Setka v Gregor (No 2) [2011] FCAFC 90

FEDERAL COURT OF AUSTRALIA

Setka v Gregor (No 2) [2011] FCAFC 90 Citation: Setka v Gregor (No 2) [2011] FCAFC 90

Appeal from: Gregor v Setka [2010] FMCA 690

Parties: JOHN SETKA v MURRAY GREGOR

File number: VID 10 of 2011

Judges: LANDER, TRACEY & YATES JJ

Date of judgment: 28 July 2011

Catchwords: INDUSTRIAL LAW – right of union official to enter work site – arises under occupational health and safety legislation –limited in operation by s 767 Workplace Relations Act – contravention of s 767 - whether respondent acted in an "improper manner" - construction of s 767 - whether "improper" conduct requires intent - whether penalty imposed was manifestly excessive EVIDENCE – s 140 of Evidence Act – whether evidence supported inference that appellant was exercising or seeking to exercise rights under Workplace Relations Act

Legislation: Acts Interpretation Act 1901 (Cth) ss 13, 15AB Building and Construction Industry Improvement Act 2005 (Cth) Crimes Act 1914 (Cth) s 4AA Evidence Act 1995 (Cth) s 140 Occupational Health and Safety Act 2004 (Vic) ss 81, 87, 88, 89 Workplace Relations Act 1996 (Cth) ss 756, 760, 767, 769

Cases cited: AB v The Queen (1999) 198 CLR 111 applied Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 referred to Briginshaw v Briginshaw (1938) 60 CLR 336 referred to Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 discussed Darlaston v Parker (2010) 189 FCR 1 discussed Hogan v Riley (2010 182 FCR 583 cited Markarian v The Queen (2005) 228 CLR 357 applied Pine v Doyle (2005) 141 IR 98 cited