Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch

[2016] FWC 1984

[2016] FWC 1984

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2015/1896)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 30 MARCH 2016

CFMEU right of entry permit application - relevant of prior conduct - contravention of BCII Act - pleaded contraventions – $20,000 deterrent penalty - restricting access to occupiers access to premises - no satisfaction applicant is a changed man – passage of time since contraventions - no evidence of remorse - applicant not a fit and proper person to hold a right of entry permit.

[1] This decision concerns an application made by the Construction, Forestry, Mining and Energy Union - Construction and General Division, Queensland Northern Territory Divisional Branch (“the CFMEU”) under s.512 of the Fair Work Act 2009 (“the Act”) (“the application”) for right of entry permit to be issued to Mr Michael Victor Davis, an employee of, and Organiser for the CFMEU.

[2] Section 512 of the Act provides as follows:

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

[3] The CFMEU is entitled by s.512 of the Act to make the application.

[4] When the Commission comes to considering whether it is satisfied that Mr Davis is a fit and proper person to hold an entry permit (which is the particular focus of the investigation the Commission must undertake as posed by s.512 of the Act), the Commission must take into account the permit qualification matters set out at s.513 of the Act.

[5] Section 513 of the Act provides as follows:

513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a Court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914 (Cth), Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Declarations by Mr Davis and the CFMEU Committee of Management

[6] For the purposes of s.513 of the Act, the CFMEU and Mr Davis declared in the following terms.

whether the official has received appropriate training about the rights and responsibilities of a permit holder

[7] Mr Davis has received training about the rights and responsibilities of a permit holder, having completed an applicable training module with an authorised individual of the CFMEU on 8 December 2015, and has obtained the CFMEU Certificate of Achievement “Federal Right of Entry under the Fair Work Act 2009”. The relevant document in support of the declaration was provided by the applicants.

whether the official has ever been convicted of an offence against an industrial law

[8] It was declared that Mr Davis has never been convicted of any offence against an industrial law.

whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving: (i) entry onto premises; or (ii) fraud or dishonesty; or (iii) intentional use of violence against another person or intentional damage or destruction of property

[9] In respect of these matters, it was declared that Mr Davis has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country of the requisite kind.

whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official

[10] In respect of these matters, it was declared that Mr Davis was named in a proceeding against the CFMEU in which interim orders were made, but which were later discontinued, in Grocon Constructors (Qld) Pty Ltd v CFMEU [2012] FMCA 245; and was penalised in Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614 for contraventions of the Building and Construction Industry Improvement Act 2005 (Cth) (the “BCIIA”).

whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions

[11] It was declared that Mr Davis had not had revoked, suspended or been made subject to conditions, any permit issued under Part Three – Four of the Act or a similar law of the Commonwealth.

whether a Court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has: (i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or (ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law

[12] It was declared that Mr Davis had not had cancelled, suspended or had imposed conditions, on a right of entry for industrial or occupational health and safety purposes by any Court, or other person or body, under a State or Territory industrial law or an OHS law.

[13] Further, it was declared that Mr Davis had not been disqualified, by any Court, or person or body under a State or Territory industrial law or and OHS law, from exercising, or applying for, a right of entry for industrial or Occupational Health & Safety purposes under that law.

any other matters that the FWC considers relevant.

[14] No other matters or materials were brought to my attention for purposes the application under s.513(1)(g) of the Act.

[15] That said, on 25 February 2016 at 4:00 PM I caused to have sent to the CFMEU the following email correspondence:

RE2015/1896 - Application by CFMEU for an Entry Permit for Davis, Michael Victor

[…]

“The Senior Deputy President has before him the application by the CFMEU for a right of entry permit under s.512 of the Fair Work Act 2009 (“the Act”) for Mr Michael Victor Davis and asks as follows:

“Section 513 of the Act provides as follows:

513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a Court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.

I note in the application that Mr Davis was penalised in Director, Fair Work Building Inspectorate v Cradden [2015] FCA 614 (“Cradden”) for contraventions of the Building and Construction Industry Improvement Act 2005 (Cth). The penalties imposed upon Mr Davis were in relation to conduct which occurred in 2012 and amounted to $20,000.00.

In the context of s.513(1)(g) of the Act, is it intended that Mr Davis will provide an examinable statement or statutory declaration that assists the Commission in reaching a view that despite the findings of the Court in Cradden it can be satisfied that he is a reformed character and is a fit and proper person to hold a right of entry permit? Such a statement may go to particular reasons why the prior conduct set out and as penalised by the Court in Cradden should not or no longer reflect upon Mr Davis’ fitness to exercise the relevant statutory powers.

It would be appreciated if the union could provide a response to the above as soon as possible and by COB on 10 March 2016.”

[16] On 18 March 2016 I received submission filed by Hall Payne Lawyers (settled by Counsel) on behalf of the applicant. The submissions provided, in part, as follows:

“18. As declared in the documents filed, Mr Davis was ordered to pay penalties by the
Federal Court in Director, Fair Work Building Industry Inspectorate v Cradden [2015] CA 614 (12 June 2015) (“Cradden”). The penalties imposed were approximately twenty per cent of the maximum. Mr Davis’ conduct on reliance of which the Court imposed the penalties was as follows:

i) 2.4 At around 6.30am, the First Respondent, Paul Cradden (Mr Cradden), Second Respondent, Joseph Myles (Mr Myles), O'Brien and the Fourth Respondent, Mike Davis (Mr Davis) were present at the Hope Street entrance to the Common Ground Project site. There were also approximately twenty people present outside the main gate of the Common Ground Project, including a number of Grocon Employees;

ii) 2.16 On 14 March 2012, Messrs Cradden, Myles, O'Brien, Davis and Cummins were present outside the Common Ground Project site and 2.22 The group of approximately six men, including Messrs Cradden, O’Brien, Davis and Cummins yelled in the direction of Mr Ennis words to the effect of “scabby”;

iii) 2.25 The group of approximately six men who had been under the awning of the CFMEU van, including Messrs Cradden, O'Brien, Davis and Cummins, yelled in the direction of Messrs Ennis and Moore on multiple occasions over a period of approximately 15 minutes, words to the effect of “scab”; and

2.29 On 15 March 2012, Messrs Cradden, O'Brien, Davis and Cummins were
present outside the Common Ground Project and site and Mr Davis said:

“He used to run with us? Fucking hell.”

Mr O'Brien said:

“Lowest sort of fucking dog ever.”

Mr Cradden said:

“Think you would know better than to go against the unions.”

Mr Davis said:

“You've seen fucking what we've done even as a delegate mate, what we've done for our Brothers and Sisters.” and

iv) 2.37 On 16 March 2012, Messrs Cradden, Myles, Davis and Cummins were
present outside the Common Ground Project site.

19. None of the conduct related to exercising a right of entry. None of the conduct occurred whilst Mr Davis was an invitee or licensee on premises.

20. The conduct occurred four years ago. Mr Davis’ training referred to above post-dated the contraventions.

21. The penalties imposed were formulated having regard to relevant sentencing principles, including that of specific deterrence.

22. The Commission should have regard to the effluxion of time and the specific deterrent effect of the penalties.

23. The Commission might also have regard to the objective nature of the conduct, some of which, in itself, was relatively benign, e.g. that found and recorded in 18 i) above.

24. The conduct is not sufficient so as to render Mr Davis other than fit and proper to hold a permit.”

[17] Upon receiving the correspondence I sought further information in the following terms:

“Can you clarify if these submissions are in response to my email enquiry of 25 February 2016 […]?

Para 22 of the submissions makes reference to the Commission taking into consideration, amongst other things, the "specific deterrent effect" of the penalty as imposed upon Mr Davis by the Court. Is it to be disclosed if Mr Davis personally discharged the penalty as imposed upon him by the Court from his private resources, so that deterrent effect of the penalty can be properly evaluated?

Bar the request to be heard in relation to possible permit conditions, does the CFMEU seek to have this matter now determined from the materials at hand?”

[18] Hall Payne Lawyers responded as follows:

Dear Associate

We refer to your email dated 21 March 2016. Our client’s response, adopting your numbering, is as follows.

1. We confirm that our client’s submissions of 18 March 2016 were made in response to the email enquiry of 25 February 2016.

2. As to the second question, the Court’s orders should be understood to have addressed the matter of specific deterrence. The Commission should treat the imposition of the penalties as including a specific deterrent effect. To the extent the Commission is to consider future conduct by Mr Davis, it is to consider what the Court has determined to be an appropriate deterrent for future conduct. It is this to which paragraphs 21 and 22 of the Applicant’s submissions are directed. The Applicant does not intend to lead evidence concerning the payment of the penalties, although we are instructed that the penalties have been paid.

3. Yes.

Consideration

[19] The circumstances behind the Court’s judgment in Cradden concerned a Queensland government housing project in South Brisbane known as the Common Ground Project. The Common Ground Project was a construction project (for which Grocon Constructors Queensland Pty Ltd (“Grocon”) was the managing contractor) intended for the purpose of providing housing for the long-term homeless. It appears in February and March 2012, Grocon and the CFMEU were engaged in bargaining for a proposed enterprise agreement. Protected industrial action appears to have taken place at the site. However, between 13 – 21 March 2012, other activities (which the Court summarised as parking vehicles in the work zones to obstruct access, placing banners and gathering around barbecues under an awning attached to a van such that there was a “practical impediment” to enter the site, and “upsetting, intimidating, abusing, and threatening sundry employees and subcontractors who sought access to the site”) were engaged in in relation to the project.

[20] The contraventions relevant to Mr Davis arose in respect of s.44(1) of the Building and Construction Industry Improvement Act 2005 (“the BCII Act”), which relates to certain coercive conduct, amongst other things, to make an enterprise agreement of the then requisite type. Section 44(1) of the BCII Act provides as follows:

Coercion of persons to make, vary, terminate etc. certified agreements etc. (1) A person must not:

(a) take or threaten to take any action; or

(b) refrain or threaten to refrain from taking any action; with intent to coerce another person, or with intent to apply undue pressure to another person, to agree, or not to agree:

(c) to make, vary or terminate, or extend the nominal expiry date of, a building agreement under Division 2 or 3 of Part VIB of the Workplace Relations Act; or

(d) to approve any of the things mentioned in paragraph (c).

[21] In its judgment in Cradden, the Court held that:

“between 13 March 2012 and 21 March 2012, the CFMEU also engaged in other activities in relation to the Grocon Common Ground Project site. Those activities did not constitute protected industrial action. The individual respondents, who were at the time either officers of the CFMEU or, in one case, a CFMEU delegate, were the persons who, on behalf of the CFMEU, engaged in that non-protected industrial action.”

[22] In its judgment, and notwithstanding the correspondence immediately above from the CFMEU’s legal representatives, the Court went on to hold that on the basis of pleaded contraventions (the matter not having gone to a contested hearing) that:

“on 13 March 2012 the fourth respondent [Mr Davis] contravened section 44 of the Building and Construction Industry Improvement Act 2005 (Cth) in that the Mr Davis took action being the parking of vehicles along the front of the Grocon Common Ground Project Site to obstruct access, with the intent to coerce Grocon to agree to make a building enterprise agreement.”

[23] The Court penalised Mr Davis $5000 for the pleaded contravention.

[24] The Court also held that:

“on 14 March 2012 [Mr Davis] contravened section 44 of the Building and Construction Industry Improvement Act 2005 in that Mr Davis took action being the parking of vehicles along the front of the Common Ground Project Site to obstruct access and besetting, intimidating, abusing and threatening employees of Grocon, with the intent to coerce Grocon to agree to make a building enterprise agreement.”

[25] The Court further held that:

“On 15 March 2012 [Mr Davis] contravened section 44 of the Building and Construction Industry Improvement Act 2005 (Cth) in that [Mr Davis] took action being the parking of vehicles along the front of the Common Ground Project Site to obstruct access and besetting, intimidating, abusing and threatening employees of Grocon, with the intent to coerce Grocon to agree to make a building enterprise agreement.”

[26] Mr Davis was penalised $5000 for the pleaded contravention.

[27] The Court also held that on 17 March 2012 Mr Davis:

“contravened section 44 of the Building and Construction Industry Improvement Act 2005 (Cth) in that [Mr Davis] took action being the parking of vehicles along the front of the Common Ground Project Site to obstruct access and gathering under the awning of a CFMEU van to impede access, with the intent to apply undue pressure to Grocon to agree to make a building enterprise agreement.”

[28] Mr Davis was penalised $5000 for the pleaded contravention.

[29] The Court further commented that:

“The individual respondents in this case are exemplars of the union organisers and delegates displaying a disregard or contempt for the rule of law […].”

[30] As to the pleaded contraventions, the Court observed as follows in relation to the extent such admissions were to be given weight in mitigation:

“There are other mitigating factors which also need to be acknowledged. In the end, the case did not proceed to a contested hearing. By the amended pleadings, the respondents came, late but, nonetheless, they came, to acknowledge particular pleaded contraventions. The expense of a trial was thereby saved to the public purse. The burden of preparing for that trial was, though, fully visited on the public purse, given the lateness of the notification of the change in the respondents’ disposition to the Director. So, while some account must be taken of that change of heart, it is not the same as an acknowledgment of a contravention at the earliest possible opportunity.”

[31] The judgment also commented (other than as set out above in the submissions put to me by the CFMEU’s legal representatives) that:

“On 13 March 2012 at around 6.30am, the First Respondent, Paul Cradden (Mr Cradden), Second Respondent, Joseph Myles (Mr Myles), O'Brien and the Fourth Respondent, Mike Davis (Mr Davis) were present at the Hope Street entrance to the Common Ground Project site. There were also approximately twenty people present outside the main gate of the Common Ground Project, including a number of Grocon Employees.

[…]

At or about 6.30am Mitchell Bourke, Contracts Administrator for the Common Ground Project (Mr Bourke), John Fellicissimo, Structures Foreman for the Common Ground Project (Mr Fellicissimo), Yun Ok, Safety Advisor for the Common Ground Project (Mr Ok), and Mr Sutalo, all employed by Grocon, approached the main gate on Hope Street to open the gates.

The gathered persons outside the main gate yelled words such as “scab”, and “scum” at Messrs Bourke, Sutalo, Fellicissimo and Ok. […].”

[32] Further, the Court also recorded that on 14 March 2012, the following day, a “group of six men who had been under the awning of the CFMEU van, Messrs Cradden, O’Brien, Davis and Cummins, yelled in the direction of [two Grocon employees performing duties] over a period of 15 approximately minutes, words to the effect of “scab”.”

[33] The Court also observed generally as follows:

“[…] those seeking to enter, be they Grocon employees or sub-contractors were able, albeit at the price of foul abuse and obstructive behaviours, to enter the Common Ground Project site. The scene on the ground at the site each day does not leave much to the imagination in terms of the intimidation encountered by those employees and subcontractors. It is not to be trivialised. Especially, it is not to be trivialised in light of this being a paradigm example of behaviours described in the Cole Royal Commission report and also in the many earlier decided cases involving the CFMEU to which I was helpfully referred on behalf of the Director in the course of submissions.”

[34] As was mentioned above in the submissions in support of the granting of the application, Mr Davis’ conduct was not conduct carried out whilst exercising his right of entry permit, or otherwise as an invitee on the construction site.

[35] Mr Davis’ conduct is conduct that was penalised for the purposes of the contravention of s.44(1) of the BCII Act. This is a matter that s.513(c) of the Act requires the Commission to take into account the determining whether or not the applicant is a fit and proper person to be granted a right of entry permit.

[36] The conduct as pleaded exhibits a willingness to act over some time, between 13 and 17 March 2012 in a manner that has no regard to the lawful responsibilities in relation to an activity central to the industrial system - enterprise bargaining. Mr Davis’ conduct was not a spontaneous or isolated gesture carried out in the heat of the moment; it was conduct carried out over some days as part of a deliberate stratagem, as the Court found (at paragraph 20):

“[T]he CFMEU’s choice of the Hope Street access point was no coincidence. It was one indicator, along with the use of union vehicles and the presence of union officials, related banners and the like, of the deliberate stratagem […].”

[37] Mr Davis chose to engage cooperatively in a group or collective endeavour to coerce an employer to make an enterprise agreement, and by so doing, contravened an Act of the Commonwealth and for which a pecuniary penalty was imposed.

[38] Mr Davis has not presented to me personally or provided any supportive statement in defence of his conduct, or otherwise as the case may be, despite having the opportunity to do so.

[39] There is nothing to which I have been taken that illuminates Mr Davis’ remorse in relation to his prior conduct. The judgment of the Court itself makes no mention of any expression of remorse on the part of the various respondents, only that the respondents were late in acknowledging their contraventions in their amended pleadings, and the cost of preparation for the trial was fully visited on the public purse as a consequence.

[40] Mr Davis gives no evidence of his remorse or contrition now, either, despite having an opportunity to provide such evidence.

[41] There is, as a consequence, no evidence before me that Mr Davis is a different person to the one who conducted himself as he did in March 2012, and that in the future, he would act with close and unstinting regard to the industrial law if granted a right of entry permit, and express the required measure of civility when doing so.

[42] Mr Davis has set about seeking, by his own pleadings, to obstruct entry to the employer’s premises for the reasons given. In so doing, he showed no obvious regard, or respect, for the rights of occupiers of construction sites or those workers who seek to perform their work and exercise their rights in accordance with the law. Mr Davis has contributed to the establishment of an environment which the Court found to be “upsetting, intimidating, abusing, and threatening”

[43] If Mr Davis is a changed man, and has now committed to conduct himself in accordance with the legal and statutory arrangements affecting the industrial sphere in which he seeks to exercise important right of entry powers, then that must be demonstrated at a higher level than by reference to the completion of the a right of permit training course, or the passage of time since the contravention. That is, it is necessary in the particular context of prior contraventions that I have before me evidence of sufficient scale and quality of Mr Davis’ changed attitudes and conduct.

[44] The Court of Appeal of the Supreme Court of New South Wales considered in its judgment in The Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428 the extent to which it can be assumed a person (albeit it in that case having prior criminal convictions) can be held to be of good character (in relation to admission to the NSW Bar in that instance) given the passage of time since the original convictions. The Court held as follows:

“[40]That conduct occurred over seven years ago. When addressing the question of present fitness, the approach which should be taken to conduct which occurred some time ago is that stated by Walsh JA in Ex Parte Tziniolis; Re the Medical Practitioner's Act (1966) 67 SR (NSW) 448 at 460-461, in a passage approved in part by this Court in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637:

"Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he has known to have been deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant - see Ex Parte Clyne [1962] SR (NSW) 436 at 441], and cases there cited."

[41] In the absence of any evidence from the respondent to show that he has addressed the defects of character revealed by his criminal conduct, that conduct continues to speak as to his present unfitness to practise.”

[45] The appeal Court found that the relevant person, having served a four and half year non- parole prison sentence, was not to be a fit and proper person in the particular context in which his duties and responsibilities were to be exercised, as “the defects in his character […] continue to speak to his present fitness […].”

[46] Even if not at the most egregious end of the spectrum, Mr Davis’ conduct was in disregard to industrial laws, and he participated in conduct along with other members of the CFMEU about which the Court made adverse observations. I have set these out above. Mr Davis’ conduct was not exhibited in the context of the exercise of powers under a right of entry or in relation to some alternative basis for entering an employer’s premises. But the conduct nonetheless was in relation to industrial laws that are intended to regulate orderly relations and interactions between employers and employees. Mr Davis’ conduct demonstrated a lack of regard to the rights of an employer and employees and sub-contractors to go about their business, as it may be respectively, without hindrance or provocation. There is no evidence before me that merely because time has passed and a right of entry training module has been completed that Mr Davis is a changed man in regard to his prior actions and attitudes.

[47] As I have noted above, there is no evidence before me, I add, of Mr Davis now being remorseful for his prior conduct, or having expressed contrition in some form or manner.

[48] Thus, in all, there is no basis in evidence that the community can have confidence that the conduct and attitudes which Mr Davis exhibited, and as recorded by the Court, will not be further exhibited in the context of other related industrial laws, pertaining this time to a right of entry permit.

Conclusion

[49] Taking into account all the matters under s.513 of the Act, and noting that there are matters in that regard which support the granting of an application as there are matters which those which go against such an outcome - Mr Davis on balance has not satisfied me (for purposes of the conditioned discretionary finding at s.512 of the Act) that he is a fit and proper person to hold a right of entry permit under the Act. He is not to be granted a right of entry permit as a consequence. The application for a right of entry permit is dismissed.

SENIOR DEPUTY PRESIDENT

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