Beare v Light Regional Council - [2010] SADC 74

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application for Stay of Proceedings)
BEARE v LIGHT REGIONAL COUNCIL
[2010] SADC 74
Judgment of His Honour Judge Nicholson
24 May 2010
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - OTHER MATTERS
Plaintiff commenced proceedings for breach of contract alleging wrongful dismissal from his employment by the defendant Council. Later in time the plaintiff was charged with criminal offences. A broadly identical factual basis underlies both sets of proceedings. The plaintiff’s initial application for a stay of the civil proceedings was refused in 2008 by a judge of this court. The plaintiff renewed his application for a stay before the judge allocated to hear the civil trial listed for 7 June 2010.
Held: Stay of the trial of the civil proceedings granted until further order.
Evidence Act 1929 s 34C; Criminal Law Consolidation Act 1935 (SA) s 251, referred to.
Beare v Light Regional Council [2008] SADC 72; McMahon v Gould (1982) 7 ACLR 202 at 206-207; Atkins v Minister of Community Welfare and Crowe (1988) 34 A Crim R 26, considered.

BEARE v LIGHT REGIONAL COUNCIL
[2010] SADC 74

The plaintiff was Chief Executive Officer of the defendant Council for almost 10 years before the defendant terminated his employment without notice, on the basis of alleged serious and wilful misconduct. The plaintiff commenced proceedings in this Court by Summons and Statement of Claim, filed on 6 July 2007, in which he alleged that the defendant had wrongfully terminated his contract of employment without notice. He denied that he had engaged in any misconduct and specifically any misconduct that could be characterised as either serious or wilful. He sought liquidated damages for the defendant’s breach of contract in failing to give 12 months’ notice of termination and on account of accrued annual leave entitlements. The plaintiff also made other claims including a failure to observe natural justice and to act in accordance with a propounded duty of good faith, for which he sought unliquidated damages. The plaintiff also claimed an entitlement to aggravated and exemplary damages.
By its Defence, filed on 6 August 2007, the defendant pleaded and particularised in quite some detail various allegations concerning conduct of the plaintiff which it alleged amounted to serious and wilful misconduct such that it was entitled to have terminated the plaintiff’s employment without notice.
Following leave granted by me on 12 May 2010 the plaintiff filed an Amended Statement of Claim and has now limited his claim solely to the allegation of wrongful termination of a contract of employment without notice. On 14 May 2010 the defendant filed an Amended Defence in which it maintains its allegations of serious and wilful misconduct. On 18 May 2010 the plaintiff filed a detailed Reply responding to the defendant’s allegations.
Following the filing of the amended pleadings, it would appear that the only issues in dispute are those concerning the defendant’s allegations of serious and wilful misconduct, the onus of proving which rests with the defendant.
The matter is listed for a three week trial to commence on Monday 7 June 2010. By interlocutory application filed on 7 May 2010 the plaintiff has sought an order that the defendant be dux litis with respect to the issue of the alleged misconduct. On the first return of that interlocutory application I was informed by the plaintiff’s counsel that he also wished to make a second application for a stay of the proceedings notwithstanding that his earlier application for a stay had been heard and refused by his Honour Judge Tilmouth in the middle of 2008[1].
[1] Beare v Light Regional Council [2008] SADC 72
I heard argument with respect to the plaintiff’s written application that the defendant be dux litis on the issue of misconduct and on the plaintiff’s oral application for a stay of proceedings on Wednesday 19 May 2010 and reserved my decision.
A fundamental concern of the plaintiff is that on 25 February 2008, some 7 months or so after he commenced these proceedings, he was arrested and charged with two counts of Abuse of Public Office, contrary to s 251 of the Criminal Law Consolidation Act 1935 (SA).
These are serious charges. The maximum penalty for each of the two offences is seven years imprisonment. It is common ground that the factual basis relied upon by the Crown as underpinning the criminal charges is broadly the same factual basis relied upon by the defendant as constituting substantial components of its allegations of serious and wilful misconduct.
The plaintiff’s initial application for a stay of proceedings was filed promptly following his arrest on 26 February 2008 and a stay was granted by a Master of this court on 31 March 2008. Tilmouth DCJ allowed the defendant’s appeal from the Master’s decision and rescinded the order for a stay. The circumstances of the litigation as they then were, the background to the plaintiff’s claim and the defendant’s allegations by way of defence were canvassed in some detail in his Honour’s reasons for judgment.
At the time the matter was heard by his Honour the criminal proceedings were at a very early stage. The proposed evidence, by way of witness declarations or statements, had not yet been presented and the matter had not reached the committal stage in the Magistrates Court. His Honour engaged in a lengthy and detailed reasoning process and had regard to a number of considerations put on behalf of the plaintiff and said to support the imposition of a stay. I will not take the time in this judgment to set out that reasoning process. His Honour ultimately reached the following intermediate conclusion (at para [41]):
In the result, these considerations distil into further preserving the right to silence, partly abridged by the respondent himself and the burden of carrying two sets of proceedings at once. These considerations, even in combination, are hardly outweighed by the need to bring the matters to trial expeditiously. It is a grave matter to interfere with the due process of law by a stay, particularly it must be emphasised, where that stay is sought against a party in respect of proceedings instituted at the instance of that party, to the point that the balancing of justice between parties is heavily against the imposition of stay.
His Honour was strongly influenced by the statement of principles that, ordinarily, will inform the consideration of any application for a stay in circumstances where both civil and criminal proceedings are on foot, as set out by Wootten J in McMahon v Gould.[2]. As Tilmouth DCJ pointed out (at para [42]) the approach advocated by Wootten J has received the imprimatur of various appellate courts in this country including the Full Court of the Supreme Court of South Australia in Atkins v Minister of Community Welfare and Crowe.[3]Nevertheless, as King CJ (with whom Jacobs and von Doussa JJ agreed) pointed out in Atkins (at 28) the list of considerations identified by Wootten J is not exhaustive.
[2] (1982) 7 ACLR 202 at 206-207
[3] (1988) 34 A Crim R 26
The decision by Tilmouth DCJ to refuse a stay after the criminal proceedings had been instituted was not considered further on appeal. The parties, after receiving his Honour’s decision, went about continuing their preparations for the civil trial. It is not necessary nor appropriate for me to express a view as to the correctness or not of the reasoning and conclusion reached by his Honour at what was a very early stage of the criminal proceedings and at a time well before the civil proceedings had been set down for trial. His Honour made a discretionary judgment based on the various considerations before him at the time and as they commended themselves to him at that time. I have considered and had regard to the material placed before and submissions made to Tilmouth DCJ by the parties and to His Honour’s reasons for judgment.
The defendant did not submit during the argument that the bringing of a second application for a stay, in the circumstances, constituted an abuse of process. However, the submission was put that there has been no material change in the plaintiff’s circumstances and that no new material that might support the grant of a stay had been provided to the court. I reject that submission. In my view there is nothing that ought to prevent me from hearing and determining the plaintiff’s application afresh after having regard to the more advanced circumstances of both sets of proceedings as they now stand. Insofar as the plaintiff requires permission to bring this interlocutory application pursuant to District Court Rule 6R 131(5) I give that permission.
The plaintiff has now been committed in the Magistrates Court for trial in the District Court. He was arraigned in this Court on 29 March 2010 and pleaded not guilty to the two counts of Abuse of Public Office. He was remanded, on bail, to a directions hearing in this Court to be held on 25 May 2010. It is anticipated that at that directions hearing or some subsequent directions hearing a date for the trial of the criminal proceedings will be allocated. Nevertheless, it is common ground, that a trial will not take place before some time in 2011 or possibly later. Whilst it is still possible that the criminal proceedings might resolve by way of agreement, to this point, attempts at resolution have been unsuccessful.
According to counsel for the plaintiff, the Director of Public Prosecutions has indicated that the criminal trial is likely to occupy four weeks. The information upon which the plaintiff has been arraigned lists 61 or so proposed or possible witnesses in the Crown case. I appreciate that not all persons listed on the information necessarily will be called by the Crown to give evidence at the trial. Nevertheless, given the limited additional information available to me from the pleadings in the civil matter and the fact that this trial has been listed for three weeks, I accept that four weeks for the criminal trial is not an unreasonable estimation at this time.
As far as the civil proceedings are concerned, after the stay was refused by Tilmouth DCJ on 16 June 2008 the parties engaged in some interlocutory skirmishing concerning matters of discovery. In March 2009 the plaintiff foreshadowed before the Master an intention to renew his application for a stay and to bring an application that the defendant be directed to assume the role of dux litis on the issue of misconduct. The master made an order that any such application was to be filed and served by 31 March 2009 and set down a time for argument on Monday 18 May 2009. In fact, the applications were not made. However, on 11 May 2009 the defendant filed an interlocutory application seeking an order that the matter be listed for trial. The matter was next substantively before the Master on 3 September 2009 at which time the Master, on the defendant’s application, dispensed with the requirement to file a Certificate of Readiness, and ordered, pursuant to DCR 6R 120(6), that the matter proceed to trial and be allocated a listing appointment. The Master noted that the plaintiff did not consent to the matter being listed for trial and elected to make no further submissions on this issue after conceding the defendant’s submission that any further application for a stay and/or any application that the defendant was to be dux litis on the issue of misconduct were matters for the trial judge. I have read the transcript of the proceedings before the Master on 18 May 2009 and the orders made would appear to be consistent with the positions put by the parties on that day.
A listing conference was held and, as I have already indicated, the matter was listed for trial for three weeks starting 7 June 2010.
The plaintiff’s application for a stay has been brought pursuant to DCR 6R 192 which provides;
The Court may stay proceedings if the justice of the case so requires.
It can be seen that the test to be applied is a consideration of the question of whether or not “the justice of the case so requires”. Usually, in circumstances where there are concurrent civil and criminal proceedings on foot, the application for a stay is made by the defendant in the civil proceedings. Commonly, it is the alleged misconduct of a defendant that gives rise to criminal proceedings and also to civil proceedings at the behest of a plaintiff who maintains that the defendant’s criminal conduct also amounts to a civil wrong which has caused that plaintiff loss. Leaving aside the decision of Tilmouth DCJ in these proceedings, neither counsel was able to refer me to and I am not aware of any reported decision that has dealt directly with the situation of a plaintiff who wishes to obtain a stay of civil proceedings instituted by the plaintiff.
It was in the context of the typical situation of a defendant seeking such a stay that Wootten J in McMahon v Gould identified the following guidelines (citations omitted):
(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 a 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;
(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 may 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 be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed.
In my view, the considerations set out in paragraphs (a), (b) and (c) are of limited direct assistance in the present case. As I have said, this is not the case of a defendant seeking to prevent a plaintiff from having his or her civil claim tried in the ordinary course of the procedure and business of the court. In addition, a number of the other considerations must be considered and applied bearing in mind this quite different context that it is a plaintiff seeking a stay. Nevertheless, I do accept that a defendant also is entitled to a proper, just and expeditious determination of proceedings brought against it. A defendant also can suffer prejudice where proceedings that have been brought against it are protracted. I will address this issue further in a moment. Nevertheless, in a case, such as the present, where the defendant is simply resisting a relatively small money claim[4], I am not prepared to place the same weight on a defendant’s entitlement to an expeditious trial as I would place on a plaintiff’s entitlement to an expeditious trial, at least in the absence of any indication of real prejudice that might be suffered by the defendant as a result of any lack of expedition.
[4] Relatively small having regard to the nature, size and resources of the particular defendant in question.
Guideline (d) is with respect, undoubtedly correct. However, it offers no real assistance. In guidelines (e) and (f) Wootten J describes the task of the court as one of the balancing of justice between the parties taking account of all relevant factors. To my mind, this is another way of stating the test established by DCR 6R 192 – “if the justice of the case so requires”. Guidelines (g) and (h) raise the issue of the accused’s “right to silence” and the need, with appropriate constraints, to be satisfied that the conduct of contemporaneous civil proceedings would not unfairly compromise that right. The plaintiff has not based his present application for a stay on an argument that his right to silence, in its strict sense, insofar as the criminal proceedings are concerned, would be unfairly and significantly compromised in the circumstances of this case. It is common ground, that the plaintiff has already significantly disclosed his position to the defendant and to the Crown. Whilst I am prepared to give some weight to this issue in favour of the plaintiff, for the reasons set out by Tilmouth DCJ in paras [35] and [36] of his judgment, any such weight can only be quite limited.
Guidelines (i) and (j) posit a number of considerations bearing on whether or not there is a risk, should the civil proceedings continue to trial, of causing injustice in the criminal proceedings. Apart from the consideration raised in subparagraph (iv) and an additional consideration not expressly adverted to by Wootten J to both of which I will return, there is little before me that would allow much weight to be attached to the considerations set out in guidelines (i) and (j).
Guideline (k) effectively restates the basic test to be applied and the time has passed beyond the giving of any consideration to guideline (l).
For these reasons and in the context of the present application, I have been able to obtain only limited assistance from the guidelines suggested by Wootten J in McMahon v Gould. It seems to me that I need to go back to the test provided for in DCR 6R 192 and consider the competing considerations that can be raised on behalf of each party.
Consideration of the Competing Positions
It is true that the plaintiff commenced these proceedings at a time when he was aware that he was or may still be under investigation by the police. In this, the plaintiff may have been unwise, at least having regard to the way in which things have turned out. The defendant has been compelled to defend the proceedings and to engage in an expenditure of time and money. Nevertheless, the plaintiff realised the difficulty he was in once the criminal proceedings were commenced in February 2008 and immediately brought his first application for a stay. By this time the pleadings had ostensibly closed and a settlement conference had been held. As far as the court file is concerned nothing further of substance had occurred before the stay application was heard and determined first by the Master and then on appeal by Tilmouth DCJ.

The parties have now reached the point where a three week civil trial is imminent. The plaintiff is also at a point where he must accept that a criminal trial would appear to be inevitable. I accept the plaintiff’s submission that the resource implications involved in the preparation for and conduct of a three week civil trial together with concurrently attempting to resolve favourably the criminal proceedings or preparing for a trial of the criminal proceedings are a relevant consideration.
However, I also accept the defendant’s submission that there is no evidence before the court as to the plaintiff’s current financial position. This limits the weight that can be put on the plaintiff’s submission here. Nevertheless, I am satisfied that both a three week civil trial and a four week criminal trial will have significant resource- psychological, time and financial- implications for even a financially assisted plaintiff/accused. Furthermore, even if the plaintiff were to be financially assisted with respect to either or both the civil and the criminal proceedings, the time and financial resource implications for those providing the assistance and for the court, should the civil trial proceed as this time, also must be taken into consideration.
I also accept that if the criminal trial were to proceed first and the plaintiff was either to plead guilty to or be found guilty at trial of the charged offences, the likelihood of a civil trial proceeding would be minimal. However, the converse would not necessarily apply. Depending on the way in which the criminal trial proceeded and on what fell out at the criminal trial, even if there were to be an acquittal, it would not necessarily follow that the civil proceedings would proceed to conclusion by way of trial. Given the more onerous burden of proof facing the Director of Public Prosecutions as compared with that facing the defendant in the civil proceedings, it could not be said that a trial of the civil proceedings would be inevitable in the event of an acquittal of the criminal charges.
In addition, the plaintiff’s claim for liquidated damages whilst not insignificant, would not in this day and age be regarded as particularly substantial. There can be little doubt that in terms of the competing priorities a rational person in the position of the plaintiff would need to devote his resources first and foremost to the criminal defence.
These are all practical reasons, there are no doubt others, why as a general proposition it would be preferable for the criminal proceedings to be concluded before the civil proceedings. In this respect, at the time that Tilmouth DCJ heard the first application there was still a possibility that the criminal proceedings would be resolved either with or without a trial before a trial was reached in the civil proceedings. This now will not happen. If the plaintiff’s application for a stay is refused the civil trial will be heard and probably determined prior to the resolution of the criminal proceedings.
I have already indicated that, in all of the circumstances of this case, only little weight can be placed on the need to preserve the plaintiff’s right to silence insofar as the criminal proceedings are concerned. However, there are related considerations which, in my view, strongly bear on the issue of whether or not the plaintiff might be prejudiced in the conduct of both his criminal defence and his civil dispute.
The defendant, in its Amended Defence, has pleaded some four pages or so of particularised allegations of deliberate and wilful misconduct. To succeed with these allegations and with its defence the defendant will need to prove, on a balance of probability, some or all of the various allegations of deliberate and wilful misconduct. It is likely, virtually certain it would seem, that for the plaintiff to succeed in his civil claim he will need to give evidence and address, both in examination in chief and cross-examination, each of the allegations put against him. At the time he gives evidence it is almost certain that the trial judge will give him a warning against self incrimination.
The plaintiff will be faced with a choice, possibly on many occasions, whether to answer a question in an effort to press his claim or to refuse to answer if concerned that the answer might incriminate him. The warning given is usually in the form that the witness may refuse to answer a question or produce a document if the answer or the document would have a tendency to expose the witness to the imposition of a civil penalty or to convict him for a crime.
It might be said that there should be no problem for an honest plaintiff. In the event that he has nothing to hide he will freely answer all questions in the prosecution of his claim against the defendant. Conversely, if there are answers which might have a tendency to expose the plaintiff to a conviction for a crime no real prejudice is suffered if he refuses to answer in the context of his own civil claim. At one level, there is much to be said for this. However, in my view, it fails to take account of the practicalities in the present situation.
In both trials the plaintiff (should he give evidence) can expect to be examined and cross examined over a wide range of administrative and financial dealings that occurred during his time as Chief Executive Officer of the defendant. The plaintiff’s honesty or the propriety of his conduct will be a central issue during the criminal trial whether or not he gives evidence. The defendant submits that it proposes to present a documents case at the civil trial and that the plaintiff’s credit will not necessarily be a central issue. I do not accept this submission. The defence and the nature of the proceedings generally strongly suggest that an attack on the plaintiff’s credit is highly likely.
The plaintiff knows that he is presently the subject of criminal charges and that the matter is to be listed for trial. It would be difficult if not impossible for the plaintiff to know what use might be made by the Crown of his evidence, given under oath in the civil proceedings, either by way of preparation for the prosecution or deployment during the trial. In short, the plaintiff in the civil proceedings will be giving his evidence whilst constantly “looking over his shoulder” endeavouring to predict what use might be made of his evidence for the purpose of the criminal proceedings. I start with the presumption of innocence that the plaintiff presently enjoys insofar as the criminal proceedings are concerned. I do not see how the presence of the looming criminal trial can at all be conducive to the plaintiff doing justice to his case in the civil trial even if the plaintiff’s answers were not such as, objectively, might be seen to have a tendency to expose him to conviction for a crime. In the heat of trial, in the heat of cross examination in particular, the plaintiff cannot be expected to fully understand the potential ramifications for the criminal proceedings of any answers he might give nor to be able to form a clear and objective view that a particular answer would not tend to expose him to conviction for a crime. In these circumstances, I cannot see how such a plaintiff can fairly and properly press his case in the civil proceedings.
There is an analogous consideration relevant to the conduct of the criminal trial. To have any chance of succeeding the plaintiff most likely will have to give evidence in the civil trial, and whether or not the defendant were to be dux litis. At the end of the civil trial the prosecution will be armed with transcript of the plaintiff’s account given during the civil trial. Should the plaintiff give evidence and be cross-examined in the criminal trial, the potential for the jury to be influenced by its perception of inconsistent testimonies- even if ultimately any such perception were to be unjustifiable- is manifest. An accused, presumed innocent, ought not to be placed in this position and the prosecutor handed this potential advantage without good reason.
In my view, there is a real potential for unfairness to attend both the civil trial and the criminal trial should the civil trial proceed first. There also are practical and resource allocation considerations which ordinarily indicate the desirability of the criminal trial proceeding to completion first. These matters, in the absence of countervailing considerations of sufficient weight, in my view support the plaintiff’s contention that the justice of the case would support a stay. I turn then to consider the principal countervailing factors raised by the defendant.
The defendant maintains that it is entitled to an expeditious trial of the proceedings brought against it and that delaying the trial will cause it prejudice. The defendant has identified two main areas of potential prejudice. First, the defendant intends to call a particular witness who is quite elderly. The defendant is concerned that, if the trial is delayed, this witness may not be able to give evidence or that the quality of her evidence may be compromised as a result of the delay, the further ageing or the ill health of that witness. This is a potential problem in any litigation, particularly litigation which takes some time to come to trial. In the present case, the problem with this particular witness is exacerbated given the advanced age of the witness. Nevertheless, the court has procedures to accommodate this sort of difficulty. In the event that circumstances are such that when the trial is heard such a witness simply cannot give evidence then, provided that a qualifying statement is in existence, an application might be brought under s34C of the Evidence Act 1929. In the alternative or in addition, the rules of court provide for evidence to be taken prior to trial, on commission, in appropriate circumstances. In the present case the pleadings have closed and the issues between the parties have been identified. There should be nothing to prevent the defendant, in appropriate circumstances, from making an application for the evidence of this witness to be taken by way of examination in chief and cross examination at some stage prior to the trial.
The defendant has also submitted that a number of other witnesses might be difficult to locate as time passes by. By way of reply to the defendant’s allegations, the plaintiff alleges that he did disclose informally, potential conflicts of interest. However, he has not identified, by name, all of the persons to whom he purportedly made these disclosures. The defendant is concerned that any lengthy adjournment will prejudice the defendant because there is a high risk that, with the natural turnover of its staff, persons who might be relevant witnesses will not be contactable by the time the matter comes to trial or their memories will have deteriorated over time.
Again, this is an issue of trial management that confronts litigants in most, if not all, trials. In a sense, the defendant in this case is better off than many defendants. The primary issues of contested fact in this matter concern those allegations of serious and wilful misconduct that the defendant has made and as to which the defendant has the onus to prove. The defendant, properly advised, would not have pleaded as it has if it did not take the view at the time of preparing the pleading that it had a reasonable prospect of proving, on a balance of probabilities, the allegations made. As a matter of prudence, the defendant will have given consideration to both the documentary and the oral evidence it would need to lead to sustain its position. The real problem for the defendant is that it doesn’t, at present, know the names and other details of various persons to whom the plaintiff says he made disclosure. This will be a problem for the defendant whenever the trial were to be held. It is not uncommon in civil trials for a party to be confronted with the oral evidence of witnesses about whom it had no previous knowledge.
Maintaining contact with, or knowledge as to the whereabouts of, proposed or possible witnesses is to some extent in the hands of the defendant. Again, rules of court provide for various means by which a party can require its opponent to fairly and properly provide notice of the case it intends to lead. For example, if the defendant can show sufficient prejudice it may have a basis for an application for further and better particulars.
I accept that the defendant will be put to some inconvenience in the event that the trial were to be adjourned and delayed for any significant period of time. However, I am not persuaded on the information before me, that any inconvenience and/or prejudice to be suffered by the defendant here will be anything out of the ordinary. In terms of its capacity to prepare a defence, the defendant is no worse off and indeed is significantly better off, than had the plaintiff refrained from commencing proceedings at all until near the expiration of the six year limitation period, some time in 2012.
The defendant contends that the plaintiff made a conscious decision to commence civil proceedings in the knowledge that the criminal investigation was still on foot. The plaintiff maintains that, given the chronology of events up to and immediately prior to commencing the civil proceedings, he was confident that he would not be subjected to criminal proceedings and acted reasonably in taking that view. Without finally deciding, I do accept, for present purposes, the defendant’s contention and I already have indicated that the plaintiff acted unwisely. Nevertheless, whilst this is a significant factor in my consideration of whether or not a stay, at the request of a plaintiff, ought to be granted, it is not one that I accord significant weight in the circumstances of this case. There is no doubt that the plaintiff is seeking an indulgence but at the end of the day I have to be satisfied as to that which the justice of the case requires.
The defendant also reminded the court that if the civil trial were to proceed on 7 June it would provide an impetus for the parties to resolve the matter without the need for a trial and at a great saving to the parties and the community. I accept that the pressure of an impending trial can cause or contribute to the settlement of many matters. However, in the present case and for the reasons I have outlined, in my view, it is possible that undue and perhaps unfair pressure would operate on the plaintiff if he were faced with the choice of proceeding to trial or settling with the defendant. I place no weight on this consideration.
The plaintiff has sought a stay of the proceedings. The plaintiff might have sought merely an adjournment of the trial listed for 7 June 2010. In the event that only an adjournment of the trial were to be granted, the matter would go off to another listing conference. It is possible, perhaps likely, that the trial would be relisted at a date before the completion of the criminal proceedings. Whilst it is somewhat unorthodox for a plaintiff to seek a stay of his own proceedings, an application for a stay here would seem to be the appropriate application. I am not satisfied that the defendant will suffer undue prejudice that cannot be accommodated by an order for costs if the trial were to be adjourned or indeed a stay granted in this matter. To the extent that the defendant will suffer some prejudice, in my view, it is significantly outweighed by the likely prejudice to the plaintiff in the event that the trial of the civil proceedings were to proceed to completion before resolution of the criminal proceedings. I also am satisfied that the likely prejudice to the plaintiff is of sufficient concern to outweigh any caseflow management considerations arising and notwithstanding the close proximity of a three week trial that will now not go ahead.
In my view, and returning to the test set out in DCR 6R 192, a stay is necessary here because the justice of the case so requires. However, it may be that the defendant will be advised to take steps to attempt to protect its position concerning several of the possible or proposed witnesses including, for example, any application for evidence to be taken on commission. Given these considerations, I think the plaintiff’s position would be sufficiently protected by an order staying the trial of this action until further order.
In these circumstances, it is not necessary for me to rule on the plaintiff’s application that the defendant be dux litis in the proceedings. This is a matter which properly ought to be determined by the trial judge if and when the matter proceeds to trial. I make the following orders:-
1The trial of this matter, listed for Monday 7 June 2010, is vacated.
2The trial of this action is stayed until further order.
3Either party has liberty to apply to a Master of this Court for further directions in the matter upon short but reasonable notice to the other.
I will hear from the parties on the issue of costs of the plaintiff’s application for a stay and on the issue of any costs thrown away as a consequence of the order vacating the trial set for 7 June 2010.