JWS Consulting is a division of Johnson Winter & Slattery providing commercial consulting services.
Johnson Winter & Slattery is engaged by major businesses, investment funds and government agencies as legal counsel on important transactions and disputes throughout Australia and surrounding regions.
Our firm provides a diverse range of opportunities for talented, enthusiastic people to develop brilliant legal careers.
Our news and media coverage including major transaction announcements, practitioner appointments and team expansions.
We support a number of community initiatives and not for profit organisations across Australia through pro bono legal work and charitable donations.
We support a number of organisations through sponsorships.
Scott's Transport Industries Pty Ltd and Anor v Road and Maritime Services
The impact and reach of chain of responsibility laws in the transport industry should not be underestimated. While the defence of having taken "reasonable steps" to ensure compliance with road transport laws is available, it may not be that easy to make it out.
The recent experience of Scott's Transport and its successful appeal should serve as a timely reminder that chain of responsibility legislation can have serious financial consequences, not only for those in the transport industry.
Although the appeal judgement represented a phenomenal saving for Scott's, the prosecution involved:
The time to determine whether reasonable steps have been taken is now - not when charges are laid.
In 2003 the Road Transport Reform (Compliance and Enforcement) Bill was introduced by the Commonwealth. The Bill introduced the "chain of responsibility" concept and was intended to provide a nationally consistent framework to improve compliance outcomes for road safety, infrastructure and the environment.
On 30 September 2005 the "chain of responsibility" legislation took effect in New South Wales. During the second reading speech of the Bill for the Road Transport (General) Act in the Legislative Council on 6 April 2005, Mr Costa, the Minister for Roads, said:
"Under the new regulatory framework, those other parties in the transport chain who by their actions, inactions or demands put drivers and other road users at risk and gain unfair commercial advantages may also be committing an offence and be liable to substantial penalties. In practical terms, this means that it is essential that all parties to the chain of responsibility - consignors, packers, loaders, operators, drivers and in some cases consignees - need to be aware of the requirements of road transport law particularly relating to mass, dimension and load restraint. They also need to have active systems in place to manage these risks to minimise the chance of road transport laws being breached." (Hansard, Legislative Assembly, 6 April 2005 at 15050).
The result of the chain of responsibility provisions is that a range of parties can be held responsible for breaches of road transport laws including the owner of the trucks, and their clients, as well as the individuals who are involved in the management of those bodies. None of these parties needs to be aware of the actual offence in order to be made liable for it; nor does the driver need to be charged for another party in the "chain" to be prosecuted. The effect of the legislation - which exists in all states and territories - extends beyond the freight industry, into all major industries which utilise road transport (such as retail, construction, manufacturing and resources). In some states, including Victoria, the chain of responsibility concept has been extended to other means of transport such as bus and rail.
Although the chain of responsibility transport laws are now some years old (and have been re-enacted), Courts in NSW are only just starting to deal with them - with some surprising results.
Following a triple fatality involving a heavy vehicle on the Hume Highway in January 2012, NSW Roads and Maritime Services (RMS) launched "Operation Overland" in which they investigated and charged a number of trucking companies (and their directors and officers) with chain of responsibility offences relating to speeding offences and speed limited non-compliance offences. (Note: heavy vehicles in NSW are required to be speed limited to 100km/h and heavy vehicles travelling at more than 115km/h are deemed to be speed limiter non-compliant). In the majority of cases the trucking company was not aware of the incidents of speeding because no speeding fines had been issued to the drivers or the company.
One of the companies charged was Scott's Transport Industries, a family company operating out of Mt Gambier which has provided road transport services since 1952. In May 2012 Scott's was served with Court Attendance Notices which related to 165 instances of alleged speeding between August 2010 and March 2012. In that period Scott's vehicles had only received infringement notices for 15 of the 165 alleged incidents of speeding. The remainder were picked up by the audit described above.
The allegations were:
In essence, all the RMS had to prove was:
The following defences were available:
Because of the alleged operation of a tiered penalty regime for second and subsequent offences and according to the severity of the speeding, some of the speeding offences alleged against the company attracted maximum fines of $27,500 and the individuals, $11,000. Scott's alone faced a possible total maximum penalty of almost $2.5 million.
Scott's sought a brief of evidence as well as particulars of the "reasonable steps" which were alleged should have been taken. Particulars were sought pursuant to the High Court decision in Kirk v Industrial Court (NSW) (2009) 239 CLR 531 which involved a prosecution under s 15(1) of the Occupational Health and Safety Act 1983 (NSW) for failure to ensure the health, safety and welfare of employees. Section s 53 provided a defence if the person could prove that it was not reasonably practicable to comply with the provision or that the offence was due to causes over which it effectively had no control.
In that matter, the particulars of the offences provided did not identify what measures the Kirk company could have taken but did not take. A majority of the High Court found that, as a result, the Kirk company was denied the opportunity to properly put a defence under s 53 and the Industrial Court had made a jurisdictional error by proceeding without proper particulars. The convictions were quashed.
In the Scott's matter, the Local Court declined to order the RMS to provide to Scott's either a full brief or Kirk particulars, on the basis that failure to take "all reasonable steps" was a defence rather than an element of the offence. This part of the proceedings alone occupied more than a year from the time the charges were laid. Because Scott's was declined those particulars, it did not know what, in substance, it was alleged to have done wrong - namely, the "reasonable steps" it was alleged not to have taken.
Ultimately, Scott's pleaded guilty to all 165 offences relating to speeding and one speed limiter non-compliance offence. Two individuals pleaded guilty to a total of 32 charges relating to speeding. All charges against one director were dropped and another director was sentenced separately.
Scott's and the individuals were sentenced in the Local Court on 28 May 2014, more than two years after the charges were originally laid. The result was a total fine of $1,252,640 made up as follows:
These fines were far heavier than sentences which had been imposed within the previous 12 months on other trucking companies and their officers for comparable offences as part of Operation Overland. Scott's agreed to an order that it pay $100,000 in Court costs. The Magistrate ordered that 50% of the fines be paid to the RMS by way of a moiety.
Scott's and one of its directors (who was fined $85,800) appealed to the District Court against the severity of the sentences pursuant to section 11 of the Crimes (Appeal and Review) Act 2001. The Court was required to engage in a fresh exercise of its sentencing discretion without the need to find error. The appeal came before Judge Maiden on 22 - 24 September 2014. Judgment was given on 3 October.
In summary, the Judge:
The final result was that the Judge imposed no fines on the director and reduced the fines imposed on Scott's from approximately $1.2 million to about $85,000. In addition, he quashed the order for costs made in the Local Court and declined to grant any moiety to the RMS on the basis that there was no justification. The end result of the appeal was a total saving to Scott's of almost $1.16 million.
Importantly, the RMS's lawyers indicated (and Judge Maiden accepted) that the measures Scott's had put in place to prevent driver speeding since the speeding incidents had occurred were sufficient to satisfy the "all reasonable steps" defence. Accordingly, by complying with those measures, Scott's will have protection in the future against further prosecutions.
Be the first to receive the latest articles, news and publications.
Recent decisions show that the courts will go to significant lengths to adapt procedures to continue with trial and appellate hearings despite COVID-19 related disruptions.
On appeal from a preliminary question decided by Justice Rothman in Supreme Court of New South Wales defamation proceedings, the Court of Appeal has upheld the finding that media companies were...
The Court of Appeal has now in TFM Epping Land Pty Ltd v Decon Australia Pty Ltd  NSWCA 93 clarified that a non-compliant supporting statement by a head contractor under s13(7) of the...