Sebastian v Day

[2020] FCA 1089

FEDERAL COURT OF AUSTRALIA

Sebastian v Day [2020] FCA 1089

File number:

NSD 1341 of 2018

Judge:

THAWLEY J

Date of judgment:

29 July 2020

Legislation:

Crimes Act 1900 (NSW) s 192E(1)(b)

Cases cited:

Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 964

Commissioner of the Australia Federal Police v Zhao (2015) 255 CLR 46

Date of hearing:

22 July 2020

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Category:

No Catchwords

Number of paragraphs:

5

Solicitor for the Applicants:

Mr M Faraday of Henry William Lawyers

Counsel for the Respondents:

Mr T Jones

Solicitor for the Respondents:

Law Partners Australia

ORDERS

NSD 1341 of 2018

BETWEEN:

GUY SEBASTIAN

First Applicant

GUYTUNES PTY LTD

Second Applicant

AND:

TITUS DAY

First Respondent

6 DEGRESS MANAGEMENT PTY LTD

Second Respondent

NEXDIUS LIMITED

Third Respondent

JUDGE:	THAWLEY J
DATE OF ORDER:	29 JULY 2020

THE COURT ORDERS THAT:

1.The proceeding be stayed until the final determination of Regina v Titus Day (Local Court proceedings 2020/00194883) or further order.

2.The proceeding be listed for a case management hearing within 28 days of the determination of the proceedings referred to in Order 1.

3.The parties have liberty to apply on 3 days’ notice.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

1. Mr Day applied for a stay of this proceeding at a case management hearing on 22 July 2020.  The applicants consented to a stay.

2. The reason a stay has been sought is that, on 1 July 2020, Mr Day was charged with 61 counts of conduct contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), namely, that he dishonestly caused a financial disadvantage to Mr Sebastian. This has resulted in criminal proceedings in the Local Court of NSW.

3. It is common ground that there is factual overlap between the subject matter of this proceeding and the criminal proceedings.  This proceeding concerns, amongst other things, a claim that Mr Day withheld from the applicants, or fraudulently misappropriated, various identified amounts.

4. It is in the interests of justice to grant a stay.  That is because Mr Day would be at real risk of prejudice in the conduct of his defence in the criminal trial if this proceeding were not stayed – see: Commissioner of the Australia Federal Police v Zhao (2015) 255 CLR 46 at [35]; Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 964 at [55]. This risk is not outweighed by any other consideration.

5. For these reasons, the Court makes the following orders:

   (1)The proceeding be stayed until the final determination of Regina v Titus Day (Local Court proceedings 2020/00194883) or further order.

   (2)The proceeding be listed for a case management hearing within 28 days of the determination of the proceedings referred to in Order 1.

   (3)The parties have liberty to apply on 3 days’ notice.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.

Associate:

Dated:       29 July 2020