FEDERAL COURT OF AUSTRALIA Comcare v John Holland Rail Pty Ltd [2010] FCA 981 Citation: Comcare v John Holland Rail Pty Ltd [2010] FCA 981 Parties: COMCARE v JOHN HOLLAND RAIL PTY LTD (ABN 61 009 252 653) and JOHN HOLLAND PTY LTD (ABN 11 004 282 268) File number: VID 660 of 2008 Judge: BROMBERG J Date of judgment: 7 September 2010 Catchwords: PRACTICE AND PROCEDURE – Whether ends of justice render it expedient to direct a trial by jury – alleged contraventions of Occupational Health and Safety Act 1991 (Cth) – usual mode of trial is by judge without a jury – no special reason demonstrated to justify departure from usual mode of trial – Federal Court of Australia Act 1976 (Cth) ss 39, 40. Legislation: Conciliation and Arbitration Act 1904 (Cth) Crimes Act 1914 (Cth), ss 4H, 4JA Federal Court of Australia Act 1976 (Cth), ss 39, 40 High Court Procedure Act 1903-1950, ss 12, 13 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5(4) Occupational Health and Safety Act 1991 (Cth), s 16 Supreme Court (General Procedure) Rules 2005, O 47 Supreme Court Act 1970 (NSW), s 85 Trade Practices Act 1974, (Cth), s 86A Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (Northern Territory) (2009) 239 CLR 27 Australian Securities and Investments Commission v Matthews [1999] FCA 706 Commonwealth Bank of Australia v Rigg [2001] FCA 590 Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR 40-887 Cross v Theiss Pty Ltd [2006] NSWSC 1455 Dinnison v Commonwealth of Australia (2000) 106 FCR 418 Gargan v Commonwealth Bank of Australia [2004] FCA 641 Harding v Deputy Commissioner of Taxation [2008] FCA 1403 Howard v Gallagher (1988) 79 ALR 111 Howard v Gallagher (No 1) (1986) 69 ALR 424 Insurance Commissioner v Australian Associated Motor Insurers Limited (1982) 65 FLR 172 Kingswell v The Queen (1985) 159 CLR 264 Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39 McDermott v Collien (1953) 87 CLR 154 Muir v Council of Trinity Grammar School [2005] NSWSC 555 Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49 Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Ra v Nationwide News Pty Ltd (2009) 182 FCR 148 Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd [2002] FCA 278 Date of hearing: 10 August 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 66 Counsel for the Applicant: Mr P O'Grady Solicitor for the Applicant: Thomsons Lawyers Counsel for the Respondents: Mr M Wyles SC with Dr T McEvoy Solicitor for the Respondents: Herbert Geer IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 660 of 2008 BETWEEN: COMCARE Applicant AND: JOHN HOLLAND RAIL PTY LTD (ABN 61 009 252 653) First Respondent JOHN HOLLAND PTY LTD (ABN 11 004 282 268) Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 7 SEPTEMBER 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The respondents' notice of motion dated 9 July 2010 be dismissed. 2. The respondents pay the applicant's costs of and incidental to the notice of motion. 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 VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 660 of 2008 BETWEEN: COMCARE Applicant AND: JOHN HOLLAND RAIL PTY LTD (ABN 61 009 252 653) First Respondent JOHN HOLLAND PTY LTD (ABN 11 004 282 268) Second Respondent JUDGE: BROMBERG J DATE: 7 september 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT introduction 1 This is a civil penalty proceeding brought by the applicant ("Comcare") under the provisions of the Occupational Health and Safety Act 1991 (Cth) ("the OH&S Act"). Comcare seeks declarations of contravention of s 16(1) of the OH&S Act, together with an order that the respondents (collectively "John Holland") pay pecuniary penalties to the Commonwealth. 2 The provisions of s 16 of the OH&S Act relied upon by Comcare are in the following terms: 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. Note: An employer who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2). (2) Without limiting the generality of subsection (1), an employer breaches that subsection if the employer fails to take all reasonably practicable steps: (a) to provide and maintain a working environment (including plant and systems of work): (i) that is safe for the employer's employees and without risk to their health; and (ii) that provides adequate facilities for their welfare at work … (e) to provide to the employees, in appropriate languages, the information, instruction, training and supervision necessary to enable them to perform their work in a manner that is safe and without risk to their health. 3 The allegations of contravention made against John Holland relate to a machine known as a Padrol Clipper ("the machine") and the use of that machine in construction work. On 17 June 2007 a person operating the machine was injured. In outline, the nature of the conduct of John Holland alleged to be in contravention of s 16(1) is: · failure to install a guard on the machine; · failure to install a 'dead man' or interlocking switch on the machine; · failure to conduct a hazard identification and risk assessment on the machine; · failure to provide users of the machine with instructions as to the safe operation of the machine; and · failure to provide adequate training in respect of the operation and correct use of the machine. 4 John Holland seeks an order pursuant to s 40 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") that the trial of all issues of fact in this proceeding be by jury. For the reasons that follow I have determined not to make the order sought. sections 39 and 40 of the federal court act 5 The Court's power to direct a trial with a jury is provided by s 40 of the Federal Court Act. That provision needs to be read together with s 39:Howard v Gallagher (1986) 69 ALR 424 at 427 per Jenkinson J. 6 Section 39 of the Federal Court Act is in the following terms: Civil trials to be without jury In every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury. 7 Section 40 of the Federal Court Act is as follows: Power of Court in civil proceedings to direct trial of issues with a jury The Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact, and may for that purpose make all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires. 8 Section 40 applies to a civil suit and not to a criminal proceeding: Howard at 427 and Howard v Gallagher (1988) 79 ALR 111 per Northrop at 117 and Keely J at 121. 9 John Holland contends that whilst historically the usual mode of trial in a civil proceeding in the Federal Court has been by judge alone, there is no usual or normal mode prescribed by the Federal Court Act. In particular, it is contended that ss 39 and 40 do not suggest a preference for trial by judge alone and therefore impose no burden upon a party seeking a jury trial to displace a norm and demonstrate that trial by jury is to be preferred. 10 John Holland contends, and I agree, that the starting point of the task of statutory construction is consideration of the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]. By reference to the text of s 40 of the Federal Court Act, John Holland contends that if the ends of justice appear to render it expedient to do so, the Court should direct a trial by jury. 11 It is contended that the task of the Court does not involve any comparison as to whether a trial by judge alone is more or less expedient than a trial by judge and jury. All that is necessary is that the Court be satisfied that a trial by jury (even if equally expedient with a trial by judge alone) is expedient for the ends of justice. John Holland does, however, accept that there needs to be a basis for the Court's conclusion that the ends of justice appear to render it expedient that a jury trial should be ordered. 12 John Holland acknowledged that these contentions are not necessarily consistent with the authorities that have construed the meaning of ss 39 and 40. 13 Sections 39 and 40 of the Federal Court Act appear to have been first considered by Northrop J in Insurance Commissioner v Australian Associated Motor Insurers Limited (1982) 65 FLR 172. In that case, Northrop J relied on the terms of ss 39 and 40 to conclude that the normal method or mode of trial of a suit in the Federal Court is by judge alone: at 182. His Honour further concluded at 182-183 that: Before the court or a Judge exercises the discretion conferred by s 40 of the Federal Court of Australia, some substantial reason must be shown for a departure from that normal method or mode of trial. 14 In support of that conclusion, Northrop J relied on the decision of Fullagar J in McDermott v Collien (1953) 87 CLR 154. In that case, Fullagar J was called upon to construe ss 12 and 13 of the High Court Procedure Act 1903-1950. The terms of those provisions are (as Northrop J observed in Insurance Commissioner) remarkably similar to the terms of ss 39 and 40 of the Federal Court Act. In the case before him, Fullagar J refused to exercise the discretion to direct a trial by judge and jury, and in so doing said at 157: The nature of the question involved is such that one can hardly expect much guidance from decided cases. Two things, however, seem clear enough. The first is that with the merits and demerits of trial by jury as a means of determining civil causes I have nothing whatever to do. Dr. Woinarski referred me to the observations of BankesL.J. and AtkinL.J. (as he then was) in Ford v. Blurton [9] , at pp. 803, 804, which are quoted by LushJ. in Calcraft v. London General Omnibus Co. Ltd. [10], at p. 612. But, so far as any question of general policy is involved, it is settled for me by the High Court Procedure Act. Trial without a jury is the normal mode of trial of actions in this Court, and some special reason must be shown for a departure in any particular case from that normal mode. The second thing that seems clear is that it is not enough to show that the cause of action is of a kind which could quite properly be tried with a jury and which was normally tried with a jury in England before the Judicature Act 1873 (36 & 37 Vict. c. 66). The decisions of Hodges J [Poud v Ferguson (1913) VLR 129 and of Isaacs J [Huntley v Alexander (1922) 30 CLR 566 perhaps suggest that the nature of the cause of action is not even a relevant consideration. I would not be prepared to assent to that as a general proposition: indeed I would rather have thought that it might in some cases be a potent consideration. But it is clear that it is not enough to say: "This is a kind of action which is quite suitable for trial with a jury, and I would like to have it tried with a jury." The plaintiff in this case cannot, in my opinion, say more than that. It seems to me that it is a complete answer to him for the defendant to say: "This is a kind of action which is also quite suitable for trial without a jury." 15 Fullagar J's view has been applied to provisions similar to ss 39 and 40 by the Court of Appeal of the Supreme Court of the Northern Territory: Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49, and the Supreme Court of the Australian Capital Territory: Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356. In this Court, Fullagar J's view that trial without jury is the normal mode of trial and that some special reason must be shown for a departure, has been followed or referred to with approval in relation to ss 39 and 40 of the Federal Court Act by Jenkinson J in Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR 40-887; Sackville J in Australian Securities and Investments Commission v Matthews [1999] FCA 706; by Whitlam J in Dinnison v Commonwealth of Australia (2000) 106 FCR 418 and by Beaumont J in Commonwealth Bank of Australia v Rigg [2001] FCA 590. The approach of Northrop J in Insurance Commissioner has been followed or commented on with approval in this Court by Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd [2002] FCA 278; Hely J in Gargan v Commonwealth Bank of Australia [2004] FCA 641; and by Flick J in Harding v Deputy Commissioner of Taxation [2008] FCA 1403. 16 There is nothing in these authorities to suggest any intended difference between "substantial reason" and "special reason". Whilst Fullagar J used the expression "special reason", Northrop J's adoption of the phrase "substantial reason" was intended as no more than a reflection of the view expressed by Fullagar J in McDermott. That is made clear by Northrop J at [183] of Insurance Commissioner. 17 The only occasion upon which this Court has ordered a trial by judge and jury was Ra v Nationwide News Pty Ltd (2009) 182 FCR 148. It appears however that sometime after Rares J made the order and prior to trial, the case settled. Whilst in his judgment Rares J referred to Fullagar J in McDermott and Northrop J in Insurance Commissioner, his Honour made no express reference to the need to demonstrate a special reason. 18 Consistently with all of the authorities to which I have referred, Rares J recognised that the usual or normal mode of trial in a civil proceeding in the Federal Court is by judge alone and referred to that as "the general policy in s 39": at [23]. 19 His Honour was of the view that there was an onus on an applicant for a jury trial to establish a basis for the exercise of the Court's discretion for a departure from the normal rule. At [14], Rares J stated: Both parties have proceeded, correctly in my opinion, on the basis that ss 39 and 40 of the Federal Court Act requires the publishers to establish a basis for the exercise of this Court's discretion to order a departure from the usual mode of trial by judge alone. 20 The basis which satisfied Rares J in Ra was that a trial by jury would be a better mode of trial than trial by judge alone, in respect of the particular issues in the proceeding before him: at [26] and [31]. 21 When read together, the terms of ss 39 and 40 demonstrate that trial by judge alone is the default mode of trial in a civil proceeding in the Federal Court. In the absence of an order to the contrary, trial shall be by judge alone. All of the authorities to which I have referred proceed on the basis that the normal or usual mode of trial is by judge alone. I agree. John Holland's contention that there is no usual mode of trial is not supported by either a textual analysis of ss 39 and 40 or the authorities which have construed those provisions. 22 Once it is accepted that the usual mode of trial is by judge alone, it is manifest that an applicant for departure from the norm bears a burden. The burden is to establish that, in relation to the suit in question, the ends of justice render it expedient to depart from the norm. The burden is not necessarily onerous. The slide in terminology from "special reason" (per Fullagar J) to "substantial reason" (per Northrop J) and the use of "substantial reason" in many of the authorities may have suggested an onerous burden. However, in my view that is not what was intended. 23 When Fullagar J in McDermott said that "some special reason must be shown for a departure…from the normal mode" his Honour was not using the phrase "special reason" to characterise the gravity or weight of the burden involved. Read in context, Fullagar J was using "special" to distinguish the reason from the ordinary or usual reasons utilised in support of jury trials in the age-long debate as to whether, as a general policy, jury trials are preferable to trials by judge alone. 24 In the passage in which that phrase occurs, Fullagar J makes it abundantly clear that the "general policy" question of whether civil jury trials are better than judge alone trials is not a matter for him. As his Honour said, that was a matter "settled for me by the High Court Procedure Act" by providing that trial without a jury is the normal mode of trial. It is in that context that Fullagar J said some "special reason" must be shown to justify a departure from the norm. His Honour had in mind the identification of a reason which transcended the general policy debate, and the usual reasons utilised in that debate, to justify a general preference for civil jury trials over trials by judge alone. 25 Whilst the judicial discretion conferred by s 40 is wide, the discretion is not a vehicle for resolving case by case, the age-old debate as to whether universally the ends of justice are better served in a civil cause by a jury trial or by a judge alone. As a matter of general policy, some judges will prefer judge alone trials while others will prefer jury trials. But the general policy has been determined by Parliament and is not to be redetermined in the exercise of the discretion conferred by s 40. A reason which is universally applicable to all trials as a reason in favour of jury trials generally, or a reason universally against trials by judge alone, will not, without more, constitute a reason for the exercise of the discretion. This is the sense in which the need to show a "special reason" should be understood. 26 A majority of the New South Wales Court of Appeal took a similar approach when considering the proper exercise of a judicial discretion to order a trial without a jury, where the norm was a jury trial: see Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 402 per Kirby P and 413 per Samuels JA. Likewise, the New South Wales Court of Appeal rejected reliance upon universally applicable reasons in favour of jury trials, in construing a discretion similar to that conferred by s 40 of the Federal Court Act: Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39 (further discussed below). 27 John Holland's contention, that all that is necessary is that the Court be satisfied that a trial by jury is expedient for the ends of justice, ignores the starting point from which the discretion is to be exercised. Section 40 confers a discretion to decide whether the ends of justice render it expedient to resile in a particular case from the general policy enshrined in s 39, that the usual mode for trial is by judge without a jury. A special reason, in the sense I have described, will ordinarily be required for the Court to be satisfied that the ends of justice appear to render it expedient that a trial by jury be ordered. the basis relied upon by john holland for the exercise of the discretion 28 By reference to the provisions of s 16 of the OH&S Act, John Holland contends that the ultimate question of fact to be determined in this case is whether there were any steps that John Holland should have taken which it was, in the circumstances, reasonably practicable for John Holland to have taken in order to avoid injury to Mr Meredith, an employee who was injured when operating the machine. John Holland contends that the phrase "reasonably practicable steps" in s 16(2) of the OH&S Act has imported into the fact finding exercise an evaluation which brings into play the social and moral values of the community. It is said that what is reasonably practicable to have been done in the workplace is to be answered by reference to an objective community standard. 29 It is not necessary that I determine at this juncture whether John Holland's characterisation of the ultimate fact to be determined in this case is correct or not. I will proceed on the basis that it is, although it is clearly arguable that the ultimate question may be not whether John Holland took all reasonably practicable steps to avoid the particular injury to Mr Meredith, but whether in relation to the use of the machine, John Holland took all reasonably practicable steps to provide and maintain a working environment which was safe for employees. 30 Despite the contention made in relation to the proper construction of ss 39 and 40 that the task of the Court did not involve any comparison of the attributes of the different modes of trial, John Holland did ultimately contend that the question of what, if any, reasonably practicable steps were available was better determined by a jury than by a judge. It was said that the questions raised in the proceeding were quintessentially jury questions. Six people determining the questions of fact would, it was argued, be beneficial and be expedient to the ends of justice, when compared to a single judge trained only in the law. A jury of six individuals would bring to the task their ordinary life experience and thus bring to bear their own moral and social values. Particular reliance in this respect was placed on the extra-judicial opinion of Sir Frederick Jordan set out in a paper delivered by Evatt J to the Second Legal Convention of the Law Council of Australia held in Adelaide in September 1936: The Jury System in Australia, (1936) 10 ALJ Supp 49 at 72. The passage relied upon is in the following terms: As regards civil matters, the advantage of the jury system is twofold. In the first place, although the lives of Judges are by no means as cloistered as people are apt to suppose, the Bench being recruited from men who have experienced the rough and tumble of life at the Bar, the combined experience of four men is likely to be greater than that of any one man. I have on occasion known a jury man to stand up and clear up some incidental point emerging in the course of the evidence, which neither witnesses nor counsel was able to explain. 31 The giving effect to moral and social values of the community was a factor that Rares J relied upon in being satisfied that a trial by jury would be a better mode of trial than by judge alone for assessing the particular claims and defences in the proceeding with which he was concerned. Some support for the contention that the involvement of community standards is a factor in favour of the exercise of the Court's discretion is also found in Tamberlin J's decision in Stalyce Holdings (Aust) at [15]. In that case, his Honour did not directly consider s 40 of the Federal Court Act, but considered whether a proceeding should be transferred from the Federal Court to the Supreme Court of New South Wales pursuant to s 86A of the Trade Practices Act 1974 (Cth) or s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). His Honour was involved in determining whether it was in the interests of justice to transfer the proceeding to the Supreme Court, where it was likely that the proceeding would be heard by a jury. In that context his Honour observed that the matter before him was: not a case where general community contemporary values are involved, as may be the case in proceedings where moral, ethical or general social values are involved. 32 The role that the moral or social values of the community may have to play in the exercise of a discretion like that in s 40 of the Federal Court Act has also received significant attention from a number of decisions of the New South Wales Supreme Court, including its Court of Appeal. Section 85 of the Supreme Court Act 1970 (NSW) relevantly provides that proceedings in the Supreme Court of New South Wales are to be tried without a jury, unless the Court orders otherwise. The discretion to order that the proceedings be tried with a jury may be exercised upon the Supreme Court being "satisfied that the interests of justice require a trial by jury in the proceedings". 33 The similarity between s 85 of the Supreme Court Act and ss 39 and 40 of the Federal Court Act is apparent, although the word "require" when contrasted with the phrase "render it expedient" suggests that the discretion to direct a jury trial provided by s 40 of the Federal Court Act is somewhat less constrained. Nevertheless, the authorities on s 85 are instructive. Of particular interest is the decision of the Court of Appeal in Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39. That decision examined and disagreed with the approach taken in the judgment there under appeal and the judgments of Hall J in Muir v Council of Trinity Grammar School [2005] NSWSC 555 and Adams J in Cross v Theiss Pty Ltd [2006] NSWSC 1455. Each of Marouba, Muir and Cross involved an application for a jury trial in personal injury cases based on the alleged negligence of the respondents. 34 In Maroubra, Mason P delivered the lead judgment of the Court (Ipp JA and Tobias JA agreeing). At [28] Mason P referred to the decision of Tamberlin J in Stalyce Holdings and continued: 29 Tamberlin J's reference to cases "where general community contemporary values are involved, as may be the case in proceedings where moral, ethical or general social values are involved" was not intended and ought not to be read as the touchstone for the rationale of trial by jury (in defamation or other matters), let alone the touchstone whereby the Supreme Court may decide whether it is satisfied that the interests of justice require it to order trial by jury. Section 86A of the Trade Practices Act 1974 uses the words "in the interests of justice" in a context different to the one at hand. Section 85 of the Supreme Court Act is concerned, and only concerned, with whether the interests of justice require departure from the mandated general rule that civil proceedings in the Supreme Court are to be tried without a jury. 30 One frequently encounters statements in other contexts that jurors bring a range of views to a problem, and that those views (individually and collectively) may be closer to the assumed thinking of "the public" or "the community" than that of a judge sitting alone. Sometimes this reasoning proceeds from the maxim that two heads are better than one. At other times, one detects a notion that the life experience of judges is somehow deficient to the task at hand, or at least not as full as that of the group of randomly selected jurors. (Cf Cross at [11]-[12].) At other times the thrust is that a jury verdict is more acceptable simply because the defendant's fate has been determined by his or her "peers" or because there has been public participation in the curial process. 31 Whatever the objective reality, these considerations are not a sufficient basis for resolving the matter posed by s85(2)(b). Parliament has made the call that trial by judge alone is the norm. Absence of a "representative" or "community" viewpoint is not an inherent defect of trial by judge alone. 32 Section 85(2)(b) does not direct or permit the Court to weigh which mode of trial is preferable in the proceedings and to prefer trial by jury if traditional considerations or perceptions would have supported that mode (see McDermott v Collien [1953] HCA 44; (1953) 87 CLR 154 at 157). Nor does it permit judicial fact-finding to be dispensed with on the basis that jurors may be perceived to be better equipped to discern "moral, ethical or general social values", assuming them to be relevant to the task at hand. The standard required by s85(2)(b) is high and absolute, namely that the judge must be satisfied that the interests of justice require trial by jury in the instant proceedings. 35 At [34], Mason J concluded as follows: 34 Decision-making may be value-laden. But great caution is, in my view, required before a court could be satisfied that reference to "community" or "moral, ethical or general social values" were pertinent to any proceedings and that this could satisfy the judge that the interests of justice require departure from the general rule. 36 In concluding that the exercise of discretion conferred by s 85 does not direct or permit the court to weigh which mode of trial is preferable by reference to traditional considerations or perceptions as to which is the better mode of trial, Mason P relied on the observations of Fullagar J in the passage from McDermott to which reference has already been made. The decision of the New South Wales Court of Appeal in Maroubra supports the conclusion that the exercise of a discretion such as that contained in s 40 of the Federal Court Act, requires the identification of a special reason, in the sense earlier identified. 37 In my view, John Holland has not identified a special reason by its contention that the question of what reasonable steps could have been taken by John Holland is a question better determined by a jury. John Holland's argument merely restates one of the traditional universal considerations relied upon by proponents of trial by jury; that many heads are better than one in reflecting the experience and values of the general community. John Holland's reliance on the opinion of Sir Frederick Jordan demonstrates that John Holland relies on an ordinary as opposed to a special reason. There is nothing special in the application of that ordinarily asserted advantage to the particular question or questions said to arise in this proceeding. There was nothing pointed to by John Holland to suggest why the value laden considerations said to arise in this case would be peculiarly better determined by a jury. There are a multitude of causes of action (regularly considered by this Court) where judgments need to be made by the Court by reference to standards of requisite behaviour conditioned by requirements of reasonableness, fairness, conscientiousness or similar value laden considerations. 38 The absence of a special reason in this case is distinguishable from the circumstances that attended Ra. In that case, Rares J was satisfied that the critical issues in the proceeding before him were quintessentially better determined by a jury, not by reference to an inherent characteristic of juries of universal application, but by reference to a peculiar advantage that a jury trial brought to the particular kind of case there at play. The peculiar advantage was identified in the following passage: [19] One of the great virtues of having a jury try the substantial factual issues in a defamation action is that they represent the very audience to which the defamatory publication was addressed. In assessing whether or not a publication, first, is defamatory in the sense complained of and, secondly, has been defended under defences such as truth, honest opinion or fair report, a jury of ordinary reasonable people is able to evaluate the competing factual issues bringing to bear the moral and social standards that they share with the community at large. And, they are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications. 39 Additionally, the facts in Ra were unusual and were likely to involve giving effect to contemporary moral and social values of the community. In that case it was alleged that defamatory imputations were made against the applicant, including that she was a brothel owner and madam who kept foreign women as sex slaves. 40 Another matter relied upon by John Holland is that in Victoria, a proceeding founded on tort shall, unless the Court otherwise directs, be tried with a jury: Supreme Court (General Procedure) Rules 2005, Order 47.02. Reliance on that circumstance is made in support of the proposition that personal injury claims raise issues which are quintessentially jury questions. John Holland contends that the issues raised by this proceeding are analogous to those usually raised in personal injury litigation. Even if that were true, the fact that personal injury cases in Victoria are commonly tried with a jury is not a reflection of any widespread and universally accepted view that personal injury cases raise quintessential jury questions. It is only a reflection of the particular regime adopted in Victoria – a regime different to that adopted elsewhere in Australia including in the Federal Court. 41 Reference to O 47 of the Supreme Court (General Civil Procedure) Rules adds little to the task I have before me. Order 47 sets out the normal mode of trial in the Supreme Court of Victoria. It provides that a proceeding founded on contract or tort shall be tried with a jury where a party so elects and the Supreme Court does not otherwise order. Any other proceeding in the Supreme Court of Victoria is to be tried without a jury unless the court otherwise orders. The particular provisions regulating the mode of trial in the Supreme Court of Victoria are very different to the regime created by ss 39 and 40 of the Federal Court Act. 42 The position in Victoria is also very different to that in the rest of Australia, where civil jury trials are far less common and in some States and Territories are either uncommon or non-existent. The following analysis made in 2006 is given by Jacqueline Horan in her article "The Law and Lore of the Australian Civil Jury and Civil Justice System" (2006) 9 FJLR 29 at 29 (Note 2): Over the last century, parliamentarians in all Australian States have introduced legislation that virtually removed the right of Australian citizens to a jury in a civil trial. The right to civil jury trial is virtually abolished in South Australia; Juries Act 1927 (SA) s 42. In Western Australia the right to jury trial is restricted to claims of defamation, fraud, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage; Supreme Court Act 1935 (WA) s 42. In Tasmania the right to a jury exists in relation to most common law cases other than motor vehicle accidents but is virtually never used; Supreme Court Civil Procedure Act 1932 (Tas) ss 27, 29. In Queensland there is a prima facie right to a civil jury trial in common law cases however, legislation has been enacted to limit this right. As a result, civil jury trials are uncommon in Queensland; Supreme Court Act 1955 (Qld) ss 51, 52. In the Territories and the Federal courts there is no prima facie right to a civil jury trial. Those courts have the power to order one but this is seldom done; Juries Act 1963 (NT) s 7, Australian Capital Territory Supreme Court Act 1933 (Cth) s 14. The Supreme Court Act 1970 (NSW) s 85 prevents jury trials in all matters except defamation claims unless a party requests a jury trial and the court is satisfied that the interests of justice require a trial by jury. Most Australian civil jury trials are now conducted in Victoria. Uniform defamation laws introduced nationally this year removed the right of parties to have the jury determine damages. 43 John Holland also supported its application by asking the Court to take into account the historical use in Australia of jury trials for dealing with allegations of serious crime. Reliance in this respect was placed upon Flick J's observation in Harding at [39] that: Relevant to the exercise of the discretion is a recognition of the important role that juries have long played in English and Australian law and the circumstances in which juries have traditionally been employed. 44 John Holland referred to the requirement in s 80 of the Constitution that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. By reference to s 80 of the Constitution and various High Court authorities which have considered it, John Holland argued that juries have traditionally been utilised as the mode of trial to deal with allegations of serious crime. It was argued that there is a strong tendency towards the use of jury trials in a contest between the State and its citizens where more than the allegation of a summary offence is involved. 45 John Holland acknowledged that this proceeding is a civil penalty proceeding and that no criminal offence was being alleged against it. However it contended by reference to a report of the Australian Law Reform Commission – 'Principled Regulation, Federal Civil and Administrative Penalties in Australia' ALRC 95, Chapter 2 ("the ALRC Report") that civil and criminal penalties are both concerned with punishment and are justified by some of the same justifications, including retribution for the contravention of a legal requirement and the protection of third parties or society at large. It was contended in particular that civil penalties resemble criminal fines and may be more severe than criminal penalties in many cases. 46 The maximum civil penalty for a breach of s 16(1) of the OH&S Act is 2,200 penalty units (currently equating to $242,000). This, John Holland contended, demonstrated the severity of the punishment which John Holland may be subjected to and justified the analogy sought to be made by John Holland with serious crime and the use of jury trials in that arena. 47 Additionally, John Holland referred me to clause 11 of Schedule 2 of the OH&S Act which deals with the power of a court to grant relief from liability in certain circumstances. Clause 11(5) provides that in a case tried by a judge with a jury, it is the judge who may grant the relief. John Holland says that clause 11 demonstrates that Parliament contemplated that a civil penalty proceeding brought under the OH&S Act may be tried with a jury. 48 John Holland's contention that it is relevant to recognise the important role that juries have played and the circumstances in which juries have been traditionally employed may be correct, as long as care is taken to recognise the general policy preference embodied in ss 39 and 40. However, even if John Holland's proposition is accepted without qualification, that would not lead to the result which John Holland seeks. 49 Firstly, if regard is to be had to the circumstances in which juries have been traditionally employed, given that this proceeding is a civil penalty proceeding, the most relevant circumstance to look at must be the circumstances attending civil penalty proceedings. John Holland made no reference to that matter. According to the ALRC Report, civil penalties have been available under the Customs Act 1901 (Cth) since its enactment in 1901; civil monetary penalties have been available under Part IV of the Trade Practices Act 1974 (Cth) since 1974; and under the Corporations Act 2001 (Cth) (and its predecessors) since 1993. Civil penalty provisions have been available under Commonwealth industrial legislation since the enactment of the Conciliation and Arbitration Act 1904 (Cth). 50 The Federal Court has jurisdiction to deal with civil penalty proceedings brought under all of that legislation and many other Commonwealth Acts, yet there is no history of jury trials in civil penalty proceedings in this Court. If the situation is different in other courts, that is not a matter which has been brought to my attention. 51 Secondly, the relevance of taking into account the circumstances attending criminal proceedings is questionable. As the ALRC Report observed at paragraph 2.47, whilst the imposition of civil penalties has a punitative purpose of punishing the offender, the procedure under which the offender is sanctioned for a breach of a civil penalty provision is based on civil court processes. By their nature, civil court processes offer fewer protections to an alleged offender than do criminal court processes. The burden of proof upon the prosecuting authority is lower and the privilege against self incrimination may not be available. More pertinently, the constitutional guarantee of a jury trial for a trial on indictment is not available. 52 The s 80 constitutional guarantee is the reason why since at least 1901, jury trials have been traditionally employed in relation to indictable offences against the law of the Commonwealth. Neither the Constitution or any relevant Act of Parliament requires trial by jury in relation to civil penalty proceedings. The absence of that requirement cannot be overlooked. The circumstances attending the trial of indictable offences and those attending civil penalty proceedings are very different. The fact that the mode of trial mandated for indictable offences has maintained the traditional use of juries in that arena, says little about what the ends of justice may find expedient in relation to proceedings where no requirement for a jury trial does or has ever existed. 53 John Holland's contention that a basis for the exercise of my discretion is the severity of the punishment to which John Holland is exposed in this proceeding was supported by reference to the maximum penalty of $242,000 for a contravention of s 16(1). Reference to that potential penalty did not, however, demonstrate why I should regard that potential penalty as severe let alone so severe as to equate generally with the potential penalties for serious crime traditionally tried by jury. 54 John Holland sought to rely upon s 4JA of Crimes Act 1914 (Cth) ("the Crimes Act"). That provision is in the following terms: Some indictable offences punishable by fine only may be dealt with summarily (1) A court of summary jurisdiction may hear and determine an indictable offence if: (a) the offence is not punishable by imprisonment; and (b) the pecuniary penalty for the offence is not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate; and (c) the defendant and prosecution consent. 55 The fact that an offence which exposes a body corporate to a maximum penalty of 3,000 penalty units (or $330,000) may be dealt with summarily hardly supports John Holland's point. To the contrary, the terms of s 4JA(1) suggests the opposite conclusion. 56 Perhaps more pertinent are the terms of s 4H of the Crimes Act, which provide as follows: Offences against a law of the Commonwealth, being offences which: (a) are punishable by imprisonment for a period not exceeding 12 months; or (b) are not punishable by imprisonment; are summary offences, unless the contrary intention appears. 57 If exposure to up to 12 months imprisonment for an individual (including the stigma and criminal record associated with a conviction) is not generally considered by the law to be sufficiently severe to warrant a trial by jury, it seems to me that John Holland's contention that the ends of justice render it expedient that a jury trial be provided to a body corporate exposed to a monetary penalty of $242,000 for a contravention of a civil penalty proceeding lacks objective merit. 58 That point is reinforced when regard is had to the OH&S Act itself. The OH&S Act grades the gravity of conduct in contravention of the Act and allocates less serious conduct to civil proceedings and civil penalties and more serious conduct to criminal prosecution and criminal penalties. Taking a contravention of s 16(1) of the OH&S Act as the most pertinent example, an alleged contravention of that provision which involves negligence, recklessness or either death or serious bodily injury or exposure to the substantial risk of death or serious injury, is dealt with as a criminal prosecution and exposes the alleged offender to maximum criminal fines of either 4,500 penalty units (where death or serious injury occurred) or 3,000 penalty units (where exposure to death or serious injury occured): Schedule 2 clauses 18(1)(a)(i), (b) and (c); clause 19 and clause 21, Items 1 and 2. Absent any of the elements of negligence, recklessness or (exposure to or actual) serious injury or death, conduct alleged to be in contravention of s 16(1) is dealt with by civil procedure and exposes the alleged offender to a maximum civil penalty of 2,200 penalty units: Schedule 2 clause 2(1)(a); clause 4(1) and (2) Item 1; and clause 8. 59 No penalty of imprisonment is able to be imposed in relation to even the most serious contravention of s 16(1), although imprisonment is an available penalty for other contraventions of the OH&S Act. Unless a contrary intention appears, s 4H of the Crimes Act defines an offence not punishable by imprisonment as a summary offence. No contrary intention is evident in the OH&S Act in relation to a criminal prosecution involving a breach of s 16(1). An offence based upon a contravention of s 16(1), is a summary offence to which the constitutional guarantee of a jury trial does not apply, unlike other offences under the OH&S Act which involve exposure to imprisonment. 60 Whilst I accept, as John Holland argued, that Parliament did at least contemplate the possible use of a jury trial in relation to a civil penalty proceeding under the OH&S Act, Parliament chose not to require a jury trial even for the most serious of criminal prosecutions involving a contravention of s 16(1). Had John Holland been prosecuted for a criminal offence involving a contravention of s 16(1), it could only have been prosecuted for a summary offence and the only mode of trial available would have been trial by judge alone. It would be incongruous if, based on the severity of punishment, the ends of justice would render it expedient that a jury trial should here be ordered when no jury trial could be ordered to try the prosecution of an offence related to a contravention of s 16(1), for which the maximum potential penalty is more than double the severity of the penalty that John Holland is exposed to in this proceeding. 61 Parliament has graded the various types of contraventions of the OH&S Act according to their seriousness. Some are to be dealt with in civil penalty proceedings and others by way of summary or indictable offences. It is for Parliament to make that determination. 62 Even in relation to the constitutional guarantee, it is for Parliament to determine whether any particular offence is to be tried on indictment or summarily. As Gibbs CJ, Wilson and Dawson JJ said in Kingswell v The Queen (1985) 159 CLR 264 at 276-7: It has been held that s 80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to Parliament to determine whether any particular offence shall be tried on indictment or summarily. This result has been criticized, but the Court has consistently refused to reopen the question and the construction of the section should be regarded as settled: R v Archdall and Roskruge; Ex parte Carrigan and Brown [42]; R v Federal Court of Bankruptcy; Ex parte Lowenstein [43]; Sachter v Attorney-General (Cth) [44]; Zarb v Kennedy [45]; Li Chia Hsing v Rankin [46]. 63 Parliament's choice is a relevant consideration in the determination of the issue before me and weighs against John Holland's contention that the seriousness or severity of the potential penalty supports a trial by jury. 64 Finally, John Holland relied on the dissenting judgment of Deane J in Kingswell for the purpose of trying to demonstrate that historically, juries have been utilised to try allegations of serious crime. However, as Comcare pointed out, John Holland did so without giving proper recognition to what Deane J regarded as a serious offence. Deane J (at 310) observed that at the heart of the concept of "trial on indictment" in s 80 is the notion of the trial of a "serious offence". Deane J defined a serious offence as an offence punishable by imprisonment of more than 1 year: at 309-310 and 317. It was only the trial of alleged offences of that kind which Deane J regarded as not being appropriate to be dealt with summarily and to which the protection of s 80 applied. The judgment of Deane J does not support the proposition that a proceeding for a civil penalty is not appropriately dealt with without a trial by jury. conclusion 65 I have taken into account, both individually and collectively, each of the matters relied upon by John Holland in support of its application that I exercise my discretion under s 40 of the Federal Court Act. Having regard to the considerations detailed in these reasons, I have determined that the ends of justice do not appear to render it expedient to depart from the usual mode of trial and direct that the trial of all issues of fact in this proceeding be by jury. Accordingly, I will dismiss John Holland's notice of motion. 66 The usual principle is that costs should follow the event. There is no reason to depart from that approach. Comcare raised but did not support a contention that John Holland should pay its costs on an indemnity basis. Costs shall be paid on a party/party basis. Accordingly, I will order that John Holland pay Comcare's costs of and incidental to the notice of motion. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 7 September 2010