JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ZYX (pseudonym initials) -v- JD (pseudonym initials) [No 2] [2021] WADC 20
CORAM: BIRMINGHAM QC DCJ
HEARD: 30-31 JULY, 5 AUGUST 2020
DELIVERED : 18 MARCH 2021
PUBLISHED : 7 FEBRUARY 2023
FILE NO/S: CIV 874 of 2019
BETWEEN: ZYX (pseudonym initials)
Plaintiff
AND
JD (pseudonym initials)
Defendant
Catchwords:
Civil procedure - Stay application - Right to bring fresh application - Material non-disclosure by plaintiff on hearing of first application - Material change in circumstances warranting re-hearing of application
Civil procedure - Stay application - Delay - Loss or destruction of material documents - Relevant principles - Whether defendant can have a fair trial
Civil procedure - Stay application - Right to silence in potential criminal proceedings - Relevant principles - Whether criminal proceedings 'on the cards'
Civil procedure - Stay application - Abuse of process - Whether plaintiff's claim is pursued as a private prosecution of alleged criminal conduct by the defendant
Civil procedure - Stay Application - Limitation Act - Whether a fair trial is not possible - Factors to be considered
Legislation:
Criminal Code, s 183, s 321(3), s 321(4), s 552
Limitation Act 2005 (WA), s 6A
Result:
(a) Application for stay refused
Representation:
Counsel:
| Plaintiff | : | Mr T J Hammond |
| Defendant | : | Mr M J McPhee |
Solicitors:
| Plaintiff | : | Rightside Legal |
| Defendant | : | MJ McPhee Barrister And Solicitor |
Case(s) referred to in decision(s):
Andrew Koh Nominees Pty Ltd as trustee for KL Unit Trust v Pacific Corporation Ltd [No 3] [2010] WASC 248
Australian Securities and Investments Commission v Craigside Company Ltd [2013] FCA 201
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Briginshaw v Briginshaw (1938) 60 CLR 361
Citation Resources Ltd v Landau (2016) 116 ACSR 410
Connellan v Murphy [2017] VSCA 116
Estate of Judd v McKnight [2018] NSWSC 1489
Gorman v McKnight [2020] NSWCA 20
Helton v Allen (1940) 63 CLR 691
Hocking v Bell (1945) 71 CLR 430
Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce (1988) 85 ALR 640
Jack Brabham Holdings v Minister for Industry, Technology and Commerce (Button) (1988) 85 ALR 640
Jago v District Court of New South Wales (1989) 168 CLR 23
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
McMahon v Gould (1982) 7 ACLR 202
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218
Phoenix Eagle Company Pty Ltd v Ardrey [No 2] [2016] WASC 417
R v Edwards [2009] HCA 20; (2009) 255 ALR 399
Reid v Howard [No 2] (1995) 184 CLR 1
Rejfek v McElroy (1965) 112 CLR 517
The Council of Trinity Grammar School v Anderson [2019] NSWCA 292
Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018]…
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- AGLC
- ZYX (pseudonym initials) v JD (pseudonym initials) [No 2] [2021] WADC 20
- Case
- [2021] WADC 20
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the plaintiff's material non-disclosure warranted a re-hearing of the application, if the defendant could have a fair trial given the potential for criminal proceedings, and whether the plaintiff's claim was being pursued as a private prosecution of alleged criminal conduct by the defendant. The court also had to consider the impact of the Limitation Act and whether a fair trial was possible in light of the defendant's right to silence and the proximity of any potential criminal proceedings.
The court found that while there was a prima facie entitlement for the plaintiff to have their action tried, the court must balance the justice between the parties, taking into account all relevant factors. The court held that the defendant must demonstrate a real risk of injustice in criminal proceedings or an unjust burden if the civil proceedings were to continue. The court considered the long-held desire for the prosecution of the defendant by the plaintiff and the direct contact with the Attorney General, concluding that there was a reasonable possibility that criminal proceedings could be initiated. However, the court also noted that the right to silence did not extend to providing the same protection in civil proceedings as in criminal ones. The court ultimately determined that the potential for criminal proceedings was a significant factor, but it was not sufficient on its own to warrant a stay. The court emphasised the need to consider whether there was a real danger of injustice in any criminal proceedings, rather than merely a notional risk.
The final orders of the court were that the stay application was dismissed, and the proceedings were to continue as originally scheduled. The court found that while the potential for criminal proceedings was a relevant factor, it was not sufficient to warrant a stay of the civil proceedings. The court emphasised the importance of balancing the justice between the parties and taking into account all relevant factors, including the risk of injustice in any potential criminal proceedings.
Orders
Orders of the court
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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
As observed by Allanson J in Andrew Koh Nominees Pty Ltd as trustee for KL Unit Trust v Pacific Corporation Ltd[No 3][58](Koh Nominees) that while, prima facie, the plaintiff has an entitlement to have its action tried in the ordinary course of the court's business, the court's task on this application is 'the balancing of justice between the parties', taking account of all relevant factors. Each case must be judged on its own merits.[59][58] Andrew Koh Nominees Pty Ltd as trustee for KL Unit Trust v Pacific Corporation Ltd[No 3] [2010] WASC 248.[59] At [55]. See also Phoenix Eagle Company Pty Ltd v Ardrey [No 2] [2016] WASC 417 (K J Martin J). Generally there is a disinclination of the court to interrupt the ordinary progression of a civil action to trial. The critical factor is generally the relevant proximity of the criminal hearing and the possibility of a miscarriage of justice by disclosure of a defence. Other matters such as the burden upon a defendant of preparing for two sets of proceedings concurrently; and, most importantly, the preservation of his right to silence must be considered. Given long held desire for the prosecution of the defendant by the plaintiff and the direct contact with the Attorney General one could not readily accept that there is no prospect that the defendant may be prosecuted at some future time. Fundamental to any stay application is the obligation on the defendant seeking the relief to demonstrate a real risk of injustice in a criminal proceedings or that a failure to stay at this junction in the civil proceedings will impose an unjust burden on the defendant. Significantly the right to silence does not extend to give a defendant as a matter of right the same protection in contemporaneous civil proceedings as otherwise exists in criminal proceedings. The plaintiff in a civil action is not restrained from pursuing an action in accordance with normal rules merely because to do so would or might result in the defendant, if he wished to defend the action, being required to disclose in a pleading or by way of discovery what his defence is likely to be in a criminal proceedings. Importantly the court is required to consider whether there is a real or not just merely a notional danger of injustice in any criminal proceedings. As observed by McKerracher J In Citation Resources Ltd v Landau,[60] a defendant may successfully invoke the privilege against potential self‑incrimination if there was a real or appreciable risk that a pleading or the giving of discovery might expose the defendant to increase jeopardy of criminal prosecution. In determining whether a stay order should be made the question is whether there is sufficient evidence that a prosecution is 'on the cards'. The expression 'on the cards' was accepted as meaning 'reasonably possible' or a reasonable possibility.[61] [60] Citation Resources Ltd v Landau (2016) 116 ACSR 410 [28]. [61] Citation Resources Ltd v Landau [49]. To be 'on the cards' however it is not necessary for a decision to have been made to recommend a prosecution or that a decision has already been made to send a brief to the relevant prosecution authorities for a prosecution. As noted in Australian Securities and Investments Commission v Craigside Company Ltd,[62] a prosecution may be 'on the cards' even when a current investigation was not then in place.[62] Australian Securities and Investments Commission v Craigside Company Ltd [2013] 93 ACSR 176 [21].