Concrete Constuctions Pty Ltd v Plumbers & Gasfitters Employees Union of Australia

[1987] FCA 169

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) No. G51 of 1987
GENERAL DIVISION	)

BETWEEN:

CONCREI'E CONSTRUCTIONS FTY.

LIMITED and CONCFEIE

CONSTRUCTIONS (N.S.W.) PTY.

LIMITED

Applicants

AND:

THE PLUMBERS AND GASFITTERS

EMPLOYEES' UNION OF

AUSTRALIA

Respondent

No. G54 of 1987

BETWEEN: SABEMO FTY LIMITED

Applicant

m:	THE PLUMBERS AND GASFITIERS
EMPLOYEES' UNION OF
AUSTRALIA

Respondent

No. G55 of 1987

BETWEEN:

LEIGHTON CONTRACTORS PTY

LIMITD

Applicant

AND:

THE PLUMBERS AND GASFITTERS

EMPLOYEES' UNION OF

AUSTRALIA

Respondent

No. G57 of 1987

BETWEEN : CIVIL & CIVIC PTY LIMITED

Applicant

AND :	THE PLUMBERS AND GASFITTERS
EMPLOYEES' UNION OF
AUSTRALIA & ORS

Respondents

L .

No. G58 of 1987

BEIWEEN: WHITE INDUSTRIES LIMITED

Appllcant

AND: THE PLUMBERS AND GASFITTERS

EMPLOYEES’ UNION	OF
AUSTRALIA & ANOR

Respondents

NO. ~ 5 9 of 1987

BETWEEX:	JENNINGS CONSTRUCTION
LIMITED

Applicant

AND :	THE PLUMBERS AND GASFITIEFIS
EMPLOYEES’ UNION OF
AUSTRALIA & ANOR

Respondents

No. G60 of 1987

BETWEEN: BARCLAY BROS PTY LIMITED

Applicant

AND:

THE PLUMBERS AND GASFITI’ERS

EMPLOYEES’ UNION OF

AUSTRALIA & ANOR

Respondents

No. G64 of 1987

:	B	-	JOHN HOLLAND	CONSTRUCTIONS
FTY LIMITED

Applicant

AND:

THE PLUMBERS AND GASFITTERS

EMPLOYEES’ UNION OF

AUSTRALIA & ANOR

Respondents

COURT: Bowen, C.J., Lockhart, Sheppard JJ.

DATE : 9th April, 1987

PLACE : Sydney.

3.

EX T E M P O R E JUDGMENT

BOWEN C.J.

There are before us motions for leave to appeal from and

for a stay of certain orders made by Wilcox J. on 6 April, 1987

in matters Nos. G51 of 1987, G54 of 1987, G55 of 1987, G57 of

1987, G58 of 1987, G59 of 1987, G60 of 1987 and G64 of 1987.

The orders made by his Honour on 6 April, which were

orders based on a motion for contempt in which he held the

respondents to the motion guilty of contempt and granted certain

injunctions against them, deal in the eight cases with fourteen

building sites on which bans preventing work from being carried

on had been in force for some time. The principal order from

which leave to appeal is sought is an order finding The Plumbers

and Gasfitters Employees' Union of Australia guilty of contempt

of court in failing to lift bans in relation to those sites as

required by the orders made by his Honour on 6 April 1987.

In the vlew of the Court it is not necessary to seek

leave to appeal from the orders of Wilcox J holding the

organizLtion guilty of contempt and, therefore, we make no order in that regard. However, I would add on behalf of the Court that

had we taken the view that leave is necessary, we would have been

disposed to grant leave, amended in the form that Mr Kenzie

4.

mentioned to include an application for leave to appeal also

against the order for costs. We make that comment, however,

without expressing any view as to the prospects of success in the

appeal.

In regard to the question of staying the order which is current and which in the case of each site relates to a penalty of $20,000 ordered to be paid to the Registrar of this Court by tomorrow, different considerations apply. The question whether a stay of an order made by a trial judge will be granted is a

matter which rests in the discretion of the Court. It is

necessary for anyone who applies for a stay to demonstrate that it is a case for a stay. The presumption is that the decision of the trial judge, unless and until it is otherwise decided by a superior court, is correct.

It is sometimes put on the basis that "special" or

"exceptional" circumstances must be shown before a stay will be

granted or, as it was put in Alexander v Cambridse Credit

Corporation (1985) 2 N.S.W.L.R. 685, that it is an "appropriate" case, although their Honours of the Court of Appeal did not lay

down what were the limits of the appropriate cases.

The decisions show that where the subject matter of the

appeal wlll disappear unless a stay is granted there is an obvious case to hold the position pending the hearing of the appeal; or, if the positions of the parties are golng to alter

5.

dramatically in some fashion, then there may be a case made out for a stay of the operation of the order pending the decision on the appeal so that the right of appeal is not rendered nugatory.

But the cases before us do not fall into any of those categories;

the position of the organization in regard to its appeal will not

be defeated if a stay be not granted.

In these circumstances, it appears to us that a case has

not been made out for the discretion of the Court to be exercised

in favour of granting a stay of the orders for the payment of

money to the Registrar which were made by Wilcox J. So far as the

costs of the motion heard today are concerned, it is considered that the costs should be reserved to be decided by the Court that hears the appeal.

preceding pages are a true copy	I certify that this and the 4
of the Reasons for Judgment
herein of the Chief Judge, Sir
Nigel Bowen ,
Dated: 9