Hogan v Riley [2010] FCAFC 30

FEDERAL COURT OF AUSTRALIA

Hogan v Riley [2010] FCAFC 30 Citation: Hogan v Riley [2010] FCAFC 30

Appeal from: Hogan v Riley [2009] FMCA 269

Parties: GERARD JOSEPH JOHN HOGAN v MICHAEL RILEY, WAYNE CLARK, BRENDAN BYATT and IQON PTY LIMITED

File number: ACD 33 of 2009

Judges: FINN, LANDER AND JESSUP JJ

Date of judgment: 1 April 2010

Catchwords: MAGISTRATES – Case decided by reference to constructional point not raised by parties – Whether permissible course. MAGISTRATES – Finding of fact that union organiser did not have reasonable grounds to suspect breach of occupational health and safety law – Organiser had sworn as to existence of reasonable grounds and not cross-examined on that testimony – Whether finding open in the circumstances. INDUSTRIAL LAW – Territory occupational health and safety law giving union representative right to enter premises on reasonable suspicion of breach of law – Federal legislation regulating exercise of that right – Obligation on representative not intentionally to hinder or obstruct any person, or otherwise act in an improper manner – Prohibition on any person refusing or unduly delaying entry to premises by representative – Whether operation of prohibition dependant on representative complying with obligation not to hinder etc. INDUSTRIAL LAW – Territory occupational health and safety law giving union representative right to enter premises on reasonable suspicion of breach of law – Federal legislation regulating exercise of that right – Obligation on representative not intentionally to hinder or obstruct any person, or otherwise act in an improper manner – Representatives seeking to exercise right of entry by stating only that there had been a "safety breach" and an "incident" – Whether refusal to state more amounted to hindering or obstructing any person or acting in improper manner.