Sharpe, C. v Goodhew, K

[1992] FCA 759

IN THE FEDERAL COURT OF AUSTRALIA )	No. Q1 6 of 1989
QUEENSLAND DISTRICT REGISTRY	)
INDUSTRIAL DIVISION	1

BETWEEN: CYRIL SHARPE, ARTHUR SMITH. JOHN BURTON

AND PATRICK KEANE

Applicants

AND:  KENNETH GOODHEW

First Respondent

BARRY DAY AND IAN BARTON

Second Respondent

R I A L

13 OCT 1992	Third Respondent
-L	COURT OF

ACISTRALIA D: STAN HARDWICK, LES SUMMERS AND P.K. BRADY

Fourth Respondent

AND :  HUGHCOMBE PTY. LIMITED

Fifth Respondent

AND:  MICHAEL SLADE

Sixth Respondent

AND :  FEDERATED ENGINE DRIVERS AND FIREMENS ASSOCIATION OF AUSTRALASIA, OUEENSLAND BRANCH UNION OF EMPLOYEES JACK KEVIN CAMBOURNE AND VIC FITZGErnD

Respondents by Cross-

Claim

MINUTES OF ORDERS

JUDGE W I N G ORDER:	Drummond J
DATE OF ORDER:	17 September, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1.        The District Registrar is authorised to pay an amount(s) out of the funds presently in this Court in matter number Q1 6 of 1989 for the purpose of enabling Mr. Goodhew to further prosecute the appeal from the judgment of the District Court of Queensland given in matter number 2901 of 1991 on 3 July, 1992.

2.        In relation to the costs of today, there will be no order as to costs.

THE COURT DIRECTS THAT:

1.        The amount(s) which the District Registrar is authorised to pay to Mr. Goodhew in accordance with order 1 shall be such amount(s) as the District Registrar considers reasonable for the purpose nominated, but such amount(s) shall not exceed $8,500.00 without further order of this Court.

Mr. Goodhew shall supply the District Registrar with all reasonable information that the District Registrar requires in order to determine what amount(s) should be paid to Mr. Goodhew.

3(a)

The subpoena issued by the respondents by cross- claim to the Commissioner of Police is to be made returnable at 9.15 a.m. on Wednesday, 14 October, 1992.

(b)

The respondents by cross-claim are to deliver a letter to the Commissioner of Police which:

(i)	encloses a copy of Order 27 rule 4A of the Federal Court Rules;
(ii)	advises the Commissioner that if he has any grounds for objecting to producing all

with by the Court on 14 October, 1992;

or any of the documents the subject of the subpoena, those objections will be dealt

and

(iii)    advises the Commissioner that on 14 October, 1992 the Court will deal with any application by the Commissioner for payment of his expenses associated with responding to the subpoena.

NOTE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )	No. Q1 6 of 1989

-	0	1
JNDUSTRIAL DIVISION	)

BETWEEN:  CYRIL SHARPE, ARTHUR SMITH, JOHN BURTON
AND PATRICK KEANE

Applicants

AND :  KENNETR GOODHEW

First Respondent

AND :  BARRY DAY AND IAN BARTON

Second Respondent

AND:  RALPH ROOTS. BARRY GLOVER AND GRAHAM SMITH

Third Respondent

AND:  STAN HARDWICK. LES SUMMERS AND P.K. BRADY

Fourth Respondent

AND:  HUGHCOMBE PTY. LIMITED

Fifth Respondent

AND :  MICHAEL SLADE

Sixth Respondent

AND:  FEDERATED ENGINE DRIVERS AND FIREMENS ASSOCIATION OF AUSTRALASIA. OUEENSLAND BRANCH UNION OF EMPLOYEES JACK KEVIN CAMBOURNE AND VIC FITZGERALD

Respondents by Cross-

Claim

Coram:	Drwnmond J
m:	17 September, 1992

Place: Brisbane

EX TEMPORE REASONS FOR JUDGMENT

This is an application by the first respondent in the action for an order that an amount of $8,500.00, which is currently held in trust by the Federal Court in these proceedings, be released to him. A very brief af fidavit has been filed by Mr Goodhew, in which he deposes to requiring this money to further fund an appeal he has brought in proceedings pending in the District Court of Queensland. There has been considerable information conveyed to me from the bar table, the substantial thrust of which does not appear to be in dispute by M r Goodhew, although he does take issue with a number of the matters which were drawn to my attention by counsel for the applicants and the respondents by cross- claim, which I do not think are particularly germane to the matters I have now to decide.

The manner in which moneys came to be in the custody

of this court is as follows: there was a unit purchased in

Mr. Goodhew's own name in respect of which the applicants made

a claim on the ground that Mr. Goodhew had purchased the unit with the assistance of funds which it is alleged he misappropriated from the union, which is one of the

District Registrar of the Federal Court to be then paid into a	ordered that the unit be sold and the proceeds paid to the respondents by cross-claim. On 1 November, 1991, Pincus J
cash management account with the Commonwealth Bank. I have been informed that the current balance of those frozen funds is about $100,000.00. Mr. Goodhew has sworn that he has no funds of his own with which he would be able to run the appeal proceedings in relation to the District Court judgment if he is not given access to the funds in this court.
It seems to me consistent with principle that if this is indeed the position, then, since the funds in question are the proceeds of the sale of property which, so far as legal title is concerned, was in Mr. Goodhew's own name, he should be given reasonable access to the frozen moneys for the purpose nominated.
I should say that I have been informed, and again, this is not disputed by Mr. Goodhew, that the proceedings in the District Court concern the acquisition of a Gold Coast unit by what appears to be a discretionary family trust associated with Mr. Goodhew. That unit has been sold and the proceeds of sale of that unit brought into court in the District Court.
The question whether Mr. Goodhew has any entitlement to the District Court funds is rather more complicated than the issue of his entitlement to the funds frozen in this court, given that the Gold Coast unit was not purchased in Mr.
Goodhew's name but by a trust which appears to be his family trust, although the full details of the trust arrangements are
not in evidence before me.
I therefore think it is appropriate to make an order giving Mr. Goodhew access to the funds in this court, rather than to direct him to apply for access to the District Court funds, even though the proceedings he is seeking financial
a ss i s t ance t o run a r e proceedings by way of appeal t o t h e
Court of Appeal from a judgment of t h e D i s t r i c t Court.

I	c e r t i f y t h a t t h i s and	t h e preceding
t h r ee pages	is a t r u e copy of	t h e
reasons f o r judgment	here in of	t h e
Honourable	M r .	J u s t i c e Drummond.
Date :	1 7 September,  1 9 9 2