FEDERAL COURT OF AUSTRALIA Comcare v Telstra Corporation Limited [2010] FCA 636 Citation: Comcare v Telstra Corporation Limited [2010] FCA 636 Parties: COMCARE v TELSTRA CORPORATION LIMITED (ACN 051 775 556) File number: QUD 205 of 2009 Judge: COLLIER J Date of judgment: 18 June 2010 Catchwords: PRACTICE AND PROCEDURE – application to vacate previous directions for filing evidence in light of draft enforceable undertaking provided by respondent to Comcare – whether interest of justice that orders be vacated Legislation: Comcare Enforcement Policy: Investigative and Enforcement Provisions of the Occupational Health and Safety Act 1991 Federal Court of Australia Act 1976 (Cth) Pt VB s 37M Occupational Health and Safety Act 1991 (Cth) Cases cited: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 cited Oceanic Sun Line Special Shipping Inc v Fay (1988) 165 CLR 197 cited Date of hearing: 18 June 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Counsel for the Applicant: Mr CJ Murdoch Solicitor for the Applicant: Minter Ellison Counsel for the Respondent: Mr AM Musgrave Solicitor for the Respondent: Norton Rose IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 205 of 2009 BETWEEN: COMCARE Applicant AND: TELSTRA CORPORATION LIMITED (ACN 051 775 556) Respondent JUDGE: COLLIER J DATE OF ORDER: 18 JUNE 2010 WHERE MADE: BRISBANE THE COURT ORDERS THAT: The respondent's oral application to vacate the orders of 7 May 2010 be dismissed. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 205 of 2009 BETWEEN: COMCARE Applicant AND: TELSTRA CORPORATION LIMITED (ACN 051 775 556) Respondent JUDGE: COLLIER J DATE: 18 JUNE 2010 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On 7 May 2010 the docket judge in the substantive proceedings, Spender J, made the following orders: 1. The respondent file and serve any affidavit material intended to be relied upon at the hearing of this application by 4pm on 25 June 2010. 2. The applicant file any affidavit material in reply intended to be relied upon at the hearing of the application by 4pm on 9 July 2010. 3. The matter be listed for trial directions at 9.30am on 20 July 2010. 4. Cost of today be costs in the cause. 2 The respondent to the substantive proceedings, Telstra Corporation Limited, this afternoon by oral application urgently sought the following orders: 1. The directions made by his Honour Justice Spender on 8 May 2010 (sic) be vacated. 2. The matter be listed for further review on < >. 3 The reason for the urgency is clear. Telstra has submitted a draft enforceable undertaking including requisite admissions of wrongdoing to the applicant Comcare, and wishes Comcare to consider the terms of that undertaking prior to either party incurring costs of preparing statements and attending a trial of the substantive proceedings. The current timetable requires Telstra to file relevant affidavit material by next Friday 25 June 2010. 4 Comcare opposes Telstra's application for orders in the terms sought by Telstra today. Background 5 In summary, the background to today's application is as follows. 6 The substantive application is pursuant to the Occupational Health and Safety Act 1991 (Cth) ("the Act"). Comcare seeks orders that Telstra breached the Act by failing to take all reasonable practical steps to ensure that persons at or near a workplace under its control were not exposed to risk to their health or safety arising from the conduct of its undertaking. Comcare seeks declarations as well as pecuniary penalties. 7 The circumstances of the alleged breaches of the Act occurred in respect of a manhole work pit located in Kent Street, Woolloongabba. Comcare alleges that the manhole was opened and left unattended with inappropriate or no temporary fencing around it. A vision-impaired pedestrian fell into the pit and sustained serious injury. Comcare also alleges that the manhole was left similarly open and unattended on a subsequent occasion. 8 On 4 February 2010 Telstra sought to have the existing pre-trial timetable vacated because it had submitted a formal draft enforceable undertaking to Comcare. On 22 March 2010 Comcare rejected Telstra's draft enforceable undertaking. 9 On 29 April 2010 Telstra submitted a proposal for a further enforceable undertaking. On 6 May 2010 Comcare indicated that the proposal for an enforceable undertaking did not constitute a sufficient undertaking within the Act and the Comcare Enforcement Policy: Investigative and Enforcement Provisions of the Occupational Health and Safety Act 1991. 10 On 7 May Spender J made the directions set out above. In the course of doing so, the following conversation took place between Mr Anderson for Telstra, and his Honour: MR ANDERSON: Your Honour, arising out of the meeting of 15 April, which was the without prejudice meeting, there was an open letter sent – as I've already referred to which is referred to at paragraph 14 of the affidavit – and in that letter my client was seeking some comment in relation to options to refine what had previously put to Comcare in relation to the terms of the enforceable undertaking. The response in relation to that was only received at 3.15pm yesterday afternoon. HIS HONOUR: All right. Well it seems to me, quite frankly, that your – there's no reason why your negotiations about whether Comcare will accept or what the content of the enforceable undertaking might be cannot continue in parallel with the progress of this litigation. MR ANDERSON: Your Honour, my client is simply seeking a single – small period of time to formally put to Comcare any further material that he can by way of an enforceable undertaking to seek to resolve the matter. Clearly, if that can't be achieved then the matter will need to progress. HIS HONOUR: Yes. All right. It seems to me that there's no reason why you can't immediately proceed to do that. But there seems to be no reason why – at least I can't make an order that is sufficiently long in time to progress the matter. See, the proposed order 1 in Comcare's draft minute requires you, at the moment, to serve any affidavit material on which you intend to rely by 4pm on 18 June 2010. That's five weeks away. It seems to me that if I give you an extra week – so that it was 25 June – you've got a month before you can try and resolve the matter by acceptance of an enforceable undertaking that's acceptable at Comcare. But if that fails, then you have a further two weeks in which you can file your material. So that, essentially, you've got the opportunity to attempt to progress the matter by way of the parallel enforceable undertaking route but if that fails you have quite an extended period during which you should come to the party by way of material in the court. (TS 7 May 2010 p 11 ll 1-29) 11 On 3 June 2010 Telstra submitted a second formal draft enforceable undertaking for consideration by Comcare. On 11 June 2010 Comcare indicated that it would not consent to an adjournment of the Court timetable ordered by Spender J on 7 May 2010. Submissions 12 In support of the application to vacate the orders of Spender J of 7 May 2010, Telstra submits in summary: · An enforceable undertaking as proposed by Telstra will be of greater social utility, and better promote the objects of the Act set out in s 3 of the Act, than the making of a mere declaration of non-compliance. · Telstra has demonstrated a genuine concern to put in place an enforceable undertaking satisfactory to Comcare. Telstra accepts however that Comcare is not obliged to accept any enforceable undertaking proposed by Telstra. · In the Comcare Enforcement Policy: Investigative and Enforcement Provisions of the Occupational Health and Safety Act 1991 Comcare has explained policy considerations which it regards as relevant, and listed matters to which it will attach weight in considering a draft enforceable undertaking submitted to it. · No further steps should be taken in the proceedings until Comcare has considered the draft enforceable undertaking in accordance with its own stated policy. · To require to prepare and file affidavit material in accordance with the directions previously made while simultaneously endeavouring to meet Comcare's requirements for an enforceable undertaking represents an unreasonable imposition on a litigant. · The resolution of these proceedings by appropriate enforceable undertaking is more consistent with the overarching purpose set out in the Federal Court of Australia Act 1976 (Cth) Pt VB "Case Management in Civil Proceedings". In particular, s 37M provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. · Resolution of these proceedings by enforceable undertaking will be faster, more effective and more thorough than a mere declaration of non-compliance. It will also result in a more just and socially useful outcome without imposing substantial expenses on the parties, and will facilitate greater efficiency in the disposal of the court's case load. 13 Opposing the application, Comcare submits in summary: · It is not in the interests of justice to vacate the orders of Spender J of 7 May 2010. · On 7 May 2010 Spender J made orders extending the time by which Telstra was required to file affidavit by one week, that is until 25 June 2010. His Honour's rationale was that Telstra would have one month to finalise and submit a draft enforceable undertaking to Comcare. However in fact Telstra did not submit such an undertaking until 3 June 2010 – that is 4 weeks after the hearing before his Honour. · There is no evidence before the Court as to costs which would be incurred by Telstra or any third party subcontractors (as submitted by Mr Musgrave for Telstra) should the current directions stand. Indeed, it is clear that considerable affidavit material has already been filed in these proceedings. It is also clear from the draft enforceable undertaking submitted to Comcare (and annexed to the affidavit of Mr Aaron Anderson filed 18 June 2010) that Telstra has made admissions in respect of its conduct. · This is the second occasion on which Telstra has submitted a formal draft enforceable undertaking to Comcare. Comcare rejected the first draft enforceable undertaking. The proposition advanced by Telstra, namely that the Court timetable ought to be suspended while Comcare is in the process of considering a draft enforceable undertaking, could mean that the trial of the substantive proceedings is indefinitely postponed while further drafts are put forward for Comcare's consideration. Consideration 14 In my view the orders of Spender J of 7 May 2010 should stand. I am not persuaded that it is appropriate to vacate those orders while Comcare is considering the draft enforceable undertaking submitted by Telstra. 15 First, I agree with the submission of Mr Murdoch for Comcare that an approach suspending the Court timetable while Comcare is in the process of considering a draft enforceable undertaking is potentially unfair to Comcare, particularly in circumstances where successive draft enforceable undertakings are submitted. While there is no reason to doubt the bona fides of Telstra in these proceedings or its genuine concern to resolve the substantive proceedings, I am also mindful that Comcare has commenced litigation in this Court and is entitled to see its application treated expeditiously by the Court: Oceanic Sun Line Special Shipping Inc v Fay (1988) 165 CLR 197 at 239, 241 and Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 at 430. 16 Second, I note that on 7 May 2010 Spender J was prepared to extend the time by which Telstra was required to file affidavit material by one week, but no more. Indeed his Honour's orders of 7 May 2010 were, in effect, an indulgence to Telstra to allow it the opportunity to present its draft enforceable undertaking to Comcare so as to seek expeditious resolution of the matter. While Telstra has submitted that its undertaking is a complex document and an additional four weeks to prepare it is not unexpected, it is clear that this was not a picture presented to Spender J on 7 May 2010. I am not persuaded that the orders sought today by Telstra, which in effect would constitute a further indulgence, are justified in the circumstances. 17 Third, and following this point, the Court may be more receptive to an application to vacate orders for filing of evidence in circumstances where the draft enforceable undertaking has been actually accepted by Comcare. The fact that a respondent has provided a draft enforceable undertaking to Comcare in the circumstances where Comcare is considering the undertaking, while encouraging, does not spell the resolution of the litigation before the Court or obviate the need to maintain legal process. I note that Spender J on 7 May 2010 expressed the view that there was no reason why the negotiations between the parties could not continue in parallel with the progress of the litigation. I respectfully adopt that sentiment. 18 Fourth, I am not satisfied that Telstra will be unfairly burdened in the circumstances by the requirement to file affidavit material by 25 June 2010. As I have already noted, considerable affidavit material has already been filed. Additional burden on third parties to provide affidavit evidence is unclear if the timetable remains in place. 19 Finally, while I note Telstra's contentions concerning the effectiveness of enforceable undertakings, whether Comcare accepts the draft enforceable undertaking submitted by Telstra to resolve the proceedings is a matter for Comcare. At the conclusion of his submissions Mr Musgrave submitted, in summary, that a trial of the substantive proceedings would be of less usefulness than the compendious enforceable undertaking Telstra is prepared to give Comcare. That, of course, is again a matter for Comcare to decide. As I observed earlier in this judgment, Comcare has commenced proceedings in this Court. In the absence of resolution of the dispute before it, this Court will adjudicate it, including setting a timetable towards final hearing. 20 The appropriate order is to dismiss Telstra's application to vacate the orders of Spender J of 7 May 2010. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 June 2010