Construction, Forestry, Mining & Energy Union v Boral Resources (Vic) Pty Ltd & Ors

[2015] HCATrans 3

[2015] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M8 of 2015

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Applicant

and

BORAL RESOURCES (VIC) PTY LTD (ACN 004 620 731)

First Respondent

ALSAFE PREMIX CONCRETE PTY LTD (ACN 003 290 999)

Second Respondent

BORAL BRICKS PTY LTD (ACN 082 448 342)

Third Respondent

BORAL MASONRY LTD (ACN 000 223 718)

Fourth Respondent

BORAL AUSTRALIAN GYPSUM LTD (ACN 004 231 976)

Fifth Respondent

BORAL WINDOW SYSTEMS LTD (ACN 004 069 523)

Sixth Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 30 JANUARY 2015, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MS R.M. DOYLE, SC:   If it please the Court, I appear with MS P.C.G. KNOWLES for the applicant on the application.  (instructed by Slater & Gordon)

MR S.J. WOOD, QC:   If it please the Court, I appear with my learned friend, MR D. TERNOVSKI, for the respondents to the application.  (instructed by Herbert Smith Freehills)

HIS HONOUR:   Yes, Ms Doyle.

MS DOYLE:   Your Honour no doubt has our summons and our summary of argument and the affidavit in support.  Your Honour will then have seen that the gist of today’s application is as follows.  Boral parties have obtained a default judgment that relies on a pleading which itself turns on an allegation that there has been the commission of the tort of intimidation or, in the alternative, conspiracy to commit the tort of intimidation.  The central legal question that arises for all purposes is our submission that the tort of intimidation does not form part of the common law of Australia.

To put it in brutally simple terms, our submission in support of this stay application is principally that if we are right about that, the default judgment has been wrongly obtained and we are all hurtling towards a trial or a hearing of the assessment of damages to be based on that default judgment which would be wasted if we are correct in that submission.  Obviously I need to develop each of those, but that is the gist of it.

HIS HONOUR:   Well, have you approached the Supreme Court?

MS DOYLE:   No, we have not, your Honour.

HIS HONOUR:   Why not?

MS DOYLE:   These are the reasons, your Honour.  Cognisant of the background to this and related matters or similar matters and the way in which they have been handled by the Supreme Court and this Court, we took the following course.  Your Honour will see from the materials, but I perhaps need to highlight the dates, that this matter, the underlying matter pursued by the Boral parties, has not been treated as urgent until about September last year.  The Trial Division of the Supreme Court then set down the hearing of the assessment of damages at a time when it was known that we were listed before the Court of Appeal - in other words, when the appeal was pending - and there was a program set out which required certain steps to be taken even while awaiting that outcome. 

The outcome or the decision of the Court of Appeal was handed down on 19 December, either the last or virtually the last working day of the year.  Shortly thereafterwards, I think in fact between Christmas and New Year, we received the formal instructions to seek special leave to appeal in this Court. 

Knowing that a related set of proceedings had come before this Court late last year, November 2014, where similarly a stay had been sought, although in different circumstances, including a question of discovery of documents, and aware of the way in which the Supreme Court had treated that matter, namely, granted a very short‑term condition of stay, conditional upon my client in that matter seeking special leave in this Court, seeking it with expedition, and the way in which the stay was expressed to expire, required in effect an application to this Court to refresh or renew the stay.

In light of those considerations, with the Christmas break upon us, both courts significantly shut down, and the knowledge that we would need to perhaps approach two courts within a very short period of time, we instead focused on two possibilities:  getting the special leave application ready and filing it, as was done ‑ ‑ ‑

HIS HONOUR:   On the 12th?

MS DOYLE:   On the 12th - approaching the Boral parties to see if for some reason, and there may have been a practical reason - the looming trial in April is quite close and there are a number of trial preparation steps requiring to be taken – whether they would consent to it being stayed, obviating the need for this application or any application.  As is their right, they declined to consent.  The clock was ticking, the decision was made that rather than going through what might just be an intermediate step, a very short‑term stay in the Supreme Court ‑ ‑ ‑

HIS HONOUR:   Well, why should I assume that?  Why should I assume that the Supreme Court would dispose of the matter in that way rather than in another way?

MS DOYLE:   These reasons, your Honour:  it is the way in which a related matter was disposed of.

HIS HONOUR:   Well, you say a related matter.  What is the relationship?  The relationship is the other matter concerns proceedings for contempt, does it not?

MS DOYLE:   It does arising out of the same facts – the same substratum of fact.

HIS HONOUR:   Of course, but this is a private proceeding seeking damages.

MS DOYLE:   It is, your Honour.  There are other matters I should point to.

HIS HONOUR:   Yes.

MS DOYLE:   That court, as is the case with this Court, would be principally concerned with prospects.  Now, in circumstances where there had ‑ ‑ ‑

HIS HONOUR:   Well, so you say.  Surely the Supreme Court – the trial judge to whom presumably this application would have to be made, or perhaps the judge in charge of the relevant list, may also have before him or her information about the state of the lists in that court which I simply do not have.  Why should I be called on to determine the stay without the Supreme Court first being asked and deciding for itself, unencumbered by a pending application for stay in this Court, what it thinks is the appropriate course to follow in a private action between parties about money?

MS DOYLE:   Taking all that on board, your Honour, it is nevertheless the case that the principles in relation to a grant of a stay are not fixed or set in any particular case, although the criterion to which your Honour has been directing my attention is mentioned in the key authorities.  But it does not, in my submission, trump the two core considerations which are prospects of success and the balance of convenience as a whole.  Now, the balance of convenience is affected by a number of matters including those to which your Honour has just pointed, such as the speed with which, for example, a delayed trial could be renewed in the Supreme Court.  I accept that the Supreme Court is the best holder of the knowledge with respect to that procedural matter.

HIS HONOUR:   Well, I would suggest the only holder.

MS DOYLE:   Yes.

HIS HONOUR:   I know nothing of these things.

MS DOYLE:   Unless the parties have been furnished with that information and I can say – in this case I must say we have not.  The other part of the information though which would be significant and which is only held by this Court is this Court’s preparedness and also capacity to accommodate, first, a special leave application with expedition and, secondly, any appeal arising from it.  Now, that would also have been a matter that the ‑ ‑ ‑

HIS HONOUR:   Well, in the ordinary course the leave would be ready for the Melbourne list to be heard on 15 May.

MS DOYLE:   That would be the ordinary course.  I am cognisant of the timetable which requires us to file our written case by 9 February.  In fact, it is substantially ready and I come here today able to tell your Honour although it is only a small matter in terms of days, it could be proceeded with even sooner than that if that were of assistance in terms of bringing it on sooner.  But we appreciate that there are already fixed dates in this Court for the management of those matters.  It is perhaps more ‑ ‑ ‑

HIS HONOUR:   Well, there will be a leave day in Melbourne on 15 May, a timetable which I think, if it departs at all from the timetable fixed by the Rules does so only marginally, would be your summary by 9 February, respondent’s summary by 2 March, reply, if any, by 10 March, 9 March being a public holiday, books by 7 April  puts it well ready for 15 May.

MS DOYLE:   Not only well ready, but of course we could not oppose that and we could move even more quickly if it assisted.

HIS HONOUR:   Well, I do not know, the previous sittings in April would be a leave day I think in Sydney.  I do not know whether there is a vacancy there.  Maybe it could be brought on, but what is to choose between the April motions day and the May motions day when the trial of this matter is set down for, what, 9 April, is it?

MS DOYLE:   On 13 April, your Honour.

HIS HONOUR:   On 13 April.

MS DOYLE:   With all relevant trial preparation steps, if you like, sandwiched between this week and that date.

HIS HONOUR:   Yes.

MS DOYLE:   In any event, they were so sandwiched.

HIS HONOUR:   Yes.

MS DOYLE:   It is said against us with respect to other important aspects of the balance of convenience that Boral will be held out of its damages which are referable essentially to loss of profits, that there is no incurable loss caused to our client and that there will be significant delay.  We dispute each of those three contentions.  With respect to Boral’s position, they have not and will not on any view be held out of loss of profits for any significant period of time in the scheme of things.  The particulars which were filed by those parties in ‑ ‑ ‑

HIS HONOUR:   Well, that assumes that the trial could go on relatively soon after determination of either leave or an appeal.  Why should I assume that?

MS DOYLE:   Your Honour can only assume it in one respect, I accept that.  The parties’ preparedness to have it ready quickly I can speak to.  The Court’s capacity to bring it on at another time I concede I cannot.  But in terms of the length of time that Boral have been held out of their profits, the particulars make it clear that the claim is with respect to loss of profits referable to cancelled or unplaced orders, the last of which crystallised in late November or the first week of December last year, so we are talking about loss that in part crystallised on various dates during 2013 and as recently as the end of 2014. 

We repeat that the Boral parties themselves have not pursued this with any great haste.  In particular, there was a period between May and October where the summons for the assessment referable to their default judgment was not even issued, so several months passed there for no reason that has been explained.

Against that, the Boral parties say in their submissions with respect to my client’s position there is no incurable loss.  Well, the burden of preparing for a trial that, if we are vindicated, ought not be held at all, is not one that can be wholly cured.  There is the spent time and effort in preparation but, more importantly, what is proffered to ameliorate the position is an award of costs.  An award of traditional party/party costs or any reversal of a costs order made against my client will not solve the matter.  Only an award of indemnity costs would represent truly curing the loss in terms of the wasted effort and the holding of a trial that ought not be held.

But we do not see any indication and could not expect that indemnity costs would either be offered or obtained should those circumstances ultimately pertain.  When I say “those circumstances” there, I mean running the trial in April, decision being reserved, the amount perhaps assessed and then ultimately one possible permutation is that special leave has in the meantime been granted.  Another possible permutation is that my client succeeds in the appeal, the entire trial and any costs order hanging off it then having been wasted.

HIS HONOUR:   Your client allowed judgment to go by default?

MS DOYLE:   Yes.  But when I say “allowed” though, I do not want to, unless your Honour wants me to, unpick all the findings of fact about the circumstances in which that happened.

HIS HONOUR:   It did not put on a defence ‑ ‑ ‑

MS DOYLE:   No.

HIS HONOUR:   ‑ ‑ ‑ saying that there is no cause of action known to law of the kind alleged?

MS DOYLE:   It did not, but at the first opportunity that was its argument.

HIS HONOUR:   That is, it allowed judgment to go by default for damages to be assessed.  Why should the assessment wait?  These are two large well‑resourced litigants.  But, in the first instance, why should not those matters be fought out in the Supreme Court, not here?

MS DOYLE:   The first question was fought out on the first return date of the application to set aside the default judgment.  That has always been my client’s argument.  It is based on a set of pleadings which does not disclose a cause of action.  The question then of whether there are two well‑resourced clients is accepted and in a sense therefore one neutralises the other.  It then comes to a competition, or a contest, if you like, between Boral’s assertion that it is harmed by being held out of its lost profits, against the applicant’s submission that that will not be for very long if their position is vindicated and, in any event, we will all, but most significantly my client will, be subjected to a wasted trial.

Other aspects of the balance of convenience obviously include the substantial prospects question which I will work my way back to.  But your Honour commenced by asking me about one criterion among several which has been cited in a couple of cases and my answer essentially is that pragmatic one that I have given which is, rather than seek two stays in two locations, we chanced our arm at a consent position.  It, perhaps unsurprisingly, was not forthcoming.

We then moved to this arena, this Court being the one which will ultimately grapple with the question of whether there are substantial prospects and then indeed the application itself for special leave to appeal, and this Court knowing for itself whether or not that could be accommodated quickly if leave to appeal were granted.  Would your Honour wish me to now cycle back to the question of substantial prospects or ‑ ‑ ‑

HIS HONOUR:   At least for the moment I am prepared to assume that the application for special leave has not insignificant prospect of success.  I express no opinion in framing the assumption in that way about the size of that prospect.  All I am to be understood as saying is that the application is not devoid of prospect.

MS DOYLE:   I accept that, your Honour.  Then, perhaps I should have started with this but the reason that I have put the submission I have in terms of the weight to be given to the question your Honour commenced with is based on the principles that we set out in paragraphs 5 and 6 of our written submissions.

Relying on Jennings as we do, and I should say we meant there to refer to page 685 of Jennings, not page 684, we have set out the criteria (a) to (d) which have traditionally been referred to in these cases, but of course none of those criteria is to be afforded any more weight than the other.  They are not immutable and, in any given case, the reality is that it will turn on its particular facts and prospects of success may or may not loom large or may be easy to answer in a particular case, the balance of convenience will always be matter specific.

It is for that reason that I have highlighted for your Honour some of the sequence of events and the history of this matter which suggests that the balance of convenience is quite finely balanced, if one is talking about delay, irrecoverable loss, how that might be remedied and whether it can be remedied.  It is in that context that we say the balance falls on our side of the ledger because the prospect that a superior court will run what, if we are vindicated, is a trial that ought never be run.

The hearing of an assessment of damages with respect to a wrongly obtained default judgment is wasteful, is pointless, is futile, if it transpires on appeal that the tort on which this has all been founded does not form part of the Australian common law.

Can I jump then to the other matters that we deal with in paragraphs 15 and following in our written submissions?  In paragraph 15, it really just serves to underscore the submission I have just made.  At paragraph 16, we make a submission about the particular features of the sequence of events here, commencing with entry of a default judgment and listing of the matter for an assessment of damages.

This is not a case where a trial, whether it be a civil or criminal, is to be disrupted or is to go off on a discrete point.  This is quite different.  The resolution of the matters that are the subject of this application for special leave and then the substantive appeal, if there be one, will determine whether the Supreme Court assessment of damages trial ought to be or ought to have been heard at all and whether or not the underpinning order of the court was wrongly obtained.

The next point to which we turn is my question of delay, which I think I have probably advanced sufficiently, but just to recap, as we say in paragraph 17, the underpinning events occurred in February/March 2013.  The losses span the period dating from then, February or March 2013 through to December 2014. 

The particulars are attachment 18 to my instructor’s affidavit.  There is no need to turn to them, but having perused them and the detail contained in them myself, it is on that basis that I have submitted to your Honour, and this can be captured from pages 2 and 28 of that document, that they relate to lost or cancelled or not placed contracts that Boral alleges it might have expected would be fulfilled or have garnered them profits up to as late as 19 November last year.

I emphasise all of that because this is not one of those cases where a matter has been languishing because proceedings were not instituted or were not progressed by either party or the court could not accommodate them.  They are in fact reasonably fresh matters in the scheme of commercial trials of this type.  But against that, it should also be noted that preparation for the trial, which is looming on 13 April, is not in fact very advanced.  There are procedural orders extant, one of which is required to be complied with today with respect to the response to particulars and others which track through and require a number of things to be done, culminating with a directions hearing in March.

It is in those circumstances that the particular orders we seek to have stayed are Order 1 of the orders of 20 October which relates to the costs of the summons which were initially ordered to be taxable immediately but most significantly, Order 6 of the orders of 23 October, that is the principal order, the one which fixes this for trial on 13 April, and then it is Associate Justice Daly’s orders of 19 December, which I have just been referring to as the trial preparation orders, Orders 1 to 8 thereof, which are at tab 19 of my instructor’s affidavit, require all the trial preparations steps to be made.

Another point of significance emerges from that, your Honour.  This trial was only set down in late October and the trial preparation steps, of which I speak, were only ordered to be carried out on 19 December, the very same day on which the Court of Appeal handed down its reasons.  That is all in support of ‑ ‑ ‑

HIS HONOUR:   Were the directions for trial given after the Court of Appeal’s judgment was known?

MS DOYLE:   No, just before.  The Court of Appeal sat at five to one from memory and I think - I did not go before Associate Justice Daly but it would have been mid‑morning.  My instructor confirms that, mid‑morning.

HIS HONOUR:   Thank you.

MS DOYLE:   The next matter that we highlight in paragraph 18 of our submissions is the question of delay and the style of damages.  The alleged losses are in the nature of loss of profits substantially and I failed to mention another aspect of the claim that Boral puts which is reputational harm. 

It is our submission that if there is a stay and special leave is refused, for example, or if a subsequent appeal is dismissed, that trial timetable can be revived.  Although it is an ambitious timetable, it has always been one that has assumed the steps could be significantly taken, for example, between January and April this year, mid‑April.  That being the case, if there is a need to revive the trial timetable, one might assume that the revived timetable would also occupy a matter of three or four months, when the clock starts again.

I have already dealt, your Honour, with the Boral parties’ submission put against us in their written outline about the fact that it is submitted there is no incurable loss here.  We make the point about the absence of indemnity costs.  At paragraph 19, your Honour, we set out the matter that we say is relevant to an assessment of the balance of convenience in terms of looking at what each party has done.

Your Honour has highlighted one step omitted to be taken by my client.  We highlight there a delay in the progress of this matter that lies at the feet of the Boral parties, namely the delay between 21 May and 15 October 2013, with respect to pursuing this assessment.

It is then in paragraph 21 that we touch on the matter that your Honour asked me about at the outset and that is the sequence of events since it was clear that we had lost in the Court of Appeal.  As I have already indicated, at receiving that judgment on virtually the last working day of the year, we then had to make certain pragmatic decisions about where to move thereafter.  The special leave application is in.  The preparation of work for it is substantially progressed, if not almost complete.  That only goes, your Honour, to underscore the level of confidence with which I say we can meet any truncated timetable.

Those are the submissions I wish to make on balance of convenience.  If your Honour did wish to hear from me on substantial prospects, there are a number of aspects in the Boral parties’ submissions I would want to address, but I will leave that for reply.

HIS HONOUR:   At least for the moment, no, Ms Doyle.  Do the parties know who the judge is who is assigned to the trial of the assessment?

MS DOYLE:   Yes, unless there has been any change, it is Justice Bell -some change that we have not been informed of or necessitated later but it is Justice Bell, although a number of judges ‑ ‑ ‑

HIS HONOUR:   That is to say, you know to which Judge a stay application could be made.

MS DOYLE:   Yes, although there has been a quirk in the management of all these matters and I am not sure how to formally describe it but it has been made clear to us that Justice Forrest is, to some degree, managing the matters in the list pertaining to these litigants.

HIS HONOUR:   So it may that the judge in charge of the list may alter the trial judge; that is a matter for the internal organisation of the Supreme Court.

MS DOYLE:   It is and I am reminded that in part the reason for that may be that Justice Bell has been on sabbatical so although the matter is assigned to him, your Honour will see from the paper trail, that orders have been made by everyone, ranging from various associate justices to Justice Forrest, to others who have had carriage of the matter.

HIS HONOUR:   Yes. 

MS DOYLE:   If your Honour pleases.

HIS HONOUR:   Thank you.  Yes, Mr Wood.  In the first instance, Mr Wood, you should direct your submissions to what significance, if any, I should attach to the fact that application has not been made to the Supreme Court of Victoria.

MR WOOD:   Yes, your Honour.  Thank you.  Your Honour, judgment was delivered by Associate Justice Derham in dismissing the application to set aside the default judgment on 10 September.  On 20 October, Associate Justice Derham granted these costs orders.  Just three days later on 23 October, Justice J Forrest set the matter down for trial on 13 April.  It is Order 6, as my learned friend has indicated, of those orders which are found at annexure 10 to the affidavit in support which the CFMEU seeks to stay.

On that day, his Honour indicated that the matter had languished long enough and it needed to move on and, as your Honour has observed, he is the Deputy Principal Judge in charge of the Common Law Division.  After that decision by Associate Justice Derham there was obviously an appeal by the CFMEU which was heard very quickly by the Court of Appeal ‑ ‑ ‑

HIS HONOUR:   Well, Mr Wood, I have had Ms Doyle explain to me the chronology of events.  As I say, in the first instance, I would be glad if you would direct your submissions to what significance, if any, I should attach to the fact that application has not been made for a stay in the Supreme Court.

MR WOOD:   Very well, your Honour.  I was trying to and perhaps doing it in a rather long‑winded way, but the short answer is great significance.  On 19 December, in the morning, the CFMEU attempted to ask the Supreme Court to vacate the trial dates.  Prior to the decision of the Court of Appeal, which was handed down at lunchtime that day, that attempt to vacate the trial date of 13 April was unsuccessful. 

The orders of Associate Justice Daly are found at annexure 19 to the affidavit in support and as part of those orders, in paragraph 11 of the orders, Associate Justice Daly indicated that there would be liberty to apply on three days’ notice, if there was to be any attempt to vary those orders.  So, there are three alternatives available, after 19 December or after 12 January when the application for special leave was brought, that is:  one, go back to Associate Justice Daly; two, go to Justice J Forrest -  the judge, as my learned friend has indicated, had overall management of the matter - and depending upon Justice Bell’s availability, approach him.  None of those steps were taken and no reason was given. 

The Supreme Court has indicated that the matter ought proceed on 13 April.  Previous attempts to vacate the trial date have been unsuccessful and if another attempt is to be made, on different grounds, namely, the fact that special leave is being sought, that application ought be made to either Justice J Forrest, Justice Bell or Associate Justice Daly.

HIS HONOUR:   Yes. 

MR WOOD:   That is all I thought I would ‑ ‑ ‑

HIS HONOUR:   Is there anything else you wish to add on that aspect of the matter?

MR WOOD:   No, your Honour.

HIS HONOUR:   Very well.  Yes, Ms Doyle, is there anything you wish to add in reply?

MS DOYLE:   No, only this, your Honour, that I have been reminded that, and it dawned on me as I was making my submissions earlier to your Honour, that Justice Forrest has been, the best way to describe it is, managing these matters and it was in fact Justice Forrest to whom the first approach was made in the other related matter to which I referred at the outset.  His Honour indicated on that occasion that it was not for him to deal with the matter but rather for the High Court.  It is in those circumstances that an even more urgent application was made to Justice Digby, at a time when it was feared that the discovery order would attach and your Honour is familiar with the rest of the background to that matter.

HIS HONOUR:   Yes.

MS DOYLE:   The other thing I have been reminded of is part of the content of Associate Justice Daly’s orders, which are at tab 19 of the

materials – do record in the paragraph titled “Other Matters” some of the background to what Mr Wood has just described, namely the attempt on that morning to have the trial dates vacated for reasons, including the difficulties of particulars and the difficulties with getting it ready in light of the way in which the particulars had been prepared and were expressed. 

My friend has there, in light of that, suggested there were three options open:  approaching Associate Justice Daly pursuant to liberty to apply – well, her Honour had that very morning indicated an adherence to the timetable was required and had declined to vacate the trial.  In any event, on that day, instructions had not been received to seek special leave.  There was then the option of approaching Justice Forrest – we took a pragmatic view of what his Honour’s approach might be.  There was a question of Justice Bell, dependent on availability - we did not seek out any information about his availability.  I ought to make that clear to the Court.  If your Honour pleases, those are the matters in reply.

HIS HONOUR:   Thank you, Ms Doyle.

Construction, Forestry, Mining and Energy Union, the CFMEU, seeks stay of an order fixing trial in the Supreme Court of Victoria of assessment of damages.  That trial is fixed for 13 April of this year.  The CFMEU seeks also stay of other orders which have been made in the Supreme Court of Victoria providing for the timetable for interlocutory steps necessary for the preparation for the trial of assessment of damages.

Those applications arise in the following circumstances.  The respondent to the application, Boral Resources (Vic) Pty Ltd and Others, brought proceedings in the Supreme Court of Victoria claiming damages for the tort of intimidation and conspiracy to commit the tort of intimidation.  The Boral parties obtained judgment in default of defence.  The judgment obtained was an interlocutory judgment for damages to be assessed. 

After interlocutory judgment for damages to be assessed had been entered, the CFMEU sought to set aside the judgment on the ground that the causes of action relied on by the Boral parties are causes of action which should not now be understood to be available under the common law of Australia.  An associate justice of the Supreme Court of Victoria refused the application to set aside the judgment.  The CFMEU appealed against the refusal to set aside the judgment and, by procedures the detail of which do not matter, the application to set aside judgment came on, in effect, as an appeal to the Court of Appeal of Victoria. 

On 19 December 2014, the Court of Appeal dismissed the CFMEU’s appeal against the judgment and orders of the associate justice.  In the meantime, on 23 October 2014, Justice J. Forrest of the Supreme Court of Victoria had fixed the date for trial of the assessment of damages as 13 April 2015, subject to any contrary or other order of the trial judge.  On 12 January 2015, CFMEU, being dissatisfied with the judgment of the Court of Appeal filed application for special leave to appeal to this Court against the judgment of the Court of Appeal.  CFMEU approached the Boral parties and asked whether the Boral parties would agree to vacate the date of trial for the assessment of damages and the various interlocutory orders that related to preparation for that trial, but the Boral parties declined to agree to that course.  CFMEU has not moved in the Supreme Court for an order vacating trial or for an order altering or staying the operation of the orders fixing the time for interlocutory steps to be taken.  Instead, CFMEU comes in the first instance to this Court seeking a stay of the orders which I have identified.

For the purposes of determining the present matter I am prepared to assume without deciding that the application for special leave brought by CFMEU has prospects of success that cannot be dismissed as insignificant.  In expressing that opinion I am not to be understood as forecasting in any way the outcome of the application for special leave.  I am not to be understood as saying what size of prospect the application has.  All I am saying is that I am not prepared to proceed on a basis other than that the application is not evidently hopeless.  Whether leave should be granted in this Court will, of course, ultimately be a matter for those Justices who deal with the matter.

As counsel for CFMEU pointed out, the discretion of this Court to grant a stay is not to be approached on the footing that the matters most commonly identified as bearing upon the issue represent the metes and bounds of those considerations which bear upon the exercise of the very general discretion which this Court has to grant a stay of orders made in the court from which an application for special leave to appeal is brought.

It is to be noticed that the present application for stay is not made to preserve the subject matter of the application for special leave.  Rather, the application for stay is founded ultimately on the proposition that CFMEU should not now be visited with what it would say would be the costs of wasted preparation or a wasted trial if, as it contends, it should have special leave to appeal to this Court and in consequence of a grant of special leave should succeed in that appeal. 

CFMEU submits that the grant of a stay by this Court would lead to the Boral parties suffering no greater consequence than their being held out of a possible award of damages and their being held out of that possible award for only a limited time.

In this particular case I do not consider that this Court should grant any stay of the orders which CFMEU seeks to have stayed without knowing first not only that an application has been made for stay in the Supreme Court of Victoria but also knowing what the outcome of that application is.  This Court should not now grant the stay sought because it is not possible to say from what is now known what consequences would follow from the grant of the stay.  In particular, it is not possible for this Court to judge that aspect of the balance of convenience which depends upon the consequences of unfixing the trial date presently standing at 13 April.

This Court is not in a position to know whether, if that trial date is vacated, a new trial date could be provided soon after the determination of the application for special leave or, if leave were to be granted, the determination of the appeal.  I do note that the order fixing the date for trial was made as long ago as October 2014 fixing the trial for 13 April, a lapse of some several months. 

In this case, at least, this Court should not order a stay without application first having been made to the Supreme Court because in the first instance the management of the business of the Supreme Court, including in particular the management of its lists, is a matter for the Supreme Court.  It is not for this Court to unknowingly fix those matters without the understanding which that court has of the state of its lists. 

As I pointed out to counsel in the course of argument, the litigation which is in issue in this case is between two large, well‑resourced parties.  Neither side of this litigation, I think, can be treated as unused to litigation.  The premise which underpins the application for stay, as it is presently framed, is that the balance is to be struck between wasting preparation for trial and trial against holding Boral parties out of the prospect of monetary award of damages for only a limited time.  The central point to be made at this stage of the matter is that I cannot say how long that time would be if, contrary to the arguments of CFMEU, either leave to appeal were not to be granted or, if contrary to the arguments of CFMEU, leave to appeal were to be granted but the appeal were to fail. 

Lest there be any doubt about it, the dismissal of the application for stay is, of course, dismissal of an interlocutory application.  The dismissal is not to be seen as prejudicing some further application to this Court presumably founded on newly determined information.  But as things presently stand, I am of the opinion that the stay should be refused.  The application is dismissed.  Mr Wood.

MR WOOD:   Your Honour, we seek our costs.

HIS HONOUR:   What do you say, Ms Doyle?  Can you resist costs?

MS DOYLE:   No, except to say that there is the prospect that - the proper order ought to be that costs be reserved for the reasons just adverted to by your Honour.  If there be a fresh stay application brought before this Court based on additional or new information it may be then that the result in that sheds light on the overall disposition of the question of costs but, more than that, I do not substantively resist our proposition that we have obviously lost on this application.

HIS HONOUR:   Yes.  For the reasons I have given the application for stay stands dismissed.  The Boral parties apply for their costs.  CFMEU submits that in this case it may be better to reserve questions of costs against the possibility of some future application for stay.  I do not consider that I should defer determining the question of costs.  The application stands dismissed with costs.

Adjourn the Court.

AT 10.16 AM THE MATTER WAS CONCLUDED