Beare v Light Regional Council - [2008] SADC 72

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
BEARE v LIGHT REGIONAL COUNCIL
[2008] SADC 72
Judgment of His Honour Judge Tilmouth
16 June 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
Held:
1. An appeal from a decision of a Master is by way of full rehearing on the merits.
2. Since the Master did not give any reasons for imposing a stay of civil proceedings relating to the same subject matter as pending criminal charges, the matter would have to be re-heard in any event.
3. The criterion for granting a stay under Rule 192 was whether the justice of the case so requires: there is no threshold test of 'real or substantial prejudice'.
4. On the current state of authorities, protecting the right to silence is but one of many factors to consider. As the respondent had disclosed his position before charges were laid and as he instituted civil proceedings knowing a police investigation was underway, the only correct exercise of discretion in the combined circumstances was to refuse a stay.
The principle of the public interest in the normal primacy of the administration of criminal justice, considered.
District Court Act 1991 (SA) s 43, s42E(3); District Court Rules 1987 R 97.01; District Court Rules 2006 R 17, 192, 292, referred to.
McMahon v Gould (1982) 7 ACLR 202; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; Australian Securities Commission v Kavanagh (1993) 12 ACSR 69, applied.
Stone v Marsh 6 B& C 551 ; Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26; Jefferson Ltd v Bhetcha [1979] 1 WLR 898; Yuill v Spedley Securities (1992) 8 ACSR 274; Niven v SS [2006] NSWCA 338; Ling v Police (1996) 90 A Crim R 376, discussed.
Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16; Ceasar v Sommer [1980] 2 NSWLR 929; Cavanagh-Lang v O'Callaghan [2000] SASC 187; Petty & Maiden v The Queen (1991) 173 CLR 95; Unit Services Pty Ltd v Kevin R Whelpton & Associates Pty Ltd (1984) 4 FCR 428; Aitkins v Minister of Community Welfare & Crowe (1988) 34 A Crim R 26; Griffin v Sogelease Australia Ltd [2002] NSWCA 421; Roberts v State of Western Australia (2005) 29 WAR 445; State of Western Australia v Bond Corporation Holdings Pty Ltd (1992) 117 ALR 275, considered.

BEARE v LIGHT REGIONAL COUNCIL
[2008] SADC 72
Preliminary

This case raises a rather novel issue, as a plaintiff seeks (and in fact was granted by a Master of this court), a stay of his own proceedings. It now comes before a Judge of the court by way of an appeal. The circumstances giving rise to this somewhat novel situation are as follows.
Factual background
For the better part of ten years, the appellant/plaintiff (“Mr Beare”), was Chief Executive Officer of the defendant Light Regional Council (“the Council”) under a contract of employment commencing 1 May 1997, in the form of an Australian Workplace Agreement within the meaning of Part VI D Division 4 of the Workplace Relations Act 1996 (Cth). On 30 March 2007 the Council terminated his employment, without notice, on grounds of serious and wilful misconduct. He had voluntarily stepped down from that position in November 2006, when an investigation by the Anti‑Corruption Branch of the South Australian Police was already under way.
The grounds for dismissal included allegations of purchasing land with the “insider” knowledge that it was to be redeveloped and therefore increase appreciably in value, assisting an acquaintance to purchase land at undervalue and when it was known that it was likely to increase substantially in price, and that he issued a tender on behalf of the Council to an acquaintance, without going through the established tender process and in breach of a Code of Conduct binding on him.
The statement of claim dated 6 July 2007 alleges he was entitled to twelve months notice of termination. He claims liquidated damages, in rounded terms of just under $140,000.00. On 22 February 2008 he was arrested and charged with two offences, contrary to s251 of the Criminal Law Consolidation Act 1935 (SA), namely two counts of an abuse of public office. The particulars are that between July 2004 and September 2005 and between May 2005 and March 2007 respectively, being a public officer, he improperly used information gained by virtue of his public office, intending to secure a benefit for himself or another person. These allegations are underpinned no doubt, by the obligation created by s120 of the Local Government Act 1999 (SA), requiring Chief Executive Officers of Local Councils having any interest in a matter before the Council, to disclose that interest. The section also forbids them from acting in relation to the matter over which the conflict exists, otherwise than with the express permission of the Council.
Each offence carries a maximum penalty of 7 years imprisonment and is therefore a “major indictable offence” within the meaning of s5(3)(b) of the Summary Procedure Act 1921(SA). As such they must be committed for trial into this court following the committal process provided for therein. Counsel for Mr Beare advises the evidence by way of witness declarations or statements have not yet been presented. Accordingly the prosecution has not reached the committal stage. Although it is not possible to be definitive, it is clear enough that in the ordinary course this process is likely to take several months, if not longer, to reach that point. Therefore it is not likely to be committed to this court until later this year. In that event, it is unlikely to be reached for trial until sometime in the second half of 2009.
On the other hand, the civil proceedings are at a very preliminary stage. A statement of claim and defence, both detailed, were filed. Once again, it is not possible to be categorical, but with further pre-trial procedures remaining to be explored, including discovery and the like, together with the pre-trial conference process and then setting down, a trial is not likely to be reached until some time well into 2009. Based on these predictions, it is not possible to make any reliable assessment as to which trial would be reached first, or when either might be.
The application for a stay
Civil proceedings were filed in this court on 6 July 2007. An extensive defence was then filed on 6 August 2007. The application for a stay of proceedings was issued promptly following arrest on 26 February 2008 and the subsequent stay was made on 31 March 2008. As will be seen, the stay was granted by a Master without giving reasons. Accordingly, it is not possible to identify what led the Master to reach the conclusion that it was in the “interests of justice” to stay the civil action.
For his part the respondent/plaintiff says the prejudice is obvious, in that he is now confronted with two complex proceedings relating to essentially the same subject matter. This, he contends, unnecessarily duplicates the trial of the underlying issues and is a waste of resources. His own time and finances would have to be devoted to both, and there are obvious cost implications in running them side-by-side. It was further submitted that should the civil proceedings be reached first, the plaintiff would, in effect, be required to disclose his case, thus undermining and if not defeating, the right to silence the criminal law affords him: RPS v The Queen[1]. For its part the defendant/appellant argues there is a “threshold” to satisfy before a stay can be properly granted, namely that “real and substantial prejudice” must be demonstrated and no such prejudice emerges.
[1] (2000) 199 CLR 620 at [61].
The felony-tort rule
The felony-tort rule was overtaken, perhaps replaced, towards the latter part of the twentieth century. In its stead the courts were almost instinctively willing to grant stays preventing civil actions proceeding in the teeth of concurrent criminal prosecution, on the basis that the civil litigation might compromise the accused’s right to silence, or more accurately the privilege against self incrimination. This practice found its high water-mark in Wonder Heat Pty Ltd v Bishop[2]. In that case Pape J said[3]:
For myself, I am one of those who believe that if an accused person has in fact and in law a good defence, it loses nothing by being disclosed. But the right to advance at a criminal trial a surprise defence is merely part of the wider proposition that an accused person is not obliged to say anything in his defence unless he so desires.
[2] [1960] VR 489.
[3] [1960] VR 489 at 495.
The common law recognised for well over a century and a half the so called felony-tort rule, to the effect that a plaintiff against whom a felony was committed by a defendant, could not make the felony the foundation of a civil cause of action unless the defendant was prosecuted to completion for it. It was formulated in reliance on Gibson v Minet[4], by the Court of Common Pleas in Stone v Marsh[5], in these terms:
There is, indeed, another rule of the law of England, viz., that a man shall not be allowed to make a felony the foundation of a civil action.…. Now public policy requires that offenders against the law shall be brought to justice, and for that reason a man is not permitted to abstain from prosecuting an offender, by receiving back stolen property, or any equivalent or composition for a felony, without suit, and, of course, cannot be allowed to maintain a suit for such a purpose.
[4] 1 H Bl 569; (1791) 126 ER 326.
[5] 6 B & C 551; (1827) 108 ER 554.
The principle was subsequently acknowledged in White v Spettigue[6] and Wells v Abraham[7], and became entrenched in Smith v Selwyn[8], by which name it was then referred to. It was however one described by Sugerman ACJ (Holmes and Mason JJA agreeing) in Rochfort v John Fairfax & Sons Ltd[9] as “artificial…and now largely unnecessary because of contemporary methods of law enforcement.”
[6] 13 M&W 603 (1845) 153 ER 252.
[7] (1872) 7QB 554.
[8] [1914] 3 KB 98 at 105-106.
[9] [1972] 1 NSWLR 16 at 20.
Whatever its historical origins, it is one that has gradually been eroded to the point of extinction over recent decades. Roden J in Ceasar v Sommer[10] pronounced the rule in Smith v Selwyn[11] dead and Wotton J in McMahon v Gould[12] trusted “the rule will stay buried, so that its ghost does not again rise to rattle medieval chains (albeit refurbished in Victorian times) in modern litigation”. The decision in McMahon v Gould has remained influential ever since.
[10] [1980] 2 NSWLR 929.
[11] Above.
[12] (1982) 7 ACLR 202 at 205.
So far as the common law of Australia was concerned, the rule received its quietus in Halabi v Westpac Banking Corporation[13]. Kirby P declared it “obsolete and forming no part of the law of New South Wales”[14] and McHugh JA considered it to be “now superseded by and is expressed in terms of the principles expounded in McMahon v Gould”[15]. Only Samuels J regarded the rule as “well settled … whatever its imperfections”[16]. McHugh J also observed that Wotten J in McMahon v Gould had “formulated the principles applicable in terms which adequately protected the position of the defendant who has been charged with a felony”[17]. The rule lost application in South Australia with the abolition of the distinction between felonies and misdemeanours in the Criminal Law Consolidation (Felonies and Misdemeanours) Act 1994 (SA).
[13] (1989) 17 NSWLR 26.
[14] above at 38.
[15] (1989) 17 NSWLR 26 at 58.
[16] (1989) 17 NSWLR 26 at 47.
[17] (1989) 17 NSWLR 26 at 57.
So far as the right to silence was concerned in the civil court, it was no longer accepted by the time of Jefferson Ltd v Bhetcha[18] that it was of itself of great significance in connection with applications to stay.   Megaw LJ observed in that case[19]:-
Having referred to Wonder Heat Pty Ltd v Bishop the judge went on:
Like the Australian judge, I take the view that if there be a good defence there is no harm in producing it.   But that is not the law.   The defendant is entitled to keep silent.   That seems to me to be fundamental and that right is not to be eroded by a sidewind.
As I understand it, the judge based his decision on the view that there is an established principle of law that, if criminal proceedings are pending against a defendant in respect of the same subject-matter, he, the defendant, is entitled to be excused from taking in the civil action any procedural step, which step would, in the ordinary way, be necessary or desirable for him to take in furtherance of his defence in the civil action, if that step would or might, have the result of disclosing, in whole or in part, what his defence is, or is likely to be, in the criminal proceedings.   Counsel for the defendant in this court submitted that that is the general rule which ought to be followed.   He did not, as I understand it, submit that it was an invariable or inflexible rule which would deprive the court of any discretion if the matters which I have mentioned were established.   With the view, if it were put forward, that this is an established principle of law, I would respectfully but firmly disagree.   There is no such principle of law.   There is no authority which begins to support it, other than, to a limited extent, Wonder Heat Pty Ltd v Bishop, which, with great respect, I should not be prepared to follow, if indeed it does purport to lay down such a principle.   I do not think that it does.’
[18] [1979] 1 WLR 898.
[19] [1979] 1 WLR 898 at 905.
Those “formulated principles” receiving the approval of McHugh J in Halabi v Westpac Banking Corporation were these[20]:
[20] 7 ACLR at 206-207.
(a)Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure (Rochfort v John Fairfax & Sons Ltd at 19);
(b)It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid);
(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 (Jefferson v Bhetcha at 905);
(d)Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons Ltd at 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceedings;
(e)The court’s task is one of “the balancing of justice between the parties” (Jefferson Ltd v Bhetcha at 904), taking account of all relevant factors (ibid at 905);
(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 (ibid at 905);
(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 proceedings (ibid at 904).   I return to this subject below;
(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 proceedings (ibid at 904-5);
(i)The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid at 905);
(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 (ibid at 905);
(ii)     the proximity of the criminal hearing (ibid at 905);
(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 (ibid at 905);
(iv)    the burden on the defendant of preparing for both sets of proceedings concurrently (Beecee Group v Barton)[21];
(v)     whether the defendant has already disclosed his defence to the allegations (Caesar v Somner at 932; Re Saltergate Insurance Co Ltd at 736)[22];
(vi)    the conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re Saltergate Insurance Co Ltd at 735-6);
(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 Beecee Group v Barton).
[21] (1980) 5 ACLR 33.
[22] (1980) 4 ACLR 733.
This approach has since gained practically universal acceptance, although the list has been regarded as non-exhaustive: Gallagher v Collins[23], Philippine Airlines v Goldair (Aust) Pty Ltd[24], Yuill v Spedley Securities Ltd (in liq)[25], Guglielmin v Trescowthick[26], Commonwealth Bank of Australia v May[27] and Niven v SS[28]. There have been persuasive suggestions these may require revision in order to properly reflect the contemporary public interest in the normal primacy of the administration of criminal justice: Yuill v Spedley Securities[29] and Niven v SS[30]. That is hardly decisive a consideration in this case for reasons which follow later.
[23] [2006] VSC 139 at [27].
[24] [1990] VR 385 at 389.
[25] (1992) 8 ACSR 272.
[26] (2005) 220 ALR 535.
[27] [2007] NSWSC 490.
[28] [2006] NSWCA 338.
[29] (1992) 8 ACSR 272 at 279.
[30] [2006] NSWCA at 338 at [2].
Kirby J in the former case talked of the potential qualification in the following way[31]:
One day it may be appropriate for this Court to reconsider the guidelines stated by Wootten J in McMahon v Gould. There are, in my view, considerations additional to those which are referred to by Wootten J which it would be relevant to consider in proceeding to determine an application for a stay such as was before Rolfe J. For example, it is in my opinion relevant to take specifically into account the public's own interest in the normal primacy of the administration of criminal justice, being a part of the public law of the community relevant to its good order and peaceful government. This consideration might help explain why, ordinarily but not universally, such proceedings should be heard and determined first. Cf Attorney General for New South Wales v John Fairfax and Sons Ltd and Anor (1985) 1 NSWLR 402, 405 (CA); Border Morning Mail Pty Ltd v Hansen, Court of Appeal, unreported, 25 November 1987; (1987) NSWJB 229; R v Hargreaves; ex parte Dill [1954] Crim LR 54 (DC); Hinch and Anor v Attorney General [1987] VR 721, 727 (FCV).
Also relevant is the fact that serious criminal proceedings are still determined, in most cases in this State, by juries. Most civil litigation is now decided by judges sitting alone. Judges, by their training, are conventionally considered to be better able to make the mental adjustments for excluding the prejudicial effect of pre-trial publicity then lay jurors are. The sensational and highly personalised presentation of much news by the news media today has become a factor relevant to the fair trial of prominent "personalities". Guarding their right to a manifestly fair criminal trial is as much in the interest of the community and its legal institutions as in the interests of the individuals concerned.
A further consideration in cases of this class is the "deep-rooted" inclination of our law to avoid, directly or indirectly, depriving a person of the right to silence in criminal proceedings. Sometimes the prior litigation of the criminal trial may have that effect, either by its interlocutory procedures or by the need of the accused, in the forensic setting of the civil trial, to give evidence or ask questions, thereby disclosing a defence to the outstanding criminal charge. Cf Lam Chi Ming v The Queen [1991] 2 AC 212, 222 (PC); Regina v Director of the Serious Fraud Office; ex parte Smith, House of Lords, unreported, Times Law Report, 16 June 1992. More than lip service must be paid by courts to the preservation of these enduring features of the criminal process, whether in the interpretation of apparently inconsistent statutes or in the exercise of a discretion to stay civil proceedings until related criminal proceedings are completed. Cf Baker v Campbell (1983) 153 CLR 52; Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319. Such features exist not only to protect the rights of the individual accused but also to help define the relationship between the organised state and citizens generally. In the context of cases such as the present, it is possible that the guidelines in McMahon v Gould need to be revised to reflect more accurately such considerations. Basic rights matter most where they seem most painful to accord. See Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116, 124.
Nevertheless, as I read the decision in McMahon v Gould, the guidelines proposed by Wootten J were just that: guidelines. They did not purport to be an exclusive or exhaustive list of considerations which the judge should take into account. Cf Norbis v Norbis (1986) 161 CLR 513, 518ff. They are expressed in language of great generality.
[31] 8 ACSR 272 at 274.

In the latter Beazley JA wrote in similar vein:
[2] I wish, however, to make one observation. Kirby P in Yuill v Spedley Securities Ltd (in liq) (1992) 8 ACSR 272 at 274 commented upon the public interest in the primacy of the administration of criminal justice and the fact that McMahon v Gould (1982) 7 ACLR 202, which governs the outcome of this case, may not sufficiently reflect that public interest. I consider that there is force in Kirby P’s comment, although this case is neither the occasion to reconsider McMahon v Gould, nor, in my opinion, would there have been any different result, for the reasons given by Tobias JA.
The decision of the Master
Now the question before the court arises in this way. Once the plaintiff was charged by the police, an application was brought within days for a stay pending the outcome of the criminal charges, on the basis that those charges “arise out of the factual circumstances which are the subject of his claim.” That position was not disputed by the Council. Eventually the matter came before a Master of this court, who on 31 March 2008 made an order, without publishing reasons in the following terms:
1. Having regard to the submissions made by counsel, it is my view in the interests of justice to grant the plaintiff’s application (FDN 9). Therefore, I order that this action be stayed, pending the outcome of the criminal charges against the plaintiff, which charges arise out of the factual circumstances that are the subject of this action.
The reference by the Master to “the interests of justice”, doubtless picks up Rule 192 of the District Court Rules 2006, which furnishes the discretionary power to “stay proceedings if the justice of the case so requires”.
An appeal lies from a judgment given by a Master of the District Court to a Judge of that Court, pursuant to s43 of the District Court Act 1991 (SA). Section 43 is otherwise silent on the nature or scope of such an appeal. It is one that lies as of right pursuant to Rule 17 of the District Court Rules 2006. Formerly, appeals brought under s58 of the repealed Local and District Criminal Courts Act 1976 (SA) were appeals stricto sensu, so that error had to be shown before the power to interfere arose: Millbank v Price[32], Cheeseman v Launer[33], Bagshaw v Taylor and Taylor[34] and Cross v Reilly[35].
[32] [1954] SASR 166 at 173.
[33] (1972) 3 SASR 573 at 576.
[34] (1978) 18 SASR 564.
[35] (1979) 21 SASR 553.
Under the previous District Court Rules 1987 R97.01, an appeal against an interlocutory judgment of a Master was by way of rehearing. The Judge was entitled in matters involving the exercise of discretion, to “exercise his own discretion without regard to the manner in which it was exercised in the decision … appealed against”.
Rule 292 of the 2006 Rules, which replaces the former Rule 97.01, now provides:
(1)An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2)Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3)Subject to any limitation on its powers arising apart from these rules, the Court may—
(a)     draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)     amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)     remit the case or part of the case for rehearing or reconsideration;
(d)     make orders for the costs of the appeal.
The extremely wide and unqualified discretions vested in the court, together with the breadth of the language used, are suggestive of the power of complete rehearing at large, on the merits. This is particularly evident in the unqualified statutory remit to “determine an appeal as the justice of the case requires” going beyond the issues raised by the parties, the power to “give any judgment that the justice of the case requires” and by the omission of the equivalent to the former Rule 97.01. Rule 292 also confers a very wide range of dispositive powers indeed.
It is ultimately a matter of construction whether the power of rehearing under Rule 292(1) is a full rehearing, or limited in some way. As Mason J observed in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd[36]:
Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, … But in the end the answer will depend on an examination of the legislative provisions ... (P)rimarily it is a question of elucidating the legislative intent…
[36] (1976) 135 CLR 616 at 621-622, Barwick CJ and Stephen J agreeing at (625).
The clearly expressed purpose of the 2006 Rules is that a Judge is to exercise an independent judgment, which the judge should not hesitate to give effect to where there are persuasive reasons for departing from the decision of a Master. Accordingly, it is not necessary to identify error before a Judge is entitled to interfere. The court in this situation proceeds on the basis of the record and the material before the Master, and such fresh evidence as it may exceptionally admit: Fox v Percy.[37]
[37] (2003) 214 CLR 118 at 125 [22-23] per Gleeson CJ, Gummow and Kirby JJ.
Since an appeal from a District Court Master to a Judge of this court is entirely a creature of the District Court Act, Part 6 Division 2 of that Act does not apply to such appeals, as it does to other appeals coming to the court when sitting in its Administrative and Disciplinary Division. Those appeals remain “subject to the provisions of the special Act” conferring that jurisdiction. Hence, in respect of those other appeals, but not at Master’s appeal, the court is generally obliged to “give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons”: s42E(3). The absence of such any qualification on the power of intervention, rather confirms the view that Master’s appeals stand somewhat differently, as re-hearings de novo, in most cases on the papers.
It was submitted by Mr Bourne that the Judge is not entitled to exercise his own discretion without regard to the manner in which it was exercised by the Master, that there was a strong presumption in favour of the correctness of the decision below, and the decision should be affirmed unless the court was satisfied it was tainted by error in the manner described in a long line of cases, but ultimately deriving from House v The King[38]. The fault in that submission is that those cases relate to appeals that were not expressed to be by way of “rehearing”, overlooks the influence of the former Rule 97.01 and fails to give effect to the evident purpose of the present Rule 292.
[38] (1936) 55 CLR 499 at 504-505.
The failure to give reasons
It was submitted by counsel for the appellant that there was in any case demonstrable error, in that the Master failed to have regard to a long line of cases, the proper application of which could only have led to the refusal of the stay. The second alleged error was that no reasons were given, so that the appeal court was entitled to make up its own mind on the substantial merits of the matter anyway. If necessary, counsel adopted an alternative submission that the appeal from the Master of this court to a Judge was one that did not necessitate demonstrable error before the court was entitled to interfere. The court has already determined the proper nature of an appeal under the 2006 Rules is a hearing de novo, without being obliged to have regard to the manner in which the discretion was exercised by a Master and to determine the matter as the justice of the case requires, irrespective of error.
As to the failure to give reasons, generally speaking it is necessary for a Tribunal or court from whom an appeal lies, to provide sufficient reasons to enable the parties to understand the basis of the decision made and in order for the appeals court to properly perform and discharge the task of appellant review: Public Service Board of NSW v Osmond[39], Fleming v The Queen[40], Soulemezis v Dudley (Holdings) Pty Ltd[41]. Furthermore, the failure to furnish adequate reasons, may itself amount to error of law: Pettitt v Dunkley[42], Papps v Police[43], Perkins v County Court of Victoria[44], Byrnes v Barry[45], Mountford v Magistrates Court of South Australia[46]. In the case of interlocutory decisions such as this was, it remains necessary for a Master to explain the matters taken into consideration and the conclusion reached on relevant points of fact and law, although these need not be lengthy nor elaborate: Apps v Pilet[47].
[39] (1986) 159 CLR 656.
[40] (1998) 197 CLR 250.
[41] (1987) 10 NSWLR 247.
[42] [1971] 1 NSWLR 376.
[43] (2000) 77 SASR 210.
[44] (2000) 2 VR 246; (2000) 115 A Crim R 528.
[45] (2004) 150 A Crim R 471.
[46] (2006) 95 SASR 103.
[47] (1987) 11 NSWLR 350.
Reconsideration of the merits
Applying the McMahon v Gould criteria to the current case, Mr Bourne for the respondent accepted the principle that the parties were entitled to have their actions tried in the ordinary course, so he centred upon preserving the right to silence, the unnecessary duplication inherent in concurrent proceedings and the consequential resources and financial burden on his client. Mr Lazarevich for the appellant on the other hand, maintained there was a “threshold” to be overcome, namely whether “real or substantial prejudice” demonstrated before the court can properly impose a stay.
Before turning to the merits, it must be said that no such threshold emerges from any of the authorities. To borrow an expression coined by Olsson J in Cavanagh‑Lang v O'Callaghan[48], Rule 192 ‘stipulates its own test…the sole touchstone for the exercise of the powers conferred by it is that they may be exercised’ if the interests of justice so requires. Of course proof of real or substantial prejudice would go a long way towards justifying a stay, but that is not of itself, the test. The question is simply one of balancing the interests of justice between the parties taking account of all relevant factors, of which this so‑called threshold is only one. Hayne J expressed the situation in Australian Securities Commission v Kavanagh[49] as being “one of the balancing of justice between the parties taking account of all relevant factors and judging the case on its merits”. With this overarching consideration in mind, one can then return to the submissions of Mr Bourne.
[48] [2000] SASC 187 at [47], Wicks and Gray JJ agreeing.
[49] (1993) 12 ACSR 69 at 72.
The right to silence is one zealously guarded as a fundamental common law principle, protected by it for centuries: Ling v Police[50].   There have of course been statutory inroads, most notably in the United Kingdom: see Criminal Justice and Public Order Act 1994 (UK) s34 and see: Dennis “Silence in the police station: the marginalisation of Section 34.”[51]   This provision permits a jury to have regard to the failure of an accused to mention facts subsequently relied upon by the defence at trial, not mentioned when questioned under caution by police, accompanied by a direction cautioning the jury of the danger of too readily drawing an adverse inference: R v Howell.[52] This of course is not, and never has been the law in Australia.   Following the decision of the High Court in Petty & Maiden v The Queen, [53] a jury must be specifically cautioned that an accused is not obliged to answer any question, retains a fundamental right to remain silent and that its exercise must not lead to any conclusion of guilt.
[50] (1996) 188 LSJS 488; (1996) 90 A Crim R 376.
[51] [2002] Crim LR 25.
[52]    [2005] 1 Cr Apps R 1.
[53] (1991) 173 CLR 95 at 99.
There is a degree of tension these days between these ancient precepts and case flow management principles, as discussed by Doyle CJ in Ling v Police[54]:
It may be that the time has come for some limits to be placed upon the right of silence and for some obligation to be imposed upon the defence to join in the identification of and limiting of issues in criminal proceedings to an extent inconsistent with the maintenance of the right of silence. It is well known that the criminal courts in Australia and in other countries are struggling to cope with the volume of work coming before them. It is equally well known that the length of trials is tending to increase. These matters are a cause for real concern. It is equally well known that the effectiveness of current methods of case flow management is limited because, among other things, under Rules such as those that exist in South Australia, the court has no power to require the defence to disclose the nature and extent of the defence case.
The appropriate balance between the responsibility of the court for the efficient conduct of cases before it, and so the width of its powers of case management on the one hand, and the operation of the right of silence on the other hand, is an important issue. It is an issue which, I believe, will have to be faced by the Courts and by Parliament in due course. I am not to be taken as suggesting that the right of silence should be abolished. I merely observe that whether it should be limited is an important issue. The right is, to my mind, so fundamental that if it is to be removed that can be done only by Parliament or by statutory authority clearly conferred, and should be done only in the light of a careful consideration of the desirability of the limitation of the right of silence and of the extent of any limitation.
[54] Above at 90 A Crim R 382.
When it comes to concurrent civil and criminal proceedings, and endeavouring to give effect to the right to silence, the interests of justice require a delicate balance to be struck against the right to have a civil action tried expeditiously. Justice delayed is justice denied in any jurisdiction. Protecting the exercise of the right to silence is on the present state of the authorities, a factor to be taken into consideration, but no more than that. There is nothing before the court indicating whether the accused remained silent under police questioning, before or after his arrest. The court does know that in the course of negotiations during the pre-dismissal process when police were known to be investigating the matter, the respondent through his solicitors wrote an extensive letter of some seven pages to the Council on 29 March 2007, setting out in considerable detail various matters in “response to the allegations against him.”
That letter traverses ground relevant to these proceedings and therefore necessarily to the criminal charges. He has, accordingly, knowing of a police investigation, elected to disclose extensively his position on the allegations. At face value, this letter would be admissible evidence in the prosecution case against him as containing both part admissions and part exculpatory statements: Mule v The Queen[55], Spence v Demasi[56]. He has consciously decided to “show his hand” by effectively disclosing his case to that extent, thus raising his shield against self‑incrimination. Whilst not quite amounting to a situation of complete waiver, it is not a case where “the right is … waived unconsciously or through ignorance”. It was a case of deliberate disclosure, by an informed person having the benefit of legal advice: Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates Pty Ltd[57].
[55] (2005) 79 ALJR 1573.
[56] (1988) 48 SASR 536.
[57] (1984) 4 FCR 428 at 434.
Nothing was identified by his counsel to suggest the real, as opposed to merely notional “danger that the disclosure of the defence in the civil action would, or might, lead to a potential miscarriage of justice in the criminal proceedings:” Jefferson Ltd v Bhetcha,[58] or the potential for injustice of the type identified in Atkins v Minister of Community Welfare & Crowe[59].
[58] above at 905.
[59] (1988) 34 A Crim R 26.
The next consideration was the question of duplex concurrent proceedings. This was said to be both time wasting and costly. That may be accepted, but it is nevertheless a necessary product of the system designed to bring proceedings in both jurisdictions to trial expeditiously. It can equally be accepted that it may well be more convenient and efficient from the point of view of Mr Beare and for that matter the courts themselves, for the criminal proceedings to precede the civil trial, but that is not determinative and it is to ignore the obvious interests of the Council in bringing matters to a head, so that it will know where it stands so far as a CEO is concerned. Not only is it an inevitable product of the system, it is one to an extent, brought upon the respondent himself, as he chose to bring proceedings when he had up to six years before they would fall out of time.
Submissions were made by both parties with respect to one potential witness, who is quite elderly. The implication was that she might not survive the process. That may be so, but there are mechanisms in both jurisdictions for the taking of statements, which may be tendered into evidence, should that contingency arise. This is essentially a relatively neutral consideration in the scheme of things.
One further generic consideration raised by Mr Bourne was that of the burden of preparing both sets of proceedings concurrently. Despite the criticisms of the appellant’s counsel that no evidence was put forward to support this contention, it is not difficult at all to accept that legal costs would be higher, with both proceedings being prepared at the same time. Even though there would be an inevitable degree of overlapping as the subject matter of both is the same, this is a consideration favouring a stay. On the other hand nothing was put forward to suggest the cost of running the civil proceedings might compromise or curtail the ability of the respondent to effectively defend the criminal charges, or vice versa.
There is also another counter-vesting consideration. The respondent invoked the civil process of the court knowing the circumstances were under consideration by the police. This he would have done knowing that criminal charges might be laid. This is then, “not the ordinary case of a man faced with two separate proceedings … in which the civil proceedings are sought to be stayed in limine to protect his defence to the criminal charges…” Re Saltergate Insurance Co Ltd (in liq) and the Companies Act[60].
[60] (1980) 4 ACLR 733 at 736.
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 emphasized, 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 a stay.
Had it not been for these considerations, and given there is a substantial chance that both trials might coalesce as things presently stand, I would have been prepared to give substantially more weight to the consideration that ordinarily the criminal proceedings should be heard and determined first. One suspects this was the consideration most influencing the Master. But as McMahon v Gould received the imprimatur of the Full Court of the Supreme Court of South Australia in Atkinson v Minister for Community Welfare & Crowe[61], not to mention the Courts of Appeal in Griffin v Sogelease Australia Ltd[62] and Roberts v State of Western Australia[63], it is plainly binding on a Judge sitting at this level in the hierarchy.
[61] above.
[62] [2002] NSWCA 421.
[63] (2005) 29 WAR 445.

There is but one further matter to mention. It was suggested during the course of argument that an alternative solution was available, which was to allow the civil proceedings to progress to a certain stage, for example to the point of setting down for trial and then staying them. It is true that such a course commended itself to French J in State of Western Australia v Bond Corporation Holdings Pty Ltd,[64] coupled with the device of protecting confidentiality, but there a lengthy criminal trial was imminent. Furthermore, the principles of case-flow management have overtaken a disposition of that kind and in any case that course would do little, if anything at all, to alleviate the particular concerns agitated on behalf of Mr Beare.
[64] (1992) 114 ALR 275 at 300-301.
Conclusion and order
In conclusion then, since the Master has failed to give any reasons, the matter must be re-heard afresh by the court according to the merits. In any event Rule 292 of the District Court Rules 2006 provides a full right of rehearing. The only proper exercise of discretion vested by Rule 192 was to refuse the application for stay in the circumstances of this case, on the basis of the existing law.
There will be an order pursuant to Rule 292 allowing the appeal from the Master and rescinding the order for a stay. The matter will be remitted to the Master’s list to be dealt with in the ordinary course. The parties are entitled to be heard on the question of costs and as to any consequential orders consistent with these reasons, considered necessary.