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. Legislation: Workplace Relations Act 1996 (Cth) ss 756, 767, 824 Occupational Health and Safety Act 1989 (ACT) ss 37, 39, 77, 78 Date of hearing: 22 February 2010 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Appellant: P McDonald Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondents: G C McCarthy Solicitor for the Respondents: Macphillamy's IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 33 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: GERARD JOSEPH JOHN HOGAN Appellant AND: MICHAEL RILEY First Respondent WAYNE CLARK Second Respondent BRENDAN BYATT Third Respondent IQON PTY LIMITED Fourth Respondent JUDGES: FINN, LANDER AND JESSUP JJ DATE OF ORDER: 1 APRIL 2010 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made by the Federal Magistrates Court of Australia on 10 July 2009 be set aside. THE COURT DECLARES THAT: 3. On 7 June 2007, Halafihi Kimonu Kivalu and Jason Lawrence O'Mara, authorised representatives for the purposes of Div 5.4 of the Occupational Health and Safety Act 1989 (ACT), were entitled to enter the construction site at the National Convention Centre, Canberra, for the purposes of s 767(3) of the Workplace Relations Act 1996 (Cth). 4. In seeking to exercise their rights of entry to the National Convention Centre site on 7 June 2007, Halafihi Kimonu Kivalu and Jason Lawrence O'Mara did not intentionally hinder or obstruct any person, and did not otherwise act in an improper manner, within the meaning of s 767(1) of the Workplace Relations Act 1996 (Cth). THE COURT FURTHER ORDERS THAT: 5. The proceeding be remitted to the Federal Magistrates Court of Australia for the following purposes: (a) to determine whether any, and if so which, of the respondents refused or unduly delayed entry to the National Convention Centre site of Halafihi Kimonu Kivalu and Jason Lawrence O'Mara, or either of them, on 7 June 2007, in breach of s 767(3) of the Workplace Relations Act 1996 (Cth); (b) consistently with such determination or determinations, to impose such pecuniary penalties, if any, as are thought appropriate pursuant to s 769 of the Workplace Relations Act 1996 (Cth); and (c) to make such incidental orders, including any orders as to costs, that are appropriate in the circumstances. 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 AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 33 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: GERARD JOSEPH JOHN HOGAN Appellant AND: MICHAEL RILEY First Respondent WAYNE CLARK Second Respondent BRENDAN BYATT Third Respondent IQON PTY LIMITED Fourth Respondent JUDGES: FINN, LANDER AND JESSUP JJ DATE: 1 APRIL 2010 PLACE: CANBERRA REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court of Australia (Neville FM) given on 10 July 2009. In that judgment, the Federal Magistrate dismissed an application by the appellant, Gerard Joseph John Hogan, for declarations and penalties with respect to alleged contraventions of s 767(3)(b) of the Workplace Relations Act 1996 (Cth) ("the WR Act"). The gravamen of the contraventions alleged was that the respondents, Michael Riley, Wayne Clark, Brendan Byatt and Iqon Pty Ltd ("Iqon"), had, on 7 June 2007, refused or unduly delayed the entry of permit holders to premises, where those permit holders were entitled to enter pursuant to s 77 of the Occupational Health and Safety Act 1989 (ACT) ("the OHS Act"). Iqon was a building contractor engaged in the refurbishment of the National Convention Centre in Canberra. Mr Riley was the project manager on that job, providing his services to Iqon by way of his own company, Riley Nominees Pty Ltd. Mr Clark was employed by Iqon as general foreman on the Convention Centre project, and Mr Byatt was a director of Iqon. 2 On 30 May 2007, Glen Thornton, a plasterer working on the Convention Centre site in the employ of TOK Pty Ltd, was reprimanded by Mr Riley for his failure to wear his protective helmet during a brief interval in which he was mixing plaster. What the Federal Magistrate described as "a small, brief scrap" involving the two men then took place. In Mr Thornton's evidence in chief, he alleged that Mr Riley had struck him, making contact at about the point of his left ear. After leaving the site (as he was ordered to do by Mr Riley), Mr Thornton reported the altercation to his union, the Construction, Forestry, Mining and Energy Union ("the CFMEU"). On 6 June 2007, Mr Thornton provided details of the incident involving Mr Riley to two organisers of the CFMEU, Halifihi Kivalu and Jason O'Mara. 3 On 7 June 2007, Messrs Kivalu and O'Mara went to the Convention Centre site with a view to making inquiries about the incident which had been reported to them by Mr Thornton. A sub-foreman employed on site, Adam Perry, noticed their arrival, and contacted Mr Riley (who was off-site at the time) by telephone. Mr Riley told Mr Perry that there was no point in the organisers coming onto the site. The Federal Magistrate made no finding as to whether this instruction was passed on to anyone else, or acted upon directly by Mr Perry. 4 At the entrance to the site, the organisers spoke to a worker, seeking directions to the site office. The worker asked them to wait, and rang Mr Clark. A short while later, Mr Clark arrived at the entrance with three others, including Michael O'Neil, a procurement officer employed by Iqon. Mr O'Mara stated that he and Mr Kivalu wished to enter the site. Mr Clark refused to let them do so, stating that his instructions were not to let anyone onto the site without 24 hours' notice. There followed what his Honour described as a "stand-off". Mr O'Neil rang Mr Byatt, who said that the last time Iqon had dealings with the union, 24 hours' notice had been given. Mr Byatt confirmed that, unless such notice were given, the officials should not be permitted to come onto the site. Mr O'Neil passed this instruction onto Mr Clark, who confirmed to the organisers that 24 hours' notice was required for them to enter the site. 5 Mr O'Mara stated that, because there was a "safety breach", 24 hours' notice was not required, and the organisers could enter the site immediately. Mr Clark inquired about the safety breach, and Mr O'Mara replied that there had been "an incident". No further details were provided. Mr Clark said that he knew of no "incident", and confirmed that he was instructed not to let the organisers onto the site without 24 hours' notice. 6 Although not referred to in the reasons of the Federal Magistrate, at trial there seems to have been an evidentiary controversy as to whether Mr O'Neil's phone conversation with Mr Byatt was, as suggested by the version of events outlined above (which is taken from his Honour's reasons) before Mr O'Mara had said that there had been a "safety breach", or after he had done so. In his statement of 7 June 2007, Mr O'Neil placed this telephone call before the statement that there had been a safety breach; whereas, in his statement of 27 June, he said that the organisers had alleged the existence of a safety breach before he telephoned Mr Byatt. We take it that his Honour's recitation of the facts in the way set out above involves an implicit acceptance of the former version. The significance of this is that, at the time he instructed Mr O'Neil not to admit the organisers because they had not given 24 hours' notice, Mr Byatt was not aware that a "safety breach" had been alleged. 7 Returning to the narrative of events at the entrance to the site, it having been confirmed that the organisers were not permitted to enter, Mr O'Mara asked to speak to the project manager. He was advised by Mr Clark that Mr Riley (the project manager) was not there. He sought, and was given, Mr Riley's telephone number. He telephoned Mr Riley. He said that the purpose of his, and Mr Kivalu's, attendance at site was to check up on an alleged safety breach that involved one of the CFMEU members. He told Mr Riley that he was not impressed with the way the organisers had been met at the entrance to the site. Mr Riley confirmed that he was off-site, and said that he would ring Mr O'Mara when he returned to the site. While it is clear that Mr O'Mara made it known to Mr Riley that he and Mr Kivalu were not impressed by having been refused entry to the site, and Mr Riley said nothing by way of countermanding Mr Clark's refusal, it seems equally clear, at least on the findings of the Federal Magistrate, that Mr O'Mara did not expressly ask Mr Riley to authorise the organisers' entry, and Mr Riley did not expressly refuse entry. 8 Following this telephone call, Messrs Kivalu and O'Mara departed, adding (according to Messrs O'Neil and Perry, and seemingly accepted by his Honour) that they would be "coming back later to discuss this issue". 9 The appellant's case below was based on s 77 of the OHS Act. To the extent presently relevant, that section provides as follows: (1) This section applies if an authorised representative of a registered organisation suspects on reasonable grounds that— (a) a contravention of this Act may have happened, may be happening or is likely to happen at premises; and (b) the premises are a workplace where members of the organisation (or people who are eligible to be members of the organisation) work. (2) The authorised representative may enter the premises to investigate the contravention. It was common ground that the CFMEU was a registered organisation within the meaning of s 77(1), and that Messrs Kivalu and O'Mara were authorised representatives thereof. It was also common ground that the Convention Centre site came within the description in para (b) of subs (1). On the appellant's case below, Messrs Kivalu and O'Mara suspected on reasonable grounds that a contravention of the OHS Act may have happened, and they sought to exercise the right given to them under subs (2) to enter the premises to investigate the contravention. 10 The provisions of the OHS Act of which, the appellant alleged, Messrs Kivalu and O'Mara suspected there had been a breach were ss 37 and 39 thereof. They provide as follows: 37 (1) An employer shall take all reasonably practicable steps to protect the health, safety and welfare at work of the employer's employees. (2) Without limiting subsection (1), an employer contravenes that subsection if the employer fails to take all reasonably practicable steps - (a) to provide and maintain a working environment (including plant and systems of work)— (i) that is safe for the employer's employees and without risk to their health; and (ii) that provides adequate facilities for their welfare at work; or (b) in relation to any workplace under the employer's control - (i) to ensure that the workplace is safe for the employees and without risk to their health; and (ii) to provide and maintain a means of access to and egress from the workplace that is safe for the employees and without risk to their health; or (c) to ensure the safety at work of, and the absence of risks at work to the health of, the employees in connection with the use, handling, storage or transport of plant or substances; or (d) to provide to the employees the information, instruction, training and supervision necessary to enable them to perform their work in a manner that is safe and without risk to their health; or (e) to develop and maintain a policy relating to occupational health and safety that— (i) enables effective cooperation between the employer and the employees in promoting and developing measures to ensure the employees' health, safety and welfare at work; and (ii) provides adequate mechanisms for reviewing the effectiveness of those measures; or (f) to bring to the attention of the employees the measures developed as a result of the policy mentioned in subsection (2) (e) to ensure their health, safety and welfare at work; or (g) to take appropriate action to monitor the employees' health and safety at work and the conditions of the workplaces under the employer's control; or (h) to maintain appropriate information and records relating to the employees' health and safety; or (i) to provide appropriate medical and first-aid services for the employees. (3) A policy of the kind referred to in subsection (2) (e) shall be developed and maintained in consultation with— (a) any health and safety committee established in relation to the employer's employees; or (b) if no such committee exists in relation to the employer's employees - those employees or any involved union. (4) In working out whether an employer has taken all reasonable steps to protect the health, safety and welfare at work of the employer's employees, regard may be had to all relevant matters, including for example - (a) whether copies of codes of practice applicable to the workplace are available to employees or whether employees are given information about where copies of the codes may be inspected or obtained; and (b) whether the codes have been complied with. (5) This section does not limit section 45 (Reliance on information supplied or results of research). … 39 (1) A person who has, to any extent, control of— (a) a workplace; or (b) a means of access to, or egress from, a workplace; or (c) plant or a substance at a workplace; shall take all reasonably practicable steps to ensure that it is safe and without risk to health. (2) In working out whether an employer has taken all reasonable steps to ensure that the employer has complied with subsection (1), regard may be had to all relevant matters, including for example - (a) whether copies of codes of practice applicable to the workplace are available to employees or whether employees are given information about where copies of the codes may be inspected or obtained; and (b) whether the codes have been complied with. (3) This section does not limit section 45 (Reliance on information supplied or results of research). In the way the case was conducted before the Federal Magistrate, the organisers' suspicions related to the circumstance that Mr Thornton had been struck by Mr Riley, thereby providing a reasonable basis to suppose that Mr Thornton's employer may have been in breach of s 37, or that Iqon (as the controller of the workplace) may have been in breach of s 39. 11 The proceeding below was not, however, a prosecution for an alleged contravention of the OHS Act. It arose, rather, under the WR Act. The OHS Act was "an OHS law" within the meaning of s 756 of the WR Act. Subsection (1) of that section provided as follows: (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. Messrs Kivalu and O'Mara were officials of an organisation with a right to enter under the OHS Act, and their exercise of that right was, therefore, regulated by this section. Each held a permit as required by para (a); and their attempt to exercise their right of entry on 7 June 2007 occurred during working hours as required by para (b). 12 That brings us to the section of the WR Act under which the appellant proceeded below, s 767. Subsections (1) and (3) thereof provided as follows: (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. … (3) A person must not refuse or unduly delay entry to premises by a permit holder who is entitled to enter the premises: (a) under section 747, subsection 748(8) or (10) or section 760; or (b) under an OHS law in accordance with section 756. The appellant proceeded under subs (3), alleging that the respondents had refused, or unduly delayed, the entry of Messrs Kivalu and O'Mara to the Convention Centre site, being an entry which they were entitled to make under the OHS Act in accordance with s 756 of the WR Act. 13 Although there is a degree of interlocking operation as between the OHS Act and the WR Act, the appellant's case below was a relatively uncomplicated one. Under s 767(3), there were two main questions which arose: were Messrs Kivalu and O'Mara entitled to enter the Convention Centre site, and did the respondents refuse or unduly delay that entry? The first question brought s 77 of the OHS Act into play, under which, so far as we can see, there were again only two controversial questions: did Messrs Kivalu and O'Mara suspect that a contravention of that Act may have happened, and if so, were there reasonable grounds for that suspicion? We regret to observe, however, that there were significant departures from this uncomplicated format in the way the matter was dealt with by the Federal Magistrate. 14 Taking a purposive approach to the provisions of Pt 15 of the WR Act, his Honour held that subss (1) and (3) of s 767 were "mirror provisions". His Honour discerned that Parliament's intention "was and is to focus equal attention on the conduct of permit holders and those whose conduct may impede or obstruct the 'proper conduct' of permit holders." Although not so held in terms, it is apparent that his Honour took the view that a contravention of subs (1) by a permit holder seeking to exercise rights of entry under an OHS law would destroy that permit holder's entitlement to enter for the purposes of subs (3). Such a proposition was not relied upon by the respondents in the proceeding before his Honour. One of the appellant's grounds of appeal was that he had been denied natural justice in the way that his Honour construed the provisions of s 767. 15 With respect to his Honour, we consider that there is substance in this ground. It was submitted before us on behalf of the respondents that, although they did not rely on s 767(1) in terms, they did submit before the Federal Magistrate that the conduct of Messrs Kivalu and O'Mara was unlawful, particularly with respect to their failure to identify the circumstances of the "incident" which they proposed to investigate. We shall come to that issue in a moment, but it differs from, and in no sense undermines the force of, the appellant's natural justice point. That the operation of subs (3) should be conditional upon compliance with subs (1) in the way determined by the Federal Magistrate involves an important and significant question of statutory construction which was not fairly raised, in our view, by the broad submission that the organisers were not acting lawfully in their attempts to enforce their right of entry onto the Convention Centre site. 16 The question, however, is purely one of construction and, having been decided adversely to the appellant by the Federal Magistrate, it is now squarely before us for consideration. So much was accepted by the respondents. 17 In our view, the Federal Magistrate was in error to hold that the operation of subs (3) of s 767 was conditional upon the relevant permit holder complying with subs (1). Subsection (3) takes as its starting point the existence of an entitlement to enter arising under an OHS law. The provisions of s 767 appear to be drawn carefully so as not to interfere with, or to qualify, that entitlement. They regulate the behaviour of those who would seek to exercise that entitlement, and of those whose co‑operation is necessary to render it effective. While we do not agree with the Federal Magistrate that the two subsections are to be regarded as "mirror provisions", we agree with his Honour that they deal with the conduct both of permit holders and of those who may be in a position to impede or obstruct entry to premises. The two subsections do, however, establish free-standing norms of conduct, the operation of neither being dependent upon compliance (by the person who would presumptively benefit) with the other. 18 We would, therefore, allow the appeal because the Federal Magistrate was in error to have regarded the operation of subs (3) of s 767 as contingent upon the permit holder in question not contravening subs (1). However, we also consider that his Honour was in error to have held that Messrs Kivalu and O'Mara were contravening subs (1) when they sought to enter the Convention Centre site on 30 May 2007. We take this view for two reasons. First, his Honour ought not to have made a finding of contravention under subs (1) in the absence of any submission to that effect on behalf of the respondents. It is a serious matter to conclude that a person has contravened a penal provision in legislation, and, although there may be occasions when such a course is appropriate in proceedings other than for contravention of the provision itself, this should not be done unless the matter has been squarely raised on the submissions of the parties. 19 Our second reason for considering that the Federal Magistrate was in error to have found that Messrs Kivalu and O'Mara were in breach of s 767(1) is based upon the facts of the case before him. His Honour expressed his conclusions as follows – … In failing to provide the most basic information of the alleged OHS breach to any person on site (as opposed to whatever was the substance of the discussion via mobile phone with Mr Riley), in my view they intentionally hindered or obstructed those on the site in dealing appropriately with the situation with which they were confronted. Their actions clearly disrupted, albeit perhaps only slightly, work on site. Likewise, in my view, on the facts and in the circumstances of this matter the failure to provide the most basic particulars of the alleged breach to those on the site on that June 2007 morning resulted in the union officials 'otherwise acting in an improper manner', contrary to s.767(1) of the WR Act. In our view, the Federal Magistrate erred in reaching these conclusions. 20 After the passage set out in the previous paragraph, the reasons of the Federal Magistrate do not elaborate upon his Honour's conclusion that Messrs Kivalu and O'Mara "intentionally hindered or obstructed those on the site in dealing appropriately with the situation with which they were confronted". His Honour gave substantial attention to the connotation of the word "improper" in s 767(1), but, so far as we read his reasons, he did not return to the matter of intentional hindrance or obstruction. By contrast, his Honour said that there was "no suggestion, nor could there be, that the actions of the union officials here involve any hint of criminality, bad faith or contumelious conduct". Further, his Honour observed that "the actions of the union officials were, in large measure, a triumph of well‑intentioned but mis-guided bluster, aided by a certain level of ignorance over common‑sense". His Honour considered a number of court judgments, and of decisions of the Australian Industrial Relations Commission, which dealt with the meaning of the word "improper" in various contexts. Ultimately, his Honour expressed the following conclusion in this regard: In my view, the failure to provide relevant details of the alleged 'safety breach' was "unsuitable or inappropriate … for the purpose or occasion", and was "not in accordance with the nature of the case or the purpose in view [of the legislation]." It was also "inappropriate [and] ill‑adapted" to the circumstances with which the union officials were confronted, but which they had caused. In my view, the union officials' conduct in seeking to enter the National Convention Centre site on the morning of 7th June 2007 but not provide any details to any of the respondents other than to say that there had been 'an OHS [or safety] breach', transgressed the simple, albeit broad proscription in s.767(1) not to act "in an improper manner." Had those basic details been provided, there is a reasonable – albeit perhaps only hopeful – chance that this litigation would have been unnecessary. 21 In the facts as laid out by the Federal Magistrate, and summarised earlier in these reasons, there is nothing to sustain the conclusion that the organisers hindered or obstructed any person (whether intentionally or otherwise) or acted in an improper manner. Although, as we have noted, his Honour gave some attention to circumstances which had, in other decided cases, been held to involve impropriety, including judgments in which various synonyms of "improper" were offered, we do not consider that the above facts gave rise to any need to test the outer reaches of the meaning of the word. On no understanding of what might constitute acting in an improper manner could the conduct of the organisers on 7 June 2007 be so characterised. 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. Section 78 thereof is as follows: (1) This section applies to an authorised representative who is authorised to enter premises under this division. (2) The authorised representative may enter the premises without notice. (3) The authorised representative must tell the occupier of the premises that the representative is on the premises as soon as reasonably practicable after entering the premises. (4) However, the authorised representative need not tell the occupier of the premises that the representative is on the premises if— (a) to do so would defeat the purpose for which the premises were entered; or (b) the occupier had been told in writing when the representative would enter the premises. 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. 23 For the above reasons, we take the view that the Federal Magistrate was in error to have held that the organisers in the present case contravened s 767(1) of the WR Act when they sought to exercise their right of entry to the Convention Centre site on 7 June 2007. 24 Because of the way that his Honour brought subs (1) of s 767 of the WR Act into play, the Federal Magistrate expressed the view that "it might be considered unnecessary to consider s 767(3)". His Honour did, however, proceed to express certain views as to that subsection. His Honour concluded that Messrs Kivalu and O'Mara were not entitled to enter the Convention Centre site under s 77 of the OHS Act. His Honour identified two questions which arose under s 77, as follows: They are: (a) whether the union officials had a genuine suspicion about a possible safety breach at the time following their discussion with Mr Thornton and leading up to the attendance at the site on 7th June, or whether they were simply intending, at the time, to look into and to confirm the existence of the facts as asserted by Mr Thornton; and (b) if the union officials genuinely held a suspicion, was it of a kind that a reasonable person in the circumstances would have held? Although his Honour noted it was not necessary for him to make a determination as to the matter of "reasonable suspicion", he went on to give the following reasons: However, were I pressed to do so, in my view, a reasonable person would be liable to regard Mr O'Mara and Mr Kivalu as having embarked upon more of a "fact-finding mission", to 'look into the possibility and circumstances of the existence' of the facts as alleged by Mr Thornton. That being the case, in my view, a reasonable person, in the circumstances of this case, would not have formed or had a reasonable suspicion of the kind required by the OHS Act. In the circumstances of this case, such a person would more likely than not consider the actions of Mr O'Mara and Mr Kivalu as doing little more than "checking out" the site and speaking with Mr Riley to get his version of events. In this passage, it is not clear whether his Honour was addressing question (a) as identified in the earlier passage or question (b) therein. With respect, his Honour appears to conflate the existence of a suspicion in the minds of the organisers with how the reasonable bystander would view the grounds which, objectively, sustained any such suspicion; and he also draws in considerations which do not obviously relate to either, but which deal more with the purpose for which the organisers sought to enter the premises, being the subject of subs (2) of s 77 of the OHS Act. However these reservations may be, the fact is that the Federal Magistrate reached the conclusion that there were no grounds "for establishing that a reasonable suspicion was held at the time by the union officials". 25 There is a fundamental difficulty with this conclusion, and with the process by which the Federal Magistrate reached it. It seems that his Honour did so as a result of final submissions made on behalf of the respondents in the proceeding before him. But his Honour did not refer to the following passage in Mr Kivalu's affidavit: After receiving this information I held a reasonable suspicion that a breach of the Project Manager's duties to his workers under the O H and S Act had occurred at the site. In particular, I had the suspicion because Thornton had told me of a fight on the sight [sic] between himself, a worker, and the Project Manager at site. Neither did his Honour refer to the following passage in Mr O'Mara's affidavit: After having this discussion with Thornton and after reading Thornton's statement, I held a reasonable suspicion that a breach of sections 37 and/or 39 of the O H & S Act had occurred at the site. Employers (and their representatives) and those who control a workplace (and their representatives) have obligations under the O H & S Act to provide a safe workplace. This obligation includes providing a workplace free of bullying, assault and/or violence. As confirmed by counsel for the respondents during the hearing of the appeal, neither Mr Kivalu nor Mr O'Mara was cross-examined on the passages in their affidavits referred to above. It was put to neither that he did not have the suspicion to which he had sworn, and it was put to neither that the grounds by reference to which he had claimed to have reached his suspicion were not reasonable ones. 26 In these circumstances, it was not, in our respectful view, open to the Federal Magistrate to reject the evidence of Messrs Kivalu and O'Mara. We recognise, of course, that the existence or absence of reasonable grounds is an objective fact, rather than one which must necessarily be established, one way or the other, on the evidence given directly by the person who claims to have the grounds. Nonetheless, for an authorised representative to exercise the statutory powers given by s 77 of the OHS Act is a serious matter, and it is the representative himself or herself who, in the first instance at least, is implicitly charged with giving conscientious consideration to the question whether the grounds, as they appear at the relevant time, are such as would warrant the holding of the suspicion referred to. To have concluded, as invited to do so by counsel for the respondents, that reasonable grounds for such a suspicion were not present on the facts in the present case without having given the union organisers the opportunity to justify the position which they took was, in our view, a course which the Federal Magistrate was not entitled to take. 27 Because of the way the Federal Magistrate approached the case before him, what was probably the most important question was never reached: whether any of the respondents refused or unduly delayed the entry of Messrs Kivalu and O'Mara to the Convention Centre site on 7 June 2007. It seems relatively uncontroversial that they were refused entry to the site, but it is not clear that each of the respondents should be regarded as having participated in that refusal. The evidence before his Honour indicates that this question may be quite problematic in the case of Messrs Riley and Byatt. Because of the parties' focus, in their submissions on appeal, upon the way in which the Federal Magistrate had dealt with the case, the question of the liability of the individual respondents was not sufficiently explored before us. 28 At the conclusion of the hearing of the appeal, we indicated that, should we be minded to uphold the appeal, the matter of penalties would have to be returned to the Federal Magistrate for consideration. Upon reflection, for the reasons given in the previous paragraph, we take the view that the issue of the primary liability under s 767(3) must also be returned to his Honour. We do not propose, however, that the proceeding as a whole should be re-opened. We shall allow the appeal, and make declarations giving effect to the reasons set out above. In the limited respects to which we have referred, the proceeding will be remitted to the Federal Magistrate pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth). 29 Because of the way in which we have dealt with the substantive issues raised on appeal, it will not be necessary to give separate attention to the order made below that the appellant pay the respondents' costs. We note, however, that this order too was the subject of appeal, on the ground that the Federal Magistrate did not refer to s 824 of the WR Act, and made no finding to the effect that the proceeding had been instituted vexatiously or without reasonable cause. A finding to that effect was a jurisdictional precondition to the making of a costs order. We were not addressed as to how this apparent oversight on the part of his Honour came about, nor as to whether he was addressed on the applicability of s 824 at any stage, but we make these brief observations in the hope that, if the question of costs again becomes relevant before his Honour, the course marked out by the section might be duly followed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Lander and Jessup. Associate: Dated: 1 April 2010