Roads and Maritime Services v Dranmore Pty Ltd - [2017] NSWLC 22

Local Court

New South Wales

Amendment notes

Medium Neutral Citation: Roads & Maritime Services v Dranmore Pty Ltd & Ors [2017] NSWLC 22
Hearing dates: 9-12 and 17-20 November 2015; 29 February 2016; 1-3 March 2016. Written submissions: 1 April 2016 (Prosecution); 15 April 2016 (Defence). Further written submissions: 6 May 2016 (Prosecution); 26 May 2016 (Defence)
Decision date: 04 October 2017
Jurisdiction: Criminal
Before: Magistrate T Tsavdaridis
Decision:
See paragraph 124

Catchwords: CRIMINAL - specific offences - heavy vehicle related legislation - chain of responsibility speeding offences - speed limiter devices - compliance - reasonable steps defence
Legislation Cited: Criminal Procedure Act 1986 (NSW) s175(3)
Evidence Act 1995 (NSW) ss141 and 191
Road Transport (General) Act 2005 (NSW) (Repealed) ss 6, 21, 178
Road Transport (General) Regulation 2005 (NSW) (Repealed) cll 152, 156, 165
Road Transport (Safety and Traffic Management) Act 1999 (NSW) (Repealed) s 69C
Road Transport (Vehicle and Driver Management) Act 2005 (NSW) (Repealed) s150
Cases Cited: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7
Council of the City of Lake Macquarie v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387
Dranmore Pty Ltd & Ors v Paul Bimson [2014] NSWSC 1230
Fleming v R (1998) 197 CLR 250; [1998] HCA 68
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1
Western Freight Management Pty Ltd v Roads & Maritime Services New South Wales [2014] NSWCA 132
Woolmington v DPP [1935] AC 462
Category: Principal judgment
Parties:
Road and Maritime Services (Prosecuting Authority)
Dranmore Pty Limited (First Defendant)
Eezee Nominees Pty Limited (Second Defendant)
Laudrup Pty Limited (Third Defendant)
GE & CD Hommes Pty Limited (Fourth Defendant)
Roadmaster Driving Tutorial Pty Limited (Fifth Defendant)
Frederick Borg (Sixth Defendant)
Danny Frederick Borg (Seventh Defendant)
Grant Raymond Borg (Eighth Defendant)
Representation:
Counsel:
Mr M Higgins (Prosecuting Authority)
Dr A M Martin (Defendants)
Solicitors:
Henry Davis York (Prosecuting Authority)
Nicholas W J Rolfe Solicitors (Defendants)

File Number(s): 2012/00174445; 2012/00175997; 2012/00168266; 2012/00168769; 2012/00174416; 2012/00169690; 2012/00174767; 2012/00174518; 2012/00168950; 2012/00177268; 2012/00176707; 2012/00169642; 2012/00173058; 2012/00173364; 2012/00176093.
Publication restriction: Nil

Judgment

Overview

The Defendants are related trucking companies, within the Fred’s Interstate Transport Group, based in Shepparton, Victoria, three of whom are directors, and are collectively charged with some 217 offences, contrary to now repealed legislation relating to heavy vehicle speed violations, namely:

(a) Section 178(1) Road Transport (General) Act2005 (NSW) (Repealed) (“RT(G)Act”);

(b) Clause 156(3) Road Transport (General) Regulation2005 (NSW) (Repealed) (“RT(G)Reg”); and

The offences can generally be categorised as strict liability offences. Some, though, are in the nature of ‘chain of responsibility’ offences, in which obligations are imposed on corporate bodies, directors, partners and managers who are accountable for the actions of others, particularly drivers, under their control. Other offences are enlivened by derivative or vicarious liability, which emanates from deeming provisions imputing liability on a person for violations of the road transport legislation committed by a corporate entity. All three offence categories provide statutory defences, the onus of which rests with the corporate entity or individual director as the case may be. For ease of reference, I will refer to the corporate and individual defendants as the Defendants or the Defence, unless a contrary intention is expressed.
These proceedings have a lengthy history, the subject matter of which relates to offences said to have taken place in or about 2011, the prosecution of which was undertaken by Roads and Maritime Services (“RMS”).
The Court Attendance Notices (“CANs”), by which the prosecutions were commenced, were filed in 2012, the delay in the matters coming to hearing being attributable, in part, to an interlocutory issue being considered in the Supreme Court of NSW by Campbell J in Dranmore Pty Ltd & Ors v Paul Bimson [2014] NSWSC 1230 (“Dranmore v Bimson”). In those proceedings, the Defendants sought to “quash as insufficient in law and invalid as non-compliant with s 175(3)(a) and (b) Criminal Procedure Act 1986 (NSW)” the CANs for a failure on the part of the prosecuting authority to particularise the reasonable steps and / or available reasonable precautions the Defendants failed to take to prevent the primary offences occurring.
In the alternative, the Defendants sought leave to appeal from an interlocutory decision of this Court, differently constituted, in which it was held that the reasoning in Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”) did not apply.
In Kirk it was held, inter alia, that the legal obligation to provide particulars cast upon a prosecutor in criminal proceedings may extend to providing particulars necessary to enable the person charged to decide whether a recognised defence to the charge may be available: Kirk at [27]; Dranmore v Bimson at [7], [22] and [23]. But as observed by McColl JA (at [18]) in Western Freight Management Pty Ltd v Roads & Maritime Services New South Wales [2014] NSWCA 132 (“Western Freight”):

“The vice of the charge in [Kirk] was the failure to particularise the actus reus of the offence, which failure prevented the defendant from relying upon a statutory defence which depended upon it establishing it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence”.

Despite acknowledging that the particulars provided by the RMS on 13 April 2013 were of the kind that were required to enable the person charged to decide whether a recognised defence of the charge may be available (Dranmore v Bimson at [7]), Campbell J, following the reasoning in Western Freight, concluded that the information contained within the CANs contained the actus reus of the offending conduct covered by the legislative offence provisions (Dranmore v Bimson at [48]) and ultimately dismissed the Defendants’ application. I understood this to also mean that to the extent that particulars were provided by the prosecuting authority, such particulars were sufficient. No further agitation of this issue arose in the proceedings before this Court, but it is a relevant fact to record, given that the Defendants, on day two of the hearing, unsuccessfully sought to vacate the remaining 13 hearing days and adjourn the proceedings to another date. The basis of such application was so as to enable a nolle prosequi submission to be made to the RMS, reliant upon two boxes of documents provided by the Defendants to their legal representatives two weeks before the hearing commenced and which were said to be relevant to the statutory defences available to them.
The hearing ultimately spanned some 12 hearing days with written submissions and submissions in reply over the course of broken periods of hearing availability in a busy Local Court complex between 2015 and 2016. This accounts for part of the delay in bringing the proceedings to a conclusion. The other reason was the need to reserve and prepare these written reasons in a case which involved some 62 exhibits, 51 MFIs, 12 volumes of reports, policies, records and manuals, 731 pages of transcript and 117 pages of written submissions, in a jurisdiction with little, if any, judicial support or typing services.

The Legislation

The relevant provisions pursuant to which the speed limiter related charges were brought provide as follows (the offence provision and statutory defence underlined respectively):

Road Transport (Safety and Traffic Management) Act 1999 (NSW)

69C Vehicles to be speed limited

(1) The responsible person for a vehicle to which this Division applies is guilty of an offence unless the vehicle is speed limiter compliant when the vehicle is being driven on a road or road related area.

Maximum penalty: 30 penalty units (in the case of an individual) or 150 penalty units (in the case of a corporation).

(2) In proceedings for an offence under this section, proof that the vehicle concerned was driven on a road or road related area at a speed of more than 115 km/h is admissible and is prima facie evidence that the vehicle was not speed limiter compliant at the time that it was travelling at that speed.

(3) It is a defence to a prosecution for an offence under this section if the defendant proves:

(a) that the vehicle was, at the time of the alleged offence, a stolen vehicle or a vehicle illegally taken or used, or

(b) that the vehicle is speed limiter compliant and that, at the time it was travelling at a speed of more than 115 km/h, the gradient of the length of road or road related area along which the vehicle was being driven at or immediately before that time, combined with the speed at which the vehicle was travelling on that length of road or road related area, caused it to be driven at more than 100 km/h despite the vehicle being speed limiter compliant.

(4) In proceedings for an offence under this section, it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence.

Road Transport (Safety and Traffic Management) Act 1999 (NSW)

Dictionary

1 Definitions

(1) In this Act:

responsible person for a vehicle—see section 6 of the Road Transport (General) Act 2005.

Road Transport (General) Act 2005 (NSW)

6 Responsible person for a vehicle

(1) In the road transport legislation, the responsible person for a vehicle is:

(a) in relation to a registered vehicle—each of the following persons:

(i) a registered operator of the vehicle, except where the vehicle has been disposed of by the operator,

(ii) if the vehicle has been disposed of by a previous registered operator—a person who has acquired the vehicle from the operator,

(iii) a person who has a legal right to possession of the vehicle (including any person who has the use of the vehicle under a lease or hire-purchase agreement, but not the lessor while the vehicle is being leased under any such agreement), and

(b) …

(d) any other person (or class of persons) prescribed by the regulations for the purposes of this definition.

(2) For the purposes of subsection (1)(d), the regulations may prescribe different persons for different provisions of the road transport legislation.

Note. A wider definition of responsible person applies for the purposes of Chapter 3.

21 Operators

(1) For the purposes of this Chapter and Part 4.2, a person is an operator of a vehicle or combination if:

(a) in the case of a vehicle (including a vehicle in a combination)—the person is responsible for controlling or directing the operations of the vehicle, or

(b) in the case of a combination—the person is responsible for controlling or directing the operations of the towing vehicle in the combination.

(2) A person is not an operator merely because the person does any or all of the following:

(a) owns a vehicle or combination,

(b) drives a vehicle or combination,

(d) arranges for the registration of a vehicle.

Note. Section 80 (Liability of registered operators and owners) contains provisions relating to the liability of registered operators and owners in connection with offences committed by persons who are operators of vehicles or combinations.

The relevant provisions pursuant to which the directorial liability related charges were brought provide as follows (the offence provision and statutory defence underlined respectively):

Road Transport (General) Act 2005 (NSW)

178 Liability of directors, partners, employers and others for offences by bodies corporate, partnerships, associations and employees

(1) If a body corporate commits an offence under the road transport legislation, each director of the body corporate, and each person concerned in the management of the body corporate, is taken to have committed the offence and is punishable accordingly.

(2) If a person who is a partner in a partnership commits an offence under an applicable road law in the course of the activities of the partnership, each other person who is a partner in the partnership, and each other person concerned in the management of the partnership, is taken to have committed the offence and is punishable accordingly.

(3) If a person who is concerned in the management of an unincorporated association commits an applicable road law offence in the course of the activities of the unincorporated association, each other person concerned in the management of the unincorporated association is taken to have committed the offence and is punishable accordingly.

(4) If an employee commits an applicable road law offence, the employer is taken to have committed the offence and is punishable accordingly.

(4A) Subsections (1), (2), (3) and (4) do not apply in respect of an offence under a provision of a regulation made under the road transport legislation that is declared by such a regulation to be an excluded provision for the purposes of this section.

(5) This section does not affect the liability of the person who actually committed the offence.

(6) A person may be proceeded against and found guilty of an offence arising under this section whether or not the body corporate or other person who actually committed the offence has been proceeded against or been found guilty of the offence.

(7) It is a defence to a prosecution for an offence arising under subsection (1) if the defendant establishes that:

(a) the defendant was not in a position to influence the conduct of the body corporate in relation to the actual offence, or

(b) the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.

(8) It is a defence to a prosecution for an offence arising under subsection (2) or (3) if the defendant establishes that:

(a) the defendant was not in a position to influence the conduct of the person who actually committed the offence, or

(b) the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.

(9) It is a defence to a prosecution for an offence arising under subsection (4) if the defendant establishes that:

(a) the defendant had no knowledge of the actual offence, and

(b) the defendant took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.

The relevant provisions pursuant to which the employer and operator related charges were brought provide as follows (the offence provision and statutory defence underlined respectively):

Road Transport (General) Regulation 2005 (NSW)

156 Duty to ensure offences are not committed

(1) In this clause:

speeding offence means an occurrence in which the driver of a vehicle drives the vehicle in excess of any speed limit that applies to the vehicle.

(2) This clause applies to:

(a) the employer of an employed driver of a vehicle, and

(b) the prime contractor of a self-employed driver of a vehicle, and

(3) A person to whom this clause applies commits an offence if, at any time that a driver of a vehicle, or a vehicle, is subject to the person’s control, the driver commits a speeding offence while driving the vehicle.

Maximum penalty:

(a) in relation to a level 1 offence:

(i) in the case of an individual—10 penalty units, or

(ii) in the case of a corporation—50 penalty units, or

(b) in relation to a level 2 offence:

(i) in the case of an individual—20 penalty units (in the case of a first offence) and 50 penalty units (in the case of a second or subsequent offence), or

(ii) in the case of a corporation—75 penalty units (in the case of a first offence) and 125 penalty units (in the case of a second or subsequent offence), or

(i) in the case of an individual—50 penalty units (in the case of a first offence) and 100 penalty units (in the case of a second or subsequent offence), or

(ii) in the case of a corporation—125 penalty units (in the case of a first offence) and 250 penalty units (in the case of a second or subsequent offence).

(4) Despite subclause (3), a person is not liable under that subclause if the vehicle was a combination, and neither the driver nor the towing vehicle was subject to the person’s control.

(5) The levels of offence referred to in subclause (3) are to be determined using the following table:

Speed limit at the place where the speeding offence occurred

Type of heavy vehicle

Penalty level

Recorded speed of <15 km/h above speed limit

Recorded speed of

≥ 15 km/h above speed limit

50–60 km/h

All

Level 1

Level 1

70–80 km/h

All

Level 1

Level 2

90 km/h

Road trains (where speed limited to 90 km/h)

Level 2

Level 3

90 km/h

Non-road trains

Level 1

Level 2

100 km/h

Non-road train heavy combinations

Level 2

Level 3

>100 km/h

Non-combination heavy vehicles

Level 2

Level 3

(6) It is a defence to an offence under this clause if the accused person establishes that:

(a) the person did not know, and could not reasonably be expected to have known, of the conduct that constituted the offence, and

(b) either:

(i) the person took all reasonable steps to prevent that conduct from occurring, or

(ii) there were no steps that the person could reasonably have been expected to have taken to prevent that conduct from occurring.

(7) For the purposes of this clause:

(a) it is irrelevant whether the driver has been, or will be, charged with the speeding offence, or has been, or will be, convicted of the speeding offence, and

(b) evidence that the driver has been convicted of the speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the charge that resulted in the conviction, and

(c) evidence that the driver has paid the infringement penalty sought by an infringement notice for a speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the infringement notice.

Road Transport (General) Regulation 2005 (NSW)

152 Definitions

(1) In this clause:

operator, in relation to a regulated heavy vehicle, means a person who is responsible for controlling or directing the operations of:

(a) in the case of a vehicle (including a vehicle in a combination)—the vehicle, or

(b) in the case of a combination—the towing vehicle in the combination,

but does not include a person merely because the person:

(d) drives the vehicle or combination, or

(e) maintains, or arranges for the maintenance of, the vehicle or combination, or

(f) arranges for the registration of the vehicle.

In considering cl.156(6)(b)(i) of the statutory defence, the court may consider the following non-exhaustive matters: -

Road Transport (General) Regulation 2005 (NSW)

165 Matters court may consider for deciding whether person took all reasonable steps

A court may have regard to anything that it considers to be relevant when it is deciding whether things that the person did, or did not do, were reasonable steps, including:

(a) the nature of the aspect or risk that the person was attempting to, or should have been attempting to, address, and

(b) the likelihood of a risk eventuating, and

(d) if a driver has been speeding—the circumstances of the offence (for example, the risk category that the offence belongs to), and

(e) the abilities, experience, expertise, knowledge, qualifications and training that the person, or the person’s agent or employee, had or ought reasonably to have had, and

(f) the availability and suitability of ways to eliminate, prevent or reduce an aspect, or to eliminate a risk or to minimise the likelihood of a risk eventuating, and

(g) the cost of eliminating a risk or minimising the likelihood of a risk eventuating.

CANs withdrawn and dismissed

Prior to the commencement of the hearing, the Prosecution withdrew 20 CANs as against a number of Defendants. No objection was taken by the Defence and, accordingly, they were dismissed. A spread sheet listing all of the CANs (including those withdrawn and dismissed) is attached to these Reasons as Annexure “A”.

Statement of Agreed Facts

Pursuant to s.191 Evidence Act 1995 (NSW), there was a written agreement reached between the parties, and tendered into evidence as Exhibit 1, in relation to a number of agreed facts, of which the RMS was not required to prove the existence. The Defendants did not take issue, during the relevant period the subject of these proceedings, with:

the corporate status of the Defendant companies, as being registered in Victoria;

corporations’ registered office addresses;

the corporate officer status of the Defendant companies, to the effect that the three natural person Defendants (Mr Danny Borg, Mr Frederick Borg and Mr Grant Borg) were directors, and concerned in the management, of the corporate Defendants (Dranmore Pty Limited (“Dranmore”), Eezee Nominees Pty Limited (“Eezee”), GE and CD Hommes Pty Limited (“Hommes”), Laudrup Pty Limited (“Laudrup”) and Roadmaster Driving Tutorial Pty Limited (“Roadmaster”));

the location, date and time of the offences;

the name of the driver for many, but not all, of the offences;

the operator (Defendant corporation) responsible for controlling or directing the operations of each of the vehicles on specific dates;

the classification of all of the vehicles as regulated heavy vehicles with a gross vehicle mass (GVM) greater than 4.5 tonnes;

the speed limit applicable to all of the vehicles being 100 km/h;

the Transportable Infra-Red Traffic Logger (“TIRTL”) speed detection device being an approved speed measuring device; and

for the offences pursuant to s.69C RT(S&TM)Act, the vehicle VV47HK had a date of manufacture on or after 1 January 1991 and a GVM exceeding 12 tonnes and that the manner by which such vehicle was to be speed limited was in accordance with the 3rd edition of the Australian Design Rules (“ADR”).

The Multiple Defendants

Dranmore Pty Limited and Mr Frederick Borg

Dranmore was an operator, within the meaning ascribed in cl.152 RT(G)Reg, of a fleet of heavy vehicles which primarily transported goods across several states within Australia, including New South Wales. Mr Frederick Borg was a director of Dranmore.
Between 22 August 2011 and 3 January 2012 inclusive, vehicles operated by Dranmore were alleged to have committed four speeding offences within New South Wales, contrary to cl.156(3) RT(G)Reg.
As a director of Dranmore, Mr Frederick Borg was alleged to have committed the same four offences under cl.156(3) RT(G)Reg, by virtue of derivative liability under s.178(1) RT(G)Act.
Eezee Nominees Pty Limited and Mr Frederick Borg
Eezee was an operator, within the meaning ascribed in cl.152 RT(G)Reg, of a fleet of heavy vehicles which primarily transported goods across several states within Australia, including New South Wales. Mr Frederick Borg was a director of Eezee.
Between 25 February 2011 and 20 January 2012 inclusive, vehicles operated by Eezee were alleged to have committed seven speeding offences within New South Wales, contrary to cl.156(3) RT(G)Reg.
As a director of Eezee, Mr Frederick Borg was alleged to have committed the same seven offences under cl.156(3) RT(G)Reg, by virtue of derivative liability under s.178(1) RT(G)Act.

GE & CD Hommes Pty Limited and Mr Danny Borg

Hommes was an operator, within the meaning ascribed in cl.152 RT(G)Reg, of a fleet of heavy vehicles which primarily transported goods across several states within Australia, including New South Wales. Mr Danny Borg was the sole director of Hommes.
Between 8 January 2011 and 6 February 2012 inclusive, vehicles operated by Hommes were alleged to have committed 47 speeding offences within New South Wales, contrary to cl.156(3) RT(G)Reg.
As a director of Hommes, Mr Danny Borg was alleged to have committed 13 offences under cl.156(3) RT(G)Reg, between 8 January 2011 and 17 January 2012, by virtue of derivative liability under s.178(1) RT(G)Act.

Laudrup Pty Limited, Mr Grant Borg and Mr Danny Borg

Laudrup was an operator, within the meaning ascribed in cl.152 RT(G)Reg, of a fleet of heavy vehicles which primarily transported goods across several states within Australia, including New South Wales. Mr Grant Borg and Mr Danny Borg were directors of Laudrup.
Between 16 January 2011 and 15 March 2012 inclusive, vehicles operated by Laudrup were alleged to have committed 32 speeding offences within New South Wales, contrary to cl.156(3) RT(G)Reg.
As a director of Laudrup, Mr Grant Borg was alleged to have committed nine offences under cl.156(3) RT(G)Reg, between 16 January 2011 and 5 December 2011, by virtue of derivative liability under s.178(1) RT(G)Act.
As a director of Laudrup, Mr Danny Borg was alleged to have committed eight offences under cl.156(3) RT(G)Reg, between 25 May 2011 and 15 March 2012, by virtue of derivative liability under s.178(1) RT(G)Act.

Roadmaster Driving Tutorial Pty Limited and Mr Frederick Borg

Roadmaster was an operator, within the meaning ascribed in cl.152 RT(G)Reg and s.21 RT(G)Act, of a fleet of heavy vehicles which primarily transported goods across several states within Australia, including New South Wales. Mr Frederick Borg was a director of Roadmaster.
Between 5 January 2011 and 10 April 2012 inclusive, vehicles operated by Roadmaster were alleged to have committed 63 speeding offences within New South Wales, contrary to cl.156(3) RT(G)Reg.
Between 11 November 2011 and 29 February 2012, vehicles operated by Roadmaster committed four offences under s.69C RT(S&TM)Act, to which pleas of guilty were entered midway through the hearing.
As a director of Roadmaster, Mr Frederick Borg was alleged to have committed 15 offences under cl.156(3) RT(G)Reg, between 5 January 2011 and 29 January 2012, and four offences under s.69C between 11 November 2011 and 29 February 2012, by virtue of derivative liability under s.178(1) RT(G)Act.

Cautionary Criminal Trial Directions and Onus and Standard of Proof

The charges and statutory defences, respectively, fall into three categories: -

Statute

Offence provision

Statutory Defence

RT(G)Reg

cl.156(3)

cl.156(6)

RT(S&TM)Act

s.69C(1)

s.69C(3)

RT(G)Act

s.178(1)

s.178(7)

Sitting as both the tribunal of fact and law, to the extent that questions of law such as onus and standard of proof arise, it is apposite that I direct myself as though I were directing a jury on the application of the law to the facts, as they found them to be, in matters prosecuted on indictment. Cautionary criminal trial directions apply to a magistrate or judge sitting alone as they do to a trial before a judge and jury: Fleming v R (1998) 197 CLR 250; [1998] HCA 68. For abundant clarity, set out below are the matters in respect of which I directed myself on the issues of onus and standard of proof.
It is imperative, at the outset, to observe that these are criminal proceedings and, as such, the Prosecution bears the onus of proving all the elements of each offence, beyond reasonable doubt: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7; Woolmington v DPP [1935] AC 462. Section 141 Evidence Act 1995 (NSW) preserves the common law position. That onus rests with the Prosecution from start to end and does not shift to the Defence. The Defence, however, bears the onus of proving any statutory defences. At the close of the prosecution case, the Defence entered pleas of guilty to the only four charges brought contrary to s.69C(1) RT(S&TM)Act. As to the remaining charges, the Defence sought to invoke the statutory defences provided for in cl.156(6) RT(G)Reg and s.178(7) RT(G)Act and, after appropriately conceding that a prima facie case had been established, led evidence of its own.
Although not flagged as an issue in the closing written submissions submitted by counsel for each party, a little more need be said about the statutory defences and their interaction with the principles governing onus and standard of proof.
To the extent that an onus is cast upon an accused, the Court is to find the Defence case proved if it is satisfied that the case has been proved on the balance of probabilities: s.141(2) Evidence Act 1995 (NSW).
Counsel for both parties agreed that this was a matter in which the Defence bore the onus, on the balance of probabilities, of proving facts that would bring its case within the scope of the qualifications outlined in the statutory defences, and that it was then for the Prosecution to negative or disprove the existence of such facts to the requisite criminal standard, beyond reasonable doubt (T1.3.2016, 8.14 - 8.22). This is consistent with the reasoning in Council of the City of Lake Macquarie v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387 at [41].
Two further matters should be borne in mind when arriving at a concluded view as to whether the Defendants are guilty or not guilty of the offences with which they have been charged.
First, putting aside statutory defences in respect of which the Defence bears an onus on balance, it is erroneous for a tribunal of fact to consider each item of evidence separately and eliminate it from consideration, no matter how or by whom it was raised, unless satisfied beyond reasonable doubt. The evidence must be considered as a whole, not in isolation: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7.
Secondly, if, upon a review of all the evidence, the tribunal of fact is left with reasonable doubt about whether the Prosecution case has been made out, or is satisfied that the Defence case has been made out, a verdict of acquittal must be returned: Woolmington v DPP [1935] AC 462.

Certain offences

There are 217 charges comprising 157 alleged speeding charges brought against corporate entities and 60 derivative liability offences brought against directors.
The following four alleged offences should be quarantined from the outset:

Seq No

Case No

Offence type

Defendant

Date of offence

Rego No

18

2012/168266

cl.156(3)

Laudrup Pty Ltd

15.3.2012

VV97HW

8

2012/174767

s.178

(cl.156(3))

Danny Borg

(Re: Laudrup Pty Ltd)

15.3.2012

VV97HW

45

2012/173364

cl.156(3)

Hommes Pty Ltd

21.12.2011

VV53HQ

6

2012/177268

s.178 (cl.156(3))

Danny Borg

(Re: Hommes Pty Ltd)

21.12.2011

VV53HQ

Whilst admissions were made in the s.191 Statement of Agreed Facts (Ex.1) as to the vehicle VV97HW being driven, having a GVM greater than 4.5 tonnes; and being a regulated heavy vehicle, no admission was made that Laudrup was responsible for controlling or directing the operations of such vehicle on the relevant alleged offence date being 15 March 2012. There was an admission as to control and direction regarding the said vehicle (Ex.1, [4.43]), but this related to the date of 13 March 2012, which did not correspond with the date of any charge before the Court.
Similarly, whilst admissions were made in Exhibit 1 as to the vehicle VV53HQ being driven on a number of other dates, having a GVM greater than 4.5 tonnes on a number of other dates, being a regulated heavy vehicle on a number of other dates, and Hommes being responsible for controlling or directing the operations of such vehicle on a number of other dates, no admission was made that Laudrup was responsible for controlling or directing the operations of such vehicle on the relevant alleged offence date being 21 December 2011.
The Prosecution contended, by its written submissions in reply, that, amongst other things, due to a typographical error in these dates, and based on the Defendants’ concession throughout their cross-examination of Mr David Palfrey (RMS Investigator), the various corporate entities were operators of the various heavy vehicles. It was said that they were identified by registration number in an attachment (being a table listing such information) to an email from Mr John Willoughby (RMS Senior Projects Development Officer, Compliance Operations Branch) to Mr Palfrey dated 2 May 2012 (Statement of Mr David Palfrey (RMS Investigator))(Ex.2, [21]; Ex.4, Tab 9.2) and that it could be inferred that Laudrup and Hommes were the operators on the correct offence dates. While such inference might be sufficiently drawn to surmount the prima facie hurdle, such inference cannot, in my view, be drawn to the requisite criminal standard, beyond reasonable doubt, on the ultimate finding. The allegations on which the charges are based are date-specific and, being strict liability offences requiring strict proof of each element thereunder, there is insufficient evidence to establish the element of operator control and direction, beyond reasonable doubt, in relation to the principal offences brought against the relevant corporations on the specific dates to which the CANs refer. With the corresponding derivative directorial liability offences dependent on proof of guilt of the corporate operator under the principal offences, it follows that those too must fail.
In the circumstances, sequence 18 of 2012/168266; sequence 8 of 2012/174767; sequence 45 of 2012/173364; and sequence 6 of 2012/177268 should be dismissed.

Issues for determination

There were two fundamental issues to be determined in these proceedings.
The first was the accuracy of the devices utilised by the RMS to detect the time, date, direction, speed, lane number, location and identity of the Defendants’ heavy vehicles when each was said to be the subject of a speeding offence underpinning the CANs pursuant to which the charges were brought.
The second issue, in general terms, involved the reasonableness or otherwise, of the precautions or steps taken by the Defendants to prevent the commission of heavy vehicle speeding offences.
Throughout these reasons, I have used the phrases “reasonable precautions” and “reasonable steps” interchangeably for ease of reference. I am, though, cognisant of the fact that s.178(7) RT(G)Act refers to “reasonable precautions”, whilst cl.156(6) RT(G)Reg refers to “reasonable steps”. Neither party took issue with the differing phraseology in these provisions.

Accuracy of device technology

A great deal of time was spent on the first issue in the examination and cross-examination of the Prosecution’s witnesses (Mr David Palfrey (RMS Investigator), Mr John Willoughby (RMS Senior Projects Development Officer, Compliance Operations Branch), Mr Paul Hayes (RMS Manager, Compliance Systems, and Camera Specialist), Mr David Driscoll (Camera Specialist), Mr Gary Williams (Camera Specialist), Mr Jitesh Parekh (Camera Specialist) and, particularly, the expert evidence of Dr Jonathon Spring (Director of CEOS Pty Limited and developer of the TIRTL traffic detection technology)).
One of the elements of the offences brought contrary to cl.156(3) RT(G)Reg was that a driver committed a speeding offence, that is, an occurrence in which the Defendants’ vehicle was driven in excess of the prevailing speed limit.
The Court was assisted greatly by the written submissions of Mr Higgins for the Prosecution, which helpfully summarised the complicated evidence in relation to the technological workings of the RMS’s systems, outlined below.
The Prosecution adduced evidence in relation to the Point-to-Point (“P2P”) cameras and Safe-T-Cam (“STC”) cameras operated by the RMS within New South Wales: see Statement of Paul Hayes dated 23 February 2015 (Ex.13, p.2). Located together with these cameras were TIRTLs which play a role in classifying approaching vehicles into heavy and light categories. TIRTLs class vehicles by evaluating their axle count, wheel base and chord width so as to segregate and concentrate on recording only the data referable to heavy vehicles with a GVM of more than 4.5 tonnes, rather than light vehicles.
As a trigger mechanism, TIRTLs operate to activate the cameras to capture images. The evidence was that they are positioned approximately 35 metres in advance of an overhead camera gantry on a stretch of road and the systems are calibrated to ensure that an image is captured as the relevant heavy vehicle passes the image acquisition point.
The evidence elicited was that the TIRTLs possess a variable timing mechanism which adjusts for the speed of a detected vehicle to ensure that an image is captured as it should be (T12.11.2015, 9.45 - 10.05, Mr Hayes XXN). For every image captured, there is a corresponding vehicle sighting record associated with it and a corresponding time-stamped TIRTL record referable to the vehicle photographed (Ex.13, p.4). TIRTL data is retrieved via a device specific wireless virtual private network over a secure data retrieval network known as “TIRTLnet” every hour (Expert Report of Dr Jonathan Spring dated 27 February 2015, Ex.14, Annexure B, p.3; T12.11.2015, 24.45 - 25.05, Dr Spring XN). The data is stored in a data warehouse at the premises of CEOS Pty Limited (“CEOS”), the entity with which the RMS contracted for the requisite services (Ex.13, p.5; T12.11.2015, 24.30 - 24.45, Dr Spring XN). Dr Spring’s evidence was that “the purpose of the TIRTL data is to provide certainty or a high degree of certainty of the sighting” (T12.11.2015, 60.3 - 60.4, Dr Spring XXN).
STC cameras capture a digital image once the TIRTL detects that a vehicle is a heavy vehicle, the image of which is appended with information regarding the time, date, location and lane number of the vehicle in question (Ex.13, p.3). Using Automatic Number Plate Recognition (“ANPR”) software, a text based number corresponding to the registration number of the vehicle is derived. The image is stored temporarily by the device, but the underlying data is uploaded to an RMS server regularly and periodically. The network via which this data is retrieved is secure and subject to encryption (Ex.13, p.4).
P2P cameras are lane specific. When a heavy vehicle passes underneath a P2P gantry, an image is captured of the vehicle and graphically time-stamped. It is then stored along with data associated with the “sighting” (the time and date, together with ANPR software derived vehicle registration details) and new data is uploaded every 15 minutes to a central RMS server (Ex.13, p.3). The network via which this data is retrieved is secure and subject to encryption (Ex.13, p.4). When a heavy vehicle passes between two gantries (the relevant detection points for P2P offences), the number plate is recognised at each point and the vehicle’s average speed is calculated by the time taken between the locations and an accurately surveyed distance between those locations (Ex.13, p.3).
The evidence of Mr Driscoll, Mr Williams and Mr Parekh (RMS camera specialists and certification officers), attended upon the issue of maintenance, calibration and the proper workings of such cameras at selected times. There was no dispute, to the extent that P2P cameras required certification every 30 days and that the cameras in question were operating correctly (T11.11.2015, 65ff).
One ought not overlook the importance of the time-stamping effected by these devices, which is fundamental to the accuracy of the identification and verification thereof and which underpins their reliability. The evidence was that the timing synchronisation of the devices is checked every 30 minutes and any necessary adjustments are made automatically at this time (Ex.13, p.4). Notwithstanding that any time drift between synchronisation events are generally in the range of microseconds to milliseconds, any failure to confirm synchronisation results in the data being automatically discarded (Ex.13, p.4; T12.11.2015, 10.05 - 10.35, Mr Hayes XXN).

It is then that a clear picture of events is created, so much so that the time-stamped photograph, the ANPR derived registration number and the time-stamped TIRTL record, are combined to ensure that an identification of a vehicle is accompanied by a high level of statistical confidence (Ex.14, Annexure B, p.3; T12.11.2015, 17.15 - 18.25, Mr Hayes XXN). The information with respect to time is used to draw on the relevant data from the RMS’s P2P and STC databases, as well as from the TIRTLnet servers, and a matching exercise is undertaken in arriving at an identification of a particular vehicle and incident (Ex.13, p.6 - 7; T12.11.2015, 12.40 - 14.20, Mr Hayes XXN; T12.11.2015: 26.15 - 26.25, Dr Spring XN).
In undertaking the matching exercise, a distinction is drawn between “sightings” and “confirmed sightings”. A confirmed sighting is one in which there is either an associated image or a vehicle has been manually checked at a heavy vehicle safety station, which provides an additional layer of reassurance when confirming that a vehicle has been correctly identified (T12.11.2015, 28.45 - 31.10, Dr Spring XN).
When there is a confirmed sighting, there is no need to engage in an uncertainty analysis which is otherwise required in those sightings which have not been confirmed (T12.11.2015, 54.35 - 54.50, Dr Spring XXN).
It was Dr Spring’s evidence that (T12.11.2015, 30.10 - 30.20, Dr Spring XXN):

“The confirmed sightings have either a manual measurement of the SP1, and a manual sighting of the numberplate. Therefore the correlation thereof, or an image taken and stored and available showing that numberplate and the associated TIRTL data and therefore the SP1. The SP1, the spacing between the first axle of a heavy vehicle and the second axle of a heavy vehicle, that first spacing is then associated with an image and data and a numberplate. That’s the purpose of confirmed sightings. It’s that that is the start of the chain whereby the first axle spacing information detected for the vehicles of interest for each of these CAN doc ID’s can be confirmed within the statistical uncertainty, measured uncertainty, of the TIRTL. The plus [or] minus 1% of that first axle spacing.”

The Prosecution impelled the Court to carefully consider the notion of uncertainty. t was contended that the variation in SP1 (the spacing between the first axle of a particular heavy vehicle and the second axle of that vehicle) for a given number plate is determined by taking the difference between the largest and smallest SP1 measurements captured by TIRTL, then dividing that difference by 2 and expressing it as a percentage of the mean SP1, determined by averaging the SP1 measurement for all sightings of that vehicle. This was referred to as the “+/-spread”. This spread for heavy vehicles with the same number plate is less than 1%. An analysis is undertaken of the traffic which passes through the TIRTL in the 3.5 days before and after a sighting. The total number of vehicles which pass represents the “# veh” in that time, while the “# pos” represents the number of other vehicles whose SP1 value is within 1% of the SP1 sighting in the same period. When # pos is divided by # veh, the resulting figure, “% pos”, represents the percentage of vehicles detected in the relevant 7 day period which potentially match the heavy vehicle of interest (Ex.14, Annexure B, pp.4 - 5).
The evidence of Dr Spring was that the TIRTL analysis involves cross-checking information across other sightings elsewhere in New South Wales to increase the level of certainty associated with an identification (T12.11.2015, 31 - 32, Dr Spring XN).
This mathematical process meant that while an individual sighting may have had, for example, a 2.5% chance of being incorrect, if there were other sightings with, for example, a % pos of 1% and 2%, then the overall probability that the TIRTL sighting was incorrect would be 2.5/100 x 1/100 x 2/100, or 0.0005%.
The upshot of this methodology was that the more sightings a TIRTL identifies, the less chance there was that it had incorrectly identified a vehicle through its measuring of SP1.
The science behind these concepts was borne out in detail by Dr Spring in his oral testimony (T12.11.2015, 33 - 38.20, Dr Spring XN) as was any potential uncertainty attributable to the ANPR software making an error in the identification of a vehicle’s number plate (T12.11.2015, 58.15 - 60.30, Dr Spring XXN), and in respect of which any uncertainty was also to be multiplied into the probabilities relating to the uncertainty of a sighting to calculate the chance that there was an incorrect identification.
The evidence, in relation to the measuring of speed aided by TIRTLs, was that the measurements revealed an uncertainty of less than +/- 0.3%, a tolerance for which allowance was made as part of the approval of the TIRTL device by the National Measurement Institute (“NMI”) and based, in part, on testing carried out by the National Association of Testing Authorities (“NATA”) (Ex.14, Annexure B, p.1; T12.11.2015, 41.05 - 41.25, Dr Spring XN).
From a classification perspective, speed aside, Dr Spring also gave evidence that TIRTL was not in any way likely to inaccurately classify a heavy vehicle (T12.11.2015, 43.05 - 44.30, Dr Spring XN).
The culmination of this evidence was that, in respect of each of the speeding incidents the subject of the CANs, the likelihood of error was extremely low and of little consequence, given the checks and balances to which the Court was referred.

The possibility of error in identification of the heavy vehicles the subject of these proceedings was a central theme in the Defence’s theory on the case. Dr Spring, in explaining the methodology behind the use of the data for the purposes of identification, described it thus (T12.11.2015, 37.5 - 37.43, 38.8 - 38.16, Dr Spring XN):
“DR SPRING: This is talking to your question. For the ANPR to be wrong and, hence the multiplication, the TIRTL sight information to have identified the wrong vehicle, one in 30, it’s one in ten and or multiplied by one in 30, for both to have been in error and therefore that would have been an error or an uncertainty of one in 300. One chance in 300 that both the ANPR software was wrong and the TIRTL incorrectly identified using SP1.
HIGGINS: Then what about the fact that on your spread sheet would there be - how many times is that - a vehicle with that configuration have gone through that site?
DR SPRING: On my spreadsheet there are six sightings all of which have their associated percentage POS.
HIS HONOUR: Sorry, where does it say six sightings?
DR SPRING: There are six. There’s court stamped scheduled 2, 3, 5, 6, 7 and 8. You have four on there. I don’t have that on this it’s been removed. Those six sightings and again the probability that I just spoke to of one in 300 is directly proportional to the percentage of possible matches. If there were fewer vehicles through a site that could potentially have been a match based on the SP1, that probability becomes more remote, smaller.
In this case, the 3.6 is the largest percentage. For example, if you look at the third sighting being court stamped schedule 5, the percentage of possible match is 2.14% and in that case, which is approximately one in 50, multiplied by one in ten is one in 500 chance that both the ANPR operation and the TIRTL were in error or the uncertainty. You would multiply those six numbers together, ranging from one in 300 to one in 500, to get the overall probability that that vehicle sighting numberplate and associated TIRTL SP1 data were in error in each case because you must multiply, these are independent events.
If it was, rather than one in 500, if it was just one in 100 just to make it easier again for us, one in ten to the power of six is one in ten to the 12. That’s one in a trillion. One chance in a trillion that all six sightings, none of those sightings were correct with the numberplate and supporting SP1 data, which is a - it’s a small number, one in a trillion.
….
DR SPRING: Over six. They will each have their associated error rate and we could be more disciplined and it wouldn’t take very long and you would then arrive at an error, a probability that each and every one of those six sightings being incorrect both for the ANPR and the TIRTL SP1. ’ve made it a little easier for the Court and I’ve simply and this is in favour of the defence as far as the probabilities are concerned, that if we say not one in 500 but one in 100 for all of them, that’s one in ten to the two times one in ten to the two six times, therefore to the power of six, that’s one in ten to the 12 and therefore one in a trillion. It’s actually probably more like one in a hundred.” [Emphasis added]

Whilst Dr Spring was unable to ascribe a mathematical value to the probability of error, when all the variables were considered in the relevant calculation, one was quickly able to glean, with much insight, the tenor of his evidence through this exchange (T12.11.2015, 32.35 - 32.44, Dr Spring XN):

“DR SPRING: … These are quite large numbers so just to help understand what that means as far as seconds, there have been about ten to the 18 seconds since the creation of the universe. That’s 13.7 billion years.
HIGGINS: The probability that both the ANPR are wrong and the SP1 are wrong, where there are 20 sightings of that heavy vehicle at that site, would be more than there are seconds since the big bang?
DR SPRING: Correct.”

This lent credence to the conclusion contended for by the Prosecution that each of the specific heavy vehicles the subject of the CANs, having the relevant vehicle registration numbers, were, at the time and date of the sightings, at the relevant locations (T12.11.2015, 38.20 - 38.35, Dr Spring XN).
On the issue of provenance relevant to the evidence adduced in support of the instant charges, in April 2012, sighting data was downloaded from the RMS’s P2P camera and STC databases by Mr Willoughby, the parameters for which were limited by heavy vehicle registration numbers and by a given date range (T11.11.2015, 2 - 3, Mr Willoughby XN). This data, upon being downloaded, took the form of separate CSV files (which I understood to be table structured spread sheets) (T11.11.2015, 3.10 - 3.15, Mr Willoughby XN).
The relevant files were, in turn, forwarded to CEOS on 27 April 2012, at which time CEOS appended further data in relation to that downloaded from the P2P and STC databases (T11.11.2015, 4.45 - 5.20, Mr Willoughby XN). On 27 April 2012, Dr Spring of CEOS received email correspondence from Mr Willoughby and tasked a Mr Kristian Penno (CEOS Senior Engineer) with correlating the sighting data from Mr Willoughby’s emails with associated TIRTL sighting data (T12.11.2015, 25.20 - 26.05, Dr Spring XN). This had the effect of marrying the information from the camera sightings with the information in the TIRTLnet data warehouse, which information had been uploaded to that location from the physical TIRTL units and involved a process by which the data was located in the TIRTLnet data warehouse by a database query which matched the relevant camera site for the date in question and limiting it to a set range of times before and after the P2P or STC camera sighting (T12.11.2015, 26.15 - 26.25, Dr Spring XN). There was then a matching of information from the RMS with the TIRTL information and appending the TIRTL information into a spreadsheet from the RMS (T12.11.2015, 57.15 - 57.20, Dr Spring XXN), which generated an updated file and which, in turn, was emailed to the RMS.
Upon receipt by Mr Willoughby of the emails attaching CSV files (T11.11.2015, 10.30 - 10.35, Mr Willoughby XN) containing data from TIRTL, recording the speed of the relevant vehicles, Mr Willoughby edited the files to remove non-essential fields and copied the same into various additional forms, sorted by fields which Mr Willoughby considered relevant, particularly by reference to vehicle registration (Ex.3 - 10; T11.11.2015, 6 - 16.45, 17 - 23.45, Mr Willoughby XN).
These files were then forwarded by Mr Willoughby to Mr Steve Shepard (RMS investigative branch) on 2 May 2012 (T11.11.2015, 17, Mr Willoughby XN), which Mr Shepard onforwarded to Mr Palfrey, forming the basis for the decision to prosecute the matters the subject of these proceedings.
The Defence contended, in part, that the Prosecution evidence was flawed from a provenance perspective. It was submitted that in the absence of any evidence from one of the links in the documentary chain (Mr Penno (CEOS Senior Engineer)), the evidence given by Dr Spring as to the processes Mr Penno “would have engaged in” as part of the “human process” involved in correlating the sighting data, should not be accepted and that the charges referable to the P2P offences should be dismissed. The fact that there are human processes involved in cross-checking all of the information received from the various devices to ensure that data used is validated in multiple ways (T12.11.2015, 13.26 - 13.28, Mr Hayes XXN), reinforces, in my view, rather than infects, the veracity of the evidence adduced to found the Prosecution’s conclusion that there is no doubt that the speeding offences occurred at the times and dates alleged. The use of only “confirmed sightings” data in the prosecution of offences as against the multiple Defendants instils even greater confidence on the question of identification of the particular vehicles the subject of the prosecutions.
This submission does not carry weight when assessed against the backdrop of the concessions made by the Defence throughout the hearing. First, Dr Martin for the Defendants conceded that a prima facie case was established in respect of all of the charges (T12.11.2015, 22.45 - 23.05). Secondly, it was conceded that the provenance of the data was no longer in issue during the hearing (T12.11.15, 26.45 - 27.15). The approach adopted at the hearing by the Defence is elucidated by the following exchange (T12.11.2015, 28 - 29):

“HIS HONOUR: Just on that point, Mr Martin. This is the point in respect of which you concede you take no issue. You’re not calling for Kristian Penno to be available to for cross-examination, are you?
MARTIN: That last piece of information was the final step—
HIGGINS: This is the basis for annexure D.
HIS HONOUR: You don’t take issue with any of that, do you?
MARTIN: No I don’t take issue with any of that. I don’t require that Kristian Penno be called.
HIS HONOUR: I just want to hone in on that. The defence takes no issue with [provenance] any longer if it did earlier in these proceedings?
MARTIN: In relation to the COS started?
HIS HONOUR: Yes.
MARTIN: There’s no issue of [provenance] of the data. That has finally explained it.
HIS HONOUR: That should curtail your questioning then?
MARTIN: It will. It doesn’t mean I have no questions.
HIS HONOUR: No, I mean that will curtail Mr Higgins’ questions in relation to what he needs to prove as part of the prosecuting authority’s case.
MARTIN: Yes I hope so.” [Emphasis added]

The non-attendance of Mr Penno cannot, therefore, be visited upon the Prosecution as a failure in its case.
It was also noted that the Defendants’ written submissions made no reference, on the issues of identification of vehicles and speed, to the report prepared by their expert, Mr Philip Dunn (Automotive and Mechanical Engineer, Expert Report dated 9 November 2015, Ex.15). The report concluded that “the fact that this device has produced results for SP1 that span 77mm (for allegedly the same vehicle) for SP1 show that the methodology used is not sound” (Ex.15, p.9). The diagram on page 10 incorrectly characterises the distance between the centre of the front axle and the centre of the gap between the next two axles as the “wheel base” of the heavy vehicle, when in actual fact the wheel base is the distance between centre of the front axle and the centre of the next axle, or the centre of one axle and the centre of the next axle in series, in multi-axle vehicles (SP1, SP2, SP3 and so forth). The conclusion, therefore, that “the [TIRTL] measuring device or the methodology does not have sufficient accuracy to measure these dimensions in this situation” (Ex.15, p.11) is one which I reject. In any event, such a claim was never posited by the Prosecution’s expert. As Dr Spring put it in evidence-in-chief (T12.11.15, 47.44 - 48.19):

“HIGGINS: You’ve just read the first three paragraphs of page 11. What flows from that?
DR SPRING: There is no attempt and there are no statements as such to use the TIRTL to uniquely identify a vehicle from its axle spacing alone that there is no statement that the TIRTL can measure to within an accuracy that could uniquely identify a vehicle based solely on its first axle spacing. Rather all of the language used in annexure B talks to the percentage probability or possibility that a vehicle could be, it could have been that vehicle. Could have been that vehicle. They’re the effective words because its axle spacing is within the measurement uncertainty being plus or minus 1% so the fact that TIRTL is not a micro meter or a device that can measure down to millimetre accuracies is irrelevant. The probabilities are not based on that. Probabilities are solely based on the number of vehicles having gone through a site, hash vehicle, the number of those vehicles that could have been a possible match, hash POS and the percentage of possible matches being simply one divided by the other. The smaller that percentage POS the less likely that the uncertainty and TIRTL and the ANPR operation could have had an error. It’s far less likely if the percentage of possible matches is small as is the case in all these where you’ve got a range of .1 to let’s say 3 or 4%.
There is no claim anywhere that TIRTL measures to the millimetre accuracy and that’s not required for these probabilities. The following two paragraphs that talk to the situation where a device could possibly measure SP1 and SP2 with a high degree of accuracy and that that in itself wouldn’t be sufficient. That’s correct and it hasn’t been claimed. It hasn’t been used in that way in this expert statement of mine.” [Emphasis added]

Whilst Mr Dunn’s report usefully attends upon the issue of speed limiters and electronic computer management systems (matters dealt with as part of the reasonable steps defence, considered later in these reasons), the report was predicated on an ill-conceived methodology of the workings of the TIRTL technology.
To a large extent, the Defence’s attempted impugnment of the Prosecution’s witnesses did not affect the resounding force of their testimony on the critical issue of speed detection and vehicle identity. The evidence of Mr Palfrey, Mr Willoughby, Mr Hayes, Mr Driscoll, Mr Williams and Mr Parekh as to the communications between the various RMS officers, and the management systems in place for the receipt, logging, transmission and storing of data (and the provenance of the evidence adduced in support) collected via the use of ANPR software and devices such as TIRTLs, P2P cameras and STC cameras, was comprehensive and persuasive. When combined with the evidence of Dr Spring, which I found to be resolute, compelling, scientifically and mathematically reliable, and largely incontrovertible, I was not left with any doubt as to the veracity of the documentary evidence identifying the Defendants’ vehicles as having been the subject of the relevant speeding offences at the times, dates and locations averred.
For these reasons, I am satisfied that the Prosecution has proved, beyond reasonable doubt, the said speeding offences. Joining issue with the legislative phraseology, I am satisfied, subject to the reasonable steps defence dealt with below, that the Prosecution has proved, beyond reasonable doubt, that in relation to the charges preferred pursuant to:

cl.156(3) RT(G)Reg (duty of operators to ensure speeding offences are not committed) – the vehicles in question were subject to the Defendants’ control as operators; the respective drivers committed speeding offences while driving the said vehicles; and, therefore, the Defendants, as operators, committed the said speeding offences;

s.178(1) RT(G)Act (liability of directors and those concerned in the management of a body corporate for offences by the body corporate and employees) – the respective Defendant bodies corporate committed offences under the road transport legislation and each director of the Defendant bodies corporate, and those persons concerned in the management of the respective bodies corporate, committed the said offences.

In relation to the four charges preferred pursuant to s.69C(1) RT(S&TM)Act (vehicles to be speed limiter compliant), I accept the pleas of guilty entered by Roadmaster, as operator, midway through the hearing.

Reasonable Steps Defence

In relation to the charges preferred pursuant to cl.156(3) RT(G)Reg (duty of operators to ensure speeding offences are not committed), the Defendants invoked the statutory defence in cl.156(6), that is, that: -

(i) the Defendants did not know, and could not reasonably be expected to have known, of the conduct that constituted the offence; and

(ii) the Defendants took all reasonable steps to prevent that conduct from occurring, or

(iii) there were no steps that the Defendants could reasonably have been expected to have taken to prevent that conduct from occurring.

In relation to the charges preferred pursuant to s.178(1) RT(G)Act (liability of directors and those concerned in the management of a body corporate for offences by the body corporate and employees), the Defendants invoked the statutory defence in s.178(7), that is, that: -

(a) the Defendants were not in a position to influence the conduct of the body corporate in relation to the actual offence, or

(b) the Defendants, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.

Defence case

The Defence advanced its reasonable steps defence via three witnesses (Mr Philip Dunn (Expert, Automotive and Mechanical Engineer), Ms Jenine Turner (Heavy Vehicle Auditor / Consultant) and Mr Danny Borg (Director / Managing Director of Fred’s Interstate Transport Group)).

Mr Philip Dunn (Expert, Automotive and Mechanical Engineer)

Mr Dunn’s expert report dated 9 November 2015 was admitted into evidence as Exhibit 15. It addressed two issues, namely, the limitations and difficulties with the information provided to companies and directors about the operation of speed limiters and electronic computer management (“ECM”), and the accuracy of the TIRTL technology. Having dealt with the latter issue earlier in these Reasons, it is only the former on which the reasonable steps defence turns. To that end, Mr Dunn’s report dealt with the limitations of speed limiters; managing the integrity of speed limiting systems; their failures; ECM programming; the RMS’s “three strikes and you’re out” campaign; the fact that management had no direct control over speeding drivers; the fact that management provided driver manuals to all drivers; and the work order history for heavy vehicles VV55HN and VV15JV.
The evidence adduced via Mr Dunn’s report was that: -

Speed limiters were devices used to limit a heavy vehicle’s speed to 100 km/h;

The system operates by electronic means to reduce or cease fuel supply to the engine when a speed of 100 km/h is reached;

There are outside factors such as downhill travel which are unable to be controlled by the ECM, resulting in speeds greater than the set speed;

The ECM is programmed by the manufacturer and can only be accessed by approved dealers for the purpose of servicing;

Access to the ECM for programming purposes or data download is provided by a programming tool which is likely to be expensive and not readily available;

There are products available in the market designed to bypass (by reprograming or resetting) the limited speed, which cost as little as a few dollars or as much as several thousands of dollars, depending on the sophistication desired;

The device can be switchable so that the driver who knows about it operates in such a way as to turn it on and off when desired, and can be secreted in locations where it would go unnoticed by servicing personnel;

Normal irregularities in the speed limiting systems are easily managed whereby dashboard lights indicating a fault in the system can be rectified by a fault code diagnostic tool;

The ECM function also detects faults caused by someone intending to tamper with the speed limiting system;

When the ECM system has been tampered with and settings changed, this can only be detected by driving and observing that the vehicle can exceed the speed limit or by downloading the programmed settings using a coding device;

Controllers and management rely on drivers to escalate issues with a particular vehicle;

The regulator’s “3-strikes” campaign involved giving notice to operators and managers that a speeding event had occurred and that further notices would result in a suspension of registration. This was effective in ensuring that management acted in a timely manner. However, the campaign was “short lived and ceased without notice”;

If a driver tampered with a speed limiter device, resulting in the receipt of speeding fines, he / she would be unlikely to report such offences to management for fear of penalties or loss of employment, given the company policies expressly emphasised in driver training;

Management had no direct control over speeding drivers but could provide training on good driving practices and company policies, insist on drivers completing correct records to comply with legislation and company policies, request that drivers report speeding offences committed by them, request service staff to report incidents of speed limit tampering, request servicing companies and dealerships to download and check ECM speed limiter settings and penalise or suspend speeding drivers;

The provision of driver manuals to all drivers was instrumental in alerting drivers to supervisor and manager responsibilities regarding training, vehicle inspections, speed limiters, regulatory requirements, behaviour, pre-trip checks being completed and signed, fault reporting and necessary repairs, driving practices forbidding speeding and downhill coasting, drivers being forbidden from installing any equipment to their vehicle, detailed explanation and training regarding speed limiter regulations and the operation of vehicle equipment, out of gear operation, traffic rules and regulations, work diary records and documentation in general;

The work order history and invoices for checks and repairs to the speed limiter for vehicle VV55HN revealed that the speed limiter device was checked or repaired on five occasions between 2010 and 2012. This involved invoice notations to the effect that computer recalibration was required on 23 June 2010, a speed sensor was required on 12 July 2010, the speed limiter was set too high on 23 September 2011, there was no sensor signal on 3 May 2012, and the speed limiter was set too high on 17 October 2012;

An example of management’s proactivity with regards to speed limiter operation and the detection of any tampering was evidenced by an email from Mr Danny Borg (Managing Director) to Mr Steve McPherson (Heavy Vehicle Dealer / Repairer) dated 27 March 2012 and which provided a direction to the effect that “any vehicle that comes into your workshop for maintenance needs to have its ECM checked to ensure that the right parameters are set and download printed for fuel consumption and fault codes”; and

Another example of management’s proactivity with regards to speed limiter operation and the detection of any tampering was evidenced by an email from Mr Danny Borg (Managing Director) to Mr Terry Smith (Cummins Heavy Vehicle Dealer / Repairer) dated 27 March 2012 and which sought a clarification to the effect that “are we able to set our ECMs with the anti tamper code and if so are there any issues in doing this i.e. after hours access for maintenance repairs, please advise A.S.A.P.”

Mr Dunn’s oral evidence dealt with a number of issues, including the technical aspects of ECM systems and speed limiter devices, which for present purposes require no further elaboration. The salient features of his oral evidence were that:

He had driven heavy vehicles of this kind throughout his career and was still the holder of a heavy vehicle driver’s licence;

If a heavy vehicle had a speed limiter device set at 100 km/h, it could still exceed such speed in a number of ways, including on a downhill grade, by selecting a neutral gear, by throwing the clutch on a manual transmission or by a tail wind;

As the ECM came with an anti-tamper code, it was not possible to set an anti-tamper code because access at certain levels was unavailable for most operators;

There were modes of tampering which were undetectable or not easily detectable;

There were a number of explanations proffered for how a heavy vehicle with a speed limiter could exceed the set limit. First, that was no basis for a reasonable belief, that is, of a deliberate overriding of a speed limiter device. Secondly, driver behaviour (riding the clutch, putting it into neutral and the like so that the speed limiter is deliberately neutralised). Thirdly, the heavy vehicle is fitted with an override device. Fourthly, it can be disabled either by reason of tampering, such as a disconnection of the speed sensor or tampering with the wiring in an undetectable way. Fifthly, outside factors such as the gradient of the road. Sixthly, a mechanical fault with the speed limiter device not properly operating to reduce speed or to not cut fuel delivery;

In his review of all the material provided, he was unable to find any evidence to support the assertion that a commercially produced bypassing device had been fitted to any of heavy vehicles;

Driver behaviour (as to speeding) was dependent upon either self-reporting, the issuing of penalty infringements, or notices / warnings from regulators;

Although his evidence was in the nature of expert evidence, he proffered, in response to questions asked in cross-examination, an account of the steps he would have taken as vehicle business manager. These included requesting that the repairer calibrate every vehicle’s speed limiter devices; identifying drivers; interviewing drivers; retraining drivers; counselling drivers; warning drivers; diarising, logging and reporting irregularities; recording minutes of interviews with drivers to be placed on their files; conducting investigations; attempting to ascertain whether maintenance staff were responsible for installing a bypassing device; issuing “a reprimand or a suitable penalty provided to do something about it” (T17.11.2015, 55.46 - 55.47, Mr Dunn XXN); terminating the employment of drivers; or “whatever needed to be effected to make that disappear” (T17.11.2015, 54.6 - 54.7, Mr Dunn XXN); and

He accepted that reasonable steps to prevent conduct from occurring, of the kind to which the legislation was directed, included ensuring that speed limiter devices were operational, serviced, maintained, not bypassed, monitored, audited and checked for functioning; driver behaviour be the subject of induction (that is, drivers be taught what not to do to override speed limiter devices); there be a process of induction and evidence of that process retained; there be training of drivers beyond the induction process specific to how to drive in a way that does not override the speed limiter device and evidence of that training retained; this was one of the ways in which the integrity of one’s systems could be scrutinised; there be a process of correction of a driver; there be evidence of such process of correction; counselling; retraining; and more frequent and closer driver training and monitoring.

Ms Jenine Turner (Heavy Vehicle Auditor / Consultant)

Ms Turner was called to give evidence about the Defendants’ practices and procedures, having previously been engaged as a consultant with experience in heavy vehicle auditing, consulting and training. She was the owner and operator of a business known as Just Logistics Pty Limited, with qualifications in engineering, occupational health and safety, fatigue management and with extensive experience in heavy vehicle regulatory compliance regimes. She also held accreditations in the National Heavy Vehicle Accreditation Scheme, mass management, maintenance and fatigue auditing, and had been a registered heavy vehicle auditor since 2000, practising primarily in southern New South Wales and Victoria.
The salient features of her evidence-in-chief were as follows:

She was engaged by the Defendants as a heavy vehicle auditor and consultant from about 2004 to October 2011, and again from April 2014, whereby she would attend their premises for two days a month and in her absence she would also provide services via email and telephone;

Her role included, amongst other things, advising generally on compliance systems and mass programs; documenting and recording the operation of those systems; internal auditing of policies and procedures; reviewing contracts in regard to compliance; and representing the company with consignor audits;

She was an independent auditor and did not socialise with the Defendants or their related companies;

She was no longer, at the time of the proceedings, engaged by the Defendants but was requested in July 2015 to collate the necessary documents regarding their business practices for use in the hearing, which resulted in the production of some eight volumes of company records;

Ms Turner was instrumental in the creation and maintenance of many of the Defendants’ company policies, procedures and training programs across a range of areas pertaining to heavy vehicle management, speed related and otherwise. Whilst documents bearing dates after the relevant periods the subject of these proceedings were used to prompt the witness’ memory, almost all of the policies and procedures had been in place during the relevant period but merely updated since then to accord with changes in legislation. I came to the view that so comprehensive were the policies established, and therefore indicative of the Defendants’ pursuit of regulatory compliance and best business practices, such that they dealt with chain of responsibility correspondence between consignors and consignees; occupational health and safety policies, consultation, inspection and responsibilities; first aid; electrical safety; equal opportunity, harassment and discrimination; falls prevention; training; risk registration; reportable incidents; environment and sustainability; recording, reporting and repairs of faults; heavy vehicle driver fatigue; driver medical assessments; driver fitness to work; bribery, corruption and fraud; accident investigation; employment of a new driver; driver competency assessment; training questionnaires; chain of responsibility and speed training; load resistant training; heavy vehicle mass training; health and safety training; and driver induction training;

The then version of the Driver Manual, drafted in 2010 and provided to all drivers in 2011, included portions relevant specifically to speeding (Ex.22) and was acknowledged by signing the declaration at the end (p.63);

An example of the implementation of the Defendants’ policies and procedures, including with regards to speed, the drivers underwent training partly via the provision of the Driver Manual (Ex.22) and partly via an induction process involving a PowerPoint presentation (Ex.24) specifically tailored to meet the needs of heavy vehicle drivers with literacy problems;

There were Excel spreadsheets which summarised and recorded the training provided to all drivers;

There were warning and disciplinary systems in place;

For years since 2008, and possibly 2006, there were procedures in place to alert and remind drivers of their obligations in a constantly changing national environment via driver newsletters;

All of the newsletters contained a reminder to drivers that the “absolute speed limit is 100 km/h” (including one regarding the 40 km/h speed limit “on the South Eastern Freeway into Adelaide, down the steep hills” so as to “keep them abreast of cross border issues”) and that one of the most effective ways to “grab their attention” was with information about “what people had and what companies have been fined and how much” by newsletters included with “each pay record for each driver as we post their pay sheet out” (T18.11.2015, 27.33, 28.42, 29.12, 29.7, Ms Turner XN);

Route risk assessments, trip plans and safety analyses were regularly carried out before accepting work so as to ensure that jobs “could be completed within legal limits”. This included compliance with “speeding and work and rest legislation” (T18.11.2015, 31.6, 32.33, Ms Turner XN);

As another example of regulatory compliance, the 2011 Kubota Job Safety Analysis and Route Assessments Plan (Ex.21) outlined a number of elimination, hazard and control measures the Defendants had in place and in which numerous references are made to speed, unsafe driver behaviour and the installation and maintenance of speed limiting devices;

Regular checks of speed limiters were not necessarily effective to prevent speeding. She had become aware through training sessions elsewhere that there were some 360 methods of circumventing speed limiter devices;

On one occasion, there had been a driver in the Defendants’ employ who had been caught speeding, interviewed and issued with a second warning. The employee’s heavy vehicle was sent to Hartwigs (a heavy vehicle repairer) where it was discovered that the speed limiting device had been tampered with, requiring the device to be reset. Approximately two and a half hours later, the employee was discovered by VicRoads to be speeding again. The employee refused to cooperate with VicRoads and the Defendants by locking himself and hiding inside the heavy vehicle, prompting police intervention. The Defendants dismissed the employee, only to become Defendants in an action commenced by the employee at Fair Work Australia;

In relation to a number of drivers whose current licence and training details were missing, there was a process of reviews conducted of documentation and driver obligations, which included contacting drivers to obtain copies of such documents (as the company was unable to obtain such information from transport departments), scheduling meetings, bringing drivers in for training and employing a young graduate to assist with training;

The documentary policies and procedures referable to drivers were “chain of responsibility” based, which covered mass, dimension, load restraint, fatigue and speed. The audits conducted also involved an assessment of best practices which included heavy vehicle maintenance, whether or not there were drug and alcohol policies in place and whether internal audits were conducted;

As an example of knowledge of conduct that constituted an offence and subsequent action taken, albeit reactive in nature, one of the Defendants (Laudrup) wrote to the RMS on 18 February 2011 (Ex.28) indicating that it had had the speed limiter checked and set back to manufacturer’s standards, engaged in verbal intervention with one driver and the termination of his employment and a formal written warning in relation to another driver;

On the issue of maintenance of speed limiters and the Defendants’ work order service history, the means by which the Defendants could become aware of speeding by drivers were reports from enforcement personnel; complaints from the public; calculating distance over time (following the introduction of work diaries in late 2008); and, with great difficulty, via the repairer finding signs of tampering. An example of a complaint from a member of the public regarding a driver’s speed / dangerous driving took the form of an email to the Defendants dated 21 April 2010 (Ex.29). This was actioned via an email by Mr Borg to Ms Turner less than 40 minutes later directing the issue of an immediate written warning along with an explanation as to the driver’s behaviour;

Q. Right?
A. Is what we continue to do.”

The problem with the questions as posed was that they sought to impose a numerical threshold to the test of reasonableness, something which was entirely incongruent with the statutory regime and an operator’s processes, satisfactory or otherwise. To some extent, the second question was broader and might have been an attempt to cure the difficulty with the first. Either way, these questions had the tendency to lead one to hypothesise about whether an operator was required to take steps which were reasonable but which may not have necessarily always achieved the desired result of preventing speeding conduct from occurring altogether or, alternatively, whether all steps taken by an operator were required not only to be reasonable but to also achieve the result of preventing speeding conduct from occurring completely, effectively reducing the individual incidents of excess speed down to zero (or some elusive threshold for that matter). The latter, as opposed to the former, left no scope for judicial moderation.

As an example of the line of questioning in which the Prosecution embarked at this point, he was taken to a Hartwigs invoice dated 12 May 2011 (MFI J, Tab 5.8, p.284) which indicated that a particular vehicle’s rev parameters were out of the restriction limit. He readily conceded that as a result of this observation by Hartwigs, management had become aware that the operation of the speed limiter device had been affected by human intervention. This, having been considered a fairly severe breach of company policy, resulted in the vehicle being checked for tampering. He said that they had an awareness of the different means by which drivers or individuals outside of the business could alter ECM settings. In the present case, it appeared that someone had altered the chopper wheel setting on the gear box. He responded affirmatively to the question about whether management carried out any further investigations. He added that the driver would have been spoken to (most likely by Mr Bennie Karafa) and most likely received a written warning, but without seeing the specific document referring to it, was unable to confirm this. He rejected the Prosecution’s assertion that management’s response to this came as a response to a directive rather than as a response to routine maintenance. In fact the Prosecution appropriately conceded later that for two of the heavy vehicles the subject of inquiry, it was apparent that the maintenance records demonstrated detection of evidence of the need for adjustments to the speed limiter devices at a time when it did not relate to any directive or three-strikes warning, the inference being in favour of the Defence (T3.3.2016, 52.31 - 52.35, Mr Borg XXN). Indeed, he was questioned in the same vein about a number of charge and non-charge related events. In all of the instances where documentary evidence may have revealed tampering, he stated that the previously referred to actions (verbal and written warnings) would have been given. Notably, he frankly conceded that in relation to some of the documents shown to him in the witness box, there was no corresponding speed limiter check (or mechanical workshop invoice) for a particular heavy vehicle, on some occasions because the three-strikes notice was not accompanied by a template document for a speed limiter certificate check. He elaborated on why it may have been that a heavy vehicle might not have been sent for a speed limiter check. He stated that the decision may have been made that it was not necessarily required. What was more important, he said, is what was demonstrated previously with other invoices, that operational staff in the workshop at that point in time for that vehicle were conscious of an issue with a particular driver, the details of which he did not have with him in the witness box, and that this was being managed accordingly in line with the company policies regarding speed. It appeared to him from the documents he did have, that a fairly stringent process would have been followed where they would have passed the stage of third and final warnings, and entered the domain of termination of employment, if it was in fact the same driver across the various events and invoices (T3.3.2016, 18.29 - 32.32, Mr Borg XXN);

He was questioned about whether information regarding speeding, disclosed by mechanical workshops, would result in dismissal. He stated that, potentially, that would be the result (T3.3.2016, 26.1 - 26.2, Mr Borg XXN). On the issue of whether the integrity of their disciplinary system at that time was such as to expect corresponding warning letters or some sort of disciplinary action on the driver’s file, he stated, relevantly, that they did not necessarily always need to terminate one’s employment. Matters could be resolved by the “path of least resistance” for the driver in question. The documents shown to him in the witness box, which he stated were almost six years old, suggested to him that his operational staff would have zoomed in on an individual that had been creating an issue and that focus, one way or another, regardless of any file note or written warning, ultimately resulted in that driver no longer being employed with them. He stated that they may have made a note of some description to say that the driver left due to speeding or he may have been given a written warning. He was certain that he would have been spoken to on more than one occasion but without the benefit of the exact driver’s details, he was unable to add more. He was aware, from his experience within the organisation (and perhaps unsurprisingly) of “how these individual operate once they’re focused on.” (T3.3.2016, 33.6 - 33.38, Mr Borg XXN). Much attention was devoted to the circumstances surrounding the termination of one’s employment in instances where speeding was in issue. I queried whether an aspect of compliance with the reasonable steps defence was achieved (or, more correctly, best achieved) by the operator’s dismissal of an employee. It became clear from Mr Borg’s evidence that, documentary records aside, the cessation of one’s employment in circumstances where speeding was an issue could have been the result of an employer initiated termination or an employee initiated resignation. In both cases, it was plausible that the cessation of their employment came about due to speeding. If the cessation of one’s employment due to so significant a breach of company policy was the ultimate end to be arrived at, it was, in my opinion, inconsequential to focus on the means by which (or by whom) it was brought about;

He rejected the proposition that one could have a business practice, but that it may not, of itself, be a reasonable step to prevent speed. He stated that it would be pointless having a business practice that did not offer a reasonable step in the environment in which they operated. The whole point of having documentation, he said, was to create a reasonable step and to deal with issues that arose (T3.3.2016, 36.44 - 36.49, Mr Borg XXN);

He stated that one could have a business practice in place which had as its purpose something other than speed compliance, for example, fatigue, mass and loading. His evidence was replete with examples of documents relating to business practices addressing a variety of different factors within the industry (T3.3.2016, 37.4 - 37.8, Mr Borg XXN); and

He also rejected the idea that the mere existence of a business practice did not, of itself, mean it could only be for the purpose of speed compliance. He stated that there were specific documents related to speed for that very reason (T3.3.2016, 37.10 - 37.13, Mr Borg XXN).

In re-examination, a number of issues were clarified and brought greater perspective to the subject matter. The salient features of his re-examination were that:

Of the 30 drivers referred to in the spreadsheet of charges attributable to specific drivers (Ex.42) and the spreadsheet of the employment status of drivers (Ex.43), quite a number of them were the subject of only one or two charges (T3.3.2016, 38.14 - 38.19, Mr Borg RXN);

Some of the outcomes, after having become aware of a speeding driver, included verbal warnings and written warnings and often drivers would never come under notice for speeding again. Once management began to focus on a driver, particularly in cases where there was more than one incident, ultimately, in most cases (as he put it, “9 out of 10”), the driver would just leave his employment in a fairly undisruptive manner. Further, there were circumstances where individuals in the past may have had multiple offences but who were very experienced drivers and had been in the industry for a long time. In such cases, he said, management’s view was that their overall driving experience far outweighed the smaller speed issues that had been highlighted, from the point of view that they did not have a history of accidents, were knowledgeable in load restraint, weight and practices of that nature and had very good driving records. These were individuals who had been driving heavy vehicles for 20 or 30 years, some even longer. He emphasised that this kind of knowledge and experience was not easy to replace and that these drivers were mature individuals within their organisation with whom they wanted to continue to work. It was drivers who did not have this level of experience or maturity with whom they were more forceful and decisive, particularly in their verbal communications (T3.3.2016, 38.21 - 39.34, Mr Borg RXN);

His testimony’s denouement was such that I was left with the distinct impression that the Prosecution’s paradigm of the ideal driver, or the exemplary operator, was not as easily achievable as suggested by the pointed criticisms elucidated in cross-examination. He illustrated his stance regarding the different outcomes by referring to one of the drivers (Mr Paul Raymond) in the spreadsheet. Mr Raymond was an individual, he said, who was very difficult to deal with, who did not want to adapt to the changing environment of the industry regarding speed and ultimately, following the termination of his employment, lodged a personal injury, back related complaint and WorkCover claim. These were some of the outcomes when operating a business of this kind (T3.3.2016, 39.34 - 39.43, Mr Borg RXN);

Aside from the DPRs (MFIs AS - AY) which called for the production of a significant amount of documents, the Defendants had received further DPRs in April 2012 which required the production of a large amount of additional documents within two to six days thereafter, and to which the Defendants responded to the best of their ability (T3.3.2016, 44.34 - 45.12, Mr Borg RXN);

Given the magnitude of the organisation, he had an intimate knowledge of his drivers, so much so that when he was questioned about individual drivers’ names, he was able to say that Mr Stewart’s employment “finished”, relative to speed, based on the documents presented to him in the witness box and that this would have come about “by design.” Mr Shandley’s name stood out to him. He was one of the drivers who had numerous incidents relating to speeding and in respect of whom both operations and Mr Borg “zoomed in on”. The cessation of his employment, he said, was of his own volition due to the focus from management at both an operational level and on his direction as part of senior management. His recollection was that he himself may have even spoken to him directly at that time. Mr Cole, Mr Lincoln and Mr Warren all drove the same vehicle in respect of which there was some evidence of speed limiter tampering. He described these individuals as being “very much in the same vein as … Mr Shandley” and that Mr Lincoln (who, he was able to recall, was from the same town as Mr Shandley), was “another serial pest when it came to speed” and whom he described as being of “poor character” in a number of different respects. He too was “zoomed in on”, both at an operational level and at senior management level and that this resulted in him “leaving the employment of the operation” (T3.3.2016, 46.44 - 50.41, Mr Borg RXN); and

Over and above the regulatory matters the subject of these proceedings, the commercial tact required to run an operation of the kind described was not lost on the Court. The apogee of his evidence was that his organisation abided by its own “three-strikes and you’re out” policy and that drivers would regularly leave the company through a process of attrition, centred, as I understood it, on speed and other non-compliance. He was asked to give some insight about how long such a process ordinarily took. His response was meaningful. In difficult instances, it could be a matter of weeks, and even up to eight weeks, potentially. It required managerial pressure and focus on the individual and the particular issue at hand. It required an establishment of a reasonable amount of documentary evidence, such as Hartwigs invoices and the like. It had to be managed in an appropriate manner to achieve the desired outcome. It often took longer than he would have liked but he found that, to date, this had been the most effective manner they were able to implement to deal with the types of issues raised in the proceedings (T3.3.2016, 51.1 - 51.46, Mr Borg RXN).

Consideration

The evidence of Ms Turner (and to a lesser degree, Mr Dunn, but only because his evidence was confined to an after-the-fact evaluation of the Defendants’ processes) afforded an opportunity for great insight to be obtained in relation to the internal workings of the heavy vehicle industry. Her evidence corroborated the testimony given by Mr Borg, particularly on the issue of the multi-faceted measures in place at the relevant time. She impressed me as a detached and honest witness, whose business relationship as an external consultant with the Defendants neither clouded her judgment nor stigmatised her sense of balance. She was, quite properly, dispassionate in the account she gave and had no hesitation illuminating the areas where she felt the Defendants’ systems might have been lacking. Indeed, she did so in such a candid manner, including by revealing her frustrations as to why she felt she could no longer do work for the Defendants. This allowed the Court to focus on the purported deficiencies in the Defendants’ practices and to evaluate their adequacy as part of the wider picture. Her account evoked a confidence and reliability, especially when speaking of the ultimate goal sought to be achieved, to remove any commercial imperatives that might contribute to speed, fostering an atmosphere of open communication between drivers and operational management and highlighting the importance of driver and managerial awareness when dealing with speed. True it is that there was, at times, an exiguousness of evidence substantiating the steps taken by the Defendants to address non-conformances. This, however, was offset by the persistent, adaptive endeavours engaged by the Defendants on a number of fronts, incorporating statutory observance and pragmatic outcomes.
Much of the Defence case rested on the evidence of Mr Borg. I found his evidence to be most compelling. He was resolute, forthright and possessed of a reliability which joined issue with so much of the documentary evidence placed before him, often dating back some five years. He was rational and responsive in the version he gave. His account was truthful and methodical, and there was an overarching plausibility when considered against the reality (and commerciality) of the industry in which the Defendants operated. He did not hesitate making appropriate concessions against his own interests and the interests of the Defendants as a whole. I did not gain the impression that he overstated his position for any material gain. The evidence he gave highlighted the difficulties in navigating one’s way through the regulatory strictures within industry and non-industry frameworks. The evidence stood up to the attempted impugnment in cross-examination. There was nothing temeritous about the business practices he described in dealing with the issues which arose, whether they were related to speed or other heavy vehicle safety measures. I had no hesitation accepting his evidence to the extent that it supported the assertion that the five corporate defendants did not know (and could not reasonably be expected to have known) of the conduct that constituted the offences which underpinned the prosecution brought in this Court and took all reasonable steps to prevent such conduct from occurring. Equally, I was satisfied that his evidence sufficiently buoyed the notion that the three individual defendants, in their capacity as directors concerned in the management of the bodies corporate, took reasonable precautions and exercised due diligence to prevent the commission of the actual offences the subject of these proceedings. I found him to be a persuasive and credible witness, whose evidence attracted substantial weight.
Considering the emphasis placed almost solely on speeding, and from a statutory framework perspective, it is noted that none of the charges were brought pursuant to cl.162 RT(G)Reg, (which dealt with the duty of operators and others in the chain of responsibility) to assess and manage, specifically, the risk of speeding, and which contained its own offence and statutory defence provisions in sub-clauses (2) and (3). This in no way serves as a denigration of the prosecutorial discretion to prefer the charges it did pursue, but simply to highlight the tenor of the Prosecution’s case and its eerie correlation to many of the specific duties referred to in cl.162, namely, identifying and assessing matters which may cause a driver to exceed a speed limit; identifying and assessing the risks which may cause a driver to exceed a speed limit; the measures one may take to eliminate or control the risk; carrying out such identification and assessment at least annually and after each event that indicated the way the activities were being carried out which may have caused a driver to exceed the speed limit; taking necessary measures to eliminate or control the risk; and documenting (and retaining such documentation for a specified period of time) the actions taken to address these matters.
It is common knowledge within the community that there are often heavy vehicle, road related accidents attributable to speed, fatigue and other safety transgressions. It may have been that the genesis of the regulator’s investigations was warranted by virtue of road tragedies which temporally preceded the events the subject of the present prosecution and which involved other prominent corporate operators within the heavy vehicle industry. This, however, was not a prosecution which arose from any speed related catastrophe within the Defendants’ own organisation, although, it was evident that there was a regulator-driven push to test the legitimacy of the policies, practices and procedures to address the reasonableness or otherwise of the steps in place to ensure offences were not committed.
Speeding, mass, loading, fatigue and other elements of safety were all intertwined. The nature of the multiple risks which the Defendants sought to address was something which they had been doing for years before the institution of these proceedings. There was no evidence of any disaster befalling the Defendants which was connected with speed, although this, of itself, was not determinative. Nor was this observation trivialising the seriousness of speed as an important industry issue. The harm which would have eventuated had the Defendants’ practices been superficial, haphazard, illusory or non-existent for that matter was real and genuine, particularly in the event of a loss of life. The Defendants’ multi-faceted training programs, induction processes, manuals, newsletters, trip plans, work diaries, job safety analyses, ECM and speed limiter checks, verbal communications, written warnings dismissals, reactive and proactive maintenance measures, the actioning of complaints (in one case, as quickly as 40 minutes after it came to light), were all tailored in such a way as to join issue with a driver’s educational abilities and industry experience, and kept, in my view, any risk which might have eventuated within tolerable bounds. They were not only appropriate for the corporate environment in which the Defendants operated, but also relevantly attuned to the end sought to be achieved. For a substantial part of the years preceding and following these events, the Defendants had engaged external competence in the form of a heavy vehicle auditor / consultant with appropriate industry experience and accreditation. I was not left with any impression that the Defendants were frugal in their commitment to minimising the likelihood of risks, such as those to which I have referred, from eventuating. These, after all, were matters which the Court was permitted to (and did) consider, pursuant to cl.165 RT(G)Reg, in deciding whether the practices adopted by the Defendants were indicative of reasonableness, a conclusion at which the Court satisfactorily arrived.

Having touched upon risk management strategies, it is worthwhile to make some observation of the regulator’s position. Much of Mr Palfrey’s evidence was directed to the investigative chain of documents with a view to instituting these proceedings. However, he was also cross-examined robustly on the issue of what measures he believed, given his role as RMS Investigator in the area of heavy vehicle regulation, an operator might take so that its risk could be measured, reduced, eliminated, controlled or managed. For the most part, his responses were sound and carried merit, that is, that such strategies were a matter for each individual operator. It was not a matter for the RMS, as an executive statutory instrumentality, to prescribe the precise manner by which compliance with the road transport legislation is to be achieved. However, whatever measures an operator did adopt would be the subject of scrutiny, especially in circumstances where there were, at least from the view of the RMS, a significant number of speeding infractions within a relatively short period of time across a number of vehicles and spread geographically across roads all over the state. A salient feature of his evidence was the plethora of information, guides and standards which were available from a number of sources, on which the Defendants could have relied to discharge their duties under the statutory provisions pursuant to which the charges were preferred.
In order to better understand the determination which the Court was called upon to make, one must look not only to the specific offence or statutory defence provisions but, rather, the pertinent legislative framework within which the chain of responsibility principles operate. It is this backdrop against which the Defendants’ actions are to be assessed in determining their sufficiency in surmounting the rather elusive hurdle of “reasonableness”. There is no bright line test, nor is there a homogeneity in approach which renders the actions of different heavy vehicle operators (and others elsewhere along the chain of responsibility spectrum) reasonable and, therefore, exculpatory at law. What might constitute reasonable steps in the case of one organisation might not be considered reasonable in the case of another.
Moreover, whilst the views of the prosecuting authority or an expert engaged by a party might assist to inform discussion on the issues, they are not determinative nor do they supplant the views of the Court, as the tribunal of fact, engaging in a proper evaluation of the entirety of the evidence and practices of the Defendants in the present circumstances. The Court is required to make a value judgment as to “reasonableness” without, I hasten to add, trivialising or conflating the remaining conjunctive or disjunctive, as the case may be, legislative elements in the provisions cited above, of which I am acutely cognisant.
The reasonable steps taken and due diligence exercised need not be entirely successful in eliminating the conduct that constituted the offence. Instead, in some respects what is required, from an objective perspective, are reasonable steps which are targeted towards preventing the conduct in order to achieve statutory compliance. The fact that the evaluative exercise in determining reasonableness, for the purposes of establishing the statutory defences, operates in an atmosphere where strict liability governs the individual offence provisions to which the statutory defences are respectively linked, does not raise the bar which the Defendants must surmount in order to succeed.
Each of the measures adopted by the Defendants, when considered alone, might have been insufficient to make out the reasonable steps defence but, when viewed collectively in my view, demonstrate on the balance of probabilities a sufficiency and reasonableness in the steps, precautions and due diligence taken and exercised to prevent the commission of actual offences and conduct. It was suggested by the Prosecution that it was not the evidence of any Defence witnesses that they were sufficient collectively. That was not, in my view, an accurate description of the evidence, which is summarised above in detail. Whilst the Defence cast some of its questions (eliciting complementary responses) in a way which was indicative of the individual measures adopted being collectively, as opposed to singularly, effective to make out the reasonable steps defence, not all of its questions were cast this way. Some were cast more generally. This approach, however, was not detrimental to its case, nor was it damaging to the satisfactory discharge of its evidentiary onus. In part, so much is made clear from the following exchange with both counsel (T2.3.2016, 60.38 - 61.10, Mr Borg XXN): -

“HIGGINS: Your Honour invited counsel for the defence to explore this issue of whether they were individually prevent speed or collectively. That wasn’t taken up.
HIS HONOUR: Yes. That doesn’t mean that that’s not a task I need to juggle at some stage.
HIGGINS: It may not - sorry, your Honour is correct obviously, but it then becomes an evidentiary issue about - well your Honour may wish to grapple with whether or not collectively they are, but it’s not the evidence of any defence witness that they were.
MARTIN: Isn't that a matter for argument rather than..(not transcribable)..
HIS HONOUR: I think Dr Martin’s right, I can only make the determination ultimately on the evidence I have before me. I can believe, because they're criminal proceedings, I can believe some or all of what a witness has to say - all the usual cautionary criminal trial directions that are given to a jury, a tribunal of fact. I can apportion weight to some things but not to others. I can quarantine some matters, I can perform the balancing exercise collectively. I expect that you're going to make submissions as well Dr Martin on these issues?
MARTIN: Yes.”

I was not taken by either party to any rule or principle which suggested that this approach was anything but appropriate.
The fact that the offences are strict liability in nature does not necessarily mean that compliance via the means provided for in the statutory defences is unattainable. In my view, it must have been envisioned by Parliament that, in enacting the sections using the phraseology outlined in both the offence and statutory defence provisions, the flexibility in the steps available to prove compliance was of such wide berth. It is the widely encompassing means by which reasonable steps, collectively even if not singularly, may be proved, coupled with the non-exhaustive and unconstrained factors the Court is permitted to take into account under cl.165 RT(G)Reg as part of the determination process, which amply justify this view. Unlike the multitude of other offences dealing with heavy vehicle speeding compliance within the same legislation and which the legislature saw it fit to include a comprehensive list of examples of reasonable steps that could be taken to discharge one’s obligations, no such examples are provided within the offence provisions the subject of these proceedings.
Further, the object of the legislation, outlined in cl.151 RT(G)Reg, in the context of the offence provisions (the subject of these proceedings) forming but three of the many provisions within the statutory framework regarding heavy vehicle speeding compliance, ought not be overlooked. The overriding object is to improve road safety and compliance with road safety laws by imposing responsibility in relation to speeding by heavy vehicles on those whose business activities influence the conduct of the drivers of such vehicles. To give effect to the purpose of this object, the legislation operates so as to require those who are mostly directly responsible for the operation of a heavy vehicle, including operators, schedulers, loading managers and consignors, to take reasonable steps to ensure that their activities do not cause drivers to exceed speed limits. I am persuaded to the view, to the extent that a finding of fact, on balance, might be required, that nothing articulated in the evidence adduced in support of the statutory defences suggested a culture of unsafe or dangerous heavy vehicle practices within the Defendants’ organisations. I am acutely aware, though, of the need for circumspection to avoid misdirecting myself regarding the onus of proof and any potential conflation of peripheral matters in the statutory framework within which the relevant offence provisions operate.
The statutory objects within which the Defendants were required to operate were not part of some best practice or Australian Standard accreditation scheme. Nor were they part of some international certification scheme implemented by a body such as the International Organisation for Standardisation, which creates and maintains ISO quality management standards. One thing that emerged from the evidence was that overseeing speed was not to be considered in a vacuum but, rather, something to be viewed globally. More particularly, the operator’s policies and procedures were continually evolving to suit and adapt to the changing legislative and operational landscapes. The Court was not involved in an inquest in which inquisitorial powers and resultant findings and recommendations were to be made on the urging of a government instrumentality assisting.
Whilst there were some shortcomings in the Defendants’ corporate processes, they were not, in my opinion, fatal to their case. The legislation did not impose such undue strictures as to prevent the policies and procedures indicative of reasonable steps from evolving within the corporate and industry atmosphere in which the Defendants operated. To suggest otherwise would involve so inflexible an approach as to leave the Court, as the objective trier of fact, with little work to do.
A reference to the matters outlined above might, at first glance, appear as though the Court has engaged in an impermissible, industry-based, globalised consideration of the issues, leading to the conclusion that there may have been a failure to take into account individual relevant considerations (or may have taken into account individual irrelevant considerations). However, I am firmly of the view that, from an overall perspective, the creation and cultivation of the culture of policies and procedures in place was a synthesis of proactivity in some respects and prevention in others and, joining issue with the Defence’s contention, pragmatically focused on the direct causative components of speeding. Indeed, the Prosecution itself conceded that there may be an overlap between business practices and reasonable steps, such that a business practice may be a reasonable step if it would tend to prevent speeding in a real, as opposed to fanciful, way. In my opinion, nothing advanced by the Defendants was suggestive of fancifulness, even if the strategies adopted in meeting their statutory obligations were evolving and not, at all times, completely free of criticism. The Court was left with the distinct impression that the bar which the RMS sought to impose (or more correctly, which the RMS contended the legislature sought to impose), as to the issue of awareness and reasonable steps, was directed to eliminatory ends rather than precautionary ones. Such legally utopic aspirations were neither warranted by the statute, nor envisaged. After all, it was not just the Defendants whose practices were evolving according to the backdrop to which reference has been made. The legislation itself evolved, before and since the incidents the subject of these proceedings. One could only conclude that such evolution must have been based upon industry studies, consultation, inquiries, cross-border strategic engagement and harmonisation, and updated safety and regulatory priorities. It is advancements such as these which provide, after all, the impetus for legislative change, with which operators continually integrate to achieve compliance and the overarching objects intended by the legislature.

Conclusion

For these reasons, whilst the Prosecution has proved, beyond reasonable doubt, the said speeding offences pursuant to cl.156(3) RT(G)Reg and the commission by the relevant Defendant bodies corporate of offences under the road transport legislation and, therefore, the commission by each director of the Defendant bodies corporate, and those persons concerned in the management of the respective bodies corporate, pursuant to s.178(1) RT(G)Act, I am satisfied that the Defendants have proved, on the balance of probabilities:

(1) the statutory defence in cl.156(6) RT(G)Reg (duty of operators to ensure speeding offences are not committed), having established that: -

(a) the Defendants did not know, and could not reasonably be expected to have known, of the conduct that constituted the offences; and

(b) the Defendants took all reasonable steps to prevent that conduct from occurring.

(2) the statutory defence in s.178(7) RT(G)Act (liability of directors and those concerned in the management of a body corporate for offences by the body corporate and employees), having established that the Defendants, being in a position to influence the conduct of the bodies corporate in relation to the actual offences, took reasonable precautions and exercised due diligence to prevent the commission of the actual offences.

Lest there be any doubt, I am not satisfied that the Prosecution has negatived or disproved, to the requisite criminal standard, beyond reasonable doubt, the existence of the facts proffered by the Defence to found the statutory defences on which it successfully relied.

Orders

I make the following orders: -

(1) Enter verdicts of not guilty in relation to, and dismiss, all charges brought pursuant to cl.156(3) Road Transport (General) Regulation 2005 (NSW) (duty of operators to ensure speeding offences are not committed) and s.178(1) Road Transport (General) Act 2005 (NSW) (liability of directors and those concerned in the management of a body corporate for offences by the body corporate and employees).

(2) Enter verdicts of not guilty in relation to, and dismiss, the following charges, there being insufficient evidence to establish the element of operator control and direction, beyond reasonable doubt.

Seq No.

JL Case No.

18

2012/168266

8

2012/174767

45

2012/173364

6

2012/177268

(3) Accept the pleas of guilty entered by the Fifth Defendant, as operator, in relation to the following four charges brought pursuant to s.69C(1) Road Transport (Safety and Traffic Management) Act 1999 (NSW). A sentence date is to be fixed.

Seq No.

JL Case No.

1

2012/174416

2

2012/174416

3

2012/174416

4

2012/174416

(4) The following 20 charges are withdrawn and dismissed.

Seq No.

JL Case No.

1

2012/174445

5

2012/174518

9

2012/168266

30

2012/168769

13

2012/168266

24

2012/168769

38

2012/168769

23

2012/168769

5

2012/168266

9

2012/174767

3

2012/174767

5

2012/176707

22

2012/173227

29

2012/173227

35

2012/173227

12

2012/177268

9

2012/177268

4

2012/175997

4

2012/176093

41

2012/169866

**********

RMS v Dranmore Annexure A FINAL Spreadsheet #### ## (35.2 KB, xlsx)

Amendments

28 February 2018 - Minor amendments to formatting errors throughout decision

01 March 2018 - Further minor amendments to correct formatting errors throughout decision

Corrected reference to 'Road Transport (Vehicle and Driver Management) Regulation 2005 (NSW) (Repealed)' and subsequent abbreviated references to 'RT(V&DM)Reg'; replaced with 'Road Transport (General) Regulation 2005 (NSW) (Repealed)' and 'RT(G)Reg'.

Decision last updated: 01 March 2018

Medium Neutral Citation:	Roads & Maritime Services v Dranmore Pty Ltd & Ors [2017] NSWLC 22
Hearing dates:	9-12 and 17-20 November 2015; 29 February 2016; 1-3 March 2016. Written submissions: 1 April 2016 (Prosecution); 15 April 2016 (Defence). Further written submissions: 6 May 2016 (Prosecution); 26 May 2016 (Defence)
Decision date:	04 October 2017
Jurisdiction:	Criminal
Before:	Magistrate T Tsavdaridis
Decision:	See paragraph 124
Catchwords:	CRIMINAL - specific offences - heavy vehicle related legislation - chain of responsibility speeding offences - speed limiter devices - compliance - reasonable steps defence
Legislation Cited:	Criminal Procedure Act 1986 (NSW) s175(3) Evidence Act 1995 (NSW) ss141 and 191 Road Transport (General) Act 2005 (NSW) (Repealed) ss 6, 21, 178 Road Transport (General) Regulation 2005 (NSW) (Repealed) cll 152, 156, 165 Road Transport (Safety and Traffic Management) Act 1999 (NSW) (Repealed) s 69C Road Transport (Vehicle and Driver Management) Act 2005 (NSW) (Repealed) s150
Cases Cited:	Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7 Council of the City of Lake Macquarie v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387 Dranmore Pty Ltd & Ors v Paul Bimson [2014] NSWSC 1230 Fleming v R (1998) 197 CLR 250; [1998] HCA 68 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 Western Freight Management Pty Ltd v Roads & Maritime Services New South Wales [2014] NSWCA 132 Woolmington v DPP [1935] AC 462
Category:	Principal judgment
Parties:	Road and Maritime Services (Prosecuting Authority) Dranmore Pty Limited (First Defendant) Eezee Nominees Pty Limited (Second Defendant) Laudrup Pty Limited (Third Defendant) GE & CD Hommes Pty Limited (Fourth Defendant) Roadmaster Driving Tutorial Pty Limited (Fifth Defendant) Frederick Borg (Sixth Defendant) Danny Frederick Borg (Seventh Defendant) Grant Raymond Borg (Eighth Defendant)
Representation:	Counsel: Mr M Higgins (Prosecuting Authority) Dr A M Martin (Defendants) Solicitors: Henry Davis York (Prosecuting Authority) Nicholas W J Rolfe Solicitors (Defendants)
File Number(s):	2012/00174445; 2012/00175997; 2012/00168266; 2012/00168769; 2012/00174416; 2012/00169690; 2012/00174767; 2012/00174518; 2012/00168950; 2012/00177268; 2012/00176707; 2012/00169642; 2012/00173058; 2012/00173364; 2012/00176093.
Publication restriction:	Nil

Speed limit at the place where the speeding offence occurred	Type of heavy vehicle	Penalty level
	Type of heavy vehicle	Recorded speed of <15 km/h above speed limit	Recorded speed of ≥ 15 km/h above speed limit
50–60 km/h	All	Level 1	Level 1
70–80 km/h	All	Level 1	Level 2
90 km/h	Road trains (where speed limited to 90 km/h)	Level 2	Level 3
90 km/h	Non-road trains	Level 1	Level 2
100 km/h	Non-road train heavy combinations	Level 2	Level 3
>100 km/h	Non-combination heavy vehicles	Level 2	Level 3

Statute	Offence provision	Statutory Defence
RT(G)Reg	cl.156(3)	cl.156(6)
RT(S&TM)Act	s.69C(1)	s.69C(3)
RT(G)Act	s.178(1)	s.178(7)

Seq No	Case No	Offence type	Defendant	Date of offence	Rego No
18	2012/168266	cl.156(3)	Laudrup Pty Ltd	15.3.2012	VV97HW
8	2012/174767	s.178 (cl.156(3))	Danny Borg (Re: Laudrup Pty Ltd)	15.3.2012	VV97HW
45	2012/173364	cl.156(3)	Hommes Pty Ltd	21.12.2011	VV53HQ
6	2012/177268	s.178 (cl.156(3))	Danny Borg (Re: Hommes Pty Ltd)	21.12.2011	VV53HQ

Seq No.	JL Case No.
18	2012/168266
8	2012/174767
45	2012/173364
6	2012/177268

Seq No.	JL Case No.
1	2012/174416
2	2012/174416
3	2012/174416
4	2012/174416

Seq No.	JL Case No.
1	2012/174445
5	2012/174518
9	2012/168266
30	2012/168769
13	2012/168266
24	2012/168769
38	2012/168769
23	2012/168769
5	2012/168266
9	2012/174767
3	2012/174767
5	2012/176707
22	2012/173227
29	2012/173227
35	2012/173227
12	2012/177268
9	2012/177268
4	2012/175997
4	2012/176093
41	2012/169866