traffic (Vehicle Standards) Rules 2002 (WA) ('the Rules') if requiring compliance with Rule 63(2) by the appellant would have been unreasonable;

   1.2the Magistrate approached the application with a predisposition against granting an exemption for the reason that Rule 63(2) reflected national and state policy and was of general application;

   1.3the Magistrate erred in that approach because:

   1.3.1it was an uncontested fact that the appellant has a concessional loading permit of 70.5 tonnes (granted pursuant to the respondent's policy, under the concessional loading scheme, to allow operators of B‑double trailers used for carrying livestock in Western Australia to load B‑double combinations to 70.5 tonnes);

   1.3.2the national policy pursuant to which Rule 63(2) was made is based on a weight limit of 62.5 tonnes, and not 70.5 tonnes;

   1.3.3whether compliance with Rule 63(2) was unreasonably [sic] for the appellant was therefore to be determined in a context where the appellant, pursuant to a concession granted by the respondent, operated B‑double combinations inconsistently with the national policy on which Rule 63(2) is based and without a predisposition in favour of enforcing Rule 63(2).

2. The appellant submitted that when considering whether or not the exemption ought to be granted, the magistrate was required to determine whether it would be unreasonable to require the appellant's trailers to comply with the RTVS Rules r 63(2), as required by the RTVS Regs r 43(4)(c). It was submitted that the exemption power must be read in a beneficial way to the appellant: Butler v Fife Coal Co Ltd [1912] AC 149, 178 – 179; Zangzinchai v Millanta (1994) 125 ALR 265, 272.

3. The appellant contended that her Honour acted in error by approaching the issue on the basis that it was incumbent on the appellant as applicant to demonstrate there was sufficient justification for a departure from the governmental policy reflected in RTVS Rules r 63(2). The appellant submits that the magistrate acted in error by giving primacy to the national policy, which she found was enshrined in RTVS Rules r 63(2), rather than the unreasonableness of its application to the appellant.

4. The appellant further submitted that, when considering the applicability of the national policy, her Honour failed to consider the fact that other general exemptions or concessions from the RTVS Rules were inconsistent with the national policy.  Three such examples were provided:

   (a)Main Roads has a policy to issue permits to allow B-double combinations with a total length of 27.5 metres (including the prime mover) to be operated whereas the RTVS Rules r 63(1) only allow for a total length of 25 meters (AB 211, 474);

   (b)the Minister for Transport has approved a policy permitting livestock carrying B-double combinations with a height of 4.3 m or less (meaning they are not able to carry cattle, rather pigs and sheep) to exceed the 18.8 m deck length restriction imposed by RTVS Rules r 63(2) (AB 78-79, 221, 352-357); and

   (c)it is government policy to grant concessional loading permits to livestock transporters to have a maximum gross mass of 70.5 tonnes for a B‑double combination, whereas the RTVS Regs allow for only 62.5 tonnes (AB 71-74).

5. The appellant further submitted that the national policy pursuant to which RTVS Rules r 63(2) is based on gross mass limit of 62.5 tonnes. The 62.5 gross mass limit is derived from the application of the formulas in Schedule 1 to the RTVS Regs to a B-double combination. The appellant has a concessional loading permit of 70.5 tonnes gross mass in relation to all of its B‑double combinations.

6. The appellant thus argued that even if the application of a national policy was one of the matters that ought to be considered, the magistrate ought to have found that, with respect to the weight and length of the B‑double combinations, the policy had been departed from, and therefore provided no reason for the court to refuse to exercise its discretion to grant an exemption in favour of the appellant.

7. On the other hand, the respondent argued that the appellant's approach was flawed because it failed to acknowledge the significance of a policy being enacted as law and the effect of the onus of proof of the relevant provisions. The respondent submitted that the starting point is that the appellant, as applicant, is bound by RTVS Rules r 63(2). It is for the appellant to seek an exemption from that general rule. Such an exemption is to be granted only if it would be unreasonable to require the appellant's combinations to comply with RTVS Rules r 63(2): RTVS Regs r 43(4)(c). There is thus no onus on the respondent to prove that the law was reasonable to justify the policy behind the law.

8. The respondent's contention was that if there was a 'predisposition', this is simply the result of the application of the correct onus of proof in the proceedings.  It thus submits that on a fair reading of the magistrate's decision, it is clear that her Honour determined the matter on the proper basis, namely whether the application of the provision to the appellant's combinations was unreasonable.

9. It seems to me that the appellant's argument in this ground of appeal is in substance that the magistrate erred by inflexibly or rigidly applying the policy evident in RTVS Rules r 63(2). This can constitute an error of law: Falc Pty Ltd v State Planning Commission(1991) 5 WAR 522, 530, 536, 537, 539; Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276 [25] - [26]. In that latter case, Barker J stated:

   Much has been written about the use of policy in administrative decision-making.  Administrators do not act unlawfully in adopting policies to structure their discretionary powers.  Indeed, courts have accepted that it is desirable that they should do so:  British Oxygen Co Ltd v Minister of Technology [1971] AC 610; R v Eastleigh Borough Council; ex parte Betts [1983] 2 AC 613; Sawyer v Secretary to Department of Primary Industry (1998) 15 ALD 742. However, an administrator exercising discretionary power will be found to have acted ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case, as the decision in Falc … illustrates.  This principle aside, the importance of the use of 'policies' in the exercise of discretionary planning powers in Western Australia is well recognised:  see, eg, Hebe Pty Ltd v Metropolitan Region Planning Authority (1981) 2 APAD 428.

   A relevant policy, provided it is not ultra vires, may therefore be regarded as one relevant consideration which the administrator is, effectively, bound to take into account.  In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, the Full Federal Court held that the Administrative Appeals Tribunal is entitled to treat Commonwealth government policy as a relevant factor in making its decision, but is not entitled to abdicate its function of independently considering and assessing the propriety of the policy. In Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply or not apply the policy. He noted, however, that departures from government policy would be 'cautious and sparing', occurring only where there were 'cogent reasons': 644 - 645.

10. It is clear that RTVS Rules r 63(2) reflects a conscious policy decision by Parliament. The policy behind the rule is that as it is more difficult to estimate the weight of livestock than, say, sand or wheat, there is a need for a secondary means of ensuring compliance with the weight restrictions on trucks that carry livestock. The agreed national policy was that for a B‑double combination the length of the internal deck should be set at 18.8 m.

11. Her Honour was entitled to conclude as she did that RTVS Rules r 63(2) is 'a reasonable response by the legislature to issues of national and state concern: namely, wear and tear of road and safety' (AB 17). There is no suggestion that this policy is ultra vires. That being so, the magistrate was bound to take it into account.

12. However, Parliament in this context enacted both a rule and an exemption power. I do not find that the magistrate approached the application of the exemption power with a predisposition position against granting the exemption. As a matter of law, RTVS Rules r 63(2) is of general application. It did reflect an agreed national policy. The critical question for her Honour was whether or not it would be unreasonable to require the appellant's combinations to comply with the general rule in RTVS Rules r 63(2). It was for the appellant as applicant to demonstrate that, having regard to the prescribed factors, it would be unreasonable to require its combinations to comply with RTVS Rules r 63(2).

13. The key issue is whether the magistrate applied the policy inflexibly, without regard to the merits of this particular case.  In this regard, her Honour stated (AB 18 - 19):

    My approach to the task is as follows. The matter should be dealt with by way of a hearing de novo. The parties agreed that this is the appropriate way to proceed. Rule 63(2) is a rule enshrining national and state policy. It is a rule that has been approved by the Parliament of Western Australia and there fore has more force than mere government policy. Operators within the industry are required to comply with rule 63(2) and other relevant legislation and subsidiary legislation: for example, the Road Traffic Code 2000.Regulation 43 however provides that in certain circumstances, an exemption from the need to comply with rule 63(2) may be granted.  Because of the use of the word 'may', I regard the power to grant an exemption as discretionary.  The discretion is to be exercised having regard to the provisions of regulation 43, and the circumstances of the individual case.

14. The magistrate then considered the individual circumstances of the appellant's case, as I have detailed above. The policy issues identified by her Honour were not inflexibly applied.

15. I do not discern in the magistrate's description of her proposed approach to the decision, nor in the way in which her Honour executed that approach, any error.  This ground of appeal is not made out.

Ground 2

1. Ground 2 goes to the contest in the expert evidence between Mr Marcolina and Mr Di Cristoforo.  As set out in their report on the outcome of their conferral in [25] above, the key difference between them was whether or not the installation of a partition would mean that the gross mass of the each load would be reduced.  Specifically, the ground is:  

   Ground 2

   Further or alternatively, the Magistrate erred in fact by misconstruing the facts in that:

   Particulars

   2.1The Magistrate erred by assuming that the installation of a partition would mean that the appellant would have to reduce the load in each affected combination;

   2.2The Magistrate accepted the evidence of John Marcolina that there would not be any significant impact on the safety of the vehicles.  Mr Marcolina's conclusion that the installation of a partition in the appellant's trailers would have little impact on safety was based on the incorrect assumption that transporters must load trailers to a particular density to comply with animal welfare guidelines.  Mr Marcolina then incorrectly assumed that, the installation of a partition would result in a decrease in the number of cattle being transported.  However, in cross‑examination, Mr Marcolina has accepted that under the concessional loading scheme, even after the installation of a partition, the appellant could have the same gross weight of 70.5 tonnes as it did before the installation of the partition.  The Magistrate erroneously accepted Mr Marcolina's report despite the fact that Mr Marcolina accepted in cross‑examination that the appellant would be able to load the combinations to the same gross weight of 70.5 tonnes after the installation of partitions;

   2.3Mr Di Cristoforo's report was based on the correct assumption that the gross weight would remain the same if a partition was installed, and should have been accepted by Her Honour because of Mr Marcolina's concession.

2. The statement of principle in House quoted above states that it is open for an appellate court to review the exercise of discretion if the court below 'mistakes the facts' (504).  However, in doing I must find more than that, had I been the initial decision maker, I would have preferred a different result.  Rather, there must be an identifiable error.  This is seen from the summary of the legal principles which govern an appeal from a discretionary decision by the Court of Appeal in Keet v Ward [2011] WASCA 139 in the context of an appellate review of a costs order made by a judge [17]:

   The costs of and incidental to all proceedings in the Supreme Court are in the discretion of the court or judge: s 37(1) Supreme Court Act 1935 (WA). The discretion conferred by s 37 of the Supreme Court Act is not an unfettered discretion.  It is a discretion which must be exercised judicially.  The legal principles which govern the review of discretionary decisions by an appellate court are well established:  see House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505; Queensland Wire Industries Pty Ltd v Broken Hill Pty Ltd (1987) 17 FCR 211, 222. In the absence of express error, an appellate court is not entitled to substitute its own decision for that which is the subject of the appeal merely because it prefers a different result or even merely because it thinks that a different result would be more just and equitable. Before it intervenes, it must be satisfied that the decision is clearly wrong: Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 634 (Wilson J). In the absence of an identifiable error of fact or law (and none has been identified in this case) the appellate court must be persuaded that the order stands outside the limits of a sound discretionary judgment before it intervenes: Norbis v Norbis (1986) 161 CLR 513, 520 (Mason and Deane JJ). In short, the appellate court may only intervene in a case where no express error is revealed if upon the facts the decision is 'unreasonable or plainly unjust': House v The King (505).

3. As set out above, the magistrate found that it was 'safe and fair' to assume that animals would be loaded into the appellant's combinations, with the modified partitions, at the same density was it currently loaded the combinations (AB 24).  Having come to that assumption, her Honour favoured the evidence of Mr Marcolina. 

1. To determine whether this ground is made out, it is necessary to look in detail at the expert evidence of Mr Marcolina and Mr Di Cristoforo.  There was no challenge to the relevance of the expertise of each witness. 

2. The appellant's expert report of Mr Di Cristoforo was sought to address safety issues held by the appellant about the partition or false wall option proposed by the respondent.  The installation of a partition would result in the creation of a void of about 2 m in length immediately above the drive axle group of the prime mover (see the diagram at AB 440).  The alternative proposed by the appellant, and considered by Mr Di Cristoforo, was to shorten the length of the lead trailer of each non-compliant combination by actually removing a section of the trailer (see the diagram at AB 440). 

3. Mr Di Cristoforo assumed that the appellant's B-double combinations would continue to be loaded to a gross mass of 70.5 tonnes (AB 442).  On this assumption, he concluded that the installation of the partition will have at least four impacts on vehicle dynamics (AB 444):

   (a)it will lead to the axle loads being partially redistributed from the drive axle group of the prime mover to the rear axle groups of each trailer, with the effect of  reducing the rollover stability of the combination;

   (b)the reduction in the load on the drive axle group, which he assessed to be almost 17%, would result in an equivalent amount of available drive axle traction being lost, thereby increasing the likelihood of slippage on wet roads or loose surfaces;

   (c)the driver will have a reduced feel for the vehicle dynamics, as less of the trailers' load is being carried by the drive axle group; and

   (d)the trailers will be rear heavy, and will tend to swing with a greater pendulum effect which, when coupled with the lighter drive axle group, may cause the prime mover to be steered by the trailers.

4. Mr Di Cristoforo concluded (AB 444);

   In my opinion the addition of false walls to the Mitchell B-doubles will certainly result in a relative reduction in vehicle safety compared to the existing vehicles.  The extent of the safety reduction is difficult to quantify and comment on in absolute terms.  In my opinion, if an experienced, safety-conscious B-double driver was asked to drive a B-double with load distribution as per that induced by the false wall modification, they would probably object on vehicle dynamics grounds.

5. Mr Mitchell, who has significant experience in loading and driving cattle trucks, was also of the view that the installation of a partition would lead to an adverse affect on the stability and braking of the combination (AB 420, 425).  He was unwilling to install a partition given the safety risks involved (AB 425).

6. Mr Marcolina's view was that the installations of the partitions 'if performed in line with regulatory requirements and good engineering practice, need not make the combinations unsafe' (AB 464).  Mr Marcolina assumed that animal welfare loading guidelines would be followed.  On those guidelines, he calculated that there would be a 3 to 4 tonne reduction in the mass of the cattle loaded with the partition in the front trailer (AB 463, 465).  His key finding was that he could find no cause for concern in relation to the effect on drive traction of the combination, 'especially since this will be mitigated in part by the reduction in overall loaded mass due to reduction in payload' (AB 464). 

7. As noted in [26] above, the key difference between the opinions of Mr Di Cristoforo and Mr Marcolina is whether it is appropriate to assume that, with a partition, the mass of cattle loaded would stay the same or the density of cattle loaded would stay the same.  Mr Marcolina appeared to accept in cross‑examination that if the mass of cattle loaded was the same, then the safety risks set out by Mr Di Cristoforo were justified (AB 66 ‑ 67).  That is, both experts seemed to agree that if the appellant's B-double combinations had partitions and were loaded to 70.5 tonnes, there would be a relative reduction in vehicle safety. 

8. This issue of whether the mass of cattle loaded would reduce thereby becomes critical.

9. The respondent submitted that there are three reasons why the mass of the cattle loaded would reduce if the partitions were installed. 

10. The first is 'simple logic'.  As her Honour put it: 'it is consistent with the sensible and logical assumption that a truck with less area available would load less cattle' (AB 24). 

11. The second is that the density of cattle loaded needed to comply with the relevant animal welfare guidelines.  The standards are contained in two documents:  the Code of Practice for the Transportation of Cattle in Western Australia (Code of Practice) (AB 212 - 219) and the Australian Standard for the Export of Livestock (Version 2.3) 2011 (AB 324 - 337).  Mr Marcolina relies on the preferred loading rates in the Code of Practice in making his calculations (AB 217, 465).

12. The third is that the density at which cattle are loaded is in the control of the appellant's operators (AB 24).  In her Honour's words, 'if there are concerns that the effect of installing the partition would be to increase density, density could be reduced to take this into account' (AB 24).  In other words, any safety concerns which arise if the B-double combination is loaded to 70.5 tonnes can be managed by adjusting the density at which cattle are loaded to ensure that the gross mass is more like 66 tonnes (being the 3 to 4 tonnes reduction in payload from the 70.5 tonnes assumed by Mr Marcolina).

13. The appellant relied on three points to support its view that it is preferable to assume that the gross vehicle mass would be 70.5 tonnes. 

14. The first is that it is lawful for the appellant to load its B-double combinations to a gross mass of 70.5 tonnes, a point acknowledged by Mr Marcolina (AB 34).

15. The second is that the Code of Practice does not prescribe a density; rather it sets out a 'preferred' density (AB 217).  

16. The third is that Mr Mitchell's evidence is that the target mass of a load of cattle on the appellant's other B-doubles with an 18.8 m internal deck length is 70.5 tonnes.  In cross‑examination, Mr Mitchell gave evidence that in most cases the animals' weights are known prior to loading (AB 83).  He disagreed with the proposition put to him by counsel for the respondent that if the appellant's trailers were modified, they would carry less cattle (AB 84).  In summary terms, Mr Mitchell's evidence was that, in his experience, it is possible to load a B‑double with an 18.8 m internal deck length to 70.5 tonnes gross complying with good animal management practices (AB 84 – 85). 

17. In my view, the resolution of this issue needs to start from the context of the issue being discussed by the experts.  That issue is whether the installation of a partition in the appellant's B-double combinations would give rise to safety concerns.  The experts' consensus seems to have been: 'Yes' at a gross mass of 70.5 tonnes and 'No' at a gross mass of 66 or so tonnes.  The key questions is not which assumption is correct.  In my view, the key question is whether there is a sufficiently high risk that a B‑double combination with a partition could be loaded as to a gross mass of 70.5 tonnes from time to time so as to justify imposing a safety regime based on that mass.  It may be that some, or indeed most, of the time the B-double combinations with a partition would be loaded to around 66 tonnes gross mass by reason of the loading operator following the preferred density in the Code of Practice, but that is not the point.  If there is a real risk that from time to time the modified B-double combinations could be loaded to a gross mass of 70.5 tonnes, then, in my view, the safety regime for the B-doubles ought to have been designed to take this into account. 

18. There are three reasons why there is a real risk that the appellant's B‑double combinations with partitions could be loaded to a gross weight of 70.5 tonnes,

19. The first is that Mr Mitchell's evidence is that it is possible to load an 18.8 m B-double combination with cattle to a gross mass of 70.5 tonnes, and to do so complying with good animal management practices.  The data from the National Road Transport Commission relied on by Mr Marcolina demonstrates that it is possible to load a B-double combination with a 18.8 m deck length to 70.5 tonnes gross mass (AB 361, 412 - 413).  Further, an 18.8 m B‑double combination intercepted by Main Roads had a gross mass of 69.3 tonnes (AB 682 ‑ 683) (see further [126] below). 

20. The second is that the loading of cattle, even in accordance with the Code of Practice, is more of an art than a science.  As I have noted, the Code of Practice only sets out 'preferred' loading rates.  Moreover, it sets out a range of rates for nine different weights of cattle from 250 kgs (where the rate is 0.77 m 2 per head) to 650 kgs (where the rate is 1.63 m 2 per head).  If there is a load of cattle of different weights, it seems apparent from the very nature of the exercise of loading cattle, that an operator with the best will in the world may load in what he or she believes is in accordance with the Code of Practice and underestimate the mass of the cattle loaded. 

21. The imprecise nature of estimating the weight of cattle is evident in one of a series of letters from others in the cattle transport industry – that is, competitors of the appellant – received by Main Roads WA when consulting in relation to its decision to begin to enforce the 18.8 m deck limit for combinations licensed before 1 November 2002 (see generally AB 243 – 255).  In a letter from Stockhaul WA Pty Ltd dated 26 June 2008, the author, a Mr Mark Fleming, states (AB 248):

    Also, having been in the Livestock Transporting Industry for some 34 years, know that at accepted deck lengths we still need to use all the skills learnt over a long period to conform to accepted weight volumes by selection of livestock.

22. Another letter recognises the commercial pressure on operators to load their vehicles as full as possible, being the third reason why the risk of loading to 70.5 tonnes gross mass is real.  This letter is from Klopper Holdings and is dated 6 July 2008.  The relevant passage states (AB 250):

    One of the major problems any operator has is to load his vehicle as full as it is possible so that the farmer or agent is getting a good deal and at the same time he is not breaking the law. This tends to be quite hard when the cattle have not been weighed previous to loading.  Therefore a flour [sic] space which helps to provide a good guide is very desirable.

23. The desired position of the appellant is to load its B‑double combinations, once made compliant, to a target gross mass of 70.5 tonnes, which the appellant is lawfully entitled to do (AB 84 – 85).  Assume for the purposes of the present analysis that a partition was installed, that this position changed for safety reasons to a target gross mass of 66.5 tonnes and that procedures were put in place to give effect to this intention.  In my view, there is still a real risk that, given the imprecise nature of estimating the weight of cattle loaded and the commercial pressures that may arise from time to time, a B‑double combination could be unintentionally, or perhaps negligently, loaded to 70.5 tonnes gross mass.

24. In looking at the appropriate response to risk, it is instructive to draw from the law of negligence.  The classic statement of principle is that of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 - 48:

    In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

25. If the B-double combination was loaded to 70.5 tonnes (albeit unintentionally) and the risks identified by Mr Di Cristoforo eventuated, the results could easily be catastrophic.  It could lead to the driver of the combination losing control, and crashing, causing injury or death to the driver and well as to those in other vehicles.  If the rear of the combination swung out, it could easily side swipe an oncoming vehicle and push it off the road.  The same outcome could occur if the combination slipped on wet roads or loose surfaces.  Accidents involving semi-trailers can have horrific consequences, see for example: Balcomb v Morris [2003] WADC 80.

26. Moreover, the appellant owes a duty to its employees to take reasonable care to avoid unnecessary risks of injury to them.  Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. The appellant's duty as an employer includes the provision of a safe system and safe place of work, and is non-delegable: Kondis v State Transport Authority (1984) 154 CLR 672, 678-688. For example, in Ashby v Gillingham Nominess Pty Ltd [2008] WADC 50, an employer was held liable in negligence to its employee for injuries arising out of an accident where it failed to service the brakes of a truck which it knew to be faulty.

27. In Kondis, Mason J observed that a 'classic definition of negligence' was that expressed by Alderson B in Blyth v Birmingham Waterworks Co (1856) 11 Exch 781, 784 [156 ER 1047, 1049]:

    Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

    Mason J continued (679 - 680):

    It has been accepted that the content of the ordinary common law duty of care is a duty to exercise reasonable care (and skill) or to take reasonable steps to avoid risk of harm to a person to whom the duty is owed.  The degree or standard of care required varies with the risk involved.  Those who engage in inherently dangerous operations must take precautions not required of persons engaged in routine activities: …  This involves no departure from the standard of reasonable care for it predicates that the reasonable man will take more stringent precautions to avoid the risk of injury arising from dangerous operations.

28. The driving of a 70 or so tonne B-double combination must be regarded as having some element of inherent danger, in particular given the extent of the risk of significant harm should an accident occur.

29. In the present case, the appellant knows of the safety risks from Mr Di Cristoforo's report.  In my view the appropriate response of a prudent and reasonable employer in the position of the appellant, with that knowledge, would be to not allow the B-double combinations to be driven with partitions.  Indeed, this is Mr Mitchell's view (AB 425).  Put slightly differently, if the current issue were to be considered by a court in the context of a negligence action following a serious injury as a result of a B‑double combination with a partition loaded close to 70.5 tonne losing control, it is hard to see a court not finding the appellant negligent for installing a partition and not shortening the front trailers.

30. On this basis, I am of the view that the magistrate erred in finding that it was 'safe' to assume that the appellant's modified B-double combinations would always (my addition) be loaded at the density set out in the animal welfare guidelines, and therefore always have a gross mass of around 66.5 tonnes, in turn justifying reliance on the safety analysis based on that mass (which both experts agreed would be safe) (AB 24).  Rather, for the reasons I have discussed, there is a risk that the appellant's B-double combinations, if modified by the insertion of a partition, could on occasion unintentionally or negligently be loaded to closer to 70.5 tonnes gross mass.  Both experts had safety concerns at that gross mass.  Because of the magnitude of the risk of injury from the safety concerns identified by Mr Di Cristoforo eventuating, and its duty of care as an employer, I accept that the option of installing partitions is not one that the appellant could pursue.  In my view, this meant that the magistrate also erred in finding that it was 'fair', at least to the appellant, to assume that the appellant's modified B‑double combinations would always be loaded at the density set out in the animal welfare guidelines. The appellant's position that the only way it can comply with RTSV Rules r 63(2) is to shorten the non‑compliant B‑double combinations is both understandable and appropriate.

31. This error of fact was at the heart of the decision.  Accordingly, I am persuaded that the decision stands outside the limits of a sound discretionary judgment and ought to be set aside.

Appeal Ground 3

1. Ground 3 sets out a number of factors which the appellant asserts are material, and which the magistrate did not take into account:

   Ground 3

   Further or alternatively, the Magistrate erred in law, or further or alternatively erred in fact, by failing to take account of material considerations in that:

   3.1The Magistrate failed to have regard to the fact that the respondent represented to the appellant prior to the introduction of the Rules that the appellant would be able to continue to operate combinations exceeding the 18.8 metre deck length restriction if the trailers were registered before the Rules commenced;

   3.2The Magistrate failed to have regard to the fact that the appellant relied on the assurances provided by the Department when purchasing one of the trailers;

   3.3The Magistrate failed to consider the public interest in ensuring that Government Departments act in accordance with their undertakings so as to maintain confidence in Government action and to allow those operating in a particular industry make decisions with certainty;

   3.4The Magistrate failed to have regard to the fact that the appellant had been operating combinations for 6 years without incident before the Main Roads Department in 2008 started enforcing the Rules (which commenced in 2002);

   3.5As a result of having misconstrued the facts as set out in ground 2, the Magistrate failed to consider the adverse impacts on safety which would result from the installation of a partition, and failed to have regard to the appellant's concerns about those adverse safety impacts;

   3.6The Magistrate failed to have regard to the fact that exemptions are regularly granted by the Department, such that the national scheme is often not enforced – relevantly and more recently with respect to B‑double livestock combinations;

   3.7The Magistrate failed to take account of the fact that concessions are granted to B‑double operators allowing them to load above 62.5 tonnes, thereby taking Western Australia outside the national regime;

   3.8Furthermore, the Magistrate failed to take account of a recent government policy to grant exemptions to rule 63(2) to B‑double trailers used for carrying livestock which are less than 4.3 metres high to allow them to have a deck space of greater than 18.8 metres, which is again outside the national regime.

2. As with an error of fact, although an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, it will be slow to do so because a mere preference for a different result will not suffice: Lovell v Lovell (1950) 81 CLR 513, 519 - 520; Gronow v Gronow (1979) 144 CLR 513, 519 - 520, 534 - 535, 537 - 538; Mallet v Mallet (1984) 156 CLR 605, 614 - 615, 622. There is a close analogy between judicial review of administrative action and appellate review of a judicial discretion: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, 42. In that case, Mason J set out the principles in relation to the failure of a decision maker to take into account a relevant consideration in the following terms (39 - 42, most references omitted);

   The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action.  That ground now appears in s. 5(2)(b) of the A.D.(J.R.) Act which, in this regard, is substantially declaratory of the common law.  Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

   (a)The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision….  The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, that a decision-maker must take into account those matters which he 'ought to have regard to' should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".

   (b)What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.  In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard…  By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

   (c)Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re‑exercised according to law.  A factor might be so insignificant that the failure to take it into account could not have materially affected the decision…  A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision…

   (d)The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind.  It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.  Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.

   It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power….  I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.  The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'.  This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.  This ground is now expressed in ss. 5(2)(g) and 6(2)(g) of the A.D.(J.R.) Act in these terms.  The test has been embraced in both Australia and England….  However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied…  But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion.  In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice….  So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

1. In the present case, the magistrate correctly set out the factors that she was required by the statutory framework to take into account (AB 19).  They are:

   (a)the use or proposed use of the combination (RTVS Regs r 43(9)(a));

   (b)the nature of the exemption (RTVS Regs r 43(9)(b));

   (c)whether or not the combination can be operated safely despite not complying with r 63(3) (RTVS Regs r 43(9)(c));

   (d)the public interest in the combination not complying with r 63(2) (RTVS Regs r 43(9)(d)); and

   (e) the likelihood and significance of any adverse effects on safety or the environment if the exception were granted  (RTVS Regs r 43(8)).

2. These factors were then (in the present case) to be taken into account in the exercising general discretion, to answer the question: would it be unreasonable to require Mitchells' combinations to comply with the requirements of RTVS Rules r 63(2)? (RTVS Regs r 43(4)(c)).

3. As Parliament has set out a series of factors a decision maker is bound to take into account, I am of the view that I should be slow to construe the RTVS Regs as requiring or binding the decision maker to take into account any further factors.  The decision maker is able to take a wide range of factors into account in exercising the discretion. 

4. In relation to grounds 3.1 to 3.4, I cannot discern any legislative intent to require the decision maker to take these factors into account.  They are inherently specific to the facts of this particular case.

5. In relation to ground 3.5, the decision maker (and thus the magistrate) was required to take into account safety issues pursuant to RTVS Regs r 48(3) and r 43(9)(c).  The magistrate considered the safety issues at length (eg AB 19 ‑ 24), so it cannot be said that her Honour failed to take the safety issues into account.  

6. In relation to grounds 3.6 to 3.8, as I have discussed above, the magistrate was required to take into account any relevant policies, though not inflexibly.  Her Honour considered the policy issues in detail.  There was, however, no requirement to take into account the specific factors in grounds 3.6 to 3.8. 

7. I am of the view that none of the heads of complaint set out in ground 3 have been established.

Ground 4

1. Ground 4 sets out two matters which the appellant assert her Honour took into account which were extraneous or irrelevant:

   Ground 4

   Further or alternatively, the Magistrate erred in law or further or alternatively erred in fact by taking into account extraneous or irrelevant matters in that:

   Particulars

   4.1The Magistrate erred in law by finding a propensity to overload without supporting evidence;

   4.2The Magistrate found, contrary to the evidence, that the reduction in the length of the trailer would result in a reduction in the number of cattle carried by the appellant.

2. In relation to ground 4, the relevant portion of the statement of principle in House is that 'the judge … allows extraneous or irrelevant matters to guide or affect him' (504).  It follows from the statement of principles summarised by Mason J in Peko-Wallsend that whether or not a factor is extraneous or irrelevant is to be determined by construction of the statute conferring the discretion. 

3. In relation to ground 4.1, her Honour's finding was that 'on the evidence … there is a correlation between the length of vehicles over 18.8 metres and a higher risk of overloading' (AB 21).  The issue of the interrelationship between the length of vehicles and their weight is plainly of relevance to the decision before her Honour.  By considering it, her Honour did not take into account an extraneous or irrelevant matter.

4. In relation to ground 4.2, as I have already discussed above, the issue of whether the reduction in the length of the trailer would result in a reduction in the number of cattle carried on each trailer was critical to the issue of whether the evidence of Mr Marcolina or Mr Cristoforo ought to be preferred.  It is plainly of relevance. 

5. I do not find that either of the heads of complaint in this ground has been made out.

Reconsideration

1. Having formed the view that the magistrate erred and that the decision under review ought to be set aside, the next issue raised is whether I have the jurisdiction to reconsider the decision, and, if so, whether I should exercise that jurisdiction in the present case.  The alternative is to send the matter back to the Magistrates Court for review by another magistrate:  MCCPA s 43(7)(c). 

2. The powers of a District Court judge on appeal includes the power to 'give any judgment and make any order that the Magistrates Court could have given or made': MCCPA s 43(7)(b). In the present case, the power given to the Magistrates Court is in general terms: 'Application may be made to the Magistrates Court for review of a decision that has been reconsidered by the Director General under regulation 59': RTVS Regs r 60. There is no specific power to make, say, the 'correct and preferable' decision. This is in contrast to Rules of the Supreme Court 1971 (WA) O 66 r 53(2) which gives a judge presiding on a 'review' of a taxation the power to 'make such order to rectify the error as the Judge thinks fit'.

3. The power in RTVS Regs r 60 may also be contrasted to the general review power given to the State Administrative Tribunal pursuant to State Administrative Tribunal Act 2004 (WA) (SAT Act) s 27. That power is in the following terms:

   27.Nature of review proceedings

   (1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.

   (2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.

   (3)The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.

4. Although the RTVS Regs predate the SAT Act, it seems to me that Parliament in using the word 'review', in distinction to the word 'appeal', intended the magistrate to conduct a hearing de novo with the purpose of producing the correct and preferable decision.  This is the course followed by the magistrate.  That being so, I am able to exercise the same power to make the correct and preferable decision as the magistrate could, albeit only on the evidence before the magistrate (there having been no application to adduce further evidence in the appeal).  This produces a result that is consistent with the authorities on the power of appeal courts generally when reviewing the exercise of discretion, which are to the effect that, where an error has been made, the appeal court may exercise the discretion of the decision maker afresh provided it has the materials to do so:  House (505); Keet [29].

5. Given that all the materials that were before the magistrate are now before me, and there is little or not controversy in the oral evidence heard by her Honour, I propose to exercise the discretion vested in the magistrate afresh and reconsider the decision the subject of the review.

6. In the analysis which follows, I have dealt with the relevant factors in an order I consider to be logical, and have thus interposed other factors into the analysis of the statutory factors. 

Other factors – Government policy and national consistency

1. The decisions in Falc and Clive Elliot Jennings reflect the principle that the existence of government policy is a relevant consideration, but that it has to be applied flexibly to the merits of the application, consistent with the statutory framework of the discretion.  In essence, this is what the discretion in RTVS Rules r 43(4)(c) calls for when it directs the decision maker to ask whether it would be unreasonable to require the combination to comply with the provision.

2. Mr Marcolina's evidence was that the requirement for an 18.8 m internal deck length arose out of an intergovernmental agreement on road, rail and intermodal transport (IGA).  It has been adopted in one form or another by all Australian jurisdictions.  One of the main objectives of the IGA is to achieve uniform, nationally consistent regulation through out Australia.  The policy objectives for doing so include improvements in road safety, transport efficiency and reducing the costs of transport administration.  There are also national competition policy objectives directed at preventing operators in one state from having a competitive advantage in the regulatory environment in which they operate (AB 358 ‑ 360). 

3. The appellant pointed to three relevant concessions or exemptions from the national policy reflected in the RTVS Regs (which I have referred to above, but repeat for ease of reference):

   (a)Main Roads WA has a policy to issue permits to allow B‑double combinations with a total length of 27.5 m (including the prime mover) to be operated whereas the RTVS Rules r 63(1) only allow for a total length of 25 m (AB 211, 474);

   (b)the Minister for Transport has approved a policy permitting livestock carrying B-double combinations with a height of 4.3 m or less (meaning they are not able to carry cattle, rather pigs and sheep) to exceed the 18.8 m deck length restriction imposed by RTVS Rules r 63(2) (AB 78 ‑ 79, 221, 352 ‑ 357); and

   (c)it is government policy to grant concessional loading permits to livestock transporters to have a maximum gross mass of 70.5 tonnes for a B‑double combination whereas the RTVS Regs allow for only 62.5 tonnes (AB 71 ‑ 74).

4. The appellant submits that national consistency in relation to overloading cattle trucks has been undermined by the policy of the Western Australian government to grant exemptions so as to allow B‑double cattle trucks to be loaded to 70.5 tonnes gross mass.

5. Mr Marcolina's evidence was that the policy behind RTVS Rules r 63(2) is to limit the amount of animals that can be carried on a vehicle to avoid overloading, which in turn protects road infrastructure. The deck length limit is necessary for livestock B‑double combinations as livestock transporters have less control over their loaded mass than carriers of other types of cargo (eg gravel or wheat) (AB 361).

6. Mr Marcolina refers to an analysis by the National Road Transport Commission (NRTC) which found that there was a higher propensity (47%) to overload B-double trailers with a 20 m deck length than those with an 18.8 m deck length (24%) (AB 361, 412 - 413). 

7. The appellant, in effect, submits that from this analysis it is apparent that the standard by which overloading was assessed was a gross mass of 62.5 tonnes.  It is only in a very small proportion of cases that a B-double with a 20 m deck length or an 18.8 m deck length exceeded a gross mass of 70.5 tonnes.  The 18.8 m internal deck length thus seems to be a proxy for the national standard gross mass of 62.5 tonnes. 

8. I agree with the appellant's analysis.  The existence of the 70.5 tonnes exemption means that the national consistency argument as to the 18.8 m internal deck restriction assumes much less significance that it might otherwise have done.  The key policy consideration seems to be the 70.5 tonne gross mass limit.  It is the gross mass limit which ultimately determines the level of wear and tear on roads which the Government considers is acceptable.   This is because it is the gross mass of the combination that appears to have the most impact on the road infrastructure (AB 460 – 464).  The concessions in [105](a) and (b) above are both subject to the gross mass limit in [105](c).

The use or proposed use of the vehicle or combination

1. This is a factor that the Director General was required to take into account pursuant to RTVS Regs r 43(9)(a).

2. The combinations in question are subject to what may be considered a restriction on their use:  their gross mass may not exceed 70.5 tonnes.

3. The appellant proposes to use the combinations for the purpose of transporting cattle.  As I have discussed above, it can be difficult to accurately assess the weight of cattle being loaded on to the combination.  There may also be pressures on those loading the cattle to squeeze an extra few cattle in to, say, obviate the need for a further load.  Again as I have found above, there is a real risk that notwithstanding any precautions the appellant may put in place, the gross mass of the combinations could be close to, and possibly exceed, 70.5 tonnes.  

4. The fact that the combinations are to be used for transporting cattle is a factor against granting the exemption given the difficulty in assessing the weight of the cattle being loaded, and thus complying with the key policy consideration of the gross mass limit of 70.5 tonnes.  

The nature of the exemption

1. This is a factor that the Director General was required to take into account pursuant to RTVS Regs r 43(9)(b).

2. The appellant seeks exemptions for eight of its B‑double combinations.  The shortest of these is only longer than 18.8 m by 0.7 m and the longest is over by 1.95 m. 

3. The exemption is sought for the remainder of the lifespan of the combinations, being to 30 June 2017. 

4. The length of the exemption and the fact that it applies to eight combinations are factors against granting the exemption. It is an extensive exemption to RTVS Regs r 63(2).

The public interest in the vehicle or combination not complying with the provision

1. This is a factor that the Director General was required to take into account pursuant to RTVS Regs r 43(9)(d).

2. From the materials before me, I cannot discern any specific public interest in the appellant's B-double combinations not complying with the 18.8 m internal deck length restriction.  The argument that there is a pubic interest in the Government honouring its assurances does not fit into this factor, and is appropriately considered as a separate factor. 

3. The relevant issue is balancing the public interest in road safety and the maintenance of transport infrastructure with the burden of compliance on the appellant.

Other factors - Reduced deck space helps to prevent overloading

1. It is hard to disagree with the bald premise that reduced deck space helps to prevent overloading.  However, I agree with the appellant's submission that the standard by which overloading is to be assessed is the 70.5 tonne gross mass limit.  

2. In his expert evidence, Mr Marcolina concludes that (AB 462, see also AB 363 ‑ 364):

   Over a wide range of average cattle mass (350 to 550kg), if animal welfare loading guidelines are followed and the entire deck space is used, an additional payload of approximately 3.5 to 4 tonnes would be carried on each non-compliant combination, due to increased payload capacity.

   This result confirms the findings of the NRTC regulatory study… and the policy basis of the 18.8m rule, that a deck length of greater than 18.8m results in a greater propensity to overload.

3. However, when one looks to the detail of the analysis, using Mr Marcolina's assumptions for a non-compliant combination:

   (a)for 450kg cattle, the appellant's unmodified B-double combination would have a gross mass of 68.1 tonnes (AB 467); and

   (b)for 550kg cattle, the appellant's unmodified B-double combination would have a gross mass of 68.6 tonnes (AB 470).

4. Therefore, the more accurate description of this analysis is that the appellant's non-compliant B-double combinations have a greater propensity to have a greater mass than they would if modified to have an 18.8 m internal deck length:  the word 'overloading' is pejorative, and must be assessed by reference to a standard, and the standard is 70.5 tonnes gross mass.

5. In the materials before the magistrate there were approximately 70 intercept reports for livestock trailers from Main Roads (see AB 476 ‑ 725, 741 ‑ 748).  The intercept reports were for the period from January 2006 to July 2011.  I agree with the appellant's analysis of these reports that:

   (a)there is no discernable pattern of B-double combinations (whether of the appellant or other operators) exceeding the gross mass limit of 70.5 tonnes;

   (b)there is no evidence of an appellant's non-compliant B‑double combinations exceeding the gross mass limit of 70.5 tonnes; and

   (c)as evidenced by an intercept report on 16 November 2008, it is possible to load an 18.8 m B-double combination so that it is well over the 62.5 tonne gross mass limit and close to the 70.5 tonnes gross mass limit (the gross mass was 69.3 tonnes) (AB 682-683).  

6. At best, this factor comes down to an argument that increased deck space leads to the likelihood of increased mass, which in turn leads to greater wear and tear on roads.  However, given that the appellant is entitled to load to a gross mass of 70.5 tonnes, the argument has little weight in determining whether it would be unreasonable for the appellant to comply.

Other factors  -  Consistency and fairness to industry

1. The respondent submits, in effect, that it would not be unreasonable for the appellant to comply as that outcome would be consistent and fair to all industry participants.

2. Mr Marcolina's evidence is that most or possibly all other livestock operators affected by the issue have already modified their vehicles by installing partitions (AB 362). 

3. There are 12 non-compliant B-doubles registered in Western Australia (AB 177).  The appellant has eight of them (AB 177).  The impact of retrospective enforcement of the 18.8 m deck restrict thus falls more heavily on the appellant than other operators.

4. Further, Mr Mitchell also gave evidence in his statement that (AB 426);

   Main Roads WA have stated on a number of occasions that other operators of the longer B-doubles installed a partitions [sic].  However, I personally saw on a number of occasions that more than one operator pushed the barrier to the side of the truck and filled the trailer to the front with cattle.

5. Mr Mitchell's detailed evidence is to be preferred to Mr Marcolina's general statement.  There is an insufficient basis for an argument that it would not be unreasonable for the appellant to comply, and comply by using partitions, because others in the industry have done so.  Rather, the obligation to comply seems to impose a greater burden on the appellant than others in the industry.

6. Mr Marcolina also gave evidence that (AB 362):

   (a)if the exemption were granted the appellant would be able to carry more stock than others in the industry, creating inequity within the industry;

   (b)the National Livestock Industry Association strongly supports the 18.8 m internal deck length; and

   (c)other industry participants support making all industry participants comply with the 18.8 m internal deck length.

7. The views of the other industry participants in point (c) are set out in a series of letters (AB 243 - 255, 293 - 301). 

8. The appellant submission was to the effect that little, if any, weight should be given to these views as they are of the appellant's competitors who have a vested commercial interest in ensuring the appellant modified its B‑doubles. 

9. In my view, the objective of creating a level competitive playing field within the industry is moderately supportive of refusing the exemption.  It is only moderately supportive of refusing the exemption as there is still a level playing field around the 70.5 tonnes gross mass limit.  

Other factors – Representations made prior to 2002 and subsequent change 

1. It seems clear on the evidence before me that the initial position of Main Roads WA was that the 18.8 m internal deck restriction would not operate retrospectively, and that B-double combinations to a trailer overall combination length of 22 m would be permitted to operate in Western Australia after the implementation of RTVS Rules (AB 171).  The appellant purchased one of its B‑double combinations in specific reliance on a representation made to its supplier (AB 421-422). 

1. When Main Roads was contemplating the change in its policy to retrospectively enforce the 18.8 m deck restriction, Mr Mitchell attended meetings with relevant executives.  There was an exchange of correspondence about possible solutions (AB 424 - 425). 

2. No enforcement action was taken against the appellant in the period from 2002 until the change in policy by Main Roads WA.  Following the change in policy, Main Roads WA began to enforce the 18.8 m deck restriction (AB 220, 422 ‑ 424).

3. As I have noted at the commencement of these reasons, a ministerial exemption was granted for just over 12 months to 31 December 2009, and then a departmental exemption until 30 June 2010 (AB 424 - 425).  

4. The appellant submitted that there is a 'public interest in ensuring that Government departments act in accordance with their undertakings and assurances so as to maintain confidence in Government and to allow those operating in a particular industry to make decisions with certainty' (Submissions, par 44). 

5. To my mind, the making of a representation that the 18.8 m deck restriction would not be enforced retrospectively is not of itself a factor of great weight suggesting that it would be unreasonable to require compliance.  The Government of the day must be afforded considerable latitude in enforcing the road transport safety regime as it determines is optimal from time to time. 

6. However, there is no particular catalyst for the change in enforcement practices by the Government.  For example, it is not a situation in which non‑compliant B-double combinations have been routinely exceeding the 70.5 tonne gross mass limit or have otherwise been the cause of road safety or infrastructure damage issues. 

7. The key issue going to unreasonableness is the specific impact of the decision on the appellant.  In this context, it is significant that the appellant relied on the representation to purchase one of its B-double combinations.  

Whether or not the vehicle or combination can be operated safely despite not complying with the provision

1. This is a factor that the Director General was required to take into account pursuant to RTVS Regs r 43(9)(c).

2. In his report, Mr Di Cristoforo found that he did not have any specific safety concerns regarding the appellant's B-doubles in their current unmodified format (AB 446).  

3. Mr Marcolina did not give any evidence to the effect that the combination could not be operated safely were the exemption to be given.

4. There is no evidence that the appellant's non-compliant B-doubles have been involved in any accidents or were otherwise the cause of any safety issues. 

5. There are thus no particular safety issues with the appellant's non‑compliant B-double combinations, either from an expert perspective or from an operational perspective.  I find that the appellant's non‑compliant B‑doubles can be operated safely despite not complying with the 18.8 m internal deck length restriction.

The likelihood and significance of any adverse impact on safety if the exemption were given or amended

1. This is a factor that the Director General was required to take into account pursuant to RTVS Regs r 43(8).

2. As I have noted above, there are no particular safety issues with the appellant's non-compliant B-double combinations, either from an expert perspective or from an operational perspective.  I find that there would be no specific adverse impact on road safety if the exemption were granted.

Other factors – safety issues arising from compliance

1. I have dealt with this issue at some length above.  My conclusions may be summarised as follows:

   (a)there is a real risk that a B-double combination modified by the insertion of a partition could be loaded to a gross mass of 70.5 tonnes, notwithstanding any efforts the appellant might put in place to prevent this occurring;

   (b)the consensus of expert evidence is that there are safety issues with a B‑double combination modified by the insertion of a partition loaded to 70.5 tonnes;

   (c)if the safety risks identified by Mr Di Cristoforo eventuate, the magnitude of the damage that could occur is significant, including personal injury or death to the driver of the B-double combinations and/or other vehicles; and

   (d)given (a) to (c), the appellant's position that the only way it can comply is to shorten the B-double combinations is both understandable and appropriate.

The likelihood and significance of any adverse effect on the environment if the exemption were given or amended

1. This is a factor that the Director General was required to take into account pursuant to RTVS Regs r 43(8).

2. There is nothing in the evidence before me about the impact of the exemption on issues such as pollution and damage to the natural environment.

3. There is evidence going to the impact of the granting the exemption on infrastructure such as roads and bridges.  This is arguably part of the 'environment'.  If I am wrong about this, the impact on infrastructure is nevertheless relevant to the overall discretion.  As Mr Marcolina observes, road wear is not only an economic issue in terms of Government spending on infrastructure.  'Road wear can cause a degradation of the road surface and structure (eg: shoulder breaking, surface damage, rutting, etc), resulting in a safety hazard for the road using community in general' (AB 464).

4. Consistent with his other findings, Mr Marcolina's opinion on the impact on restructure of the proposed exemption is based on the premise that an unmodified or non-compliant B-double combination will be able to carry an additional payload of approximately 3.5 to 4 tonnes than a compliant B‑double combination.  This additional mass in turn leads to between 28% and 31% 'greater road wear than a typical compliant combination with all other variable being equal' (AB 462 - 463). 

5. It is obvious that a B-double combination with an internal deck length of up to 20.75 m can accommodate more cattle than a B-double combination with an 18.8 m internal deck length.  This means that the appellant's non‑compliant B-double combinations will generally have a higher gross mass than a compliant one, increasing road wear and tear from that which might occur with an compliant B-double combination.  

6. However, a difficulty with Mr Marcolina's view is that the appellant is lawfully entitled to carry sufficient cattle for the gross mass of the B‑double combination to be 70.5 tonnes.  It is entitled to do so whether or not the exemption is granted.  Mr Mitchell's evidence is that a compliant B‑double combination can be loaded to 70.5 tonnes and that the appellant's staff would endeavour to load to this limit, subject to good animal welfare practices (AB 84 ‑ 85).  Thus, the impact on road wear is of the granting of the exemption is likely to be limited, basing the impact on the mass of the combination alone. 

7. In his report, Mr Cristoforo also considered the impact of the appellant's current unmodified B-doubles on infrastructure.   He opined that he did not have any specific infrastructure concerns regarding the appellant's unmodified (non‑compliant) B-doubles (AB 446).  Rather, he was of the view that the unmodified B-double was less damaging to the environment that each of the proposed modifications.  This is because (AB 446):

   (a)'the false wall modification would result in axle group loads that induce great road wear'; and

   (b)'the trailer shortening modification would result in reduced distances between axles that induce greater stresses on bridge structures'.

8. The evidence as to any adverse effect on infrastructure as a result of the grant of the exemption seems to balance out and become neutral.  Both the modified and unmodified B-doubles seem to have more or less the same impact on infrastructure.

Other factors –Costs of the proposed modifications

1. The cost of the modifications necessary to bring the appellant's non‑complaint B-doubles into compliance with the requirement for an 18.8 m deck length is a factor in whether or not it would be unreasonable to require the appellant to comply.  This in turn depends on which of the two proposed modifications the appellant is required to undertake, a point to which I return in the final analysis.

2. The cost of fitting partitions to the appellant's non‑compliant B‑doubles is in estimated to be $5,000 per combination, that is, about $40,000 in total (AB 363). 

3. The cost of the trailer shortening modifications is estimated to be about $285,000 to modify all of the trailers.  To this is added the amount of $590,000 which the appellant says it will incur in costs by reason of having to remove the trailers from operation while the modifications to shorten them are carried out.  It would cost the appellant about $1.7 m to replace the non‑compliant B‑doubles, taking into account their residual value (AB 427, 430 ‑ 431). 

Other factors – animal welfare

1. The submissions of the parties touch on the issue of the animal welfare implications of an 18.8 m or a longer internal deck length.  The appellant's evidence is that (AB 81 - 85, 212 - 219, 834 - 838):

   (a)the loading densities of cattle are recommended, not mandatory;

   (b)there is no recommended nor mandatory minimum density at which cattle should be loaded when being transported by road; and

   (c)it is possible to load an 18.8 m B-double combination with sufficient cattle for the gross mass to be around 70.5 tonnes consistent with good animal welfare practices.

2. The industry guidelines provide that 'loading cattle either too loosely or too tightly predisposes them to injury' (AB 216).

3. Mr Marcolina gave evidence that if the greater deck area of the appellant's non-compliant B-doubles are available, but only loaded to their mass limit (ie to a lower density), then there may be an increase risk of injury to livestock by fall during transit.  However, as I have noted above, on Mr Marcolina's own analysis, using the recommended loading density, the appellant's non-compliant B-doubles do not exceed the 70.5 gross mass limit. 

4. The animal welfare issues do not suggest that the exemption should not be granted. 

Would it be unreasonable to require the combination to comply with the provision?

1. The ultimate question for the Director General, and thus for the court, is whether it 'would be unreasonable to require the combination to comply with the provision':  RTVS Regs r 43(4)(c).

2. The factors which I have considered in [103] to [167] above must be brought into this question.  As a starting point:

   (a)the key policy consideration seems to be the 70.5 tonne gross mass limit;

   (b)it is difficult to accurately assess the weight of cattle being loaded;

   (c)however, there is no discernable pattern of B-doubles (whether of the appellant or other operators) exceeding the gross mass limit of 70.5 tonnes; and

   (d)further, there is no evidence of any appellant's non-compliant B‑double combinations exceeding the gross mass limit of 70.5 tonnes.

3. The grant of an exemption thus does not seem to be inconsistent with the key policy consideration.  Although it is true that increased deck space leads to greater likelihood of heavier loads than with an 18.8 m deck length, which in turn leads to more wear and tear on roads, it is the gross mass limit which ultimately determines the level of wear and tear on roads which the Government considers is acceptable.  The Government has set this at 70.5 tonnes gross mass for a B-double combination.

4. There is no evidence as to any adverse effect on the environment generally, or transport infrastructure, as a result of the grant of the exemption.  Both the modified and unmodified B-doubles seem to have more or less the same impact on infrastructure.

5. The appellant relied on the assurances by Main Roads in relation to the purchase of one of its B‑double combinations.  There is no particular catalyst to the change in enforcement practices by the Government that I should give weight to.  These factors support the grant of an extension. 

6. As I have discussed at a number of points above, the key issue is that of safety, as follows:

   (a)the appellant's non-compliant B-doubles can be operated safely despite not complying with the 18.8 m internal deck length;

   (b)there would be no specific adverse impact on road safety if the exemption were granted;

   (c)there is a real risk that a B-double combination modified by the insertion of a partition could be loaded to a gross mass of 70.5 tonnes, notwithstanding any efforts the appellant might put in place to prevent this occurring;

   (d)the consensus of expert evidence is that there are safety issues with a B‑double combination modified by the insertion of a partition loaded to 70.5 tonnes;

   (e)if the safety risks identified by Mr Cristoforo eventuate for a B‑double with a partition loaded to 70.5 tonnes, the magnitude of the damage that could occur is significant, including personal injury or death to the driver of the B-double and/or other vehicles;

   (f)given (c) to (e), the appellant's position that the only way it can comply is to shorten the B-double combinations is both understandable and appropriate.

7. It follows that for the appellant to comply with the 18.8 m internal deck length, it will need to shorten its eight non-compliant B-doubles at a cost of at least $285,000.  My sense is that the estimate of $590,000 costs to remove the trailers from operation while the modifications to shorten them are carried out is overstated, but there will be some costs, or perhaps more accurately, loss of profit, involved. 

8. The burden of compliance falls more significantly on the appellant than other industry participants as it has eight of the 12 non‑compliant B‑doubles combinations.  The extent of the burden of compliance on the appellant justifies the extent of the exemption, the fact that it is to apply until 30 June 2017 for eight combinations.  The extent of the burden of compliance on the appellant also justifies the grant of an exemption notwithstanding any impact on competition; though there is still a level playing field around the 70.5 tonnes gross mass limit. 

9. For these reasons, I consider that it would it be unreasonable to require the appellant to comply with the 18.8 m internal deck requirement for its eight B‑double combinations. The exemption should continue until 30 June 2017. Although at this time some of the B-Double combinations may have further operational life, this period of time gives the appellant ample time to restructure its fleet to bring it into compliance with RTVS Rules r 63(2).

10. The RTVS Regs empower the decision maker to impose conditions on an exemption: RTVS Regs r 50.  A breach of the conditions of the exemption would give the respondent the grounds to initiate the process of amending or revoking the exemption, which includes requirements as to procedural fairness: RTVS Regs r 56. 

11. It seems to me that there are two conditions that ought to be imposed.  The first is that the exemption is conditional upon the appellant not breaching the 70.5 tonnes gross mass limit.  As I have noted, this seems to be the key Government policy.  If it transpires that the appellant's non‑compliant B‑double combinations breach the 70.5 gross mass limit then the exemption should be put at risk. 

12. The second is that exemption should be subject to the appellant only operating the non-compliant B-double combinations in Western Australia.  In this way, the consistency and competition issues are limited to the Western Australian context in which the key policy consideration is the 70.5 gross mass limit and not the 62.5 tonne gross mass limited adopted elsewhere in Australia.

13. I will hear from counsel on the precise terms of the orders to be made, the drafting of the exemption and the costs of the appeal.