Meeuwissen v Meeuwissen
[2015] VSC 669
•27 November 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 00707
S CI 2014 04319
IN THE MATTER of the Administration and Probate Act1958
and
IN THE MATTER of the Estate of the late PETER RAYMOND MEEUWISSEN (deceased)
BETWEEN
| ROBERT GEORGE MEEUWISSEN | Plaintiff in proceeding 00707 |
| and | |
| JANE LOUISE MEEUWISSEN | Plaintiff in proceeding 04319 |
| v | |
| JANE LOUISE MEEUWISSEN and AUDREY FITTALL (who are sued in their capacity as the executrices of the Will of the deceased, PETER RAYMOND MEEUWISSEN) | Defendants in proceeding 00707 |
| AUDREY FITTALL (who is sued in her capacity as the executrix of the Will of the deceased, PETER RAYMOND MEEUWISSEN) | Sole Defendant in proceeding 04391 |
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JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 October 2015 |
DATE OF JUDGMENT: | 27 November 2015 |
CASE MAY BE CITED AS: | Meeuwissen v Meeuwissen |
MEDIUM NEUTRAL CITATION: | [2015] VSC 669 |
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PRACTICE AND PROCEDURE — Stay of civil proceedings pending determination of criminal proceedings — Two proceedings are brought by children of the deceased under Part IV of the Administration and Probate Act1958 — One child accusing the other of sexual assault (incest) — Criminal prosecution commenced against the alleged assailant — Risk of early cross-examination of the alleged victim in these civil proceedings giving rise to alleged prejudice — Whether Civil proceedings should be stayed pending committal proceedings — Consideration of applicable principles — Stay refused with liberty to apply.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff in Proceeding 00707 | Mr J D Catlin | Armstrong Legal |
| For the Plaintiff in Proceeding 04319 | Mr T Sowden | Aughtersons Lawyers Pty Ltd |
| For the Defendant | Mr R C Wells | Currie Law |
HIS HONOUR:
Introduction
Robert Meeuwissen (‘Robert’) commenced proceedings pursuant to Part IV of the Administration and Probate Act1958 (‘the Act’) on 13 February 2013 for further provision out of the estate of his father, Peter Raymond Meeuwissen (‘the deceased’).
Jane Louise Meeuwissen (‘Jane’) commenced proceedings under Part IV of the Act on 20 August 2014 for further provision out of the estate of the deceased. Jane is one of the executors to whom probate of the will of the deceased had been granted by this Court. She is not, of course, a defendant in her own Part IV proceeding.
In each proceeding, Jane has claimed that she was a victim of sexual assault at the hands of Robert when they were young.[1] Subsequent to making these allegations, first in her affidavit in Robert’s proceeding[2] and secondly in her affidavit in support in her own proceeding,[3] Jane complained to the Police. In consequence, criminal charges have been laid by the Victoria Police against Robert in respect of alleged acts of incest. There are four counts of incest under s 53 of the Crimes Act1958 (as it was in force in 1976). I was told by Counsel for Robert that a committal hearing has been set for the second half of February 2016.[4]
[1]Affidavit of Jane Louise Meeuwissen sworn 9 April 2014 in Proceeding 00707 of 2013 brought by Robert. Affidavit of Jane Louise Meeuwissen sworn 20 February 2015 in the proceeding brought by Jane (Proceeding 04319 of 2014).
[2]Affidavit of Jane sworn 9 April 2014 at [27] and following.
[3]Affidavit of Jane sworn 20 February 2015 at [27] and following.
[4]There is no direct evidence as to the charges. The evidence is that the charges are brought under the Crimes Act1958 as in force in 1976. I was informed that they are for incest alone. These facts are common ground.
Jane originally applied, at a directions hearing,[5] to stay the further hearing of the two Part IV proceedings until the conclusion of the criminal proceeding. Orders were then made for the filing and service by all parties of affidavits and submissions. In the course of oral submissions at the subsequent hearing counsel for Jane varied the application to a stay, in the first instance, until the conclusion of the committal hearing.[6]
[5]A TFM directions hearing on 28 July 2015.
[6]There was some confusion in the written submissions between Jane and the Executrix as to who was making the application. It was resolved at the hearing that it was Jane.
The application for a stay of the proceedings is based in part upon the alleged mental fragility of Jane, who claims to be suffering from post-traumatic stress disorder (‘PTSD’). Counsel for Jane raised the risk of her being cross-examined in the Part IV proceedings, the committal proceedings and, if Robert is committed for trial, at the trial of the criminal prosecutions, and the potential for Robert to use the Part IV proceedings as a means of testing Jane’s evidence for his defence of the criminal proceedings.
Evidence
Jane
Jane has filed an affidavit in support of the application for a stay which refers to her evidence, filed earlier, setting out the circumstances in which she alleges she was sexually assaulted by her brother Robert. It also refers to:
(a) the fact that Robert has been charged with four counts of incest under s 53 of the Crimes Act1958;
(b) that she is uncertain whether Robert intends to plead guilty or not guilty;
(c) that if he contests the committal she will be required for cross-examination possibly in February or March 2016;
(d) that she has been referred to a psychologist (by the Estate’s solicitor) and has been diagnosed with PTSD. That she has been suffering from anxiety, flashbacks and panic attacks and has seen the psychologist on at least 40 occasions since October 2014;
(e) that she has concentrated on managing her symptoms but is told by her psychologist that her long term improvement depends on being able to obtain some distance from her brother Robert and that whilst this proceeding is on foot that is not possible;
(f) that she has always lived in fear of her brother Robert and that she is concerned that he will use the civil proceeding, and particularly the prospect of cross-examining her as a means of punishing her or of obtaining concessions which would assist in his defence of the criminal charges; and
(g) she is told that it is unlikely that the criminal proceedings will be concluded before 2017.
Robert
In his affidavit opposing the application for a stay,[7] Robert gives evidence that:
[7]Affidavit of Robert George Raymond Meeuwissen sworn 15 October 2015.
(a) before the death of the deceased he and Jane had a reasonably amicable relationship and worked closely together on a number of issues. Their family conversations were mostly close and respectful with no hint of the allegations now made nor any indication of the fears presently raised by Jane;
(b) in 2012, Jane and he worked closely in relation to managing the deceased’s ongoing care prior to his death. In February 2012, they arranged to visit the deceased’s then accountant and together met with that accountant. Jane did not appear to have any issue in attending with Robert at that time;
(c) there have been two mediations, the first on 22 July 2014 and the second on 3 March 2015. At the first mediation there was no concern expressed regarding being questioned about her affidavit or being placed in close proximity to Robert. There were no prior requests seeking separate rooms during the first mediation or to adjourn the mediation because of those concerns. Robert observed Jane participating in both mediations;
(d) after Jane filed her affidavit in Robert’s proceeding, raising the allegations of sexual assault,[8] Jane and he appeared before the Victorian Civil and Administrative Tribunal (‘VCAT’) in relation to an application Robert filed regarding Jane’s appointment as the deceased’s power of attorney and regarding Jane’s management of the Family Trust. Jane put herself up to be cross-examined when Robert was present and did not show any signs of stress or anxiety as she now claims;
[8]Affidavit of 9 April 2014.
(e) Robert held discussions with both defendants from early 2012 in relation to the administration of the estate and the management of the Meeuwissen Family Trust. At no time during these discussions did Jane raise issues regarding allegations of sexual assault or her anxiety relating to those allegations until shortly prior to the service of her affidavit of 9 April 2014;
(f) Jane has taken an aggressive approach to matters regarding the deceased’s estate;
(g) he claimed that the allegations of sexual assault made by Jane are a recent fabrication to force him into settling his claim against the estate for considerably less than what he may be entitled to receive or to withdraw the claim altogether. He refers to the fact that requests have been made for the psychiatric reports alluded to by Jane but there is nothing forthcoming;
(h) he was interviewed by the Victoria Police only once before being charged and he understands that there is no corroborative evidence of the offences with which he is charged;
he refers to the fact that he is exposed to the prospects of examination and cross-examination in the civil proceedings and in the criminal proceedings; and
(j) he says he is informed by his legal advisors that the criminal allegations made by Jane against him have no relevance to the ‘moral obligation’ owed by the deceased pursuant to Part IV (a proposition that was not repeated in the outline of submissions filed on behalf of the plaintiff).
The Estate
Jane’s co-executor, Ms Fittall, filed no evidence in support of the application for a stay, but appeared to support the application.
Submissions
Jane
Counsel for Jane referred to McMahon v Gould[9] in which Justice Wootton set out principles applicable to a stay of civil proceedings where criminal proceedings were pending.[10]I refer to these principles below.
[9](1982) 7 ACLR 202 at 206-7.
[10]See more recently the analysis of these principles in Zhao & Anor v The Commissioner of the Australian Federal Police, [2014] VSCA 137.
It was submitted that in this case, there will be a real risk of injustice to Jane if the Part IV proceedings goes ahead before the committal proceeding, or the potential prosecution of Robert. Additionally, the Court is justified in denying Robert his fundamental right to a hearing of in his Part IV proceeding in the ordinary course.
The basis of this submission is:
(a) the mental fragility of Jane;
(b) the potential for Jane to be cross-examined on three occasions; and
(c) the potential for Robert to use the civil proceedings as a means of testing the evidence in the criminal proceedings.
I was taken to cases in the Family Court of Australia where a person other than the accused sought a stay of a civil proceeding to abide the outcome of a criminal prosecution. In Re K[11] the Family Court modified the approach taken in McMahon v Gould so as to take into account that the interests of the child were paramount. In the decision in Re K, the Full Court of the Family Court said that whether the Court should make interim or final orders for custody of the child, where one of the parties has criminal charges pending, depends ultimately upon the circumstances of the individual case. However, that decision is to be made solely against the criterion of the welfare of the child.[12]
[11](1994) FLC 92-461; 17 Fam LR 537; See also H-D and D [2000] FamCA 1035 (unreported 24 March 2000); Mohsen & Collings [2015] FamCA 583.
[12](1994) FLC 92-461; 17 Fam LR 537 at [26]-[31]; Mohsen & Collings [2015] FamCA 583 at [33]-[41].
In Mohsen & Collings,[13] the well-being of the mother, particularly in terms of her parenting capacity, was a matter of significant concern. In that case, it was reasonable to infer that cross-examination of the mother in relation to the factual circumstances that were the subject of the criminal charges would be significantly distressing to her. The child was already alert to the mother’s emotional vulnerability and any exacerbation of her emotional vulnerability could only adversely impact on the child who remained in her sole care.
[13][2015] FamCA 583 at [40]-[41].
Counsel for Jane sought to draw from Mohsen & Collings some support for the proposition that it was appropriate in this case to stay the civil proceedings until the determination of the criminal prosecution in the interest of protecting Jane’s mental health.
The Estate
Counsel for Ms Fittall, made the following submissions in support of a stay:
(a) a stay of the Part IV proceedings will avoid them becoming a de facto trial of the criminal prosecution and may reduce the length of the trial;
(b) the truth of the sexual assault allegations is relevant in both proceedings to the character and conduct of Robert, to the future financial needs of Jane as plaintiff and as a beneficiary of the Estate, and to whether they give rise to a special obligation or responsibility upon the deceased. Each of these are a factors to be considered by the Court;[14]
[14]s 91(4)(f),(h) and (o) of the Act.
(c) Robert and Jane are separately represented in each proceeding, as is Ms Fittall. However, if the trial of the Part IV proceedings goes ahead before the criminal proceedings, Ms Fittall may be placed in the invidious position on the one hand that in the course of upholding the deceased’s Will, of defending the Estate against the claims of Jane of sexual assault and on the other hand being placed in the position of a de facto prosecutor of her claims in the proceeding brought by Robert (so as to defend the Estate against his claim);
(d) it is therefore preferable that the allegations of sexual assault be put to rest in the criminal prosecution before the Part IV proceedings go to trial. It is conceded, however, that if the prosecutions do not result in a verdict of guilty, Jane will still be able to raise them in this proceeding. On the other hand, a finding of guilt is likely to lead to a limited amount of evidence in the Part IV proceedings; and
(e) there will be no prejudice to Robert arising out of the delay in the hearing of his Part IV claim. He has use of the property at 4 Mount Pleasant Drive, Mt Waverly (which is listed as an asset of the estate and which under the Will of the deceased is devised to him, but which he asserts he has paid for). He and his partner have significant assets. The estate will otherwise be preserved during any stay.
Robert
Robert resists the stay of the Part IV of the proceedings. He has filed affidavits denying the sexual assault alleged by Jane. He has, in substance, waived his right to silence and maintains that the introduction of the evidence regarding the allegations are a tactic employed by Jane, who he notes receives the larger part of the estate of the deceased.
Robert contests the factual basis upon which Jane makes her application for a stay of both proceedings. His account of the dealings between himself and Jane both before and after she accused him of sexual assault support this position. His reference to the two mediations of the Part IV proceedings, the first on 22 July 2014 and the second on 3 March 2015, and the fact that the allegations of incest were made on affidavit as early as 9 April 2014, seem to cast real doubt on Jane’s allegations of anxiety and difficulty being in Roberts presence. The appearance in VCAT occurred before she filed her affidavit accusing Robert of the assault. During the application, Jane put herself up to be cross-examined when Robert was present and showed no signs of any stress or anxiety as now claimed. Moreover, Jane did not raise her concerns about appearing in the same room as Robert during the course of that hearing.
Robert’s evidence regarding discussions in 2012 between Jane and him regarding the administration of the estate and the possibility of claims under Part IV of the Act and in relation to the Meeuwissen Family Trust also support his position that Jane is in reality not affected by proximity to him.
Robert submits that the allegations of sexual assault are a recent fabrication in order to coerce him into settling his Part IV claim. He refers to an affidavit of Anna Perri sworn 19 June 2015 and filed in Jane’s proceeding and makes a number of criticisms about it, including that it is inadmissible and scandalous. I will not descend into any detailed assessment of that affidavit, as I consider its admissibility is seriously to be questioned and the determination of whether it is admissible has not yet been made. I note here that because of this affidavit and the other affidavits that refer to the conduct of Robert, I have made orders pursuant to r 28.05 of the Supreme Court (General Civil Procedure) Rules2015 that the file should remain confidential until further order. This restricts the ability of members of the public to inspect the files.
Robert further submits that:
(a) the estate under the Will of the deceased goes overwhelmingly to Jane and it is unclear why she has brought her own proceeding;
(b) there is no suggestion that the Part IV claim by Robert has triggered a dormant or repressed memory in Jane;
(c) the four incest charges date from 1976 to 1978 at which time Robert was 15-17 years of age and Jane was 12-14 years of age;
(d) it was only after Robert made his claim under Part IV that any allegations of incest were raised by Jane, nearly 40 years after the events;
(e) Jane presents no formal psychiatric opinion to support her diagnosis of PTSD suffered by her. The Court should give no weight to self-serving hearsay assertions of the opinion of an unknown psychologist;
(f) the grant of a stay until the completion of the criminal proceedings will delay the Part IV proceedings for up to two years. The Part IV proceedings have been on foot for a considerable period. Before the stay applications various interlocutory disputes about discovery had been dealt with and resolved and two mediations have been held. The proceedings are now ready for trial; and
(g) the delay of the trial of the Part IV proceedings is advantageous to Jane as she is the principal beneficiary of the estate. She is under no financial pressure to expedite the resolution of the proceedings. She is in control of the Meeuwissen Family Trust with approximately $750,000.00 worth of shares that produces an income of over $40,000.00 per annum. She lives in a house that was left to her under the Will. By contrast Robert, although living in a house which forms a part of the estate of the deceased, has limited assets.
Counsel further submitted that the prima facie rule should apply and Robert should have his Part IV proceeding tried in the ordinary course of the procedure and business of the Court. As Jane’s Part IV proceeding is affected by Robert’s, they must be tried at the same time in the interests of efficiency and cost-effectiveness. It was also put to me that it is a grave matter to interfere with this entitlement by way of a stay of proceedings. The burden is on Jane to show that it is just and convenient that the plaintiff’s right to proceed to trial should be interfered with.[15]
[15]Jefferson Ltd v Bhetcha, [1979] 1 WLR 898 at 904–5.
One of the factors to be taken into account in considering whether a stay should be granted is the accused’s right of silence and the privilege against self-incrimination. The relevance of these factors is that ordinarily an application for a stay is made by the accused so as to protect these rights. But in this case, Robert has waived his right to silence and with it, presumably, his privilege against self-incrimination.
Robert does not assert any prejudice arising by virtue of the anticipated trial of the civil proceedings before the criminal prosecution. In particular, Robert does not claim that the burden of preparing for and undertaking the civil proceeding before the criminal proceeding will be an undue burden upon him. On the contrary, he claims that it will be a new and onerous burden if the imminent trial of the Part IV proceedings is now delayed.
Neither the accused nor the Crown is entitled as of right to have a civil proceeding stayed because of a possible or pending criminal proceeding.[16] The Court’s task is to balance the justice between the parties. Robert contends that the overwhelming balance of justice favours him.
[16]Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19.
Applicable Law
The applications in these cases are unusual, in that Jane’s complaint against Robert has triggered the criminal proceedings and it is she rather than Robert, who seeks to have a stay.
In McMahon v Gould, Wootton J had to decide whether a civil proceeding brought by a liquidator against the defendant in respect of acts done by him as a director should be stayed until the determination of criminal proceedings involving the same subject matter pending against the director. The question for Wootton J was, by reference to what considerations the discretion to order a stay should be exercised? Having considered the authorities, Wootton J identified as ‘guidelines’ a series of matters to consider in determining the exercise of the discretion to stay the civil proceeding. The ultimate question is whether there has been demonstrated such a real risk of injustice to the applicant for a stay that the court would be justified in denying the plaintiff in the civil proceeding their fundamental right to a hearing in the ordinary course.[17]
[17]De Simone v Bevnol Constructions and Developments Pty Ltd (2010) 30 VR 200 at [6] (De Simone).
In truncated form, with adaptations to the circumstances of this case, the guidelines derived from McMahon v Gould[18] that are applicable to a stay of civil proceedings where criminal proceedings are pending, include the following:[19]
[18](1982) 7 ACLR 202 at 206-7; See more recently the analysis of these principles in Zhao & Anor v The Commissioner of the Australian Federal Police, [2014] VSCA 137.
[19]See also the summary by Robson J in Re AWB Ltd (2008) 21 VR 252 at [29].
(a) the plaintiffs in the Part IV proceedings are entitled to have their actions tried in the ordinary course of the procedure and business of the Court;
(b) it is a grave matter to interfere with the entitlement to have a trial of a civil proceeding by way of a stay of that proceeding;
(c) the burden is upon the person seeking a stay to show that it is just and convenient that the plaintiff’s ordinary rights in the civil proceeding should be interfered with;
(d) there is no entitlement as of right for a civil proceeding to be stayed because of a pending or possible criminal proceeding;
(e) the court’s task in considering whether to stay a civil proceeding until the outcome of a criminal proceeding is one of balancing the justice between the parties, taking into account all relevant factors. These factors include, so far as relevant to this case, the proximity of the criminal hearing, the possibility of miscarriage of justice e.g. by disclosure of a defence enabling the fabrication of evidence by a prosecution witness, the burden on the defendant of preparing for both sets of proceedings concurrently, whether the defendant has already disclosed his defence to the allegations and the conduct of the plaintiff and defendant. The effect on the plaintiff must also be considered and weighed against the effect on the defendant;
(f) each case must be judged on its own merits and it would be wrong and undesirable to attempt to define what the relevant factors might be in the abstract; and
(g) the accused’s right of silence is one factor that is ordinarily taken into account to stay a civil proceeding on the application of the accused; and
(h) the 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 the 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 proceeding.[20]
[20]McMahon v Gould (1982) 7 ACLR 202 at 205; Jefferson Ltd v Bhetcha [1979] 1 WLR 898 at 904–5; Op Cit, Re AWB Ltd (2008) 21 VR 252 at [29]; Websyte Corporation Pty Ltd v Lachlan Alexander (No2) [2013] FCA 562 at [62].
It is immediately apparent from these factors that they reflect the usual position, that is, where an application to stay a civil proceeding is made by a defendant who is the accused in a criminal proceeding. But that has not always been the case, as demonstrated by the next authority.
In Rochfort v John Fairfax & Sons Ltd,[21] the New South Wales Court of Appeal allowed the appeal against an order granting the defendant newspaper a stay of the plaintiff’s defamation action until after the plaintiff’s criminal trial on charges of conspiracy had been determined (the subject matter of which the defendant newspaper had reported). In that case, as in this case, the stay was not sought, but rather resisted, by the party subject to criminal charges. The defendant newspaper sought the stay until after the conclusion of the criminal trial on grounds of public interest and its own alleged loss of advantage in the conduct of the civil action, should it be tried first.[22]
[21][1972] 1 NSWLR 16.
[22]See Websyte Corporation Pty Ltd v Lachlan Alexander (No2) [2013] FCA 562 at [54]-[55].
In that case, one point advanced by the defendant, Fairfax was that it would be prejudiced by the civil proceeding going first because it would be deprived of the opportunity to put the conviction, if it came about, to the plaintiff in cross-examination as going to his credit if the trial of the civil action had already taken place.
Sugerman ACJ, with whom Holmes and Mason JJA agreed, considered it an extraordinary suggestion that a plaintiff should be deprived of his right to a trial in the due course of the court’s procedure, not in order to prevent a prejudice to the defendant, but in order to secure to the defendant a possible advantage of being able to put the conviction to the plaintiff in cross-examination.[23]
[23][1972] 1 NSWLR 16 at 22 (F).
Consideration
The parties in each Part IV proceeding have filed their affidavits of evidence relevant to the claims and resisting them. The proceedings are ready for trial directions and setting down. My inquiries indicate that there is no prospect of the trial of the proceedings being held before May 2016, certainly not before the anticipated date of the committal proceeding.
I have mentioned that the application for a stay was varied, in the running, to a stay until the conclusion of the committal proceeding. Because there is little prospect of the trial of the Part IV proceedings coming on before the committal proceeding, it may be unnecessary to grant a stay at this time. Nevertheless, if the Part IV proceedings are not stayed they will be set down quite soon for a trial in about May 2016 or soon thereafter. That will inevitably be before the trial of the criminal proceeding and, if for some reason the committal does not go ahead in February 2016, may be before that hearing. For those reasons, and because the application for a stay until after the committal hearing was put as an interim measure, it is necessary to decide whether on the existing material a stay until after the committal hearing is justified.
The ultimate question I am required to determine is whether there is a real risk of injustice to Jane which will justify denying to Robert his fundamental right to a hearing of the Part IV proceedings in the ordinary course.
The contention of Robert that the allegation of sexual assault is not relevant to his claim pursuant to Part IV of the Act is not, in my view, correct for the reasons advanced on behalf of the Estate. If proven, the sexual assault of Jane by Robert may be relevant to the character and conduct of Robert, to the future financial needs of Jane, and, if established that the deceased was aware of the assault,[24] to whether they give rise to a special obligation or responsibility upon the deceased. Each of these are factors to be considered by the Court.[25]
[24]The affidavit of Jane sworn 9 April 2014 suggests this is possible.
[25]s 91(4)(f),(h) and (o) of the Act.
It therefore follows that the allegations of sexual assault are potentially relevant to the determination of the Part IV proceedings. As the only witness to the assault, Jane’s evidence will be tested in cross-examination, at the latest, at the trial of the criminal prosecution and possibly at the committal as early as February 2016.
On the present estimates, it is unlikely that Jane will be cross-examined in the civil proceeding before the committal is dealt with, as I have said. The issue will arise, however, if the committal is delayed or, the trial of the Part IV proceedings comes on before the criminal trial (if any). The injustice as advanced by Counsel for Jane is twofold:
(a) the advantage to Robert cross-examining Jane as to the circumstances of the alleged sexual assault and the use of it as a means of testing the evidence in the criminal prosecution, and the corresponding prejudice to Jane in being subjected to probing cross-examination on the subject several times; and
(b) the damage to her mental health arising from being in proximity to Robert and being cross-examined about the sexual assault.
Thus, it seems to me, the questions critical to the determination of whether a stay should be granted are:
(a) the impact in this case of the prima facie entitlement of Robert to have his Part IV proceeding tried in the ordinary course of the procedure and business of the Court. The proceedings are ready to be fixed for trial and the parties have expended considerable costs in preparing them for trial;
(b) the gravity of interfering with that entitlement by way of a stay of that proceeding;
(c) whether Jane has discharged the burden of showing that it is just and convenient that the plaintiff’s ordinary rights in the Part IV proceeding should be interfered with, in particular whether:
(i) she will suffer an injustice by being cross-examined in the civil proceedings before any cross-examination in the criminal proceedings; and
(ii) there is sufficient evidence to establish the potential damage to her mental health by the civil proceeding being tried before the criminal proceeding.
The ability to test the evidence of Jane as to the sexual assault she alleges against Robert is a right that Robert has in the Part IV proceedings. It is a right that is bound up with his prima facie right to have the civil proceedings dealt with in the ordinary course of the procedure and business of the Court. The advantage it gives him is thus an advantage to which he is entitled, even if it allows him the opportunity of to rehearse his cross-examination in advance of his committal or potential criminal trial. Balanced against this right, is the prospect Jane faces of her evidence being tested first at the committal, then in the Part IV proceedings and again in the criminal trial, or if not in that order, first in the Part IV proceedings, then in the committal and then the criminal trial.
At first I considered that the disadvantage Jane faced in successive cross-examinations and the advantage Robert might thereby gain, particularly to rehearse his cross-examination, should be seen as an unnecessary prejudice to Jane and an illegitimate advantage to Robert. On reflection, however, it seems to me that this is no more than the inevitable and just consequence of the right of Robert to have his Part IV proceeding go to trial in the ordinary course of the procedure and business of the Court. The prejudice to Jane, if it is right to call it one, is no more than the natural consequence of her raising the allegation of sexual assault against her brother.
The testing of evidence through cross-examination is a normal part of court procedures in both civil and criminal proceedings and an important right. That right is hedged around, in cases of sexual assault, with provisions capable of preventing Robert himself conducting the cross-examination in the criminal proceeding.[26] Moreover, in both the civil and criminal proceedings, the Judge has the power to appropriately limit the cross-examination, and the duty to prevent the cross-examination from being used improperly.[27] It may be that in both the civil and criminal proceedings Jane could be considered a vulnerable witness under s 41 of that Evidence Act2008.[28]
[26]Part 8, Division 3 of the Criminal Procedure Act2009.
[27]Division 5 of Part 2.1 of the Evidence Act 2008 (Vic).
[28]s 41(4)(c)(iii)(C).
Another way of seeing the alleged prejudice to Jane by the successive cross-examinations, is to view Jane’s so called prejudice as an opportunity to gain an advantage by avoiding repeated cross-examinations before the criminal proceeding comes on for trial. When viewed in that way, it has a character akin to that rejected by Sugerman ACJ in Rochfort v John Fairfax & Sons Ltd.[29]A stay of the Part IV proceedings until after the committal or the criminal trial would secure to Jane the possible advantage of avoiding having her evidence tested in proceedings that in ordinary circumstances should come on ‘when they may’, be it before or after the committal or criminal trial.
[29][1972] 1 NSWLR 16.
For these reasons, I do not consider that, on balance, there is any injustice to Jane by the civil proceeding being tried before the committal or the trial of the criminal prosecution by reason that Jane will thereby face successive cross-examinations, or that some advantage might thereby accrue to Robert.
The evidence of Jane that she is suffering PTSD, anxiety, flashbacks and panic attacks, and needs for her own mental health to be away from Robert, is some evidence that her mental health may be adversely affected by the civil proceeding being tried before the criminal prosecution. But as Counsel for Robert submitted, the absence of any independent medical evidence of her condition and the evidence Robert gives of the several occasions on which they have faced each other (for example in VCAT and in the mediations) without any apparent complaint or adverse reaction on Jane’s part, diminishes the weight of that evidence significantly. Accordingly, I am not satisfied on the existing evidence that Jane’s mental state will be adversely affected by the trial of the Part IV proceedings before the committal or the trial of the criminal proceeding.
Turning now to the other arguments, Ms Fittall, on behalf of the Estate, submitted that it is preferable that the allegations of sexual assault be put to rest in the criminal prosecution before the Part IV proceedings go to trial. This was, in substance, because if the trial of the Part IV proceedings goes ahead before the criminal proceedings, Ms Fittall may be placed in the undesirable position in the course of upholding the Will of the deceased of defending the Estate against the claims of Jane of sexual assault, on the one hand, and being placed in the position of a de facto prosecutor of her claims in the proceeding brought by Robert (so as to defend the Estate against his claim).
I am not persuaded that this is a sound basis for the grant of a stay of the civil proceedings. The true position is that there is an appropriate contradicter to Robert’s claims, in which the sexual assault claims are primarily raised, by the presence of Jane, separately represented from the Estate. Ms Fittall does not need to, and in the circumstances should not, participate in that aspect of the defence to Robert’s claim. In Jane’s proceeding, the allegation of sexual assault is referred to in her affidavit, but she also relies for the greater detail of her case on the affidavit filed in Robert’s proceeding. Because the proceedings will be tried together I see no need for Ms Fittall to take a position on the issue of the alleged sexual assaults. If necessary, Robert can be readily added as a defendant so as there is, formally, a contradicter in Jane’s proceeding.
Next, Jane relied on the analogy of the Family Law cases to provide grounds to stay the civil proceedings to protect Jane from damage to her mental health. The cases referred to are clearly distinct, and depend for their rationale on the welfare of the children being paramount. However, to the extent that they have some persuasive force for the application in this case, it is in relation to the protection of Jane’s mental health. If there were proper independent evidence in support of the contentions that proximity to Robert is truly damaging to Jane’s health, that might provide a justification for a stay. I have not been presented with any such evidence. The evidence given by Robert appears to contradict the evidence that Jane has given.
Finally, there are a number of other factors to which Robert has referred that are also relevant and point against the grant of a stay, including:
(a) it was only after Robert made his claim under Part IV that any allegations of incest were raised by Jane, nearly 40 years after the events;
(b) the grant of a stay until the completion of the criminal proceedings will delay the Part IV proceedings for a very long time, possibly until mid to late 2017. Robert’s proceeding was commenced in February 2013 (although it seems there was a delay in service, as the Estate only appeared in November 2013).
(c) before the stay applications, various interlocutory disputes about discovery had been dealt with and resolved and two mediations were held. The proceedings are now ready for trial;
(d) the delay of the trial of the Part IV proceedings is advantageous to Jane as she is the principal beneficiary of the estate. She is under no financial pressure to expedite the resolution of the proceedings; and
(e) Robert does not assert any prejudice arising by virtue of the anticipated trial of the civil proceedings before the criminal prosecution.
Conclusion
The Court has a discretion to grant a stay of civil proceedings when criminal proceedings involving the same subject matter are on foot. The Court’s discretion should not be exercised lightly. Each case will be determined on its merits. The overriding principle is balancing the interests of justice between the parties.[30]
[30]Websyte Corporation Pty Ltd v Lachlan Alexander (No2) [2013] FCA 562 at [109].
For the foregoing reasons I am not persuaded, on the evidence and arguments presented so far, that this is an appropriate case for the exercise of the discretion to order a stay of the Part IV proceedings until after the committal or the criminal trial.
However, because of the view I take of the evidence given by Jane as to the effect on her mental health of the civil proceedings being tried in the ordinary course of the court’s procedure and business, I will reserve to her, should it be necessary, liberty to apply for a stay after the committal (assuming it is held, as presently expected, before any trial of the Part IV proceedings). A number of things will then be better known, including whether Robert is committed for trial and what effect the committal has had on Jane’s health, and no doubt other matters.
I will make orders accordingly. In view of the decision to which I have come, I see no reason why the costs should not follow the event, but I will hear the parties on that question.
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