In John Holland Pty Ltd v Comcare (2009) 260 ALR 106, the Full Court of the Federal Court (Sundberg, Edmonds and Tracey JJ) refused leave to the appellant (John Holland) to appeal an order of Jessup J granting an application by Comcare to join a second John Holland Group company to proceedings relating to a workplace incident. The Full Court endorsed the view of the primary judge, Jessup J, that not joining the second defendant to the proceedings would "bring the administration of justice into disrepute".
Background
In April 2007, John Holland won a contract with Yarra Trams to construct Melbourne's light rail network (Project). John Holland contracted with another John Holland Group company, John Holland Rail Pty Ltd (JH Rail), to construct the rail component of the Project. JH Rail hired workers for the Project from a labour hire company.
A worker suffered an injury while working on the St Kilda light railway track (Incident). Comcare commenced proceedings against JH Rail for alleged breaches of section 16(1) of the Occupational Health and Safety Act 1991 (Cth) (OHS Act), which contains a general duty for employers to maintain safe worksites. Whilst the worker was not a JH Rail employee (he was employed by the labour hire company), the obligation in section 16 applies to contractors of an employer in relation to matters over which the employer has control.
Comcare sought to join JH Rail to the proceedings under Order 6 Rule 8 of the Federal Court Rules which allows a party to be joined to proceedings where the joinder is necessary to ensure that all matters in dispute in the proceedings may be effectively and completely determined and adjudicated upon.
Jessup J had stated that "[t]he obligation to maintain a safe working environment falls upon the occupier of the premises in question". JH Rail contended that at the time of the Incident it did not have occupation of the Project premises; rather, occupation of the premises had been granted to John Holland by Yarra Trams. JH Rail then alleged that as it was not the occupier, the premises were not "non-Commonwealth licensee premises" within section 9A of the OHS Act. If this argument was successful, then Comcare's prosecution of JH Rail would fail as the facts would not fall within the scope of the duties under the OHS Act.
Judgment
On appeal, the Full Court upheld Jessup J's decision and endorsed his Honour's view that had JH Rail not been joined to the proceedings, Comcare may have then been required to run fresh proceedings against it, potentially leading to inconsistent judgments.
Implications
This decision demonstrates that courts are likely to join parties to proceedings of this nature where essential facts relating to the parties are in contention. In particular, where two entities both deny they were the occupier of a site, Comcare is likely to seek joinder of the other party to avoid "falling between two stools". The Full Court's decision indicates that joinder will be necessary so as not to bring the administration of justice into disrepute.
John Holland and JH Rail are yet to argue their respective positions in the prosecution proceedings relating to the Incident. The present joinder decision may result in parties giving greater consideration before raising particular defences in OHS prosecutions, where the defence may lead Comcare to prosecute other related entities. Such defences may ultimately prove to be hollow victories.
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