Guglielmin v Trescowthick (No 3)

Case [2005] FCA 139

FEDERAL COURT OF AUSTRALIA

Guglielmin v Trescowthick (No.3) [2005] FCA 139

PRACTICE AND PROCEDURE – stay application – principles applicable in a stay application – whether a concurrent criminal proceeding and the privilege against self-incrimination justify staying of a civil proceeding – public knowledge

Federal Court of Australia Act 1976 (Cth)
Australian Securities and Investment Commission Act 1989 (Cth)
Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (SA)

Guglielman v Trescowthick [2004] FCA 326
Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16
McMahon v Gould (1982) 7 ACLR 202
Cameron’s Unit Services Pty Ltd v Kevin R Whelpton Associates (Australia) Pty Ltd (1984) 4 FCR 428
Western Australia v Bond Corporation Holdings Pty Ltd (No.2) (1992) 37 FCR 150
Hurley v Commissioner of Taxation (1992) 37 FCR 11
Baker v Commissioner of Federal Police (2000) 104 FCR 359
Elliot v Australian Prudential Regulation Authority [2004] FCA 586
Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26
Yuill v Spedley Securities Ltd (In liq)(1992) 8 ACSR 272
Australian Securities Commission v Kavanagh (1993) 12 ACSR 69
Reid v Howard (1995) 184 CLR 1
Reid v Howard (1993) 31 NSWLR 298
Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (1999) 163 ALR 465
Australian Competition and Consumer Commission v FFE Building Services Ltd (2003) 130 FCR 37
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Jamieson v R (1993) 177 CLR 574
Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204
McNamara, ‘Cross-examination of a party on pleadings’, (1989) 5 ABR 176
Yuill v Corporate Affairs Commission of New South Wales (1990) 20 NSWLR 386
In the Matter of Compass Airlines Pty Ltd (1992) 35 FCR 447)
Mark Silbermann v CGU Inusrance Limited (2003) 48 ASCR 231; [2003] NSWSC 1127
King v AG Australia Holdings Ltd [2002] FCA 1560
Williams v FAI Home Security Pty Ltd (No 5) [2001] FCA 399

Australian Broadcasting Commission v Parish (1980) 29 ALR 228
SRD v Australian Securities Commission (1994) 123 ALR 730
John Fairfax Group Pty Ltd v Local Courtof New South Wales (1991) 26 NSWLR 131

ELEANOR GUGLIELMIN v ADAM JOHN TRESCOWTHICK, JOHN MAURICE PATTEN, ROSS GRAHAM OAKLEY, ROBERT DAVID MATTINGLY, ROGER ANDREW CURTIS & MARK CHARLES TRESCOWTHICK

S 153 of 2002

MANSFIELD J
25 FEBRUARY 2005
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S153 OF 2002

BETWEEN:

ELEANOR GUGLIELMIN
APPLICANT

AND:

ADAM JOHN TRESCOWTHICK
FIRST RESPONDENT

JOHN MAURICE PATTEN
SECOND RESPONDENT

ROSS GRAHAM OAKLEY
THIRD RESPONDENT

ROBERT DAVID MATTINGLY
FOURTH RESPONDENT

ROGER ANDREW CURTIS
FIFTH RESPONDENT

MARK CHARLES TRESCOWTHICK
SIXTH RESPONDENT

JUDGE:

MANSFIELD J

DATE:

25 FEBRUARY 2005

PLACE:

ADELAIDE

REASONS FOR DECISION

INTRODUCTION

  1. By notice of motion of 27 May 2004, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (the Act), the first respondent seeks an order that this proceeding be stayed until further order. The motion also sought suppression of the name of the…

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AGLC
Guglielmin v Trescowthick (No 3) [2005] FCA 139
Case
[2005] FCA 139
Decision Date

CaseChat Overview and Summary

The case of Guglielmin v Trescowthick (No 3) involved a stay application in the Federal Court of Australia. The applicant sought to stay the civil proceeding against the first respondent due to the existence of concurrent criminal proceedings and concerns about the privilege against self-incrimination. The first respondent, who was also facing criminal charges, argued that proceeding with the civil case would prejudice him by potentially compelling him to incriminate himself. The court had to decide whether the factors presented by the first respondent warranted a stay of the civil proceedings.

The legal issues at the heart of the case were whether the overlap between the allegations in the civil and criminal proceedings, the potential need for the first respondent to disclose his defence, and the risk of self-incrimination justified a stay of the civil proceeding. The court needed to balance the first respondent's rights under the privilege against self-incrimination against the applicant's right to have her claim proceed in the ordinary course. The court also considered the principle that criminal proceedings generally have precedence in the justice system.

The court ultimately decided not to grant the stay sought by the first respondent. It found that the proceeding was at too early a stage for a stay to be justified and that the first respondent's privilege against self-incrimination would not be impaired in any real way by declining to grant the stay at present. The court recognised that the particular circumstances of the first respondent could be accommodated by specific procedural orders, such as deferring the requirement for him to file a defence. The court indicated that it would order the costs of the stay application to be the applicant's costs in the cause, subject to hearing submissions from counsel. This decision reflected the court's approach to balancing the competing rights and interests in the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MANSFIELD J
For those reasons, I decline to make the order sought in par 3 of the first respondent’s notice of motion.CONCLUSION Overall, both this proceeding involving the first respondent is too premature a stage for this application to be stayed as against the first respondent. However, as indicated, in order to protect the first respondent from the possibility he will incriminate himself I will not require him to file a defence for the time being. It may become appropriate at a later stage for the first respondent to re-agitate this motion or seek orders concerning the timing of the trials. That, however, is an issue for the first respondent. I indicate that, subject to hearing submissions from counsel for the applicant and the first respondent, I am disposed to order that the costs of the first respondent’s notice of motion of 27 May 2001 should be the applicant’s costs in the cause.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

In Baker, Gyles J at 366 – 376, [32] – [35] examined McMahon v Gould and its subsequent consideration. His Honour considered that, particularly in the light of Reid v Howard, the submission that McMahon v Gould ought to be reconsidered is meritorious, particularly as to whether McMahon v Gould gives too little weight to the practical as well as legal prejudice to the accused, and to the primacy of criminal proceedings in the justice system. His Honour pointed out though that any such reconsideration would have to be undertaken by a superior court and regarded himself as being bound to follow McMahon v Gould. This approach was also adopted by Gray J in Elliot: see at [16] – [19]. For the reasons which Gyles J and Gray J have given in those two cases, I would adopt the same general approach. As it happens, for reasons which appear below, I do not think the first respondent’s privilege against self-incrimination will be impaired in any real way by declining at present to grant the stay sought. Whether recognition of the privilege against self-incrimination and giving effect to it is given primacy so as necessarily or almost necessarily to outweigh other factors including the entitlement of the applicant to have her claim proceed in the ordinary course is not a matter which arises in the present circumstances.CONSIDERATION OF THE STAY APPLICATION The first respondent accepted that the onus is on him to show that it is just and convenient that the applicant’s rights be interfered with and a stay be granted. Senior counsel for the first respondent identified a number of factors she contended were relevant for the Court to consider in exercising its discretion under s 23 of the Act. I do not consider those factors, individually or collectively, show that the applicant’s right to have her application progress in the normal way but with some modification of the normal procedures is currently outweighed by any prejudice or injustice that may be caused to the respondent in the criminal proceedings as the particular circumstances of the first respondent can be accommodated by specific procedural orders. The first two factors identified in submissions of the first respondent can conveniently be addressed together. They are identified in the submissions as: the right to silence, and disclosure of the defence. They are based upon the fact that (as I have accepted and as senior counsel for the applicant acknowledged) there is a significant factual overlap between the allegations of the applicant in this proceeding and the matters which will require to be addressed in relation to the criminal charges. In the ordinary course, this proceeding would progress by orders for the filing of defences, for discovery and inspection, and then for the exchange of witness statements or affidavits with a view to the matter then proceeding to trial. Senior counsel for the first respondent also referred to the prospect of the first respondent being obliged to answer interrogatories under O 16 of the Federal Court Rules. Interrogatories may be administered only by leave of the Court. Only rarely now is leave to administer interrogatories sought or granted. I think that prospect may be put aside, and addressed if an application is made by the applicant for leave to administer interrogatories to the first respondent; there is no suggestion at present that such an application might be made.