(The cases to which Wootten J referred are Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16, Jefferson Ltd v Bhetcha [1979] 1 WLR 898, Beecee Group v Barton (1980) 5 ACLR 33, Caesar v Somner [1980] 2 NSWLR 929 and Re Saltergate Insurance Co Ltd (1980) 4 ACLR 733).
9 The first defendant's contention is that, as he has to this point maintained his silence on the matters alleged against him (except, perhaps, in certain statements to his superiors within the employer group), he should be allowed to continue in that way. The possibility of his having to articulate in his defence in these proceedings matters involving facts that might tend to incriminate him is something to which, in his submission, he should not be exposed. He regards s.128 of the Evidence Act as of no assistance, as it does no more than regulate the giving of evidence in the proceedings when they are eventually heard, and does not address the dilemma he faces in being compelled to formulate a defence in the course of pleadings, as well as being subjected to discovery (although, in the discovery context, Pt 23 of the Supreme Court Rules contains its own regime regulating the situation where self-incrimination is seen as a problem).
10 The submissions advanced by Mr Lindsay SC for the plaintiffs are to the effect that a number of factors combine to indicate that a stay of proceedings is not warranted. The first defendant has not been charged with any criminal offence and, if he were to be charged, the time of the hearing of the criminal proceedings must be assumed to be quite some distance into the future. It would be wrong for the present proceedings to be put into a state of abeyance for what might be a considerable time. The plaintiffs also note that the defences filed by defendants other than the first defendant show that all parties are proceeding on the basis of the truth and accuracy of the plaintiffs' allegations against the first defendant, so that orderly progress of the proceedings as a whole requires the first defendant to indicate whether he disputes those allegations and, if so, on what grounds.
11 Two things are emphasised in the cases: first, that a plaintiff has a prima facie right to continue his or her action; and, second, that an accused person's "right to silence" is in general not something that should intrude upon the civil trial process. The significance and role of the "right to silence" must be considered in the correct context. I quote again from the judgment of Wootten J in McMahon v Gould (above):
"In this context there are some consequences of the 'right of silence' which no one, so far as I am aware, puts forward as legitimate reasons for its existence. These include the opportunity it may give the accused to remain silent till the end of the evidence against him at the trial, and then produce a fabricated story perfectly tailored to meet that evidence. They include the possibility of depriving the prosecution of any opportunity to check the accused's story and obtain evidence to refute it before the trial is over. In one particular matter - the last minute production of alibis - the injustice was so frequent and obvious that the legislature made an inroad into the 'right of silence' by requiring notice of such an intended defence.
These are advantages which 'the right of silence' gives to an accused, but they cannot reasonably be regarded as part of the reason why the right exists. In exercising its discretion to stay civil proceedings the court need not be concerned to preserve these advantages. It should be concerned to avoid the causing of unjust prejudice by the continuance of the civil proceedings, not to preserve the tactical status quo in the criminal proceedings whether it be just or unjust."
12 I quote also from the judgment of Sir John Young CJ in Philippine Airlines v Goldair (Australia) Pty Ltd [1990] VR 385:
"The argument that to require a defendant to answer civil proceedings during the pendency of criminal proceedings might in some way infringe his 'right of silence' has been dealt with in other cases. In Jefferson Ltd v Bhetcha Megaw LJ dealt with the argument as follows, at 904-5: 'I should be prepared to accept that the court which is competent to control the proceedings in the civil action, whether it be a master, a judge, or this court, would have a discretion, under s.41 of the Supreme Court of Judicature (Consolidation) Act 1925, to stay the proceedings, if it appeared to the court that justice - the balancing of justice between the parties - so required, having regard to the concurrent criminal proceedings, and taking into account the principle, which applies in the criminal proceeding itself, of what is sometimes referred to as the "right of silence" and the reason why that right, under the law as it stands, is a right of a defendant in criminal proceedings. But in the civil court it would be a matter of discretion, and not of right. There is, I say again, in my judgment, no principle of law that a plaintiff in a civil action is to be debarred from pursuing that action in accordance with the normal rules for the conduct of civil actions merely because so to do would, or might, result in the defendant, if he wished to defend the action, having to disclose, by an affidavit under O.14, or in the pleading of his defence, or by way of discovery or otherwise, what his defence is or may be, in whole or in part, with the result that he might be giving an indication of what his defence was likely to be in the contemporaneous criminal proceedings. The protection which is at present given to one facing a criminal charge - the so-called `right of silence' - does not extend to give the defendant as a matter of right the same protection in contemporaneous civil proceedings.'"
13 In the present case, there are no criminal proceedings. There are not even any criminal charges. Nor, on the evidence of Mr North, has there been any explicit statement by any of the police officers with whom he has spoken that charges will be laid. The case is accordingly one in which the court is asked to deprive the plaintiffs of their right to prosecute their claims in the ordinary way because of the possibility that criminal charges may be forthcoming. The "right to silence" is the only possible basis that can be asserted for such a request, given that considerations arising from the pendency of concurrent proceedings and possible interference of conduct of one on the conduct of the other (including possible impact of any publicity on the minds of potential jurors) simply do not arise here. I am satisfied, however, that the "right to silence" should not, on the authorities, be seen as justifying a stay of the civil proceedings at this stage of the respective developments of those proceedings and the possibility of criminal proceedings in the future.
14 The first defendant bears the onus of showing that the requirements of justice positively require that the plaintiffs be deprived of their right to press on with these proceedings. That onus has not been discharged in such a way as to warrant exercise by the court of its discretion to order a stay of proceedings at this point. I can discern no real (as distinct from merely notional) danger of injustice in any future criminal proceedings in allowing the present proceedings to progress in the normal way at this stage. The first defendant's application for a stay is therefore dismissed.