GDA v State of New South Wales

Catchwords: STAY – application to stay civil proceedings whilst active police criminal investigation relating to defendant’s main witnesses’ alleged conduct arising from the same facts ongoing – factors to be considered

Legislation Cited: Civil Procedure Act 2005 (NSW)
Felons (Civil Proceedings) Act 1981 (NSW)

Cases Cited: Australian Securities and Investments Commission v Australian and New Zealand Banking Group Limited [2019] FCA 964
CFMEU v ACCC (2016) 242 FCR 153
Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46
Davis v Kent [2017] NSWCA 122
Grasby v The Queen (1989) 168 CLR 1
Lucciano v The Queen [2021] VSCA 12
National Australia Bank Ltd v Human Group Pty Limited [2019] NSWSC 1404
Ransley v Federal Commissioner of Taxation [2016] FCA 778
Telstra Limited v Sulaiman & Ors [2024] NSWSC 971
Villan v State of Victoria [2021] VSC 354

Category: Procedural rulings

Parties: GDA (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
Mr C Barry KC with Mr T Meakes (Plaintiff)
Mr P Neil SC with Ms J Chapman (Defendant)
Solicitors:
Wyatts Lawyers (Plaintiff)
McCabes Lawyers (Defendant)

File Number(s): 2022/00338884

Publication restriction: Yes

JUDGMENT – EX TEMPORE

1. Before the Court for determination is a Notice of Motion filed on 13 May 2025 by the defendant, the State of New South Wales, seeking orders that the proceedings be stayed until further order of the Court, an order that the hearing of the motion be expedited with the motion to be heard on an urgent basis, and a consequential order that the final hearing in the matter listed for 2 June 2025 be vacated.

2. In support of the application, the defendant State read the following affidavits:

(a) Valentia Renae Stamatopoulos dated 13 May 2025 and 20 May 2025; and (b) Carlie Louise Moses dated 21 May 2025.

3. The plaintiff, who opposed the application, read the affidavit of Olivia Josephine Power dated 20 May 2025.

4. The background to the matter is that the plaintiff alleges, in a Statement of Claim filed on 11 November 2022 in the Supreme Court, abuse by a teacher whilst he was a pupil at Narromine Public School in the 1990s. It is alleged by the plaintiff that in 1998 when he was eight years old and in year 3, that he suffered physical abuse from a relative, that this was noticed through bruising by a teacher, Mr D, who, following that, committed acts of sexual battery in relation to the plaintiff.

5. The matter came before McNaughton J in the Supreme Court who gave leave to the plaintiff nunc pro tunc to pursue the proceedings under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) as the plaintiff was then an inmate in a correctional institution. Following a number of additional directions hearings, the proceedings were transferred to this Court by order dated 3 June 2025 of the Supreme Court. An Amended Defence was filed in the matter by the State on 8 April 2025.

6. On 9 July 2024, the Judicial Registrar set the matter down for final hearing for five days commencing on 2 June 2025. It has been indicated to me by senior counsel appearing for the State, apparently with agreement from senior counsel for the plaintiff, that the matter could well extend beyond five days and possibly to up to ten days.

7. The Court has been assisted in determining the application by both written submissions by counsel for the State and also by oral submissions by both counsel. The materials in evidence establish the following matters:

(a) The alleged perpetrator, Mr D, was a teacher at Narromine Public School in the 1990s; (b) He strongly denies the allegations made against him by the plaintiff; (c) He would be a significant witness for the State in any final hearing; (d) He provided two statements to the State through a solicitor acting for him relating to the allegations; (e) The State became aware earlier this month that certain documents had been provided by the school to the NSW Police Force; (f) Upon further inquiry, it was ascertained that police were interested in the matter; (g) Upon even more detailed inquiry, it was confirmed by a police officer that there was an active investigation in relation to the matter. Clearly the inference can be drawn that if the police were satisfied of the matter, that their investigations may be referred to the appropriate prosecution authorities to consider whether charges should be brought against Mr D of a criminal nature; (h) Upon inquiry, the relevant police officer said that the matter had been ongoing for a couple of years and that recently, a detailed statement from the plaintiff had been finalised. That statement discloses that the plaintiff indicated to the police that he would be willing to go to Narromine Public School to attend with police to show them around the school and no doubt indicate areas where he alleges conduct occurred; (i) Although other witnesses would be called for the State, it is proposed that Mr D would be the main witness; (j) A subpoena has been issued to Mr D to give evidence at the civil hearing; (k) That correspondence from solicitors acting for Mr D has indicated that if the current application by the State is unsuccessful, Mr D will make an application to set aside the subpoena, presumably on the basis of the prejudice that could be caused to him if he was forced to give evidence; (l) If that application was successful, the State would be left without one of its central witnesses. It should be inferred that it would then make an application to vacate the hearing date, relying on similar evidence relied on in this application but with stronger evidence as to the unavailability of Mr D; (m) If that application was unsuccessful, and Mr D was compelled to give evidence in the civil proceedings, that no doubt there would be an application by him for a s 128 certificate; (n) However, having regard to the normal conduct of proceedings, the full case for the State would be disclosed, which could amount to what is commonly called in the authorities a “dress rehearsal” for potential criminal proceedings; (o) The proceedings involve serious allegations of a criminal and civil nature; (p) Any criminal charges would arise out of substantially identical facts; (q) Accordingly, the prosecuting authorities would be in a position to see how the civil case was conducted and the consequences of it and would obtain, presumably, if Mr D gave evidence, a transcript possibly upon application of evidence given by him and of other witnesses.

8. Obviously, the impact of that possibility on a person’s right to silence is a factor to be taken into account. One matter that should be emphasised is that whilst the evidence indicates that it is an active criminal investigation, there is no evidence before me that charges have been laid. This is a matter which distinguishes this case from many other authorities which have been relied upon by the State.

9. As I indicated, counsel for the defendant have provided the Court with written submissions and have given additional oral submissions. It is unnecessary for me for the purposes of the application to set out those written submissions in detail.

10. It is clear that the State approaches the Court partly out of concern for the situation of Mr D but also partly out of concern for its own position, including as a model litigant, where it may or may not be deprived of its prime witness. Even if that witness is compelled to give evidence, there would be a natural hesitation or potential limitation in the witness’ evidence in answer to questions.

11. By that, I am not suggesting that Mr D would do anything other than answer questions properly and in accordance with his obligations. However, the application is made by the State because of concern that it may be held liable on the plaintiff’s evidence where it would not have its prime witness available as a contradictor.

12. Mr Barry KC, who appears for the plaintiff, noted the prayers for relief in the Notice of Motion and submitted that prayer for relief 1 was an extreme order and would be inappropriate. He submitted that some exceptional circumstance would need to be established to justify a stay until further order and the consequent vacation of the hearing. He submitted that Mr D was a witness and no more than a witness. It was a matter for the trial judge how to deal with Mr D. It was submitted that:

(i) The Court simply could not know what would happen in relation to the subpoena; (ii) Whether a s 128 certificate would be issued was a matter for the trial judge; and (iii) In substance, the plaintiff was entitled to have his case heard which has been listed for a considerable period of time.

13. Mr Neil SC, in reply, emphasised that without Mr D, the State would be forced to go to trial without Mr D’s evidence, and this could lead to the loss of the case for the State and would potentially limit or constrain cross-examination. He submitted that the case involved more than simple inconvenience.

14. I should say at the outset that the Court of Appeal has made clear in general terms that a plaintiff is entitled to have their hearing if it has been allocated. In Davis v Kent [2017] NSWCA 122, the Court consisting of Beazley ACJ (as her Excellency then was), and Leeming and Meagher JJA, stated in paragraph 33 as follows:

“The Court and parties are entitled to, and should expect that, subject to justifiable and justified circumstances, proceedings will commenced on the allocated date for hearing and proceed to finality, and that this process will be carried out with appropriate efficiency. The requirement that proceedings be determined with due dispatch, having regard to their just disposition, is now part of the statutory basis upon which litigation is required to be conducted.”

15. The issue therefore in these circumstances is whether there are “justifiable and justified circumstances” warranting a stay and vacation of the hearing date.

16. The Court has taken into account the cases referred to in the submissions provided on behalf of the State. In particular, the Court takes into account the judgment of the High Court of Australia in Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46. That case involved a respondent who had been charged with criminal offences. The Court dismissed an appeal against a stay order in those circumstances of civil forfeiture proceedings. Their Honours stated in a joint judgment in paragraph 42:

“The risk of prejudice to the second respondent if a stay is not granted in the forfeiture proceedings and the exclusion proceedings is plain. It is not necessary for the second respondent to say any more than he did on the application for a stay in order to identify that risk, given that the offences and the circumstances relevant to both proceedings are substantially identical.”

17. The Court also takes into account the submissions’ reference to the decision of the Victorian Court of Appeal in Lucciano v The Queen [2021] VSCA 12. See at [24] and [31]-[33].

18. The Court has been also assisted by two relatively recent single judge authorities where the principles have been stated:

(a) National Australia Bank Limited v Human Group Pty Limited [2019] NSWSC 1404; and (b) Telstra Limited v Sulaiman & Ors [2024] NSWSC 971.

19. Relying on the above authorities, in my view a summary of the principles applicable may be stated as follows:

20. The Court may, at any time, stay proceedings either permanently or until a specified time. Whilst the Supreme Court has an inherent power, this Court has a power to control its own proceedings and a power to grant a stay pursuant to s 67 of the Civil Procedure Act 2005 (NSW);

21. That power to grant a stay may be exercised because of the existence of criminal proceedings relating to overlapping matters in a civil case in a proper case: Zhao at [35]-[36]; Telstra, above, at [13];

22. The exercise of the Court’s discretion to stay proceedings involves an assessment as to whether the dictates of justice require such an order. This must be subject to the overriding purpose in the Civil Procedure Act in s 56 to facilitate the just, quick, and cheap resolution of the real issues in the civil proceedings - see ss 56 to 60 of the Civil Procedure Act: National Australia Bank, above, at [36];

23. The principles to be applied have been stated in numerous appellate cases. A plaintiff is prima facie entitled to have his or her or its civil action tried in the ordinary course, and a stay therefore requires justification on proper grounds. The applicant for a stay bears the burden of demonstrating proper grounds;

24. 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. That would similarly be the case in the present case when there is an active criminal investigation. However, a stay of the civil proceedings may be warranted if it is apparent that the potential accused or actual accused is at risk of prejudice in the conduct of his, her, or its defence in the actual or potential criminal trial. The risk of prejudice must be real: National Australia Bank at [37];

25. It is not necessary for the applicant to state the specific matters of prejudice before a stay could be contemplated (see Zhao at [43]). This may require the revelation of information about the defence of the witness which was the very situation which the State in the present case seeks to avoid;

26. The relevant prejudice to a party in the civil proceedings may arise from the existence of the criminal proceedings or potential criminal proceedings even in circumstances where there is not a strict identity between the applicant for the stay of the civil proceedings and the criminal accused. That matter was referred to by Moshinsky J in Australian Securities and Investments Commission v Australian and New Zealand Banking Group Limited [2019] FCA 964 at [58] (“ASIC v ANZ”), which seems to be applicable here;

27. However, prejudice to an accused who is not a party to the civil proceedings or against whom relevant allegations are not made in the civil proceedings may be a relevant consideration: see Ransley v Federal Commissioner of Taxation [2016] FCA 778 at [15] and [24]; CFMEU v ACCC (2016) 242 FCR 153 at [28] and following;

28. The risk of prejudice identified by an applicant for a stay must be weighed against the prejudice that a stay of the civil proceedings would occasion: ASIC v ANZ at [61]; National Australia Bank at [37]; Zhao at [47].

29. The Court must consider each case on its merits and the factors which are relevant to the exercise of the discretion. Those factors are not closed and while the authorities refer to various factors, they should not be considered exhaustive or prescriptive;

30. A stay may be granted on certain conditions (see Grasby v The Queen (1989) 168 CLR 1 at 16 to 17).

31. In my view, the factors which should be taken into account in the present case in the exercise of the discretion which I have in relation to a stay under s 67 include the following:

32. The case involves alleged torts relating to serious alleged acts of sexual battery by a former teacher, Mr D, for which the State is said to be liable;

33. These acts, if proved to the necessary standard applicable, would also constitute serious criminal acts;

34. The acts relevant to the civil claim and any criminal proceedings would relevantly be identical although the legal principles applicable would be different;

35. The application to vacate appears clearly to be a bona fide one not involving the intention to delay;

36. The applicant, the State, is not directly affected in the sense of being the party potentially exposed to criminal charges. Mr D is. However, he is a central and practically the most important potential witness for the State in the civil proceedings;

37. The application is made late, the trial being listed for five days commencing 2 June 2025;

38. However, the fact there is an active criminal investigation against Mr D only became apparent to the applicant this month;

39. Mr D has not been charged and thus no criminal trial is approaching. This should be compared to the other major cases I have referred to and relied on. There is no indication as to when or if he will be charged. The relevant police officer could give no timing as to any decision, quoting limited resources and priorities;

40. The plaintiff cannot be made to wait for an unreasonable period of time for his final hearing;

41. The State has subpoenaed Mr D. His solicitors have indicated an intention to set aside the subpoena if this application is not successful;

42. Whether that would be successful or not is a matter for the judge hearing any such application;

43. If this application is not successful and the subpoena is not set aside, Mr D would be compelled to give evidence. He could be granted a certificate under s 128 as Mr Barry indicated;

44. However, any evidence by him and any other witnesses called could give a real advantage to the Crown in any prosecution. That would impliedly impact on his right to silence;

45. Mr D has given statements which his solicitor would not have given if he knew criminal charges were possible;

46. Mr D strongly denies all the allegations of tortious conduct;

47. The plaintiff is clearly prejudiced by any delay. Memories dim over the time in most instances;

48. However, no particular additional prejudice to the plaintiff is established on the evidence. I accept the submissions of counsel for the State on that issue;

49. Mr D would potentially be prejudiced by the civil trial occurring as indicated above;

50. The State is prejudiced by having a reluctant and now uncooperative witness. In saying that, I am not criticising Mr D, having become aware of the active investigation;

51. The interests of justice are paramount;

52. The balancing process must occur. The onus rests on the applicant to establish a proper basis for the stay;

53. The fact Mr D has not been charged is of some importance but not decisive;

54. A final hearing has not been vacated before;

55. However, the facts relating to the alleged abuse occurred in 1998, 27 years ago;

56. Any delay may impact on memories of witnesses who also may become ill or die;

57. The plaintiff alleges a history of physical and mental abuse by a relative. He asserts psychiatric injuries in the present case. The nature of the case in my view is relevant;

58. The State has in my view quite properly indicated that if the Court was willing to make orders in substance for a stay after the vacation of a hearing date pending a clarification of the investigation, that it would not oppose an order that the costs of the Notice of Motion be paid by the State. Mr Barry submitted that that should include the costs thrown away by the vacation of the hearing date. Mr Neil indicated that whilst he did not have specific instructions on the issue, he understood the relevant connection between those two matters.

59. Taking into account all of the matters I have indicated, and the submissions made by the parties, the potential for prejudice to Mr D and the applicant State is real. A distinct advantage may be given to the Crown by examining Mr D’s evidence and that of witnesses in a “dress rehearsal” of the case, albeit at a lower standard of proof. I refer to Keogh J’s comments in Villan v State of Victoria [2021] VSC 354 at [18] referred to by counsel for the State at paragraph 32 of their written submissions.

60. Whilst criminal charges had not been laid against Mr D, the criminal investigation is active. The plaintiff has agreed to return to the school to show them where the alleged assault took place (see statement paragraph 30.) A police statement for the plaintiff has been finalised, indicating a continued interest by the police. In my view, a stay should be ordered.

61. However, in my view, the proceedings should not be stayed until further order as sought in the Notice of Motion. A new hearing date should be set so the plaintiff has a place in the queue for a hearing. The matter should, in my view, be brought back for review in 2026 in a date to be discussed with counsel when the updated status of the criminal investigation should be given. The consequence of a stay is that the hearing date must be vacated.

[His Honour then dealt with the form of the order and costs.]

…

24. An application has been made by the plaintiff who has lost his hearing date for his costs of the Notice of Motion and the costs thrown away by the vacation of the hearing date to be assessable immediately and, once assessed, to be paid forthwith. Mr Neil SC who appears for the State has indicated he does not have express instructions on that and makes no active submission on the issue.

25. The general principle applicable is that costs in relation to interlocutory matters are not to be assessed until the conclusion of the proceedings. The Court has a wide discretion as to costs under s 98 of the Civil Procedure Act 2005 (NSW). In an appropriate case, the Court can give leave for any costs to be assessed immediately and, once assessed, for costs to be paid by a party forthwith.

26. The authorities set out the factors which are relevant to such an order. The most important factor is the length of time which a party may have to wait until there is the potential to obtain such costs. Clearly the other party has an interest in the issue as there may be countervailing costs orders or the other party may win the proceedings.

27. In the present case, the delay is very considerable. The plaintiff who is an individual and allegedly suffers from psychiatric injuries will obviously be disappointed by the lack of the allocated hearing of his case. In my view, the order sought by Mr Barry KC for the plaintiff is an appropriate one. The reasons for that are:

(a) The late application to vacate the hearing date; (b) The fact that the plaintiff would clearly be preparing for the matter for the hearing in the proper course; (c) The application is brought by the State to vacate the hearing date for the reasons set out in the primary judgment; (d) The fact that with the length of the hearing which has been increased on the estimate by senior counsel for the State, there will be a substantial delay until the matter is heard. If the active criminal investigation becomes more than active and charges are laid, this may result in even further delays although that is unclear; (e) The plaintiff individual should not be required to wait for that period for his costs.

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