Ramsay v Menso

Case [2018] FCAFC 55

FEDERAL COURT OF AUSTRALIA

Ramsay v Menso [2018] FCAFC 55

Appeal from: Ramsay & Anor v Menso & Anor [2017] FCCA 1416
File number: QUD 345 of 2017
Judges: DOWSETT, COLLIER AND O'CALLAGHAN JJ
Date of judgment: 10 April 2018
Catchwords: INDUSTRIAL LAW – alleged breaches of ss 501 and 502 of the Fair Work Act 2009 (Cth) – where the appellants suspected contraventions of the Workplace Health and Safety Act 2011 (Qld) and sought to enter the site – where the respondents refused entry – consideration of the requirements for a notice of entry under ss 117 and 119 of the Workplace Health and Safety Act 2011 (Qld) – whether a notice of entry must be completed prior to entry – whether failure to include the permit holders’ middle names invalidates a notice of entry and vitiates a right of entry
Legislation:

Crimes Act 1914 (Cth)

Evidence Act 1995 (Cth)

Fair Work Act 2009 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Federal Court Rules 2011 (Cth)

Police Powers and Responsibilities Act 2000 (Qld)

Work Health and Safety Act 2011 (Qld)

Work Health and Safety (National Uniform Legislation) Act 2011 (NT)

Work Health and Safety Regulations 2011 (Qld)
Cases cited:

Australian Building and Construction Commissioner v Powell [2017] FCAFC 89

Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177

Dare v Pulham (1982) 148 CLR 658

Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666

New South Wales v Corbett [2007] HCA 32

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Ramsay v Sunbuild Pty Ltd [2014] FCA 54

Date of hearing: 14 November 2017
Date of last submissions: 23 November 2017 (Appellants)
The Respondents did not provide submissions
Registry: Queensland
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 74
Counsel for the Appellants: Mr W Friend QC with Mr C Massy
Solicitor for the Appellants: Hall Payne Lawyers
Counsel for the Respondents: The First Respondent appeared in person and on behalf of the Second Respondent

ORDERS

QUD 345 of 2017
BETWEEN:

ANDREW RAMSAY

First Appellant

ANTHONY STOTT

Second Appellant
AND:

SUSAN MENSO

First Respondent

Z GROUP PTY LTD

Second Respondent

JUDGES:

DOWSETT, COLLIER AND O'CALLAGHAN JJ

DATE OF ORDER:

10 APRIL 2018

PURSUANT TO S 545 OF THE FAIR WORK ACT 2009 (CTH) (“FW Act”), THE COURT DECLARES THAT:

1.the first respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to 68 Cordelia Street, South Brisbane (the “site”) on 11 December 2015;

2.the first respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site in the company of Mr Ian Williamson on 11 December 2015;

3.the first respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site after the arrival of Sergeant Conrad Greenwood from the…

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AGLC
Ramsay v Menso [2018] FCAFC 55
Case
[2018] FCAFC 55
Decision Date

CaseChat Overview and Summary

In the case of Ramsay v Menso, the appellants sought declarations that the first respondent had breached sections 501 and 502 of the Fair Work Act 2009 by refusing their entry onto a site where they suspected contraventions of the Workplace Health and Safety Act 2011. The dispute involved three instances of refusal of entry, culminating in the appellants filing an application for relief on 12 April 2016. The primary judge found that while the appellants had a valid notice of entry in their possession, the notice itself was invalid due to incorrect information regarding their names. Specifically, the notice omitted their middle names and incorrectly listed one of the appellants’ names as “Tony” instead of “Anthony.” The primary judge concluded that the invalid notice rendered the appellants’ entry attempt unlawful, despite their contention that the power under section 117 of the WHS Act did not require a notice prior to entry.

The court was required to decide whether the failure to include the permit holders' middle names in the notice of entry invalidated it and, consequently, the right of entry. The court also had to determine whether the notice of entry must be completed before entry is attempted, and whether the non-compliance with the requirements of section 119 of the WHS Act rendered the entry attempt invalid. Additionally, the court needed to assess whether the refusal to provide a valid notice of entry, despite meeting other requirements under section 117 of the WHS Act, constituted non-compliance with Division 2 of Part 7 of the WHS Act.

The court reasoned that the right to enter premises under the WHS Act is subject to strict compliance with sections 118, 119, and 120 of the WHS Act. A valid notice of entry is mandatory, and any deviation from the prescribed format, such as omitting middle names, invalidates the notice. The court emphasised that when individual rights are interfered with, strict adherence to the legal requirements is imperative. This strict interpretation ensures that the power to enter premises is not exercised arbitrarily and maintains the balance of rights under the WHS Act. Consequently, the primary judge's finding that the appellants had not validly exercised the right of entry due to the invalid notice was upheld. The appeal was allowed, and the matter was remitted to the Federal Circuit Court to determine questions of penalty and other orders.

Orders

Orders of the court

1. The appeal be allowed.

2. The matter be remitted to the Federal Circuit Court for it to determine questions of penalty and other orders.

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

73.

1. The appeal be allowed.

2. The matter be remitted to the Federal Circuit Court for it to determine questions of penalty and other orders.

I certify that the preceding seventy‑three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the

Honourable Justices Dowsett and Collier.

Associate:

Dated: 10 April 2018

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 12 April 2016, the appellants filed an application seeking declarations that the first respondent had breached ss 501 or 502 of the FW Act by her actions on 11 December 2011. The appellants sought declarations in respect of all three refusals of entry, that is:·when the appellants first arrived;·when the appellants were refused entry after Mr Williamson had attended the site; and·when entry was refused in the presence of Sergeant Greenwood.Decision of the primary Judge The primary Judge observed that a WHS entry permit holder must provide a notice of entry under s 119 of the WHS Act when exercising the power under s 117. His Honour explained that the purpose of the notice is to inform the person who has management and control of the premises that the entry is a proper exercise of the power conferred by s 117. Although his Honour noted the first respondent’s contention that the appellants had not given her a notice of entry, his Honour concluded that she would not have accepted any documentation from the appellants, and that the appellants had a notice of entry in their possession on the relevant date (at [99]). However his Honour found that the notice of entry which the appellants had prepared was not valid because of the incorrect description of the names of the appellants in the notice. In particular his Honour said:101.However, the notice does not comply with the regulations. The notice, which is annexure AWJR4 to the affidavit of the First Applicant, is clearly deficient. The most basic information required is that the “notice of entry” displays the full name of the entry permit holder. 102.The First Applicant, both in his affidavit and in evidence before me, testified that his full name is Andrew William John Ramsay. The Second Applicant, both in his affidavit and in evidence before me, testified that his full name is Anthony Lucas Stott. 103.The notice of entry has the following information entered in the “full name of entry permit holder” section: “Andrew Ramsay/Tony Stott”. Obviously that is not the full name of either of the two Applicants.104.As the notice of entry does not comply with the obligations mandated by the regulations, I have no option but to conclude that this was not a valid “notice of entry”.(Original emphasis.) In finding that the notice of entry was invalid, his Honour concluded that the appellants had not validly exercised the right of entry power. This was because, as his Honour explained at [105]-[119]:·the right to enter premises does not solely come from s 117 – rather it is a right that is subject to compliance with ss 118, 119 and 120 of the WHS Act;·there must be compliance with the whole of Div 2 of Pt 7 of the WHS Act before it can be said that there has been compliance with the provisions of Pt 3-4 of the WHS Act;·a valid notice of entry did not have to be given to the first respondent until there had been an actual entry, however there still had to be a valid notice of entry;·the power under s 117 cannot be exercised without there being a valid notice of entry under s 119;·the power to enter premises under the WHS Act must be exercised according to very strict guidelines. A valid notice of entry is mandatory; and·interpreting the legislation in any other manner would be to suggest that WHS permit holders have more power than police to enter premises.

Ratio Decidendi

Legal Principle Established

In so finding, his Honour observed:120.There may well be a feeling by the Applicants that the First Respondent has escaped censure because of a “technicality”. I can well understand this sentiment. But when the interference of rights to the individual is in issue, “near enough is not good enough”.Consideration The grounds of appeal on which the appellants rely are as follows:1.The primary judge erred in Ramsay & Anor v Menso & Anor [2017] FCCA 1416 (the Decision) by finding at [111] of the Decision that the power conferred by s. 117 of the WHS Act could not be exercised without there being a valid notice of entry, within the meaning of s. 119 of the WHS Act, in existence.2.The primary judge erred in finding at [104] and [116] of the Decision that the applicants had not validly sought to enter the site in accordance with s. 117 of the WHS Act on the basis that the notice of entry completed by the applicants did not include their middle names and described the second applicant’s name as “Tony” instead of “Anthony” because:a.No such entry notice was required to be completed before entry was attempted;b.The refusal, or undue delay, of the entry occurred prior to the requirement that the applicants give notice of the entry; and/orc.Such non-compliance with the requirements of s. 119 of the WHS Act did not render the attempt to enter site in accordance with s. 117 of the WHS Act invalid3.The primary judge erred in finding at [98] of the Decision that the applicants had not given the first respondent notice of entry in accordance with s. 119 of the Work Health and Safety Act 2011 (Qld) (the WHS Act);4.The primary judge erred in failing to find that it was not reasonably practicable for the applicants to give the first respondent a notice of entry in accordance with s. 119 of the Work Health and Safety Act 2011 (Qld) (the WHS Act) in circumstances found at [99] of the Decision;5.The primary judge erred at [118] of the Decision in finding that, in circumstances where the applicants had met the requirements of s. 117 of the WHS Act, but had not completed a notice of entry that was in strict compliance with the requirements of s. 119 of the WHS Act, there had not been compliance with Division 2 of Part 7 of the WHS Act which had the consequence that there had not been compliance with Part 3-4 of the Fair Work Act 2009 (Cth) (the FW Act);6.The primary judge erred in finding at [58] of the Decision that there was insufficient evidence to conclude that the first respondent was acting on behalf of the second respondent, within the meaning of s. 793 of the FW Act, on 11 December 2015, and should instead have found that the first respondent was so acting on the basis of the admissions and evidence before him;7.The primary judge erred in failing to find that the first respondent had contravened s. 501 of the FW Act on three separate occasions by refusing, or unduly delaying the applicants’ entry to the site on 11 December 2015;8.The primary judge erred in failing to find that the second respondent had contravened s. 501 of the FW Act on three separate occasions by refusing, or unduly delaying the applicants’ entry to the site on 11 December 2015;9.Further and/or in the alternative, the primary judge erred in failing to find that the first respondent had contravened s. 502 on three separate occasions by hindering or obstructing the applicants in the performance of their duties on 11 December 2015;10.Further and/or in the alternative, the primary judge erred in failing to find that the second respondent had contravened s. 502 on three separate occasions by hindering or obstructing the applicants in the performance of their duties on 11 December 2015.