Comcare v John Holland Pty Ltd

FEDERAL COURT OF AUSTRALIA

Comcare v John Holland Pty Ltd [2009] FCA 1196

EVIDENCE – pecuniary penalty proceedings under s 16(1) of the Occupational Health & Safety Act 1991 (Cth) – whether to admit written victim impact statements from victim's family members 

Held: Immediate family of deceased worker may table written material detailing the impact of death of deceased worker on their lives, being background information of assistance to Court. Material not taken into account to increase or decrease pecuniary penalties

Evidence Act 1995 (Cth) s 56(2)
Occupational Health & Safety Act 1991 (Cth) s 16(1)

Comcare v Commonwealth of Australia [2009] FCA 700 cited
R v Penn [1994] 19 MVR 367 cited
R v Previtera (1997) 94 A Crim R 76 cited

COMCARE v JOHN HOLLAND PTY LTD (ACN 004 282 268)

QUD 37 of 2009

COLLIER J
23 OCTOBER 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 37 of 2009

BETWEEN:	COMCARE Applicant
AND:	JOHN HOLLAND PTY LTD (ACN 004 282 268) Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	23 OCTOBER 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The Court will receive material from Mr Paul Everett, Mrs Ann Everett and Mr Andrew McCallum, being immediate family members of Mr Mark McCallum, which material will be confined to the impact of the demise of Mr Mark McCallum on their lives.

2.The material referred to in paragraph 1 of these orders will be in the form of written statements.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 37 of 2009

BETWEEN:	COMCARE Applicant
AND:	JOHN HOLLAND PTY LTD (ACN 004 282 268) Respondent

JUDGE:	COLLIER J
DATE:	23 OCTOBER 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In the substantive proceedings before the Court the applicant alleges that the respondent has contravened s 16(1) of the Occupational Health & Safety Act 1991 (Cth) (“the Act”). The respondent admits the contravention. It is common ground that, if the Court takes a similar view, the Court may make a declaration to that effect and impose a pecuniary penalty on the respondent. The quantum of such penalty is the remaining issue in contention between the parties in the substantive proceedings.

2. It is also common ground that, as a result of the events comprising the respondent’s contravention of the Act, Mr Mark McCallum died. Three of Mr McCallum’s relatives wish to table material by way of written statement, explaining the impact of the loss of Mr McCallum on their lives. The parties have come to an agreement regarding the Court’s reception of such material, subject to the exercise of the Court’s discretion (TS 12 October 2009 p 2 ll 25-33 and p 3 ll 19-21). However prior to reaching such agreement the respondent had opposed this course of action on the following bases which…