John Holland Pty Ltd v Comcare

Case [2009] FCAFC 127

FEDERAL COURT OF AUSTRALIA

John Holland Pty Ltd v Comcare [2009] FCAFC 127

PRACTICE AND PROCEDURE – joinder of a further respondent on applicant’s application – joinder where necessary to ensure that all matters in dispute in the proceeding may be effectively and completely determined – meaning of “all matters in dispute”

Occupational Health and Safety Act 1991 (Cth) ss 9A(4), 16(1) and (4)
Evidence Act 1995 (Cth) s 140(2)(c)
Federal Court Rules O 6 r 8

Birtles v The Commonwealth [1960] VR 247 followed
Black v Houghton [1968] QdR 179 cited
Commonwealth Bank of Australia v Peto (No 2) (2006) 152 FCR 362 distinguished
Décor Corporation v Dart Industries Inc (1991) 33 FCR 397 cited
Edward v Lowther (1876) 24 WR 434 cited
Fernance v Nominal Defendant (1989) 17 NSWLR 710 cited
Munro & Co v O’Hanlon (1889) 15 VLR 300 followed
NCSC v Monsoon Nominees Pty Ltd (No 3) (1990) 9 ACLC 66 cited
News Ltd v Australian Football League Ltd (1996) 64 FCR 410 distinguished
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 distinguished
Qantas Airways Ltd v AF Little Pty Ltd (1981) 2 NSWLR 34 followed
Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384 distinguished
Warner Music Australia Ltd v Swiftel Communications Pty Ltd (2005) 67 IPR 27 considered

JOHN HOLLAND PTY LTD (ABN 11 004 282 268) v COMCARE

VID 480 of 2009

SUNDBERG, EDMONDS AND TRACEY JJ
22 SEPTEMBER 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 480 of 2009

GENERAL DIVISION
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

JOHN HOLLAND PTY LTD (ABN 11 004 282 268)
Applicant
AND:

COMCARE
Respondent

JUDGES:

SUNDBERG, EDMONDS AND TRACEY JJ

DATE OF ORDER:

22 SEPTEMBER 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Leave to appeal be refused.

2.The applicant pay the respondent’s costs of the application.

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 480 of 2009

GENERAL DIVISION
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

JOHN HOLLAND PTY LTD (ABN 11 004 282 268)
Applicant
AND:

COMCARE
Respondent

JUDGES:

SUNDBERG, EDMONDS AND TRACEY JJ

DATE:

22 SEPTEMBER 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Introduction

  1. The applicant (John Holland) seeks leave to appeal from an order of the primary judge that it be added as a respondent to a proceeding in which the respondent (Comcare) seeks a declaration that in consequence of a workplace accident John Holland Rail Pty Ltd (Rail) contravened s 16 of the Occupational Health and Safety Act 1991 (Cth) (the Act) and an order that Rail pay to the Commonwealth a pecuniary penalty.

  2. Comcare sought the joinder of John Holland in order to seek, in the alternative to the existing claim against Rail, comparable relief…

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Details
AGLC
John Holland Pty Ltd v Comcare [2009] FCAFC 127
Case
[2009] FCAFC 127
Decision Date

CaseChat Overview and Summary

The case of John Holland Pty Ltd v Comcare involved Comcare's application to join John Holland as a party in a proceeding against Rail, seeking alternative relief from John Holland in the event the original claim against Rail was unsuccessful. The proceedings were initiated by Comcare against Rail, alleging that Michael Merideth, an employee of Skilled Group Ltd, was injured while working on a section of the St Kilda light railway track. Comcare sought to join John Holland, claiming it was responsible for Merideth's injury as it was either Rail's contractor or a non-Commonwealth licensee under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The legal issues before the court involved determining whether John Holland could be held liable for Merideth's injury and whether it should be joined as a party in the proceedings. The central question was whether John Holland could be considered an employer or a non-Commonwealth licensee contractor under the Act, given the contractual and occupational arrangements between Rail and John Holland. The court needed to assess the applicability of the statutory definitions and obligations concerning non-Commonwealth licensee contractors and the extent of control Rail had over the premises and the work being performed there.

The court found that the primary judge's decision to not join John Holland was correct. The reasoning was grounded in the substantial body of case law that opposed John Holland's claims, particularly emphasizing the need to restrict interlocutory appeals regarding common practice decisions. The court noted that the primary judge's decision was not sufficiently doubtful to warrant reconsideration by the Full Court and highlighted the importance of adhering to precedents that limit such appeals. Consequently, the court refused leave to appeal, finding no merit in John Holland's arguments and affirming the primary judge's decision.

The final orders of the court were that leave to appeal be refused and that John Holland pay the respondent's costs of the application. This decision reinforces the principle that interlocutory appeals should be approached with caution, particularly when they challenge common practice decisions, and underscores the significance of adhering to established legal precedents.

Orders

Orders of the court

1. Leave to appeal be refused.

2. The applicant pay the respondent’s costs of the application.

Note:

Background

Background to the litigation

Comcare sought the joinder of John Holland in order to seek, in the alternative to the existing claim against Rail, comparable relief against John Holland.Factual background Michael Merideth, an employee of Skilled Group Ltd (Skilled), was injured while working on a section of the St Kilda light railway track (the premises). Comcare commenced the proceeding against Rail. It alleged that:(a)at all material times Rail was an employer and a non‑Commonwealth licensee within the meaning of s 5 of the Act;(b)in April 2007 John Holland was awarded a contract by Yarra Trams to conduct construction work on the premises;(c)John Holland contracted with Rail to carry out the rail component of the project (the undertaking);(d)pursuant to the contract John Holland and Rail were granted occupation of the premises, and at all material times the premises were occupied by Rail;(e)work at the premises was performed for Rail by a workforce that consisted of Rail’s employees and employees of Skilled including Mr Merideth; (f)Skilled had been engaged by Rail pursuant to a contract to perform work at the premises at the direction, and under the supervision, of Rail;(g)at the date of his injury Mr Merideth was performing work for Rail at the premises, in connection with a contract between Rail and Skilled and the undertaking being carried out by Rail;(h)by reason of the foregoing Mr Merideth was a non‑Commonwealth licensee contractor working for Rail within the meaning of s 9A(4) of the Act.The remainder of the pleading contains allegations about the injury and contravention by Rail of ss 16(1) and (2) of the Act. In its defence Rail denied that it had occupation of the premises at the time of the accident and said further that Yarra Trams had granted John Holland occupation of the premises. Rail alleged that by reason of it not being the occupier of the premises, that site was not a “non‑Commonwealth licensee premises” within s 9A(4). Pursuant to the joinder of John Holland, Comcare has amended its pleadings so as to allege that Mr Merideth was a non‑Commonwealth licensee contractor working for Rail or alternatively such a contractor working for John Holland.The legislation The basic duty to maintain a safe workplace is imposed by s 16 of the Act upon an “employer”. Section 16(4) provides:The obligations of an employer in respect of the employer’s employees that are set out in subsections (1) and (2) apply also in respect of persons who are contractors of that employer but only in relation to:(a)matters over which the employer has control; or(b)matters over which the employer would have had control but for an express provision in an agreement made by the employer with such a contractor to the contrary, being matters over which the employer would, in the circumstances, usually be expected to have had control. By s 9A(1) a “contractor” includes a “non‑Commonwealth licensee contractor”. Subsection (4) provides:A non‑Commonwealth licensee contractor of a particular non‑Commonwealth licensee is a natural person (other than an employee of the licensee) who performs work on non‑Commonwealth licensee premises of the licensee in connection with a contract between:(a)the licensee; and(b)that person or another person (whether a natural person or not);which is in connection with an undertaking being carried on by the licensee.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SUNDBERG, EDMONDS AND TRACEY JJ
In our view the primary judge’s decision is not attended with sufficient doubt to warrant reconsideration by a Full Court. Having regard to the strong body of authority opposed to John Holland’s case, we are surprised that it was thought provident to seek leave. This is especially so when the authorities stress the tight rein that should be kept on appeals dealing with common interlocutory decisions on matters of practice. See Décor Corporation v Dart Industries Inc (1991) 33 FCR 397 at 398‑400. We would refuse leave to appeal.Conclusion The application for leave to appeal is refused with costs.

Ratio Decidendi

Legal Principle Established

Established by: SUNDBERG, EDMONDS AND TRACEY JJ

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