Hogan v Riley

The Federal Court of Australia heard an appeal by Halafihi Kimonu Kivalu and Jason Lawrence O’Mara, union representatives, against a decision made by the Federal Magistrates Court of Australia. The lower court had ruled that the representatives did not have reasonable grounds to suspect a breach of occupational health and safety law when they attempted to enter a construction site at the National Convention Centre in Canberra on 7 June 2007. This ruling was part of a broader dispute involving the representatives' rights under the Occupational Health and Safety Act 1989 (ACT) and their obligations under the Workplace Relations Act 1996 (Cth).

The legal issues before the court encompassed whether it was permissible to decide the case based on a constructional point not raised by the parties and whether the finding that the union representatives lacked reasonable grounds to suspect a breach was open, given that they had sworn to the existence of such grounds and were not cross-examined on this matter. Additionally, the court had to determine whether the prohibition on refusing or unduly delaying entry to premises by a union representative was contingent upon the representative complying with the obligation not to hinder or obstruct any person or otherwise act improperly. Another issue was whether the representatives' refusal to provide more details about the alleged "safety breach" and "incident" amounted to hindering or obstructing any person or acting in an improper manner.

The Federal Court allowed the appeal and set aside the orders made by the Federal Magistrates Court. It found that the union representatives were entitled to enter the construction site on 7 June 2007 and that they did not intentionally hinder or obstruct any person or act in an improper manner in seeking to exercise their rights of entry. The court concluded that the finding that the representatives lacked reasonable grounds was not open because they had sworn to the existence of such grounds and were not cross-examined on this testimony. The court also held that the representatives' refusal to provide more details did not constitute hindering or obstructing any person or acting in an improper manner. The case was remitted to the Federal Magistrates Court to determine whether any respondents refused or unduly delayed entry and to impose appropriate penalties if necessary.