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

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

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.

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

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

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

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

In the Federal Court of Australia, several building companies, including Concrete Constructions Pty Ltd, Sabemo Pty Ltd, Leighton Contractors Pty Ltd, Civil & Civic Pty Limited, White Industries Limited, Jennings Construction Limited, Barclay Bros Pty Limited, and John Holland Constructions Pty Ltd, applied for leave to appeal and for a stay of certain orders made by Wilcox J. The orders pertained to injunctions against the Plumbers and Gasfitters Employees' Union of Australia for contempt, specifically for failing to lift bans on building sites. The court had to decide whether the appeal should be allowed and if the injunctions should be stayed pending the appeal.

The legal issues before the court were whether the orders of Wilcox J should be appealed and whether a stay of the orders should be granted. The court examined the grounds for granting a stay of execution of the injunctions, considering whether there were special or exceptional circumstances that warranted such a stay. The court noted that the appeal's subject matter would not disappear if a stay was not granted and that the union's position would not be dramatically altered.

The court found that the union had not demonstrated special or exceptional circumstances that would justify a stay of the injunctions. It was held that the presumption in favour of the trial judge's decision stood unless overturned by a superior court. The court exercised its discretion not to grant a stay, stating that the union's appeal position would not be prejudiced by not staying the orders. The costs of the current motion were reserved for the court that would hear the appeal to decide.

The final orders of the court were that leave to appeal the contempt orders was not necessary, and thus, no order was made in that regard. However, the court noted that if leave were deemed necessary, it would have been granted, possibly amended to include an appeal against the order for costs. The court also ruled that a stay of the injunctions would not be granted, and the costs of the motion were to be reserved for the appellate court.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established