The time is ripe to revisit the obligations of consignees under the Heavy Vehicle National Law (HVNL).
A consignee is a person who actually receives the goods after they have been transported by road, or has consented to being identified as the consignee of goods in transportation documentation. It does not include a person who merely unloads the goods.
Section 194 of the HVNL makes it an offence for a consignee to act or fail to act in a way that results, or would likely result, in inducing or rewarding a contravention of a mass, dimension or loading requirement, where that consignee intends for, or is reckless or negligent as to, the contravention or its likelihood.
A predicament that consignees may encounter at the receiving end of the road transport haul, is figuring out what they should do when a driver arrives already in breach of a mass, dimension or loading requirement. Would accepting the goods amount to inducement or reward of a contravention under the HVNL? Would refusing to accept the goods and sending them back jeopardise the HVNL's objective to promote public safety?
Different consignees adopt different approaches to their duty. Some issue warnings and provide brochures identifying the driver's obligations under the HVNL; some use a graded systems whereby different warnings are issued according to the number of incidents of non-compliance; some reject the delivery or deny access to their premises; some donate the portion of the load which is in excess of mass requirements to charity; some might use a combination of the strategies above; and some may be entirely hesitant to do anything at all.
In the process of working out the appropriate response, the burden of controversy arises over the scope of action required by consignees to make sure they cover themselves from liability. In short, how much is enough?
In answering this predicament, guidance is offered by the case of Roads and Traffic Authority of New South Wales v GrainCorp Operations Limited [2009] NSWSC 1204 (RTA v GrainCorp).
In that case GrainCorp Operations Limited (GrainCorp) was charged under the earlier Road Transport (General) Act 2005 (NSW) (RTGA) for conduct that was alleged likely to induce others in the transport chain to breach gross mass requirements. This was contrary to section 58 of the RTGA which was expressed in similar terms to section 194 of the HVNL.
At the relevant time GrainCorp had a policy that provided: it would not turn away overloaded trucks; all drivers whose trucks were overloaded would have their tickets marked "Mass Breach PTO" and would be provided with compliance and enforcement legislation information brochures; all drivers with truck weights exceeding the gross vehicle mass (GVM) by more than 5% would be issued which a formal written warning indicating breach and that they could be prosecuted; and all site managers would be provided with truck weight charts that indicated at what mass the GVM mass was exceeded. This policy was later modified to say that any truck arriving at GrainCorp exceeding the legal loading limit by 20% or more for the second time would be denied access.
An issue in the proceedings was whether GrainCorp, in applying its policy by accepting the overloaded vehicles and permitting the discharge of their loads at its depots, engaged in conduct that was likely to induce a breach of the relevant mass requirements.
In the Local Court, Clisdell LCM dismissed the prosecution finding that the Roads and Traffic Authority (as it was then known) was unable to prove to the criminal standard that GrainCorp conducted itself in a way that was likely to induce a breach of the mass requirements under the RTGA; that is, GrainCorp's application of its policy was enough.
Hall J confirmed on appeal Clisdell LCM's reasoning on this point. In approaching whether the conduct of a consignee is likely to induce a breach, his Honour acknowledged it was fitting for the Court to look at the relevant context and circumstances of the case. In that case, it was appropriate for the Court to consider the policy, its rationale and terms, as well as its application as a part of the delivery process.
On a practical level, the Court's approach highlights that the obligations of consignees contained in the previous law, and borne out by the terms of the present law, do not automatically assume that whenever a delivery does not meet a mass, dimension or loading requirement a consignee must deny access to their premises or send the delivery back. There is a distinction between a system or policy that encourages compliance and one that fails to act in the face of non-compliance.
Elaborating this distinction is the addition of the term "reward" in section 194 of the current legislation that was not included in the RTGA, section 58. Hall J characterised the term "induce" under the earlier law as meaning when one person's conduct had the effect of causing another person to act in a particular way.
"Reward" like the term "induce" is not defined by the NVHL. Its ordinary meaning is to recognise a person or thing for service, merit or achievement. Its inclusion in the new law broadens the scope of behaviour which a consignee should not engage in; that is, a consignee should not act or fail to act in a way that is likely to cause another party in the supply chain to contravene a mass, dimension or loading requirement, or act in a way that is likely to recognise or incentivise that contravention.
In light of the terms of the NVHL and the advent of harvest season, consignees should act with due measure and have policies in place that actively communicate their disapproval to parties that do not comply with their mass, dimension or loading requirements. Consignees who have been hesitant in the past to do anything at all should be cautioned that such an approach is unlikely to stand up in the event of prosecution.
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.
