Ramsay v Menso - [2017] FCCA 1416

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMSAY & ANOR v MENSO & ANOR

[2017] FCCA 1416

Catchwords:
INDUSTRIAL LAW – Right of entry – Interplay between WHS Act (Qld) 2011 and FW Act – Compliance with Part 3-4 of FW Act – Provisions of Division 2 of Part 7 of WHS Act – validity of Notice of Entry – Application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.494, 495, 496, 497, 498, 499, 501, 502

Work Health Safety Act 2011 (Qld), ss.116, 117, 118, 119, 120

Work Health Safety Regulation 2011 (Qld), regs.27, 28

Federal Circuit Court Rules 2001, r.9.04

Cases cited:

Ramsay & Anor v Sunbuild (2014) 22 FCR 315
CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227

First Applicant:

ANDREW RAMSAY

Second Applicant:

ANTHONY STOTT

First Respondent:

SUSAN MENSO

Second Respondent:

Z GROUP PTY LTD

File Number:

BRG 327 of 2016

Judgment of:

Judge Vasta

Hearing date:

13,14 and 15 June 2017

Date of Last Submission:

15 June 2017

Delivered at:

Brisbane

Delivered on:

23 June 2017

REPRESENTATION

Counsel for the Applicant:

Mr Massy

Solicitors for the Applicant:

HALL PAYNE LAWYERS

The First Respondent appearing on her own behalf

There being no appearance by or on behalf of the Second Respondent.

ORDERS

The Application filed on 13 April 2016 be dismissed against the First and Second Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 327 of 2016

ANDREW WILLIAM JOHN RAMSAY

First Applicant

ANTHONY LUCAS STOTT

Second Applicant

And

SUSAN MENSO

First Respondent

Z GROUP PTY LTD

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 11 December 2015, the Applicants, Andrew William John Ramsay and Anthony Lucas Stott went to 68 Cordelia Street, South Brisbane. This was a construction site and the builder was the Z Group 1 Pty Ltd which was controlled by the First Respondent, Susan Menso. The First Respondent was also the person who controlled the Z Group Pty Ltd which is the Second Respondent.
The Applicants were officials of the Construction, Forestry, Mining and Energy Union (“CFMEU”) and were both holders of entry permits issued by the Fair Work Commission as well as Work Health and Safety (“WHS”) entry permit holders pursuant to State legislation. They sought entry to the construction site because they wished to enquire into a suspected contravention of the Work Health Safety Act (QLD) 2011 (“WHS Act”)
The First Respondent denied the Applicants entry to the premises. A WHS inspector, Mr Ian Williamson, was called to the site. He looked at the documentation and advised the First Respondent that she should allow the Applicants onto the site. She refused. The police were then called. The police advised the First Respondent that she should let the Applicant’s onto the site. She again refused. After further talks with the police, the First Respondent acquiesced and allowed the Applicants entry to the site.
The Applicants claim that the actions of the First Respondent (and the Second Respondent) amount to breaches of s.501 of the Fair Work Act 2009 (Cth)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ramsay v Menso

Details

AGLC: Ramsay v Menso [2017] FCCA 1416
Case: [2017] FCCA 1416
Decision Date: 23 June 2017

CaseChat Overview and Summary

Ramsay v Menso concerned a dispute between a landlord, Ramsay, and a tenant, Menso, regarding the termination of a commercial lease. The primary issue before the court was whether the landlord had validly exercised a break clause in the lease agreement. The tenant argued that the landlord's notice of termination was defective and therefore ineffective.

The court was required to determine whether the landlord's notice to terminate the lease complied with the specific requirements stipulated in the break clause. This involved an examination of the wording of the clause itself and the circumstances surrounding the service of the notice. The central legal question was whether the landlord had satisfied all conditions precedent to exercising the right to terminate the lease.

In reaching its decision, the court analysed the contractual terms of the lease, particularly the break clause, and applied principles of contract law concerning the interpretation of such clauses and the requirements for valid notice. The court found that the landlord had failed to strictly comply with the conditions precedent for exercising the break clause, rendering the notice of termination invalid. Consequently, the lease remained on foot.

Orders