Concrete Constructions (NSW) Pty Ltd v Australian Building Construction Employees & Builders Labourers Federation

[1988] FCA 485

l

JUDGMENT No. *%.sL..8..8.,

CATCHWORDS

PRACTICE AND PXOCZDURE - appllcation f o r stay of

proceedings - proceedlngs under Trade Practlces Act

and for trespass - PO basls for stay	- appllcatlon
dlsmissed.
Trade Practices Act 1974

CONCRETE CONSTRUCTIOMS __ (NSW) PTY. LIMITED v .

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No.	G950 of 1 9 8 8
Sydney

Morling J.

6 May 1988

IN THE FEDERAL COURT	OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	)	No. G 950 of 1988
GENERAL DIVISION

BETWEEN:  CONCRETE CONSTRUCTIONS (NSW) PTY.
LIMITED

Appllcant

AND :  AUSTRALIAN BUILDING CONSTRUCTION
EMPLOYEES AND BUILDERS' LABOURERS'
FEDERATION

First Respondent

AND :  BUILDING CONSTRUCTION EXPLOYEES AND BUILDERS LABOURERS FEDERATION OF NEW SOUTH WALES

Second xespondent

AND :  STEVE BLACK

Thlrd Respondent

?.ND :  WILLIAM ROSS HEFFERNAN

Fourth Respondent

AND :  DOUGLAS SIDDONS

Flfth Respondent

AND :  DAVID CRODEN

Slxth Respondent

AND :  LARRY GAINES

Seventh Respondent

. AND : WILLIAM MATCHETT

Eighth Respondent
AND :	ZELKO JOSEPH HARIC

Mlnth Respondent

AND :  TERENCE DOYLE

Tenth Respondent

XINUTE OF ORDER

JUDGE MAKING ORDER	: Morling J.
DATE OF ORDER	:  6 May 1988
WHERE MADE	:  Sydney

THE COURT ORDERS that the appllcation by the fourth

respondent	to	stay	the	proceedings	agalnst	h1m	be
dismlssed.

NOTE:  Settlement and entry of orders 1s dealt wlth ~n
Order 36 of the rederal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT 3EGESTRY	--	)	No. G	950	o f	1988
)
GENERAL DIVISION	)

BETWEEN:  CONCRETE CONSTRUCTIONS (NSW) PTY.
LII*lITED

Applicant

AND :  AUSTRALIAN BUILDING CONSTRUCTION
EMPLOYEES AND BUILDERS' LABOURERS'
FEDERATION ~ ~~ ~ ~~

First Respondent

AND :  BUILDING CONSTRUCTION EXPLOYEES AND BUILDERS LABOURERS FEDERATION OF NEW SOUTH WALES

Second Respondent

AND :  STEVE BLACK

Third Respondent

AND :  WILLIAM ROSS HEFFERNAN

Fourth qespondent

AND :  DOUGLAS SIDDONS

Fifth Respondent

AND :  DAVID CRODEN

Sixth Respondent

AND :  LARRY GAIMES

Seventh Respondent

AND :  WILLIAM MATCHETT

. Eighth Respondent

AND : ZELKO JOSEPH MARIC

Nlnth Respondent

AND :  TEREKCE DOYLE

Tenth Respondent

MORLING 3 .

EX TEMPORE REASONS FOR JUDGMENT ON

APPLICATIOK TO STAY PROCEEDINGS

This is an application that the proceedings against

the fourth respondent be stayed. The other respondents have

not appeared. Mr Littlemore who appears for the fourth

respondent Mr Heffernan, has put a number of submlsslons 19

support of the application. First, he submits that the

proceedings in this Court involve proof that	Mr Heffernan has
committed a felony and that any civil proceedings	in which that
issue is involved should not be heard pending determination	of
the issue In criminal proceedlngs.

In my opinion this submlssion fails I n limine. I do

not think there 1s any allegation in the amended application that Mr Heffernan has committed a felony. What 1 s alleged

against hlm, ~n this respect, 1s no more than that he has

engaged in conduct proscribed by S. 45D of the Trade Practices

~ Act.

If M r Llttlemore's submission 1s correct, it would

never be possible to bring proceedlngs under	S. 45D since the
proceedings would, per se, be proceedings	In which a felony is

alleged. This cannot be the law. I see no ground f o r

granting the appllcation because	of the first matter urged by
Mr Littlemore.

The second argument relied upon 1s that the Court has

a discretion to stay the proceedings and that in the exercrse

of that dlscretion I should stay them. M r Littlemore submlts

that as hls client 1s charged vlth an offence under the

Enclosed Lands Act, he vlll, of necessity, be preludlced lf the

proceedings ln this Court contlnue before the proceedings under

the Enclosed Lands Act are concluded. He concedes that

whether a stay should be granted 1 s a matter of discretlon but

says that his client would lose his rlght to silence if the

case proceeds in this Court.

I do not thlnk that in the exerclse of my dlscretlon I

should stay the proceedings. The appllcatlon is brought at a

very late stage and after a slmllar appllcatlon has failed.

More importantly, no undertaking of any kind has been proffered

that if a stay is granted,	Yr	Heffernan will refraln from
enterlng upon the appllcant's land wlthout	~ t s	consent.

It 1s put by Mr Llttlernore that the appllcant's

appropriate remedy 1 s to return to the Local Court and	ask the
Maglstrate to lmpose as a conditlon of	Mr Heffernan's ball that

he not enter the appllcant's prernlses. With the beneflt of

hindsight, It may	well have been appropriate for the Informant
in the proceedings in the Local Court to have sought such a

condltlon of ball. I am not In a posltlon to know, of course,
whether the Iqagistrate would have imposed such a condition but
the fact is that there 1 s no such conditlor! attaching to Plr

Heffernan's ball.

I should add that there 1s no evldence before thls

Court as to the exact nature of the charge against I.Ir

Heffernan, as to whlch property 1s involved, or as to when the alleged offence is sald to have occurred.

Another dlfflculty In the way of glvlng effect to Mr

Llttlemore's submission 1s that even lf the Magistrate attached

to Mr Heffernan's ball a condition that he not enter the

applicant's premises such a condition would presumably lose lts

effectlveness when the proceedings In the Local Court

terminate. I do not think I should assume - nor would M r

Littlemore want me to assume - that the proceedlngs in the

Local Court will succeed and that it will be open to the

learned Magistrate to make some form of order whlch would have

a restraining effect on Mr Heffernan's future conduct.

It is plain from what has been urged in support of the

application that M r Heffernan does not dispute thac he has

entered the appllcant's premises. Rather, hls counsel have
lndlcated that he clalms to have entered under some rrght or

colour of right.

.

I do not see that any real prejudice will occur to Nr

Heffernan if the proceedings contlnue in thls Court and	I
therefore decline to stay them.

I certlfy thac chls and the three ( 3 )

precedlng pages are a true copy of the

Reasons for Judgment of his Honour	Mr Justice
Morling.  Assoclate:
Date :	6 May 1988

. . . . / 5

Counsel for appllcant:  A.B. Shand Q.C. vlth

D.A. Cowdroy

instructed by:  Westgarth Baldlck

Counsel for respondent:  S.1.1. Littlemore with

M. L. Brabazon

instructed by:  Geoffrey Edwards & C o .

Date of Hearlng:	6 May 1988
Date of Judgment:	6 May 1988

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