White v Australian Securities and Investments Commission

In the case of White v Australian Securities and Investments Commission, the appellant sought a stay of civil proceedings brought by ASIC against him and others, pending the outcome of criminal proceedings brought against him and the fifth respondent in New Zealand. The primary judge refused the stay, and the appellant appealed. The appeal raised questions about the application of principles in McMahon v Gould, the appellant's privilege against self-incrimination, and the relevance of section 1317N of the Corporations Act 2001 (Cth). The appellant argued that the New Zealand prosecution and the Australian proceedings had substantial areas of overlap, and that the stay should be granted to preserve his privilege against self-incrimination.

The legal issues before the court included whether the principles in McMahon v Gould should be reconsidered in light of subsequent cases, whether the primary judge had elevated case management principles above the appellant's fundamental common law right to the preservation of his privilege against self-incrimination, and whether the primary judge had correctly assessed the risk of prejudice to the appellant. The court also needed to determine whether the primary judge had erred in failing to apply section 1317N of the Corporations Act 2001 (Cth), which pertains to the timing of civil penalty proceedings in relation to criminal proceedings.

The court found that the primary judge had correctly applied the principles in McMahon v Gould, and had not erred in refusing the stay. The court held that the primary judge was not satisfied that the evidence of the appellant and the fifth respondent would tend to incriminate them in the New Zealand prosecution. The court further held that the appellant and the fifth respondent had not demonstrated that there was a real risk that they would face the dilemma of having to decide whether to give evidence or cross-examine witnesses so as to reveal their instructions. The court found that the injustice to the other respondents and the detriment to the public interest outweighed any injustice that may be suffered by the appellant and the fifth respondent. The court also found that the primary judge had not characterised the appellant's prejudice as nothing more than the loss of a "mere tactical advantage", and had not erred in failing to infer prejudice to the appellant. Finally, the court held that section 1317N of the Corporations Act 2001 (Cth) was not applicable to foreign criminal proceedings.

The appeal was dismissed, and the appellant was ordered to pay the costs of and incidental to the appeal of the first, fourth and sixth respondents.