Based on the information we currently have, we have formed the view that you did not exercise care to ensure your employee code was kept safe and secure as required under your contract of employment and hotel policies and procedures. As a result, someone was able to access the Hotel on the night in question and we have suffered a significant loss as a result.

1. Mr Johnstone then stated that Ms Howell's employment with the Victoria Hotel would be terminated.
2. By letter dated 13 June 2024, Employers Mutual Ltd determined that the claims for compensation by reference to a claimed work injury of anxiety and depression be rejected. It noted that, by letter dated 4 June 2024, the Victoria Hotel informed Ms Howell that her contract of employment was being terminated after Ms Howell failed to attend a meeting that had been scheduled on 2 June 2024 to discuss the break in incident that had occurred on 2 May 2024. Employers Mutual Ltd concluded that Ms Howell had not discharged the legal onus upon her to prove that any psychiatric injury that she suffered did not arise wholly or predominantly from disentitling events as set out in ss 7(4)(a) and (c) of the Return to Work Act 2014 (the RTW Act). That is, Ms Howell had not discharged the burden upon her to prove that her claimed work injury did not arise wholly or predominantly either from reasonable action taken in a reasonable manner by her employer to discipline or dismiss her or that it did not arise wholly or predominantly from reasonable administrative action taken in a reasonable manner by her employer in connection with her employment.
3. On 21 June 2024, Ms Howell applied to the Tribunal for it to review the decision to reject her claims for compensation. The compulsory conciliation conference process did not result in an agreed outcome to finalise the proceeding. The application for review was referred for hearing and determination on 12 August 2024. On 22 August 2024, I made directions for the parties to file and serve lists of documents and statements of facts, issues and contentions. The matter was then adjourned to a directions hearing on 24 October 2024. The parties duly filed their lists of documents and statements of facts, issues and contentions.
4. On 24 October 2024, Ms Howell made application for an adjournment of the proceeding for a few months to allow police to conclude their investigation in circumstances where she may have continued to be a suspect in the investigation. Neither the Corporation nor the Victoria Hotel opposed that application and the proceeding was thereby adjourned to a directions hearing on 21 January 2025.
5. On 21 January 2025, Ms Howell made a further application to adjourn proceedings for a few months in the hope that by that time, South Australia Police would have concluded its investigation and determined whether any charges would be laid against Ms Howell. The Victoria Hotel initially opposed the adjournment sought on the basis that there were current proceedings in the Fair Work Commission where the applicant was seeking an unfair dismissal remedy and had been directed to file a statement of evidence. Ms Howell advised that the proceedings in the Fair Work Commission would be discontinued and in the circumstances, the application for an adjournment was granted.
6. On 22 April 2025, the Court was informed that the police investigation was ongoing and that it was likely to be a number of months before Ms Howell would be advised if charges were to be laid against her. In circumstances of the Victoria Hotel opposing the lengthy adjournment, the application was listed for the hearing of oral argument on 15 May 2025.

1. In Skidmore v Return to Work Corporation of South Australia,[2] I observed that in Eunice Daphne Washington (by her litigation guardian Edward Mitchell Byrt) v Titan Fan Products Australia Ltd and Ors.,[3] Stanley J summarised the principles to be applied in determining whether a stay of civil proceedings should be made where there is, at the time, a criminal investigation which may lead to a prosecution of a party to the civil proceedings. In that case, Ms Eunice Washington instituted civil proceedings against four respondents including Julie Washington as the fourth respondent. Julie Washington had control of three companies being the other respondents to the proceedings. Julie Washington applied to the court to stay the proceedings in circumstances of a criminal investigation into her conduct being undertaken and where the criminal investigation generally concerned the same matters that were to be decided in the civil proceedings. His Honour stated:
   1. Courts have the power to control their proceedings and to order a stay in an appropriate case. It will be appropriate to do so where the interests of justice require such an order.
   2. A plaintiff is prima facie entitled to have civil proceedings tried in the ordinary course. Accordingly, a stay requires justification on proper grounds.
   3. The burden of demonstrating the existence of proper grounds for a stay is on the applicant.
   4. 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. A stay of civil proceedings may be warranted if it is apparent that the accused is at risk of prejudice in the conduct of his or her defence in a criminal trial.
   5. 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.
   6. Prejudice to the accused's right to silence or privilege against self-incrimination is a relevant and important factor in the exercise of the discretion. Some cases place this as the paramount consideration in the assessment of whether to grant a stay.
   7. It may not be necessary for the applicant seeking the stay to state the specific matters of prejudice before a stay could be contemplated. As the High Court said in Zhao:

To require the second respondent to do so would be to make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid.

1. It is not necessary for the applicant for the stay to have been charged with a criminal offence. The real risk of prejudice or injustice can relate to an actual or potential criminal proceeding. It is sufficient that a criminal charge or charges is or are "on the cards". The expression "on the cards" has been interpreted to mean reasonably possible or a reasonable possibility. Where allegations in a civil proceeding are of a very serious nature and magnitude, the pleading alone may be sufficient to establish that there is a real risk of criminal prosecution should the matters alleged be proven.[4]

1. Ms Howell referred to a police raid of her property on 3 May 2024 and her application for review identifies that attendance as the basis of her claim for compensation. She asserts that she was falsely accused of breaking, entry and robbery of the Victoria Hotel premises.[5] Ms Howell referred to a statement made on that occasion by investigating police officer Brevet Sergeant John Carroll (Sergeant Carroll) that there was condemning evidence against Ms Howell related to the theft. Sergeant Carroll referred to Ms Howell as the "prime suspect". Upon legal advice, Ms Howell declined to provide police with a statement and, in her affidavit for the purpose of the current application, deposed to declining to provide a statement in order to avoid self-incrimination.
2. Ms Howell submitted that if she were now required to provide a comprehensive affidavit of evidence as to the merit of her claims for compensation, and to then be cross-examined at trial, then she would be exposed to the risk that she may incriminate herself in a potential offence and may provide evidence which could be relied upon by the prosecution in determining whether to formally charge her.
3. Ms Howell submitted that a prosecution of her related to the theft is not only "on the cards" but is very likely. She referred to the affidavit of Stephen Johnstone affirmed on 7 May 2025 for the purposes of her application for a lengthy adjournment. In that affidavit, Mr Johnstone referred to a discussion with Sergeant Carroll in April 2025 where Mr Johnstone was informed that forensic evidence was being organised and that a timeline could not be given within which charges might be laid.

1. The Victoria Hotel submitted that there is no evidence of it having accused Ms Howell of theft. It referred to the text of the letter from the Victoria Hotel to Ms Howell dated 4 June 2024 where it based its decision to terminate Ms Howell's contract of employment upon her not having exercised care to ensure that her employee code was kept safe and secure as required under her contract of employment and the policies and procedures of the Victoria Hotel. It added that this failure enabled someone to access the Hotel and as a result the Hotel suffered a significant loss.
2. The Victoria Hotel referred to Ms Howell having initiated the proceedings before the Tribunal and that she has already disclosed in her affidavit in support of the lengthy adjournment application and in her Statement of Facts, Issues and Contentions, her case. Reference was made to the statement in Ms Howell's affidavit, affirmed on 30 April 2025, that she denied any involvement or knowledge in the alleged theft.
3. Mr Coppola, who advanced submissions on behalf of the Victoria Hotel, noted that the claimed cause of any work related psychiatric injury, upon Ms Howell's case, is based upon either the police investigation of a theft of her employer's premises or the termination of her contract of employment by the Victoria Hotel. Mr Coppola reiterated that Ms Howell has denied any involvement in the theft and the employer's case is not that she was involved in a criminal enterprise to steal from the premises of the Victoria Hotel but rather that there was a lack of care on her part and that she failed to ensure that her employee code was kept safe and secure. It was noted that South Australia Police had not given any timeline for the conclusion of its investigation and a determination of any charges to be laid.
4. The Victoria Hotel submitted that it would be significantly prejudiced by a lengthy further delay. Mr Johnstone deposed to Jon Mac Pty Ltd being both the freehold owner of the Victoria Hotel property and also the owner of the liquor licence associated with those premises. The directors of the company are now seeking to lease the licence of the Hotel to another operator whilst retaining the freehold interest. Mr Johnstone suggested that the current proceeding may complicate the leasing of the licence of the Hotel. Reference was made to the directors needing to remain interested in the current proceeding for the purpose of providing instructions and potentially giving evidence. It was submitted that this would amount to an unnecessary burden upon the directors, including Mr Johnstone.

1. The Corporation neither consented to nor opposed Ms Howell's application for a lengthy adjournment of the proceeding.

1. The legal principles set out earlier in these reasons are to be applied in the context of the main objectives of the South Australian Employment Tribunal which are set out in s 8 of the South Australian Employment Tribunal Act 2014 (the SAET Act):

8 - Main objectives of Tribunal

The main objectives of the Tribunal in dealing with matters within its jurisdiction are -

(a) in the exercise of its jurisdiction, to promote the best principles of decision-making, including -

(i) independence in decision-making; and

(ii) natural justice and procedural fairness; and

(iii) high-quality, consistent decision-making; and

(iv) transparency and accountability in the exercise of statutory functions, powers and duties; and

(b) to be accessible by being easy to find and easy to access, and to be responsive to parties, especially people with special needs; and

(c) to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high-quality processes and the use of mediation and alternative dispute resolution procedures wherever appropriate; and

(d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and

(e) to use straightforward language and procedures (including, insofar as is reasonably practicable and appropriate, by using simple and standardised forms); and

(f) to act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit; and

(g) to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.

1. Important features of the Tribunal are its ability to be flexible in the way in which it conducts its business and that it does seek to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome. It is generally for the benefit of all parties that applications are processed and resolved as quickly as possible. Individuals involved in litigation often find the process stressful. It can be time consuming and whilst an employer and a worker are entitled to recover costs from the Corporation,[6] the amount of recovery is limited.[7] The definition of a "party to the proceedings" in s 96 of the RTW Act means that both Ms Howell and the Victoria Hotel are parties to the substantive proceeding.
2. I see no material difference in the application of the principles where a lengthy adjournment is sought in comparison to a stay of the proceedings. In each case, the burden of demonstrating the existence of proper grounds for the relevant order is upon the applicant. The main issues to be addressed are whether Ms Howell has demonstrated a real risk of prejudice in the conduct of her defence in a criminal trial if charges were to be laid against her and the degree of likelihood of criminal charges being laid against her in relation to the alleged theft from the Victoria Hotel. Given the manner in which the case was argued on her behalf, an important consideration is whether Ms Howell has demonstrated that the absence of a lengthy adjournment could prejudice her privilege against self-incrimination. If that is demonstrated then the discretion is enlivened and the Court will balance the potential prejudice to Ms Howell if her current application is refused with the potential prejudice primarily to the Victoria Hotel if there is a lengthy adjournment of the substantive proceeding.
3. For the purpose of determining the current application, I accept the evidence of Ms Howell as to what she was told by Sergeant Carroll when he attended her home with other police officers. At that time they already had sufficient information to exercise a warrant to search her home. It may be inferred from the evidentiary material before the Tribunal that the Victoria Hotel had notified South Australia Police of a theft from its premises and that Ms Howell's employee code to a security system was used to access the Victoria Hotel at the time of the asserted theft. I accept the evidence of Ms Howell that Sergeant Carroll told her at her home that he had condemning evidence against her and that she was at the time the prime suspect. There is no evidence to indicate that she is no longer a suspect. Rather, by April 2025 Sergeant Carroll told Stephen Johnstone that he was organising forensic evidence. Mr Johnstone has not referred to knowledge of any other suspect from statements made to him by Sergeant Carroll.
4. I am satisfied that the laying of criminal charges against Ms Howell in relation to the theft of the Victoria Hotel on 2 May 2024, is "on the cards".
5. In determining whether the filing of affidavit evidence in the substantive proceeding and having it proceed to trial expeditiously may have the effect of abrogating Ms Howell's common law privilege against self-incrimination, I note that it is different to the right to silence although they are both associated with the right to decline to speak with those in authority who may bring criminal proceedings.
6. In Sorby v Commonwealth (Sorby),[8] Gibbs CJ addressed the privilege against self-incrimination and stated:

It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so "may tend to bring into the peril and possibility of being convicted as a criminal". The mere fact that the witness swears that he believes that the answer will incriminate him is not sufficient: "to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer.[9]

1. The privilege against self-incrimination may be waived by the person entitled to claim it or it may be abridged by statute.[10]
2. The privilege extends to disclosure that might have the tendency to incriminate in an indirect manner. In Sorby, Mason, Wilson and Dawson JJ explained:

The privilege protects the witness not only from incriminating himself directly under a compulsory process, but also from making a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character.[11]

1. In the Facts section of Ms Howell's Statement of Facts, Issues and Contentions, she refers to police officers having attended her home on 2 May 2024[12] in relation to an alleged robbery of the Victoria Hotel premises. She pleads that it was the first time that she became aware of a robbery of the Victoria Hotel. Ms Howell pleads that, with the consent of the attending police officers, she telephoned and spoke to Mr Stephen Johnstone in his capacity as owner/manager of the Victoria Hotel. She pleads that Mr Johnstone told her that there had been a robbery of the Victoria Hotel and that her employee code was used to gain access to the Hotel after trade had ceased and the Victoria Hotel had closed on 1 May 2024. Mr Johnstone referred to her code having been used to gain entry in his correspondence to Ms Howell. It is appropriate to rely upon that for the purpose of the current application. She states that she was told of a significant number of assets having been removed from the Hotel. Ms Howell pleads that, by innuendo, Mr Johnstone had accused her of being either involved in or facilitating the robbery. She states that she was devastated by what she had been told by Mr Johnstone and that she denied any involvement in what had been reported to have occurred. She states that following the telephone discussion, she became distressed and tearful.
2. If Ms Howell were to be directed now to provide her affidavit of evidence and be available for cross-examination as to its content then she would have a duty to not only tell the truth, but to tell the whole truth.[13]
3. The inference to be drawn from Mr Johnstone's letter to Ms Howell dated 22 May 2024 is that a purpose of the scheduled meeting of 2 June 2024 was to question Ms Howell as to how her employee code came to be used at the time of the asserted theft from the Victoria Hotel premises. It is likely that Ms Howell will need to address in her evidence, whether in her affidavit of evidence or in cross examination, her position as to whether she accepts that her employee code was used to be able to gain access to the Victoria Hotel at the time of the asserted theft and how that may have occurred. It is to be expected that would be an aspect of the investigation by South Australia Police as to whether any criminal charges should be laid against Ms Howell. There would be a risk of Ms Howell disclosing information which could be material to the decision as to whether there should be a criminal prosecution of her. There is a risk of either directly or indirectly incriminating herself or making a disclosure which may lead to incrimination. The risk is real. That Ms Howell has denied any involvement in a theft from the Victoria Hotel, does not preclude such a finding.
4. I also note that the determination under review rejected Ms Howell's claims for compensation. She is currently not in receipt of weekly payments. She is not currently recovering the cost of expenses to treat her claimed psychiatric injury. Section 33(20) of the RTW Act limits the period over which such expenses may be claimed. Ordinarily, a worker in these circumstances would be anxious to have the claims determined by the Tribunal as soon as possible. The circumstances are consistent with a genuine concern on the part of Ms Howell that there is a real risk of self-incrimination if she is required to give evidence in the substantive proceeding while the police investigation is ongoing.
5. The discretion to grant the application for a lengthy adjournment of the substantive proceeding is enlivened. In determining where the balance lies in the exercise of the discretion, the facts do not demonstrate that there has been a waiver by Ms Howell in the application of the privilege against self-incrimination and there is no relevant abridgement by statute. The fundamental common law right is preserved. I have found that Ms Howell has demonstrated a real risk of prejudice in the conduct of her defence in a criminal trial if charges were to be laid against her in relation to the asserted theft from the Victoria Hotel. The prejudice claimed by the Victoria Hotel is to the directors of Jon Mac Pty Ltd. I accept that the directors would be inconvenienced by a lengthy adjournment. The Victoria Hotel is entitled to remain a party to the substantive proceeding, and, in those circumstances, the directors would need to continue to be available to provide instructions and Mr Johnstone would be likely to give evidence. It may be accepted that, in time, memory fades and a lengthy adjournment could impact upon Mr Johnstone's recollection of matters related to the asserted theft. A further adjournment without directions to advance the matter to trial is also to be considered in the context of the adjournment applications granted on 24 October 2024 and 21 January 2025. In his affidavit, Mr Johnstone refers to a further matter. He asserts that a lengthy adjournment would have the potential to also delay the leasing of the licence of the hotel to another operator. However, no detail has been provided by Mr Johnstone as to how that leasing could be affected or the extent of the risk. Whilst there are factors for and against the granting of a further adjournment, I find that the potential prejudice to Ms Howell is more serious and more substantial than the potential prejudice to the Victoria Hotel.
6. In all the circumstances, I have been persuaded that there should be an adjournment of the substantive proceeding without further directions, to 16 December 2025 with liberty to the parties to apply for an earlier directions hearing should South Australia Police conclude its investigation earlier than that date and determine whether criminal charges are to be laid against Ms Howell in relation to the asserted theft.

1. The substantive proceeding is adjourned to a directions hearing on Tuesday 16 December 2025 at 9:30am.

[1] The legal entity that has traded as the Victoria Hotel is the company Jon Mac Pty Ltd. A director of the company, who has also at times been referred to as "owner/manager" is Mr Stephen Johnstone (Mr Johnstone).

[2] [2021] SAET 74, [32].

[3] [2020] SASC 230.

[4] Ibid [4] with footnotes omitted. The reference to Zhao is a reference to Commissioner of the Australian Federal Police v Zhao [2015] HCA 5.

[5] Whilst the term "robbery" has been used, the Victoria Hotel has referred to access to the Victoria Hotel and a significant loss without reference to either unlawful force or a threat of violence.

[7] Section 106(6) of the RTW Act provides that an award of legal costs cannot exceed 85% of the amount that would allowable under the relevant Supreme Court scale if the proceedings were in the Supreme Court.

[8] [1983] HCA 10; (1983) 152 CLR 281.

[10] Reid v Howard (1995) 184 CLR 1, at 5 (Deane J) and at 12 and 14 (Toohey, Gaudron, Gummow and McHugh JJ).

[11] Supra, 310. See also Griffin v Pantzer (2004) 139 FCR 209, [42]-[44] (Allsop J).

[12] The date of the attendance by police has been referred to variously as having occurred either on 2 or 3 May 2024. The difference is not material to determining the current application. The facts referred to in these reasons are for determining the current application and are not concluded findings for the substantive proceeding.

[13] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, [62] (Heydon, Crennan and Bell JJ).