procedural. The defendant’s stay motion was dismissed with costs; the plaintiff’s motion was allowed in part, with costs, and the parties were ordered to serve specified evidence, provide an update on the...
Key principles
The defendant's application to stay the civil proceedings was refused because the Greek criminal process was unresolved and its timing indeterminate, so a stay risked unduly...
Applying the approach stated in Gipsy Fire v Truth Newspapers Pty Ltd, the defendant had to establish a real, not merely notional, risk that continuing the civil case could cause...
On the evidence, the asserted risks of premature disclosure, interference with witnesses, adverse publicity and impairment of a right to silence did not establish a sufficient...
The court considered that the balance of procedural rights and the dictates of justice favoured refusing a stay and managing the civil proceedings through case management orders.
Issues before the court
Whether the New South Wales civil proceedings should be stayed pending the outcome of the Greek criminal investigation or any resulting proceedings.
Plain English Summary
The defendant asked the court to pause a civil damages claim until an unresolved Greek criminal process reached an outcome. The court refused because there was no current charge, no settled timetable and no sufficiently established risk that the civil case would compromise any Greek criminal proceedings. It considered the specific risks raised by the defendant and found them inadequate or speculative on the evidence. The court instead set evidence and mediation-related steps so the civil case could continue, while requiring an update on the Greek investigation.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,356 words · generated 01/10/2026
What happened
Beth Levis sued Nicholas Stavropoulos in the District Court of New South Wales, claiming damages for an alleged assault and battery on Mykonos on 2 July 2016. Both parties were residents of New South Wales. The judgment records that Stavropoulos had dual Australian and Greek citizenship. The court did not determine whether the alleged assault occurred. For the motions before it, the defendant denied the factual elements of the claim in a defence filed shortly before the hearing.
Whether the case should be managed by procedural orders while the Greek process remained unresolved.
What effect the Greek criminal process had on the civil claim's procedural timetable.
Cited legislation
1 cited instrument linked from this judgment.
The proceedings had a procedural history in both Australia and Greece. Levis complained to Greek authorities on 5 July 2016. After a preliminary police investigation, the matter was sent to the prosecution authority in November 2016. The prosecutor pressed charges in December 2016 and directed that a formal investigation take place. The expert evidence described an arrest warrant, its later annulment, Stavropoulos giving evidence to the Greek investigator and prosecutor, and the conclusion of the main investigation in June 2018.
On 24 April 2019, the Council of Judges of the Magistrates Court in Greece decided that no charges should be made against Stavropoulos. The Greek Prosecutor appealed that decision at Levis's instigation. By the time of the stay motion, the Greek process remained unresolved. The judge described a “procedural fog”: the court could not identify a conclusive answer as to whether Stavropoulos faced a pending charge or would be tried. The expert report also referred to possible further applications and significant delays in Greek courts.
In New South Wales, Stavropoulos had already unsuccessfully sought a stay on the ground that Greece was the appropriate forum. That application was dismissed on 27 February 2020. His later motion sought a stay for 12 months or until the Greek process concluded. Levis opposed the stay and sought orders concerning the defence and evidence. Stavropoulos filed his defence at 5.59pm on 10 June 2020, before the motions were heard. That made the request for an order requiring him to file a defence unnecessary, but the other case-management matters remained for decision.
Judge Levy SC dismissed the stay application. The court also ordered the defendant to serve specified medical and liability reports, related documents and witness statements within three calendar months. Levis was ordered to serve her evidence-in-chief and intended factual witness evidence, and her medical evidence, within 28 days. The proceedings were listed for further directions on 18 September 2020. The defendant was to provide the best available current evidence about the Greek investigation, and the parties were to report on mediation arrangements.
Why the court decided this way
The judge treated the central question as a balance between the defendant's asserted protection from prejudice in possible Greek criminal proceedings and the plaintiff's ability to have her civil claim heard without undue delay. Under s 58(2) of the Civil Procedure Act 2005 (NSW), the judgment said that the dictates of justice had to be weighed. It applied the approach in Gipsy Fire v Truth Newspapers Pty Ltd, which required a real, not merely notional, risk that continuing the civil case could produce a potential miscarriage of justice in the criminal process. The asserted risk also had to outweigh the plaintiff's ordinary right to a timely hearing.
The uncertainty of the Greek process was decisive to the overall balance. No current charge was before the defendant, and no final decision had been made about whether the matter would go to trial. A possible trial date was speculative and indeterminate. The expert evidence described additional steps that might follow and acknowledged delays in Greek courts. The judge also noted that an expected update in mid-May 2020 had not been produced. In that setting, a stay could have left the New South Wales claim suspended for an uncertain period.
The judge then considered the forms of prejudice raised in relation to parallel civil and criminal proceedings. On premature disclosure, the defendant had already denied the plaintiff's factual allegations in a sworn defence. The judge was not persuaded that possible nuances arising from civil cross-examination established a real risk. On interference with witnesses, the claim was speculative: the defendant had not identified relevant witness testimony, and the plaintiff's case was said to concern an alleged event when only the plaintiff and defendant were present. On adverse publicity, the judge considered the point irrelevant because any prosecution would take place in Greece, not New South Wales.
The asserted effect on a right to silence was also not established by the expert evidence. The judge said that the report did not go so far as to show that Greek substantive law provided such a right. The judgment noted that Stavropoulos had already given testimony and explanations to the Greek investigator and prosecutor. The judge did not decide the content of Greek law on silence. Rather, the point was that the evidence did not establish the prejudice needed to support a stay.
A further consideration was the expert's statement that Greek law had no equivalent crime to “assault as defined in the English Legal System”. The judge treated this as indicating that, although the two processes shared a factual basis, they did not necessarily have a parallel character or concurrency. This was one factor in assessing whether the civil case created a sufficiently direct risk to the Greek process.
The judge also considered the plaintiff's interest in timely access to justice and the procedural history. The judgment referred to the defendant's delay in filing a defence and to delays in responding to procedural communications. It also noted evidence about the psychological impact of the events on Levis and that the defendant's representatives had earlier encouraged her to delay filing proceedings because of the Greek process. The judge concluded that delaying the civil case on the uncertain grounds advanced would be contrary to the dictates of justice. Case management, rather than a stay, was considered the suitable way to address the remaining procedural issues.
Before and after state of the law
The judgment did not purport to create a general rule that civil proceedings must always continue when a related criminal investigation is incomplete. Its reasoning was fact-specific: the court considered the status and likely duration of the Greek process, the evidence of particular types of prejudice, and the plaintiff's interest in timely progress. The operative approach was the balancing exercise under s 58(2), informed by Gipsy Fire.
Before the decision, the judgment treated Gipsy Fire as identifying five relevant kinds of potential prejudice in parallel civil and criminal proceedings: premature disclosure of the defendant's criminal case, interference with witnesses, adverse publicity, an effect on the defendant's right to silence, and a further consideration raised here about the differing legal character of the processes. The decision did not reproduce a broader legal test beyond the real-risk threshold and balancing approach it attributed to Gipsy Fire.
After applying that approach, the court refused the stay on this record. The outcome was not a ruling that a stay could never be justified where foreign criminal proceedings are unresolved. Rather, the defendant had not shown the required risk on the evidence before Judge Levy SC, and the timing of any Greek decision remained uncertain. The court used evidence timetables and a requirement for an update about the Greek process to manage the civil proceedings.
The judgment also cited Damberg v Damberg for the proposition that Greek law prima facie applied as the lex loci delicti, while the lex fori might apply to some material aspects if evidence of Greek law was not adduced. It expressly left that choice-of-law matter for the parties to address before trial. It therefore did not determine the substantive law governing the alleged tort.
The material provided contains no later decisions discussing or applying Levis v Stavropoulos. It is not possible from this judgment alone to describe how later courts have treated it or to assess whether they have followed, distinguished or limited its reasoning.
Key passages with plain-English translation
The supplied judgment text uses section headings and numbered entries, but the numbering restarts rather than providing a single continuous paragraph sequence. The following references identify the relevant section and passage.
In the consideration of the stay, the judge said the defendant had to show “a real and not merely a notional risk” that continuing the civil claim could lead to a potential miscarriage of justice in Greece. In plain English, the mere existence of a related investigation was not enough. The defendant needed evidence of a genuine risk to the criminal process, and that risk had to be weighty enough to justify delaying the civil claim.
The judge described the Greek process as having “the hallmarks of indeterminacy” that would prejudice the plaintiff's right to a timely trial. This reflects the court's concern that there was no dependable end date for the proposed stay. The Greek authorities had not made a final decision on whether a trial would occur, and further procedural steps might follow.
The statement that “A stay leaves the case in a procedural limbo where no procedural steps may be taken” explains the practical concern. The court was not deciding the truth of Levis's allegations by refusing a stay. It was deciding that the unresolved Greek process did not justify freezing the New South Wales case.
On the possible prejudice from premature disclosure, the judge considered that the defendant's sworn denial already stated his position. The judge rejected the claim that possible nuances from cross-examination, without more, demonstrated a sufficiently concrete risk. This was an assessment of the evidence on the motion, not a finding about how any future criminal proceeding would operate.
On the right to silence, the judge said the expert evidence did not establish the relevant Greek legal rule. The decision therefore illustrates a limit of the evidence before the court: the judge could not assess a claim about foreign criminal procedure without adequate evidence of what that procedure required.
What fact patterns trigger this precedent
The decision is most directly relevant to applications to stay civil proceedings because of related criminal proceedings or investigations, particularly where the criminal process is taking place in another country and its procedural status is uncertain. It may be useful where a party argues that civil discovery, evidence or cross-examination could prejudice a later criminal case. The judgment indicates that such an argument is assessed against the actual evidence of the criminal process, the particular prejudice alleged and the effect of delay on the civil plaintiff.
The decision is especially fact-sensitive where no current criminal charge exists, a decision whether to prosecute is pending, and there is no reliable timetable for the next step. Here, the Greek decision against charges had been appealed, the possible outcome remained unresolved, and further applications could follow. Those features made the proposed endpoint of a stay uncertain.
It is also relevant where the claimed prejudice is framed generally rather than linked to identified witnesses, evidence or procedural rules. The court found witness interference speculative in the absence of identified testimony. It was insufficiently informed about a Greek right to silence because the expert material did not establish the relevant law. The judgment therefore underscores the importance, in the court's reasoning, of tying a claimed risk to evidence rather than assertion.
The decision does not establish that a foreign process is irrelevant, nor that civil proceedings should proceed regardless of proven risks. It records that a stay could be justified if the real-risk threshold and balancing test were met. The court's conclusions depended on the evidence and procedural position before it in June 2020.
How later courts have treated it
The judgment itself does not cite any later treatment of Levis v Stavropoulos, which was decided on 12 June 2020. The material provided contains no subsequent judgments, so no supported account can be given of whether later courts followed, applied, distinguished or criticised it.
Within this decision, the earlier unreported decision in the same matter, dated 27 February 2020, is mentioned only as procedural history. That earlier motion concerned whether New South Wales was the appropriate forum under UCPR r 12.11(1)(h). The judge records that the earlier stay application was dismissed. The present motion raised a different basis for a stay: the asserted need to wait for the Greek criminal process.
The two motions should therefore not be conflated. The February decision addressed the forum argument, while the June decision considered the possible prejudice arising from concurrent or related civil and criminal processes. The June judgment refers to the earlier decision but does not analyse it as authority for the real-risk test.
Still-open questions
The judgment left the substantive choice-of-law question for trial. It stated that Greek law prima facie applied as the lex loci delicti, but that the lex fori might apply to some aspects if material Greek law was not proved. The decision did not determine what Greek law required on any substantive issue in the claim.
The court also left open the eventual status and outcome of the Greek process. It required the defendant to provide the best available current evidence at the September 2020 directions hearing. The judgment does not say what later occurred, whether charges were pursued, or whether a criminal trial took place.
The content of Greek law concerning a right to silence was not resolved. The judge considered the expert material inadequate to establish the claimed legal position and observed that the defendant had already given evidence in the Greek investigation. A later application based on more complete evidence of foreign criminal procedure could therefore raise a different evidentiary record, but the judgment does not decide how such an application would be resolved.
Finally, the court did not determine the merits of Levis's civil allegations or the defendant's denial. Its orders addressed only the stay, costs and management of the proceedings. The fact that the stay was refused should not be read as a finding that the alleged assault occurred or that either party would succeed at trial.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Judgment (12 paragraphs)
[1]
Two contested notices of motion
Each party in these proceedings has filed a notice of motion seeking procedural orders in a case brought by the plaintiff, Beth Levis, against the defendant, Nicholas Stavropoulos, claiming damages for an alleged assault and battery, on the Greek Island of Mykonos.
The defendant's notice of motion, filed on 23 March 2020, seeks an order pursuant to s 67 of the Civil Procedure Act 2005 (NSW), for a stay of the plaintiff's proceedings, for a period of 12 months, or alternatively, that the proceedings be stayed until asserted parallel and related criminal proceedings involving the defendant, in Greece, have concluded. The plaintiff opposes those orders on grounds of unreasonableness.
The defendant's notice of motion follows the dismissal, on 27 February 2020, of an earlier notice of motion filed by him in which he failed to persuade another Judge of this Court that a stay should be ordered pursuant to s 67 of the Civil Procedure Act 2005 on the argued ground that, pursuant to UCPR r 12.11(1)(h), it had no jurisdiction in this case, Greece being the asserted appropriate forum. That argument was rejected: Levis v Stavropoulos, unreported, 27 February 2020: (His Honour Judge Dicker SC).
The plaintiff's notice of motion, filed on 7 May 2020, sought an order that the defendant file his defence within 7 days, or alternatively, the plaintiff have liberty to enter a default judgment, with damages to be assessed. Case management orders were also sought by the plaintiff concerning the service of documentary evidence.
Before the motions could be heard, the defendant filed a defence electronically at 5.59pm on 10 June 2020. The effect of that eleventh hour filing now obviates the need for the plaintiff to continue to seek an order for a defence to be filed within seven days. However, the case management orders sought by the plaintiff still remain relevant and must be determined.
[2]
Factual background to the underlying case
By statement of claim filed on 11 April 2019, the plaintiff claims damages from the defendant for alleged trespass to her person. She claims that at about 19:30 hours on 2 July 2016, the defendant committed an unlawful assault and battery upon her without her consent.
The events in question are claimed to have occurred whilst the plaintiff and her husband were attending a restaurant to celebrate a friend's birthday. For the purpose of dealing with the present notices of motion it is not necessary to describe the underlying events in further detail. They are adequately described in paragraph 10 of the plaintiff's statement of claim.
I am informed that the defendant has dual Australian and Greek citizenship. In his defence, sworn on 10 June 2020, the defendant denied the factual elements of the plaintiff's claim. Both the plaintiff and the defendant are residents of New South Wales. This Court has previously found that it has jurisdiction in this case.
[3]
Applicable law
Prima facie, the substantive law of Greece applies to these proceedings, as the lex loci delecti, although where no evidence is adduced as to some material aspects of Greek law, it may be that in part, the lex fori may apply: Damberg v Damberg & Ors (2001) 52 NSWLR 492; [2001] NSWCA 87, at [119]. That is a matter to which the parties must give their attention prior to an ultimate trial.
The defendant introduced an expert report dated 10 May 2020 from Mr Theodoras Ninopoulos, the defendant's lawyer in Athens, Greece, to explain certain aspects of the criminal investigation and procedural processes that prevail in Greece.
[4]
The central matter at issue on the notices of motion
That expert evidence has relevance because the defendant claims that, following the plaintiff's complaint to police in Greece over the alleged events, the defendant became the subject of a police investigation to determine whether or not he should be charged with criminal offences. That investigation has taken a meandering course since 2016. At present there are no current charges against the defendant but that decision is under review.
The defendant claims that since there are parallel and related criminal proceedings in Greece that are not yet concluded, there should be a stay of the plaintiff's present proceedings. The plaintiff disputes the validity of that claim, and claims that the defendant is seeking to unreasonably delay the progress of this litigation.
[5]
Evidence on the motions
The defendant relied upon the expert report dated 10 May 2020 from Mr Theodoras Ninopoulos, which explained some aspects of Greek criminal law and procedure that has some relevance to this case. Mr Ninopoulos' firm acts for the defendant in his litigation in Greece.
The plaintiff relied upon the affidavits of her solicitor, Ms Julia Harrison, respectively sworn on 5 May and 10 June 2020, which dealt with relevant procedural events. Ms Harrison was not required for cross-examination.
[6]
Submissions of the parties
Written submissions by counsel for the defendant were dated 11 June 2020. The written submissions of senior counsel for the plaintiff were of the same date. Both sets of written submissions were supplemented by oral submissions, the combined effect of which succinctly raised the point for decision as described above.
[7]
Consideration
The defendant's claim of the existence of parallel or related criminal proceedings requires scrutiny as the claimed parallel proceedings are in the form of an investigation where, about four years after the event in question, there is no current charge to be answered by the defendant. Whilst it is true that these civil proceedings involve allegations of assault by the defendant, and whilst I am satisfied that the plaintiff has made allegations to the same effect to investigating police in Greece over those alleged events, I am far from satisfied that there are relevantly active parallel and related criminal proceedings on foot in Greece concerning those events.
I have come to that view in light of the content of the expert report from Mr Ninopoulos. Recognising that there are differences in the inquisitorial judicial system in Greece and the adversarial system in this jurisdiction, it appears that no final decision has yet been made by the authorities in Greece as to whether or not to proceed with charges against the defendant. Consequently a possible trial date remains speculative and indeterminate.
This is so despite the fact that in Greece, on 5 July 2016, the plaintiff provided the Greek prosecuting authority with her claims that the defendant committed crimes against her, as defined by Article 336 par 1 of the Greek Criminal Code and the claim that he violated Drugs Greek Law 4139/2013.
On 14 November 2016, after a preliminary police investigation, the police in Greece sent a file, inter alia, to the Prosecution Authority of Syros. On 2 December 2016, the Prosecutor pressed criminal charges against the defendant and ordered the Investigator Judge to conduct a formal investigation of the alleged crimes. After some representations by the plaintiff for the expedition of that procedure, the following events occurred, as is explained in the following passage extracted from the expert report of Mr Ninopoulos, at page 2, paragraph 3.1.4:
"On 18 September 2017, an arrest warrant with number 8/2019 was issued by the Investigator Judge of Syros against Stavropoulos ordering that Stavropoulos be brought in front of him and to testify for the crimes that Levis alleges that have been committed. However, after an application by Stavropoulos to the Council of Judges of the Magistrate's Court of Syros, the arrest warrant was annulled for the reasons therein and Stavropoulos was invited to testify after he obtained a full copy of the file. Stavropoulos then presented himself with his two lawyers, Dimitrios Ninopoulos and Theodoras Ninopoulos, before the investigator Judge and the Prosecutor of Syros and gave his testimony and explanations regarding the crimes allegedly committed by him. Following this, by force of order 29/2018 of the Investigator Judge of Syros, the main investigation was concluded on 19 June 2018, and by order 29/2018 of the Investigator Judge of Syros, a bail of 5,000 Euros was imposed on Stavropoulos."
[8]
Disposition
For the above reasons I consider that the defendant's notice of motion filed on 23 March 2020 should be dismissed. The plaintiff's notice of motion filed on 7 May 2020 should be allowed as to the part that is not made otiose by the recent filing of the defendant's defence.
[9]
Costs
I consider that the dictates of justice require costs should follow the event in both motions, and that the plaintiff should have leave to proceed to assess those costs forthwith.
[10]
Procedural orders
On the defendant's notice of motion filed on 23 March 2020, I make the following orders:
1. The defendant's motion is dismissed ;
2. The defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered;
3. The costs the subject of order (2) above may proceed to assessment forthwith.
On the plaintiff's notice of motion filed on 7 May 2020, I make the following orders:
1. I note that the defendant has filed his defence at 5.59pm on 10 June 2020, thereby making it unnecessary for further orders to be made for the filing of his defence;
2. Within 3 calendar months of today's date, the defendant is ordered to serve any medical and liability reports and related documents upon which he seeks to rely at a trial, including witness statements, but for the time being, excluding his own statement;
3. The defendant is to pay the plaintiff's costs of the motion on the ordinary basis unless otherwise ordered;
4. The costs the subject of order (2) above may proceed to assessment forthwith.
[11]
Case management orders
I make the following case management orders:
1. The proceedings are to be re-listed before me for case management directions at 10.00am on Friday 18 September 2020;
2. Pursuant to UCPR r 31.4(1), within 28 days of today's date, the plaintiff is to serve on the defendant affidavit evidence comprising her evidence-in-chief and that of any other factual witnesses that she intends to call to give evidence in her case;
3. Within 28 days of today's date, the plaintiff is to serve on the defendant all medical evidence upon which she intends to rely at a hearing;
4. At the directions hearing on Friday 18 September 2020, the defendant is to provide the best available current evidence of the procedural status of the investigation in Greece of criminal charges being considered against him arising out of the subject matter of these proceedings;
5. Pursuant to s 26 of the Civil Procedure Act 2005 (NSW), on Friday 18 September 2020, the parties are to inform the Court of the date and time appointed for a mediation of the proceedings, and the name of the appointed mediator. In the event the parties are unable to agree on a named mediator and a date for the mediation to proceed, the Court will nominate a suitable mediator, and a suitable date for mediation.
[12]
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Decision last updated: 12 June 2020
The defendant’s stay motion was dismissed with costs; the plaintiff’s motion was allowed in part, with costs, and the parties were ordered to serve specified evidence, provide an update on the Greek investigation, and report mediation arrangements at the 18 September 2020 case-management hearing.
On 24 April 2019, after considering and evaluating the evidence collected by the Mykonos police and the appointed Investigator Judge during the main investigation, the Council of Judges of the Magistrates Court in Greece decided that no charges should be made against the defendant arising from the events at Mykonos on 2 July 2016.
Following a review of that decision, at the instigation of the plaintiff, the Greek Prosecutor appealed that decision. Thereafter a procedural fog has followed. There have been various applications for cessation. At present, there is no conclusive answer to the question of whether there is any current pending charge for the defendant to answer at a trial in Greece.
As at 10 May 2020, the position as identified by the defendant's lawyers in Greece, is as set out at paragraph 4.2 on page 5 of Mr Ninopoulos' report, as follows:
"We are awaiting the suggestion of the Prosecutor of the Court of Appeal of the Aegean and as the lawyers of Mr Stavropoulos we will submit a memorandum addressed to council of the court of appeal of the Aegean requesting the acquittal of Mr Stavropoulos from all charges, as it was ruled initially by the Council of Judges of the Magistrates Court of Syros. The judges of the council of the court of Appeal of the Aegean will have to decide, inter alia, again whether this case should go to trial or not. It has to be mentioned, that Mr Stavropoulos will have the right to apply (again) to the Prosecutor of the Supreme Court of Greece to cancel/annul such decision, if there are grounds for such cancelation / annulment."
That position has been overshadowed to some degree by the fact, that as explained by Mr Ninopoulos, all courts in Greece are presently closed due to the coronavirus pandemic. An update was said to have been expected in mid-May 2020, but no evidence of such an update has been adduced by the defendant, who carries the onus of proof on that issue.
Mr Ninopoulos has identified the fact that there are presently considerable delays in Greek courts considering cases. This adds to the present uncertainty in answering the central question of when, if at all, in the coming months, a decision will be made on whether the defendant will be required to face charges.
This is in the context that if a decision is made that is adverse to the defendant, he "will have the right to apply (again) to the Prosecutor of the Supreme Court of Greece to cancel/annul such decision": Report of Mr Ninopoulos, page 5, paragraphs 4.2 and 4.4.
In my view, the process described by Mr Ninopoulos has the hallmarks of indeterminacy that will serve to prejudice the plaintiff's right to a timely trial of her case in this Court. In such circumstances, the defendant's application for a stay requires that the dictates of justice be weighed: s 58(2) of the Civil Procedure Act 2005.
Counterbalanced against the fact of significant delays affecting the determination of whether the defendant will be required to face a trial in Greece on the alleged facts which base the plaintiff's claim against him, is the plaintiff's otherwise unfettered right to access justice in this jurisdiction. She is entitled to have her case heard with due expedition, especially where there have been no procedural defaults on her part, unlike, for example, the defendant's considerable delay in filing a defence, and only attending to that requirement at the eleventh hour, which suggests a delaying tactic.
In that context, I consider it to be contrary to the dictates of justice for the plaintiff to have her case delayed on the indeterminate grounds proposed by the defendant.
To justify the stay sought, the defendant must show that there is a real and not merely a notional risk that the continuation of the plaintiff's civil litigation in this jurisdiction could lead to a potential miscarriage of justice in the criminal proceedings in Greece. In that regard, the defendant has the burden of showing that a potential outcome of that nature outweighs the plaintiff's ordinary right to have her claim heard without delay: Gipsy Fire v Truth Newspapers Pty Ltd (1987) NSWLR 382, at pp 386 - 387.
In that decision, five relevant elements of potential prejudice were identified as facing a defendant in connection with parallel civil and criminal proceedings, as follows.
First, there is the prospect of a premature disclosure of the defendant's case in the criminal prosecution. In my view, that concern is adequately met by the defendant having already denied, on oath, in his sworn defence, the factual correctness of the foundations of the plaintiff's case. The defendant argued that he could be exposed to a potential prejudice of this kind by possible nuances that might emerge from a skilful cross-examination of him in the civil proceedings, should he choose to give evidence. I find that argument unpersuasive. In the face of the defendant's factual denial, whether in the civil or criminal proceedings, it seems unlikely he would give inconsistent answers to that which he has already sworn to, unless he concedes that he swore incorrectly, which seems unlikely. In those circumstances, the prevailing dictates of justice suggest that the potential prejudice to the defendant from exposure of incorrect evidence is unlikely to arise.
Secondly, there may be the possibility of interference with opposing witnesses at a trial. In my view, this is speculative. I am not persuaded that this is a relevant factor in this case, where the defendant has not identified the testimony of any such witnesses, and where the substance of the plaintiff's case against the defendant is that the alleged assault took place at a time when no-one but the plaintiff and the defendant were present.
Thirdly, there is a possible prejudicial effect from adverse publicity being given to the civil litigation which might influence jurors in a criminal trial. That factor has no relevance to this case, where the prosecution, if it ever takes place, would occur in Greece, and not in this jurisdiction.
Fourthly, there is the suggestion that requiring the civil case to proceed before the criminal proceedings will have a negative impact on the defendant's right to silence in a criminal prosecution. In my view, the evidence of Mr Ninopoulos does not go so far as to support a concern along those lines. The evidence of Mr Ninopoulos does not suggest the existence of a substantive law in Greece providing a right to silence. I am therefore insufficiently informed on that subject. On this question, it is noted that at paragraph 3.1.4 of Mr Ninopoulos' report, as cited at paragraph [19] above, the defendant has already given his testimony and his explanation of the factual circumstances to the Greek Prosecutor, which suggests if the defendant had a right to silence it has not been exercised. In that regard, as is evident from an earlier report dated 21 August 2019 from Mr Ninopoulos, which is Annexure "A" to the affidavit of Ms Harrison sworn on 5 May 2020, it is plain that the defendant, is there referred to by the initials "NS". It appears he has already given his testimony to the Investigating Judge in Greece on 6 July 2016: Section C, Item 10 on page 4 of Mr Ninopoulos' 21 August 2019 report.
Finally, and separate to the above considerations, is Mr Ninopoulos' statement as follows:
"In the Greek Legal System, there is no equivalent crime to an assault as defined in the English Legal System."
That apparent jurisdictional disparity suggests that, apart from the existence of a common factual basis between these proceedings and those which have been investigated by the police in Greece, there is an absence of a parallel character or concurrency between the two sets of proceedings in the different jurisdictions.
As a possible trial date in Greece seems indeterminate, I consider that on balancing the respective procedural rights and entitlements, the defendant's application for a stay should be refused. A stay leaves the case in a procedural limbo where no procedural steps may be taken. That would be unduly prejudicial to the plaintiff. I had considered placing the matter in the Not Ready list for a relatively short time, but on reflection, I consider that case management would be a more appropriate measure. It therefore remains to consider appropriate case management orders.
There are elements within the evidence that when viewed in combination, suggest the need for some rigour to be applied in the timetable for further case management of these proceedings. Those considerations include:
1. The fact that the defendant's representatives had earlier encouraged the plaintiff to delay filing her proceedings on account of the outstanding legal issues in Greece, as is evident from Ms Harrison's first affidavit sworn on 5 May 2020;
2. The adverse psychological impact that the events have had and continue to have on the plaintiff, as explained in the report of Associate Professor Carolyn Quadrio, dated 21 February 2019, which is annexed to Ms Harrison's affidavit sworn on 5 May 2020;
3. The fact that the defendant's side, in not replying in a timely manner to procedural communications from the plaintiff's solicitor on 25 May 2020, as deposed by Ms Harrison in her second affidavit that was sworn on 10 June 2020, has caused needless delay and expense in addressing the interlocutory issues thrown up for consideration in this case, quite apart from the earlier attempts made on behalf of the plaintiff to seek to press the defendant into filing a defence in order to close the pleadings.