Pauline Cargill v Shire of Lilydale

[1994] IRCA 73

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI-905/1994

B E T W E E N:       PAULINE CARGILL

AND:    
  SHIRE OF LILYDALE

COURT:               J.A. RYAN, Judicial Registrar

PLACE: MELBOURNE

DATE:                   10 OCTOBER 1994

The respondent terminated the employment of the applicant as a family day care worker on 27 June 1994.  The grounds for termination were stated to be specific discrepancies in travelling claims which were alleged to be examples of a consistent course of conduct by the applicant in falsifying travelling claims.

On 1 July the applicant sought remedy for unlawful termination of employment.

On 23 August the application was referred to the Australian Industrial Relations Commission for conciliation and was returned for Directions in this Court on 3 October.  On that date Counsel for the Respondent requested that the matter be set down for trial on the basis that the matter had not settled at conciliation.  Counsel for the applicant requested an adjournment until mid December.  In effect this was an application for a stay of civil proceedings until completion of criminal proceedings on the ground that the applicant had been charged with offences arising out of the same alleged events involved in the civil proceedings.

When pressed on whether a further adjournment would be sought if the criminal proceedings had not been determined by mid December, counsel for the applicant was equivocal, suggesting that in that event there might be stronger grounds for proceeding to list the application under Section 170EA.  He also suggested that the applicant was likely to elect to have all charges dealt with in the Magistrates Court although it is open to her to have some of them committed to the County Court.

If the criminal charges proceed it is not possible to predict when the proceedings will be completed.  This is so even if all charges are dealt with in the Magistrates Court.  I propose to treat the application for an adjournment to mid December as effectively an application to stay the civil proceedings until after the completion of concurrent criminal proceedings.  The application was justified on that basis and I would expect that an adjournment to mid December would be followed at that time by a request for a further stay if the criminal proceedings are still on foot.

In any event I have decided that the proceedings in this Court should not be stayed to mid December or to some later date.

There are a number of authorities dealing with respondents in civil proceedings seeking stays of those proceedings while they defend criminal proceedings.  Counsel were unable to refer me to cases, such as this, where applicants or plaintiffs in civil proceedings seek a stay in the proceedings they have initiated in order that they might defend criminal proceedings arising out of the same events.

Nevertheless, many and probably all of the principles in the authorities which guide the exercise of the court’s discretion seem applicable in the rarer situation of a civil plaintiff who is also a criminal defendant.

The principles are set out in Mc Mahon v Gould (1982) ACLC 98; 7ACLR 202. The principles were adopted by the Chief Justice of this Court while sitting in the Federal Court in Cameron’s Unit Services Pty Ltd v Whelpton and Associates Pty Ltd (1984) 59 ALR 754 and by the Chief Justice of the Supreme Court of Victoria in Philippine Airlines v Goldair (Aust) Pty Ltd [1990] V.R. 385.

Those principles are as follows:

“(a)prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court (Rochfort v. John Fairfax & Sons Ltd [1972] 1 N.S.W.L.R. 16 at 19);

(b)it is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid);

(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 (Jefferson v. Bhetcha [1979] 1 W.L.R. 898 at 905)

(d)neither an accused (ibid) or the Crown (Rochfort at p. 21 are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e)this court’s task is one of “the balancing of justice between the parties” (Bhetcha at p. 904), taking account of all relevant factors (ibid p. 905);

(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 (ibid p. 905);

(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 (ibid p. 904). . .;

(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 judgement, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceedings (ibid pp. 904-905);

(i)the court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid p. 905);

(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 (ibid p. 905);

(ii)the proximity of the criminal hearing (ibid p. 905);

(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 (ibid p. 905);

(iv)the burden on the defendant of preparing for both sets of proceedings concurrently Beecee Group v. Barton; (1980) 5 A.C.L.R. 33

(v)whether the defendant has already disclosed his defence to the allegations (Ceasar v. Sommer [1980] 2 N.S.W.L.R. 929 at 932; Re Saltergate Insurance Co. Ltd. (1980) 4 A.C.L.R. 733 at p. 736);

(k)the effect on the plaintiff must also be considered and weighed against the effect on the defendant . . .;

(l)in an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed (Beecee Group v. Barton).”

In my view 8 of the 12 principles (d to g and i to h) clearly apply irrespective of whether the defendant in the criminal matter is plaintiff or respondent in the civil matter.

Furthermore, I cannot see why the remaining 4 principles (a to c and h), while predicated on the basis of the criminal defendant being the civil respondent, cannot be applied as acceptable principles in the case of the civil plaintiff facing criminal charges..  At the end of the day, each case must be judged on its own merits (see principle f).

Either party (in this case the respondent) is entitled to have the action in this court tried in the ordinary course of the procedure and business of the court.  Neither party in criminal proceedings, accused or Crown, are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding.

There may well be cases where the circumstances are such that the requirement that a civil plaintiff continue proceedings initiated by that plaintiff within the normal and reasonable timetable of the court would create a real rather than a notional danger of injustice in criminal proceedings running concurrently but to be concluded later.  This is not such a case.  I have considered all of the principles outlined in Mc Mahon v Gould.

I also note that the caseload of unlawful termination claims in this court is heavy and that a large number of unresolved applications are likely to be referred to the court from the Australian Industrial Relations Commission in November and December.  Most cases which have not been listed and are awaiting trial in December are unlikely to be listed before February.

ORDER
Counsel were advised at the Directions Hearing that unless a stay was granted this matter would be listed for trial in October or November.  I therefore propose now to set the matter down for trial at 10:15 a.m. on Monday 31 October 1994 and the matter is so listed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              
Date    :              10 October 1994
Appearances:
Counsel for the Applicant                 :              Mr Murphy
Solicitor for the Applicant                 :              Slater and Gordon
Counsel for the Respondent             :              P.D. Burchardt
Solicitor for the Respondent             :              Mallesons Stephen Jaques
Date of Hearing  :              3 October 1994
Judgment  :              10 October 1994

CATCHWORDS

PRACTICE AND PROCEDURE - Stay of proceedings - Concurrent civil and criminal proceedings - Applicant for remedy for unlawful termination of employment - prosecution for falsifying travelling claims - same facts in both proceedings - application to stay civil proceeding - applicable principles - “Right of silence” - Court’s discretion.

INDUSTRIAL LAW - employer and employee - termination of employment.

Mc Mahon v Gould (1982) ACLC 98; 7ACLR 202.

Cameron’s Unit Services Pty Ltd v Whelpton and Associates Pty Ltd (1984) 59 ALR 754

Philippine Airlines v Goldair (Aust) Pty Ltd [1990] V.R. 385.

PAULINE CARGILL V SHIRE OF LILYDALE

Before:                  Ryan JR

Place:  Melbourne

Date  10 October 1994