Kirby v JKC Australia LNG Pty Ltd (No 2) [2015] FCA 1113

Kirby v JKC Australia LNG Pty Ltd (No 2) [2015] FCA 1113

The applicants established a prima facie case, and the balance of convenience favoured interlocutory relief, in relation to refusals or impairments of s 117 WHS Act entry based solely on the absence of a relevant worker at the workplace at the time entry is sought, and in relation to refusals or impairments based on an assertion that the suspected contravention had already been rectified. The WHS Act did not readily reveal authority for refusal on those grounds, damages were not an adequate remedy, and the Fair Work Commission referral was not a reason to withhold otherwise appropriate interlocutory relief. The applicants did not establish sufficient basis or utility for injunctions...

Jurisdiction
Australia
Judgment Date
08 October 2015
Procedural Posture
Industrial Law Proceeding Concerning Rights of Entry Under the Work Health and Safety (national Uniform Legislation) Act 2011 (nt) / Interlocutory Application for Injunctions, Leave to Amend Originating Application, and Application to Amend Earlier Order
Outcome
Interlocutory relief granted in part. Injunctions issued against the First Respondent on two grounds; other requested injunctions declined; leave to amend the originating application granted; JKC's application to amend the 18 September order declined.
Legal Topics
['right of Entry Permits' 'interlocutory Injunctions' 'workplace Access' 'relevant Worker Under S 116 of the WHS Act' 'suspected WHS Contraventions' 'fair Work Commission Referral']
['industrial Law' 'work Health and Safety' 'civil Procedure'] ['right of Entry Permits' 'interlocutory Injunctions' 'workplace Access' 'relevant Worker Under S 116 of the WHS Act' 'suspected WHS Contraventions' 'fair Work Commission Referral']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Industrial Law Proceeding Concerning Rights of Entry Under the Work Health and Safety (national Uniform Legislation) Act 2011 (nt) / Interlocutory Application for Injunctions, Leave to Amend Originating Application, and Application to Amend Earlier Order

Legal Issues

  1. 1 ['Whether JKC should be restrained from refusing, delaying, hindering or obstructing WHS entry permit holders from accessing a workplace under s 117 of the WHS Act because a relevant worker is not present at the time entry is sought.' 'Whether JKC should be restrained from refusing or impairing entry because no written notice of entry has been given prior to entry.' 'Whether JKC should be restrained from refusing or impairing entry because the identity of the subcontractor responsible for the workplace is not stated on the entry notice or otherwise stated by the permit holder.' 'Whether JKC should be restrained from refusing or impairing entry because of an assertion that the identified suspected contravention has already been rectified.' "Whether JKC's application to the Fair Work Commission under s 505 of the Fair Work Act justified refusal of interlocutory relief by the Court." 'Whether the Court should amend its order of 18 September 2015 to make it subject to any order of the Fair Work Commission.']

Ratio Decidendi

The applicants established a prima facie case, and the balance of convenience favoured interlocutory relief, in relation to refusals or impairments of s 117 WHS Act entry based solely on the absence of a relevant worker at the workplace at the time entry is sought, and in relation to refusals or impairments based on an assertion that the suspected contravention had already been rectified. The WHS Act did not readily reveal authority for refusal on those grounds, damages were not an adequate remedy, and the Fair Work Commission referral was not a reason to withhold otherwise appropriate interlocutory relief. The applicants did not establish sufficient basis or utility for injunctions...

Court Disposition

Interlocutory relief granted in part. Injunctions issued against the First Respondent on two grounds; other requested injunctions declined; leave to amend the originating application granted; JKC's application to amend the 18 September order declined.

Orders

  • ['The First Respondent be restrained, and an injunction is hereby issued restraining it, whether by itself or by its servants or agents, until the hearing and determination of this matter or until further order, from refusing, delaying, hindering or obstructing officials of the Fourth Applicant, who hold permits...