Darlaston v Parker and Others - [2010] FCA 771

FEDERAL COURT OF AUSTRALIA
Darlaston v Parker [2010] FCA 771

Citation: Darlaston v Parker [2010] FCA 771

Parties: PETER DARLASTON v BRIAN PARKER AND ORS

File number: NSD 436 of 2010

Judge: FLICK J

Date of judgment: 23 July 2010

Catchwords:
INDUSTRIAL LAW – power of entry upon premises – need to comply with an occupational health and safety requirement – entry upon premises for an unauthorised purpose – occupational health and safety requirement

EVIDENCE – witness fails to attend in answer to subpoena – failure to provide “reasonable notice” of intention to rely upon evidence

Legislation:
Building and Construction Industry Improvement Act2005 (Cth), s 9, s 57
Evidence Act 1995 (Cth), ss 63, 67
Federal Court of Australia Act1976 (Cth), s 37M
Federal Court Rules, O 33 r 16
Federal Magistrates Act1999 (Cth), s 39(2)(b)
Occupational Health and Safety Act 2000 (NSW)
Workplace Relations Act1996 (Cth)

Cases cited:
Adler v Australian Securities and Investments Commission [2003] NSWCA 131, 179 FLR 1, followed
Australasian Meat Industry Employees’ Union v Australian Food Corporation Pty Limited [2001] FCA 1709, 111 IR 425, cited
Australian Federation of Air Pilots v East-West Airlines (Operations) Ltd (1992) 40 IR 426, cited
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, 236 FLR 1, followed
Australian Workers Union v BHP Iron-Ore Pty Ltd [2001] FCA 3, 106 FCR 482, cited
Briginshaw v Briginshaw (1938) 60 CLR 336, considered
Citibank Ltd v Federal Commissioner of Taxation (1988) 16 ALD 486, 83 ALR 144, followed
Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403, cited
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132, 162 FCR 466, cited
Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90, cited
Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241, considered
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, 213 CLR 543, cited
Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477, considered
Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118, [2000] QCA 108, cited
Griffin v Pantzer [2004] FCAFC 113, 137 FCR 209, cited
GTS Freight Management Pty Limited v Transport Workers Union of Australia (1990) 25 FCR 296, cited
Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188, 100 FCR 530, cited
Hogan v Riley [2010] FCAFC 30, considered
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2009] FCA 645, 178 FCR 461, not followed by
Jones v Bartlett [2000] HCA 56, 205 CLR 166, cited
Jones v Dunkel (1958) 101 CLR 298, applied
Knight v Maclean [2002] NSWCA 314, considered
Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347, 235 FLR 122, cited
Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100, followed
Leonard v Morris (1975) 10 SASR 528, cited
Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 696, cited
Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51, considered
Nicol v Parr (1985) 11 IR 141, discussed
O’Reilly v The Commissioners of the State Bank of Victoria (1982) 153 CLR 1, followed
Plunkett v Kroemer [1934] SASR 124, cited
Pounder v Police [1971] NZLR 1080, cited
Proudman v Dayman (1941) 67 CLR 536, considered
Puchalski v Regina [2007] NSWCCA 220, cited
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, cited
Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation (1979) 42 FLR 204, cited
Reid v Howard (1995) 184 CLR 1, cited
Sorby v Commonwealth of Australia (1983) 152 CLR 281, followed
Standen v Feehan [2008] FCA 1009, 175 IR 297, cited
Standen v Feehan (No 2) [2007] FCA 1865, cited
Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96, followed
Tsang Chi Ming v Uvanna Pty Ltd (t/as North West Immigration Services) (1996) 140 ALR 273, cited
The Commissioner of Taxation of the Commonwealth of Australia v The Australian and New Zealand Banking Group Limited; Smorgon v The Commissioner of Taxation of the Commonwealth of Australia (1977) 143 CLR 499, followed
Walplan Pty Ltd v Wallace (1985) 8 FCR 27, cited

Books/Articles: Ford, W J, ‘Being There: Changing Union Rights of Entry under Federal Industrial Law’ (2000) 13 AJLL 1

Dates of hearing: 31 May, 1-3 June, 9 June and 17 June 2010

Date of last submissions: 17 June 2010

Place: Sydney

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 267

Counsel for the Applicant: Mr I Neil SC with Mr E Young

Solicitor for the Applicant: Bartier Perry

Counsel for the Respondents: Mr J H Pearce

Solicitor for the Respondents: Taylor & Scott

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 436 of 2010

BETWEEN:
PETER DARLASTON
Applicant

AND:
BRIAN PARKER
First Respondent

REBEL HANLON
Second Respondent

ROBERT KERA
Third Respondent

THOMAS MITCHELL
Fourth Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Fifth Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)
Sixth Respondent

JUDGE:

FLICK J

DATE OF ORDER:

23 JULY 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The proceeding is stood over for further directions at 9:30 am on 30 July 2010 with a view to then giving directions and fixing a date for the hearing as to the making of further orders as to the quantum of any penalties to be imposed and the making of such declaratory relief as is appropriate.
2.The costs of the proceeding to date are reserved.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 436 of 2010

BETWEEN:
PETER DARLASTON
Applicant

AND:
BRIAN PARKER
First Respondent

REBEL HANLON
Second Respondent

ROBERT KERA
Third Respondent

THOMAS MITCHELL
Fourth Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Fifth Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)
Sixth Respondent

JUDGE:

FLICK J

DATE:

23 JULY 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This proceeding was commenced in the Federal Magistrates Court of Australia. An Application was first filed on 23 December 2009 and a Statement of Claim was then filed on 1 March 2010. An Amended Application and an Amended Statement of Claim were thereafter filed on 1 April 2010. A Further Amended Application was filed on 8 April 2010, and a corrected Further Amended Application and Amended Statement of Claim were both filed on 14 April 2010.
The Applicant is the Acting Director of Operations at the Office of the Australian Building and Construction Commissioner. The office of Commissioner is established by s 9 of the Building and Construction Industry Improvement Act2005 (Cth). The authority of the Applicant to commence the present proceeding and to seek the relief claimed is admitted on behalf of all of the Respondents.
On 22 April 2010 an order was made transferring the proceeding to this Court pursuant to s 39(2)(b) of the Federal Magistrates Act1999 (Cth). That provision permits an order that a proceeding be transferred on the initiative of that Court. The transfer, apparently, was supported by none of the parties – all parties being in agreement that the Application was properly commenced in the Federal Magistrates Court and that that Court was the appropriate forum in which to resolve the issues. Concurrence is expressed with the views expressed by the parties. The proceeding, however, was listed first for directions on 3 May 2010 and then for hearing in this Court commencing on 31 May 2010. Arrangements had been made for the attendance of all witnesses and the hearing commenced. No further delay or inconvenience to the parties was warranted.
A number of contraventions of the Workplace Relations Act1996 (Cth) (“Workplace Relations Act”) are alleged. Declaratory relief is sought together with orders for the imposition of penalties.
THE BUILDING SITE & A SHORT CHRONOLOGY
The contraventions are alleged to have taken place over a two day period – being 3 and 4 December 2008. They are said to have occurred at a building site (“site”) in Manly, a suburb of Sydney.
The events that took place on those two days necessarily have to be placed in context.
The building project is a joint venture between Lend Lease Development Pty Limited (“Lend Lease”) and the Roman Catholic Church for the Archdiocese of Sydney at a site known as the St Patrick’s Estate, where an old seminary once stood. The project was broken down into four developable precincts. Two have been completed and two are yet to be completed. Of the outstanding two, one has not yet been commenced. It is the remaining precinct which is of present concern. That precinct is itself broken down into four stages, namely:

Stage 1
Being houses 1 – 8

Stage 2
Being houses 9-12

Stage 3
Being houses 13-19

Stage 4
Being houses 20-26

In August 2007 Berem Constructions Pty Limited (“Berem Constructions”) was awarded the contract to build houses 9 to 12. That company was engaged as the principal contractor. The company, however, fell behind in the construction schedule and went into voluntary administration on 5 September 2008. Approximately 50% of the works were incomplete. The contract was terminated on 8 September 2008.
On the day after the termination of the contract with Berem Constructions, there was a “demonstration” outside the offices of Lend Lease at 30 Hickson Road, Millers Point. A meeting was held that day at which the First, Second and Third Respondents (Messrs Parker, Hanlon and Kera) attended on behalf of the Construction, Forestry, Mining and Energy Union (“CFMEU”). In attendance on behalf of Lend Lease were Mr Andrew Tobin, a Project Director, and Ms Toni Milis. Also in attendance was Mr Carl McLennon, the foreman for Berem Constructions on the project.
Discussions on that occasion proceeded as to the manner in which the former employees and sub-contractors of Berem Constructions could be properly accommodated. The CFMEU advanced the proposition that a particular accounting consultant should be retained by Lend Lease to give the CFMEU “confidence that the subcontractors would be properly represented”.
Discussions with the CFMEU continued throughout September 2008. Agreement was reached to accommodate most of the sub-contractors – but not all. There remained outstanding discussions with a number of former sub-contractors of Berem Constructions. It was on 23 September 2008 that Mr Tobin was first advised by Mr Parker by telephone that the CFMEU were acting on behalf of at least some of those sub-contractors.
On 24 September 2008 there was a further telephone conversation between Mr Parker and Mr Tobin. Mr Tobin advised that Lend Lease was “still in the process of making contact with the previous subcontractors”. There was also a further telephone conversation on that day between Mr Kera and Mr Tobin. Mr Kera urged upon Mr Tobin that Lend Lease should consider making payment to the sub-contractors but Mr Tobin replied that he was unable to take that step. Mr Kera then said:

“We are in dispute.”

These events form part of the background against which the events of 3 and 4 December 2008 took place.
THE ALLEGATIONS ADVANCED
The Applicant is an Australian Building and Construction Inspector appointed under s 57 of the Building and Construction Industry Improvement Act2005 (Cth).
The contraventions alleged may be summarised as follows:
(i)a contravention said to have occurred at about 8:30 am on 3 December 2008 when Messrs Parker, Hanlon and Kera entered the site and failed to comply with an “induction request”. By failing to do so, and by remaining on the site, it is said that there has been a contravention of s 758(3) of the Workplace Relations Act;
(ii)a contravention said to have occurred at an unknown time on 3 December 2008 when Mr Mitchell entered the site and climbed or walked on scaffolding despite being requested on three occasions to immediately cease doing so. Again a contravention of s 758(3) is alleged;
(iii)a contravention said to have occurred on 3 December 2008 when Messrs Parker, Hanlon and/or Kera induced persons working on the site to stop work and leave the site and that those persons were “hindered” or “obstructed”. A contravention of s 767(1) is alleged;
(iv)a contravention said to have occurred at about 7:30 am on 4 December 2008 (when Messrs Parker, Mitchell, Hanlon and Kera entered the site) when Mr Parker failed to move a car parked in the vicinity of a crane which was to be dismantled. Reliance is placed upon ss 758(3) and 767(1) in respect to the contravention alleged;
(v)a contravention said to have occurred at or about 11:00 am on 4 December 2008 when Mr Mitchell drove a car into a cyclone fencing gate thereby endangering an employee of Lend Lease. It is further said that Messrs Hanlon and Kera “failed or neglected to take any action to prevent or stop the Assault, or ameliorate the danger to which it exposed” the employee. Again a contravention of s 767(1) is alleged; and
(vi)a contravention that by engaging in such conduct as alleged, Messrs Parker, Mitchell, Hanlon and Kera did so “for the purpose, or purposes which included, furthering a dispute between the CFMEU and/or CFMEU NSW on the one hand, and LLD on the other hand, as to the payment by LLD of subcontractors engaged to work on the Development by Berem Constructions Pty Ltd, which had acted as the builder on part of the Development”.
In each instance, it is alleged that the Fifth and/or Sixth Respondents also assume liability for the contraventions.
In advancing these claims, the Applicant assumes the role of a model litigant – but not the obligations imposed upon a prosecutor: Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, 236 FLR 1. Austin J there reviewed the authorities and concluded in part as follows:
[530] My conclusion is that when it is a party, or intervenes, in civil proceedings, ASIC as an emanation of the Commonwealth has a duty of probity and fairness to act as a model litigant, which is higher than the duty of fairness owed to the court by civil litigants generally. That conclusion is generally reinforced by cases about the duty of fairness of the Commonwealth in commercial dealings (Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 76 FCR 151 at 195-198 per Finn J; SCI Operations Pty Ltd v Commonwealth (1996) 69 FCR 346 at 367-368 per Beaumont and Einfeld JJ), but it seems to me that the litigation duty is a special and higher one. To that extent I agree with the defendants that ASIC has a special duty as a Commonwealth agency, in civil proceedings, to act in a manner so as to facilitate a fair trial …, though I do not accept their submission that the content of this duty is analogous to prosecutorial fairness …
Concurrence is expressed with those observations.
By reason of the fact that the claim is for a penalty, the standard of proof is the civil standard – but to the level of satisfaction in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) at 361 to 362 per Dixon J. See also Evidence Act1995 (Cth) (“Evidence Act”), s 140. In Briginshaw, Dixon J in an oft cited passage observed at 362:
… But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132, 162 FCR 466, which was a proceeding involving the imposition of a penalty for a contravention of Pt IV of the Trade Practices Act 1974 (Cth), Weinberg, Bennett and Rares JJ observed at 497 to 480:
STANDARD OF PROOF
[29] It follows that proceedings for recovery of pecuniary penalties under the Act are civil proceedings. Accordingly, s 140 of the Evidence Act 1995 Cth requires the Court in such proceedings to apply the civil standard of proof on the balance of probabilities. In arriving at a conclusion of satisfaction that a case has been proved on the balance of probabilities, s 140(2) of the Evidence Act provides:
(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)    the nature of the cause of action or defence; and
(b)    the nature of the subject-matter of the proceeding; and
(c)     the gravity of the matters alleged.
[30] The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.
[31] Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account …
The same standard applies in a proceeding of the present kind: cf. GTS Freight Management Pty Limited v Transport Workers Union of Australia (1990) 25 FCR 296 at 301 per Keely J; Standen v Feehan [2008] FCA 1009 at [20], 175 IR 297 at 300 per Lander J.
Notwithstanding the standard of proof imposed by s 140(2) in a proceeding seeking the imposition of penalties, there is no reason to deny the applicability of the principles in Jones v Dunkel (1958) 101 CLR 298: Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [655] to [656], 179 FLR 1 at 146 per Giles JA (Mason P and Beazley JA agreeing); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission, [2007] FCAFC 132 at [76], 162 FCR 466.
THE COURSE OF THE HEARING
Two aspects of the hearing should be noted at the outset.
First, although the entirety of the evidence for the Applicant had been reduced to the form of written statements, all the individual Respondents initially declined to make an election as to whether or not they would adduce any evidence in support of their own case. Through their Counsel they indicated that they would make an election as to whether they would waive a claim to privilege against self-incrimination at the conclusion of the case for the Applicant.

A claim to a privilege against self-incrimination remains a valuable right and one open to be claimed in a proceeding of the present kind.
The common law has long recognised the privilege of a witness to decline to give evidence if the giving of such evidence may incriminate him in an offence. The privilege has been described as “a basic and substantive common law right”: Reid v Howard (1995) 184 CLR 1 at 11. Toohey, Gaudron, McHugh and Gummow JJ there said of the privilege:
… The privilege, which has been described as a “fundamental ... bulwark of liberty”, is not simply a rule of evidence, but a basic and substantive common law right. It developed after the abolition of the Star Chamber by the Long Parliament in 1641, and, by 1737, it was said that “there (was) no rule more established in equity”. More recently, the privilege has been described as “deeply ingrained in the common law”. It operates so that a person cannot be compelled “to answer any question, or to produce any document or thing, if to do so ‘may tend to bring him into the peril and possibility of being convicted as a criminal’”: (1995) 184 CLR at 11 to 12 (footnotes omitted)
The privilege has also been described as not merely a rule of evidence available in judicial proceedings but as a “fundamental right”: Griffin v Pantzer [2004] FCAFC 113 at [44], 137 FCR 209 at 228 per Allsop J (Ryan and Heerey JJ agreeing). See also: Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347 at [22], 235 FLR 122 at 128 per Basten and Macfarlan JJA and Sackville AJA.
The privilege protects a witness “not only from incriminating himself directly under a compulsory process, but also from making a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character”: Sorby v Commonwealth of Australia (1983) 152 CLR 281 at 310 per Mason, Wilson and Dawson JJ.
The rationale for the privilege is that an applicant must prove its own case and should not get any assistance from the respondent in proving its case. Hence, in the context of a crime, Deane, Dawson and Gaudron JJ in Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 observed at 532:
The privilege against self-incrimination confers an immunity which is deeply embedded in the law. In the end, it is based upon the deep-seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself. (footnotes omitted)
This statement also applies to the privilege against self-exposure to a penalty: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129 per Sheppard J; Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 696 at [26] per Spender J; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 at [31], 213 CLR 543 at 559. The privilege can only be abrogated by statute or waived: Reid v Howard (1995) 184 CLR 1 at 12. See also: Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation (1979) 42 FLR 204; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 336 to 339.
Section 128 of the Evidence Act now provides for the privilege against self-incrimination. That section provides in part as follows:
Privilege in respect of self-incrimination in other proceedings
(1)This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a)    has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b)    is liable to a civil penalty.
(2)The court must determine whether or not there are reasonable grounds for the objection.
(3)If the court determines that there are reasonable grounds for the objection, the court is to inform the witness:
(a)    that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b)    that the court will give a certificate under this section if:
(i)the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4); and
(c)     of the effect of such a certificate.
(4)The court may require the witness to give the evidence if the court is satisfied that:
(a)    the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b)    the interests of justice require that the witness give the evidence.
(5)If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
(6)The court is also to cause a witness to be given a certificate under this section if:
(a)    the objection has been overruled; and
(b)    after the evidence has been given, the court finds that there were reasonable grounds for the objection.
Section 128(1)(b), it will be noted, expressly provides that s 128 applies where the giving of evidence may tend to prove that the witness is “liable to a civil penalty”. A “civil penalty” is defined by clause 3 of Part 2 of the Dictionary to the Act as follows:
For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country.
The privilege, it is considered, was thus available to the individual Respondents to invoke if they saw fit to do so.
For the purposes of s 128(4) it was not considered in “the interests of justice” to “require” each of the individual Respondents to give evidence that may have tended to incriminate them. Evidence as to the conduct sought to be established was available from other sources. There remained what Spender J referred to as “the fundamental distaste of compulsion to disclose information”: Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 696 at [33].
Although it was thus open to the Respondents to claim the benefit of the privilege against self-incrimination, each elected to waive the privilege at the conclusion of the case for the Applicant. A short adjournment of a few days was granted to afford the Respondents an opportunity to consider the further oral evidence that had been adduced and to prepare written statements addressing all such aspects of the evidence that they considered warranted their attention. The hearing resumed six days after the conclusion of the case for the Applicant.
The second aspect of the hearing which should be noted at the outset was the separation of the resolution of the contraventions alleged from any consideration as to the relief to be granted. Questions as to the form of any declaratory relief to be granted and the penalties to be imposed (if any) have been deferred such that submissions may be made based upon the findings presently made.
SECTIONS 758 AND 767
Although other statutory provisions assume some relevance, those statutory provisions of central relevance to the present proceeding are ss 758 and 767 of the Workplace Relations Act1996 (Cth). These provisions were found within Part 15 of that Act.
Part 15, however, was repealed by the operation of Item 2 of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth) as at 1 July 2009. The objects of Part 15 were set out in s 736 as follows:
Objects of this Part
In addition to the object set out in section 3, this Part has the following objects:
(a)to establish a framework that balances:
(i) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected breaches of industrial laws, industrial instruments and OHS laws; and
(ii) the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment;
(b)to ensure that permits to enter premises and inspect records are only held by persons who understand their rights and obligations under this Part and who are fit and proper persons to exercise those rights;
(c)to ensure that occupiers of premises and employers understand their rights and obligations under this Part;
(d)to ensure that permits are suspended or revoked where rights granted under this Part are misused.
But Item 11(1) of Schedule 2 to the 2009 Act has the effect that the Workplace Relations Act continues to apply, on and after what in that Act is referred to as the “WR Act repeal day”, in relation to conduct that occurred before that date.
Sections 758 and 767 thus remain the provisions of central relevance to the present proceeding.
Part 15 of the Workplace Relations Act provided for what that Part described as a “right of entry”. Within Part 15, Division 5 provided that the Division had “effect in relation to a right to enter premises under an OHS law” in certain circumstances. The relevant “OHS law” in the present proceeding was Division 3 of Part 5 of the Occupational Health and Safety Act 2000 (NSW).
The “right of entry” referred to in such provisions may be accepted as a “vital part” of ensuring compliance with occupational health and safety requirements: cf. Australian Federation of Air Pilots v East-West Airlines (Operations) Ltd (1992) 40 IR 426 at 427 to 428.
A statutory right to enter private premises is a right now conferred in a variety of different circumstances. One of the most common is the right conferred by s 263 of the Income Tax Assessment Act1936 (Cth). The right conferred makes lawful that which would otherwise be unlawful: The Commissioner of Taxation of the Commonwealth of Australia v The Australian and New Zealand Banking Group Limited; Smorgon v The Commissioner of Taxation of the Commonwealth of Australia (1977) 143 CLR 499 at 535 per Mason J. It is a right which has been strictly construed: See Commissioner of Taxation v Citibank (1989) 20 FCR 403 at 432 to 433. Another example is to be found in s 59 of the Building and Construction Industry Improvement Act (Cth).
Whether the same strict approach should be adopted when construing Part 15 of the Workplace Relations Act may be left to one side. Any present right of entry must necessarily be exercised by reference to the “objects” sought to be achieved by Part 15 as set forth in s 736, including “the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment”.
Part 15, it is considered, should be construed in a manner which both protects the private interests of employers to carry out their functions “free from harassment” and the interests of ensuring compliance (in this case) with applicable occupational health and safety requirements. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62, Keely, Gray and Ryan JJ observed:
... The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.
A similar approach should be adopted when construing the terms of Division 5 of Part 15 of the Workplace Relations Act.
Unlike other provisions within Part 15 (eg., s 747 within Division 4), Division 5 itself confers no right of entry. That right is to be found in the present proceeding in s 77 of the Occupational Health and Safety Act 2000 (NSW). That provision is found within Division 3 of Part 5 of that Act and relevantly provides as follows:
77 Powers of entry of places of work
An authorised representative of an industrial organisation of employees may, for the purpose of investigating any suspected breach of the occupational health and safety legislation, … enter any premises the representative has reason to believe is a place of work where members of that organisation (or persons who are eligible to be members of that organisation) work.
Section 78 further provides that the right may be exercised “without notice”. Although it is this State provision which, together with s 755 of the Workplace Relations Act, confers the right of entry, other provisions within Part 15 impose conditions upon the exercise of the right. Thus, s 756 of the Workplace Relations Act requires that an official of an organisation who has such a right of entry must not exercise that right unless he has a “permit under this Part” and “exercises the right during working hours”. A “permit holder” is defined in s 737 as “a person who holds a permit”.
And s 758 of the Commonwealth Act relevantly for the purposes of the present proceeding imposes conditions upon the exercise of the right sought to be exercised in December 2008. That section provides as follows:
Limitation on OHS entry – failure to comply with requests of occupier
(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.
Note:    See Division 8 for enforcement.
(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.
Note: The Commission may make an order under section 771 if the request is unreasonable.
(4)Subsection (3) is a civil remedy provision.
Note:    See Division 8 for enforcement.
The term “occupier” of premises is defined in s 4 of the Workplace Relations Act as including “a person in charge of the premises”.
The constraints upon the exercise of the right of entry otherwise conferred are not without practical importance. An employer whose premises are being entered must be entitled to know that the official who is purporting to exercise such a right has in fact been clothed with the authority that the legislation and a permit confer. A permit may, for example, be issued subject to conditions: ss 740 and 741 of the Workplace Relations Act. And, unless revoked, a permit expires at the earlier of either three years from the date of issue or when the permit holder ceases to be an official: s 743. It is presumably because of at least these reasons that s 758(1) does not confer any right of entry where there is a failure to produce an entry permit “when requested to do so by the occupier of the premises”. Whether a request is made or not remains a matter for the occupier. But where a request is made, a reasonable opportunity must be allowed to read any conditions that may be imposed. Unless such an opportunity is extended, the occupier is stripped of any opportunity to form a view as to whether he should accede to the right of entry sought to be exercised or whether he may resist an exercise of power on the basis that it is in excess of conditions imposed. The permit may even have expired.
The power conferred to enter premises under “an OHS law” may not be exercised where those purporting to exercise the power do not suspect any breach of any occupational health and safety legislation or where the right of entry is being exercised for a purpose other than investigating any such breach.
Mere status as a union official of itself confers no untrammelled right of entry to the premises of an employer. The evolution of rights of entry in industrial law, it may be noted, has been helpfully traced by W J Ford in ‘Being There: Changing Union Rights of Entry under Federal Industrial Law’ (2000) 13 AJLL 1.
To acknowledge such constraints is to do no more than to conclude that a right of entry conferred by law must be exercised in accordance with any such constraints and requirements as the law itself imposes. It could not be doubted that, as observed by Mason, Murphy, Brennan and Deane JJ in O’Reilly v The Commissioners of the State Bank of Victoria (1982) 153 CLR 1 at 48:
Like all statutory powers, that power must be used bona fide for the purposes for which it was conferred and that involves that its exercise be not excessive in the circumstances of the case.
It must be constantly recalled that any conferral of a statutory right to enter premises, be they private premises or business premises, is a serious encroachment upon liberty and all such statutory provisions must be construed so that “the encroachment is no greater than the statute allows, expressly or by necessary implication”: Citibank Ltd v Federal Commissioner of Taxation (1988) 16 ALD 486 at 490, 83 ALR 144 at 152 per Lockhart J. On appeal, see: Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403.
Within those constraints, s 758(3) provides that a permit holder must not enter or remain on premises if the occupier of the premises requires the permit holder to comply with “an occupational health and safety requirement that applies to the premises” and where the request to do so is a “reasonable request” and where the permit holder “fails to comply with the request”.
“[A]n occupational health and safety requirement that applies to the premises” is a statutory phrase not elsewhere defined.
HINDRANCE, OBSTRUCTION AND IMPROPER MANNER
Section 767(1) and (2) provide as follows:
Hindering, obstruction etc. in relation to this Part
(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.
Section 767(1), it will be noted, provides that a permit holder must not “intentionally hinder or obstruct” any person or otherwise act in an “improper manner”. A number of potential sources of difficulty emerge from what may otherwise be regarded as a comparatively simple provision. These potential difficulties include establishing that any conduct was pursued “intentionally”; giving content to the expression “hinder or obstruct”; and identifying an “act” that constitutes acting in “an improper manner”.
A person can intentionally hinder or obstruct another person, it has been said, by an active act or by conduct which is essentially negative in character: cf. Standen v Feehan [2008] FCA 1009 at [21], 175 IR 297 at 300 per Lander J. Pincus J gave the term “obstruct[ion]”, then appearing in s 125(10) of the Conciliation and Arbitration Act1904 (Cth), the same meaning in Nicol v Parr (1985) 11 IR 141 (at 143 to 144). In so concluding, Pincus J drew support as follows from a decision concerning the obstruction of a police officer:
Next, it was contended that some more positive action than that proved is necessary to constitute obstruction within the meaning of the statute. It was said that, in particular, merely requiring Mr Nicol to leave is insufficient. The weight of authority is against that contention. In Hinchcliffe v Sheldon [1955] 3 All ER 406, Lord Goddard CJ at 408, in a police obstruction case, said that “obstructing” means “making it more difficult for the police to carry out their duties”. What the defendant did certainly falls within that description. Further, the submission that in such a context the notion of obstruction requires some positive action is inconsistent with the view expressed by the High Court in O’Reilly v Commissioners of the State Bank of Victoria (1983) 57 ALJR 342 at 347.
The requirement that conduct be “intentional” may serve to exclude any accidental obstruction: cf. Pounder v Police [1971] NZLR 1080 at 1084.

Care must be taken in not too readily placing reliance upon the manner in which perhaps the very same statutory expressions as used in one context are incorporated in a different statutory context. Whilst recognising that qualification, the guidance gleaned by Pincus J, from a police obstruction case, remains of continuing assistance. The statutory expression used in s 767(1) that must constantly be recalled is “intentionally hinder or obstruct”. Again in the context of a police case, in Plunkett v Kroemer [1934] SASR 124 Napier J was considering an appeal from a summary conviction for hindering a police officer in the execution of his duties. The police officer was demanding entrance to licensed premises. In that context His Honour observed:
It must be conceded that, for the purposes of this charge, the complainant has to prove an actual hindrance, in the sense of some appreciable obstruction to, or interference with, the performance by the constable of his duty; but “hinder” is not a word of art, or capable of precise definition, and it is a question of fact and of degree whether in the circumstances of the particular case the obstruction or interference was appreciable. If the constable is frustrated in his attempt to perform his duty, or retarded in the execution thereof, then, clearly, he has been “hindered”; but I think that the fair and natural meaning of the word goes further than that. I think that a constable is “hindered” by any obstruction or interference that makes his duty substantially more difficult of performance. To take a simple illustration. If a constable is chasing a suspected person and a bystander deliberately trips the constable, but the agility of the constable enables him to keep his feet, and to continue the pursuit without any material delay, I think that the act of the bystander is a “hindrance” within the meaning of this section.
It seems to me that the plain commonsense of the case is in accordance with the findings and conclusion of the justices. It is impossible to separate the act of physical obstruction from the conduct that preceded it. Upon the reasoning of the Chief Justice in Lentahall v. Curran, [1933] S.A.S.R. 248, I think that the act of the appellant in warning those inside the hotel of the approach of the police was in itself a hindrance; but, however that may be, there is no doubt that it created a situation in which speed—upon the part of the police—was essential, and a comparatively slight delay might well be fatal to the successful performance of their duty. A delay that might be trivial in other circumstances might well be regarded as appreciable in the circumstances as found by the justices, and I see no reason for disturbing the conviction.
Not surprisingly, the same approach was followed in the subsequent decision of the Supreme Court of South Australia in Leonard v Morris (1975) 10 SASR 528. There in issue were the offences of “hindering a member of the police force in the execution of his duty” and “resisting a member of the police force in the execution of his duty”. In that context Bray CJ concluded at 530 to 531:
Everyone agrees that nothing is to be described as hindering or resisting unless it involves a conscious and voluntary act. But is that all? Is it enough if such an act does, objectively speaking, constitute a hindrance to or a resisting of someone who happens to be a member of the police force and who happens to be engaged at the time in the execution of his duty? I think not. In the analysis which follows I deal primarily with hindering. Resisting presents less difficulties. With regard to the actus reus which constitutes hindering I accept it that, while some overt act is required and mere inaction cannot amount to hindering …, any act of interference or obstruction which makes the duty of the police officer substantially more difficult of performance is a hindering within the meaning of the section (Plunkett v. Kroemer). But the mere performance of a conscious and voluntary act which makes the duty of the police officer substantially more difficult of performance cannot be enough to constitute the offence, otherwise a lame man crossing the road, without adverting to the consequences of his action and without any knowledge of the circumstances, who causes a police car in pursuit of a fleeing criminal, also in a car, to slow down or stop so that the fugitive car gets away would be guilty of the offence and that would be absurd. Some further mental element is necessary; in addition there may be possible justifications.
What is that mental element? I think the defendant must either intend substantially to impede the particular individual who happens, whether known or unknown to him, to be a police officer in the performance of whatever that individual is engaged in, which happens whether known or unknown to the defendant, to be in the execution of his duty as a member of the police force, or else he must, being aware that what he is doing or about to do is likely so to impede that individual, decide nevertheless to do it or go on doing it. (citations omitted)
In Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 Gray J again reviewed some of the authorities, including those concerning an obstruction of a highway and hindering police officers. There in issue was s 306 of the Industrial Relations Act1988 (Cth) which made it an offence to “hinder or obstruct a person in the exercise of a power…”. The defendant had refused to allow union officers to see records. In that context Gray J gave content to the reach of the statutory provision there in issue as follows at 256 to 257:
The words “hinder” and “obstruct” have often been used in the creation of offences. Well-known examples involve such things as obstructing the highway, and hindering a police officer in the execution of his or her duty. The authorities dealing with those offences recognise the necessary connection between the concept of obstruction or hindering and the nature of the activity obstructed or hindered. For instance, it is plain that every person using a highway is, in a sense, obstructing it; the space occupied from time to time by one single user cannot be occupied simultaneously by any other user. The purpose of the highway, however, is passage and repassage, so that it is recognised that the user of the highway for this purpose will not amount to an obstruction. As the High Court (consisting of Latham CJ, Rich and Dixon JJ) said in Schubert v Lee (1946) 71 CLR 589, at p 594:
Where the alleged obstruction consists in the physical presence of the defendant upon the highway it becomes necessary to reconcile the prohibition of obstruction of a highway with the reasonable user of the highway by members of the public: See Adams v Horan (1906) 26 NZLR 169. Every user of a highway for the purpose for which a highway is intended may theoretically at least lessen its commodiousness for the use of other members of the public. But that arises from the nature of things. What is not permitted is the lessening in a substantial degree of the commodiousness of the use of the highway for legitimate purposes by using it for purposes other than a highway.
See also Haywood v Mumford (1908) 7 CLR 133 at 138 in the judgment of Griffith CJ. Similarly, with respect to the offence of hindering a police officer, it has been recognised that an act which might otherwise amount to a hindering will not do so if there is lawful excuse for it, or if it is reasonable in the circumstances not to regard the police officer as hindered. See Leonard v Morris (1975) 10 SASR 528 at 533 in the judgment of Bray CJ, with respect to the question of lawful excuse (advising a person not to answer questions) and in the judgment of Wells J (at 543-544), with respect to taking into account all of the circumstances to determine the reasonableness of what might otherwise have been a hindrance.
His Honour continued at 257 to 258:
Among the obligations of an employer pursuant to s 286 of the Act is an obligation to make available certain documents and records for inspection. If an authorised officer attends at premises, and asks to see certain documents or records which he or she is entitled to inspect, some positive act will usually be required on the part of the employer, or the occupier of the premises, to make those documents and records available. As Mr Heerey put it in argument, merely to indicate that the relevant documents and records can be found somewhere in a filing cabinet within a large building would amount to a hindrance or obstruction of the right to inspect. The exact content of the positive obligation will depend upon the circumstances. If records are stored in a computer, it may be necessary for an employee with knowledge of the operation of the computer and the relevant codes to make available the relevant records for inspection. Failure to do so will amount to a hindrance or obstruction. The fact that the employee concerned would otherwise be engaged in some other work will not mean that he or she has been hindered or obstructed by the inspecting officer. If that were not so, the right to inspect would be negated. Thus, it is open to the inspecting officer, as Mr Davey and Mr Dillon did, to examine a computer screen for the purpose of looking at relevant records, even though the particular computer might otherwise be used for some ordinary work of an employee, without hindering or obstructing that employee.
His Honour finally concluded at 258:
It follows that the proper construction of the phrase “hinder or obstruct” in the proviso to s 286(1) involves a requirement that the authorised officer do some positive act by way of hindrance or obstruction, or at least decline to move from a place in which he or she is likely to hinder or obstruct an employee. Apart from a failure to move, it is difficult to envisage a hindrance or obstruction that would fall within the proviso to s 286(1) but would not involve some positive conduct on the part of the authorised officer. Even if it is unnecessary to reach this conclusion, I am of the view that the mere presence of an authorised officer who is the subject of violent dislike by one or more employees, to the extent that those employees are prepared to cease work while the authorised officer is on the premises, cannot amount to a hindrance or obstruction by the authorised officer of those employees in the performance of their work.
For the purposes of s 767(1) it is considered that the reference to “intentionally hinder or obstruct” is a reference to any act or conduct that actually makes it more difficult for the person who is “hindered or obstructed” to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an “appreciable” obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within s 767(1).
The Full Court has recently, in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90 considered the requirement of intention for the purposes of s 767. Spender J concluded that “whether in a criminal trial or in proceedings for civil remedy, the test for intention is a subjective not an objective one”: at [26]. Dowsett J also concluded that the “requirement that any hindrance or obstruction be intentional prima facie requires that there be a subjective intention to hinder or obstruct”: at [46]. But this decision had not been handed down at the time of the hearing and, accordingly, none of the parties either then or subsequently have made any submissions addressed to it.
Difficulty is also encountered in construing the last of the phrases in s 767(1), namely the proscription of a “permit holder” acting “in an improper manner.” Presumably the Parliamentary draftsman saw no need to confine an act which amounts to “act[ing] in an improper manner” to an intentional act. But conduct which falls outside of an intentional hindrance or an intentional obstruction of a person, and yet falls within an “act in an improper manner” is not further defined by either s 767 or the Act as a whole.
A contravention of s 767 on the basis of acting in an “improper manner”, however, is not made out merely by reason of a refusal on the part of those seeking access to premises to identify the particulars of any occupational health or safety concern that they may have in mind: Hogan v Riley [2010] FCAFC 30. Finn, Lander and Jessup JJ there concluded:
[22] The essence of the Federal Magistrate’s conclusion that Messrs Kivalu and O’Mara had contravened s 767(1) of the WR Act seems to have been their refusal to provide particulars of the “safety breach” which they alleged, other than to say that there had been an “incident”. In so ruling, however, his Honour was implicitly imposing upon the organisers an obligation to which they were not subject under the OHS Act. …
Their Honours then set out the terms of s 78 of the Occupational Health and Safety Act 1989 (ACT), which conferred a right of entry “without notice” and a right not to “tell the occupier of the premises that the representative is on the premises if … to do so would defeat the purpose for which the premises were entered”. They then continued:
... On the facts of the present case, therefore, the organisers were entitled to enter the Convention Centre site without providing Iqon with particulars of the safety matter which they wished to investigate. Section 767(3) of the WR Act takes the provisions of the OHS Act as its starting point. Save in a much more obvious case of hindrance or obstruction than the present one was, we would not regard s 767(1) as concerned to qualify or to reduce the underlying entitlement to enter upon the existence of which subs (3) is based.
Notwithstanding the difference in language between the language of this provision within the Australian Capital Territory legislation and ss 77 and 78 of the New South Wales Act, it may similarly be concluded that a contravention of s 767 would not be made out merely by reason of those seeking access not informing an occupier of the safety concerns they had in mind.
THE PARTIES — SOME AGREEMENT AS TO THE FACTS
The Applicant, Mr Peter Darlaston, is an Australian Building and Construction Inspector duly appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth).
The following facts in respect to the Respondents were also the subject of agreement.
The First Respondent, Mr Brian Parker, was at all material times an officer and an employee of the Fifth Respondent, the Construction, Forestry, Mining and Energy Union, within the meaning of s 826 of the Workplace Relations Act1996 (Cth). He was also at all material times an officer and an employee of the Sixth Respondent, the Construction, Forestry, Mining and Energy Union (NSW Branch), within the meaning of s 826 and was at all material times acting within the scope of his actual or apparent authority. He was the holder of a permit issued under Part 15 of the Workplace Relations Act and the holder of a permit issued under Part 7 of the Industrial Relations Act1996 (NSW) (“Industrial Relations Act”).
Each of the Second and Fourth Respondents, Messrs Hanlon and Mitchell, was at all material times:
(i)an employee of the Fifth and Sixth Respondents within the meaning of s 826; and
(ii)the holder of a permit issued under Part 15 of the Workplace Relations Act and a permit issued under Part 7 of the Industrial Relations Act.
There was also the same agreement in the case of the Third Respondent, Mr Kera, other than that it was not agreed that he was an employee of the Sixth Respondent, the CFMEU NSW. Rather, it was agreed he was an employee of the Fifth Respondent and a “member” of the Sixth Respondent.
The Fifth Respondent, the CFMEU, was at all material times:
(i)an organisation of employees registered under Schedule 1 of the Workplace Relations Act and liable to be sued in that capacity; and
(ii)a body corporate for the purposes of s 826 of the Workplace Relations Act.
A PERMIT HOLDER, A GENUINE BELIEF AND OCCUPATION
Placed at the forefront of the written and oral submissions of the Respondents are a number of questions which should be addressed at the outset, namely:
·has the Applicant established that Messrs Parker, Hanlon, Kera and Mitchell are “permit holders” for the purposes of both s 758(3) and s 767(1)?
·was a right of entry being exercised “under an OHS law”?
·is the genuineness of the belief of the individual Respondents that they had a right of access or a genuine belief that conduct was lawful an answer to the contraventions alleged against them?
·has the Applicant established that Lend Lease is the “occupier of the premises” for the purposes of s 758(3)(a)?
To some extent, although identified as separate questions, there is a degree of overlap.
PERMIT HOLDERS?
There can be little doubt that Messrs Parker, Hanlon, Kera and Mitchell were asserting a right of entry upon the premises at Manly.
But the contraventions alleged against one or other of them depend upon the Applicant establishing that each is a “permit holder” – s 758 makes it an offence for a “permit holder” to enter and remain on premises in the circumstances there described; and s 767 prohibits a “permit holder” from engaging in the conduct there described.
If one or other of the individual Respondents was not a “permit holder”, they may each have been committing a trespass – but they could not be found to have contravened the Workplace Relations Act in the manner alleged.
It is considered that each is a “permit holder” for the purposes of s 758 and s 767 of the Workplace Relations Act.
Although it is s 737 which defines a “permit” as “a permit under this Part” and “permit holder” as a “person who holds a permit”, it is s 740 which provided for the mechanism whereby a “permit” may be issued. That section provides as follows:
Issue of permit
(1)An organisation may apply to a Registrar for the issue of a permit to an official of the organisation. The application must be in writing.
(2)The Registrar may issue a permit to the official named in the application.
(3)The permit:
(a) must include any conditions that are imposed by the Registrar under section 741; and
(b)    must include any conditions that are applicable under section 770 at the time of issue.
(4)The regulations may make provision in relation to the following matters:
(a)    the form of an application for a permit;
(b)    the declarations and other documents that must accompany the application;
(c)     verification, by statutory declaration, of those documents;
(d)    the form of a permit.
In the case of each of the First to Fourth Respondents an application was made in accordance with s 740 of the Workplace Relations Act1996 for the issue of a permit. In each case a permit was issued.
There was, in any event, agreement that each of Messrs Parker, Hanlon, Kera and Mitchell were the holders of permits for the purposes of Part 15 of the Workplace Relations Act and the holders of permits issued under Part 1 of the Industrial Relations Act. When entering the Manly site, no real distinction was sought to be drawn by any of the individual Respondents between each of the permits which they held.
For present purposes, however, it is concluded that each of the individual Respondents was a “permit holder” for the purposes of both s 758(3) and s 767(1).
A RIGHT OF ENTRY UNDER AN OHS LAW?
Also rejected is a submission advanced on behalf of the Respondents that Messrs Hanlon, Kera and Mitchell did not have a “right of entry under an OHS law to enter premises” for the purposes of s 756. Section 756 provided as follows:
Permit required for OHS entry
(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.
(2)Subsection (1) is a civil remedy provision.
“OHS law” is defined in s 737 of the Workplace Relations Act as meaning “a law of a State or Territory prescribed by the regulations for the purposes of this definition”.

The immediate relevance of the submission to the alleged contravention of s 758 may presently be left to one side. Section 758, it may be noted, simply imposes a constraint upon a “permit holder” to enter or remain on premises. No contravention of s 756 is alleged. But it may be that a contravention of s 758 involves both the necessity to prove that the person against whom the contravention is alleged is both a “permit holder” and a person who is asserting a right of entry “under an OHS law”.
If s 758 involves the necessity to establish both matters, it is considered that the Applicant in the present proceeding has done so.
In advancing the submission that Messrs Hanlon, Kera and Mitchell did not have a “right of entry”, Counsel on behalf of the Respondents relied upon the decision in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2009] FCA 645, 178 FCR 461 (“John Holland”). In that decision, Moore J concluded that a person who was not an “officer” as then defined in the Industrial Relations Act1996 (NSW) was not an “authorised representative” for the purposes of s 76 of the Occupational Health and Safety Act 2000 (NSW) and had no right to enter a work site.
In the present proceeding it was said that Messrs Hanlon, Kera and Mitchell were similarly not “officers” and similarly had no right of entry pursuant to s 756(1) and (presumably) did not fall within the constraint otherwise imposed by s 758.
Although invited on behalf of the Applicant to conclude that the decision in John Holland was erroneous, Counsel on behalf of the Applicant also adopted the far more prudent course of seeking to contend that that decision should no longer be applied by reason of legislative amendments made in response to the John Holland decision.
The manner in which the decision in John Holland was reached is self-evident upon the reasons provided. Moore J there identified the issues to be resolved as follows:
[18] … 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 [it] is necessary to consider s 76 of the OHS Act and a number of definitions in the IR Act. Section 76 is in Div 3 of Pt 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.
His Honour then went on to further identify the “questions for consideration” as follows:
[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, authorised representatives able to exercise a right of entry under the OHS Act.
His Honour relevantly concluded:
[25] The answer is, in my opinion, reasonably clear. Section 76 was enacted against a background where the scheme in Pt 7 of the IR Act was in place. It would have then been clear from Pt 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. … 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 Pt 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 Pt 7, namely officers as defined in s 296.
If it were necessary to advance the submission, Counsel on behalf of the Applicant said that His Honour erred in construing s 76 by reference to s 296 as found in the Industrial Relations Act.
The preferred submission advanced on behalf of the Applicant was that the consequences flowing from the decision in John Holland received legislative attention and the result has been retrospectively altered by the Occupational Health and Safety Amendment (Authorised Representatives) Act 2009 (NSW). That Act by way of clause 1 of Schedule 1 amended the definition of s 76. That clause provided as follows:
Section 76 Definition
Omit the definition of authorised representative. Insert instead:
authorised representative of an industrial organisation of employees, means a person who is an authorised industrial officer within the meaning of Part 7 of Chapter 5 of the Industrial Relations Act 1996 in respect of that industrial organisation of employees.
Clause 3 inserted the following provision after Part 5:
Part 6Provision relating to Occupational Health and Safety Amendment (Authorised Representatives) Act 2009
23 Authorised representatives
(1)In this clause:
amending Act means the Occupational Health and Safety Amendment (Authorised Representatives) Act 2009.
authorised representative has the same meaning as in Division 3 of Part 5 of this Act.
(2)Before the commencement of Schedule 1 [1] to the amending Act, a person who for any period was an authorised industrial officer within the meaning of Part 7 of Chapter 5 of the Industrial Relations Act 1996 is taken, for the purposes of this or any other Act or law, to have been an authorised representative during that same period.
(3)Any act or omission of a person referred to in subclause (2), that would have been valid had Schedule 1 [1] to the amending Act commenced before the act or omission, is validated.
(4)Subclauses (2) and (3) do not affect any decision of a court made before the commencement of this clause.
By reason of these amendments, it is said by Counsel for the Applicant that the express legislative intention achieved by the amendments was to make persons such as Messrs Hanlon, Kera and Mitchell persons who had a right of entry. The distinction drawn by Moore J, and His Honour’s reliance upon the definition of an “authorised representative”, had since been the subject of legislative amendment.
The retrospective nature of the legislative amendment is evident from both its terms and from the supplementary legislative materials to which reference was made. The Second Reading Speech on 23 September 2009 thus expressly referred to the decision in John Holland and continued to state in part as follows:
For this reason, the amendment will be made retrospective to ensure that any powers exercised by authorised representatives before the commencement of the amendment are valid.
The submission advanced on behalf of the Applicant is thus accepted. It is not considered that the decision in John Holland is now a bar to a conclusion, should it be necessary, that Messrs Hanlon, Kera and Mitchell had a right of entry. It is now clear that Messrs Hanlon, Kera and Mitchell did have a right of entry for the purposes of the State and Commonwealth legislation.
A GENUINE BELIEF?
In seeking to erect a further barricade in the cascading series of submissions advanced on behalf of the Respondents, it was next contended that even if:
·each of the Respondents was a “permit holder”; and
·each was exercising a “right under an OHS law”;
then each of the individual Respondents could not be found to have engaged in any contravention because:
·each Respondent had a genuine belief as to the existence of the right sought to be exercised or a genuine belief that their conduct was not a contravention of any Act.
In advancing a submission that each of the individual Respondents had “an honest and reasonable” belief that their conduct was lawful, reliance was placed upon Proudman v Dayman (1941) 67 CLR 536. Ms Proudman had there been convicted of permitting an unlicensed driver to drive on a road. Special leave was sought to appeal from the decision of the Supreme Court of South Australia. Special leave was refused. Rich ACJ and Dixon J concluded that an honest and reasonable belief that the driver was licensed was a defence to the charge. In so concluding, Dixon J observed at 540:
There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also. …
His Honour continued:
The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt. But, in the present case, the applicant assigned reasons for her alleged belief which neither the magistrate nor the Full Court found convincing or sufficient. Indeed, it may be doubted if she thought at all upon the question whether the person she permitted to drive her car did or did not hold a subsisting licence.
The difficulty confronting Ms Proudman was that there was “no support in the circumstances of the case for the defence of honest and reasonable mistake”.
The similar difficulty confronting this submission in the present proceeding is that each of Messrs Parker, Hanlon, Kera and Mitchell prepared a written statement of evidence that was ultimately admitted into evidence. Each witness was cross-examined. But there was no unequivocal evidence adduced from any of these Respondents – on oath – that they believed that they had a right (however mistaken) to engage in the conduct they each pursued. There was evidence as to what, for example, Mr Hanlon thought he would be doing on site: but such evidence fell short of asserting a genuine belief that he had a right to do so. The failure to adduce unequivocal evidence, in circumstances where each is represented by Counsel and where all other matters relevant to the contraventions have been put in issue, it is considered, is conclusive.
Even separate from any consideration as to whether the individual Respondents had stated on oath the genuineness of their belief as to the rights being exercised, it is not considered that the balance of the evidence would in any event have made out that defence. Mr Parker, for example, gave an account in his written statement that when being told by Ms Sokolich that he had to identify the safety issues that he was investigating, responded:

Mr Parker:
“That’s not the case at all. We’ve got a legal right to be on site, there are provisions under the Act, you’re hindering access.”

Whatever may have been the correctness of the competing views being expressed by Ms Sokolich and Mr Parker, the account provided by Mr Parker falls short of establishing the genuineness of any belief that he could enter the site without undergoing a site induction. Mr Hanlon gave the following account of his response when told by Mr Tsitsios on 3 December 2008 that he had no right of entry:

Mr Hanlon:
“Under the OH & S Act it’s an offence to hinder or obstruct an industrial officer in their duty; you’ve got no right to stop us walking on the site.”

Again that account falls short of establishing a right of entry without first undergoing the site induction.

Moreover, the account of the exchange advanced by Mr Tsitsios and Ms Sokolich is preferred to that of Messrs Parker and Hanlon.
Any defence that may be available founded upon one or other of the individual Respondents having a reasonable belief as to the lawfulness of their conduct fails on the facts.
WAS LEND LEASE THE OCCUPIER?
The need for the Applicant to establish, at least for the purposes of s 758, that it was Lend Lease who was the occupier of so much of the Montpelier site to which the facts relate may be accepted: cf. Australasian Meat Industry Employees’ Union v Australian Food Corporation Pty Limited [2001] FCA 1709, 111 IR 425.
The Trustees of the Roman Catholic Church for the Archdiocese of Sydney are the owners of the Montpelier site. So much of the site upon which completed residential accommodation has been built is subject to leases expiring in June 2088.
The development of the site was from the outset a joint venture between the Catholic Church and Lend Lease. Berem Constructions had, of course, been retained in August 2007 to build Houses 9 – 12, but that contract was terminated in September 2008. Thereafter, Lend Lease assumed responsibility for co-ordinating trades and sub-contractors and conducting general site inductions and general site safety.
It was in the vicinity of House 9-12, being Stage 2, that the events of 3 and 4 December 2008 took place. The officers centrally involved in those events were all employed by Lend Lease. Mr Justin Barrett was employed by Lend Lease as its Development Manager; the site foreman, Mr Tom Tsitsios, was seconded from Bovis Lend Lease Pty Ltd to Lend Lease in September 2008 to work at the site; and Ms Linda Sokolich had been employed by Lend Lease since March 2004 as its Environment, Health and Safety Manager for its Communities Division in NSW. Mr Andrew Tobin was the Project Director for Lend Lease. It was, for example, Mr Barrett who maintained that the individual Respondents should undergo a site induction. Even on the account of those Respondents, there was an insistence on the part of Lend Lease that the Register of Visitors be signed.
The Improvement Notices issued by the WorkCover Authority of New South Wales on 4 December 2008 identified Lend Lease relevantly as the “Controller of Premises”.
As at those dates, it is considered that Lend Lease was the “occupier” of at least so much of the site as was the stage for the events of 3 and 4 December 2008 or was the entity “in charge” within the extended definition of the term “occupier”.
Rejected is a submission advanced on behalf of the Respondents that it was (for example) Upgrade Carpentry Pty Ltd or Sydney Plasterers and Painters Pty Ltd that were the occupiers of House 12 where some of the events took place, or that it was Harley Cranes Pty Ltd which was the occupier where other events took place. Albeit in the context of liability arising on the part of an occupier pursuant to the Occupiers’ Liability Act1985 (WA), in Jones v Bartlett [2000] HCA 56, 205 CLR 166 Gaudron J observed:
[80] It is trite law that different persons may occupy the same premises at the same time …
And Gummow and Hayne JJ there observed:
[152] A person such as a builder in temporary control of the premises or parts therof may be “an occupier of premises” …
Whether or not one of the other entities identified on behalf of the Respondents may also have been an “occupier” of the relevant parts of the site presently in issue may thus be left to one side. To so conclude does not preclude any finding, as is made, that it was Lend Lease who was relevantly the “occupier”. Also rejected is a further submission advanced on behalf of the Respondents that the area in which the events took place were several “premises” of which there were a number of discrete “occupiers”.
Given the conclusion that Lend Lease was the “occupier” for relevant purposes, it is not necessary to resolve a further submission advanced on behalf of the Respondents that “[t]he Act envisages that there will be only one occupier of a premises at any material time”. That submission was founded upon both the term “the occupier” in s 758(1) and the prospect of “conflicting requests … made of an unfortunate permit holder by different ‘occupants’”.
The submission advanced on behalf of the Respondents that the contraventions alleged should be rejected either because it had not been established by the Applicant that:
·the First to Fourth Respondents were “permit holders” for the purposes of s 758; or that
·Lend Lease was the “occupier” for the purposes of s 758(3)(a)
is thus rejected.
THE OCCUPATIONAL HEALTH AND SAFETY REQUIREMENTS
On behalf of the Applicant, it is contended that the phrase “occupational health and safety requirement that applies to the premises” in s 758(3)(a) invites an exclusively factual analysis.
The “occupational health and safety requirement”, it is said, is a requirement which is formulated or imposed by the occupier of a particular site and by reference to the peculiar facts and circumstances of each building site. What may be an appropriate “requirement” for one building site may be totally inappropriate for another.
There remain, however, at least two constraints, namely:
·the “requirement” must be one which can properly be characterised as an “occupational health and safety requirement”; and
·the “request” to comply with the “requirement” must be “reasonable”.
On such an approach, the Applicant contends that s 758(3) does not impose any other constraint such that the “requirement” be:
·necessarily in writing; or
·a “requirement” which has been formulated inflexibly in advance of any right of entry being exercised.
On such an approach, the Applicant contends that:
·the requests made of Messrs Parker, Hanlon and Kera to undergo a safety induction before entering the site;
·the requests made of Mr Parker to move the vehicles from the vicinity where a crane was to be dismantled; and
·the requests made of Mr Mitchell to descend from some scaffolding;
were each an “occupational health and safety requirement that applies to the premises” within the meaning of and for the purposes of s 758(3)(a). To the extent that a “requirement” must also be sufficiently certain so as to permit compliance, each of these requests would satisfy such a test.
Each of these requests, it is concluded, is “an occupational health and safety requirement that applie[d] to the site” within the meaning of and for the purposes of s 758(3)(a) of the Workplace Relations Act. Each was concerned to ensure the safety of persons entering and remaining on site.
The overall concern of Lend Lease to ensure safety, it may be noted, may be traced back to a document described as the “Montpelier Stage 2 EHS Plan & Guide” dated 24 September 2008. That document provided in part as follows:
Site Foreman will:
·    Be responsible for the day to day safety operations on the site
·    Deliver the inductions along with the nominated Construction worker
·    Review the SWMS and other material for all subcontractors
·    Participate in the daily site walks
·    Comply with the other requirements of the EHS Plan and it’s associated requirements
In addition to this document, Lend Lease had also prepared a document titled an “Induction Summary” which was a “power point presentation” covering such topics as:
·“What management expects of you”; and
·“What you can expect from management”.
Both of these topics were concluded by the message: “If you can’t do it safely, don’t do it”. The “Induction Summary” continued to address further topics, including:
·“House rules” – including the wearing of hard hats and steel capped footwear; and
·procedure in the instance of minor and major accidents and the location of the medical centre.
Mr Tobin maintained that he was involved in the drafting of this document.

He then looked at a temporary powerboard and said: “this board does not meet Australian standards code (some number …)”.
He then demanded all work on site be halted.

Ms Sokolich and Ms Tsitsios were in error in their belief that there was a need for a “specific safety concern” to be identified before entry could be effected on 3 December 2008. In the absence of obstruction on the part of on occupier, it is nevertheless to be hoped that there would be a degree of co-operation between those investigating concerns as to safety and those being investigated. On the account of the evidence which is accepted, the individual Respondents had no reason to form any view other than that Lend Lease was willing to address any genuine concern as to safety which was raised for consideration.
The inability – or unwillingness – to divulge the areas of concern to them that they were investigating, it is considered, may say something as to the absence of any genuine concern that there were matters of safety on site that warranted investigation.
The dismissive manner in which Mr Hanlon, for example, refused to undergo an induction request; the refusal of Mr Mitchell to come down from the scaffolding; the repeated references to people having come out from “under a rock” or to them being a “joke”; and the unwarranted rudeness with which one or other of the individual Respondents treated the officers of Lend Lease says little as to the power being exercised in a bona fide manner. Such an attitude is only reminiscent of the song once popular that “I always get my way … You don’t get me I’m part of the union …”: The Strawbs, “Part of the Union” (1973).
Some support for drawing an inference that entry was being effected for the purpose of exerting pressure on Lend Lease to pay the Berem employees and sub-contractors may also be found in the following evidence of Ms Sokolich who said that Mr Barrett had said to her:

“They finally fessed up to why they were really here. They really want to pursue the sub contractors’ monies from Berem.”

But Mr Barrett gave no such evidence. The failure on the part of Mr Barrett to give such evidence renders reliance upon Ms Sokolich’s account less certain.

Whatever criticism may be directed to the manner in which the right of entry was being exercised and the investigation undertaken, there nevertheless was some evidence as to some matters that could potentially have formed the basis for a concern as to safety, namely:
·the perimeter fencing being inadequate and having holes in it;
·the scaffolding having missing hand rails, kick boards and edge protection;
·the absence of “bar caps”; and
·the state of the electrical power lead on the floor where the carpenters were working.
Whether these were the concerns that those exercising the right of entry had in mind when first entering the site, or were concerns that emerged only thereafter, remained equivocal. Some of the concerns, it should be noted, were observable from outside of the site. But the expressed concerns as to safety, for example, that led to the carpenters and renderers being excluded from the site were far from satisfactory. Mr Bangel, for example, when giving evidence could “picture” one of the union officials snapping what was described as a “plywood step near the scaffolding in … a forceful manner”. The piece of plywood was some 600 mm x 200 mm and “was a step up from the concrete terrace of the … house ... to the scaffold”. He agreed that the union official “stepped on it and it broke”. When asked that it was “not very safe” he responded that “we’d been walking up and down it for about a month … It didn’t seem dangerous to me”. Similarly, the “bar caps” identified by Mr Mitchell as being in need of replacing were offered to be replaced immediately. And the exclusion of even those contractors who were not using electrical power tools was inexplicable. At least part of the area being reviewed by the union officials was, in any event, not a work zone and the process was underway of stripping the formwork and erecting scaffolding. On at least some of the scaffolding there were “Incomplete Scaffold” signs.
All of this evidence also has to be viewed in the context that at the close of business on 3 December 2008, five union Safety Audit Improvement Notices were issued. And, on the following day, WorkCover also issued three Improvement Notices. Complaints as to safety had also been made to WorkCover only a few days previously, on 28 November 2008.
Nor are the handwritten notes prepared by Mr Barrett as to the events of 3 and 4 December 2008 to be ignored. The first couple of pages of those notes do record at least a number of issues. There may have been some debate between Mr Barrett and his cross-examiner as to whether any of these issues were “specific” as was being suggested to him. A couple may have been “specific” – such as two references to handrails and the locations of concern. But no conclusion could satisfactorily be reached that any of these issues were raised with Mr Barrett prior to their entry upon site. Mr Barrett, not surprisingly, had little recollection of the sequence in which particular matters unfolded and his recollection was not assisted by reference to these notes. If any conclusion were to be reached based upon these notes, it would be that they record matters or issues mentioned after entry and whilst they were walking around the site.
On balance such evidence, in its entirety, does not make out the improper purpose being alleged by the Applicant against the individual Respondents to the standard required by Briginshaw. To make a finding as to the improper purpose being advanced by the Applicant would be to make a finding, contrary to the caution of Dixon J in Briginshaw, founded upon “inexact proofs, indefinite testimony or indirect inferences”.
Care must obviously be taken to ensure that a Court does not seek to substitute its own opinion or assessment for the beliefs or opinions of those in whom the right of entry is vested. The fact that no matter of occupational health or safety (or any substantial matter) may be discerned after premises have been entered by those clothed with authority to do so, does not carry the consequence that the right of entry may not have been properly invoked at the outset. Nor does the fact of those exercising the right raising with an occupier matters other than those relevant to health and safety, deny the lawful authority of those entering a site.
The conclusion is thus reached that the present contravention alleged by the Applicant has not been made out.
THE CFMEU OR THE CFMEU (NSW)?
In addition to seeking the imposition of penalties upon the first four individual Respondents, the Further Amended Application as corrected also seeks the imposition of a penalty upon the Fifth and Sixth Respondents – namely the Construction, Forestry, Mining and Energy Union and the Construction, Forestry, Mining and Energy Union (NSW Branch) respectively.
The Fifth Respondent is and was at all material times an organisation of the employees registered under Schedule 1 of the Workplace Relations Act and a body corporate for the purposes of s 826 of the Workplace Relations Act.
The Sixth Respondent is a body corporate taken to be incorporated under s 222 of the Industrial Relations Act1996 (NSW).
The Further Amended Application as filed seeks the imposition of penalties upon one or other of those two Respondents in respect to each of the contraventions alleged, namely:
·the induction contraventions – by reason of the conduct of each of Messrs Parker, Hanlon and Kera;
·the scaffolding contraventions – by reason of the conduct of Mr Mitchell;
·the Upgrade and SPP contraventions – by reason of the conduct of Messrs Parker, Hanlon and/or Kera;
·the crane contraventions – by reason of the conduct of Mr Parker;
·the assault contraventions – by reason of the conduct of Messrs Mitchell, Hanlon and Kera; and
·the improper purpose contraventions – by reason of the conduct of Messrs Parker, Mitchell, Hanlon and Kera.
Each of the allegations being advanced against the Fifth and/or Sixth Respondents adopted a standard format, it being alleged that the conduct of the individual Respondents identified:
·was engaged in “on behalf of the CFMEU and/or the CFMEU NSW”;
·was “within the scope of the actual or apparent authority of” the individual Respondents identified “as officers or employees of the CFMEU and/or CFMEU NSW”; and
·“in the premises, by the operation of paragraph 826(2)(a) of the Workplace Relations Act is taken for the purposes of the Workplace Relations Act to have also been engaged in by the CFMEU and/or CFMEU NSW”.
Section 826 of the Workplace Relations Act provides as follows:
Conduct by officers, directors, employees or agents
(1)Where it is necessary to establish, for the purposes of this Act or the BCII Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a)    that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b)    that the officer, director, employee or agent had the state of mind.
(2)Any conduct engaged in on behalf of a body corporate by:
(a)    an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b)    any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;
shall be taken, for the purposes of this Act or the BCII Act (as the case requires), to have been engaged in also by the body corporate.
(3)    A reference in this section to the state of mind of a person includes a reference to the knowledge, intent, opinion, belief or purpose of the person and the person’s reasons for the intent, opinion, belief or purpose.
The phrase employed in s 826(2), “conduct engaged in on behalf of a body corporate”, is a phrase “not … with a strict legal meaning and it is used in a wide range of relationships … [I]t casts a much wider net than conduct by servants in the course of their employment, although it includes it”: cf. Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 37 per Lockhart J; Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 at [78], 100 FCR 530 at 549 per Ryan, Moore and Goldberg JJ.
And the phrase in s 826(2)(a), “within the scope of his … actual or apparent authority”, has also received attention. In Hanley, supra, Ryan, Moore and Goldberg JJ referred to an earlier decision of the Queensland Court of Appeal in Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118, [2000] QCA 108 and to the divergent approaches pursued by the trial Judge and McMurdo P and Williams J, on the one hand, and that of Pincus JA on the other. Ryan, Moore and Goldberg JJ then went on to make the following observations as to the manner in which a corporation may assume liability by reason of the acts of others:
[75] There is force in Pincus JA’s view in Evenco that in proceedings of a “quasi-criminal” nature, such as proceedings for civil contempt, vicarious liability should not be determined by the strict application of the “course of employment” test. A less stringent approach would expose a body corporate to liability by virtue of the conduct of an employee, however aberrant it might be, as long as it could be characterised as “in the course of employment”. The same considerations apply, in our opinion, to proceedings for a penalty in respect of proscribed conduct and intent under s 170NC. Consequently, to establish vicarious liability under s 170NC it is necessary to adduce evidence which establishes, on the balance of probabilities, that the act complained of was authorised. To use the language of Pincus JA, neither “inferences from what [the relevant employees] generally do” nor “judicial knowledge” are sufficient. That approach accords generally with observations of Moore J made in Kelly v Construction Forestry Mining and Energy Union (1994) 56 IR 373 at 381-382; 125 ALR 109 at 118.
Evidence of the authority being exercised by the individual Respondents is required if either the Fifth or Sixth Respondent is to be held liable: GTS Freight Management Pty Limited v Transport Workers Union of Australia, supra.
Within these constraints the liability of the Fifth and/or Sixth Respondents is to be resolved.
There is some uncertainty in the evidence adduced by the Applicant as to whether Messrs Parker, Hanlon and Kera were acting on behalf of the Fifth or Sixth Respondents. Mr Kera, it is accepted, said to Mr Nash that “we’re from the unions”, implying both. But Mr Parker presented his State right of entry; Mr Hanlon displayed his State right of entry and produced his Federal right of entry; and Mr Kera produced both his State and Federal rights of entry.
When Mr Mitchell entered the site in December 2008 he displayed his State right of entry but carried his Federal right of entry.
Given the professed purpose of entering the site to investigate matters of concern arising as to safety, there is little difficulty in concluding that Messrs Parker, Hanlon, Kera and Mitchell were acting within their “apparent authority” of the Sixth Respondent.
Notwithstanding some uncertainty in the evidence, it is also concluded that Messrs Parker, Hanlon, Kera and Mitchell were also acting within the “apparent authority” of the Fifth Respondent.
All four individual Respondents held themselves out as acting on behalf of the CFMEU and did not seek to draw any distinction between which authority they were seeking to invoke to gain entry to the building site at Manly. And such uncertainty as may otherwise have remained in the evidence was resolved by Mr Parker. He was the supervisor for Messrs Hanlon, Kera and Mitchell. When cross-examined on behalf of the Applicant he was questioned as to the responsibilities assumed by each of these Respondents. In respect to Mr Hanlon, one exchange was as follows:

Mr Neil:
“And again, as his supervisor, were you satisfied at the time that everything that you saw him doing at that time fell properly within the range of his responsibilities as an organiser?”

Mr Parker:
“Yes, I did.”

Mr Neil:
“Right. Just concentrating on his activities in December 2008, as you have recounted them in your statement?”

Mr Parker:
“Yes.”

Mr Neil:
“Were they responsibilities that fell within his responsibilities as an organiser attached to the former state union or to the federal union, or both?”

Mr Parker
“Actually, both, because if you have a right of entry for – within the confines of the state branch and, if required, you are to also show the federal right of entry as well. So it’s possibly in both.”

The cross-examiner then shifted his attention to Messrs Kera and Mitchell and the following exchange occurred:

Mr Neil:
“And in your statement you’ve set out a number of things that you saw Mr Kera do in December 2008 in connection with the Montpelier estate site, correct?”

Mr Parker:
“That’s correct.”

Mr Neil:
“And again, as his supervisor, were you satisfied that all of those things fell properly within the range of his responsibilities as an organiser?”

Mr Parker:
“Yes, I was.”

Mr Neil:
“And was that as an organiser attached to both the federal and the former state union?”

Mr Parker
“Yes.”

Mr Neil:
“And what about Mr Mitchell. Again---?”

Mr Parker:
“The same applies.”

Mr Neil:
“---you’ve given an account of a number of things you saw him do in September 2008. They properly fell within the range of his responsibilities as an organiser as you saw at the time; is that right?”

Mr Parker:
“That’s correct.”

Mr Neil:

“And December 2008: again, everything you saw him do and that you’ve set out in your statement, that that – were they things that you saw as properly falling within his responsibilities as an organiser, correct?”

Mr Parker:
“That’s correct.”

Mr Neil:
“And in each case that was as you saw it, an organiser attached to both the federal and the former state union; is that correct?”

Mr Parker:
“That’s correct.”

During the course of oral submissions, Counsel on behalf of the Applicant abandoned any claim as to contravention against Messrs Hanlon and Kera as a result of the Upgrade and SPP contraventions and also the assault contravention. Although not expressly stated, that presumably was a corresponding abandonment of any contravention on behalf of either the Fifth or Sixth Respondent, by reason of the conduct of Messrs Hanlon and Kera. As a result of the conclusion in respect to the improper purpose contravention, any liability of those two Respondents must also fail. The remaining contraventions, however, remain to be resolved.
It is, accordingly, concluded that both the Fifth and Sixth Respondent also assume liability for the conduct of the individual Respondents in respect to:
·the induction contraventions – by reason of the conduct of each of Messrs Parker, Hanlon and Kera;
·the scaffolding contravention – by reason of the conduct of Mr Mitchell; and
·the Upgrade and SPP contravention – by reason of the conduct of Mr Parker.
MATTERS OF EVIDENCE — JONES V DUNKEL?
It is considered that the evidence adduced by the Applicant, to the extent that it has been accepted, makes out the contraventions that have been referred to.
To a limited extent, the Respondents seek to advance a submission that the Applicant could have called additional witnesses but failed to do so. That failure, it is then suggested, may be called in aid by the Respondents in evaluating the evidence advanced against them. Thus, for example, it is advanced on behalf of the Respondents that the Applicant failed:
·to tender the Joint Venture agreement as between Lend Lease and the Roman Catholic Church – which may have been relevant to the identification of the “occupier” of the relevant part of the Montpelier site at Manly;
·to produce the “written order that was raised by Justin Barrett” to Harley Cranes Pty Ltd whereby Harley Cranes were requested to assist in the dismantling of the crane – which again may have been relevant to the identification of so much of the site as was relevant to the crane contravention;
·to call Mr Hinde – who may have been able to give evidence as to the steps taken to fix the handrail on the scaffolding from which Mr Mitchell declined to descend.
This submission, with respect, is misplaced.
The evidence-in-chief of such witnesses as were called by the Applicant and the cross-examination of those witnesses, did not provide any real reason to question the accounts that those witnesses provided in their witness statements and the evidence they gave in response to the subpoenas that had been served upon them.
There was thus no need to also invoke the so-called rule in Jones v Dunkel (1958) 101 CLR 298. In the passage oft-cited, Kitto J there said:
… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put a true complexion on the facts relied on as the ground for the inference, has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.
But the absence of a particular witness “cannot be used to make up any deficiency of evidence”: (1958) 101 CLR 298 at 312 per Menzies J. And these statements in Jones v Dunkel “give no support to the proposition that the failure to call a witness may itself provide the basis of an adverse inference. An inference must be founded in evidence”: Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 124 per Wilcox J.

To the extent that further evidence could have been called on behalf of the Applicant, but was not called, it is not considered that any such further evidence could have assisted in the resolution of the factual matters in dispute and no inference should be drawn by reason of the failure to call such evidence.
MATTERS OF EVIDENCE — THE ABSENT WATTIE JOHNSTON
One of the witnesses upon whom a subpoena had been served failed to attend – Mr Wattie Johnston. No application was made to enforce compliance with the subpoena. He had provided a statement to the Office of the Australian Building and Construction Commissioner dated 12 March 2009. That statement addressed the events on 3 and 4 December 2008. He recounted Mr Parker saying to him:

“… We’re here because Berem Constructions went bust and a lot of guys are owed a lot of money and we’re trying to get Lend Lease to fix up what’s owed to those subbies.”

He also recounted a conversation with Mr Tom Mitchell in which Mr Mitchell said:

“You know this visit has got nothing to do with you Wattie we’ve got no real safety issues here Wattie. We’re here to collect money from LLD for the workers that lost out when Berem went bust.”

Mr Johnston was also on site on 4 and 8 December 2008 but his evidence in respect to those dates took the factual issues to be resolved no further.

Senior Counsel for the Applicant sought to rely upon Mr Wattie Johnston’s statement even though he did not attend in answer to the subpoena and was not available for cross-examination. Senior Counsel called in aid ss 63 and 67 of the Evidence Act.
Section 63 provides as follows:
Exception: civil proceedings if maker not available
(1)This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to:
(a)    evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b)    a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
Clause 4 of Part 2 to the Act’s Dictionary further supplements as follows what is meant by the “unavailability of persons”:
Unavailability of persons
(1)For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
(a)    the person is dead; or
(b)    the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact; or
(c)     it would be unlawful for the person to give evidence about the fact; or
(d)    a provision of this Act prohibits the evidence being given; or
(e)     all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or
(f)     all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2)In all other cases the person is taken to be available to give evidence about the fact.
Section 67 provides as follows:
Notice to be given
(1)Subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence.
(2)Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.
(3)The notice must state:
(a)    the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and
(b)    if subsection 64(2) is such a provision–the grounds, specified in that provision, on which the party intends to rely.
(4)Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.
(5)The direction:
(a)    is subject to such conditions (if any) as the court thinks fit; and
(b)    in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.
Order 33 r 16 of the Federal Court Rules requires that a notice under s 67(1) is to be in accordance with Form 144 and may have attached to it an affidavit that sets out evidence of “the previous representation”. Compliance with r 16(3)(a) may be dispensed with if the Court is satisfied, having regard to all the circumstances, that the purpose of the paragraph has been satisfied: O 33 r 16(4).
The submission was that Mr Johnston was “not available” to give evidence; that the hearsay nature of his evidence fell within s 63(2); and that “reasonable notice” had been given to the Respondents within the meaning of s 67(1).
The subpoena was returnable on the first day of the hearing and was stood over from one day to the next when Mr Johnston did not attend when called upon. At the end of the third day of the hearing, being the day prior to the Applicant closing its case, notice was given to the Respondents of the Applicant’s “intention to adduce evidence”.
Notice in accordance with Form 144 was provided.
Given the non-attendance of Mr Johnston and the time at which the application was made, it was agreed that the use to be made of his statement (if any) could conveniently be deferred to closing submissions. Counsel for the Respondents was thus on notice that the statement may be admitted. His decision to call evidence from each of the individual Respondents exposed Counsel only to the prospect of putting to Messrs Parker and Mitchell the limited conversations asserted by Mr Johnston – should Counsel wish to do so. No real prejudice was raised by the Respondents by deferring any ruling upon the admissibility of Mr Johnston’s statement.
In the present proceeding, the address and location of Mr Johnston was readily available. He had been contacted on a number of occasions by the solicitor for the Applicant. The position simply was, rightly or wrongly, he feared retribution from the unions and did not wish to attend.
Reservation is expressed as to whether the mere service of a subpoena upon a witness who has demonstrated an unwillingness to comply with its terms will, in all cases, have the consequence that “all reasonable steps have been taken … to secure his … attendance” within the meaning of cl 4(1)(e) of the definition set forth in the Dictionary to the Evidence Act. But for present purposes it may be assumed that Mr Johnston was “not available” for the purposes of s 63(1).
It is, however, not considered that “reasonable notice” has been given. That which constitutes “reasonable notice” will obviously depend upon the facts and circumstances of each individual case: Puchalski v Regina [2007] NSWCCA 220. Smart AJ, with whom McClellan CJ at CL and Hislop J agreed, there observed:
[103] … What is reasonable will depend on the circumstances. … Reasonable notice enables the opposing party to reconsider how it is going to conduct its case and whether it needs to call another witness to prove what it reasonably hoped to elicit from the unavailable witness. Some of the evidence of the further witness may be adverse to the case of the accused and regarded by the accused as incorrect.
[104] In determining whether reasonable notice has been given regard must be had to the date when, and circumstances in which, the Crown became aware that a witness was not likely to be available or was not to be available and the interests of the accused. These matters would also have to be considered if the exercise of the power under s 67(4) was being contemplated.
And, even if it had, it is not considered that the discretion conferred by s 67(4) to give a “direction” should be exercised in favour of the Applicant. In Tsang Chi Ming v Uvanna Pty Ltd (t/as North West Immigration Services) (1996) 140 ALR 273 no notice had been given. In that context Hill J observed at 281 to 282:
As an exception to the hearsay rule, hearsay evidence is permitted to be given either where the person who made the relevant representation is not available to give evidence about the asserted fact or where, while that person is available, the circumstances are such that it would cause undue expense or undue delay or would not be reasonably practicable to call the person.
Section 67(1) requires, in effect, that if s 63 or s 64 is to be availed of, then the parties seeking to avail of them are to give reasonable notice in writing to the other parties of the intention to adduce the evidence. The Rules of the Court provide for the giving of the relevant notice. It is common ground between the parties in the present case that no notice was given. It is also common ground between the parties that it has been known for at least a year that the present evidence was intended to be relied upon.
…
The scheme of the Evidence Act is to require notice to be given if the maker of the representation is not to give direct evidence. That notice, under s 67, has to be “reasonable”. The theory presumably is to ensure that if one party does not propose to call the maker of the representation the other party at least may have the chance to do so. However, the court is given power to direct that either or both of ss 63(2) and 64(2) apply, despite the failure to give notice. No criteria are laid down by the Evidence Act upon which the court is to proceed. However, and without attempting to in any way define appropriate criteria exclusively, matters relevant to the court in exercising the discretion, which would need to be exercised judicially, would include the prejudice to the parties by dispensing with the requirement to give notice; as well as, for example, in a case involving s 64, matters of expense and delay which might point in favour of permitting the evidence to be adduced.
In refusing to permit the Applicant to adduce the evidence of Mr Johnston, it is considered that the Applicant was on notice from at least the first day of the hearing that Mr Johnston was not willing to attend – short of an application being made to enforce the subpoena. Whatever steps may have been sought to enforce the subpoena may be left unexplored. For a party to know from the outset of a hearing that difficulties were being experienced in securing the attendance of a witness, and to foist upon an opponent the evening before the final day of hearing of its evidence notice of an intention to rely upon such evidence, does not afford the opponent “reasonable notice”.
Presumably the Respondents in the present proceeding may have been relieved that Mr Johnston was not available to give evidence. They presumably did not want to take any efforts to secure his attendance. Even so, the Applicant should not be put in the position where it can use the evidence of Mr Johnston simply by giving notice under s 67(1) the evening before the Applicant’s evidence is to be closed even though difficulties were anticipated in securing his attendance and where an election was presumably made to take no steps to secure his attendance.
It is concluded that the Applicant can place no reliance upon the statement of Mr Wattie Johnston. The tender of his statement is rejected.
COSTS
Section 824 of the Workplace Relations Act provided as follows:
Costs only where proceeding instituted vexatiously etc.
(1)A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.
(2)Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first‑mentioned party to pay some or all of those costs.
(3) In subsections (1) and (2):
costs includes all legal and professional costs and disbursements and expenses of witnesses.
Section 663 refers to applications for alleged contraventions of ss 659, 660 or 661 and has no application to the present proceeding.
No conclusion could be sustained that the present proceeding was instituted “vexatiously or without reasonable cause” within the meaning of and for the purposes of s 824(1).
Nor is there considered to be any basis upon which it could be concluded that the Respondents caused the Applicant to incur costs “by an unreasonable act or omission” within the meaning of and for the purposes of s 824(2). The Respondents were entitled to invoke their privilege against self-incrimination and to put the Applicant to the proof of its claims. By doing so, the Respondents could not be said to have acted in an “unreasonable” manner.
But the absence of any power to award costs, it should be noted, does little to facilitate the resolution of proceedings of the present kind in a manner “as quickly, inexpensively and efficiently as possible”: Federal Court of Australia Act1976 (Cth), s 37M. The balance to be struck between affording Respondents the opportunity to conduct proceedings of the present kind in the manner presently pursued, and to do so in a manner relatively free of any real constraint as to the costs incurred, remains a matter for the Legislature.
The absence of a more traditional power to award costs nevertheless has the potential to place an impediment in the commencement of applications of the present kind and an impediment in the ability of the Court to resolve the real factual and legal matters in dispute in an inexpensive and efficient manner.
There remains, however, no basis upon which any order for costs should be made in the present proceeding.
Section 824 has no application where the person seeking costs is not a party to the proceeding: Standen v Feehan (No 2) [2007] FCA 1865 at [15] per Lander J.
CONCLUSIONS
For the reasons expressed, it is concluded that:
·Messrs Parker, Hanlon and Kera contravened s 758(3) by failing to undergo the safety induction as requested on 3 December 2008;
·Mr Mitchell contravened s 758(3) by failing to come down from the scaffolding when requested on 3 December 2008;
·Mr Parker on 3 December 2008 contravened s 767(1) by both hindering and obstructing Lend Lease, Upgrade, SPP and each of the carpenters and renderers by making the statements he did to persons on site;
·Mr Parker on 4 December 2008 contravened s 758(3) by failing to move the vehicles when requested but that he did not also contravene s 767(1) by reason of that conduct;
·Mr Mitchell on 4 December 2008 by driving at the gate behind which Mr Tsitsios was standing contravened s 767(1) by acting “in an improper manner”;
·Messrs Parker, Hanlon, Kera and Mitchell did not seek entry for the improper purpose alleged and did not thereby contravene s 767(1); and
·both the Fifth and Sixth Respondents also assume liability for such contraventions as have been established as against the individual Respondents by operation of s 826(2) of the Workplace Relations Act.
The proceeding is stood over for further directions at 9:30 am on 30 July 2010 with a view to then giving directions and fixing a date for the hearing as to the making of further orders as to the quantum of penalties to be imposed and the making of such declaratory relief as is appropriate.
ORDERS
The Orders of the Court are:
1.The proceeding is stood over for further directions at 9:30 am on 30 July 2010 with a view to then giving directions and fixing a date for the hearing as to the making of further orders as to the quantum of any penalties to be imposed and the making of such declaratory relief as is appropriate.
2.The costs of the proceeding to date are reserved.

I certify that the preceding two hundred and sixty-seven (267) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.
Associate:
Dated: 23 July 2010

Citation:	Darlaston v Parker [2010] FCA 771
Parties:	PETER DARLASTON v BRIAN PARKER AND ORS
File number:	NSD 436 of 2010
Judge:	FLICK J
Date of judgment:	23 July 2010
Catchwords:	INDUSTRIAL LAW – power of entry upon premises – need to comply with an occupational health and safety requirement – entry upon premises for an unauthorised purpose – occupational health and safety requirement EVIDENCE – witness fails to attend in answer to subpoena – failure to provide “reasonable notice” of intention to rely upon evidence
Legislation:	Building and Construction Industry Improvement Act2005 (Cth), s 9, s 57 Evidence Act 1995 (Cth), ss 63, 67 Federal Court of Australia Act1976 (Cth), s 37M Federal Court Rules, O 33 r 16 Federal Magistrates Act1999 (Cth), s 39(2)(b) Occupational Health and Safety Act 2000 (NSW) Workplace Relations Act1996 (Cth)
Cases cited:	Adler v Australian Securities and Investments Commission [2003] NSWCA 131, 179 FLR 1, followed Australasian Meat Industry Employees’ Union v Australian Food Corporation Pty Limited [2001] FCA 1709, 111 IR 425, cited Australian Federation of Air Pilots v East-West Airlines (Operations) Ltd (1992) 40 IR 426, cited Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, 236 FLR 1, followed Australian Workers Union v BHP Iron-Ore Pty Ltd [2001] FCA 3, 106 FCR 482, cited Briginshaw v Briginshaw (1938) 60 CLR 336, considered Citibank Ltd v Federal Commissioner of Taxation (1988) 16 ALD 486, 83 ALR 144, followed Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403, cited Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132, 162 FCR 466, cited Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90, cited Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241, considered Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, 213 CLR 543, cited Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477, considered Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118, [2000] QCA 108, cited Griffin v Pantzer [2004] FCAFC 113, 137 FCR 209, cited GTS Freight Management Pty Limited v Transport Workers Union of Australia (1990) 25 FCR 296, cited Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188, 100 FCR 530, cited Hogan v Riley [2010] FCAFC 30, considered John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2009] FCA 645, 178 FCR 461, not followed by Jones v Bartlett [2000] HCA 56, 205 CLR 166, cited Jones v Dunkel (1958) 101 CLR 298, applied Knight v Maclean [2002] NSWCA 314, considered Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347, 235 FLR 122, cited Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100, followed Leonard v Morris (1975) 10 SASR 528, cited Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 696, cited Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51, considered Nicol v Parr (1985) 11 IR 141, discussed O’Reilly v The Commissioners of the State Bank of Victoria (1982) 153 CLR 1, followed Plunkett v Kroemer [1934] SASR 124, cited Pounder v Police [1971] NZLR 1080, cited Proudman v Dayman (1941) 67 CLR 536, considered Puchalski v Regina [2007] NSWCCA 220, cited Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, cited Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation (1979) 42 FLR 204, cited Reid v Howard (1995) 184 CLR 1, cited Sorby v Commonwealth of Australia (1983) 152 CLR 281, followed Standen v Feehan [2008] FCA 1009, 175 IR 297, cited Standen v Feehan (No 2) [2007] FCA 1865, cited Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96, followed Tsang Chi Ming v Uvanna Pty Ltd (t/as North West Immigration Services) (1996) 140 ALR 273, cited The Commissioner of Taxation of the Commonwealth of Australia v The Australian and New Zealand Banking Group Limited; Smorgon v The Commissioner of Taxation of the Commonwealth of Australia (1977) 143 CLR 499, followed Walplan Pty Ltd v Wallace (1985) 8 FCR 27, cited
Books/Articles:	Ford, W J, ‘Being There: Changing Union Rights of Entry under Federal Industrial Law’ (2000) 13 AJLL 1
Dates of hearing:	31 May, 1-3 June, 9 June and 17 June 2010
Date of last submissions:	17 June 2010
Place:	Sydney
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	267
Counsel for the Applicant:	Mr I Neil SC with Mr E Young
Solicitor for the Applicant:	Bartier Perry
Counsel for the Respondents:	Mr J H Pearce
Solicitor for the Respondents:	Taylor & Scott

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 436 of 2010

JUDGE:	FLICK J
DATE OF ORDER:	23 JULY 2010
WHERE MADE:	SYDNEY

JUDGE:	FLICK J
DATE:	23 JULY 2010
PLACE:	SYDNEY

Stage 1	Being houses 1 – 8
Stage 2	Being houses 9-12
Stage 3	Being houses 13-19
Stage 4	Being houses 20-26

Mr Neil:	“And again, as his supervisor, were you satisfied at the time that everything that you saw him doing at that time fell properly within the range of his responsibilities as an organiser?”
Mr Parker:	“Yes, I did.”
Mr Neil:	“Right. Just concentrating on his activities in December 2008, as you have recounted them in your statement?”
Mr Parker:	“Yes.”
Mr Neil:	“Were they responsibilities that fell within his responsibilities as an organiser attached to the former state union or to the federal union, or both?”
Mr Parker	“Actually, both, because if you have a right of entry for – within the confines of the state branch and, if required, you are to also show the federal right of entry as well. So it’s possibly in both.”

Mr Neil:	“And in your statement you’ve set out a number of things that you saw Mr Kera do in December 2008 in connection with the Montpelier estate site, correct?”
Mr Parker:	“That’s correct.”
Mr Neil:	“And again, as his supervisor, were you satisfied that all of those things fell properly within the range of his responsibilities as an organiser?”
Mr Parker:	“Yes, I was.”
Mr Neil:	“And was that as an organiser attached to both the federal and the former state union?”
Mr Parker	“Yes.”
Mr Neil:	“And what about Mr Mitchell. Again---?”
Mr Parker:	“The same applies.”
Mr Neil:	“---you’ve given an account of a number of things you saw him do in September 2008. They properly fell within the range of his responsibilities as an organiser as you saw at the time; is that right?”
Mr Parker:	“That’s correct.”
Mr Neil:	“And December 2008: again, everything you saw him do and that you’ve set out in your statement, that that – were they things that you saw as properly falling within his responsibilities as an organiser, correct?”
Mr Parker:	“That’s correct.”
Mr Neil:	“And in each case that was as you saw it, an organiser attached to both the federal and the former state union; is that correct?”
Mr Parker:	“That’s correct.”