Another appeal possible against decision to dismiss hundreds of overloading charges against Graincorp
By Brad Gardner | November 18, 2009
New South Wales has not ruled out appealing against a court’s decision to dismiss more than 300 overloading allegations against Graincorp.
The Supreme Court last week ruled in favour of the consignor, which faced fines of $18.23 million if found guilty of committing 332 alleged loading breaches in 2005.
Supreme Court Judge Peter Hall cleared Graincorp of any wrongdoing which means the RTA must now apply to the Supreme Court of Appeal if it wishes to take its action against Graincorp further.
“The RTA is considering the Supreme Court decision before deciding on any response,” a spokesperson for the department says.
The spokesperson has also rejected any claims the court ruling limits the RTA from pursuing companies which accept multiple deliveries from overloaded trucks.
“The Supreme Court’s decision related to the particular facts of the matter before it. The decision does not prevent the prosecution of other consignees in appropriate cases,” the spokesperson says.
During the case, the RTA criticised Graincorp’s policy of warning drivers of overloaded trucks rather than refusing them access.
But Hall ruled that Graincorp had acted appropriately because it would have exposed itself to possible breaches if it turned the vehicles away.
“The likely result of the defendant refusing to accept a load from a vehicle in breach of a mass requirement, the defendant argued, would have been to force drivers of overloaded vehicles back onto the road thereby exposing the defendant to liability under…the [Road Transport (General)] Act,” Hall says.
Lawyers for Graincorp questioned how a parliament could pass a law which, if complied with, left a company exposed to breaking another law.
The RTA has been ordered to pay all court costs but the spokesperson says a figure has not been settled.
’REASONABLE STEPS’ DEFINITION
The Supreme Court also ruled that Graincorp’s policy of written warnings, data collection and providing information to the RTA on request was an acceptable approach to averting breaches.
Furthermore, Hall says even if these steps fail to stop breaches it does not mean a company is guilty.
“A person who is subject to a particular duty of care may be required to take certain protective or precautionary steps to avert or minimise the risk of certain events occurring,” Hall says.
“The fact that such measures may not ultimately prove to be effective does not, of itself, establish negligence.”
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