Sharpe, C. v Goodhew, K

[1991] FCA 378

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

BETWEEN: CYRIL SHARPE, ARTHUR SMITH. JOHN BURTON

and PATRICK KEANE

Applicants

AND: KENNETH GOODHEW

First Respondent

AND: BARRY DAY and IAN BARTON

Second Respondents

AND: RALPH ROOTS, BARRY GLOVER and GRAHAM SMITH

Third Respondents

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

Fourth Respondents

AND: HUGHCOMBE PTY LIMITED

Fifth Respondent

AND: MICHAEL SLADE

Sixth Respondent

AND: FEDERATED ENGINE DRIVERS' AND FIREMEN'S ASSOCIATION OF AUSTRALASIA. OUEENSLAND BRANCH, UNION OF EMPLOYEES, JACK KEVIN CAMBOURN and VIC FITZGERALD

Respondents by Cross-

Claim

Spender J. on 4 March 1991 and the costs of and

incidental to today's hearing be Mr. Goodhew's costs
in the application against him for an account.

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.	04 JUL 1991
DATE OF ORDER:	l1 APRIL 1991	AUSTRAW
PRINCIP&
REQISTRV
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.   The application for directions be adjourned to a date to be fixed by the Registrar.

2.   The costs of and incidental to the hearing before

NOTE :

- Settlement and entry of orders i6 dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY I

INDUSTRIAL DIVISION ) No. Q1 6 OF 1989

BETWEEN: CYRIL SHARPE, ARTHUR SMITH, JOHN BURTON

and PATRICK KEANE

Applicants

AND: KENNETH GOODHEW

First Respondent

AND: BARRY DAY and IAN BARTON

Second Respondents

AND:  RALPH ROOTS, BARRY GLOVER and GRAHAM SMITH

Third Respondents

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

Fourth Respondents

AND: HUGHCOMBE PTY LIMITED

Fifth Respondent

AND: MICHAEL SLADE

Sixth Respondent

AND: FEDERATED ENGINE DRIVERS' AND FIREMEN'S ASSOCIATION OF AUSTRALASIA. OUEENSLAND BRANCH. UNION OF EMPLOYEES. JACK KEVIN CAMBOURN and VIC FITZGERALD

Respondents by Cross-

Claim

CORAM: PINCUS J.
PLACE: BRISBANE

DATE: 11 APRIL 1991

EX TEMPORE REASONS FOR JUDGMENT

This is a directions hearing consequent upon an
order I made on 1 June 1990. The reasons for that order
included reference to the then possibility of criminal

I

proceedings against the respondent, Mr. Goodhew. I pointed out that there is no absolute rule that would require the taking of an account against Mr. Goodhew to await the institution of criminal proceedings

The order which I made was that an account be taken by the District Registrar of what sum is due by Mr. Goodhew, and it was also ordered that consideration of directions as to the mode of taking such an account be adjourned to a date to be fixed. That has come on today. The material discloses that Mr. Goodhew has, in fact, been prosecuted. In February, he was issued with a summons to answer complaints alleging the misappropriation of funds, and it is said that there are likely to be further charges.

The counsel who have appeared before me today, Mr. Boccabella and Mr. Murphy, have agreed, and it seems to me correct, that there is a discretion as to whether or not, in these circumstances, the civil proceedings should continue.

proceedings continue is that which Mr. Murphy referred to, The principal consideration against letting the civil	namely, the preservation of the right of silence.
There are, however, two countervailing considerations, one of them referred to by Mr. Boccabella. Firstly, I understand (although the material does not disclose the fact; it has been stated from the bar table) that Mr. Goodhew has given evidence about these matters in an inquiry. He has given public evidence. The second countervailing consideration is that referred to by Mr. Boccabella, namely, that it would be possible to take the account in private and to restrict access to the information disclosed during the taking of the account.
I have been interested to determine to what extent it is likely that the applicants will suffer prejudice because of delay. The evidence about that is not very complete. As Mr. Boccabella points out, its incompleteness may not be by any means the fault of the applicants. It may be that Mr. Goodhew, if he has taken money, has covered his tracks. Nevertheless, the fact is that there is an affidavit saying that the amounts due, or thought to be due (which are listed) are less in total than the value of the unit which Mr. Goodhew has, which is said to be unencumbered. There is also a statement that the estimate of the amount due is $200,000, without any justification for that sum. Mr. Boccabella suggests that the gap is bridged by interest on the $53,000.
seems to me, on the evidence, that one could not assume that It is not clear how long the $53,000 was outstanding, but it
there would be any considerably greater sum of money due, or likely to be due, on the taking of an account, than the value of the unit.
Of course, it could be unjust to the applicants to hold them up from taking an account, giving Mr. Goodhew (if he has misappropriated money) further time to salt it away or to
spend it. One must keep in mind, however, that the matter has been pursued in what seems to be a fairly leisurely fashion since June last year and the excess of what is likely to be found due (if Mr. Goodhew loses) over the value of the unit which he has, is not a very large sum.
Coming back to the suggestion made by Mr. Boccabella that the problem of publicity could be solved by taking the account in private, it is true that accounts are commonly taken in private. However, in a case of this sort it would seem to me rather an odd course to do so. The matter is one of considerable public interest and the authorities say that, in general, Court proceedings should be public.
I am therefore not prepared to assume at this stage that it would be a proper course to conduct the account in private. As to the other matter, I mentioned that the fact that the Cooke Inquiry took evidence in public does not seem to assist the applicants much, because whatever Mr. Goodhew
proceedings. said there cannot be used against him in the criminal
The case is one in which, in my view, although there is a discretion, the applicants have not shown anything of great strength to necessitate proceeding with the account pending the criminal proceedings. I do not propose to dismiss the application for directions, but to adjourn it; the reason for that is that subsequent events may show that a different picture has emerged. For example, it may appear that there is going to be considerable delay in the criminal proceedings, or that Mr. Goodhew is in fact salting assets away or disposing of them, or for some other reason it may appear that the civil proceedings should be brought forward.
On the present material, filed on behalf of the applicants, I am not satisfied that it would be just to give the directions which are sought. I will therefore adjourn the application for directions to a date to be fixed by the Registrar. The only other question is the matter of costs.
The order will be that the costs of the hearing before Spender J . on 4 March and the costs of today's hearings will be Mr. Goodhew's costs in the application against him for an account.

I certify that this and the four preceding pages are a true copy of the reasons

for judgment herein of his

Honour Mr. Justice Pincus. ->

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Associate

Date 1 1 k p r l l 1791