28 In respect of these principles, Young CJ in Philippine Airlines v Goldair (Aust) Pty Ltd[3] said he was prepared to adopt them "as a useful guide to the exercise of the court's discretion in cases of this kind". Of course, each case will depend on its own facts and the discretion is not confined by rules. The summary of relevant factors given by Wooten J in McMahon v Gould should, although of great assistance to a judge examining the discretion in a particular case, be used in that light.
29 However, it is clear that the mere fact that the applicant for a stay may have his so-called "right to silence" in criminal proceedings affected by the continuance of the civil proceedings is not, on its own, a sufficient ground to grant a stay except in a very strong case. In this regard I refer also to what was said by Young CJ in Philippine Airlines v Goldair.[4]
30 On behalf of the plaintiff, it was submitted that this was not a case in which sole reliance was placed upon the possible effect upon the plaintiff's right to silence in the criminal proceedings. Reliance was placed upon the following factors which, it was submitted, should cause me to stay this proceeding pending the determination of the criminal proceeding against the plaintiff.
31 First and foremost, it was submitted on behalf of the plaintiff that the claim by Collins in the criminal proceeding for a restitution order in the sum of $936,843 was a strong factor which should guide me in the exercise of my discretion. It was submitted that, if the criminal proceeding proceeds to trial and the plaintiff is convicted, and a restitution order is made as sought, then this will have the effect of practically disposing of this proceeding. It was submitted that in such circumstances, the plaintiff "if properly advised" would not proceed with this proceeding because of the affect upon his credit resulting from a criminal conviction. However, this submission ignores the rights of the defendants. At present, the defendants are exposed to the claims made against them by the plaintiff in the proceeding. The proceeding has been on foot for about 18 months. Further, the restitution orders sought in the criminal proceedings are in respect of only 129 of the 177 cheques in issue in the counterclaim. Finally, having regard to the need to establish the criminal charges beyond reasonable doubt, there is a prospect that the plaintiff will be acquitted in the criminal proceeding and Collins will be left to pursue its counterclaim in this proceeding.
32 In my view, the first ground relied upon on behalf of the plaintiff is without substance. The mere fact that restitution has been sought ought not deprive the defendants of their entitlement to have this proceeding brought on for trial in the ordinary course of business. In this regard, I note that it was accepted by the parties that a trial of this proceeding would occupy some four weeks of court time and thus would not be heard in either the Commercial List or the Corporations List. It was accepted that a trial of such magnitude would not, in the ordinary course, obtain a trial date until after the anticipated trial of the criminal proceedings, assuming the plaintiff is committed for trial.
33 Secondly, reliance was placed upon the fact that the committal proceeding is imminent. In my view, this is of no relevance in this case. If the plaintiff is not committed for trial, there will be no need for a stay. If he is committed for trial, then the facts remain the same. It is unlikely that there will be a trial of any criminal proceedings until March or April 2007 at earliest.
34 Thirdly, it was submitted on behalf of the plaintiff that I should infer that it would place strain upon the time and resources of the plaintiff if he is forced to deal with both the civil and criminal proceedings. There was no evidence of this, apart from the general statement of concern in the affidavit sworn by Ms Hua. In my view, this factor is not of any weight in this case. The remaining interlocutory steps to be completed on behalf of the plaintiff are not onerous and can be completed within a reasonable time. The result will be that the proceeding will be in a position to be fixed for trial. This will be of considerable advantage to the defendants, who wish to obtain a trial date, even though it is acknowledged that it is likely that any trial date will be after the trial of the criminal proceedings.
35 Fourthly, reliance was placed on behalf of the plaintiff on the possibility that the discovery orders which were made by consent may cause the plaintiff some difficulty in the defence of the criminal proceedings. However, on analysis it became apparent that, this submission was of no substance. The first class of documents which is the subject of the consent order relates to the bank accounts of the plaintiff. It was common ground that these documents are already with the police. The other classes of documents are all relevant to the plaintiff's own claim that he is entitled to a one-third interest in the business of Collins. They do not appear to have any relevance to the counterclaim or the criminal proceedings.
36 On behalf of the defendants, it was submitted that the plaintiff has not satisfied the onus on him to show a real, and not merely notional, risk of prejudice to him in the criminal proceedings. The principal matters relied upon on behalf of the defendants were as follows: