Solicitors:
Australian Federal Police (Plaintiff/ Respondent)
KM Legal (First and Second Defendants/ Applicants)
File Number(s): 2014/123758
[2]
Introduction
On 1 June 2016 I granted a stay of these proceedings (the civil proceedings) until 31 August 2016 or further order on the application of Mr W (the first defendant) and Ms B (the second defendant) (collectively, the defendants): The Commissioner of the Australian Federal Police v W [2016] NSWSC 683 (the Stay Judgment). The application was made on 23 May 2016, which was the day on which the defendants' application for exclusion orders under the Proceeds of Crime Act 2002 (Cth) was listed for hearing. The Commissioner of the Australian Federal Police (the plaintiff) opposed the stay.
A substantial factor in favour of the grant of the stay and for the date in the order, 31 August 2016, was that the trial by jury of the defendants for offences related to the proceedings in this Court was listed for hearing in the District Court to commence on 8 August 2016. The hearing date was later postponed by the District Court to 15 August 2016.
Some time after the stay was granted the plaintiff learned that the defendants had voluntarily disclosed to the Commonwealth Director of Public Prosecutions (DPP) a substantial body of documentary material in support of their defence in the criminal trial. This fact, which was undoubtedly material, had not been disclosed to this Court when the stay application was made. As a consequence, the plaintiff filed a notice of motion on 5 July 2016 that the stay be "re-opened" and "set aside" on the basis of the non-disclosure.
On 8 August 2016, the defendants applied for the date for the District Court trial (15 August 2016) to be vacated on the basis that their funds had been depleted by the proceedings in this Court and they did not have sufficient funds for legal representation at the criminal trial. The Crown did not oppose the vacation of the date, which was granted by Conlon SC DCJ.
Following the vacation of the criminal trial, the defendants filed a notice of motion dated 18 August 2016 seeking an extension of the stay.
Accordingly, the matters to be determined are: whether the stay should be dissolved, or allowed to lapse on 31 August 2016; or whether it should be extended. At the conclusion of the hearing on 23 August 2016 I refused the defendants' application for an extension of the stay and allocated hearing dates for the civil proceedings. I indicated that I would give reasons for that order and address the plaintiff's application for an order that the stay be set aside later.
I propose to provide reasons for refusing the defendants' application for an extension of the stay first before turning to the plaintiff's application for the stay to be re-opened and set aside.
[3]
The defendants' application for an extension of the stay
Mr Bennett, who appeared on behalf of the defendants, identified the following factors in the Stay Judgment, which he contended ought lead to an extension of the stay: the overlap between the factual matters relevant to the criminal trial and the civil proceedings ([17] and [33]); the operation of the Civil Procedure Act 2005 (NSW) ([41]-[43]); the short duration of the stay sought ([50]-[51]); the relative lack of prejudice to the plaintiff ([52]-[53]); the significant prejudice to the defendants (by reason of the incursion into their right to silence) ([55]); and the potential prejudice to the principle of open justice if the stay were not granted ([64]).
Mr Bennett relied particularly on the following passage from the Stay Judgment:
[70] Having taken all the matters referred to above into account (including the risk of the criminal trial being jeopardised by unauthorised disclosure; the infringement to the defendants' right to silence; the disruption to the orthodox course of civil proceedings in open court with no restriction as to publication; the imminence of the criminal trial; and the likely marginal gain in terms of time and cost if a stay is refused), I am persuaded that it is in the interests of justice to grant the stay on terms.
[71] An important factor in my decision that it is in the interests of justice to grant the stay is the imminence of the criminal trial. In these circumstances, the stay will be granted for a limited period which is designed to accommodate the finalisation of the criminal trial, at least at first instance. For this reason I propose to stay the proceedings for a fixed period rather than, as sought by the defendants, pending the outcome of the criminal trial.
The evidence before me on the application for extension establishes that the basis for the vacation of the criminal trial was that the defendants were unable to pay for legal representation. Although the criminal trial is listed for mention on 5 September 2016, there is no evidence to suggest that there is any real prospect that the defendants' financial position will improve in the short-term. Even if they came into funds (from whatever source), there is no prospect that the District Court will have further trial dates available this year and may not have dates until the second half of next year, depending on the length of the trial. If it be the case that the defendants are unable to afford legal representation at the trial, either through Legal Aid or another source, one cannot rule out the prospect that they will make an application for a stay of the criminal proceedings on the basis of the principles in Dietrich v The Queen (1992) 177 CLR 292. Accordingly, if the stay were extended, with the intention that it cover the period until the criminal trial has been concluded, its duration could be a year or more.
I accept Mr Bennett's submission that the considerations in favour of a stay which were referred to in the Stay Judgment are still relevant. However, even aside from the defendants' non-disclosure of the material disclosed to the DPP on the application for a stay, the vacation of the criminal trial affects the balance of the factors such that I consider that the civil proceedings ought be heard although the criminal trial remains pending.
Having regard to the fact that the criminal trial is not likely to be concluded this year or, indeed, in the first half of next year, if at all, I am not disposed to extend the stay. There are mechanisms that can be used and directions made to protect the defendants' right to silence such as were made by the Court of Appeal in Restricted Judgment [2016] NSWCA 103 (see order (7)).
[4]
The plaintiff's application for the stay to be re-opened and set aside
As the stay will expire a little over a week from the hearing of the plaintiff's application, there is no particular utility in revisiting it, rather than simply allowing it to lapse. As I apprehend the gravamen of the plaintiff's application, it is that the Court ought not reward non-disclosure and should mark its opprobrium by setting aside the stay which was sought in circumstances where there had been a material non-disclosure. The plaintiff has also foreshadowed an application for an order that the defendants (or their solicitors) pay the plaintiff's costs, including those thrown away by the vacation of the hearing dates in the week commencing 23 May 2016, on an indemnity basis. This matter is noted for completeness but will not be addressed as any costs applications are to be made after publication of these reasons.
In order to address the plaintiff's application for the dissolution of the stay it is necessary to set out some background to the criminal proceedings and these (the civil) proceedings as well as the defendants' evidence and arguments in support of their application for a stay.
[5]
Background to the criminal proceedings
On 23 December 2013 the first defendant was arrested and charged with offences contrary to s 400.9 of Sch 1 of the Criminal Code Act 1995 (Cth) (the Criminal Code) (dealing with proceeds of crime) and s 254(b)(ii) of the Crimes Act 1900 (NSW) (using a false document to influence the exercise of a public duty). On 1 October 2014 the second defendant was charged with an offence contrary to s 400.9 of the Criminal Code.
The charges of dealing with proceeds of crime under s 400.9 of the Criminal Code relate both to payments which were made by the defendants in reduction of the mortgage over the home where they live in Holgate (the Holgate Property), but which is not registered in their names; and payments made by them to improve the property. The Crown case is that the monies used for these purposes were proceeds of crime.
The charge under s 254(b)(ii) of the Crimes Act relates to the provision of a document associated with the registration of a Mercedes 2013 G63 motor vehicle (the Mercedes). The document appeared to be signed by the two directors of the company that was registered as the owner of the Mercedes. However, it is alleged that the two directors did not sign the document and that the first defendant used the document, which was false, to register the vehicle in the name of the company.
On 23 October 2015 the criminal trial of the defendants was set down for hearing in the District Court on 8 August 2016.
[6]
The civil proceedings
The plaintiff commenced these proceedings by summons filed on 24 April 2014 (after the first defendant was charged but before the second defendant was charged). The plaintiff sought a restraining order over the Holgate Property and the Mercedes. Restraining orders were made on 24 April 2014. By notice of motion filed on 6 November 2014 the first defendant sought exclusion orders in relation to certain property. Affidavits of the first and second defendants and an accountant, Harry Mavrolefterou, were filed and served with the notice of motion.
On 19 February 2015 the second defendant was examined under s 180 of the Proceeds of Crime Act. On 20 February 2015 the first defendant was examined under the same provision. On 31 March 2015 an order for the examination of Mr Mavrolefterou was made under s 180 of the Proceeds of Crime Act. He was examined on 3 June 2015.
On 29 September 2015, the first defendant's notice of motion for an exclusion order was listed, by consent, for hearing on 24 May 2016.
On 29 April 2016 the first defendant was granted leave (by consent) to file an amended notice of motion by 2 May 2016, which was listed for directions on 5 May 2016 to give the plaintiff an opportunity to consider whether he was in a position to meet any amended notice of motion at the allocated hearing dates of 23 and 24 May 2016.
On 2 May 2016 the defendants filed an amended notice of motion which added the second defendant as an applicant and extended the property in respect of which the exclusion order was sought. Notwithstanding the amendments to the motion, the same affidavits in support were relied upon.
On Monday 23 May 2016, counsel for the defendants advised the Court that an application for a stay of the exclusion application pending determination of the criminal trial was to be made. No prior notice of the application had been given. The application for a stay (and the application for an exclusion order) was adjourned for hearing on Friday 27 May 2016. Orders were made and reasons published on 1 June 2016.
[7]
The evidence relied on by the defendants in support of the stay application
The defendants relied on particular paragraphs of affidavits of James Patterson, a Special Member of the Australian Federal Police (AFP) dated 23 April 2014 and 23 September 2015 to establish the overlap between the criminal and civil proceedings. They also relied on their own affidavits in which they deposed to their concern that, if they swore detailed affidavits in the civil proceedings, they would be effectively relinquishing the benefit of their right to silence in the criminal proceedings. In his affidavit sworn 23 May 2016 the first defendant deposed that, in order to support his application for an exclusion order, he would be required to:
"give evidence as to the purchase of the Property or ownership of any bank accounts I hold directly relevant to the charges I face in the Criminal Proceedings.
. . .
If the Civil Proceedings are not stayed I am also concerned that the prosecution in the Criminal Proceedings would be informed, in advance of my trial, of my defence. I could not realistically defend the Civil Proceedings without telegraphing my likely defence to the Criminal Proceedings."
The first defendant also deposed as follows:
"8. I am concerned that if I have to rely on a detailed affidavit or be cross-examined regarding the purchase of the Property and source of any relevant funds that there is a real risk that any such evidence will prejudice my criminal case.
9. In properly presenting my case for the Civil Proceedings I would be necessarily required to address these matters in any affidavit read and relied on. However, to do so would require me to give evidence as to the purchase of the Property or ownership of any bank accounts I hold and the source of any funds into these accounts. These matters are directly relevant to the charges I face in the Criminal Proceedings. If I am to rely on an affidavit deposing to these matters in the Civil Proceedings I will, in effect be waiving my right to silence. I do not wish to do so. I refer to this as my right to silence concern.
10. I note that the charges in the Criminal Proceedings relate to the period 1 January 2009 to 23 December 2013. If the Civil Proceedings are not stayed I am also concerned that I will be cross-examined about other matters such as the origin of particular funds and assets outside this period and there is a real risk that this will prejudice my rights and that it may open up further investigation against me or others. I refer to this as my additional material concern.
11. If the Civil Proceedings are not stayed I am also concerned that I will be relying on matters, and be cross-examined about matters, such that my defence in the Criminal Proceedings will be restricted, or otherwise affected, by the evidence adduced in the Civil Proceedings. I refer to this as my restriction of my defence concern.
12. If the Civil Proceedings are not stayed I am also concerned that the prosecution in the Criminal Proceedings would be informed, in advance of my trial, of my defence. I could not realistically defend the Civil Proceedings without telegraphing my likely defence to the Criminal Proceedings. I refer to this as my advance notice to the prosecution concern.
In her affidavit of 23 May 2016 the second defendant deposed to similar concerns.
The defendants' application for a stay was heard on 27 May 2016. The defendants argued in support of their application for a stay that "any unauthorised disclosure" of the material in the civil proceedings would jeopardise the criminal trial and compromise their right to silence. The plaintiff argued that this Court could make appropriate orders to ameliorate any potential prejudice, including orders that no one involved in the criminal trial be present at the civil proceedings and that the transcript and any evidence adduced in the civil proceedings not be disclosed to any person involved in the prosecution of the defendants.
The potential for unauthorised disclosure was a matter which I took into account (along with other matters including the imminence of the criminal trial) in deciding to grant the stay.
[8]
Matters ascertained by the plaintiff after publication of the Stay Judgment about the extent of the defendants' disclosure to the DPP in the criminal proceedings of material also relied on by them in the civil proceedings
On 24 June 2016 Lynne Booth, the solicitor with carriage of the civil proceedings on behalf of the plaintiff, contacted Matthew Clifford-O'Sullivan, the solicitor with carriage of the criminal trial on behalf of the Crown, to confirm that the trial was to proceed on 8 August 2016. In the course of the discussion, Ms Booth asked whether the defendants had made any admissions. Mr Clifford-O'Sullivan responded that they had provided an affidavit and documentary material to establish that the first defendant had received considerable funds from his father. In a subsequent conversation that day with Ms Booth, Mr Clifford-O'Sullivan confirmed that the Crown had been provided with three Lever-Arch files of material, including tax returns and statutory declarations made by the first defendant and others about money he had received.
On 27 June 2016 Ms Booth met with Federal Agent Anderson and Mr Staples, who was helping her with this matter. Federal Agent Anderson brought with him material which he had collected from the defendants' accountant's office and copied for the DPP (the Material). The plaintiff already had a copy of the Material since some of it had been provided by the defendants' solicitors on 17 February 2015 in response to a letter from the AFP (Ms Booth) dated 28 November 2014 requiring the source documents for the affidavit of Mr Mavrolefterou; and the balance had been produced by Mr Mavrolefterou at his examination under s 180 of the Proceeds of Crime Act on 3 June 2015.
The following day, on 28 June 2016, Ms Booth wrote to Lauren MacDougall, the defendants' solicitor, to inform her that she had become aware that the defendants had disclosed to the DPP a substantial number of documents and affidavits relied on by the defendants, or provided by the defendants to the plaintiff, in the civil proceedings. Ms Booth sought an explanation as to why the defendants' disclosure of this material to the DPP had not been disclosed to this Court at the hearing of the defendants' stay application.
On 30 June 2016 Ms Booth received an email from Federal Agent Anderson which contained a copy of an email he had received on 23 September 2015 from Mr Clifford-O'Sullivan which confirmed that the affidavits sworn by the first defendant and Mr Mavrolefterou had been provided by the defendants' solicitors to the DPP.
On that day, 30 June 2016, Ms Booth also raised with Ms MacDougall the fact that the defendants had voluntarily provided copies of their affidavits in the civil proceedings to the DPP. She invited the defendants to consent to the setting aside of the stay and informed Ms MacDougall that the matter would be re-listed for the plaintiff's application to have the stay set aside.
On 11 July 2016 a subpoena to the DPP was issued at the plaintiff's request. The documents produced in answer to the subpoena included an email dated 14 September 2015 from Ms MacDougall to Mr Clifford-O'Sullivan (of the DPP) in the following terms:
"Please see attached, material filed in the Supreme Court proceedings:
Notice of Motion filed in the Supreme Court, seeking the exclusion of the property subject to restraining orders.
An affidavit by [the first defendant] in support of the Motion.
An affidavit by Accountant, Mr Mavrolefterou also in support of the motion.
Mr Mavrolefterou also provided us with a financial analysis of source of funds in and out for [the first defendant] and [the second defendant]. That is in the process of being copied and will be provided to you this week."
Ms Booth's unchallenged evidence is that the material apparently provided by Ms MacDougall to the DPP is the same material as was provided to her, as solicitor for the plaintiff in the civil proceedings.
On 26 July 2016 the matter was mentioned before me for allocation of a hearing date for the plaintiff's notice of motion to set aside the stay. Ms Mirzaee-Amirabad appeared for the defendants at that mention. On 26 July 2016 the hearing date of 23 August 2016 was allocated.
On 29 July 2016 Ms MacDougall telephoned Ms Booth from the airport to tell her that she was going overseas and that she would not be returning until 28 August 2016. On 29 July 2016 Ms Booth was served with an affidavit of Ms MacDougall sworn on 28 July 2016. Ms Booth informed the plaintiff's solicitors by email on 29 July 2016 that Ms MacDougall would be required for cross-examination.
[9]
The vacation of the date allocated for the criminal trial
On 5 August 2016 Ms Mirzaee-Amirabad, who is a junior employed solicitor under the supervision of Ms MacDougall, swore an affidavit in support of the defendants' application in the District Court to vacate the trial date for the criminal trial. She deposed that all of the first defendant's bank accounts were frozen in the civil proceedings. I note that no bank accounts held in the name of the first defendant, nor any assets in the first defendant's name, are the subject of a restraining order.
The defendants' application to vacate the trial date was listed before Conlon DCJ on 8 August 2016. Their solicitors did not advise the plaintiff of the application, either in advance, or after the application was granted. Nor was any reference made to the application in the submissions filed on behalf of the defendants on 8 August 2016 in opposition to the plaintiff's application to re-open the stay. It was not suggested that Mr Bennett, counsel for the defendants who wrote the submissions filed on 8 August 2016, was aware that the adjournment application had been made and granted. Indeed, Mr Bennett confirmed at the mention on 17 August 2016 (see below) that he was not aware of it until after it was granted, at which time he sought instructions to inform counsel for the plaintiff.
Mr Korn, who appeared for the defendants, referred to Ms Mirzaee-Amirabad's affidavit which had been filed in support of the application. However, it did not appear to have reached the court file and was not referred to further on the application.
The transcript of the hearing before the District Court was tendered by the plaintiff in support of the motion to re-open the stay and in opposition to the defendants' application to extend the stay. The transcript records that Mr Korn gave the following explanation of the reason for the application:
"Can I just say this, and it's set out in the affidavit why comprehensively, although we are asking to vacate the hearing date, it's not a course that tactically and for other reasons appeals to us, we are being forced to do it because the AFP under its Commonwealth DPP hat and under its AFP forfeiture of proceedings hat in the Supreme Court is running what is very effectively the same issue in two different places at the same time and my client has been forced into the position where instead of the forfeiture proceedings waiting their turn until the criminal matter is over they are charging ahead."
Mr Korn disclosed the defence case in the District Court in the following terms:
"Their person [the Crown] says that our financial position doesn't explain why we built up assets over 12 years. We got all our tax returns done and we say it does so it comes down to an accounting consideration."
[10]
The mention on 17 August 2016
The plaintiff re-listed the matter before me on 17 August 2016 as Ms Booth discovered that the adjournment of the criminal trial had been granted on 8 August 2016. On that day I directed the defendants to serve evidence as to the circumstances in which the adjournment of the District Court trial was sought and granted.
[11]
The affidavit of Shirin Mirzaee-Amirabad
Ms Mirzaee-Amirabad swore an affidavit on 18 August 2016 which was relied on by the defendants. She deposed that on 8 August 2016 she instructed Mr Korn to apply to vacate the date for the criminal trial. She also deposed that it was never the intention of the defendants to have the matter vacated but that the need for this arose as the defendants did not have the funds and "informed my Principals that they simply could not arrange the funds for the Criminal Trial".
Ms Mirzaee-Amirabad also deposed as to the following conversation with Ms MacDougall on 17 August 2016:
"Ms Mirzaee-Amirabad: Lauren, I am deposing an affidavit in the [civil proceedings]. Part of that affidavit is to address why the fact that the material that Korn MacDougall had previously provided to the Commonwealth DPP was not in evidence before Justice Adamson. Can you tell me why so I can include it in my affidavit?
Lauren: Yes, it was an oversight on my part. The decision to file the stay was made very early on 23 May 2016, which was when the exclusion application was listed. I had forgotten that the earlier email had been sent. The first time I realised that I had previously sent material to the Commonwealth DPP was when the AFP wrote to us in late July. I never intended to mislead the Court by withholding information or misrepresenting information."
[12]
The principles that apply to varying or dissolving a stay
The plaintiff relies on this Court's jurisdiction under Uniform Civil Procedure Rules (UCPR) 36.15 and 36.16 as well as the inherent jurisdiction. As the stay granted on 1 June 2016 was not a permanent stay, it is appropriate to treat it as an interlocutory order which can be revisited if there is a fundamental, or at least material, change in the basis on which the stay was granted, or if there has been material non-disclosure. A stay may be varied, discharged or suspended in appropriate circumstances, either by the judge who ordered it, or another judge: Hutchinson v Nominal Defendant [1972] 1 NSWLR 443, at 452, citing Woods v The Sheriff of Queensland (1895) 6 QLJ 163 at 164-165 per Griffiths CJ, who said:
"The same principle that allows relief to be given against the continued operation of a final judgment obviously extends also to giving relief against the continued operation of an interlocutory order if after it is made new facts come into existence or are discovered which render its enforcement unjust. Such a contingency is plainly much more likely to arise in a case of an interlocutory order than in that of a final judgment."
The jurisdiction to dissolve or vary a stay does not depend on a change in circumstances, since the jurisdiction may also be exercised if good cause is otherwise shown: Cooper v Williams [1963] 2 QB 567 at 580 (Denning LJ) and 582 (Danckwerts LJ).
The plaintiff relies on the defendants' failure to disclose that they had already chosen to disclose to the DPP as part of their defence to the criminal charges, the affidavits to be relied on by them in the civil proceedings together with the source documents in support.
Ms MacDougall gave no explanation for her failure to disclose this matter in her affidavit in opposition to the plaintiff's application. Her second hand explanation, that she forgot, appears only in the affidavit of Ms Mirzaee-Amirabad, who, as the mere conduit of the explanation could not usefully be cross-examined about it. It was admitted on the limited basis of the terms of the communication rather than as to the truth of what Ms MacDougall said. The voluntary disclosure of the material to the DPP was a highly material matter to the application for a stay, since it indicated the likelihood of the defendants putting a positive defence to the charges and also demonstrated that there was no risk of "unauthorised" or unintended disclosure of that material by the plaintiff to the DPP since its disclosure had already been effected, voluntarily, by the defendants themselves.
Although it was not articulated by the plaintiffs in this way, I note that the defendants did not disclose, at the hearing of the stay application, that the hearing of the criminal trial depended on their securing the funds for legal representation, which had not, as at the date of the application for the stay, been secured. As is evident from my reasons in the Stay Judgment, the imminence and likely duration of the criminal trial was an important factor in my decision to grant the stay. Had I appreciated that there was a risk that the defendants would apply to have the criminal trial adjourned due to lack of funds, I would not have granted the stay without requiring assurance that there were sufficient funds to permit the criminal trial to proceed as listed.
The consequences of Ms MacDougall's failure to instruct the defendants' counsel at the hearing of the stay application (who were not briefed in the criminal trial) of each of these two matters was that they did not appreciate the true situation and were, accordingly, not in a position to disclose the material facts to the Court in the course of the defendants' application for a stay.
The defendants' application for a stay was not made ex parte. Accordingly, the obligations of disclosure and candour that apply to ex parte applications did not apply to the application. However, Ms MacDougall, the solicitor with carriage of the criminal and civil proceedings, failed to disclose to the Court or to the defendants' counsel two matters which were highly material to the application. It would not be appropriate, on the state of the evidence, to draw any conclusion that the non-disclosure was deliberate. Even if I were to accept the proposition that it was an oversight, it was nonetheless a serious oversight and led to the adjournment of the civil proceedings on a flawed basis.
Mr Bennett submitted that it would only be appropriate to set aside the stay in advance of its expiry if I were satisfied that I would not have granted it had I known the true position. I do not accept that to be the relevant test. The discretion is not constrained by any such rule.
In my view, the principles relevant to applications for interlocutory injunctions also apply to applications for temporary stays. In Elton v Cavill (No. 2) (1994) 34 NSWLR 289, Young J said, at 304:
"It is trite law that if a person asks for an interlocutory injunction but failsto make full disclosure, then the judgment will be set aside and it matters notthat even if there had been full disclosure the injunction still would havebeen granted: Thomas A Edison Ltd v Bullock (1912) 15 CLR 679. . . .The court needs to maintain its policy that if a person is to obtain an interlocutory order the proper standard of disclosure must be maintained. I appreciate that the present injunction was not granted on an ex parte basis, but it seems to me that a similar policy consideration arises where injunctions are granted on an interlocutory basis where both parties are present because of the limitedinquiry which judges customarily make on such an application."
In the present case, the application for a stay was made, without notice, on the first day of the hearing. It was ultimately heard four days later. Although the plaintiff could have inquired of the Commonwealth DPP what material, if any, had been provided by the defendants, there was no reason for the plaintiff to do so when the tenor of the defendants' application in this Court was that they maintained their right to silence. Further, had there been any issue, at the time of the application for a stay, about whether the criminal trial which was listed for hearing on 8 August 2016 would go ahead because of the defendants' financial position, it could reasonably be expected that their counsel would disclose it to the Court. In any event, the state of the financial position of the defendants was not something which the plaintiff otherwise had any interest in investigating.
I consider the present to be an instance where this Court needs, to borrow the words of Young J in the passage from Elton v Cavill (No. 2) set out above, to enforce the proper standards of disclosure. In my view, the defendants, by failing to disclose to the Court: first, that they had already served on the Commonwealth DPP their affidavits and supporting material in the civil proceedings; and, secondly, that their financial resources (or any grant of legal aid) were not such as could ensure that the criminal trial would go ahead as listed in August 2016. I am prepared to accept, for present purposes, Ms MacDougall's explanation that her failure to disclose the first matter was as a result of oversight.
In these circumstances I am persuaded that it is appropriate to set aside the stay which I made on 1 June 2016. I realise that the utility of so doing is limited because it would have expired in any event on 31 August 2016. However, there may be costs consequences as a result of the order. Moreover, it is important that practitioners appreciate the professional obligations which are imposed on them with respect to applications for interlocutory orders, such as a stay of proceedings. These obligations are particularly significant in cases such as the present when the same solicitor is briefing two sets of barristers in different proceedings and therefore cannot assume that counsel will alert the solicitor to the need to disclose matters. In the present case there is no suggestion that either Mr Windsor SC or Mr Bennett knew of the matters which were not disclosed, since they were briefed exclusively in the civil proceedings and not in the criminal proceedings.
[13]
Orders
For the foregoing reasons, I make the following orders:
1. Set aside the stay of these proceedings ordered on 1 June 2016.
2. Reserve the costs of the plaintiff's application to set aside the stay; of the adjournment of the proceedings; and of the defendants' application for an extension of the stay.
3. If any application for costs is to be made by any party (the applicant) against any party (the respondent) the following directions apply:
1. Direct the applicant to serve on the other parties and provide to my Associate by email such application within seven days hereof with submissions in support;
2. Direct the respondent to any such application to respond by the same means within a further seven days and;
3. Direct the applicant to reply by the same means within a further seven days.
[14]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 August 2016