Perpetual Corporate Trust Limited v Pearson
[2023] VSC 211
•21 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2022 04613
| PERPETUAL CORPORATE TRUST LIMITED (ACN 000 341 533) AS CUSTODIAN FOR THE LA TROBE AUSTRALIAN CREDIT FUND (ARSN 088 178 321) | Plaintiff |
| v | |
| RANDALL MARK PEARSON | Defendant |
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JUDGE: | M Osborne J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 April 2023 |
DATE OF JUDGMENT: | 21 April 2023 |
CASE MAY BE CITED AS: | Perpetual Corporate Trust Limited v Pearson |
MEDIUM NEUTRAL CITATION: | [2023] VSC 211 |
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STAY – Action for recovery of money – Guarantee and indemnity – Criminal proceedings – Civil proceedings for recovery of money concurrent with criminal proceedings on related issue – Whether civil proceeding should be stayed – Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 – McMahon v Gould (1982) 7 ACLR 202.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | A Germano | Kalus Kenny Intelex |
| For the Defendant | A Campbell | Doherty & Colleagues |
HIS HONOUR:
By summons filed 24 January 2023, the defendant, Randall Mark Pearson (‘Mr Pearson’), applies for a stay of proceedings commenced against him on 11 November 2022 by Perpetual Corporate Trust Limited as custodian for the La Trobe Australian Credit Fund, the plaintiff (‘La Trobe’), pending the hearing and determination of criminal charges levied against Mr Pearson.
Mr Pearson faces 68 indictable charges relating to the falsification of documents, the knowing use of falsified documents, obtaining property by deception and attempting to pervert the course of justice and destruction of evidence (‘Criminal Charges’). Most of the Criminal Charges relate to finance obtained by Frankston Commercial Investments Pty Ltd (‘FCI’) as trustee for the Bayside Project Units Trust (‘Borrower’) in connection with a development undertaken by the Borrower at 345 Nepean Highway, Frankston (‘Development’).
In support of his application, Mr Pearson relies upon two affidavits sworn by his solicitor, John Buordolone, on 16 December 2022 and 24 February 2023 and an affidavit sworn by Mr Pearson on 24 February 2023.
The stay application arises in the context of a proceeding commenced by La Trobe against Mr Pearson by writ filed 11 November 2022.
In the proceeding, La Trobe alleges that on or about 26 September 2018, it entered into a facility agreement with the Borrower pursuant to which it agreed to advance to the Borrower on its request the sum of $8,464,000 (‘Advance’) on the terms and conditions set out in the written facility agreement.
La Trobe further alleges that by a deed of guarantee and indemnity dated 24 September 2018, Mr Pearson and Jacques Khouri (‘Mr Khouri’), who were directors of the Borrower, signed a guarantee and indemnity (‘Guarantee’) by which they guaranteed the performance of the Borrower under the facility agreement.
La Trobe alleges that between 7 November 2018 and 23 December 2019, it advanced the sum of $2,344,040.50 to the Borrower by way of construction advances.
It further alleges that as at 17 November 2022, the Borrower defaulted on the facility agreement and that on that day, La Trobe sent a notice of default to the Borrower and Mr Pearson demanding payment of the outstanding balance owing under the facility agreement by 18 December 2020.
It alleges that the Borrower failed to pay the outstanding amount owing under the facility agreement by the date stipulated in the notice of default and that on 2 March 2021, La Trobe sent a further default notice to the Borrower and to Mr Pearson demanding payment of the outstanding balance owing under the facility agreement within the next seven days. La Trobe alleges that the Borrower failed to pay the outstanding balance within that time.
La Trobe alleges that it made a demand on Mr Pearson under the Guarantee in writing dated 16 August 2022 demanding payment of the sum of $2,303,876.20 and that in breach of the Guarantee Mr Pearson did not pay the amount owing.
In the statement of claim endorsed on the writ, La Trobe claims that Mr Pearson is indebted to it in the sum of $2,353,972.66 being the amount owed by the Borrower to La Trobe under the facility agreement as at 10 November 2022 together with interest owing under the facility agreement.
In August 2022, the Criminal Charges were laid against Mr Pearson. The matters the subject of the Criminal Charges comprise in broad terms allegations that Mr Pearson made false documents which he provided either directly, or in most cases indirectly, to La Trobe for the purpose of the Borrower obtaining finance for the development. For example, charge 1 alleges that Mr Pearson made a false document in the form of a fake Alliance Work Cover Insurance certificate with the intention that Emma Khouri would use that document to induce a quantity surveyor to rely upon that document for the purposes of providing certifications to La Trobe in order to obtain finance for the development (charges 3, 5, 9, 11, 13, 17, 19, 21, 23, 25, 31, 33, 35, 37, 39, 41, 45, 47, 49, 51, 53, 57, 59 and 61 all follow the same format).
The relevant charge number, the date of the alleged offence and the amount of property allegedly obtained from La Trobe are shown in the table below.
Charge Date Amount 1. 7 26 November 2018 $132,750.00 2. 15 14 May 2019 $190,829.36 3. 27 6 June 2019 $321,911.37 4. 28 10 July 2019 $288,900.00 5. 29 16 July 2019 $103,821.19 6. 40 19 August 2019 $296,500.56 7. 43 19 August 2019 $39,000.00 8. 54 31 October 2019 $269,950.00 9. 55 6 November 2019 $6,388.50 10. 62 23 December 2019 $137,739.52 Total $1,787,790.50
The amount referenced in the table above of $1,787,790.50 corresponds to the amounts alleged to have been advanced by La Trobe to the Borrower between 26 November 2018 and 23 December 2019, alleged in paragraph 9 of its statement of claim.
In Mr Buordolone’s first affidavit, he exhibits the charge sheet and deposes to there appearing to be ‘a substantial overlap with the amount claimed in the statement of claim.’ He otherwise sets out his belief that if Mr Pearson is required to give evidence, produce documents or make admissions or denials in the civil proceeding, there is a risk to his right to a fair criminal trial and a real risk of prejudice which is not nominal, remote or fanciful.
In Mr Buordolone’s second affidavit, he deposes to the size of the prosecution brief provided in connection with the Criminal Charges as being voluminous comprising many thousands of pages and that the criminal matter is due to return to court for a committal mention on 20 March 2023. His best estimate is that the committal hearing will take place in about June 2023.
He otherwise expands on the risk of prejudice for Mr Pearson in the following terms:
10I believe that there is a real risk that the conduct of Mr Pearson’s criminal proceeding will be prejudiced if this proceeding were not stayed because, by making admissions or denials in any pleading, or otherwise engaging in the interlocutory and final conduct of the civil matter prior to the determination of the criminal proceeding, there will be a de facto abrogation of Mr Pearson’s right to silence and privilege against self-incrimination.
11This risk is particularly apparent in the lead up to the committal hearing, which is expected to be listed later this year. It is likely that the prosecution will call witnesses who are material to the outcome in this proceeding, including representatives of the plaintiff, Mr Jacques Khouri (also a former director of FCI) and Ms Emma Khouri.
12I am concerned that, given the nature of the allegations made in the criminal proceeding (primarily dishonesty and forgery), the prosecution witnesses may be able to construct their evidence if they are given advance notice of what Mr Pearson says about the allegations.
13Further, the criminal proceeding includes expert analysis of Mr Pearson’s devices, which reports are lengthy and complex. The impending committal proceeding requires Mr Pearson to spend considerable time instructing me and counsel retained in that proceeding in relation to each of the 68 charges mounted against him.
In Mr Pearson’s affidavit, he deposes to the following:
4I am concerned that if I have to properly state my defence or be subjected to other interlocutory procedures in this proceeding, there is a real risk that doing so will prejudice my criminal case.
5Except for some charges alleging attempts to pervert the course of justice and destruction of evidence, the charges against me relate to the period between 30 March 2018 and 23 December 2019. The substance of the charges allege that I falsified documents and dishonestly procured from the plaintiff in this proceeding a facility agreement on behalf of Frankston Commercial Investments Pty Ltd and the subsequent advances to that facility. In particular, charges 7, 15, 27, 28, 29, 40, 43, 54, 55 and 62 allege that I dishonestly obtained cash from La Trobe Financial Pty Ltd in the amount of $1,787,790.50.
6The plaintiff here claims an indemnity pursuant to an alleged agreement with me pursuant to which I am liable for the moneys advanced under a facility agreement entered into between the plaintiff and Frankston Commercial Investments Pty Ltd. The plaintiff alleges at paragraph 9 of its statement of claim dated 11 November 2022 that it advanced $1,787,790.50 (the exact amount the subject of my criminal proceeding) to Frankston Commercial Investments Pty Ltd.
7In properly stating my defence for these proceedings, including making admissions and denials in a pleading, I would be required to articulate my position in relation to the entry into the relevant agreements and the probity of each alleged advance pursuant to the facility agreement.
8These issues overlap precisely with the issues that will be covered in my criminal proceeding.
9If I am required to progress the civil proceeding by articulating matters relating to my relationship with other persons and my knowledge and involvement in both entering into the facility agreement with the plaintiff and the alleged advances, I would, in effect, waive my right to silence. I do not wish to do so.
10If this proceeding is not stayed, I will have to make a decision about whether to waive my privilege and right to silence in defending the plaintiff’s claim. If I were to do so, it will prejudice my criminal case; if I were not to do so, my defence of this proceeding would be hampered.
11Further, my work as a builder is very busy at the moment. Recently, I have been working up to 80 hour weeks on site. I anticipate that I will have to work similar hours for at least the next few months, until about 30 June 2023.
12If I had to take extra time off work in order to simultaneously prepare for my criminal proceeding and this proceeding, my business would suffer and I would face extra pressure in meeting my legal costs for each proceeding.
In Ms Seferis’s affidavit filed in opposition to the application, she exhibits copies of the facility agreement, the deed of guarantee and a certificate given pursuant to clause 8 of the Guarantee which certified the total amount of moneys payable by Mr Pearson as guarantor in connection with the Guarantee and the facility agreement. She otherwise deposes to the anticipated scope of discovery.
There is no dispute between the parties as to the principles to be applied in relation to an application for a stay of proceedings in circumstances where there are said to be concurrent or related civil and criminal proceedings.
The High Court in Commissioner of the Australian Federal Police v Zhao[1] and the Court of Appeal in the same case[2] made it clear that where a civil proceeding creates a real risk of prejudice to the defence for the criminal charges – which is to be one that is not fanciful or remote[3] - the applicant should, absent a dominant contradictory consideration, be entitled to a stay of the civil proceeding.
[1](2015) 255 CLR 46 (‘Zhao’).
[2]Qing Zhao v Commissioner of the Australian Federal Police [2014] VSCA 137.
[3]Crespin v Francis & Anor [2016] VSC 277 (‘Crespin’).
In Crespin, J Forrest J held that, subject to the primacy of an accused’s right to a manifestly fair criminal trial, the guidelines set out by Wooten J in McMahon v Gould[4] describe the manner in which an application for a stay should be determined.
[4](1982) 7 ACLR 202 (‘McMahon’).
Both parties accept that the guidelines offer assistance but need to be considered in the light of subsequent cases which have considered their application and the particular circumstances of the case before the Court.
The McMahon guidelines are:[5]
[5]Ibid [206].
(a) prima facie a plaintiff is entitled to have its 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 proceeding, 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) the court’s task is one of ‘the balancing of justice between the parties taking account of all relevant factors’;
(e) 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;
(f) one factor to take into account where there is 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;
(g) however, the accused’s right of silence does not extend to civil proceedings such that 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;
(h) the court should consider ‘whether there is a real and not merely notional danger of injustice in the criminal proceedings’ including by having regard to the following factors:
(i) the possibility of publicity that might reach and influence jurors;
(ii) the proximity of the criminal hearing;
(iii) the possibility of miscarriage of justice, eg, 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;
(i) the effect on the plaintiff must also be considered and weighed against the effect on the defendant; and
(j) in an appropriate case, the proceeding may be allowed to proceed to a certain stage, eg, setting down for trial and then stayed.
Mr Pearson placed significant reliance on the decision in Zhao.
Zhao was a case where the applicants sought a stay of civil forfeiture proceedings brought under the Proceeds of Crime Act 2002 (Cth) (‘POC Act’) pending the hearing and determination of related criminal proceedings.
One of the applicants (‘Jin’) had been charged with aiding and abetting another (‘Kim’) with dealing with money or property which were the proceeds of crime. The second applicant was Jin’s wife, who had not been charged.
The Commissioner of the Australian Federal Police (‘Commissioner’) obtained orders under the POC Act restraining the disposition of various properties in the name of Jin and his wife pending the hearing and determination of the forfeiture proceedings. The applicants subsequently filed an application for orders for the exclusion of two properties from the restraining orders made under the POC Act and soon afterwards filed applications pursuant to s 49 of the County Court Act 1958 (Vic) for a stay of the forfeiture proceedings and exclusion application until the hearing and determination of the criminal charges pending against Jin.
In the application for the restraining order, the Commissioner alleged that the property sought to be forfeited were proceeds of the commission of the offence of dealings with the proceeds of crime. The offence specified as the basis for the forfeiture proceeding therefore was the same as that to be prosecuted in the criminal proceeding. The High Court described the issues in the two proceedings as identical.
The primary judge rejected the application for the stay finding that there was no evidence as to how the applicants giving evidence in the forfeiture proceedings might give rise to a real risk of prejudice in the criminal proceeding. The Court of Appeal allowed the appeal and stayed the forfeiture proceedings. An appeal to the High Court against the decision of the Court of Appeal was dismissed. Relevantly, the Court of Appeal considered that the primary judge had erred in finding that there was no evidence as to how the applicants giving evidence in the forfeiture proceedings could result in a real risk of prejudice to Jin in the criminal proceeding. Jin had given evidence before the primary judge to the effect that if he had to make a detailed affidavit or be cross-examined as to the circumstances regarding the purchase of the restrained properties and the source of any relevant funds, there was a real risk that any such evidence would prejudice his criminal case.
More specifically, Jin’s affidavit also responded to an affidavit made by a Ms Nicholson (‘Nicholson Affidavit’) on behalf of the Commissioner. The Nicholson Affidavit referenced transactions between Kim and Jin’s mother, Moon, and otherwise matters involving Jin. Ms Nicholson deposed to various investigations that enabled her to form the belief that Kim did not hold assets in her own name but used other people such as Jin to hide the money and assets. This was the very gravamen of the criminal charges against Jin and was also foundational to the forfeiture proceeding and the restraining sough as an incident of those proceedings.
In Jin’s affidavit, he explained that in order to respond to the matters in Ms Nicholson’s affidavit, he would have to give evidence as to the purchase of the restrained properties, ownership of any bank accounts he held and the source of any funds into those accounts. These matters were directly relevant to the criminal charges.
The High Court recognised the risk of prejudice as plain given that the offences and the circumstances relevant to both proceedings were substantially identical. In those circumstances, to require Jin to state specific matters of prejudice before a stay could be contemplated, would make the risk of prejudice a reality by requiring him to reveal information about his defence which is the very situation which an order for a stay seeks to avoid.[6]
[6]Zhao (n 1) [43].
Of course, the High Court’s observations in Zhao arose in the particular context of forfeiture proceedings. The principal objects of the POC Act include depriving persons of the proceeds of and benefits derived from offences and to provide for restraining orders and confiscation orders.
Sections 17-19 make provision for restraining orders. Section 17 provides that a court having jurisdiction under the POC Act must on the application of the proceeds of crime authority order that the property of a person who has been convicted of an indictable offence must not be disposed of or must be dealt with only in specified circumstances. Section 18 provides for the making of a restraining order where a person is suspected on reasonable grounds of having committed a serious offence, while s 19 which was the relevant section upon which the application for the restraining order had been made, is directed to property and requires that the court make a restraining order if there are reasonable grounds to suspect that the property is proceeds of an indictable or other specified type of offence.
A person might effectively resist a forfeiture order by obtaining an order revoking the restraining order. Application may also be made under s 73 to exclude a specified interest in property from a forfeiture order.
Against the background of those circumstances, there was clear overlap between the circumstances which attended to Jin’s response to the forfeiture order and his application for an exclusion order and the matters that were the subject of the criminal charges. The former required Jin to explain how he had acquired the property in his name: the criminal charges required the Crown to prove that Jin had aided and abetted Kim in dealing with proceeds of crime by among other things holding assets in his name which represented the proceeds of crime.
Where the Commissioner satisfies the necessary evidentiary requirements so that the court is satisfied that a serious offence of some kind had been committed or that the property in question is the proceeds or an instrument of crime, a person with an interest in that property, such as Jin, is then faced with a choice as to whether to defend the proceeding. This will inevitably require that they provide evidence to counter that which was put forward by the Commissioner. Effectively, the POC Act puts the person in the position of having to establish relevantly that the properties were not acquired with the proceeds of or otherwise constituted an instrument of crime. In the circumstances confronting Jin, it was not difficult for the court to conclude that the circumstances were relevantly identical; Jin had been charged with aiding and abetting the third party, Kim, to deal with money or property that was the proceeds of crime in the form of living off the earnings of sex workers contrary to s 10 of the Sex Work Act 1994 (Vic).
In the present case, Mr Pearson points to the fact that the time period and amounts the subject of the charges in the table above correspond to the exact same amounts and cover the same period of time in respect of which La Trobe seeks to recover against Mr Pearson the amount unpaid under the facility agreement and thus under the Guarantee.
Mr Pearson therefore submits that the issues arising in the criminal proceeding and the civil proceeding are therefore ‘substantially identical (albeit that there is the additional element of the Guarantee in the civil proceeding).’
Mr Pearson submitted that if the civil proceeding is not stayed, he would be required to articulate his position at least in relation to his knowledge and involvement and that of others about circumstances surrounding:
(a) the entry into the facility agreement;
(b) each of the subsequent advances made allegedly pursuant to the facility agreement; and
(c) who received the benefit and control of each of the alleged advances.
He submits (but did not depose) that given that the allegations in the criminal proceeding include forgery and fraud, he is in a particularly vulnerable position with respect to the evidence that might be given at the forthcoming committal hearing by prosecution witnesses and that neither the prosecution nor its witnesses ought be given the advantage of (even potentially) knowing what Mr Pearson says about the matters the subject of the criminal charges and that to do so will encroach on the principle of fairness in the criminal process.
In the result, Mr Pearson submits that he is faced with an invidious choice either to maintain his silence to the detriment of his position as the defendant in the civil proceeding or to articulate his position in the civil proceeding and thereby prejudicing his position in the criminal proceeding.
The basis of the submission is first that the issues in the criminal proceeding and the civil proceeding are substantially identical and secondly, that in order to properly defend the civil proceeding Mr Pearson will be required to give evidence about his knowledge and involvement and those of others in the circumstances surrounding the entry into the facility agreement, advances made allegedly pursuant to the facility agreement and who received the benefit and control of each of the alleged advances.
In relation to the first proposition, I do not accept that the issues in the criminal proceeding and the civil proceeding are substantially identical. Unlike Zhao, I do not accept Mr Pearson’s characterisation of the similarities between the proceedings as involving overlap ‘precisely with the issues that would be covered in his criminal proceeding’. The conduct as alleged in the Criminal Charges for the most part preceded the drawdowns by the Borrower under the facility agreement. Whether the prosecution discharges its evidentiary onus of proving Mr Pearson’s alleged conduct eg, did he make a false document; was the information in the document false; did Mr Pearson know this; did he provide it to Ms Khouri; was his intention as alleged; and did La Trobe rely on it, are not in issue in the civil proceeding. The matters the subject of the Criminal Charges may have formed part of the background to the making of the various advances by the La Trobe, but it is the fact of the advances themselves which are material to the civil proceeding, not how the advances came about. In oral submissions, Mr Pearson correctly submitted that in the civil proceeding La Trobe will be required to prove the existence of the facility agreement, the existence of the Guarantee, including that Mr Pearson signed the Guarantee, and that the moneys were advanced pursuant to the facility agreement. These issues are all distinct from those that arise in relation to the Criminal Charges.
I accept that a stay of civil proceedings may be appropriate in some circumstances where the issues are not identical to those the subject of a criminal proceeding. I also accept that there may be a tension between the defendant in the civil proceeding adducing sufficient evidence to discharge the onus of establishing the basis for a stay and not revealing the information that would make the risk of prejudice a reality. How that tension is to be resolved will vary depending on the particular circumstances.
Here though, the only evidence which has been adduced by Mr Pearson is of the most general kind; in paragraphs 7 and 9 of his affidavit he deposes ‘I would be required to articulate my position in relation to the entry into the relevant agreements and the probity of each alleged advance pursuant to the facility agreement’, and ‘if I am required to progress this civil proceeding by articulating matters relating to my relationship with other persons and my knowledge and involvement in both entering into the facility agreement with the plaintiff and the alleged advances, I would in effect waive my right to silence (and) I do not wish to do so’.
It is not clear what this really means or how it might give rise to a defence.
As Mr Pearson’s submissions made clear, La Trobe’s proofs in the civil proceeding will extend to its entry into the facility agreement with the Borrower, the making of the advances under the facility agreement, Mr Pearson’s execution of the guarantee, non-payment under the facility agreement, demands under the guarantee and non-payment. La Trobe’s proofs do not appear complex; Mr Pearson’s status as a director of the Borrower is not disputed; La Trobe’s evidence on this application includes a copy of what purports to be a facility agreement apparently executed on behalf of the Borrower by its two directors which relevantly include Mr Pearson; production of a guarantee executed by Mr Pearson in the presence of an Australian legal practitioner within the meaning of the Legal Profession Uniform Law (Vic); production of business records evidencing the advances and the non-payment, production of the demands and the like. Absent a stay, ordinary rules of pleading will require Mr Pearson to admit, not admit or deny these things. Plainly a denial or non-admission could not prejudice him in the criminal proceeding. Admissions theoretically may, but it is not obvious how that could be so in light of the present evidence.
To the extent to which Mr Pearson’s evidence and the submissions foreshadow a wish to advance a positive defence and should be taken as conveying that the proffering of a positive defence may prejudice Mr Pearson in relation to the Criminal Charges, it is far from clear on the current evidence contained in Mr Pearson’s affidavit viz ‘the articulation of (my) position in relation to the entry into the relevant agreements and the probity of each alleged advance pursuant to the facility agreement’ or ‘articulating matters relating to my relationship with other persons and my knowledge and involvement in both entering into the facility agreement with the plaintiff and the alleged advances’, how those matters might give rise to a defence of the claim made by La Trobe against him in the civil proceeding, much less how the disclosure of those matters can create a real risk of prejudice for the Criminal Charges which is not fanciful or remote, such as to justify a stay. There is certainly no sufficient basis on the evidence to conclude that this is the case. In any event, such a circumstance could be sufficiently dealt with by Mr Pearson being relieved from filing a defence complying with rules 13.07, 13.10 and 13.2 of the Supreme Court (General Civil Procedure) Rules (Vic).[7] The present evidence falls short of establishing such an entitlement.
[7]Eg, Re Australian Property Custodian Holdings Ltd (in liq) (recs and mgs apptd) (controllers apptd)(No 2) (2012) 93 ACSR 130.
For completeness, I do not accept that the fact that Mr Pearson presently has significant work commitments and is also required to deal with the challenges that no doubt arise as a defendant to criminal proceedings at the same time as defending this proceeding are such as to justify a stay of the proceedings. As the McMahon guidelines recognise, prima facie a plaintiff is entitled to have its action tried in the ordinary course of the procedure and business of the court and it is a grave matter to interfere with such an entitlement by a stay of proceeding.
The mere existence of a heavy workload and a criminal action requiring the defendant’s attention at the same time falls well short, particularly in circumstances where the committal in respect of the criminal charges is not likely to be heard until June 2023 with any criminal trial resulting thereafter likely to be heard a considerable time later.
I am not satisfied that Mr Pearson has discharged the onus of establishing that the civil proceeding creates a real risk of prejudice which is not fanciful or remote to his defence of the criminal charges. In circumstances where La Trobe has a prima facie right to have its case determined, that conclusion compels the dismissal of this application.
In the circumstances, the application for a stay of this proceeding is refused. Orders will be made for the filing and service of a defence. I will hear the parties as to costs.
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