Comcare v John Holland Rail Pty Ltd

Link copied
Case Copied 36 min read

FEDERAL COURT OF AUSTRALIA

Comcare v John Holland Rail Pty Ltd [2010] FCA 981

Citation: Comcare v John Holland Rail Pty Ltd [2010] FCA 981
Parties: COMCARE v JOHN HOLLAND RAIL PTY LTD (ABN 61 009 252 653) and JOHN HOLLAND PTY LTD (ABN 11 004 282 268)
File number: VID 660 of 2008
Judge: BROMBERG J
Date of judgment: 7 September 2010
Catchwords: PRACTICE AND PROCEDURE – Whether ends of justice render it expedient to direct a trial by jury – alleged contraventions of Occupational Health and Safety Act 1991 (Cth) – usual mode of trial is by judge without a jury – no special reason demonstrated to justify departure from usual mode of trial – Federal Court of Australia Act 1976 (Cth) ss 39, 40.
Legislation:

Conciliation and Arbitration Act 1904 (Cth)

Crimes Act 1914 (Cth), ss 4H, 4JA  

Federal Court of Australia Act 1976 (Cth), ss 39, 40
High Court Procedure Act 1903-1950, ss 12, 13
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth),
s 5(4)
Occupational Health and Safety Act 1991 (Cth), s 16
Supreme Court (General Procedure) Rules 2005, O 47
Supreme Court Act 1970 (NSW), s 85
Trade Practices Act 1974, (Cth), s 86A

Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (Northern Territory) (2009) 239 CLR 27
Australian Securities and Investments Commission v Matthews [1999] FCA 706
Commonwealth Bank of Australia v Rigg [2001] FCA 590 Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR 40-887
Cross v Theiss Pty Ltd [2006] NSWSC 1455
Dinnison v Commonwealth of Australia (2000) 106 FCR 418
Gargan v Commonwealth Bank of Australia [2004] FCA 641
Harding v Deputy Commissioner of Taxation [2008] FCA 1403
Howard v Gallagher (1988) 79 ALR 111
Howard v Gallagher (No 1) (1986) 69 ALR 424

Insurance Commissioner v Australian Associated Motor Insurers Limited (1982) 65 FLR 172
Kingswell v The Queen (1985) 159 CLR 264

Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39
McDermott v Collien (1953) 87 CLR 154
Muir v Council of Trinity Grammar School [2005] NSWSC 555
Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49
Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
Ra v Nationwide News Pty Ltd (2009) 182 FCR 148
Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd [2002] FCA 278

Date of hearing: 10 August 2010
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 66
Counsel for the Applicant: Mr P O'Grady
Solicitor for the Applicant: Thomsons Lawyers
Counsel for the Respondents: Mr M Wyles SC with Dr T McEvoy
Solicitor for the Respondents: Herbert Geer

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 660 of 2008

BETWEEN:

COMCARE
Applicant

AND:

JOHN HOLLAND RAIL PTY LTD (ABN 61 009 252 653)
First Respondent

JOHN HOLLAND PTY LTD (ABN 11 004 282 268)
Second Respondent

JUDGE:

BROMBERG J

DATE OF…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Comcare v John Holland Rail Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2010] FCA 981
Decision Date

CaseChat Overview and Summary

Comcare v John Holland Rail Pty Ltd involved a dispute between the Commonwealth and John Holland Rail Pty Ltd. The central issue was whether a proceeding for a civil penalty in a safety prosecution should be tried by jury rather than by a judge alone. This case was heard in the Federal Court of Australia.

The legal issue before the court was whether the trial of the civil penalty proceeding should be by jury. John Holland argued that the nature of the proceeding, being a civil penalty, meant it should be tried by a judge alone, citing the precedent set in Kingswell. Comcare countered that the serious nature of the offence warranted a jury trial. The court had to decide whether the serious nature of the offence, as defined in Kingswell, necessitated a jury trial in civil penalty proceedings.

The court considered the arguments presented by both parties. It examined the reasoning in Kingswell and the definition of a serious offence provided by Deane J. The court concluded that the trial of a civil penalty proceeding could be conducted by a judge alone as long as the offence was serious enough to warrant such a trial. The court found that the proceedings in question did not meet the threshold of seriousness that would require a jury trial. Therefore, the court dismissed John Holland's application to have the trial conducted by a jury.

In conclusion, the court determined that the ends of justice did not require a departure from the usual mode of trial. It dismissed John Holland's motion and ordered that John Holland pay Comcare's costs on a party/party basis. The court's decision upheld the principle that the trial of a civil penalty proceeding could be conducted by a judge alone, provided the offence was serious enough to warrant such a trial.

Orders

Orders of the court

Full text does not contain this section.

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

Finally, John Holland relied on the dissenting judgment of Deane J in Kingswell for the purpose of trying to demonstrate that historically, juries have been utilised to try allegations of serious crime. However, as Comcare pointed out, John Holland did so without giving proper recognition to what Deane J regarded as a serious offence. Deane J (at 310) observed that at the heart of the concept of “trial on indictment” in s 80 is the notion of the trial of a “serious offence”. Deane J defined a serious offence as an offence punishable by imprisonment of more than 1 year: at 309-310 and 317. It was only the trial of alleged offences of that kind which Deane J regarded as not being appropriate to be dealt with summarily and to which the protection of s 80 applied. The judgment of Deane J does not support the proposition that a proceeding for a civil penalty is not appropriately dealt with without a trial by jury. CONCLUSION I have taken into account, both individually and collectively, each of the matters relied upon by John Holland in support of its application that I exercise my discretion under s 40 of the Federal Court Act. Having regard to the considerations detailed in these reasons, I have determined that the ends of justice do not appear to render it expedient to depart from the usual mode of trial and direct that the trial of all issues of fact in this proceeding be by jury. Accordingly, I will dismiss John Holland’s notice of motion. The usual principle is that costs should follow the event. There is no reason to depart from that approach. Comcare raised but did not support a contention that John Holland should pay its costs on an indemnity basis. Costs shall be paid on a party/party basis. Accordingly, I will order that John Holland pay Comcare’s costs of and incidental to the notice of motion.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.