RTA v Westgate Logistics Pty Ltd

[2007] NSWSC 537

CITATION:	RTA v Westgate Logistics Pty Ltd [2007] NSWSC 537
HEARING DATE(S):	25/05/2007
JUDGMENT DATE :	31 May 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	The order of dismissal made by the Local Court on 26 October 2006 is set aside. The matter is remitted back to the Local Court for determination according to law. The defendant is to pay the costs of the proceedings. If so entitled, it is to have a certificate under the Suitor's Fund Act.
CATCHWORDS:	Reasonable steps defence to overloading offence - construction of statutory provisions - misdirection and evidentiary requirements
LEGISLATION CITED:	Road Transport (General) Act 2005 (NSW)
PARTIES:	The Roads and Traffic Authority of New South Wales Westgate Logistics Pty Ltd
FILE NUMBER(S):	SC 16112/06
COUNSEL:	Mr T. Lynch (Pl) Mr G. J. Grogin (Def)
SOLICITORS:	Hunt & Hunt (Pl) Norton White Lawyers (Def)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	N/A
LOWER COURT JUDICIAL OFFICER :	Longley LCM
LOWER COURT DATE OF DECISION:	20/10/2006
LOWER COURT MEDIUM NEUTRAL CITATION:	RTA v Westgate Logistics

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

16112/06 The Roads & Traffic Authority of New South Wales v Westgate Logistics Pty Ltd

JUDGMENT

1 HIS HONOUR: The plaintiff commenced proceedings in the Local Court by Court Attendance Notice (the Notice). The alleged offence was described therein as:-

“ Description of Offence: The defendant was the Operator of NSW registered vehicle ZBG231 which did not comply with the mass requirements of a vehicle or combination on a road or road related area under s56 of the Road Transport (General) Act 2005.”

The Short Particulars of the offence were as follows:-

“ Short Particulars:
Type of offence Overload axle group/s 1
Weight detected 7.08 tonnes
Weight allowed 6.00 tonnes
Overload amount 1.08 tonnes
Overload percentage 18.00%”

2 Prior to the issue of the Notice, the vehicle had been directed to enter an inspection station and was driven onto a weighbridge. It was carrying a load of flour from Enfield to the Entrance.

3 A defended hearing took place on 26 October 2006 before Mr Longley LCM. An ex tempore judgment was delivered on that day.

4 The defendant relied on a defence provided by s87 of the Road Transport(General) Act 2005 (NSW). The section is as follows:-

“87 Reasonable steps defence for mass requirements: drivers, operators and owners

(1) If a provision of this Act, or a regulation made under this Act, states that a person has the benefit of the reasonable steps defence for an offence relating to a mass requirement, it is a defence to a prosecution for an offence alleged to have been committed by a person as the driver, owner or operator of a vehicle or combination if the defendant establishes that the defendant:

(a) did not know, and could not reasonably be expected to have known, of the contravention, and

(b) had taken all reasonable steps to prevent the contravention.

(2) If the relevant contravention resulted from the fact that the mass of the vehicle or part of the vehicle (together with the mass of any load on the vehicle or part of the vehicle) exceeded any limit prescribed by the regulations, then the court is not entitled to be satisfied that the defendant took all reasonable steps to prevent the contravention unless it is satisfied that the defendant took all reasonable steps to cause the mass of the load carried on the vehicle to be ascertained at the start of the journey during which the contravention occurred.

(3) The court is not entitled to be satisfied that the defendant took all reasonable steps to cause the mass of a load to be ascertained unless it is satisfied that:

(a) the load had been weighed, or

(b) the defendant, or the driver of the vehicle, was in possession of sufficient and reliable evidence from which that weight was calculated.

(4) Subsections (2) and (3) do not apply if the defendant satisfies the court that at all material times that the defendant did not, either personally or through any agent or employee, have custody or control of the vehicle concerned.

(5) If the defendant is a corporation, then, in order to satisfy the court that the corporation did not know and could not reasonably be expected to have known of the relevant contravention, the corporation must satisfy the court that:

(a) no director of the corporation, and

(b) no person having management functions in the corporation in relation to activities in connection with which the contravention occurred,

knew of the contravention or could reasonably be expected to have known of it.”

5 The Magistrate came to the view that the defence had been made out and then made a dismissal order.

6 On 12 December 2006, the plaintiff filed a Summons in this Court. It brings an appeal against the decision of the Magistrate. The Summons contains nine grounds of appeal.

7 It came on for hearing on 25 May 2007. The parties were legally represented.

8 Before proceeding further, I should mention certain of the evidence that was adduced before the Magistrate. The evidence (or lack of it) could be described as being sparse. The transcript of the proceedings was before the Court.

9 There was no contest as to the proof of the alleged offence. The defendant called Messrs Ralph (NSW State Manager) and Kennedy (the driver).

10 The driver of the corporation owned vehicle was an employee. The vehicle had been loaded at the premises of Western Milling (a customer of the defendant), by one of its employees using a forklift truck. It comprised twenty-five kilogram bags of flour packed on fourteen palettes. The vehicle had a fourteen palette capacity. The Magistrate found that it had less than a full load.

11 After the vehicle had been loaded, Mr Kennedy drove it towards the exit of Western Mills. There was a weighbridge near the exit. It was necessary to go over the weighbridge to leave the premises. The weighbridge at Western Mills was controlled and operated by its employees. The procedure was to weigh the front axle. Mr Kennedy was aware of an RTA requirement in relation to the front axle weight (it had to be six tonnes or less on the front axle). The weighbridge had one plate. Mr Kennedy said that he put the steer wheels onto the plate. He was then waived through by an employee of Western Mills (the gatekeeper). He did not give any evidence of communication to him of the weight recorded by any weighing process (other than by way of the “wave through”). An explanation for the overload may have been because of the use of heavy (as opposed to light) palettes.

12 The defendant had a policy that vehicles be weighed before leaving Western Mills for the purpose of ensuring the vehicles would not be in contravention of the mass requirements. There was evidence that the purpose of the weighbridge was to advise drivers of the capacity of the weight on the vehicle.

13 It is common ground that the defendant had the onus (on the balance of probabilities) to make out the defence.

14 The two elements of the defence are specified in subs (1). They are as follows:-

(a) did not know, and could not reasonably be expected to have known, of the contravention, and

(b) had taken all reasonable steps to prevent the contravention.

15 In the circumstances of this particular case, the Court was required to have regard to other provisions in the section before it could be satisfied that (a) and (b) had been made out.

16 Sub-sections (2) and (3), in the circumstances in which they have application, operate to prevent the Court from being entitled to be satisfied that the defendant took all reasonable steps to prevent the contravention unless it is satisfied of the matters specified therein.

17 Sub-section (2) has application if the relevant contravention resulted from the fact that the mass of the vehicle, or part of the vehicle (together with the mass of any load on the vehicle or part of the vehicle) exceeded any limit prescribed by the Regulations. In those circumstances, the Court is not entitled to be satisfied that the defendant took all reasonable steps to prevent the contravention unless it is satisfied that the defendant took all reasonable steps to cause the mass of the load carried on the vehicle to be ascertained at the start of the journey during which the contravention occurred.

18 The prohibition prescribed by subs (3) applies to a disentitlement on the part of the Court to be satisfied that the defendant took all reasonable steps to cause the mass of the load to be ascertained unless the Court is satisfied as to one of the two alternatives prescribed therein. The first of the two alternatives is that the load had been weighed. The second of the two alternatives involves a calculation of the weight by other means. This alternative cannot be relied on unless the defendant or the driver of the vehicle was in possession of sufficient and reliable evidence from which that weight was calculated.

19 Further, because the defendant is a corporation, the provisions of subs (5) must also be satisfied. This provision requires the corporation to satisfy the Court that no director of the corporation and no person having management functions in the corporation (in relation to activities in connection with which the contravention occurred) either knew of the contravention or could reasonably be expected to have know of it. The Court must be satisfied of these matters in order that it be satisfied that the corporation did not know and could not reasonably be expected to have known of the relevant contravention.

20 The Magistrate addressed only the question of whether or not the defendant had taken all reasonable steps to prevent the contravention and, in so doing, only addressed it in part. He approached this question on the basis that the Western Mills employee did not inform the driver of the weight of the load (other than by way of the “wave through”).

21 He appears to have taken the view that it was unnecessary for the driver to be so informed. He found that the load had been weighed and that the “wave through” satisfied (b) of subs (3). These findings led him to the view that subss (2) and (3) had been satisfied.

22 The judgment of the Magistrate does not deal with either the provisions of subs (1) or the provisions of subs (5). There is a consensus between the parties that the defendant did not know of the contravention. The plaintiff contends that this was the only concession made in respect of subss (1) and (5). Accordingly, it submits that the Magistrate failed to address these matters. The defendant takes a contrary stance and submits that there was a concession as to all of the subs (1) and subs (5) requirements.

23 By way of resolution of this dispute, all that the parties could do was to refer the Court to a passage in the transcript.

24 The passage is as follows [at p37]:-

“Your Honour if we can go back to 1(a) and refer to “did not know or could reasonably expect to have known the contravention” the operator is obviously responsible for the acts of its employees to a degree and did not know or could not know or expect to be known of the contravention from the fact the evidence was given by Mr Kennedy, the driver, is that he didn’t even turn his mind to what the load in the vehicle was at the time he alleged he crossed the weighbridge.”

25 Minds may differ as to what was intended to be conveyed to the Magistrate by the prosecution in this submission. What was intended in relation to subs (1) is far from clear and I have difficulty in unravelling what seems to me to be a confusing communication.

26 If the view of the defendant be incorrect, I take the view that the Magistrate has misdirected himself by failing to address provisions of both subss (1) and (5).

27 This appeal is brought as of right. The plaintiff is required to demonstrate that there has been error in point of law that justifies the disturbing of the decision of the Magistrate. Broadly speaking, the error is said to be lack of supporting evidence and misdirection.

28 The plaintiff submits that there is no evidence to satisfy either of the two alternatives presented by subs (3). The defendant must either demonstrate that the load has been weighed (as required by (a)) or that the defendant or driver was in possession of sufficient and reliable evidence from which that weight was calculated (as required by (b)).

29 It is said that in this case the only evidence that could have been given that the load had been weighed would have had to come from Western Milling and that such evidence was not led. It was further said that, at best, the evidence that was led could do no more than constitute evidence of a representation that the load had been weighed. I take this question no further as the appeal can be disposed of without dwelling on it.

30 The judgment of the Magistrate contains the following [at p 41]:-

“Now it is Mr Kennedy’s evidence that he stopped it on the plate, so to speak, was weighed and sufficient time was given for that procedure to conclude and a representative of Western Milling waved, use his words “waved him through””

and [at p44]:-

“Well firstly it was weighed, there is no evidence to suggest that it wasn’t ….”

31 The plaintiff submits that this material manifests both a misdirection as to the evidence that was given by Mr Kennedy (inter alia, as to it being weighed) and as to onus (that there is no evidence to suggest that it wasn’t). In my view, those submissions are well founded.

32 If a weighing process did take place, there was no evidence of a communication by Western Mills to Mr Kennedy of what the weight was (otherwise than by the “wave through”). I do not consider that the “wave through” can be regarded as an ascertainment of the mass of the load.

33 The Court has been told that following the loading of the vehicle, Mr Kennedy was given a manifest. Mr Kennedy gave evidence that this manifest showed a load that he thought was 6.8 tonnes. The manifest was not placed in evidence before the Magistrate. The Court has been told that this figure was not a product of the weighing of the load (presumably a product of calculation). The evidence of the weight shown by the manifest may have been the subject of submissions to the Magistrate. Whether or not it was, it was not dealt with by the Magistrate in his judgment.

34 In this Court, it was submitted that this material would satisfy the requirements of subs (3)(b). In my view, it would not. What this provision has in mind is possession of sufficient and reliable evidence from which the weight was calculated (as opposed to the calculation itself).

35 It is also submitted that the Magistrate misdirected himself in being satisfied that (b) of subs (3) had been met. It is submitted that this provision could not be met by activities such as the “wave through”. In my view, this submission is well founded.

36 The provision requires that the defendant or the driver be in possession of sufficient and reliable evidence. This has to be evidence from which the weight was calculated. The evidence relied on by the plaintiff did not make out this requirement.

37 Further, the plaintiff says that there was misdirection concerning what had to be satisfied to meet the provisions of subs (2). The plaintiff submits that this provision requires ascertainment of the mass (or weight) of the load by the defendant (in this case it required communication of the mass (or weight) of the load to the defendant). Whether or not that be a correct construction of the section, there had to be evidence of ascertainment of the mass of the load at the start of the journey during which the contravention occurred. The defendant appears not to have relied on the manifest evidence. Accordingly, I put it aside for the purposes of this question. In those circumstances, I am of the view that there was no such ascertainment. The provision requires the defendant to take all reasonable steps to cause the mass of the load to be ascertained at the start of the journey. Whilst it may not expressly say so, it seems to me to have been intended that the mass of the load be ascertained by the defendant at that time. Again, I find that there has been further error and misdirection.

38 Apart from what has already been mentioned, the manifest evidence has not been the subject of submissions by Counsel in this appeal. I do not see it as giving the defendant any assistance. Indeed, it may be seen as having the opposite effect (in the light of the driver’s knowledge of the RTA requirements of an allowed weight of six tonnes).

39 It follows from what has been earlier said, that the Magistrate was precluded from being satisfied that the defendant had taken all reasonable steps to prevent the contravention by reason of it not being able to be satisfied of what was required by both subs (2) and (3).

40 The findings that have been made suffice to dispose of this appeal. The Magistrate erred in the circumstances to proceed to find that the defendant had established that it had taken all reasonable steps to prevent the contravention. Before concluding this judgment, I will make one further observation. It is referable to subs (1).

41 I consider that, in the circumstances of this case, the taking of all reasonable steps to prevent the contravention required the relevant person (in this case the driver) to satisfy himself that the vehicle had been weighed and that there was no overloading.

42 It might be thought that a policy of having a load weighed before the vehicle commences its journey would have seen the implementation of procedures involving, inter alia, the driver observing the weighing process and obtaining evidence as to the weight of the load.

43 The order of dismissal made by the Local Court on 26 October 2006 is set aside. The matter is remitted back to the Local Court for determination according to law. The defendant is to pay the costs of the proceedings. If so entitled, it is to have a certificate under the Suitor’s Fund Act.

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