Plaintiff v Defendant

2 For the reasons outlined below the application for a stay is granted.

3 In 2014 Mr Stocks and Ms Johns were in a motor vehicle accident in which their vehicles collided ('the collision'). Mr Stocks suffered significant injuries, including a head injury, a fracture to his cervical spine, cognitive impairment and bilateral shoulder injuries. He has been unable to return to his former occupation as a truck driver and has not worked since the collision.

4 As a result of the collision, Ms Johns was charged with intentionally causing serious injury in circumstances of gross violence, and recklessly causing serious injury in circumstances of gross violence. She pleaded not guilty and exercised her right to silence. She did not give evidence in her own defence. She was convicted by a jury in the County Court of Victoria of recklessly causing serious injury in circumstances of gross violence and on 8 February 2019 was sentenced to 7 years imprisonment.

5 She has now appealed her conviction and sentence to the Court of Appeal and is awaiting determination of that appeal. Other than an admission that her vehicle and Mr Stocks' vehicle were in a collision, she has never made any admissions or statement about the circumstances of the collision, and in particular has not admitted that she was driving on the wrong side of the road at the time of the collision or was exceeding the speed limit.

6 In 2018 Mr Stocks issued proceedings against Ms Johns in this Court for damages. He alleges that his injuries were caused by the negligence of Ms Johns in the driving, management and/or control of her vehicle. He alleges that Ms Johns travelled at excessive speed, drove her vehicle on the wrong side of the road, deliberately attempted to collide with his vehicle, attempted to force his vehicle off the road, drove in a reckless manner, drove in a dangerous manner and failed to comply with the 'Road Traffic Act 1986 (Vic)'(sic) and the regulations made thereunder.

8 By consent the parties sought and obtained orders on 5 October 2018 setting a timetable including orders for discovery, interrogatories, exchange of evidence and a trial date. The first step in that timetable was not to occur until January 2019. At the time that consent timetable was made Ms Johns' criminal trial was fixed for the County Court circuit in October 2018. Her trial proceeded in that circuit and concluded with her conviction on 18 October 2018. Had she not sought to appeal her conviction, she would have been in a position to proceed with her defence in the civil action.

9 However after sentencing in February 2019 Ms Johns elected to pursue her rights on appeal. As a result she seeks a stay of these proceedings until after the determination of her appeal and, if successful, her re-trial in the County Court.

10 Ms Johns submits that she has a right to silence in her criminal proceedings that would, or could, be jeopardised if she is required to take any step in her civil proceeding.

11 If her right to silence is jeopardised, she could suffer prejudice in her criminal proceedings. The Crown is required to prove its case without the benefit of any assistance that any admissions or concessions made by Ms Johns in her civil claim might potentially provide. There is an exact overlap between the factual matrix underpinning the criminal conviction Ms Johns appeals and the allegations Mr Stocks levels against her in his statement of claim.

12 Ms John submits that should the civil proceeding not be stayed, she would be forced to choose between defending the civil claim, thereby allowing a sort of 'dress rehearsal' for the Crown in the criminal proceedings and potentially compromising her criminal defence, or maintaining her right to silence and leaving the civil claim undefended.

13 Her counsel argues that even if the civil claim were to settle with a non-admission of liability and with conditions of confidentiality, this outcome would pose a risk to her criminal proceedings. The fact of the settlement could come out in evidence before a jury and expose Ms Johns to prejudicial consequences.

14 Further Ms Johns' counsel submitted that, if she was required to file a defence in these proceedings, her solicitors would potentially be placed in a difficult position in regards to their obligations under the Civil Procedure Act 2010 (Vic). They would be required to confirm that there was a proper basis for each pleading, which might include a denial or non-admission, in relation to allegations about which the jury had made findings of guilt.

15 Ms Johns concedes that Mr Stocks has an interest in having his civil claim determined expeditiously, but the urgency to finalise those proceedings should not displace her right to protect her liberty.

16 Mr Stocks is a 70 year old man with severe injuries caused in the collision over five years ago. He has not worked since the accident.

17 Mr Stocks submits that the accident occurred in extraordinary circumstances that resulted in the prosecution of Ms Johns. She has been convicted by a jury. This Court should not assume that her appeal has any prospects of success.

18 Although Ms Johns exercised her right to silence in her criminal trial, she admitted in police statements that she was involved in the transport accident and said that she was travelling at 100kph in the opposite direction to Mr Stocks.

19 Whilst the question of criminal liability may be subject to appeal, the facts of the accident are unlikely to be in dispute in a civil trial. It is likely that the case will proceed as an assessment of damages only and there is every prospect that the matter will settle without trial as most of these cases do. A settlement could be reached without a formal admission of liability and could be kept confidential. The prospect that such a settlement could come out in evidence before a jury is extremely remote in circumstances where the settlement would not have any probative value in a criminal case.

20 Counsel for the plaintiff did not submit that the civil proceedings should run to verdict prior to the finalisation of the criminal proceedings, but did submit that a defence could be filed and the case could progress, so that any delay could be minimised. Ms Johns would not risk her right to silence if she filed a defence that denied or did not admit the allegations of negligence.

21 Counsel submitted that the criminal appeal would likely proceed on the question of whether it was open to the jury to conclude that Ms Johns' mental state justified the charges against her. Ms Johns' mental state would have little relevance in her civil trial. The test in a criminal proceeding and a civil proceeding is so different that even an admission of negligence in a civil proceeding would not automatically prejudice her criminal appeal. Further, any defence in her civil proceeding, and any evidence obtained in the civil proceeding, would likely either be irrelevant to the criminal proceeding, or could be excluded by application of s 135 of the Evidence Act 2008 (Vic) on the basis that its prejudicial value outweighs its probative value.

22 Counsel submitted that this case should be distinguished from that of Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 ('Zhao') as, in that case, the court found that the Commissioner would 'suffer no relevant prejudice from a delay in the continuation of the forfeiture proceedings', whilst in the present case, the delay would clearly cause prejudice to Mr Stocks, especially given his age.

23 It is appropriate to stay civil proceedings where the interests of justice require it.[1] The issue in this case is whether the interests of justice require such a stay.

24 On the one hand, Ms Johns is entitled to exhaust her criminal appeal options and avail herself of all her rights. She faces a significant jail sentence if the conviction is upheld.

25 On the other hand, Mr Stocks faces a lengthy delay if Ms Johns' application is successful, in circumstances where there has already been a significant delay of five years, where he has significant injuries and where his prospects of success are not dependent on the outcome of the criminal proceedings. Even if Ms Johns is exonerated on the criminal charges, the civil proceeding would continue.

26 The case of McMahon v Gould (1982) 7 ACLR 202 ('McMahon') established a set of guidelines to be considered by the Court in exercising its discretion in these circumstances, starting with the proposition that the plaintiff is prima facie 'entitled to have his action tried in the ordinary course of the procedure and business of the court'.[2] In that case the applicant for the stay had not satisfied the court that there was a 'real and not merely a notional danger of injustice if the civil proceedings go ahead'.[3]

27 However, in the years since McMahon was decided, the law has developed. In McLachlan v Browne (No.9) [2019] NSWSC 10 ('McLachlan') McCallum J said:

'...a statement of guidelines as to the exercise of a judicial discretion is not to be construed as an immutable statement of legal principle...The doctrine of precedent does not require slavish adherence to a checklist or guidelines stated in an earlier decision at first instance. Indeed the task of assessing and adapting such checklists according to the individual circumstances of the case at hand lies at the heart of the judicial function.'[4]

28 The following matters were considered by McCallum J in reaching her decision:

(a) that there was an exact overlap between the criminal allegations and the issues raised in the civil proceeding such that 'it follows that, if the stay is not granted, the civil action will in effect be a 'dress rehearsal' for the criminal trial.'[5] In the present proceedings, the allegations of negligence overlap exactly with the criminal charges;

(b) that two juries would be called upon in separate forums to decide the same questions of fact and that it would be very difficult for a criminal jury to put out of its mind the verdict reached by the civil jury. McLachlan involved a high profile defamation proceeding in which Mr McLachlan had been accused of sexual assault. The proceedings had received considerable publicity and the defendant relied on a defence of truth. A finding of truth in the defamation trial would necessarily be a finding that the plaintiff had committed sexual assaults. The present case is quite different - for example, it is possible that a civil jury could find that Ms Johns was negligent on the basis of the facts, without that finding having any bearing on whether she was guilty of a criminal offence; and

(c) that the civil proceeding would be impossible to run in a way that would protect the plaintiff's position in the criminal trial, unless he evoked a privilege against self-incrimination and obtained an appropriate certificate under s 128 of the Evidence Act 1995 (NSW). In that case, Mr McLachlan's options were to not give evidence, and likely not succeed in his civil claim, to give evidence and claim the privilege against self-incrimination, which would entail obvious prejudice to the strength of his case, or to waive the privilege in circumstances where he has plainly exercised his right to silence. In the present case, Ms Johns would face the same set of choices.

29 The Court in Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; (2009) 75 NSWLR 581 described the choices available as being 'on the horns of a dilemma'[6]. If the stay is not granted Ms Johns will have to conduct the civil litigation with one hand tied behind her back, or likely lose or waive the privilege against self-incrimination.

30 In Zhao the respondent, Xing Jin, was charged with aiding and abetting another to deal with the proceeds of crime. He was committed to stand trial. The County Court of Victoria made an order restraining the disposition of his assets pursuant to the Proceeds of Crime Act 2002 (Cth) ('POC Act') and the Commissioner of the Australian Federal Police subsequently brought proceedings for forfeiture. Xing Jin brought proceedings to exclude two residential properties from the restraining order and from forfeiture. He then made an application to stay the forfeiture and exclusion proceedings until after the completion of the criminal proceedings.

31 At first instance the judge refused to grant the stay on the basis that it would frustrate the clear intention of the POC Act and that Xing Jin had not given specific evidence about what prejudice he would suffer if the stay was not granted. His honour held that Xing Jin was neither prevented from, nor compelled to give evidence in the civil proceeding. He could give evidence that the properties were not acquired from the proceeds of crime without harming his defence in the criminal proceedings. If he chose to give evidence he could avail himself of the procedure provided for in s 128 of the Evidence Act 2008 (Vic). This procedure provides that the court can give a certificate to a witness which prevents evidence given by that witness from being used against that person.

32 The decision of the trial judge was overturned on appeal (Zhao and Jin v Commissioner of the Australian Federal Police [2014] VSCA 137; (2014) 43 VR 187) and the case made its way to the High Court. The High Court held that the risk of prejudice to Xing Jin if the stay were not granted was plain, and it was not necessary for him to point to specific evidence that would cause prejudice or do more than he had done, given that the circumstances relevant to both proceedings were substantially identical. Xing Jin could point to prejudice if the stay were not granted, the Commissioner could point to no prejudice if the stay were granted. [7]

33 The court also upheld the Court of Appeal's decision that protective orders would not suffice to remove the risk of prejudice. The prosecutor's possession of the evidence could still affect the accused's defence.

34 The circumstances of Zhao are very different to the present case. The lack of prejudice to the Commissioner cannot be equated with the very real prejudice that would be caused to Mr Stocks if the stay were granted. In Zhao, the criminal proceedings were commenced and the restraining order was sought at the same time. In the present case there has been a jury trial and conviction. Ms Johns has exercised her right to silence, and the outcome has been determined. The presumption of Ms Johns' innocence has potentially been overturned by the finding of the jury.

35 I am also mindful of the reality that Ms Johns is likely to play a limited role in the defence of her civil proceeding. That defence will largely be conducted by the insurer who will make decisions about how to prosecute the case and whether to make any and what offers to settle, with little or no input from Ms Johns.

36 If the criminal proceedings were not still on foot, Ms Johns or her insurer may decide to make admissions, or elect to take a commercial approach to the settlement of this matter. The insurer who is conducting this litigation is also in the invidious position of having to determine the most appropriate approach for it to take in the civil proceedings, whilst not compromising Ms Johns' rights on appeal.

37 I accept that, whilst the guidelines in McMahon remain useful considerations for the court to weigh, the cases demonstrate that the law has moved on, at least to the extent that, should the right to silence in criminal proceedings be jeopardised by civil proceedings, primacy ought to be given to the accused's right to silence. In applying Lee v R [2014] HCA 20; (2014) 308 ALR 252 the Court of Appeal in Zhao and Jin v Commissioner of the Australian Federal Police found that it was 'bound to do what it can to protect the accused's right to require the Crown to prove its case without the accused's assistance'.[8] This reasoning was endorsed by the High Court. Though Ms Johns is no longer an accused but has been convicted, it would not be in the interests of justice if the right elucidated by the Court of Appeal were not protected through the criminal appeal process and potential re-trial.

38 I have had regard to the plaintiff's argument that Ms Johns could construct a defence so as not to put at risk her right to silence - she could, for example, not admit the allegations and put the plaintiff to his proof. However I considered that such a defence would be of little utility for either party in identifying the real issues in dispute, or for the effective management of the proceeding in the Court.

39 I accept that further steps, such as swearing answers to interrogatories, would jeopardise Ms John's right to silence in her criminal proceeding, given the likely subject matter of such interrogatories which would presumably include questions about her speed and the side of the road on which she was driving. Accordingly, whilst I recognise and regret the very real delay that will come with my decision, and the unavoidable prejudice that delay will cause to Mr Stocks, I grant the application for the stay.

40 In coming to my decision I considered whether there was a way in which the matter could proceed without the requirement for the defendant to formally file any documents - for example by making orders that the defendant obtain and serve expert material and attend a mediation. Ms Johns submitted that, were the matter to settle at mediation on terms that were confidential and without admission of liability, that information might somehow be deemed sufficiently relevant or probative to put before a criminal jury. I do not accept that this would be a real possibility. Nevertheless, I do not consider that making orders requiring the parties to attend a mediation would be appropriate. The court has an obligation to ensure the efficient, timely, and cost effective determination of the real issues in dispute. Requiring parties to attend a mediation in the absence of a filed defence, discovery, answers to interrogatories and expert material on liability would risk being an unproductive exercise that would potentially increase costs for both parties.

41 That is not to say that the defendant should not obtain all relevant expert material, nor that the parties cannot attend a mediation and resolve the matter should they chose to do so, while the proceeding is stayed. I would strongly encourage Ms Johns to take steps to obtain all relevant material to her defence and would encourage the parties to consider attending a mediation. The parties are better placed than I to know whether, in the absence of a defence, discovery and interrogatories, the matter can realistically settle.

42 At the very least, the defendant must ensure that all necessary steps, barring filing of documents, are underway, so that when the criminal proceedings are finalised, the civil proceedings can be dealt with expeditiously.

43 Upon finalisation of the criminal proceedings, I foreshadow that the court will set an extremely truncated timetable for exchange of expert material, attendance at mediation and trial unless there is a compelling reason not to do so.

44 In the circumstances, and although the defendant has been successful, I consider the appropriate order is that the costs of the application be costs in the proceeding.

[1] Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46, [36].

[2] McMahon v Gould (1982) 7 ACLR 202, 387.

[4] McLachlan v Browne (No.9) ('McLachlan') [2019] NSWSC 10, [8].

[5] McLachlan v Browne (No.9) [2019] NSWSC 10, [38].

[6] Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; (2009) 261 ALR 123, [13].

[7] Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46, 61.

[8] Zhao and Jin v Commissioner of the Australian Federal Police [2014] VSCA 137; (2014) 43 VR 187, 207.