Talbott v ACT

[2024] ACTSC 166

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Talbott v ACT

Citation: 

[2024] ACTSC 166

Hearing Date: 

3 June 2024

Decision Date: 

3 June 2024

Before:

Mossop J

Decision: 

See [21]

Catchwords: 

PRACTICE AND PROCEDURE – PLEADINGS – Claim for declaratory relief of alleged breach of human rights – claim arises out of search of plaintiff by corrections officers at the Alexander Maconochie Centre – proceedings likely to involve dispute about facts – appropriate for factual issues to be defined by way of pleadings – appropriate to make order for proceedings to continue as if commenced by Originating Claim

PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – Application for temporary stay – claim for declaratory relief of alleged breach of human rights – claim arises out of search of plaintiff by corrections officers at the Alexander Maconochie Centre – where employees of the defendant the subject of criminal investigation – conduct the subject of criminal investigation identical to subject matter of civil proceedings – corrections officers entitled to exercise their right to silence – where making statements in civil proceedings would be prejudicial to officers’ position in criminal proceedings – balance of justice lies in favour of stay – temporary stay granted

Legislation Cited: 

Court Procedures Rules 2006 (ACT), rr 39, 513

Evidence Act 2011 (ACT), s 128

Human Rights Act 2004 (ACT), s 40C(4)

Proceeds of Crime Act 2002 (Cth)

Cases Cited: 

Australian Securities and Investments Commission v Taylor [2023] FCAFC 189; 301 FCR 283

Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; 255 CLR 46

Eunice Daphne Washington (by her litigation guardian Edward Michael Byrt) v Titan Fan Products Australia Ltd & Ors [2020] SASC 230

McMahon v Gould (1982) 7 ACLR 202

Parties: 

Sean Talbott ( Plaintiff)

Australian Capital Territory ( Defendant)

Representation: 

Counsel

P Tierney and S Sharmin ( Plaintiff)

P Bindon ( Defendant)

Solicitors

Ken Cush & Associates ( Plaintiff)

ACT Government Solicitor ( Defendant)

File Number:

SC 526 of 2023

MOSSOP J:  

Introduction

1․There were two applications in proceeding before the court. The first was an application seeking leave to amend an Originating Application so as to remove all of the defendants and substitute the Australian Capital Territory. That was appropriate because each of the second to fourth defendants is an employee of the Territory and s 40C(4) of the Human Rights Act 2004 (ACT) requires that the Territory be the defendant. This application was not opposed and I made orders by consent at the commencement of the hearing.

2․The second application was an application by the defendant for a temporary stay of the proceedings and that the proceedings continue as if commenced by Originating Claim.

The proceedings

3․The proceedings relate to the conduct of a body search by three corrections officers at the Alexander Maconochie Centre (AMC). The search occurred as part of the admission process for a detainee into the AMC on 11 May 2023. The conduct of the search was captured on CCTV. The plaintiff seeks declarations that the conduct involved breaches of the plaintiff’s human rights and a failure to give any or any proper consideration to the plaintiff’s human rights. The plaintiff also seeks costs.

4․It is a notable feature of the claim that it only seeks declarations and costs orders. However, a personal injury claim notification has been given to the Territory. Counsel for the plaintiff was not in a position to explain whether the plaintiff intended to commence personal injury proceedings or, if not, why the personal injury claim notification had been given. It would plainly be inappropriate for there to be separate claims brought against the Territory in relation to a single incident. Nevertheless, it is significant, when considering any prejudice to the plaintiff that might arise from the grant of a stay, that only declaratory relief is being sought.

Pleadings

5․The grounds set out in the Originating Application and which will be set out in the Amended Originating Application are drafted in a very detailed manner. The proceedings are likely to be ones in which there is a contest over matters of fact alleged in the grounds. It is very clearly a matter in which it would be appropriate to have the factual issues defined by way of pleadings. It is therefore appropriate to make an order pursuant to r 39 of the Court Procedures Rules 2006 (ACT) because, within the terms of that rule, the proceedings “may more conveniently continue as if started by originating claim”. The submissions made on behalf of the plaintiff did not engage with the substantive point made about the appropriateness of the matter proceeding on pleadings and did not provide a proper basis for resisting the order. It will be necessary to make some consequential directions, including that the grounds specified in the Amended Originating Application be treated as a Statement of Claim.

Application for a temporary stay

6․This leaves the application for a stay. The application for a stay of the proceedings arises because the plaintiff made a complaint to police about the conduct of the corrections officers. Police are investigating the conduct. Police have not yet brought any charges in relation to the conduct. There is evidence that on 9 May 2024 some aspect of the investigation was referred by the Australian Federal Police to the ACT Director of Public Prosecutions for advice and that the criminal investigation was ongoing. The evidence did not make clear whether the matter referred to the Director was the brief of evidence as a whole or some discrete issue in relation to the matter.

7․In the meantime, given the ongoing nature of the criminal investigation, the three corrections officers are entitled to exercise their right to silence. As a result of the pending police investigation, the solicitor for the Territory has not sought instructions from the corrections officers involved as to what occurred or in relation to the specific allegations made by the plaintiff in the proceedings. There is CCTV footage of the incident and various incident reports available to the Territory. However, the solicitor for the Territory deposes that these are insufficient to respond fully to the allegations of fact set out in the Originating Application. One of the reasons for that appears to be that the allegations of fact include descriptions of acts or intentions which are very detailed and not able to be addressed by the information available. The Territory submits that it will be prejudiced in its defence of the proceedings if it is not able to obtain evidence about factual matters relevant to the conduct of the search from those corrections officers. Further, it submitted that it should not be placed in a position where it is required to seek, from its employees, statements on matters which may prejudice their employees’ defence of criminal proceedings which were “on the cards”

8․The most commonly cited example of a case in which a stay was granted as a result of pending criminal proceedings is Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; 255 CLR 46. That was a case in which proceedings under the Proceeds of Crime Act 2002 (Cth) were stayed pending the determination of criminal proceedings relating to the same conduct. The court held that in order to warrant a stay of the forfeiture proceedings, it was not enough that related criminal charges had been brought against a person and were still pending. It must be apparent that the person whose property was in question was at risk of being prejudiced in the conduct of his defence in a criminal trial. Where the offences and the circumstances relevant to the proceedings were identical, the risk of prejudice was plain.

9․The defendant placed significant reliance upon the summary of the approach to stays of proceedings where there are criminal proceedings on foot or contemplated given by Stanley J in Eunice Daphne Washington (by her litigation guardian Edward Michael Byrt) v Titan Fan Products Australia Ltd & Ors [2020] SASC 230. In that case, the application was being made by a person who was the subject of potential criminal proceedings. His Honour summarised the approach as follows (at [4]-[5]).

The Court has a wide jurisdiction to stay proceedings in the interests of justice. The relevant approach in considering whether to grant a stay in the interests of justice has been considered in a number of recent judgments, including by the High Court in Commissioner of The Australian Federal Police v Zhao. Those judgments concern applications for a stay of civil proceedings pending criminal proceedings. Almost without fail, the starting point for consideration of whether it is appropriate to exercise the discretion to stay civil proceedings pending the outcome of criminal proceedings are the guidelines laid down by Wootten J in McMahon v Gould. Equally, recent judgments emphasise the importance of recognising that these are merely guidelines. While they may offer some assistance, they need to be read in light of subsequent decisions.

In my view, the following relevant principles can be identified:

1.Courts have the power to control their proceedings and to order a stay in an appropriate case. It will be appropriate to do so where the interests of justice require such an order.

2.A plaintiff is prima facie entitled to have civil proceedings tried in the ordinary course. Accordingly, a stay requires justification on proper grounds.

3.The burden of demonstrating the existence of proper grounds for a stay is on the applicant.

4.A court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending. A stay of civil proceedings may be warranted if it is apparent that the accused is at risk of prejudice in the conduct of his or her defence in a criminal trial.

5.The risk of prejudice must be real, and in considering what the interests of justice require, that risk is to be weighed against the prejudice that a stay of the civil proceedings would occasion.

6.Prejudice to the accused’s right to silence or privilege against self-incrimination is a relevant and important factor in the exercise of the discretion. Some cases place this as the paramount consideration in the assessment of whether to grant a stay.

7.It may not be necessary for the applicant seeking the stay to state the specific matters of prejudice before a stay could be contemplated. As the High Court said in Zhao:

To require the second respondent to do so would be to make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid.

8.It is not necessary for the applicant for the stay to have been charged with a criminal offence. The real risk of prejudice or injustice can relate to an actual or potential criminal proceeding. It is sufficient that a criminal charge or charges is or are “on the cards”. The expression “on the cards” has been interpreted to mean reasonably possible or a reasonable possibility. Where allegations in a civil proceeding are of a very serious nature and magnitude, the pleading alone may be sufficient to establish that there is a real risk of criminal prosecution should the matters alleged be proven.

(Footnotes omitted)

10․Recognising that the matter of granting a stay is ultimately a discretion involving the balancing of justice between the parties taking into account all relevant factors, I consider that the relevant principles summarised by Stanley J provide a useful starting point.

11․Reference was also made in the course of submissions to the decision in Australian Securities and Investments Commission v Taylor [2023] FCAFC 189; 301 FCR 283, which made reference to the decision in McMahon v Gould (1982) 7 ACLR 202 as being “a judgment reflecting its time”. The comments in Taylor at [91]-[92], which were relied upon by the plaintiff in the present case, appear to be targeted at the approach taken by the primary judge in that case, which placed too great an emphasis upon the McMahon guidelines as being exhaustive of what might be relevant considerations in determining an application for a stay and which over‑emphasised the primacy of the criminal proceedings required to be shown to be displaced by the statutory scheme.

12․In the present case, the Territory is statutorily designated as the appropriate defendant in proceedings relating to the conduct of its employees: Human Rights Act, s 40C(4). This is not a case in which the defendant itself is subject to criminal charges. Rather, the prejudice faced by the defendant is derivative of the prejudice that would be faced by its employees if they made statements to their employer for use in these proceedings while still subject to a criminal investigation.

13․It is plain that the corrections officers in question are entitled to exercise their right to silence, at least while criminal proceedings against them are being contemplated. That is clearly the case at present.

14․I do not accept the submission made on behalf of the plaintiff that the evidence was inadequate. It is true that the Territory, being aware of the criminal investigation into the conduct of the corrections officers, has not attempted to take statements from them for the purposes of the civil proceedings. I do not consider that it is essential in the circumstances of the present case, where the subject matter of the civil proceedings is identical to the subject matter of any criminal case, for the Territory to put on evidence of unsuccessful attempts to obtain evidence from the corrections officers. That is because I consider that the circumstances are such that the prejudice to the corrections officers arising from making statements to the Territory in circumstances where the police investigation is ongoing is plain. In those circumstances, so too is the prejudice to the defendant, which would be required to plead to the allegations made against it.

15․Counsel for the plaintiff made reference to the evidentiary burden that applied to applicants for permanent stays in civil proceedings. I do not consider that the matters relevant to an application for a permanent stay can reasonably be applied in circumstances where a temporary stay is being considered.

16․The defendant will be significantly prejudiced by an inability to obtain instructions from those corrections officers so as to inform its approach to the proceedings. While certificates under s 128 of the Evidence Act 2011 (ACT) may be available to individual witnesses at a trial, the likelihood is that the corrections officers will, prior to being compelled to do otherwise, almost certainly exercise their right to silence. Given that I will order that the matter proceed on pleadings, that will make it difficult or impossible for the Territory to plead to the allegations against it. I do not consider that it would be appropriate to compel the Territory to plead in circumstances where it is unable to adequately investigate the facts because of the pendency of criminal proceedings.

17․I accept that any delay to the proceedings can result in incremental erosion of recollection and hence is prejudicial to the plaintiff. However, in this case, the incident in question is captured on CCTV and, as a consequence, that is a lesser consideration in the circumstances.

18․I accept the submission made on behalf of the plaintiff that there is a possibility that one or more of the corrections officers may choose to make a statement or plead guilty. In the event that occurred, that would provide a basis for reconsideration of the stay. However, until that occurs, there should be no compulsion which interferes with the corrections officers’ capacity to make decisions in the potential criminal proceedings.

19․As indicated earlier, in assessing where the balance of justice lies, it is also relevant to take into account that the plaintiff only seeks declaratory relief. Thus, any delay in the proceedings will only be a delay in relation to vindication by declaration and will not have financial consequences for the plaintiff.

20․I consider that it is appropriate to grant a temporary stay of the proceedings. The application in proceeding sought an order that was for six months or until the conclusion of the criminal investigation by the Australian Federal Police. I consider that it is more appropriate to make an order for six months but to grant either party liberty to apply to discharge or vary the stay. That will allow either party to apply for discharge or variation of the stay if there are developments in relation to the criminal proceedings that warrant a discharge.

Orders

21․The orders of the Court are:

1.The first, second, third and fourth defendants be removed as parties to the proceedings and the Australian Capital Territory be joined as the defendant to the proceedings.

2.Within seven days, the plaintiff is to file an amended Originating Application in the form which is exhibit AJH‑1 to the affidavit of Arabella Paris Jorgensen-Hull dated 25 March 2024.

3.Pursuant to r 513 of Court Procedures Rules 2006 (ACT), the plaintiff is to pay the defendant’s costs thrown away because of the amendment.

4.I grant leave to file the amended application in proceeding in court.

5.Pursuant to r 39(2)(a) of the Court Procedures Rules 2006 (ACT), the proceedings continue as if commenced by Originating Claim.

6.The grounds set out in the Amended Originating Application filed pursuant to the order made today be taken to be the plaintiff’s Statement of Claim.

7.The provisions of Practice Direction 2 of 2014 apply to the proceedings.

8.Following the filing of the Amended Originating Application, the proceedings be stayed until 2 December 2024 with liberty granted to each party to apply on seven days’ notice for the removal or variation of the stay.

9.The costs of the application in proceeding dated 3 April 2024 are costs in the cause.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 14 June 2024