Comcare v Gritsch

Case [2010] FCA 1220

FEDERAL COURT OF AUSTRALIA

Comcare v Gritsch [2010] FCA 1220

Citation: Comcare v Gritsch [2010] FCA 1220
Parties: COMCARE v PETER GRITSCH
File number: ACD 3 of 2010
Judge: STONE J
Date of judgment: 12 November 2010
Catchwords:

INDUSTRIAL LAW – occupational health and safety – federal police officer unintentionally discharged pistol in office space – obligation of employees not to create risk or increase existing risk to persons at or near workplace – imposition of pecuniary penalty – agreed pecuniary penalty

INDUSTRIAL LAW – imposition of pecuniary penalty – factors relevant to determination of amount of penalty – agreed pecuniary penalty – significance of fact of agreement

Legislation:

Crimes Act 1914 (Cth) s 4AA(1)
Evidence Act 1995 (Cth) s 191
Federal Court of Australia Act 1976 (Cth) s 21
Occupational Health and Safety Act 1991 (Cth) ss 16, 21(1)(a), 68(c), cl 2(1) of Sch 2
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 68

Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth)
Cases cited:

ACCC v Australian Abalone Pty Ltd [2007] FCA 1834
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Australian Competition and Consumer Commission v Jetplace Pty Ltd [2010] FCA 759
Comcare v Commonwealth of Australia (2007) 163 FCR 207
Comcare v Commonwealth of Australia [2009] FCA 700; (2009) 184 IR 441; 110 ALD 252

Comcare v John Holland Rail Pty Ltd [2009] FCA 771; 188 IR 415

Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 178 IR 200
Coochey v Commonwealth (2005) 149 FCR 312
Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Minister for the Environment, Heritage and the Arts v PGP Development Pty Limited (2010) 183 FCR 10
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
NW Frozen Foods Pty ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Secretary, Department of Health and Ageing v Prime Nature Prize Pty Ltd (in liquidation) [2010] FCA 597
Date of hearing: 17 September 2010
Place: Sydney (via video link to Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 43
Counsel for the Applicant: T Begbie
Solicitor for the Applicant: Australian Government Solicitor
Solicitor for the Respondent: DLA Phillips Fox Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 3 of 2010
BETWEEN:

COMCARE
Applicant
AND:

PETER GRITSCH
Respondent

JUDGE:

STONE J

DATE OF ORDER:

17 SEPTEMBER 2010

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT DECLARES THAT:

1.In the period from 7 to 9 September 2008, Mr Peter Gritsch contravened clause 2(1) of Schedule 2 of the Occupational Health and Safety Act 1991 (Cth) (OH&S Act) by reason of his having breached s 21(1)(a) of the OH&S Act in that:

1.1on 7 and 9 September 2008 Mr Gritsch was performing work at the Australian Federal Police Headquarters in Braddon in the Australian Capital Territory (the AFP Headquarters);

1.2on 9 September 2008 Mr Gritsch unintentionally discharged his…

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Details
AGLC
Comcare v Gritsch [2010] FCA 1220
Case
[2010] FCA 1220
Decision Date

CaseChat Overview and Summary

Comcare, acting as the statutory authority administering the Occupational Health and Safety Act 1991 (Cth), filed an application against Mr Gritsch alleging a breach of section 21(1)(a) of the Act. The case was heard by the Federal Court of Australia, which was tasked with determining whether Mr Gritsch had contravened the occupational health and safety provisions by failing to adhere to the Australian Federal Police's (AFP) procedures for storing firearms. The primary legal issue before the Court was whether Mr Gritsch's actions constituted a breach of the occupational health and safety provisions and whether Comcare was entitled to seek a declaration and penalty for the alleged breach.

The Court examined the agreed facts, which included the specific procedures for storing pistols after operational shifts, as well as Mr Gritsch's deviation from these procedures. The Court found that Mr Gritsch's failure to follow the prescribed procedures by inserting a magazine into the magazine holder of his unloaded pistol created a risk to the safety of his fellow employees. The Court concluded that this breach was actionable under section 21(1)(a) of the OH&S Act as it created a risk that could have been reasonably avoided. Furthermore, the Court determined that Comcare was entitled to seek a declaration of contravention and the imposition of a penalty as provided for under the relevant sections of the Act.

The Court ordered that Mr Gritsch be declared to have breached section 21(1)(a) of the Occupational Health and Safety Act 1991 (Cth) and imposed a penalty of $3,000. The Court's decision was based on the clear evidence of the breach and the agreement between the parties regarding the appropriate penalty. The Court also noted that it had the jurisdiction to make declarations of right under the Federal Court of Australia Act 1976 (Cth) and that such declarations were necessary to provide clarity and enforce the provisions of the OH&S Act.

Orders

Orders of the court

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Background

Background to the litigation

Comcare is a statutory authority, established under the Safety, Rehabilitation and Compensation Act 1988 (Cth) and administers the Occupational Health and Safety Act 1991 (Cth) (OH&S Act). By application filed on 12 February 2010 Comcare alleged that Mr Gritsch was in breach of s 21(1)(a) of the Occupational Health and Safety Act 1991 (Cth) (the OH&S Act). It sought a declaration of breach under clause 2(1) of Schedule 2 of the OH&S Act and the imposition of a pecuniary penalty of $3,000 pursuant to clause 4(1) of Schedule 2 of that Act. On 17 September 2010 I made orders sought by Comcare and undertook to provide reasons at a later date. These are my reasons for those orders.THE AGREED FACTS The parties tendered a statement of agreed facts dated 10 August 2010 and signed by their respective solicitors. Pursuant to s 191 of the Evidence Act 1995 (Cth) evidence is not required to prove the existence of the facts in the statement and they may not be contradicted or qualified by evidence adduced for that purpose without the leave of the court. The facts summarised in these reasons have been drawn from that statement and I have extensively quoted from it. For ease of reading I have omitted quotations marks except in the case of long quotations. AFP procedures for storage of pistols The AFP procedures for storage of pistols after the completion of operational shifts required that a red plug be inserted into the chamber of the unloaded pistol. Once this is done a red “flag” can be seen protruding from the slide of the pistol which is designed to act as a visual cue that the pistol is not loaded, that there is no bullet in the chamber of the pistol and that there is no magazine in the magazine receiver of the pistol. Despite this cue, the red plug does not prevent a magazine being inserted in the magazine holder however AFP training and procedures prohibit a magazine being inserted in a pistol with a red plug. Storage of pistol on 7 September 2008 Prior to the date on which he accidentally discharged his pistol, the last date on which Mr Gritsch handled the pistol was on 7 September 2008. On that day, after he concluded his duties at about 2.30 pm, Mr Gritsch stowed his pistol in his gun locker. Unfortunately, in doing so Mr Gritsch did not comply with AFP procedures for the storage of pistols after the completion of operational shifts. On 7 September Mr Gritsch unloaded his pistol in the gun unload bay in the basement of the AFP Headquarters and inserted a red plug into the pistol. However, contrary to the prescribed procedures, he inserted a magazine into the magazine holder of the pistol before storing it in his gun locker on the fourth floor of the AFP Headquarters. It appears that Mr Gritsch thought that he had not fully inserted the magazine and therefore it was not possible for the bullet to progress into the chamber of the pistol. Ultimately that belief is irrelevant as the relevant procedures are specific in prohibiting the magazine to be inserted into the holder at all. The Glock pistol – mechanism and storage

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Comcare further pleaded Mr Gritsch’s breach of s 21(1) was a contravention of subclause 2(1) of Schedule 2 of the OH&S Act and that consequently Comcare was entitled to a declaration of contravention and an order imposing a penalty on Mr Gritsch. In his amended defence filed on 16 September 2010 Mr Gritsch admitted all elements of the statement of claim. The parties also filed joint submissions in which it was agreed that a penalty of $3,000 was appropriate in all the circumstances of the case.Conclusion as to breach I am satisfied from the evidence before me in the form of the statement of agreed facts and from the admissions made in the defence, that in causing the unintentional discharge of his pistol on 9 September 2008 Mr Gritsch breached s 21(1)(a). His actions that led to the incident created a risk to the safety of his fellow employees. That risk could have been avoided by following the prescribed procedures and were thus reasonably practicable steps for him. Declarations Comcare has asked the Court to make detailed declarations in relation to the breach of s 21(1). The proposed declarations fully set out the basis on which a breach has been found and also the basis for the penalty which is imposed. Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) the Court has jurisdiction to make declarations of right “whether or not any consequential relief is or could be claimed”. Clause 2(1) of schedule 2 to the OH&S Act states that if there has been a breach of (inter alia) s 21(1) of the Act the court “must make a declaration” to that effect. In Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 178 IR 200 at [21] Flick J followed a reference to this provision with a comment as to the discretionary nature of the power to make declarations conferred by the Federal Court of Australia Act and commented that the power “is not to be limited by the laying down of rules as to the manner of its exercise” and quoted the following observations of Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2: It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court's declaration will produce no foreseeable consequences for the parties”. [citations omitted] It is not clear if Flick J intended that it was necessary in a case such as the present to establish the matters that ordinarily underpin a decision to grant declaratory relief independent from a finding of a breach of, in this case, s 21. In their written submissions the parties submitted that his Honour’s comments should not be so understood. It may be that the distinction is illusory given the importance of deterrence in issues relating to employer or employee safety. As Flick J commented at [22]:Given the functions entrusted to Comcare by the 1991 Act, there can be no question but that Comcare has “a real interest” in securing the relief which is sought. Indeed, cl 5 to sch 2 of the 1991 Act expressly provides that either Comcare or an investigator may apply for a declaration of contravention.

Ratio Decidendi

Legal Principle Established

I am satisfied from the evidence before me in the form of the statement of agreed facts and from the admissions made in the defence, that in causing the unintentional discharge of his pistol on 9 September 2008 Mr Gritsch breached s 21(1)(a). His actions that led to the incident created a risk to the safety of his fellow employees. That risk could have been avoided by following the prescribed procedures and were thus reasonably practicable steps for him. Declarations Comcare has asked the Court to make detailed declarations in relation to the breach of s 21(1). The proposed declarations fully set out the basis on which a breach has been found and also the basis for the penalty which is imposed. Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) the Court has jurisdiction to make declarations of right “whether or not any consequential relief is or could be claimed”. Clause 2(1) of schedule 2 to the OH&S Act states that if there has been a breach of (inter alia) s 21(1) of the Act the court “must make a declaration” to that effect. In Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 178 IR 200 at [21] Flick J followed a reference to this provision with a comment as to the discretionary nature of the power to make declarations conferred by the Federal Court of Australia Act and commented that the power “is not to be limited by the laying down of rules as to the manner of its exercise” and quoted the following observations of Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2: It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court's declaration will produce no foreseeable consequences for the parties”. [citations omitted] It is not clear if Flick J intended that it was necessary in a case such as the present to establish the matters that ordinarily underpin a decision to grant declaratory relief independent from a finding of a breach of, in this case, s 21. In their written submissions the parties submitted that his Honour’s comments should not be so understood. It may be that the distinction is illusory given the importance of deterrence in issues relating to employer or employee safety. As Flick J commented at [22]:Given the functions entrusted to Comcare by the 1991 Act, there can be no question but that Comcare has “a real interest” in securing the relief which is sought. Indeed, cl 5 to sch 2 of the 1991 Act expressly provides that either Comcare or an investigator may apply for a declaration of contravention.