Comcare v Airservices Australia

Case [2016] FCA 418


FEDERAL COURT OF AUSTRALIA

Comcare v Airservices Australia [2016] FCA 418

File number: NTD 18 of 2015
Judge: WHITE J
Date of judgment: 22 April 2016
Catchwords: INDUSTRIAL LAW – occupational health and safety – admitted contraventions of ss 16 and 17 of the Occupational Health and Safety Act 1991 (Cth) – quantity of pecuniary penalty – appropriate considerations – seriousness of breach – deterrence – mitigating factors.
Legislation:

Air Services Act 1995 (Cth) s 7

Crimes Act 1914 (Cth) s 4AA

Criminal Code (NT) s 174F

Occupational Health and Safety Act 1991 (Cth) ss 3, 5, 16, 17, 77

Traffic Act (NT) s 30(1)

Traffic Regulations (NT) Sch 3 Australian Road Rules

Work Health and Safety Act 2011 (Cth)

Work Health and Safety (Transitional and Consequential Provisions) Act 2011 (Cth) Sch 2

Cases cited:

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21; [2006] ATPR 42‑101

Australian Competition and Consumer Commission v SIP Australia Pty Ltd [1999] FCA 858

Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith [2008] FCAFC 8; (2008) 165 FCR 560

Comcare v Commonwealth of Australia [2007] FCA 662; (2007) 163 FCR 207

Comcare v Commonwealth of Australia [2009] FCA 700; (2009) 257 ALR 462

Comcare v Commonwealth of Australia [2010] FCA 1331; (2010) 120 ALD 1

Comcare v Commonwealth of Australia [2015] FCA 810

Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168; (2012) 207 FCR 178

Comcare v Transpacific Industries Pty Ltd [2012] FCA 90

Comcare v Transpacific Industries Pty Ltd [2015] FCA 500

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476

Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59; (2015) 229 FCR 331

Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432

DPP v Vibro‑Pile (Aust) Pty Ltd [2016] VSCA 55

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285

Oaten v Engineering Employers Association SA Group Training Scheme Inc [2006] SAIRC 70

Date of hearing: 23 November 2015
Registry: Northern Territory
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 71
Counsel for the Applicant: Mr T Anderson
Solicitor for the Applicant: Hunt & Hunt
Counsel for the Respondent: Mr M Maurice QC
Solicitor for the Respondent: Clayton Utz

ORDERS

NTD 18 of 2015
BETWEEN:

COMCARE

Applicant

AND:

AIRSERVICES AUSTRALIA

Respondent

JUDGE:

WHITE J

DATE OF ORDER:

22 APRIL 2016

THE COURT DECLARES THAT:

1.On 7 August 2011, the Respondent contravened subcl 2(1)(a) of Sch 2 of the Occupational Health and Safety Act 1991 (Cth) (the Act), by reason of it having breached s 16(1) of the Act by failing to take all reasonably practicable steps to protect the health and safety at work of…

Continue reading Comcare v Airservices Australia

Sign in free to access the full text

Details
AGLC
Comcare v Airservices Australia [2016] FCA 418
Case
[2016] FCA 418
Decision Date

CaseChat Overview and Summary

Comcare sought declarations and penalties from Airservices Australia for contraventions of the Occupational Health and Safety Act 1991. The primary dispute involved Airservices' failure to ensure the safety of employees and others by not providing adequate speed limit signs on a road, which led to serious incidents including fatalities. The Federal Court was tasked with determining the appropriate penalty for these contraventions. The court considered the nature of the breaches, the impact on road users, and the principles of deterrence and appropriate penalty under the Act.

The court examined the seriousness of the breaches and the potential for deterrence in setting the penalty. It noted that the penalties should reflect the gravity of the breaches and their impact on public safety, while also considering mitigating factors. The court concluded that the penalty for the contravention of section 16 should reflect its severity and not be inflated by considering the contravention of section 17. The court acknowledged that the potential impact on other road users was a significant factor in assessing the gravity of the breach.

Based on its analysis, the court decided to impose a penalty for the contravention of section 16, but not for the contravention of section 17. The court found that Airservices had indeed failed to comply with sections 16 and 17 as alleged by Comcare. Consequently, the court made the declarations sought by Comcare and ordered Airservices to pay a penalty of $160,000 for the contravention of section 16, with no penalty for the contravention of section 17. Airservices was also ordered to pay Comcare's costs of the proceeding.

Orders

Orders of the court

3. The Respondent pay the Commonwealth a pecuniary penalty of $160,000 in respect of the contravention of subcl 2(1) of the Occupational Health and Safety Act 1991 (Cth) which is the subject of the first declaration herein.

4. There be no penalty imposed in respect of the contravention which is the subject of the second declaration.

5. The Respondent pay the Applicant’s costs of and incidental to the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I consider it appropriate in this case to fix a penalty for the contravention of s 16. In my opinion, the penalty to be imposed for the contravention of s 16 should be that which is appropriate for that contravention: it should not be increased to take account of the fact that the same conduct also contravened s 17. I accept, however, that the potential impacts on other road users form part of the circumstances indicating the gravity of Airservices’ contravention of s 16(1).The declarations Given the structure of Sch 2 to the OHS Act just outlined, it is appropriate for the Court first to consider the declarations proposed by the parties. I will refer later in more details of the circumstances of the contraventions but indicate now that I am satisfied that it is appropriate for the Court to act on the admissions made by Airservices in its filed defence, the SOAF and the two affidavits. For the reasons which will become apparent, I am satisfied that Airservices did fail to comply with ss 16(1) and 17 of the OHS Act in the manner alleged by Comcare. Accordingly, I will make the declarations sought by Comcare. Penalty principles Several of the authorities have addressed the principles relating to the imposition of penalties under the OHS Act. It is not necessary to refer to them in detail. Instead, it is sufficient to indicate that I have had regard to Comcare v Commonwealth of Australia [2007] FCA 662, (2007) 163 FCR 207 (Trooper Lawrence) at [116]‑[123]; Comcare v Commonwealth of Australia [2009] FCA 700, (2009) 257 ALR 462 at [69]‑[71]; Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168, (2012) 207 FCR 178 at [56]‑[69]; Comcare v Transpacific Industries Pty Ltd [2015] FCA 500 (Transpacific Industries) at [107]‑[123]; and Comcare v Commonwealth of Australia [2015] FCA 810 at [65]‑[73]. The parties made their submissions in this matter before the High Court delivered judgment in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476 (Commonwealth v DFWBII). Accordingly, both accepted that, in accordance with the decision of the Full Court in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59; (2015) 229 FCR 331 (DFWBII v CFMEU), it was not open to them to make submissions as to the appropriate penalty, or even as to a range of penalties. Neither party sought to reopen the matter after the High Court delivered its judgment overturning the decision in DFWBII v CFMEU in order to make submissions of this kind. Although the Commonwealth v DFWBII concerns legislation other than the OHS Act, the plurality (French CJ, Kiefel, Bell, Nettle and Gordon JJ) made two observations concerning civil penalty regimes generally which are pertinent in the present context. The first is that civil penalty provisions are to be understood as part of statutory regimes by which regulators may enforce compliance with provisions having the purpose of protecting or advancing particular aspects of the public interest: at [24]. The second is that the object of civil penalties is primarily to achieve deterrence. They seek to do so by putting a price on contraventions which is sufficiently high to deter repetition by the contravenor and by others who might be minded to contravene the particular regime in the same way: at [55]. Punishment and retribution are not the purpose of civil penalties, although plainly it is the imposition of a sanction in the form of a penalty which is intended to have a deterrent effect.