Comcare v John Holland Rail Pty Ltd

REASONS FOR JUDGMENT 1 This is a civil penalty proceeding brought by the applicant, Comcare, under the provisions of the Occupational Health and Safety Act (1991) (Cth) ("the OH&S Act"). Comcare seeks declarations of contravention of s 16(1) of the OH&S Act, together with an order that the first respondent and the second respondent pay pecuniary penalties to the Commonwealth. 2 The proceeding was listed for a 10 day trial commencing on 15 March 2011 and the trial commenced on that day. On 24 March 2011, the further hearing of the trial was adjourned. The circumstances in which that adjournment arose are dealt with in my reasons for judgment published as Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622. The trial is currently listed to resume on 4 July 2011 and it is expected that some 10 further days of hearing are required. 3 Comcare has today applied for an adjournment of the proceedings. The application for an adjournment is made pursuant to cl 16 of Schedule 2 of the OH&S Act ("cl 16"). Clause 16(1) relevantly provides that Comcare may accept a written undertaking relating to the fulfilment of an obligation under the OH&S Act, if the undertaking is given in writing to Comcare by a person who is required to fulfil the obligation. Clause 16(3) relevantly provides that if a proceeding relating to whether a declaration should be made against the person under cl 16(2) has 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 referred to in cl 16(1) is in force. 4 Clause 16(4) provides for what may happen if the Court considers the person has breached a term of the undertaking entered. That clause provides, in particular, that the Court may, if it thinks fit, revive any proceedings adjourned under cl 16(3). 5 Comcare has advised the Court that it considers that an appropriate written undertaking has been made by the respondents and is in force. A question has arisen as to whether it is necessary for the Court to come to the view that the undertaking in force is appropriate and was made on reasonable grounds. 6 In Comcare v Commonwealth of Australia (2009) 184 IR 441, North J raised that question but did not decide it. Comcare has come to Court today with an affidavit which I am told sets out the basis upon which Comcare contends that the undertaking in force is appropriate and was made on reasonable grounds. There is an issue as to whether I should see that affidavit, especially given that the legislation contemplates that any hearing that I now adjourn may need to be revived. It seems to me that there is no need for the Court to have material of that kind before it if the Court is satisfied that cl 16(3) does not require the Court to come to its own view as to whether there is a reasonable basis for the undertaking in force. Both Comcare and the respondents contend that it is not necessary for the Court to come to that view. 7 Where parties have resolved proceedings in which civil penalties are sought, it remains the responsibility of the Court to determine the appropriate penalty: Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51]. It seems to me, however, that different considerations arise under cl 16(3). Whilst the Court is reposed with a discretion as to whether to adjourn the proceedings or not, the legislature has expressly identified that the Court may do so on the ground that Comcare considers that an appropriate written undertaking is in force. 8 Whilst other factors may come into play in the exercise of that discretion, the appropriateness of the undertaking is identified as a matter for Comcare and Comcare's consideration. Comcare is the relevant regulator. It is a specialist body given specialist powers under the OH&S Act. It seems to me that in the circumstances contemplated by cl 16(3), it is not for the Court to second guess the appropriateness of undertakings given in circumstances where Comcare considers that an appropriate undertaking is in force. 9 All parties urged the Court to make orders adjourning the proceedings. No discretionary considerations have been put before the Court, which would support an adjournment not being granted. There is, as the Full Court said in Mobil Oil at [51], a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. 10 Accordingly, I am prepared to make an order adjourning the proceedings pursuant to cl 16(3) of Schedule 2 of the OH&S Act, and I will also make the necessary consequential orders. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.