FEDERAL COURT OF AUSTRALIA
Comcare v Transpacific Industries Pty Ltd [2015] FCA 500
Citation: Comcare v Transpacific Industries Pty Ltd [2015] FCA 500 Parties: COMCARE v TRANSPACIFIC INDUSTRIES PTY LTD File number: WAD 486 of 2013 Judge: BARKER J Date of judgment: 22 May 2015 Catchwords: INDUSTRIAL LAW – admitted contraventions of ss 16 and 17 of the Occupational Health and Safety Act 1991 (Cth) – form of declarations – whether respondent liable to more than one pecuniary penalty – whether conduct “same conduct” pursuant to Sch 2 cl 7 of the Act – quantity of civil pecuniary penalty – particular circumstances – seriousness of breach – deterrence – mitigating factors Legislation: Building and Construction Industry Improvement Act 2005 (Cth)
Corporations Act 2001 (Cth)
Evidence Act 1995 (Cth)
Occupational Health and Safety Act 1991 (Cth) s 3, s 3(g), s 5, s 16(1), s 17, s 77, s 82(1), Sch 2 Pt 1 cl 2(1), cl 2(1)(a), cl 2(1)(b), cl 4, cl 5(1), cl 7
Safety Rehabilitation and Compensation Act 1988 (Cth) s 68, Pt V
Trade Practices Act 1974 (Cth) s 48, s 76(1), s 76(3)
Work Health and Safety Act 2011 (Cth)
Work Health and Safety (Transitional and Consequential Provisions) Act 2011 (Cth) Sch 2Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth)
Cases cited: Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 2) [2002] FCA 559; (2002) 190 ALR 169
Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336; [2014] ATPR 42-469
Australian Competition and Consumer Commission v Rural Press Limited [2001] FCA 1065; (2001) ATPR 41‑833
Australian Competition and Consumer Commission v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998; [2014] ATPR 42-481
Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323
Comcare v Commonwealth of Australia [2007] FCA 662; (2007) 163 FCR 207
Comcare v Commonwealth of Australia [2012] FCA 1419; (2012) 132 ALD 480
Comcare v John Holland Pty Ltd [2012] FCA 449
Comcare v John Holland Pty Ltd (No 2) [2009] FCA 1515; (2009) 191 IR 223
Comcare v John Holland Pty Ltd [2014] FCA 1191
Comcare v John Holland Rail Pty Ltd [2009] FCA 771; (2009)188 IR 415
Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 178 IR 200
Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168; (2012) 207 FCR 178
Comcare v The Commonwealth of Australia [2010] FCA 1331; (2010) 201 IR 93
Comcare v Transpacific Industries Pty Ltd [2012] FCA 90; (2012) 129 ALD 486
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236
Trade Practices Commission v CSR Ltd (1991) ATPR 41‑076
Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR…
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- Case
- [2015] FCA 500
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether Transpacific was liable for multiple pecuniary penalties for the same conduct and the appropriate quantum of penalty to be imposed. The court had to determine if the breaches constituted "same conduct" under Schedule 2, clause 7 of the Act and consider the particular circumstances, seriousness of the breach, and deterrence value of the penalty. Additionally, the court was required to assess mitigating factors in determining the appropriate penalty.
The court's reasoning focused on the gravity of Transpacific's breaches and the need for a penalty that would reflect the seriousness of the violations and provide both general and specific deterrence. The court acknowledged Transpacific's admissions of the breaches and considered the systemic issues within the company's maintenance and oversight processes. The court found that Transpacific’s failures were not isolated incidents but part of a broader pattern of negligence. The court ultimately determined that the breaches were severe and warranted a penalty at the upper end of the range for each of the four periods specified.
In conclusion, the court ordered Transpacific Industries Pty Ltd to pay a total pecuniary penalty, reflecting the gravity of its breaches and the need for deterrence. The penalty was intended to assure the community and employees that breaches of the occupational health and safety regime would be taken seriously.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Comcare submits the following inferences and conclusions are available to the Court as a result of the statement of agreed facts:(1)it was foreseeable that the truck would develop the brake defects (or something similar), as set out at [53] and [61] above;(2)the brake defects were present at the time of the fatal incident, as set out at [41], [42] and [47] above;(3)the brake defects were present at but were not identified nor were they rectified during the truck’s last service on 21 February 2011 or otherwise prior to the fatal incident, as set out at [57]‑[61] above;(4)Mr Henderson, the mechanic who failed to identify and/or rectify the brake defects on 21 February 2011, had received a written warning on 17 December 2010 for failing to meet and record all vehicle defects during his inspections, as set out at [76] above;(5)Transpacific had no formal system in place to supervise or monitor Mr Henderson’s work following his written warning, as set out at [78] above;(6)the brake defects were a cause of, or at least contributed to, the fatal incident, as set out at [41]‑[43] and [45]‑[47] above; (7)it was foreseeable that the brake defects (or similar) would be a cause of or contribute to a serious traffic accident, such as that which occurred, as set out at [42]‑[43] above;(8)the brake defects were not identified and/or rectified during any of the services carried out on the truck after the fatal incident despite each of those services being carried out by a different mechanic, as set out at [52]-[53] and [611] above; (9)but for the improvement notice issued by Comcare, Transpacific is unlikely to have identified or rectified the brake defects, as set out in [55] and [56] above; (10)Transpacific’s instructions to its mechanics after the fatal incident lacked sufficient specificity, in that the work orders to which each of the three mechanics worked merely required them to “check and adjust brakes”, as set out at [52] above;(11)Transpacific lacked any system by which the servicing of its vehicles was overseen, supervised or audited, as set out at [67] above;(12)Transpacific lacked any system to either:(a) accurately measure and record brake pad thicknesses; or(b) review and/or analyse recorded changes in brake pad thicknessesas set out at [71]-[73] above; and(13)accurate measurement and recording of the truck’s brake pad thicknesses over time and proper analysis of such thicknesses would have identified the fact that the brake pads were, apparently, not wearing as they should which would have allowed Transpacific to carry out proper investigations to determine the basis for that irregularity, as set out at [74] above.Submissions as to declarations Comcare submits (and say Transpacific agrees by its consent to the making of the four declarations) that the statement of agreed facts provides a proper basis for the Court to declare that Transpacific breached both ss 16(1) and 17 of the OHS Act on each of the four time periods identified.