John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch)

In the case of John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch), the applicants, involved in the construction of the Sydney Desalination Plant, sought a declaration that their exclusive possession of the construction site provided a sufficient foundation to maintain an action in trespass against the respondents. The respondents, union organisers, had entered the site, and the applicants argued this was unlawful. The respondents argued they were entitled to enter under industrial and occupational health and safety laws. The court needed to decide whether the respondents had the legal right to enter the site and if their entry was a breach of the Occupational Health and Safety Act 2000 (NSW).

The court found that the applicants did not have exclusive possession of the site sufficient to maintain an action in trespass. The applicants' claim in trespass was dismissed. The court also found that the respondents were not authorised under the Occupational Health and Safety Act 2000 (NSW) to enter the site. However, the applicants' claim that the OHS Act was inconsistent with the Commonwealth OHS Act and therefore invalid under the Constitution was not addressed as the applicants successfully impugned the respondents' right of entry. The court held that the conduct of the second and third respondents involved a contravention of section 85 of the OHS Act, but declined to make a declaration regarding this conduct due to the potential for adverse impact on any subsequent criminal proceedings.

The court made a declaration that the second and third respondents did not have the right to enter the site on 18 September 2007 under the Occupational Health and Safety Act 2000 (NSW). The application was otherwise dismissed, and no issue of costs arose.