20 February 2023

Supreme Court imposes tougher penalty for primary duty offences under the HVNL

Holding Redlich


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The decision "highlights that the HVNL operates based on what duties you perform, not the title you hold".
Australia Transport
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In Transport for New South Wales v De Paoli Transport Pty Ltd (2022), transport company De Paoli Transport was fined $180,000 for speed and fatigue offences. The company entered a guilty plea under section 26G of the Heavy Vehicle National Law (HVNL).

Mr George De Paoli was the sole director and shareholder of the line-haul trucking company. He was responsible for scheduling drivers to carry out deliveries, with the assistance of Jonathan De Paoli. George and Jonathan De Paoli were charged in their capacity as schedulers of the company and were fined $15,000 each after entering guilty pleas of contravening their duty under section 26C to manage driver fatigue, speed, and compliance with work and rest hours. This brought the total fine to $210,000.

At first instance, De Paoli Transport was fined a mere $15,000, George De Paoli was fined $6,000 and Jonathan De Paoli was fined $3,000. On appeal, his Honour stated that the primary Judge's sentences were "manifestly inadequate" and the primary Judge had erred in focusing on the "absence of any accidents rather than the assessment of risk caused by the offending conduct" and the failure to give "proper regard to deterrence".

De Paoli Transport was found to have failed to put in place and maintain adequate systems and practices to manage fatigue, which included:

  • continued assessment and review of risks within the company's transport operations
  • to ensure that the drivers had current and valid driver's licences
  • safe driving plans for trips taken by drivers to ensure they understand what breaks they are required to take under the law
  • verifying the driver's fitness to drive prior to each trip
  • ensuring that drivers were not speeding
  • ensuring that drivers were not driving in breach of work/rest hours
  • safe scheduling of drivers
  • ensuring that any notices issued by an authorised officer to a driver of a heavy vehicle were reported to the company.

De Paoli Transport also failed to provide its drivers with adequate training in relation to:

  • driver fatigue
  • calculating drive and rest hours
  • correctly filling out log books
  • policies and procedures relating to speeding and fatigue.

As schedulers, George and Jonathan De Paoli failed to ensure that drivers' trips were safe by not:

  • ascertaining whether drivers had secondary employment that may impact fatigue levels
  • providing safe driving plans to assist drivers to determine breaks
  • verifying each driver's fitness to drive prior to each trip
  • taking into account any drivers returning to work from leave
  • requiring drivers to report any delays encountered while driving and taking into account delays when scheduling
  • referring to and using a functioning GPS system to ascertain driver work hours
  • ensuring drivers had correctly calculated work and rest hours
  • ensuring that drivers had correctly filled out their log books.

While no accidents or injuries formed any part of the complaint, the Court focused on risk and deterrence. The Court considered that the safety measures already in place were plainly inadequate. Although the schedulers were not deliberately avoiding their obligations, they failed to safely schedule drivers and check drivers' documentation to ensure compliance with the HVNL.

The National Heavy Vehicle Regulator reported that this decision "highlights that the HVNL operates based on what duties you perform, not the title you hold".

If you have any questions about this article, please get in touch with partner Nathan Cecil or a member of our Transport, Shipping & Logistics team using the contact details below.

  • This article was originally published in CoR Adviser. The article is © 2023 Portner Press Publishing Pty Ltd and has been reproduced with permission of Portner Press.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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