Comcare v Commonwealth of Australia

REASONS FOR JUDGMENT 1 Judgment was delivered in this proceeding on 30 June 2009 (see Comcare v Commonwealth of Australia [2009] FCA 700). Paragraph 3 of orders made by consent on that day provided that the amended application, so far as it related to the Lost Section issue, stood adjourned until 1 April 2010. The circumstances in which the order was made are outlined at [110] - [112] of those reasons for judgment as follows: 110 The Court is asked to adjourn for one year that part of the proceeding which relates to the Lost Section issue. The application for adjournment is made pursuant to cl 16(3) of Sch 2 of the Act which is set out here again for convenience: (3) If proceedings relating to whether a declaration should be made against a person under clause 2 have commenced, the court may adjourn the proceedings if Comcare requests the court to do so on the grounds that Comcare considers that an appropriate written undertaking by the person under subclause (1) is in force. 111 It seems that this is the first occasion on which this provision has been considered by the Court. The section is curious because it does not stipulate whether the adjournment ordered is ever to come to an end, and if so, what consequence the ending of the period of the adjournment has on the proceeding which has been adjourned. One imagines that the concept is that if there has been no breach of the undertaking in the period of the adjournment, the proceeding would then be struck out without any declaration being made. In other words, the adjournment option is a way to deal with lesser contraventions in a fashion which allows the respondent to avoid the Court making a declaration of contravention. That is the intention of the parties in this case. Clause 5.7.2 of the undertaking states: If Comcare has not taken any action to remedy or rectify any default arising out of this Undertaking by 1 April 2010, the Proceedings will be dismissed. 112 Whilst that may be the general intent of the operation of the section, the result may not be available in this case. Paragraph 1 of Sch 1 of the undertaking in substance admits a contravention of the Act in respect of the Lost Section incident. Clause 2(1)(a) of Sch 2 of the Act obliges the Court to make a declaration of contravention if it considers that a person has breached, inter alia, s 16(1) of the Act. Where, as here, the undertaking effectively admits the contravention, it may not be possible for the Court to avoid the conclusion, and hence the obligation to make a declaration. The issue was not ventilated at the hearing and may be left to an adjourned date for hearing. 2 In those reasons for judgment, the Court raised a possible issue with the manner in which the parties were seeking to dispose of the matter. That issue related to whether, on the adjourned date, the Court was obliged by operation of cl 2(1)(a) of schedule 2 of the Occupational Health and Safety Act 1991 (Cth) (the Act) to make a declaration of contravention. The question now raised is whether the Court is obliged to make a declaration of contravention, where, prior to the adjournment date, the parties have lodged a notice of discontinuance by consent. 3 It is common ground that the Court should not make such a declaration but rather that the application should be discontinued without any determination of the issue in accordance with cl 5.7.2 of the original undertaking set out at [1] above. 4 The parties have taken steps to ensure that the precondition for the conclusion of the Lost Section of the proceeding is met. That precondition required that the applicant not take any action to remedy or rectify default arising out of the undertakings given by the respondent at the time of judgment in the earlier matter. At the insistance of the Court, an affidavit has been sworn by Steven Noel Kibble, Chief Executive Officer of the applicant, which explains in some detail not only that the applicant has not taken any action to remedy or rectify a default arising out of the undertaking, but also to demonstrate the way in which the respondent has complied with the terms of the undertaking. 5 It is an agreed position between the parties that the issue raised at [110] - [112] of the earlier reasons for judgment is answered by the filing of a notice of discontinuance. In that way it was contended that the issue before the Court is removed from consideration by the Court before the point at which the Court would otherwise need to determine whether to make a declaration of contravention. 6 As explained in the earlier reasons, the Court is given power by cl 16(3) of schedule 2 of the Act to adjourn proceedings on the giving of an undertaking. That provision can be seen as separate from the requirement in cl 2(1)(a) of schedule 2 which obliges the Court to make a declaration of contravention. The critical point in this case therefore is the terminology of cl 5.7.2 of the undertaking which envisaged that the proceedings would be "dismissed" if the precondition was met. 7 An ordinary understanding of an agreement that "proceedings will be dismissed" does not envisage that the proceedings will be discontinued by the filing of a notice of discontinuance. Rather, it envisages a judicial determination of the proceeding. I accept that it is now not the parties' intention that there be such a judicial determination. In that respect the undertaking either reflects an intention which has now changed or, alternatively, the undertaking was an inapt way of expressing the intention of the parties. 8 Whatever be the case, the parties are now at one on the issue. Consequently, the Court will act upon the notice of discontinuance. The result is that the proceeding is discontinued by consent. Clause 2(1)(a) of schedule 2 does not come into operation and the difficulty envisaged in the earlier reasons is thereby avoided. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.