Western Freight Management Pty Limited v Roads and Maritime Services (No 2)

[2013] NSWSC 882

Supreme Court

New South Wales

Medium Neutral Citation:

Western Freight Management Pty Limited v Roads and Maritime Services (No 2) [2013] NSWSC 882

Hearing dates:

30/05/2013

Decision date:

04 July 2013

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) Roads and Maritime Services' notice of motion filed 8 April 2013 is dismissed.

(2) Roads and Maritime Services is to pay the costs of this motion.

Catchwords:

PRACTICE AND PROCEDURE - application to set aside orders - whether court has statutory power to entertain application - whether court has inherent jurisdiction - should inherent power be exercised - conduct of proceedings - whether sufficient evidence available for decision at first instance

Legislation Cited:

Civil Procedure Act 2005
Crimes (Appeal and Review) Act 2001
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006
Crimes (Local Courts Appeal and Review) Act 2001
Roads Act 1993
Road Transport (General) Act 2005
Supreme Court Act 1970
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

Cases Cited:

Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1992-1993) 176 CLR 300
Burrell v R [2008] HCA 34
Cameron v Cole [1944] HCA 5
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Hoskins v Van Den-Braak [1998] 43 NSWLR 290
RTA v Macri [2009] NSWSC 15
John Tillman v Daromin Engineering Pty Ltd (NSWSC, unreported, 6 November 2000, Dowd J)
Western Freight Management Pty Ltd v Roads and Maritime Services, New South Wales [2013] NSWSC 260

Category:

Procedural and other rulings

Parties:

Western Freight Management Pty Ltd (Plaintiff)
Road and Maritime Services, New South Wales (Defendant)

Representation:

Counsel:
S Coleman (Plaintiff)
T Lynch (Defendant)
Solicitors:
King Christopher & Associates (Plaintiff)
Hunt & Hunt (Defendant)

File Number(s):

2012/158111

 Decision under appeal 

Date of Decision:

2012-04-19 00:00:00

Before:

Day LCM

File Number(s):

2012/39019

Judgment

1. HER HONOUR: By notice of motion filed 8 April 2013, Roads and Maritime Services ("RMS") seek firstly, an order pursuant to the Uniform Civil Procedure Rules 2005 ("UCPR") 36.15 and/or 36.16, or alternatively the Court's inherent jurisdiction that Orders 3 and 5 made on 28 March 2013, that: "(3) The decision of his Honour Magistrate Day dated 19 April 2012 is affirmed; (5) The defendant's summons filed 5 June 2012 is dismissed" be set aside; and secondly, orders in lieu of Orders 3 and 5 as follows: (1) The decision of his Honour Magistrate Day dated 19 April 2012 is set aside; (2) The Local Court is to resume the hearing of the proceedings in the Court Attendance Notice and determine them according to law. Western Freight opposes these orders.

1. On 28 March 2013, I made the following orders:

"(1) ...

(2) ...

(3) The decision of his Honour Magistrate Day dated 19 April 2012 is affirmed.

(4) The plaintiff's amended summons filed 6 June 2012 is dismissed.

(5) The defendant's summons filed 5 June 2012 is dismissed.

(6) ..."

1. There are two main issues to be determined, firstly, does this Court have power to entertain this appeal or is it functus; and secondly, if it is not functus, should these orders be granted.

1. Before I delve into these issues, it is convenient to record the way these proceedings have been conducted both in the Local Court and this Court. In the Local Court, the legal representative for RMS did not draw to the Magistrate's attention the cases of RTA v Macri [2009] NSWSC 15, relevant to a statutory defence under s 92 of the Road Transport (General) Act 2005, nor John Tillman v Daromin Engineering Pty Ltd (NSWSC, unreported, 6 November 2000, Dowd J) which is relevant to a defence under s 87 of that Act. In this Court when RMS referred to Macri, I stated at [23]:

"So far as the s 92 defence is concerned, Roads and Maritime Services relied on the decision of RTA v Macri [2009] NSWSC 15. RTA v Macri was an appeal from a decision of a magistrate where the factual situation was similar to the one raised in this appeal. Regrettably, the decision of RTA v Macri was not drawn to the attention of the magistrate."

1. When the decision of Macri was drawn to this Court's attention on appeal, the Magistrate's decision in relation to s 92 was found to be incorrect and it was set aside. After the decision on appeal had been delivered, Tillman was drawn to this Court's attention for the first time.

1. One would have expected that the legal representative for RMS would have a specialised knowledge of the law in relation to these statutory defences. Had the legal representative referred to both Macri and Tillman before the Magistrate, these decisions could have been considered and this appeal most likely would have been avoided.

1. It is only the issue of whether Western Freight had a defence under s 87 (the reasonable steps defence) that is the subject of this notice of motion.

(1) Whether this Court can entertain this application

1. Counsel for RMS submitted that firstly, on the interpretation of the relevant Acts and Rules, this Court has power to entertain this appeal pursuant to UCPR 36 or alternatively, this Court has inherent jurisdiction to do so. RMS accepts that there is an issue as to whether UCPR 36 of the UCPR is operable for appeals under the Crimes (Appeal and Review) Act 2001.

1. Western Freight submitted that the relevant rules in this situation are not the UCPR but that Part 51B of the Supreme Court Rules 1970 applies. And, as Part 51B contains no provision for setting aside judgment, the UCPR does not apply in the circumstances of an appeal to the Supreme Court pursuant to the relevant provisions of the Crimes (Appeal and Review) Act.

Outline of the historical statutory position

1. The historical position is that prior to the introduction of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, under the Supreme Court Act 1970 and the Supreme Court Rules 1970, these types of proceedings were not criminal proceedings. Criminal proceedings generally were provided for in Part 75 of the Supreme Court Rules and s 75A of the Supreme Court Act. This is also the current position for criminal proceedings since the enactment of the UCPR but not for appeals to this Court under the Crimes (Local Courts Appeal and Review) Act 2001 by virtue of s 75A(3). Relevantly, s 75A(1), (3) and (10) of the Supreme Court Act read:

"75A Appeal

(1) Subject to subsections (2) and (3), this section applies to an appeal to the Court and to an appeal in proceedings in the Court.

...

(3) This section does not apply to:

(a) an appeal to the Court under the Crimes (Local Courts Appeal and Review) Act 2001, or

...

(10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires."

1. It should be noted that the Crimes (Local Courts Appeal and Review) Act referred to in s 75A(3) was renamed the Crimes (Appeal and Review) Act 2001 by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006, Sch 2 cl 2.1.

1. Criminal proceedings are identified in s 17 and Sch 3 of the Supreme Court Act. Section 17 reads:

"17 Criminal proceedings

(1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule.

..."

1. Appeals to this Court under the Crimes (Appeal and Review) Act are not listed in the Third Schedule but are specifically dealt with by Part 51B of the Supreme Court Rules.

1. Therefore, it is Part 51B of the Supreme Court Rules that governs these proceedings not the UCPR. Hence, UCPR 36 does not apply. As there is no provision in Part 51B for setting aside judgment, this Court does not have any statutory power to amend the earlier orders.

1. That leaves the issue of whether or not this Court has any inherent jurisdiction to set aside Orders 3 and 5 made on 28 March 2013.

Does this Court have inherent jurisdiction?

1. Western Freight submitted that there is no inherent jurisdiction in the Court to deal, recall or amend orders which have been entered, as these have, which is not regulated by relevant rules. Alternatively, Western Freight submitted the Court would not, even if there is power to do so, exercise its prerogative powers in favour of the prosecution (that is, RMS) and the Court is arguably functus, and any such application should be made to the Court of Appeal, absent some right to have a judgment set aside. An order once entered is final, the Court ordinarily has no power to set aside a final judgment that correctly reflects the Court's intended decision and intention and has been formally entered. Counsel for Western Freight referred to DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 245 and Burrell v R [2008] HCA 34.

1. In Burrell, the High Court at [13] to [16] set out three basic considerations in relation to the powers of a superior court of record to reopen a proceeding and reconsider the orders that have been made. They are:

a. Attention to the governing statutes and any express or implied powers to be seen therein.

b. Fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34]: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.

c. The principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided but to spur all participants in the judicial process to get it right the first time.

1. Western Freight also pointed out that it has been acquitted on two occasions and that RMS is now seeking to have the matter heard a third time, in circumstances where the legislature have not provided a statutory right to do so, and seeks the exercise of a discretion in its favour. Section 60 of the Crimes (Appeal and Review) Act 2001 relevantly reads as follows:

"60 Limits on appeals

A person may not appeal to the Supreme Court under this Part against a decision of the Local Court:

(a) that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under this Part, or

(b) that is or has previously been the subject of an appeal or application for leave to appeal to the Court of Criminal Appeal under the Criminal Appeal Act 1912."

1. RMS submitted that Western Freight's reliance on DJL v The Central Authority is premised upon the orders made on 28 March 2013 having been "entered" before the filing of RMS' motion on 8 April 2013 by virtue of UCPR 36.11(2). RMS submitted that nothing in the Supreme Court Act or Supreme Court Rules had that effect. Thus, if UCPR 36.11 was engaged, then by parity of application, UCPR 36.15 and 36.16 must also have been engaged, UCPR 36.15 applying whether or not the orders had been entered and UCPR 36.16(3A) providing that the RMS motion may be determined as if the orders had not been entered.

1. UCPR 36.15 and 36.16 read as follows:

"36.15 General power to set aside judgment or order

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

36.16 Further power to set aside or vary judgment or order

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2) The court may set aside or vary a judgment or order after it has been entered if:

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:

(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order."

1. RMS submitted that if UCPR 36 was not engaged, then my Orders 3 and 5 of 28 March 2013 were not "drawn up, passed and entered", that is, the orders have not become part of the record of the proceedings and there is a requirement that orders be entered. If the orders have not been entered and there is no relevant rule, this Court has "the power to rehear and review" those orders as an incident of its inherent jurisdiction.

1. In DJL v The Central Authority at [34], the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) stated:

"The common law courts, as superior courts of record, had 'full power to rehear or review a case until judgment [was] drawn up, passed, and entered'. That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382 at 457. Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court [L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590 at 594-595]. An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce [Ainsworth v Wilding [1896] 1 Ch 673 at 678-679; Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR (Pt 1) 642 at 669]. It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties [Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45]. Finally, where the business of the court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders [C H Giles & Co Ltd v Morris [1972] 1 WLR 307 at 313; [1972] 1 All ER 960 at 965]."

1. As I have determined that these proceedings are not governed by the UCPR, I am of the view that Part 36 is not engaged. No formal orders have been entered. Hence, the orders made on 28 March 2013 have not become part of the record of the proceedings. Hence, it is my view that this Court does have inherent jurisdiction to amend Orders 3 and 5.

1. However, should this Court exercise its inherent jurisdiction?

1. In Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1992-1993) 176 CLR 300, the High Court outlined the circumstances where a Court can exercise its discretion to reopen a judgment. At [2] and [4] the High Court (per Mason CJ) stated:

"... The exercise of the jurisdiction to reopen a judgment and to grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard. It is true that the jurisdiction is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. It is equally true, as this Court said in Wentworth v Woollahra Municipal Council, that '[g]enerally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.'

... However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases."

1. RMS also referred to Hoskins v Van Den-Braak [1998] 43 NSWLR 290, where the Court of Appeal, quoting Rich J in Cameron v Cole [1944] HCA 5, stated at 294 (C-D):

"'... It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside (Craig v Kanssen [1943] KB 256 at 262). In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial ....'

This passage was cited with approval by Gibbs J in Taylor v Taylor (1979) 143 CLR 1 at 6 and 7. Gibbs J added (at 8):

'It is clear that the majority of the Court in Cameron v Cole accepted that a court, whether superior or inferior, has inherent power to set aside an order made against a person who did not have a reasonable opportunity to appear and present his case.'"

1. The reason RMS has sought to reopen the appeal is that a relevant authority, that of Tillman had not been considered.

1. While no written submission was made by RMS that if this Court made a decision in relation to s 87(4) the proceedings should be remitted to the Local Court for determination of s 87(2) and (3), I accept that counsel made that submission orally during the hearing of the appeal.

1. RMS submitted that neither RMS nor Western Freight made submissions about the s 87(2) and (3) issues. I disagree. Western Freight did so at paragraph [40] of its submissions as follows:

"In order for the Court to be satisfied that the defendant had taken reasonable steps, where the truck was not in the custody and control of the employee at all material times (s 87(4)), it need not 1) consider the ascertainment of the mass at the start of the journey during which the contravention occurred, nor 2) be satisfied that the load was weighed or that there was sufficient and reliable evidence in the possession of the driver from which the weight could be calculated. Nevertheless, these matters were explored in evidence and submitted upon at the hearing by Western Freight."

1. While Tillman had not been referred to in written submissions by RMS, I accept that RMS may not have referred this Court to Tillman in oral submissions as I indicated that I would remit issues raised by s 87(2) and (3) to the Magistrate, if I decided that they had to be determined. While this Court has inherent jurisdiction, I decline to exercise it. My reasons are firstly, this power should be exercised with great caution; secondly, RMS did not bring Tillman to the Magistrate's attention which meant that his Honour did not consider it; thirdly, had Tillman been put before the Magistrate, it would have been considered by this Court on appeal; and finally, Tillman was the second relevant authority that RMS had failed to draw to the Magistrate's attention.

Section 87 defence, my findings and Tillman

1. If I am wrong and this Court's inherent jurisdiction should have been exercised to reopen the hearing, I shall consider whether the s 87(2) and (3) defence should be remitted to the Magistrate to be dealt with according to law.

1. For ease of reference I shall once again reproduce s 87 of the Road Transport (General) Act 2005. It reads 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) f 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."

1. It was submitted by RMS that my reasons for judgment do not appear to address the issue and RMS has not been heard as to whether the s 87(2) and (3) issues should be determined in favour of Western Freight.

1. Western Freight submitted that this Court was specifically empowered to make the decision in the way that it did and was entitled to come to the decision it came to. It was submitted that the grounds upon which this Court found the s 87 test was satisfied were before this Court and were also available to Magistrate Day at first instance.

1. On appeal after having heard the submissions of each party, I considered the legislation pursuant to which the charge had been laid, and the statutory defences available. The transcript of evidence of the proceedings before the Magistrate was before me. I decided that the Magistrate was correct in finding that the statutory defence in s 87, the reasonable steps defence, had been made out despite the Magistrate's incorrect view as to the timing of the relevant custody and control of the vehicle.

1. RMS submitted that this Court can only determine a question of law alone and it is not permitted to indulge in fact finding.

1. Western Freight submitted that RMS has overlooked the effect of s 65 of the Crimes (Appeal and Review) Act and that in my judgment, I specifically considered the grounds available to the Magistrate to be determined were s 87(2) and (3).

1. Section 65 relevantly reads:

"65 Appeal not to succeed on narrow technical grounds

(1) A conviction, order or sentence is not to be set aside on an appeal merely because of:

(a) an omission or mistake in the form of the conviction or order, or

(b) an error in law in the order or sentence,

if it appears to the appeal court that there were sufficient grounds before the Local Court to have authorised a conviction, order or sentence free from the omission, mistake or error.

..."

1. I accept that had there been no material before the Magistrate relevant to these matters, then this Court could not have determined the defence as having been made out. However, if there was relevant uncontested evidence or relevant factual findings then this Court can properly redetermine the matter taking that evidence into account.

1. RMS submitted that the requirements of those provisions of s 87(2) and (3) have not been satisfied. RMS submitted that the offence charged was of being overweight on a particular axle and the evidence was that the weight on that axle had not been ascertained. Western Freight, however, submits that the weight on the axle had been ascertained.

1. So far as s 87 is concerned, in my earlier judgment Western Freight Management Pty Ltd v Roads and Maritime Services, New South Wales [2013] NSWSC 260, I stated at [60] - [65]:

"60 In my view, Western Freight has not satisfied the Court that at 'all material times', Western Freight through its employee Mr Nathan did not have custody or control of the vehicle concerned. Thus, it is necessary to consider the requirements of s 87(2) and (3).

61 Under s 87(2), the Court must be 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.

62 It was common ground in the hearing before me that Mr Nathan was given instructions as to how the mantle was to be loaded. He was also given a manifest which instructed him to pick up a 4.75 tonne mantle from SWP and some other cargo from Westrac. I am satisfied that Western Freight took all reasonable steps to prevent the contravention pursuant to s 87(2).

63 Under s 87(3), the Court must be satisfied that the defendant took all reasonable steps to ascertain the mass of the load either by (a) the load had been weighed or (b) the driver of the vehicle was in possession of sufficient or reasonable evidence from which that weight was calculated.

64 Mr Nathan was provided with a manifest which stated the weight of the mantle. He was also provided with a consignment note by SWP which stated the weight of the mantle. He also had consignment notes for the other cargo which weighed approximately 3 tonnes (Ex 3). I am satisfied that Mr Nathan was in possession, when he commenced his return journey, of sufficient or reasonable evidence from which to calculate the weight of his cargo.

65 As the requirements of s 87(2) and (3) have been satisfied, I find that Western Freight has made out a reasonable steps defence pursuant to s 87(1) for an offence under s 56 of the Road Transport (General) Act. The result is that although the magistrate erred in deciding that the s 92 defence was made out, he was correct in deciding in the alternate that the s 87 defence was made out. The result is that his decision to dismiss the charge was correct. The result is that Roads and Maritime Services appeal is dismissed."

1. It should be noted that in my judgment at [63] reference was made only to the driver being in possession of sufficient or reasonable evidence from which the weight is calculated. Section 87(3) states that the reasonable steps defence is satisfied if either the defendant, or the driver, is in possession of reasonable evidence. The driver Mr Nathan's evidence on this topic does not establish the reasonable steps defence.

1. RMS has now drawn this Court's attention to Tillman, Dowd J stated at [1] - [7], [12] - [14]:

"1 ... This summons is an appeal from a determination of a Local Court Magistrate at Newcastle on 1 September 2000, seeking that the decision to dismiss the information be overturned; an order that the matter be remitted to the Magistrate to be determined according to law; and an order as to costs.

2 The statement of grounds in support of the appeal sets out that the plaintiff issued a summons against the defendant company on 15 November 1999, alleging that the defendant, being the registered owner of a vehicle, did not comply with the condition of the notice or permit under which the vehicle was operating, as required by the Road Transport (Mass Loading and Access) Regulation 1996.

3 There was no Issue that the over-loading, as alleged by the plaintiff which particularly related to the load on two axles, those being axles 2 and 3 where the permitted load was 18 tonnes, the weight actually recorded in respect of each axle being 21.82, making an overload on each axle of 3.82 tonnes.

4 The matter was defended on the basis that the offence could not have been avoided by any reasonable efforts on the part of the defendant. The statement of grounds in support of the appeal states that His Worship held that the defendant had proven that the offence could not have been avoided by any reasonable efforts, and dismissed the information. His Worship's actual finding was that he did not consider that it was a matter in which the prosecution had proved the offence being committed, and in those circumstances dismissed the information.

5 The appellant's contention is that His Worship erred in law and failed to apply s235(5) of the Roads Act 1993 ('the Act'). It was further contended that in finding that the defendant had proven that the offence could not have been avoided by any reasonable efforts, His Worship based his decision on the facts inferred by the court that there was no evidence to support such an inference. It was further submitted that the facts inferred by the Magistrate and supported by the evidence were incapable of justifying the findings made.

6 The case before me was that this appeal, which is brought pursuant to s104(2) of the Justices Act 190[2], was in respect of an information alleging a breach of reg 36 of the Road Transport (Mass Loading and Access) Regulation 1996, in that the defendant did not comply with the condition on the notice or permit issued under the regulations. The particulars provided stipulated that the condition was, as I have indicated, an excess axle mass on a load carried on the Hume Highway at Marulan on 18 September 1999.

7 The breach report was admitted in evidence and was not disputed. The RTA indivisible mass/over dimension permit number was tendered. A condition of that permit was that the relevant axle should be loaded to a maximum of 18 tonnes, and that the overall gross axle weight was not to exceed 75 tonnes. The subject information laid related to the overloading of a particular axle, not the overall weight. Regulation 36(1) creates an offence for breach of the condition of the permit."

1. I interpose here to say that his Honour then referred to s 235(4) and (5) of the Roads Act 1993 which is substantially the same as s 87(2) and (3) of the Road Transport (General) Act 2005.

1. Dowd J at [18], [20], and [21] continued:

"18 The defence that is permitted in my view by ss(4), permits a defence in respect of the whole load if the contravention relates to the whole load but requires in respect of a contravention relating to part of the vehicle, that it is required that the load of the part of the vehicle be ascertained at the start of the journey during which the contravention occurred.

...

20 The contemplation of s 235(5) of the Act is that you either weigh the vehicle and weigh the load on the particular axle, or you calculate that weight on that particular axis. It is not necessary to actually weigh, if you have information and make the necessary calculations. However you must make the calculation. This, although it carries a civil onus to raise the offence, nevertheless requires that actions contemplated in the defence set out in s 235(3), (4) and (5) of the Act are actually carried out.

21 In this particular case, there is no evidence that the vehicle was weighed nor specifically was there evidence of an actual calculation done, but the section requires that if there is no weighing, that an actual calculation must be done and clearly in this case, that calculation was not carried out because the weight on the axle was exceeded. It would make an absurdity of the section if the section permitted a gross overloading of a particular axle in excess of a permit on that axle, if in fact it was simply necessary to weigh the total vehicle and its load, or calculate that total weight." (My emphasis added)

1. Western Freight submitted there was evidence given before the Magistrate as to the calculation of weight on the axle that was found to be overloaded. Magistrate Day, at T45.47-50 and T46.1-5, made the following findings:

"...Evidence was given by Mr Ali known as Shane Ali - he is known as Sahid Ali. Mr Ali gave very clear evidence of his experience in the employment of the company which he has recently left but he started as a driver - but at the relevant time, was the operations manager. His evidence was that he had on many occasions driven the particular route, carrying the same freight - that is to say an object called a mantel which forms part of the crusher or crushers used in hard rock mining operations in the central west - either by New Crest at Arcadia Valley Operations - south Orange - or the North Parkes Mine which is north of Parkes."

1. Further, at T46.27-38, his Honour continued:

"The evidence of the driver - Mr Nathan - was that he received the instructions of Mr Ali as to where the mantel was to be loaded just slightly forward of the first drive axel. The particular truck - freight liner was a rigid truck with two drive axels. So there was a bogey at the rear there being A, B and C axels. The instruction was plain and conveyed by Mr Ali on Mr Nathan's evidence that it was to be loaded immediately to the front of B axel and fastened with chains. Mr Ali's evidence - just to go back to his evidence was it to be chained either forward and back or criss-crossed. I understand what he meant by that. I have seen many trucks in my travels throughout New South Wales over many years where heavy loads are chained down to the truck. I understand what that evidence means. Mr Nathan's evidence was plain that he was clearly instructed how it was to be loaded - where it was to be loaded - how the load was to be fastened."

1. In my judgment dated 28 March 2013, reference was made to the Magistrate's findings at [19] and [20]. They read:

"19 Prior to leaving the depot, he was specifically instructed by Mr Ali, the operations manager, where the mantle should be loaded on the truck. Mr Ali was aware of the weight in tonnes of the mantle because of information he had to hand, and because of his experience having driven and carried out that particular task on previous occasions, transporting identical objects. The mantle is part of the rock crushing machinery being used by Hard Rock Mines. Further, the position of the load ordered, and the manner of fixing the load to the truck, was specified or ordered. That was the scope of the employment on that day, to go to SWP and Westrac, load the heavy item in accordance with the specific directions of Mr Ali and return.

20 Mr Nathan was not in charge of the actual loading, or of his vehicle when it was loaded, because that was part of the loading process undertaken by SWP. That loading was incorrect and Mr Nathan attempted to rectify that but was without a crane operator. Also, there was no one in the operating or yard side of the business available to assist him to rectify the load. The only people he could speak to were office staff and all they did was to give him documentation. He then chose to drive the truck contrary to the specific directions or orders given to him by Mr Ali and it is that driving that constitutes the offence."

1. Mr Ali, the defendant's operations manager in the employ of Western Freight at the time, also gave the following uncontested evidence before the Magistrate (T6.36 - T8.50):

"Q. Casting your mind back to 6 January, do you remember discussing anything with William Nathan before he left on his run for the day?

A. Yes, I do.

Q. What was that?

A. I was explaining to him what he was picking up - where he was picking it up from and how I wanted the item loaded on that truck.

Q. What is your recollection of those things - what specifically was he to pick up and so on?

A. Well, I actually had the pick up request in my hand and I explained to him what he was picking up - the mantel - 4 and a half tonne and we were standing next to the truck that he was driving. So we both walked over to the truck. It was only a couple of steps and I pointed to him - I pointed to the truck and said that: 'Load the mantel here,' which was on the first drive axel. So all the

weight was still on the first drive axel and chained in a particular matter which would restrain the load from shifting.

...

Q. As operations manager, did you have any practice in terms of loading a heavy item such as the mantel?

A. Yes.

Q. What was that?

A. My driving history?

Q. No - no, the practices that you adopted in loading these heavy items?

A. My practice is that if you're driving a rigid from the headboard within the first two.

...

A. Yeah, within the first 2.4 metres from the headboard, I do not load over a tonne.

Q. Why is that?

A. Well, to keep most of the axel weight down - within the legal limit anyway. So within the first 2.4 metres not over a tonne which I explained to William that day - the driver that day, and I have never had an issue working on that principle.

Q. Where precisely did you tell him to load the mantel again?

A. On the first drive axle."

1. In Tillman, as his Honour observed in [19], "It is not necessary to actually weigh, if you have information and make the necessary calculations". Mr Ali clearly was aware of how much the mantle weighed and that it was necessary to load it not less than 2.4 metres from the headboard so as to keep the weight over the axle within the legal limit. Mr Ali had made the "necessary calculations" in accordance with s 87(3) and 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 (s 87(2)).

1. It was common ground in the hearing before me that Mr Nathan was given instructions by his employer as to how the mantle was to be loaded and had documentation that stated the weight of the mantle before he started his journey. He was also aware that the mantle was not in the correct position on the truck as it had been loaded too close to the headboard, contrary to Mr Ali's instructions (T26.32-50).

1. It is my view that my earlier orders should not be amended. The reasons are firstly, because had the matter been properly argued by RMS in the Local Court there would be no need for the exercise of inherent power; and secondly, there is uncontested evidence that Mr Ali ascertained the mass of the load at the start of the journey and was in possession of sufficient and reliable evidence to calculate the weight of the load on the relevant axle. As provided for in s 65(1) of the Crimes (Appeal and Review) Act, this Court can properly determine this matter, as there were sufficient grounds before the Local Court to authorise an order that Western Freight had satisfied the reasonable steps defence under s 87 and Tillman. Consequently, there is no utility in remitting the matter back to the Local Court as to do so would only incur further costs to Western Freight.

1. The result is that the notice of motion filed by RMS on 8 April 2013 is dismissed.

1. Costs are discretionary. Costs usually follow the event. RMS is to pay the costs of Western Freight of this motion.

The Court orders that:

(1) Roads and Maritime Services' notice of motion filed 8 April 2013 is dismissed.

(2) Roads and Maritime Services is to pay the costs of this motion.

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Decision last updated: 04 July 2013