Consideration
39 Mr Taylor had been informed by the CDPP before the second stay application that criminal charges would be laid against him, and by the time of the decision of the primary judge, they had been. It was accepted that the criminal proceeding concerned the same subject matter as the disciplinary proceeding, the same audit of the same company in the same year, and it was brought at the behest of the same regulator. It was also accepted that although Mr Taylor had been examined pursuant to s 19 of the ASIC Act, he was not questioned in relation to the subject matter the basis of the proceedings.
40 Mr Taylor's application for a stay of proceedings was not confined to the fact he might wish to give evidence and might then be compelled by the Board to answer questions. Mr Taylor's concern was that he could not take any steps in defending the disciplinary proceeding without telegraphing his likely defence of the criminal proceeding which would thereby risk assisting the prosecution in its criminal proceeding against him, undermining his fundamental rights as an accused. Those steps include revealing his defence, adducing lay and expert evidence, cross-examining ASIC's lay and expert witnesses, and taking objections to evidence and the tender of examination transcripts. The respondent submitted that the disciplinary proceeding could be used as a "dress rehearsal" or "test run" for the criminal trial for the prosecution to test and potentially improve the case it would rely on in the criminal proceeding, particularly given ASIC's reliance on the same expert witness in both the disciplinary and criminal proceedings.
41 The common law rights referred to by the Board, and by the primary judge, are the privilege against self-incrimination, and the associated right to silence. It is important to appreciate that underpinning those concepts is that the prosecution cannot compel a person charged with a criminal offence to assist in the discharge of its onus of proof: see for example, Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 (Lee v The Queen) at [33]. A fundamental principle of the common law is that it is for the prosecution to prove the guilt of an accused person as "an aspect of the accusatorial nature of a criminal trial in our system of criminal justice": Lee v The Queen at [32]; see also X7 at [46], [101]-[102], [159]-[160]; IBAC at [44]. This is referred to as the companion principle; it is a companion of criminal trials: IBAC at [46] and is engaged when there is a prosecution pending: IBAC at [48].
42 Parliament may enact legislation which abrogates a person's common law rights. The principles applicable to statutory construction are well established. The starting point for statutory construction is the text of the provision, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL) at [14], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47]. Common law rights are to be regarded as abrogated by statute only by language which manifests a clear intention to do so: see for example R v Independent Broad-based Anti-Corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459 (IBAC) at [40]. Therefore, whether a common law right is abrogated or limited is determined by considering whether the statutory language does so "by express words or by necessary intendment": X7 at [125].
43 It is appropriate to recall at the outset, that in summary, ASIC's submission, as articulated in writing is that:
The language in s 1292(11) requires the Board to disregard the existence of concurrent criminal proceedings, and any inherent features of those proceedings, to the extent that they might solely motivate the Board to exercise its powers in a particular way.
44 ASIC's construction, having regard to the text of s 1292(11), considered in its context and given its purpose, cannot be accepted.
45 It is common ground between the parties that the Board has a power to stay disciplinary proceedings. On ASIC's case, that power is contained in s 1294A(4) of the Corporations Act, which authorises the Chairperson of the Board, on behalf of the Board, to give directions as to the procedure to be followed at or in connection with the hearing. The primary judge appeared to accept that submission at PJ [76]. We note the respondent submitted the power is in s 1292(11). ASIC's submission is the better construction, but the difference in position is of no real practical consequence in the resolution of this appeal. This is because it was accepted that the scope of the power (whichever provision it is in) will necessarily be limited by the statutory context, which includes s 1292(11).
46 ASIC's submission, in large part, rests on the presence of the phrase in s 1292(11) that the Board may exercise its powers "whether or not" criminal proceedings have, or are to be, brought in relation to the conduct the subject of the disciplinary proceeding. It is uncontroversial that terms in a statute are to be given their ordinary and natural meaning, "unless it is plain that Parliament intended it to have some different meaning": see for example Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 at [26], and see, SZTAL at [14]. So much may be readily accepted. However, that does not assist ASIC's case.
47 As a starting point, ASIC accepts that s 1292(11) contains a discretion. That is plainly correct.
48 However, the ordinary meaning of the phrase "whether or not" in s 1292(11) is not, as ASIC contends, "regardless of whether" there are criminal offences, charged or pending, such that the "existence of concurrent criminal proceedings, alone, cannot prevent the Board from exercising its powers". The text of s 1292(11), on its face, does not support such a construction, and as explained below, nothing in the context of the statutory scheme alters that. The subsection confers a discretion; the Board may exercise its powers in those circumstances. The words emphasised by ASIC are not words of limitation; rather, they make clear the circumstances in which a stay may be granted as a matter of discretion. That is, the Board may proceed to conduct a hearing even where there are concurrent criminal proceedings. We do not accept ASIC's submission that unless s 1292(11) is construed as it contends the reference to concurrent criminal proceedings has no work to do.
49 Section 1292(11) does not mandate that the discretion is not to be exercised to grant a stay in certain circumstances. There is no command in the text of the provision not to exercise the powers on the basis of concurrent criminal proceedings. In that respect, s 1292(11) is to be contrasted with cases which do expressly contain such a provision: see for example, Onley at [38]. We note ASIC submitted that s 1292(11) aligns with or is close to the legislation considered in Onley. We address that submission below when considering the authorities relied on. Suffice to say at this stage, that submission cannot be accepted.
50 The context of s 1292(11) does not alter that plain reading of the text. Contrary to ASIC's contention, it does not evince a clear intention that the statutory regime displaces relevant common law rights.
51 The principal context relied on by ASIC is that the regime imposed by the legislative scheme is said to displace all of the relevant person's common law rights. Although it may be accepted that there are some provisions in place which have the capacity to limit the impact a disciplinary proceeding may have on a criminal proceeding (see for example s 68 of the ASIC Act) and there is some abrogation of those common law rights, the abrogation is not complete.
52 An important part of the legislative scheme, on ASIC's submission, is that before a proceeding arises before the Board, ASIC may conduct an examination of an auditor under s 19 of the ASIC Act in which the auditor must answer questions even though those answers may incriminate them. Transcripts of those examinations are admissible in a proceeding before the Board, subject to legal professional privilege: s 76(1) of the ASIC Act. This plainly abrogates a person's rights, but it is to be recalled that this examination power is spent before the Board commences any proceedings. ASIC is not required to conduct such an examination, and if it does, it is not required to examine on the topic that later becomes the subject of the disciplinary proceeding. That is illustrated in this case, where although the respondent was examined pursuant to s 19 of the ASIC Act, he was not questioned on the conduct which later became the subject of the disciplinary proceeding.
53 The Board has no power to compel the person the subject of the proceeding to give evidence before it. However, if that person chooses to do so, the Board is empowered to compel that person to answer questions under oath, even though an answer may tend to incriminate them: ss 217(2), 219(2)(b), 219(2A) and 68(1) of the ASIC Act. The ASIC Act provides direct use immunity of any answer given in those circumstances. That is, a statement made by a person under compulsion at a hearing is not admissible in a criminal proceeding if, before the statement is made, privilege against self-incrimination is asserted: s 68 of the ASIC Act. Indirect use may be made of the person's evidence.
54 ASIC submitted that the immunity provided by s 68 "eliminates a major effect that a Board proceeding might have on a concurrent criminal proceeding", citing Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 (Hamilton v Oades) at 496. ASIC submitted, adapting the words of Mason CJ in Hamilton v Oades (at 496), that by enacting ss 68(2) and (3) of the ASIC Act:
… without providing such specific protection, Parliament has made its legislative judgment that such action is not required and has limited specific protection to the possible consequences of direct use in evidence of the answers of the witness, thereby guarding against the possibility that the witness will convict himself out of his own mouth - the principal matter to which the privilege is directed.
55 Accepting that for the purposes of argument, it only takes ASIC so far. The statutory scheme in Hamilton v Oades concerned an order made pursuant to s 541(3) of the Companies (New South Wales) Code which empowered the Supreme Court of New South Wales to order that a director of a company be examined relating to the affairs of the company. Mr Hamilton, who had been appointed liquidator of the company, applied to the Supreme Court of New South Wales for an order in relation to Mr Oades, who had been charged with a number of criminal offences arising out of his association with the company. It was held that s 541 manifested a clear intention to abrogate the common law privilege against self-incrimination, with Mason CJ stating at 494 that:
…it is well established that Parliament is able to "interfere" with established common law protections, including the right to refuse to answer questions the answers to which may tend to incriminate the person asked…
56 Significantly, unlike the circumstances in Hamilton v Oades, Parliament has chosen not to give the Board the power to compel the person the subject of the proceeding to give evidence. The extent of any abrogation of common law rights must depend on the statutory scheme. Here, Parliament has not abrogated that person's right not to answer questions in that hearing by choosing not to give evidence. Once that is appreciated, ASIC's submission that the statutory scheme completely abrogates that person's common law rights, cannot be accepted.
57 In that context, the privilege against self-incrimination is preserved. The absence of a power to compel the person the subject of the hearing to give evidence cannot be overcome, as ASIC appears to suggest, on the basis that transcripts of s 19 examinations are admissible in the Board hearings. As explained above, and as illustrated in this case, those examinations might not concern the same subject matter as the Board proceedings.
58 Several of the authorities referred to by ASIC also involve statutory schemes which bear the feature that the person can be compelled to give evidence, as they relate to compulsory examination provisions: see for example X7. Consequently, those cases were not concerned with a factual scenario where a hearing is being conducted with witnesses being called against the person in a context where an adverse finding is sought.
59 Moreover, ASIC's submission is not strengthened by the fact that the legislation limits the extent to which a disciplinary proceeding may affect a pending criminal trial in other ways, as described above at [19].
60 Similarly, ASIC's reliance on the legislative history as supporting the Board's construction does not assist. This history is recited by the primary judge at PJ [61]-[64], to which no issue was taken. It may be accepted that s 1292(11), which was formerly s 27(14) of the Companies Act, was introduced at the same time as s 27(25). It may also be accepted, at a level of generality, that the "legislature's attention was directed to whether the former s 27(14) abrogated fundamental rights, and it deliberately elected to do so". But this does not take ASIC very far.
61 ASIC referred to [123] of the explanatory memorandum to the Companies Bill 1981 (Cth) in support of its submission:
The Board will be able to exercise any of its powers under this provision whether or not the conduct engaged in by the person might constitute an offence and whether or not any proceedings have been brought or are pending (CB s - cl. 27(14)). A statement made by a person in a hearing held by the Board will not be admitted in evidence in criminal proceedings against the person, except in respect of the falsity of the statement (CB s - cl. 27(25)).
62 The explanatory memorandum does not suggest, as ASIC contends, an intention to completely abrogate the person's common law rights. The tender of the transcript of evidence given before the Board in subsequent criminal proceedings would impinge on the person's common law rights, but there are other aspects not addressed. Abrogating some rights does not lead to the conclusion that, as contended by ASIC, the statutory scheme involves a complete abrogation of the person's common law rights. We note that ASIC's construction is dependent on that proposition. We note also for completeness, that s 27(25) was repealed in 1983 when the Corporations Act was amended, and s 30H(5), which is in different terms, was enacted: see PJ [68].
63 In the above context, we turn to consider the authorities relied on.
64 ASIC submitted that the language of s 1292(11) of the Corporations Act is closer to the legislation considered in Onley, than it is to that in Zhao. ASIC also submitted that Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 (Lee v NSW Crime Commission) and IBAC support the construction of the statutory scheme for which it contends.
65 In addressing that submission, it is helpful first to refer to Zhao because Onley considered ss 319 and 319A of the Proceeds of Crime Act 2002 (Cth) (POCA), as amended after the High Court decision in Zhao.
66 In Zhao, the High Court considered the application of s 319 of the POCA, which was then in the following terms:
The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which a court may stay proceedings under this Act that are not criminal proceedings.
67 In Zhao, the High Court observed at [35] that s 319 was unnecessary as "Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required". The High Court concluded that where the offences and the circumstances relevant to both proceedings were identical, the risk of prejudice was plain. ASIC sought to distinguish Zhao on the basis that, unlike s 1292(11) of the Corporations Act, there was no statutory reference in s 319 to the "conduct" of the person the subject of the civil proceeding as being the same as the "conduct" the subject of the concurrent criminal proceeding. So much may be accepted. However, there are a number of differences between the legislative scheme in this case and in Zhao, including the nature and purpose of the proceedings, and that, under the POCA, there was a power to compel a person to give evidence in an examination which may be held in the proceedings. That said, Zhao illustrates the considerations there applicable given that statutory regime. It does not assist in the construction of s 1292(11).
68 Turning to Onley, it is appropriate to recite ss 319 and 319A of the POCA as amended to illustrate the fallacy of ASIC's submission:
319 Stay of proceedings
(1) A court may stay proceedings (the POCA proceedings) under this Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so.
(2) The court must not stay the POCA proceedings on any or all of the following grounds:
(a) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings;
(b) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against another person in respect of matters relating to the subject matter of the POCA proceedings;
(c) on the ground that:
(i) a person may consider it necessary to give evidence, or to call evidence from another person, in the POCA proceedings; and
(ii) the evidence is or may be relevant (to whatever extent) to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person or any other person;
(d) on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed.
(3) Paragraph (2)(a) applies even if the circumstances pertaining to the POCA proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings.
(4) Paragraph (2)(b) applies even if the subject matter of the POCA proceedings is the same as, or substantially similar to, the matter at issue in the criminal proceedings.
(5) Paragraph (2)(d) applies even if the staying of the POCA proceedings would avoid a multiplicity of POCA proceedings.
(6) In considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the following matters:
(a) that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible;
(b) the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;
(c) the risk of a *proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;
(d) whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;
(e) any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.
Note: Examples of orders the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed include an order under section 319A (closed court) or an order prohibiting the disclosure of information.
319A Closed court
A court may order that proceedings under this Act (other than criminal proceedings) be heard, in whole or in part, in closed court if the court considers that the order is necessary to prevent interference with the administration of criminal justice.
69 In Onley, the Court concluded that the prejudice which arose by nature of the legislative scheme was "not sufficient of itself to warrant the grant of a stay", and that more was required: see for example Onley at [231], [369]-[372]. For example, at [369] Basten JA stated:
The Proceeds of Crime Act differs in precisely this respect from the legislation considered in X7. As was explained in Elzein, s 319(2)(a) provides that the court "must not stay" proceedings, for example, pursuant to examination orders, "on the ground that criminal proceedings have been … instituted … against the person subject to the POCA proceedings". That prohibition applies "even if the circumstances pertaining to the POCA proceedings are … the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings": s 319(3). That is to say, a characteristic form of prejudice (systemic prejudice) which is a universal characteristic of the circumstances identified in s 319(2), must not constitute the ground of a stay. Thus, in its present form, s 319(2) provides a clear statement in precisely the terms which might have been envisaged in order to comply with the condition explained at [125] in X7.
70 ASIC made the following submission:
The language of s 319(3) of the POC Act is similar to the language in s 1292(11). It expressly provides for a situation where there is a direct overlap in conduct. That s 312(2)(a) contains an express prohibition on a stay, and s 1292(11) has no equivalent express prohibition, is not material. That is because the words "whether or not" in s 1292(11) contemplate the existence or otherwise of criminal proceedings. The language in s 1292(11) requires the Board to disregard the existence of concurrent criminal proceedings, and any inherent features of those proceedings, to the extent that they might solely motivate the Board to exercise its powers in a particular way.
71 That submission cannot be accepted. Even the briefest consideration of the amended s 319 reveals obvious differences of significance between it and s 1292(11); see for example, s 319(2) of the POCA. Its terms expressly prohibit a stay being granted on the basis that criminal proceedings have been, are proposed to be, or may be, instituted or commenced; and where a person may consider it necessary to give or call evidence which is or may be relevant (to whatever extent) to a matter that is or may be, at issue in any subsequent criminal proceedings: s 319(2)(a) and (c). Its terms indicate that a person charged with an offence which is relevant to civil proceedings brought under the POCA must do more than point to the existence of criminal proceedings in order to obtain a stay of the civil proceedings. ASIC's submission does not address, and therefore fails to grapple with, the phrase "must not stay" in s 319 of the POCA; a statutory command absent from s 1292(11) of the Corporations Act.
72 ASIC also referred to Lee v NSW Crime Commission and said that case supported its construction of the statutory scheme. Lee v NSW Crime Commission considered s 63 of the Criminal Assets Recovery Act 1990 (NSW) (CAR Act). That provision is recited at [7] of Lee v NSW Crime Commission and states:
The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which the Supreme Court may stay proceedings under this Act that are not criminal proceedings.
73 Section 63 of the CAR Act also has obvious similarity to the provision considered in Onley. The legislature forbade a stay based on overlapping criminal proceedings, which s 1292(11) of the Corporations Act does not. There are also further differences between the legislative schemes. In the CAR Act there is, for example, the power to compel a person to give evidence in an examination which may be held in the proceedings. In that context, the privilege against self-incrimination was abrogated.
74 It is appropriate also to refer to Edelsten v Richmond (1987) 11 NSWLR 51 (Edelsten), a case relied on by ASIC. The relevant provision under consideration in that case stated:
A complaint may be referred to a Committee or the Tribunal, and dealt with by the Committee or Tribunal, even though the registered medical practitioner about whom the complaint is made is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint.
75 As can be seen, this provision does have similarities to s 1292(11) of the Corporations Act.
76 In its written reply, ASIC cited the following passage by Hope JA in Edelsten (at 61), and made the submission that the observations were apposite:
The section clearly confers upon the Tribunal a discretionary power to continue proceedings before it even though there are current criminal proceedings against the medical practitioner relating to the subject matter of the complaint. On the submissions made for Dr Edelsten, either the discretion could never be exercised in favour of continuing the disciplinary proceedings while criminal proceedings were current, or they could be continued only where it was known that the medical practitioner did not propose to give evidence. Such a construction would practically read the section out of the Act.
77 ASIC submitted that Mr Taylor similarly seeks to limit the scope of s 1292(11) of the Corporations Act to an extent that is simply not supported by the plain words of the provision, and that the construction proposed by Mr Taylor renders illusory the discretionary character of the Board's power to grant a stay.
78 There are two observations to be made about that submission. First, the submission advanced by Dr Edelsten was to limit the provision in such a way that the proceedings would not take place if he was likely to want to give evidence in defence of the disciplinary proceeding which coincided with the criminal charges. Second, following from that, Hope JA concluded at 61 that:
In the context of the Medical Practitioners Act and the important matters with which it deals, the purpose of the section is clear enough. Despite the concern that the law has long had to protect persons accused of criminal offences in relation to the making of self-incriminating statements, the right to silence, as it is called, Parliament must have considered that there was a public interest in the investigation of a complaint against a medical practitioner which, in a particular case, might outweigh the public interest in the right to silence. The section does not contemplate that every disciplinary proceeding will continue notwithstanding the existence of criminal proceedings but equally it does not contemplate that the existence of criminal proceedings will preclude the disciplinary proceedings from continuing. The discretion given to the Tribunal involves a balancing of the public interest in the investigation of the complaint with the public interest in the observance of the right to silence. This involves, among other things, a consideration of the nature and gravity of the complaint and of the criminal charge, and of the circumstance that while the medical practitioner cannot be required to give a self-incriminating answer, he may be embarrassed in his defence to the complaint if he does not do so, and, if he does give evidence, he may be prejudiced in relation to the criminal proceedings. There are doubtless other matters relevant to the exercise of the discretion, but undoubtedly these are the more important factors.
79 The passage recited above at [76] must be read in this context. That passage does not support ASIC's construction, which requires the Board to disregard the fact of the criminal proceeding. The discretion is to be exercised on the particular facts of the case.
80 We note also that the discussion in Edelsten highlighted the context in which the provision there under consideration was enacted, which included inter alia, a view held at that time that so long as criminal proceedings had been instituted, or were pending, it was generally considered undesirable that disciplinary proceedings be dealt with: Edelsten at 59 citing inter alia, Re a Solicitor (1938) 55 WN (NSW) 110. This also provides some context against which the enactment of s 27(14) of the Companies Act occurred in 1981 (later to be s 1292(11) of the Corporations Act). Edelsten also considered the impact of decisions such as Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188 and Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281, which addressed the circumstances of compelling a witness to give evidence in an inquiry where criminal proceedings have been instituted or are pending: see Edelsten at 58.
81 It is unnecessary to address the detail of the authorities of X7, Lee v The Queen and IBAC, as there is no issue with the general principles, or with their application. Each case turns on the construction of the particular legislation in issue, all of which differ from the statutory regime considered in this case.
82 Finally, it is necessary to observe that there was an inconsistency in ASIC's submission. It stemmed from ASIC's contention, recited above at [43] and [70], that:
[t]he language in s 1292(11) requires the Board to disregard the existence of concurrent criminal proceedings, and any inherent features of those proceedings, to the extent that they might solely motivate the Board to exercise its powers in a particular way.
83 To put it another way, ASIC contended that prejudice more than arises from the co-existence of criminal proceedings was required to establish that a stay should be granted.
84 ASIC accepted it would be a relevant consideration in this case that Mr Taylor had not been examined pursuant to s 19 of the ASIC Act on the topic of the proceedings. However, ASIC variously then submitted that although that factor can be taken into account, the Board is entitled to disregard it. ASIC also submitted that the Board was not obliged to take that factor into account, but it was not prevented from doing so. Ultimately, ASIC accepted that that factor, if the Board were satisfied of it, may be sufficient to grant a stay. That is because Mr Taylor's actions in defending the disciplinary proceeding before the Board have the potential to reveal his defence, which ASIC was not otherwise aware of through the s 19 examination.
85 ASIC also ultimately accepted that the fact that witnesses who give evidence against the respondent in the Board proceedings in its case against the respondent (who are also to be witnesses in the criminal proceeding) would know the strengths or weaknesses of their position (by reference to the cross-examination and the defence case) before the criminal trial, was a relevant matter which could be taken into account, and which may result in a stay being granted.
86 These examples encompass factual considerations which flow from the co-existence of criminal proceedings.
87 Those concessions, which we consider to be properly made, do not sit with the stark construction of s 1292(11) for which ASIC contends. Rather, they reflect a position, consistent with the language of s 1292(11) considered in its context and given its purpose, that a matter may proceed even if there are concurrent criminal proceedings, and any application for a stay will involve a weighing of the factual matters particular to that case. These may include factual matters as to the impact of the Board proceedings on the criminal proceedings. The matters relied on by the respondent at [32] above are such matters. Of course, given Mr Taylor was seeking a stay, he bore the onus of establishing factually and legally, that a stay should be granted.
88 Section 1292(11) of the Corporations Act, considered in its context and given its purpose, does not constrain the exercise of the Board's discretion in the manner contended for by ASIC.
89 Given that conclusion, it is unnecessary to consider the remaining grounds of appeal, as each are premised on an acceptance of ASIC's construction of the provision.
90 That said, it is appropriate to make three further observations.
91 First, this matter proceeded on the basis that the stay application was to be determined by applying what is referred to as the "McMahon Guidelines". That is a reference to guidelines propounded by Wootten J in McMahon v Gould (1982) 7 ACLR 202 (McMahon). In that case, Wootten J was considering an application for a stay of civil proceedings (brought by liquidators) on the basis that Mr Gould had been charged with criminal offences, some of which related to the same sums of money which were the subject of the civil proceedings. The "McMahon Guidelines" are merely guidelines that Wootten J said he used to approach the decision of the application before him: see McMahon at 206. They ought not be elevated to something they are not. They cannot be seen as exhaustive of what might be relevant considerations in determining an application for a stay. Significantly, these guidelines were identified in 1982. There have been very many decisions of appellate courts, including the High Court, which have in more recent years addressed relevant considerations, including in relation to the circumstances where the issue is an application to stay civil proceedings pending criminal proceedings being finalised. A consideration of the guidelines, read in the context of the judgment in McMahon, indicates that some are outdated, and do not reflect the current understanding of certain concepts, and their significance in the administration of justice. This is particularly evident in Wootten J's discussion of the extent or breadth of the relevant common law rights and the impact of civil or other proceedings on criminal proceedings. It is a judgment reflecting its time. As has been recognised by later Courts, although the guidelines may be of some assistance, any reference to them must be read in light of subsequent cases: see for example, Impiombato v BHP Group Limited [2020] FCA 350 at [123]. That said, it is the considerations and principles as articulated in recent appellate authorities which are to be considered and applied.
92 Second, the primary judge concluded that when weighing competing interests on a stay application, primacy must be afforded to criminal proceedings: PJ [142], and that that primacy had not been displaced by the statutory scheme: PJ [146]. Care ought to be taken in using terms such as primacy or approaching the issue of a stay by asking whether that concept has been displaced by the relevant legislation as, depending on the circumstances, it may be apt to distract. That is not to gainsay the importance of criminal proceedings (including relative to other proceedings), but rather is to reflect the need to focus on the question to be determined on a stay application. Taken literally, on the primary judge's observations, a stay would always be granted unless there is complete abrogation of the common law rights when there is a concurrent criminal proceeding. That would not be the correct approach. As observed in Zhao at [35], recited above at [67], regardless of the provision there being considered (s 319 of the POCA as it was then), "Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required". That does not mean civil proceedings cannot or would not be stayed. What weight is to be given to the relevant considerations is to be determined in the individual case by reference to the enabling legislation: IBAC at [76]-[77].
93 Third, the Board discounted Mr Taylor's offer of an undertaking not to perform the duties of an auditor until the conclusion of the disciplinary proceeding, and for that undertaking to be noted on the register of auditors kept by ASIC under s 1285(1) of the Corporations Act. The effect of the undertaking was that the public interest would be protected. Leaving that aside, the Board's reasoning, that the undertaking was not a substitute to finalising the proceeding, presupposed an adverse outcome to Mr Taylor. The undertaking is plainly a relevant consideration to any stay application. Accepting, as ASIC submitted, that the legislation contemplates expedition, that expedition is no doubt motivated by a need to protect the public if the conduct is established. It is difficult to understand the prejudice said to impact the disciplinary proceeding by delay for resolution of the criminal proceeding, in the circumstances of this case. Indeed, the resolution of the criminal proceeding may impact on the conduct of the disciplinary proceeding.
94 The proposition that civil proceedings may prejudice concurrent criminal proceedings in respect to the same subject matter is uncontroversial. As observed in Zhao at [47], that such prejudice may require a stay of the civil proceeding is hardly novel. The issue for the Board was whether the respondent had established that a stay of the civil disciplinary proceeding should be granted pending the resolution of the criminal proceeding in his case. That decision was made on an erroneous construction of s 1292(11).