JUDGMENT No. 4357.23. CATCHWORDS PRACTICE AND PROCEDURE - application for stay of proceedings - proceedings under Trade Practices Act and for trespass ~ no basis for stay - application dismissed. , Trade Practices Act 1974 CONCRETE CONSTRUCTIONS (NSW) PTY. LIMITED Vv. AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION; BULLDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION OF NEW SOUTH WALES; STEVE BLACK; WILLIAM ROSS HEFFERNAN; DOUGLAS SIDDONS; DAVID CRODEN; LARRY GAINES; WILLIAM MATCHETT; ZELKO JOSEPH MARIC; TERENCE DOYLE No. G950 of 1988 Morling J. 6 May 1988 —| Sydney h IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: JUDGE MAKING ORDER DATE OF ORDER WHERE MADE ) ) ) No. ) ) CONCRETE CONSTRUCTIONS (NSW) G 950 of 1988 PTY. LIMITED Applicant AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' FEDERATION First LABOURERS' Respondent BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION OF NEW SOUTH WALES Second STEVE BLACK Third WILLIAM ROSS HEFFERNAN Fourth DOUGLAS SIDDONS Fifth DAVID CRODEN Sixth LARRY GAINES Seventh WILLIAM MATCHETT Eighth ZELKO JOSEPH MARIC Ninth TERENCE DOYLE Tenth MINUTE OF ORDER Morling J. 6 May 1988 Sydney Respondent Respondent Respondent Respondent Respondent Respondent Respondent Respondent Respondent tu THE COURT ORDERS that the application by the fourth respondent to stay the proceedings against him he dismissed. NOTE: Settlement and entry of orders 1s dealt with in Order 36 of the Tederal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 950 of 1988 GENERAL DIVISION BETWEEN: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: MORLING 3. CONCRETE CONSTRUCTIONS (NSW) PTY. LIMITED Applicant AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION First Respondent BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION OF NEW SOUTH WALES Second Respondent STEVE BLACK Third Respondent WILLIAM ROSS HEFFERNAN Fourth Respondent DOUGLAS SIDDONS Fifth Respondent DAVID CRODEN Sixth Respondent LARRY GAINES Seventh Respondent WILLIAM MATCHETT Eighth Respondent ZELKO JOSEPH MARIC Ninth Respondent TERENCE DOYLE Tenth Respondent re hy - : $3) te a so wo a EX TEMPORE REASONS FOR JUDGMENT ON APPLICATION TO STAY PROCEEDINGS This 1s an application that the proceedings against the fourth respondent be stayed. The other respondents have not appeared. Mr Littlemore who appears for the fourth respondent Mr Heffernan, has put a number of submissions in support of the application. First, he submits that the proceedings in this Court involve proof that Mr Heffernan has committed a felony and that any civil proceedings in which that issue is involved should not be heard pending determination of the issue in criminal proceedings. In my opinion this submission fails in limine. I do not think there 1s any allegation in the amended application that Mr Heffernan has committed a felony. What 1s alleged against him, in this respect, 18 no more than that he has engaged in conduct proscribed by s. 45D of the Trade Practices Act. If Mr Littlemore's submission is correct, 1t would never be possible to bring proceedings under s. 45D since the proceedings would, per se, be proceedings 1n which a felony 1s alleged. This cannot be the law. I see no ground for granting the application because of the first matter urged by Mr Littlemore. The second argument relied upon is that the Court has a discretion to stay the proceedings and that in the exercise 3. of that discretion I should stay them. Mr Littlemore submits that as his client is charged with an offence under the Enclosed Lands Act, he will, of necessity, be prejudiced if the proceedings in this Court continue before the proceedings under the Enclosed Lands Act are concluded. He concedes that whether a stay should be granted 1s a matter of discretion but Says that his client would lose his right to silence if the case proceeds in this Court. I do not think that in the exercise of my discretion I should stay the proceedings. The application is brought at a very late stage and after a similar application has failed. More importantly, no undertaking of any kind has been proffered that if a stay is granted, Mr Heffernan will refrain from entering upon the applicant's land without its consent. Tt is put by Mr Littlemore that the applicant's appropriate remedy is to return to the Local Court and ask the Magistrate to impose as a condition of Mr Heffernan's bail that he not enter the applicant's premises. With the benefit of hindsight, it may well have been appropriate for the informant in the proceedings in the Local Court to have sought such a condition of bail. I am not 1n a position to know, of course, whether the Magistrate would have imposed such a condition but the fact is that there 1s no such condition attaching to Mr Heffernan's bail. I should add that there 1s no evidence before this Court as to the exact nature of the charge against Mr Heffernan, as to which property 18 involved, or as to when the alleged offence 1S said to have occurred. Another diffaculty in the way of giving effect to Mr Littlemore's submission is that even if the Magistrate attached to Mr Heffernan's bail a condition that he not enter the applicant's premises such a condition would presumably lose its effectiveness when the proceedings in the bLocal Court terminate. I do not think I should assume - nor would Mr Littlemore want me to assume - that the proceedings in the Local Court will succeed and that it will be open to the learned Magistrate to make some form of order which would have a restraining effect on Mr Heffernan's future conduct. It 1s plain from what has been urged in support of the application that Mr Heffernan does not dispute that he has entered the applicant's premises. Rather, his counsel have indicated that he claims to have entered under some right or colour of right. I do not see that any real prejudice will occur to Mr Heffernan if the proceedings continue in this Court and I therefore decline to stay them. I certify that this and the three (3) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Morling. Associate: eZ ove lh Date: 6 May 1988 wee JD are Counsel for applicant: Counsel instructed by: for respondent: Date of instructed by: Hearing: Date of Judgment: A.B. Shand Q.C. with D.A. Cowdroy Westgarth Baldick S.M. Lattlemore with M. L. Brabazon Geoffrey Edwards & Co. 6 May 1988 6 May 1988