Mudginberri Station Pty Ltd v Australasian Meat Industry Employees' Union and Others

[1986] FCA 316

Re: MUDGINBERRI STATION PTY. LTD.
And: THE AUSTRALASIAN MEAT INDUSTRY EMPOLYEES' UNION; JACK O'TOOLE; TREVOR
SURPLICE; DICK ANNEAR and PAT ROUGHAN
No. NSW G123 of 1985
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.
Pincus J.
Burchett J.

CATCHWORDS

Administrative Law - appeal from decision of the Administrative refusing adjournment - Discretion of trial judge - Relevant considerations where adjournment sought to enable another action to be decided first.

Trade Practices Act 1974, s.45D

Bloch v. Bloch (1981) 37 A.L.R. 55

Maxwell v. Keun (1928) 1 K.B. 645

Port of Melbourne Authority v. Anshun Proprietary Limited (1981) 147 C.L.R. 589

Cameron's Unit Services Pty. Ltd. v. Kevin R. Whelpton Associates (Australia) Pty. Ltd. (1984) 4 FCR 428

Rochfort v. John Fairfax & Sons Ltd. (1972) 1 NSWLR 16

HEARING

SYDNEY

#DATE 26:6:1986

JUDGE1

On 4 June 1986, we heard applications in this matter,

and made orders, reserving our reasons, which we now deliver.

1. The principal application before us was one for leave to appeal against a refusal by Morling J. to adjourn an application brought under s.45D of the Trade Practices Act 1974.

2. The history of the litigation is somewhat complex, but an abbreviated version will be enough for present purposes. On 24 May 1985, the present respondent, which will be called "Mudginberri", filed an application under s.45D seeking an injunction and damages against the present applicants, who will be called, collectively, "the union". During the course of the hearing of that application before Morling J., Mr. J.D. Pendarvis gave evidence intended to satisfy one of the requirements of s.45D. In order to succeed, Mudginberri, being "the fourth person" mentioned in par.(b) of s.45D(1), had to show that:
   
   

"the fourth person is a corporation and the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing -

(i) substantial loss or damage to the

business of the fourth person or of a body corporate that is related to that person; or

(ii) a substantial lessening of competition in any market in which the fourth

person or a body corporate that is related to that person supplies or acquires goods or services."

1. Mudginberri relied upon sub-par.(i), not sub-par.(ii), and obtained a finding from Morling J. in terms of that sub-paragraph. His Honour was satisfied that the conduct "is engaged in for the purpose and is likely to have the effect of causing substantial loss or damage to the applicant's business". That finding was, no doubt, based in part upon the evidence we have mentioned, which was concerned with the difference between the export and domestic prices of certain meat. On 12 July 1985, Morling J. granted injunctions against the union under s.45D and an appeal against that decision was dismissed on 10 September 1985. His Honour then began to hear evidence in Mudginberri's claim for damages, which had been adjourned to allow the union to appeal against the grant of injunctions. Morling J. heard evidence in the damages claim on 20 days in late 1985 and early 1986. In February 1986, according to the union's case, Mr. Pendarvis gave evidence inconsistent, as to the issue of the damaging effect of the conduct complained of, with that on the basis of which Mudginberri had obtained the injunctions from Morling J. It is unnecessary, and appears to us to be undesirable, to analyse the complaints which are made about the evidence of Mr. Pendarvis, particularly as they are to come before the Full Court again in the proceedings mentioned below.

2. On 3 March 1986, the union instituted separate proceedings, numbered VG36, asking inter alia that the injunctions granted and other orders made by Morling J. on 12 July 1985 be set aside, on the ground that they had been procured by fraudulent evidence given by Mr. Pendarvis, being that briefly alluded to above. During March 1986, Morling J. continued to hear the claim for damages, but in April it was suggested to him by counsel for the union that the case should be adjourned; on 16 April 1986, Morling J. gave the decision which is the subject of the present application and said, in effect, that he would not adjourn the claim for damages pending the resolution of the collateral attack upon his judgment of 12 July 1985. In the meantime, Mudginberri had made an attempt to have the union's application in VG36 struck out, but Gray J. refused that application so far as it related to the union's claim against Mudginberri. We have been told that the decision of Gray J. is also the subject of an application for leave to appeal, filed on 3rd June, 1986 and it may well be that the question of the strength of the union's claim in that case will be agitated on the hearing of that application for leave to appeal; however that may be, there is no need to discuss its strength here.

3. That is so because, in our view, this application for leave should not in any event have succeeded. As Wilson J. said, speaking for the Full High Court, in Bloch v. Bloch (1981) 37 ALR 55 at 58:
   
   

"The decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, and it is indeed seldom that an appeal court will feel justified in reviewing such a decision."

See also Maxwell v. Keun (1928) 1 KB 645 to which Wilson J. referred. In determining the application for an adjournment, Morling J. had to weigh various considerations of convenience, delay and justice. At the time when he refused the application, he had spent many days hearing the matter and it was then very close to a conclusion. Counsel for the union, Mr. Ashley Q.C., argued that if Morling J., who had completed the hearing, was not prevented from giving judgment, he might make findings with respect to the evidence of Mr. Pendarvis, referred to above, which would constrain the Court which determines the application VG36. He did not refer us to any authority in favour of the view that, when proceedings of the type of VG36 are brought, any court hearing what might be called for simplicity the original proceedings must stay its hand. In our view, the question whether it does so or not is very much a discretionary matter, and, of course, primarily one for the judge to whom the application for adjournment is made. The possibility to which counsel alluded is one consideration. The right of the opposing litigant to a hearing of its claim for damages is another. The extent to which the trial judge will in fact be making findings impinging upon the collateral proceedings is a further consideration.

1. The last matter could not be said to point only in one direction. A Judge who is asked in these circumstances to postpone deciding a matter, in respect of which all available evidence has been called, to confer precedence upon a substantially later decision to be given by another judge, ought not to lose sight of the possibility in human affairs that the opposing litigant may never again be able to present his case concerning the critical issue upon precisely that evidence. One or more of the witnesses who, we have been told, have supported the truth of Mr. Pendarvis's evidence may not be available when the collateral proceeding is heard. On the other hand, the issues in the collateral proceeding being different from those necessarily involved in the damages claim, the reality and extent of any issue estoppel must, in some measure, be a matter of conjecture. Counsel for the applicant did not formulate any precise issue upon which he said an issue estoppel will probably be brought into existence in the event that Morling J.'s decision is adverse to the applicant. See Port of Melbourne Authority v. Anshun Proprietary Limited (1981) 147 CLR 589.

2. In any event, the incidental effects of an earlier judgment on later proceedings must not be allowed to assume undue importance: it is the law which gives to the judgment its reach into the future, but the judge's primary concern must be the just and lawful decision of the case presently before him. Even in the context of a pending criminal proceeding, involving substantially similar issues, upon an application for an adjournment to accord priority to that criminal proceeding, "The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with" - see Cameron's Unit Services Pty. Ltd. v. Kevin R. Whelpton Associates (Australia) Pty. Ltd. (1984) 4 FCR 428 at 431. As the Court of Appeal Division of the Supreme Court of New South Wales (Sugerman A.C.J., Holmes and Mason JJ.A.) made clear in Rochfort v. John Fairfax & Sons Ltd. (1972) 1 NSWLR 16, that is not a light burden.

3. Where there is no question of absence of jurisdiction, breach of the rules of natural justice, or other positive error, a mere refusal of an adjournment can very rarely, we think, be a fit subject for a grant of leave to appeal. The transcript discloses that Morling J. had placed before him, and weighed carefully, those considerations which have been debated before us. It appeared to us to be extremely unlikely that, if the matter were more fully argued, the conclusion at which his Honour arrived would be upset. The application for leave to appeal was accordingly refused.

4. There was another application before us, relating to the one just mentioned. Mudginberri pointed out that the length of time which, in accordance with the rules, must be allowed between filing an application and its return date was, as to the application by the union, short by one day. In consequence, Mudginberri applied for dismissal of the union's application on the ground that it was incompetent and for other relief. It seems clear that the application for leave to appeal was competent, although it has, for reasons of substance, failed; the time deficiency did not invalidate the union's application.

5. In the result, both applications were dismissed, with costs.