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:
DTMR further directed:
HVNL Primary Duty
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:
- the likelihood of a safety risk or damage to road infrastructure happening, and the harm that could result
- the knowledge of the risk, and what ought reasonably be known by way of removing, minimising, or preventing the risk
- the availability, suitability, and cost of the those ways, including whether the cost is grossly disproportionate to the likelihood of the risk or damage.
Considerations of the Tribunal
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:
- that it would need to prevent the loading of vehicles to any mass greater than 90 per cent of the permissible gross weight in order to minimise the risk of axle overloading
- that the cost consequences of that underloading was significant and would need to be extended to all of its national sites
- that such systematic underloading would also have an intangible and detrimental effect on its market competitiveness.
The Tribunal's decision
Member Katter said:
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.
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.