Citation: Roads and Maritime Services v Troy Heavy Haulage Pty Ltd [2013] NSWLC 21
Court: Local Court of NSW
Date: 10 October 2013
Judge(s): Huntsman LCM
Background
The defendant, a heavy haulage operator, collected a shipping container at Botany after it cleared quarantine. The container held five forklift machines, forks and masts. One of the operator's drivers was directed to collect the load after staff at the operator's office noted the container's weight and size.
On 21 September 2012, Roads and Maritime Services inspectors stopped the vehicle and recorded three alleged breaches: the quad axle group mass measured 32.15 tonnes against a 20-tonne limit (a 60.75% excess), the vehicle length measured 21.05 metres against a 19-metre limit (an excess of 1.05 metres), and the method used to restrain the load inside the container was assessed as inappropriate.
The operator contested all three charges. It argued that a Class 1 permit and Class 1 Notice exempted it from the mass and dimension requirements, that the shipping container qualified as a "large indivisible item" under the relevant legislation, and that it had taken reasonable steps by relying on a container weight declaration provided by a third party.
Legal Issues
- Whether the Class 1 permit and Class 1 Notice exempted the operator from the mass and dimension requirements that would otherwise apply.
- Whether the shipping container constituted a "large indivisible item" for the purposes of those exemptions.
- Whether the operator could rely on the "reasonable steps defence" under sections 87 and 89 of the Road Transport (General) Act 2005, based on its reliance on the container weight declaration.
- Whether each breach was correctly categorised as a "severe risk" breach, or at a lower level of risk.
- Whether the method of load restraint was inappropriate, and at what risk level any breach should be assessed.
Decision
Issue 1: Permits, Notices, and the "Large Indivisible Item" Question
The court found that the Class 1 permit and Notice did not exempt the operator from the applicable requirements. The Notice applied only to the carriage of a "large indivisible item," and the court concluded that a shipping container designed for multi-modal transport did not meet that description. Because the exemption did not apply, the operator remained bound by the standard mass and dimension limits.
Issue 2: Mass Breach
The quad axle group mass of 32.15 tonnes exceeded the 20-tonne limit by 12.15 tonnes, representing a 60.75% excess. Under section 34 of the Act, a severe risk breach of a mass requirement is established where the mass reaches or exceeds 120% of the permissible maximum (that is, an excess of 20% or more). At 60.75% over the limit, the breach plainly satisfied that threshold. The court found the mass offence proved as a severe risk breach.
Issue 3: Dimension Breach
The vehicle length of 21.05 metres exceeded the 19-metre limit by 1.05 metres. Section 38 of the Act sets the threshold for a severe risk dimension breach at 0.60 metres over the maximum permissible length. The excess of 1.05 metres cleared that threshold, and the court found the dimension offence proved as a severe risk breach.
Issue 4: Reasonable Steps Defence
The operator argued it had taken reasonable steps by relying on a container weight declaration from a third party. The court considered the defence but found it was not established on the evidence. The operator bore an evidentiary burden in relation to this defence, and the material presented did not discharge it sufficiently to excuse the mass or dimension breaches.
Issue 5: Load Restraint
The court found that the method of load restraint was inappropriate and that the load had shifted inside the container, which was evidenced in part by a broken tie-wire visible in photographs. However, the court was not satisfied on the evidence that there was an appreciable risk to public safety, the environment or road infrastructure. There was no evidence the container doors were insecure or that the load was likely to spill out or cause the container to tip. Accordingly, the court assessed the load restraint breach as a substantial risk breach rather than a severe risk breach, applying section 61 of the Act to substitute the lower category. The load restraint offence was proved at the substantial risk level.
Orders Made
No orders were made in this decision.
Key Takeaways
- A shipping container designed for multi-modal transport does not qualify as a "large indivisible item" for the purposes of Class 1 permit and Notice exemptions under the Road Transport (Mass, Loading and Access) Regulation 2005, meaning operators cannot rely on those exemptions to carry overloaded or overlength containers.
- Reliance on a container weight declaration provided by a third party does not automatically satisfy the reasonable steps defence under sections 87 and 89 of the Road Transport (General) Act 2005; the operator must discharge an evidentiary burden to establish the defence.
- Under section 34 of the Act, a severe risk mass breach arises where the actual mass reaches or exceeds 120% of the permissible maximum. A 60.75% excess over the axle group limit comfortably satisfied this threshold.
- For load restraint breaches, the distinction between substantial and severe risk turns on evidence of an appreciable risk to public safety, the environment or road infrastructure. Where evidence shows load shifting but does not demonstrate a realistic prospect of the load spilling or causing a structural hazard, the lower substantial risk category applies.
- Section 61 of the Act permits a court to find a lesser category of breach proved where the higher category alleged by the prosecution has not been established on the evidence.
Legislation and Cases Referenced
Legislation
- Roads Act 1993
- Road Transport (General) Act 2005
- Road Transport (Mass, Loading and Access) Regulation 2005
- Road Transport (Vehicle Registration) Regulation 2007
Cases
- John Tilman v Daromin Engineering Pty Ltd (NSWSC, unreported, Dowd J, 6/11/2000)