Dadley v Fire and Rescue NSW

Relevant legislation and legal principles

1. The parties agreed that the Commission is able to stay the proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act). It was also uncontroversial that the Commission should determine the matter with the overriding objective in civil proceedings in mind, namely to facilitate the just, quick and cheap resolution of the real issues in dispute, having regard to the dictates of justice, including the efficient disposal of the business of the Court.
2. The parties did not agree with respect to the relevant legal principles the Commission should apply when determining the Notice of Motion.
3. The applicant referred the Commission to the Court of Appeal decision in L & W Developments Pty Ltd v Della [2003] NSWCA 140 where it was held that the relevant considerations to be taken into account in determining whether a temporary stay should be granted pending proceedings in another court include the following: 1. which proceedings were commenced first; 2. whether the determination of one proceeding is likely to have a material effect on the other; 3. the public interest; 4. the undesirability of two courts competing to see which of them determines common facts first; 5. consideration of circumstances relating to witnesses; 6. preparation might be wasted; 7. the undesirability of substantial waste of time and effort if it becomes common practice to bring actions in two courts involving substantially the same issues; 8. how far advanced the proceedings are in each court; 9. the law should strive against permitting multiplicity of proceedings in relation to similar issues; and 10. generally balancing the advantages and disadvantages of each party.
4. The applicant referred to a number of cases of the Commission where the principles espoused in L & W Developments Pty Ltd were applied to temporarily stay proceedings including: Bottomley v James Estate Wines [2005] NSWIRComm 1052 at [15]; L&D Lowe Transport Pty Ltd v Riteway Transprot t/as Riteway Express [2009] NSWIRComm 22 at [14] and Benjamin James Creighton v NSW Department of Education and Communities [2016] NSWIRComm 1015 at [27] - [44].
5. The applicant also submitted that the Supreme Court decision of Environmental Group Ltd v Croudace (unreported, Supreme Court, NSW, Santow J, No 1468/98, 7 August 1998), is particularly relevant to the present proceedings. That matter concerned an application to stay Supreme Court proceedings pending proceedings before this Commission under s 106 of the Act to avoid or vary two of the contracts the subject of the Supreme Court proceedings. Reference was made to the following passage of Santow J when staying the proceedings (at BC9803683 p 41- 42): "The factor which weighs heaviest in that result is the potential impact of the IRC proceedings on the Supreme Court proceedings… [T]he IRC proceedings have the potential to result in an avoidance or variation of two of the agreements the subject of the Supreme Court proceedings... with consequential fundamental effect on those latter proceedings.... If the IRC proceedings are heard first, it will not impact adversely upon the capacity of the Supreme Court to deal with the issues still remaining. Indeed it will then be clear whether the three agreements are or are not avoided or varied."
6. The respondent submitted that the case of L&W Developments does not set out the relevant principles applicable to the current application. It argued that the decision in L&W Developments considers the intersection of two concurrent proceedings, stating that at this time, there are not two concurrent proceedings, with the applicant having only filed a Notice of Intention to Appeal, which of itself does not constitute an appeal.
7. The respondent further argued that L&W Developments does not concern the intersection of a criminal proceeding as against a civil proceeding, as is the case here.
8. The respondent instead referred the Commission to the decision of Kevin Cooper v Australia Taxation Office [2014] FWC 7551 (Cooper) noting that in that matter, the Fair Work Commission rejected an application for a stay on the following bases (see [8] of the respondent's written submissions): "(a) It is clear that the exercise of simultaneous criminal proceedings does not automatically lead to an adjournment of a civil proceeding. (b) Mr Cooper gave evidence in his criminal matter and was cross-examined. There will be no prejudice to Mr Cooper if he gives evidence in his unfair dismissal application. (c) The matter before the Commission is not the same as the matter before the Court. The Commission does not have to decide if Mr Cooper is guilty of any criminal offence. The Commission must decide if the termination of Mr Cooper's employment was harsh, unjust or unreasonable. (d) Mr Fitzpatrick submitted that because the ATO relied on Mr Cooper's conviction to justify the termination of his employment, the question of whether Mr Cooper's conviction is overturned is relevant and that should be determined prior to the hearing of his unfair dismissal application. (e) The ATO submitted that its defence of this application can proceed notwithstanding that Mr Cooper may appeal his conviction. (f) In all circumstances, I do not consider that a further adjournment is warranted. Mr Cooper had not appealed his conviction and he may not. If he does, his conviction may stand or fall. It is not clear how long that will take or when a decision will be handed down. The success or otherwise of any appeal if filed will not determine the outcome of unfair dismissal application. The ATO is entitled to have this matter heard and determined."
9. The decision of Cooper is succinct and does not set out relevant principles having broader application to proceedings such as these. Reference is made in Cooper to the decision of Watson SDP in Sanford v Austin Clothing Company Pty Ltd (2000) S8287 (Sanford).
10. In Sanford, the Commission considered an application for an indefinite stay, pending the outcome of criminal proceedings stay, relating to essentially the same allegations that formed the basis of the reasons for the applicant's termination. The applicant's case for adjournment was put on the basis that his criminal case would be prejudiced as he would effectively lose his "right to silence" by being required to give evidence in the proceedings before the criminal proceedings were concluded.
11. In that matter, the Fair Work Commission noted the statutory presumption under the Workplace Relations Act 1996 (Cth) that the matter would be dealt with expeditiously: see [23]-[26]. Further, Watson SDP cited with approval the principles set out by Wootten J in McMahon v Gould (1982) 1 ACLC 98 in analogous circumstances as follows: "(a) prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court; (b) it is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds; (c) the burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with; (d) neither an accused or the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding; (e) this court's task is one of the balancing of justice between the parties', taking account of all relevant factors; (f) each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors; (g) one factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's right of silence', and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding; (h) however, the so-called `right of silence' does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding; (i) the court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings; (j) in this regard factors which may be relevant include: (i) the possibility of publicity that might reach and influence jurors in the civil proceedings; (ii) the proximity of the criminal hearing; (iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses; (iv) the burden on the defendant of preparing for both sets of proceedings concurrently; (v) whether the defendant has already disclosed his defence to the allegations. (k) the effect on the plaintiff must also be considered and weighed against the effect on the defendant; and (l) in an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed."
12. While each of the authorities relied upon by the parties has provided useful guidance, ultimately, the decision with respect to the notice of Motion must be determined on its own facts. Some of the matters set out in the principles enunciated in Sanford are not applicable to the case at hand where the applicant does not argue that his right to self-incrimination will be removed by the requirement to proceed with his case: see (g),(h) and (i). The remaining principles are on point.
13. I consider that the respondent is entitled to expect that the matter will be determined as quickly as practicable: see s 162 (2)(a) of the Act and s 67 of the Civil Procedure Act. However, both parties are also entitled to expect that the Commission will balance this objective with the need to determine proceeding in a manner that is fair and just (s 3(a)) and will act in accordance with equity, good conscience and the substantial merits of the case, albeit without regard to technicalities or legal forms (s 163(1)(c)). These objectives and expectations will not always align.
14. There is a need to balance all of the factors in the case, including the competing interests of the parties to determine whether it is appropriate to exercise the discretion to grant the stay sought. In this regard, the applicant bears the onus to demonstrate that it is appropriate to depart from the usual practices adopted by the Commission in managing the proceedings. The fact that criminal proceedings remain outstanding where charges, or in this case, a conviction is in respect of the same issue that has led the termination does not give rise to an automatic right that the proceedings are stayed.

The parties submissions on relevant factors

1. The applicant addresses the factors it says are relevant to the Commission's determination at [19] to [35] of his written submissions as follows: "[19] The factor that should weigh heaviest in the Commission's mind in determining whether Mr Dadley's application for stay should be granted is the fact that the outcome of the criminal proceedings will likely have strong impact on the outcome of the IRC proceedings. [20] In view of the undertaking given by Mr Dadley, if Mr Dadley is unsuccessful in the criminal appeal then the IRC proceedings will be discontinued. Conversely, if Mr Dadley is successful in the criminal proceedings and thereby acquitted in respect of the offences that he has been charged with, that will change the character of the IRC proceedings as the fact of the conviction was the only ground relied upon by FRNSW in dismissing Mr Dadley. [21] It is therefore appropriate for the IRC proceedings to be stayed pending the finalisation of the criminal appeal, especially in circumstances where no prejudice will be suffered by FRNSW due to the undertakings being given by Mr Dadley. Which proceedings commenced first [22] Turning to the other factors identified by the Court of Appeal in L & W Developments Pty Ltd, the criminal appeal was initiated by Mr Dadley filing the notice of intention to appeal on 5 August 2020, well before the IRC proceedings were commenced. Whether the determination of one proceeding is likely to have a material effect on the other [23] As noted above, the determination of the criminal appeal is likely to have a significant effect on the outcome of the IRC proceedings, whereas the outcome of the IRC proceedings will not have any impact on the criminal appeal. Undesirability of substantial waste of time and effort; how far advanced are the proceedings in each Court; whether work carried out on pleadings etc will be wasted [24] Granting the stay is likely to avoid a substantial waste of time and effort by both parties and the Commission, especially light of the undertaking given by Mr Dadley to discontinue the IRC proceedings if he is unsuccessful in the criminal appeal. [25] Refusal of the stay application would require the parties to expend time and costs associated with the preparation of evidence and other material in support of the unfair dismissal application. Further, the Commission will have to expend time and effort in case managing the matter. [26] Subsequently, if the IRC proceedings are then discontinued due to Mr Dadley being unsuccessful in the criminal appeal (in accordance with the undertaking given by him) then the time and effort expended by the parties, as well as the Commission, will have been wasted. [27] Similarly, if the application for stay is refused and the parties expend time and effort preparing evidence and, subsequently, Mr Dadley's conviction is overturned prior to the determination of the IRC proceedings, it may be necessary to revisit the evidence resulting in wastage due to duplication. [28] By contrast, if the stay was granted there would be no such wastage. Granting of the stay would merely mean that, if Mr Dadley is successful in the criminal appeal proceedings, then the expenditure of time and effort that would otherwise need to occur immediately would occur at a later date. [29] Further, whilst the criminal appeal proceedings and IRC proceedings are both at relatively early stages, a considerable amount of work has already been done in relation to the criminal appeal proceedings as is evident from the draft grounds of appeal and draft appeal submissions annexed to Mr Dadley's affidavit. By contrast, save for the conciliation, this stay application is the very first step taken by the parties in the IRC proceedings. Public interest [30] Further, if the IRC proceedings were to progress to its conclusion on the basis of the conviction and Mr Dadley is subsequently acquitted on appeal, then there is a potential for there to be inconsistent findings being made by the Courts and the Commission. There is a strong public interest in avoidance of inconsistent judicial determinations. [31] Further, for the reasons discussed above, the granting of the stay has the potential to reduce future legal costs which is an important public interest consideration. (See Benjamin James Creighton v NSW Department of Education and Communities [2016] NSWIRComm 1015 at [311). … Balancing the advantages and disadvantages to each party [33] If the stay was refused, then Mr Dadley would be deprived of the opportunity to avail himself of appeal rights which have the potential to overturn the sole ground for the termination of his employment (that is, the fact of his conviction), before his unfair dismissal application is determined. [34] Depriving Mr Dadley of the opportunity to overturn his conviction prior to determining unfair dismissal application, would in all likelihood be fatal to Mr Dadley's prospects in relation to that application. It therefore follows that refusal of the stay would occasion significant disadvantage upon Mr Dadley. [35] By contrast, any prejudice to FRNSW due to the IRC proceedings being stayed is ameliorated to a very large degree by the undertakings given by Mr Dadley."
2. The applicant concludes that the circumstances of the case on balance favour the Commission exercising its discretion to grant the temporary stay sought by him.
3. The respondent set out the basis for opposing the Notice of Motion at [10]-[19] of their written outline of submissions (footnotes omitted and some changes to formatting): Overriding Objectives [10] Mr Dadley contends that a stay is warranted on the basis that the "finalisation of any appeal against his conviction" [emphasis added] will have "a material effect on the IRC Proceedings". In a similar vein, Mr Dadley contends that "the conviction in the criminal proceedings was the sole ground relied upon by [FRNSW] for [his] dismissal' [emphasis added]. These contentions are incorrect for a number of reasons. [11] First, whilst it is correct that FRSNSW moved to terminate Mr Dadley's employment following the jury in Mr Dadley's trial returning guilty verdicts, it does not follow that the maintenance of the guilty verdicts will be determinative or dispositive of the unfair dismissal proceedings. [12] FRNSW's decision to terminate Mr Dadley's employment was made by reference to the following matters: (a) The two guilty verdicts returned by the jury on 30 July 2020; (b) a certificate of Order issued by the court dated 20 August 2020, confirming the jury's guilty verdicts; (c) Mr Dadley's written submissions dates 18 August 2020; (d) Mr Dadley's verbal submissions made at meeting of 28 August 2020; (e) The extremely serious nature of the offences for which he was found guilty; (f) The nexus between the conviction and Mr Dadley's employment with FRNSW; (g) Mr Dadley's employment history with FRNSW, years of service, and seniority of rank; (h) Reputational risk to FRNSW in maintaining Mr Dadley's employment; and (i) The responsibility FRNSW has to provide a safe workplace for all employees and in particular the victim of the relevant offence. [13] Whilst the maintenance of the guilty verdicts will undoubtedly be a matter that features in the unfair dismissal proceedings, it is to be rememebered (sic) that in the unfair dismissal proceedings: (a) FRSNSW will not be bound by any criminal standard of proof and will need only establish relevant factual matters and conclusions on the civil standard in accordance with the principles in Briginshaw; (b) Even if the convictions are discharged (which is an entirely speculative exercise at this stage), FRSNSW will contend in the proceedings that Mr Dadley's conduct was nevertheless serious and that the termination of his employment was warranted; (c) FRSNSW will also contend that on any view (irrespective of the status of the convictions) Mr Dadley should not be reinstated and will seek to rely upon a whole body of evidence and other materials in this regard. [14] Thus, it does not follow (as contended by Mr Dadley) that any appeal will be determinative of the unfair dismissal proceedings. This was the position that was correctly reached in the Cooper decision. [15] Second, there is a public interest in the IRC discharging its statutory duties in seeking to hear the unfair dismissal proceedings quickly, cheaply and efficiently. What is being proposed by Mr Dadley is likely to result in a (sic) inordinate delay to the effective case management and hearing of the proceedings. The orders he proposes will mean that nothing will happen in these proceedings for some time. There is no justification given for why the parties cannot now proceed to file their evidence and submissions before the proceedings are set for hearing at a later time. Mr Dadley cannot complain that he should not be met with the burden of putting on his evidence given that it is evident that extensive evidence was given in the criminal trial, including from Mr Dadley - he must know what his case is and should get on with putting that evidentiary case on. Balancing the Justice Between the Parties [16] FRNSW submits that the indeterminate nature of the prospective stay would cause it prejudice to the extent that it would cause significant uncertainty and anxiety among staff. [17] For the reasons submitted above, Mr Dadley's submission that there is a public interest in avoiding inconsistent judicial determinations is irrelevant given that (as noted above) the outcome of the appeal (if one is instituted (sic)) will not dispose of the unfair dismissal proceedings. That would not result in an inconsistency of determinations, but simply reflect the fact that the IRC's jurisdiction in the unfair dismissal proceedings is a broder (sic) one that is not solely determinated (sic) with whether Mr Dadley was guilty of a criminal offence or not. [18] On the other hand, FRSNSW, as a public authority, is dealing with a workforce that is anxious to have a swift determination as to whether Mr Dadley will be returning to the workforce, irrespective of whether he is guilty of a criminal offence. That anxiety, and FRSNSW's duty to employees to manager their well being, cannot be underscored. As noted above, FRSNSW intends to propound a case in the IRC that irrespective of whether Mr Dadley is guilty of a criminal offence (or not), he should not be reinstated or re-employed by FRSNSW. [19] Mr Dadley's submissions to the effect that FRNSW could only be economically prejudiced takes the matter no further as it misses the point of FRSNSW's opposition to the stay. As such, his proposed undertakings do not adequately ameliorate any prejudice to FRNSW if the Stay Application were successful."
4. Although the applicant submitted that the factors in L&W Development are apposite, it made the following written submissions in answer to the applicant's submission on the factors contained in that decision at [20]-[24]: [20] FRSNSW does not accept that the factors set out in L&W Developments are apposite, but deals with these matters below for completeness. (a) Which proceedings were commenced first: Mr Dadley contends that there are two proceedings relevant to the Motion, being the IRC Proceeding and a foreshadowed appeal of the Criminal Proceedings. However, as noted above, no such appeal has been instituted, and, as such, the IRC Proceeding was commenced first and is currently the only proceeding. (b) Whether the Determination of one Proceeding is likely to have a material effect on the other: FRSNSW repeats its submissions above on this factor. (c) Undesirability of Substantial Waste of time and effort; how far advanced are the proceedings in each Court; whether work carried out on pleadings etc will be wasted: In the event that Mr Dadley institutes the foreshadowed appeal, preparation for that appeal would not involve preparation of pleadings and evidence common to the IRC Proceeding, and would instead require the Court of Criminal Appeal to consider the evidence of the Criminal Proceedings. (d) Public Interest: Mr Dadley's submission that there is a public interest in avoiding inconsistent judicial determinations is irrelevant (and) has been dealt with above. [21] Further as to public interest, FRSNSW contends that it is in the public interest to observe overarching case management principles. Section 67 of the Civil Procedure Act 2005 (NSW) enables the IRC to stay the IRC Proceedings noting the IRC's overriding objective in civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in dispute, having regard to the dictates of justice, including the efficient disposal of the business of the Court. [22] In the current circumstances, it is also appropriate to cite the relevant objectives of the IRC within the bounds of its general functions in particular, that the IRC must take into account the public interest in the exercise of its functions; and that the IRC may determine its own procedure. [23] FRNSW submits that the manner in which it - as an agency - is perceived is a matter of public interest. It is of the utmost importance that the public maintain faith in the FRNSW and view it as an organisation of the utmost integrity. FRNSW cannot maintain that public image in circumstances where there is indeterminate delay in finalising the IRC Proceedings, particularly given Mr Dadley is seeking reinstatement. [24] For all the above reasons, the application for a stay should be rejected."
5. The respondent concludes that the Commission should dismiss the Notice of Motion and make the usual case management orders, re-evaluating whether the matter should be set down for hearing before the Court of Criminal Appeal proceedings when the circumstances including the likely delay caused by the appeal is better understood, once the timetable has completed.

Consideration

1. In determining the Notice of Motion, the Commission is exercising a discretion which necessarily requires the balancing of competing interests of the parties and a consideration of the interests of justice and the public interest.
2. It is in the public interest that the Commission conduct proceeding consistent with s 67 of the Civil Procedure Act which enables the Commission to stay the proceeding noting the overriding objective in civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in dispute, having regard to the dictates of justice, including the efficient disposal of the business of the Court (and Commission).
3. The need to resolve the proceedings quickly pulls directly against the need for the Commission to adopt and approach that is just in this matter. The need to do justice to the parties and conduct the proceedings in a fair manner is also in the public interest.
4. In considering the Notice of Motion, the nature of the stay that it sought and the likely length of the delay this will cause are relevant both in terms of the public interest, but also in respect of the interests of the respondent. The respondent relied upon the affidavit of Ms Kellie Stares, Barrister filed 9 December 2020. In her evidence, Ms Stares deposes that she appears regularly in the Local, Children, and District Court as well as the Court of Criminal Appeal and is a member of the NSW Bar Association Criminal Law Committee. At [14] of her affidavit, Ms Stares states that: "[14] The time frame between lodging an appeal and the appeal being dealt with is usually a period of 9 -12 months, but can sometimes be much longer. Conviction appeals usually take longer than sentence appeals, and often take more than a year to be finalised."
5. The applicant has indicated that he intends to appeal his conviction and so based on this evidence, noting it is at best an estimate, the appeal process is likely to take more than nine months to conclude and could be longer than a year. I consider this to be a considerable delay to the current proceedings, though not inordinate. However, the order sought in the Notice of Motion provides for, "a stay pending finalisation of any appeal against" the applicant's conviction. The applicant may seek further or alternative appeal avenues. The outcome from one or more of those appeals may be that the matter is remitted and another trial conducted. It is effectively "anyone's guess" how long it will take for the criminal proceedings to be brought finally to an end with all avenues of appeal concluded. It is conceivable that this could take years.
6. The interests of the respondent in caring for the wellbeing of the victim and the desire to finalise what has been a long process is understandable and relevant to the Commission's consideration. In this regard, I note and accept the evidence of Mr Michael Baldi, Executive Director, People and Culture of the respondent where he gives evidence of the victim expressing relief at the finalisation of the criminal matter and that she has been on paid leave for four (4) years. Further, I accept his evidence that there is concern that should the matter not be finalised, the victim may feel uncomfortable returning to work. I note that there was no evidence before the Commission with respect to whether the respondent intended to rely upon evidence from the victim and if required to do so, the impact this would have upon her. The respondent's desire to resolve the issue of whether the applicant will return to his position in a timely manner after a four (4) year absence is also relevant.
7. The respondent also pointed to the impact the delay may have upon the quality of the evidence the witnesses are able to give in the proceedings before the Commission, noting that this is an issue raised by the applicant as a ground upon which he intends to rely in his appeal. It is generally desirable that witnesses provide their evidence as proximate to the relevant events they are deposing to so that the passage of time does not erode their memory and the quality of their evidence. However, given the subject matter of the allegations, I think this is less of a risk than it might be in some other matters. Moreover contemporaneous versions of the relevant events have already been captured through the criminal trial process. It is not as though the witnesses will be turning their minds to the relevant events for the first time when they prepare their witnesses statement for the proceedings before the Commission. It is none the less relevant that the passage of time will have an impact on the quality of the evidence before the Commission. This is also a reason why it is in the public interest to dispose of matters as quickly as is practicable.
8. Whilst I agree that there is a public interest in the reputation of the respondent being upheld, there is no evidence that it will be materially impacted by the outcome of the Notice of Motion to stay the proceedings.
9. I have taken into account the undertaking proposed by the applicant that back pay will not be sought for the duration of the stay. It neutralises the potential direct financial impact of the delay caused by the stay that he seeks. For completeness, I note that this is not the only prejudice that will be suffered by the respondent, as set considered above.
10. I agree with the applicant that the outcome of the appeal process will have a direct and significant impact upon this matter and this is a relevant matter to be considered in the context of the stay application: see Environmental Group Ltd at p 41- 42. It is difficult to see how the applicant can succeed before the Commission if he does not have the conviction overturned, though theoretically it is not impossible. Although the Commission will need to consider for itself if the alleged conduct the subject of the criminal proceedings occurred, while the conviction stands, the respondent will have cogent arguments as to why the employment of the applicant is untenable. To some extent, this is articulated in their submission on the Notice of Motion: see 12 and [23] of the respondent's written submissions.
11. If the orders sought are made and the applicant is unsuccessful in his appeals, these proceedings will not continue as a consequence of the undertaking he has indicated he will give to discontinue the proceedings. If the applicant's appeal is unsuccessful, any costs in preparing the matter for hearing will be lost. I agree with the respondent that significant preparation would already have gone into the applicant's version of events relating to the relevant allegations, however, as the respondent has submitted, the criminal proceedings are in some respects different to this unfair dismissal proceeding. If the matter is to proceed, paragraph 9 of Practice Note 17A of the Commission provides for the filing and serving of the parties outlines of case and evidence within seven (7) weeks of the Commission's usual directions being issued. This is a modest period of time in the context of the period that has elapsed since the alleged events took place.
12. From a public resourcing perspective, it is not in the public interest to have the same set of fact tried in two different courts or tribunals. Whilst I acknowledge the argument raised by the respondent that the onus of proof is different in the Commission than it is in the context of the criminal matter (as it undoubtable is), here the applicant has offered an undertaking that he will not pursue this matter if he is unsuccessful in the Court of Criminal Appeal proceedings. It may be that the outcome of this matter is determined in the Court of Criminal Appeal.
13. In all of the circumstances and balancing the interests of the parties, the interests of justice and the public interest, I am disinclined to make the orders sought by the applicant. They are too broad in their current terms and there is too much potential for the delay to become inordinate.
14. Instead I have determined that the appropriate outcome is to allow a stay for the duration of the anticipated Court of Criminal Appeal proceedings, with the matter to be relisted for directions at the conclusion of those proceedings. In doing so, while I have carefully considered the interests of the respondent, I am particularly concerned with the prejudice to the applicant's case if the matter were to proceed without him first having the opportunity to have his conviction overturned and the potential waste of the parties and the public's resources that will be realised if his appeal is unsuccessful. It may be that the prejudice caused by the actual delay requires that the stay of proceedings be re-evaluated in the future.
15. The parties should expect that unless the applicant seeks to discontinue these proceedings, at the conclusion of the Court of Criminal Appeal proceedings, the Commission will issue the standard directions and the expectation is that they will be strictly complied with. If the applicant wishes to pursue these proceedings after the Court of Criminal Appeal matter has concluded, he will need to either engage with them or otherwise seek a further stay.

Orders

1. I make the following orders: 1. This matter be stayed pending finalisation of the anticipated Court of Criminal Appeal proceedings, upon the applicant giving the undertakings that: 1. if the applicant is successful in this matter, then any orders sought by him for lost remuneration will exclude the period between the date on which the stay was granted and the date on which the stay was dissolved; and 2. the applicant will discontinue this matter if he is unsuccessful in the anticipated Court of Criminal Appeal proceedings. 1. The applicant seeks to have the matter relisted within 7 days of the Court of Criminal Appeal proceeding being finalised. 2. The respondent is granted liberty to apply to have the stay order dissolved on 7 days' notice to the applicant.

Amendments 21 December 2020 - Paragraph 9 - Date amended from 17 September 2019 to 17 September 2020. 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: 21 December 2020