Daramola v Freeman
[2022] FedCFamC2G 1064
Federal Circuit and Family Court of Australia
(DIVISION 2)
Daramola v Freeman [2022] FedCFamC2G 1064
File number(s): PEG 32 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 21 December 2022 Catchwords: HUMAN RIGHTS – Where applicant alleges sexual harassment – where applicant employed on sponsored employment visa – criminal proceedings pending against respondent – where respondent seeks stay of the proceedings until criminal proceedings are resolved
PRACTICE AND PROCEDURE – Stay of proceedings – criminal proceedings on foot – whether real danger of prejudice, injustice or manifestly unfair criminal trial if civil proceedings proceed – case management principles
Legislation: Evidence Act 1995 (Cth) s 17
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.04
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Sex Discrimination Act 1984 (Cth) s 28B
Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) ss 323, 333
Cases cited: Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; (2007) 210 FLR 314
Akcine’ Bendrove’ Bankas Snoras (in bankruptcy) v Antonov and another [2013] EWHC 131 (Comm)
Andrew Koh Nominees Pty Ltd As Trustee for KL Unit Trust v Pacific Corporation Ltd [No 3] [2010] WASC 248
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Australian Securities Investments Commission v HLP Financial Planning (Aust) Pty Ltd [2007] FCA 1868; (2007) 164 FCR 487; (2007) 245 ALR 29
Cameron’s Unit Services Pty Ltd v Kevin R Whelpton Associates (Australia) Pty Ltd and Another (1984) 4 FCR 428; (1984) 59 ALR 754; [1985] ATPR 40-531
Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46; (2015) 243 A Crim R 270; (2015) 89 ALJR 331; (2015) 316 ALR 378
Debenho Pte Ltd & Anor v Envy Global Trading Pte Ltd & Anor [2022] SGHC 7
Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116
Jago v The District Court of New South Wales and Ors [1989] HCA 46; (1989) 168 CLR 23; (1989) 41 A Crim R 307; (1989) 63 ALJR 640
JB Asset Management & Anor v LBA Capital Pty Ltd & Ors [2020] VSC 629
Jefferson Ltd v Bhetcha [1979] 1 WLR 898
Kirby v Centro Properties Limited [2008] FCA 1505; (2008) 253 ALR 65
McMahon v Gould (1982) 7 ACLR 202
National Australia Bank Ltd v Human Group Pty Ltd [2019] NSWSC 1404
Panton and Others v Financial Institutions Services Ltd (Jamaica) [2003] UKPC 86
R v Panel on Takeovers and Mergers, ex parte Fayed [1992] BCC 524
Re AWB Limited [2008] VSC 473; (2008) 21 VR 252; (2008) 222 FLR 240; (2008) 252 ALR 566
Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd (No 6) [2010] FCA 1460; (2010) 191 FCR 145
Rural Export and Trading (WA) Pty Ltd v Hahnheuser [2004] FCA 1053; (2004) 148 A Crim R 179
Smith v Selwyn [1914] 3 KB 98
State of Queensland v Shaw [2003] QSC 436
State of Western Australia v Bond Corporation Holdings Pty Ltd and Others [No 2] (1992) 37 FCR 150; (1992) 114 ALR 275; (1992) 8 ACSR 352
Turnbull v Office of Environment and Heritage [2021] NSWCCA 190; (2021) 290 A Crim R 458
Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562
Wells v Abrahams (1872) LR 7 QB 554
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 19 August 2022 Date of hearing: 19 August 2022 Place: Perth Counsel for the Applicant: Mr D Branford Solicitor for the Applicant: Pragma Legal Counsel for the Respondent: Ms D Naidu Solicitor for the Respondent: Waterbrook Legal ORDERS
PEG 32 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FOLUKEMI DARAMOLA
Applicant
AND: AKINYEMI SOLA FREEMAN
Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
21 december 2022
THE COURT ORDERS THAT:
1.The Respondent’s interlocutory application filed 1 August 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
On 1 August 2022 the respondent, Dr Akinyemi Sola Freeman (“Dr Freeman”) filed an interlocutory application for leave to adjourn or stay the substantive proceedings in this matter (“Stay Application”).
The substantive application was filed by the applicant Ms Folukemi Daramola (“Ms Daramola”) in the Court’s human rights jurisdiction and alleges that Dr Freeman subjected Ms Daramola to sexual discrimination and sexual harassment in breach of s 28B of the Sex Discrimination Act 1984 (Cth).
At the time of the alleged acts Ms Daramola was employed at the Glenmoy Medical Centre, Willetton (“Centre”) as a medical practice manager. The Centre employed Ms Daramola on a Regional Sponsored Migration Scheme Direct Entry stream Subclass 187 visa. Dr Freeman worked at the Centre as a medical practitioner, and was the sole director and shareholder of Ms Daramola’s employer, Glenmoy Medical Centre Pty Ltd.
Stay Application
The Stay Application was filed following criminal charges being laid against Dr Freeman by the State of Western Australia in relation to alleged acts seemingly similar to those the subject of the substantive proceedings in this matter. Dr Freeman contends: Dr Freeman’s Affidavit, sworn 29 July 2022 (“Dr Freeman’s July 2022 Affidavit”) at [5], that if the substantive proceedings are to continue it would unfairly prejudice his position in the criminal proceedings as:
a.any disclosure, defence or statement made in these proceedings could be used against [Dr Freeman] in the Criminal Proceedings because any evidence given would encompass information about the alleged criminal charges;
b.[Ms Daramola] would have a distinct advantage of the subject allegations being tested in these proceedings and therefore could frame her case in support of the criminal matter; and
c.Having to defend a civil proceeding and criminal proceeding concurrently would mean [that Dr Freeman] would incur substantial legal fees and this would place [him] under significant financial hardship and limit [his] ability to properly defend [himself].
(hereafter, Grounds A, B and C respectively)
The relevant facts appear sufficiently from the parties’ submissions and the Court’s consideration as set out below.
Dr Freeman’s Submissions
Dr Freeman’s written submissions are as follows:
(a)there is a statutory power for all courts to stay, by order, any proceedings before the court, either permanently or until a specified day, temporarily, where a trial would create such oppressive fairness incapable of being overcome, that it would amount to an abuse of process: Jago v The District Court of New South Wales and Ors [1989] HCA 46; (1989) 168 CLR 23; (1989) 41 A Crim R 307; (1989) 63 ALJR 640;
(b)in Debenho Pte Ltd & Anor v Envy Global Trading Pte Ltd & Anor [2022] SGHC 7 (“Debenho”) at [33] per Ang Cheng Hock J, the Singapore High Court observed that it was “once a rule of the common law that the court would stay a civil action when criminal prosecutions arising out of the same events or subject matter were also pending”, citing Smith v Selwyn [1914] 3 KB 98 at 106 per Kennedy, Swinfen Eady and Phillimore LJJ and Wells v Abrahams (1872) LR 7 QB 554 at 557 per Blackburn J;
(c)the modern approach addresses the matter as a question of judicial discretion: Panton and Others v Financial Institutions Services Ltd (Jamaica) [2003] UKPC 86 at [6] – [7] per Sir Kenneth Keith. The overall objective is to exercise discretion “with great care” and only where there is “a real risk of serious prejudice”: R v Panel on Takeovers and Mergers, ex parte Fayed [1992] BCC 524;
(d)the right to silence protects an individual from being required to testify against oneself, whether or not the testimony is incriminating. Section 17(2) of the Evidence Act 1995 (Cth) provides that a “defendant is not competent to give evidence as a witness for the prosecution”, however, a defendant may choose to give evidence in their own defence;
(e)in Turnbull v Office of Environment and Heritage [2021] NSWCCA 190; (2021) 290 A Crim R 458, the New South Wales Court of Criminal Appeal determined that, although compulsion in the strict sense, that is, under the threat of sanction, is not an essential element of the accusatorial principle, it could not be used to exclude in criminal proceedings statements which were voluntarily provided in an earlier concluded civil proceeding;
(f)it is well accepted that Dr Freeman would not be compelled to give evidence in the civil proceeding, however, the above case law highlights that any information that is voluntarily provided in an earlier concluded civil proceeding cannot be excluded in a criminal proceeding;
(g)in civil matters where multiple actions arise from the set of facts, it is always desirable to stay or to consolidate the actions where possible, as in Kirby v Centro Properties Limited [2008] FCA 1505; (2008) 253 ALR 65, where the Federal Court at [10] per Finkelstein J observed:
In ordinary civil litigation, there are several ways in which a court deals with multiple actions raising the same or similar issues. The court can single out one of several actions for trial and stay proceedings in the others until that one has been tried.
(h)in the exercise of the inherent jurisdiction of the Victorian Supreme Court, civil penalty proceedings against five former directors were stayed on the basis that the criminal proceedings were substantially the same conduct as the civil penalty proceedings: see Re AWB Limited [2008] VSC 473; (2008) 21 VR 252; (2008) 222 FLR 240; (2008) 252 ALR 566 at [25] per Robson J where it was said that:
… I assume that the applicable principles on granting a stay are those set out in McMahon v Gould… [a]pplying those principles, I find that the interests of justice are best served if the proceedings are stayed…
(i)in Australian Securities Investments Commission v HLP Financial Planning (Aust) Pty Ltd [2007] FCA 1868; (2007) 164 FCR 487; (2007) 245 ALR 29, the Federal Court of Australia stayed a civil proceeding for an injunction to restrain conduct that also constituted a criminal offence under the Corporations Act 2001 (Cth);
(j)in quasi-criminal matters like fraud, where civil and criminal proceedings may be commenced, the civil proceeding is typically the subject of an application for a blanket stay pending the conclusion of the concurrent criminal proceedings. When determining an application for a stay, sufficient weight is usually given to the risk of prejudice in the conduct of an accused’s defence at a criminal trial;
(k)in weighing up the risk of prejudice, the decision in National Australia Bank Ltd v Human Group Pty Ltd [2019] NSWSC 1404 (“Human Group”) clearly demonstrates that courts are also prepared to craft orders guarding plaintiffs against the risk of prejudice of a temporary blanket stay of civil proceedings: see Human Group at [95]– [96] per Henry J:
To ameliorate the risk of prejudice to NAB from not having these proceedings progress in the usual way, the defendants accept that orders might be made requiring them to prepare, but not file and serve, their CLR and affidavit evidence. I will make such an order as it should ensure that these proceedings are in a position to be advanced in a timely fashion when the Criminal Proceedings are finalised. I also see no reason why the proceedings should not be brought back for further directions to give NAB the opportunity, if needed, to issue further subpoenas to assist it in ascertaining the magnitude of the alleged fraudulent scheme and the location of the funds.
(l)Dr Freeman is willing to accept orders such as those made in Human Group to ensure that these proceedings are in a position to be advanced in a timely fashion when the criminal proceedings are finalised;
(m)in Debenho the applicant, facing concurrent civil and criminal proceedings arising out of the same facts, applied for a stay of the civil proceedings pending resolution of the criminal proceedings, and had to convince the Singapore High Court that:
(i)there was a “real danger” of prejudice to the applicant if the civil proceedings were not stayed; and
(ii)that the balance of justice lay in favour of staying the civil proceedings as opposed to the civil proceedings continuing;
(n)in Debenho at [36] per Ang Cheng Hock J the Singapore High Court referred to Jefferson Ltd v Bhetcha [1979] 1 WLR 898 and McMahon v Gould (1982) 7 ACLR 202 (“McMahon”) as follows:
In Jefferson Ltd, Megaw LJ considered the following factors as relevant in determining whether there was such “real danger” of injustice to the defendant: (a) the possibility that the civil action might obtain such publicity as to influence jurors and deprive the defendant of a fair trial; (b) the proximity in time of the trial of the criminal proceedings to the trial of the civil action; (c) where the disclosure of the defence in the civil action by an accused enables the fabrication of evidence by Prosecution witnesses or interference with Defence witnesses, resulting in a miscarriage of justice in the criminal proceedings (at 905). In McMahon, Wootten J added to this list the following factors that the court should consider: (a) the burden on the defendant of preparing for both sets of proceedings concurrently; (b) whether the defendant has already disclosed his defence to the allegations; (c) the conduct of the defendant, such as his own prior invocation of the civil process when it had suited him (at 206).
(o)in Debenho at [37] and [41]-[43] per Ang Cheng Hock J, with respect to the privilege against self-incrimination, it was said that:
37.If a civil action is not stayed, the defendant may eventually have to give evidence on matters relating to the concurrent criminal proceedings, in respect of which he may have enjoyed the right of silence and the privilege against self-incrimination. It is therefore important to consider if the continuance of a civil action will undermine these protections and constitute a real danger of injustice to the defendant in the criminal proceedings, and thus justify a stay of the civil action.
41.As a matter of principle therefore, a defendant in a civil action should not be able to invoke the right of silence in connection with any interrogatories served or questions asked of him in the civil proceedings, save where they may encroach upon his privilege against self-incrimination (see [43] below)
42. …the practical consequence of the above means that, if a defendant chooses to defend himself in the concurrent civil action, he may be required to speak about matters touching upon the subject matter of the criminal proceedings.
43. The privilege against self-incrimination concerns not merely the right of a person to stay silent, but more specifically, to withhold evidence that may potentially be used against him in a criminal prosecution (see also Cross and Tapper ([39] above) at 417).
(p)in the High Court of Australia in Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46; (2015) 243 A Crim R 270; (2015) 89 ALJR 331; (2015) 316 ALR 378 (“Zhao”) at [42] and [47] per French CJ, Hayne, Kiefel, Bell and Keane JJ it was said that:
42. The risk of prejudice to the second respondent if a stay is not granted in the forfeiture proceedings and the exclusion proceedings is plain. It is not necessary for the second respondent to say any more than he did on the application for a stay in order to identify that risk, given that the offences and the circumstances relevant to both proceedings are substantially identical …
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.
(q)stay orders can be made unconditionally or on conditions imposed by a court, and alternatively as established in Akcine’ Bendrove’ Bankas Snoras (in bankruptcy) v Antonov and another [2013] EWHC 131 (Comm), where a court is reluctant to order an adjournment of proceedings then alternative safeguards may be imposed to mitigate any risk of prejudice, some measures may include:
(i)orders restricting reporting of proceedings;
(ii)orders restricting access to documents;
(iii)orders that the civil court will sit in private; and
(iv)orders embargoing the civil judgment until the conclusion of the criminal proceedings.
In oral submissions Dr Freeman submitted that the Stay Application should be determined on the particular facts of the case and relied on State of Queensland v Shaw [2003] QSC 436 (“Shaw”) at [25] per Mackenzie J where it was observed that:
The case is one where there is a well defined and real advantage available to a person in criminal proceedings in respect of revealing evidence in advance. Depriving a defendant of such an advantage by requiring him to undergo prior proceedings where the State may, in effect, test-run the same case it proposes to lead in the prosecution proceeding and if necessary improve it if it can prior to that time is in my view sufficiently of the character of a demonstrated reason why the interests of justice would not be served by the forfeiture proceedings being heard in advance of the criminal proceedings.
Ms Daramola’s Submissions
In relation to the criminal proceedings and their relationship with the civil proceedings Ms Daramola submitted that:
(a)by the Prosecution Notice dated 20 April 2022, Dr Freeman is charged with seven unlawful and indecent assault charges and one deprivation of liberty charge: Affidavit of Dr Freeman’s July 2022 Affidavit p 2 and “ASF-31”;
(b)Ms Daramola’s claims that relate to the criminal charges are:
(i)claim one: Amended Statement of Claim (“ASOC”) at [4]-[14] that corresponds with criminal charges one and two;
(ii)claim three: ASOC [19]-[22] that corresponds with criminal charge six; and
(iii)claim four: ASOC [23]-[26] that appears to correspond with criminal charges seven and eight, although there are differing facts about the date and/or period of these acts;
(c)Ms Daramola’s claims for which there is no corresponding criminal charges are:
(i)claim two: ASOC [15]-[15];
(ii)claim five: ASOC [27]-[33];
(iii)claim six: ASOC [34]-[39];
(iv)claim seven: ASOC [40]-[42];
(v)claim eight: ASOC [43]-[46]; and
(vi)claim nine: ASOC [47]; and
(d)conversely, criminal charges three, four and five are not the subject of Ms Daramola’s claims in the ASOC.
In relation to the legal principles applicable to considering the Stay Application Ms Daramola submits that:
(a)the principles are well known, have been regularly applied and are not contentious. The guidelines relevant to the exercise of the discretion to stay proceedings are contained in McMahon at 206-207 per Wootten J and are as follows:
(i)an applicant is generally entitled to have their action tried in the ordinary course of the procedure and business of the court;
(ii)it is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;
(iii)the burden is on a defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with;
(iv)neither an accused nor the Crown is entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;
(v)the court’s task is one of “the balancing of justice between the parties” taking into account all relevant factors;
(vi)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;
(vii)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;
(viii)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 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;
(ix)the court should consider whether there is a real and not merely a notional danger of injustice in the criminal proceedings;
(x)in this respect factors which may be relevant include:
(A)the possibility of publicity that might reach and influence jurors in the criminal proceedings;
(B)the proximity of the criminal hearing;
(C)the possibility of a miscarriage of justice, for example, by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;
(D)the burden on the defendant of preparing for both sets of proceedings concurrently;
(E)whether the defendant has already disclosed his defence to the allegations;
(F)the conduct of the defendant including his own prior invocation of civil process when it suited him;
(G)the effect on the plaintiff must also be considered and weighed against the effect on the defendant in which regard it may be relevant to consider the nature of the defendant’s obligation to the plaintiff; and
(H)in an appropriate case the proceedings may be allowed to proceed to a certain stage, for example, setting down for trial, and then staying them.
(b)the above guidelines are comprehensive, but not necessarily exhaustive: State of Western Australia v Bond Corporation Holdings Pty Ltd and Others [No 2] (1992) 37 FCR 150; (1992) 114 ALR 275; (1992) 8 ACSR 352 (“Bond Corporation”), FCR at 171-172 per French J;
(c)a court will ordinarily allow proceedings in which its jurisdiction has been properly invoked to progress to trial and determination unless the legitimate interests of the parties and the administration of justice require otherwise. The judgment to be made is essentially normative and requires a balancing of factors of the kind referred to in McMahon: Bond Corporation, FCR at 171-172 per French J;
(d)where the prosecution of civil proceedings has the potential to compromise a party’s right to silence and freedom from self-incrimination in criminal proceedings, proceedings can be stayed to solve that problem where that is the only consideration, however that does not follow where other considerations are at play, such as another party’s interest in resolving the proceedings as soon as possible: Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd (No 6) [2010] FCA 1460; (2010) 191 FCR 145; FCA at [13] per Stone J;
(e)a court’s task in determining an application for a stay in proceedings is “the balancing of justice between the parties” taking account of all the relevant factors: Andrew Koh Nominees Pty Ltd As Trustee for KL Unit Trust v Pacific Corporation Ltd [No 3] [2010] WASC 248 at [56] per Allanson J;
(f)a court, whilst it has a discretion to grant a stay of civil proceedings when criminal proceedings involving the same subject matter are on foot, should not lightly exercise that discretion in this context, and each case should be determined on its merits. The overriding principle is balancing the interest of justice between the parties: Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 (“Websyte”) at [109] per Dodds-Streeton J; and
(g)the grounds relied upon by Dr Freeman in support of the Stay Application lack particulars and are advanced upon the barest of information. Dr Freeman bears the onus to establish that it is in the interest of justice to stay these proceedings which Ms Daramola is prima facie entitled to bring and maintain: Websyte at [111] per Dodds-Streeton J.
In relation to the status of the criminal and civil proceedings Ms Daramola submitted that:
(a)the Prosecution Notice is dated 20 April 2022, some four months prior to the scheduled hearing of this Stay Application;
(b)Dr Freeman provides no information about the status of the criminal proceedings at present;
(c)it is not possible to determine from Dr Freeman’s evidence when the criminal proceedings will be advanced, the ambit of the material involved in the criminal proceedings, the likelihood of a criminal trial, when a criminal trial may commence and the anticipated duration and finalisation of a criminal trial;
(d)no accurate assessment can be made of the state of readiness of the criminal proceedings or the “burden” of preparing for those proceedings, including as to whether, and if so, when, Dr Freeman would need to prepare for the criminal proceedings and “incur substantial legal fees”; and
(e)in contrast, these civil proceedings have been on foot for two and a half years, with both parties having pleaded their case and exchanged affidavit evidence in support of their respective cases.
In relation specifically to Grounds A and B Ms Daramola submitted that:
(a)any overlap between the factual and legal issues to be determined in the criminal and civil proceedings are limited to three claims the subject of criminal charges;
(b)the majority of Ms Daramola’s claims are not the subject of criminal charges;
(c)Dr Freeman has already pleaded to all of Ms Daramola’s claims and provided affidavit evidence in relation to his defence of those claims;
(d)Ms Daramola has likewise pleaded her case and provided affidavit evidence in support of those claims;
(e)Ms Daramola’s case is well established, supported by affidavit evidence provided under oath and as such has an impact and direct bearing on whether she could “frame her case in support of the criminal matter”: Dr Freeman’s July 2022 Affidavit at p 2 at [5b];
(f)as to Dr Freeman’s “right to silence” in criminal proceedings, Dr Freeman does not have, as a matter of right, the same protection in contemporaneous civil proceedings;
(g)there is no automatic entitlement to a stay of civil proceedings due to the existence, or even the threat, of a parallel criminal proceeding concerned with the same subject matter: Rural Export and Trading (WA) Pty Ltd v Hahnheuser [2004] FCA 1053; (2004) 148 A Crim R 179; FCA at [5] to [6] per Gray J (who refused to stay civil proceedings against a respondent the subject of criminal proceedings for an offence connected with the same subject matter); Websyte at [113] per Dodds-Streeton J; and
(h)it is not evident that there is a real and not merely a notional danger of injustice in the criminal proceedings.
In relation specifically to Ground C Ms Daramola submitted that:
(a)Dr Freeman provides no evidence about the status of the criminal proceedings;
(b)it is not possible to determine:
(i)any concurrency between these civil proceedings and the criminal proceedings;
(ii)the “burden” of preparing for these civil proceedings and the criminal proceedings;
(iii)the significant financial hardship Dr Freeman alleges; and
(iv)how any limitation on Dr Freeman’s ability to properly defend himself arises; and
(c)it is not possible, absent evidence, to assess what difference the grant of a stay would make.
In relation to case management principles Ms Daramola submitted that:
(a)case management principles favour the just resolution of disputes as quickly, inexpensively and efficiently as possible with the objective, under s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCAFCOA Act”), of the:
(i)efficient use of the judicial and administrative resources available for the purposes of the Court;
(ii)efficient disposal of the Court’s overall caseload;
(iii)disposal of all proceedings in a timely manner; and
(iv)resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute; and
(b)to assist the Court in meeting case management objectives, parties, under r 1.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), must:
(i)avoid undue delay, expense and technicality; and
(ii)consider options for primary dispute resolution as early as possible.
Consideration
The relevant principles to be applied to the Stay Application are those derived from McMahon: see also Cameron’s Unit Services Pty Ltd v Kevin R Whelpton Associates (Australia) Pty Ltd and Another (1984) 4 FCR 428; (1984) 59 ALR 754; [1985] ATPR 40-531, FCR at 431-433 per Wilcox J; Bond Corporation, FCR at 171-172 per French J, with the caveat that it is necessary to accord sufficient primacy to the right of the accused, here Dr Freeman, to a “manifestly fair criminal trial”: JB Asset Management & Anor v LBA Capital Pty Ltd & Ors [2020] VSC 629 at [23] per McDonald J.
Grounds A and B
It is convenient to consider Grounds A and B together.
The substantive proceedings in this matter are well advanced. The originating application was filed on 31 January 2020, and the ASOC was filed on 23 April 2020. A Defence was filed on 20 May 2020. Ms Daramola filed an affidavit in support of the originating application on 6 July 2021 and affidavits in reply (including one from Dr Freeman’s daughter-in-law) on 2 March 2022. Dr Freeman filed three affidavits in support of the Defence between 29 October and 9 December 2021. The matter has been the subject of no less than four mediation events before a Registrar of the Court between 23 April 2020 and 14 June 2022 in an endeavour to achieve a resolution of the parties’ dispute. In the ordinary course of events, that is absent the Stay Application, the Court would have been looking to list the matter for final hearing following the last mediation event on 14 June 2022. As the matter presently stands it is unlikely that the matter would now be listed before late November 2023 at the earliest, and more likely the first half of 2024.
Case management considerations are important, although not ultimately determinative: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14, in a high volume first instance hearing court such as this Court, and s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that the efficient and timely disposal of matters in this Court are part of its objects. In this respect the fact that the matter had been on foot for approximately two and a half years at the time the Stay Application was made, and would ordinarily have now been listed for final hearing, but has been and will be further delayed by the Stay Application is a case management factor which weighs against the grant of the Stay Application. The Stay Application is further not assisted by the fact that any stay would be for an indeterminate length of time given that there is nothing in the evidence before the Court to indicate when any criminal proceedings are likely to be the subject of a trial. There is no evidentiary basis for making a finding as to what degree of concurrency, or likely concurrency, there may be between the hearing of the criminal proceedings and these civil proceedings.
The eight criminal charges are set out in Annexure ASF31 to Dr Freeman’s July 2022 Affidavit.
There are seven charges under s 323 of the Criminal Code Act Compilation Act 1913 (WA) (“Criminal Code”) alleging unlawful and indecent assault of Ms Daramola by Dr Freeman:
(a)on 23 January 2017 – twice (“Charge 1” and “Charge 2” respectively);
(b)on 24 March 2017 (“Charge 3”);
(c)on 23 May 2017 (“Charge 4”);
(d)on 10 July 2017 (“Charge 5”);
(e)on 11 July 2017 (“Charge 6”); and
(f)in the period from 7 to 28 July 2017 (“Charge 7”).
The eighth charge is that, contrary to s 333 of the Criminal Code, Dr Freeman allegedly unlawfully detained Ms Daramola in the period from 7 to 28 July 2017 (“Charge 8”).
Ms Daramola’s affidavit sworn 6 July 2021 (“Ms Daramola’s July 2021 Affidavit”) runs to 47 pages (plus annexures) and 490 paragraphs, and in it she details several allegations of sexual harassment in relation to her employment by Dr Freeman, but in particular:
(a)at [133]-[143] describes alleged events of 23 January 2017 at her home, and which appear to be the subject of Charges 1 and 2;
(b)at [212]-[216] describes alleged events of 24 March 2017 at the dining table in the kitchen area of the Centre, and which appear to be the subject of Charge 3;
(c)at [236] describes alleged events of 23 May 2017 at the Centre, and which appear to be the subject of Charge 4;
(d)at [265]-[266] describes alleged events of 10 July 2017 in Ms Daramola’s car, and which appear to be the subject of Charge 5;
(e)at [278]-[280] describes alleged events of 11 July 2017 in the kitchen of the Centre, and which appear to be the subject of Charge 6; and
(f)at [303]-[330] describes alleged events in late July or August of 2017 in the practice manager’s office at the Centre, and which appear to be the subject of Charges 7 and 8.
In relation to the affidavits filed by Dr Freeman in these proceedings it is unnecessary to set them out in detail. It suffices to observe that Dr Freeman’s Affidavit sworn 29 October 2021 runs to some 17 pages (plus 11 annexures) and 95 paragraphs and deals seriatim with the allegations contained in Ms Daramola’s Affidavit, including:
(a)at [40]-[43] with respect to the alleged events of 23 January 2017 at Ms Daramola’s home, and which appear to be the subject of Charges 1 and 2;
(b)at [61] with respect to the alleged events of 24 March 2017 at the dining table in the kitchen area of the Centre, and which appear to be the subject of Charge 3;
(c)at [63] with respect to the alleged events of 23 May 2017 at the Centre, and which appear to be the subject of Charge 4;
(d)at [67] with respect to the alleged events of 10 July 2017 in Ms Daramola’s car, and which appear to be the subject of Charge 5;
(e)at [70] with respect to the alleged events of 11 July 2017 in the kitchen of the Centre, and which are the subject of Charge 6; and
(f)at [72] with respect to the alleged events in late July or August of 2017 in the practice manager’s office at the Centre, and which appear to be the subject of Charges 7 and 8.
In each case Dr Freeman denies that the alleged events occurred, and provides his version of the events.
It is pertinent to observe that although the respective affidavits deal with the matters which appear to relate to Charges 3, 4 and 5, those matters are not the subject of any pleading in the ASOC.
In the Defence Dr Freeman denies each of the matters pleaded in the ASOC which appear to relate to Charges 1, 2, 6, 7 and 8.
Grounds A and B contend that a continuation of these civil proceedings would be unfair because any disclosure, defence or statement made in these civil proceedings could be used, unfairly and to Dr Freeman’s prejudice, in the criminal proceedings, and that Ms Daramola would have the “distinct advantage” of having her allegations tested in these civil proceedings and could accordingly frame, or perhaps reframe, “her case” in the criminal proceedings.
There are difficulties with the contentions in Grounds A and B.
First, in so far as disclosure is concerned the horse has already bolted. This is a case which is fully pleaded and in respect of which the affidavit evidence in support of each case has been filed. There was some suggestion in Ms Daramola’s submissions that the next step in the proceedings was a further interlocutory step, namely discovery. It is worth observing that discovery is the exception not the rule in this Court: s 176(2) of the FCAFCOA Act; Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 at [33] per Rangiah J; Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; (2007) 210 FLR 314 at [25] per Lucev FM, but if an application for discovery were made it would have the effect of further delaying any prospective hearing of these civil proceedings. Otherwise, as indicated at [16] above, in the ordinary course of a case of this type in this Court, the Court would now be looking at listing the matter for final hearing. Having regard to the state of the pleadings, the fact that the pleadings were complete in 2021 and that the evidence in reply was filed in March 2022, all prior to the signing of the Prosecution Notice on 20 April 2022, it appears there would be little to be achieved, in terms of preventing the disclosure of information to the prosecution in the criminal proceedings, by now staying these civil proceedings. In that regard it is worth observing that more than three months elapsed from the time of the signing of the Prosecution Notice to the making of the Stay Application, a period not indicative of any urgency or likely imminent prejudice arising from there being concurrent criminal and civil proceedings in relation to these matters. Further, given that, from the Court’s reading of the Statement of Material Facts at Annexure ASF31 to Dr Freeman’s July 2022 Affidavit, it can be accepted that the “contentious” facts therein are “substantially identical”: Dr Freeman’s July 2022 Affidavit at [4], it may be that no useful purpose is served by staying the civil proceedings or imposing restrictions on access to or use of the pleadings or evidence in these civil proceedings. Simply put, Dr Freeman’s defence to the criminal proceedings is already evident from the pleadings and his evidence in the civil proceedings.
Second, the underlying assumption in Grounds A and B is that the civil proceedings will be heard before the criminal proceedings. Given that, in all likelihood the civil proceedings will not be heard until very late 2023, and more likely early 2024, or later if discovery is pursued and opposed, and there is no evidence as to when any trial in the criminal proceedings may occur, this assumption is not one that has been made out.
Third, the suggestion that the prosecution case might be reframed to meet matters arising out of the civil proceedings is something that may not arise given the matters referred to in the preceding paragraph. The Court also observes that the prosecution is not Ms Daramola’s case, but the prosecution’s (that is the State of Western Australia’s) case. Cases, such as Zhao and Shaw, where there were concurrent civil forfeiture and criminal proceedings where both the civil and criminal proceedings involved a Commonwealth police agency and a State respectively as applicants are distinguishable for that reason. In circumstances where Ms Daramola has committed to a version of events in respect of each of the charges under oath on affidavit in the civil proceedings, it is difficult to see how the prosecution case might be reframed. Given that the facts alleged in both the civil and criminal proceeding are substantially identical, and any reframing would be obvious, any such reframing would potentially adversely significantly impact upon Ms Daramola’s credibility in the criminal proceedings. In the circumstances it might be to Dr Freeman’s advantage if use of the affidavits filed in the civil proceedings, or the transcript of the evidence in the civil proceedings, if they are heard before the criminal proceedings, was not restricted.
The Court is not persuaded that any possible publicity arising out of these civil proceedings would be likely to influence a jury properly instructed, or a judicial officer sitting alone, and in any event any substantial publicity is only likely once a hearing of the civil proceedings is underway, which may or may not be until after the criminal proceedings are completed: see [29] above.
The Court also has regard to the fact that Ms Daramola is entitled to have her civil proceedings heard and determined in this Court.
Ultimately the Court is not persuaded that Dr Freeman has established Grounds A and B, or any other level of prejudice which would warrant granting the Stay Application on the basis of a real likelihood of prejudice or injustice giving rise to a manifestly unfair criminal trial on bases other than those referred to in Ground C, which is considered separately below.
Ground C
In relation to Ground C there is no evidence from Dr Freeman as to:
(a)what costs have already been incurred, or are likely to be incurred in the future, by him in defending the civil and criminal proceedings; or
(b)his financial position generally, his assets, or his income (either gross, or net of tax).
These are glaring evidentiary omissions which mean that Dr Freeman is simply not in a position to establish that he would “incur substantial legal fees”, that the legal fees to be incurred would result in “significant financial hardship” or that they would “limit [his] ability to properly defend [himself]”. In the absence of evidence the Court is simply not in a position to determine whether any legal fees are substantial, either of themselves or in the context of Dr Freeman’s financial position, or whether it would result in significant financial hardship such as would imperil Dr Freeman’s capacity to properly defend himself. And, whilst generally speaking concurrent proceedings might be expected to impose some additional costs burden upon a party, much will depend upon the particulars of the matter, and where, as here, there is a substantially identical set of facts relevant to both proceedings, any costs burden may in fact be somewhat lessened rather than increased.
In the circumstances, Ground C is not made out and does not establish a real or substantial risk of prejudice or injustice such as to warrant granting the Stay Application.
Conclusion and Orders
In conclusion, the Court:
(a)does not consider that any of Grounds A, B or C have been made out by Dr Freeman; and
(b)is not persuaded that there is a risk of prejudice, or at least a substantial risk of prejudice, such as to give rise to manifestly unfair criminal proceedings if these civil proceedings are not stayed.
It follows from the Court’s conclusion above that there will be an order dismissing the Stay Application. It also follows that it is unnecessary to consider any orders imposing restrictions on access to materials or reporting of the matter, or as to the conduct of the hearing in the civil proceedings (whenever it occurs). It should also be noted that if circumstances change or genuinely new facts emerge, these Reasons for Judgment would not necessarily preclude a further stay application being made by Dr Freeman.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 21 August 2022
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