Gregor v Setka [2010] FMCA 690

1. an officer and vice president of the Victorian Divisional Branch of the Construction and General Division of the Construction, Forestry, Mining and Energy Union (CFMEU); 2. a building industry participant under section 4(1) of the BCII Act;

1. a person who held an entry permit under Part 15 of the WR Act; and

1. a person who held an entry permit under Part 8 of the Occupational Health and Safety Act 2004 (Vic) ("OHS Act").
2. Paragraph 3 of the defence concedes that the CFMEU is and was at all material times a registered employee organisation within the meaning of s.79 of the OHS Act.
3. There is no doubt likewise that Bovis Lend Lease Pty Ltd (BLL) was at all material times a constitutional corporation (exhibit A2) which was in its capacity as an employer undertaking and/or controlling the activity performed at the ANZ Docklands site, being building work within the meaning of s.755(1)(a)(i) of the WR Act and/or within the meaning of s.755(1)(e) of the WR Act.

1. The only evidence given about the events of the day was given by

Mr Keeble, who was the construction manager employed by BLL at the ANZ Docklands site and by his deputy, Mr McGregor, who was the general foreman. Although they were cross-examined at some length, particularly Mr Keeble, there was in many ways little challenge to the description that they gave of the relevant events. 2. It is clear that a number of union officials arrived unannounced at about the same time around 7.15 am. Mr Setka was one of them. They dispersed onto the site without undergoing the usual induction and/or signing in process. 3. I will return to aspects of the evidence dealing with what Mr Setka attended the site for as a discrete issue later in these reasons. For the moment, it is sufficient to record that he met with a Mr Christopher,

Mr Keeble and Mr McGregor. There was a discussion as to whether Mr Setka was required to sign on and/or wear PPE clothing. 4. The picture emerges only too clearly that this interchange involved the sort of testosterone-fuelled and slightly childish interplay which can sometimes occur when union officials attend premises where they are by no means wholly welcome. 5. Following this exchange Mr Keeble and Mr McGregor, who stayed together and plainly acted as a team, came into the presence of another CFMEU organiser, Shaun Reardon. Although it is clear that Mr Reardon was taking photographs that day recording a number of safety matters that were of concern to him, it is equally plain that a childish process eventuated whereby he photographed Mr McGregor and Mr Keeble and Mr McGregor responded in kind. 6. Thereafter, Mr Keeble and Mr McGregor met Mr Setka again on what appears to have been the top floor of the building at that point in its construction. From Mr Keeble's evidence at P-10, it is clear that

Mr Setka was one of a group of union officials who raised safety concerns. 7. Then an interchange took place. In evidence-in-chief Mr Keeble initially made it clear that such memory as he had was taken from a statement. It is clear that that statement was made to an inspector from the ABCC and that Mr Keeble also made notes on the day which he has said were attached to the statement (P-9). 8. It is, however, clear from transcript P-10 that the document Mr Keeble was allowed to refresh his memory from in Court was, in fact, the note made on 6 March 2008. 9. At P-11 the following extract from those contemporaneous notes was confirmed by Mr Keeble as being an accurate record, namely:

"John went to me, went over the top a bit and started yelling, or with plenty of volume, anyway, that we were criminal, "fucking criminals. This job's a fucking disgrace and you're going to fucking kill someone." And that when we did, he would "quit my fucking job and get you". Now, at that point, he pointed at Rob - Rob and John know each other better than I know John, so I think they had a - a past relationship. Rob's response to that was, "Are you threatening me, John?". And John Setka's reply to that was, "I'm not fucking threatening. I am fucking promising. I'll get you and you."

1. It is clear that Mr Setka pointed to both Mr McGregor and to

Mr Keeble when he said "you and you". 2. This recitation of events was not challenged in cross-examination. (See P-53 to 54). 3. The evidence given by Mr McGregor was very much to the same effect. He confirmed that he and Mr Keeble met Mr Setka and

Mr Christopher. They discussed procedures under the right of entry and wearing appropriate PPE (P-67). Without the benefit of seeing his notes, Mr McGregor's recollection was: * "It would have been verbatim words to the effect of the site's disgusting and it's unsafe, and if you kill anybody in this project, I'll quit my job and I'll come and get you, or something like that." (P-68). 4. Mr McGregor made notes that day. He said: * "We keep a diary on our projects. We report on - when I say we, the people of the site team - we report on different sections of it. I generally report by exception on industrial relations without keeping the overall project diary. However, any industrial relations issues I'm required to make notes of." (P-68). 5. At P-69, having refreshed his memory, he confirmed an account of the conversation with Mr Setka in relevantly identical terms to that of

Mr Keeble. 6. At P-73 to P-74, the same version of events was, in effect, repeated but not challenged. 7. Immediately after this outburst, Mr Setka left the presence of

Mr Keeble and Mr McGregor who did not see him again that day. 8. Thereafter, there was a further incident involving a Mr Montebello, not a member of the CFMEU but an organiser for another union, in extremely heated terms. 9. Thereafter, although not long, a meeting was held with union representatives and the site safety committee at which a number of safety issues were addressed. 10. It should be noted that when I observed earlier that union officials sometimes faced difficulties in attending sites where they are not keenly desired by management, the clear inference from the evidence is that BLL was not a site overly given to accommodating union attendance. It appears that on the day when safety issues were raised, Mr Keeble, in Mr McGregor's presence (as they were throughout), said that if there were safety issues, they would discuss them with their safety committee but not with union officials. 11. Whilst it would seem to me that BLL was quite entitled to insist upon its normal protocols for visitors being followed, something that the actions of the various union officials who arrived and fanned out across the site prevented, nonetheless it is equally clear that this was an employer which regarded union interference as unwelcome. 12. In my opinion, a union is entirely entitled to raise safety issues with an employer, and it is difficult in fact to think of something more obviously appropriate for a union to deal with. The response to the effect that BLL would only deal with its site committee and not with the union officials who attended suggests a measure of tension arising from a particular attitude on the part of BLL's officers.

1. From the above evidence, it is clear that Mr Setka entered the ANZ Docklands site at or about 7.15 am on 6 March 2008 and that during a conversation, some relatively short time later, he uttered the words set out in paragraph 11 of the amended statement of claim, and while making the second statement attributed to him in that paragraph, pointed at each of Mr McGregor and Mr Keeble.
2. It will be noted that I set aside for the moment making any findings as to what Mr Setka's purpose was in attending the site.

1. The reason I have delayed dealing with this last issue is because of the way in which the respondent put his case. Mr Setka did not give evidence. His counsel sought to make a submission as to there being no case to answer, which I declined to entertain, and moved directly into submissions. The first submission made was that there was no evidence that Mr Setka was exercising or seeking to exercise rights under an OHS law in accordance with s.767 of the WR Act.
2. An examination of the transcript reveals that:

1. the organiser, Mr Reardon, was taking photographs of aspects of the site which were 'aspects of the site that the union officials were claiming to be a risk to health and safety' (P-18); 2. safety issues were brought to the attention of Mr Keeble by union officials who visited the site that day - (P-20) - although the identity of those persons was not made clear by the question;

1. all of the union officials, except Mr Setka, attended the safety meeting that eventuated on 6 March 2008 (P-21);

1. Mr Reardon was taking photographs of things that demonstrated the risk to the health and safety of workers (P-42); 2. Mr Keeble made type-written notes of the events of 6 March

(P-42); 3. Mr Keeble was cross-examined about the contents of his notes

(P-43). Mr Keeble was also cross-examined to the effect that his failure to record matters in his notes suggested that they had not occurred (a reference to Mr Setka or Mr Christopher telling him what their business was P-44); 4. Mr Keeble's notes were the subject of further cross-examination as to whether they had been exaggerated in relation to the incident with Mr Montebello (P-52); 5. At P-54, the following exchange took place under cross-examination: * "So he accused you of being criminals, albeit with a colourful adjective attached to it?...yes. * Is that right?...yes * And this is against a background that there are a number of items on the site that - on that day, which were clearly a risk to the health and safety of workers. Is that not right - yes.... * And again, that was against the background of there being a number of different items identified as being risks to the health and safety of workers. Is that not right?...That's right. * And he said to you, against that background, "You're going to fucking kill someone", didn't he?...yes."

1. In re-examination the following question was put to Mr Keeble: * "You were asked some questions yesterday and shown a number of photographs identifying, or purporting to identify various safety issues of concern on the site. On 6 March of 2008, did Mr Setka raise with you any safety concern?..... My recollection is that when I first ran into John and Derek at the gate to the site, or at the entrance to the PPE zone, he made mention of 'fucking pigsty'."
2. When Mr McGregor was called to give evidence, he gave the following evidence about the second occasion he met Mr Setka on that day at P-68:
   • "Yes. And to the best of your recollection, and if you don't remember then say so and we can deal with your notes, what did Mr Setka say? .... It would have been verbatim words to the effect of the site's disgusting and it's unsafe, and if you kill anybody in this project, I'll quit my job and I'll come and get you, or something like that."
3. Mr McGregor went on to say at P-68,
   • "We'll provide you with a copy, Mr McGregor. Mr McGregor, you've just been provided with some notes. Can you explain to his Honour where those notes are taken from and when they were made?..... We keep a diary on our projects. We report on - when I say we, the people of the site team - we report on different sections of it. I generally report by exception on industrial relations without keeping the overall project diary. However, any industrial relations issues I'm required to make notes of.
4. In fact, Mr McGregor's notes were not the subject of any application for tender but those of Mr Keeble were. I will turn to those notes and my ruling about them in a moment, but it is sufficient to say that even without those notes it is in fact entirely apparent that Mr Setka's purpose in visiting the site was, taking the evidence as a whole, clearly an endeavour to exercise his right of entry under an occupational health and safety law.
5. It is quite clear that a relatively large number (it appears about half a dozen) of union officials all arrived at the same time early that morning at the ANZ Docklands site. They spread out and, in the case of

Mr Reardon, took photographs. In the light of what was said by Mr Setka, and the discussions, if one can so describe them, that he had with the management representatives, it is clear that safety is what his visit was for. True it is that nobody asked him for his entry permit. True it also is that he never said in terms that he was there to address health and safety issues. Nonetheless, it is quite clear to me that that is what he was there for. The legal effects of this conclusion will require further consideration. 7. In this regard it seems to me that Pine v Doyle [2005] FCA 977 is directly on point. In that case, Merkel J was faced with an almost identical situation where the respondent submitted that the requirement under the law that he would be exercising his power of entry under the Act could not be satisfied if as a matter of law his purported exercise of the power was unlawful (see Pine v Doyle at [14]). His Honour went on at [15] - [18] to rule against that submission and I respectfully adopt and incorporate his Honour's judgment and in particular those paragraphs on this issue.

1. Exhibit A3 is the record of notes made by Mr Keeble on 6 March 2008. The notes were certainly made while the events were fresh in his memory.
2. I indicated during the hearing that I would give my reasons for allowing the admission of this document in my reasons for judgment. First, however, I would turn to the text of the document.
3. It is clear that at 7.15 am and upon entering onto the site, Mr Setka paused to say, "What a fuckin pig sty". That is a remark which in the context of the events can only be taken to refer to safety issues.
4. At 7.45 am Mr Keeble and Mr McGregor met the following union officials: Troy Grey, Mick Montebello, Mr Hayes, Mr Setka and

Mr Christopher. The notes continue: * "We repeated our position that they were unauthorised and trespassing, they maintained their position that they had been invited on by Safety Committee and that they had significant safety concerns in particular; * - lighting to access ways to cores * - edge protection around atrium ..... * We explained that we would deal with these issues as a site and did not require their unauthorised access to prompt us. At this point Setka went mad screaming that we were "FUCKING CRIMINALS" "THIS JOB'S A FUCKING DISGRACE" and "YOU'RE GOING TO FUCKING KILL SOMEONE" and that when we did he would "QUIT MY FUCKING JOB AND GET YOU"." 5. It is clear from that extract, although as I say I think it was clear from the evidence as a whole and in any event, that Mr Setka was one of a number of union officials who visited the site because of safety concerns on that day and that Mr Setka was indeed purporting to exercise his right of entry pursuant to an occupational health and safety law. 6. The question which I have already answered, namely the admissibility of the document, now requires to be addressed. Although these are proceedings for a civil penalty, they are civil proceedings to be conducted in accordance with civil practice and according to the civil burden of proof (s.729 WR Act). 7. Pursuant to s.64 of the Evidence Act 1995 it is provided that in civil proceedings if a person who made a previous representation is available to give evidence about an asserted fact: * "(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person" 8. Here, both Mr Keeble and Mr McGregor clearly exhausted their memory before they were permitted to have regard to their prior contemporaneous notes. In my opinion it is scarcely surprising that Mr Keeble and Mr McGregor should not have an exact recall of all the events of the day now over two years ago when these matters took place. Equally unsurprisingly they managed to remember some of the more salient aspects of the day including Mr Setka's outburst at them after refreshing their memories. 9. In the circumstances, and more particularly so given that they were both cross-examined on the notes and in terms that suggested that the notes were entirely accurate, it would seem to me entirely appropriate to exercise my discretion to admit the notes themselves. I note that notes of an apparently relevantly identical kind were admitted without comment by Flick J in Darlaston v Parker [2010] FCA 771 (at [104] and [207]). 10. It should also be noted that in the case of Mr McGregor (albeit that his notes were not tendered) and also in the case of Mr Keeble, the notes appeared to be admissible as business records. In the light of

Mr McGregor's answers quoted above, they would appear to be records kept by an organisation in the course of or for the purposes of its business, were made by people who had personal knowledge of the asserted facts, and were not, so far as the evidence discloses, prepared for the purpose of conducting or in contemplation of or in connection with an Australian proceeding (see s.69 Evidence Act). I would have qualified those remarks with the observation that while the notes were made in the course of the business, as in my view they clearly were, the extent to which they were made in contemplation of a proceeding such as that with which we are now concerned might perhaps be thought to be more opaque. 11. In any event, and for the reasons I have given, I think Mr Keeble's notes are admissible and they only go to confirm the picture that the evidence as a whole presented on this point.

1. To summarise, there is no doubt that at shortly after 7 o'clock on

6 March 2008 Mr Setka and a number of other union officials arrived at the ANZ Docklands site. They did not comply with the occupier's site procedures, but fanned out across the premises to investigate safety matters of concern. 2. The reception of these union officials was to an extent antagonistic and to an extent reasonable. It was reasonable insofar as Mr Keeble and Mr McGregor sought to have Mr Setka and Mr Christopher conform with their normal and perfectly reasonable signing in procedures, for example, and unreasonable insofar as it involved taking photographs of Mr Reardon and refusing to discuss safety issues with union officials when they desired to do so. 3. The condition of the site was plainly inadequate. In extensive cross-examination of Mr Keeble, it became clear that there were extensive deficiencies in the safety aspects of the site, a matter particularly confirmed further by Mr McGregor. 4. As a result of this, Mr Setka became upset and delivered himself of the tirade earlier described.

1. The Court is required to determine, in the circumstances of this case, the following issues:

1. Was Mr Setka, on 6 March 2008, a permit holder exercising, or seeking to exercise, rights under an OHS law in accordance with section 756? 2. If he was, did he "otherwise act in an improper manner?"

1. In deciding whether Mr Setka acted in an improper manner, is it necessary that he had intent to do so? And if so, did he have that intent?
2. It should be borne in mind that these are proceedings for a civil remedy to be approached in the light of s.140 of the Evidence Act 1995 (Cth). 'It is a serious matter to conclude that a person has contravened a penal provision in legislation,' per Finn, Lander and Jessup JJ in

Hogan v Riley [2010] FCAFC 30 at [18]. See also the judgment of Flick J in Darlaston v Brian Parker & Ors [2010] FCA 771 at [17].

Was Mr Setka a person exercising, or seeking to exercise, rights under an OHS law in accordance with section 756 of the Act?

1. It should be stated at the outset that there has been no suggestion that Mr Setka was seeking to inspect employment records pursuant to s.757 of the WR Act, and the only section applicable is s.756.
2. It is alleged, and as I have earlier said admitted, that Mr Setka was at the material time a person who held an entry permit under Part 8 of the OHS Act. Although neither party has made any submissions about it, it is clear that that is an OHS law. Neither party has suggested that the Victorian Occupational Health and Safety Act is not a law prescribed by the regulations for the purposes of this definition. Indeed, it is clear from the terms of regulation 2.15.1 of the Workplace Relations Regulations 2006 (Cth) that the Victorian Act is, indeed, so prescribed, as pleaded in paragraph 9 of the amended statement of claim. The next question is whether Mr Setka was a person exercising or seeking to exercise rights in accordance with s.756 of the WR Act.
3. Section 756 does not in terms authorise entry, save implicitly. Rather, section 756(1) presupposes that an official of an organisation already has a right under the OHS law to enter premises. It places a restriction upon the exercise of that right, namely, that the official holds a permit under that part of the legislation and exercises the right during working hours.
4. Here, it is expressly conceded by the defence that Mr Setka held an entry permit under Part 8 of the OHS Act. The other preconditions imposed by s.755 are plainly made out insofar as the premises which Mr Setka entered were plainly owned, occupied or otherwise controlled by BLL, which I am satisfied was, at the relevant time, a constitutional corporation.
5. It is also clear that the entry by Mr Setka onto the premises took place during working hours.
6. Insofar as the parties agitated before the Court the propriety of

Mr Setka's incursion, attention was directed only to the purpose for which Mr Setka attended. Nothing was submitted by either the applicant or the respondent as to whether or not Mr Setka was affected by the limitation on entry rights contained in ss 763 and 765 of the WR Act. There might for example have been an issue as to whether Mr Setka was entitled to enter or remain on the premises given his alleged possible refusal to comply with the demand that he sign in: (section 765(2)). 7. The submission ultimately advanced by the respondent was that s.767(1) is not engaged because the applicant has not established to the requisite standard what rights, if any, the respondent was exercising or seeking to exercise. 8. In my view, this submission cannot be sustained. As I have earlier indicated, it is quite clear that Mr Setka attended the premises to address extant safety issues. He did so in circumstances where he held a permit under the OHS Act to do so. It is not necessary for the applicant to identify in precise terms exactly which right conferred by the right of entry that Mr Setka had that he was seeking to exercise. Of its nature, this could only ever be known to him. 9. It is clear that s.767 is designed to control the way in which persons who have a right of entry arising under an OHS law exercise that right. Once it is established, as it clearly is here, that Mr Setka had that right and was exercising it, it is not necessary to specify in greater detail exactly what aspects of that right he was seeking to engage. 10. In my view, it is sufficient for these purposes to note that Mr Setka was a permit holder and that he entered upon the premises with a view to investigating safety concerns in respect of the members of his union. In my view, such conduct constitutes 'exercising, or seeking to exercise, rights under an OHS law'. 11. I was referred to the case of Pine v Doyle to which I have already referred. 12. Pine v Doyle has been the subject of further consideration by the

Full Court of the Federal Court in CFMEU v John Holland Pty Ltd [2010] FCAFC 90. That, once again, was a s.760 case where relevantly significant differences in the section occur. Most notably, s.760 is concerned with circumstances where 'a permit holder for an organisation may enter premises for the purposes of holding discussions' (emphasis added). There is no similar wording in s.756. 13. Dowsett J said at [41]:

"In the present case, s.767(1) would be engaged only if a permit holder is exercising, or seeking to exercise rights under s.760. If s.760 is not engaged (because the permit holder lacks the prescribed purpose) then there are no relevant rights for the purposes of s.767(1). In other words, s.767(1) regulates the way in which a person exercises his or her right of entry pursuant to s.760. Such an approach may be inconsistent with that taken by Merkel J in Pine v Doyle (citation given). His Honour concluded that a purported, but unlawful, exercise of the power of entry would engage a prohibition on hindering or obstructing in the exercise of a statutory power to enter. Although the distinction between the power and the right may be a narrow basis for distinguishing that decision, I am unpersuaded that a permit holder can be described as exercising or seeking to exercise a right under s.760 if there is no such right because of the absence of the requisite purpose. I would, however, prefer to leave that question unresolved, largely because it has not been argued."

1. Logan J did not deal with Pine v Doyle in terms, and neither did Spender J, who at [3] said that he agreed with the reasons for judgment of Dowsett J that the parties had misconstrued the Act, but did not expressly deal with this aspect of the matter. Accordingly, it seems to me that in the absence of Pine v Doyle being overruled, the underlying approach adopted by Merkel J is still good law. By this I mean that the Court should not presuppose that even if there was some technical infraction by Mr Setka of the terms of s.758, s 763 or s 765 of the

WR Act, thus rendering his presence on this site unlawful, it should not be used to defeat the operation of the Act in s.767.

Did Mr Setka "otherwise act in an improper manner?"

1. As to what constitutes acting in an improper manner I would respectfully adopt what was said by the High Court in R v Byrnes & Hopwood [1995] HCA 1; (1995) 183 CLR 501 at [514] - [515]:
   • "Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged defendant by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case."
2. It is clear that according to the ordinary words "act in an improper manner" that Mr Setka did so. Yelling the sort of abuse and threats that he did is plainly improper on any view of the meaning of those words.

Is the intention required in relation to otherwise acting in an improper manner?

1. I have already referred to Pine v Doyle.
2. Here both parties have made submissions about the decision at first instance of Greenwood J in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 786; (2009) 186 IR 408. That was a case that turned on whether or not union officials have a valid right of entry onto a work site and, once again, was a s 760 case, not a s 756 case. The significance of this decision lies in Greenwood J's observations about the nature of conduct constituting "acting in an improper manner" and the extent to which such conduct requires intent.
3. The parties were by no means agreed as to what one should take from the judgment of Greenwood J. The relevant paragraph is [181] where his Honour said:
   • "The conduct satisfying the second limb must be conduct or an act other than the act of hindering or obstructing a person...The section, however, engages contact in the course of seeking to exercise a right of entry. The quality of the conduct engaged, is hindering or obstructing any person and the second limb engaging the notion of otherwise acting in an improper manner, takes its character from the intentional acts of hindrance and obstruction. In other words, the question asked by the section is what manner of act did the permit holder do or fail to do in the course of seeking to exercise a right of entry."
4. The respondent submits that because hindering or obstructing requires some positive acts by way of hindrance or obstruction and because such conduct must be intentional (see respondent's written submissions dated 24 June 2010, paragraphs 5 and 6) it follows that the conduct which might be described as acting in an improper manner must be intentional.
5. It is also put that because of the phraseology used that the words "acting in an improper manner" were, so to speak, qualified by the connection with the phrase "hindrance and obstruction", because the second limb "takes its character from intentional acts of hindrance and obstruction".
6. The applicant submitted that this interpretation is incorrect

(see paragraphs 8 and 9, applicant's supplementary submissions filed

6 August 2010). 7. The decision of the Full Court in CFMEU v John Holland did not deal in terms with the issue as to whether or not acting in an improper manner required intent. That was because that case was solely concerned with a person who had allegedly hindered or obstructed another person. Spender J at [26] expressed the view that the test for intention is a subjective one, not an objective one. At [46] Dowsett J said: * "The requirement that any hindrance or obstruction be intentional prima facie requires that there be a subjective intention to hinder or obstruct. It is not sufficient that the relevant conduct was willed and that the permit holder must be taken to have been aware of such hindering or obstructive effect. It may be sufficient that the permit holder acts, knowing that there will be a hindering or obstructive effect. It may also be possible to infer subjective intent from objective facts. However, section s 767 says nothing about deemed intention." 8. It is not entirely clear to me that the Court produced a decision in regard to this aspect of the matter because Logan J, who is in the minority as to the result, said at [179]: * "I find that the conduct was intentional in the sense that the conduct was unreasonable as the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances described in these reasons was likely to impede Mr Ingham and nevertheless the permit holders elected to enter the site, progress to the crib huts and conduct meetings ..." 9. It is arguable that Logan J's judgment is closer to that of Dowsett J than that of Spender J. 10. Since that decision, however, Flick J has determined the matter of Darlaston v Parker and Others [2010] FCA 771. I have had regard to the entirety of his Honour's reasons for judgment in that decision, but would note in particular the following points.

(a) At [47] his Honour noted that, in relation to s.767(1),

"a number of potential sources of difficulty emerge from what may otherwise be regarded as a comparatively simple provision. These potential difficulties include establishing that any conduct was pursued intentionally; giving content to the expression "hinder or obstruct"; and identifying an act that constitutes acting in an improper manner."

"For the purposes of s.767(1) it is considered that the reference to "intentionally hinder or obstruct" is a reference to any act or conduct that actually makes it more difficult for the person who is hindered or obstructed to discharge these functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an appreciable obstruction or interference. A trivial act or even an act which could not reasonably be regarded as an obstruction or interference would not fall within s.767(1)."

(c) At [53] his Honour noted the decision of the Full Court in CFMEU v John Holland.

"Difficulty is also encountered in construing the last of the phrases in s.767(1), namely the proscription of a "permit holder" acting in an improper manner. Presumably the parliamentary draftsman saw no need to confine an act which amounts to acting in an improper manner to an intentional act. But conduct which falls outside of an intentional hindrance or an intentional obstruction of a person, and yet falls within an act in an improper manner, is not further defined by either s 767 or as a whole."

"It may be that a contravention of s 758 involves both the necessity to prove that the person against whom the contravention is alleged is both a permit holder and a person who is asserting a right of entry under an OHS law."

"For the purposes of acting in an improper manner it is not considered necessary to prove that Mr Mitchell intended to act in any such manner."

1. At [206] his Honour said:
   • "...That decision (Hogan v Riley)it is considered does not stand in the way in an appropriate case of concluding that a right of entry ostensibly exercised for one purpose is but a cloak for an improper purpose. Indeed, it would be surprising if an individual respondent would ever realistically concede his improper motives. A finding to such an effect must invariably be based upon inferences."
2. Bearing in mind that the decision of Flick J in Darlaston is recent and post-dates the appeal of the Full Court's decision in CFMEU v John Holland, I think I am obliged to find that:
   1. The words "or otherwise act in an improper manner" are not limited by any conjunction with the phrases "obstruct or hindering" in s.767(1)
   2. It is not necessary to prove intent in relation to a person who acts in an improper manner.
3. Indeed, extrapolating from Flick J's observations about intent, I would point out that it would be very unusual for any respondent formally to assert that they intended to act in an improper manner.
4. The whole concept of acting in an improper manner is, in my view, as a matter of ordinary understanding, one that implies reference to objective consideration rather than the mere state of mind of the person who commits the relevant acts.
5. Another question that was raised before me, however, was the extent to which the words "otherwise acting in an improper manner" were, as the respondent put it, ejusdem generis.
6. It was put that there was controversy about this issue. The respondent pointed to the judgment of Greenwood J in John Holland v CFMEU [2009] FCA 786; (2009) 186 IR 408 at [181] where his Honour said:

"The quality of the conduct engaged, is hindering and obstructing any person and the second limb engaging the notion of otherwise acting in an improper manner, takes its character from intentional acts of hindrance and obstruction."

1. The respondent submitted that to hinder and obstruct required some positive act by way of hindrance or obstruction (this scarcely being material in this case as what Mr Setka did was clearly a positive act, albeit an off-putting one) and that the hindering must be intentional.
2. It should be noted that the passage in the judgment of Greenwood J to which I have earlier referred was not the subject of express consideration by the Full Court. It should also be noted, however, that his Honour simply said that the character of otherwise acting in an inappropriate manner took its character from the matters previously referred to. Of course, it cannot be the case that "otherwise act in an inappropriate manner" adds nothing to the section, or those words would not be there.
3. In the ultimate, however, I think it is possible, as Dowsett J said, to infer in this instance subjective intent from objective facts.
4. In the light of the evidence as a whole, it is clear that Mr Setka intended to act in the fashion that he did. Any suggestion that he would regard it as appropriate to swear at people in the way that he did and offer what on any view were significant threats to their personal safety cannot, on any view, possibly be thought to be otherwise than intentional.

1. Given the findings of fact I have made and the view I take of the application of the law, it is clear that Mr Setka acted in an inappropriate manner by saying the words that he clearly did say to Mr Keeble and Mr McGregor; and the gesture of pointing to them while threatening them to make it clear that they were being threatened is part and parcel of this conduct.
2. In the circumstances, I will list the matter for mention so that the matter can be set down for a hearing as to what orders should be made and what, if any, penalties should follow from these conclusions.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Burchardt FM