FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    The Applicants’ application for leave to appeal is dismissed.

2.    Within seven days of the date of this Order, the Applicants file and serve any submission as to costs.

3.    If the Applicants file and serve any submission as to costs pursuant to Order 2, then within seven days thereafter the Respondent file and serve any submission in reply.

4.    Should no submission be made pursuant to Order 2, the Applicants pay the Respondent’s costs of the application for leave.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    On 20 November 2014, the respondent (“ACCC”) commenced a proceeding in this Court seeking declarations, injunctive relief, pecuniary penalties, and other relief, under the Competition and Consumer Act 2010 (Cth) (“CCA”) and the Australian Consumer Law, being Sch 2 to the CCA (“ACL”), against the first applicant (“CFMEU”) and two of its officers, being the second and third applicants (“Setka” and “Reardon”, respectively).

2    The primary judge succinctly summarised the nature of the ACCC’s allegations at [2] of Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504 (the judgment from which leave to appeal is presently sought). As his Honour said, the ACCC alleged that:

(1)    the CFMEU contravened s 45E(2) of the CCA and s 50 of the ACL by engaging in certain conduct at a meeting in North Melbourne attended by Mr Setka and Mr Reardon and Mr Paul Dalton and Mr Peter Head of Boral on 23 April 2013, and that Mr Setka and Mr Reardon were directly or indirectly knowingly concerned in or a party to the s 50 contravention (‘April meeting conduct’); and

(2)    the CFMEU contravened s 45D(1) of the CCA by engaging in certain conduct in concert with shop stewards at 12 construction sites in Melbourne – in summary, it is alleged that the CFMEU gave instructions to shop stewards and organisers not to allow Boral to supply concrete to construction sites and certain shop stewards implemented the ‘Ban against Boral’ at those sites (‘s 45D conduct’).

3    The April meeting conduct, as alleged by the ACCC, was to the effect that at the meeting of Setka, Reardon, Dalton, and Head on 23 April 2013, Setka said words to the effect that the CFMEU was at war with Grocon (a construction company), that the CFMEU wanted to cut off Grocon’s concrete supply, that if Boral (a concrete supplier) did not co-operate then the CFMEU would target Boral’s concrete delivery trucks and target Boral’s concrete hatchers for membership, and that the CFMEU would be prepared to facilitate Boral stopping supply by blockading its plants. It was further alleged that Reardon said words to the effect that the CFMEU was going to focus on Boral and that all Boral had to do was stop supply to Grocon for two weeks.

4    In relation to the s 45D conduct, it suffices to say that, in essence, it was alleged that, on 14 February 2013 at a CFMEU shop stewards’ meeting at the Trades Union Hall in Carlton, Victoria, the CFMEU gave an instruction to shop stewards and organisers not to allow Boral to supply concrete to commercial construction sites in metropolitan Melbourne (called in the statement of claim the “Ban against Boral”). The ACCC alleges that, in the months that followed and at various construction sites around Melbourne, the Ban against Boral was implemented by the CFMEU in concert with various CFMEU shop stewards at those sites.

5    On 6 December 2015, Setka and Reardon were each charged with one count of blackmail, contrary to s 87 of the Crimes Act 1958 (Vic). Again, we gratefully adopt the primary judge’s summary of the charges and their relation with the April meeting conduct (at [9]):

The charge-sheet alleges that the accused at North Melbourne in the State of Victoria, on Tuesday 23 April 2013, with an intent to cause a loss to another made an unwarranted demand with menaces of Mr Dalton and Mr Head. The meeting referred to in the charge-sheet is the same meeting which is the subject of the April meeting conduct in this proceeding. Undoubtedly, evidence will be led by the prosecutor of various matters other than the events of 23 April 2013 to prove the necessary element of intent.

6    By consent order made 3 February 2016, the Court ordered that the part of the proceeding for the relief sought in respect of the April meeting conduct be stayed until further order. The remaining part of the proceeding is the s 45D conduct, which is only brought against the CFMEU. The trial in respect of that part of the case is listed to commence on 26 September 2016 on an estimated duration of five weeks. As to the blackmail charges, the Magistrates’ Court of Victoria listed the committal hearing for 2 November 2016, with an estimate of 13 days. The primary judge considered that, if committed or directly presented, the criminal trial of Setka and Reardon would not occur until the end of 2017, but more likely the beginning of 2018 (at [29]).

7    By application dated 4 April 2016, the CFMEU, Setka, and Reardon applied for a stay of the remainder of the proceeding against the CFMEU, relying on grounds that the primary judge set out at [14] and [15] of his reasons:

[14]    …

(1)    that the Court should not make declarations of contravention in respect of issues that are to be determined in the criminal jurisdiction of the County Court or Supreme Court of Victoria, unless the failure to do so would result in irreparable injury, in accordance with the principles set out in Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487 (‘HLP’); and

(2)    that the balancing of justice between the parties favours a stay of the civil proceedings, in accordance with the principles set out in McMahon v Gould (1982) 7 ACLR 202 (‘McMahon’).

[15]    The respondents also seek to have the hearing listed for 26 September 2016 adjourned, relying on general case management principles, to which I will return.

8    The application was heard on 29 April and 9 May 2016. In the course of hearing on 29 April 2016, the primary judge indicated to the parties that, irrespective of any stay application, he was concerned about bifurcating the hearing of the proceeding concerning liability. His Honour’s concern arose out of it being open to the ACCC, at the conclusion of the criminal proceeding, to pursue its case against the CFMEU for the April meeting conduct (which had been the subject of the stay). It appeared to his Honour (as he recorded at [24] of the primary judgment) very undesirable to have two separate hearings. In response to the Court’s indication, the ACCC undertook as follows:

•    to permanently abandon its allegations of contraventions of s.45E of the Competition and Consumer Act and s.50 of the Australian Consumer Law in respect of all of the Respondents and to not thereafter rely upon the April Meeting nor the April Meeting Conduct (as defined in paragraphs 64 and 65 of the Statement of Claim respectively) on the following conditions:

◦    that the trial of the ACCC’s s.45D case is heard by the end of March 2017 (ie. the Stay Application having been ultimately refused after all appeals, if any, are exhausted); and

◦    at the time the trial of the ACCC’s s.45D case commences, the criminal proceedings against at least one of Mr Setka and Mr Reardon for blackmail remain on foot.

9    As Senior Counsel for the ACCC noted in the course of the hearing of the application for leave to appeal, that had the consequence that, subject to the conditions, the ACCC would no longer pursue its s 45E and s 50 allegations, and further that the ACCC would not rely upon the April meeting conduct in support of its s 45D case. In short, no evidence as to the April meeting conduct would be relied upon by the ACCC.

10    It is convenient to set out the elements of what remained of the proceeding in light of that undertaking—i.e., the s 45D conduct—as against the elements of the blackmail offences charged against Setka and Reardon. We gratefully adopt the primary judge’s statement of those elements given at [63] of his reasons for judgment:

(a)    section 45D requires that:

(i)    a person (CFMEU) has engaged in conduct in concert with a second person (shop stewards) that hinders or prevents a third person (Boral customers) from acquiring goods or services from a fourth person (Boral); and

(ii)    the conduct is engaged in for the purpose and would have or be likely to have the effect of causing substantial loss and damage to the business of the fourth person (Boral); and

(b)    in contrast, the criminal charge of blackmail under s 87 of the Crimes Act 1958 (Vic) requires that a person (either or both of the individual respondents) makes an unwarranted demand with menaces to another person (Messrs Dalton and Head) with intent to cause loss to another (Grocon);

11    On 11 May 2016, the primary judge ordered that the application for a stay be dismissed, and delivered written reasons for so ordering. By their application for leave to appeal dated 18 May 2016, the CFMEU, Setka, and Reardon seek leave to appeal from the primary judge’s judgment. On the supposition that leave is granted, they seek the following orders:

1.    Appeal allowed.

2.    Orders of the Federal Court made on 11 May 2016 dismissing the appellants’ application dated 4 April 2016, be set aside, and in lieu thereof, order that the trial of the proceeding against the first appellant for contraventions of s45D of the Competition and Consumer Act 2010 (Cth) in ACCC v CFMEU & Ors (Federal Court proceeding VID 698/2014) be stayed until the conclusion of the criminal proceeding against the second and third appellants for blackmail contrary to s 87 of the [Crimes] Act 1958 (Vic), including any appeals made in those criminal proceedings.

3.    The appellants’ costs of and incidental to this appeal.

4.    The appellants’ costs of and incidental to their applications in the Federal Court dated 4 April 2016 and 11 April 2016, including the hearings on 23 March 2016, 29 April 2016 and 9 May 2016.

5.    Any further or other order that the Court considers just.

12    For the reasons that follow, we would dismiss the application for leave to appeal.

Application for leave to appeal—Legal Principles

13    There is no doubt that the refusal by the primary judge to stay the proceeding was interlocutory. Accordingly, leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth). As the ACCC submitted, the principles concerning a grant of leave are those set out in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–399 and are well settled. It suffices to quote from Ashby v Slipper [2016] FCAFC 63 at [41] (Mansfield, Siopis and Gilmour JJ):

The test for granting leave to appeal from an interlocutory judgment comprises two questions:

(1)    whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(2)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

14    The ACCC was also right in submitting that leave is less-often granted where the impugned ruling is discretionary and is on a matter of practice or procedure: Oswal v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) (2011) 85 ACSR 531 at [11] (Mansfield and Foster JJ); Fuller v Toms [2012] FCAFC 155 at [16] (Siopis, Gilmour and McKerracher JJ). In Hogan v Australian Crime Commission (2010) 240 CLR 651, in a passage relied upon by the ACCC, the High Court (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) at [34] said this (emphasis added; citations omitted):

Appellate intervention in matters of practice or procedure, where no questions of general principle are at stake, has been said to require the exercise of particular caution.

15    The italicised portion may, in some cases, be an important qualification, as in this case.

16    Again it is well established that before a court will overturn an exercise of discretionary judgment—and there is no issue that the judgment in question was of that nature—the kind of error identified in House v The King (1936) 55 CLR 499 must be established. That is, as Dixon, Evatt and McTiernan JJ said at 504–505:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

17    Thus, it is not enough to overturn a discretionary judgment that the appeal judges would have weighted considerations differently to the primary judge: see Markarian v The Queen (2005) 228 CLR 357 at [25], [27], [28] (Gleeson CJ, Gummow, Hayne and Callinan JJ). Barker, Katzmann and Beach JJ put it thus at [31] of Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118:

Treating errors about weight alone as a sufficient basis for setting aside a discretionary judgment may be conducive to an appellate court taking the impermissible approach of finding error merely because it would have weighted various factors differently from the primary judge and, as a consequence, come to a different result. As Dixon, Evatt and McTiernan JJ observed in House v The King itself and as seven judges of the High Court emphasised in their joint decision in Lowndes v The Queen (1999) 195 CLR 665 at [15], an appellate court may not substitute its own opinion for that of the primary judge merely because it would have exercised its discretion differently.

Discussion

18    In Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, a Full Court of the High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) dismissed an appeal from a judgment of a Full Court of the Court of Appeal of the Supreme Court of Victoria (Zhao v Commissioner of the Australian Federal Police (2014) 43 VR 137 (Nettle, Tate and Beach JJA)). The facts of Zhao and the legal principles discussed were relied upon by the applicants and need to be set out. It is convenient to commence with the facts.

19    Xing Jin (“Jin”) was changed with dealing with the proceeds of crime. It was alleged that he aided and abetted Mae Ja Kim to deal with money or property that was the proceeds of crime and worth $100,000 or more, contrary to ss 11.2 and 400.4 of the Criminal Code (Cth). The substantive offence from which the proceeds were alleged to have been derived was living on the earnings of sex workers, contrary to s 10 of the Sex Work Act 1994 (Vic). Jin denied the allegations. By the time that the judgment of the Court of Appeal was delivered, Jin had been committed to stand trial. Jin’s wife Qing Zhao (“Zhao”) had not been charged.

20    Jin was the registered proprietor of real property in Southbank, and was director of a company that was the registered proprietor of a Jeep motor vehicle. Zhao was the registered proprietor of real property in Donvale, where Jin and Zhao lived. In July 2013, on the application of the Commissioner of the Australian Federal Police (“Commissioner”), the County Court of Victoria made orders under the Proceeds of Crime Act 2002 (Cth) (“POC Act”) restraining the disposition of that property. Shortly thereafter, the Commissioner applied for forfeiture of the restrained property. In each proceeding the Commissioner alleged that the property was the proceeds of the commission of the offence of dealing with the proceeds of crime worth $100,000 or more, contrary to s 400.4(1) of the Criminal Code, and the underlying offence was again living on the earnings of sex workers contrary to s 10 of the Sex Work Act. Thus, as the primary judge in this proceeding observed at [40], the offence and pertaining circumstances in issue in the civil proceeding were substantially identical to what was in issue in the criminal proceeding.

21    In September 2013, Jin and Zhao filed applications for orders, under the POC Act, excluding the Donvale and Southbank properties from the restraining orders, an order for exclusion from forfeiture, and a compensation order. In November 2013, Jin and Zhao filed applications under the County Court Act 1958 (Vic) for a stay of the forfeiture proceedings, and of the exclusion and compensation applications, until after the charges pending against Jin had been heard and determined. The applications were supported by evidence from Jin, about which more will be said. The judge rejected the applications for a stay (Zhao v Australian Federal Police (unreported, County Court of Victoria, Judge Lacava, 3 December 2013)). Zhao and Jin appealed to the Court of Appeal, where they were successful. The Commissioner appealed to the High Court; the appeal was dismissed with costs.

22    We turn, then, to the reasoning in Zhao to extract the following principles of relevance to the issues here raised:

(i)    where both civil and criminal proceedings are pending, a stay of the civil proceeding will be ordered where “the interests of justice require such an order”: Zhao (HC) at [36];

(ii)    a court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending: Zhao (HC) at [35];

(iii)    to warrant a stay of the civil proceeding, “it must be apparent” that the accused “is at risk of prejudice in the conduct of his or her defence in the criminal trial”: Zhao (HC) at [35];

(iv)    the risk of prejudice must be real and, in considering what the interests of justice require, that risk is to be weighed against the prejudice that a stay of the civil proceeding would occasion: Zhao (HC) at [47] and [50].

23    The reasoning of both the High Court and the Court of Appeal in Zhao recognised that a potential prejudice for an accused is that evidence given by that person in a civil proceeding would reveal or telegraph information to the prosecutor about the accused’s defence in the criminal proceeding. The potential to advantage the prosecutor was regarded by the Court of Appeal as an infringement of the privilege against self-incrimination and the right to silence. The High Court relied upon a different but related foundation. As the Court noted at [18], by reference to the fundamental principle of the common law as explained in Lee v The Queen (2014) 253 CLR 455 at [32]–[33], the prosecution is to prove the guilt of an accused person and cannot compel a person charged with a crime to assist in the discharge of its onus of proof.

24    Both the Court of Appeal and the High Court considered whether the risk of prejudice in a criminal proceeding, arising from the accused first giving evidence in a civil proceeding, could be overcome or negated by protective orders made in the civil proceeding. The Court of Appeal held that the making of non-publication orders suppressing evidence given in the civil proceeding was not “the best the court can do” to protect the accused’s privilege against self-incrimination, and that in those circumstances a stay was warranted (at [62]–[63]). The High Court, at [46], said this:

The Court of Appeal’s view, that protective orders would not suffice to remove the risk of prejudice to the second respondent’s defence, is clearly correct.

25    The High Court also observed (at [44]) that closing the court as a means of attempting to maintain the confidentiality of evidence given by an accused in the civil proceeding was not a proper reason for departing from the open court principle.

26    It is necessary to mention McMahon v Gould (1982) 7 ACLR 202. In that case, Wootten J set out these guidelines applicable to consideration of an application for the stay of a civil proceeding by reason of the pendency of a criminal proceeding (at 206–207, citations omitted, emphasis in original):

(a)    Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;

(b)    It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;

(c)    The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with;

(d)    Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e)    The court’s task is one of “the balancing of justice between the parties”, taking account of all relevant factors;

(f)    Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;

(g)    One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused’s “right of silence”, and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding. I return to this subject below;

(h)    However, the so-called “right of silence” does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding;

(i)    The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;

(j)    In this regard factors which might be relevant include:

(i)    the possibility of publicity that might reach and influence jurors in the civil proceedings;

(ii)    the proximity of the criminal hearing;

(iii)    the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;

(iv)    the burden on the defendant of preparing for both sets of proceedings concurrently;

(v)    whether the defendant has already disclosed his defence to the allegations;

(vi)    the conduct of the defendant, including his own prior invocation of civil process when it suited him;

(k)    The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant’s obligation to the plaintiff;

(l)    In an appropriate case the proceedings may then be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed.

27    As Mortimer J said in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 47, at [95], there have been suggestions in some cases that “the principles provide insufficient protection to prospective defendants, in particular because what Wootten J had to say about the right to silence gives insufficient weight to the privilege against self-incrimination, and the indirect or derivative use of evidence in a subsequent criminal proceeding, if there is no stay”. While this was the subject of submissions before the primary judge (see [36] et seq of the applicants’ submissions before the primary judge), the issue did not really arise on appeal. The applicants submitted that Wootten J’s guidelines were, after all, only guidelines and no attack on the continuing authority of McMahon was advanced.

Prejudice to Setka and Reardon—“Invidious Choice”

28    The applicants contended that the primary basis why a stay of the s 45D proceeding should have been granted is the potential prejudice to the conduct by Setka and Reardon of their defences in the blackmail proceeding. That was said to be the principal question in the appeal. Reliance was placed on the judgments in Zhao to support the contention that the potential for prejudice to Setka and Reardon had not properly been taken into account by the primary judge. It was contended that Setka and Reardon were in a similar position to that faced by Jin and, in particular, that Setka and Reardon faced the same kind of “invidious choice” that was faced by Jin, giving rise to the same problem.

29    For the reasons that follow, the comparison with the position of Jin is misplaced.

30    It may be accepted that the reasoning in Zhao would strongly support the grant of a stay, if it were the case that Setka and Reardon were being compelled to give evidence in the s 45D proceeding at a time prior to the hearing of the blackmail proceeding. If that were the case, and given the “very substantial overlap in the alleged facts” recognised by the primary judge at [17], the reasoning in Zhao would suggest that the fundamental principle that the Crown must prove its case in the blackmail proceedings without the compelled assistance of an accused would be infringed. The reasoning in Zhao further suggests that protective orders made in the s 45D proceeding would not suffice to protect Setka and Reardon from the risk of prejudice.

31    There was, however, no evidence before the primary judge that the CFMEU or any other party intended to compel Setka or Reardon to give evidence in the s 45D proceeding. It is true that Jin was in the same position. Jin was not compelled to give evidence in the forfeiture proceedings. He could have declined to do so. He had a choice. The applicants describe it as an “invidious choice”. The applicants contend that the existence of an invidious choice of the kind faced by Jin in Zhao is sufficient to warrant the grant of a stay. They say the same invidious choice confronts Setka and Reardon.

32    It is clear that the approach taken in Zhao was not based upon the fact that Jin was involuntarily compelled to give evidence in the forfeiture proceeding. Rather, on the basis of evidence from Jin as to the topics to which he “would need or wish to depose in the forfeiture proceedings”, the Court of Appeal considered that, if the forfeiture proceeding was not stayed, the Crown “would” be informed of Jin’s likely defence to the criminal charges (see the reasoning of the Court of Appeal at [59]–[60] and the High Court at [17]).

33    The High Court in Zhao (at [43]) did not think it necessary or appropriate for Jin to have deposed to the substance of the evidence he would give in the forfeiture proceeding. To do so would have revealed information about Jin’s defence and would itself have been prejudicial. However, and despite the absence of that kind of evidence, the Court of Appeal’s conclusion must have been based on an acceptance that, had it not been for the risk of prejudice to his criminal proceeding, Jin would likely have given evidence in the forfeiture proceeding. The Court of Appeal did not expressly hold that Jin was confronted by an invidious choice. The fact that Jin faced an invidious choice was referred to by the Court of Appeal at [14], but only in recounting a submission made by Jin’s counsel. However, in our judgment the Court of Appeal proceeded on the basis that it was satisfied that Jin wished to give evidence in the forfeiture proceeding. So too, we consider, did the High Court. At [19] the High Court framed the “question” for determination in these terms:

The question is therefore whether the second respondent [Jin] should be placed in a position where he must decide whether to prejudice his criminal trial or his defence of the forfeiture proceedings and his case in the exclusion proceedings.

34    The primary judge observed (at [45]) that the Court of Appeal in Zhao referred to evidence from Jin setting out his position as to whether to go into evidence in the forfeiture proceeding. The judge then said that he lacked any evidence as to the position of Setka and Reardon, and that he had been given no indication as to whether they would be giving evidence in the s 45D proceeding. At [88] the primary judge said that he was not persuaded that he should assume that Setka and Reardon “would be likely to give evidence at all” (our emphasis). Read in context, the primary judge ought be taken to be saying that he was not satisfied that, even if there were no risk of prejudice to Setka’s or Reardon’s position in the blackmail proceeding, they were likely to give evidence in the s 45D proceeding, and that he was unsatisfied that the CFMEU would seek to compel their evidence.

35    None of those findings made by the primary judge are challenged in the proposed appeal. In the absence of a basis for thinking that Setka and Reardon would likely give evidence in the s 45D proceeding (if they could do so free of the risk of prejudice to the blackmail proceeding), the position of Setka and Reardon is not analogous to that of Jin, and the approach taken in Zhao is distinguishable.

36    In the absence of that evidence there was no basis for concluding that an invidious choice was actually faced by Setka and Reardon. We would accept that the wish or need to defend or protect a financial interest (as in Zhao) is not essential, and that an invidious choice may be founded upon a person’s desire to clear his or her name and assist the organisation in which he or she is a senior official (as was here contended). However, the mere possibility that Setka and Reardon might desire to clear their names or assist the CFMEU does not establish that they are confronted by an invidious choice. Setka and Reardon may have no wish or desire to give evidence in the s 45D proceeding. For instance, they may have no basis for thinking that their evidence could be of assistance either to themselves or to the CFMEU.

37    The issue may be expressed thus: does it suffice to establish an “invidious choice” that Setka and Reardon might give evidence in the civil proceeding? Or, is it necessary that there be an evidential basis for thinking that it is likely that they would give evidence in that proceeding were it not for the potential of prejudicing the criminal proceeding? Inherent in the applicants’ position is that the former question should be answered “yes”. It is evident from what is said above that we disagree.

38    The High Court in Zhao evidently considered that the evidentiary burden upon an applicant to establish the existence of an invidious choice was not onerous. But that burden was not discharged in this case. Instead, the applicants’ submission impermissibly assumed the existence of the invidious choice for which they contended. They have not established that doubt attends the primary judge’s approach sufficient to warrant reconsideration by a Full Court.

Prejudice to Setka and Reardon—the CFMEU exposing its defence

39    The applicants also contended that, even in the absence of Setka and Reardon giving evidence in the s 45D proceeding, the Crown may be assisted in the running of the blackmail proceeding by the CFMEU exposing its defence to the s 45D proceeding. It was said that the manner in which the CFMEU defends the s 45D proceeding, including the legal arguments advanced and the cross-examination undertaken, no matter what the source of instructions, creates a real risk of prejudice in the criminal proceedings by better informing the prosecution, including as to what might be any defects in the prosecution’s case, as well as informing the prosecution’s witnesses as to the arguments Setka and Reardon may advance.

40    The primary judge dealt with that contention at [37]. The judge observed that the CFMEU is a corporate entity, and found that its controlling mind does not include Setka and Reardon. Further, the judge held that the CFMEU will decide the manner in which it runs its defence in the s 45D proceeding. He concluded that he did not regard the decisions made by the CFMEU as likely to be imputed to Setka and Reardon and thus relevantly disclose their tactical approach or the defences they may seek to run in the criminal trial. The applicants have not challenged the findings made nor pointed to any appealable error.

41    We would add that, although the primary judge did not specifically rely upon it, the conclusion he reached that the conduct of the CFMEU would not be imputed to Setka and Reardon is bolstered by the evidence before him that Setka and Reardon had determined (and made known by the evidence given in this proceeding) that they would not provide instructions to the CFMEU.

Prejudice to Setka and Reardon—burden of overlapping proceedings

42    The applicants contended that, in the context of it being likely that the trial of the s 45D proceeding will overlap with the committal in the blackmail proceeding or be conducted in close proximity thereto, there will be prejudice to Setka and Reardon. It was suggested that the burden of the s 45D proceeding upon Setka and Reardon would prejudicially impact upon their capacity to prepare for and participate in the committal proceeding. The contention may have been more persuasive if there were a basis for a finding that Setka and Reardon would be burdened by a significant involvement in the s 45D proceeding. But, the evidence before the primary judge was to the contrary. As we have stated, the evidence did not suggest the participation of Setka and Reardon either as witnesses or as instructors. There was therefore no basis for thinking that Setka and Reardon would be burdened by a need to participate in the s 45D proceeding to the detriment of the conduct of their defences in the blackmail proceeding.

43    In any event, as the primary judge noted at [102], if any unfairness does arise, that can be considered and addressed in the course of the civil trial.

Prejudice to Setka and Reardon—the making of findings and declarations

44    The applicants contended that the declarations the ACCC seeks in the s 45D proceeding would require the Court to make findings about Setka’s and Reardon’s conduct, including their states of mind in relation to material facts relevant to the blackmail proceedings. It was asserted that such findings may prejudice and effectively foreclose decisions and outcomes in the criminal proceedings. What seems to be here raised is the prospect that the jury in the blackmail proceeding may be contaminated by the findings and declarations that may be made in the s 45D proceeding.

45    The primary judge dealt with this issue at various points in his reasons including at [54]–[67], [90]–[96] and [101]. With respect to the primary judge, we hold reservations about his reasoning on this issue. In particular, we do not share the primary judge’s confidence that members of the jury in the blackmail proceeding would not learn of findings made in the s 45D proceeding or that, if they did, they would be able to put aside that knowledge either in compliance with judicial direction or because of a capacity to make a distinction between the different contraventions alleged in the respective proceedings.

46    As to jury contamination, we share the reservations expressed by Finkelstein J in Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487 at [59], as follows:

Third, there is potential for an adverse impact on the jury. The civil case will be decided on evidence that, for the most part, will not be available to the prosecutor in a criminal trial. Imagine what would happen if a jury discovers that a civil court has ruled that Mr Berlowitz’ conduct is illegal. The judge presiding over the criminal trial will be obliged to tell the jury to leave that out of account. It is axiomatic in our courts that jurors can be trusted to leave out of their consideration things that they are instructed to leave out. Yet many regard this kind of instruction as little more than wishful thinking. Perhaps the jurors will have explained to them that the judge who made the ruling acted on evidence not before the jury and that in any event a lower standard of proof was required in the civil court. Whether those instructions will result in a fair criminal trial may be strongly doubted.

47    However, it does not follow that an error is established sufficient to overturn a discretionary judgment or sufficient to warrant the grant of leave to appeal.

48    On the issue of leave to appeal, we have arrived at that view including because the intervention of this Court at this juncture would be premature. The possibility of jury contamination flowing from the making of findings and declarations in the s 45D proceeding may be entirely averted if the publication of reasons and the making of declarations post-date the hearing of the blackmail proceeding. The primary judge at [101] specifically recognised that such a course may be appropriate. The primary judge noted that the form and content of the appropriate final relief are not presently resolved and, depending on the circumstances, it may be appropriate that the Court determine to delay the publication of its reasons and any declarations it intends to make. That all suggests that the primary judge intends to provide the applicants with a further opportunity to obtain relief from the prejudice which they apprehend.

49    It follows that, at this juncture, there would be no substantial injustice if leave were refused. We note, however, that delaying the delivery of reasons and the making of declarations until after the hearing of the committal or any subsequent trial may not suffice. The spectre of successful appeal and retrial might require the delaying of findings until it is clear that a result has been finally reached.

Prejudice to the CFMEU

50    The applicants also point to the potential prejudice to the CFMEU in the s 45D proceeding. As earlier stated, the evidence is that Setka and Reardon have indicated they will not provide instructions to the CFMEU in relation to any matters relevant to the blackmail proceeding. The CFMEU contended that, in the circumstances, it is prejudiced in conducting its defence of the s 45D proceeding because Setka and Reardon are best placed to provide it with instructions in order to respond to many of the ACCC’s allegations.

51    The primary judge dealt with this issue at [87] of his reasons. The judge appreciated that, in the circumstances, the CFMEU may have difficulty in obtaining the co-operation of relevant witnesses. The judge regarded that as being a not-unusual aspect of litigation. His Honour characterised the co-operation of Setka and Reardon in preparing the CFMEU’s case as being very useful but non-essential, having regard to the fact that other personnel observed the events—in which it is alleged Setka and Reardon were involved—critical to the allegations raised in the s 45D proceeding.

52    His Honour then observed (at [87]) that court processes allow for a witness to be brought before a court to give evidence against his or her will (including under s 128(4) of the Evidence Act 1995 (Cth)). We cannot think that this is a matter that could rightly be taken into account as gainsaying prejudice to the CFMEU without making good another of the applicants’ points. That is, if Setka and Reardon were compelled to give evidence in the civil proceeding, then the risk of prejudice to them in the criminal proceeding would be clear. But, as has been said above, the primary judge continued at [88] to indicate that he was not satisfied that the CFMEU would compel Setka and Reardon into the witness box.

53    The primary judge determined that this was a matter upon which he did not place “too much weight”. The basis for that conclusion seems to be that the judge was not persuaded that the CFMEU had substantiated its assertion that its ability to defend the proceeding would be compromised.

54    The applicants have not identified any specific error in the primary judge’s approach, nor challenged any findings of fact therein inherent. Without more, that the primary judge failed to give more weight to this consideration than he in fact did is not a sufficient basis to overturn the exercise of the primary judge’s discretion.

Failure to take into account the primacy of the criminal proceeding

55    The applicants contended that the primary judge erred in failing properly to take into account the “primacy of the administration of criminal justice”. In that respect, the applicants relied upon the observation made by Kirby P in Yuill v Spedley Securities Ltd (in liq) (1992) 8 ACSR 272 at 274 as to the failure of the McMahon principles “to take specifically into account the public’s own interest in the normal primacy of the administration of criminal justice …”. They contended that the observation was cited with approval by the Court of Appeal in Zhao. The essence of the applicants’ proposition was that, in the process of balancing justice between the parties—which we will call the balancing process—the criminal proceeding and the civil proceeding are not on an equal footing. The protection of the criminal proceeding should be given primacy or precedence. That was asserted to be the “starting point” and the “governing consideration”, which (it was said) the primary judge failed to refer to, let alone apply.

56    The Court of Appeal in Zhao cited the observation of Kirby P in Yuill and (at [26]) regarded those observations as finding support in the reasoning of Hayne and Bell JJ in X7 v Australian Crime Commission (2013) 248 CLR 92 at [124]–[125]. That occurred in the context of the Court of Appeal considering whether, in the balancing process, “greater weight may need to be given to the practical as opposed to legal prejudice to an accused of facing coincidental forfeiture and criminal proceedings and, more generally, to the primacy of criminal proceedings in the justice system” (at [21]). However, the focus of the discussion that followed (at [22]–[26]) was upon whether a broader and more practical view of the privilege against self-incrimination should be taken in determining what the interests of justice required. Whilst the Court of Appeal concluded that it should take that broader view, and whilst the observation of Kirby P was used to support that conclusion, the question initially posed as to whether greater weight should be given to the primacy of criminal proceedings was not answered in terms.

57    To our minds, the observation made by Kirby P in Yuill sought to emphasise the public interest in the fair and efficient disposition of criminal proceedings as a basis for explaining why, “ordinarily but not universally”, a criminal proceeding should be given precedence by being heard and determined first. That entails the idea that, in assessing what the interests of justice require, actual or potential prejudice to the fair and efficient disposition of a criminal proceeding should weigh heavily.

58    However, and despite the absence of specific mention of it in the McMahon guidelines, the idea that the fair and efficient conduct of a criminal proceeding is of high-order public importance is not novel. In fact, it may be regarded as so obvious that it often goes unstated, as we think the following observation made by the High Court in Zhao at [39] exemplifies (emphasis added):

It may be accepted that forfeiture proceedings should not be unduly delayed. No litigation should be delayed except for good cause, especially criminal proceedings. On the other hand nothing in the POC Act or in the nature of forfeiture proceedings under the Act suggests that they must proceed at all costs. It could hardly be said, from any point of view, that they are more important than criminal proceedings and should be given priority.

59    We would agree with the applicants that, in the sense we have explained it, the primacy of a criminal proceeding needs to be taken into account in the balancing process. In other words, the risk of prejudice to the fair and efficient conduct of the criminal proceeding should be given especial significance. But the difficulty for the applicants in this case is that a risk of that kind was not established. It was therefore not necessary for the primary judge to enter into an assessment of the importance to be given to such a consideration in the balancing process.

Different principles for a proceeding brought by a regulator

60    Lastly, the applicants contended that the primary judge erred in finding that the principles relevant to the exercise of discretion to grant a stay are not different, in the case of a proceeding brought by a regulator, from those that apply in a case of a proceeding brought by a private plaintiff.

61    The primary judge held (at [77]–[80]) that the applicable principles governing the exercise of his discretion to stay the civil proceedings are not relevantly different in the case of a civil proceeding brought by a regulator. In essence, the primary judge took the view that the interests of the persons who would be affected by the failure to grant a stay were to be weighed up in the balancing process against the interests of those affected by the granting of a stay, without specific regard to the identity or character of the holder of the interest as being significant of itself.

62    We can discern no error in that approach. An interest ought not be given less weight merely because it is held or being pursued by a public body in the public interest, rather than in the protection or preservation of the rights of private plaintiffs.

63    What ought to be assessed in the balancing process is the significance of each of the competing interests to the ultimate objective of achieving what justice requires. The primary judge was entitled to weigh in the balance the ACCC’s interest in avoiding a long delay in the determination of the claim it brought.

64    It may be that the substance of the applicants’ complaint is that this consideration was given too much weight, but, on its own, for the reasons earlier stated, the attribution of weight is not a basis for interfering with a discretionary judgment.

Conclusion

65    For the foregoing reasons, the application for leave to appeal ought to be dismissed. Costs usually follow the event, and we are not aware of any reason why that would not be appropriate in this case. However, the effect of our order in that connection will be that the applicants will have seven days to lodge submissions in support of a different costs order, in which case reply submissions may be lodged, but failing which costs will follow the event.

Associate:

Dated:    19 July 2016