Noble v Health Secretary in respect of Mid North Coast Local Health District

Legal Principles

The Commission can stay the proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) which provides: Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.
The Applicant submits that a stay should be granted as: "Fairness and justice dictates that the Applicant not be prejudiced by the evidence or outcome in these unfair dismissal proceedings influencing a decision by the Police to charge her …"
While Mr Burns did not expressly submit that the prosecution of these proceedings would abrogate the Applicant's "right to silence", he did explain orally that the stay was sought to "protect the Applicant from comprising any criminal proceeding" and in the written Outline of Submissions, "so that she is not prejudiced in her defence to charges arising from the Police Investigation…".
The question of whether civil proceedings should be stayed due to pending or anticipated criminal proceedings which relate to the same subject matter, arises not infrequently. This is because there is a tension between a party's so-called right to silence (more accurately, privilege against self-incrimination) and the opposing civil litigant's interests in having the civil matter heard as expeditiously as possible. Normally of course, it is a defendant/respondent who seeks to have proceedings stayed. Nevertheless, stays have been granted in this Commission at the request of applicants: see Semaan v Secretary, Department of Education [2023] NSWIRComm 1040 and Dadley v Fire and Rescue NSW [2020] NSWIRComm 1084. See also Gregg v Fairfax Media Publications Pty Ltd [2017] FCA 440 where defamation proceedings were stayed on the application of the applicant until the determination of two criminal charges brought against him which formed one of the principal bases of the substantive defence of justification pleaded by the respondents.
The cases clearly establish, as does the wording of s 67 of the Civil Procedure Act, that the granting of a stay of civil proceedings due to the existence, or threat, of parallel criminal proceedings, is discretionary and there is no automatic entitlement to a stay. As Gyles J said in Baker v Commissioner of Federal Police [2000] FCA 1339; (2000) 104 FCR 359 at [27]: There is a long line of authority which establishes that the granting of a stay of civil proceedings in those circumstances is discretionary in the civil court and that the choice of either fully pursuing a civil claim or a defence to a civil claim or not doing so to avoid the risk of self-incrimination is not sufficient in itself to warrant a stay.
The guidelines set out by Wootten J in McMahon v Gould (1982) 7 ACLR 202 at 206 are often cited when a Court is asked to stay civil proceedings pending the resolution of criminal charges. Those guidelines were cited with approval by Commissioner Webster in Semaan and in Dadley.
Since McMahon v Gould however, the High Court has given a number of decisions which have confirmed the primary of criminal proceedings in the justice system, see eg: Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 (Zhao); X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92; Reid v Howard (1995) 184 CLR 1. For instance, Hayne and Bell JJ said this in X7 at [104] - [105] (footnotes omitted): 104. As four members of this Court said in Reid v Howard, "[t]he privilege [against self-incrimination], which has been described as a 'fundamental ... bulwark of liberty', is not simply a rule of evidence, but a basic and substantive common law right". The evolution of and rationale for the privilege against self-incrimination have been described in various ways. No single explanation has achieved universal acceptance, whether in judicial decisions or academic writings. But neither the existence nor the content of those controversies can be understood as denying that the privilege is now regarded as being "a basic and substantive common law right", and not just a rule of evidence. That is, it is not a privilege which is concerned only with the use to which answers given may be put at, or in connection with, a trial. It is a privilege which permits the refusal to make an answer regardless of whether the answer is admissible as testimonial evidence. The accusatorial process of criminal justice and the privilege against self-incrimination both reflect and assume the proposition that an accused person need never make any answer to any allegation of wrong-doing. 105. The notion of an accused person's "right to silence" encompasses more than the rights that the accused has at trial. It includes the rights (more accurately described as privileges) of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of the trial.
Consequently, as Moshinsky J observed in Impiombato v BHP Group Limited [2020] FCA 350; 143 ACSR 301 (Impiombato) at [123] the guidelines set out by Wootten J in McMahon v Gould, need to be read in light of subsequent cases, which have expressly or impliedly indicated that McMahon v Gould gave too little to weight to the practical difficulties confronting a person facing both criminal and civil proceedings: see Goreng Goreng v Jennaway [2007] FCA 2083; 164 FCR 567 at [23].
Subsequent relevant cases include the High Court decisions listed at [37] above and Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 (CFMEU v ACCC); Ransley v Commissioner of Taxation [2016] FCA 778 (Ransley); Obeid v Commissioner of Taxation [2017] FCA 1135 (Obeid); Re Plutus Payroll Australia Pty Ltd [2017] NSWSC 1854 (Re Plutus Payroll); McLachlan v Browne (No 9) [2019] NSWSC 10 (McLachlan v Browne); and Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 (Websyte).
Based on the above authorities Moshinsky J summarised the applicable principles as follows: 125. First, 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: Zhao at [36] per French CJ, Hayne, Kiefel, Bell and Keane JJ; CFMEU v ACCC at [22] per Dowsett, Tracey and Bromberg JJ. 126. Secondly, a plaintiff is prima facie entitled to have his, her or its civil action tried in the ordinary course and a stay therefore requires justification on proper grounds (with the applicant for a stay bearing the burden of demonstrating proper grounds): see Zhao at [39]; McMahon v Gould at 206. 127. Thirdly, 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 the civil proceeding may be warranted if it is apparent that the accused is at risk of prejudice in the conduct of his, her or its defence in the criminal trial: see Zhao at [35]; CFMEU v ACCC at [22]; see also Corporations Act, s 1331. The risk of prejudice must be real: see CFMEU v ACCC at [22]; Ransley at [22] per Jagot J. As to possible prejudice to an accused, the following have been recognised as relevant factors: (a) prejudice to the accused's right to silence or privilege against self-incrimination: see Zhao at [42]-[47]; CFEMU ACCC at [23]; Ransley at [24] - [30]; Obeid at [4]; and (b) the possibility of publicity that might reach and influence jurors: see CFMEU v ACCC at [44]-[46]. 128. It may not be necessary for the applicant for the stay to state the specific matters of prejudice before a stay could be contemplated. As the High Court said in Zhao at [43], "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". 129. A number of recent decisions have emphasised that the possibility of protective orders being made (such as an order made under s 128 of the Evidence Act 1995 (Cth) or a non-publication or suppression order) is not an adequate protection against the risk of prejudice to the accused: see Zhao at [44]-[46]; CFMEU v ACCC at [24]-[25]; Ransley at [29]-[30]; Re Plutus Payroll at [38] and [42] per Brereton J; Websyte at [121]. 130. Fourthly, relevant prejudice to a party in the civil proceeding may arise from the existence of the criminal proceeding even in circumstances where there is not a strict identity between the applicant for the stay of the civil proceeding and the criminal accused: see Ransley at [15]; Obeid at [7]; Re Plutus Payroll at [33], [39], [41]-[43]. There may, for example, be relevant prejudice where the criminal accused, although not a party to the civil proceeding, would be a lay witness in that proceeding. In such circumstances, the criminal accused's invocation of the privilege against self-incrimination and the right to silence may deprive a party to the civil proceeding of assistance or evidence that is critical or very important to its claim or defence. 131. Fifthly, prejudice to an accused who is not a party to the civil proceeding, or against whom relevant allegations are not made in the civil proceeding, may be a relevant consideration: see CFMEU v ACCC at [28]-[49] (although this argument failed on the facts in that case). … 133. Sixthly, the risk of prejudice identified by an applicant for a stay must be weighed against the prejudice that a stay of the civil proceeding would occasion: see Zhao at [47], [50]; CFMEU v ACCC at [22]. 134. Seventhly, the principles relevant to the exercise of the discretion to grant a stay are not different in the case of a proceeding brought by a regulator, from those that apply in the case of a proceeding brought by a private plaintiff: CFMEU v ACCC at [60]-[62]. 135. Eighthly, each case must be judged on its own merits; the matters that might individually, or in combination, be relevant to the exercise of the discretion are not rigid or closed; the factors identified in the authorities are not a prescriptive or an exhaustive statement of all of the considerations, or the weight to be attached to them: see Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504 … at [51] per Middleton J (application for leave to appeal dismissed: CFMEU v ACCC). 136. In addition to the above paragraphs, which are drawn from ASIC v ANZ [Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (2019) 138 ACSR 42], I note that in McMahon v Gould, Wooten J stated at 207 that in an appropriate case, the proceeding may be allowed to proceed to a certain stage, eg setting down for trial, and then stayed (citing Beecee Group Ltd v Barton (1980) 5 ACLR 33). See also National Australia Bank Limited v Human Group Pty Ltd [2019] NSWSC 1404 at [39]. This possibility was referred to, but rejected on the facts, in ASIC v ANZ at [99].
While the above principles relate to the approach courts will take when considering whether civil proceedings should be stayed pending the determination of criminal proceeding relating to the same subject matter, there is nothing in the Industrial Relations Act which would suggest that I should depart from the approach outlined by Moshinsky J in Impiombato. On the contrary, as Commissioner Webster noted in Dadley at [28] and Semaan at [17], s 162(2)(a) of the Industrial Relations Act requires the Commission to act as quickly as is practicable, such that an applicant for a stay will need to demonstrate a good reason to have the matter proceed otherwise than in the 'normal course'; s 3(a) requires the Commission to determine the proceeding in a manner what is "fair and just" and s 163(1)(c) requires the Commission to act in accordance with equity, good conscience, and the substantial merits of the case, albeit without regard to technicalities or legal forms. Section 146 requires the Commission to take into account the public interest in the exercise of its functions. I also note s 162(2)(g) provides that the Commission may adjourn proceedings to any time and place. All of these provisions support the approach outlined by Moshinsky J in Impiombato.
The Respondent in its Outline of Submissions relied on a number of decisions which require some comment.
The Respondent relied on the decision of Watson SDP in Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man Print S8287 (AIRC, Watson SDP, 19 July 2000). The applicant in that matter sought an indefinite stay pending the outcome of criminal proceedings relating to essentially the same allegations that formed the basis for the reasons for the applicant's termination, namely allegations of theft. The learned Senior Deputy President observed at [33] that: 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.
During an exchange with Watson SDP the applicant's representative explained that: "The theft proceeding will, in essence will be that we don't deny that we took some money, however our state of mine was crucial to whether we were criminal or not, engaged in criminal behaviour or not."
Watson SDP then concluded at [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.
However, with respect to the Senior Deputy President, it seems to me that his Honour did not properly consider the possibility that in pursuing the unfair dismissal proceedings ahead of the criminal prosecution the applicant may have had to disclose information that he could not be compelled to disclose in criminal proceedings; and that disclosures, voluntary or otherwise in the proceedings may influence witnesses in the criminal proceedings by alerting them to matters of which they were not otherwise aware. I do not consider the fact that the proceedings before the Australia Industrial Relations Commission were to be determined to a different evidential standard than the criminal proceedings has any bearing on whether the interests of justice required the civil proceedings to be stayed. This will be so whenever a court or tribunal is asked to stay a civil proceeding pending the resolution of a parallel criminal proceeding. Unsurprising this has not been identified as a relevant factor in any of the authorities I have referred to above.
The Respondent noted that Sanford was followed by Gooley DP in Kevin Cooper v Australian Taxation Office [2014] FWC 2931. In that matter the applicant, following several adjournments, sought a further adjournment in circumstances where he indicated he may appeal criminal proceedings, where the convictions made in those proceedings were the reason for the applicant's dismissal. Gooley DP said the following at [14] -[18]: [14] Mr Cooper gave evidence in his criminal matter and was cross examined. There will be no prejudice to Mr Cooper is he gives evidence in his unfair dismissal application. [15] The matter before the Commission is not the same as the matter before the Court. The Commission does not have to decide if Mr Cooper is guilty of any criminal offence. The Commission must decide if the termination of Mr Cooper's employment was harsh, unjust or unreasonable. [16] Mr Fitzpatrick submitted that because the ATO relied on Mr Cooper's conviction to justify the termination of his employment, the question of whether Mr Cooper's conviction is overturned is relevant and that should be determined prior to the hearing of his unfair dismissal application. [17] The ATO submitted that its defence of this application can proceed notwithstanding that Mr Cooper may appeal his conviction. [18] In all the circumstances, I do not consider that a further adjournment is warranted. Mr Cooper had not appealed his conviction and he may not. If he does, his conviction may stand or fall. It is not clear how long that will take or when a decision will be handed down. The success or otherwise of any appeal if filed will not determine the outcome of unfair dismissal application. The ATO is entitled to have this matter heard and determined.
Again, the fact that the matter before the Commission "is not the same as the matter before the Court" is not a factor that will inform whether the proceedings should be stayed. Self-evidently civil proceedings will not be the same as criminal proceedings. The relevant question is whether there is a risk of prejudice in the conduct of the litigant's defence in the criminal trial. This will turn upon whether there is a sufficient factual overlap in the two proceedings.
The fact that Mr Cooper had already given evidence in the criminal proceeding at first instance would be a significant factor against the granting of a further adjournment of the unfair dismissal proceeding. However, the dismissal in that case seems to have been, at least partly, based on Mr Cooper's conviction. While it is correct that the outcome of the appeal in Cooper would not necessarily determine the outcome of the unfair dismissal application, it is difficult to see how it would not be a highly relevant matter in circumstances where the employer relied on the convictions to dismiss the employee. Commissioner Webster found in Dadley at [44], correctly with respect, that the outcome of a possible appeal from criminal convictions, which had founded the decision of the employer to dismiss the employee: "…will have a direct and significant impact upon this matter and this is a relevant matter to be considered in the context of the stay application."
In the present matter the dismissal of the Applicant was not predicated on any criminal conviction or even charges being laid against the Applicant.
Lastly, the Respondent relied on the decision of Levy SC DCJ in Levis v Stavropoulos [2020] NSWDC 296. In that matter the plaintiff had brought a claim for damages against the defendant for an alleged assault and battery on the Greek island of Mykonos. The defendant sought a stay pursuant to s 67 of the Civil Procedure Act for 12 months, or alternatively, that the proceedings be stayed until asserted parallel and related criminal proceedings involving the defendant, in Greece have concluded. As in this case, the matter was still under investigation by police and no charges had been laid.
It is useful to set out the totality of Levy SC DCJ's reasons for rejecting the application: 16. 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. 17. 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. … 26. 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. 27. 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. 28. 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. 29. 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. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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. …. 35. 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. 36. 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.
His Honour's reliance on Gipsy Fire v Truth Newspapers Pty Ltd, rather than more recent decisions that have acknowledged the primacy of the criminal proceedings in the justice system and the practical difficulties confronting a person facing both criminal and civil proceedings, perhaps explains why his Honour was of the view that the potential prejudice to the defendant from exposure of incorrect evidence was "unlikely to arise" giving his denial of the allegations in his sworn defence.
Relevantly for present purposes, Hunt J in Gipsy Fire v Truth Newspapers Pty Ltd stated, at 387, that (with emphasis added): If, therefore, a defendant in civil … litigation has been charged with a criminal offence arising out of the same subject matter, or if there is a real prospect that he will be so charged, it is open to him to seek a stay of the civil litigation until the conclusion of the criminal prosecution if he is able to show that his obligation in that litigation to disclose his case in answer to the criminal charge might lead to a potential miscarriage of justice in the prosecution. Such an application must obviously be made before his case has been disclosed in the civil litigation.

Consideration

It is important that I reiterate at the outset that this application is not about whether these proceedings continue or not. A denial of a stay does not mean that these proceedings are at an end: the Applicant may still choose to give up her right to silence or otherwise waive any privilege she may have and accept any disadvantage that may flow from doing so and continue to prosecute her claim. What I have to decide is whether, if she were to do this, she is at real risk of prejudice in the conduct of her defence in any criminal trial, and whether that prejudice, in all the circumstances, outweighs any prejudice that will be caused to the Respondent - and to other users of the Commission - by the ensuing delay.
For the reasons set out in [12] to [16] above and in light of the evidence and submissions outlined at [27] and [59(2)] above, I am satisfied that there is sufficient factual overlap between the potential criminal charges to be laid against the Applicant and the allegations of misconduct which are the focus of this proceeding. The issues to be litigated in any criminal proceedings are sufficiently related to the issues to be determined in this unfair dismissal proceeding to give rise to a risk of prejudice in the conduct of any criminal proceedings. Such risk includes prejudice to the Applicant's right to silence or privilege against self-incrimination and the right to ensure that witnesses in the criminal proceedings are not improperly influenced by matters disclosed in the Applicant's unfair dismissal case. Given the gravity of the potential charges and the risk they pose to the Applicant's liberty, the protection of the Applicant's "basic and substantive common law rights" in respect of any criminal proceedings must be given significant weight and respect.
I am also mindful of the High Court's caution in Zhao at [43] that to require the Applicant to state the specific matters of prejudice "would be to make the risk of prejudice a reality be requiring [her] to reveal information about [her] defence, the very situation which an order for a stay seeks to avoid."
Nevertheless, the risk of prejudice must be real. The fact that charges have not yet been laid raises doubt as to whether the risk is sufficiently 'real'. The authorities have confirmed that a stay may be granted even where charges have not been laid (see eg Hayne and Bell JJ in X7 at [105]), however, in the words of Hunt J in Gipsy Fire v Truth Newspapers Pty Ltd there must be a "real prospect" that the applicant for the stay will be charged.
The Police were first notified of the matter back in late October, early November 2022. The Applicant's devices were seized by Police back in November 2022, over eight months ago. All that is currently known in respect of the police investigation is that the Police have not formally advised the Applicant (or the Respondent) that the investigation has been finalised or been abandoned. At present, it could be said that any criminal trial, like that in Levis v Stavropoulos, "remains speculative and indeterminate".
However, in Levis v Stavropoulos over four years had passed since the alleged offence. Significant delays had affected the determination of whether the defendant would be required to face a trial in Greece on the alleged facts which based the plaintiff's claim against him. In those circumstances, the learned judge considered that the plaintiff's right to an expeditious trial outweighed the potential prejudice the defendant might face in conducting parallel civil and criminal proceedings, in circumstances where the evidence did not establish whether the defendant had a right to silence in Greece.
In the present matter, while the delay is regrettable, it is, relative to Levis v Stavropoulos, comparatively short. In circumstances where the evidence establishes that a police investigation has not concluded and has only been on foot for some eight months, I find there remains a 'real prospect' that the Applicant will be charged. I hasten to add however, that with each passing day that prospect, in the absence of contrary evidence, is diminishing.
For completeness, I reject the Respondent's submission that as the Commission will be making findings to the civil standard of proof any such finding will not prejudice the Applicant should she be required to defend a criminal charge, which will be determined beyond reasonable doubt. To the extent decisions of the Fair Work Commission have suggested this is a relevant consideration, I disagree with those decisions. As I have already stated, the different standards of proof are always in play whenever there are parallel civil and criminal proceedings. Such submission ignores the fundamental principle that an accused person need never make any answer to any allegation of wrong-doing.
In circumstances where I consider the Applicant has established that she will be prejudiced if I do not grant a stay, I must weigh that prejudice against the prejudice that a stay of the proceeding would occasion to the Respondent.
I accept that the Respondent is entitled to have this proceeding dealt with quickly, cheaply and efficiently. I accept that the indeterminate nature of the proposed stay and the ongoing delay will adversely impact the quality of the evidence that witnesses may be able to give in the proceeding and will consequently impact the ability of the Commission to conduct the proceedings in a fair manner that is also in the public interest. This concern is particularly acute where the Applicant provided no response to the allegations while they were being investigated by the Respondent, so that the Respondent remains unclear as to exactly what evidence it may need to garner and there has already been a considerable delay in the conduct of the proceeding.
These matters cause me considerable concern in circumstances where charges have not yet been laid against the Applicant. Such was my concern that I gave some thought to requiring the Applicant to file and serve her evidence and submissions, but to make an interim order pursuant to s 164A of the Industrial Relations Act preventing disclosure of the material to anyone other than the Respondent's solicitors and the Director - Human Resources of the Respondent. Allowing proceedings to proceed to a certain stage was an approach discussed or taken in the cases referred to by Moshinsky J in Impiombato at [136]. While this is an approach that I might yet countenance in this proceeding, I am mindful of the High Court's caution in Zhao at [44] (omitting footnotes): The Commissioner suggests that protective orders could be made, which might maintain the confidentiality of evidence, and that evidence could be given in closed court. In the latter regard, the open court principle, to which the law adheres, now finds expression in s 28 of the Open Courts Act 2013 (Vic). The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances. Closing the court so that the Commissioner might progress forfeiture proceedings and receive the second respondent's evidence does not qualify as a proper reason for departing from the principle.
The application of the principles of open justice in this Commission was recently confirmed by the Full Bench in Secretary of the Department of Education v X [2023] NSWIRComm 1061.
On balance, I have determined that the interests of justice lie in not granting a stay, either in the terms sought in the motion or for a more limited period as suggested by the solicitor for the Applicant orally. The uncertainty as to when any criminal proceedings might be finalised combined with the deterioration in the quality of evidence with every day that passes, tells against a stay being granted. However, as I am satisfied that there remains a real prospect of the Applicant being charged and that if she is charged, that there is a real risk of prejudice to the Applicant if she is required to disclose her case in this proceeding, a further adjournment is justified. I propose to vacate the current directions regarding the filing and service of evidence and submissions and, pursuant to s 162(2)(g), to adjourn the proceeding to 10 August 2023. Before that date either party may file, if they consider they have good grounds to do so (which really goes without saying), a Notice of Motion seeking orders in respect of the ongoing conduct of the proceeding. If no Notice of Motion is filed, I propose to make orders on 10 August 2023 requiring the filing and service of evidence and submissions.
There are two final matters I need to address. First, in circumstances where I have not granted a stay per se, the Applicant's undertaking in respect of back pay may be regarded as falling away, although it could also perhaps be argued that the effect of my orders constitutes a de facto stay. In any event, the ongoing delay in resolving the proceeding does have the potential to prejudice the Respondent in respect of a claim for backpay in the event in the Applicant is ultimately successful in her claim. However, if a claim for back pay is made, the Respondent may well argue that it should not have to pay back pay given all the circumstances. This is an argument for another day.
The other matter concerns a possible inconsistency between the Applicant asserting prejudice in respect of any potential criminal proceeding and her giving evidence to the PIC and her apparent willingness to provide a response to the HCCC. It is possible that the giving of evidence in the PIC proceeding and the giving of a response to the HCCC could operate as a waiver of her privilege against self-incrimination. This was not submitted by the Respondent and while I raised this possibility during submissions, it was not argued before me. In the circumstances, I have not considered whether the Applicant has waived her privilege, but this may be a matter that will need to be considered if any subsequent application for a stay or further adjournment is sought.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (23)