Kemp v KGB Protective Coating Pty Ltd [2013] NSWSC 964

Kemp v KGB Protective Coating Pty Ltd [2013] NSWSC 964

The prosecutor established a prima facie case that the load restraint requirements had been breached, based on expert evidence that inadequate dunnage permitted catastrophic movement of the load, and that KGB Protective Coating Pty Ltd was the consignor, based on a document under its letterhead confirming consignment of the load. The orders sought under s 246 of the Criminal Procedure Act 1986 were therefore made.

Jurisdiction
Australia
Judgment Date
18 July 2013
Procedural Posture
Criminal Procedure Application Under S 246 of the Criminal Procedure Act 1986 / Application for Orders That the Defendant Be Brought Before a Judge of the Supreme Court to Answer a Charge Under S 53(1) of the Road Transport (general) Act 2005
Outcome
Orders sought under s 246 of the Criminal Procedure Act 1986 made.
Legal Topics
['prosecution Procedure' 'prima Facie Case' 'consignor Liability' 'load Restraint Requirements']
['criminal Law' 'road Transport Law'] ['prosecution Procedure' 'prima Facie Case' 'consignor Liability' 'load Restraint Requirements']

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Procedural Posture

Criminal Procedure Application Under S 246 of the Criminal Procedure Act 1986 / Application for Orders That the Defendant Be Brought Before a Judge of the Supreme Court to Answer a Charge Under S 53(1) of the Road Transport (general) Act 2005

Legal Issues

  1. 1 ['Whether the material established a prima facie case of breach of the load restraint requirements for the purposes of s 53(1)(a) of the Road Transport (General) Act 2005.' 'Whether the material established a prima facie case that KGB Protective Coating Pty Ltd was the consignor of the goods carried by the vehicle combination involved in the 14 July 2011 accident.' 'Whether orders should be made under s 246 of the Criminal Procedure Act 1986.']

Ratio Decidendi

The prosecutor established a prima facie case that the load restraint requirements had been breached, based on expert evidence that inadequate dunnage permitted catastrophic movement of the load, and that KGB Protective Coating Pty Ltd was the consignor, based on a document under its letterhead confirming consignment of the load. The orders sought under s 246 of the Criminal Procedure Act 1986 were therefore made.

Court Disposition

Orders sought under s 246 of the Criminal Procedure Act 1986 made.

Orders

  • ['KGB Protective Coating Pty Ltd be brought before a judge of the Supreme Court to answer a charge under s 53(1) of the Road Transport (General) Act 2005.']