John Holland Pty Ltd v Comcare [2009] FCAFC 127 | Case summary

Primary judge's reasons 10 After observing that it was common ground that Rail was a "non‑Commonwealth licensee" and that Rail contends that Mr Merideth was not a "non‑Commonwealth licensee contractor" because the place where he was working was not "non‑Commonwealth licensee premises" of Rail, but rather "non‑Commonwealth licensee premises" of John Holland, the primary judge said at [6]: The position, therefore, comes down to this. The obligation to maintain a safe working environment falls upon the occupier of the premises in question. Premises normally occupied by Yarra Trams were, for the purposes of the construction project, given over to John Holland or to [Rail]. Both are members of the same corporate group. At this stage, the exact nature of the arrangements as between John Holland and [Rail] is not clear. [Rail] denies that it is the occupier of the premises. If it succeeds in that denial, it will, it seems, succeed in the proceeding generally. In that eventuality, the applicant would be obliged to commence fresh proceedings against John Holland. All of the facts and circumstances which had been proved, and all of the issues of law which had been resolved, in the current proceeding would then have to be revisited. However, John Holland would not be bound by the ruling made in the present proceeding that [Rail] was not the occupier. It would be free to contend that it was not the occupier. Since it has not been proposed by anyone that an entity other than [Rail] or John Holland was the occupier at the relevant time, the potential for inconsistent judgments is obvious. 11 After referring to Order 6 rule 8(1), the primary judge said at [7]: In the absence of authority which I should follow, I would have no hesitation in concluding that the circumstances are such as to call for the addition of John Holland as a party under this provision. Manifestly, the premises in question were occupied by someone, and the applicant contends that there was, on those premises, a contravention of s 16(1) of the OHS Act. The convenience, and justice, of having the question of occupancy decided in a single proceeding to which all relevant parties are joined does seem so obvious as to require no further elaboration. John Holland might well have been made a party at the outset and, had the applicant then known of the position apropos occupancy which [Rail] now takes, it may be inferred that it would have joined both companies at that stage. That position, however, was disclosed only upon the filing of [Rail's] Defence, which then gave rise, in my view, to the very circumstance to which par (b) of O 6 r 8(1) refers. 12 His Honour then dealt with the authorities which it was said showed that Order 6 rule 8(1) was not available in the present case. After for the most part distinguishing them, he concluded at [17]: A matter in dispute in this proceeding is whether [Rail] was the occupier of the premises at the relevant time. [Rail] denies that it was. It alleges that John Holland was the occupier. If that dispute were determined only as between the applicant and [Rail], it would not be effectually or completely determined because the court would have proceeded unaware of what John Holland would say on the subject, and John Holland (which might by then have been found to be the occupier) would not be bound by the result. The course which the submissions made on behalf of John Holland silently imply - giving John Holland, in a later proceeding, the opportunity to contend that it was indeed [Rail] that was occupier of the premises at the relevant time - would stand as a conspicuous and, in my view, embarrassing demonstration of the ineffectual and incomplete nature of the court's determination in this proceeding. Indeed, such a course would so manifestly be calculated to bring the administration of justice into disrepute as to justify the conclusion that the joinder of John Holland is necessary within the terms of r 8(1)(b).

John Holland's contentions 13 John Holland first contends that the primary judge erred in his construction of ss 9A(4), 16(1) and (4) of the Act. It says that his Honour's finding that he was confronted with an "either/or" situation shows that he failed to appreciate that before Comcare can establish that John Holland contravened s 16(1) it would have to prove: (a) the existence of a contract between John Holland and Mr Merideth; (b) alternatively to (a), the existence of a contract between John Holland and another person (here, Skilled); (c) that Mr Merideth was performing work on the premises; (d) that Mr Merideth was performing work in connection with any contract proved; (e) that the contract in connection with which work was performed was a contract in connection with an undertaking being carried out by John Holland; and (f) that the injury happened in the course of performance of work over which John Holland had control. 14 John Holland submits that there was no proper basis for the primary judge's "determinative conclusion" that, if Comcare fails to prove its case against Rail to the standard required, it will necessarily prove to the same standard a different case against John Holland. The "standard required" is a reference to s 140(2)(c) of the Evidence Act 1995 (Cth), which requires a court to take into account, when deciding whether it is satisfied that a case has been proved on the balance of probabilities, the gravity of the matter alleged. 15 The expression "either/or" referred to at [13] was used by the primary judge when distinguishing Commonwealth Bank of Australia v Peto (No 2) (2006) 152 FCR 362 upon which John Holland relied. His Honour said that unlike the judge in that case, he was faced with a true "either‑or" situation, in which the success of Rail's defence will have the necessary consequence that John Holland was the contravening party "(assuming, for present purposes, that contravention there was)". 16 We do not agree that the primary judge failed to understand the structure and interaction of the relevant provisions of the Act. In particular we do not accept John Holland's contention that the primary judge said that Comcare's failure to prove its case against Rail will establish the case against John Holland. As appears from the passage we have quoted at [15], his Honour's observation that, as between John Holland and Rail, liability will be determined according to which was the occupier of the premises, assumes that all other elements of the cause of action are made out. The same qualification is repeated at [13] of his Honour's reasons. 17 As to the matters listed at [13], we accept Comcare's submission that in order to succeed at trial it does not have to establish a contract between John Holland and Mr Merideth, or between John Holland and Skilled. It is sufficient if there is a contract, arrangement or understanding between John Holland and Rail. This is clear from s 9A(4) and the definitions in s 5. 18 John Holland next contends that the primary judge erred in his construction of Order 6 rule 8(1)(b) by failing to follow earlier decisions of the Court without concluding that they were clearly wrong, and by purporting to distinguish earlier decisions without foundation. 19 We will deal at [25] to [28] with his Honour's treatment of the cases upon which John Holland relied. But first we will examine the authorities on the ambit of Order 6 rule 8(1)(b). John Holland propounds a narrow construction of the words "all matters in dispute in the proceeding". Thus it contends that Comcare's pursuit of an order that Rail pay to the Commonwealth a pecuniary penalty could have been effectually and completely determined and adjudicated upon without the joinder of John Holland. That reading of par (b) does not accord with the construction that has for a very long time been given to par (b) and its predecessors. 20 In Munro & Co v O'Hanlon (1889) 15 VLR 300 the Full Court of the Supreme Court of Victoria dealt with an earlier form of the second limb of rule 8(1)(b) (Order 16 rule 11 of the Supreme Court Rules) which spoke of the joinder of any parties "whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter". In that case the plaintiff sued O'Hanlon for calls on shares of which he was the registered holder. O'Hanlon pleaded infancy, and in his answers to interrogatories stated that he had never bought the shares, but that they had been bought by one Moffatt, in whose office he was employed as a clerk, and that the shares had been transferred in his (O'Hanlon's) name. The primary judge refused the plaintiff's application to join Moffatt as a defendant. The Full Court upheld the plaintiff's appeal. Higinbotham CJ said at 304‑305: What are the questions involved in any particular case when an application like this is made? In the present case we conceive that the particular question raised in the action originally commenced between the plaintiff and O'Hanlon is: "Who is liable to pay the calls to the plaintiff?" … The words "question involved in cause or matter" have been the subject of legal decisions, and we think that these decisions show that these words include something more than the words "questions in the action". His Honour referred to Edward v Lowther (1876) 24 WR 434, which he said showed that not only may a claim against a new defendant be a claim involved in the cause or matter as between the plaintiff and the original defendant, but it may raise a claim although it be inconsistent with the claim as between the original parties. The Chief Justice referred to other cases to the same effect, and concluded: Now, the questions involved in this action being: "Who is liable to pay to the plaintiff the amount of these calls?" and the plaintiff having the right to bring his action originally in the alternative form against either the registered holder of the shares or the person who is not registered, but who may be liable for damages for his acts in connection with his shares, we think that these are questions which require for their settlement the addition of the defendant Moffatt. Holroyd J's reasons were to the same effect. Kerferd J concurred. 21 Munro & Co 15 VLR 300has been applied in many cases since. Birtles v The Commonwealth [1960] VR 247 is a well‑known example. There Adam J rejected the contention that "all the questions involved" in Order 16 rule 11 meant the very questions raised in the action upon the answers to which depended the liability or otherwise of the original defendants; that the defendant to be added must be directly affected in the enjoyment of his legal rights by the order sought by the plaintiff in the action against the original defendant. Adam J adopted the construction that questions involved in an existing action included: questions arising out of the transaction or series of transactions on which the cause of action was based. These would include the question whether, if the original defendant is not liable to compensate the plaintiff for damage suffered by him, some other person proposed to be added may be considered liable in the circumstances. 22 It will be observed that the construction Adam J rejected is John Holland's very submission recorded at [19]. 23 The wording of Order 6 rule 8(b) is not exactly the same as that in Munro & Co 15 VLR 300 and Birtles. Rule 8(b) employs the words "all matters in dispute" rather than "all questions involved". But later cases on rules the same as rule 8(b) have applied the earlier Victorian cases. Thus in Qantas Airways Ltd v AF Little Pty Ltd (1981) 2 NSWLR 34 at 38 Glass JA, with whom Samuels J agreed, said that where a plaintiff seeks to add a defendant: the phrase "all matters in dispute in the proceedings" should not be construed as limited to matters arising on the existing pleadings. It may also properly include those disputed issues of fact which are subjacent to the pleadings. For present purposes the phrase in my opinion includes questions such as whose default caused the instability of the structure and who is liable to the plaintiff in damages for such instability. When the plaintiff asserts on tenable grounds that such matters of dispute cannot be completely determined without the joinder of the builder as a party, a ground for the exercise of the power given by r 8 is made out. The observations of Mahoney JA at 54 are to the same effect. 24 The same approach has been taken by Supreme Courts in Queensland and Western Australia: Black v Houghton [1968] QdR 179 and NCSC v Monsoon Nominees Pty Ltd (No 3) (1990) 9 ACLC 66. 25 None of the cases we have referred to were drawn to the primary judge's attention. As is apparent, they are inconsistent with the construction propounded by John Holland, which must be rejected. We note that counsel who appeared for Comcare before us did not appear below. 26 John Holland complained about the primary judge's treatment of the cases on which it relied. The principal case was Warner Music Australia Ltd v Swiftel Communications Pty Ltd (2005) 67 IPR 27 where, without referring to any authority, Branson J expressed the tentative view that rule 8 is concerned with proceedings improperly constituted by reason of the failure to join a person as a party. The primary judge disagreed. There was no occasion for his Honour to have determined, before declining to follow Branson J, that her Honour was "clearly wrong". Not only was her observation tentative. It was obiter because she determined the issue of joinder under Order 6 rule 2. The primary judge's rejection of her Honour's narrow reading of rule 8 was of course supported by the cases to which he was not referred. 27 Similarly, the passage in the reasons of Sheppard J in Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384 at 386 is inconsistent with the cases to which we have referred, and is in any event distinguishable for the reasons the primary judge gave at [8]. 28 Commonwealth Bank of Australia v Peto (No 2) (2006) 152 FCR 362 (referred to at [15] above) does not assist John Holland. At [35] Rares J referred to the observations of Gleeson CJ in Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 722 that "all matters in dispute in the proceedings" in rule 8(1)(b) is not to be construed as limited to matters arising under the existing pleadings. 29 News Ltd v Australian Football League Ltd (1996) 64 FCR 410 contains nothing that assists John Holland. The Full Court's observations at 523‑525 were directed to rule 8(1)(a). In that case persons who had not been joined as parties, but who were heard as interveners on appeal, successfully contended that the primary judge had erred by making orders which affected them in various ways when they had not been parties. Their Honours adopted a test propounded by the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 56: "will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?" We agree with the primary judge that "it is something of a distraction to propose that the present case can be decided only by reference to a test crafted with an eye on the circumstances of a non‑party who, to advance his or her own position or to achieve procedural fairness, needed and wanted to be heard". As his Honour went on to say, the present case falls to be determined by reference to the words of rule 8(1)(b). 30 John Holland took exception to various "findings" by the primary judge that it alleged were irrelevant. The first was that if Rail succeeded in its denial that it was the occupier of the premises Comcare "would be obligated to commence fresh proceedings against John Holland". That is hardly a finding. It is more a rumination. His Honour was simply making the point that the consequence of John Holland's stance was that if, having lost against Rail, Comcare wanted to pursue John Holland, it would have to run a second action. In any event, that was a matter he was entitled to take into account, even though it was outside the pleaded case. See the discussion at [20]‑[24] above. In Qantas Airways 2 NSWLR 34 at 54 Mahoney JA said that if Qantas' existing claim against the architects and engineers were to fail because the builder was responsible for the defective brickwork, Qantas would have to commence a separate proceeding against the builder, who might succeed in establishing that he was not responsible but the architects or engineers were. That was plainly thought to be a relevant consideration. To the same effect is the observation of Adam J in Birtles [1960] VR at 251 about saving the plaintiff from the "fate of falling between two stools". 31 The second finding objected to by John Holland was that if, having failed against Rail, Comcare sued John Holland, "all of the facts and circumstances which had been proved and all the issues of law which had been resolved in the current proceeding would then have to be revisited". What we have said at [30] applies to this complaint. 32 The third finding is that the success of Rail's defence "will have the necessary consequence that John Holland was the contravening party (assuming, for present purposes, that contravention there was)". This is simply stating that if Rail were found not to be the occupier of the premises, John Holland would be the occupier, and if a contravention were established, Comcare would succeed against John Holland. That is not an irrelevant consideration. 33 The fourth finding is the primary judge's observation that "the potential for inconsistent judgments is obvious". This is dealt with by what we have said at [30] and [31]. 34 The fifth finding is that John Holland would, in any proceeding brought against it by Comcare, contend that Rail was the occupier of the premises at the relevant time. This does not accurately render what the primary judge said. His Honour expressed the view that John Holland's submissions "silently imply" that in any such proceeding it would have "the opportunity to contend that it was indeed [Rail] that was the occupier". That was merely an inference or an educated guess as to the reason for John Holland's opposition to joinder. It was plainly a consideration relevant to joinder. See [30] above.

John Holland Pty Ltd v Comcare

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