FEDERAL COURT OF AUSTRALIA

Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987

OCCUPATIONAL HEALTH AND SAFETY – civil penalty – failure to take reasonable steps to protect health and safety – death of worker – statement of agreed facts – declaration as to contravention – imposition of pecuniary penalty – principles to be applied

Federal Court of Australia Act 1976 (Cth), s 21

Occupational Health and Safety Act 1991 (Cth), s 16(1), sch 2 pt 1

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 applied

Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834, ATPR 42-199 followed

Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65, ATPR 42–216 cited

Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885, ATPR 41–801 cited

Australian Competition & Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 cited

Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18, 161 ALR 79 followed

Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 cited

Bank of Kuwait and the Middle East v Ship MV ‘Mawashi Al Gasseem’ (No 2) [2007] FCA 815, 240 ALR 120 cited

Comcare v Commonwealth [2007] FCA 662, 163 FCR 207 followed

Comcare v National Gallery of Australia [2007] FCA 1548, 98 ALD 67 followed

Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317, 136 LGERA 89 cited

Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 cited

Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70, 168 FCR 383 applied

Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 cited

Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 considered

Veen v The Queen (No 2) (1988) 164 CLR 465 applied

COMCARE v POST LOGISTICS AUSTRALASIA PTY LIMITED (ACN 002 579 115)

NSD 753 of 2008

FLICK J

24 DECEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 753 of 2008

BETWEEN:

COMCARE

Applicant

AND:

POST LOGISTICS AUSTRALASIA PTY LIMITED

(ACN 002 579 115)

Respondent

JUDGE:	FLICK J
DATE OF ORDER:	24 DECEMBER 2008
WHERE MADE:	SYDNEY

THE COURT DECLARES THAT:

1. In or about March 2006 and on 25 May 2006 Post Logistics Australasia Pty Ltd contravened clause 2(1) of Schedule 2 of the Occupational Health and Safety Act 1991 (Cth) by reason of its having breached section 16(1) of the said Act in that:

(a) The duties of Post Logistics Australasia Pty Ltd under subsection 16(1) apply not only in relation to its employees, but also, to the extent provided for in subsection 16(4), in relation to its contractors, as defined in section 9A.

(b) In or about March 2006 its contractor Mr John Lapidario approached a moving forklift operated by its employee Mr Van Trot Tran and disconnected the power on that forklift.

(c) On another occasion in or about March 2006 Mr Lapidario, without any qualifications or training to do so, operated a moving forklift in warehouse 1 in the vicinity of Mr Tran.

(d) On another occasion in or about March 2006 Mr Lapidario approached an operating forklift operated at the time by Mr Tran and applied the handbrake.

(e) At approximately 2.45 pm on 25 May 2006 Mr Tran was operating a forklift from the driver’s seat in the vicinity of the work benches and immediately to the south of the southern-most rack of shelving at the Site. In an attempt to engage in horseplay with Mr Tran, Mr Lapidario climbed onto the forklift putting his right hand on Mr Tran’s head and neck, and his left hand under Mr Tran’s leg. The forklift travelled in reverse and Mr Lapidario was accidentally crushed between a pole and the forklift. Mr Lapidario died at the scene of the accident.

2. In this regard Post Logistics Australasia Pty Ltd breached its duty under section 16(1) of the Occupational Health and Safety Act 1991 (Cth) to take all reasonably practical steps to protect the health and safety at work of its employee Mr Tran and its contractor Mr Lapidario in that it:

(a) failed to provide adequate supervision or instruction to Mr Lapidario so as to ensure that he did not engage in the conduct set out above.

(b) failed to ensure that there was an adequate traffic management system in place to prevent or reduce the risk of Mr Lapidario coming into contact with a moving forklift.

3. The Commonwealth entity to which the conduct related is Post Logistics Australasia Pty Ltd.

THE COURT ORDERS THAT:

1. Pursuant to clause 4 of Schedule 2 of the said Act, Post Logistics pay the Commonwealth a penalty of $165,000.

2. The Respondent is to pay Comcare’s costs as agreed, or in the absence of agreement, as taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 753 of 2008

BETWEEN:

COMCARE

Applicant

AND:

POST LOGISTICS AUSTRALASIA PTY LIMITED

(ACN 002 579 115)

Respondent

JUDGE:	FLICK J
DATE:	24 DECEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 Mr John Lapidario was a young Phillipino man. He emigrated to Australia when he was 16 years old. Some four years later he was dead. He died on 25 May 2006.

2 Mr Lapidario was killed as a result of an accident that occurred on that day at a warehouse controlled by the Respondent at Wetherill Park, New South Wales. From 16 August 2004 until his death, he had been employed by a labour hire agency, Landmark Industrial Recruitment Pty Ltd (“Landmark”) and worked in the Respondent’s warehouse as a picker and packer.

3 At about 2.45 pm on 25 May 2006 a forklift was being driven at the warehouse by a certified forklift driver, Mr Tran. Mr Lapidario engaged in some “horseplay”. He climbed onto the forklift and placed his hand on the driver’s head and neck and his other hand under the driver’s leg. The reverse pedal was accidentally engaged and the forklift reversed. Mr Lapidario was crushed between the forklift and a pole. He could not be resuscitated and died at the scene.

4 His was not the first accident or death at the warehouse. In November 2002 an employee had been injured in a forklift collision. The Respondent was convicted under s 8(2) of the Occupational Health and Safety Act 2000 (NSW). In July 2003 an employee was killed. The Respondent was there convicted under s 8(1) of the New South Wales Act.

5 A report into the death of Mr Lapidario was undertaken by an Investigator appointed under s 40(2)(a) of the Occupational Health and Safety Act 1991 (Cth).

6 These tragic facts are the occasion of the present Application.

The Application

7 In its Application, Comcare seeks a declaration that Post Logistics Australasia Pty Limited (“Post Logistics”) has contravened subclause 2(1) of Schedule 2, Part 1 of the Occupational Health and Safety Act in respect of a breach of s 16(1) of the Act. Comcare also seeks an order for the payment of a pecuniary penalty.

8 Schedule 2 of the 1991 Act makes it mandatory for this Court to make a declaration where it considers that s 16 has been breached, but confers a discretion as to the imposition of a pecuniary penalty.

9 In proceedings seeking a declaration and a pecuniary penalty, the Court is to apply the rules of evidence and procedure for civil matters: sch 2, cl 8.

10 There is agreement between the parties that it is appropriate for the making of the declaration as sought and further agreement as to the imposition of a penalty in the sum of $165,000.

11 Section 16(1) provides as follows:

Duties of employers in relation to their employees etc.

(1) An employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees.

Section 16(4) is also of relevance. That sub-section provides as follows:

(4) The obligations of an employer in respect of the employer’s employees that are set out in subsections (1) and (2) apply also in respect of persons who are contractors of that employer but only in relation to:

(a) matters over which the employer has control; or

(b) matters over which the employer would have had control but for an express provision in an agreement made by the employer with such a contractor to the contrary, being matters over which the employer would, in the circumstances, usually be expected to have had control.

A “contractor” is further relevantly defined by s 9A as follows:

Contractor

(1) A contractor is:

(a) a Commonwealth contractor (see subsection (2)); or

(b) a Commonwealth authority contractor (see subsection (3)); or

Commonwealth contractor

(2) A Commonwealth contractor is a natural person (other than a Commonwealth employee or a Commonwealth authority employee) who performs work on Commonwealth premises in connection with a contract between:

(a) the Commonwealth; and

(b) that person or another person (whether a natural person or not);

which is in connection with an undertaking being carried on by the Commonwealth.

Schedule 2 relevantly provides as follows:

1 Courts that may exercise jurisdiction under this Part

The only courts that may exercise jurisdiction under this Part are the Federal Court of Australia and the Supreme Court of each State or Territory.

2 Declarations of contravention

(1) If a court considers that a person has breached one of the following provisions, or was involved in such a breach, it must make a declaration that the person has contravened this subclause:

(a) subsection 16(1) (duties of employers in relation to their employees etc.)…

…

And cl 4 of sch 2 provides as follows:

4 Pecuniary penalty orders

(1) If a court has declared, under subclause 2(1), a contravention of that subclause by a person because the person breached, or was involved in the breach of, a provision listed in that subclause, the court may order the person to pay the Commonwealth a pecuniary penalty.

(2) The pecuniary penalty must not exceed the amount stated in the table to be the maximum penalty in relation to the provision concerned.

The maximum penalty prescribed for a contravention of s 16(1) is 2,200 penalty units. A “penalty unit” is defined by s 4AA of the Crimes Act 1914 (Cth) as being $110.

12 Various responsibilities have been entrusted to Comcare by the 1991 Act including functions in respect to the provision of advice to employers (s 38A); the appointment of investigators to undertake investigations as to compliance with the Act (ss 40 and 41); the entry upon premises and requiring the provision of assistance with respect to the conduct of an investigation (ss 42 and 43); and the issuing of notices requiring “improvement” (s 47). Section 77(1) is the provision which (inter alia) authorises Comcare to institute proceedings for a breach of the Act.

13 For the purposes of resolving the Application, the parties helpfully prepared a Statement of Agreed Facts. Comcare also relied upon parts of an Affidavit of its employee who undertook the investigation into the death of Mr Lapidario, Ms Jackie Somerville. The Respondent relied upon parts of an Affidavit of a manager of the Respondent, Mr Michael Halloran. Reliance upon the balance of the evidence as filed became unnecessary given the agreement reached on the first day of the hearing as to the quantum of the penalty.

14 The facts as agreed disclose that Mr Lapidario was provided with what can only be described as minimal instructions directed at ensuring his safety.

15 On 12 August 2004 he completed an “OHS Induction Questionnaire”. On 16 August he received what is described as “induction training” and prior to commencement of work at the warehouse he received further “induction training”. That training consisted of a verbal instruction “to keep out of the way of moving machinery” and verbal instructions as to safety rules, emergency evacuation procedure, lifting, administrative matters and site amenities. He also watched an “OH&S Instruction Video” and received a certificate acknowledging that he had read an induction manual and completed a questionnaire. He also attended a series of “Take 5” talks, being talks taking about five minutes. Those “Take 5” talks covered a variety of matter varying from heat stress, drugs and alcohol and workplace emergencies.

16 Such training and instructions as he should have been given were not given by either Landmark or by the present Respondent.

17 The supervisors and team leaders of the present Respondent at the time had not received any specific training as to the performance of their duties. They had not been given adequate or clear instructions as to the need to ensure that there was no “horseplay” or “skylarking” in the vicinity of forklifts. They were expected to “learn on the job”. There was no program in place to formally evaluate or monitor the performance of supervisors or team leaders.

18 Since Mr Lapidario’s death, changes have taken place. A system has been put in place to monitor the performance of supervisors and team leaders. Traffic barriers have been put in place to separate moving forklifts from pedestrians. The site where Mr Lapidario was killed was previously an area shared by machinery and pedestrians. It is now only an area for the operation of forklifts.

19 Whereas none of the “Take 5” sessions related to “horseplay”, there are now in place more regular and comprehensive training sessions directed to employees and contractors, including pickers and packers, regarding “horseplay” and appropriate behaviour in and around forklifts.

A Declaration?

20 Although cl 2 of sch 2 to the 1991 Act imposes a requirement upon this Court to make a declaration in the event that it considers there has been a breach of (in this case) s 16, the power of the Court to make such a declaration remains s 21 of the Federal Court of Australia Act 1976 (Cth).

21 The power conferred by s 21 is a discretionary power which is not to be limited by the laying down of rules as to the manner of its exercise: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. Mason CJ, Dawson, Toohey and Gaudron JJ there observed (at 581–2):

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court's declaration will produce no foreseeable consequences for the parties”. (citations omitted)

22 Given the functions entrusted to Comcare by the 1991 Act, there can be no question but that Comcare has “a real interest” in securing the relief which is sought. Indeed, cl 5 to sch 2 of the 1991 Act expressly provides that either Comcare or an investigator may apply for a declaration of contravention.

23 The manner in which the Court is to inform itself as to whether or not there has been a breach of the 1991 Act is not surprisingly left unspecified. Whether or not there has been a breach may involve, in some cases, a contested and lengthy hearing. Alternatively, and as in the present proceeding, the parties may provide to the Court a statement of agreed factsand limited further evidence.

24 In regulatory contexts comparable to the present, this Court has informed itself as to those facts necessary for the granting of declaratory relief by reference to agreed facts and indeed the consent of the parties: Bank of Kuwait and the Middle East v Ship MV ‘Mawashi Al Gasseem’ (No 2) [2007] FCA 815 at [10]–[16], 240 ALR 120 at 122–4; Australian Competition & Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J; Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20]–[30], ATPR 42–216; Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [74]–[79]; Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30], [34], ATPR 41–801.

25 No different approach, it is considered, is warranted in the present proceeding.

26 The Statement of Agreed Facts, including the admission of those facts as pleaded in the Further Amended Statement of Claim, provides a basis upon which the Court can be satisfied that there has indeed been a breach of s 16(1) of the 1991 Act and those matters specified in cl 2(3) of sch 2 to that Act. Moreover, such of the Affidavit of Ms Somerville as was relied upon provided evidence in support of the Statement.

27 The parties are in agreement that there was a failure to “take all reasonably practicable steps to protect the health and safety” of Mr Tran, he being an “employee” of the Respondent; there was also agreement that there had been a failure to “take all reasonably practicable steps to protect the health and safety” of Mr Lapidario, he being a “contractor”. The finding in respect to Mr Lapidario arises by reason of the extended reach of s 16(1) effected by s 16(4) of the 1991 Act.

28 Declaratory relief should be granted. The form of the declaration was also the subject of agreement.

Quantification of Penalty: Principles To Be Applied

29 Clause 4 of sch 2 of the 1991 Act confers both a discretion to impose a penalty and further provides that any such penalty “must not exceed the amount stated in the table to be the maximum penalty”. But there the guidance provided by the legislature both begins and ends. The criteria by reference to which the discretion is to be exercised are left unspecified.

30 Schedule 2 to the Occupational Health and Safety Act provides another example of the recourse by the Commonwealth legislature to civil penalties as a means of regulation. As stated at [1.181] of the Explanatory Memorandum to the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002 (Cth):

New Schedule 2 is modelled in large part on the enforcement approach of the Commonwealth Authorities and Companies Act 1997, which is in turn modelled on the Corporation Law.

The Explanatory Memorandum also refers to:

… the additional flexibility given to employers to develop appropriate arrangements at the workplace level is balanced by a strong, effective and responsive enforcement regime by:

…

Providing for civil penalties as far as possible, reserving criminal penalties for more serious breaches of the Act where there has been a death or serious bodily harm. Criminal penalties are also being retained for offences which are more appropriately dealt with in the criminal justice system, such as contempt of the Commission or failing to attend before the Commission as a witness…

Although the present proceeding involved the death of Mr Lapidario, it should be noted that cl 18(1)(c) to sch 2 of the Act confines criminal prosecutions to those cases where death or serious bodily injury was the result of either negligence or recklessness. There was no suggestion that the death of Mr Lapidario was the result of either negligence or recklessness. Consideration can thus presently be confined to the discretion relevant to civil proceedings.

31 Having set the maximum penalty that may be imposed, the discretion as to that which is otherwise considered to be the appropriate penalty is one which must necessarily be informed by reference to the balance of the statutory scheme, including most relevantly the objects sought to be achieved. Those objects are specified in s 3 of the 1991 Act as follows:

Objects

The objects of this Act are:

(a) to secure the health, safety and welfare at work of employees of the Commonwealth, of Commonwealth authorities and of non Commonwealth licensees; and

(b) to protect persons at or near workplaces from risks to health and safety arising out of the activities of such employees at work; and

(c) to ensure that expert advice is available on occupational health and safety matters affecting employers, employees and contractors; and

(d) to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; and

(e) to foster a co operative consultative relationship between employers and employees on the health, safety and welfare of such employees at work; and

(f) to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations; and

(g) to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions.

The statutory scheme also relevantly includes Part 2 as it applies to s 16 and the duty of an employer to “take all reasonably practicable steps to protect the health and safety at work of the employer’s employees”. Such a duty must be regarded as fundamental.

32 In the statutory context of the present legislation, Madgwick J has focussed attention upon those considerations relevant to the imposition of a penalty in Comcare v Commonwealth [2007] FCA 662, 163 FCR 207. A member of the Australian Defence Force had there died in November 1994 as a result of heat stress sustained during an army training exercise. His Honour there observed:

[120] Decisions under the cognate New South Wales Act refer to the following considerations among others:

(i) the penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety;

(ii) it is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable;

(iii) the offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer;

(iv) the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety;

(v) a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision;

(vi) general deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act;

(vii) employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety;

(viii) regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration;

(xi) the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category;

(x) the objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties.

These considerations, it was concluded, “provide[d] useful, analogical, general guidance as to the approach to be taken in consideration of penalties under the Commonwealth Act”. His Honour noted that the maximum penalty was 2,200 penalty units, a penalty of less than $250,000. The maximum penalty would be appropriate where there had been a “conscious decision to flout the law”. A penalty of 1,800 penalty units ($198,000) was ordered. His Honour found that there had been “systemic failures of the most serious kind”: at [125].

33 In Comcare v National Gallery of Australia [2007] FCA 1548, 98 ALD 67 a penalty of $20,000 had been agreed between the parties and ordered by the Court. Whilst not downplaying the serious risks involved, the injuries sustained by the workers were relatively mild. Gyles J there further observed:

[8] All things considered, I am satisfied that the pecuniary penalty proposed is appropriate. As the cases indicate, it is not so much a question of me deciding what figure I would independently propose and then seeing whether it accords with the figure proposed. A commonsense approach is to take the agreed figure and give consideration to whether it is within the range of appropriate figures. In my opinion it is. I make the orders set out in the draft order which I have initialled and placed with the papers.

34 Although the particular legislative regime which is being enforced must always remain the source whereby considerations relevant to the imposition of a penalty are to be discerned, there nevertheless remain some more general considerations that inform the discretion being exercised.

35 Many other Commonwealth Acts provide for a regulator to approach this Court seeking an order for the imposition of a pecuniary penalty as a means of securing compliance with legislative provisions. A degree of learning has emerged from those authorities dealing with those other legislative provisions as to the matters to be taken into account when assessing a penalty.

36 In the statutory context of the Trade Practices Act 1974 (Cth), French J (as he then was) has attempted to summarise some of these considerations: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076. When assessing the penalty to be imposed pursuant to s 76(1) of the 1974 Act His Honour observed (at 52,152–52,153):

The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following:

1. The nature and extent of the contravening conduct.

2. The amount of loss or damage caused.

3. The circumstances in which the conduct took place.

4. The size of the contravening company.

5. The degree of power it has, as evidenced by its market share and ease of entry into the market.

6. The deliberateness of the contravention and the period over which it extended.

7. Whether the contravention arose out of the conduct of senior management or at a lower level.

8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.

9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

These considerations have since been applied to other legislative contexts: eg, Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [51], 136 LGERA 89; Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 at [30]; Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [24].

37 These considerations may also be applied to the task of assessing the penalty to be imposed under the current legislation. To some extent the considerations set forth by Madgwick J overlap with those set forth by French J; to some extent they do not.

38 Care must be taken to ensure that any listing of potentially relevant considerations do not themselves become an impermissible substitute for considering the terms of the legislation in issue or an unnecessary constraint upon a discretion conferred in otherwise unconfined terms. But the attempts that have been made by both Madgwick and French JJ (in particular) provide a useful touchstone of those matters that may be taken into account when assessing the penalty to be imposed. Those considerations set forth by Madgwick J are obviously more directed to the specific statutory context of ensuring the health and safety of workers than the more generally expressed considerations set forth by French J. But both, it is considered, are relevant to the present assessment of penalty.

39 A final matter of principle should also be noted. It is inappropriate to fix a penalty simply by reference to the quantum of a penalty imposed in another case. It was thus understood to be common ground between the parties to the present proceeding that it was not appropriate to regard (in particular) the penalty of $198,000 in Comcare v Commonwealth as itself fixing a “benchmark” against which other penalties are to be determined in cases involving death. In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285, Burchett and Kiefel JJ observed (at 295):

A hallmark of justice is equality before the law, and, other things being equal, corporations guilty of similar contraventions should incur similar penalties: Trade Practices Commission v Axive Pty Ltd [(1994) ATPR 41-368] (at 42,795). There should not be such an inequality as would suggest that the treatment meted out has not been even-handed: cf the criminal law case Lowe v The Queen (1984) 154 CLR 606. However, other things are rarely equal where contraventions of the Trade Practices Act are concerned. In the present case, differing circumstances, size, market power and responsibility for the contraventions, as well as other factors, complicate any attempt to compare the penalties imposed on the appellant with those imposed on the other corporations.

Another form of comparison is not appropriate. The facts of the instant case should not be compared with a particular reported case in order to derive therefrom the amount of the penalty to be fixed. Cases are authorities for matters of principle; but the penalty found to be appropriate, as a matter of fact, in the circumstances of one case cannot dictate the appropriate penalty in the different circumstances of another case. The point was well made by Spender J in Trade Practices Commission v Annand and Thompson Pty Ltd [(1987) ATPR 40-772] (at 48,394) when he said:

“Each case must, of course, be viewed on its own facts and facts may be infinite in their variety.”

It follows, as his Honour also said, that “[t]he quantum of penalties imposed in other cases can seldom be of very much direct assistance”.

A comparison of the facts in Comcare v Commonwealth and the facts in the present proceeding only serves to underline the point there being made by Burchett and Kiefell JJ (and by Spender J) — namely that the facts and circumstances of individual cases are infinitely diverse. The quantum of any penalty to be imposed must necessarily be fixed by reference to the peculiar facts arising in each case as and when they arise.

Quantification of Penalty: Agreement?

40 In the present proceeding it is considered that an appropriate penalty is $165,000 — that being the sum as agreed between the parties.

41 In imposing that penalty, consideration has been given to both:

· the agreement as between the parties; and

· the facts and circumstances as set forth in the Statement of Agreed Facts and such evidence as has been relied upon.

42 The extent to which this Court may inform itself as to the appropriate quantification of any penalty to be imposed by reference to any agreement between the parties has been the subject of consideration in the context of other legislation: eg, Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [33]–[42]. Reference was there made to the decision of the Full Court of this Court in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 and to the earlier decision in NW Frozen Foods. The Full Court in Mobil Oil continued on to observe:

[51] The following propositions emerge from the reasoning in NW Frozen Foods:

(i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act.

(ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another.

(iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed.

(iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC’s views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more “subjective” matters.

(v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so.

(vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court’s view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range.

In Comcare v National Gallery of Australia [2007] FCA 1548 at [4], 98 ALD 67 at 68 Gyles J referred to Mobil Oil and accepted that “that decision does provide appropriate guidance”.

43 Of particular concern is the need to ensure that this Court is “not merely giving effect to the wishes of the parties”: cf Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 at [18], 161 ALR 79 at 86 per French J. The Court is not to be regarded as a “rubber stamp”: Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 at [121], ATPR 42-199 per Weinberg J.

44 No different approach was advanced in the present proceeding.

45 In fixing the penalty at $165,000, considerations has been given in particular to the following matters, namely:

· the fact that the breach of the duty occasioned the death of Mr Lapidario;

· the lack of attention previously given to the training extended to supervisors and team leaders;

· the lack of attention previously given to the training of employees and contractors;

· the fact that there was a degree of “horseplay” engaged in by Mr Lapidario himself;

· the steps which have been implemented since his death in an effort to ensure that the health and safety of employees is now protected;

· the contrition expressed by the present Respondent; and

· the fact that the Respondent has been able to reach agreement with Comcare as to those facts considered by the parties to be relevant to the penalty to be imposed, thereby not necessitating a contested hearing. In so proceeding, it is accepted that the Respondent has expressed a “willingness to facilitate the course of justice”: Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 at [74], 168 FCR 383 at 404 per Stone and Buchanan JJ.

46 Consideration has also been given to:

· the two earlier events that took place in November 2002 and July 2003.

It would be inappropriate to increase the penalty now to be imposed by reason of those two earlier contraventions of the New South Wales Act — to do so “would be to impose a fresh penalty for past offences”: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ. But those events do assume some limited relevance. There was no explanation as to why those steps which have more recently been implemented in order to address the safety of employees working in the vicinity of forklifts were not implemented at a far earlier date. The dangers inherent in working in the vicinity of forklifts had very clearly emerged long ago.

47 It is considered that it is “appropriate” to give effect to the agreement between the parties as to penalty. Whether or not the Court would have reached the same figure is not to the point; the sum of $165,000, as agreed between the parties, is within the “permissible range”.

ORDERS

48 The Court declares that:

(b) In or about March 2006 its contractor Mr John Lapidario approached a moving forklift operated by its employee Mr Van Trot Tran and disconnected the power on that forklift.

(c) On another occasion in or about March 2006 Mr Lapidario, without any qualifications or training to do so, operated a moving forklift in warehouse 1 in the vicinity of Mr Tran.

(d) On another occasion in or about March 2006 Mr Lapidario approached an operating forklift operated at the time by Mr Tran and applied the handbrake.

(a) failed to provide adequate supervision or instruction to Mr Lapidario so as to ensure that he did not engage in the conduct set out above.

(b) failed to ensure that there was an adequate traffic management system in place to prevent or reduce the risk of Mr Lapidario coming into contact with a moving forklift.

3. The Commonwealth entity to which the conduct related is Post Logistics Australasia Pty Ltd.

49 The Court orders that:

1. Pursuant to clause 4 of Schedule 2 of the said Act, Post Logistics pay the Commonwealth a penalty of $165,000.

2. The Respondent is to pay Comcare’s costs as agreed, or in the absence of agreement, as taxed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 24 December 2008

Counsel for the Applicant:	Mr M Roder

Solicitor for the Applicant:	Australian Government Solicitor

Counsel for the Respondent:	Mr A Moses SC, Mr B Miles

Solicitor for the Respondent:	Holding Redlich

Date of Hearing:	16–17 December 2008

Date of Judgment:	24 December 2008

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