An improvement notice (notice) is one of the avenues available to the National Heavy Vehicle regulator (instead of prosecution) under the Heavy Vehicle National Law (HVNL) when there is suspicion of a potential breach of law. A recent decision of the Queensland Civil and Administrative Tribunal (Tribunal) has provided insight into the process of issuing and revoking notices.
GrainCorp Operations Limited v Executive Director (Heavy Vehicles & Prosecutions) Department of Transport and Main Roads & Department of Transport and Main Roads (GAR167-20), considers what evidence is required in order to identify a contravention of primary and safety duties under the HVNL with consideration to what reasonably practicable alternatives are within the knowledge and availability to those owing such duties.
Between 27 March 2019 and 16 June 2019, six heavy vehicles loaded with grain at GrainCorp’s facilities were intercepted by DTMR Transport Inspectors and found loaded in excess of the permitted maximum on one or more axle groups. In response to the instances of (alleged) overloading, DTMR issued GrainCorp with a notice according to Division 5, Part 9.4 of the HVNL (Queensland) on 17 February 2020. GrainCorp applied to DTMR for internal review.
On 16 April 2020, the Executive Director (Heavy Vehicles & Prosecutions) for DTMR issued an Internal Review Decision in accordance with GrainCorp’s application (Review Decision).
The Review Decision provided that:
"GrainCorp, as the loading manager, has complete capacity to control, eliminate or minimise the risk posed by over mass heavy vehicles being operated on public roads. Drivers are liable under section 96 for driving a vehicle that is over the mass limit. They have a self-interest in controlling the mass, but they do not control the system in which they operate, hence the need for the chain of responsibility laws. As the problem is too much grain over the axle groups, and GrainCorp's weighbridges do not allow axle weight to be measured, ‘the only solution open is to expressly decrease the mass of grain being loaded on to each combination’. GrainCorp has not taken that reasonably practicable measure, so in the circumstances I believe it is likely that GrainCorp’s contravention of section 26H of the HVNL will’ continue."
DTMR further directed:
"To stop the contraventions from continuing ‘GrainCorp must implement a system that reduces the gross mass for each combination or single vehicle loaded by its Fisherman Island Terminal’ to adequately ensure that no axle mass groups are in excess of the permissible axle group mass limits that apply to them, pursuant to the Heavy Vehicle (Mass, Dimension and Loading) National Regulation. Given the total number of possible combinations, it is not reasonable to require GrainCorp to reduce the load by a pre-determined, fixed percentage or tonnage."
To regulate public safety and the impact on road infrastructure, the HVNL provides that each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party's transport activities relating to the vehicle (primary duty). That primary duty extends, so far as is reasonably practicable, to the party eliminating and minimising public risks, and ensuring that conduct does not directly or indirectly cause its drivers to contravene the HVNL.
As suggested above, the parameters and scope of the primary duty are informed by what is “reasonably practicable”. The HVNL defines reasonable practicable as being that which is, or was at a particular time, reasonably able to be done in relation to the duty, weighing up all relevant matters, including:
GrainCorp applied to QCAT (according to the Tribunal’s jurisdiction under the HVNL), to set aside the Review Decision and revoke the notice.
The review (conducted by way of rehearing), turned upon whether or not GrainCorp had done what was "reasonably practicable" to eliminate or minimise the safety risk in relation to the instances of overloading as identified by DTMR.
In determining whether GrainCorp had breached its primary duty under the HVNL, the Tribunal asked four questions:
1. What was the likelihood of a safety risk, or damage to road infrastructure, happening from the overloading of axle groups, and the harm that could result from the risk or damage?
While conceding the possibility that minor axle overloading might cause road damage, GrainCorp relied on the evidence of a mechanical engineer who demonstrated that the potential wear and tear caused by the overloaded vehicles was less than what it would have been had each of the vehicles been fully but correctly loaded within their gross mass limits.
In the absence of adducing any evidence in relation to the point, DTMR was unsuccessful in persuading the Tribunal of the presence of any other safety risk to drivers, passengers, persons or property, vehicles or combinations, or the environment resulting from the identified axle overloading.
2. What did GrainCorp know about (or ought reasonably to know) about the risk or damage of overloading axles?
Whilst the notice brought the contraventions to its attention, GrainCorp’s contention was that the concern of the decision maker should have been whether it knew or ought to have reasonably known about the risk at the time of the contraventions. The Tribunal held that the materials before it did not support a finding that GrainCorp knew or ought reasonably to have known about a safety risk or an elevated risk of damage from any axle overloading.
3. What did GrainCorp know about (or ought reasonably to know) about the ways of removing or minimising the risk or damage of overloading axles, and the availability and suitability of those ways?
GrainCorp submitted to the Tribunal that the only available interpretation from the direction in the Review Decision was that it should “systematically underload” its vehicles. DTMR refuted this interpretation but did not set out precisely how the loading reduction could be achieved to ensure prescribed axle mass limits were not exceeded whilst still loading to the legal limit.
The Tribunal held that neither party presented the Tribunal with any reasonably practicable way to remove or minimise the risk of axle overloading and adroitly noted that it was certainly not the Tribunal’s task to suggest or speculate about some reasonably practicable way of achieving the reduction.
4. What was the cost associated with those ways, and were the costs grossly disproportionate to the likelihood of the risk or damage?
On the premise that the only available interpretation from the Review Decision was that it should “systematically underload” its vehicles, GrainCorp provided evidence that the cost implications of systematically unloading its vehicles (to ensure axle mass limits were not exceeded) were significant. GrainCorp’s evidence in this regard was:
Member Katter said:
“For the Tribunal to find that there has been a failure by [GrainCorp] to take an action that was reasonably practicable to take, the Tribunal must be satisfied that there actually is an action available and then give consideration to whether that action is reasonably practicable. In the absence of evidence as to what was reasonably practicable for [GrainCorp] to do to avoid the axle overloading incidents, the Tribunal cannot be satisfied that there was a valid basis for issuing the Improvement Notice having regard to the requirements of the HVNL. That is, the requisite contravention of the HVNL has not been identified. The overloading incidents do, of course, contravene the HVNL but they do not in and of themselves give rise to a contravention of [GrainCorp’s] safety duty as a loading manager or party in the chain or responsibility.”
In the absence of any evidence before the Tribunal that would permit the Tribunal to be satisfied that a reasonably practicable method, action or way was potentially available to GrainCorp to avoid overloading of axle groups, Member Katter was not satisfied that a contravention of the safety duty has been made out so as to permit the issue of the notice.
Accordingly, the Tribunal set aside the Review Decision dated 16 April 2020, with a substitute decision revoking the notice dated 17 February 2020.
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