Australia: Consignor turning a blind eye to heavy vehicle overloading ordered to pay $732,206 in fines and $250,000 in legal costs

In a recent New South Wales Local Court decision, a multi-national waste and recycling company was ordered to pay $732,206 in fines and $250,000 in legal costs for a series of overloading offences. The case highlights the potential legal risks faced by consignors under the chain of responsibility regime.

Remondis Australia Pty Ltd pleaded guilty to 12 contraventions of the now repealed NSW Road Transport (Vehicle and Driver Management) Act 2005 and to 38 contraventions of section 594 of the Heavy Vehicle National Law. Remondis was the consignor of loads of mulch and the charges concerned overloading offences that occurred between September 2013 and October 2014.

WHAT HAPPENED?

Remondis entered into a contract with Lake Macquarie Council in relation to the processing, composting and removal of 'green bin' household waste at Awaba Waste Management Facility on the NSW central coast. Remondis then processed the green waste material and contracted to have the mulch removed off site.

Between September 2013 and October 2014, Remondis was the consignor and loader of loads of mulch transported by Jet Group Australia. Each load of mulch was transported on a heavy combination vehicle, consisting of a prime mover and a walking trailer. Remondis' machinery was used to load each load, which was then taken from the Awaba facility to Jet's premises, a distance of 3.8 kilometres. The applicable mass limit for the vehicles used for transportation was 42.5 tonnes.

The 50 offences before the Court included 22 'severe' breaches and related to loads that were between 3 and 16 tonnes overweight. The majority of the offences concerned vehicles that were at least 10 tonnes overweight.

REMONDIS' COMPLIANCE SYSTEM

The nearest weighbridge was remote from the Remondis site supervisor and was operated by the Council. Remondis took no steps to ascertain the mass of the loads consigned to Jet, but simply relied upon Jet to 'ensure that the loads were within lawful limits'. Remondis paid invoices rendered by Jet without any regard to the tonnage specified, which clearly showed the relevant vehicles were overloaded. While Remondis' internal driver and operator manual described the chain of responsibility legislation and the parties covered by the legislation, it did not make reference to the applicable mass requirements or overloading.

In response to being investigated and charged with the offences, Remondis took a number of steps to improve its compliance system. Those steps included:

  • implementing a loading protocol, so that applicable mass limits are identified and could be verified at the point of loading;
  • installing load cells at the loader bucket to ensure that the legal load limits are not exceeded;
  • implementing communication protocols between Remondis and the weighbridge or driver of the heavy vehicle so as to ensure that no truck would be allowed to exit the site overweight; and
  • providing supervision to ensure compliance or corrective action in the event of non-compliance.

THE PENALTY

Remondis pleaded guilty to the contraventions. The total aggregate penalties available (for all offences in combination) exceeded $2.1 million. The court ordered that Remondis pay $137,000 in respect of the offences under the NSW Act and $595,000 in respect of the offences under the HVNL, together with the prosecutor's legal costs of $250,000.

The Court considered the following factors:

  • While Remondis may have been aware of its obligations, that awareness was never properly translated into practice.
  • Remondis as consignor was obligated to ensure that overloading did not occur and could not 'turn a blind eye' to whether the vehicles transporting the mulch were over loaded or not.
  • Remondis had control over the mulch before it was it loaded (by its machinery) and transported by road. It was therefore critical that Remondis had an active system in place to manage the risk and to minimise the chances of road transport law being breached.
  • The fact that the weighbridge was remote from their site supervisor meant that Remondis should have addressed this and had immediate, real time access to the data.
  • Any submission that Remondis 'mistakenly relied' on others to ensure loads were within lawful limits fell flat when viewed through the prism of the chain of responsibility legislation and the substantial role that Remondis played within the chain.

In determining the penalty, the Court took into account the fact that Remondis had pleaded guilty, expressed remorse and put in place 'active and preventative measures to ensure no such breaches occur again'. In addition, Remondis had no prior convictions.

LESSONS TO BE LEARNED

The case demonstrates that parties in the chain cannot simply assume that other parties will fulfil their chain of responsibility obligations. In particular, businesses that make use of heavy vehicles to send or receive goods cannot 'turn a blind eye' and leave it to operators to comply with their chain of responsibility obligations; instead, those businesses must implement their own measures to ensure compliance.

The case also highlights that it is not enough for a party to be aware of their obligations if that awareness is not properly translated into practice. Documented policies and procedures, with all the best intentions, mean nothing unless personnel are trained and instructed in those policies and procedures, and measures are in place to monitor compliance with them.

These lessons will become even more important from mid-2018 when the chain of responsibility reforms come into effect. Under the reforms, it will no longer be necessary for an on-road offence to be committed before a party in the chain is liable. Instead, a party may be prosecuted because it does not have in place practices and procedures that ensure the safety of transport activities directly or indirectly related to its operations.

Cooper Grace Ward is hosting a masterclass for directors, executives and managers on the new chain of responsibility regime in Brisbane on 26 October 2017. Details of that course are available here.

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions