Rajput v Gill and Anor (Ruling)
[2022] VCC 314
•22 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-21-00961
| PARAMPREET SINGH RAJPUT | Plaintiff |
| v | |
| JATINDER SINGH GILL | First Defendant |
| and | |
| HARMEET BUMRAH | Second Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2022 | |
DATE OF RULING: | 22 March 2022 | |
CASE MAY BE CITED AS: | Rajput v Gill & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 314 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Defamation – application to stay proceeding
Legislation Cited: Defamation Act 2005 (Vic); Migration Regulations 1994 (Cth); Civil Procedure Act 2010 (Vic); Superannuation Guarantee (Administration) Act 1992 (Cth); Fair Work Act 2009 (Cth)
Cases Cited:Rayney v State of Western Australia [2019] WASCA 23; Lawrence and Hanson Group Pty Ltd (ACN 080 350 812) v John Stanley Young and Mary Anne Young [2016] VSCA 69; National Australia Bank Ltd v Human Group Pty Ltd [2019] NSWSC 1404; Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287; Bella Products Pty Ltd v Creative Designs International Ltd (2009) 258 ALR 538
Ruling: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Twidale | ASKY International Lawyers |
| For the First Defendant | Mr T Mullen | Pamanani Pty Ltd |
| For the Second Defendant | Ms P Wakhluk | Regal Melbourne Pty Ltd |
HER HONOUR:
1The first defendant seeks to stay the proceeding pending the hearing and determination of the Federal Circuit and Family Court of Australia proceeding number MLG2666/2021 (“the FCC proceeding”), or alternatively, to vacate the current trial date and relist for a hearing after the determination of the FCC proceeding on an estimate of five days.
2The second defendant supports the application but otherwise played no role in the hearing of the summons.
3The plaintiff opposes the application, although ultimately accepted that the current trial estimate of two days was not appropriate and argued that the Court should vacate the current trial date and relist the proceedings on a date after the hearing and determination of the FCC proceeding, but not otherwise stay the proceeding.
Background
4By his Further Amended Statement of Claim dated 27 October 2021, the plaintiff alleges that the first defendant published or caused to be published a post on a Facebook group page (“the First Publication”) and a comment to the first Publication (“the Second Publication”) which contained imputations that the plaintiff:
(a) does not comply with Australian employment laws and regulations;
(b) discriminated against or otherwise mistreated pregnant employees;
(c) commits immigration fraud on the Australian Government by:
(i)sponsoring students for Australian Permanent Residency only if the students pay money to him; and
(ii)demanding payment of $50,000 in exchange for such sponsorship;
(d) making false statements to the Australian Government concerning their employees; and
(e) commits tax fraud on the Australian Government.
5The plaintiff alleges that the second defendant published a post on Facebook which contained a video that contained imputations that the plaintiff:
(a) could be imprisoned for five years;
(b) did not comply with Australian employment laws and regulations;
(c) discriminated against or otherwise mistreated pregnant employees;
(d) commits tax fraud on the Australian Government; and
(e) commits immigration fraud on the Australian Government by demanding $50,000 from foreigners in exchange for sponsorship.
6The first defendant pleads that the publications are substantially true or true in substance. Alternatively, the first defendant pleads that he has a defence of common law qualified privilege in that the publications arose on an occasion of privilege in which he had a moral or social obligation to inform particular persons, being various groups of Punjabi-speaking Indian citizens and Melbourne residents, of information which they had a corresponding interest in receiving.
7The first defendant also pleads that he has a statutory defence of qualified privilege pursuant to s30(1) of the Defamation Act 2005 (Vic).
8The first defendant pleads in his defence the following material facts:
(a) He is the sister of Ms Gagandeep Kaur, an Indian citizen. Ms Kaur arrived in Australia on a student visa in 2009 and completed a Bachelor of Accounting in July 2018.
(b) She attended a meeting with the plaintiff in August 2018 in relation to a position in the plaintiff’s company, KPG Taxation. At that meeting she was told by the plaintiff that KPG would pay sponsorship and migration fees, a training fee, standard business sponsor fee and nominal fee, collectively the “sponsorship expenses”. She was also told she would be paid $21.45 per hour plus superannuation contributions, and would work 40 hours per fortnight until her “training visa” was issued, after which time she would work 38 hours a week.
(c) Ms Kaur worked as a trainee accountant from 27 August 2018 to 24 November 2018. In or around November 2018, the plaintiff told Ms Kaur that if she paid the sponsorship fees, he would reimburse her. She has not been reimbursed and she claims this is a breach of Australian laws and regulations relating to sponsorship of employees pursuant to the Migration Regulations 1994 (Cth).
(d) Ms Kaur further says that the plaintiff did not pay her any of the money she earned during this period, and did not pay her superannuation entitlements. These failures constituted breaches of Australian law.
(e) On 12 November 2018, the plaintiff signed a letter confirming that he would meet any sponsorship requirements pursuant to Ms Kaur’s sponsorship visa application. Ms Kaur returned to India on 29 November 2018 and applied for a training visa which was issued in January 2019. She arrived back in Australia on a sponsorship visa.
(f) She recommenced working with KPG Taxation on 4 February 2019 on the basis that she would work 38 hours per week at a rate of $21.45 per hour. On or around 18 February 2019, she informed the plaintiff that she was pregnant. After this she was directed to work at the KPG Taxation office in Craigieburn. Ms Kaur lived in Clayton South.
(g) On 21 February 2019 the plaintiff told Ms Kaur that he would not pay her salary until she or her brother, the first defendant, paid an amount equivalent to her salary to the plaintiff and that he would not reimburse the sponsorship expenses. He further told her that he would withdraw his sponsorship if she attempted to report him to government authorities.
(h) Ms Kaur needed evidence that she was being paid her salary from KPG Taxation to establish that she was complying with her visa conditions.
(i) The plaintiff did not pay her superannuation entitlements pursuant to his obligations under the Superannuation Guarantee (Administration) Act 1992 (Cth).
(j) In April 2019, the plaintiff told the first defendant that if he or Ms Kaur paid the plaintiff $50,000, he would get Ms Kaur a Sub-class 491 visa. The first defendant told the plaintiff that neither he nor Ms Kaur would pay him $50,000.
(k) Shortly after the meeting, Ms Kaur received a “warning letter” alleging that she was failing to perform her employment duties. She questioned the plaintiff’s sister, who worked at KPG Taxation, and was told that she was looking sickly and not attractive enough. Ms Kaur alleges that she was also harassed by a representative of KPG Taxation, a Mr Raj Sir.
(l) The plaintiff made false statements to the Fair Work Ombudsman about the number of people employed by KPG Taxation.
(m) The plaintiff failed to pay salary and superannuation entitlements to another employee, a Ms Navdeep Kaur.
Ms Kaur’s Legal Proceedings
9On 23 May 2020, Ms Kaur filed an unfair dismissal application against KPG Taxation in the Fair Work Commission.
10On 10 June 2020, Ms Kaur discontinued those proceedings. The first defendant’s solicitor, Mr Avinash Lohana, says in his affidavit of 23 February 2022 that the proceeding was discontinued because Ms Kaur accepted that she had made the wrong application out of time. The Court has no further information as to why this claim was discontinued. It does not appear that there was any settlement of the proceeding as neither party has put in evidence any document purporting to be a settlement agreement. It is clear that there was no determination by the Commission in the matter. I accept that it was discontinued by Ms Kaur with no adjudication on the merits.
11On 20 October 2021, Ms Kaur commenced proceedings in the Federal Circuit and Family Court of Australia against the plaintiff and his company, P & G Accounting Solution Pty Ltd, alleging breaches of the Fair Work Act 2009 (Cth) and her employment contract.
12In her Statement of Claim, Ms Kaur makes the following allegations of fact:
(a) the plaintiff offered her employment with his company, P & G Accounting Solution Pty Ltd, working a 40 hour fortnight during a training period and 38 hours per week after the issue of the Subclass 407 visa;
(b) the plaintiff said he would pay her $21.45 per hour, plus superannuation entitlements;
(c) the plaintiff promised to sponsor her for a Training Subclass 407 Visa and pay her sponsorship and migration agent fees, as well as travel expenses;
(d) the plaintiff said he would reimburse her for her sponsorship expenses if she paid them herself;
(e) the plaintiff requested she sign a contract in February 2019 which did not contain pay rates and contained a restraint of trade clause;
(f) the plaintiff said he would cancel her sponsorship arrangements if she did not sign the contract;
(g) the plaintiff told her that she would need to pay P & G Accounting Solution Pty Ltd her wages, taxation and superannuation before she would be paid any wages. Failure to make such payments would result in the termination of her employment and cancellation of her visa;
(h) the plaintiff told the first defendant that Ms Kaur would have to pay her own wages, taxation and superannuation in cash payments or the sponsorship arrangement could not continue;
(i) On 11 or 12 March 2019, the first defendant paid the plaintiff the sum of $2,600 in cash representing Ms Kaur’s gross salary for three weeks;
(j) On 13 March 2019, P & G Accounting Solution Pty Ltd paid Ms Kaur $2,220 in payment for the period 4 February to 24 February 2019;
(k) On 21 March 2019, Ms Kaur gave the plaintiff $1,700, representing two weeks gross salary;
(l) On 22 March 2019, Ms Kaur received payment of $1,426 from P & G Accounting Solution Pty Ltd;
(m) Between 1 April 2019 and 9 April 2019 Mr Raj Sir told her that she needed to pay the plaintiff $50,000, otherwise her employment and sponsorship would be terminated;
(n) The plaintiff confirmed to Ms Kaur that she was required to pay him $50,000 and asked Ms Kaur to arrange a meeting between the plaintiff and the first defendant;
(o) On 9 April 2019, the first defendant paid the plaintiff the amount of $1,700 representing two weeks of Ms Kaur’s gross salary;
(p) The plaintiff told the first defendant that Ms Kaur’s employment and sponsorship would be terminated if she did not pay him $50,000. The first defendant told the plaintiff that Ms Kaur would not pay this amount.
(q) Ms Kaur subsequently received an employment warning from P & G Accounting Solution Pty Ltd;
(r) On 10 April 2019, Ms Kaur received $1,426 from P & G Accounting Solution Pty Ltd as salary for the period 11 March to 24 March 2019;
(s) On 29 April 2019, Ms Kaur paid the plaintiff $1,700 representing two weeks’ gross salary;
(t) On 30 April 2019, Ms Kaur received the amount of $1,426 from P & G Accounting Solution Pty Ltd as salary for the period 25 March 2019 to 7 April 2019; and
(u) Ms Kaur did not receive any wages for her work after 7 April 2019. She was not reimbursed the sponsorship costs.
13In her Statement of Claim, Ms Kaur alleges that she was covered by the Banking and Finance Industry Award 2020 and that she did not receive the minimum rate of pay mandated by the Award. She makes a claim for underpayment in the amount of $18,124.70. Ms Kaur alleges she was not paid annual leave owing on termination in the amount of $1,850.26. She says she was not paid a notice period in the amount of $928.72. She was not paid overtime in the amount of $3,904.29. Her full superannuation entitlements have not been paid and she claims $1,944.74 in unpaid superannuation.
14She alleges further breaches of the Fair Work Act 2009 (Cth) and also claims for non-economic loss in the form of hurt, humiliation and distress.
15She claims that the plaintiff is liable for any breaches of the legislation by P & G Accounting Solution Pty Ltd by reason of the operation of s550 of the Fair Work Act 2009 (Cth).
16Ms Kaur’s FCC proceeding is listed for hearing in December 2022.
The First Intervention Order
17On 1 June 2020 the plaintiff made an application for an intervention order against the first defendant. In that application the plaintiff said:
“The respondent in this matter is the brother of a former employee that was employed by my accounting firm. I have known the respondent for approximately 1 year through mutual friends. The respondent’s sister was holding a 407 training visa which was sponsored by my accounting firm. The respondent’s sister was terminated from her employment with the firm in May 2019 due to her unsatisfactory performance and for not complying with company policies. I further notified the department of home affairs of her termination in November 2019. The respondent contacted me in early March 2020 asking me not to terminate his sister’s employment. When I rejected this plea, the respondent became wild and threatened that if his sister’s visa was affected due to the termination then he would kill me and harass me and my whole family. I ignored the threats and was again contacted by the respondent in early May 2020 advising that his sister’s visa had been affected by the termination of employment and again threatened to kill me and my whole family. The respondent has started defaming myself and my accounting firm by making baseless allegations through his Facebook posts, YouTube videos and a few community radio channels. The respondent has further shared these posts on the various community based Facebook pages and through commercial media as well. The respondent is continuously and aggressively harassing me and has ignored all requests to stop posting about myself and my accounting firm, including request sent from my lawyer. The social media posts contain serious allegations of fraud against me and calls me names such as ‘blood sucking leeches’. Comments made on the posts by the respondent’s friends state ‘brother, shoot a person like him at an intersection’. Other comments made on the posts encourage to keep an eye on my movements and if it is possible to know if I am travelling back to India to harm me physically. I have been receiving abusive and aggressive calls and texts from unknown numbers and I believe that this is most likely from the respondent’s friends, family or associates. I am afraid for my safety and that of my family. The respondent has threatened to kill my family and I on two separate occasions. I am fearful that the respondent may carry out his threats. I wish for the respondent’s behaviour to cease immediately and for him to stop defaming myself and my business through social media platforms.”
18As is common in applications of this type, an interim personal safety intervention order was granted ex parte in standard terms. The interim order remained in effect until a final order was made. Amongst other standard terms, the order required that the first defendant not “publish on the internet, by email or other electronic communication any material about the protected person and immediately remove anything previously published about the protected person”. The first defendant was content to comply with the other standard terms without any admissions, but would not agree to an order complying with the requirement not to publish anything concerning the plaintiff on the internet. The plaintiff would not agree to an order without that term. Accordingly the matter went to a final contested hearing in September 2021.
19On 10 September 2021, Magistrate Clifford dismissed the application after a two day hearing. In his oral reasons he made findings adverse to the credit of the plaintiff. He did not accept the evidence of the plaintiff that he had been “harassed and threatened a number of times”. He was not satisfied on the balance of probabilities that the alleged harassment had in fact occurred. He accepted the evidence of other witnesses, including that of the first defendant, over the evidence of the plaintiff. He noted that the plaintiff’s evidence about the employment of Ms Kaur during June to November 2019 was “clearly false”. Magistrate Clifford did not consider that the respondent’s publications on Facebook constituted a breach of the Personal Safety Intervention Orders Act of the type which would cause the plaintiff to fear for his safety. The Magistrate noted that “unacceptable” posts by others unknown to the first defendant were removed by him when they were brought to his attention. He noted that the application had been made “very shortly” after the plaintiff had become aware of the Fair Work Commission action. He noted that there were other proceedings filed which were in courts where the issues between the parties lie, and a “personal safety intervention order is not the appropriate forum for this dispute”.
The Second Intervention Order
20Seventeen days after the plaintiff’s first application for an intervention order was dismissed, the plaintiff made a second application for an intervention order against the first defendant. In this application the plaintiff alleges that the second defendant in this proceeding, Mr Bumrah:
“… threatened on behalf of himself and the respondent (the first defendant) that if the current County Court proceeding is not withdrawn that myself, my wife and my children will face serious consequences. Mr Bumrah also stated that he and the respondent have strong connection with the bad people and some powerful people in Indian Politicians (sic). Mr Bumrah also said that my whole family and I would be killed either here in Australia or upon visiting India. Mr Bumrah also threatened that something big had been planned to harm my family and I. On 16 September 2021 at approximately 1.00am an aggravated burglary took place at my home and our 3 cars and other valuables were stolen.”
21The plaintiff claims that the first defendant posted a comment, “I hope they are insured”, on a local Facebook page in relation to his wife’s post about the theft, and then immediately removed the comment. The plaintiff claims that this has caused him to suspect that he and his family are “continuously on target and stalked” by the first defendant and that he is scared and has a genuine fear.
22The second intervention order is listed for a final hearing on 11 May 2022.
The Legal Principles
23The Court has the power to make orders for a temporary stay including pursuant to:
(a) the inherent power of the Court, including to stay proceedings pending completion of related proceedings;[1] and
(b) under the Civil Procedure Act 2010 (Vic), to further the overarching purpose.[2]
[1] see for example, Rayney v State of Western Australia [2019] WASCA 23 at paragraph [47]; and Lawrence and Hanson Group Pty Ltd (ACN 080 350 812) v John Stanley Young and Mary Anne Young [2016] VSCA 69 at paragraphs [22]-[23])
[2] see for example National Australia Bank Ltd v Human Group Pty Ltd [2019] NSWSC 1404 at paragraphs [35]-[36], concerning the equivalent NSW CPA
24Temporary stays have been granted by courts where there are pending related proceedings, having regard to various considerations, including, relevantly:[3]
(i) which proceedings were commenced first;
(ii) whether the determination of one proceeding is likely to have a material effect on the other;
(iii) the public interest;
(iv) how far the proceedings are in each court;
(v) that the law should strive against permitting multiplicity of proceedings in relation to similar issues; and
(vi) generally balancing the advantages and disadvantages to each party. (citations in original, emphasis added)
[3]Rayney v State of Western Australia [2019] WASCA 23 at paragraph [48]
25Similar observations were made in Lawrence & Hanson Group Pty Ltd (ACN 080 350 812) v John Stanley Young and Mary Anne Young[4] in which the Victorian Supreme Court of Appeal observed that “for obvious reasons, it is undesirable that two courts should determine the same dispute” and that “practical considerations based on common sense and fairness should dictate which action should proceed first.”[5]
[4][2016] VSCA 69 (both based on Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287
[5]Approving of the observations of Finkelstein J in Bella Products Pty Ltd v Creative Designs International Ltd (2009) 258 ALR 538, 543 [22]
26In National Australia Bank v Human Group Pty Ltd[6], Henry J of the New South Wales Supreme Court observed that[7]:
“The exercise of the Court’s discretion to stay proceedings involves an assessment as to whether the dictates of justice require such a remedy: s 58 of the [NSW] CPA. This assessment must have regard to the overriding purpose of the CPA and rules of Court being to facilitate the just, quick and cheap resolution of the real issues in civil proceedings…”
[6] [2019] NSWSC 1404
[7] at [48]
The First Defendant’s Submissions
27The authorities establish that it is appropriate to grant temporary stays of proceedings in certain circumstances, and on the facts of this case, such a stay ought to be granted.
28Firstly, there is significant overlap between the issues raised in the FCC proceeding and this claim. In particular, whether there have been breaches of Australian law, for example the Fair Work Act 2009 (Cth) and whether the plaintiff on the one hand, or the first defendant and Ms Kaur on the other, are reliable and credible witnesses.
29Secondly, although different legal questions are relevant in each proceeding, the FCC proceeding is the more appropriate venue to test the allegations which are essentially common to both claims.
30Thirdly, the resolution of those issues in the FCC proceeding will likely lead to the resolution of this proceeding. In the event that it does not, this proceeding will be substantially and helpfully impacted by the findings in the FCC proceeding.
31Fourthly, the weight of considerations that the authorities require the Court to balance are heavily in favour of granting a stay.
32Fifthly, the prejudice to the plaintiff of having a delay in his defamation trial is mitigated by the fact that, if he succeeds in the FCC proceeding, he will have achieved a substantial vindication, there is no ongoing online publication of the allegedly defamatory material, and the only online statement is his own statement on his own website that Ms Kaur’s claims were “proven” false and baseless. This statement remains even though there has been no determination of any of her claims.
33Sixthly, the first defendant seeks to fund his defence by using crowd funding sources, which require the lifting of the interim intervention order. He has a viable defence, is a man of few means, working on a casual basis at a 7‑Eleven store, and is entitled to take necessary steps to aid in his defence. The prejudice to him in being unable to finance a legal defence is significant.
The Plaintiff’s Submissions
34The plaintiff submitted that there was little or no relevance to this proceeding of the outcome in the FCC proceeding and, accordingly, this matter should not be delayed pending that outcome.
35Further, the plaintiff submitted that this proceeding included matters that went well beyond and were not connected to the pleadings in the FCC proceeding.
36In applying the matters that the Court must consider to the facts of this case, the Court must have regard to the fact that this proceeding was issued more than a year before the FCC proceeding and that it has a fixed trial date.
37The Courts have recognised that a delay in justice is itself a source of prejudice, and the Court should be attracted to an outcome that provides the plaintiff with an opportunity to obtain the vindication of his reputation that he seeks.
38The public interest must also be in the plaintiff being provided a timely opportunity to vindicate his reputation.
39Even if it was appropriate to adjourn the trial to a date after the FCC proceeding, there is no justification for a stay, and all interlocutory steps can be completed in the usual way. To do otherwise would be to effectively indefinitely stay the proceeding, as the time after the FCC proceeding hearing until a determination is made is unknown.
40The lower risk to justice is to refuse the application for a stay and to adjourn the trial to a date after the FCC proceeding.
Analysis
Whether the determination of one proceeding is likely to have a material impact on the other
41I have included the allegations in both the FCC proceeding and the first defendant’s defence in considerable detail as it is clear that all the allegations relied on by the first defendant to establish his defences arise out of the circumstances of Ms Kaur’s employment. Consequently, there is significant overlap between those allegations and the allegations made by Ms Kaur.
42When a defence of justification is pleaded in a defamation proceeding, the Court must determine whether, if the imputations alleged arise, they are in fact true.
43Questions of fact such as:
(a) the terms of Ms Kaur’s contract and employment conditions;
(b) whether those terms and conditions complied with Australian law;
(c) whether she was underpaid pursuant to the Award; and
(d) whether the plaintiff required her to effectively pay her own salary under threat of losing her sponsorship and consequently her visa status;
are some of the matters that will need to be determined both in this proceeding and in the FCC proceeding and are likely to occupy significant Court time.
44Whilst both parties appropriately acknowledge that a finding in the FCC proceeding is not binding on this Court, it is difficult to believe that it would not be of significant value and, accordingly, be granted significant weight. I do not accept the submission that the FCC proceeding has no relevance to this proceeding.
45Where the imputations include alleged breaches of Australian law, and the defence relies on the operation of the relevant industry Award and the Fair Work Act 2009 (Cth), there is considerable value in those matters being determined by a tribunal with expertise in that area of law and where both parties are represented by specialist lawyers. I am satisfied there is a real risk that there would be a multiplicity of litigation dealing with the same issues, something that is generally to be avoided.
46Whilst there is little doubt that a finding in the FCC proceeding would be of direct relevance to this proceeding, the reverse would not necessarily be true. For example, in this proceeding if the Court were to make a finding that the plaintiff was in breach of Australian law, it would likely not need to delve into the specifics of which section of the Award was breached and what the quantum of underpayments might be. This is a factor to be weighed in considering which proceeding should go first.
First in time and the stage of the proceedings
47Turning to the other matters I must consider, it is true that this proceeding was commenced considerably earlier than the FCC proceeding, but it is also true that they are currently both at similar stages and the delay in this proceeding cannot be laid at the feet of the first respondent. Both proceedings have trial dates, but in neither proceeding have the interlocutory steps been completed, and discovery is likely to be completed earlier in the FCC proceeding. Despite the submissions of the plaintiff, I am not at all confident that, given the current state of this proceeding, he could be ready for a trial in May 2022. There are still matters to be resolved with regard to the pleadings, and discovery and mediation have not occurred. The fact that this proceeding was first in time is of little weight when both cases are now at a similar stage.
Prejudice to the parties, public interest, overarching purposes of the Civil Procedure Act 2010 (Vic)
48The delay of the defamation proceeding will cause prejudice to the plaintiff in terms of achieving vindication of his reputation. However an outcome in his favour in the FCC proceeding will go some way to providing that vindication. Given his financial situation, it is unlikely that a delay in receiving any damages awarded will cause him significant prejudice.
49On the other hand, forcing the first defendant to proceed with a trial now would cause him significant prejudice in his ability to fund his defence. Whilst his desire to and entitlement to crowd fund was not the primary focus of his submissions, it is another matter to be considered in all the matters I must weigh. I am satisfied that it is appropriate for the first defendant to be provided with a reasonable opportunity to obtain finances to fund a defence, and that having a properly funded defence will be likely to assist all the parties and the Court in the ultimate resolution of the matter. Were this the only argument relied on by the first respondent, it would be unlikely to be sufficient to persuade me that the stay ought to be granted much beyond the determination of the second intervention order application. However it is a factor to which I give some weight in assessing the application.
50The plaintiff ultimately submitted that it would be appropriate to adjourn the trial of this proceeding to a date after the FCC proceeding, but to complete the interlocutory steps in the meantime so that the matter would not be further delayed.
51However, after carefully considering the two proceedings and the degree to which the issues overlap, I consider it highly likely that the resolution of the FCC proceeding will have an impact on the pleadings in this case which will likely require amendment by one or more of the parties. A finding in the plaintiff’s favour in the FCC proceeding would make it nearly impossible for the first defendant to rely on a defence of truth, for example, Similarly, a finding adverse to the plaintiff in that proceeding would likely cause at least some of the imputations he relies on to fall away.
52Similarly other interlocutory steps, including discovery, interrogatories should they be sought, and mediation will inevitably be impacted by the findings in the FCC proceeding. There is a risk that any interlocutory steps undertaken prior to the resolution of the FCC proceeding would need to be revisited. This would lead to an unnecessary increase in the costs of litigation to all parties.
Findings
53Accordingly, I am satisfied that it is appropriate to stay this proceeding to a date after the resolution of the FCC proceeding. Once that matter has been heard and determined, a directions hearing can be listed to set a trial date and a timetable for completion of interlocutory steps. Given that the parties will have likely undertaken at least some relevant work in preparation of the FCC proceeding, I would expect that a truncated timetable will be fixed and the matter would be ready for trial in a shorter than usual timeframe. I do not anticipate that any formal application to lift the stay will be required, given the terms of the order I will make. To ensure that the matter does not fall out of the case management system operational in this list, I will fix it for an administrative mention in the first term of 2023, which can be vacated if the FCC proceeding has not resolved or converted to a directions hearing if required.
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