Rural Export and Trading (WA) Pty Ltd v Hahnheuser

REASONS FOR JUDGMENT 1 This proceeding was commenced by filing in the Victoria District Registry of this Court an application and a statement of claim on 21 April 2004. At the first directions hearing, which was conducted by videoconference with the first respondent in Adelaide on 7 June 2004, I made an order granting the second respondent leave to enter an appearance and defend the proceeding by the first respondent. The first respondent appeared in person. 2 On that occasion, the first respondent indicated a desire to apply for orders that would stay the proceeding, to await criminal charges pending against him, and would change the proper place of the proceeding from Victoria to South Australia. I ordered that any notice of motion seeking such an order be filed on or before 15 June and be made returnable on 28 June 2004. On 15 June 2004 the respondents filed two documents. One was in the form of an application seeking two declarations and two orders, as well as costs. The other was an affidavit consisting of two paragraphs of two lines each. The first paragraph disclosed that the first respondent is currently being prosecuted by the Victoria Police for matters that are said to be connected with the subject matter of this proceeding. The second paragraph of the affidavit exhibited the charge sheet dated 20 November 2003 in which the first respondent is charged that: 'at Portland between the 18th and 19th of November, 2003, did contaminate goods, to wit food and/or water intended for consumtion [sic] by livestock, with the intention of causing economic loss through public awareness of the contamination.' Other than that, there has been no material in support of the orders sought. 3 On 28 June, although a videoconference was established with the Court's registry in Adelaide, the first respondent did not attend. On that occasion, it appears that he was suffering an illness and he subsequently provided a medical report evidencing that illness. On that occasion, I ordered that the application filed on 15 June 2004 be treated as a notice of motion. I adjourned the further hearing of it until today and I directed that the respondents file and serve a further affidavit or affidavits as to any prejudice the first respondent may suffer in the defence of the criminal charges against him, if the order sought in paragraph 3 of the notice of motion were not made, and as to any facts on which the respondents may seek to rely in support of the order for a change of the proper place. 4 Despite these orders, no further affidavit material has been filed. It is apparent, therefore, that the affidavit material is inadequate to support either of the orders sought by the respondents. 5 I deal first with the application for a stay of proceedings pending the final resolution of the criminal proceeding. At one time, it was considered that the existence of a parallel criminal proceeding, or even the threat of one, entitled a person to a stay of a civil proceeding concerned with the same subject matter, simply on the ground that some prejudice to the person might arise from the conflict between the two proceedings. The law has developed, however, so that there is no longer any automatic entitlement to a stay of the civil proceeding. The development began with a case called McMahon v Gould (1982) 7 ACLR 202. The line of authority was summarised by Gyles J in Baker v Commissioner of Federal Police [2000] FCA 1339 (2000) 104 FCR 359 at [27] as follows: '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.' 6 There have been various formulations in the authorities as to the proper test to be applied. In Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1984) 4 FCR 428 at 434, Wilcox J spoke of the likelihood of causing injustice in the criminal proceedings. More recently, in Golden City Car & Truck Centre Pty Ltd v Deputy Commissioner of Taxation [1999] FCA 922 (1999) 42 ATR 379 at [13], Cooper J spoke of the need to establish a 'real prospect of substantial prejudice in the criminal proceedings if the civil action continues.' 7 In the present case I cannot regard that requirement as having been satisfied. The first respondent has not even seen fit to swear an affidavit to the effect that he would be prejudiced by abandoning his right to silence in the criminal proceeding. I am aware that, in criminal proceedings in Victoria, there are now requirements for pre-trial disclosure by accused persons, particularly in relation to alibis. I do not know, of course, what defence the first respondent might have, and he is entitled to withhold from me whatever defence he might seek to proceed with in the criminal proceeding, if he chooses to do so. For him to obtain a stay of this proceeding, however, on the basis of the criminal proceeding, at the very least he would need to persuade me that he would be prejudiced. Currently, there is no material whatsoever to that effect. 8 As to the other order sought, although the document filed on 15 June 2004, now treated as a notice of motion, suggests that a transfer to the Supreme Court of South Australia was sought, the first respondent has clarified that what is in fact sought is a transfer to the South Australia District Registry of this Court. There is no doubt that it is open to the Court to make such an order. Among the orders that the Court can make in a directions hearing pursuant to O 10 r 1(2)(f) of the Federal Court Rules (Cth) is an order directing that the proceeding be transferred to a place at which there is a registry other than the then proper place. A broader power is found in s 48 of the Federal Court of Australia Act 1976 (Cth), which provides that: 'The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.' 9 In National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162, the Full Court made it clear that there needs to be something of substance to displace the choice of an applicant as to the place in which the proceeding will be commenced and conducted. For that choice to be displaced in the present case, there would be a need for the provision of affidavit material. There is no such material at all. If indeed it is inconvenient or impossible for the first respondent to travel to Melbourne for any part of the proceeding, he could have said so on affidavit. 10 The place at which a case is managed is not necessarily the place at which the trial will be conducted. If, in due course, the respondents are able to show that there is substantial convenience in conducting the trial, or part of the trial, in some place other than Melbourne, then consideration will obviously be given to how the trial should be managed. The question for present purposes is how to manage the preparation for the trial and any interlocutory proceedings that might occur. 11 I am currently not satisfied that the capacity to manage the case by means of videoconference with Adelaide is inadequate. Mr Hahnheuser has suggested that he has been prejudiced by reference to a rule of court that he was not aware of and to an authority in relation to that rule that was not submitted to him as part of a list of authorities, which I had previously directed the applicant to provide for the convenience of the respondents. The simple answer is that, if the respondents were able to get representation, the management of the case would be enhanced generally. There would be no need for all of those who appeared in relation to its management to be in the one place if videoconference were used. If representation were available, it would facilitate the management of the case in any event. 12 Shortly after I had adjourned the matter on 28 June, I caused a letter to be sent to the first respondent concerning the orders that had been made on that day. In the course of that letter, I drew to the attention of the first respondent that counsel for the applicants had indicated to me that the proceeding is intended to be something of a test case of the application of s 45DB of the Trade Practices Act 1974 (Cth) to circumstances such as those alleged in the proceeding. I suggested that the Court would benefit from the respondents having legal representation so as to provide the possibility of proper contradiction of the applicants' arguments. I made the suggestion to him that he might like to approach the Public Interest Law Clearing House, to see if legal representation for the respondents might be possible, if the respondents are unable to afford an appropriate level of assistance. I provided him with contact details for the Public Interest Law Clearing House. Notwithstanding this suggestion and the assistance I gave, the first respondent has apparently taken no step to seek to obtain legal representation for the respondents through the Public Interest Law Clearing House since 28 June 2004. 13 I am deeply concerned about the management of the case while the respondents remain represented by the first respondent and do urge them as strongly as I possibly can to seek to obtain legal representation on the basis that this is a test case of some sort. 14 I return to the inadequacy of the material to support the orders sought. The first respondent has suggested that it would be appropriate to adjourn further the motions so that he can seek legal representation in relation to them. Counsel for the applicants opposes a further adjournment. In the circumstances, it seems to me that a further adjournment would be inappropriate. The respondents have had more than sufficient opportunity to provide adequate material. Not only a hint by way of a telephone call from my associate when the documents were first filed on 15 June, but also the orders that I made on 28 June directing the filing of further material, ought to have alerted the respondents that their material was inadequate for the task they had set themselves. A further adjournment would only prolong matters. 15 This is an interlocutory issue, and will be the subject of an interlocutory order, which will not preclude the making of a further application if proper material can be assembled. I accept the principle, urged on me by counsel for the applicants, that an applicant in a proceeding is entitled to have the case dealt with in the ordinary course of the business of the Court, with reasonable expedition, and should not be required to await the pleasure of the respondents. 16 In the absence of adequate material, the first respondent was reduced to arguing the case on submissions that were not supported by material. He attempted to rely on a line of authority concerned essentially with double jeopardy by way of more than one criminal proceeding dealing with different offences arising from the same facts, or with parallel civil and criminal proceedings, in which a civil penalty is sought and a prosecution for an offence occurs, in relation to what are essentially the same facts. It seems to me that that line of authority is entirely irrelevant to the situation here. There is no civil penalty sought in this proceeding. The applicants seek only declaratory relief, damages and an injunction to restrain future conduct. The principles concerning prejudice over multiple penal proceedings cannot displace those to which I have referred that apply to parallel civil and criminal proceedings. 17 The first respondent drew attention to the fact that there has been no urgent injunction sought. He said that, in any event, his bail conditions prevent him from having access to the port of Portland or to feedlots. He pointed to what he said was delay in the filing of the proceeding and argued that these matters supported the proposition that there would be no prejudice to the applicants from delay. I am bound to say that I do not regard the time elapsing from 19 November 2003 to 21 April 2004 as significant delay in the filing of the application in this Court. It may be that there is no prejudice as such shown to the applicants from further delay but I reiterate that they have the right to have their proceeding dealt with in the ordinary course of the business of the Court with reasonable expedition. 18 Accordingly, it seems to me that I should refuse a further adjournment. The only choice for me then is to dismiss the applications that were made by the notice of motion filed on 15 June. 19 The orders I make are as follows: