Comcare v John Holland Rail Pty Ltd

FEDERAL COURT OF AUSTRALIA

Comcare v John Holland Rail Pty Ltd [2009] FCA 660

PRACTICE AND PROCEDURE – Application by applicant for addition of further respondent – Allegation of breach of statutory provision by occupier of premises – Defence that related company was occupier – Whether joinder of related company was necessary to ensure that all matters in dispute may be effectually and completely determined.   

Occupational Health and Safety Act 1991 (Cth) s 16(1), (2) (a) & (e)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 103 & 104

Federal Court Rules O 6 r 8(1)(b)

Commonwealth Bank of Australia v Peto (No. 2) (2006) 152 FCR 362
News Ltd v Australian Rugby Football League Limited (1996) 64 FCR 410
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009
Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384
Tytel Pty Ltd v Australian Telecommunications Commission (1988) 11 IPR 223
Universal Music Australia Pty Ltd v Cooper [2004] FCA 78
Warner Music Australia Limited v Swiftel Communications Pty Ltd (2005) 67 IPR 2

COMCARE v JOHN HOLLAND RAIL PTY LTD (ABN 61 009 252 653)

VID 660 of 2008

JESSUP J
19 JUNE 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 660 of 2008

BETWEEN: COMCARE
Applicant

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

JUDGE:	JESSUP J
DATE OF ORDER:	19 JUNE 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.John Holland Pty Ltd be added as a respondent in the proceeding. 

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
VICTORIA DISTRICT REGISTRY	VID 660 of 2008

BETWEEN: COMCARE
Applicant

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

JUDGE:	JESSUP J
DATE:	19 JUNE 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this proceeding, the applicant, Comcare, seeks the imposition of a penalty on the respondent, John Holland Rail Pty Ltd, for alleged breaches of s 16(1) of the Occupational Health and Safety Act 1991 (Cth), (“the OHS Act”). Declarations are also sought to the effect that the respondent has breached that subsection, and also pars (a) and (e) of subs (2) of s 16 of the OHS Act. By motion of which notice was given on 25 March 2009, the applicant applies for an order that John Holland Pty Ltd (“John Holland”) be added as a party in the proceeding pursuant to O 6 r 8(1)(b) of the Federal Court Rules.  The respondent opposes the application, but makes no submission about it.  John Holland resists the joinder, contending that the rule relied on is inapplicable to the circumstances which exist, or alternatively, that, as a matter of discretion, the court should not order the joinder sought by the applicant. 

2. It is…