Balancing public and private interests in the exercise of judicial discretion
24 August 2016
Government lawyers, and private lawyers who act for government bodies, will often face arguments which centre around the interests of private citizens generally being of greater importance than those of public bodies.
The recent case of Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission  FCAFC 97 has rejected such arguments in no uncertain terms, and practitioners acting for or against public bodies should be aware of the case and its implications.
The matter arose following the commencement of proceedings by the Australian Competition and Consumer Commission (ACCC) against the Construction, Forestry, Mining and Energy Union (CFMEU) and two of its officers for alleged breaches of the Competition and Consumer Act 2010 and the Australian Consumer Law.
Subsequently, the officers involved were also charged under the Crimes Act 1958, with one count each of blackmail; the charges arose from the same conduct which gave rise to the charges brought by the ACCC.
The CFMEU and its officers then sought a stay of the ACCC proceedings on the basis that the court in a civil matter should not make declarations in respect of issues to be determined in the criminal proceedings. That application for a stay was dismissed, and the CFMEU and its officers sought to appeal that decision. As it was an appeal from an interlocutory proceeding, leave was required.
The Full Court of the Federal Court of Australia refused leave to appeal for a number of reasons, but of particular interest to lawyers practising in government law was the court’s consideration of the argument that the principles relevant to the exercise of discretion to grant a stay are different in the case of a proceeding brought by a regulator. The court rejected that contention in no uncertain terms, finding (at 61-63):
“ The primary judge held (at –) 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.
 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.
 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.”
This is significant in that the court has explicitly acknowledged that a private citizen or organisation taking on a regulator or public body cannot claim any primacy of right or interest. Practitioners operating in this area of the law need to keep this in mind, whether acting for or against public bodies.
The decision is also significant in that it confirms the general rule that appeals from interlocutory exercises of discretion are far less likely to be granted. Practitioners acting for public bodies – especially in regulatory matters – are often faced with such appeals, and the court’s findings in that regard are instructive. The court noted (at 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  (Mansfield and Foster JJ); Fuller v Toms  FCAFC 155 at  (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  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.”
The court went on to link its findings to the well-known principles in House v The King (1936) 55 CLR 499.
This case confirms the long-established but oft-ignored principle that public bodies and institutions are, aside from the specific application of the Model Litigant Principles, no different from other litigants. Practitioners acting for and against such bodies should emphasise that to their respective clients to ensure they are fully advised of their rights and obligations.
– Shane Budden, QLS Ethics Solicitor (The author gratefully acknowledges the assistance of the QLS Government Lawyers Committee in the preparation of this article)