FEDERAL COURT OF AUSTRALIA Winters v Fogarty (No 2) [2020] FCA 220 File numbers: VID 1288 of 2013 VID 323 of 2016 Judge: BROMBERG J Date of judgment: 12 February 2020 Catchwords: PRACTICE AND PROCEDURE – application for stay of civil proceedings pending resolution of criminal proceedings – discussion of relevant principles – whether in the interests of justice for civil proceedings to be stayed – application granted Cases cited: Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 McMahon v Gould (1982) 7 ACLR 202 Date of hearing: 12 February 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Solicitor for the Applicant: Mr M Harmer of Harmers Workplace Lawyers Solicitor for the Respondent: Sladen Legal Counsel for the Respondent: Mr L Howard ORDERS VID 1288 of 2013 VID 323 of 2016 BETWEEN: LEILA WINTERS Applicant AND: BASIL MICHAEL FOGARTY Respondent JUDGE: BROMBERG J DATE OF ORDER: 12 FEBRUARY 2020 THE COURT ORDERS THAT: 1. The Applicant's Interlocutory Applications filed in proceedings VID1288/2013 and VID323/2016 on 11 December 2019 be adjourned pending the outcome of the criminal proceedings against the First Respondent referred to in the affidavit of the First Respondent dated 10 February 2020 ("criminal proceedings"). 2. Subject to order 3, proceedings VID1288/2013 and VID323/2016 be stayed pending the outcome of the criminal proceedings. 3. The Respondent's Interlocutory Application filed 10 February 2020 be listed for hearing on 4 March 2020. 4. The parties notify the Court upon the conclusion of the criminal proceedings for the purpose of the relisting of these proceedings for a case management hearing. 5. Costs are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMBERG J: 1 In the two proceedings before me, VID 323 of 2016 and VID 1288 of 2013, the parties seek consent orders which, other than for one application, would have the effect of staying those proceedings pending the outcome of the criminal proceedings brought against the first respondent ("Mr Fogarty"), which I will outline shortly. 2 It is appropriate that I briefly outline some of the background to these proceedings. 3 In proceeding VID 1288 of 2013, the applicant ("Ms Winters") claimed that she had been sexually harassed by the first respondent. Mr Fogarty alleges that that proceeding was settled when he and Ms Winters entered into a deed purporting to resolve the proceeding ("Deed"). 4 However, in the proceedings before me Ms Winters alleges that the Deed is voidable and/or unenforceable. The hearing of the proceedings commenced some 15 months ago and were adjourned part-heard because Ms Winters was unable to participate as a witness due to her mental health. 5 It was intended that the part heard proceedings be relisted for further hearing in the middle of this year. 6 Some interlocutory applications are before me this morning, which deal with matters preliminary to that relisting. 7 However, on 10 December 2019, Mr Fogarty was charged with the following offences: rape, indecent assault, stalking and the use of a communication device to harass. Ms Winters is the complainant in the criminal proceeding. By reason of the bringing of the criminal proceeding the parties have jointly applied for orders which would stay the civil proceedings before me. 8 In Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, the High Court set out relevant principles addressing the circumstances in which civil proceedings should be stayed pending the resolution of criminal proceedings. The relevant principles are extracted in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 ("CFMEU") at [22] as follows: (i) where both civil and criminal proceedings are pending, a stay of the civil proceeding will be ordered where 'the interests of justice require such an order': Zhao (HC) at [36]; (ii) 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: Zhao (HC) at [35]; (iii) to warrant a stay of the civil proceeding, 'it must be apparent' that the accused 'is at risk of prejudice in the conduct of his or her defence in the criminal trial': Zhao (HC) at [35]; (iv) the risk of prejudice must be real and, in considering what the interests of justice require, that risk is to be weighed against the prejudice that a stay of the civil proceeding would occasion: Zhao (HC) at [47] and [50]. 9 As the Full Court in CFMEU observed, applicable guidelines to consider on an application such as this are also set out in the well-known judgment of Wootten J in McMahon v Gould (1982) 7 ACLR 202. As his Honour there said, the Court's task involves the balancing of justice between the parties, taking account all relevant factors. The relevant factors may differ from case to case. There are, in my view, five factors, which, weighed in the balance, support the grant of a stay of these proceedings. 10 Firstly, although prima facie an applicant is entitled to have her or his action tried in the ordinary course of the procedure and business of the Court, Ms Winters here does not pursue that prima facie entitlement here. To the contrary, she contends that it would be prejudicial to her if the stay sought was not granted. That leads me to the second factor – the nature of the prejudice upon Ms Winters. Ms Winters contends, and I accept, that given the state of her mental health the overlapping of the civil and criminal proceedings will impose a substantial prejudicial burden upon her. 11 Third, I accept that Mr Fogarty faces the risk that the conduct of his defence in the criminal prosecution will be prejudiced if these proceedings are not stayed. I consider that risk to be real. Whilst the degree of potential overlap of factual issues between the likely facts to be raised in the criminal prosecution and the likely facts to be raised in these proceedings may not be large, there is, in my view, a potential for some overlap. 12 Mr Fogarty intends to give evidence in the civil proceedings. It seems apparent to me that that intention is justifiably based on a perceived need to advance his case in these proceedings. If he does give evidence, there is, it would appear, at least a risk that Mr Fogarty's evidence may potentially advantage the prosecutor in the criminal proceeding, and if that occurred, that would potentially constitute an infringement of Mr Fogarty's privilege against self-incrimination and his right to silence. Of course, Mr Fogarty could decline to give evidence in the civil proceedings and thereby avoid that risk. However, for the reasons explained in CFMEU at [33], Mr Fogarty faces what was there referred to "an invidious choice". The existence of that invidious choice is, of itself, prejudicial. 13 Lastly, as the Full Court observed at [59] of CFMEU, the primacy of the criminal proceeding needs to be taken into account in the balancing process. 14 Each of the matters outlined support the granting of the stay sought. 15 I am satisfied that it is in the interests of justice for these proceedings to be stayed pending the outcome of the criminal proceedings brought against Mr Fogarty to which I have referred. I will make the orders sought by consent. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 26 February 2020