[1] This decision arises out of an application by G Sanford (the applicant), pursuant to s.170CE of the Workplace Relations Act 1996 (the Act), in relation to the termination of his employment by Austin Clothing Company Pty Ltd trading as Gaz Man (the respondent).

[2] The applicant's employment was terminated with effect from 1 December 1999. His s.170CE application was lodged on 2 December 1999. On 19 January 2000 the application was before Mr K Williams for conciliation, pursuant to directions of the Commission. The matter was not settled.

[3] A s.170CF(2) certificate was issued by myself on 31 March 2000. The applicant lodged an election to proceed to arbitration on 6 April 2000.

[4] On 28 May 2000 a notice of listing was issued fixing a date for arbitration of 10 and 11 July 2000. Directions were given on the same date, requiring the filing and service of witness statements, outlines of submissions and documentary materials by 19 June 2000. These directions were complied with by the respondent on 19 June 2000. The applicant did not comply with the directions.

[5] On 22 June 2000 the Commission vacated the date for arbitration and set the matter down for a hearing with respect to non-compliance with directions for 26 June 2000.

[6] On 23 June 2000 the applicant's solicitors wrote to the Commission asking that the non-compliance hearing be adjourned on the grounds that the applicant had been charged with the theft of monies from the respondent, and that compliance with directions would require statements and evidence in the Commission proceedings from the applicant involving the alleged theft, which would prejudice the applicant and may incriminate him in relation to the criminal proceedings. The criminal proceedings are listed for a contest mention in the Melbourne Magistrates Court on 1 August 2000.

[7] Later on 23 June 2000 the non-compliance hearing was "adjourned until further notice".

[8] On 26 June 2000 the respondent wrote to the Registrar opposing the adjournment of the non-compliance hearing.

[9] The matter was then relisted, as a non-compliance hearing, on 11 July 2000.

[10] In that hearing Mr Bromley, for the applicant, sought that the proceedings be stayed indefinitely, until after the criminal proceedings were concluded. Mr Harris, for the respondent, opposed that course. The issue to be decided is whether the arbitration in this matter, in effect, should be adjourned indefinitely, pending the conclusion of the criminal proceedings, with directions for the applicant to file and serve relevant materials suspended until some point after the conclusion of the criminal proceedings.

[11] The applicant sought leave to stay the proceedings until the completion of criminal proceedings on the grounds that the applicant has the right or privilege against self-incrimination. This submission repeated the position put in the 23 June 1999 correspondence to the Commission that:

"The unfair dismissal proceeding and statements required to be filed will necessitate Mr Sanford giving evidence about the circumstances involving the alleged theft. As a result Mr Sanford's capacity to give evidence and file statements and submissions in the unfair dismissal proceeding is prejudiced as it may incriminate him with respect to the criminal proceedings."

[12] The applicant contended that the attitude of the respondent was such that it was likely that any material arising in the present proceedings would find its way to the police, raising a real prospect of a real injustice to the applicant in respect of the criminal proceedings.

[13] It was submitted that the rights against self-incrimination are a fundamental common law right, which cannot be over-ridden except by express and unambiguous words. It was submitted that s.110 of the Act does not do that.

[14] The applicant submitted that, in the interests of justice, he be absolved from filing statements until the determination of the criminal proceedings.

[15] It was submitted that the issues in the s.170CE matter relate to the alleged misappropriation of funds which are the issues in the criminal proceeding. It was further submitted that no prejudice results from any delay in the unfair dismissal proceedings. It was submitted that, in the context of s.110 of the Act, it would be unjust to force the applicant to give evidence before the completion of the criminal proceedings, in circumstances where he was required to lodge a s.170CE application within a time limit.

[16] It was further submitted that the Commission has a discretion in relation to the adjournment application and is required to balance the interests of the applicant against those of the respondent. The refusal of the adjournment sought would seriously prejudice the applicant in respect of the criminal proceedings. No prejudice would arise to the respondent if the adjournment was granted. The implications are much more serious for the applicant and could significantly prejudice his future.

[17] The respondent submitted that the Commission should reject the application for adjournment and :

1. direct the applicant to comply with the directions within a new, abridged time-frame;

2. refuse the application for adjournment and set the matter down for substantive arbitration;

3. alternatively, treat the application as having been discontinued.

[18] The respondent submitted that the Commission has a statutory obligation to deal expeditiously with the matter, found within:

1. the general policy within s.98 of the Act

2. the specific requirements of Part VIA of the Act, in particular s.170CA, the subsections in s.170CE(7) and s.170CFA(6) (see Howarth and Mornington Peninsula Shire Council [Print S0138] and Lin Thi Thuy Nguyen v Kallen Nominees Pty Ltd [IRCA 15 August 1995, 95/442 per Ryan JR]).

♦ the applicant, although commencing the proceeding on 2 December 1999, did not, despite directions issued on 28 May 2000, request a stay of the matter until 23 June 2000; and

♦ there is no certainty as to when the criminal proceedings will be finalised.

[20] The respondent relied on the principles in McMahon v Gould [(1982) 1 ACLC 98] which have been subsequently applied in matters of this kind and which have been followed in later judgments and decisions. They are set out in Cargill v Shire of Lilydale [(1994) 58 IR 332] and include that:

1. the respondent has a legitimate interest in the matter being progressed to finality in the course of the normal business of the Commission. There is an obligation on the applicant to show it is just and convenient that the matter be stayed or adjourned;

2. an applicant has no entitlement, as of right, to have a civil proceeding stayed pending the hearing and determination of a criminal proceeding;

3. there is no basis to the applicant's contention that he would be prejudiced if the s.170CE application were heard and determined in advance of the criminal proceeding because:

i. the "right to silence" does not apply in a civil case even though there may be pending criminal proceedings (Philippine Airlines v Goldair (Aust) Pty Ltd [(1990) VR 385]);

ii. the issues for consideration are different in that:

♦ the Commission has to decide, inter alia, whether there is a valid reason for the termination, not whether, as a matter of law, a crime has been committed;

♦ the standard of proof in the Commission proceedings, even applying Briginshaw v Briginshaw, is the balance of probabilities, not the standard of "beyond reasonable doubt" to be applied in criminal proceedings; and

♦ any finding made in the Commission will not affect criminal proceedings because a decision of an administrative tribunal cannot amount to an estoppel (see Howarth, applying Re Cram & Ors; Ex parte the Newcastle Wallsend Coal Company Pty Ltd [1987] HCA 29; (1987) 163 CLR 140).

[21] The respondent relied on paragraph (j) of the summary in McMahon:

"(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;

(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."

[22] It was submitted by the respondent that, applying these factors, it is clear that there is no notional, let alone real, danger to the applicant in the criminal proceedings if he gives evidence in the Commission on his application.

[23] The application for adjournment is to be decided in the context of the Act. Accordingly the provisions of s.98 are relevant. Section 98 provides:

"The Commission to act quickly. The Commission shall perform its functions as quickly as possible."

[24] The provisions of ss.170CE(7) and 170CFA(6) are also directed to the timely processing of applications.

[25] Ryan JR in Nguyen v Kallan Nominees observed:

"The whole structure of Division 3 of Part VIA of the Industrial Relations Act 1988 is predicated on the basis that applications of this type should go to hearing and be resolved as quickly as practicable."

Whilst the observations of Ryan J were made in the context of the termination of employment provisions of the Industrial Relations Act 1988 (the 1988 Act), the observation would apply equally in the context of the provisions of the current Act.

[26] Whilst the Commission does have a discretion in relation to the adjournment application, it must be exercised in the context of the statutory scheme. There is a statutory presumption that termination of employment matters should be resolved as quickly as practicable. It follows that an application for adjournment must be properly made out.

[27] The applicant's case for adjournment was based entirely on the grounds that the filing of statements and giving of evidence by the applicant in the present proceedings would infringe his "right to silence" and prejudice his position in the pending criminal proceedings.

[28] In McMahon v Gould, Wootten J set out principles in relation to the applications to stay civil proceedings until the completion of criminal proceedings on the ground that one party was charged with offences arising out of the same alleged events involved in the civil proceedings. Those principles are 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;

(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."

[29] Those principles were adopted in the judgement of Wilcox J in the Federal Court in Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Aust) Pty Ltd [(1984) [1984] FCA 406; 4 FCR 428] and by the Chief Justice of the Supreme Court of Victoria in Philippine Airlines. These cases involved applications for stays by defendants in civil proceedings who were defendants in criminal proceedings. The principles have been applied in respect of applicants in civil proceedings, specifically applicants in relation to termination of employment applications under the 1988 Act in Cargill v Shire of Lilydale and Nguyen v Kallan Nominees and in Howarth and Mornington Peninsula Shire Council in respect of the present Act.

[30] Ryan JR in Cargill v Shire of Lilydale noted of the different circumstances:

"In my view eight of the 12 principles, (d) to (g) and (i) to (h) clearly apply irrespective of whether the defendant in the criminal matter is plaintiff or respondent in the civil matter.

Furthermore, I cannot see why the remaining four principles (a) to (c) and (h), while predicated on the basis of the criminal defendant being the civil respondent, cannot be applied as acceptable principles in the case of the civil plaintiff facing criminal charges. At the end of the day, each case must be judged on its own merits (see principle (f).

Either party (in this case the respondent) is entitled to have the action in this Court tried in the ordinary course of the procedure and business of the Court. Neither party in criminal proceedings, accused or Crown, is entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding."

[31] The principles are applicable to the current adjournment application. The respondent is prima facie entitled to have the matter determined as quickly as practicable. An adjournment should not be lightly entertained. The onus to make good the adjournment application lies with the applicant for the adjournment. The applicant is not entitled, of right, to an adjournment in light of the criminal proceedings. Each application for adjournment must be made on its own merits and balance the interests of the parties.

[32] Where there are pending criminal proceedings the accused's "right of silence" is a relevant consideration, 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. In the case of Philippine Airlines v Goldair , Young CJ concluded at page 386 that:

"The right of silence is a right which relates to criminal proceedings and it would need a very strong case before the Court should intervene solely on that ground to stay civil proceedings pending the determination of criminal proceedings."

[33] Injustice to a defendant in the criminal proceedings is a relevant consideration in considering competing interests of the parties, but it must be a real and not merely notional danger.

[34] In the present case, the adjournment was sought on the basis of protecting the applicant's "right to silence" and avoiding prejudice to his position in the criminal proceedings. The only specification of the nature of the prejudice confronting the applicant came after questioning and was as follows:

"HIS HONOUR:…Presumably in these proceedings the applicant's case will be that the allegations of, presumably, misconduct relied upon for termination are groundless.

MR BROMLEY: Yes, and that is true. However, the cases of theft - there is one case of theft which he was charged with which does depend to some extent on the state of his mind at the time. Briefly, our allegation will be that we had some monies but we used them for business expenses. It may be that the statements made by Mr. Sanford, either in submissions or under oath can be used in the cross-examination of him in the criminal proceedings.

It is not a straight forward objective criminal proceeding, it depends on the state of mind of Mr. Sanford. It is not a case of did he have the money or didn't he, it is more complicated than that. The theft proceedings will, in essence will be that we don't deny that we took some money, however our state of mind was crucial to whether we were criminal or not, engaged in criminal behaviour or not."

[35] I am not satisfied that a very strong case has been established for these proceedings to be adjourned or stayed until the determination of the criminal proceedings, or for revoking the directions issued on 28 May 2000. I am not satisfied that a case has been made out to prevent determination of the present matter in the normal course. On what has been put to me, I am not satisfied that there is a real danger of injustice to the applicant if the present matter proceeds to arbitration in the normal course. To paraphrase the conclusions of Young CJ in Philippine Airlines, if the allegations of conduct substantiating a valid reason for termination are groundless, no injustice would accrue to the applicant in respect of the criminal proceedings if he were to say so now. The Commission, in determining whether the termination was harsh, unjust or unreasonable, will be required to make findings, on the balance of probabilities, as to whether or not conduct occurred which constituted a valid reason for termination. I have not been satisfied as to how such a finding, or the giving of evidence in relation to it, would create an injustice for the applicant in defending criminal charges to be determined beyond reasonable doubt.

[36] I am therefore not prepared to grant the application for adjournment.

[37] I direct the applicant to comply with the directions of the Commission of 28 May 2000, subject to a variation of the date in the first direction from 19 June 2000 to 4 August 2000. Attention is drawn to the note at the foot of the 28 May 2000 directions.

[38] The matter will be listed for arbitration in due course, during the week commencing 2 October 2000.

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