Pal v Metricon Holdings Group Pty Ltd and Anor (Ruling)
[2018] VCC 8
•24 January 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-17-01979
| VIKRAM PAL | Plaintiff | |
| v | ||
| METRICON HOLDINGS GROUP PTY LTD (ACN 609 868 135) | First Defendant | |
| (Trading as STOCKDALE & LEGGO – LAVERTON/ALTONA/POINT COOK) | ||
| and | ||
| SUNEET KUMAR | Second Defendant | |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2018 | |
DATE OF RULING: | 24 January 2018 | |
CASE MAY BE CITED AS: | Pal v Metricon Holdings Group Pty Ltd & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 8 | |
RULING
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Subject: DEFAMATION
Catchwords: Application to adjourn trial date to a date after the conclusion of related criminal proceedings – whether risk to the plaintiff, in the course of civil proceedings, of self-incrimination – whether prejudice to the plaintiff in the conduct of the criminal proceedings
Legislation Cited: Defamation Act 2005 (Vic)
Cases Cited:McMahon v Gould (1982) 7 ACLR 202; Reid v Howard& Ors (1995) 184 CLR 1; Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; Gallaher v Collins [2006] VSC 139
Ruling: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J C Paterson | Defteros Lawyers |
| For the Defendants | Mr D P Gilbertson QC | HWL Ebsworth |
HIS HONOUR:
1 This application is made by the plaintiff to adjourn the trial of this proceeding, listed for 22 January 2018. I granted the application. These are the reasons why.
2 On 9 March 2017, outside a property in Bladin Street, Laverton, it is alleged a physical and verbal altercation occurred between the plaintiff, Vikram Pal, and the second defendant, Suneet Kumar.
3 Both were real estate agents in the Laverton area, Mr Kumar being employed by the first defendant (trading under the name Stockdale and Leggo).
4 Mr Kumar alleges that during the altercation, Mr Pal assaulted him and made threats to kill him. Mr Kumar reported the incident to Altona North Police Station that evening. Mr Pal denies the allegations, and when approached by police subsequently, made a “no comment” record of interview.
5 Later on the evening of the incident, Mr Kumar published a post on Facebook which relevantly said:
“Mr. Vikram Pal from ACE Real Estate physically assaulted and threatened to kill me when I walked out of an appraisal in Laverton today at 5.35pm simply because he couldn’t handle competition and chose this as an easy solution to shut me down.
… .”[1]
[1]Joint Court Book (“JCB”) 9
6 The post went on to say Mr Kumar was “stunned and traumatised at his behaviour …”.[2]
[2]JCB 8
7 Mr Pal alleges the post was, and remains, defamatory, and was published to a number of recipients. By their Defence, the defendants plead that the posting was not defamatory, or if it was, was substantially true within the meaning of s25 of the Defamation Act 2005. Although it was not canvassed in the course of this application, it would appear that the outcome of this proceeding will depend upon whose version of events is accepted.
8 Subsequently, Mr Pal was charged with:
(i) assault;
(ii) make threat to kill.
9 Mr Kumar (“the criminal charges”). These charges were listed for hearing at the Magistrates’ Court on 19 January 2018. For reasons which are not clear, that hearing date was adjourned to 16 April 2018. Further, Mr Kumar made application for an intervention order against Mr Pal, pursuant to the provisions of the relevant legislation, to restrain Mr Pal from coming into contact with Mr Kumar (“the IVO application”). That application was also listed for 19 January 2018, and also adjourned to 16 April 2018.
10 According to the police brief in the criminal proceedings, the informant’s “Statement of Alleged Facts” said to be a “Description of alleged offence(s) with reference to supporting evidence”, says:
“On Thursday the 9th March, 2017 the victim attended 92 Bladin Street, Laverton to conduct an appraisal on a property on behalf of the owner and witness in this matter Mohammad EL-DANNAOUI. At the conclusion of the appraisal the victim was at the front of the address when he saw the accused park his vehicle in front of his own. The accused then exited the vehicle and approached the victim.
…
The accused then began a verbal argument with the victim accusing him of approaching his clients. The accused then grabbed the victim by the collar, raised his clenched fist over his shoulder and said to the victim in a threatening manner, ‘I will kill you, you don’t know how powerful I am’. (Charges 1 and 2). The victim then told the accused to step back and leave him alone.
… .”[3]
[3]JCB 53
11 After the issue of the Writ in May 2017, it is evident from correspondence passing between the practitioners that it was considered appropriate to stay this proceeding pending the outcome of the criminal charges. In fact, solicitors for the defendants suggested that all interlocutory steps in this proceeding be stayed. The solicitors for the plaintiff, however, contended that interlocutory steps ought proceed, and the matter be referred for mediation. In the end, it was agreed that each party provide interrogatories and answers, and the matter proceed to mediation on 16 November 2017. Of course, at that stage, it was contemplated the criminal charges and the IVO application would be heard in the Magistrates’ Court on 19 January 2018.
12 The defendants delivered interrogatories for the examination of the plaintiff. Question 7 asked:
“7. ON 9 March 2017, did you say to the second defendant:
(a) in Punjabi;
(b) in English,
(i)‘I will kill you, you don’t know me, how powerful I am’ or any other and if so which words to that effect;
(ii)that he was a ‘mother-fucker’;
(iii)‘I will see how you survive in this industry’ or any and if so which words to that effect?” [4]
[4]JCB 20
The plaintiff’s sworn answer was as follows:
“7. (a) In Punjabi: (i) No.
(ii) No.
(iii) No.
(b) In English: (i) No.
(ii) No.
(iii) No.” [5]
[5]JCB 23
13 Question 8 of the interrogatories asked:
“8. ON 9 March 2017, did you:
(a) grab the second defendant’s shirt and tie;
(b)raise a clenched fist above your shoulder while you were standing within one metre of the second defendant?” [6]
The plaintiff’s answer was:
“(a) No.
(b) No.”[7]
[6]JCB 20 – 21
[7]JCB 23
14 Mr Paterson, for the plaintiff, in submitting it was appropriate to adjourn the hearing of this proceeding until after the conclusion of the criminal charges and the IVO application, submitted that if the civil proceeding were to proceed, there was a risk that his client may incriminate himself in respect of the criminal charges in the course of cross-examination. To do so would risk a breach of the privilege against self-incrimination. He pointed out that according to the police brief,[8] there were a range of factual scenarios which could form the basis of the assault charge. The owner of the property, Mr El-Dannaoui, who will apparently be a witness in the Magistrates’ Court, said in his statement he saw Mr Pal push Mr Kumar to the ground. However, according to the statement of the attending police officer, Sergeant Grant, he was advised by Mr El-Dannaoui he observed Mr Pal punch Mr Kumar in the face. It was also alleged in the statement of Mr Kumar that Mr Pal grabbed him by the collar of his shirt and raised his fist in a threatening manner. Mr Paterson said that it was uncertain at this point which version might be accepted in the criminal charges, and there was the risk that, in the course of cross-examination, these various scenarios could be presented, and his client could incriminate himself by answering in one or another way.
[8]Exhibit K-D2 to the affidavit of Kevin Dorey sworn 19 January 2018
15 On behalf of the defendants, Mr Gilbertson submitted that it was clear, in particular from the plaintiff’s Answers to Interrogatories, that the plaintiff denied making any threats, or grabbing Mr Kumar by the shirt and raising a clenched fist. He said the position of Mr Pal was that he did not threaten Mr Kumar, nor assault him. As such, Mr Pal had waived his right to silence, and given these denials, there was no risk of self-incrimination. He pointed out that the police summary was the basis upon which the criminal charges would be prosecuted, and not statements contained in the police brief.
16 It is clear from the authorities that neither party is entitled, as of right, to have a civil proceeding stayed because of pending or possible criminal proceedings.[9] As a matter of practise and convenience, civil proceedings are regularly stayed when criminal proceedings are pending.
[9]McMahon v Gould (1982) 7 ACLR 202
17 It has been said that either in the course of discovery or evidence in a civil proceeding, there are no exceptions to the privilege against self-incrimination, save in unusual circumstances.[10]
[10]Reid v Howard& Ors (1995) 184 CLR 1 at 12-14
18 In commenting upon the High Court decision in Commissioner of the Australian Federal Police v Zhao,[11] the Full Federal Court, in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission,[12] established the following principles:
[11](2015) 255 CLR 46
[12][2016] FCAFC 97
“(i)where both civil and criminal proceedings are pending, a stay of the civil proceeding will be ordered where ‘the interests of justice require such an order’: …;
(ii) a court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending: …;
(iii) to warrant a stay of the civil proceeding, ‘it must be apparent’ that the accused ‘is at risk of prejudice in the conduct of his or her defence in the criminal trial’: …;
(iv) the risk of prejudice must be real and, in considering what the interests of justice require, that risk is to be weighed against the prejudice that a stay of the civil proceeding would occasion: … .”[13]
[13]Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (supra) at paragraph [22]
19 The Court went on to note that a potential area of prejudice is that evidence given in a civil proceeding might reveal information about the defence in the criminal proceeding.
20 In Gallaher v Collins,[14] Hargrave J considered an application to stay a civil proceeding where a party to the proceeding had been charged with theft. He refused the application, saying:
“However, it is clear that the mere fact that the applicant for a stay may have his so-called ‘right to silence’ in criminal proceedings affected by the continuance of the civil proceedings is not, on its own, a sufficient ground to grant a stay except in a very strong case. … .”[15]
[14][2006] VSC 139
[15]Gallaher v Collins (supra) at paragraph [29]
21 In that case, one party had disclosed his defence in the civil proceeding and to an extent had “waived” his right to silence. However, his Honour commented that it was unlikely the civil proceeding would be listed before the criminal proceeding and the ruling was effectively only in relation to stay further interlocutory steps.
22 The real question is the risk that there will be some prejudice to Mr Pal in contesting the criminal charges or the IVO application, in particular, in being asked and required to answer questions as to what occurred in the course of the incident. I accept there is some uncertainty in respect of the facts which are said to underpin the assault and threat-to-kill charges. It would appear that at least one witness has given a version different from that of Mr Kumar. It will be essential in this proceeding that Mr Pal give evidence. As stated, it is likely that the determination of this proceeding will rest upon which party is believed. If there was no reasonable basis for Mr Kumar to make the comments he did on the Facebook post, it is difficult to see how those comments could not be defamatory. Undoubtedly, Mr Pal will be questioned closely in cross-examination as to the circumstances leading up to the incident, and then what precisely occurred. It is reasonably possible that his answers to those questions could prejudice the conduct of his criminal proceeding, even though he has made a “no comment” Record of Interview, and denied the allegations of Mr Kumar in his Answers to Interrogatories. He may inadvertently make an admission under pressure in the witness box. He may accept some scenario which would later be used in the criminal prosecution. It is likely the prosecutor would be alerted to Mr Pal’s evidence in this civil case.
23 In those circumstances, it is appropriate to adjourn the hearing of the proceeding until the conclusion of the criminal charges.
24 Further, given the criminal charges are listed to be heard in April 2018, I am of the view there is no significant prejudice to the defendants in having this proceeding delayed for a relatively short time. A date could have been obtained for the hearing of this proceeding in May 2018, but to satisfy the convenience of the parties, the matter was refixed for 12 June 2018. It could be said there was some prejudice to the defendants by reason of the costs incurred today, however, both parties, sensibly in my view, agreed that the costs thrown away because of the adjournment, be costs in the cause.
25 In all the circumstances, it is appropriate to adjourn the hearing of the trial, in accordance with the orders already made.
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