ASX Perpetual Registrars Ltd v Golubovic

[2003] NSWSC 1157

CITATION:	ASX Perpetual Registrars Ltd v Golubovic [2003] NSWSC 1157
HEARING DATE(S):	2 December 2003
JUDGMENT DATE:	2 December 2003
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Stay of civil proceedings because pendency of criminal investigation refused.
CATCHWORDS:	CRIMINAL LAW [102] - General matters - Stay of civil proceedings pending criminal proceedings - Generally - Right to silence - Substantial prejudice.
CASES CITED:	McMahon v Gould (1982) 7 ACLR 202 Phillipine Airlines v Goldair (Australia) Pty Ltd [1990] VR 385 Sogelease v Griffin [2002] NSWSC 1099
PARTIES :	ASX Perpetual Registrars Limited (P) John Frank Golubovic
FILE NUMBER(S):	SC 4923/03
COUNSEL:	C D Freeman (P) M K Rollinson (D)
SOLICITORS:	Henry Davis York (P) B J Murphy Angelovski & Assocs (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 2 DECEMBER 2003

4923/03 ASX PERPETUAL REGISTRARS LIMITED v JOHN FRANK GOLUBOVIC

JUDGMENT

1 HIS HONOUR: This is an application for a stay of civil proceedings on the ground of the potential commencement of criminal proceedings arising against the same defendant out of the same subject matter. The criminal investigation is taking place in Victoria. It has proceeded to this stage. A named police officer in Victoria has interviewed the defendant in September of this year. The defendant has engaged, on a direct access basis, a barrister to assist him in relation to that investigation and contemplates travelling to Victoria with the barrister for further discussions with the Victorian police concerning the possibility of criminal charges. There is a statement in the defendant’s affidavit in the most general terms that the police investigation arises out of the same matters as the civil proceedings.

2 Both Mr Rollinson, of counsel for the defendant, and Mr C Freeman, of counsel for the plaintiff, have put their respective submissions to me succinctly and effectively. The relevant principles are stated in what is becoming the classic judgment of Wootten J in McMahon v Gould (1982) 7 ACLR 202. I have also been referred to the judgment of Sir John Young CJ in Phillipine Airlines v Goldair (Australia) Pty Ltd [1990] VR 385 and to the judgment of Barrett J in this Division of this Court in Sogelease v Griffin [2002] NSWSC 1099. Mr Freeman, in arguing against a stay, has pressed on me the portions of the judgment of Wootten J in which his Honour emphasised the plaintiff’s prima facie right to have his civil action tried in the ordinary course and the fact that the court should consider whether there is a real and not merely a notional danger of injustice in the criminal proceedings.

3 This matter really seems to me to fall in much the same class as the Sogelease case supra as analysed by Barrett J at [13] and [14]:

“[13] In the present case, there are no criminal proceedings. There are not even any criminal charges. Nor, on the evidence of Mr North, has there been any explicit statement by any of the police officers with whom he has spoken that charges will be laid. The case is accordingly one in which the court is asked to deprive the plaintiffs of their right to prosecute their claims in the ordinary way because of the possibility that criminal charges may be forthcoming. The "right to silence" is the only possible basis that can be asserted for such a request, given that considerations arising from the pendency of concurrent proceedings and possible interference of conduct of one on the conduct of the other (including possible impact of any publicity on the minds of potential jurors) simply do not arise here. I am satisfied, however, that the ‘right to silence’ should not, on the authorities, be seen as justifying a stay of the civil proceedings at this stage of the respective developments of those proceedings and the possibility of criminal proceedings in the future.

[14] The first defendant bears the onus of showing that the requirements of justice positively require that the plaintiffs be deprived of their right to press on with these proceedings. That onus has not been discharged in such a way as to warrant exercise by the court of its discretion to order a stay of proceedings at this point. I can discern no real (as distinct from merely notional) danger of injustice in any future criminal proceedings in allowing the present proceedings to progress in the normal way at this stage. The first defendant's application for a stay is therefore dismissed.”

4 As Mr Rollinson points out, the matter here has progressed a little further, in that the Victorian Police have actually interviewed the defendant, whereas in Sogelease the Police had merely telephoned the suspect’s solicitor to indicate the existence of a criminal investigation. Mr Rollinson also emphasises that he is asking for only a short stay (bearing in mind the imminence of the Christmas and January holidays), so that the matter may be reconsidered when the course and the result of the police investigation are clearer.

5 However, my view is that in this case, where there are no police charges; the evidence is quite unclear as to the relationship between the subject matter of the police investigation and the subject matter of the civil proceedings; it is unclear whether criminal proceedings will ever, in fact, eventuate; and all that is required of the defendant at the present stage is that he file a defence, so that the interlocutory steps in the civil proceedings can continue in the ordinary course or, alternatively, if no defence is to be filed, the plaintiff can proceed to obtain a judgment by default, in all the circumstances I should refuse to grant a stay of proceedings at this stage. That, of course, does not preclude the defendant from making an application on different material at a later time if a clearer case of prejudice can be made out in the light of events which occur hereafter. As I understand it, there is substantial agreement at the bar table that the appropriate course if I refuse the application for a stay as made by Mr Rollinson is that a short time, say seven days, be fixed for the defendant now to file his defence. There will be orders in accordance with the short minutes initialled by me and placed with the papers.

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Last Modified: 03/19/2004