Rathmann v Singleton No. Scgrg-99-230 Judgment No. S165

[1999] SASC 165

RATHMANN v SINGLETON

[1999] SASC 165

Magistrates Appeal

1. MARTIN J.  (Ex tempore)  This is an appeal against a dismissal by a magistrate of a complaint against the respondent that it was the owner of an overloaded vehicle driven on a road whilst its mass exceeded the maximum prescribed by the Road Traffic (Mass Limits) Regulations 1989, contrary to s146 of the Road Traffic Act 1961 (the Act).

2. The vehicle was a prime mover with attached trailers and comprised what is commonly referred to as a road train and, more particularly, a double road train.  The prime mover was registered under the Commonwealth Interstate Road Transport Act 1985 (the Commonwealth Act), while the trailers were registered under the South Australian Motor Vehicles Act 1959. It is common ground that by virtue of s3(2) of the Commonwealth Act, the entire vehicle, including the State-registered trailers, was a registered motor vehicle under the Commonwealth Act.

3. The respondent pleaded not guilty and the matter proceeded by way of a short trial.  Evidence was led by the prosecution from a road transport inspector that the total mass of the vehicle was 64.5 tonnes.  One of the trailers did not have an inspection label and the other did not have a current label.

4. At the relevant time, the general mass limit in South Australia was 42.5 tonnes, but under the provisions of the Road Traffic Act road trains were exempted from that limit on certain conditions.  The exemption and the conditions were gazetted on 16 January 1997.  If the exemption had applied to the respondent’s vehicle, it would have been under the prescribed weight for a road train.  However, s164B of the Act provides that if a person fails to comply with any of the exemption conditions, the exemption does not operate in that person’s favour.  In that event, the lower limit of 42.5 tonnes applies.

5. Paragraph 3.3 of the exemption was a condition that all South Australian registered vehicle units in a road train shall be inspected and display a current inspection label. According to the evidence of the Road Traffic Act transport inspector, the respondent’s vehicle did not comply with that condition because one of the trailers did not have a label attached and the label attached to the other trailer was not current. The end result was that the limit of 42.5 tonnes applied and this vehicle was 64.5 tonnes.

6. At the conclusion of the evidence counsel for the respondents submitted there was no case to answer. On a discrete point of law the magistrate acceded to the submission and dismissed the complaint. In essence his Honour found that the relevant South Australian law did not apply to the vehicle as it was excluded by the operation of Commonwealth law which “covered the field” with respect to this particular vehicle. His Honour relied on s12A of the Commonwealth Act which is in the following terms:

   “Notwithstanding any law of a State or Territory relating to mass limits, it is lawful, subject to this Act, for a registered motor vehicle or trailer that complies with the requirements prescribed for the purposes of paragraph 13(aa) to be driven on a road in the carriage of passengers or goods between prescribed places or for any purpose that is incidental to carriage of that kind”. 

7. The appellant argues that his Honour was in error because the Commonwealth Act was not intended to exclude the operation of State laws generally and s12A only excludes State laws relating to mass limits in respect of the limited circumstances specified in s12A. The respondent argues that s12A operates to exclude State laws in the limited field of mass limits of vehicles engaged in interstate trade and registered under the Commonwealth Act.

8. The appellant relies upon s52(1) of the Commonwealth Act which provides:

   “Effect of this Act and Regulations on State and Territory Laws

   52. (1).. It is the intention of the Parliament that this Act (except sections 12A and 12C) and the Regulations shall not, subject to sub-section (2), apply to the exclusion of a law of a State or Territory”.

9. Sub-section (2) of s52 specifically excludes subs(1) from permitting the application of the law of the State or Territory to a number of defined circumstances which are not relevant for present purposes. The existence of subs(2), however, demonstrates that the Commonwealth Parliament specifically addressed its attention to the extent to which the Commonwealth Act would apply to the exclusion of State or Territory laws.

10. I mention that the Commonwealth Act was amended by Act number 43 of 1998, but that amendment came into operation on 2 June 1998 and has no application to the matter now being considered.

11. The Commonwealth law specifically states that it is not intended to cover the field.  There remains room, therefore, for the operation of State laws that do not conflict with the Commonwealth law R v Credit Tribunal, ex parte, General Motors Acceptance Corporation, Australia (1977) 137 CLR 545 at 563. It is in this context that the operation of s12A must be considered.

12. Counsel for the respondent argued that if the appellant is correct, great difficulties will be created for a defendant.  He said it poses problems in terms of methods of proof and what laws apply.  In my opinion, those suggested difficulties do not arise.  In a State prosecution under the State law, the State evidence laws apply and include the relevant provisions of the State law which provide methods of proof that assist the prosecution.  When facts are proved, there is no difficulty in then considering the operation of relevant Commonwealth law to those facts.

13. Counsel also suggested if State laws apply it will create a difficulty as to who bears the onus of proof with respect to matters arising under s12A. In the case of a Commonwealth registered vehicle, is it for the prosecution to disprove the operation of s12A or for the defence to establish those matters? The respondent submits that the prosecution must disprove the application of s12A. The appellant contends that s12A, in substance, provides a defence against a breach of the State law and the onus rests upon a defendant to establish that defence on the balance of probabilities.

14. Initially I was attracted to the proposition that the burden should rest upon the prosecution to disprove the applicability of s12A of the Commonwealth Act, but on reflection there is considerable force in the position taken by the appellant. The offence created by s146 of the Act is an offence of strict liability and s12A of the Commonwealth Act makes lawful what is otherwise unlawful. It is akin to providing a defence. If the onus rests on the prosecution to disprove the matters raised under s12A, the appellant correctly observes it would place an intolerable burden on the prosecution to prove matters peculiarly within the knowledge of the owner and driver. In those circumstances, I am inclined to the view that the onus rests upon the defendant to establish that the vehicle comes within s12A and to establish those matters on the balance of probabilities. However, I have not had the benefit of full argument and the relevant authorities have not been cited. It is unnecessary for me to decide this issue.

15. Counsel for the respondent also suggested that it would be unfair to subject the road user to both sets of laws as the user would not know which law applied and how to comply. In my view there is no substance in that proposition. If a vehicle is registered under the Commonwealth Act and complies with the requirements of that Act, its travel across State roads will be lawful. If it fails to comply with the Commonwealth Act an offence will be committed under that Act and may also be committed under the State Act. The fact that an offence might be committed under both laws is not fatal to the interpretation put forward by the appellant. The High Court was clear on this aspect in McWaters v Day (1998) 168 CLR 289. The relevant passage taken from the head note reads:

    “The mere fact that Commonwealth and State laws prescribe different penalties for substantially the same conduct, and that the conduct proscribed by the two is not the same, is insufficient to establish an inconsistency within s109.   It is necessary to inquire whether the Commonwealth statute, in prescribing the law to be observed, evinces an intention to cover the subject matter to the exclusion of any other law”.

16. I note that while an offence might be committed under both laws, an offender is not be liable to be punished twice.  Section 50 of the South Australian Acts Interpretation Act 1915 and s4C of the Commonwealth Crimes Act 1914 combine to ensure that an offender can only be punished once under either Commonwealth or State law. Section 4C of the Crimes Act plainly contemplates the possibility of conduct amounting to an offence under both Commonwealth and State laws. 

17. In my opinion the plain meaning of the words in s12A considered in the context of the Act, and in particular s52, is to exclude the operation of State law relating to mass limits only in the circumstances specified in s12A, namely:

    “1. If the vehicle is registered under the Commonwealth Act; and

    2.......... If the vehicle complies with the requirements prescribed for the purposes of s13(aa) of that Act; and

    3.If the vehicle is being driven on a road in the carriage of passengers or goods between prescribed places or for any purpose that is incidental to carriage of that kind.”

18. In my opinion, the magistrate erred in concluding that the Commonwealth Parliament intended to cover the field relating to mass limits of vehicles registered under its legislation and that the vehicle was, therefore, not subject to the law of South Australia relating to mass limits. If the respondent's vehicle was being driven on a road, in this State, in circumstances other than those set out in s12A, in my opinion the South Australian law related to mass limits applied to that vehicle.

19. During the course of submissions there was some discussion as to whether the matter should be remitted to the magistrate for further hearing. If there was some other definitive point that would inevitably result in a dismissal of the complaint, it would have been preferable to dispose of the matter in this hearing. The prosecution has conceded that the vehicle was being driven on a road in the carriage of goods between prescribed places for the purposes of s12A. It is the prosecution case, however, that the vehicle did not comply with the Commonwealth Regulations prescribed for the purposes of s13(aa) of the Commonwealth Act. Regulation 12A of the Interstate Road Transport Regulations prescribes the weight for the vehicle in question of 42.5 tonnes. In those circumstances the prosecution says there is no room for the operation of s12A because the vehicle did not comply with that section. If the magistrate is satisfied that the vehicle did not comply as alleged by the prosecution, s12A would not apply.

20. Although such a definitive point has not been identified, counsel for the respondent has indicated that there are a number of issues arising out of the prosecution evidence which the respondent wishes to pursue in an endeavour to demonstrate that the prosecution has not proved its case, irrespective of the operation of s12A of the Commonwealth Act. In those circumstances I have determined that I should not endeavour to resolve those issues and that the appropriate course is to remit the matter to the magistrate for further hearing.

21. The appeal is allowed and the matter is remitted to the magistrate for further hearing in accordance with these reasons.   I order that the respondent pay the appellant’s costs of this appeal fixed at $150.00.