Harris Refrigerated loses loading breach appeal

Trucking operator and driver lose appeal against loading breach fine despite the judge sympathising with them

By Brad Gardner | February 9, 2010

A trucking operator and its driver will be forced to pay almost $20,000 in fines for a loading breach, despite a court sympathising with the offenders.

The Supreme Court upheld a previous ruling that convicted and fined South Australian-based Harris Refrigerated Transport $15,000 and fined Steven John Secker $3,000 for committing a severe breach under regulations that govern the amount a vehicle can legally carry.

The company’s B-triple breached the prescribed 42.5 tonnes limit by more than 40 tonnes and exceeded the acceptable length by more than 14 metres.

Lawyers for Harris argued information about whether special permits are needed to use a B-triple could not be found, while incorrect inferences from bureaucrats led the operator to believe it did not need a permit.

"I have considerable sympathy for the appellants in this case who, understandably, had difficulty in ascertaining the provisions with which they were required to comply," Supreme Court Justice Robyn Layton says.

And with the offenders facing potential fines up to $207,500 and $42,500 respectively, Layton raised concerns over the impact of mass management laws.

"The legislative regime which deals with the categories or risk breaches is strict," Layton says.

The company and driver argued the magistrate should have reduced the ruling from a severe breach to a minor breach because the ability of the prime mover to carry 84.5 tonnes meant the load was not unsafe and they only committed a technical breach.

"The appellants submitted that, given the breach was merely technical, the magistrate failed to exercise his discretion…to reclassify what was alleged to be a ‘severe risk breach’ as a ‘minor risk breach’," Layton says.

"This reclassification would have substantially reduced the maximum fine for the offences."

However Layton dismissed the argument because the regulations dictate that a court cannot mitigate a penalty or reclassify a breach.

"There was no error by the magistrate. I therefore dismiss the appeal," Layton says.

Representatives for the trucking operator say it eventually found the relevant information on the Department of Transport, Energy and Infrastructure (DTEI) website and obtained a permit after the offence.

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