Biar v Knights - [2022] WADC 102

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BIAR -v- KNIGHTS [2022] WADC 102
CORAM:   STAUDE DCJ
HEARD:   24 OCTOBER & 10 NOVEMBER 2022
DELIVERED          :   Ex tempore
PUBLISHED           :   25 NOVEMBER 2022
FILE NO/S:   CIV 980 of 2020
BETWEEN:   CARL JEFFREY BIAR
Plaintiff

AND

GEOFFREY REYNOLD KNIGHTS
Defendant

Catchwords:

Practice and procedure - Action for damages for personal injuries - Alleged breaches of common law and statutory duties - WorkSafe prosecution commenced after action listed for trial - Identity of issues - Application to vacate trial dates - Whether action should be stayed until the determination of WorkSafe prosecution

Legislation:

Occupational Safety and Health Act 1984 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Application granted

Representation:

Counsel:

Plaintiff	:	Mr B Bradley
Defendant	:	Mr G J Pynt

Solicitors:

Plaintiff	:	Bradley Bayly Legal (Perth)
Defendant	:	Hall & Wilcox (Perth)

Case(s) referred to in decision(s):

Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2019] FCA 964
Commissioner of Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46
Ortensio Lucciano (A Pseudonym) v The Queen [2021] VSCA 12

STAUDE DCJ:

[This decision was delivered extemporaneously on 18 November 2022. Errors of syntax and grammar have been corrected and references completed.]

The plaintiff's claim is for damages for personal injuries caused by the defendant's alleged breaches of duty both at common law and pursuant to the Occupiers' Liability Act1985 (WA) and the Occupational Safety and Health Act 1984 (WA) (Act). The plaintiff was injured when a pit that had been excavated as part of building works in which he was engaged collapsed around him.
The trial of the action is listed to commence on 20 February 2023. Liability is in issue. The defence application dated 21 October 2022 is for an order vacating the trial dates and staying the proceedings until the resolution of a WorkSafe prosecution under s 22(1) of the Act. The prosecution alleges that the defendant, as the employer of the plaintiff and others, breached the statutory duty he owed pursuant to s 19(1) of the Act in circumstances that amounted to gross negligence.
The WorkSafe prosecution was not commenced until 17 June 2022 by which time this action had been listed for trial. The offence charged in each prosecution notice is serious. It carries a maximum penalty of a $550,000 fine and imprisonment for five years. The defendant has pleaded not guilty.
The defendant contends that his right to silence and his corresponding right not to give evidence at the trial of the WorkSafe prosecution will be infringed if the trial of this action is heard before the other, and he will be thus prejudiced in his defence.
The application came before me for hearing on 24 October 2022. It was adjourned because the plaintiff had become aware of the fact that the defendant had been interviewed by WorkSafe investigators and was seeking production of the recordings of the interview. Prior to the further hearing of the application on 10 November 2022 the parties put on further affidavits relating to the issue of discovery of two audio recordings of interviews of the defendant and the plaintiff lodged a minute of proposed orders dated 9 November 2022 relating to production of the audio recordings and containing various pre‑trial directions.
I took the view that the plaintiff would need to apply by chamber summons for an order for further and better discovery, and that the question of discovery of the audio recordings did not affect the determination of the application before me, so while I have received submissions with respect to discovery, I do not propose to deal with that issue at this time.
I do note relevantly that the Act provides by s 47(3) that the defendant's answers to questions asked by WorkSafe investigators and information given by him to the investigators are not admissible in evidence against him in the prosecution or in any civil proceedings.
I also note that in so far as the defendant has set out his position in his defence it is to deny the plaintiff's allegations of negligence and breach of statutory duty and to assert facts that are exculpatory. The defendant has pleaded a positive defence, meaning that he has alleged facts in his defence that he would be required to prove, in part by his own evidence.
Although the defendant would not be compelled to give evidence at the trial of this action, given that the standard of proof is on the balance probabilities, adverse findings of fact are more likely to be made on evidence that is uncontradicted by him. It is likely therefore that defendant would give evidence at the trial. He would be cross‑examined on that evidence. Such cross‑examination may elicit admissions or may otherwise elicit evidence that may go to his credibility.
For that reason, although the defendant has conceded that by virtue of having been interviewed by WorkSafe investigators his evidence would not inform WorkSafe of anything it did not already know from his interview, his giving evidence in the trial of this action has the potential to prejudice his defence of the prosecution.
There is no question therefore that the defendant's right to silence will be infringed if the trial of this action proceeds before the trial of the WorkSafe prosecution. That, of course, is a criminal proceeding in which the prosecution bears the onus of proof, and the standard of proof is beyond reasonable doubt.
There is no disagreement as between the parties as to the principles that apply to the exercise of the court's discretion to order a stay of this action. They may be found in Commissioner of Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 [36] and are conveniently summarised in Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2019] FCA 964 [50] - [63]. In Zhao the High Court upheld a decision to grant a stay of proceedings brought under the Confiscation of Profits Act 1986 (Vic) pending a criminal trial. The court observed at [47]:
The prospect that civil proceedings may prejudice a criminal trial and that such prejudice may require a stay of the civil proceedings is hardly novel. In some jurisdictions, procedures are provided for making an application for a stay in such circumstances. The risk of prejudice in a case such as this is real. The second respondent can point to a risk of prejudice; the Commissioner cannot.
Last year in Ortensio Lucciano (A Pseudonym) v The Queen [2021] VSCA 12 the Court of Appeal (Victoria), dealing with an appeal from conviction in a prosecution that was brought after a civil action involving the same factual issues was decided, held as follows in setting aside the conviction on the grounds of a miscarriage of justice:
It cannot be doubted that, had the applicant been aware that criminal charges were imminent, he would have had a persuasive argument that the civil proceeding be stayed pending the determination of those charges. If the issues and the circumstances relevant to both proceedings are substantially identical, it will be readily apparent that there is a risk of prejudice in the defence of the criminal trial. In effect, the civil proceeding would operate as a 'dress rehearsal' or 'test run' for the criminal trial.
Counsel for the plaintiff has candidly informed the court that the plaintiff will not be unduly prejudiced financially by any delay in the resolution of this action. There is no prejudice to the plaintiff likely to suffered by a stay except understandable frustration occasioned by the delay in the resolution of his claim. While I do not underestimate prejudice of that kind, it does not weigh substantially against the risk of a miscarriage of justice that would arise if the application were not granted.
The defendant's application is granted.
The orders I propose are:
1.The trial dates herein be vacated and the trial adjourned to a date to be fixed upon the determination of prosecution notices PE 24560 and 24561 of 2022, or further order of the court.
2.The costs of the application and any costs occasioned by the adjournment of the trial be reserved to the trial judge.
3.There be liberty to apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
Associate to Judge Staude
8 DECEMBER 2022