Court dismisses RTA case against Graincorp and says department's 'failure' might have opened the door to more overloading breaches
By Brad Gardner | December 9, 2010
The NSW Roads and Traffic Authority has lost another fight in its long-running stoush with Graincorp, while a court has found the department might have encouraged overloading offences.
The NSW Court of Appeal has rejected the RTA’s latest attempt to hold Graincorp accountable for a litany of overloading breaches during the 2005 harvest season.
Instead, the RTA was told it should have pursued the consignors and the truck drivers because Graincorp’s ‘September policy’ kept data on offenders and provided the information to the government department upon request.
“The primary offenders were the consignors and drivers. The RTA had a cast iron case against them based on documents generated by GC [Graincorp] under its September policy, but they were never prosecuted,” the judgement of Acting Justice Ken Handley and judges Roger Giles and Ruth McColl says.
“The inference is open that news of the RTA’s failure to prosecute the primary offenders, or take any interest in the documentation being generated by GC, got around as the harvest moved south and encouraged growers and drivers in the Central West to ignore the new legislation.”
The RTA previously tried to prosecute Graincorp for 332 breaches, but used the Court of Appeal to seek penalties for 29 offences involving weighbridge operators.
According to the RTA, the operators must have become aware of overloading offences because warnings given to drivers and operators did not deter them from committing subsequent overloading breaches.
However, Giles, McColl and Handley found there was not enough evidence to support the RTA’s claim.
“There are no findings that the same weighbridge operator weighed the vehicle in and out. There was no evidence about the length of the operators’ shifts and no finding that the information about earlier overloads was available on screen,” their judgement reads.
“The RTA did not prove that any of the weighbridge operators accepted any overload when consciously aware that one or more overloads had previously been accepted from that vehicle.”
The court ruled that there was no evidence showing the operators that committed the breaches were consciously aware vehicles were repeatedly overloaded.
“This court cannot draw inferences, however clear, or make other findings on the criminal standard that might be open,” the judgement reads.
“Without the necessary findings the new case, insofar as it depends on the actual knowledge of operators when accepting a subsequent overload, is not available to the RTA.”
Chain of responsibility legislation was introduced in 2005 holding all parties in the supply chain accountable for overloading offences.
Although Graincorp committed 332 offences, the court found that the number only represented three breaches per depot operated by the company during the harvest.
In the original case, Graincorp was cleared of negligence and was not ordered to pay more than $18 million in fines sought by the RTA.
Graincorp argued it was in a no-win situation because it could have been prosecuted for accepting overloaded trucks and prosecuted if it turned the vehicles away knowing they would be travelling on a public road in breach of the law.
The RTA argued Graincorp should have told the driver, operator and consignor about the first overloading offence and warned them that it would not under any circumstances accept future overloaded deliveries.
Graincorp believed that collecting data, issuing written warnings and providing information to the RTA upon request should have been a discouragement to overloading
Giles, McColl and Handley also rejected the RTA’s pursuit of 29 overloading offences because the matter had not first been dealt with in a lower court. However, the RTA still has the right to continue its bid to prosecute Graincorp.
“In these circumstances the appropriate course is to refuse the RTA leave to raise the new case. Because of the importance of the issues leave to appeal should otherwise be given,” the judgement says.
The RTA was ordered to pay Graincorp’s cost of the appeal. Similar to overloading offences, chain of responsibility legislation also applies to speeding and fatigue management.