Comcare V Post Logistics Australasia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987

OCCUPATIONAL HEALTH AND SAFETY – civil penalty – failure to take reasonable steps to protect health and safety – death of worker – statement of agreed facts – declaration as to contravention – imposition of pecuniary penalty – principles to be applied

Federal Court of Australia Act1976 (Cth), s 21
Occupational Health and Safety Act1991 (Cth), s 16(1), sch 2 pt 1

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 applied
Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834, ATPR 42-199 followed
Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65, ATPR 42–216 cited
Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885, ATPR 41–801 cited
Australian Competition & Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 cited
Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18, 161 ALR 79 followed
Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 cited
Bank of Kuwait and the Middle East v Ship MV ‘Mawashi Al Gasseem’ (No 2) [2007] FCA 815, 240 ALR 120 cited
Comcare v Commonwealth [2007] FCA 662, 163 FCR 207 followed
Comcare v National Gallery of Australia [2007] FCA 1548, 98 ALD 67 followed
Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317, 136 LGERA 89 cited
Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 cited
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70, 168 FCR 383 applied
Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 cited
Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 considered
Veen v The Queen (No 2) (1988) 164 CLR 465 applied

COMCARE v POST LOGISTICS AUSTRALASIA PTY LIMITED (ACN 002 579 115)

NSD 753 OF 2008

FLICK J
24 DECEMBER 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

NSD 753 OF 2008

BETWEEN:

COMCARE
Applicant

AND:

POST LOGISTICS AUSTRALASIA PTY LIMITED
(ACN 002 579 115)
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

24 DECEMBER 2008

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:

1.In or about March 2006 and on 25 May 2006 Post Logistics Australasia Pty Ltd contravened clause 2(1) of Schedule 2 of the Occupational Health and Safety Act 1991 (Cth) by reason of its having breached section 16(1) of the said Act in that:

(a)The duties of Post Logistics Australasia Pty Ltd under subsection 16(1) apply not only in relation to its employees, but also, to the extent provided for in subsection 16(4), in relation to its contractors, as defined in section 9A.

(b)In or about March 2006 its contractor Mr John Lapidario approached a moving forklift operated by its employee Mr Van Trot Tran and disconnected the power on that forklift.

(c)On another occasion in or about March 2006 Mr…

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Details
Case
[2008] FCA 1987
Decision Date

CaseChat Overview and Summary

In the matter of Comcare v Post Logistics Australasia Pty Ltd, the dispute arose from an incident involving an employee who was injured while operating a forklift at a distribution centre in Queensland. The plaintiff, Comcare, sought a declaration of contravention and a penalty against the defendant, Post Logistics Australasia Pty Ltd, for breaches of health and safety obligations under the Commonwealth’s Safety, Rehabilitation and Compensation Act 1988. The court was tasked with determining whether the employer had failed to provide a safe work environment and whether it had contravened specific provisions of the Act.

The primary legal issues before the court involved the interpretation and application of the statutory provisions concerning workplace safety. Specifically, the court had to examine whether Post Logistics had adequately implemented measures to prevent horseplay around forklifts and if the injuries sustained by the employee were a result of such behaviour. The court also had to consider the employer’s duty to provide a safe work environment and whether the training sessions were sufficient to mitigate risks associated with horseplay.

In reaching its decision, the court noted that while none of the "Take 5" safety sessions addressed horseplay, Post Logistics had since implemented more regular and comprehensive training sessions for employees and contractors. The court acknowledged Comcare's statutory interest in enforcing workplace safety standards and exercised its discretion under the Federal Court of Australia Act 1976 to grant the declaration. The court found that the employer had contravened the Act by failing to adequately address the risks associated with horseplay around forklifts, leading to the employee's injury.

The court ordered Post Logistics Australasia Pty Ltd to pay a penalty of $165,000 to the Commonwealth and directed that the respondent pay Comcare’s costs as agreed, or in the absence of agreement, as taxed.

Orders

Orders of the court

1. Pursuant to clause 4 of Schedule 2 of the said Act, Post Logistics pay the Commonwealth a penalty of $165,000.

2. The Respondent is to pay Comcare’s costs as agreed, or in the absence of agreement, as taxed.

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

FLICK J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FLICK J

Whereas none of the “Take 5” sessions related to “horseplay”, there are now in place more regular and comprehensive training sessions directed to employees and contractors, including pickers and packers, regarding “horseplay” and appropriate behaviour in and around forklifts. A DECLARATION? Although cl 2 of sch 2 to the 1991 Act imposes a requirement upon this Court to make a declaration in the event that it considers there has been a breach of (in this case) s 16, the power of the Court to make such a declaration remains s 21 of the Federal Court of Australia Act1976 (Cth). The power conferred by s 21 is a discretionary power which is not to be limited by the laying down of rules as to the manner of its exercise: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. Mason CJ, Dawson, Toohey and Gaudron JJ there observed (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) 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. The manner in which the Court is to inform itself as to whether or not there has been a breach of the 1991 Act is not surprisingly left unspecified. Whether or not there has been a breach may involve, in some cases, a contested and lengthy hearing. Alternatively, and as in the present proceeding, the parties may provide to the Court a statement of agreed facts and limited further evidence. In regulatory contexts comparable to the present, this Court has informed itself as to those facts necessary for the granting of declaratory relief by reference to agreed facts and indeed the consent of the parties: Bank of Kuwait and the Middle East v Ship MV ‘Mawashi Al Gasseem’ (No 2) [2007] FCA 815 at [10]­–[16], 240 ALR 120 at 122–4; Australian Competition & Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J; Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20]–[30], ATPR 42–216; Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [74]–[79]; Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30], [34], ATPR 41–801.