John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2009] FCA 645

John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2009] FCA 645

The second and third respondents were not 'officers' within the statutory meaning and thus lacked right of entry under the OHS Act. There was insufficient evidence to find exclusive possession by the applicants needed for trespass, and there was no contravention of federal statutory provisions since the right of entry under OHS law was not established.

Jurisdiction
Australia
Judgment Date
19 June 2009
Procedural Posture
Originating Application for Declarations and Injunctive Relief / Judgment at First Instance
Outcome
Second and third respondents did not have a right of entry; all other claims dismissed.
Legal Topics
['right of Entry' 'trespass' 'exclusive Possession' 'statutory Interpretation' 'declarations in Civil Proceedings']
['industrial Law' 'occupational Health and Safety Law' 'administrative Law'] ['right of Entry' 'trespass' 'exclusive Possession' 'statutory Interpretation' 'declarations in Civil Proceedings']

Case Brief

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Procedural Posture

Originating Application for Declarations and Injunctive Relief / Judgment at First Instance

Legal Issues

  1. 1 ['Did the second and third respondents have a right to enter the Kurnell premises under state occupational health and safety law?' 'Did the assertion of a right to enter involve a contravention of the state occupational health and safety law?' 'Was the state occupational health and safety law invalid due to inconsistency with federal law?' 'Did the assertion of a right to enter and entry involve a contravention of federal industrial law?' 'Did the entry by the second and third respondent constitute trespass?']

Ratio Decidendi

The second and third respondents were not 'officers' within the statutory meaning and thus lacked right of entry under the OHS Act. There was insufficient evidence to find exclusive possession by the applicants needed for trespass, and there was no contravention of federal statutory provisions since the right of entry under OHS law was not established.

Court Disposition

Second and third respondents did not have a right of entry; all other claims dismissed.

Orders

  • ['The second and third respondent did not, on 18 September 2007, have a right to enter the site at Kurnell on which the Sydney Desalination Plant was being constructed, under the Occupational Health and Safety Act 2000 (NSW).' 'The application is otherwise dismissed.']