There are two applications before the court:
1. The plaintiff, who is currently in custody following jury verdicts of guilty on 20 December 2018, brings an application for a stay of proceedings pending his appeal to the New South Wales Court of Criminal Appeal; and
2. The defendant seeks the discharging of a freezing order made on 24 May 2018 in relation to the proceeds of sale of her home.
[2]
Background
These are proceedings concerning two posts on Facebook by the defendant, the former wife of the plaintiff, concerning his treatment of her and the children. The proceedings had been bitterly fought, as is reflected in the interlocutory judgments: B1 v B2 [2017] NSWDC 252; B1 v B2 (No. 2) (District Court of New South Wales, Gibson DCJ, 12 February 2018); B1 v B2 (No. 3) [2018] NSWDC 108 and B1 v B2 (No. 4) [2018] NSWDC 497. Relevantly, for the applications before the court for determination, one of the steps has been the making of a freezing order: B1 v B2 (No. 3) at [16].
The proceedings are at a comparatively late stage of readiness for trial, in that, aside from arguments about answers to interrogatories which were listed for hearing prior to the plaintiff being placed in custody in the circumstances set out below, the matter is ready to take a trial date.
Shortly after the proceedings for defamation were commenced, the plaintiff was charged with a number of offences, namely:
1. Four counts of assault, committing an act of indecency, committing an act of indecency in circumstances of aggravation, and actual bodily harm, in relation to the daughter of the plaintiff and defendant; and
2. Nine counts of assault, committing an act of indecency, committing an act of indecency in circumstances of aggravation in relation to the son of the plaintiff and defendant.
On 20 December 2018, a jury returned verdicts of guilt to the following counts of the indictment:
1. Three counts of common assault contrary to s 61 of the Crimes Act 1900 (NSW), being counts 1, 5, and 10 on the indictment.
2. Five counts of aggravated indecent assault contrary to s 61M(2), being counts 6, 8, 9, 11 and 13 on the indictment.
3. Three counts of aggravated act of indecency contrary to s 61O(1), being counts 3, 7 and 12 on the indictment.
The jury returned verdicts of not guilty in relation to two of the 13 counts. These were counts 2 and 4 on the indictment, being a charge for committing an act of indecency on a person under the age of 16 years and an assault occasioning actual bodily harm. These were two of the four charges relating to the daughter of the parties. Convictions were recorded in relation to all nine charges relating to the parties' son.
The plaintiff's sentencing hearing was listed for 15 February 2019 and adjourned part heard to 28 March 2019. That hearing was adjourned again to 1 April 2019, when Huggett DCJ sentenced the plaintiff to an aggregate sentence of four years and six months imprisonment, with a non-parole period of two years and three months, dating from 20 December 2018.
A notice of intention to appeal the conviction was filed on 7 January 2019. This means that a notice of appeal must be filed no later than 7 July 2019 (Court of Criminal Appeal - General, Practice Note No. SC CCA 1, clause 9). A request for the transcript, summing up and remarks on sentencing by Huggett DCJ has been made, but these documents have not yet been provided.
The plaintiff is applying for legal aid in relation to the appeal. For this reason, the notice of appeal has not yet been settled, but will include a ground that the verdict was unreasonable and against the evidence (in relation to both children). It would appear from oral submissions that another ground of the appeal in relation to the parties' daughter may be based upon the circumstances in which two of the four charges in relation to the daughter resulted in a verdict of not guilty.
The parties agreed that the first issue for determination should be the continuation of the freezing order.
[3]
The freezing order
Mr Durant seeks the lifting of the freezing order made on 24 May 2018 on the basis that the plaintiff can no longer demonstrate a "good arguable case".
The determination of what is a "good arguable case" is agreed to be one where the case does not necessarily rise as high as being "better than a 50% chance of success" (Ninemia Maritime Corp v Trave GmbH & Co KG (The Niedersachsen) [1984] 1 All ER 398 at 404 per Mustill J, cited by McColl JA in Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279 at [69]).
When the freezing order was made on 24 May 2018, the defendant conceded that the plaintiff had a good arguable case, but no longer does so. This is on the following bases:
1. The plaintiff has been convicted of 11 of the 13 charges relating to subject matter which is common to the defamation proceedings, as well as the criminal proceedings. The importance of a criminal conviction in defamation proceedings can never be understated by reason of the provisions of s 42 Defamation Act 2005 (NSW), which permits the tender of a certificate of conviction as conclusive.
2. There is little information in relation to prospects of appeal, or even the grounds of appeal.
3. The balance of convenience no longer favours the freezing order, especially if a stay is granted.
4. The defendant acknowledges the court's finding that the court could have no confidence the defendant would not dissipate the assets, or otherwise put them beyond reach of the plaintiff, due to the defendant's inconsistencies in relation to family law issues and finance disclosure. The defendant acknowledges the force of these findings, which include an inconsistent denial of family violence in the home made for the purposes of family court proceedings. However, as it has "always been asserted by the defendant that she wants to use her funds to buy an investment property", the defendant does not wish to be denied the opportunity to purchase in what is how a "favourable buyer's market". She asks the court to regard her as a "responsible mother" (written submissions, p. 5). She also draws to the court significant evidence in relation to financial hardship and poor health.
5. The freezing order was made subject to conditions. Disputes about payment of child support and school fees had been raised since the freezing order was made and an application by the defendant in relation to school fees was listed for hearing in the Defamation List on 7 March 2019. Although the parties settled the issue and vacated that hearing by consent, it is submitted that this conduct does not augur well for the future. (Mr Durant added in submissions that he regarded the conduct in question as amounting to an actual breach which would of itself warrant the discharging of this order, but as this was a late addition to the argument, and thus not answerable by Mr Lewis, I have not taken this factor into account).
Mr Lewis opposes the discharge of the freezing order in its entirety, but indicated his client was prepared to consent to an order that there be a variation of the freezing order to permit the defendant to put the sum in question (approximately $250,000) towards the purchase of a home. In addition, the plaintiff was prepared to agree to the continuation of the existing provisos in relation to his ongoing payment of school fees and maintenance. Mr Durant acknowledged that this was, as Mr Lewis pointed out, a considerable benefit to the defendant, in that she was thereby relieved of anxiety concerning the plaintiff's willingness to pay school fees and maintenance.
Mr Lewis pointed to the total absence of any information concerning any proposed purchase of property. He also pointed to the adverse findings in earlier judgments in relation to the defendant's honesty, and relied upon the fact that the defendant was not prepared to consent to these variations of the freezing order to which his client was prepared to agree, which would not only maintain the status quo but would permit the continuation of a freezing order which conferred benefits upon the defendant in relation to maintenance and school fee payments. Finally, Mr Lewis submitted that any application to discharge the freezing order was premature in the absence of fuller detail about the basis upon which the appeal would be conducted.
[4]
Conclusions concerning the freezing order
There is much to commend Mr Lewis' approach to the current situation. A continuation of the status quo by a variation of the kind proposed by the plaintiff is in the interest of not only the parties but of their children. While Mr Durant submitted that, in the absence of an arguable case, it was open to his client to make what use of her money that she wished, including "putting it all through the pokies", in view of the level of antagonism between the parties a path of caution is the best one to take.
However, if the defendant does wish to purchase real estate, that is an appropriate use for the funds and can be accommodated easily. Accordingly, I propose to vary the freezing order to permit the sum the subject of the order to be used for the purpose of purchase of real estate.
The parties are at liberty to bring in short minutes of order reflecting their agreed wording of the varied freezing order.
[5]
The application for stay of proceedings
The other application before the court is the plaintiff's application for a stay of proceedings. I indicated to the parties in the course of hearing this application the orders I propose to make in relation to the application for variation of the freezing order, and argument proceeded on that basis.
The defendant neither consents to nor opposes the plaintiff's application, but notes a number of factors of relevance concerning the determination of this issue.
Both parties drew my attention to the decisions of Creak v Channel Seven Sydney Pty Ltd [2014] NSWSC 201 and McLachlan v Browne (No 9) [2019] NSWSC 10. In Creak v Channel Seven Sydney Pty Ltd, the plaintiff brought proceedings for a broadcast which alleged in substance that the plaintiff was guilty of offences under the Fair Trading Act. The defendant pleaded a defence of justification to Chase level 1 imputations (Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772). The plaintiff was then convicted of offences but made an all grounds appeal to the District Court of New South Wales. At the time the application was brought, the appeal in question had been listed and the adjournment in question was only a few months. Mr Lewis tells me, from the bar table, that the convictions were set aside and the proceedings remitted to the local court for rehearing.
This case is of little assistance to me, given the short period of time involved and the consent of the parties to the stay in question.
Where criminal proceedings intersect with the subject matter of defamation, courts have generally proceeded with caution, as was the case in McLachlan v Browne (No 9). While that application related to a stay prior to a criminal trial so as to preserve the plaintiff's right not to incriminate himself during a defamation proceeding set down for hearing within a matter of weeks, that is not the case here.
However, a stay was granted after disciplinary proceedings had concluded in Rayney v State of Western Australia [2019] WASCA 23, where the interaction between the plaintiff's appeal in relation to assessment of damages was adjourned in circumstances similar to the present.
While courts may accede to a stay more readily where the plaintiff's right not to incriminate himself is the issue, the real question is the risk of injustice, which Mr Lewis submits could not be starker following his client's appeal rights and the interaction with s 42 Defamation Act 2005 (NSW).
Mr Lewis draws the following to my attention:
1. If, on appeal, the convictions are quashed or set aside and the plaintiff is either acquitted or there is to be a fresh trial, a certificate of conviction under s 42 Defamation Act 2005 (NSW) would no longer be current and both parties would have undergone a trial for no purpose.
2. Even if the appeal is successful, his name will continue to be suppressed to protect the complainant children. If the plaintiff is successful in both his criminal appeal and the defamation proceedings, Mr Lewis advises that the plaintiff would seek judgment or orders in the defamation proceedings in terms that could be used by him to vindicate his reputation.
3. Where there is a multiplicity of proceedings, it is desirable to avoid inconsistent outcomes.
4. As McCallum J noted in McLachlan v Browne (No 9), the process of criminal proceedings does not end at the trial stage and includes appeals.
5. The granting of a stay is consistent with the provisions of ss 56-62 Civil Procedure Act 2005 (NSW) and the avoidance of undue costs.
6. Most importantly, if the appeal is unsuccessful, Mr Lewis frankly conceded that his client would abandon these defamation proceedings.
Mr Lewis raised a seventh ground, namely that the defendant appeared to agree to the stay at least in principle. However, the submissions made by the defendant set out clearly that the defendant neither consents to nor opposes the plaintiff's application, but draws a series of factors to the court's attention.
Those factors are as follows:
1. The conclusive nature of the jury findings, in that the plaintiff has been convicted of 11 of the 13 charges, in circumstances where there is little information as to the prospects of appeal or, for that matter, the grounds of appeal which appear not yet to have been formulated;
2. As is set out in McMahon v Gould (1982) 7 ACLR 202 at 206, prima facie a defendant is just as entitled as a plaintiff to have the proceedings tried in the ordinary course of business of the court, and a defendant in particular should not be subject to litigation any longer than is necessary.
3. The delay in question is likely to be substantial. Mr Durant, in his helpful submissions, draws my attention to the delays in the Court of Criminal Appeal in the ten prior Court of Criminal Appeal judgments, taken from the time of sentence, which are as follows:
1. Giovanni Romano v R (a pseudonym) [2019] NSWCCA 49 - 24 months;
2. Yondjo v R [2019] NSWCCA 57 - 20 months;
3. Gwardys v R [2019] NSWCCA 62 - 18 months;
4. McClelland v R [2019] NSWCCA 59 - 22 months;
5. Chami v R [2019] NSWCCA 63 - 18 months;
6. RH v R [2019] NSWCCA 64 - 18 months;
7. Roos v R [2019] NSWCCA 67 - 19 months;
8. Lees v R [2019] NSWCCA 65 - 19 months;
9. R v Baker [2019] NSWCCA 58 - 20 months;
10. CH v R [2019] NSWCCA 68 - 16 months.
1. In all the circumstances where all that has been filed is simply a holding appeal, to stay proceedings on pure speculation is inconsistent with the requirements of ss 56-62 Civil Procedure Act 2005 (NSW).
2. Finally, Mr Durant points to the injustice of the defendant's assets remaining frozen for the duration of the stay, in circumstances where she has expressed a wish to purchase property, or put the sum frozen towards the cost of purchasing property. However, I have endeavoured to remedy that by varying the terms of the freezing order to permit such a step to be taken. In addition, the defendant has the security of knowing that, while the freezing order remains in place, the price the plaintiff must pay for it is to continue to pay maintenance and school fees, on a regular basis. While Mr Durant pointed to recent arguments about whether there had been compliance with these orders, I note that a dispute between the parties to this effect was resolved by payment of the appropriate sums. If the plaintiff defaults in future, the freezing order is very likely to be dissolved.
Mr Durant has mustered some powerful arguments. However, the desirability of these proceedings being set down for hearing, in circumstances where not only the defendant but the children who were the victims of the offences for which the plaintiff was convicted, will have to give evidence and be cross-examined, is hard to justify. I am mindful that cross-examination of the defendant and the children would not be under the same protections as are available in criminal proceedings, that they have already had to give evidence in criminal proceedings during 2018 and that there is at least a prospect, if a stay is granted and the plaintiff's appeal fails, that there will be no trial at all.
I have noted in previous judgments between these parties that, while the welfare of children is not a paramount issue in this court as it is in the Family Court, the welfare of the children of the plaintiff and defendant is of very great importance when determining case management issues. If the plaintiff's appeal is unsuccessful, Mr Lewis acknowledges that these defamation proceedings will be abandoned. That would mean that there would be no need at all for the plaintiff and the children to give evidence, which is a more attractive scenario, from the viewpoint of the children at least, than a long and distressing hearing.
Accordingly, I propose to stay these proceedings until further order, placing them in the Inactive List with a notional review date of Thursday 31 October 2019. A copy of this judgment will be provided to the Registrar of the Court of Criminal Appeal, as this may be relevant to case management listings in that court.
[6]
Costs and ancillary matters
I was not addressed as to costs and I propose to reserve the issue of costs.
I have given the parties the task of re-drafting the freezing order in the hope that they can agree upon its terms. If there is no agreement, the matter may be relisted for that purpose. Otherwise, the agreed variation to the freezing order may be filed in the Registry.
[7]
Orders
1. The plaintiff and defendant are to bring in Short Minutes of Order reflecting the agreed form of variation of the freezing order of 24 May 2019 to enable the defendant to use the whole or part of the sum currently frozen for the purchase of real estate in her name, with liberty to apply in the event that the form of order cannot be agreed upon.
2. Pursuant to s 67 Civil Procedure Act 2005 (NSW), these proceedings are stayed until further order.
3. Matter placed in the Inactive List with a notional review date of Thursday 31 October 2019 in the Defamation List.
4. Costs reserved.
[8]
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Decision last updated: 12 June 2019