FEDERAL COURT OF AUSTRALIA Sebastian v Day [2020] FCA 1089 File number: NSD 1341 of 2018 Judge: THAWLEY J Date of judgment: 29 July 2020 Legislation: Crimes Act 1900 (NSW) s 192E(1)(b) Cases cited: Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 964 Commissioner of the Australia Federal Police v Zhao (2015) 255 CLR 46 Date of hearing: 22 July 2020 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: No Catchwords Number of paragraphs: 5 Solicitor for the Applicants: Mr M Faraday of Henry William Lawyers Counsel for the Respondents: Mr T Jones Solicitor for the Respondents: Law Partners Australia ORDERS NSD 1341 of 2018 BETWEEN: GUY SEBASTIAN First Applicant GUYTUNES PTY LTD Second Applicant AND: TITUS DAY First Respondent 6 DEGRESS MANAGEMENT PTY LTD Second Respondent NEXDIUS LIMITED Third Respondent JUDGE: THAWLEY J DATE OF ORDER: 29 JULY 2020 THE COURT ORDERS THAT: 1. The proceeding be stayed until the final determination of Regina v Titus Day (Local Court proceedings 2020/00194883) or further order. 2. The proceeding be listed for a case management hearing within 28 days of the determination of the proceedings referred to in Order 1. 3. The parties have liberty to apply on 3 days' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THAWLEY J: 1 Mr Day applied for a stay of this proceeding at a case management hearing on 22 July 2020. The applicants consented to a stay. 2 The reason a stay has been sought is that, on 1 July 2020, Mr Day was charged with 61 counts of conduct contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), namely, that he dishonestly caused a financial disadvantage to Mr Sebastian. This has resulted in criminal proceedings in the Local Court of NSW. 3 It is common ground that there is factual overlap between the subject matter of this proceeding and the criminal proceedings. This proceeding concerns, amongst other things, a claim that Mr Day withheld from the applicants, or fraudulently misappropriated, various identified amounts. 4 It is in the interests of justice to grant a stay. That is because Mr Day would be at real risk of prejudice in the conduct of his defence in the criminal trial if this proceeding were not stayed – see: Commissioner of the Australia Federal Police v Zhao (2015) 255 CLR 46 at [35]; Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 964 at [55]. This risk is not outweighed by any other consideration. 5 For these reasons, the Court makes the following orders: (1) The proceeding be stayed until the final determination of Regina v Titus Day (Local Court proceedings 2020/00194883) or further order. (2) The proceeding be listed for a case management hearing within 28 days of the determination of the proceedings referred to in Order 1. (3) The parties have liberty to apply on 3 days' notice. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. Associate: Dated: 29 July 2020