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
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
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
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.
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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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