Federal Court of Australia

Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd [2023] FCAFC 180

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The order made by the primary judge on 6 December 2022 be set aside.

3.    Pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth), the proceeding be remitted to the primary judge for further hearing and determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    On at least three occasions between 30 August 2021 and 7 September 2021, an employed official of the appellant’s, Mr Samuel Woodage, attempted (or foreshadowed that he would attempt) to gain entry onto premises occupied by the first respondent (“Austal”). The first two of those occasions concerned premises located at 100 Clarence Beach Road, Henderson, Western Australia (the “Henderson Premises”). The third concerned premises located at 51 Hope Valley Road, Naval Base, Western Australia (the “HVR Premises”).

2    Each of those three attempts (or foreshadowed attempts) was made in purported or foreshadowed exercise of a right of entry that the appellant (the “CEPU”) claims was conferred upon Mr Woodage by s 484 of the Fair Work Act 2009 (Cth) (the “FW Act”). Although it could be clearer, it appears that, on each occasion, an authorised representative of Austal indicated to Mr Woodage that his entry was or would be refused. On the first occasion, that indication was given by the second respondent, Ms Breen; on the second occasion, it was given by the third respondent, Ms Kay; and, on the third occasion, it was given by the fourth respondent, Mr van Rensburg.

3    Mr Woodage’s attempts to enter the two premises (hereafter and collectively, the “Premises”) spawned litigation in this court. By an originating application dated 21 September 2021, Austal moved the court for relief against the CEPU and Mr Woodage. It claimed that Mr Woodage contravened s 500 of the FW Act when he attempted to gain entry to one of the Premises on a fourth occasion, namely on 9 September 2021. By a notice of cross-claim dated 8 November 2021, the appellant contended that, by “refusing” his entry—or, perhaps, by indicating that it would be refused—on the occasions described in the preceding paragraphs (hereafter and collectively, “the Refusals”), the respondents contravened ss 501 and 502 of the FW Act. The respondents denied those allegations on the basis that Mr Woodage was not entitled, on any of the relevant occasions, to gain entry under s 484 of the FW Act.

4    The respondents’ defence succeeded and the learned primary judge dismissed the CEPU’s cross-claim: Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd [2022] FCA 1462 (hereafter, the “Primary Judgment”). The primary judge concluded that, on each of the relevant occasions, Mr Woodage had sought (or foreshadowed that he would seek) to enter the Premises for purposes in respect of which s 484 of the FW Act did not authorise his entry. That being so, his Honour concluded that the conduct constituting the Refusals was not conduct in which the respondents could be said to have engaged in contravention of ss 501 or 502 of the FW Act.

5    By notice dated 14 December 2022, the CEPU appeals from the whole of that judgment. For the reasons that follow, that appeal should be allowed. In truth, Mr Woodage was authorised by s 484 of the FW Act to enter the Premises (or either of them) on each of the occasions that he sought (or foreshadowed that he would seek) to do so. Respectfully, the primary judge was in error to conclude otherwise.

Background

6    The relevant factual background emerges without controversy from a statement of agreed facts that the parties filed on 15 March 2022 (the “SOAF”). It suffices to note the following, namely that:

(1)    the CEPU is and was an employee organisation within the meaning attributed to that term by s 12 of the FW Act;

(2)    Austal is and was a “national system employer” within the meaning attributed to that phrase by s 14 of the FW Act;

(3)    each of the second, third and fourth respondents was, at the material times, an employee of Austal;

(4)    Mr Woodage was, at the material times:

(a)    a CEPU employee; and

(b)    the holder of a permit issued pursuant to the provisions of div 6 of pt 3-4 of the FW Act; and

(5)    Austal employed persons to work at each of the Premises whose industrial interests the CEPU was entitled to represent.

7    The three occasions on which Mr Woodage attempted (or foreshadowed that he would attempt) to gain entry to the Premises (or to one of the two) were all animated by the same objectives. On each, Mr Woodage intended to gain entry so that he might meet with Austal employees and:

(1)    provide to them a “…general update…about industrial issues on site”;

(2)    speak to them “…about seeking a majority support determination for an enterprise agreement to cover their employment”;

(3)    invite those with whom he met to “…sign a petition in support of a majority support determination”;

(4)    try to persuade those with whom he met that they should do so; and

(5)    obtain signatures from those who were willing to provide them.

8    The references in the SOAF to a “majority support determination” are references to a determination made by the Fair Work Commission under sub-div C of div 8 of pt 2-4 of the FW Act. At the risk of over-simplification, majority support determinations are instruments that permit the making of bargaining orders under s 230 of the FW Act. The statutory regime contemplates that employers and employees (or their respective representatives) may bargain with respect to what are styled “enterprise agreements”: enterprise-level instruments made pursuant to pt 2-4 that regulate the terms and conditions of employment for those to whom they apply. Once commenced, such bargaining must transpire according to various statutory injunctions and the Fair Work Commission is empowered in various ways to ensure that it does. Where an employer does not agree to commence bargaining, it may be compelled to by means of a majority support determination. It appears (although it is not material) that the CEPU intends (or intended) to initiate bargaining with Austal by means of such a determination.

9    The SOAF records that, on each of three relevant occasions, Mr Woodage was “refused” entry onto the Premises (or one of them). The conduct constituting the Refusals is not particularised; and, somewhat confusingly, the statement suggests that multiple refusals attended each attempt or foreshadowed attempt at entry, including (in some cases), on days well prior to when entry was (or was to be) sought. In some cases, entry is said to have been refused in respect of Mr Woodage’s “proposed entry”. Regardless, it is (or appears to be) agreed in each case that Mr Woodage was refused entry onto the Premises and it was that conduct that, in each case, was said to constitute the alleged contraventions of ss 501 and 502 of the FW Act.

The statutory framework

10    Part 3-4 of the FW Act is entitled, “right of entry”. It confers upon “permit holders” such as Mr Woodage various rights to enter premises for various purposes. Of present relevance is the right conferred by s 484, which relevantly provides as follows:

484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees…:

(a)     who perform work on the premises; and

(b)     whose industrial interests the permit holder’s organisation is entitled to represent; and

(c)     who wish to participate in those discussions.

11    Statutory entry rights—including the right conferred by s 484—are the subject of protections enshrined in div 4 of pt 3-4. Of present interest are the protections enshrined in ss 501 and 502 of the FW Act, which relevantly provide (and provided) as follows:

501 Person must not refuse or delay entry

A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.

…

502 Person must not hinder or obstruct permit holder

(1)     A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.

…

(3)     Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.

12    Each of ss 501 and 502(1) of the FW Act is a “civil remedy provision”: FW Act, s 539(1). A person affected by a contravention of either is entitled to apply to this court for orders under sub-div B of div 2 of pt 4-1 of the FW Act. The court has jurisdiction to make any order that it considers appropriate if satisfied that a person has contravened, or proposes to contravene, either prohibition: FW Act, s 545(1). In the case of a body corporate (such as Austal), it may impose a pecuniary penalty of up to 300 penalty units (or, for present purposes, $66,600.00) in respect of such contraventions as it is satisfied occurred. Presently, it is agreed (and not obviously contestable) that the CEPU is a person affected by the conduct that is said to have constituted the contraventions that are (and were) alleged.

The primary judgment

13    The learned primary judge concluded that Mr Woodage was not, on any of the occasions that he sought or foreshadowed entry onto the Premises, authorised to that end by s 484 of the FW Act. That was said to be so because the purposes for which he sought (or foreshadowed that he would seek) to enter included the securing of support for a majority support determination (and, more specifically, the obtaining of signatures on a petition designed with that end in mind). His Honour concluded that entry for that purpose (or for purposes that included that purpose) was not entry for the purpose of holding discussions with Austal employees.

14    His Honour took the view (Primary Judgment, [36]) that, for the purposes of s 484 of the FW Act:

…the holding of discussions would include conversations where the topic to be addressed is whether an employee is willing to support a particular course of action. The discussion may reach a point where the employee decides to do so. However, the holding of discussions does not extend to then securing some form of commitment that has a future significance beyond the conclusion of the discussion.

15    His Honour observed that a permit holder’s purpose in seeking entry onto premises will extend beyond the holding of discussions insofar as he or she “…seeks to secure some form of agreement or pledge of commitment”: Primary Judgment, [37]. That reasoning continued:

Whether [that agreement or pledge] is sought in the form of an oral statement, a handshake or a signature, the seeking of a commitment that will guide or bind future behaviour goes beyond a discussion.

16    Later, his Honour observed (Primary Judgment, [39]) that:

…an official who seeks to engage in a discussion with an employee in order to secure a commitment to a particular course of action in the future, namely securing a signature on a petition to be used to support an application to commence bargaining, has a purpose that extends beyond discussion.

17    That led his Honour to conclude (Primary Judgment, [42]) that:

…the purpose of securing signatures on a petition to be used in an application for a majority support determination by the Commission is a purpose that goes beyond holding discussions.

18    His Honour’s ultimate finding (Primary Judgment, [45]) was that:

…entry for the purposes of obtaining signatures on the petition was not entry for the purposes of holding discussions.

19    His Honour then proceeded to consider whether a permit holder’s entry onto premises for multiple purposes, one of which being to hold discussions of the kind to which s 484 of the FW Act refers, might suffice to attract the right that that section confers. He concluded (Primary Judgment, [59]) that:

The construction of s 484 contended for by the [CEPU] would mean that a permit holder would have a right to enter for any number of purposes provided the purposes included holding discussions with employees. A construction of that kind would run counter to the surrounding context in which there are detailed provisions circumscribing the right of entry. It would authorise entry for purposes that are not stated in the legislation. The ordinary grammatical reading of s 484 is that it specifies the only purposes for which a permit holder may enter the premises.

The appeal

20    The appeal proceeds upon a single ground, namely that:

1.    The primary judge erred in holding at J[45] that entry for the purposes of obtaining signatures on a petition in support of a majority support determination by the Fair Work Commission was not entry for the purposes of holding discussions within the meaning of s 484 of the Fair Work Act 2009 (Cth).

21    The CEPU asks that the appeal be allowed and that the matter be “…remitted to the primary judge for the making of final orders including the assessment of penalties in accordance with the reasons of the Full Court”.

22    At the hearing of the appeal, Mr Liam O’Brien, a representative of the Australian Council of Trade Unions, sought and, without objection, was granted leave to intervene.

23    The CEPU’s notice of appeal does not identify with the usual particularity the orders that the full court is asked to make in lieu of those of the primary judge. That is a topic to which it will be necessary later to return. For now, it suffices to note that the appeal turns upon a relatively narrow question, namely whether entry onto premises for the purposes of securing signatures on a document falls within the statutory conception of entry for the purposes of holding discussions.

24    In defence of the Primary Judgment, the respondents contend that a permit holder who seeks entry onto premises for the purposes of securing signatures on a petition does so for a purpose that is extraneous to the holding of discussions. That being so, it is said that the entry is not one that s 484 of the FW Act authorises. It maintains that the learned primary judge was correct so to conclude.

25    The appellant and the intervener, by contrast, submit that the statutory conception of “discussions” in s 484 of the FW Act ought not to be narrowly construed. They maintain that entry onto premises that is sought for the purposes of securing signatures on a petition falls comfortably within what s 484 contemplates as entry for the purposes of the holding of discussions. At the very least, they submit that it is a purpose that is necessarily incidental thereto and that the section should be construed so as to cover such entry. Either way, they maintain that Mr Woodage’s attempts (or foreshadowed attempts) to enter the Premises in this case sufficed as valid attempts (or foreshadowed attempts) to exercise the right of entry conferred upon him by s 484 of the FW Act.

Relevant principles of statutory construction

26    Before turning to examine whether the agreed purposes that animated Mr Woodage’s attempts (or foreshadowed attempts) to enter the Premises, the learned primary judge was concerned to record some points of principle relevant to the statutory construction task with which he was confronted. His Honour observed (Primary Judgment, [10]-[13]):

The meaning to be given to statutory instruments is their contextual meaning; that is, the text of the statute should be considered whilst at the same time having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ), [37]-[39] (Gageler J).

There are challenges in using purpose to aid construction where it is apparent that the legislation seeks to balance competing interests or policy considerations: Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 268 FCR 128 at [80]-[84] (Allsop CJ, Griffiths and O'Callaghan JJ). If an express statement of purpose is to assist in resolving a particular issue of construction then it must be expressed with sufficient specificity for it to be deployed in that way: Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529. The Court must not conjure a purpose that is more specific than the context discloses and then use that purpose to construe the legislation: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [26]. Ultimately, 'the fundamental duty of the Court is to give meaning to the legislative command according to the terms in which it has been expressed': Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 at [16]. 'Understanding context has utility if, and so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text': Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39].

The Fair Work Act has a number of express statements of purpose. In order to promote wider economic interests, it seeks to achieve a balance between the interests of employers and employees when it comes to workplace relations: s 3. The particular provisions that allow for union officials to enter work premises are themselves a particular respect in which the legislation seeks to strike an appropriate balance between those interests. As stated in s 480:

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a)    the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i)    this Act and fair work instruments; and

(ii)    State or Territory OHS laws; and

(b)    the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c)    the right of occupiers of premises and employers to go about their business without undue inconvenience.

Section 480 is a non-operative provision that is enacted to guide the provisions in Part 3-4, including s 484. The use to which it may be put in construing the provisions of Part 3-4 was described by Allsop CJ, White and O'Callaghan JJ in Australian Building and Construction Commission v Powell [2017] FCAFC 89; (2017) 251 FCR 470 at [46] in the following way:

… if there were two constructions available from the words, one of which fulfilled the object fully, the other of which did not fully do so, that would provide a reason or a consideration to prefer the former. But it does not follow that words that have a meaning that go beyond the object, and so can be seen to fulfil the object, should be read down to conform only with the boundaries or parameters of the stated object.

27    Those observations are not in contest and may be adopted for present purposes.

28    At the hearing of the appeal, the CEPU submitted that the court ought to construe s 484—and, in particular, the words “may enter premises for the purposes of holding discussions”—under the light afforded by rights of entry conferred historically by awards and other industrial laws. Respectfully, none of what was said was persuasive and it needn’t here be rehearsed.

Consideration

29    Section 484 of the FW Act operates to confer upon permit holders a right to do what would otherwise be unlawful: namely, to enter upon premises without the invitation or consent of an occupier. Sections 501 and 502 of the FW Act serve to protect that right by prohibiting, upon pain of civil penalty, conduct that frustrates its exercise—be that in the form of the refusal or delay of entry that is validly sought (s 501), or the intentional hindrance or obstruction of a permit holder exercising rights in accordance with pt 3-4 (s 502).

30    That acknowledged, there is force to the respondents’ contention—and the primary judge’s observation—that the statutory scheme erected by pt 3-4 of the FW Act “…manifests a concern to tightly circumscribe the statutory right to entry that can be exercised by union officials”: Primary Judgment, [41]. In construing the limits of the phrase “may enter premises for the purposes of holding discussions”, this court must be careful to honour that clear parliamentary intention.

31    As to what is or is not a “discussion”, there was little if anything, in contest between the parties. For present purposes, it may be accepted that a discussion for the purposes of s 484 of the FW Act is apt to describe an event; more specifically, an event that involves participation, by those who are in some way party to it (most likely physically party to it), in the communication, exchange or examination of information.

32    At issue between the parties was (and is) the narrower question of whether entry that is gained onto premises for the purposes of obtaining signatures on a petition might qualify as entry onto premises for the purposes of holding discussions.

33    Insofar as it authorises entry onto premises “for the purposes of holding discussions”, s 484 cannot be understood only to permit entry that is sought to be gained solely so that discussions might ensue. To construe the section in that way is to misunderstand the nature and purpose of discussions. Discussion is a means to an end. It is not a course in which one partakes solely for its own sake; rather, it is a medium that is engaged in order to achieve some other objective.

34    The learned primary judge accepted as much. His Honour—rightly, in our view—acknowledged (Primary Judgment, [34]) that a discussion might be “…undertaken for the purpose of persuading a participant in the discussion to a particular view or to seek a commitment to a particular course of action”. Respectfully, that observation is difficult to reconcile with his Honour’s later conclusion that “…the holding of discussions does not extend to…securing some form of commitment that has a future significance beyond the conclusion of the discussion”.

35    His Honour’s conclusion appears to distinguish the “seek[ing]” of a commitment from the “secur[ing]” of a commitment. If that is so, it distils to this: namely, that entry onto premises for the purposes of holding discussions is apt to cover entry for the purposes of “persuading [participants]…to a particular view or [seeking from them] a commitment to a particular course of action”; but not entry for the purposes of confirming that those participants are, in fact, so persuaded or committed.

36    When considering the purpose for which entry onto premises is sought under s 484 of the FW Act, it is artificial to separate the holding of discussions from the realisation of the broader purpose or objective to which those discussions are directed. Entry that is sought so that discussions may be held necessarily entails entry for the purpose of achieving whatever is hoped to be achieved by holding them.

37    Here, it was (and is) accepted that Mr Woodage sought entry onto the Premises for the purpose of obtaining signatures on a petition. That purpose was to be realised via the medium of discussion: in other words, Mr Woodage sought to persuade those with whom he might speak that they should sign his petition. With respect, his Honour was quite right to observe (Primary Judgment, [43]) that, by seeking entry for that purpose, Mr Woodage sought entry for the purposes of “…seeking and making…a record of a commitment”; but so to observe is merely to accept that the discussions that he intended to hold were directed to the achievement of that end. To recognise that he sought entry for the purposes of achieving something through discussion is not to deny that he sought entry for the purposes of holding discussions.

38    Construing the phrase, “enter premises for the purposes of holding discussions” in that way—that is, as apt to encapsulate entry onto premises for the purposes of bringing about by discussion some preferred state of affairs (here, the accumulation of signatures on a document)—accords with the ordinary meaning of those words. A discussion between two or more people about whether (or how or when or why) something should happen is no less a discussion because it culminates in some kind of agreed action or some expression of commitment. Indeed, agreement or commitment will often be the very end to which such a discussion is directed in the first place.

39    The alternative construction, by contrast—that is, that the words in s 484 of the FW Act should be read so as to distinguish the holding of discussions from the purpose or objective that it is hoped that they might realise—is unlikely to have been intended. If a permit holder may enter premises in the exercise of a right conferred by s 484 of the FW Act only for discussion purposes—and not for any other purpose to the realisation or advancement of which the holding of discussions is deemed desirable—then the right would be practically worthless. As has been noted, there is no such thing as a discussion for its own sake. Discussions are held so as to bring about some other desired state of affairs. Entry onto premises that is sought for the purpose of realising that state of affairs via the medium of discussion suffices as entry for the purposes of holding discussions.

40    That is what occurred—or was to occur—in the present case. Mr Woodage proposed to enter the Premises so that he could, by discussion, secure signatures on a petition from those who were willing or prepared to speak with him.

41    It follows, with respect, that his Honour erred by holding that “…entry for the purposes of obtaining signatures on the petition was not entry for the purposes of holding discussions”. In truth, the rights of entry that Mr Woodage sought to exercise were rights conferred upon him by s 484 of the FW Act.

Relief

42    Having so concluded, attention must turn to what relief might be given on the appeal. Plainly, the appeal must be allowed and the matter remitted, in some form or another, for further consideration by the primary judge.

43    By its notice of appeal, the CEPU moves the court for orders that:

(1)    its appeal be allowed; and

(2)    the matter be “…remitted to the primary judge for the making of final orders including the assessment of penalties in accordance with the reasons of the Full Court”.

44    During the hearing of the appeal, senior counsel for the CEPU was invited to nominate more specific relief that the court might grant in the event that the appeal were allowed. By way of response, the CEPU provided to the court a minute headed “appellant’s proposed declarations”. It urges the court to grant declaratory relief in the following forms, namely:

1.    On 27 August 2021 at 4:50pm, the first respondent and the second respondent refused Adam Woodage’s proposed entry on 30 August 2021 onto premises at 100 Clarence Beach Road, Henderson WA 6166 pursuant to an entry notice given on 30 August 2021 and thereby hindered or obstructed Adam Woodage exercising rights in accordance with Part 3-4 in contravention of s 502(1) of the Fair Work Act 2009 (Cth).

2.     On 30 August 2021 at 8:20am, the first respondent and the second respondent refused Adam Woodage’s proposed entry on 30 August 2021 onto premises at 100 Clarence Beach Road, Henderson WA 6166 pursuant to an entry notice given on 26 August 2021 and thereby hindered or obstructed Adam Woodage exercising rights in accordance with Part 3-4 in contravention of s 502(1) of the Fair Work Act 2009 (Cth).

3.     On 30 August 2021 at or about 8:40am, the first respondent and the second respondent refused Adam Woodage entry onto premises at 100 Clarence Beach Road, Henderson WA 6166 pursuant to an entry notice given on 26 August 2021 in contravention of ss 501 and 502(1) of the Fair Work Act 2009 (Cth).

4.     On 30 August 2021 at 11:41am, the first respondent and the second respondent refused Adam Woodage’s proposed entry on 31 August 2021 onto premises at 100 Clarence Beach Road, Henderson WA 6166 pursuant to an entry notice given on 30 August 2021 and thereby hindered or obstructed Adam Woodage exercising rights in accordance with Part 3-4 in contravention of s 502(1) of the Fair Work Act 2009 (Cth).

5.     On 3 September 2021 at 4:21pm, the first respondent and the third respondent refused Adam Woodage’s proposed entry on 7 September 2021 onto premises at 51 Hope Valley Road, Naval Base, Western Australia pursuant to an entry notice given on 3 September 2021 and thereby hindered or obstructed Adam Woodage exercising rights in accordance with Part 3-4 in contravention of s 502(1) of the Fair Work Act 2009 (Cth).

6.     On 6 September 2021 at 3:17pm, the first respondent and the third respondent refused Adam Woodage’s proposed entry on 7 September 2021 onto premises at 51 Hope Valley Road, Naval Base, Western Australia pursuant to an entry notice given on 3 September 2021 and thereby hindered or obstructed Adam Woodage exercising rights in accordance with Part 3-4 in contravention of s 502(1) of the Fair Work Act 2009 (Cth).

7.     On 7 September 2021 at or about 8:44am, the first respondent and the fourth respondent refused Adam Woodage’s entry onto premises at 51 Hope Valley Road, Naval Base, Western Australia pursuant to an entry notice given on 3 September 2021 in contravention of ss 501 and 502(1) of the Fair Work Act 2009 (Cth).

45    Two things are immediately apparent from the declaratory relief that the CEPU proposes.

46    First, the court is (or seems to be) urged to make findings that the first respondent committed two contraventions of s 501 and seven contraventions of s 502(1) of the FW Act. Corresponding findings are urged with respect to the other respondents (each being one of the human agents through whom the first respondent relevantly acted).

47    It is not apparent how those numbers reconcile with the findings recorded in the Primary Judgment. His Honour seems to have accepted that Mr Woodage’s entry onto the Premises (or either of them) was “refused” on four occasions: Primary Judgment, [3]. Those occasions are not particularised in his Honour’s reasons but were not obviously the subject of controversy in the appeal (indeed, the respondents conceded that his Honour’s observation was accurate).

48    Complicating things somewhat, the SOAF records that Mr Woodage provided to the first respondent three “entry notices”. Each, obviously enough, pertained to or recorded his intention to exercise what he claimed—and what we accept was—his right to enter the Premises (or one or other of them) under s 484 of the FW Act. None of the SOAF, the Primary Judgment or the submissions advanced on the appeal explains how it might be that the first respondent could be thought, on two occasions, to have “refused” Mr Woodage entry onto the Premises; and, on seven occasions, to have “intentionally hinder[ed] or obstruct[ed]” him as he exercised a right or rights in accordance with pt 3-4 of the FW Act.

49    There are additional problems.

50    The CEPU’s proposed declarations contemplate that the court should, on appeal, find that the first respondent (together with various of the other respondents) “refused” Mr Woodage’s “proposed entry”. Proposed declaration 1, for example, posits that the entry that Mr Woodage intended to gain onto the Henderson Premises on 30 August 2021 was “refused” on 27 August 2021; and that, by reason of that refusal, the first respondent “hindered or obstructed” his exercise of rights in accordance with pt 3-4 of the FW Act. The SOAF records the “refusal” of 27 August 2021; but says nothing about any hindrance or obstruction.

51    How a “permit holder exercising rights in accordance with [pt 3-4 of the FW Act]” might be “intentionally hinder[ed] or obstruct[ed]” three days before his or her foreshadowed entry onto premises is not clear. Perhaps it is possible (see FW Act, s 502(3)); but it would need to be explained how Mr Woodage might be understood to have been “exercising rights in accordance with [pt 3-4 of the FW Act]” on 27 August 2021, three days prior to the intended entry of which he had given notice.

52    Even assuming that he might have been, it is unclear, in this case, how the suggestion reconciles with the findings of the primary judge or the content of the SOAF. That potential reconciliation was not the subject of submissions on the appeal. It simply appears not to have featured in the parties’ submissions (on appeal or at trial), no doubt because the issue principally in dispute concerned Mr Woodage’s purpose in seeking entry onto the Premises. In the absence of clarity, we have significant (and, we should hope, obvious and self-explanatory) concerns about granting relief in the form that is proposed.

53    In the circumstances, the better course—indeed, in our view, the only course—is simply to allow the appeal, set aside the order of the primary judge dismissing the CEPU’s cross-claim, and remit that claim back to the primary judge for further hearing.

54    We would make orders accordingly.

Associate:

Dated:    14 November 2023

SCHEDULE OF PARTIES