Court throws out appeal against ruling absolving Western Freight Management of overloading and orders RMS to pay the company's costs
By Brad Gardner | July 8, 2013
The Roads and Maritime Services (RMS) has struck out for a third time in its bid to hold Western Freight Management liable for an overloading offence last year.
The Supreme Court again threw out the RMS’s appeal against a ruling that found Western Freight took reasonable steps to prevent one of its trucks exceeding New South Wales’s vehicle mass limits.
Associate Justice Joanne Harrison rejected the road authority’s request for her previous orders to be set aside and for the case to be reheard again in a local court.
The RMS prosecuted Western Freight after inspectors discovered the front axle of one of its trucks exceeded the weight limit by 27 percent. The rig was carrying a 4.75 tonne mantle
Western Freight successfully argued it took reasonable steps to avoid a breach because it issued instructions to its driver on how to correctly load the mantle. Specialised Welding Products loaded it incorrectly and the driver left with it after he could not find someone to fix the mistake.
The RMS unsuccessfully argued the provisions governing the reasonable steps defence had not been satisfied.
“RMS submitted that the offence charged was of being overweight on a particular axle and the evidence was that the weight on that axle had not been ascertained,” Harrison’s written judgment says.
However, the court relied on evidence from Western Freight’s then operations manager, Shane Ali, who Harrison says made the necessary calculations to find out the weight of the mantle before it was loaded.
“Mr Ali clearly was aware of how much the mantle weighed and that it was necessary to load it not less than 2.4 metres from the headboard so as to keep the weight over the axle within the legal limit,” Harrison says.
“It is my view that my earlier orders should not be amended…there is uncontested evidence that Mr Ali ascertained the mass of the load at the start of the journey and was in possession of sufficient and reliable evidence to calculate the weight of the load on the relevant axle.”
Harrison says Western Freight’s truck driver had documentation stating the weight of the mantle and that he was aware it had been loaded too close to the headboard.
The RMS’s latest action marked the third time it has dragged Western Freight to court. The company was cleared in the initial case and the subsequent appeal.
Harrison ordered the RMS to pay Western Freight’s costs.
