Williams v TT-Line
[2019] VSC 869
•22 August 2019
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMERCIAL COURT ADMIRALTY LIST | Not Restricted |
S ECI 2018 0998
| ANDREW MICHAEL WILLIAMS, REBECCA ANN WILLIAMS, TWYNAM AGRICULTURAL GROUP PTY LTD (ACN 000 573 213) and WILLO POLO PTY LTD (ACN 149 110 412) | Plaintiffs |
| v | |
| TT-LINE COMPANY PTY LTD (ACN 061 996 174) and QUBE PORTS PTY LTD (ACN 123 021 492) | Defendants |
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JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2019 |
DATE OF RULING: | 22 August 2019 |
CASE MAY BE CITED AS: | Williams & Ors v TT-Line & Anor |
MEDIUM NEUTRAL CITATION: | [2019] VSC 869 |
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ADMIRALTY – Stay – Whether civil proceeding should be stayed pending the determination of a criminal proceeding relating to the same subject matter – Whether a stay is necessary for the protection of privilege against self-incrimination – Exercise of discretion – Factors relevant to stay of proceeding - Application refused – Supreme Court (General Civil Procedure) Rules 2015, r 23.01(1)(b) and inherent powers to stay.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr C Harrison QC | Ryan Legal |
| For the First Defendant | Mr M Scott QC with Ms M Norton | HFW Australia |
| For the Second Defendant | Mr M Harvey | Colin Biggers & Paisley |
HIS HONOUR:
This Application
The plaintiffs apply to stay this proceeding on the basis that a parallel criminal proceeding concerning largely overlapping facts has been commenced by Biosecurity Tasmania.
Background
Sixteen horses perish in transport
On 28 January 2018, thirty horses were transported on board the vessel Spirit of Tasmania 1 (vessel) owned by TT-Line Company Pty Ltd (first defendant) from Devonport in the State of Tasmania to Melbourne in the State of Victoria. It is alleged by the plaintiffs that sixteen of these horses died in transit between Tasmania and Victoria.
Eighteen horses were in a prime mover with registration number ‘CE96CK’ towing a trailer with registration number ‘TA27PF’ (CE96CK vehicle) and twelve horses were in a motor vehicle registration number ‘AM38VY’ (AM38VY vehicle).
The contractual arrangement pursuant to which the plaintiffs allege the horses were transported on 28 January 2018 is in summary that:
(a) on or about early December 2017, the first defendant entered into an agreement with Mr Andrew Williams (first plaintiff) in relation to the transportation of the plaintiffs’ horses, which were to be driven aboard the vessel in two vehicles, and transported aboard the vessel across Bass Strait, between Victoria and Tasmania;
(b) alternatively, the carriage of the horses as outlined in paragraph (a) was to be undertaken pursuant to a contract made on or about 23 December 2016, between the first plaintiff and Barnbougle Golf Pty Ltd.
Preceding the return carriage across Bass Strait to Melbourne referred to above, the same horses were earlier transported to Tasmania pursuant to one or other of the transport arrangements referred to in the last preceding paragraph. On that earlier trip to Tasmania, twenty-one horses were transported on 10 December 2017 in the CE96CK vehicle on a vessel from Melbourne to Devonport and twelve were transported from Melbourne to Devonport on 15 January 2018 in the AM38VY vehicle.[1]
[1]Affidavit of Shane Ryan, 18 January 2019, [6]-[7].
In their Statement of Claim the plaintiffs allege that the deceased horses died during their voyage across Bass Strait between the time of those horses boarding the vessel in Devonport on 28 January 2018 and about 2.00am the following day, 29 January 2018. All the horses which died were in the CE96CK vehicle.
The plaintiffs seek damages of $639,000 for the loss of the sixteen horses and $100,000 for loss of profit and wages.
Relevant history of proceeding to date
This proceeding commenced on 24 August 2018 and the following pleadings and other interlocutory steps have been taken in the proceeding:
(a) the plaintiffs filed their initiating Writ with this Court on 24 August 2018, followed by an Amended Writ, pursuant to the Order of Judicial Registrar Clayton made 21 September 2018. The plaintiffs have also filed an Amended Statement of Claim pursuant to the Order made 5 April 2019;
(b) the plaintiffs have made discovery by Affidavit of Documents on 23 May 2019;
(c) the first defendant filed its Defence on 19 October 2018 and an Amended Defence to the Amended Statement of Claim on 14 May 2019;
(d) the first defendant has also made discovery by filing its Affidavit of Documents on 26 March 2019 and its Supplementary Affidavit of Documents on 7 June 2019;
(e) the second defendant filed its Defence on 31 October 2018; and
(f) the second defendant made discovery by filing its Affidavit of Documents on 15 March 2019 and its Supplementary Affidavit of Documents on 21 August 2019.
Since the commencement of this proceeding numerous Orders have also been made including: on 21 September 2018 leave to the plaintiffs to amend their Statement of Claim; on 27 November 2018 timetabling a future directions hearing; on 6 December 2018 timetabling the first defendant’s cross-vesting application; on 4 February 2019 adjournment orders; on 13 February 2019 orders dismissing the first defendant’s cross-vesting application; on 14 February 2019 timetabling orders including transfer to the Admiralty List, discovery, interrogatories, appropriate dispute resolution, expert evidence, trial date and trial directions; and on 5 April 2019 timetabling orders including for pleadings, discovery, inspection, interrogatories, inspection of horse float, inspection of vessel, subpoena, expert evidence, trial date and filing of a court book, and orders setting the proceeding down for trial on 6 November 2019 on an estimated duration of 10 days.
The stay application
By Summons filed 16 August 2019, the plaintiffs brought an application to stay this proceeding. The plaintiffs contend that this proceeding ought to be stayed until the conclusion of criminal charges which have been brought against the first plaintiff and the first defendant, and another, by Biosecurity Tasmania, in relation to the transportation of the eighteen horses in the CE96CK vehicle.
The separate criminal proceeding
On or about 7 June 2019, the first plaintiff was charged by the Director of Biosecurity Operations, Biosecurity Tasmania (Biosecurity Tasmania) with seventeen criminal offences. These charges include, one Charge brought pursuant to s 7 of the Animal Welfare Act (Tas) (Animal Welfare Act) and sixteen Charges brought pursuant to reg 34(6) of the Animal Welfare (Land Transport of Livestock) Regulations 2013 (Tas) (Animal Welfare Regulations). Each Charge arises in relation to the transportation of the horses departing Devonport, Tasmania on 28 January 2018 in the CE96CK vehicle, the subject of this proceeding.
The first defendant has also been charged with offences arising out of the death of the horses. Additionally, Charges in relation to the unharmed horses have also been laid against the horse float driver of the AM38VY vehicle.
Animal Welfare Act - Particulars of Charge 1 against the first plaintiff
In the said criminal proceeding, Biosecurity Tasmania alleges that the method of management of the horses by the first plaintiff contravened s 7 of the Animal Welfare Act in that, on or about 28 January 2018, having care or charge of a group of animals, namely eighteen horses, the first plaintiff transported those horses in the CE96CK vehicle from Barnbougle (near Bridport in Tasmania) to Devonport in Tasmania and then onward to Yarra Glen in Victoria using a method of management reasonably likely to result in unreasonable and unjustifiable pain and suffering to the animal or animals in the group.
The further particulars of Charge 1 under the Animal Welfare Act are:
(a)loading the horses in the transport and trailer unit 2 per stall;
(b)using a transport and trailer unit where the ventilation vents were of inadequate size, allocation and placement to enable and encourage the escape of hot air from the trailer;
(c)using a transport and transport unit that prevented adequate monitoring of the horses; and
(d)checking the horses an hour following disembarkation.
Animal Welfare Regulations - Particulars of Charges 2-17 against the first plaintiff
Furthermore, in relation to each horse which died, the first plaintiff was charged (sixteen charges in total) under reg 34(6) of the Animal Welfare Regulations. Biosecurity Tasmania in this regard alleges that the first plaintiff, in transporting each relevant horse across Bass Strait, failed to ensure that the horse was individually stalled, which in turn contravened reg 34(6) of the Animal Welfare Regulations.
Biosecurity Tasmania also alleges that in breach of reg 34(6) of the Animal Welfare Regulations the first plaintiff, on or about 28 January 2018, at Devonport in the State of Tasmania, being a person transporting a horse across Bass Strait failed to ensure that the horse was individually stalled.
The plaintiffs’ application for a stay is supported by an Affidavit of Shane Ryan sworn 21 August 2019 (Ryan Affidavit).[2] Mr Ryan is the principal solicitor of the firm Ryan Legal who act for the plaintiffs in this proceeding.
[2]The exhibits to the Ryan Affidavit are: letter from the plaintiffs’ solicitors to the second defendant’s solicitors dated 2 July 2019 (Exhibit ‘SAR-1’); Order dated 26 July 2019 (Exhibit ‘SAR-2’); letter from the Department of Primary Industries, Parks, Water and Environment to the plaintiffs’ solicitors dated 7 March 2018 (Exhibit ‘SAR-3’); letter from the plaintiffs’ solicitors to the Department dated 9 March 2018 (Exhibit ‘SAR-4); letter from the Department to the plaintiffs’ solicitors dated 14 March 2018 (Exhibit ‘SAR-5’); Summons and particulars of the complaint directed at the first plaintiff (Exhibit ‘SAR-6’); Tasmanian Government press release, ‘Charges Laid Following Completion of Horse Death Investigation’(Exhibit ‘SAR-7’); letter from the Department to the first plaintiff dated 4 June 2018 (Exhibit ‘SAR-8’); letter from the Tasmanian Office of the Director of Public Prosecutions to Bold Lawyers dated 17 July 2019 (Exhibit ‘SAR-9’); letter from the first defendant’s solicitors to the plaintiffs’ solicitors dated 19 August 2019 (Exhibit ‘SAR-10’); and letter from the plaintiffs’ solicitors to the first defendant’s solicitors dated 21 August 2019 (Exhibit ‘SAR-11’).
In summary the Ryan Affidavit states that:
(a) On 7 March 2018, the plaintiffs’ solicitors received a letter from the Department of Primary Industries, Parks, Water and Environment, (the Department) requesting voluntary co-operation from the first plaintiff with respect to an investigation concerning the death, on or about 28 January 2018, of the sixteen horses. The letter stated that any voluntary interview would be conducted under and subject to the usual caution, and the same letter also made reference to the Department’s powers of compulsion under the relevant legislation.[3]
[3]Ryan Affidavit, [5].
(b) In response to a letter dated 9 March 2018 from the plaintiffs’ solicitors, the Department wrote to the plaintiffs’ solicitors on 14 March 2018, and specifically identified the Department’s statutory powers of compulsion under pt 3 of the Animal Welfare Act, and pt 8 of the Animal Health Act 1995. The Department also advised that any information provided under legal compulsion would not be admissible as evidence in any civil or criminal proceeding save for proceedings which may arise under s 26 of the Animal Welfare Act and/or s 76 of the Animal Health Act.[4]
[4]Ibid [6].
(c) Following the Department’s above correspondence, the first plaintiff declined to be interviewed.[5]
[5]Ibid [8].
(d) As outlined in paragraphs [10] and [13] to [15] above, on or about 7 June 2019, the first plaintiff was charged by Biosecurity Tasmania with seventeen criminal offences.[6]
[6]Ibid [9]; Each charge arose from the transportation of the horses between 28 January 2018 and 29 January 2018, being the subject of this proceeding.
(e) It is apparent from the particulars to Charge 1, that the Tasmanian prosecuting authority has formed the view that the issues of ventilation and loading horses two to a stall, were a significant cause of the death of the polo ponies. And, it follows, that view is sufficiently strongly held to seek convictions to the relevant standard of proof.[7]
[7]Ibid [14].
(f) On 2 July 2019, the plaintiffs’ solicitors wrote to the second defendant’s solicitor stating:
As to the future conduct of the proceeding, we note that charges have been laid. This raises the possibility that questions of self-incrimination may become relevant to, discovery obligations, answers to interrogatories and sworn evidence at a hearing. Further, and perhaps more importantly, it seems clear from the media release that the Department of Primary Industries, Parks, Water and Environment, will contend, should they secure convictions on some or all of the charges, that the offences allegedly committed were implicated in, or were a cause of, the horses’ death. Any such contention, and any evidence in support of it, is a matter of considerable interest to all parties to the civil litigation.
It follows that we are instructed to seek a stay of the current proceeding, pending hearing and determination of the charges laid.[8]
[8]Ibid Exhibit ‘SAR-1’.
(g) In a letter dated 4 June 2018 the Chief Veterinary Officer of the Department wrote to the first plaintiff, care of his solicitors, amongst other things stated:
Preliminary Findings relating to the cause of death
Based on the analysis of our veterinary officers, it appears that the placement, size, and number of vents in the affected transport unit may not provide for adequate ventilation. In particular the current vent layout may not encourage air convection, potentially resulting in stagnant air. Where pockets of stagnant air contain one or more animals, the available oxygen inside that pocket can be rapidly consumed. This is supported by the pathology findings showing evidence of ‘considerable respiratory effort immediately prior to death’.
The rear of the affected transport unit has features that may allow sufficient air convection, such as the gap remaining around the closed tail gate/ramp and small holes in the walls near the roof. The two surviving horses were reportedly located at the back of the unit, and this may explain why they survived.
The unaffected transport’s vent placement appears more likely to encourage air convection, given that the vents run the length of the unit and there is a permanent opening at the top of the tail gate/ramp when closed.[9]
[9]Ibid Exhibit ‘SAR-8’.
(h) The first plaintiff has retained the services of Bold Lawyers, in relation to the criminal charges. Ryan Legal is advised by Bold Lawyers that a further mention in relation to the prosecutions is likely to occur on 7 October 2019 and that the criminal charges are not likely to be dealt with by the Tasmanian Court before March 2020.[10]
(i) The issue of the horses’ cause of death is of central importance in this proceeding. However, notwithstanding extensive efforts on the plaintiffs’ part, they have been unable to obtain expert evidence to the civil standard required, as to the cause of the horses’ deaths and no such evidence has been served by either defendant in relation to this issue. On this issue the Ryan Affidavit adds that:
The first defendant in its current defence, at paragraphs 27 and 28 makes allegations of contributory negligence founded on the same issues. The question of why the polo ponies died remains, in a circumstance in which the same trailer, carrying polo ponies on previous occasions, on the same deck of the same vessel, on the same voyage, resulted in no mishap. There is much material in the prosecution brief, of which the plaintiffs to date have been hitherto unaware, and which is relevant to the cause of death of the horses.[11]
[10]Ibid [15] and [16].
[11]Ibid [17].
Plaintiffs’ submissions - stay application
In support of its stay application the plaintiffs in summary submitted that:
(a) Although the issue of the horses’ cause of death is of central importance in this proceeding, notwithstanding extensive efforts on the plaintiffs’ part, they have been unable to obtain expert evidence to the civil standard required, as to the cause of the horses’ deaths and no such evidence has been served by either defendant in relation to this issue.[12]
[12]T5.21-22.
(b) Senior Counsel for the plaintiffs submitted that there appeared to be a large volume of material in the prosecutor’s brief,[13] and submitted that there is likely to be further material as ‘foreshadowed in the prosecution material that no one has seen’.[14] Accordingly, an important factor in support of the stay application was that material yet to be obtained by the plaintiff may assist in establishing negligence on the part of TT-Line.[15]
[13]T5.28-31.
[14]T6.3-5; Ryan Affidavit, [16].
[15]T6.21-31.
(c) A further important factor in support of the stay sought relates to the future conduct of the proceeding. As a result of the first plaintiff and others being charged with criminal offences in relation to the carriage and death of the horses there is a risk that questions of self-incrimination may arise in relation to discovery obligations, answers to interrogatories and sworn evidence at a hearing of this proceeding.
(d) It appears to be clear that the Department of Primary Industries, Parks, Water and Environment will contend that should they secure convictions on some or all of the charges, the offences allegedly committed were implicated in, or were a cause of, the horses’ death. The plaintiffs submit that any such contention, and any evidence in support of it, would be of considerable interest to all parties to the civil litigation.
(e) Unless this proceeding is now stayed the first plaintiff’s disclosures and evidence given in this proceeding are likely to give rise to an unacceptable risk that such disclosures and evidence may prejudice the first plaintiff in the pending criminal proceeding in Tasmania.
First defendant’s submissions - stay application
In opposition to the plaintiffs’ stay application, the first defendant submits in essence that:
(a) Although it may choose not to resist the plaintiffs’ application for a stay of this proceeding if that application were brought on proper material, and it would not object to the plaintiffs putting on further supportive material to cure its presently deficient application for a stay, at this point of time the first defendant vigorously opposes the plaintiffs’ present application because it is unsubstantiated and not made out on present materials and the plaintiffs’ present arguments.[16]
[16]T11.22-27, T22.12-21.
(b) The plaintiffs’ application for a stay has not been timely given that the plaintiffs have been aware since March 2018 of the instigation and prosecution of investigations by Tasmanian authorities which have now led to the criminal proceeding upon which it partially relies.[17]
[17]Ryan Affidavit, [5] and [8] and T12.22-25.
(c) In relation to the immediately preceding sub-paragraph, the first defendant also emphasises in this regard that, to date, both defendants have been put to considerable trouble and expense in investigating relevant matters and in preparing for trial.[18]
[18]T16.3-16.
(d) This proceeding falls within a separate class of case than the class of cases where a defendant, as distinct to a moving party, is the subject of a criminal prosecution and also a civil proceeding with overlapping subject matter and therefore does not wish to divulge to the criminal prosecution any of his defences by disclosing something in defence of the civil proceeding.[19]
[19]T13.13-20.
(e) It is important to differentiate between situations justifiably based on the right to silence and the privilege against self-incrimination being infringed and situations where the person so involved, has a position which has been fully disclosed and appears to be relying on the right to silence and the privilege against self-incrimination to his or her tactical advantage.[20]
[20]T13.21-29; Re AWB Limited (No 1) (2008) 21 VR 252.
(f) The plaintiffs have failed to establish that there is a risk of prejudice to the plaintiffs, and in particular to the first plaintiff, arising or which might arise, if this proceeding continues and is tried in circumstances where the first plaintiff is, or will be, the subject of the said criminal proceeding in Tasmania. The first defendant criticises this basis for the plaintiffs’ stay and submits that such a basis is not based upon sufficiently concrete material which in turn establishes a sufficient likely risk or prejudice to the first defendant. In particular the first defendant points out that the plaintiffs have not condescended to identify the overlap of the first plaintiff’s evidence in this proceeding and likely evidence, or areas of interrogation of the first plaintiff in the forthcoming Tasmanian criminal proceeding.
(g) At any event, were the plaintiffs able to sufficiently identify potential overlap of likely evidence in this proceeding and the pending criminal proceeding in Tasmania, it is likely that in this proceeding orders could be made to manage and structure this proceeding so as to prevent potential prejudice to the first plaintiff of the type hypothetically and generally postulated by the plaintiffs.
(h) It is not possible to draw a conclusion about maintaining the trial date or not because the first plaintiff has not been forthcoming with the Court as to whether the first plaintiff has any probative evidence to give personally in this proceeding, including about the matters the subject of the Tasmanian criminal proceeding, nor has the first plaintiff been forthcoming as to how he plans to investigate the prosecution brief, or about when he proposes to do so, nor in relation to what experts he will call to support his case in this proceeding.
(i) There may be approaches to the way in which the Court deals with its ultimate reasons for judgment which could ameliorate the potential risk or prejudice to the first plaintiff, and any relevant others, in relation to the pending criminal proceeding in Tasmania.[21]
[21]ASIC v ANZ Banking Group Limited (2019) FCA 964 at [51]-[63] and [71], [75], [78], [80] and [93].
Second defendant’s submissions - stay application
The second defendant’s position was neutral as to a stay,[22] and its position with respect to the pending trial is that it should commence and proceed as scheduled on 6 November 2019.[23]
[22]T32.26-28.
[23]T30.20-23.
Considerations
Power to stay the proceeding
The Court has power to stay a proceeding in appropriate circumstances pursuant to r 23.01(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 and also pursuant to the Court’s inherent jurisdiction.[24]
[24]McMahon v Gould (1982) 7 ACLR 202; Re AWB Limited (No 1) (2008) 21 VR 252, De Simone v Bevnol Constructions and Developments Pty Ltd (2010) 30 VR 200, McLachlan v Browne (No 9) [2019] NSWSC 10, and Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 (‘Zhao’).
The Court’s power to control its proceedings and to order a stay in an appropriate case is informed by the requirements of the interests of justice in each case.[25]
[25]Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, [36]; CFMEU v ACCC (2016) 242 FCR 153, [22] (‘CFMEU’).
Guiding principles in relation to a stay of proceedings
A plaintiff is prima facie entitled to have its civil action tried in the ordinary course and a stay is therefore a significant curial intervention which requires adequate justification on proper and persuadable grounds. The applicant for a stay bears the burden of demonstrating such proper and persuasive grounds and doing so on appropriate material.[26]
[26]Zhao (2015) 255 CLR 46, [39]; McMahon v Gould (1982) 7 ACLR 202 at 206.
The considerations which inform the Court in relation to whether it is just and appropriate to stay a proceeding include balancing the competing interests of justice as between the parties, taking into account all relevant factors including detriment and prejudice to the party potentially exposed to self-incrimination and prejudice which a stay of proceeding will or may alleviate.[27]
[27]Zhao (2015) 255 CLR 46, [47] and [50]; CFMEU (2016) 242 FCR 153, [22]; Refer to paragraphs [24]-[29] of these Reasons; Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16, 19; see also Australian Securities Commission v Kavanagh (1993) ACSR 69, 72 (VSC).
Each case must be judged on its merits and the factors that might individually or in combination be relevant to the exercise of the discretion are not rigid, prescriptive or exhaustively identified.[28]
[28]ACCC v CFMEU [2016] FCA 504 at [51].
A civil proceeding will not be automatically stayed simply on the basis that there is, or may be, a parallel criminal proceeding involving the same or related subject matter. It must be sufficiently established that in the circumstances there is a real risk of prejudice to the relevant party.[29]
[29]Zhao (2015) 255 CLR 46, [35]; CFMEU (2016) 242 FCR 153, [22]; Ransley v Commissioner of Taxation [2016] FCA 778, [22].
The potential key prejudicial factors in applications of this type are the right to silence and privilege against self-incrimination.[30]
[30]Zhao (2015) 255 CLR 46, [42]-[47]; CFMEU (2016) 242 FCR 153, [23]; Ransley v Commissioner of Taxation [2016] FCA 778, [24]-[30]; Obeid v Commissioner of Taxation [2017] FCA 1135 at [4].
The relevant risk of prejudice sought to be relied upon to justify a stay must be real, and not based on theoretical or contingent matters.[31] In each case the Court’s exercise of discretion must be evaluated on its merits of the relevant discretionary factors and the relevant features of the particular matter in issue.
[31]CFMEU (2016) 242 FCR 153, [22].
The principal disentitling factors on the stay application
Would the plaintiffs’ evidence at trial give rise to prejudice and/or self-incrimination?
In this matter, on the plaintiffs’ materials and submissions, I am not persuaded that the first plaintiff has sufficiently identified how the suggested privilege against self-incrimination would arise if this civil proceeding were to proceed.
In summary, the plaintiffs’ present application is wanting, generally and in particular in relation to the following aspects:
(a) On this application there is in my view no adequate identification by the first plaintiff as to the likely detrimental or prejudicial issues and evidence to be adduced in the present civil proceeding which will or may affect the parallel pending criminal proceeding brought by Biosecurity Tasmania against the first plaintiff and first defendant.
(b) On this application there is in my view no convincing explanation as to the way, or ways, in which this civil proceeding would disclose to the prosecution in the criminal proceeding something it does not already know. The issues raised in this proceeding are pleaded, and in parts particularised, and the plaintiffs have not identified what more would likely occur during the course of a civil trial in this proceeding that would disclose to the prosecution of the said charges, something that the prosecutors do not already know.
(c) The plaintiffs have not successfully sought to sufficiently identify with any degree of specificity what evidence the first plaintiff is likely to give and address in this proceeding and how such evidence may expose the first plaintiff in this proceeding to prejudice in the nature of self-incrimination, or other potential prejudice, in the parallel criminal proceeding.[32] This key area of potential justification for the orders sought by the plaintiffs is amorphous, ill-defined and ultimately insufficient to discharge the plaintiffs’ onus on this application. Ultimately, the plaintiffs’ application fails to sufficiently establish that the outlined concerns are real, rather than theoretical.
[32]Philippine Airlines v Goldair (Aust) Pty Ltd [1900] VR 385 at 389.
(d) The first plaintiff has not referred to any particular evidence in this proceeding which could, on a rational basis, give rise to a risk of self-incrimination by the first plaintiff. Neither have the plaintiffs identified with adequate precision, the nature of the risk which they assert affects the first plaintiff and why in the interests of justice this civil proceeding should be delayed.
(e) It is not enough in the above circumstances[33] to simply rely upon the fact of a parallel criminal proceeding arising from the same set of circumstances.
[33]See ASIC v ANZ Banking Group Limited (2019) FCA 964; see also: CFMEU v ACCC [2016] FCAFC 97, [34] and [35].
(f) In the first defendant’s pleadings it challenges the suitability of the CE96CK vehicle, the adequacy of the ventilation in the CE96CK vehicle, the number of horses which could safely be loaded onto the CE96CK vehicle and the need to individually stall the horses are each specifically identified.[34] However, prima facie, these matters are likely to be addressed by the evidence of expert witnesses and are unlikely to be the subject of the evidence of the first plaintiff. It has not been shown, even generally, in what respects the first plaintiff is likely to provide any evidence as to these matters at trial.
[34]First Defendant’s Defence, 14 May 2019, [27] and [28].
(g) Nor have the plaintiffs advanced any detailed evidence about the likely future course of either the civil or criminal proceeding, other than submitting that the related criminal matter is not likely to be heard before March 2020.[35]
[35]Ryan Affidavit, [16].
(h) The prejudice of likely delay in this proceeding has not been meaningfully addressed by the plaintiffs. There is no evidence which explains the progress and remaining steps (and their duration) in the relevant criminal proceeding, or informs the likely impact of that proceeding on this civil proceeding. In this regard delay may be most important, including because it may give rise to, amongst other consequences, adverse impact on the marshalling and presentation of evidence and when it is appropriate for the trial to occur. At present the plaintiffs’ evidence does not adequately address these issues.
(i) Furthermore, this civil proceeding is well advanced and many interlocutory steps have been taken to date without reservation or objection by the plaintiffs. Such steps have been taken by the plaintiffs, including the provision of discovery and further and better particulars, notwithstanding that the plaintiffs’ Affidavit in support of this application acknowledges that the plaintiffs, from about the first week of March 2018, were on notice as to the likelihood of an investigation by the said Tasmanian authorities focused on the death of the subject horses, which it is now clear has led directly to the pending parallel criminal proceeding to be heard as early as 7 March 2020. Accordingly, this proceeding was commenced and pleaded in circumstances where it was known by the plaintiffs they were under investigation.[36] Further, the plaintiff has delayed bringing on this application from about the time of the said realisation in March 2018 to mid-August 2019.
[36]Ryan Affidavit, [5]-[8].
(j) To date both defendants have been put to considerable expenditure of time and effort and expense so as to advance this proceeding to the stage it is at.
(k) During the course of argument on the plaintiffs’ application for a stay the plaintiffs clarified that they considered that the remaining interlocutory steps in this proceeding are likely to be minor and limited and will include only supplementary further discovery and the provision of limited further and better particulars together with trial related orders in relation to the presentation of evidence by the plaintiffs. Therefore, the position appears to be that the plaintiffs have taken steps to prosecute this proceeding since August 2018 to date, including the delivery of pleadings, making discovery and answering interrogatories, without objection, and without seeking to have this proceeding stayed, and have done so aware of the real prospect of the criminal proceeding being brought against the first plaintiff since about March 2018. The actuality of such criminal proceeding occurring on 7 June 2019.
(l) Furthermore, the plaintiffs, including the first plaintiff, do not object to the remaining interlocutory steps referred to in the orders being made today referred to in in these Reasons. The plaintiffs have not objected to taking those further interlocutory steps on the basis that they will or might prejudice the first plaintiff.
(m) Even if I were persuaded that the first plaintiff may have been, or would in the future be likely to be, exposed to risk of prejudice in the nature of self-incrimination were this proceeding to be heard and decided prior to the criminal proceeding in Tasmania I am not satisfied that, in the circumstances, the future conduct of this proceeding could not be managed so as to introduce adequate steps and protections for the plaintiffs, in particular the first plaintiff, which would obviate any sufficiently identified real risk of prejudice of self-incrimination in relation to the said charges and the proceedings in which those charges will be heard.
In summary, in my view the plaintiffs, including the first plaintiff, have failed to establish with specificity the nature of the risk, difficulty or potential prejudice to which the first plaintiff will or may be exposed if this proceeding is not stayed.
Finally, it is likely on the first defendant’s pleading, that the key factual issues have to do with matters distinct from those upon which the first plaintiff could, or is likely to, give evidence in this proceeding. Put another way it would presently appear likely that the evidence and central controversy at trial will be the subject of expert evidence, with little or no evidence from the first plaintiff.
In my view, for the above reasons, the plaintiffs’ present application for a stay is not sufficient to justify the order sought, and as a result fails, as presently advanced.
Conclusion
The plaintiffs present application to stay this proceeding should be rejected.[37]
[37]Below orders in relation to amendment of pleadings, discovery, further and better particulars and alike were agreed to between the parties on 23 August 2019.
Order
Accordingly I order that:
1. The plaintiffs’ application for a stay of this proceeding is dismissed.
2. By 4:00pm on 23 August 2019, the plaintiffs are granted leave to file and serve their Third Further Amended Statement of Claim.
3. By 4:00pm on 26 August 2019, to the extent possible, there be further discovery by the plaintiffs in relation to the telephone communications related materials referred to in paragraph [21] of the Affidavit of James Morrison sworn 16 August 2019.
4. Pursuant to Rule 37.01 of the Supreme Court (General Civil Procedure) Rules 2015, the plaintiffs preserve the horse floats alleged in paragraph [7] of the Third Further Amended Statement of Claim and Trailer Unit Registered Number TA27PF without further alteration.
5. By 4:00pm on 5 September 2019, the plaintiffs file and serve an affidavit detailing when and where and in what precise respects and for what reason or reasons the first named plaintiff altered the horse float being Transport Unit Registered Number CE96CK and horse truck AM38VY referred to in paragraph [7] of the Third Further Amended Statement of Claim and Trailer Unit Registered Number TA27PF.
6. By 4:00pm on 26 August 2019, the plaintiffs provide further and better particulars of paragraphs [1(a)] and [3(c)] of its Third Further Amended Statement of Claim, as requested in the letter from HFW Australia to Ryan Legal dated 12 April 2019.
7. By 4:00pm on 9 September 2019, the plaintiffs provide further and better particulars of the paragraphs [5(c)], [5(d)], [9(b)-(d)], [9(g)-(i)], [10(a) and (b)], [12(b) and (d)], [14] and [17] as requested in the letters from Colin Biggers & Paisley to Ryan Legal dated 5 April 2019 and 2 May 2019 and also in the second defendant’s submissions dated 21 August 2019.
8. By 4:00pm on 16 September 2019, each defendant file and serve on all other parties its Defence to the Third Further Amended Statement of Claim.
9. The plaintiffs pay the first and second defendants’ costs of and incidental to the hearing on 22 August 2019.
10. The parties have liberty to apply.
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