Backus & Abano (No 4)
[2025] FedCFamC1F 30
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Backus & Abano (No 4) [2025] FedCFamC1F 30
File number(s): PAC 6827 of 2020 Judgment of: ANDERSON J Date of judgment: 28 January 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay of Proceedings – Application by the applicant to discharge orders for a Stay of Proceedings made in March 2022 – Application by the respondent to maintain the stay pending the finalisation of criminal proceedings against him in the District Court of New South Wales – Where the respondent is charged with offences against the applicant’s daughter – Where the respondent asserts that a trial in the family law proceedings will cause him to suffer sever prejudice – Where the applicant asserts that the respondent has acted in a manner inconsistent with the maintenance of the privilege against self-incrimination – Where the Court finds that the respondent has acted in a manner inconsistent with the maintenance of the privilege against self-incrimination – Where a further stay of the family law proceedings would occasion prejudice to the applicant – Where prejudice arises in circumstances where the proceedings were initiated in December 2020 – Where prejudice arises in circumstances where the applicant has been unable to prosecute her application for in excess of four years Legislation: Criminal Code Act 1995 (Cth) ss 11.1, 400.4
Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 4AA, 44, 55, 90SM
Proceeds of Crime Act 2002 (Cth)
Sex Discrimination Act 1984 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14
Sex Work Act 1994 (Vic) s 10
Cases cited: Accident Insurance Mutual Holdings Limited v McFadden & anor (1993) 31 NSWLR 412
Australian Securities and Investments Commission v One Tech Media Limited (2017) 122 ACSR 572; [2017] FCA 1080
Backus & Abano (No 2) [2022] FedCFamC1F 125
Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97
Ewin v Vergara (No 2) (2012) 209 FCR 288; [2012] FCA 1518
Griffin v Pantzer (2004) 137 FCR 209; [2004] FCAFC 113
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Lee & anor v New South Wales Crime Commission (2013) 302 ALR 363; [2013] HCA 39
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
McMahon v Gould (1982) 7 ACLR 202
Petty & Maiden v R (1991) 173 CLR 95; [1991] HCA 34
R v Boyes (1861) 121 ER 730
Reid v Howard (1995) 184 CLR 1; [1995] HCA 40
Washington (by her litigation guardian Edward Michael Byrt) v Titan Fan Products Australia Ltd [2020] SASC 230
Zhao v Commissioner of the Australian Federal Police (2014) 43 VR 137; [2014] VSCA 137Division: Division 1 First Instance Number of paragraphs: 69 Date of hearing: 18 December 2024 Place: Parramatta Counsel for the Applicant: Mr Lloyd Solicitor for the Applicant: Matthews Dooley & Gibson Counsel for the Respondent: Mr Alexander Solicitor for the Applicant: Campbell Paton & Taylor ORDERS
PAC 6827 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BACKUS
Applicant
AND: MR ABANO
Respondent
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
1.Orders 1 to 4 of the Order made by The Honourable Justice Henderson on 14 March 2022 be discharged.
2.The matter be listed for Trial to commence at 10.00 am on 7 April 2025 with five days allocated such trial to conducted in-person at the Parramatta Registry and be limited to a determination about the following issues:
(a)The length of any de facto relationship between the parties; and
(b)Whether (if is it necessary for the applicant to seek such an order), the applicant ought to be granted an extension of time within which to institute the proceedings.
3.Within fourteen (14) days of these orders, each party by his/her solicitor cause a letter to be sent to the solicitor for the other party identifying with precision any categories of documents relevant to a determination of the issues referred to at Order 2 herein, which have not otherwise been disclosed.
4.Within fourteen (14) days of receipt of the written communication referred to at Order 3 herein, each party do produce a copy of the documents requested.
5.Orders 4 to 14 of the Order made by Registrar D’Addona on 31 May 2021 be discharged.
6.The Application in a Proceeding filed on 29 November 2024 and the Response thereto filed on 6 December 2024 be discharged.
7.The costs of and incidental to the Application in a Proceeding and the Response thereto be reserved for both parties to the Final Hearing such costs certified fit for counsel.
Joint Chronology and Balance Sheet
8.The parties prepare and electronically file a joint trial Chronology as follows:
(a)The applicant provide to the respondent by 4.00 on 14 March 2025:
(i)a draft trial Chronology setting out the applicant’s contentions as to relevant dates of each fact and circumstance relied upon.
(b)Within 7 days of receiving the applicant’s draft Chronology, the respondent is to insert into the draft(s):
(i)with respect to the Chronology, any further relevant dates and matters contended for by the respondent; and
(ii)return the draft joint trial Chronology to the applicant.
(c)The parties are to include a concise footnote identifying their reason for any issues or disputes that arise, and provide reference to the relevant paragraph numbers in the parties’ affidavits with further explains/supports the contention.
(d)The applicant is to electronically file and serve the Joint Chronology not less than 7 business after receiving the draft in accordance with Order (b).
(e)In the event that a party fails to comply with this order, the other party shall electronically file their proposed Chronology not less than 6 business days before the commencement trial.
Outline of Case and Court Book for Trial
9.All parties electronically file and serve the following documents for trial:
(a)a Court Book, not later than 4.30 pm 14 days prior to the trial; and
(b)a Tender Bundle, not later than 2 business days prior to the trial,
AND the Court Book and Tender Bundle be prepared strictly in accordance with the directions set out in terms of Annexure “A”, which forms part of these Orders.
10.Not later than 4.30 pm 5 business days prior to the trial all parties electronically file and serve an Outline of Case Document (not exceeding 10 pages) including the matters set out in Annexure “B”, which forms part of these Orders.
11.No party to be permitted to rely upon an Affidavit or filed document if it is not filed in accordance with these orders and included within the Court Book (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court and that the parties are not required to utilise the ‘Outline of Case Document (Final Hearing)’ form.
Objections to Evidence
12.The parties are directed to limit their summaries of objections to evidence which is expected to be forensically significant to the outcome of the trial.
13.In the event that a party objects to any material in any affidavit of the other party, they shall, not less than 8 business days before the commencement of the trial:
(a)Notify the other party in writing of any objection to any material in any affidavit filed by the other party;
(b)Specify the paragraph or part of the paragraph objected to; and
(c)Detail the grounds of objection.
14.The other party shall reply to the objections in writing not less than 5 business days before the commencement of the trial.
15.Prior to the trial, the parties shall confer in relation to any objections and electronically file and serve at least 2 business days prior to the commencement of the trial, a list setting out:
(a)The agreed deletions from each affidavit: and
(b)The objections to be argued on the trial date and the grounds for the objections.
Subpoenas
16.Each party is at liberty to issue such subpoenas as they consider relevant to the issues in these proceedings PROVIDED THAT:
(a)any such subpoena shall be made returnable no later than 14 days before the commencement of the trial and the material produced in answer to the subpoena is inspected prior to the first day of the trial; and
(b)in the case of any unrepresented party, leave is obtained from a registrar.
17.Leave is granted to the parties’ legal representatives and the Independent Children's Lawyer, if applicable, to photocopy documents produced on subpoena, subject to any objections to inspection or copying lodged in writing after the date of these Orders.
18.For the purposes of these directions, the provisions of r 6.37 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as to documents comprising child welfare records, criminal records, medical records, or police records shall not apply,
AND FURTHER photocopies or scans of any such documents be retained in the possession of a parties’ legal representative and Independent Children’s Lawyer at all times, not be otherwise disseminated or distributed in any manner other than for the purposes of the proceedings, and at the conclusion of the proceedings be destroyed by the legal practitioner or returned to the registry.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Backus & Abano has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ANDERSON J:
INTRODUCTION
On 17 December 2020, the applicant brought these proceedings against the respondent to adjust their property interests pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) following the breakdown of their relationship.
Criminal charges were laid against the respondent by the Crown in mid-2021. The alleged offences included the sexual assault of the applicant’s twin daughters who are now aged 23 years.[1] Prior to that time, and in May 2021, the parties jointly requested that the competing financial applications be listed for Trial. It was so listed to commence in April 2022.
[1] Respondent’s affidavit filed on 21 September 2021, paragraph 127.
At hearings in August and September 2021 with respect to compliance with trial directions, the parties’ legal representatives advised the Court that the competing applications were ready to proceed to Trial. In fact, and on 20 and 21 September 2021, the respondent filed four Affidavits on which he relied for that purpose. The applicant also complied with her court ordered obligations.
Prior to the Trial commencing, however, the respondent filed an application seeking an Order that the proceedings be stayed pending the finalisation of the criminal proceedings against him. An Order in those terms was made by The Honourable Justice Henderson on 2 March 2022. Accordingly, the proceedings had been in abeyance until hearings before me in November and December 2024.
It is against this background that I must determine an Application in a Proceeding filed by the applicant on 29 November 2024. By that document the applicant seeks an order that the proceedings be listed for hearing “on the issue of the duration of the relationship and leave to commence out of time, if required, on the earliest possible date”. That application is opposed by the respondent.
In addition, and by his Response to Application in a Proceeding filed on 6 December 2024, the respondent sought a review of an Order made by Senior Judicial Registrar Tran on 17 May 2023. That application is the subject of an ex-tempore decision delivered by me on 18 December 2024. However, the Order made by the Senior Judicial Registrar Tran is relevant to my determination of the Application in a Proceeding. I will discuss them below.
BACKGROUND
I will set out in further detail the procedural history of these proceedings and the nature of the criminal charges brought against the respondent. The application cannot be determined without reference to each of them.
On 17 December 2020, the applicant brought these proceedings against the respondent to adjust their property interests. By her Affidavit filed in support of the application, the applicant deposed to commencing a relationship with the respondent in 2007.[2] She considers the relationship between the parties to have concluded on 8 November 2020 at which time she says the respondent advised her by telephone to “get out of my house”.[3] For his part, the Respondent:
(a)Instructed his solicitors to send a letter to the applicant’s solicitors asserting that “the parties were never in any de facto relationship which would warrant any discussions regarding property settlement”;[4]
(b)Filed a Response to Initiating Application seeking orders that the Initiating Application be dismissed and that the applicant pay his costs of and incidental to the proceedings on an indemnity basis.[5] In support of that application, the respondent filed an affidavit denying that the parties were in a de facto relationship for the period 2007 to November 2020 as so alleged.[6] On 13 May 2021, the respondent conceded that the parties had been in a relationship for the period 2009 to 2012 only.[7]
[2] Applicant’s Affidavit filed on 17 December 2020, paragraph 4.
[3] Applicant’s Affidavit filed on 17 December 2020, paragraph 29.
[4] Applicant’s Affidavit filed on 17 December 2020, Annexture C.
[5] Response to Initiating Application filed on 2 February 2021.
[6] Respondent’s affidavit filed on 2 February 2021, paragraph 5.
[7] Orders made on 13 May 2021, Notation C.
By reason of the position adopted by him, the respondent says that the proceedings ought to be dismissed on the basis that the application was filed about six years after the statutory limit prescribed by s 44(5) of the Act.
In addition to these proceedings, and as discussed above, the respondent is the defendant in two criminal proceedings brought against him by the Crown. In mid-2021, the respondent was charged with the sexual assault of the applicant’s twin daughters who are now aged 23 years.[8] A trial in respect of those charges commenced in the District Court of New South Wales in mid-2024. The indictment in respect of one adult child was withdrawn in circumstances where the respondent says that she refused to return to the witness box having given some evidence.[9] The charges involving the respondent and the applicant’s other daughter are listed for a Trial to commence in late 2025. It is estimated that the trial will take about two or three weeks.[10]
[8] Respondent’s affidavit filed on 21 September 2021, paragraph 127.
[9] Respondent’s affidavit filed 6 December 2024, paragraphs 13 – 14.
[10] Respondent’s criminal solicitor’s affidavit filed 6 December 2024, paragraph 18.
In addition to the criminal proceedings described above, the respondent was charged with domestic violence offences involving the applicant in mid-2023.[11] The charges were due to be heard by the Local Court of New South Wales in late 2024, but the parties made a joint application to vacate the trial on the basis that the charges against the respondent ought not be heard until the conclusion of the District Court proceedings.[12] Counsel for each party have advised me that there is no reason why any trial in these proceedings ought to await the outcome of the Local Court proceedings. This being so, my attention is focussed on the interaction between the criminal charges laid against the respondent first in time and these proceedings.
[11] Respondent’s criminal solicitor’s affidavit filed 6 December 2024, paragraph 20.
[12] Respondent’s criminal solicitor’s affidavit filed 6 December 2024, paragraph 21.
The charges against the respondent involving the applicant’s adult daughter and referred to in the Crown Case Statement[13] can be summarised as follows:
(a)Count 1: Sexual offence against a child. It is alleged that the act concerned occurred sometime in 2012 when the applicant’s daughter was almost twelve years of age. It is further alleged that the act occurred at a property at Suburb EE, which was owned by the applicant.[14] By her affidavit filed on 10 August 2021, the applicant asserts that the respondent moved into the Suburb EE property in 2009 after the parties discussed “being committed to one another”.[15] The respondent concedes that he would stay at the property on weekends to attend to a business operated by him on Mondays;[16]
(b)Count 2: Sexual offence against a child. It is alleged that the events occurred at the Suburb EE property in 2014;
(c)Counts 3, 4 and 5: Sexual offences against a child. It is alleged that the events occurred in 2015 at a property located in the Town G district owned by the respondent and/or a property at Suburb FF owned by the respondent.[17] The applicant says that she and her children would spend a lot of time at the property during school holiday periods,[18] and that the parties and the applicant’s children moved into the Suburb FF property in late 2015;[19]
(d)Count 6: Sexual offence against a child. It is alleged that the act occurred in 2015 at the Suburb EE property;
(e)Count 7: Sexual offence against a child. It is not made clear by the Crown Case Statement, but it would appear from the narrative that the act concerned occurred in the master bedroom of the Suburb EE property;
(f)Count 8: This count appears to have been withdrawn by the Crown because it does not appear in the Crown Case Statement;
(g)Count 9: Sexual offence against a child. It is alleged that the act occurred at the property referred to above.
[13] Respondent’s criminal solicitor’s affidavit filed 6 December 2024, Annexture A.
[14] Respondent’s criminal solicitor’s affidavit filed 6 December 2024, Annexture A, page 7 of 21.
[15] Applicant’s affidavit filed 10 August 2021, paragraph 7.
[16] Respondent’s affidavit filed 21 September 2021, paragraph 28.
[17] Respondent’s affidavit filed 21 September 2021, paragraph 20.
[18] Applicant’s affidavit filed 10 August 2021, paragraph 13.
[19] Applicant’s affidavit filed 10 August 2021, paragraph 21.
The respondent’s criminal solicitor says as follows with respect to the charges:
These charge matters came before the Local Court […] for the first time [in mid] 2021 and were eventually listed for trial in the District Court […] commencing [in mid] 2023. The respondent was arraigned [in mid] 2023 where he entered pleas of not guilty to each charge on the then Indictment.[20]
[20] Respondent’s solicitor’s affidavit filed 6 December 2024, paragraph 4.
The proceedings in this Court have the following history:
(a)On 31 May 2021, the parties sought that the “matter be listed for the threshold issues in relation to a declaration as to the de-facto [sic] relationship and its duration and further the leave out of time issue”.[21] This being so, the Court made orders for each party to file and serve material on which he/she relied for the purposes of trial;
[21] Orders made on 31 May 2021, Notation C.
(b)On 19 August 2021, the matter was listed for a Compliance Check before a Judicial Registrar at which time it was noted that the respondent had not complied with trial directions made on 31 May 2021;[22]
[22] Orders made on 19 August 2021, Notation C.
(c)On 21 September 2021, the respondent filed an affidavit for the purposes of trial. That Affidavit comprised 131 paragraphs and 11 annexures. The respondent also filed Affidavits in the names of three third parties;
(d)On 23 September 2021, the parties attended before Judicial Registrar D’Addona and advised the Court that the Order made on 31 May 2021 with respect to the filing of Affidavits for the purposes of trial had been complied with by each of them. Further, the parties certified “that they are ready to be allocated hearing dates in relation to the threshold hearing”;[23]
[23] Orders made on 23 September 2021, Notation D.
(e)On 31 January 2022, the respondent filed an Application in a Proceeding seeking orders that “the hearing scheduled to commence on 26 April 2022 be vacated, and the proceedings stayed pending the finalisation of the criminal proceedings against the Applicant”;
(f)The Application in a Proceeding was listed before The Honourable Justice Henderson on 2 March 2022. On 14 March 2022, Her Honour made orders with respect to the application. Relevantly, Order 1 was in the following terms:
The proceedings commenced by [the applicant] in this Court on 18 December 2020 be stayed pending the finalisation of the criminal trial of [the respondent], which finalisation does not require there be a verdict or sentence passed.
(g)It was a central tenet of Justice Henderson’s Judgment that evidence to be given in these proceedings is relevant to a determination of the criminal proceedings. Particularly, Her Honour identified that:
(i)The salient evidence in these proceedings will be “all the circumstances of the parties’ relationship, including but not limited to the nature and extent of their common residence, the care and support of the children, financial independence, the commitment to a shared life, and the ownership use and acquisition of property”;[24]
(ii)A determination of these proceedings will involve findings as to “the length of the parties’ de facto relationship. The determination of that issue will involve findings as to the length of shared residences, the time that [the applicant’s] children lived with [the respondent and the applicant], the times [the applicant’s children’ where in an unsupervised setting with [the respondent], amongst other matters”;[25]
(iii)Given the “significant substratum of common facts to be found in both the family law proceedings and the criminal proceedings”,[26] there was a risk that any trial in these proceedings may significantly jeopardise the respondent’s right to silence in the criminal proceedings;[27]
(h)On 16 May 2023, the respondent filed an Application in a Proceeding seeking permission to “rely upon, produce and/or tender documents filed and/or produced in this proceeding in the District Court of New South Wales”. The respondent sought that the permission be limited to Affidavits filed in the name of the applicant and in the name of third parties on behalf of the applicant during the period 17 December 2020 to 18 February 2022. In essence, the respondent was seeking to be relieved from the rule described in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (“Harman”) and, as the rule applies in Australia, Hearne v Street (2008) 235 CLR 125;
(i)The application was listed before Senior Judicial Registrar Tran on 17 May 2023. Prior to that time, the applicant prepared a Response to an Application in a Proceeding.[28] Although the document was not filed, it was agreed by counsel for the parties that the document was circulated in advance of the hearing. The application sought the dismissal of the Application in a Proceeding. In the alternative, the applicant also sought to be relieved from the rule described in Harman and sought permission to provide to the New South Wales Office of the Director of Public Prosecutions Affidavits filed not only by the applicant but Affidavits filed by the respondent on 2 February 2021, 19 September 2021, 5 January 2022, 28 February 2022 as well as an Exhibit Book prepared by the respondent and filed 19 September 2021. The materials filed on 19 September 2021 represent materials filed by the respondent in preparation for the trial listed to commence in April 2022.
[24] Backus & Abano (No 2) [2022] FedCFamC1F 125 at [58].
[25] Backus & Abano (No 2) [2022] FedCFamC1F 125 at [59].
[26] Backus & Abano (No 2) [2022] FedCFamC1F 125 at [63].
[27] Backus & Abano (No 2) [2022] FedCFamC1F 125 at [67].
[28] Exhibit R3.
On 17 May 2023, Senior Judicial Registrar Tran made several orders in relation to the applications described in the previous sub-paragraph. It is necessary to set those orders out in full:
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Leave is granted to the parties’ legal representatives to rely upon, produce and/or tender documents filed and/or produced in these family law proceedings in the District Court of New South Wales as part of proceeding […]. (“District Court Proceedings”).
2.The documents to which Order 1 applies be limited to:
(a)Affidavit of [Ms Backus] dated 17 December 2020;
(b)Affidavit of [Ms Backus] dated 3 August 2021;
(c)Affidavit of [Ms Backus] dated 2 September 2021;
(d)Affidavit of [Ms Backus] dated 18 February 2022;
(e)Exhibit Book of [Ms Backus] dated 17 December 2020;
(f)Affidavit of [Mr V] dated 21 July 2021;
(g)Affidavit of [Ms AA] dated 22 July 2021;
(h)Affidavit of [Ms BB] dated 5 August 2021;
(i)Affidavit of [Ms CC] dated 27 July 2021; and
(j)Affidavit of [Ms DD] dated 22 July 2021.
3.In the event that the Prosecutor in the District Court Proceedings requests access to the following documents:
(a)Affidavit of [Mr Abano] dated 2 February 2021;
(b)Affidavit of [Mr Abano] dated 19 September 2021;
(c)Exhibit Book of [Mr Abano] referred to as Exhibit [MA] dated 19 September 2021;
The legal representative for the Wife is permitted to provide these documents, and the Leave referred to in Order 1 applies.
4.In relation to any requests referred to in Order 3, the Prosecutor shall copy such requests to both parties’ legal representatives.
5.The legal representative for the Husband shall provide a copy of these Orders to the Prosecutor in the District Court Proceedings.
The respondent’s failure to seek any review of Senior Judicial Registrar Tran’s Order between 17 May 2023 and 6 December 2024 is an important aspect of the argument advanced by counsel for the applicant in respect of the application, which I am to determine.
MATERIALS RELIED UPON
In support of her application, the applicant relied on the following:
(a)Application in a Proceeding filed on 29 November 2024;
(b)Applicant’s affidavit filed on 29 November 2024; and
(c)Outline of Case Document filed on 13 December 2024.
The respondent relied on:
(a)Response to an Application in a Proceeding filed on 6 December 2024;
(b)Affidavit in the name of the solicitor representing the respondent in the District Court of New South Wales and the Local Court of New South Wales such affidavit filed on 6 December 2024;
(c)Affidavit in the name of the solicitor representing the respondent in these proceedings such affidavit filed on 6 December 2024; and
(d)Outline of Case Document filed on 13 December 2024.
DETERMINATION
As discussed above, the issue I must decide is whether the proceedings ought to be listed for hearing “on the issue of the duration of the relationship and leave to commence out of time, if required, on the earliest possible date”. Necessarily, my determination of this issue will also dictate whether I maintain or discharge the stay the subject of Justice Henderson’s Order made 14 March 2022 (supra).
In support of her application, the applicant says that the respondent “has either expressly or impliedly waived aspects of his privilege against self-incrimination in the District Court Proceedings, such that the stay of the Proceeding is no longer necessary and should be discharged”.[29] In support of this submission, the applicant says that:
(a)The application made by the respondent in May 2023 seeking an order to “rely on, produce and/or tender” the applicant’s Affidavits in the District Court Proceedings is inconsistent with the maintenance of privilege against self-incrimination;
(b)The respondent’s failure or neglect to review orders made by Senior Judicial Registrar Tran on 17 May 2023 (supra) as they related to permission granted to the applicant’s solicitor to release materials filed by the respondent in these proceedings to the prosecutor in the District Court Proceedings (if so requested) is inconsistent with the maintenance of privilege against self-incrimination; and
(c)The respondent has relied upon the applicant’s Affidavit evidence “in the District Court Proceedings. In [mid] 2023, [the applicant] was cross-examined on matters contained in her Affidavit evidence”.[30] It is submitted by the applicant that this step is inconsistent with the maintenance of privilege against self-incrimination.
[29] Applicant’s Outline of Case Document filed 13 December 2024, paragraph 6.
[30] Applicant’s Outline of Case Document filed 13 December 2024, paragraph 5.
In response to the application, the respondent says that:
(a)The prejudice the respondent will suffer if the stay is lifted is severe;[31]
(b)The respondent has not acted in a manner inconsistent with the maintenance of privilege against self-incrimination; and
(c)The applicant’s alleged failure to make disclosure in these proceedings is a matter, which ought to be brought to account.[32]
[31] Respondent’s Outline of Case Document filed 13 December 2024, paragraph 25.
[32] Respondent’s Outline of Case Document filed 13 December 2024, paragraph 43.
I address each of these matters below.
Alleged waiver of privilege against self-incrimination
In Lee & anor v New South Wales Crime Commission (2013) 302 ALR 363 at [1], French CJ said as follows with respect to the privilege against self-incrimination:
The presumption of innocence, the privilege against self-incrimination and the right to silence are important elements of the “accusatorial system of justice” which generally prevails in the common law world. The privilege against self-incrimination reflects the long standing antipathy of the common law to compulsory interrogations about criminal conduct.
The common law privilege is available not only to persons questioned in criminal proceedings, but to persons suspected of a crime,[33] to persons questioned in civil proceedings,[34] and in non‑curial contexts.[35]
[33] Petty & Maiden v R (1991) 173 CLR 95.
[34] Reid v Howard (1995) 184 CLR 1 at [15].
[35] Griffin v Pantzer (2004) 137 FCR 209 at [44].
The privilege is one aspect of the right to silence.[36] The right to silence protects an individual’s right not to be made to testify against oneself (whether or not that testimony is incriminating). The privilege against self-incrimination is narrower, in that it protects the right not to be made to incriminate oneself.
[36] A Gray, ‘Constitutionally Heeding the Right to Silence in Australia’ (2013) 39 Monash University Law Review 156, page 158.
The privilege is testimonial in nature, protecting individuals from convicting themselves out of their ‘own mouths’.[37] However, as Forbes observed in his text Evidence Law in Queensland (Thomson Reuters, 13th edition, 2021), “the common law privilege covers self-incrimination in any form, including vica voce evidence, affidavits, affidavits on commission and responses to subpoenas or applications for discovery and inspection”.[38]
[37] Hamilton v Oades (1989) 166 CLR 486, page 496.
[38] JRS Forbes, Evidence Law in Queensland, Thomson Reuters, 14th edition, 2021.
At common law, the privilege against self-incrimination can be waived. Waiver can be express or implied. Where waiver is implied, it will not be relevant whether the party intended to waive privilege. Instead, the test is whether it would be unfair or misleading to allow a party to maintain privilege despite the inconsistent action. In the case at bar, the applicant says that it would be unfair to permit the respondent to do so.
In Ewin v Vergara (No 2) (2012) 209 FCR 288, Bromberg J observed as follows:
16.At common law, a privilege is waived either expressly or impliedly by conduct engaged in by the privilege holder which is inconsistent with the maintenance of the privilege. In Mann v Carnell (1999) 201 CLR 1, the majority emphasised that the inconsistency which brings about the waiver may be informed by considerations of fairness as between the conduct of the privilege holder and the maintenance of the privilege.[39]
[39] Ewin v Vergara (No 2) (2012) 209 FCR 288 at [16].
The test in Mann v Carnell (1999) 201 CLR 1 as referred to above focuses the common law test on inconsistency, rather than fairness alone.
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 (“Zhao”) with respect to whether the primary judge erred in consideration of prejudice to applicants constituted by the exposure of their defences to criminal proceedings. The facts of Zhao and the legal principles discussed are summarised below.[40]
[40] A summary of the decision and the principles developed therein are referred to in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153.
Xing Jin (“Jin”) was charged 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 certain provisions 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 was the registered proprietor of real property in Southbank and was a 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 (“the Commissioner”), the County Court of Victoria made orders under the Proceeds of Crime Act 2002 (Cth) 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 1994 (Vic). Thus, the offence and circumstances in issue in the civil proceeding were substantially identical to what was in issue in the criminal proceeding.
In September 2013, the parties made an application in the civil proceedings seeking orders to exclude the two properties from the restraining orders, for the exclusion from forfeiture, and compensation. In November 2013, the parties made a further application in the civil proceedings seeking 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 judge rejected the application for a stay (Zhao v Australian Federal Police, unreported, County Court of Victoria, Judge Lacava, 3 December 2013). The parties appealed to the Court of Appeal, where they were successful. The Commissioner appealed to the High Court. The appeal was dismissed.
The High Court identified several principles of relevance to the application, which I must decide. Particularly, the High Court said as follows:
(a)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”;[41]
(b)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. In the words of the High Court at paragraph 35, “it must be apparent that the person…is at risk of prejudice in the conduct of his or her defence in the criminal trial”; and
(c)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.[42]
[41] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [36].
[42] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [47] and [50].
The High Court 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 also regarded by the Court of Appeal as an infringement of the privilege against self‑incrimination and the right to silence.[43]
[43] See also Washington (by her litigation guardian Edward Michael Byrt) v Titan Fan Products Australia Ltd [2020] SASC 230 at [5].
Counsel for the applicant also brought my attention to the decision of President Kirby (as he then was) in Accident Insurance Mutual Holdings Limited v McFadden & anor (1993) 31 NSWLR 412. At pages 423 to 424 of that judgment, President Kirby said as follows:
The privilege against self-incrimination may be waived in certain circumstances. In this respect it accords with other privileges.
…
Nevertheless, as with any waiver, it is necessary to define with some precision what is waived. It will be rare that a person is taken to have waived all rights and privileges in respect of any prosecution for any offence arising out of circumstances only generally defined. The point of difficulty will be presented by the definition of the subject matter of the waiver. This will require assessment of the reasonable interpretation to be placed upon the conduct of the witness said to amount to the waiver.
I have already referred to the decision of Ewin v Vergara (No 2). In those proceedings, Ms Ewin claimed that she was sexually harassed and unlawfully discriminated against in breach of various provisions of the Sex Discrimination Act 1984 (Cth). Mr Vergara tendered a written statement of his evidence-in-chief. The statement was apparently “wide-ranging” but gave “his account of the conversations and other activities upon which Ms Ewin relies in relation to her allegations involving the making of sexual propositions and sexual innuendo”.[44] On day seven of the hearing, and after many hours of cross-examination, Mr Vergara objected to answering a question relying upon s 128 of the Evidence Act 1995 (Cth). At [25], Bromberg J said as follows with respect to the objection raised by Mr Vergara:
25.In my view, the giving of evidence-in-chief or the giving of evidence without objection in cross-examination by a privilege holder on subject matters in respect of which objections are later sought to be taken under s 128(1) of the Act, is clearly conduct inconsistent with the maintenance of the privilege. In that circumstance there is a direct inconsistency with the maintenance of the privilege. Considerations of fairness as between the conduct of the privilege holder and the maintenance of the privilege demonstrate the inconsistency. It would be manifestly unfair for a privilege holder to voluntarily give evidence in support of his or position in circumstances where the privilege holder could then, in reliance on the privilege, decline to allow that evidence to be tested through cross-examination.
[44] Ewin v Vergara (No 2) (2012) 209 FCR 288 at [5].
Bromberg J went on to refer to the decision of Kirby P in Accident Insurance Mutual Holdings Limited (supra) and acknowledged that “[t]he waiver ought not be regarded as extending beyond the compass of the evidence already given”.[45]
[45] Ewin v Vergara (No 2) (2012) 209 FCR 288 at [27].
Finally, counsel brought to my attention to the decision of Moshinsky J in Australian Securities and Investments Commission v One Tech Media Limited (2017) 122 ACSR 572. In that case, Moshinsky J had to determine an application for discovery in connection with a contempt of court application. In resisting the application, a firm of solicitors relied upon an Affidavit addressing several substantive matters raised in the contempt application. Moshinsky J found that the use of the affidavit amount to a limited waiver of the law firm’s privilege. Particularly, and at paragraph 40, His Honour said as follows:
40.…the firm’s reliance on that affidavit…constituted a waiver of the privilege against exposure to penalty and the privilege against self-incrimination to the extent that it put in issue the dates of payments and the amounts of payment alleged by ASIC in the contempt charges against the firm. The affidavit was filed with the Court and relied on by Kalus Kenny …in opposition to leave being granted to serve the Contempt Application on the firm. In those circumstances, a waiver occurred, albeit to a limited extent: see Ewin v Vergara (No 2) (2012) 209 FCR 288 at [23] – [25].
…
It was inconsistent with the maintenance of the relevant privileges for the firm to put forward the dates and amounts in the affidavit.
Would the respondent’s evidence at trial give rise to prejudice and/or self-incrimination?
By the Affidavit, which he filed for the purposes of trial in this Court, the respondent says among other things the following:
(a)Between about 2009 and late 2015, he would visit the applicant at the Suburb EE property on “some weekends”.[46] He then says:
[46] Respondent’s affidavit filed 21 September 2021, paragraph 28.
(i)He would “go to Sydney almost every weekend leaving [Town G] either Friday or Saturday afternoon and return to the [property] the following Monday and on occasions, Tuesday”;[47] and
(ii)His “visits to Sydney gradually reduced over time”;[48]
(b)In late 2015, the applicant moved into a property at Suburb FF built by him albeit the land was owned by the respondent’s son. He says that he “would stay at…[Suburb FF] whenever I was in Sydney”;[49]
(c)In 2017, he stayed at the Suburb FF property for a period of 14 weeks after he was hospitalised having sustained an injury;[50]
(d)“Up until 2018, [the applicant] would bring her children to the property during school holidays for a few days about twice a year” and in 2019, the applicant “visited me at the [property] twice and stayed for not more than 2 days each time”;[51]
(e)His relationship with the applicant “completely broke down in October 2020”;[52]
(f)The parties “have always lived at separate residences”;[53]
(g)He was “never involved or assisted with… [the applicant’s] schooling or any activities in which they were involved”;[54]
(h)He undertook various holidays with the applicant and her children.[55] The locations referred to are not locations where is it alleged by the Crown that offences occurred.[56]
[47] Respondent’s affidavit filed 21 September 2021, paragraph 29.
[48] Respondent’s affidavit filed 21 September 2021, paragraph 30.
[49] Respondent’s affidavit filed 21 September 2021, paragraph 33.
[50] Respondent’s affidavit filed 21 September 2021, paragraph 34.
[51] Respondent’s affidavit filed 21 September 2021, paragraphs 39 – 40.
[52] Respondent’s affidavit filed 21 September 2021, paragraph 35.
[53] Respondent’s affidavit filed 21 September 2021, paragraph 42.
[54] Respondent’s affidavit filed 21 September 2021, paragraph 85.
[55] Respondent’s affidavit filed 21 September 2021, paragraph 86.
[56] Respondent’s criminal solicitor’s affidavit filed 6 December 2024, Annexure A.
By reference to the Crown Case Statement, I have learned that:
(a)Counts 1 and 2 allegedly occurred at the Suburb EE property sometime in 2012 and in 2014 respectively. That was during a period when the respondent says that he would visit the applicant at the Suburb EE property on “some weekends” (supra);
(b)Counts 3, 4 and 5 allegedly occurred at a property owned by the respondent and/or a property at Suburb FF owned by the respondent. As discussed above, it is the respondent’s evidence that the applicant would bring the children to the property on about two occasions each year for a few days at a time. In contrast, the applicant says that during the holidays “my children and I would spend a lot of time at the [property]”.[57] With respect to the Suburb FF property, the respondent says that he “would stay at…[Suburb FF] whenever I was in Sydney” (supra). The applicant is silent as to the precise amount of time the respondent would stay at the Suburb FF property but says that the respondent continued to maintain the property.[58] I infer from the applicant’s evidence then that the respondent was absent from the Suburb FF property for significant periods so that he might attend at the property;
(c)Counts 6 and 7 relate to events, which allegedly occurred at the Suburb EE property in about 2015. Again, at that juncture, the respondent says it was his practice to visit Sydney on weekends only (supra); and
(d)Count 9 relates to an event, which allegedly occurred at the property in 2019. As discussed above, the respondent says that he would bring her children to the property during school holidays for a few days about twice a year. The applicant’s evidence is to the contrary.
[57] Applicant’s affidavit filed 10 August 2021, paragraph 14.
[58] Applicant’s affidavit filed 10 August 2021, paragraph 23.
The applicant has not filed any Affidavit material in the name of her children. I understand that the applicant will not call her children to give evidence in these proceedings. On the applicant’s own case, the respondent’s time with the children across the course of the relationship was limited to weekends and holidays. By reason of the applicant’s evidence and indeed the respondent’s evidence, it is difficult to apprehend how it might be that at any trial directed to the provisions of s 90SM of the Act, the respondent would be able to argue he is entitled to any adjustment in his favour on account of the care of the children. Equally, and because of the evidence given by each party about the relatively limited extent of the relationship between the children and the respondent, it is difficult to apprehend how any evidence about the children’s time with the respondent will have a material impact on any determination about the length of the de facto relationship.
As discussed above, it is the respondent’s case that the parties “have always lived at separate residences”[59] and that he was “never involved or assisted with… [the children’s] schooling or any activities in which they were involved”.[60] Although the applicant’s case is that the children spent significant time with the respondent during school holiday periods and/or on weekends and/or during periods when the respondent was convalescing as a consequence of illness and injuries sustained by him, it is difficult to apprehend that the topic of the respondent’s interaction with the applicant’s children will be a major area of cross-examination at any trial (whether such trial is directed to the threshold issue or a s 90SM determination).
[59] Respondent’s affidavit filed 21 September 2021, paragraph 42.
[60] Respondent’s affidavit filed 21 September 2021, paragraph 85.
Even if my conclusions are erroneous, I do not accept that the respondent will be prejudiced as a consequence of any enquiry in relation to those matters referred to in s 4AA of the Act. The respondent contends that questions asked of the respondent in these proceedings will also be relevant to the District Court proceedings and posits that the following questions may be asked of the respondent:
(a)What opportunities existed for the respondent to have unsupervised care of the applicant’s now adult child and how often those opportunities arose;
(b)The extent to which the respondent was in a position of authority over the applicant’s now adult child at the time of the alleged offending; and
(c)The likelihood or opportunities for the respondent to expose his genitalia to the adult child or frequently sexually assault her over a sustained period of time.
I reject any suggestion that questions with respect to the above topics are relevant to any determination about whether the parties were at any time in a de facto relationship and/or a determination about the length of the relationship. Further, if questions designed to elicit such information are asked of the respondent, it is absolutely foreseeable that an objection would be raised by the respondent’s counsel and/or the court by its own motion having regard to the terms of s 55 of the Evidence Act 1995 (Cth).
For these reasons, I do not consider that the respondent will be prejudiced if I list the competing applications for a determination about the period of any de facto relationship and/or a determination of any application for an extension of time within which to commence proceedings.
Again, and even if my conclusions are erroneous, it is difficult to understand how the respondent can argue that he will be prejudiced by a progression of these proceedings when his criminal solicitor has advised the Court that the applicant has been cross-examined with respect to Affidavits she has filed in these proceedings. By his Affidavit, the respondent’s criminal solicitor tells the Court that the applicant has been cross-examined in relation to “when the family law proceeding against the respondent was commenced, the motivation for doing so, in relation to recordings the applicant had made of the respondent without his knowledge and the failure by the applicant to disclosure [sic] the alleged abuse of [the applicant’s children]”.[61] The respondent’s criminal solicitor says that cross-examination was “limited” but also says that the applicant was cross-examined across two days in mid-2023 with respect to Affidavits filed in these proceedings. As highlighted above, those affidavits included the applicant’s account of the extent to which the respondent was involved with and spent time with her children and the parties’ living arrangements.
[61] Respondent’s criminal solicitor’s affidavit filed 6 December 2024, paragraph 6.
It is also reasonable to infer by reason of the evidence given by the respondent’s criminal solicitor that prosecution have been provided with access to the applicant’s Affidavit material. This being so, the very strong inclination in my mind is to find that there is no prejudice to the respondent in proceeding to the threshold issue. Adopting a colloquialism, I find that the respondent by his own actions in making an application for the production of material filed in these proceedings by the applicant to the District Court of New South Wales and thereafter to cross-examine the applicant in relation to such material has “let the cat out of the bag”.
For the reasons discussed, I find that the respondent’s defence of the application to be wanting. Further, there is no convincing explanation by the respondent as to the way, or ways, in which this civil proceeding will disclose to the prosecution in the criminal proceeding something which it does not now know by consequence of the Order made by Senior Judicial Registrar Tran on 17 May 2023. The issues raised in this proceeding are set out by the applicant in her Affidavit material and the respondent has not identified what more would likely occur during the course of a civil trial in these proceedings that would disclose to the prosecution of the said charges, something that the prosecutors do not already know. This being so, I reject the respondent’s assertion that he will suffer prejudice if the stay is lifted.
Has the respondent’s conduct been inconsistent with the maintenance of the privilege against self-incrimination?
As discussed above, I find that the respondent’s behaviour in mid-2023 by making an application for the release of material filed by the applicant in these proceedings and thereafter, by cross-examining the applicant in relation to the same in the District Court proceedings is inconsistent with the maintenance of the privilege against self-incrimination.
In addition, this proceeding is well advanced, and many interlocutory steps have been taken to date without reservation or objection by the respondent. Such steps have included:
(a)The respondent’s failure to make an application to discharge Order 3 of the Order made on 31 May 2021. Order 3 required the respondent to file and serve one consolidated affidavit of his evidence in chief and affidavits of any witnesses by 30 July 2021;
(b)The criminal charges relating to the applicant’s now adult children were listed before the Local Court for the first time in mid-2021. The respondent was charged the day prior.[62] Despite this, and when the competing applications were listed before a Judicial Registrar on 19 August 2021, the respondent did not seek to vary or suspend the operation of the Order made on 31 May 2021;
(c)On 21 September 2021, the respondent filed an Affidavit for the purposes of trial together with the Affidavits of three witnesses. Albeit belated, the respondent’s actions constituted compliance with the Order made on 31 May 2021; and
(d)On 23 September 2021, the competing applications were again listed before a Judicial Registrar D’Addona. At that time, the parties who were legally represented, advised the Court that the parties “are ready to be allocated hearing dates in relation to the threshold hearing”.[63] It was four months later that the respondent sought to vacate the trial date allocated as a consequence of representations made by his solicitor on 23 September 2021.
[62] Respondent’s affidavit filed 21 September 2021, paragraph 127; Respondent’s criminal solicitor’s affidavit filed 6 December 2024, paragraph 4.
[63] Orders made on 23 September 2021, Notation D.
The respondent’s failure to make an application for the discharge of orders made for the filing of Affidavits in preparation for trial and thereafter, his actions by filing extensive Affidavit material is in my mind, inconsistent with the maintenance of the privilege against self‑incrimination. I have set out in some detail above the matters canvassed by the respondent in his Affidavit material, which he filed without objection and in respect of which he now says he cannot give evidence because it may incriminate him. If the respondent was in fact concerned by the same, then I would have expected his legal representatives to make the appropriate applications between mid-2021 (when the respondent was charged) and 23 September 2021 (when the competing applications were listed before a Judicial Registrar for the second time in as many months).
There is a further point of curiosity. This relates to the respondent’s behaviour subsequent to the hearing before me on 26 November 2024. On that day, the proceedings were listed for a Case Management Hearing. The matter was listed in circumstances where the proceedings had several weeks earlier been listed before the Honourable Justice Riethmuller for the purpose of making enquiry about whether the proceedings could be listed for trial.
During the course of the hearing on 26 November 2024, there was discussion between Bench and Bar as a consequence of submissions made by the applicant’s counsel about whether the respondent’s failure to review Orders 3 and 4 of the Order made by Senior Judicial Registrar Tran on 17 May 2023 constituted an action, which was inconsistent with the maintenance of the privilege against self-incrimination. I will again set out those orders for ease of the reader:
3.In the event that the Prosecutor in the District Court Proceedings requests access to the following documents:
(a)Affidavit of [the respondent] dated 2 February 2021;
(b)Affidavit of [the respondent] dated 19 September 2021;
(c)Exhibit Book of [the respondent] referred to as Exhibit [MA] dated 19 September 2021;
The legal representative for the Wife [sic] is permitted to provide these documents, and the Leave referred to in Order 1 applies.
4.In relation to any requests referred to in Order 3, the Prosecutor shall copy such requests to both parties’ legal representatives.
By Response to Application in a Proceeding filed on 6 December 2024, the respondent sought a review of those orders. Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) prescribes that a party may file an Application for Review within 21 days of the date of the Order. That time limitation expired on 7 June 2023. At the hearing on 18 December 2023, I expressed an opinion that the application for review of Order made some 18 months earlier was not made on a bona fide basis. Particularly, I maintain my view that the application was only made so as to deprive the applicant of one limb of her argument to the effect that the respondent has by his actions, behaved in a manner which is inconsistent with the maintenance of the privilege against self-incrimination.
Whatever the scenario, I agree with submissions made by the applicant’s counsel to the effect that if the respondent was concerned about the maintenance of the privilege against self‑incrimination, then he would have immediately reviewed the Order made by the Senior Judicial Registrar Tran in May 2023. He did not do so and accordingly, I find that the respondent did not genuinely and reasonably apprehend a danger from being compelled to give evidence at trial.[64]
[64] R v Boyes (1861) 121 ER 730 as referred to in Accident Insurance Mutual Holdings Ltd v McFadden & anor (1993) 31 NSWLR 412 at 422.
By her Affidavit filed on 6 December 2023, the respondent’s solicitor in these proceedings said that she was not aware of the Application in a Proceeding filed by her client on 16 May 2023 or the orders made by the Senior Judicial Registrar on 17 May 2023 until January 2024.[65] An observer like me could only be concerned by such a concession but in any event, it is irrelevant to my determination.
[65] Respondent’s solicitor’s affidavit filed 6 December 2024, paragraph 29.
Should the order for a stay of the proceeding be lifted?
An applicant is prima facie entitled to have his/her civil action tried in the ordinary course and a stay is therefore a significant curial intervention, which requires adequate justification on proper and persuadable grounds. The applicant for a stay bears the burden of demonstrating proper and persuasive grounds or a stay.[66]
[66] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [39]; McMahon v Guld (1982) 7 ACLR 202, page 206.
The considerations, which inform the Court in relation to whether it is just and appropriate to stay a proceeding include balancing the competing interests of justice as between the parties, taking into account all relevant factors including detriment and prejudice to the party potentially exposed to self-incrimination and prejudice, which a stay of proceeding will or may alleviate.[67]
[67] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [47] and [50]; Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 at [22].
For the reasons set out above, I find that the respondent has behaved in a manner which is inconsistent with the maintenance of the privilege against self-incrimination. Further, I have rejected the respondent’s assertion that he will suffer prejudice if the stay is lifted.
I also bring to account the fact that these proceedings have been on foot since 17 December 2020. It follows that the proceedings have been on foot for over four years. Further, and despite the fact that the District Court proceedings are listed in late 2025, there can be no guarantee as history demonstrates that the trial will proceed, that it will conclude and/or that a sentence will be delivered in a timely manner.
At paragraph 28 of her Affidavit filed on 29 November 2024, the applicant deposes to the purchase of two properties by the respondent since June 2022 and the purchase of a commercial property in the name of a discretionary trust. By contrast, the applicant sold a property and received proceeds of a modest amount, which sum is subject to capital gains tax.[68] She still drives a motor vehicle in the name of the respondent’s business and tells the Court that as a consequence, she does not know when the vehicle needs to be re-registered nor is she able to claim any toll rebates.[69] This being so, I have formed a view that it is the applicant and not the respondent who will be prejudiced by the maintenance of the orders made on 2 March 2022.
[68] Applicant’s affidavit filed 29 November 2024, paragraph 30.
[69] Applicant’s affidavit filed 29 November 2024, paragraph 32.
It is unfortunate that these proceedings have continued for so long. The parties’ combined costs are already approaching $170,000.00,[70] and at the current juncture, I imagine it would be difficult for each of them to see the “light at the end of the tunnel”.
[70] Costs Notices filed by the parties on 17 December 2024.
In all the circumstances, I have formed a view that the Order made by Justice Henderson on 14 March 2022 ought to be discharged.
DISCLOSURE
The respondent’s solicitor in these proceedings has made complaint that:
(a)The applicant has not provided disclosure as to her current financial circumstances;[71]
(b)The applicant has not filed any updated financial statement since 17 December 2020;[72] and
(c)The applicant has not filed any undertaking as to disclosure in these proceedings.[73]
[71] Respondent’s solicitor’s affidavit filed 6 December 2024, paragraph 22.
[72] Respondent’s solicitor’s affidavit filed 6 December 2024, paragraph 23.
[73] Respondent’s solicitor’s affidavit filed 6 December 2024, paragraph 24.
The respondent’s complaints are curious in circumstances where he says that the proceedings ought to be dismissed in any event.
Nevertheless, and to assuage the concerns of the respondent, I will make orders, which will hopefully resolve the topic of outstanding disclosure. Given the position adopted by the respondent, I do not agree that it is necessary for the applicant to make disclosure of her financial circumstances or to file an updated financial statement.
FUTURE CONDUCT
Given the issues at bar, it is inconceivable that the parties will wish to file any additional Affidavit material. As discussed, extensive affidavits were filed by the parties in preparation for trial in the period July to September 2021.
The parties have previously advised a Judicial Registrar that a trial in respect of the threshold issue will take about four days. Fortunately for the parties, and in an effort to bring this long running litigation to an end, I am able to accommodate them during the week of 7 to 11 April 2025.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 28 January 2025
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