Sharpe, C. v Goodhew, K

[1990] FCA 241

. ,

JUDGMENT NO. 2?!. .. I .... ft..%

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

INDUSTRIAL DIVISION

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:  STEVE 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. JACK KEVIN
CAMBOURN and VICTOR RAYMOND FITZGERALD

Respondents by

DATE OF ORDER:  25 MAY 1990

Cross Claim

MINUTES OF ORDER

JUDGE MAKING ORDER:  PINCUS J.

THE COURT ORDERS THAT:

1.    On the basis of the undertaking as to damages which has been given by Mr Boccabella on behalf of Hughcombe Pty Limited and Federated Engine Drivers and Firemen's Association of Australasia, the fifth respondent be granted leave to cross-claim against the first respondent.

2.   The question of directions with respect to that cross-claim be adjourned to a date to be fixed on application to the Registrar.

3.   Until trial of these proceedings (i.e. the cross- claim) or further earlier order, Mr Goodhew, the first respondent, give up possession of the vehicle referred to in the papers, viz. a White Ford Falcon Sedan, registration number 430-ACC.

4.   Mr Goodhew give up possession of that vehicle together with its keys forthwith to the solicitors for Hughcombe Pty Limited.

5.    The costs of and incidental to today be costs in the proceedings.

NOTE:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	1
9UEENSLAND DISTRICT REGISTRY	)
INDUSTRIAL DIVISION	1 Q16 OF 1989

BETWEEN:  CYRIL SHARPE, ARTHVR 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:  STEVE 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, JACK KEVIN CAMBOURN and VICTOR RAYMOND FITZGERALD
Respondents by Cross Claim

PINCUS J.

BRISBANE

25 MAY 1990

EX TEMPORE REASONS FOR JUDGMENT

This is a matter which arises by way of notice of motion filed on 18 May 1990. It is a notice of motion in Q16 of 1989, which is a suit which I heard late last year and in which I will be delivering judgment on Friday, 1 June 1990. The suit involved, among other things, evidence concerning the alleged financial wrong doing of the first respondent, Mr Goodhew.

The evidence concerning that has been studied by me and is taken into account in deciding the present application. However, about the time the case was heard, there was also a state government enquiry running which concerned similar matters, and I am told by counsel - and it is reported in the press - that the enquirer, Mr Cooke, has produced a report or reports which have not yet been published. There has been discussion of the possibility of criminal proceedings.

I have come to the view that it would be unwise for

me today to say anything in detail about my views concerning

Mr Goodhew's financial management with respect to the union.

The reason simply is that although I do not know whether the report will mention Mr Goodhew's position or say anything

about him by way of adverse finding, there is obviously a risk	of that, and if I made remarks here explaining in detail my
views - and I have some - about the evidence advanced against
Mr Goodhew in the case before me, it would perhaps prejudice
the trial of Mr Goodhew, if there ever is one.
It does, however, create a difficulty for me, because it prevents me from explaining in as much detail as I would have liked to do the reasons why I propose to take the

course which I will shortly announce. That is, to make it perfectly clear, I have studied the evidence in the case which was before me in December, and I have formed certain quite explicit impressions which I do not want to mention. It would be wrong for me to mention those impressons, as it seems to me, whether favourable or unfavourable to Mr Goodhew, in view of the risk that criminal proceedings would be prejudiced one way or the other.

A notice of motion asks for leave to cross-claim

against Mr Goodhew, and that will be granted; it asks for directions and judgment. As I have indicated, I do not propose to give any judgment in a final way because of the affidavit of Mr Anthony Bailey which explains that Mr Bailey has recently been instructed and he has not yet mastered the material, which is indeed quite complex, to my knowledge.

The counsel for Mr Goodhew has appeared today; he

has not said anything about leave to cross-claim, and I do not

suppose it is really of much interest because if there was not	leave to cross-claim a separate suit could be brought. But he
has taken two points which require to be dealt with. First of all, he says there was an order which affected Mr Goodhew's rights to deal with property, and indeed, that was so; and he says that because of the pendency of that order, Mr Goodhew cannot be liable in this suit in respect of the motor vehicle.
That does not seem to me to be strictly correct: if, of example, the motor vehicle was found, in the end, to be the property of the fifth respondent, which is making the claim, then a declaration could be made to that effect, and an order could be made for its return whether or not: there was any defect in the demand made for it.
Further, as the matter has progressed, counsel for the fifth respondent, Mr Boccabella, has lowered his sights and has simply asked for interlocutory relief; that is, all that is at issue is, who should have the possession of the vehicle pending the resolution of the fifth respodent's claim. Therefore, I hold that the order to which Mr Martin refers is plainly not a bar to interlocutory relief.
The second point that Mr Martin took, which seems to me to have more substance, has caused me concern. M r Martin says that in view of the fact that Mr Goodhew is the subject of a criminal charge in relation to the possession of a
vehicle, then if an order is made which concerns possession, it may affect his criminal defence, and he further says - and
there is force in this - that if M r Goodhew goes on affidavit saying, for example, that he is entitled to the vehicle or he is not entitled to the vehicle, then he is abandoning his right to silence.
I have been somewhat concerned to know what to do about this, but it is common ground, and I hold, that there is a discretion as is exemplified in the court of appeal decision in Halabi v. Westpac Bankina Corporation (1989) 17 NSWLR 26. The question is how to exercise the discretion. On the one hand Martin says, assuming all else against Mr Goodhew, assuming he is unlawfully retaining the vehicle, still the policy of the law is infringed because he has to either abandon his right of silence or not defend. Assuming, on the other hand, that M r Goodhew is right in holding the vehicle, then it would be doubly unjust to order him to give up possession pendente lite.
The other side of the coin is that, of course, it happens regrettably often that the necessity to take civil proceedings to recover property and the actual pendency of, or threat of, criminal proceedings coincide. ~t is not an unfamilar problem and the court has to do the best it can to do justice to the parties, including the party which is making the civil claim.
that the grant of interlocutory relief is unlikely, I would interlocutory relief, and I do so principally for the reason I have come to the conclusion that I should grant
have thought, to influence a jury if it comes to their knowledge; the judge who conducts the trial may be able if he thinks it proper, to conceal it from them. The grant of interlocutory relief is made not on the basis that Mr Goodhew is in unlawful possession, but on the basis that there is a
serious question to be tried, and that the convenient course,

plainly is that the possession pending the trial not be in Mr
Goodhew but in Hughcombe Pty Limited.

One reason for that is that I propose to extract from Hughcombe Pty Limited, and also from another party, the federal union, an undertaking as to damages. Whatever the financial position of Hughcombe, it is plain that FEDFA is a substantial organization, and if, in the result, Mr Goodhew is successful in the suit, then the damages undertaking would be unlikely to be empty. If, however, on the other hand, Mr Goodhew retains possession and is unsuccessful in the suit, there is an obvious risk, as Mr Boccabella pointed out, that that loss will simply stay where it falls.

On the basis of the undertaking as to damages which has been given by Mr Boccabella on behalf of Hughcombe Pty Limited and Federated Engine Drivers and Firemen's Association of Australasia, it will be ordered that the fifth respondent be granted leave to cross-claim against the first respondent;

the further order will be that the question of directions with	respect to that cross-claim be adjourned to a date to be fixed
on application to the Registrar; thirdly, it will be ordered that until the trial of these proceedings - that is the cross claim - or further earlier order, Mr Goodhew, the first respondent, give up possession of the vehicle (a white Ford Falcon sedan registration number 430-ACC) referred to in the papers; it will be further ordered that Mr Goodhew give up possession of that vehicle together with its keys forthwith to
the solicitors for Hughcombe. I propose to make the costs costs in the proceedings.

I certify that this and the

six preceding pages are a true copy of the reasons for judgment herein of His Honour Mr Justice Pincus.

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Dated 2 5 /vlv /?W