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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daramola v Freeman (No 2)

Details

AGLC: Daramola v Freeman (No 2) [2022] FedCFamC2G 1079
Case: [2022] FedCFamC2G 1079
Decision Date

CaseChat Overview and Summary

In the matter of Daramola v Freeman (No 2), the Federal Circuit and Family Court of Australia, Division 2, dealt with an application for a stay of proceedings in civil litigation pending the outcome of criminal proceedings. The applicant, Folukemi Daramola, had brought claims against the respondent, Akinyemi Sola Freeman, alleging sexual harassment under the Sex Discrimination Act 1984 (Cth). Freeman had previously sought to stay the civil proceedings pending the outcome of related criminal charges, an application which was dismissed. This subsequent hearing focused on an affidavit filed by Freeman's legal representative, Deivamanee Naidu, after the original judgment was handed down.

The primary legal issue before the Court was whether the late filing of the Naidu Affidavit, which contained information about the scheduling of Freeman's criminal trial and the dismissal of some charges, should lead to a reconsideration of the earlier decision to deny Freeman's application for a stay. The Court had to determine if the information in the affidavit constituted a significant change in circumstances that warranted a re-evaluation of the potential for prejudice to Freeman if the civil proceedings were to continue.

Judge Lucev determined that the late filing of the affidavit did not alter the Court's earlier decision. The Court reasoned that since Freeman's criminal trial was scheduled for May 2023, well before the earliest possible hearing dates for the civil proceedings, the risk of prejudice to Freeman's right to a fair trial was minimal. The Court further noted that the criminal proceedings would be conducted by a magistrate, reducing the likelihood of prejudicial publicity. Additionally, the Court rejected the argument that Freeman would be prejudiced by having to prepare for concurrent hearings, given that the civil proceedings were likely to post-date the criminal trial by at least six months. Consequently, the Court refused to vary its earlier orders and made no order as to costs for the additional arguments presented.

Orders