Citation: Endycott (Roads and Maritime Services) v Bulga Coal Management Pty Ltd [2012] NSWSC 1124
Court: Supreme Court of NSW
Date: 20 September 2012
Judge(s): Grove AJ
Background
A mining company hired a large elevated work platform (EWP) from a specialist hire company for two weeks in early 2009. At the end of the hire period, the hire company engaged a transport carrier to collect the EWP from the mine site and return it to the hire company's yard. During the return journey, the carrier's driver transported the EWP with its boom angled upward, causing the load to exceed the permitted height of five metres. The EWP struck and demolished a pedestrian overbridge crossing the New England Highway.
Prosecutions were brought against multiple parties under the chain-of-responsibility provisions of the Road Transport (General) Act 2005 (NSW). The hire company pleaded guilty as consignee; the carrying company pleaded guilty as operator. The prosecution then pursued the mining company on the basis that it was either the "consignor" or the "loader" of the EWP, and also sought a road compensation order for the bridge damage.
The mining company contested both charges. The concurrent proceedings raised questions about how the statutory definitions of "consignor" and "loader" applied to a hirer of equipment that was being collected by a third-party carrier.
Legal Issues
- Whether the mining company, as the hirer of the EWP, qualified as a "consignor" of goods under the Act when it had not engaged the carrier and did not originate the transport arrangement
- Whether an employee of the mining company who observed the loading process on the mine site was acting as a "supervisor" of loading, thereby rendering the mining company liable as a "loader"
- Whether costs should be awarded against the prosecutor for initiating proceedings without reasonable cause or for failing to investigate adequately
- Whether the mining company was entitled to costs specifically referable to the road compensation order proceedings, those proceedings being governed by civil costs principles
Decision
Issue 1: Consignor liability
The court found that the mining company was not the "consignor" of the EWP. The hire company, which engaged the carrier to collect its own equipment, was both consignor and consignee in this arrangement. The mining company had not engaged the carrier, was not named in transport documentation as consignor, and did not have possession or control of the EWP for the purpose of initiating the transport. The statutory definition of "consignor" did not extend to a hirer from whose premises goods happen to be collected.
Issue 2: Loader liability
The court also rejected the prosecution's alternative case that the mining company was a "loader." A Bulga employee, Mr Quinnell, had escorted the driver and observed the loading of the EWP onto the trailer, but his involvement went no further than passive observation and routine mine-site security escort. The court was satisfied that Mr Quinnell's presence and any incidental conversation did not amount to supervising, managing, or controlling the loading activity within the meaning of the Act. The driver loaded the EWP independently using its hydraulic controls, and no direction or instruction from the mine site employee affected how the load was secured or positioned.
Issue 3: General costs against the prosecutor
The mining company applied for costs under s 257D of the Criminal Procedure Act 1986, arguing either that proceedings were initiated without reasonable cause or that the prosecutor had unreasonably failed to investigate. The court declined both grounds. The statutory interpretation questions were genuinely debatable, and the fact that the defendant ultimately succeeded did not demonstrate an absence of reasonable cause at the outset. The prosecutor had also used available powers to gather information before commencing proceedings, so unreasonable failure to investigate was not established. The onus under s 257D rests on the applicant, and the mining company did not discharge it.
Issue 4: Costs referable to the compensation order
The court drew a distinction between the penalty proceedings and the road compensation order proceedings. Section 214 of the Act provides that civil costs principles apply to compensation order proceedings. Applying those principles, costs follow the event, and the mining company succeeded. Accordingly, the court ordered the prosecutor to pay the costs of the litigation referable to the compensation order application, to be agreed or assessed.
Orders Made
- Summons dismissed.
- The prosecutor is to pay to the defendant the costs of the litigation referable to the proceedings for a road compensation order, such amount to be agreed or assessed in accordance with the relevant provisions of the Legal Profession Act 2004.
Key Takeaways
- A hirer of equipment does not automatically become the "consignor" of that equipment under the Road Transport (General) Act 2005 simply because it is collected from the hirer's premises; the consignor is the party who engages the carrier or otherwise originates the road transport.
- Passive observation of a loading process by an employee, even on a secured site, does not constitute supervision, management, or control of loading sufficient to render an employer liable as a "loader" under the chain-of-responsibility provisions.
- Under s 257D of the Criminal Procedure Act 1986, the onus falls on the defendant seeking costs to demonstrate that proceedings were commenced without reasonable cause or that investigation was unreasonably inadequate; a successful outcome alone does not satisfy that onus.
- Where a summons under the Road Transport (General) Act 2005 seeks both a penalty and a road compensation order, s 214 of that Act applies civil costs principles to the compensation order component, meaning costs can follow the event on that aspect even when no general costs order is made on the penalty proceedings.
- Genuinely contested questions of statutory interpretation in complex legislation can provide sufficient basis for a prosecution to have been reasonably initiated, even where the defendant ultimately succeeds at hearing.
Legislation and Cases Referenced
Legislation
- Carriage of Goods by Land (Carriers' Liabilities) Act 1967 (Qld)
- Criminal Procedure Act 1986
- Legal Profession Act 2004
- Road Transport (General) Act 2005
Cases
- Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569
- Penn Elastic Company Pty Ltd v Sadleirs Transport Co (Vic) Pty Ltd [1976] HCA 28; (1976) 136 CLR 28