//
[2025] NSWSC 1348
General information, not legal advice.
Supreme Court of NSW
2025-11-17
Bennett J
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Fraser v Carter [2025] NSWSC 1348
Hearing dates: 17 September 2025
Date of orders: 17 November 2025
Decision date: 17 November 2025
Jurisdiction: Equity
Before: Bennett J
Decision: Pursuant to s 67 of the Civil Procedure Act 2005 (NSW), the whole of these proceedings be stayed pending final determination of all criminal matters brought against the first defendant in the criminal proceedings in New South Wales with file number 2023/00220868.
Catchwords: CIVIL PROCEDURE — Stay of proceedings — Concurrent civil and criminal proceedings — Same subject matter — Where first defendant charged with serious criminal offences — Where plaintiffs allege first defendant engaged in misleading or deceptive conduct in relation to an investment — Where the transaction at issue in these proceedings also forms the basis of some of the criminal charges being defended by first defendant – Whether it is in the interests of justice to stay proceedings in these circumstances
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 12DA, 12DB, 12GP
Civil Procedure Act 2005 (NSW), s 67
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 2, 4, 18, 29
Crimes Act 1900 (NSW), s 192E, 193B
Evidence Act 1995 (NSW), s 128
Cases Cited: Canterbury-Bankstown Council v Cossu [2025] NSWSC 717
Greater Taree City Council v Murowski Investments Pty Limited [2010] NSWLEC 258
Samaan v Kentucky Fried Chicken Pty Ltd [2009] NSWSC 1265
Skyline Landscape Services Pty Limited v GMR Schembri trading as Parklea Sand & Soil [2025] NSWSC 492
Category: Procedural rulings
Parties: Adam Fraser (First Plaintiff)
Jaime-Lee Fraser (Second Plaintiff)
Gem Frame and Truss Pty Ltd (Third Plaintiff)
Benjamin Leigh Carter (First Defendant)
Carter’s Tax Advisory Pty Ltd (deregistered) (Second Defendant)
Drink West Brewery Pty Ltd (Third Defendant)
Representation: Counsel:
TJ Morahan (Plaintiffs/First to Third Respondents)
DP O’Connor (First Defendant/Applicant)
ECA Styles (solicitor) (Third Defendant/Fourth Respondent)
Solicitors:
Mason Parkes Lawyers (Plaintiffs/First to Third Respondents)
Hanna Legal (First Defendant/Applicant)
Longton Blackwell (Third Defendant/Fourth Respondent)
File Number(s): 2025/00068668
Publication restriction: Nil
By a Notice of Motion filed on 30 May 2025 (Motion), Benjamin Leigh Carter (first defendant) seeks an order, pursuant to s 67 of the Civil Procedure Act 2005 (NSW) that the substantive proceedings in this Court (the Civil Proceedings) be stayed, in so far as they relate to the first defendant (emphasis added), pending a final determination of all criminal matters brought against him in criminal proceedings in this State, identified as proceedings number 2023/00220868 (the Criminal Proceedings).
The first, second and third plaintiffs in the Civil Proceedings are Adam Fraser, Jaime-Lee Fraser, and Gem Frame and Truss Pty Ltd, respectively.
The second defendant is Carter’s Tax Advisory Pty Ltd (which traded under the name “Carter’s Tax Advisory – Accounting Services Penrith”). The third defendant is Drink West Brewery Pty Ltd. The first defendant was a director and shareholder of the second defendant.
The Civil Proceedings relate to a Statement of Claim (SOC) filed on 4 April 2025. In this SOC, the plaintiffs allege (amongst other things) that the first defendant made representations that were false or misleading or deceptive, or likely to mislead or deceive, for the purposes of ss 18, and 29 of the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law (ACL) and ss 12DA and 12DB of the A**ustralian S**ecurities and Investments Commission Act 2001 (Cth) (ASIC Act) (SOC [16]) which resulted in the following payments being made into the trust account of the second defendant (SOC [1]-[15]):
a payment of $200,000 by the first plaintiff and the second plaintiff on or about 3 May 2022 (the $200,000 Payment) (SOC [8]); and
a payment of $240,000 by the third plaintiff on or about 15 June 2022 (the $240,000 Payment) (together, the P****ayments) (SOC [15]).
Inferentially, the purpose of the Payments appears to have been as an “investment” on the part of the plaintiffs by way of buying shares in the third defendant (SOC [5], [10], [12]). The plaintiffs allege that the first defendant represented to them that he had the authority of the third defendant and would cause the plaintiffs to be issued shares in the third defendant upon the payment of $200,000 (SOC [5]) and $240,000 (SOC [12]). The plaintiffs also allege the first defendant represented that an investment in the third defendant would be “good”, and that the first defendant made specific representations as to the value of the third defendant (SOC [5], [9], [12]). The plaintiffs plead that it was in reliance on these representations that the Payments were made (SOC [8], [15]). The plaintiffs say these representations are “false and misleading or deceptive” because the first defendant did not have the ability to cause shares in the third defendants to be issued to the plaintiffs, did not have the intention of causing shares in the third defendant being issued to the plaintiffs, and because the first defendant had no reasonable grounds for making the representations he made (SOC [16]).
In their SOC, the plaintiffs allege it was the first defendant that undertook the misleading or deceptive conduct, and that the second and third defendants were involved, as defined in s 2 of the ACL, in the first defendant’s contravention of the ACL and concurrent wrongdoers for the purposes of s 12GP of the ASIC Act. In this, the second and third defendants were said to have known the first defendant was making the representations, known of the falsity of them, and taken no action to inform the plaintiffs of the falsity of the representations, or otherwise to stop the first defendant from misleading or deceiving the plaintiffs (SOC [17]-[18]).
Further claims are made in the alternative at SOC [21]-[29], which include claims of fraudulent misappropriation and unjust enrichment. As part of these claims, the SOC (at [28]) alleges that on or about 8 November 2022, the first defendant “admitted” that he had fraudulently misappropriated the sum of $440,000 being the total of both Payments.
At the hearing of the Motion, following the Court raising the issue of the terms of the order sought, the first defendant clarified his position. He clarified that the stay application was in relation to the whole of the proceedings, rather than just as it relates to the first defendant (TR P6 L2-3).
In support of the Motion, the first defendant relies on an affidavit of Nicholas Hanna affirmed 30 May 2025 (the Hanna Affidavit). Mr Hanna is the first defendant’s solicitor in the Criminal Proceedings, as well as his solicitor on the record in the Civil Proceedings. The first defendant also provided written submissions dated 11 June 2025.
There was no appearance for the second defendant. At the hearing, the first defendant explained that the second defendant has been deregistered. An ASIC extract was provided by the first defendant following the hearing (without objection), which showed the second defendant was deregistered on 18 April 2025.
The third defendant neither consented to nor opposed the Motion. However, on 16 September 2025, the third defendant provided short written submissions (D3WS) to the effect that, if the first defendant is successful in staying the proceedings, the proceedings should also be stayed in relation to the third defendant.
The plaintiffs opposed the Motion and relied on an affidavit of the first plaintiff sworn 20 June 2025 (Fraser Affidavit) in support of that position. The plaintiffs also provided written submissions dated 20 June 2025.
For the reasons set out below, I have determined that interests of justice require the stay be granted, and that it be granted in relation to the whole of the proceedings as sought.
There does not appear to be any dispute as to the facts relating to the Criminal Proceedings.
The facts set out below are taken from the Hanna Affidavit and do not appear to be in dispute or to have been otherwise objected to.
On 11 July 2023 the first defendant was arrested and charged with various offences, including:
one count of knowingly deal with proceeds of crime with intent to conceal, contrary to s 193B(1) of the Crimes Act 1900 (NSW) (Crimes Act); and
14 counts of dishonestly obtain financial advantage by deception, contrary to s 192E of the Crimes Act.
On 30 May 2024, the Office of the Director of Public Prosecutions (ODPP) filed the charge certificate for the criminal proceedings as part of the Early Appropriate Guilty Plea process. Offences cited in the charge certificate included offences pursuant to s 192E and s 193B of the Crimes Act.
Evidence of the terms of the Charge Certificate forms Annexure NH1 to the Hanna Affidavit. While it appears the whole Charge Certificate was annexed to the Hanna Affidavit, large portions of the document were redacted. What is unredacted appears to be the charges which give rise to the Motion. I infer the redacted component of the Charge Certificate relates to charges irrelevant to the conduct of the Civil Proceedings. No issue was taken with respect to those redactions.
As a result of the charge certification process, the s 193B(1) charge was withdrawn and replaced with a count of knowingly deal with proceeds of crime, contrary to s 193B(2) (the Proceeds of Crime Charge). In addition, some of the s 192E charges were maintained (the Fraud Charges), whilst others were replaced with charges of embezzlement as clerk or servant, contrary to s 157 of the Crimes Act (the Embezzlement Charges).
On 14 May 2025, the ODPP served upon Mr Hanna an updated Crown Case Statement for the Criminal Proceedings. The Crown Case Statement provides a detailed summary of the prosecution evidence against the first defendant in relation to each charge.
Evidence of the terms of the Crown Case Statement forms Annexure NH2 to the Hanna Affidavit. The whole of the Crown Case Statement was not annexed to the Hanna Affidavit. As with the Charge Certificate, significant portions of the document which was in evidence were redacted. I again infer, subject to a qualification, that the parts of the Crown Case Statement which were either not annexed to the Hanna Affidavit or redacted relate to charges irrelevant to the Civil Proceedings. The qualification concerns the redactions made to the text of the footnotes to the unredacted body text of the Crown Case Statement in evidence. Those redactions must be related in some way to the charges which give rise to the Motion, given they appear in the summary of those particular charges. However, I was not told what was behind those redactions and, in any event, no issue was taken concerning them.
Later in these reasons, I will detail further the content of each of the Charge Certificate and the Crown Case Statement.
By way of summary, the Crown case in relation to the Fraud Charges and Embezzlement Charges is that the first defendant defrauded and misappropriated funds from various clients of the second defendant. The first plaintiff is a complainant expressly identified in the Crown Case Statement. I note that there is no material that was put into evidence on the Motion which provided further detail as to the Embezzlement Charges. The only evidence provided in relation to that charge is the brief summary of that charge contained in the Hanna Affidavit.
The Crown case in relation to the Proceeds of Crime Charge is that the first defendant knowingly dealt with the proceeds of crime by using them to place bets through an online sports betting platform. As I explain later, it appears the proceeds the subject of this charge are separate from the Payments (ie, the subject of the Fraud Charges).
The Charge Certificate starts out by stating the “following offences are to proceed as set out below”, also mentioning that Court Attendance Notices for each of the offences in the certificate are attached. Those notices were not in evidence.
In relation to the charge under s 192E which concerns the $200,000 Payment, the first plaintiff and the third defendant were named in the “Description of Offence” column.
In relation to the charge under s 192E which concerns the $240,000 Payment, the first plaintiff and the third defendant were named in the “Description of Offence” column.
The charges in the Criminal Proceedings of central relevance to the Civil Proceedings, and underpinning the Motion, are two of the Fraud Charges, being:
Sequence 15: this charge concerns the $200,000 Payment, where the first plaintiff is listed as the complainant.
The first plaintiff is relied on in the Crown Case Statement as being the complainant, with the second and third plaintiffs, the business address of the second defendant, and the third defendant, also cited in the text as part of the summary of the prosecution evidence. The allegations in support of sequence 15 are summarised at paragraphs 170-182 of the Crown Case Statement.
The allegations underpinning sequence 15 can be summarised as follows. The Crown alleges that the first defendant was in charge of “Finance and Administration” at the third defendant, whose registered business address at the relevant time in 2019 appeared to be shared with the second defendant. The Crown alleges that the first defendant offered the first plaintiff an opportunity to invest in the third defendant and had various discussions with the first plaintiff about the investment proposal. The Crown then alleges that the first plaintiff agreed to invest $200,000 in the third defendant in exchange for shares in that company, the funds being sourced from a joint bank account shared between the first and second plaintiffs. The Crown alleges the first plaintiff transferred the $200,000 to the first defendant’s bank account on 3 May 2022, but that ultimately the money paid to the first defendant was never used to purchase shares in the third defendant and instead used for the first defendant’s personal spending.
The first plaintiff is relied on in the Crown Case Statement as being the complainant, with the third defendant also cited in the text as part of the summary of the prosecution evidence. The allegations in support of sequence 44 are summarised at paragraphs 170-171 and 183-187 of the Crown Case Statement.
The allegations underpinning sequence 44 can be summarised as follows. Following the narrative alleged in relation to sequence 15, the Crown then alleges that the first plaintiff transferred to the first defendant’s bank account a further $240,000 in exchange for further shares in the third defendant. The Crown alleges, as with sequence 15, that the money paid to the first defendant was never used to purchase shares in the third defendant and instead used for the first defendant’s personal spending.
The Proceeds of Crime Charge is also somewhat relevant to the Motion. That charge is identified as sequence 28 in the Crown Case Statement. I note that, the body of the Crown Case Statement identifies the Proceeds of Crime Charge as sequence 1. At [26] of the Hanna Affidavit, Mr Hanna deposes to his belief that is a typographical error and that in fact that should be a reference to sequence 28. One can infer that being the case anyway given the Proceeds of Crime Charge is given the sequence number 28 in both the Charge Certificate from 2024 and on the first page of the Crown Case Statement.
The allegations in support of sequence 28 are summarised at paragraphs 341-351 of the Crown Case Statement where it may be inferred that the first plaintiff is one of a number of “complainants” referred to. The relevance of the Payments to the Proceeds of Crime Charge appears to be of an indirect kind. The Crown Case Statement at paragraph 349 says that the quantum of funds allegedly dealt with by the first defendant knowingly as proceeds of crime was calculated using a sum of money that passed through a sports betting account, less sums alleged to have been obtained fraudulently from “the aforementioned complainants” and “the amount moved from the CTA bank accounts”, which I infer are bank accounts of the second defendant. Paragraph 350 then says the origin of the funds forming the difference are alleged to be proceeds “from other criminal activity” which remain the subject of ongoing investigation. From these two sentences, it seems to me that the money allegedly paid to the first defendant as part of the Payments are part of the funds the Crown Case Statement describes as obtained “from the aforementioned complainants”, and is therefore not part of the funds that the Crown alleges were proceeds of crime which the first defendant allegedly dealt with knowing that to be the case.
Mr Hanna’s evidence at [22] of the Hanna Affidavit is that the funds the subject of the Payments are alleged to form part of the larger amount of funds the subject of the Proceeds of Crime Charge. As is apparent from the previous paragraph, my understanding of the Crown Case Statement is that this is not so, contrary to Mr Hanna’s evidence. However, the first defendant did not refer to the Proceeds of Crime Charge in its submissions in support of a stay and so even if my understanding of the relevance of the Proceeds of Crime Charge is wrong, this has not affected my ultimate decision anyway.
The first defendant submitted that the allegations in sequences 15 and 44 are substantially the same as the allegations against the first defendant in the SOC (at [11] of his written submissions). Having regard to the terms of the SOC and the evidence of the Charge Certificate and Crown Case Statement, I accept that submission.
The first, second and third plaintiffs are referred to in the Crown Case Statement (the first plaintiff is identified as a complainant, whereas the second and third plaintiffs are mentioned as part of the factual narrative underpinning the allegations related to the first plaintiff’s complaint). The second defendant is not directly mentioned, however its name is mentioned as part of the registered business address for the third defendant as at 5 September 2019 (according to the Crown Case Statement) (it would seem this address is likely to have also been the second defendant’s business address). The first plaintiff clearly has an important role in the Criminal Proceedings as the complainant for sequences 15 and 44. The third defendant is identified in the Crown Case Statement as being the company the first plaintiff allegedly wanted to purchase shares in. Not only are all the parties mentioned, but it is evident that the allegations against the first defendant concerning sequences 15 and 44 relate to the very transactions in issue in the Civil Proceedings. Having regard to the particulars of the SOC, I am satisfied that the facts underpinning the Civil Proceedings are largely concurrent with those alleged in the Criminal Proceedings.
At this point it is not yet known whether the first or second plaintiff, or officers of the third plaintiff or third defendant, will be called as witnesses in the Criminal Proceedings.
The Criminal Proceedings have been the subject of media attention. The Hanna Affidavit has described the level of attention as “significant”. However, the plaintiffs submitted that the media attention is “historical and limited”.
Before the Court are copies of two published articles, both of which were annexed to the Hanna Affidavit. One was published on 12 July 2023 by the Australian Broadcasting Corporation following the first defendant’s arrest, which refers to both the first defendant and the second defendant. The second article is more recent and was published after a mention on 16 May 2025 by the Western Weekender, and refers to the first defendant, the second defendant (indirectly – the article refers to “his firm”), the third defendant, the first plaintiff, and the sum of $440,000 (ie, the Payments).
“[43] The applicable legal principles for the granting of a stay pending criminal proceedings are not in issue. Those legal principles can be summarised as follows:
(1) The court has a statutory power to stay civil proceedings under s 67 of the Civil Procedure Act 2005 (NSW) (CPA) which states:
Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.
(2) The court also has an inherent power to stay proceedings to prevent injustice: Jago v District Court (NSW) (1989) 168 CLR 23, Mason CJ at 25 and Deane J at 56; [1989] HCA 46.
(3) The exercise of the court’s discretion to stay proceedings involves an assessment as to whether the dictates of justice require such a remedy: s 58 of the CPA. This assessment must have regard to the overriding purpose of the CPA and rules of court, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings, although it is a larger task than one of mere ‘case management’: Wigmans v AMP Ltd (2019) 103 NSWLR 543; [2019] NSWCA 243, Bell P at [95].
(4) It is appropriate to order a stay of proceedings where the interests of justice require such an order: Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5, French CJ, Hayne, Kiefel, Bell and Keane JJ at [36]; Construction, Forestry, Mining and Energy Union (CFMEU) v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97, Dowsett, Tracey and Bromberg JJ at [22].
(5) A plaintiff is prima facie entitled to have his, her or its civil action tried in the ordinary course and a stay therefore requires justification on proper grounds, with the applicant for a stay bearing the burden of demonstrating proper grounds: Zhao, at [39].
(6) A court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending: Zhao, at [35], as cited with approval in CFMEU, at [22].
(7) To warrant a stay of the civil proceedings, it must be apparent that the accused is at risk of prejudice in the conduct of his or her defence in the criminal trial: Zhao, at [35]; CFMEU, at [22].
(8) The risk of prejudice must be real and, in considering what the interests of justice require, that risk is to be weighed against the prejudice that a stay of the civil proceedings would occasion: Zhao, at [47] and [50]; CFMEU, at [22].
(9) Prejudice may arise where a civil defendant is compelled to choose between defending the civil claim and preserving the right to silence or the privilege against self-incrimination, where civil proceedings risk prematurely disclosing the accused’s criminal defence or the possibility of publicity that might reach and influence jurors: Zhao, at [42]–[47] and [50]; CFMEU, at [23] and [44]–[46].
(10) The court need not require the accused to articulate the specific matters of prejudice in detail because to do so may reveal information about the proposed defence which would itself defeat the privilege against self-incrimination and render the risk of prejudice a reality: Zhao, at [43].
(11) In determining where the interests of justice lie, each case turns on its own merits with all relevant factors to be balanced, including the risk of prejudice to the civil defendant weighed against the countervailing prejudice to the plaintiff from the delay in the civil proceedings: Zhao at [47] and [50]; Australian Competition and Consumer Commission v CFMEU [2016] FCA 504, Middleton J at [50]–[51], citing ML v Australian Securities and Investments Commission (2013) 276 FLR 1; [2013] NSWSC 283, Rothman J at [23]–[26].
(12) The same considerations as set out above arise in respect of a stay if criminal proceedings could be commenced against a defendant constituted by substantially the same conduct raised in the civil proceedings but have not yet been commenced: Australian Securities and Investments Commission v Flugge (2008) 21 VR 252; [2008] VSC 473, Robson J at [18] and [27].
(13) The court retains a discretion to tailor the scope and effect of a stay and may preserve extant interlocutory orders (such as asset preservation orders) or permit limited procedural steps where necessary during the course of a stay: National Australia Bank Ltd v Human Group Pty Ltd [2019] NSWSC 1404, Henry J at [38]–[39], citing Gregg v Fairfax Media Publications Pty Ltd [2017] FCA 440, Rares J at [25]; Grassby v The Queen (1989) 168 CLR 1, Dawson J (with whom Mason CJ, Brennan Deane and Toohey JJ agreed) at 16–17; [1989] HCA 45; Beecee Group Ltd v Barton (1980) 5 ACLR 33, Waddell J at 38–39; Wallace v Heavy Mechanics Pty Ltd (2017) 83 MVR 130; [2017] VSC 772; Re Plutus Payroll Australia Pty Ltd [2017] NSWSC 1854, Brereton J. See also Western Freight Management Pty Ltd v Hyde [2023] NSWSC 1247, Henry J at [11].
(14) A party seeking a stay of civil proceedings on conditions has an onus to establish why each condition is necessary or in the interests of justice: Gregg, at [26].”
I note that the written submissions of both the first defendant (at [5]-[9] of those submissions) and the plaintiffs (at [2]-[4] of those submissions) as to the applicable principles are consistent with the summary of those principles quoted above. At the time of the hearing, the first defendant also cited and relied on the summary of legal principles by Williams J in Skyline Landscape Services Pty Limited v GMR Schembri trading as Parklea Sand & Soil [2025] NSWSC 492 (Skyline) at [29]-[51].
The authorities also make clear that what must be shown is not just “any” risk of prejudice: there must be a “real” risk shown. In relation to what constitutes a “real” risk, in Skyline, Williams J stated at [45] (footnote omitted, emphasis added):
“A real risk of prejudice may be plain from the extent of the overlap between the offences that are the subject of the criminal proceedings and the issues raised by the civil proceedings which the stay applicant wishes to defend, together with evidence from the stay applicant concerning the matters about which they would wish to give evidence or to adduce evidence from other witnesses in the civil proceedings. Although the stay applicant bears the onus of demonstrating proper grounds for the stay, they are not required to identify specific matters of prejudice if this would make the risk of prejudice a reality by requiring them to reveal information about their defence, that being the very situation which the stay seeks to avoid.”
In support of the Motion, the first defendant submits that the facts that underpin the allegations in the Civil Proceedings are largely concurrent with the facts that are alleged in the Criminal Proceedings. The plaintiffs do not submit otherwise. As already stated at [33] above, I accept this submission.
Further, the first defendant submits that, given “the mutuality of the accusations” in the Criminal Proceedings and the allegations in the Civil Proceedings, the evidence the first defendant will be required to adduce to defend the Civil Proceedings will “likely telegraph his instructions and potential defences available to him” in the Criminal Proceedings, at least in relation to the relevant charges (employing the language used by Williams J in Skyline at [37] as a factor weighing in favour of a stay where there are concurrent civil and criminal proceedings).
As part of this, the first defendant submitted that the filing of his defence to the SOC would also likely reveal the defences available to him in the Criminal Proceedings and thus impinge on his right to silence or privilege against self-incrimination.
As already stated at [33] and [41] above, I accept that there is a significant overlap between the accusations made in each of the proceedings regarding the Payments (noting that the first plaintiff is only one of a number of complainants in the Criminal Proceedings). Given this, I further accept that the filing of evidence and the disclosure of the terms of any defence in the Civil Proceedings will likely telegraph to the prosecution in the Criminal Proceedings information about the first defendant’s defence in the Criminal Proceedings (including what instructions he might be giving to his legal representatives and what defences may be available to him). As counsel for the first defendant aptly described it, putting on a defence would mean the first defendant is “essentially flipping [his] cards over as far as the [Criminal Proceedings] are concerned” (TR P4 L41-43).
It does not appear that the plaintiffs seriously contested this aspect of the first defendant’s argument on the Motion. The plaintiffs did not expressly submit, either in writing or orally, that the first defendant would not be revealing anything about his defence in the Criminal Proceedings. Nor did the plaintiffs object to the first defendant’s submission that this aspect of his argument was not in dispute.
There is arguably a component of the plaintiffs’ oral submissions which, indirectly, suggests the first defendant filing a defence in the Civil Proceedings would not reveal matters concerning his defence of the Criminal Proceedings. In the context of submissions about the potential “procedural safeguards” which the Court might employ to prevent prejudice to the first defendant (which will be dealt with in substance later), the plaintiffs submitted that the first defendant “could plead in his defence by non-admission rather than denial”, so as to put the onus on the plaintiffs to prove the allegations (TR P8 L37-39). However, I accept the first defendant’s responsive submission to that, namely that a statement of non-admission is probably practically no different to a denial in this case, given the SOC quite squarely alleges conduct by the first defendant (TR P11 L5-7). Given the first defendant would presumably have knowledge to either admit or refute the content alleged of him by the plaintiffs, there is perhaps a question about whether he could permissibly even make statements of non-admission in his defence (see Samaan v Kentucky Fried Chicken Pty Ltd [2009] NSWSC 1265 at [4]-[5] (Rothman J); Greater Taree City Council v Murowski Investments Pty Limited [2010] NSWLEC 258 at [27]-[28] (Pepper J)). Accordingly, if the plaintiffs are to be understood as submitting the first defendant could file a defence without revealing information about his defence in the Criminal Proceedings using statements of non-admission (and, in fairness, the plaintiffs may not have intended to make such a suggestion), then I reject this submission.
What follows from the above is that there is a real risk of prejudice to the first defendant’s conduct of his defence in the Criminal Proceedings that may arise from being required to put on a defence and otherwise defend the Civil Proceedings (see Coss**u at [43](9)).
I am of the view that this factor alone strongly militates in favour of granting the stay sought by the first defendant.
The first defendant also raises the possibility “that publicity might reach and influence jurors”. I gather this submission is directed to any publicity that the Civil Proceedings may attract. To this end, the first defendant provided evidence of media reporting in relation to the Criminal Proceedings that has already occurred. The evidence, referred to earlier, comprised two articles, one from a national news organisation (the Australian Broadcasting Corporation) and one from a newspaper known as The Western Weekender.
I accept that the possibility of the Civil Proceedings attracting publicity that might cause information about the Civil Proceedings to reach jurors is a relevant factor when considering any prejudice that might arise should a stay not be granted (see Cossu at [43](9)), and accept the submission of the first defendant, together with the evidence he relied on, that this possibility is another factor in this matter for the Court to have regard to when considering and weighing the risk of prejudice. I note here that the plaintiffs had submitted in writing that there was no risk of jury contamination or prejudice from any media publicity, but that paragraph of their written submissions was abandoned at the hearing of the Motion (TR P9 L22-30). Even if it had not been abandoned, I would have rejected the plaintiffs’ submission that the publicity surrounding the first defendant was “historical and limited”. At the very least, the article from The Western Weekender was from earlier this year (and only 9 days before the Hanna Affidavit was affirmed). The fact that there has been media reporting about the Criminal Proceedings, including reporting which mentions the very conduct at issue in the Civil Proceedings (in the article from The Western Weekender), would suggest that there is a risk of publicity of these proceedings, which poses a consequent risk of a future jury being potentially influenced by that publicity.
I am of the view that the matters cited above indicate that if a stay is not granted there is a real risk of prejudice to the first defendant in the conduct of his defence in the Criminal Proceedings (Coss**u at [43](7)). Accordingly, I am satisfied the first defendant has discharged his burden to show that there are proper grounds, being the grounds cited above, on which to justify the granting of the stay. That real risk exists either because of the matters discussed at [41]-[44] alone, or because of those matters coupled with the risk of publicity affecting a potential jury.
For their part, the plaintiffs submit that if the Court has any concerns, there are “safeguards” that could be put in place, with the first of the safeguards suggested being a deferral of the filing of the first defendant’s defence until the conclusion of the criminal proceedings (at [9] of their written submissions).
The first defendant submitted orally, in response to this suggestion, that there would be no material difference between the Court making an order to defer the filing of a defence and ordering a stay of the Civil Proceedings (TR P5 L3-5). In reply to this proposition, the plaintiffs accepted that this was the case (TR P9 L32-37).
The plaintiff then suggested that there be “deferred or restricted discovery” involving the first defendant, and/or that non-publication or suppression orders be made. What form any appropriate discovery orders could take, or the scope of any potential non-publication or suppression orders was not articulated either in writing or orally.
In relation to these other proposed safeguards, the first defendant submitted that:
with respect to “restricted” discovery, the Court was unlikely to make any order for discovery without a defence being filed; and
with respect to non-publication or suppression orders, such orders would only address the concerns about the impact of the Civil Proceedings on a potential jury. However, they would not address the other associated sources of potential prejudice, namely, the first defendant “being required to essentially answer what he’s criminally been charged with” in the Civil Proceedings (TR P5 L11-14).
The plaintiffs also raised in their written submissions the potential of the first defendant using the protection available under s 128 of the Evidence Act 1995 (NSW) (Evidence Act), having a staged hearing (with separate hearings on issues of liability and quantum) and the deferral of cross-examination of the first plaintiff if necessary. In their oral submissions, the plaintiffs elaborated on the possible protection of s 128 of the Evidence Act, submitting that the provision could be invoked to ensure “anything that the first defendant said in these proceedings could not be used against him” in the Criminal Proceedings (TR P8 L34-36).
The first defendant’s response was that all of these suggestions suffer from the same problem in that they do not address the fact that if the Civil Proceedings continued to progress, the first defendant will still need to take a position in relation to the allegations put against him in the Civil Proceedings, in circumstances where the allegations in these proceedings are closely aligned with the allegations against him in the Criminal Proceedings. In relation to whether s 128 of the Evidence Act would protect him, the first defendant submitted that it would be of little to no help to him given he would first need to put on a verified pleading. Moreover, he submitted that the grant of a certificate under s 128 would only prohibit any admissions he makes being used against him; it would not stop a prosecutor from being able to use surrounding statements or the pleadings.
I accept the submissions made by the first defendant on these issues.
A major (really, the principal) potential source of any prejudice to the first defendant’s defence of the Criminal Proceedings is him being required to file a defence, given the significant overlap in the facts underpinning both sets of proceedings, together with an overlap in the nature of the allegations made in both proceedings. As the first defendant submitted, save for one exception, none of the safeguards suggested by the plaintiffs could cure this prejudice. The one exception is deferring the time for the first defendant to file a defence – but the plaintiffs accepted there is no material difference between deferring the filing of the first defendant’s defence and the proceedings being stayed.
The plaintiff did not meaningfully articulate why their suggested safeguards would prevent prejudice to the interests of the first defendant vis-à-vis his defence of the Criminal Proceedings. It is not at all clear how either splitting up any final hearing of this matter or deferring the cross-examination of the first plaintiff would prevent prejudice to the first defendant in any way, given the proceedings would presumably take their usual course in the meantime and neither measure would prevent the first defendant from having to reveal how he intends to respond to allegations the subject of concurrent criminal proceedings. The same is true of deferred or restricted discovery or utilising s 128 of the Evidence Act. This latter safeguard is also of little utility in this case for the reasons the first defendant submitted. Perhaps suppression or non-publication orders could limit the spread of any information revealed by the first defendant in the Civil Proceedings and thereby limit the prejudice potentially suffered by the first defendant with respect to the defence of the Criminal Proceedings. But given the first plaintiff is also a named complainant in the Criminal Proceedings, even just him (and the second plaintiff) having the first defendant’s defence and evidence in these proceedings would seem to me to be a problem.
For those reasons, I reject the plaintiffs’ submission that these safeguards would address the real risks of prejudice identified by the first defendant.
“If a real risk of prejudice to the conduct of the defence of the criminal proceedings is established, it is necessary to weigh that risk against the prejudice that a stay of the civil proceedings would occasion in order to determine what the interests of justice require in the particular case. In undertaking that assessment, the risk of prejudice to the fair and efficient conduct of the criminal trial should be given special significance because that is a matter of public importance.”
Having been satisfied that a real risk of prejudice exists, I will weigh this against the prejudice that a stay in the Civil Proceedings will occasion upon the plaintiffs. In considering this issue, I have had regard to the evidence of the plaintiffs (ie, the Fraser Affidavit) and the submissions made on their behalf.
The first plaintiff gives evidence that the $200,000 Payment, made jointly with the second plaintiff, was made by way of an “investment” in the third defendant (Fraser Affidavit at [4]-[6]), and that he has not received “any repayment or return on that investment” (Fraser Affidavit at [7]).
The first plaintiff states that the funds he contributed were not “surplus savings” and that he has “suffered financial strain as a direct result of this transaction” (Fraser Affidavit at [6]).
With this evidence as background, the plaintiffs submitted, at [7] of their written submissions, that a stay would prejudice them in four ways:
“Delay in recovering” a significant sum of money (“over” $440,000, which presumably accounts for any interest that might be payable on any eventual judgment sum);
“Ongoing financial harm”;
“Risk of dissipation of assets”; and
“Loss of evidentiary freshness”.
On delay, the plaintiffs emphasised that any stay would likely be for a “considerable time” given the brief of evidence has not been served (the first defendant indicated the Crown brief of evidence was not complete as at the time of the hearing: TR P4 L34-35). The plaintiffs further submitted that staying the Civil Proceedings would mean they would not be able to recover the money they plead they are entitled to for “a couple of years at least” (TR P8 L28-29; see also TR P12 L30-31). The first defendant accepts that the grant of a stay would prejudice the plaintiffs by reason of delay (at [21] of his written submissions). He also accepted that the Criminal Proceedings would not be done this year, though he could not give a time frame as to when the Criminal Proceedings might be completed. I accept the plaintiffs’ submission that they would suffer prejudice inherently from there being a stay given it delays the progress of the proceedings, though just how significant that delay will be is not especially clear on the evidence.
In relation to “ongoing financial harm”, beyond making the assertions (or submissions: see TR P13 L1-2) set out above, the first plaintiff does not give evidence as to the nature of the “financial strain” he says he is suffering or give evidence of the practical impact of not yet having the “investment” funds returned. The evidence does not disclose when the plaintiffs were expecting to see a return on their “investment” in any event. Given it is uncontested evidence, I can accept the first plaintiff’s evidence that he and the second plaintiff used up savings which were “not surplus savings” to make the $200,000 Payment. But beyond that, the evidence does not establish the scale of this head of the prejudice that the plaintiffs say they would suffer from a stay being granted. There is no evidence in relation to what, if any, financial strain or harm the third plaintiff would suffer from a stay. I therefore do not give significant weight to the plaintiffs’ submission they would suffer ongoing harm from a stay in the absence of any articulation or evidence of the “harm” claimed.
As to the risk of the first defendant dissipating his assets, the only evidence before me is the first plaintiff’s evidence that he is concerned about the potential dissipation of funds and the ability to recover compensation in the future (Fraser Affidavit at [9]). There is no other evidence whatsoever to suggest there is a risk of the first defendant dissipating his assets to frustrate any potential judgment sum (or, for that matter, a risk that he will simply use up all his assets before any final hearing in this matter were to take place such that a judgment sum could not be satisfied). Accepting the plaintiffs’ assertion there may be such a risk (perhaps there is always some risk of a civil defendant dissipating their assets), there is no evidence at all as to the scale of that risk.
Finally, as to “the loss of evidentiary freshness”, as with the other grounds of prejudice identified by the plaintiffs, there is no material that has been provided for me to assess the scale of this prejudice. The pleaded representations which comprise the core of the Civil Proceedings are all particularised as being “partly oral and partly written”. I can accept that if these proceedings were stayed, the evidence of any natural persons may lose their “freshness” as memories fade. Given some of the conduct alleged involved conversations, I infer that evidence of those conversations may need to come from natural persons, and so that evidence might be at risk of becoming less “fresh” over time. But again, the scale of that risk is not ascertainable on the materials before me. Additionally, at least some of the evidence must be documentary, given the pleading itself particularises the alleged representations by the first defendant as “partly written”, with particular emails being identified as the apparent source of the pleaded representations. There may be other documentary evidence. It is unclear to me that considerations of “freshness” apply in the same way to documentary evidence as it does to oral evidence. But even if I proceed by not differentiating between oral and documentary evidence in considering what prejudice the plaintiffs may suffer from a stay causing a potential diminution of the quality of the potential evidence available to them, I do not have the materials to enable me to assess the level of prejudice the plaintiffs would suffer in this case. Therefore, while I accept there might be some prejudice to the plaintiffs from a stay with respect to “evidentiary freshness”, I will not weigh this consideration highly given I cannot assess the scale of it.
Against this, in undertaking any assessment, I have regard to the risk of prejudice to the fair and efficient conduct of the criminal trial, which I consider I ought to give special significance because that is a matter of public importance (Skyline at [46]). As I have already concluded, the risk of prejudice to the first defendant in his defence of the Criminal Proceedings from not granting a stay here is real. But given the close identity between the allegations advanced in both proceedings in relation to the Payments, it would seem the risk of prejudice to the first defendant is in fact quite significant. I also note the submissions of the first defendant highlight the seriousness of the charges being defended in the Criminal Proceedings, which carry maximum penalties of 20 years (s 193B of the Crimes Act) and 10 years (s 192E of the Crimes Act) imprisonment.
In my view, this is a case where I consider it is in the interests of justice that there be a stay of the whole of the Civil Proceedings.
In coming to this conclusion, I am mindful that the plaintiffs are prima facie entitled to have their civil action tried in the ordinary course (Cossu at [43](5)). I also bear in mind that the Court will not grant a stay merely because related charges have been brought against an accused and criminal proceedings are pending (Cossu at [43](6)). However, I am satisfied, having weighed the countervailing prejudices, that proper grounds have been established for the reasons set out above. The first defendant has clearly established a real risk of prejudice to him if the Civil Proceedings were to continue, which risk ought to be given special significance. While the plaintiffs have pointed to prejudice they may suffer from a stay in general terms, they have not provided sufficient evidence for me to determine the scale of that prejudice. I accordingly cannot accept the plaintiffs’ submissions that the prejudice to them of these proceedings being stayed outweighs the risk of prejudice to the first defendant if a stay is not granted. I reach this conclusion even assuming in the plaintiffs’ favour that the Criminal Proceedings might not be finalised for at least another year or two.
I have not forgotten the application made by the third defendant. However, given that the stay application made by the first defendant was eventually made in relation to the whole of the proceedings, I note that its application will no longer have relevance, given the proceedings will also be stayed against it. If the first defendant had still sought only that the proceedings be stayed in relation to himself, I record that I would have also granted a stay of proceedings against the third defendant, for the reasons set out in its submissions.
For the reasons set out above, I make the following order:
Pursuant to s 67 of the Civil Procedure Act 2005 (NSW), the whole of these proceedings be stayed pending final determination of all criminal matters brought against the first defendant in the criminal proceedings in New South Wales with file number 2023/00220868.
**********
Fraser
Carter [2025] NSWSC 1348
(1989) 168 CLR 23
(2019) 103 NSWLR 543
(2015) 255 CLR 46
(2016) 242 FCR 153
(2013) 276 FLR 1
(2008) 21 VR 252
(1989) 168 CLR 1
(2017) 83 MVR 130