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: 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:
Mr Day applied for a stay of this proceeding at a case management hearing on 22 July 2020. The applicants consented to a stay.
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.
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.
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.
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
- AGLC
- Sebastian v Day [2020] FCA 1089
- Case
- [2020] FCA 1089
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the civil proceedings should be stayed until the determination of the criminal proceedings. The court was required to consider the appropriate exercise of its discretion under the Corporations Act and relevant case law concerning the stay of civil proceedings pending criminal trials. The court also had to determine the appropriate case management directions to ensure the efficient progression of the matter.
The court held that it was appropriate to exercise its discretion to stay the civil proceedings pending the outcome of the criminal proceedings. The court found that the matters were closely interrelated, and there was a significant risk of prejudice to the fairness of the criminal trial if the civil proceedings were to proceed concurrently. The court noted the importance of maintaining the integrity of the criminal justice process and the potential for the civil proceedings to influence the outcome of the criminal trial. The court further ordered that the civil proceedings be listed for a case management hearing within 28 days of the determination of the criminal proceedings to ensure the matter could be efficiently progressed. The parties were granted liberty to apply for further directions as necessary.
The court's orders included staying the civil proceeding until the final determination of the criminal proceedings in the Local Court. The court also listed the matter for a case management hearing within 28 days of the determination of the criminal proceedings. The parties were granted the liberty to apply for further directions on three days' notice. These orders were made in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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