Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97 Appeal from: Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504

File number: VID 486 of 2016

Judges: DOWSETT, TRACEY AND BROMBERG JJ

Date of judgment: 19 July 2016

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment of primary judge – proceeding before primary judge involved allegations of contravention by applicants of Competition and Consumer Act 2010 (Cth) and Australian Consumer Law (Cth) – criminal proceedings commenced against natural person applicants – application by applicants to primary judge for stay of civil proceeding until conclusion of criminal proceeding – primary judge dismissed application – whether leave should be granted to appeal – whether primary judge erred in consideration of prejudice to natural person applicants, constituted by "invidious choice" whether or not to give evidence in civil proceeding – comparison with Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 –whether primary judge erred in consideration of prejudice to natural person applicants, constituted by the exposure of their defences to criminal proceeding, attendant upon the burden of overlapping proceedings, or attendant upon the making of findings and declarations in the civil proceeding – whether primary judge erred in consideration of prejudice to union applicant, in conduct of defence to civil proceeding – whether primary judge erred in failing to take account of primacy of criminal proceeding – whether primary judge erred in failing to differentiate as between private and public applicants in application of principles relevant to stay – application for leave to appeal dismissed