Curran v Thomas Borthwick & Sons Ltd

documents for the purpose of ensuring observance of the Journalists (Metropolitan Daily Newspapers) Award 1991. Attached hereto and marked "DW1" is a true copy of that authorisation. 3. At 3.04pm on that same day, both myself and Donna Smith approached the security desk at the premises of Advertiser Newspapers Limited at 121 King William Street, Adelaide and the following conversation occurred between myself and a security guard: WORTLEY: "I am Dana Wortley, Acting Branch Secretary and Industrial Officer for the Media Entertainment and Arts Alliance. May I have your name please?" SECURITY GUARD: "Willy." WORTLEY: "Your full name?" SECURITY GUARD: "Why?" WORTLEY: "I have a written authorisation from the Federal Secretary of the Media, Entertainment and Arts Alliance to enter the premises and inspect certain documents for the purpose of ensuring the observance of the Journalists Metropolitan Daily Newspapers Award." SECURITY GUARD: "I'll ring Bob Gallagher." 4. While the person who identified himself as Willy was dialling a telephone number, I said "I would like you to contact Peter Wylie, Peter Blunden, Bill Oliver or John Sanders. I am not here for a house committee meeting." I said this because Bob Gallagher is known to me as the building and services manager and the person that the security desk is to inform whenever I enter the premises for house committee meetings or membership meetings. The person identified as Willy continued dialling the number and said to me words to the following effect: "I have a note here that says whenever you come I have to call Bob Gallagher." 5. The person who identified himself as Willy then said into the telephone: "Dana Wortley is here." 6. I then said, while the person who identified himself as Willy was still on the telephone: "I would like to see Wylie, Blunden, Sanders, or Bill Oliver." 7. The person who identified himself as Willy then put the telephone down. 8. Immediately after putting down the telephone, a conversation took place between myself and the person who identified himself as Willy in words to the following effect: WILLY: "I thought you said you didn't want to go up." WORTLEY: "That is not what I said." WILLY: "He will be down in a minute." WORTLEY: "I repeat I have a written authorisation from the Federal Secretary of the Media, Entertainment and Arts Alliance to enter the premises and inspect certain documents for the purposes of ensuring the observance of the Journalists Metropolitan Daily Newspapers Award. I would like you to inform the Editor, Wylie, John Sanders or personnel." As Willy did not respond to this statement of mine. I repeated: "I said I would like you to inform Wylie, Sanders, the editors or Bill Oliver." WILLY: "All right I'll call Bill Oliver." 9. The person who identified himself as Willy then picked up the telephone and dialled. He said words to the following effect into the telephone: "It's security here. Is Mr Oliver there? Can you tell him that Dana Wortley would like to see him." 10. Soon after this conversation Bob Gallagher arrived at the security desk and a conversation took place between myself and him in words to the following effect: GALLAGHER: "What do you want Dana?" WORTLEY: "I am Dana Wortley, Acting Branch Secretary and Industrial Officer for the Media Entertainment and Arts Alliance. May I have your name please?" GALLAGHER: "You know my name is Bob Gallagher. Peter Wylie's in a meeting. I've told him you're here." WORTLEY: "Have you told Peter Blunden and John Sanders?" GALLAGHER: "They're all in a meeting." WORTLEY: "Did you let them know?" GALLAGHER: "They've been informed. They might see you after 3.30pm." WORTLEY: "I am informing you and would like you to inform them that I have a written authorisation from the Federal Secretary of the Media, Entertainment and Arts Alliance to enter the premises and inspect certain documents for the purposes of ensuring the observance of the Journalists Metropolitan Daily Newspapers Award. I wish to inspect all of the documents set out in the authorisation. I understand from advice given by News Ltd that the contracts referred to in the authorisation include some element of packaging. If this were the case it would be a breach of the award and I wish to inspect the documents set out in the authority to ensure the award is being observed." GALLAGHER: "I don't care what you have in your hand." WORTLEY: "Here is a copy of the authority." 11. Bob Gallagher took the copy of the authority that I gave him and the conversation between myself and him continued in words to the following effect: WORTLEY: "Are the documents available in the building?" GALLAGHER: "I don't know." WORTLEY: "May I see the documents?" GALLAGHER: "I don't know where they are?" WORTLEY: "Are the documents in the building?" GALLAGHER: "I said I don't know." WORTLEY: "I repeat I have a written authorisation from the Federal Secretary of the Media, Entertainment and Arts Alliance to enter the premises and inspect certain documents for the purposes of ensuring the observance of the Journalists Metropolitan Daily Newspapers Award. I wish to inspect all of the documents set out in the authorisation. I understand from advice given by News Ltd that the contracts referred to in the authorisation include some element of packaging. If this were the case it would be in breach of the award and I wish to inspect the documents set out in the authority to ensure the award is being observed. You now have a copy of it." GALLAGHER: "I don't care. You're not going up." WORTLEY: "Are you refusing me entry to inspect these documents?" GALLAGHER: "You know you can't just go up." WORTLEY: "Are you refusing me entry?" GALLAGHER: "No. I didn't say that. You can stay in the public area there for as long as you want." As he said this he pointed to the entrance. WORTLEY: "Can I come up into the building and inspect the documents?" As I said this I pointed to the lift area. 12. I then moved to walk past him an (sic) to go to the lifts, however, Mr Gallagher stood in the way and I was unable to proceed to the lefts. 13. Mr Gallagher while continuing to stand in my way said: "Where do you think they are?" I understood "they" to be a reference to the documents and I replied: "They were in the editor's office last time I saw them. I would like to inspect them wherever they are. If they are not here, where are they?" 14. Mr Gallagher then replied to me in words to the following effect: "He's in a meeting. I can't let you go up. You can make an appointment." 15. I replied: "Am I allowed to go and inspect the documents?" 16. As Mr Gallagher did not respond to my question and continued to stand in my way, I again asked: "Are you preventing me from going into this building for the purposes of inspecting the documents to ensure observance of the Award?" 17. Mr Gallagher replied: "You are not allowed in this building." 18. As a result of Mr Gallagher informing me that I was not allowed in the building, at 3.22 pm Ms Smith and I turned and walked out of the building." During cross-examination she agreed there existed a security system limiting access to the building. To enter, it was necessary to have either a visitor's pass or security pass. She accepted that a visitor had to talk to the person at a security desk in the foyer of the building who might phone ahead to the person being visited. However this did not always occur. On occasions a visitor would be signed in and then proceed into the building and, on other occasions, a visitor would enter the building in the company of a person who came down to accompany them into the building. Wortley acknowledged that a short time before the day in question she had been in the building attending a house committee meeting of members of the Union employed by the company. She was cross examined about the events of 21 December 1994 and some of the detail of what occurred did not accord precisely with the account in her affidavit. She made a concession of sorts that her recollection of what occurred twenty months previously was not entirely clear. She also said the affidavit, sworn a little over a month after the incident, was prepared from notes she made immediately after the incident. It is probable that the account in her affidavit is a more accurate account of what occurred at the Company's premises than the evidence given orally, as the affidavit was prepared shortly after the incident and by reference to notes taken at the time. There were, however, some matters she gave oral evidence about that were not dealt with in the affidavit. The first was that on leaving the building she used a mobile phone to ring Ms Shauna Witkin who is a member of the house committee. Witkin informed Wortley that Mr Peter Blunden, the editor of the Adelaide Advertiser and one of the people Wortley had asked to see, was not in a meeting as she had been told by Galligan. Wortley then formed "the distinct impression she was not going to get into there". That fact and her feeling of discomfort at having waited in the foyer as members and "non Union contract people" passed, were the reasons she gave for not returning to the foyer and waiting a further period to see if she might be admitted to meet the people she had nominated. Wortley's evidence concerning "non Union contract people" was a reference to employees who had, she believed, recently signed written employment contracts with the company and had resigned from the Union. She rejected the suggestion put to her in cross-examination that she went to the Company's premises with an expectation of meeting resistance, leaving as soon as she thought she had enough material to bring these proceedings and then ringing Warren as part of a pre-arranged plan. She was thus rejecting the suggestion that the incident was not a bona fide attempt to obtain entry to inspect documents but rather a charade to provide a factual foundation for the prosecution of the Company. She had earlier said that the documents she wishes to inspect were the individual contracts, time books, the rosters and documents relating to wages. The actual authority she was relying on to obtain entry was in the following terms: "The Proper Officer Advertiser Newspapers Ltd 121 King William Street ADELAIDE SA 5000 Authority pursuant to section 286 of the Industrial Relations Act, 1988 I, Christopher Warren, Joint Federal Secretary of the Media, Entertainment and Arts Alliance authorise Dana Wortley, industrial officer and acting Branch Secretary of the South Australia Branch of the Media, Entertainment and Arts Alliance, pursuant to section 286 of the Industrial Relations Act 1988, to enter the premises of Advertiser Newspapers Ltd at 121 King William Street Adelaide to inspect the following documents for the purpose of ensuring observance of the Journalists (Metropolitan Daily Newspapers) Award: 1. Any documents relating to individual contracts of employment entered into with the following employees: Rae Atkey, Barry Hailstone, Russell Millard, Anthony Reed, Ray Titus, Sean Whittington, Michael Duffy, William Knevitt, David Schaefer, John Marr, Michael Whitesman, Karen Porter, Grant Edwards, Andrew Williams, Barry O'Brien, Kevin Bull, Christopher Mangan, Richard Mitchell, Leo Schlink, Jeff Turner, Ian Daebler, David Gleeson, Jackie Tracy, Mark Robinson, Wayne Thomas, Michelle Weidenhofer, Leon Mead, Carol Ashdown, Michael Marschall. 2. The actual individual contracts of employment for those employees listed in point 1. 3. Time sheets for the above mentioned employees since October 1, 1994. 4. Current rosters for all employees. Yours faithfully, (signed) Christopher Warren Joint Federal Secretary" Her explanation for wanting to see the documents was: "Yes?---With the contracts, first of all I wanted to see if there was such a thing as (annualized) salaries packaging going on which I understood which if it was, they would be in breach of the award. With the time sheets, we were looking at shifts and like to look at the shifts and compare those - also with the current rosters, there was an understanding that people had - I mean that was for overtime as well and shifts as well. But also there was an understanding that some people that had taken contracts had also been given assurances that, you know, there would be no weekend work and that sort of thing and we wanted to look at all of those areas. They sound like serious issues. Were they regarded as serious issues by you?---The issues at the time and in some cases to continue to be of the employment conditions of people on contract who were still out members were serious issues to our members at News Limited at the newspaper and that was the house committee and the members there." I have already referred to her explanation for not returning to the premises that day. Her explanation for not returning on a subsequent day appeared to be that a process had been put in train to obtain the contracts "and to look at whether the award was actually being breached" in proceedings in the Australian Industrial Relations Commission. One matter of detail raised in cross-examination was that she could not recall Galligan, after talking to her, leaving her and going to the lifts. She did not accept that he did so and returned, apparently having gone up into the building, and said "Peter Wylie will see you at 3.30 pm." However the way the question was framed and the answer given, it is not clear whether she was simply not accepting the words put to her as having been spoken by Galligan or not accepting the whole incident of departure, return and conversation. The account given by Galligan differed from that of Wortley in several respects. Again it is convenient to set out his evidence in chief contained in his affidavit as much of it records conversation: "5. At or about 3.10 pm on 21 December 1994, I received a telephone call from Willy Walker who was at the time attending the security desk in the ground floor reception area of the building. 6. Willy Walker told me that Dana Wortley and Donna Smith were at the front desk so I told him that I would come down. 7. Dana Wortley had come to the building several days prior to this and had held a Union meeting on the 12th floor without any prior notification. Accordingly, staff on the front desk had been directed to call either myself, John Wilson or Bill Oliver if Dana Wortley came to the building. 8. I went downstairs to the security desk and had a conversation with Dana Wortley to the following effect: Me: "Hello Dana, what are you doing here?" Dana Wortley commenced reading from a piece of paper. I did not listen closely. However to the best of my recollection she said words to the following effect. Dana Wortley: "I have the legal right to enter the building and search for contracts." I took this to mean the journalist's contracts which had recently been the topic of conversation. Dana Wortley handed me two copies of the document that she read from. I did not read the documents. The conversation continued to the following effect: Me: "Who do you want to see?" Dana Wortley: "Where are the contracts? I want to see either Peter Wylie, Bill Oliver or Peter Blunden." Me: "What contracts" Dana Wortley: "The journalists contracts." Me: "Hang on a minute I'll see if I can make an appointment for you." Dana Wortley: "Are you refusing me entry?" Me: "No, no one can enter without an appointment. I will try and get you an appointment. Where are the contracts supposed to be." Dana Wortley: "They were in Blundens, Wylie or Bill Oliver's office." 9. I went up to the 3rd floor to Mr Wylie's office. Mr Wylie was in a meeting with Mr Oliver who is in charge of personnel. I gave him the documents which Dana Wortley had given to me. We had a conversation. ... 10. I came back downstairs and continued the conversation with Dana Wortley to the following effect: Me: "Peter Wylie will see you at 3.30 pm." Dana Wortley: "I take it you are refusing me entry to the building. What if I walk straight past you?" Me: "No you can't do that." I stood in front of her. Dana Wortley: "I take this as a refusal to the building." Me: "No I'm not refusing you entry to the building, sit down and wait. Peter Wylie will see you at 3.30pm or you can make an appointment." 11. She then turned and left the building. It was approximately 3.25 pm at this stage." This evidence was supplemented by oral evidence in chief. Galligan swore his affidavit on 22 August 1996, some twenty months after the events of 21 December 1994. He was unable to recall when, before 22 August 1996, he turned his mind to the events of 21 December 1994. He made no notes at the time. Galligan said he had a reasonably good recollection of those events. I did not gain the impression that he was deliberately giving a false account of what occurred though he did not impress me as having a clear recollection of the events of the day. It is probable that his capacity to recall with any precision what occurred, and all the more so what was said, a year and a half after the event was limited when he gave evidence. To the extent that his evidence as to what occurred on 21 December 1994 conflicts with the account of Wortley, I prefer the evidence of Wortley. I am satisfied, beyond reasonable doubt, that the events of that day at the Company's premises occurred as she described them in her affidavit. Galligan's evidence touched other matters as well. He said in chief that the usual procedure was that a visitor must attend the security desk and provide their name, the name of the person they wished to see and where they are from. They are issued with a visitor's pass before they can proceed to the lifts which are beyond the security desk in the foyer. Employees, on the other hand, have an identification pass to obtain entry. In cross-examination, he said the usual procedure was that a visitor is signed in by the person the visitor is proposing to meet or, perhaps, on behalf of that person if they are in a senior management position. He also said that a special procedure had been adopted in relation to Wortley because she had attended a meeting of Union members and had done so without prior notification to the management of the company. Warren also gave evidence. He detailed events in the month or so preceding the attendance of Wortley at the Company's premises on 21 December 1994. The Company had, in late 1994, entered written employment contracts with a number of journalists and other employees who were then employed by it. Between 25 October and 15 November 1994 at least 28 employees of the Company wrote a letter of resignation to the Union. The Award only applied to members of the Union. On 10 November 1994, Warren attended a meeting with, inter alia, Ms Sandra McDiarmid who was, as he described her, "Employee Development Manager of the News Group of which the Advertiser is a component company". At that meeting an industrial officer from the Australian Council of Trade Unions asked if the contracts provided award conditions to which McDiarmid replied: "I am not aware ... I understand that there is an element of packaging up." Warren said he became concerned that the contracts might be in breach of the Award and thus requested to inspect the individual contracts. A further meeting took place on 15 November 1994 again attended by, inter alia, McDiarmid. At that meeting the following conversation took place: "WARREN: "I want to inspect all documents relating the contracts of employment of employees who have signed individual contracts with you for the purposes of ensuring the observance of the award." McDIARMID: "I'll need to seek some legal advice on that." WARREN: "Well, I would like to see them before 5.00 pm. I will be on the premises or at the coffee shop over the road. My mobile number is 018-649-789." McDIARMID: "O.K."" He received no response. He caused a letter to be sent on 15 November 1995 to Mr Peter Wylie, Managing Director of the Company, asking to be provided with "documents concerning the contracts of employment of 29 named employees". On 29 November 1994 proceedings were commenced in the Court which were dismissed by me on 21 December 1994: see (1995) 59 IR 23. They were dismissed on the basis that a request to see documents made on 15 November 1994 could not have constituted a breach of s306 because there had not existed, at that time, an authority of the type referred to in s286(1). Warren was cross-examined about events on 21 December 1994 and the purpose of the inspection. He issued two authorities on 21 December 1994 after judgment was given in the earlier matter. One was to Wortley, the other to Smith. Warren could not recall whether he spoke to Wortley by phone, instructed her to act on the authority or faxed the authorities to her. He also could not recall the circumstances in which the appointment was made with the District Registrar to lay the information. The terms of the information on the Court file reveal that it was laid at 4.30pm Eastern Australian time on 21 December 1994. Both the name of the Registrar and the time and date are typed on the information in the same type as the remainder of the information. It was put to Warren that the appointment to see the District Registrar was made before Wortley or Smith attended the company's offices in Adelaide at 3.04 and 3.22 pm. It is to be remembered that 3.04 pm and 3.22 pm Central Australian time are 3.34 and 3.52 pm Eastern Australian time respectively. Warren could not say whether the appointment was made before or after the visit. Warren did not accept that the visit was to lay the foundation for a prosecution and denied that neither he nor Wortley were genuinely seeking to inspect the documents. He said that there was an urgency in trying to inspect the documents because members of the Union were engaged in industrial action at the time. He said there was no further attempt to inspect the documents because the industrial action stopped between Christmas and New Year and the Union sought to subpoena the documents in other proceedings, namely proceedings before Munro J in the Australian Industrial Relations Commission. I have already indicated I accept Wortley's account of what happened on 21 December 1994. Galligan gave evidence of speaking to Wortley, leaving the foyer, going up into the building, speaking to someone and returning. While what may be a denial by Wortley that this happened is ambiguously worded, her evidence as a whole is at odds that this having occurred. I am satisfied it did not. However I accept Gilligan's evidence that a special instruction had issued concerning the admission of Wortley to the building and it arose from her entry a few days earlier to attend a meeting of Union members without prior notification to the management of the Company. The terms of the information are set out earlier in the judgment. During the hearing, counsel for the Union applied to amend the application by adding the words "and refusing access to the building" after the word "documents" on the fourth line. An issue arose as to whether that amendment should be allowed, and it was accepted that this issue might be resolved during the determination of the matter in its entirety. It may be accepted that s286 creates three rights, namely the right to enter, to inspect and to interview: see Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 at 254. It may, for present purposes, be assumed that s306 creates three offences namely, hindering or obstructing a person in exercising each of these rights. If so, an information alleging that there was a hindering or obstructing of the exercise of those rights may be duplicitous and, at common law, the prosecutor may have to elect: see Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 at 219. However it is unnecessary to consider further these issues. Section 4K(3) of the Crimes Act 1914 (Cth) provides: "Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character." Thus if the amendment is allowed the matter may proceed even if two offences are alleged in the information: see Kelly v Construction, Forestry, Mining and Energy Union (1994) 125 ALR 109 at 119. Section 15C of the Crimes Act 1914 (Cth) provides: "15C. (1) At the hearing of any indictment, information or summons, the court may make such amendment in the indictment, information or summons as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined. (2) If in any such case the court considers that the defendant has been misled by the form in which the indictment, information or summons has been made out, it may adjourn the hearing of the case for such period as it thinks fit and may make such order as to the costs of the adjournment as it thinks proper. (3) The power of the court under sub-section (1) shall not be exercised in cases where the court considers that the required amendments cannot be made without injustice to the defendant." The purpose of the section is to enable a matter to be dealt with so that the substance of the alleged offence is considered. The desirability of that being done is obvious though plainly the Court must guard against any unfairness to a defendant that might arise if an amendment was allowed. In these proceedings there is none. I allow the amendment. Having regard to the submissions made on behalf of the Company and the Union, four principal issues arise in the proceedings. Firstly, whether there was a hindrance or obstruction concerning the inspection of the documents. Secondly, whether the failure to permit Wortley and Smith to enter the building for the period between 3.04 and 3.22 pm was a hindrance or an obstruction of their right to enter. Thirdly, whether the prosecutor has proved that documents of the type sought to be inspected were on the premises. Fourthly, whether the purpose of the asserted right to enter and inspect was to ensure the observance of the Award. Of these, there are, in my opinion, two critical issues. The first is whether there was, by the action of the guard and Galligan in delaying the entry of Smith and Wortley, a hindrance or obstruction. The second is whether the entry was sought for the purpose contended by the Union both at the time and in these proceedings. What constitutes hindrance or obstruction in the context of s286 was considered by Gray J in two cases, namely Australian Federation of Air Pilots v Australian Airlines Limited (1991) 28 FCR 360 and Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (1991) 28 FCR 379 and by a Full Court on appeal in relation to the second decided by Gray J: see (1991) 30 FCR 183. Beaumont J gave the leading judgment of the Full Court. Beaumont J viewed the operation of ss286(1) and 306 as not materially different to the operation of s263 of the Income Tax Assessment Act 1936 considered by the High Court in O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1. It is plain that whether there has been conduct constituting obstructing or hindering is a question of fact in the particular case: see O'Reilly at 49-50 per Mason, Murphy Brennan and Deane JJ. In the present case, Wortley and Smith arrived without prior warning. The security system the Company had in place was unexceptionable having regard to the nature of the Company's business. Thus, the fact that some delay might occur would not, of itself, establish a hinderance or obstruction of the exercise of a power to enter the premises. It is to be recalled that the reason the guard called Galligan was that certain officers of the Company was concerned about the consequences of admitting Wortley into the building having regard to her having entered several days earlier and attended a meeting, without notice, of the house committee. I am satisfied there was a genuine and reasonable concern about the entry of Wortley. That being so, then some further delay in Wortley gaining entry arising from the procedures that had been put in place to ensure that she did not readily enter the buildings would not establish, in my opinion, that there had been hindering or obstructing. As Beaumont J said in Ansett Transport Industries (1991) 30 FCA 183 (supra) at 190: "In order to constitute the offence, the court must be satisfied, beyond reasonable doubt, of the requisite overt act and of the requisite mental element: see Leonard v Morris (1975) 10 SASR 528 at 530-531, per Bray CJ. And as the majority of the High Court said in O'Reilly, whether the offence has been committed is really a question of fact." It is instructive to set out also a passage from the judgment of Bray CJ in Leonard v Morris (1975) 10 SASR 528 referred to with approval by Beaumont J. Bray CJ was considering the mental element in the offence of hindering a member of the police force in the execution of his duties. Bray CJ said: "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 know 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." In my opinion, the conduct of Galligan did involve an intentional hindering and obstructing, at least from the point in the conversation when he took the copy of the authority, had a discussion about the whereabouts of the documents, was reminded of the terms of the authority and said: "I don't care. You're not going up." At that point, Galligan was moving beyond enforcing reasonable and appropriate security procedures to control entry of Wortley and was then indicating to Wortley that she could not enter. It is true that he had earlier said that two senior executives might see her after 3.30 pm, that is, within, at the most, approximately twenty minutes and probably less. However that statement was qualified both as to when they might see her and whether they might see her. It is also true that after saying that "You're not going up" he said words that indicated he was not intending to refuse her entry entirely. However the conduct to which s306 is directed is the hindering or obstructing of, relevantly, the exercise of a right to enter premises. It is not necessary to establish an absolute refusal to allow a person to enter. I am satisfied that Galligan's conduct constituted a hindering and obstructing of Wortley in the entry to the premises. For reasons which become apparent shortly, it is unnecessary to consider whether there was also a hindrance and obstruction of the inspection of documents. It is necessary to consider the purpose for which the entry was sought. The powers s286(1) confer are purposive powers. They are to be exercised for the purpose of, relevantly, ensuring observance of an award. Unless the power is being used for the purpose for which it is conferred, there can be no breach of s306: see the first Australian Federation of Air Pilots (supra) at 372. The question of how a Court is to ascertain, on the evidence, whether that purpose is established was discussed by Gray J in Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 at 253: "It is plain from the authorities cited, and from Peate v Commissioner of Taxation (Cth) (1964) 111 CLR 443 at 469, in the judgment of Kitto J, that the word "purpose" may mean either a subjective or an objective purpose, depending upon the context in which it is used. In the context of s286(1) of the Act, it seems to me to be more likely that the purpose required is objective, that is that a particular exercise of a right to enter, inspect or interview can be said to be related with sufficient proximity to the object of ensuring observance of an award. If that were not the case, an honestly held but wholly mistaken belief by an officer of an organisation that he or she was pursuing a course which would result in the observance of an award would be decisive of the right to enter, inspect or interview. It is unlikely that Parliament intended the section to be construed in that manner. Its ultimate purpose is to promote the observance of awards, the giving of rights of entry, inspection and interview being only a means to that end." Grey J was subsequently asked to reconsider these views in the first Australian Federation of Air Pilots (supra). His Honour adhered to the view he expressed in Curran (supra) that the test was an objective and not subjective one but his Honour went on to indicate at 372.6 that if inspection was sought for a purpose extraneous to s286 then there will be no valid exercise of the right to enter. Accordingly, a hindering or obstructing of the purported exercise of the power would not be an offence. It is contended by the Union that the purpose of entry in this matter was the statutory purpose. It must be accepted that there is evidence which points to the conclusion that the purpose of the entry sought by Wortley was the purpose of ensuring observance of the award. The uncontradicted evidence of Warren was that he spoke to McDiarmid on 15 November 1994 and said he wanted to inspect all documents relating to the contracts "for the purposes of ensuring observance of the award". Further the authority itself is, in terms, directed to documents that might reveal, upon analysis, whether the terms of the contracts and their implementation would involve breaches of the award. The purpose stated by Wortley to Gilligan was consistent with the statutory purpose. I accept that clauses 23 and 20 of the Award require the creation of documents that might reasonably be described, as appears in paragraphs 3 and 4 of the authority, as time sheets and rosters. It can be inferred that such documents would have existed. However these matters have to be considered with other evidence. When cross examined as to what use would be made of the documents, Wortley initially indicated that a comparison would be undertaken of the contracts and their provisions and the rosters and time sheets and calculations made. However in one answer she suggested that it could have been sufficient to look at the contract itself to determine whether the award had been breached. In a series of questions directed to Warren in cross-examination he referred to "the documents" that the Union wanted to inspect. He explained that the failure of the Union to pursue the matter after the abortive attempt to inspect on 21 December 1994 was the result of the Union seeking to obtain "the documents" in other proceedings, that is, before Munro J. It appears from one answer given by Warren that the documents sought on subpoena in the proceedings in the Australian Industrial Relations Commission were the contracts themselves. An answer by Wortley in her cross-examination, which followed the evidence of Warren, indicates the same. Thus, the inspection of the "documents" that were not inspected on 21 December 1994 was not pursued because the production of the contracts was sought by other means. That the Union abandoned inspection of the contracts in conjunction with the time sheets and rosters raises, in my mind, a real question as to whether the Union was, on 21 December 1994, seeking the production of the contracts, time sheets and rosters for the stated immediate purpose of their comparison and for the stated ultimate purpose of ensuring observance of the Award. In my opinion there is, having regard to the evidence, room to doubt that the purpose for which entry and inspection was sought was to ensure observance of the award. There is a real prospect, in my view, that the Union wished to enter the premises and inspect the contracts to ascertain their terms. It wanted to do so in the context of what appears to have been a fairly bitter industrial dispute involving the resignation of significant numbers of Union members where the contents of the contracts were not being disclosed. There is also a real prospect, in my view, that it wanted to do so to understand what had been offered and agreed to, that may have induced the members to resign. While, in that context, the inspection of the contracts may have been a legitimate industrial objective for the Union if the execution and/or the terms of the contracts were precipitating the resignation of members, it is not one that the Act itself sanctions in the sense that it authorises its pursuit and creates an offence if the pursuit is hampered. The material legal issue is whether the entry and the inspection was sought for the purpose of securing observance of the Award. I am not satisfied that it was. Senior Counsel for the Company took the matter a step further. He submitted that the purpose of the visit was to set up the Company for the purpose of commencing proceedings alleging a criminal offence and, if so, this was a serious abuse of the Court's process. At one stage an invitation of sorts was made to the Court "to take some steps to discourage this sort of conduct". Three things can be said about this submission. The first is that it is only necessary for the Company to raise a real doubt about the purpose of the asserted right to enter or to inspect. It has done so and, as a consequence, the prosecutor has failed to establish an element of the offence. The second is that no criticism can reasonably be made, in my opinion, of Warren for preparing, as appears to be the case, documentation in anticipation of entry being refused and, in all probability, making an appointment to lay the information prior to the events occurring which founded it. He may have anticipated a refusal to enter or inspect. The third is that a relevant distinction may be drawn between motive and purpose in considering whether proceedings are an abuse of process: see Williams v Spautz (1992) 174 CLR 509 at 525-7 per Mason CJ, Dawson, Toohey and McHugh JJ. That is not to say, however, that the Court will entertain without criticism, proceedings that are brought for an improper purpose and/or vexatiously. I am not satisfied, however, that this is such a case. The Union has failed to establish an element of the offences alleged. The charge against the Company is dismissed. I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore. Associate: ...................... Alexandra George Dated: 1 November 1996 APPEARANCES Counsel for the Prosecutor: Mr R. Reitano Solicitor for the Prosecutor: Ms K. Nomchong Counsel for the Defendant: Mr R. Buchanan QC and Mr P. Kite Solicitor for the Defendant: Minter Ellison Morris Fletcher Dates of Hearing: 22 and 23 August 1996 Date of Judgment: 1 November 1996