Western Freight Management Pty Limited v Road Transport Authority of New South Wales

[2009] NSWSC 328

CITATION:	WESTERN FREIGHT MANAGEMENT PTY LIMITED v ROAD TRANSPORT AUTHORITY OF NEW SOUTH WALES [2009] NSWSC 328
HEARING DATE(S):	Tuesday 28 April 2009
JUDGMENT DATE :	30 April 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	The summons is dismissed
CATCHWORDS:	STATUTORY INTERPRETATION - meaning of "operator" in s.21(1), Road Transport (General) Act 2005 - the operator of prime movers (the plaintiff) not the company supplying trailers attached to the prime mover was the "operator" for the purpose of s.21(1)(b) of the Act.
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Road Transport (General) Act 2005
CASES CITED:	Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
PARTIES:	WESTERN FREIGHT MANAGEMENT PTY LIMITED v ROAD TRANSPORT AUTHORITY OF NEW SOUTH WALES
FILE NUMBER(S):	SC No 15409 of 2008
COUNSEL:	P: G Hatcher SC/S Coleman D: P R Nash
SOLICITORS:	P: King Christopher Lawyers D: Hunt & Hunt
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	C A Elliot
LOWER COURT DATE OF DECISION:	11 September 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

THURSDAY 30 APRIL 2009

No 15409 of 2008

WESTERN FREIGHT MANAGEMENT PTY LIMITED v ROAD TRANSPORT AUTHORITY OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: The plaintiff, Western Freight Management Pty Limited, commenced proceedings in this Court by summons filed on 15 October 2008.

2 The proceedings concern a decision of the Local Court at Kurri Kurri (his Honour Magistrate C A Elliott) given on 11 September 2008. In that decision, the Local Court determined that the plaintiff was guilty in respect of two breaches of s.56 of the Road Transport (General) Act 2005 (the “Act”) in that it was, on two separate occasions, the operator of two different motor vehicles that exceeded specified length dimension limits.

3 On 25 September 2008, his Honour, Magistrate Elliott, imposed a fine of $200 in each matter of court costs of $73.

4 The plaintiff now seeks leave to appeal from the decision pursuant to the provisions of s.53 of the Crimes (Appeal and Review) Act 2001. Section 53(1) provides that any person who has been convicted or sentenced by a Local Court may by leave appeal to this Court against the conviction or sentence on a ground that involves a question of fact or a question of mixed law and fact.

5 The plaintiff contends that the learned magistrate committed an error of law in his construction of certain provisions of the Road Transport (General) Act.

6 In the summons, an order is sought setting aside the convictions of the plaintiff and additionally declarations are sought in the following terms:-

“3. A declaration that the learned magistrate erred in his finding that the defendant was, by virtue of being the owner of the prime mover, in control of the operations of the combination, and was therefore relevantly the operator of the combination.
4. A declaration that the learned magistrate was otherwise in error in finding that the defendant was the operator of the combination.”

Submissions

7 I have had the benefit of written submissions on behalf of the plaintiff filed on 16 April 2009 and submissions on behalf of the defendant filed on 24 April 2009.

8 The written submissions were supplemented by oral submissions. Mr G J Hatcher SC with Mr Stephen Coleman of counsel appeared on behalf of the plaintiff. Ms Pamela R Nash of counsel appeared on behalf of the defendant, the Road Transport Authority of New South Wales.

9 At the hearing before the Magistrate on 14 August 2008, a number of documents were tendered. They included the following:-

(1) Exhibit 1 – Star Track Express Agreement.

(2) Exhibit 2 – Breach Report dated 10 October.

(3) Exhibit 3 – Breach Report dated 16 October.

(4) Exhibit 4 - Affidavit of John Peters.

(5) Exhibit 5 - Statutory declaration dated 11 December 2007.

(6) Exhibit 6 - Statutory declaration dated 30 January 2008.

(7) Exhibit 7 – Agreed facts.

Facts

10 In the proceedings before the Local Court, there was no dispute between the parties as to the essential facts. I will, accordingly, refer to factual matters only so far as is necessary to provide a setting in which to consider the point of statutory construction raised in these proceedings.

11 On 1 June 2003, the plaintiff entered into an agreement with Star Track Express Pty Limited (Exhibit 1) (the Road Linehaul Services Agreement). The recital to the agreement records that the plaintiff “… operates an Express Linehaul and Tow operation Network”.

12 It also records that Star Track Express Pty Limited “… operates a door-to-door Freight Transport Business”.

13 The recital refers to an agreement whereby the plaintiff was to provide “Linehaul Services on specified routes” on the terms and conditions set out in the agreement and the appendices to the agreement.

14 The agreement, accordingly, regulated and established the terms of the commercial relationship between the two companies. The particular provisions in it assist in defining the roles and functions of the two companies:-

(1) Clause 2.4 – The plaintiff was to be “… responsible for all contractors under this agreement” .

(2) Clause 2.8 – An indemnity by the plaintiff in favour of Star Track Express, inter alia, in respect of all actions etc damages “… which may arise out of or in any way connected with the carriage of freight by the contractor or in the performance by Western Freight Management of its obligations under the Road Linehaul Services Contract …” .

(3) Clause 2.10 – This clause entitled “chain of responsibility” placed the responsibility on the plaintiff to ensure a number of matters including:-

• Expeditious transport times.
• Adequate rest breaks.
• Linehaul vehicles to be speed-limited.
• Linehaul vehicles to be well-maintained.
• Drivers to obey all speed limits.


(4) Clause 3.5 – The plaintiff had “… responsibility to ensure all equipment supplied is free from mechanical defects and complies with all statutory, legislative and vehicle builder requirements (at best endeavours)” .

(5) Clause 3.14 – Linehaul drivers were to “connect prime movers to the loaded trailer 30 minutes prior to departure and carry out a safety check …” (on specified items).

15 In Appendix 9 – First Option to Purchase – reference is made to “our partnership over the past two decades …”. Accordingly, the relationship between the two companies was long standing and perceived by them to be akin to that of a partnership concerning the freight operations referred to in the agreement.

The Magistrate’s decision

16 In his Reasons for Decision, the learned magistrate noted, as I have mentioned, that there was really no dispute about the facts and that the issue was “… whether at the relevant times WFM was the operator within the meaning of the Act”.

17 His Honour referred to the provisions of s.21 and s.56 of the Act and to particular provisions of the Road Linehaul Services Agreement.

18 In paragraph 12 of the reasons for decision, the learned magistrate said the question was “… who had the responsibility for controlling or directing the operations at the relevant time and what is meant by operations anyway”.

19 By reason of the attention given in submissions for the plaintiff and, in particular, criticisms made of paragraphs 13, 14 and 15 of the reasons of decision, I set those paragraphs out below:-

“13. Operations, it seems to me, means the business performed at the relevant time. The business performed at the relevant time was the towing by the prime mover owned by WFM of the trailers owned by Star Express and carrying goods to destinations determined by Star Express.
14. The purpose of this legislation has to do with roads – not the business arrangements made between parties who use the roads. The parties can make whatever business arrangements they feel are commercially appropriate – such things a colours and decals to be displayed and uniforms to be worn; the loads to be carried; the route to be travelled and the destination etc.
15. Once the combination leaves Star Express’ depot and enters the road – regardless of the agreement – WFM as owner of the prime mover is in control of the operations of the combination, albeit subject to the terms of the agreement.”

The statutory provisions

20 Mr Hatcher, in the course of his submissions, commenced his analysis by reference to the definition of a number of expressions appearing in the Act. These included the following:-

(1) “Combination” means a group consisting of a motor vehicle connected to one or more other vehicles .

(2) “Registered proprietor” , in relation to a combination, means a person recorded by an Australian Authority on a register maintained in accordance with an Australian applicable road law as the person responsible for the towing vehicle in the combination .

(3) “Trailer” means a vehicle that:-

(a) is built to be towed, or is towed, by a motor vehicle, and
(b) is not capable of being propelled in the course of normal use on roads without being towed by a motor vehicle,
(c) whether or not its movement is aided by some other power source.

(4) “Vehicle” means, inter alia, any description of vehicle on wheels.

21 Section 6 defines the expression “responsible person for a vehicle” in relation to registered and unregistered vehicles.

22 Mr Hatcher also referred to the provisions of s.7 concerned with rights, liabilities and obligations of “multiple responsible persons” and to the contracting out provisions in s.9 of the Act.

23 The operative provisions, so far as the present matter is concerned, are found in Chapter 3 of the Act. Section 20 refers to the expression “operator” which is the subject of s.21 of the Act.

24 Section 21 is in the following terms:-

“21(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 . [emphasis added]
(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,
(c) Maintains or arranges for the maintenance of a vehicle or combination,
(d) Arranges for the registration of a vehicle.”

25 Division 4 of Part 3.3 of the Act is entitled Liability for breaches of mass, dimension or load restraint requirements”.

26 Various sections within that Division create liability upon persons referred to as a “consignor”, a “packer”, a “loader” and, for the purposes of the present proceedings, an operator.

27 Section 56, entitled Liability of operator, provides:-

“56(1) A person is guilty of an offence if:-
(a) a breach of a mass, dimension or load restraint requirement occurs, and
(b) the person is the operator of the vehicle or combination concerned.
Maximum penalty: see Table to Division.
(2) If the breach concerned is a minor risk breach, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section.
(3) If the breach concerned is a substantial risk breach or a severe risk breach of a mass requirement, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section.”

28 Section 80 of the Act, in that respect, deals with the liability of registered operators and owners.

29 Section 80(2)(b) provides that, with respect to a whole combination or with respect to the towing vehicle of a combination, “the registered operator or owner of the towing vehicle of the combination is taken to have committed the offence and is punishable accordingly”.

30 The provisions of s.80 apply in this case by reason of the terms of s.80(1).

31 Section 80(4) provides that subsection (2) of that section does not apply “… if, during the period prescribed by the regulations and in the manner prescribed by the regulations, the registered operator or owner gives the Authority a statutory declaration containing prescribed information, including the name and address of the operator of the vehicle or combination at the time of the offence”.

32 The plaintiff provided two statutory declarations (Exhibits 5 and 6) thereby triggering the provisions of s.80(2).

33 In the proceedings before the Magistrate, the plaintiff contended that the operator in respect of the relevant offences was Star Track Express Pty Limited and that it was not the operator.

Submissions

34 Mr Hatcher contended that the learned Magistrate had taken an unduly restrictive meaning of “operations” in s.21(1)(b) which his Honour stated meant the business performed at the relevant time and that that business at that time was the towing by the prime mover owned by the plaintiff of the trailers owned by Star Track Express in carrying goods to destinations determined by Star Track Express.

35 Mr Hatcher contended that description did not bring into account matters which established control by Star Track Express, in particular, its control in respect of:-

• The provision and loading of trailers.

• The destinations for the linehaul units.

• The specification of routes for Linehaul Services.

36 In relation to the observations made by the Magistrate in paragraph 14 of the reasons for decision, Mr Hatcher contended that matters such as those referred to by the Magistrate, including business arrangements as to colours and “decals” to be displayed, uniforms to be worn, loads to be as well as the destinations and routes to be travelled were “crucial”.

37 In relation to the Magistrate’s observation in paragraph 15 of the Reasons for Decision as to the fact that once a combination left the depot of Star Track Express the plaintiff was in control of the operations of “the combination”, it was contended that the observation “put at naught” the provisions of s.21(2) of the Act which I have set out in paragraph [24] above.

38 Mr Hatcher contended that, in the absence of any judicial authority or any express provisions in the Act, the Court, in construing the provisions of s.21, was required to identify the statutory purpose behind the provisions in question citing, in this respect, the High Court’s decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

39 Mr Hatcher argued that, in this case, being one involving a “combination”, the relevant control and direction in relation to the trailers forming part of the particular combinations were in Star Track Express and not in the plaintiff.

40 Ms Nash, of counsel, relied upon her written submissions and stated that the issue was whether, on the facts as found, the plaintiff was properly characterised as the “operator” within the meaning of s.21(1)(b) of the Act.

41 Ms Nash contended that the term “operations” embraces all operations associated with the movement of freight and that that included towing trailers containing freight on roads. She emphasised that the Act was legislation concerned with “road use”.

42 It was submitted that the plaintiff was clearly an operator and that this case was very different from a case where a prime mover is simply hired out. Here, the possession of the towing vehicle driven by the plaintiff’s drivers, it was contended, was always with the plaintiff.

43 Finally, Ms Nash referred to provisions of the Road Linehaul Services Agreement which it was contended demonstrated the “division of responsibility” between Star Track Express and the plaintiff.

Consideration

44 Section 21 in identifying who is an operator of a vehicle or combination is a key provision for the purposes of Chapter 3 and Part 4.2 of the Act. It does so by designating the person who “is responsible”, that is, who has the duty or is accountable “… for controlling or directing the operations of the towing vehicle in the combination”.

45 The term “operations” in relation to such a vehicle is broad enough to cover a number of activities involving the vehicle in its use including but not limited to it being driven and is not confined to its use at a particular place or on a roadway. It embraces actions or activities involving the towing vehicle including those that take place with it at a depot and those in the course of transportation. The facts in evidence indicate that a towing vehicle’s operations include those involving the attachment of trailers to it for the purpose of towing/transportation.

46 On the facts agreed and otherwise established in evidence, the plaintiff was a person who was responsible on the days in question for controlling the operations of the two vehicles in question both at the depot of Star Track Express and in respect of the towing of trailers on the roadway. “Control” embraces the notion of “regulating” and “the action of holding in check”: Shorter Oxford English Dictionary. Controlling the use or the “operations” of the towing vehicles as part of a combination(s) plainly fell within the responsibility of the plaintiff in performing functions under the Road Linehaul Services Agreement and within s.21(1)(b) of the Act.

47 Such a conclusion is not inconsistent with the provisions of s.21(2) of the Act. The control for which the plaintiff was “responsible” within s.21(1)(b) went well beyond the particular matters specified in s.21(2)(a), (b), (c) and (d).

48 The provisions of s.21(1)(b) may be contrasted with the broad meaning given by s.20 to the expression “responsible person” which, inter alia, refers to a person who has a role or responsibilities associated with “road transport” s.21(1) is focussed on a person or persons who is an operator in respect of a specific thing, namely, a vehicle or combination.

49 From the facts of the present matter, it is clear that the plaintiff was a person, who, in respect of each of the vehicles involved in the two contraventions, had responsibility for controlling or directing “the operations” of each vehicle to which I have referred above in order to ensure compliance with the Act and regulations made thereunder. The particular matters relied upon in the submissions for the plaintiff do not, in my opinion, negative the plaintiff as having been the “operator” of the vehicles.

50 The plaintiff clearly had the authority to instruct and ensure that its employees checked dimensions of different combinations and, in the event of non-compliance, to take the necessary steps to arrange for a combination that did comply with the legislative requirements.

51 It is not to the point, with respect of the plaintiff’s submissions, to point to the fact that Star Track Express personnel supplied a particular trailer and loaded the same. The plaintiff was involved in a conjoint operation which involved towing vehicles in combinations and as such had responsibility for controlling and direction “operations” of them when used in “combinations”. Such conjoint operations no doubt require co-ordination between the two companies to ensure the appropriate and or attachment of trailers to towing vehicles.

52 The plaintiff has not, in my opinion, established an error of law with respect to the learned magistrate’s construction of the relevant provisions of the Act or in the application of the provisions to the facts proved in evidence.

53 Accordingly, the summons must be dismissed.

54 I will hear the parties on the question of costs.

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