RTA v Western Freight Management Pty Ltd

[2007] NSWLC 3

Local Court of New South Wales

CITATION:	RTA v Western Freight Management Pty Ltd [2007] NSWLC 3
JURISDICTION:	Criminal
PARTIES:	Roads and Traffic Authority, NSW Western Freight Management Pty Ltd
FILE NUMBER:
PLACE OF HEARING:	Wentworth
DATE OF DECISION:	05/07/2007
MAGISTRATE:	Magistrate Darryl Pearce
CATCHWORDS:	Breach of Road Transport (General) Act 2005—Consideration of Section 88—“Reasonable steps” defence.
LEGISLATION CITED:	Road Transport (General) Act 2005 Road Transport (Mass, Loading and Access) Regulations 2005
CASES CITED:	He Kaw Teh v The Queen (1985) 157 CLR 523; 60 ALR 449; 15 A Crim R 203
REPRESENTATION:
ORDERS:	Dismissed

BACKGROUND

Western Freight Management Pty Ltd, the defendant company, own 34 prime movers 12 of which are Daimler Chrysler Argosy Freightliner, including prime mover, registered ZGU128 the subject of this case. This prime mover was purchased (demonstration model) in March 2005 and renewed for registration on 24 March 06. Heavy Vehicle Inspection report No. AZ0101538 issued by an RTA Inspector on that date was tendered as exhibit 2. This prime mover was used on a run from Sydney to Adelaide five nights per week commencing in 2005. Mr. John L Peters is the Manager Director and gave evidence on behalf of the defendant company about this prime mover and other maters relevant to this case.

Eighty percent of the defendant’s business involves consignment under contract of its prime movers to the company Star Track Express, who own and supply the various sized trailers for attachment to the prime movers –as short combinations or B double combination. The defendant provided drivers for prime movers but Star Track Express, apart from providing uniforms with their insignia for those drivers, contracted to control the operation by loading each trailer, providing information to the drivers as to the depot at which the trailers were located, at which point the drivers on arriving, connect the trailers to the prime movers and deliver the load to the destination nominated by Star Track Express.

ALLEGATION BY PROSECUTION

About 12.20 pm on 3 August 2006 two RTA authorised Inspectors were waiting at Mallee Fowl on Main Road Number SH14 Sturt Highway Buronga where they stopped the driver of the prime mover ZGU128 then in a B –double combination and carried out inspection both of the prime mover and the attached trailers.

They measured the length of the B- double combination, from the front bull –bars to the right rear end trailer at 25.250 metres. They measured the distance from a point at the bottom of the mud flaps on the steer axle of the prime mover to the ground at 470mm.

They posted infringement notices to the defendant as the owner for exceeding the legal length of a B- double by .250metres and for “breach conditions of notice –other circumstances (steer axle spray suppression)”. The steer axle is the front axle of the prime mover. Although the court accepts that the driver of the prime mover was told on 3 August 2006 by RTA Inspectors, of the issuing of an infringement for exceeding the maximum legal length of the mudflaps on the steer axle, it was not until the day of hearing that Mr. Peters and his Solicitor learnt that this infringement notice referred to specially to the length of the mudflap and not spray suppression.

Although entitled to do so, the defendant, because he was unaware, did not on receipt of the infringement notices exercise the right under section 45 Road Transport (General) Regulation 2005 to complete a statutory declaration within 14 days after formal notification of the commission of the offence, naming the driver or operator of the B double, but nonetheless, elected to have the matter heard against the company in Court.

The defendant case involves a consideration of the defence of “reasonable steps” as provided by section 88 Road Transport (General) Act 2005 and the defence of honest and reasonable belief (if available)

Indeed in written submission the defendant solicitor/s state at paragraph 14 “the defendant does not say it was improperly charged. It says that as the owner and “operator” in the limited sense contained in s 21, it is entitled to the reasonable steps defence and the s 90 defence where it has taken reasonable steps available to it, or where it has an honest and reasonable belief on available facts that the combination would comply.”

Before dealing with the real issue in respect of the reasonable steps defence the Court makes following findings in respect of the evidence.

MEASUREMENTS

Although cross -examined, the RTA officers gave reliable and accurate evidence of the measurement they obtained--accepting that Mr. Peters was not present at the time of measurement. They used certified measuring tape and gave confirmatory evidence as to what they observed. They said the B -double combination was in a straight line on level ground before it was measured. The court accepts the officer’s evidence in this regards and so finds the measurement accurate and reliable. I could not find in their evidence interest or bias against the defendant.

MUDFLAPS/WHEEL FLAPS,MUDGUARDS OR SPRAY SUPPRESSION.

As outlined above it is relevant to comment on the confusion that arose for the defence as a result of the infringement notice issued for the mudflaps. Firstly, however, there was no apparent confusion in respect of the second infringement notice the particulars of which came before the court in the form of the second Court attendance notice which detailed the offence : “Dimension—minor breach- 03/08/2006 12.21.pm. “Particulars: measured at 25.250 metres. Road Transport (General) Act 2005, Section 80 and section 10.”As indicated there was confusion in respect of the first infringement notice the particulars of which came before the court

in the form of the first Court attendance notice which detailed the offence as: “Breach notice—other circumstances. 03/08/2006 12.21.pm. notice. Road Transport (Mass, Loading and Access) regulation 2005, Clause 19 Road (Transport (General) Act 2005 section 10.

On reading the first copy of infringement notice 7301273807 (which is sent to the defendant) it is clear that the defence believed the offence as described therein involved an issue of spray suppression. The second copy of that infringement notice which is kept by the Inspector but came before the court as an exhibit “4”shows that the infringement was in respect to the mudflap. This exhibit No. 3 states among other matters “Breach conditions and notice other circumstances (steer axle spray suppression).” But under the heading-- description of offence -the notice states “…..measured height of steer axle mudflaps from ground at 470mm VSI 39 requires height to be no more than 200 mm.”

The court attendance notice issued in respect of the same infringement notice, apart from references to sections and Acts simply describes the offence as” Breach notice –other circumstances”

Most of the defence case related to spray suppression requirements and the belief, based on manufacturer compliance and the registration of the prime mover that it was compliant.

Toggling through the various regulations, standards and notices was no easy task for the court when seeking the meaning and differences between, on the one hand, spray suppression devices (see General B Double notice issued under division 4 of Part 2 of the Road Transport (Mass, Loading and Access) Regulations, 2005; and on the other hand, mudguards and spray suppression and mudflaps (see Road Transport (Vehicle Registration) Regulation 1998. To add to the confusion, Exhibit 1 (RTA Vehicle standard information document No. 39) refers to Wheel flaps but then with an arrow pointing to a diagram of an axle assembly indicates that spray suppression refers to the wheel-flaps.

Despite the circularity and the synonymous use of the words referred to above, on a consideration of the definitions of the word B-Double and the word mudguard as defined in the Road Transport (Vehicle Registration) Regulations 1998, the court finds that a mudflap/wheel flap are flaps usually made of rubber that may or may not be attached to the mudguard, and assist in spray suppression. These flaps required so as to reduce the amount of water spray, road material and other debris thrown out by the friction of moving wheels on the road surface from B-Double combinations, thereby enhancing visibility and safety for drivers of passing and overtaking vehicles.

Although the drivers were told by the RTA Inspector of the nature of each allegations, I have considered whether the defendant was caught by surprise believing that they were defending an allegation in respect of spray suppression and not the height of the mudflap and I find that they were, and that the particulars set out in the infringement notice as served and the Court attendance notice issued, should have made clear what the offence specifically related too. While Legislation provides for short descriptions of summary offences nevertheless I accept the confusion the defence experienced when arriving at Court. However, the matters proceeded without objection on the basis that the first prosecution allegation was in really about mudflaps on the steer axle. As noted above the defence in their submissions said at paragraph 14 “defence does not say it was improperly charged”.

LEGAL MEASUREMENTS

Section 3 the Road Transport (General) Act 2005 defines the application of the Act generally and with application to the Road Transport (Mass loading and Access) Regulation 2005 part 2 division 4. Section 18 and 19 provide for the issue of notices and permit-with maximum penalties of 30 penalty units. The division applies to a restricted access vehicle that complies with the mass and dimension limits prescribed in the Road Transport (Vehicle Registration) Regulation 1998 and schedule 1 provides that a restricted access vehicle inter alia is a B-Double. Section 10 provides for the regulations not inconsistent with the act.

The Road Transport (Vehicle Registration) Regulation 1998, schedule 4 section 32 (1)(b) at paragraph 32 says inter alia “Mudguards and Spray Suppression – (1) a vehicle must have firmly fitted: a) a mudguard for each wheel or for adjacent wheels, and b) for each axle group and single axle on a vehicle that is part of a B-Double—spray suppression devices complying with parts 1 and 2 of British Standard AU 200-1984 Spray Reducing Devices for Heavy Goods Vehicles

A General B-Double notice issued pursuant to section 19. This repealed and replaced

General B-Double Notice 2000 published in Government Gazette No. 159. The new notice remains in force until 30 September 2010.

Part 3.3.2 of the notice limits the length of a B-Double at 25 metres.

Part 5.7 provides “Spray suppression devices must be fitted to all axle groups and single axle of a B-Double combination. The spray suppression devices must comply with the requirements of British Standard AU 200-1984 Part 1 and 2.”

By consent exhibit “1 “came before court as RTA vehicle standards information No. 39 issued December 2005and available on internet at RTA website. This refers to the British Standards BS AU 200 –1984 Spray Reducing Devices for Heavy Goods Vehicle, and inter alia provides for a maximum distance of 200 mm from lower edge of wheel flap to the ground.

In relation to the Legal Measurements in this case, the court finds the legal length of the B –Double combination in this case at the relevant time was 25 metres and the legal length of the mud-flap from its lowest edge to the ground was 200 mm.

REASONABLE STEPS DEFENCE

Section 56 Road Transport (General) Act 2005 provides that an operator is guilty of an offence if a breach of a mass, dimension or load restraint requirement occurs and section 21 defines the word “operator”

Section 80 Road Transport (General) Act 2005 provides inter alia, that where an offence is expressed to be committed by an operator of the combination or with respect to the towing vehicle of a combination, the registered owner of the towing vehicle is taken to have committed the offence (absent a statutory declaration under regulation 45) and is punishable accordingly. However, Section 80 (3) provides that the owner has the benefit of the reasonable steps defence for an offence under this section. The defence have the evidentiary onus but the prosecution are required to prove the case beyond reasonable doubt. He Kaw Teh v The Queen (1985) 157 CLR 523; 60 ALR 449; 15 A Crim R 203.

Section 88 of the Act provides that if a person has the benefit of the reasonable steps defence (as the defendant has as owner of the towing vehicle) it is a defence to the prosecution for an offence if the defendant establishes that: (a) the defendant did not know, and could not reasonably be expected to have known, of the contravention concerned, and (b) either (i) the defendant had taken all reasonable steps to prevent the contravention, or (ii) there were no steps that the defendant could reasonably be expected to have taken to prevent the contravention. The section outlines the matters the court may taken into account in determining whether things done or omitted to be done by the defendant constitute reasonable steps. All those circumstances listed along with the evidence and submission have been carefully considered.

The PROSECUTION submit that the registration of the vehicle as a B- Double Prime Mover entitles that vehicle to be operated as a B-Double prime mover, provided that it meets the relevant standards. The mudflaps did not meet the standard. They say further, that the registration of the vehicle as a B-Double prime mover does not prevent the use of that prime mover as a standard short combination (1 trailer only) or long combination (road train) but the prime mover if so used would have to meet the standards for that combination as used. They say that registration merely means that a vehicle may be used in a particular combination but does not in itself mean that the vehicle complies with all the relevant standards applicable. The argument was advanced by prosecution that the defendant could not rely on the representation of Daimler- Chrysler that the prime mover when sold was B- Double compliant because the letter tendered exhibit 5 only referred to the valance (bristle protruding from mudguard) and did not refer to the length of mud flaps. By way of extension of this argument they say that the mudflaps had “WFM” embossed on them and therefore, they argue, the mudflaps were placed on the prime mover after it was purchased, so therefore, the representation that the prime mover was B -Double complaint could not be correct and was not an honest and reasonable belief.

The prosecution say that the terms of the contract between the defendant and Star Track Express in relation to the consignment of the prime mover have not be tendered so as to show what instructions were given, if any, or what specific use/combination Star Track Express could make with trailers and the prime mover. Further, what instructions did the defendant give Star Track Express in relation to the length of trailers attaching the prime mover?

The DEFENCE submit that:

1) they purchased the prime mover as a B –Double complaint vehicle from a reputable company Daimler Chrysler 2) the prime mover was registered as a complaint B-Double passing inspection by RTA Officers 3 months before the date of alleged offence 3) they relied on the experience of Star Track Express who own over 400 trailers and who were in charge of the operation to ensure that they provide trailers that were, in terms of length, complaint.4) the contract between defendant and Star Track Express provided for compliance with law in respect of road transport and drivers were instructed as to the law.

Dealing with the non- complaint mudflaps.

Clearly the mudflaps fitted to the prime mover did not comply.-- they were too short. Mr. Peters has been in the trucking business for many years, his company operates over 30 prime movers from the east coast to the west coast and employ over 50 drivers. This is a large trucking company. Given his experience and the extent of the operation, it is odd when considering why he did not know by his own inspection of the prime mover that the mudflaps did not comply. Of course, there were no questions put to him as to whether in fact he inspected this vehicle or whether someone else did within the company either on a weekly or monthly basis. There was no evidence as to where the vehicles were kept when not in use, for example whether the vehicles remained with drivers or with Star Track Express. Questions were not put as to the maintenance of the trucks and who carries out those duties within the company, if at all. And if the company did the maintenance why wasn’t it obvious that the mudflaps were too short since the vehicle was a B-Double registered prime mover. What of the driver of the prime mover on the 3 August 06 and his knowledge in respect of the mudguard? However, unlike smaller trucking operations, where two or three trucks are owner/ driver, perhaps Mr. Peters did not have access to these 30 odd prime movers? – they being with the drivers on contract to Star Track Express? While these matters have been considered it was found on the evidence that Mr. Peters purchased this prime mover as B -Double compliant and it passed RTA inspection as B Double compliant and surprisingly, he was supported by the prosecution officer, Inspector Borthwick in this regard. Although I initially thought Inspector Borthwick to say that the prime mover was registered as Prime mover simpliciter but when placed in a medium or long combination it no longer remained complaint because those combination require the hauling Prime mover to be B –Double complaint .In other words the standards required for the prime mover differ according to its use—if used as prime mover to pull a single trailer the vehicle would be complaint, however if used in a B-Double combination it would not be complaint as it required additional safety equipment such as mudflaps no shorter than 200 mm from the ground. However under cross examination Inspector Borthwick agreed, when shown exhibit 2, that the prime mover was a registered B Double vehicle and that the defendant would have paid $2000 for that higher level registration. Although the defendant did not produce a receipt for payment of $2000 or produce the registration papers in respect of the prime mover, or indeed was not crossed examined about this part of the evidence, I have considered that the documents may not have been produced by the defendant because the concession made by Borthwich arose in the prosecution case, before the defendant entered the witness box. I am not privy to what checks Mr. Borthwick had made independently, if at all, as to the registration of this prime mover, so given his confirmatory evidence as to the higher level of registration of this vehicle I accept his evidence and Mr. Peters that the prime mover was passed by RTA Officers as B-Double complaint on 24 March 2006. I note exhibit 2 only states after the heading Body type “Prime Mover” no reference in that document to B Double. Mr. Peters impressed as an honest witness and stated that the contract between his company and Star Track Express contained express terms relevant to Occupation Health and Safety, driver safety and compliance with the law.

I have come to the view that the defendant has made out the reasonable steps defence, in that given that the vehicle was registered as a B-Double prime mover 3 months before the date of the breach, the use of the prime mover interstate and the terms of the agreement between defendant and Star Track Express in respect to compliance with the law and Star Track Express controlling operations, that the defendant did not know, and could not reasonably be expected to have known of the breach and that the defendant had taken all reasonable steps to prevent the breach. He paid the additional fee of $2000 in the belief that the vehicle was B-Double compliant and it passed RTA inspection and was registered as such. The defendant was entitled to believe that B-Double registration by RTA Inspectors included the compliance of the Mudflaps.

Dealing with the dimension allegation.

The length of the B Double combination was found on the evidence to be .250 in excess of the prescribed 25 metres legal length. There is no evidence as to whether this was as a result of the illegal length of trailer A or B or both, or indeed whether the prime mover, fitted with bull bars was itself, too long. The officers did not measure, separately the prime mover owned by the defendant or the trailers owned by Star Track Express. Mr. Peters stated that his drivers were aware of the 25 metres restriction, that they drove the prime movers to the nominated depot where trailers owned by Star Track Express were positioned and the driver after connecting the trailers to the prime mover drove to the destination nominated by Star Track Express, the operators. Apart from the defendant providing each driver with a measuring tape and directing that they measure each trailer and the whole combination it is reasonable to assume that the drivers might on a visual inspection of the length of the whole combination make a mistake especially when the breach in this case, minor in nature, involved .250mm over the 25metre legal limit. Of course, it may be that the drivers were given measuring tapes and simply made an error in the measurement – the evidence is silent yet I have to accept that Mr. Peters said he drivers were aware of the 25m limit. How? I assume because they were given instructions. Questions ought to have been put to him in this regard including what instructions, written or oral were given or whether measuring tapes were provided.

Although it was the defendant’s drivers who drove the vehicles, it appears from the evidence of Mr. Peters that Star Track Express controlled the operations and were at all times the operators. Mr. Peters said it was a term of the contract, between defendant and Star Track Express that the various regulations and law were to be complied with. He was entitled to expect that Star Track Express, with over 400 trailers, would have ensured that their trailers were legal in terms of length. In all the circumstances, considering the matters in section 88 (3) I have come to the view that the defendant did not know, and could not reasonably be expected to have known, of the breach and that there was no steps that the defendant could reasonably be expected to have taken to prevent the breach. The Court does not know what part of the combination was too long, so as to know the extent or scope of the reasonable steps required to remedy the breach of the legal length of the combination . Given the evidence from the defendant that the drivers were aware of the 25 metres, absent any challenge to this, court is satisfied that they, by inference, were instructed to ensure compliance relevant to the 25metre limit in respect of trailers they did not load, own.

In view of these finding, the Court has not considered whether the defence of honest and reasonable belief is also established. It would appear though that given the nature of that defence and the similar nature of reasonable steps defence that the legislature has incorporated honest and reasonable belief within the terms of section 88.

I am satisfied that a breach occurred in respect of the length of the B –Double combination but that the defendant has established the reasonable steps defence under section 88.

BOTH ALLEGATIONS ARE DISMISSED.