Parr v PATRICK FINNEGAN
[2013] FCCA 512
•13 February 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARR v PATRICK FINNEGAN & ANOR | [2013] FCCA 512 |
| Catchwords: PRACTICE AND PROCEDURE – Application for stay of proceedings – where trial part heard – where evidence reveals that criminal complaint made in relation to same acts complained of in proceedings – where complaint to police not finalised – where respondent has not made statement to the police – application stayed until further order. |
| Legislation: Fair Work Act 2009 Human Rights and Equal Opportunity Act 1986 Sex Discrimination Act 1984 |
| Cases cited: McMahon v Gould (1982) 7 ACLR 202 Norilya Minerals v Ireland (1991) 5 WAR 411 W v W [1999] 2 NZLR 1 |
| Applicant: | SHARON MATIRA PARR |
| First Respondent: | PATRICK FINNEGAN |
| Second Respondent: | E-STATION PTY LTD |
| File Number: | BRG 461 of 2011 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 13 February 2013 |
| Date of Last Submission: | 13 February 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 13 February 2013 |
REPRESENTATION
| The applicant appearing on her own behalf |
| Counsel for the Respondents: | Mr McLeod |
| Solicitors for the Respondents: | Bennett & Philp Solicitors |
ORDERS
The within proceedings be stayed until further order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 461 of 2011
| SHARON MATIRA PARR |
Applicant
And
| PATRICK FINNEGAN |
First Respondent
| E-STATION PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
Ex tempore
This is an application made by the respondents partway through a trial that commenced yesterday for the proceedings to be stayed either indefinitely or to a particular point in time. The proceedings concern an application under the Human Rights and Equal Opportunity Act 1986, which alleges sexual harassment and other breaches of the Sex Discrimination Act1984. The events in question took place apparently on separate two days and there are really two episodes, if I can describe it in that way, which are the subject of complaint.
The evidence of the applicant has been given by affidavit and she is partway through her cross-examination on those issues. The respondent has placed his evidence before the Court by way of affidavit, but he has not yet been cross-examined.
It is said that the application should be stayed because it became apparent from the applicant’s cross-examination yesterday that she has made a complaint to the Queensland Police Service about the first respondent in respect of the incidents which form the subject matter of the application before me.
There is a dispute between the parties about whether the respondent knew that there had been a complaint to the police and it is suggested that the complaint to the police was raised in open court. I have no recollection of it being raised in open court. That is not to say it was not, but I have not had the opportunity to check whether it was. Nonetheless, it is said by the respondent that he was until yesterday unaware of the involvement of the police. I do not intend to make a finding about that dispute other than to remark it seems more probable than not that there was no notice to the respondent of the involvement of the police because one would have expected that, if there was, the documents to which Mr McLeod referred to in his submissions, the CRISP report and the other documents that are generated by the police service when there is such a complaint of such a serious nature would have been before the Court in one form or another – probably produced on a subpoena. But there is nothing to suggest that they are. It is, of course, a well-accepted and usual forensic practice to obtain such documents in the context of a case such as this.
Having said those things, it is for the Court to exercise a discretion as to whether to grant the stay now sought by the respondents.
In opposition to the stay, the applicant relies upon a decision of the Privy Council in W v W [1999] 2 NZLR 1. That is a decision of the Judicial Committee of the Privy Council on appeal from the Court of Appeal of New Zealand. The judgment of the board was delivered by Lord Hoffman. The passages that appear to be relied upon by the applicant are these: at page 3, his lordship says:
In these appeals, the majority judgment of Henry J and the minority judgment of Thomas J contain exhaustive surveys of the policy issues at stake and the state of the authorities and literature in various parts of the world. There are plainly important differences, recognised in both judgments, between a criminal prosecution and an action for exemplary damages. The procedure is of course radically different and so is the standard of proof. A prosecution is generally speaking initiated and controlled by the state. A civil action is initiated and controlled by the victim. Thus the prosecution of an action for exemplary damages enables the victim publicly to vindicate his or her version of events and inflict punishment, even revenge, in ways which a criminal prosecution may not satisfy. Punishment takes the form of damages which go to the victim rather than imprisonment or a fine which can afford her only a more indirect satisfaction. Allowing the victim to pursue such a claim may have a therapeutic value which mitigates the effects of the offence.
On the other hand, there can be no doubt that allowing an action for exemplary damages to follow or precede a criminal punishment carries the risk that a person may be punished twice for the same offence. The minority view acknowledges that this would be unfair and proposes that any criminal punishment should be taken into account by way of reduction in the damages awarded. But this remedy carries its own difficulties because prima facie it must be assumed that the criminal punishment was considered by the Court to be appropriate to the offence and the offender. To award exemplary damages at all would imply that the civil Court thought that the criminal punishment had been inadequate. There is an additional problem when a criminal prosecution follows a civil action. Logically, the criminal punishment should take into account the exemplary damages which have been awarded but there is an argument for regarding criminal proceedings in the name of the state as having primacy over a private action.
W v W was a case which dealt with an action for exemplary damages that was brought after the defendant to that action had been convicted of one count of sexual assault and acquitted of two others. He raised the conviction and acquittal as a bar to the proceedings for exemplary damages. The case was argued against the particular statutory regime that exists in New Zealand. There is no right to compensatory damages in New Zealand, that right having been abolished by legislation. However, actions for exemplary damages remain, and it was that action which the complainant wished to pursue. The Court of Appeal took the view that, for reasons expressed by it, that action was barred by reason of the criminal conviction and acquittals. The Privy Council upheld the Court of Appeal’s decision. The significance of the case is the way in which criminal punishment imposed by the State interacts with or perhaps does not interact with an award of exemplary damages pursued by a victim of the offending conduct in New Zealand.
It is no authority, it seems to me, for the proposition that a victim has a choice about the way in which the claim will be pursued. All the case does is recognise that there may be criminal proceedings and civil proceedings, as, indeed, there may well be, but it says nothing about the order in which those proceedings should take place, and whether civil proceedings should be stayed until criminal proceedings have been completed, and then only activated when the criminal proceedings are finalised.
I have had regard to the two decisions to which the applicant has referred me in which that case of W v W has been applied or referred to in the Supreme Court of New South Wales, but neither of those decisions are of any particular assistance in this case. They too, both concern the overlap between criminal punishment and civil punishment by way of exemplary damages.
There is no doubt, however, that the Court has a discretion to grant the stay for which the respondent applies. The issue is, at the moment, on what basis a stay might be granted.
In Norilya Minerals v Ireland (1991) 5 WAR 411, White AJ of the Supreme Court of Western Australia reviewed the relevant authorities and concluded that the Court had a discretion to stay civil proceedings in a proper case. That case has been applied on many occasions since. His Honour, in that case, relied upon an earlier decision of Wootten J in McMahon v Gould (1982) 7 ACLR 202. In that case, Wootten J said, at pages 206 to 207:
(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;
(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;
(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with;
(d) Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;
(e) The court's task is one of “the balancing of justice between the parties”, taking account of all relevant factors;
(f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;
(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's “right of silence”, and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding. I return to this subject below;
(h) However, the so-called “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;
(i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;
(j) In this regard factors which may be relevant include:
(i) the possibility of publicity that might reach and influence jurors in the civil proceedings;
(ii) the proximity of the criminal hearing;
(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;
(iv) the burden on the defendant of preparing for both sets of proceedings concurrently;
(v) whether the defendant has already disclosed his defence to the allegations;
(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him;
(k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff;
(1) In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed.
Ms Parr has a right to have her action tried in the ordinary course of the procedure and business in this Court. I accept that it is a serious matter to stay these proceedings and thereby interfere with her entitlement to conduct these proceedings. The burden is on the respondent in this application to show that it is just and convenient that Ms Parr’s ordinary rights should be interfered with.
The proceedings in this case, the criminal proceedings, are not yet instituted. The evidence reveals that a complaint was made to the police about the offending conduct as long ago as July, 2011. The evidence given in cross-examination might be summarised, as it was yesterday in submissions, as being to the effect that the ball is in Ms Parr’s court. The police are waiting to hear from her as to what it is that she wishes to do with the complaint that she has made to them.
Apparently some investigation has been done, because there has been contact between the Queensland Police Service and the Western Australian Police, but nothing more is known. The criminal proceedings or the criminal complaint seems to have been initiated by Ms Parr at the urging of her friend. To use her words, “something needs to be done about this,” and it seems that Ms Parr has chosen the civil path rather than the criminal path at this point.
The difficulty, however, is with her refusal or failure to give any unequivocal indication that the criminal proceedings will not be continued. When taxed with that question in cross-examination, and when asked by me, her answers were equivocal. The questions that were asked permitted of a straightforward answer, but no straightforward answer was given.
All of her answers were qualified in various ways, which tended to give the impression that there might be circumstances in the future in which she will enliven the criminal complaint with the police. In the absence of an unequivocal disclaimer of the criminal complaint and some notification to the police to that effect, I think I need to approach the case on the basis that criminal proceedings are not only possible, but probable.
The complaint to the police and the complaints in this application are serious. They amount to complaints of rape. The offence of rape carries a significant penalty. The proceedings in this Court have reached the point where the defendant has put his evidence before the Court. Essentially, his defence in the civil proceedings is that there was certainly sexual activity that took place between he and the applicant, but that everything that took place was with her consent.
When asked about the consent issue yesterday in cross-examination the applicant’s answer was again, far from unequivocal. Rather than answer a direct question with a direct answer, she tended to mince her words. She indicated that she did not understand what the technical meaning of “consent” was. When asked a more simple question, again, there was no clear, unequivocal, and direct answer. That sort of prevarication causes concern.
The respondent has prepared for this case. The case is part-heard, and so, to the extent that it is necessary to consider the burden on the defendant of preparing for both sets of proceedings, it is relevant to take into consideration that the costs of the preparation of these proceedings have already been incurred.
What has not occurred yet is the cross-examination of the defendant. Although Ms Parr has not indicated whether she wishes to cross-examine him or not, it would be remarkable if she did not. Indeed, given the way in which civil proceedings must be conducted, it seems to me that he would have to be cross-examined.
And it is at that point where it seems to me significant prejudice for the defendant arises. Even though he has put his case on affidavit, he is, nonetheless, entitled to the right to silence. It is one thing to make a statement to the police for example or to make a statement which is sworn on oath – an affidavit – but it is an entirely different thing to be subject to the rigours of cross-examination.
The primary focus of the applicant, as she indicated on more than one occasion yesterday and today, is the application which is pursued by her under the Fair Work Act2009. And so to the extent that I need to take into account the prejudice to the applicant as well as the possible prejudice to the defendant, it seems to me that her primary application, the one in which she is primarily interested in, can nonetheless proceed.
A close examination of the pleading in that case reveals that the claims made by her in that case do not depend upon any findings about the incidents which led her to bring the complaint under the Sex Discrimination Act.
For all of those reasons, the present application under the Human Rights Act, will be stayed. However, I do not intend to stay it indefinitely. I intend to list the matter for further directions in three months. That will permit the applicant time to consider her position, to decide whether she wishes to proceed with the criminal proceedings, and, if so, to provide advice to the police accordingly.
If she does not, she should advise the police as well, and there should be an unequivocal statement that the police matter has been finalised. If that occurs, then the civil proceedings can be resumed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 13 February 2013.
Date: 12 June 2013
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