FEDERAL COURT OF AUSTRALIA

John Holland Pty Ltd vConstruction, Forestry, Mining and Energy Union

(New South Wales Branch) [2009] FCA 645

INDUSTRIAL LAW  - right of entry under industrial law and under occupational health and safety law – whether state occupational health and safety law conferring a right of entry invalid because of federal occupational health and safety law – whether there was contravention of federal industrial law – exercise of judicial discretion to grant declarations – trespass.

WORDS AND PHRASES – "authorised representative", "officer", "office"

Commonwealth Constitution

Building and Construction Industry Improvement Act 2005 (Cth)

Judiciary Act 1903 (Cth) s39B

Industrial Relations Act 1996 (NSW), Part 7, ss 296, 299

Industrial Relations (General) Regulation 2001 (NSW)

Occupational Health and Safety Act 2000 (NSW), ss 76, 85

Occupational Health and Safety Act 1991 (Cth)

Workplace Relations Act 1996 (Cth), ss 758, 767

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487

Australian Securities and Investments Commission v Warrenmang Ltd [2007] FCA 973

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334

Coco v The Queen (1994) 179 CLR 427

IMF (Aust) Ltd v Sons of Gwalia Ltd (2004) 211 ALR 231

Landeryou v Taylor (1969) 15 FLR 147

JOHN HOLLAND PTY LTD ACN 004 282 268 AND JOHN HOLLAND GROUP PTY LTD ACN 050 242 147 v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH), PETER PRIMMER and SCOTT WILCOX.

NSD 1986 OF 2007

MOORE J

19 june 2009

SYDNEY

THE COURT ORDERS AND DECLARES THAT:

1.         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).

2.         The application is otherwise dismissed.

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 eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                          The applicants are involved in the construction of the Sydney Desalination Plant in the Kurnell area of Sydney.  In September 2007 the second and third respondents entered the site where the plant was being constructed.  At the time, they were organisers employed by the first respondent.  The applicants contend that this entry was unlawful.  The respondents contend otherwise and say that the second and third respondents were entitled to enter the premises and rely, in various ways, on rights of entry which can be exercised both under industrial law of general application and occupational health and safety law.

BACKGROUND

2                          The first and second applicants are trading corporations for the purposes of the Constitution. Each of the first and second applicants is part of the John Holland Group of Companies (John Holland Group).  The John Holland Group operates a large specialist contracting business, and operates in the transport, engineering telecommunications, power, water infrastructure, mining and aviation industries.

3                          The first applicant is involved with Veolia Water Australia Pty Ltd (Veolia) in a joint-venture known as the "Blue Water Joint Venture".  The Blue Water Joint Venture is engaged in a project (the Blue Water Project) on 28 hectares of land in the Kurnell area of Sydney (the Kurnell premises) to design and construct a seawater desalination plant and associated infrastructure.  The first applicant and Veolia are parties to an agreement entitled "Sydney Desalination Project Joint Venture Agreement between Veolia Water Australia Pty Ltd and the John Holland Pty Ltd" (Joint Venture Agreement).  The Blue Water Project is being constructed under a contract entitled "Sydney’sDesalination Project Design and Construct Contract" (DC Contract).  The parties to the DC Contract are Sydney Desalination Plant Pty Limited (the Company) and Veolia and the first applicant (together the Contractor).

4                          Under the DC Contract, the Contractor is required to provide security for, and control access to and within, the Kurnell premises.  Under the terms of the Joint Venture Agreement, the first applicant was required to provide a project management system, including occupational health and safety at the Kurnell premises.

5                          The Blue Water Joint Venture deploys labour engaged in various ways, including people employed directly by the second applicant (for example, management personnel, supervisors (who supervise and liaise with sub-contractors) and safety and environmental personnel), people employed directly by Veolia and people employed by sub-contractors who have been engaged by the first or second applicants.  The first applicant did not directly employ any employees at the Kurnell Premises, although it was the principal contractor at the Kurnell premises (as that term is used in the Industrial Relations (General) Regulation 2001 (NSW)).  As the principal contractor, the first applicant was required to prepare an occupational health and safety plan in respect of the Kurnell premises and to ensure that each sub-contractor, before commencing work at the Kurnell premises, provides the first applicant with a written safe work method statement for the work to be carried out by the sub-contractor.  Employees of subcontractors that have been engaged by either the first or second applicant or Veolia also perform work at the Kurnell premises.

6                          It is necessary to detail certain events in September 2007.  Evidence was led by the applicants.  The respondents led no evidence about what occurred at the site.  While some of the applicants' witnesses were cross-examined, generally I accept their evidence.  The following narrative represents findings of fact I have made.

7                          Entry to the principal site for the Blue Water Joint Venture in September 2007 was through a single gate on Sir Joseph Banks Drive, Kurnell.  There was no boom gate at that time to control entry.  The protocol for entry to the Kurnell premises required the security officer to stop the vehicle at the gate, record the registration number of the vehicle, request the driver's name, the company the visitors were from and the people they wanted to see.  The security officer then had to advise Mr Cotts, the Civil General Superintendent, that access was being sought.  He would determine if it was "safe and appropriate for the vehicle/visitor to be allowed" access.  The security officers were instructed to inform drivers to turn on their hazard lights and to drive to the site office at no more than 20 kph.  If access was denied, the security officer had to direct the vehicle to leave the site.

8                          On 12 September 2007, Stephen Sasse, Group General Manager – Human Resources & Organisation Strategy for the second applicant, received a phone call from the second respondent who asked if he could enter the Kurnell premises to "check it out".  Mr Sasse told him he must comply with the rules for site entry and to contact Ms Sally Friedlander, the People and Capabilities Manager, to discuss access. Ms Friedlander spoke to the second respondent about the proposed site visit.  She requested details about the safety breach the second respondent had raised and reminded him about the requirements for entry. On the same day at about 10.40am, Ms Karen Williamson, duty security officer for Tricor Security Pty Ltd, reported that a dark coloured sedan drove past her at the gatehouse although she motioned with her arm and hand for the vehicle to stop. Mr Cotts was notified by Mr Mark Dowell, the project engineer, that representatives of the first respondent had been on site and had left. Mr Cotts phoned Ms Williamson to ascertain why the vehicle had been granted access.

9                          On 18 September 2007 Ms Williamson was again on duty at the gatehouse when a "dark blue sedan" approached.  There were two men in the vehicle, the second and third respondents.  The driver said that they were from the union and had "come to inspect the site".  The passenger held up a yellow laminated card and told Ms Williamson that this gave them authorisation and "even the Police can't stop us". While Ms Williamson was phoning Mr Cotts, the driver asked her where the site office was.  When she indicated the general direction, the vehicle "sped off" in the direction of the back of the site.  This was reported to Mr Cotts who said he would deal with the matter.  At the site office Mr Cotts spoke to the second and third respondents.  Mr Cotts asked for the right of entry permit and mentioned that 24 hours notice was required.  Mr Cotts asked if he could photocopy the identification presented to him.  The second respondent refused to allow this and stated that he was not required to give notice because it was a "safety OHS issue". 

10                        The second respondent asked Terry Askew, Safety Advisor, who was in the next office, for the "Safe Working Method Statements".  When this request was refused by Mr Cotts and Mr Askew, the second respondent informed them they were "in breach of the Act".  Mr Cotts explained that he needed authorisation from Mr Andersen to comply with their requests.  Both Mr Cotts and the second respondent spoke to Mr Andersen.  The second respondent told Mr Andersen he was recording the conversation.  Mr Andersen told Mr Cotts that if the second and third respondents had not left the site by 10.30am, the police would be called.

11                        Mr Andersen also asked Mr Sasse to speak to the second respondent. Mr Sasse called the offices of the first respondent to speak to the State Secretary, Andrew Ferguson but he was not available.  At about 10.50am the second respondent told Mr Cotts that he would contact Workcover, Mr Ferguson, the police and Mr Della Bosca.  Ms Williamson was notified that because the union officials had failed to leave the site, Cronulla Police station had been contacted and the police should be given access to the site.  Shortly after this Ms Williamson observed the union representatives' vehicle leaving the site.  It stopped briefly at the gatehouse.  The police arrived about 11.00am and she informed them that the union organisers had left.  The police said they would speak to Mr Cotts.

12                        Later in the day two inspectors from WorkCover, Mr Dennis Howard and Mr Robert Mayell, attended the site and held a discussion with the second and third respondents outside the premises. Mr Andersen invited the inspectors onto the site.  However he refused access to the union organisers because they had not revealed what the safety breach was and which employer was involved.  The second respondent refused to tell the inspectors these details, saying that it was confidential information.  The second and third respondents left the front gate area at about 3.10pm.  The inspectors left the area at about 3.20pm and did not enter the site as the safety concern was not identified.

13                        In the evening of 18 September 2007 Mr Rick Bultitude, Head of the Construction Inspectorate of WorkCover (NSW), discussed the incident at the site with Mr Sasse to see if a compromise could be reached. Mr Sasse explained that there was no "Code compliance" by the union organisers and mentioned that the inspectors were welcome to visit the site at any time.  The following day Mr Bultitude told Mr Sasse he would be sending two of his inspectors to the site.  On 20 September 2007 Mr Sasse received a letter from Mr Noonan, National Secretary of the union rejecting Mr Sasse's assertion about illegal entry of the union organisers.  On 25 September a letter arrived from Mr Ferguson rejecting the assertions that the union or its officials had breached the law. On 12 October 2007, Mr Sasse attended a meeting convened by Ms Burrow of the Australian Council of Trade Unions, and attended by representatives of the union, including Mr Ferguson.  The union proposed a protocol for exercising entry to the Kurnell premises.  This suggested protocol was rejected by Mr Sasse in a letter of 14 October 2007 which explained that judicial interpretation would be necessary to resolve the issue.

14                        Before discussing the legal issues it is necessary to refer to the John Holland Group's occupational health and safety policy.  Mr Sasse is responsible for the John Holland Group's policy concerning occupational health and safety.  In his affidavit of 24 January 2008, Mr Sasse detailed the safety procedures which apply to the Blue Water Joint Venture and said that the John Holland Group adheres to the terms of the National Code of Practice for the Construction Industry and the Implementation Guidelines for the National Code of Practice for the Construction Industry, revised in September 2005.  He said that the John Holland Group adopts a national system of management of risks for all workplaces, to ensure accreditation is maintained under the OHS Accreditation Scheme established under the Building and Construction Industry Improvement Act 2005 (Cth) and associated regulations which applies to building and construction work funded by the Australian Government.  Also the John Holland Group requires all companies to adhere to a procedure at project launch, in particular, project occupational health and safety management plans which are developed to cover specific projects.  The specific safety management plan, the Blue Water Joint Venture Safety Management Plan (the Safety Plan) contains provisions which identify key risk issues (3.6) such as site and workplace access and egress as well as the protection of the public and other people; provisions which allocate particular responsibilities to key personnel (4.0); risk and hazard management (6.0); the provision of systems and controls, such as for personal protection and traffic management (7.0); incident management (13.0); injury management and rehabilitation (14.0) as well as various auditing procedures (18.0).

15                        The Safety Plan imposes requirements at the Kurnell premises in relation to persons who wish to enter the site.  Visitors to the Kurnell premises are required by [5.5] to:

5.5.2…All visitors must undergo a visitor's induction.

5.5.4 All visitors must be supervised and accompanied at all times by a person that has completed the Project Specific Induction for the area that is being visited. They must sign the visitors register upon arrival at and upon exit of the project.

16                        Against this background, the applicants seek orders which raise the following legal issues:

1.         Did the second and third respondents have a right to enter the Kurnell premises under state occupational health and safety law?

2.         If not, did the assertion of a right to enter involve a contravention of the state occupational health and safety law?

3.         If they did, was the state occupational health and safety law conferring that right invalid because of federal occupational health and safety law?

4.         In any event, did the assertion of a right to enter and entry involve a contravention of federal industrial law?

5.         Are conditions the applicant seeks to impose on the right of entry conditions which would enliven a statutory precondition to the exercise of the right of entry under federal industrial law?

6.         Did the entry by the second and third respondent constitute trespass?

17                        It is convenient to consider, as the first legal issue, whether the second and third respondents held, at the time of the events just described, a right of entry under state occupational health and safety law.

THE RIGHT OF ENTRY UNDER STATE SAFETY LAW

18                        In September 2007, the second and third respondents held instruments of authority for the purposes of Part 7 of the Industrial Relations Act 1996 (NSW) (IR Act) issued by the Industrial Registrar.  Part 7 generally deals with entry by representatives of industrial organisations into premises to investigate breaches of industrial law and to talk to employees.  The Occupational Health and Safety Act 2000 (NSW) (OHS Act) also contains provisions authorising representatives of industrial organisations (referred to as an "authorised representative") to enter premises for the purpose of investigating any suspected breach of the occupational health and safety legislation and similar purposes.  However that latter Act does not contain a scheme for issuing permits or authorities to facilitate entry.  Rather it relies on the process of authorisation under the IR Act.  The issue which arises in these proceedings is whether the instruments of authority issued by the Industrial Registrar held by the second and third respondent conferred a right of entry under the provisions in the OHS Act.

19                        In order to understand how the issue arises is necessary to consider s 76 of the OHS Act and a number of definitions in the IR Act.  Section 76 is in Division 3 of Part 5 of the OHS Act which relates to the entry and inspection powers of authorised employees' representatives.  The section is a definitions section defining one word ("authorised representative").  It provides:

authorised representative of an industrial organisation of employees, means an officer of that organisation (including any person who is concerned in, or takes part in, the management of that organisation) who is authorised under Part 7 of Chapter 5 of the Industrial Relations Act 1996.

20                        Part 7 of Chapter 5 of the IR Act concerns entry and inspection by officers of industrial organisations.  A right of entry (described as an instrument of authority) can be issued under that Part by the Industrial Registrar to an officer or employee of an industrial organisation.  In that Part, such a person is described as an "authorised industrial officer".  An "authorised industrial officer" is defined in s 296 of the IR Act which is a section in the Part containing a number of definitions.  The section contains a definition of two relevant words or expressions and provides:

authorised industrial officer means an officer or employee of an industrial organisation of employees who holds an instrument of authority for the purposes of this Part issued by the Industrial Registrar under section 299.

..........

officer of an industrial organisation includes any person who is concerned in, or takes part in, the management of the organisation

21                        The power to issue an authority to an officer or employee is conferred by s 299 of the IR Act which provides:

(1) The Industrial Registrar may, on application, issue an instrument of authority for the purposes of this Part to an officer or employee of an industrial organisation of employees.

 ………

(3) The authority:

(a) remains in force until it expires or is revoked under this section, and

(b) expires when the person to whom it was issued ceases to be a officer or employee of the industrial organisation of employees concerned.

………

22                        The dictionary of the IR Act, which is at the end of that Act and by operation of s 4 applies generally to its provisions, contains the follow definitions of "office" and "officer":

office in an organisation, means:

(a)        an office of president, vice-president, secretary or assistant secretary of the organisation, or

(b)        the office of a voting member of a collective body of the organisation, being a collective body that has power in relation to any of the following functions:

(i)         the management of the financial or other affairs of the organisation,

(ii)        the determination of policy for the organisation,

(iii)       the making, alteration or rescission of rules of the organisation,

(iv)       the enforcement of rules of the organisation, or the performance of functions in relation to the enforcement of such rules, or

(c)        an office the holder of which is, under the rules of the organisation, entitled to participate directly in any of the functions referred to in paragraph (b)(i) or (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing existing policy of the organisation or decisions concerning the organisation, or

(d)        an office the holder of which is, under the rules of the organisation, entitled to participate directly in any of the functions referred to in paragraph (b)(ii) or (iii), or

(e)        The office of a person holding (whether as trustee or otherwise) property of the organisation or property in which the organisation has a beneficial interest.

officer of an organisation means a person who holds an office in the organisation.

23                        Two questions arise for consideration.  The first is what is meant by "officer of that organisation (including any person who is concerned in, or takes part in, the management of that organisation)" in s 76 of the OHS Act.  The second is whether, as a matter of fact, the second and third respondents were officers in this defined sense and were, accordingly, authorized representatives able to exercise a right of entry under the OHS Act.

24                        As to the first question, senior counsel for the applicants appeared to contend that the word "officer" in s 76 had the defined meaning of the word "officer" in the dictionary to the IR Act or, apparently in the alternative, the defined meaning of the word "officer" in s 296.  Counsel for the Attorney-General submitted it should be treated as a shorthand description of the expression "authorised industrial officer" as defined in s 296.  Counsel for the respondents both adopted this latter submission but also argued that it had a wider meaning such as that comprehended by the judgment in Landeryou v Taylor (1969) 15 FLR 147 at 155-156.

25                        The answer is, in my opinion, reasonably clear.  Section 76 was enacted against a background where the scheme in Part 7 of the IR Act was in place.  It would have then been clear from Part 7 that the Industrial Registrar could issue an instrument of authority to two classes of representatives of an industrial organisation.  One class was officers of an organisation and the other was employees of an organisation.  Within Part 7 "officer" was specifically defined and defined in a way that was wider than the combined effect of the definition of "office" and "officer" in the dictionary to the IR Act.  The specific definition of "officer" adopted for Part 7 used the word "includes".  That word often, though not always, signifies an enlargement of the ordinary meaning of the word: see Statutory Interpretation in Australia (6^th edition), Pearce and Geddes at [6.56] and following.  It was defined to include "any person who is concerned in, or takes part in, the management of the organisation". The definition in s 296 was, in my opinion, intended to reflect the narrower definition of "officer" in the dictionary but widened by the expression "include[ing] any person who is concerned in, or takes part in, the management of the organisation".  Thus the special definition of "officer" for Part 7 of the IR Act comprehended individuals who held the various offices specified in the definition of "office" in the dictionary together with any other person who was concerned in or took part in the management of the organisation.

26                        The formulation used to extend the meaning of the word "officer" in s 296, namely "include[ing] any person who is concerned in, or takes part in, the management of the organisation", is repeated in parentheses in the definition of "authorised representative" in s 76.  The repetition of this expression in s 76 reinforces what is relatively clear in any event, namely that a choice was made by Parliament to limit the class of representatives of an industrial organisation who could exercise a right of entry under the OHS Act to the first class who might be granted an instrument of authority under Part 7, namely officers as defined in s 296.

27                        I do not think this construction gives rise to an unintended consequence of narrowing the class of people who might act on behalf of an industrial organisation for the purpose of entry under the OHS Act as compared to entry under the IR Act.  Under the IR Act the right of entry can be exercised for the comparatively straightforward and not particularly complex purpose of holding discussions with employees: see s 297, though it obviously can be exercised for less straightforward purposes such as investigating breaches of industrial relations legislation: see s 298.  It might be expected that Parliament considered any employee of an industrial organisation could be suited for the more straightforward type of activity.  On the other hand, the right of entry under the OHS Act appears, as a generalisation, to be conferred only for a less straightforward purpose namely investigating suspected breaches of occupational health and safety legislation which can involve making searches and inspections including taking photographs and making video and audio recordings and also requiring the production of documents and inspecting and copying them: s 81.  One can understand that in relation to this purpose, Parliament intended to limit the class of individuals to those who have a more substantial connection to the industrial organisation than simply being employees.  Their status within the industrial organisation must be that of officer.

28                        It is necessary to consider then whether the second and third respondents were an authorised representative for the purposes of s 76.  The applicants in their further amended statement of claim alleged the second and third respondent were at all material times employed by the first respondent in the capacity of organiser.  This was admitted by the first respondent and both individual respondents though, in relation to the third respondent, employment was admitted for the period 1 December 2003 to 1 February 2008.  Thus, it appears not to be in issue that the second and third respondents were employed as organisers.  No respondent alleged in their defence that the second and third respondents were elected organisers which is a distinction possibly drawn in the rules of the first respondent which are in evidence.  Also in evidence is the job description of the third respondent.  I infer that the job description of the second respondent is the same.  Neither the second nor third respondent gave evidence.  It is necessary to review both the job description and the rules to ascertain whether each of the individual respondents was an "officer" as defined in s 296.

29                        The job description of the third respondent is as follows:

JOB DESCRIPTION – ORGANISERS

Overview

Industrial and political awareness, knowledge and understanding of trade unions' objectives, agenda and strategies. An understanding of industry structure and participants. An ability to communicate effectively, both verbally and in written form, together with strong people management skills, and an understanding for conflict resolution, negotiation skills, and strong numeracy skills are essential.

An ability to plan and organise work is critical. An important facet of this position is to, through deductive reasoning, capture situations which are in the best interest of the membership. An ability to liaise, to network and develop ongoing relationship with other unions is also important.

Reports to:           Nominated Executive Officer

Direct Reports:   Nil

Critical Responsibilities:

Industrial Relations Work

Recruitment, Education and Retention of Membership

Communicate opinions of the membership to the Executive Officers

Monitoring Site Safety & Environment

Administrative procedures

Industrial Relations Work

Duties:

·    Assess, identify and initiate realistic representations and actions necessary to attend to the legitimate needs and expectations of the membership.

·    Examine and assess draft EBA's, negotiate to ensure they are consistent with achievable goals and the Union's acceptable standards.

·    Be familiar with current State and Federal legislation impacting upon membership, as well as industry schemes, eg C+BUSS

·    On an ongoing basis monitor working conditions of the membership to ensure that there is compliance with relevant award/EBA and other statutory entitlements.

·    Identify and develop individuals to leadership potential eg. Delegate, temporary organiser etc.

·    Where necessary, after consultation with the legal officer, attend Industrials Commission proceedings to advance/protect membership goals/achievements.

·    Pursue wage claims of members or as allocated by the Wage Claims Department.

Recruitment, Education and Retention of Membership

Duties:

·    As opportunity arises, inform and educate non union employees about benefits of union membership.

·    Provide quality service, information and education for membership in order to retain their support.

·    On an ongoing basis, develop rapport with non union employees to gain their support.

·    On a regular basis, provide members and employees if situation dictates, with all union generated information.

·    Regularly visit workplaces and keep up to date with membership needs, issues and concerns.

·    Through networking with delegates and job organisation, develop ongoing union presence on job site.

·    Educate and inform membership in order to make them more industrially and politically aware.

General Administration

Duties:

·    Become familiar with, and understand, the workings of the union's administrative functions and procedures in order to provide quality information and service to members.

·    Planning and organisation of personal diary on a daily basis.

·    Maintenance and upkeep of job files on a regular basis that will serve as a history and tracking of jobs.

·    Assist members with basic workers compensation inquiries and claims. For complex matters where assistance is required, liaise with Workers Compensation Officer.

Formal Communications

Duties

·    Co-ordinate, convene and address membership meetings.

·    Prepare formal reports for executive officers when required.

·    Attendance at organisers meetings and other organisational meetings when requested.

·    When requested, prepare and plan for presentations at organisers meetings or other meetings.

·    At organisers meetings, give feedback, voice opinion and where necessary, challenge and debate issues being discussed.

·    Liaise as required, with administrative personnel of C+BUSS, ACIRT, CTAS, Long Service Leave Corporation etc.

Monitoring Site Safety & Environment

Duties:

·    Become familiar and conversant with Occupational Health and Safety regulations as well as Codes of Practice for the industry.

·    Ensure that safety committees have been established on site in accordance with regulations and that members have received appropriate training.

·    On an ongoing basis, participate in safety committee meetings as well as attending site safety walks.

·    Network and liaise with bodies such as WorkCover Authority, EPA, relevant Councils and other unions.

·    Liaise with Safety Co-ordinator if assistance is required.

·    Assist members with basic workers compensation inquiries and claims. For complex matters where assistance is required, liaise with the Union's Industrial Offices.

Authorities:

-   Use of motor vehicle

-   Use of fleet card

-   Allocated access cards

-   Receipt book

-   Right of entry authorities

I have read and understand the outlined responsibilities and duties of my job.

I undertake to carry out these responsibilities and duties, or any other duties delegated by Senior Officers(s), to the best of my ability.

30                        After the hearing, I requested written submissions from the parties about certain provisions in the first respondent's rules.  The following commentary concerns the "The Construction and General Division Rules" which relate to one division of the first respondent.  For convenience I will simply refer to these rules as the CFMEU (NSW) rules.  I requested written submissions because it appeared to me those rules, which had not been addressed in oral or written submissions at the hearing, may be important in determining whether the second and third respondent were officers.  In the result, the respondents made a submission in which they admitted the second and third respondent were appointed organisers and necessarily accepted that they were neither elected nor temporary organisers. However this admission is not necessarily against interest and may, in fact, be self-serving.  It has not been accepted by the applicants.

31                        The rules of the CFMEU (NSW) are far from clear about what classes of organisers can be elected or appointed and what, under the rules, are the duties and status of whatever classes of organiser are created or recognized by them.  Rule 12 deals with elections in the Division by the membership of the Division.  In one sub-rule in rule 12 concerning qualifications for nomination, reference is made to either one or two offices described as "District Secretary/Organiser".  Nowhere else in the rules is further reference made to organisers elected by the membership.  For my part, I doubt this reference is intended to be a reference to more than one office.  In any event, as I noted earlier, the pleadings probably dictate a conclusion that neither the second nor third respondent were elected.  The respondents submitted that apart from elected organisers, the rules contemplated two other classes of organiser, namely appointed organiser and temporary organiser.

32                        Rule 21 of the rules provides:

21 – (1) DUTIES OF ORGANISERS

(a) They shall be under the control and supervision of the Divisional Management Committee and shall carry out their duties within the provisions of the Rules.

(b) They shall visit shops and jobs where members of the Division and other workers eligible to join are employed and endeavour to enrol new members. They shall cooperate with all Shop and Job Stewards and District Secretaries, and carry out organisational work in any part of the State as directed by the Divisional Management Committee.

2 – (2) ATTENDANCE OF ORGANISERS ELECTED AT MEETINGS OF DIVISIONAL COUNCIL AND DIVISIONAL MANAGEMENT COMMITTEE

(a) An elected Organiser shall attend any meeting of the Divisional Management Committee when requested to do so by resolution of Divisional Management Committee. An elected or temporary Organiser shall be allowed to attend a meeting of the Divisional Management Committee if the Organiser desires to do so unless otherwise directed by the Divisional Management Committee. Such an Organiser may, by permission of the Divisional Management Committee, speak on any matter before the meeting, but shall not move, second or vote on any question.

(b) Each elected Organiser shall attend the meetings of the Divisional Council when required to do so by resolution of the Divisional Management Committee, but shall not move, second or vote on any question.  (Emphasis added)

33                        It can be seen that this rule speaks of "an elected or temporary Organiser" in sub-rule 2(a). This formulation may be intended to identify two classes of organiser or, alternatively, it is no more than an indication that the words "elected" and "temporary" are interchangeable.  However the reference to elected organisers is, having regard to the heading of subrule 2, a reference to organisers elected at meetings either of the Divisional Council or the Divisional Management Committee.  Both bodies are given an express power to appoint temporary organisers (rule 15(4)(r) for the Council and rule 17(p) for the Committee).  The filling of organiser positions is not otherwise dealt with by the rules save that the Council has an express power to determine the number of organisers needed (rule 15(4)(q)) as well as a reference to appointment by the Council or Committee in rule 12.  That rule provides:

12 – OFFICERS

(i) The Officers of the Construction and General Division shall consist of Divisional President, Divisional Secretary, two (2) Divisional Assistant Secretaries and Divisional Management Committee members, together with such Organisers as may be deemed necessary and as the Divisional Council or Divisional Management Committee from time to time determine.

(ii) An Organiser duly appointed as such by the Divisional Management Committee, shall be deemed to be an Officer for the purposes of Chapter 5, Part 7 of the Industrial Relations Act 1996 and for no other purpose and shall remain an Officer while holding such an appointment with the Union.  (Emphasis added)

34                        It is desirable to set out rule 17(p):

The Divisional Management Committee shall have the power to appoint temporary organisers whenever this is considered necessary. They shall not, by virtue only by their appointment as temporary organisers, be Officers of the Division nor shall they, by virtue only by their appointment as temporary organisers, exercise any function of management, but shall act as directed by the Divisional Secretary. Such appointments are subject to satisfactory performance of their allocated duties. Except where the context otherwise necessitates, the term 'organiser' where used in these Rules shall not include temporary organisers.  (Emphasis added)

35                        The last sentence of this sub-rule appears to proceed on the footing that there are temporary organisers and other organisers and the use of the word "organiser" in the rules should be taken to be a reference the latter and not the former unless the context indicates otherwise.  I apprehend that the rules do, in fact, contemplate organisers who are appointed for an indeterminate period (the elected organiser referred to in rule 21) and those appointed temporarily and probably only for a fixed short term period (the temporary organiser referred to in sub-rule 17(p) and elsewhere).  It is tolerably clear from sub-rule 17(p) and rule 12 that the rules contemplate that organisers, whether elected or temporary, are not officers of the organisation.  It is true that rule 12 declares that organisers (and because of rule 17(p) this would not include temporary organisers) are deemed to be an officer for the purposes of Chapter 5, Part 7 of the IR Act but not otherwise.  But this declaration cannot, merely of itself, alter or indeed affect the scope or operation of the IR Act.  To draw an imperfect analogy from constitutional law, the stream cannot rise higher than the source.

36                        Ultimately the applicants bear the onus of establishing their case.  To the extent that it was necessary for them to prove that either the second or third respondent was a temporary organiser, they have failed to do so even accepting, as I must, the answer to this question is peculiarly within the knowledge of the respondents.  I think that the respondents are entitled to the benefit of an assumption that they might either be an elected or temporary organiser. However for reasons which will become apparent shortly, ultimately it does not matter which type of organiser the second and third respondents were.

37                        It seems to me that the relevant legal inquiry is whether having regard to the actual duties performed by the second and third respondents together with the context in which they are formed created by the rules, it can be said that either was concerned in, or took part in, the management of the first respondent.  The duties of organisers described in rule 21(1) do not suggest that, under the rules, an organiser is concerned in, or takes part in, the management of the organisation, to use the statutory language discussed earlier.  Nor does the duty statement applicable to the jobs of the second and third respondents.  They carried out their duties under direction.  They did not have any substantial discretionary powers concerning the management of the union.  They engaged in no substantial decision-making.  They are not involved in the development of policy.  In my opinion, neither the second or third respondent were "officers" as defined by s 296 of the IR Act and were not an "authorised representative" for the purposes of s 76 of the OHS Act and Division 3 of that Act more generally.  Accordingly, neither the second nor third respondent had a right under the OHS Act to enter the Kurnell Premises when they sought to enter and entered on 18 September 2007.

INCONSISTENCY AND INVALIDITY OF THE OHS ACT

38                        The applicants claim that the OHS Act, to the extent that it would otherwise afford a right of entry to the Kurnell premises to officers of the first respondent, is inconsistent with the Occupational Health and Safety Act 1991 (Cth) (Commonwealth OHS Act) and is therefore invalid under s 109 of the Constitution.  This issue was at the forefront of the submissions of the parties.  It is, I accept, an important issue.  The applicants have impugned the second and third respondents’ right of entry under the OHS Act.  They have done so successfully.  In the result, the issue of invalidity does not arise.  Accordingly, I do not propose to address the question of invalidity. 

DECLARATION OF BREACH OF S 85 OF OHS ACT

39                        The third issue concerns the applicants' contention that the conduct of the second and third respondent was illegal.  The applicants submit that if the second and third respondents had no authority to enter under the OHS Act then their entry in September 2007 involved a contravention of s 85 of that Act.  That section provides:

A person must not impersonate, or falsely represent that the person is, an authorised representative.

40                        The second and third respondents submit that the declarations sought by the applicants that they were in breach of s 85 of the OHS Act and have committed a crime should be dismissed as "abhorrent" and an abuse of process referring to the decision in Inglis v Moore (1979) 46 FLR 3.  However the situation is not as clear as was suggested by the submission of counsel for the respondents.  Indeed there is a divergence of approach to the question of whether a declaration should be made in civil proceedings about conduct which is also criminal conduct and in respect of which charges may be brought.  The divergence is apparent in a discussion by Finkelstein J in Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487 at [51] and following.  His Honour refers to some of the more recent authorities.  Finkelstein J. said at [58]:

I would sum up the position as I see it as follows.  The English and Australian authorities that warn of the dangers of a civil court becoming involved in criminal conduct continue to apply in an appropriate company case.  The general rule in a company case is that a civil court will usually be the appropriate court to deal with a contravention of the Corporations Act.  But the court should be wary of granting relief, including the grant of a declaration or an injunction, if the case is likely to end up before a criminal court.  Ordinarily, a civil court should not intervene in those circumstances unless its failure to do so will result in irreparable injury.  That strict rule need not be applied if the case involves undisputed facts and the issue raised gives rise to a question of pure law.  Then a declaration can be a very useful remedy.  As Barwick CJ said in Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 29 at, 305; [1972-73 ALR 23 at 27 that is the kind of case "which contributes enormously to the utility of the jurisdiction."

The case at bar is a particularly good example of one in which the court should not interfere.  First of all, a criminal prosecution is on the cards.  Second, the facts are not agreed.  On the contrary, if there is to be a trial, the Crown would be put to its proof on most issues and some of the “facts” to be asserted by the Crown are likely to be in contest.  Third, there is potential for an adverse impact on the jury.  The civil case will be decided on evidence that, for the most part, will not be available to the prosecutor in a criminal trial.  Imagine what would happen if a jury discovers that a civil court has ruled that Mr Berlowitz’ conduct is illegal.  The judge presiding over the criminal trial will be obliged to tell the jury to leave that out of account.  It is axiomatic in our courts that jurors can be trusted to leave out of their consideration things that they are instructed to leave out.  Yet many regard this kind of instruction as little more than wishful thinking.  Perhaps the jurors will have explained to them that the judge who made the ruling acted on evidence not before the jury and that in any event a lower standard of proof was required in the civil court.  Whether those instructions will result in a fair criminal trial may be strongly doubted.  Last, but by no means least, is the falsification point made by Fryberg J which, if it occurs, will bring the law into disrepute.

See also the judgment of Gordon J in Australian Securities and Investments Commission v Warrenmang Ltd [2007] FCA 973.

41                        The applicants are seeking declarations that both the second and third respondents falsely represented that they were "authorised representatives" when they attempted to enter the Kurnell premises.  The evidence is summarised earlier in these reasons.  It is true that the second respondent indicated at several times during the day that access was necessary for investigations of a safety issue.  However, on the applicants' evidence no explicit statement was made by either individual respondent that they were exercising a right of entry conferred by the OHS Act.  Indeed the evidence was that the second respondent probably sought to use (by showing them at least to Ms Williamson) the written authority (a laminated card) issued under the IR Act as probably did also the third respondent.  Ms Williamson did not give evidence (nor did any other witness called by the applicants) that she understood that the two respondents were representing or asserting some right to enter under the OHS Act or any other state law.  It is a large step to infer, and I would not, that in showing that card manifesting a right of entry, either respondent was intentionally falsely representing a right of entry under the OHS Act.  Even if, on the evidence, the applicants had established conduct which fell within the four corners of the statutory provision (which they have not), I would be strongly disinclined to make a declaration to that effect.  The applicants are not a regulatory authority.  These proceedings are no more than civil proceedings asserting private rights.  In those circumstances I doubt that a declaration should be made that either respondent engaged in criminal conduct even if I was satisfied they had been. 

CONTRAVENTION OF S 758 AND S 767

42                        The applicants contend that in asserting a right of entry and entering the premises, the second and third respondent contravened s 758 of the Workplace Relations Act 1996 (Cth)("WR Act") found in Part 15, Division 5 of that Act which is headed "Entry for OHS purposes". It is not in issue that that the applicants are "constitutional corporations" and hence subject to the WR Act.  The right to enter is addressed by s 756, which provides:

(1)      An official of an organisation who has a right under an OHS law to enter premises must not exercise that right unless the official:

                       (a)        holds a permit under this Part; and

(b)         exercises the right during working hours.

43                        Further limits on the exercise of the right of entry are imposed by s 758 which also exposes a person who does not comply with the section to a civil penalty.  It provides:

(1)  A permit holder must not enter, or remain on, premises under an OHS law unless the permit holder produces his or her permit for inspection when requested to do so by the occupier of the premises.

(2)  Subsection (1) is a civil remedy provision.

(3)  A permit holder must not enter, or remain on, premises under an OHS law if:

(a)        the occupier of the premises requests the permit holder to comply with an occupational health and safety requirement that applies to the premises; and

(b)        the request is a reasonable request; and

(c)        the permit holder fails to comply with the request.

(4)  Subsection (3) is a civil remedy provision.

44                        The expression "permit holder" is defined, for the purposes of Part 15, in s 737 as meaning "a person who holds a permit".  For reasons which will be apparent shortly, it is unnecessary to consider whether either applicant was an "occupier" for the purposes of these provisions.

45                        Whether the second and third respondent contravened the section will depend on, amongst other things, whether the section operates only when the person alleged to have contravened it had "a right under an OHS law to enter premises" in the sense of a lawful right.  The applicants contend that it is sufficient, in this case, for the second and third respondent to have asserted they had a lawful right to enter as a matter of fact even if, as a matter of law, they had no such right.  The applicants rely on the judgment of Merkel J in Pine v Doyle (2005) 143 IR 98. 

46                        In issue in Pine, was whether the union official lawfully exercised a right of entry under s 285C of the WR Act and, if not (as his Honour found) could he nonetheless have contravened provisions which made it an offence to hinder and obstruct when entering the premises.  Section 285C was in Part IX and dealt specifically with the right to enter premises "for the purposes of holding discussions with any of those employees who wish to participate".  The person had to hold a permit, enter during working hours, hold the discussions during the meal-time or other breaks and an award binding on the organisation had to apply to the site.  The section also imposed conditions that had to be satisfied before entry could take place.  The right of entry to hold discussions with employees is now found in Division 6 of the WR Act in ss 760 to 766.   

47                        Justice Merkel concluded at [14] that the union official in that case was not entitled to exercise his right of entry under s 285C of the WR Act.  There was no award binding on the CFMEU that was applicable to the work being carried out on the site which was a pre-condition in the relevant section to a valid exercise of the power.  The respondent was found to have entered the site for "the sole or dominant purpose of conducting a safety inspection", a purpose not authorised by s 285C.  His Honour then went on to conclude that despite this, the respondent was exercising the power of entry as a matter of fact under s 285C, even if not exercising it as a matter of law. 

48                        In order to understand his Honour's reasoning, it is necessary to set out an edited passage from his reasons containing the relevant legislative provisions.  His Honour noted at [8] and following:

The respondent, as the holder of a permit under s 285A of the Act, was entitled to exercise the powers set out in s 285C which, relevantly, provides:

(1)       Subject to subsections (2) and (3), a person who holds a permit in force under this Division may enter premises in which:

(a)       work is being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee; and

(b)       employees who are members, or eligible to become members, of that organisation work;

for the purposes of holding discussions with any of those employees who wish to participate in those discussions.

.......

Section 285E, relevantly, provides:

(1)       A person exercising powers under section 285B or 285C must not intentionally hinder or obstruct any employer or employee.

.......

49                        The reasoning of Merkel J was, in relation to these provisions, that (at [14] and following):

The respondent submitted that the requirement in s 285E(1), that he be exercising his power of entry under s 285C, cannot be satisfied if, as a matter of law, his purported exercise of the power was unlawful.  ......  Thus, it is plain that the power of entry was exercised for a purpose for which the power was not conferred and was therefore not a lawful exercise of the power for that reason.

However, it does not follow that, for the purposes of s 285E(1), the power was not exercised at all.  In my view, s 285E(1) requires that the power of entry be exercised as a matter of fact, rather than as a matter of law.  That construction of the sub-section accords with the plain and ordinary meaning of the words. Also, the words used in s 285E(1) (‘person exercising powers under section 285B or 285C’) may be contrasted with the words used in s 285E(2) (‘a person entitled to enter premises under section 285B or 285C’).  Thus, when the legislature intended to refer to the exercise of the statutory power as a matter of law, it did so in s 285E(2) in terms of ‘entitlement’ to exercise the relevant power, rather than in terms of ‘exercising’ that power as is set out in s 285E(1).

Finally, my construction gives effect to the purpose of s 285E(1), which is to ensure that when a person enters and remains upon premises in reliance upon s 285C the person does not do so in a manner that intentionally interferes with the activities being conducted by an employee or an employer at the premises.  The construction contended for by the respondent would remove that protection when it is most needed, namely in a case of misuse or abuse of the statutory power.  As was observed by Lord Diplock in ‘The Courts as Legislators’ in The Lawyer and Justice (1978) 263 at 274:

‘if … the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit; not merely to record that it has been missed’.

Even if it is assumed that both constructions of ss 285C(1) and 285E(1) were reasonably open, the modern rule of construction is to resolve the uncertainty by giving effect to the legislative purpose: see s 15AA of the Acts Interpretations Act 1901 (Cth) and Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423, approved in Bropho v State of Western Australia (1990) 171 CLR 1 at 20.

Accordingly, I regard the question mandated by s 285E(1) to be whether the person entering the premises in question is exercising the power of entry as a matter of fact, rather than as a matter of law.

50                        In my opinion, there are material differences between the provisions Merkel J considered in Pine and those that arise in the present case.  Section 756 identifies a class of union official upon whom Division 5 operates with the effect of the Division being to impose conditions on the exercise of the right of entry and to prohibit certain conduct when exercising it.  That class of union official is constituted by those who hold a permit under Part 15 and have a right to enter under an OHS law.  The existence of the right to enter under an OHS law confers a legal status on the permit holder which engages various provisions in Division 5.  It is unlikely that the provisions which limit the way in which the right of entry might be exercised were intended to operate in relation to a union official who did not have that status because they did not have (though they may have mistakenly believed they did) a right to enter under an OHS law.  In particular, s 758 is not intended to operate on a permit holder who does not have a right of entry under an OHS law.  The section contemplates that the person on whom it operates might enter or might remain on premises "under an OHS law" but shall not enter or shall not remain if a reasonable request is made by the occupier.  If the request is not complied with then the permit holder contravenes the section.  In my opinion, there was no contravention of s 758 by either respondent.

51                        This leads to a consideration of whether there was contravention of s 767 which provides:

(1)  A permit holder exercising, or seeking to exercise, rights:

(a)        under section 747, 748 or 760; or

(b)        under an OHS law in accordance with section 756 or 757;

must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

(2)  Subsection (1) is a civil remedy provision.

Note: See Division 8 for enforcement.

(3)  …:

52                        The applicants contend that the second and third respondents acted in an improper manner by entering the premises when permission to enter was denied and remaining on the premises when requested to leave.  It can be seen that a permit holder can contravene this section by intentionally hindering or obstructing a person or acting in an improper manner in exercising or seeking to exercise rights under an OHS law in accordance with, relevantly, s 756.  But as just discussed, s 756 operates on a person who has a right under an OHS law and, in that sense, identifies a person with a particular status on whom Division 5 operates.  In my opinion it necessarily follows that the prohibition on, amongst other things, acting in an improper manner, concerns only a person with that status.

53                        I accept that this construction of ss 756, 758 and 767 results in the various prohibitions or limitations not providing the complete protection of the type discussed by Merkel J in Pine (at [16] set out above).  However in that matter the critical expression was "[a] a person exercising powers under [various provisions]".  His Honour was able to conclude that a person can be exercising those powers even if they were mistaken in believing that the power had been lawfully conferred by those other provisions.  In the present case the language and structure of the various provisions are different.  A person is given a status by virtue of having a right conferred by state law.  It is only then that various consequential provisions are engaged.

54                        In my opinion the second and third respondents could not have contravened and did not contravene ss 758 and 767 because neither had a right to enter premises under an OHS law. 

DECLARATION ABOUT FUTURE ENTRY

55                        The applicants seek, in addition to a range of orders concerning the specific circumstances arising on 18 September 2007, a declaration concerning the occupational health and safety protocol in place on the site.  In effect, they seek a declaration that any request of a person seeking to enter the site made in conformity with the Safety Plan would be a reasonable request for the purposes of s 758(3)(b).  To deal with the argument that this required an adjudication on hypothetical issues, the applicants submit that the matter can be approached on the basis that if any request in conformity with the Safety Plan might be viewed as unreasonable, then no declaration should be made.

56                        However this approach does not, in my opinion, sufficiently recognize the real limits on the exercise of judicial power.  In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581 – 582 Mason CJ, Dawson, Toohey and Gaudron JJ made the following observations concerning declarations and the circumstances in which the discretion should be exercised:

…declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions…The person seeking relief must have 'a real interest' …and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen'…or if 'the court's declaration will produce no foreseeable consequences for the parties.

57                       In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 356 [48] the High Court discussed at [45] to [47] the purpose of a judicial determination and the distinction between declaratory judgments and advisory opinions.  The crucial difference was said to be that "an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties."

58                        An example of the application of this approach is found in Electricity Supply Association of Australia v ACCC (2001) 189 ALR 109 at (142) where Finn J refused to grant declaratory relief because his Honour considered, amongst other factors, that the declaration would "presuppose, in part at least, a factual setting which has not been proved or agreed in this proceeding."  More recently in Garrett, as Trustee for the Garrett Family Trust [2009] FCA 252, Gilmour J emphasised the importance of declaratory relief being directed to the determination of legal controversies and not to answering abstract or hypothetical questions. 

59                        It is true that declaratory relief can be sought in respect of future conduct.  So much is apparent from the judgment of the High Court in Bass v Permanent Trustee Co Ltd at 356.  As French J observed in IMF (Aust) Ltd v Sons of Gwalia Ltd (2004) 211 ALR 231 at [44]:

…the issue in the present application is neither hypothetical nor contingent. It involves a real question, namely whether IMF can lawfully proceed to do what it intends to do in using information on the Sons of Gwalia Register to approach members and former members of the company with a view to joining them in possible recovery action against the company.  The capacity of courts to declare that conduct, which has not yet taken place, will or will not be in breach of the law 'contributes enormously to the utility of the jurisdiction' -  Commonwealth of Australia v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 (at 305).

though these observations were the subject of comment by the Full Court in an appeal from the judgment: see (2005) 143 FCR 274 at [16] and [67] - [68].  In another judgment of French J: BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers (2004) 140 FCR 53, his Honour concluded he had jurisdiction to make a declaration about the future exercise of a right of entry though ultimately the applicant failed to make good a case that the declaration should be made and the application was dismissed.  However the legal issue in that case concerned the interaction between a federal law and a state law and, as such, involved a matter arising under a law of the Parliament for the purposes of s 39B(1A) of the Judiciary Act 1903 (Cth) and, of necessity, did not involve a consideration of the factual circumstances in which the right of entry might be exercised. 

60                        In the present case, the declaration sought truly does concern, in my opinion, a hypothetical situation or a range of hypothetical situations.  Even accepting that a request by reference to the Safety Plan would raise for consideration a finite number of situations to which, in an abstract sense, a test of reasonableness could be applied.  That is, the application of the Safety Plan might throw up, to illustrate the point, a dozen requests which could be made of a person seeking to exercise the power of entry.  It might, for example, be a request that the person identify the incident or the location of the incident said to concern an occupational health and safety issue.  However in some cases, if not many, the factual context or circumstances in which the request was made could be relevant to whether the request was reasonable.  In the absence of facts established or agreed, to enter upon a consideration of the operation of the Safety Plan in the way the applicants invited, does not involve the exercise of judicial power and I decline to do so.

TRESPASS

61                        The last issue concerns trespass.  The applicants seek declarations that when the second and third respondents entered and remained on the Kurnell premises they unlawfully trespassed and further that the first respondent was vicariously liable for this trespass.  The relief they seek includes injunctive relief.  The respondents challenge the standing of the applicants to maintain an action in trespass by, in effect, challenging the evidence concerning the applicants' possession of the Kurnell premises.  That is, the respondents contend that the applicants did not have possession of the premises such as to enable them to maintain the action or at least the evidence does not establish the requisite possession. 

62                        Plainly enough, the question of who owns and presently possesses (in any relevant factual and legal sense) the Kurnell premises is a matter peculiarly within the knowledge of the applicants.  I think it can fairly be said that the applicants' case did not, when the trial commenced, particularly focus on either the evidentiary or legal foundation of this aspect of their claim.  This is probably understandable given, as I noted earlier, that the inconsistency and invalidity argument was at the forefront of the submissions of all the parties. 

63                        Generally, in order to maintain an action for trespass to land the applicants must be entitled to exclusive possession of the land and this must be in actual, or constructive, exclusive possession.  The majority of the High Court in Coco v The Queen (1994) 179 CLR 427 said at 435:

Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right.

64                        In establishing the requisite possession, the applicants initially relied only on the judgment of Morling J in Concrete Constructions (NSW) Pty Ltd v Australian Building Construction Employees' and Builders Labourers Federation (1988) 83 ALR 385.  In that matter the applicant was a builder erecting a number of substantial buildings on sites in or near the central business district of Sydney.  The applicant brought proceedings against a union and some of its members alleging, amongst other things, they had trespassed on the sites.  As to one site (Gateway Plaza site) there was uncontradicted evidence that the builder had been in actual possession of the site for approximately 2 years before the alleged trespass and that a term of the building agreement between the builder and the proprietor of the site was that the builder had legal possession of it and an additional term required the builder to give access to the site to identified classes of individuals.  His Honour was able to conclude that these provisions gave the builder exclusive possession of the site so as to be able to maintain an action in trespass and observed: "Common sense dictates that a builder of a large commercial building in the centre of Sydney must of necessity be given exclusive possession of the building site".

65                        His Honour then considered the position in relation to the other two sites (the Chevron Hotel site and the King Street site).  In relation to one (Chevron Hotel site), there was a contractual term in the building contract in which the proprietor provided the builder with "all necessary possession" and, the evidence established that the builder had been in actual possession of the site for some months before the alleged trespass. His Honour concluded that the builder had exclusive possession of the site.  In relation to the other site (King Street site) the building contract was not in evidence (it had been mislaid) but there was evidence that the builder had been in actual possession for over a year before the alleged trespass and no evidence that any other person had been in possession of the site.  From this his Honour was prepared to infer that the builder had exclusive possession of the site.

66                        In the present case, the facts are not as straightforward. However, before referring to the evidence, I should mention other authorities relied on by the applicants some way into the hearing.  Counsel referred to Moore v Robb (1896) 18 ALT 5 and Simpson v Knowles [1974] VR 190 to establish that the nature of the occupation of the Kurnell premises by the applicants was sufficient to maintain an action in trespass. 

67                        Moore was a judgment of the Full Court of the Supreme Court of Victoria.  Both the plaintiff and defendant were contractors engaged by the Melbourne and Metropolitan Board of Works to construct a sewer though each was to construct a section of the sewer.  The sections were to meet on Crown land.  On that land each was to construct part of a sewer on a different and discrete portion of it.  The contract between the Board and the plaintiff provided that the plaintiff was not deemed to have exclusive possession of the ground on which the sewer was to be built but only a limited possession in order to enable the plaintiff to perform the contractual work.  The defendant sunk a shaft on the discrete part of the Crown land on which the plaintiff was to construct the sewer. In the result, the plaintiff successfully sued the defendant for trespass.  The defendant appealed.

68                        One issue raised in the appeal was whether the plaintiff had been in possession of the land on which the shaft was sunk such as to enable him to maintain a claim in trespass.  It was held by Williams J of the Full Court that as against the defendant, the plaintiff was sufficiently in possession of the land to maintain an action for trespass observing that: "Very slight evidence would do so as against a wrong doer.  The plaintiff was put in possession of this land by the body with whom he contracted". The only other express reference to this issue was by Hood J be noted that the point had not been taken at the trial and that the plaintiff was entitled to rely on the fact that the objection had not been taken: "when he might have mended his hand".

69                        The judgment of the Full Court in Moore was referred to by Norris J in Simpson, a judgment of the Supreme Court of Victoria.  In Simpson, Norris J was dealing with what, in substance, was an appeal from a magistrate who had concluded that three individuals had criminally trespassed on land on which a pipeline was being constructed.  The land in question was part of the Mordialloc foreshore (in turn, part of a public park) though had been fenced in by the contractor constructing the pipeline in a way that his Honour characterised as "asserting a right to occupy it to the exclusion of others".  Norris J appeared to accept that, but for one matter referred to shortly, the contractor had sufficient possession of the land to found a claim in trespass: "irrespective of whether [the contractor's] possession was de facto or de jure". But his Honour found that the defendants, as members of the public, had a right of access to the Mordialloc foreshore except to the extent that that right had been lawfully restricted.  It had not been, and accordingly there was no trespass. 

70                        I return to the facts of this case.  The contractual arrangements involving the applicants are summarised earlier in these reasons (at [3]).  The DC Contract concerns, as a broad generalisation, construction work on the "Site".  The DC Contract defines the word "Site" as meaning lot 2 in DP1077972 and lot 1 in DP1088703, "any land which the Contractor enters in or on, or occupies, for the purposes of the work under this document" and "any other place where the worker under this document is carried out".  I am prepared to infer that the Kurnell premises are the "Site" as defined though one would have thought it would not have been particularly difficult for the applicants to have proved this by direct evidence.  In order to provide evidence establishing possession additional to that initially furnished at the trial, the applicants tendered title searches of these lots which show that the registered proprietor of both lots 1 and 2 is Sydney Water Corporation.

71                        Neither the DC Contract nor the Blue Water Joint Venture Agreement establish, in my opinion, that exclusive possession has been granted to either of the applicants.  Indeed these documents suggest that exclusive possession has not been granted to the applicants.  The Joint Venture Agreement, to which the first applicant is a party, provides for the expeditious execution of "the D&C Works in accordance with the provisions of the Project Documents" [1.4].  The only reference to property is in cl2.5 which refers to beneficial ownership of the DC Joint Venture Property.  The definition of "D&C Venture Property" in Schedule 1 of this agreement states that this "does not include any property of whatsoever kind or nature, whether real or personal acquired or held by or on behalf of" either John Holland, in conducting the tunnelling and marine works, or Veolia, in undertaking the plant design. 

72                        As noted earlier, the parties to the DC Contract are Sydney Desalination Plant Pty Ltd (the Company) on the one hand and Veolia and the first applicant on the other which are, together, the "Contractor".  Clause 8 of the DC Contract concerns access to the "Site" and explains the relationship between the Contractor (the first applicant and Veolia) and the Company, and particularly the nature of the Contractor's occupation of the site:

8.1 Subject to clauses 8.2, 8.3, 8.14 and the Contractor's exercise of any certificates of authority issued by SWC under section 39 of the the Sydney Water Act in accordance with clause 10.1, the Company must make sufficient parts of the Site available to the Contractor sufficient for the Contractor to perform its obligations under this document.

8.2 The Contractor will not be given exclusive possession of theSite but may be required to share the Site with others.  The Contractor acknowledges and accepts that:

8.2.1 the Company may engage Separate Contractors to perform works and services on the Site prior to Practical Completion;

8.2.2 the Company's Representative may direct the Contractor to share access to and possession of the Site with Separate Contractors;

...

8.12 The Contractor must ensure that the Company, SWC, the Company's Representative and the Independent Verifier and any person authorised by any of them has safe access to and use of any area within the Site at all times and for any purpose arising out of or in connection with the Project or the Project Documents in accordance with reasonable site safety and induction protocols required by the Contractor.

73                        It is clear from the above that exclusive possession has not been granted to the first applicant as a joint venturer constituting the Contractor.  Plainly neither of the applicants own the property.  What the relationship is between the registered proprietor, Sydney Water Corporation, and the Company, insofar as the Kurnell premises are concerned, is not revealed by the evidence nor is the nature of the interest of the Company in the land.  There is no evidence that a lease has been granted to the applicants.  Possession is clearly to be shared with the Company and I think the better view (as to the legal character of the interest) is probably that the first applicant had a licence to occupy the "Site" to undertake specific works to fulfill the requirements of the DC Agreement. 

74                        No evidence was given that the first applicant (either alone or together with Veolia) had, in fact, exclusive physical possession of the "Site".  To the extent that there was non-documentary evidence about controlling access to the "Site" it was evidence of Mr Sasse to the effect that the second applicant controlled access.  Clause 7 of the DC Contract required the Contractor to control access to the Site or portions of the Site (whether one or the other depended on the completion of certain works).  Why the second applicant, rather than the first applicant (either alone or the together with Viola), controlled access is not explained by the evidence.  Probably the evidence would sustain an inference that the applicants (which one is not clear) asserted a right to control access, indeed potentially to deny access, to anyone seeking to enter the Site but that is not, in my opinion, a sufficiently firm evidentiary foundation to conclude that, as a matter of fact, either one or both the applicants have exclusive physical possession either themselves or with Viola.

75                        Even accepting that some of the authorities discussed earlier suggest that the fact of exclusive possession by a person provides a sufficient foundation for that person to maintain an action in trespass, occupation of that character is not established in relation to either applicant in the present proceedings.  Accordingly, their claim in trespass must fail.

CONCLUSION

76                        The applicants have succeeded in establishing that the second and third respondents were not authorised under the OHS Act to enter the Kurnell premises.  I will make a declaration to that effect.  In all other respects the applicants' claims fail and should be dismissed.  No issue of costs arises.

Associate:

Dated:         19 June 2009