Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504

Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504

The application for a stay or adjournment was dismissed because the respondents did not discharge the burden of demonstrating real, as opposed to notional, prejudice justifying a stay. The civil proceedings related only to the CFMEU and not the individual respondents who faced criminal charges, and court processes were available to protect the interests of those individuals. Delay would prejudice the regulator and witnesses, and the asserted risks to jury impartiality or the right to silence either did not arise on the facts or were not significant enough to outweigh the ordinary course of civil procedure.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: The Construction, Forestry, Mining and Energy Union; Second Respondent: John Setka; Third Respondent: Shaun Michael Reardon
Jurisdiction
Australia
Judgment Date
11 May 2016
Procedural Posture
Civil Penalty Proceeding / Ruling on Interlocutory Application for Stay
Outcome
Application for stay dismissed; costs reserved
Legal Topics
Stay of Civil Proceedings, Overlap With Criminal Proceedings, Declarations and Injunctive Relief, Balancing of Justice, Mc Mahon V Gould Guidelines
Competition Law Consumer Law Practice and Procedure Stay of Civil Proceedings Overlap With Criminal Proceedings Declarations and Injunctive Relief Balancing of Justice Mc Mahon V Gould Guidelines

Case Brief

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Parties

Australian Competition and Consumer Commission

Applicant

The Construction, Forestry, Mining and Energy Union

First Respondent

John Setka

Second Respondent

Shaun Michael Reardon

Third Respondent

Procedural Posture

Civil Penalty Proceeding / Ruling on Interlocutory Application for Stay

Legal Issues

  1. 1 Whether civil proceedings should be stayed pending related criminal proceedings
  2. 2 Whether relief sought creates prejudice to criminal trial or respondents' rights
  3. 3 Appropriate application of McMahon v Gould guidelines and HLP principles to regulator civil penalty proceedings

Ratio Decidendi

The application for a stay or adjournment was dismissed because the respondents did not discharge the burden of demonstrating real, as opposed to notional, prejudice justifying a stay. The civil proceedings related only to the CFMEU and not the individual respondents who faced criminal charges, and court processes were available to protect the interests of those individuals. Delay would prejudice the regulator and witnesses, and the asserted risks to jury impartiality or the right to silence either did not arise on the facts or were not significant enough to outweigh the ordinary course of civil procedure.

Court Disposition

Application for stay dismissed; costs reserved

Orders

  • The application for a stay of the proceeding not already stayed by order 1 of the Orders of 3 February 2016 is dismissed.
  • All costs of and incidental to the orders made on 4 April 2016, the respondents' interlocutory application dated 11 April 2016 and the respondents' interlocutory application for a stay dated 4 April 2016, be reserved.