Daramola v Freeman (No 2)
[2022] FedCFamC2G 1079
Federal Circuit and Family Court of Australia
(DIVISION 2)
Daramola v Freeman (No 2) [2022] FedCFamC2G 1079
File number(s): PEG 32 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 21 December 2022 Catchwords: PRACTICE AND PROCEDURE – Application for stay – criminal trial for respondent pending – claim of prejudice if application is not stayed – issue of affidavit to be filed – affidavit filed late – criminal trial to predate substantive hearing – further directions hearing to come – interlocutory matters to be addressed - costs Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Sex Discrimination Act 1984 (Cth) s 28B
Cases cited: Daramola v Freeman [2022] FedCFamC2G 1064 Division: Division 2 General Federal Law Number of paragraphs: 11 Date of last submission/s: 21 December 2022 Date of hearing: 21 December 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 affidavit of Deivamanee Naidu affirmed 19 December 2022 be treated as having been filed in Court today.
2.The matter be adjourned to a Directions hearing at 10:30am on 24 February 2023.
3.There be no order as to costs in relation to the argument on the filing and effect of the affidavit.
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
(Delivered ex tempore and revised from the transcript)JUDGE LUCEV
The Court has this morning delivered judgment in this matter in Daramola v Freeman [2022] FedCFamC2G 1064 (“Daramola (No 1)”), which concerned an application by the Respondent (“Dr Freeman”) for a stay of these proceedings (“Stay Application”), pending the outcome of criminal proceedings in relation to matters which on the facts are substantially identical to the matters complained of in these civil proceedings, namely, alleged sexual harassment contrary to s 28B of the Sex Discrimination Act 1984 (Cth), these proceedings being brought under s 46PO of the Australian Human Rights Commission Act 1986 (Cth). In Daramola (No 1), the Court refused the Stay Application for the reasons set out therein.
This judgment concerns an affidavit affirmed on 19 December 2022 by Dr Freeman’s lawyer, Ms Deivamanee Naidu (“Naidu Affidavit”), which is sought to be filed in these proceedings. The Naidu Affidavit sought to be filed on 19 December 2022, three weeks after the parties were advised on 29 November 2022 that the matter was to be listed for judgment on the Interlocutory Application on 21 December 2022, and also after the Reasons for Judgment in relation to the Stay Application had been effectively finalised, subject to any editing.
The Court also notes that it would appear that the Naidu Affidavit was filed approximately three weeks after the prosecution notice appended to the Naidu Affidavit was finalised, that prosecution notice being one relating to the dismissal for want of prosecution of what is described as Charge 8 in Daramola (No 1).
The Naidu Affidavit attests to the following relevant facts: firstly, the dismissal for want of prosecution, although it is described as a discontinuance in the Naidu Affidavit; and secondly, in relation to what are described as Charges 1 to 7 in Daramola(No 1), being the charges of indecent and unlawful assault, that these are listed for hearing in the Magistrates Court of Western Australia at Fremantle on 21 and 23 May 2023, although Ms Naidu advised in hearing this morning that one of those dates is incorrect and the matter is in fact listed for a criminal trial on 22 and 23 May 2023.
Those matters, or at least the second of them particularly, are obviously relevant to matters dealt with in Daramola (No 1), and for that reason there will be an order that the Naidu Affidavit be taken to have been filed in Court today. The question which arises is whether any of the factual content of the Naidu Affidavit ought to cause the Court to vary the orders made in Daramola (No 1), in particular the order dismissing the Stay Application.
The critical fact that emerges from the Naidu Affidavit is that the criminal trial on Charges 1 to 7 will be heard on 22 and 23 May 2023. This means that the primary plank of the Stay Application, as it was argued last August, falls away because the criminal trial will be heard at least six months prior to the earliest possible hearing dates for these civil proceedings in this Court before it is presently constituted. In that regard, the Court refers to Daramola (No 1) at [29] per Judge Lucev, which indicates that the earliest possible date for a hearing of this matter in this Court is late November 2023, and more likely 2024.
The fact that the hearing of the criminal proceedings will be in May 2023 therefore means that there can be little or no real risk of prejudice or injustice to Dr Freeman in terms of his receiving a fair criminal trial because of any matters arising from the civil proceedings. In particular, there is less likelihood of publicity giving rise to an unfair criminal trial, but in any event, that possibility is almost totally negated by the fact that the hearing will be before a judicial officer, namely, a magistrate of the Magistrates Court of Western Australia.
The Court notes that this morning Ms Naidu appeared to argue the reverse of what was argued on the Stay Application originally, arguing now that there will be prejudice to Dr Freeman which ought to result in a stay of the civil proceedings by reason of the criminal proceedings being heard first. Putting the matter in that way against the authorities cited in Daramola (No 1) reveals that this is a submission which is simply wrong and has no prospect of success at all.
Finally, the Court observes that the criminal trial listed for May 2023 effectively negates or very significantly minimises any alleged burden arising from the prospect of Dr Freeman having to prepare for concurrent or relatively proximate hearings of the criminal and civil proceedings. The Court notes however, that no evidence was led as to this alleged burden in the hearing of August 2022, certainly in the financial sense, and from the point of view of the proximity of hearings, there can be no burden arising now given that it is likely that the civil proceedings will post-date the criminal proceedings by at least 6 months and possibly up to 12 months.
In all of the above circumstances, the Court is not persuaded to vary the orders made earlier today in Daramola (No 1).
With respect to the costs of this morning, the Court takes the view that there ought be no order. Effectively, the costs are no greater than they would have been arising from the matter argued earlier today and in respect of which judgment has been delivered, there being provision in the costs order already made for a short attendance today in any event, and so the costs made earlier today cover this further aspect of the matter.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Lucev. Associate:
Dated: 6 January 2023
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