Legal experts warn that landmark ruling stands but is no catch-all solution if facts of cases won’t bear it
By Rob McKay | November 29, 2013
Western Freight Management’s failed bid to use the Kirk precedent to defend a chain of responsibility case may not mean the Kirk case has lost its power, but lawyers believe the limitations of its use are now more defined.
The 2010 High Court ruling in the case of Kirk v Industrial Court of NSW has been seen as curtailing the arbitrary use of administrative power over workplace safety prosecution that had taken hold in New South Wales.
However, when lawyers sought to use the ruling to defend Western Freight Management in a local court and then before a single judge in the NSW Supreme Court and failed on both attempts, the power of Kirk came into question.
Two experienced transport lawyers ATN has contacted believe the Western Freight Management Pty Limited v Roads & Maritime Services NSW ruling turns on the facts of the case and the ‘reasonable steps’ provision of the Road Transport (Vehicle & Driver Management) Act 2005 (NSW), which covers mass limit defences.
Colin Biggers & Paisley Partner Andrew Tulloch also believes careful focus on the legislation rather than possible shortcomings of the prosecution’s approach was a likely weakness.
Holding Redlich Partner Michael Selinger says that, despite the case being appealed again, it was important to note the “strict requirements of the Act” and he also highlights the importance of companies needing to be able to demonstrate that reasonable steps were taken to avoid breaching the law.
Check out the January edition of ATN for the full story on the Western Freight Management case. Click here to secure your copy.
