Telstra Corporation v Smith [2008] FCA 1859 (Decision at 1st instance— Procedural aspects of investigations and requirements of reports of investigation pursuant to the OHS Act)
Issue
On 14 November 2006, a child was injured when her mother fell over a Telstra pit lid situated on a public footpath. No employees or contractors of Telstra were present at or near the pit or the pit lid at the time of the incident.
Comcare Investigator Smith commenced an investigation into the incident, and his report of investigation concluded that Telstra had breached its general duty of care to members of the public at or near its workplaces in s17 of the OHS Act.
Telstra made an application to the Federal Court to quash the investigation report and the findings of the investigator on the basis that (1) the pit was not a “workplace”; (2) Telstra was not accorded procedural fairness in the investigative process; (3) there were no reasons provided for the conclusions in the report; and (4) an investigator was not empowered by the OHS Act to conclude that Telstra had breached its duty in s17.
Outcome
Appeal dismissed and Telstra ordered to pay Comcare’s costs.
Ground One— is the pit (and pit lid) a “workplace” during those times when no Telstra employees or contractors are working in it?
Telstra argued that its pits (and pit lids) could not be “workplaces” for the purposes of the OHS Act during those times when no work was being conducted in the pit.
The Federal Court rejected that proposition and held that the pit and pit lid was a “workplace” for the purposes of the OHS Act at the time of the incident, even though no Telstra employees or contractors were working in the pit at that time.
Ground Two— was there a denial of procedural fairness?
Telstra submitted that it was not given any, or adequate, opportunity to provide information and make submissions in respect of matters critical to the investigators conclusion that it breached s17 of the OHS Act.
The Federal Court rejected that submission, holding that Telstra was accorded procedural fairness by the investigator prior to the report coming into existence. The Court noted that Telstra had been represented throughout the investigative process by lawyers, and had taken the opportunity to put arguments and submissions and was invited by Comcare to do so.
Ground Three— Did the Investigator fail to comply with s53(2) of the OHS Act by not including reasons for his conclusions in his report?
Telstra contended that the investigator failed to comply with s53(2) of the OHS Act by not including reasons for his conclusions in the report of investigation.
The Federal Court also rejected this aspect of Telstra’s appeal. Justice Middleton found that the investigator’s reasons rationally related to the evidence found during the investigation and were comprehensible. The Court also considered the report set out the investigator’s conclusions, the reasons for those conclusions and the findings of fact he considered material, and the evidence on which those findings were based (as was required).
Ground Four— was the investigator empowered by the OHS Act to make conclusions in his report that Telstra had breached s17 of the OHS Act?
Telstra also asserted that the investigator was not empowered by the OHS Act to conclude that it had breached s17 of the OHS Act, and furthermore that there was insufficient material available to the investigator to support such a finding.
Both arguments were rejected by the Federal Court, which found that the conclusion that Telstra had breached s17 of the OHS Act was open to the investigator on the material before him, and was to be included in the report.
A copy of the decision is available at: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1859.html.
Telstra appealed the decision to the Full Court of the Federal Court of Australia: see Telstra Corporation Ltd v Smith [2009] FCAFC 103 available at http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/103.html.