COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.
Pincus J.
Burchett J.

CWDS
  Administrative Law - appeal from decision of the Administrative refusing
adjournment - Discretion of trial judge - Relevant considerations where
adjournment sought to enable another action to be decided first.
  Trade Practices Act 1974, s.45D
  Bloch v. Bloch (1981) 37 A.L.R. 55
  Maxwell v. Keun (1928) 1 K.B. 645
  Port of Melbourne Authority v. Anshun Proprietary Limited (1981) 147 C.L.R.
589
  Cameron's Unit Services Pty. Ltd. v. Kevin R. Whelpton Associates
(Australia) Pty. Ltd. (1984) 4 FCR 428
  Rochfort v. John Fairfax & Sons Ltd. (1972) 1 NSWLR 16

HRNG
SYDNEY
#DATE 26:6:1986

JUDGE1
   On 4 June 1986, we heard applications in this matter,
and made orders, reserving our reasons, which we now deliver.
2.  The principal application before us was one for leave to appeal against a
refusal by Morling J. to adjourn an application brought under s.45D of the
Trade Practices Act 1974.
3.  The history of the litigation is somewhat complex, but an abbreviated
version will be enough for present purposes.  On 24 May 1985, the present
respondent, which will be called "Mudginberri", filed an application under
s.45D seeking an injunction and damages against the present applicants, who
will be called, collectively, "the union".  During the course of the hearing
of that application before Morling J., Mr. J.D. Pendarvis gave evidence
intended to satisfy one of the requirements of s.45D.  In order to succeed,
Mudginberri, being "the fourth person" mentioned in par.(b) of s.45D(1), had
to show that:

         "the fourth person is a corporation and the
          conduct is engaged in for the purpose, and
          would have or be likely to have the effect,
          of causing -

         (i)     substantial loss or damage to the
                 business of the fourth person or of a
                 body corporate that is related to that
                 person; or

         (ii)    a substantial lessening of competition
                 in any market in which the fourth
                 person or a body corporate that is
                 related to that person supplies or
                 acquires goods or services."

4.  Mudginberri relied upon sub-par.(i), not sub-par.(ii), and obtained a
finding from Morling J. in terms of that sub-paragraph.  His Honour was
satisfied that the conduct "is engaged in for the purpose and is likely to
have the effect of causing substantial loss or damage to the applicant's
business". That finding was, no doubt, based in part upon the evidence we have
mentioned, which was concerned with the difference between the export and
domestic prices of certain meat.  On 12 July 1985, Morling J. granted
injunctions against the union under s.45D and an appeal against that decision
was dismissed on 10 September 1985.  His Honour then began to hear evidence in
Mudginberri's claim for damages, which had been adjourned to allow the union
to appeal against the grant of injunctions.  Morling J. heard evidence in the
damages claim on 20 days in late 1985 and early 1986.  In February 1986,
according to the union's case, Mr. Pendarvis gave evidence inconsistent, as to
the issue of the damaging effect of the conduct complained of, with that on
the basis of which Mudginberri had obtained the injunctions from Morling J.
It is unnecessary, and appears to us to be undesirable, to analyse the
complaints which are made about the evidence of Mr. Pendarvis, particularly as
they are to come before the Full Court again in the proceedings mentioned
below.
5.  On 3 March 1986, the union instituted separate proceedings, numbered VG36,
asking inter alia that the injunctions granted and other orders made by
Morling J. on 12 July 1985 be set aside, on the ground that they had been
procured by fraudulent evidence given by Mr. Pendarvis, being that briefly
alluded to above.  During March 1986, Morling J. continued to hear the claim
for damages, but in April it was suggested to him by counsel for the union
that the case should be adjourned; on 16 April 1986, Morling J. gave the
decision which is the subject of the present application and said, in effect,
that he would not adjourn the claim for damages pending the resolution of the
collateral attack upon his judgment of 12 July 1985.  In the meantime,
Mudginberri had made an attempt to have the union's application in VG36 struck
out, but Gray J. refused that application so far as it related to the union's
claim against Mudginberri.  We have been told that the decision of Gray J. is
also the subject of an application for leave to appeal, filed on 3rd June,
1986 and it may well be that the question of the strength of the union's claim
in that case will be agitated on the hearing of that application for leave to
appeal; however that may be, there is no need to discuss its strength here.
6.  That is so because, in our view, this application for leave should not in
any event have succeeded.  As Wilson J. said, speaking for the Full High
Court, in Bloch v. Bloch (1981) 37 ALR 55 at 58:

         "The decision whether to grant or refuse an
          adjournment lies in the discretion of the
          trial judge, and it is indeed seldom that an
          appeal court will feel justified in reviewing
          such a decision."

See also Maxwell v. Keun (1928) 1 KB 645 to which Wilson J. referred.  In
determining the application for an adjournment, Morling J. had to weigh
various considerations of convenience, delay and justice.  At the time when he
refused the application, he had spent many days hearing the matter and it was
then very close to a conclusion.  Counsel for the union, Mr. Ashley Q.C.,
argued that if Morling J., who had completed the hearing, was not prevented
from giving judgment, he might make findings with respect to the evidence of
Mr. Pendarvis, referred to above, which would constrain the Court which
determines the application VG36.  He did not refer us to any authority in
favour of the view that, when proceedings of the type of VG36 are brought, any
court hearing what might be called for simplicity the original proceedings
must stay its hand.  In our view, the question whether it does so or not is
very much a discretionary matter, and, of course, primarily one for the judge
to whom the application for adjournment is made.  The possibility to which
counsel alluded is one consideration.  The right of the opposing litigant to a
hearing of its claim for damages is another.  The extent to which the trial
judge will in fact be making findings impinging upon the collateral
proceedings is a further consideration.
7.  The last matter could not be said to point only in one direction.  A Judge
who is asked in these circumstances to postpone deciding a matter, in respect
of which all available evidence has been called, to confer precedence upon a
substantially later decision to be given by another judge, ought not to lose
sight of the possibility in human affairs that the opposing litigant may never
again be able to present his case concerning the critical issue upon precisely
that evidence.  One or more of the witnesses who, we have been told, have
supported the truth of Mr. Pendarvis's evidence may not be available when the
collateral proceeding is heard.  On the other hand, the issues in the
collateral proceeding being different from those necessarily involved in the
damages claim, the reality and extent of any issue estoppel must, in some
measure, be a matter of conjecture.  Counsel for the applicant did not
formulate any precise issue upon which he said an issue estoppel will probably
be brought into existence in the event that Morling J.'s decision is adverse
to the applicant.  See Port of Melbourne Authority v. Anshun Proprietary
Limited (1981) 147 CLR 589.
8.  In any event, the incidental effects of an earlier judgment on later
proceedings must not be allowed to assume undue importance:  it is the law
which gives to the judgment its reach into the future, but the judge's primary
concern must be the just and lawful decision of the case presently before him.
Even in the context of a pending criminal proceeding, involving substantially
similar issues, upon an application for an adjournment to accord priority to
that criminal proceeding, "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" - see Cameron's Unit Services Pty. Ltd. v. Kevin R.
Whelpton Associates (Australia) Pty. Ltd. (1984) 4 FCR 428 at 431.  As the
Court of Appeal Division of the Supreme Court of New South Wales (Sugerman
A.C.J., Holmes and Mason JJ.A.) made clear in Rochfort v. John Fairfax & Sons
Ltd. (1972) 1 NSWLR 16, that is not a light burden.
9.  Where there is no question of absence of jurisdiction, breach of the rules
of natural justice, or other positive error, a mere refusal of an adjournment
can very rarely, we think, be a fit subject for a grant of leave to appeal.
The transcript discloses that Morling J. had placed before him, and weighed
carefully, those considerations which have been debated before us.  It
appeared to us to be extremely unlikely that, if the matter were more fully
argued, the conclusion at which his Honour arrived would be upset.  The
application for leave to appeal was accordingly refused.
10.  There was another application before us, relating to the one just
mentioned.  Mudginberri pointed out that the length of time which, in
accordance with the rules, must be allowed between filing an application and
its return date was, as to the application by the union, short by one day.  In
consequence, Mudginberri applied for dismissal of the union's application on
the ground that it was incompetent and for other relief.  It seems clear that
the application for leave to appeal was competent, although it has, for
reasons of substance, failed; the time deficiency did not invalidate the
union's application.
11.  In the result, both applications were dismissed, with costs.