19 Mr Sackar submitted that that case is directly on point, the stay having been ordered and upheld for the same reasons as those advanced by the present applicant.
20 Mr Temby QC, who again appeared with Mr Muir for the present respondent, referred to ss197 and 198 of the Act, outlined above, affording protection to a person whose privilege against self-incrimination might arise in an examination under s180. He also pointed out that in proceedings under the Act in court the privilege is maintained by its statutory embodiment in s128 of the Evidence Act 1995, which extends by subs(1) to a claim of privilege against incrimination under the law of a foreign country. This led to a submission that the "clear Parliamentary intention" was that these provisions would apply to and govern the examination and court hearing respectively, not that civil proceedings under the Act would be "held in abeyance by reason of a broad asserted risk of self-incriminatory harm…" To the extent that Cth DPP v Jo decided otherwise, it was respectfully submitted that it was wrong.
21 For the purpose of the present case, I do not find it necessary to express a concluded view about that broad submission and, in particular, I would not lightly conclude that a decision of the Queensland Court of Appeal was wrongly decided: cf Fernando v Commissioner of Police (1995) 36 NSWLR 567, per Priestley JA at 575, Clarke JA at 587-591, and Powell JA at 593. However, I am persuaded by Mr Temby's alternative submission that the two Queensland cases referred to are distinguishable from the present case, and that, in all the circumstances, the applicant has not made out a case for a stay.
22 The State of Queensland v Shaw turned on its own facts and, clearly, is very different from the present case. It involved confiscation proceedings where criminal charges had been laid and where the issues in the two proceedings were seen to be the same. Cth DPP v Jo is more analogous to the present case, in that no criminal proceedings had been commenced and the respondents were unable to articulate the prejudice they might suffer with particularity. Nevertheless, there was evidence that Mr Jo and others were suspected of involvement in a tax avoidance scheme, and restraining orders had been made and forfeiture was being pursued on the basis of the suspicion that he, at least, had committed a serious offence. In the present case, the proceedings are founded upon no more than the suspicion that the applicant has acquired property which is the proceeds of an offence of the relevant kind. As Mr Temby pointed out, no criminal proceedings have been or need to be commenced. Sections 19 and 49 are directed solely at the proceeds of offending, by whomsoever, against a law of the Commonwealth or of a foreign country.
23 The protection afforded to the applicant by ss197 and 198 of the Proceeds of Crime Act and s128 of the Evidence Act is relevant to this issue, although, of course, not determinative of it. I am mindful of Mr Sackar's submission that, notwithstanding the limited nature of the inquiry under ss19 and 49, the material in Mr Inman's affidavit and in the Federal Court proceedings could raise a suspicion that the applicant has been involved in criminal activity. However, as Mr Temby also pointed out, such a suspicion is likely to arise in any case in which those provisions are invoked simply from the fact that the person involved has acquired property suspected of being the proceeds of crime.
24 In McMahon v Gould (1982) 7 ACLR 202 at 206, Wootten J proposed guidelines in the exercise of the discretion to grant or refuse a stay of civil proceedings where a defendant was charged with a related criminal offence. It is unnecessary to set them out. It is sufficient to say that his Honour affirmed a plaintiff's prima facie entitlement to have an action tried and observed that it is "a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds…." After referring to the right to silence, his Honour expressed as one of the factors to be considered by the court "whether there is a real and not merely a notional danger of injustice in the criminal proceedings…" In Yuill v Spedley Securities Kirby P (at 273-4) questioned whether it might be appropriate for the Court of Appeal to reconsider Wootten J's guidelines. However, the other members of the court, Priestley and Meagher JJA, saw no occasion to do so. While I am mindful of the reservations of Kirby P, I accept them as a useful guide.
25 The passages from the judgments in Sorby v The Commonwealth and Yuill v Spedley Securities quoted earlier raise weighty considerations, and I have given the present application careful thought. However, I am not persuaded that the applicant faces prejudice such that the interests of justice require the stay of proceedings which he seeks. I might add that, in so far that he seeks a stay until he is informed that he would not be charged with any offence to which the restraining order relates, I consider that aspect of his application to be so broad as to be impracticable. There is force in Mr Temby's argument that one cannot know what circumstances might arise, or what information might be obtained, which might warrant the institution of a prosecution in the future.
26 Accordingly, the application for a stay of proceedings sought in paragraph 5 of the notice of motion is refused. If necessary, I shall hear argument on costs.
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