Industrial Relations Commission New South Wales Medium Neutral Citation: Noble v Health Secretary in respect of Mid North Coast Local Health District [2023] NSWIRComm 1065 Hearing dates: 3 July 2023 Date of orders: 4 July 2023 Decision date: 04 July 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: 1. Orders 1, 2 and 3 made on 20 April 2023, being orders in relation to the filing of evidence and submissions, are vacated. 2. The Applicant's Notice of Motion is otherwise dismissed. 3. The proceedings are listed for directions on 10 August 2023 at 10.00am. 4. The parties may apply to have the matter relisted prior to 10 August 2023. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal —Notice of Motion filed by Applicant seeking "managed stay" of proceeding pending the determination of a police investigation — Police investigation concerns alleged conduct by Applicant which, in part, formed the basis for her dismissal —Principles applicable to stay of civil proceedings pending resolution of criminal proceedings — Dictates of justice weighed in favour of the Respondent in circumstances where no charges laid and already considerable delay, however risk of prejudice to the Applicant sufficient to justify further short delay Legislation Cited: Civil Procedure Act 2005 (NSW), ss 67 Crimes Act 1990 (NSW), ss 35, 308H Health Records and Information Privacy Act 2002 (NSW), s 68 Industrial Relations Act 1996 (NSW), ss 3(a), 84, 89(3),146,162(2)(a) and (g), 163 (1)(c), 164A Cases Cited: Baker v Commissioner of Federal Police [2000] FCA 1339; (2000) 104 FCR 359 Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 Dadley v Fire and Rescue NSW [2020] NSWIRComm 1084 Gipsy Fire v Truth Newspapers Pty Ltd (1987) NSWLR 382 Goreng Goreng v Jennaway [2007] FCA 2083; 164 FCR 567 Gregg v Fairfax Media Publications Pty Ltd [2017] FCA 440 Impiombato v BHP Group Limited [2020] FCA 350; 143 ACSR 301 Kevin Cooper v Australian Taxation Office [2014] FWC 2931 Levis v Stavropoulos [2020] NSWDC 296 McLachlan v Browne (No 9) [2019] NSWSC 10 McMahon v Gould (1982) 7 ACLR 202 Obeid v Commissioner of Taxation [2017] FCA 1135 Ransley v Commissioner of Taxation [2016] FCA 778 Re Plutus Payroll Australia Pty Ltd [2017] NSWSC 1854 Reid v Howard (1995) 184 CLR 1 Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man Print S8287 (AIRC, Watson SDP, 19 July 2000) Secretary of the Department of Education v X [2023] NSWIRComm 1061 Semaan v Secretary, Department of Education [2023] NSWIRComm 1040 Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 Category: Procedural rulings Parties: Sharon Noble (Applicant) Health Secretary in respect of Mid North Coast Local Health District (Respondent) Representation: M. Burns, Solicitor (Applicant) L. Schafer-Gardener, Solicitor (Respondent) Solicitors: McNally Jones Staff (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2022/377982 Publication restriction: No DECISION 1. Before the Commission is a Notice of Motion filed by the Applicant, Sharon Noble, on 23 May 2023, seeking the following orders: 1. The orders made on 20 April 2023 in relation to the filing of evidence and submissions be vacated. 2. The proceedings be stayed pending the determination of the Police Investigation referred to at paragraph 9 onwards in the Unfair Dismissal Application filed 15 December 2022. 3. Any further orders the Commission sees fit. 1. In written and oral submissions, the solicitor the Applicant stated that what was sought was a "managed stay", which, he submitted was not an indefinite stay, but rather time limited stays of either three or six months, after which, a further stay may be sought if required. 2. The orders sought are opposed by the Respondent, the Health Secretary in respect of Mid North Coast Local Health District. 3. The Notice of Motion arises in the context of unfair dismissal proceedings commenced by the Applicant pursuant to s 84 of the Industrial Relations Act 1996 (NSW) on 15 December 2022, following the termination of her employment by the Respondent on 25 November 2022. 4. The background to the Notice of Motion is conveniently summarised in the Unfair Dismissal Application, as follows: "1. Ms Noble was employed as a Social Worker Level 5 at Kempsey Hospital within the Mid North Coast Local Health District as part of the Joint Child Protection Response Program team. 2. Ms Noble was employed in this role from March 2013 until her employment was terminated in 2013 (sic) [2022]. 3. On 12 July 2022, Ms Noble was summoned to a meeting with management and advised that there were concerns with possible breaches of the NSW Health Code of Conduct and Health Record Documentation Policies. 4. During this meeting Ms Noble was further advised that she was to be suspended from duty effective immediately. 5. On 21 July 2022, Ms Noble was sent a letter outlining nine allegations of misconduct. … 6. Following this, Ms Noble sought medical assistance for the stress and strain placed on her mental health as a result of these allegations and made a workers compensation claim. 7. Given the mental health of Ms Noble and the fact that she was suspended from duty, the HSU [Health Services Union] assisted in trying to arrange a time for Ms Noble to attend the workplace to review her file notes in relation to the specific allegations made. 8. Prior to Ms Noble gaining access to review her file notes, she was sent a further letter on 28 October 2022 outlining a further five allegations of misconduct … and only given two days to respond to all allegations. 9. During a conversation with management in order to seek an extension for a response the HSU was advised that the matter had been referred to Police for investigation 10. As a result, it was requested that the internal investigation be put on hold until the criminal investigation was completed and to do otherwise could prejudice the outcome of any criminal investigation by compelling Ms Noble to answer questions. 11. Management refused this request and refused an extension of time which led the HSU to lodge a dispute with the Industrial Registrar Matter No. 2022/00325403 which was listed before Commissioner Muir. 12. Ms Noble strenuously denies the allegations against her of any wrongdoing. 13. Based on legal advice, Ms Noble has indicated that she is not in a position answer these allegations until the police investigation is completed. 14. Despite this, the employer chose to terminate Ms Noble's employment on 25 November 2022. 15. HSU considers this termination of employment to be harsh, unjust and unfair." 1. The nine allegations of misconduct detailed in the Respondent's letter of 21 July 2023 are extensive, but may be summarised as: 1. a failure to document every health service intervention or interaction by the Applicant with clients, referred to in the letter as "missing documentation"; 2. inappropriate emails, texts and/comments placed in client notes; 3. concerns relating to clinical practice, privacy and disclosure in relation to a particular client; 4. transportation of a client after hours using own vehicle and acting outside of her scope of duties by arranging medication for the client and delivering it; 5. provision of a cigarette to the sibling of a client during a home visit; 6. conflict of interest and breaching professional boundaries in respect of a particular client; 7. practising outside of her scope of duties and documentation concerns in respect of a particular client; 8. leaving a sexual assault investigation kit in an unsecured location; and 9. practicing outside of her scope of duties and attending police interviews. 1. The letter asserted that the above conduct, if substantiated, could constitute of a breach of various provisions of the NSW Health Code of Conduct PD2015_049; Health Care Records – Documentation and Management (PD2012_069); Conflicts of Interest and Gifts and benefits procedure (MNC-PRO-0012-21) and/or the Health Records and Information Privacy Act 2002 (NSW) inclusive of the Health Privacy Principles. 2. The further five allegations of misconduct detailed in the Respondent's letter of 28 October 2023 may be summarised as: 1. failure to secure sensitive "ChildStory" records and other sensitive material; 2. inappropriate storage of photographs of children; 3. inappropriate storage of sensitive patient medical information; 4. collecting blood samples outside of scope of duties; and 5. failure to securely store pathology records. 1. The letter of 28 October 2022 asserted that the above conduct, if substantiated, could constitute of a breach of various provisions of the NSW Health Code of Conduct PD2015_049; Health Care Records – Documentation and Management (PD2012_069); and/or the Health Records and Information Privacy Act 2002 (NSW) inclusive of the Health Privacy Principles. 2. Both letters sought a response from the Applicant however, she declined to provide any response. 3. The Applicant relied upon two affidavits sworn by her solicitor, Mr Michael Burns, in support of the Notice of Motion. Those affidavits provided additional background facts. In his affidavit of 23 May 2023, which was read without objection, Mr Burns deposed that, inter alia: 1. following receipt of the letter of 28 October 2022, Mr Greg O'Donohue, the Applicant's union representative from the Health Services Union (HSU) had a conversation with Ms Tania Langler, the Respondent's District Human Resources Manager, for the purpose of seeking an extension of time for the Applicant to provide her response. During that conversation Ms Langler informed Mr O'Donohue that the matter had been referred to the Police. Mr O' Donohue then requested that the Respondent put its internal investigation on hold until the Police investigation was completed; 2. the Respondent refused to suspend its internal investigation and the HSU lodged a dispute with the Commission which proceeded on 1 and 2 November 2022; 3. on 2 November 2022, a police search warrant was issued against the Applicant's premises; 4. the search warrant was executed on 3 November 2022 when the Applicant's premises was searched and her property, including her new computer, old laptop and iPad were seized for the purpose of an investigation by the NSW Police; and 5. the property seized on 3 November 2022 has not been returned to the Applicant. 1. Mr Burns annexed a copy of the search warrant to his affidavit of 23 May 2023. Notably it records that the warrant was granted on the basis that the eligible issuing officer found that there were reasonable grounds for the issue of the warrant and, in particular, that the issuing officer had reasonable grounds to believe that there were, on the identified premises, certain things which were connected with the offence of: "Reckless Wounding – Section 35 Crimes Act 1990 Access Restricted Data held in computer – Section 398H, Crimes Act 1900 Corrupt Disclosure/Use of health information by Public Official – Section 68, Health Records & Privacy Act 2002" 1. The crime of reckless wounding carries a maximum penalty of imprisonment for seven years. It seems clear from the evidence before me that this possible offence relates to the allegation that the Applicant collected blood samples outside of her scope of duties. 2. There is no s 398H in the Crimes Act 1990 (NSW). It seems the reference should be to s 308H – Unauthorised Access to or modification of restricted data held in computer. The offence is a summary offence which carries a maximum penalty of imprisonment for two years. I understand from the material before me that the allegations concerning the database 'ChildStory' form the basis of this suspected offence. 3. Section 68 of the Health Records and Information Privacy Act 2002 (NSW) provides as follows: 68 Corrupt Disclosure or Use of Health Information by Public Sector Officials (1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any health information about an individual to which the official has or had access in the exercise of his or her official functions. : Maximum penalty--100 penalty units or imprisonment for 2 years or both. (2) A person must not induce or attempt to induce a public sector official (by way of a bribe or other similar corrupt conduct) to disclose any health information about an individual to which the official has or had access in the exercise of his or her official functions. : Maximum penalty--100 penalty units or imprisonment for 2 years or both. (3) Subsection (1) does not prohibit a public sector official from disclosing any health information if the disclosure is made in accordance with the Public Interest Disclosures Act 1994 . (4) In this section, a reference to a public sector official includes a reference to a person who was formerly a public sector official. 1. It seems that the allegations referred to at [6(3)] and possibly [6(6)] and [6(7)] above, form the foundation for a suspicion that s 68 of the Health Records and Information Privacy Act 2002 (NSW) has been breached. 2. At paragraphs [19] – [21] of his affidavit of 23 May 2023 Mr Burns stated: "19. On 22 May 2023, I spoke with the Applicant who informed me and I verily believe it to be true, that: (a) On 2 February 2023, she spoke with Detective Seargent (sic) Bashford who informed her that the Police Investigation had not been finalised; and (b) On 5 May 2023, she spoke with Mr Drew Hamilton, the Solicitor representing her in relation to the Police Investigation, who advised her that the Police Investigation was now being managed by an Inspector O'Reilly and that it had not been finalised. 20. On 22 May 2023, I spoke with Mr Hamilton who confirmed to me that the Police Investigation had not been finalised. Summary 21. In order to prove that her unfair dismissal was unfair, the Applicant would need to address the allegations in her evidence to be filed in in (sic) support of her application in these proceedings before the Commission. This would potentially expose her significant (sic) prejudice in the Police Investigation." 1. Mr Burns' second affidavit, sworn 21 June 2023, was filed in reply, although it included evidence of matters not previously raised in the Applicant's evidence in chief or in the Respondent's evidence. The first new matter concerned the fact that on 11 July 2022 the Applicant suffered a work-related injury, namely: "Emotional distress manifested as physical symptoms" and notice of that injury had been provided to the Respondent on 2 August 2022. Mr Burns deposed that: "On 31 January 2023, Member Cameron Burge of the Personal Injury Commission (PIC) delivered an oral decision in PIC matter number W7401 of 2022 Sharon Noble v State of New South Wales (Mid North Coast Local Health District). A copy of the transcript of the oral decision of Member Burge is annexed hereto and marked "S-2". 1. The respondent objected to the tender of the transcript of the oral decision of Member Burge on the basis that it was hearsay and irrelevant. Included in the transcript was reference to a report of an independent medical examiner which had set out Ms Noble's account of difficulties she had apparently experienced with her colleagues from late 2021 onwards. Member Burge ultimately concluded that, inter alia: 1. The Applicant suffered a psychological injury in the course of her employment with the Respondent with a deemed date of injury of 11 July 2022. 2. The Applicant's injury was not wholly or predominantly caused by the reasonable actions of the Respondent with respect to discipline and/or performance appraisal. 3. As a result of her injury the Applicant was and remains totally incapacitated for employment. 4. The Respondent is to pay the Applicant weekly compensation. 1. After hearing from the parties I determined to admit the transcript, but to limit the use to be made of it to proof that the Applicant had made a successful claim for workers compensation, in the face of the Respondent raising a defence that the injury was wholly or predominantly caused by the Respondent with respect to discipline and/or performance appraisal, but not as proof of the facts referred to in the transcript or as found by Member Burge. 2. Mr Burns further deposed that the Applicant is yet to receive any weekly payments of compensation in accordance with the orders of the Personal Injury Commission. The reasons for this are unclear, but ultimately are not relevant to the present application. 3. The second new matter referred to in Mr Burn's reply affidavit concerns a complaint made to the Health Care Complaints Commission (HCCC) regarding the Applicant made by the Respondent on 28 November 2022. Mr Burns annexed to his affidavit of 21 June 2023 a copy of a letter dated 20 December 2022 from Samantha King of the HCCC to the Applicant in which Ms King informs the Applicant that the HCCC is conducting an investigation and has issued an interim prohibition order temporarily preventing the Applicant from providing health services to the public. Mr Burns also annexed a copy of an email dated 20 June 2023 from Ms Summer Dow, DLA Piper Lawyers, the solicitor representing the Applicant in relation to the HCCC investigation. That email reads as follows: "Dear Michael, Thanks for your email and voicemails. By way of brief update, the HCCC's investigation is ongoing and the Interim Prohibition Order (IPO) against Sharon has been renewed. The current IPO will expire on 28 July 2023. A copy of the current IPO is attached, for your information. You will see that almost all the allegations made in the July, October and November 2022 letters from the MNCLHD are repeated verbatim in the IPO. We are currently liaising with Sharon's criminal lawyer-and assume you may be as well-as to the status of obtaining Sharon's electronic devices back from NSW Police. We understand the return of those items is imminent, which will be helpful in terms of our, and Sharon's, ability to prepare a comprehensive response to the HCCC. In the meantime, in consultation with Sharon we are in the process of identifying and setting out documents we will request that the HCCC seek to obtain from the MNCLHD, on the basis that material will be exculpatory of Sharon, and is in our view necessary for the HCCC to properly assess the complaints made against her, in circumstances where Sharon does not have such documents in her possession. We expect to have that request to the HCCC well before the expiration of the IPO, with a view to then being able to agree a timeframe for Sharon to provide a written response to the allegations, before the expiration of this IPO. We expect the HCCC will continue to renew the IPO until a comprehensive written response is provided. We also expect the MNCLHD will continue to be reluctant to provide the material requested, as we understand the HCCC has made a series of request, but has not been provided with all documents sought. Please contact me should you wish to discuss. Kind regards Summer Summer Dow Senior Associate" 1. It is convenient to note at this juncture that in her written Outline of Submissions the Applicant had stated that she sought a "managed stay while investigations by the Police and by the Health Care Complaints Commission (HCCC) into her alleged conduct during the course of her employment are ongoing." However, in oral submissions Mr Burns submitted that the stay sought was only to allow further time so that the Police could make a decision regarding its investigation. He submitted that the matter before the HCCC could "run together with this matter", and that the Applicant did not seek a stay to enable the HCCC proceeding to conclude. In light of this concession, I have only considered whether the proceeding should be stayed due to prejudice the Applicant may suffer in the conduct of any criminal proceeding. 2. It is also convenient to note at this juncture that the Applicant did not state in her Outline of Submissions, nor did she lead any direct evidence to the effect that she would be prejudiced if the matter were not stayed due to her inabilty to access exculpatory material from electronic devices seized by the Police. While Mr Burns made relatively faint oral submissions that the Applicant would be so prejudiced, and I infer as much from Ms Dow's letter to Mr Burns, Mr Burns also stated that the lack of access to the devices would impair, but not prevent the Applicant from putting on evidence in support of her claim. In the circumstances I do not consider that the inability of the Applicant to access her electronic devices is a sound basis to stay the proceeding. In any event, as noted by Ms Dow in her email and as I explain in the following paragraph, the devices may soon be returned to the Applicant. 3. Mr Burns' affidavit of 23 May 2023 annexed an email from Mr Drew Hamilton, the solicitor representing the Applicant in respect of the Police investigation, dated 21 June 2023 which reads as follows: "Hi Michael, I can confirm that the Police are yet to formally advise me that the investigation has finalised or been abandoned. I have requested Ms Noble's possessions that were seized under warrant be returned to her and Detective Acting Inspector James Allan is currently marshalling the seized items (from various Police Stations) to be returned to her. I hope this information assists. Kind regards, Drew Hamilton Partner" 1. Lastly, Mr Burns deposed that he is instructed by the Applicant that she gives an undertaking to the Respondent and to the Commission that, if the stay is granted and she is ultimately successful in her substantive application, the Applicant would not seek backpay while the proposed stay is in operation commencing from the date the notice of motion was filed on 23 May 2023. Such undertaking is directed toward ameliorating prejudice the Respondent may suffer if a stay were to be granted, noting that pursuant to s 89(3) of the Industrial Relations Act, if the Commission were to order re-instatement or reemployment, it may order the Respondent to pay to the Applicant an amount stated in the order that does not exceed the remuneration the Applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. 2. The Respondent relied upon an affidavit sworn by its solicitor, Bradley Henry Swebeck on 8 June 2023, which was read without objection. It provided a more detailed version of the background facts I have already set out above. In particular Mr Swebeck gave the following evidence: 8. The 28 October 2022 letter contained details of allegations regarding the inappropriate printing and storage of records obtained from the JIRT [Joint Investigation Response Team] tri-agency database "ChildStory". The ChildStory database contains sensitive information regarding child victims of abuse and potential persons of interest. ChildStory records must not be printed or stored in physical hard copy. 9. The Respondent's investigation into the inappropriate filing of medical records and JIRT records resulted in notification to the NSW Police in late October 2022 that records on the ChildStory database may have been compromised. The Respondent made this notification given the highly sensitive nature of the documents and their content and because the NSW Police are also members of JIRT and add information to ChildStory. 1. Mr Sweback also detailed the procedural history of these proceedings which may be summarised as follows: 1. the Respondent terminated the Applicant's employment by letter dated 25 November 2022, which letter did not contain any reference to investigations by NSW Police; 2. the Applicant filed her Unfair Dismissal Application on 15 December 2022; 3. on or around 19 December 2022 the Unfair Dismissal Application was listed for conciliation on 12 January 2023 before me; 4. on or around 6 January 2023, the Respondent, at the request of the HSU, agreed to adjourn the Unfair Dismissal Application for three months in circumstances where it understood the NSW Police were conducting an investigation into the Applicant; 5. on 9 January 2023, by consent of the parties, I relisted the matter for conciliation on 16 March 2023; 6. on 8 March 2023, the Respondent filed its Employer Response to the Unfair Dismissal Application; 7. on 16 March 2023, the parties attended a conciliation conference before me, at the conclusion of which I listed the matter for report back and further conciliation on 13 April 2023; 8. on 13 April 2023 I listed the matter for report back on 20 April 2023; 9. on 20 April 2023 I made orders, over the Applicant's objection, to prepare the matter for hearing which required, inter alia, the Applicant to file and serve all written statements to be relied on for each witness, an outline of submissions and any other relevant documentation by 4:00pm on 25 May 2023; 10. on 23 May 2023 the Applicant filed her Notice of Motion to stay the proceeding. 1. From the above account it may be observed that the proceedings have now been on foot for over six months, however the Applicant is yet to file any material in support of her claim. 2. It is not in dispute that the Applicant has not been charged with any criminal offence and there are no current criminal proceedings against the Applicant of any kind, however the police investigation is ongoing. Legal Principles 1. The Commission can stay the proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) which provides: Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day. 1. The Applicant submits that a stay should be granted as: "Fairness and justice dictates that the Applicant not be prejudiced by the evidence or outcome in these unfair dismissal proceedings influencing a decision by the Police to charge her …" 1. While Mr Burns did not expressly submit that the prosecution of these proceedings would abrogate the Applicant's "right to silence", he did explain orally that the stay was sought to "protect the Applicant from comprising any criminal proceeding" and in the written Outline of Submissions, "so that she is not prejudiced in her defence to charges arising from the Police Investigation…". 2. The question of whether civil proceedings should be stayed due to pending or anticipated criminal proceedings which relate to the same subject matter, arises not infrequently. This is because there is a tension between a party's so-called right to silence (more accurately, privilege against self-incrimination) and the opposing civil litigant's interests in having the civil matter heard as expeditiously as possible. Normally of course, it is a defendant/respondent who seeks to have proceedings stayed. Nevertheless, stays have been granted in this Commission at the request of applicants: see Semaan v Secretary, Department of Education [2023] NSWIRComm 1040 and Dadley v Fire and Rescue NSW [2020] NSWIRComm 1084. See also Gregg v Fairfax Media Publications Pty Ltd [2017] FCA 440 where defamation proceedings were stayed on the application of the applicant until the determination of two criminal charges brought against him which formed one of the principal bases of the substantive defence of justification pleaded by the respondents. 3. The cases clearly establish, as does the wording of s 67 of the Civil Procedure Act, that the granting of a stay of civil proceedings due to the existence, or threat, of parallel criminal proceedings, is discretionary and there is no automatic entitlement to a stay. As Gyles J said in Baker v Commissioner of Federal Police [2000] FCA 1339; (2000) 104 FCR 359 at [27]: 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. 1. The guidelines set out by Wootten J in McMahon v Gould (1982) 7 ACLR 202 at 206 are often cited when a Court is asked to stay civil proceedings pending the resolution of criminal charges. Those guidelines were cited with approval by Commissioner Webster in Semaan and in Dadley. 2. Since McMahon v Gould however, the High Court has given a number of decisions which have confirmed the primary of criminal proceedings in the justice system, see eg: Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 (Zhao); X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92; Reid v Howard (1995) 184 CLR 1. For instance, Hayne and Bell JJ said this in X7 at [104] – [105] (footnotes omitted): 104. As four members of this Court said in Reid v Howard, "[t]he privilege [against self-incrimination], which has been described as a 'fundamental ... bulwark of liberty', is not simply a rule of evidence, but a basic and substantive common law right". The evolution of and rationale for the privilege against self-incrimination have been described in various ways. No single explanation has achieved universal acceptance, whether in judicial decisions or academic writings. But neither the existence nor the content of those controversies can be understood as denying that the privilege is now regarded as being "a basic and substantive common law right", and not just a rule of evidence. That is, it is not a privilege which is concerned only with the use to which answers given may be put at, or in connection with, a trial. It is a privilege which permits the refusal to make an answer regardless of whether the answer is admissible as testimonial evidence. The accusatorial process of criminal justice and the privilege against self-incrimination both reflect and assume the proposition that an accused person need never make any answer to any allegation of wrong-doing. 105. The notion of an accused person's "right to silence" encompasses more than the rights that the accused has at trial. It includes the rights (more accurately described as privileges) of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of the trial. 1. Consequently, as Moshinsky J observed in Impiombato v BHP Group Limited [2020] FCA 350; 143 ACSR 301 (Impiombato) at [123] the guidelines set out by Wootten J in McMahon v Gould, need to be read in light of subsequent cases, which have expressly or impliedly indicated that McMahon v Gould gave too little to weight to the practical difficulties confronting a person facing both criminal and civil proceedings: see Goreng Goreng v Jennaway [2007] FCA 2083; 164 FCR 567 at [23]. 2. Subsequent relevant cases include the High Court decisions listed at [37] above and Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 (CFMEU v ACCC); Ransley v Commissioner of Taxation [2016] FCA 778 (Ransley); Obeid v Commissioner of Taxation [2017] FCA 1135 (Obeid); Re Plutus Payroll Australia Pty Ltd [2017] NSWSC 1854 (Re Plutus Payroll); McLachlan v Browne (No 9) [2019] NSWSC 10 (McLachlan v Browne); and Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 (Websyte). 3. Based on the above authorities Moshinsky J summarised the applicable principles as follows: 125. First, courts have the power to control their proceedings and to order a stay in an appropriate case; it will be appropriate to do so where the interests of justice require such an order: Zhao at [36] per French CJ, Hayne, Kiefel, Bell and Keane JJ; CFMEU v ACCC at [22] per Dowsett, Tracey and Bromberg JJ. 126. Secondly, a plaintiff is prima facie entitled to have his, her or its civil action tried in the ordinary course and a stay therefore requires justification on proper grounds (with the applicant for a stay bearing the burden of demonstrating proper grounds): see Zhao at [39]; McMahon v Gould at 206. 127. Thirdly, 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; a stay of the civil proceeding may be warranted if it is apparent that the accused is at risk of prejudice in the conduct of his, her or its defence in the criminal trial: see Zhao at [35]; CFMEU v ACCC at [22]; see also Corporations Act, s 1331. The risk of prejudice must be real: see CFMEU v ACCC at [22]; Ransley at [22] per Jagot J. As to possible prejudice to an accused, the following have been recognised as relevant factors: (a) prejudice to the accused's right to silence or privilege against self-incrimination: see Zhao at [42]-[47]; CFEMU ACCC at [23]; Ransley at [24] – [30]; Obeid at [4]; and (b) the possibility of publicity that might reach and influence jurors: see CFMEU v ACCC at [44]-[46]. 128. It may not be necessary for the applicant for the stay to state the specific matters of prejudice before a stay could be contemplated. As the High Court said in Zhao at [43], "to require the second respondent to do so would be to make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid". 129. A number of recent decisions have emphasised that the possibility of protective orders being made (such as an order made under s 128 of the Evidence Act 1995 (Cth) or a non-publication or suppression order) is not an adequate protection against the risk of prejudice to the accused: see Zhao at [44]-[46]; CFMEU v ACCC at [24]-[25]; Ransley at [29]-[30]; Re Plutus Payroll at [38] and [42] per Brereton J; Websyte at [121]. 130. Fourthly, relevant prejudice to a party in the civil proceeding may arise from the existence of the criminal proceeding even in circumstances where there is not a strict identity between the applicant for the stay of the civil proceeding and the criminal accused: see Ransley at [15]; Obeid at [7]; Re Plutus Payroll at [33], [39], [41]-[43]. There may, for example, be relevant prejudice where the criminal accused, although not a party to the civil proceeding, would be a lay witness in that proceeding. In such circumstances, the criminal accused's invocation of the privilege against self-incrimination and the right to silence may deprive a party to the civil proceeding of assistance or evidence that is critical or very important to its claim or defence. 131. Fifthly, prejudice to an accused who is not a party to the civil proceeding, or against whom relevant allegations are not made in the civil proceeding, may be a relevant consideration: see CFMEU v ACCC at [28]-[49] (although this argument failed on the facts in that case). … 133. Sixthly, the risk of prejudice identified by an applicant for a stay must be weighed against the prejudice that a stay of the civil proceeding would occasion: see Zhao at [47], [50]; CFMEU v ACCC at [22]. 134. Seventhly, the principles relevant to the exercise of the discretion to grant a stay are not different in the case of a proceeding brought by a regulator, from those that apply in the case of a proceeding brought by a private plaintiff: CFMEU v ACCC at [60]-[62]. 135. Eighthly, each case must be judged on its own merits; the matters that might individually, or in combination, be relevant to the exercise of the discretion are not rigid or closed; the factors identified in the authorities are not a prescriptive or an exhaustive statement of all of the considerations, or the weight to be attached to them: see Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504 … at [51] per Middleton J (application for leave to appeal dismissed: CFMEU v ACCC). 136. In addition to the above paragraphs, which are drawn from ASIC v ANZ [Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (2019) 138 ACSR 42], I note that in McMahon v Gould, Wooten J stated at 207 that in an appropriate case, the proceeding may be allowed to proceed to a certain stage, eg setting down for trial, and then stayed (citing Beecee Group Ltd v Barton (1980) 5 ACLR 33). See also National Australia Bank Limited v Human Group Pty Ltd [2019] NSWSC 1404 at [39]. This possibility was referred to, but rejected on the facts, in ASIC v ANZ at [99]. 1. While the above principles relate to the approach courts will take when considering whether civil proceedings should be stayed pending the determination of criminal proceeding relating to the same subject matter, there is nothing in the Industrial Relations Act which would suggest that I should depart from the approach outlined by Moshinsky J in Impiombato. On the contrary, as Commissioner Webster noted in Dadley at [28] and Semaan at [17], s 162(2)(a) of the Industrial Relations Act requires the Commission to act as quickly as is practicable, such that an applicant for a stay will need to demonstrate a good reason to have the matter proceed otherwise than in the 'normal course'; s 3(a) requires the Commission to determine the proceeding in a manner what is "fair and just" and s 163(1)(c) requires the Commission to act in accordance with equity, good conscience, and the substantial merits of the case, albeit without regard to technicalities or legal forms. Section 146 requires the Commission to take into account the public interest in the exercise of its functions. I also note s 162(2)(g) provides that the Commission may adjourn proceedings to any time and place. All of these provisions support the approach outlined by Moshinsky J in Impiombato. 2. The Respondent in its Outline of Submissions relied on a number of decisions which require some comment. 3. The Respondent relied on the decision of Watson SDP in Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man Print S8287 (AIRC, Watson SDP, 19 July 2000). The applicant in that matter sought an indefinite stay pending the outcome of criminal proceedings relating to essentially the same allegations that formed the basis for the reasons for the applicant's termination, namely allegations of theft. The learned Senior Deputy President observed at [33] that: Injustice to a defendant in the criminal proceedings is a relevant consideration in considering competing interests of the parties, but it must be a real and not merely notional danger. 1. During an exchange with Watson SDP the applicant's representative explained that: "The theft proceeding will, in essence will be that we don't deny that we took some money, however our state of mine was crucial to whether we were criminal or not, engaged in criminal behaviour or not." 2. Watson SDP then concluded at [35]: I am not satisfied that a very strong case has been established for these proceedings to be adjourned or stayed until the determination of the criminal proceedings, or for revoking the directions issued on 28 May 2000. I am not satisfied that a case has been made out to prevent determination of the present matter in the normal course. On what has been put to me, I am not satisfied that there is a real danger of injustice to the applicant if the present matter proceeds to arbitration in the normal course. To paraphrase the conclusions of Young CJ in Philippine Airlines, if the allegations of conduct substantiating a valid reason for termination are groundless, no injustice would accrue to the applicant in respect of the criminal proceedings if he were to say so now. The Commission, in determining whether the termination was harsh, unjust or unreasonable, will be required to make findings, on the balance of probabilities, as to whether or not conduct occurred which constituted a valid reason for termination. I have not been satisfied as to how such a finding, or the giving of evidence in relation to it, would create an injustice for the applicant in defending criminal charges to be determined beyond reasonable doubt. 1. However, with respect to the Senior Deputy President, it seems to me that his Honour did not properly consider the possibility that in pursuing the unfair dismissal proceedings ahead of the criminal prosecution the applicant may have had to disclose information that he could not be compelled to disclose in criminal proceedings; and that disclosures, voluntary or otherwise in the proceedings may influence witnesses in the criminal proceedings by alerting them to matters of which they were not otherwise aware. I do not consider the fact that the proceedings before the Australia Industrial Relations Commission were to be determined to a different evidential standard than the criminal proceedings has any bearing on whether the interests of justice required the civil proceedings to be stayed. This will be so whenever a court or tribunal is asked to stay a civil proceeding pending the resolution of a parallel criminal proceeding. Unsurprising this has not been identified as a relevant factor in any of the authorities I have referred to above. 2. The Respondent noted that Sanford was followed by Gooley DP in Kevin Cooper v Australian Taxation Office [2014] FWC 2931. In that matter the applicant, following several adjournments, sought a further adjournment in circumstances where he indicated he may appeal criminal proceedings, where the convictions made in those proceedings were the reason for the applicant's dismissal. Gooley DP said the following at [14] –[18]: [14] Mr Cooper gave evidence in his criminal matter and was cross examined. There will be no prejudice to Mr Cooper is he gives evidence in his unfair dismissal application. [15] The matter before the Commission is not the same as the matter before the Court. The Commission does not have to decide if Mr Cooper is guilty of any criminal offence. The Commission must decide if the termination of Mr Cooper's employment was harsh, unjust or unreasonable. [16] Mr Fitzpatrick submitted that because the ATO relied on Mr Cooper's conviction to justify the termination of his employment, the question of whether Mr Cooper's conviction is overturned is relevant and that should be determined prior to the hearing of his unfair dismissal application. [17] The ATO submitted that its defence of this application can proceed notwithstanding that Mr Cooper may appeal his conviction. [18] In all the circumstances, I do not consider that a further adjournment is warranted. Mr Cooper had not appealed his conviction and he may not. If he does, his conviction may stand or fall. It is not clear how long that will take or when a decision will be handed down. The success or otherwise of any appeal if filed will not determine the outcome of unfair dismissal application. The ATO is entitled to have this matter heard and determined. 1. Again, the fact that the matter before the Commission "is not the same as the matter before the Court" is not a factor that will inform whether the proceedings should be stayed. Self-evidently civil proceedings will not be the same as criminal proceedings. The relevant question is whether there is a risk of prejudice in the conduct of the litigant's defence in the criminal trial. This will turn upon whether there is a sufficient factual overlap in the two proceedings. 2. The fact that Mr Cooper had already given evidence in the criminal proceeding at first instance would be a significant factor against the granting of a further adjournment of the unfair dismissal proceeding. However, the dismissal in that case seems to have been, at least partly, based on Mr Cooper's conviction. While it is correct that the outcome of the appeal in Cooper would not necessarily determine the outcome of the unfair dismissal application, it is difficult to see how it would not be a highly relevant matter in circumstances where the employer relied on the convictions to dismiss the employee. Commissioner Webster found in Dadley at [44], correctly with respect, that the outcome of a possible appeal from criminal convictions, which had founded the decision of the employer to dismiss the employee: "…will have a direct and significant impact upon this matter and this is a relevant matter to be considered in the context of the stay application." 1. In the present matter the dismissal of the Applicant was not predicated on any criminal conviction or even charges being laid against the Applicant. 2. Lastly, the Respondent relied on the decision of Levy SC DCJ in Levis v Stavropoulos [2020] NSWDC 296. In that matter the plaintiff had brought a claim for damages against the defendant for an alleged assault and battery on the Greek island of Mykonos. The defendant sought a stay pursuant to s 67 of the Civil Procedure Act for 12 months, or alternatively, that the proceedings be stayed until asserted parallel and related criminal proceedings involving the defendant, in Greece have concluded. As in this case, the matter was still under investigation by police and no charges had been laid. 3. It is useful to set out the totality of Levy SC DCJ's reasons for rejecting the application: 16. The defendant's claim of the existence of parallel or related criminal proceedings requires scrutiny as the claimed parallel proceedings are in the form of an investigation where, about four years after the event in question, there is no current charge to be answered by the defendant. Whilst it is true that these civil proceedings involve allegations of assault by the defendant, and whilst I am satisfied that the plaintiff has made allegations to the same effect to investigating police in Greece over those alleged events, I am far from satisfied that there are relevantly active parallel and related criminal proceedings on foot in Greece concerning those events. 17. I have come to that view in light of the content of the expert report from Mr Ninopoulos. Recognising that there are differences in the inquisitorial judicial system in Greece and the adversarial system in this jurisdiction, it appears that no final decision has yet been made by the authorities in Greece as to whether or not to proceed with charges against the defendant. Consequently a possible trial date remains speculative and indeterminate. … 26. In my view, the process described by Mr Ninopoulos has the hallmarks of indeterminacy that will serve to prejudice the plaintiff's right to a timely trial of her case in this Court. In such circumstances, the defendant's application for a stay requires that the dictates of justice be weighed: s 58(2) of the Civil Procedure Act 2005. 27. Counterbalanced against the fact of significant delays affecting the determination of whether the defendant will be required to face a trial in Greece on the alleged facts which base the plaintiff's claim against him, is the plaintiff's otherwise unfettered right to access justice in this jurisdiction. She is entitled to have her case heard with due expedition, especially where there have been no procedural defaults on her part, unlike, for example, the defendant's considerable delay in filing a defence, and only attending to that requirement at the eleventh hour, which suggests a delaying tactic. 28. In that context, I consider it to be contrary to the dictates of justice for the plaintiff to have her case delayed on the indeterminate grounds proposed by the defendant. 29. To justify the stay sought, the defendant must show that there is a real and not merely a notional risk that the continuation of the plaintiff's civil litigation in this jurisdiction could lead to a potential miscarriage of justice in the criminal proceedings in Greece. In that regard, the defendant has the burden of showing that a potential outcome of that nature outweighs the plaintiff's ordinary right to have her claim heard without delay: Gipsy Fire v Truth Newspapers Pty Ltd (1987) NSWLR 382, at pp 386 – 387. 30. In that decision, five relevant elements of potential prejudice were identified as facing a defendant in connection with parallel civil and criminal proceedings, as follows. 31. First, there is the prospect of a premature disclosure of the defendant's case in the criminal prosecution. In my view, that concern is adequately met by the defendant having already denied, on oath, in his sworn defence, the factual correctness of the foundations of the plaintiff's case. The defendant argued that he could be exposed to a potential prejudice of this kind by possible nuances that might emerge from a skilful cross-examination of him in the civil proceedings, should he choose to give evidence. I find that argument unpersuasive. In the face of the defendant's factual denial, whether in the civil or criminal proceedings, it seems unlikely he would give inconsistent answers to that which he has already sworn to, unless he concedes that he swore incorrectly, which seems unlikely. In those circumstances, the prevailing dictates of justice suggest that the potential prejudice to the defendant from exposure of incorrect evidence is unlikely to arise. 32. Secondly, there may be the possibility of interference with opposing witnesses at a trial. In my view, this is speculative. I am not persuaded that this is a relevant factor in this case, where the defendant has not identified the testimony of any such witnesses, and where the substance of the plaintiff's case against the defendant is that the alleged assault took place at a time when no-one but the plaintiff and the defendant were present. 33. Thirdly, there is a possible prejudicial effect from adverse publicity being given to the civil litigation which might influence jurors in a criminal trial. That factor has no relevance to this case, where the prosecution, if it ever takes place, would occur in Greece, and not in this jurisdiction. 34. Fourthly, there is the suggestion that requiring the civil case to proceed before the criminal proceedings will have a negative impact on the defendant's right to silence in a criminal prosecution. In my view, the evidence of Mr Ninopoulos does not go so far as to support a concern along those lines. The evidence of Mr Ninopoulos does not suggest the existence of a substantive law in Greece providing a right to silence. I am therefore insufficiently informed on that subject. …. 35. Finally, and separate to the above considerations, is Mr Ninopoulos' statement as follows: "In the Greek Legal System, there is no equivalent crime to an assault as defined in the English Legal System." That apparent jurisdictional disparity suggests that, apart from the existence of a common factual basis between these proceedings and those which have been investigated by the police in Greece, there is an absence of a parallel character or concurrency between the two sets of proceedings in the different jurisdictions. 36. As a possible trial date in Greece seems indeterminate, I consider that on balancing the respective procedural rights and entitlements, the defendant's application for a stay should be refused. A stay leaves the case in a procedural limbo where no procedural steps may be taken. That would be unduly prejudicial to the plaintiff. I had considered placing the matter in the Not Ready list for a relatively short time, but on reflection, I consider that case management would be a more appropriate measure. It therefore remains to consider appropriate case management orders. 1. His Honour's reliance on Gipsy Fire v Truth Newspapers Pty Ltd, rather than more recent decisions that have acknowledged the primacy of the criminal proceedings in the justice system and the practical difficulties confronting a person facing both criminal and civil proceedings, perhaps explains why his Honour was of the view that the potential prejudice to the defendant from exposure of incorrect evidence was "unlikely to arise" giving his denial of the allegations in his sworn defence. 2. Relevantly for present purposes, Hunt J in Gipsy Fire v Truth Newspapers Pty Ltd stated, at 387, that (with emphasis added): If, therefore, a defendant in civil … litigation has been charged with a criminal offence arising out of the same subject matter, or if there is a real prospect that he will be so charged, it is open to him to seek a stay of the civil litigation until the conclusion of the criminal prosecution if he is able to show that his obligation in that litigation to disclose his case in answer to the criminal charge might lead to a potential miscarriage of justice in the prosecution. Such an application must obviously be made before his case has been disclosed in the civil litigation. The Parties' Submissions 1. The gravamen of the Applicant's submissions are summarised in paragraphs [32] and [33] above. The Applicant also submitted, by reference to the decision in the PIC proceeding, that the Applicant has "a prima facie case in these proceedings if she is given the chance to prosecute her application" and "the Applicant deserves to be able to proceed with her unfair dismissal application to prove that she did not engage in the alleged misconduct." 2. Such submission is misplaced – there is no suggestion that the proceedings will be dismissed or not permitted to proceed. Ultimately any decision not to proceed with the case is a matter for the Applicant. What I have determine is whether the dictates of justice require the proceeding to be stayed because to do otherwise will give rise to real prejudice in any criminal proceedings and such prejudice is not outweighed by the prejudice such delay will cause to the Respondent. 3. When I asked Mr Burns to identify for me the 'real' injustice as opposed to a notional injustice, particularly in circumstances where no charges have been laid he responded by submitting, as he had in his written submissions, that the possibility of her being charged "puts her in a more precarious position than if she had been charged and criminal proceedings were on foot" because she simply does not know what will be put against her. 4. The Applicant also submitted in her written Outline of Submissions: 23. … There is no prejudice to the Respondent by awarding the stay. The Applicant has given an undertaking not to seek backpay while a stay is in operation commencing from the date the notice of motion was filed on 23 May 2023, should her substantive Application be successful. Even if the Applicant has received workers compensation payments, which she has not to date, if the Applicant was to be awarded backpay subject to a deduction of workers' compensation payments, she would arguably be entitled to top-up pay for the difference between the statutory workers compensation payment and her ordinary pay, so the Applicant's undertaking is of significant value to the Respondent. 24.The Applicant's interests and the prejudice to her are obvious. … If she is denied the stay and is unable to proceed in this Commission while facing the Police Investigation … she will be denied the remedy she may be entitled to having validly filed her Application. The Commission should not put the Applicant in this position. 25. It is not in the public interest for an employer to make allegations about an employee's conduct, refer that conduct to the Police and the HCCC, dismiss the employee and then deny the employee the opportunity to challenge the dismissal without being able to prejudice herself against thee potentially life changing Police and HCCC inquiries, particularly in circumstances where there is a decision of the Personal Injury Commission that has made finding of unreasonableness by the Respondent's conduct towards the Applicant in circumstances relevant to her Application. 1. The Respondent's submissions may be summarised as follows: 1. The Applicant has not adduced evidence of parallel criminal proceedings – it is not in dispute that the Applicant has not been charged. "The Applicant has established no more than a notional risk that the continuation of the proceedings would cause some form of injustice in respect of speculative criminal proceedings. This is an insufficient basis to justify the requested order to stay the proceedings and for the IRC to depart from its obligations under the [Industrial Relations] Act and the Civil Procedure Act to conduct the proceedings efficiently. 2. The Respondent does not accept that the issues to be determined in the unfair dismissal proceedings are sufficiently related to issues being investigated by NSW Police. Nevertheless, the Respondent: "..acknowledges that one of the 14 allegations contained in the 21 July and 28 October 2022 letters related to allegations that the Applicant breached the NSW Health Code of Conduct PD2015_49 and Health Care Records – Document and Management PD2012 _069 Police, by inappropriately printing at least 15 records from the ChildStory database including database records relating to three separate children, client lists, and case meeting notes/records. To the extent that the Commission may be required to make a finding of fact [in] relation to this allegation, such a finding will be finding made to the civil standard, on the balance of probabilities. The Respondent does not consider that any such finding would prejudice the Applicant should she be required to defend a criminal charge to be determined beyond reasonable doubt." 1. There is a public interest in the IRC discharging is statutory duties in seeking to hear the proceedings quickly, cheaply and efficiently. The Applicant commenced these proceedings and has an obligation to prosecute them with due despatch. The proposed indefinite stay would result in an unreasonable delay to the effective case management and hearing of the proceeding. 2. The Respondent is a public agency and the manner in which it is perceived is of public interest. Its perception as a trusted government institution would disproportionately suffer in circumstances where it cannot advance the resolution of proceedings in a way that is just, quick and cost efficient. 3. The indeterminate nature of the proposed stay will impact the quality to the evidence that witnesses may be able to give in the proceeding and will consequently impact the ability of the IRC to conduct the proceedings in a fair manner that is also in the public interest. As Commissioner Webster acknowledged in Dadley at [41], "It is generally desirable that witnesses provide their evidence as proximate to the relevant events they are deposing to so that the passage of time does not erode their memory and the quality of their evidence." This matter is distinguishable from Dadley where contemporaneous versions of events had already been captured through the criminal trial process. In this matter the Respondent has not taken statements from relevant witnesses, pending receipt of the material comprising the Applicant's case. The Respondent's solicitor gave evidence from the Bar table that at least one important witness has left the Respondent's employ. Consideration 1. It is important that I reiterate at the outset that this application is not about whether these proceedings continue or not. A denial of a stay does not mean that these proceedings are at an end: the Applicant may still choose to give up her right to silence or otherwise waive any privilege she may have and accept any disadvantage that may flow from doing so and continue to prosecute her claim. What I have to decide is whether, if she were to do this, she is at real risk of prejudice in the conduct of her defence in any criminal trial, and whether that prejudice, in all the circumstances, outweighs any prejudice that will be caused to the Respondent – and to other users of the Commission – by the ensuing delay. 2. For the reasons set out in [12] to [16] above and in light of the evidence and submissions outlined at [27] and [59(2)] above, I am satisfied that there is sufficient factual overlap between the potential criminal charges to be laid against the Applicant and the allegations of misconduct which are the focus of this proceeding. The issues to be litigated in any criminal proceedings are sufficiently related to the issues to be determined in this unfair dismissal proceeding to give rise to a risk of prejudice in the conduct of any criminal proceedings. Such risk includes prejudice to the Applicant's right to silence or privilege against self-incrimination and the right to ensure that witnesses in the criminal proceedings are not improperly influenced by matters disclosed in the Applicant's unfair dismissal case. Given the gravity of the potential charges and the risk they pose to the Applicant's liberty, the protection of the Applicant's "basic and substantive common law rights" in respect of any criminal proceedings must be given significant weight and respect. 3. I am also mindful of the High Court's caution in Zhao at [43] that to require the Applicant to state the specific matters of prejudice "would be to make the risk of prejudice a reality be requiring [her] to reveal information about [her] defence, the very situation which an order for a stay seeks to avoid." 4. Nevertheless, the risk of prejudice must be real. The fact that charges have not yet been laid raises doubt as to whether the risk is sufficiently 'real'. The authorities have confirmed that a stay may be granted even where charges have not been laid (see eg Hayne and Bell JJ in X7 at [105]), however, in the words of Hunt J in Gipsy Fire v Truth Newspapers Pty Ltd there must be a "real prospect" that the applicant for the stay will be charged. 5. The Police were first notified of the matter back in late October, early November 2022. The Applicant's devices were seized by Police back in November 2022, over eight months ago. All that is currently known in respect of the police investigation is that the Police have not formally advised the Applicant (or the Respondent) that the investigation has been finalised or been abandoned. At present, it could be said that any criminal trial, like that in Levis v Stavropoulos, "remains speculative and indeterminate". 6. However, in Levis v Stavropoulos over four years had passed since the alleged offence. Significant delays had affected the determination of whether the defendant would be required to face a trial in Greece on the alleged facts which based the plaintiff's claim against him. In those circumstances, the learned judge considered that the plaintiff's right to an expeditious trial outweighed the potential prejudice the defendant might face in conducting parallel civil and criminal proceedings, in circumstances where the evidence did not establish whether the defendant had a right to silence in Greece. 7. In the present matter, while the delay is regrettable, it is, relative to Levis v Stavropoulos, comparatively short. In circumstances where the evidence establishes that a police investigation has not concluded and has only been on foot for some eight months, I find there remains a 'real prospect' that the Applicant will be charged. I hasten to add however, that with each passing day that prospect, in the absence of contrary evidence, is diminishing. 8. For completeness, I reject the Respondent's submission that as the Commission will be making findings to the civil standard of proof any such finding will not prejudice the Applicant should she be required to defend a criminal charge, which will be determined beyond reasonable doubt. To the extent decisions of the Fair Work Commission have suggested this is a relevant consideration, I disagree with those decisions. As I have already stated, the different standards of proof are always in play whenever there are parallel civil and criminal proceedings. Such submission ignores the fundamental principle that an accused person need never make any answer to any allegation of wrong-doing. 9. In circumstances where I consider the Applicant has established that she will be prejudiced if I do not grant a stay, I must weigh that prejudice against the prejudice that a stay of the proceeding would occasion to the Respondent. 10. I accept that the Respondent is entitled to have this proceeding dealt with quickly, cheaply and efficiently. I accept that the indeterminate nature of the proposed stay and the ongoing delay will adversely impact the quality of the evidence that witnesses may be able to give in the proceeding and will consequently impact the ability of the Commission to conduct the proceedings in a fair manner that is also in the public interest. This concern is particularly acute where the Applicant provided no response to the allegations while they were being investigated by the Respondent, so that the Respondent remains unclear as to exactly what evidence it may need to garner and there has already been a considerable delay in the conduct of the proceeding. 11. These matters cause me considerable concern in circumstances where charges have not yet been laid against the Applicant. Such was my concern that I gave some thought to requiring the Applicant to file and serve her evidence and submissions, but to make an interim order pursuant to s 164A of the Industrial Relations Act preventing disclosure of the material to anyone other than the Respondent's solicitors and the Director – Human Resources of the Respondent. Allowing proceedings to proceed to a certain stage was an approach discussed or taken in the cases referred to by Moshinsky J in Impiombato at [136]. While this is an approach that I might yet countenance in this proceeding, I am mindful of the High Court's caution in Zhao at [44] (omitting footnotes): The Commissioner suggests that protective orders could be made, which might maintain the confidentiality of evidence, and that evidence could be given in closed court. In the latter regard, the open court principle, to which the law adheres, now finds expression in s 28 of the Open Courts Act 2013 (Vic). The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances. Closing the court so that the Commissioner might progress forfeiture proceedings and receive the second respondent's evidence does not qualify as a proper reason for departing from the principle. 1. The application of the principles of open justice in this Commission was recently confirmed by the Full Bench in Secretary of the Department of Education v X [2023] NSWIRComm 1061. 2. On balance, I have determined that the interests of justice lie in not granting a stay, either in the terms sought in the motion or for a more limited period as suggested by the solicitor for the Applicant orally. The uncertainty as to when any criminal proceedings might be finalised combined with the deterioration in the quality of evidence with every day that passes, tells against a stay being granted. However, as I am satisfied that there remains a real prospect of the Applicant being charged and that if she is charged, that there is a real risk of prejudice to the Applicant if she is required to disclose her case in this proceeding, a further adjournment is justified. I propose to vacate the current directions regarding the filing and service of evidence and submissions and, pursuant to s 162(2)(g), to adjourn the proceeding to 10 August 2023. Before that date either party may file, if they consider they have good grounds to do so (which really goes without saying), a Notice of Motion seeking orders in respect of the ongoing conduct of the proceeding. If no Notice of Motion is filed, I propose to make orders on 10 August 2023 requiring the filing and service of evidence and submissions. 3. There are two final matters I need to address. First, in circumstances where I have not granted a stay per se, the Applicant's undertaking in respect of back pay may be regarded as falling away, although it could also perhaps be argued that the effect of my orders constitutes a de facto stay. In any event, the ongoing delay in resolving the proceeding does have the potential to prejudice the Respondent in respect of a claim for backpay in the event in the Applicant is ultimately successful in her claim. However, if a claim for back pay is made, the Respondent may well argue that it should not have to pay back pay given all the circumstances. This is an argument for another day. 4. The other matter concerns a possible inconsistency between the Applicant asserting prejudice in respect of any potential criminal proceeding and her giving evidence to the PIC and her apparent willingness to provide a response to the HCCC. It is possible that the giving of evidence in the PIC proceeding and the giving of a response to the HCCC could operate as a waiver of her privilege against self-incrimination. This was not submitted by the Respondent and while I raised this possibility during submissions, it was not argued before me. In the circumstances, I have not considered whether the Applicant has waived her privilege, but this may be a matter that will need to be considered if any subsequent application for a stay or further adjournment is sought. Orders 1. I make the following orders: 1. Orders 1, 2 and 3 made on 20 April 2023, being orders in relation to the filing of evidence and submissions, are vacated. 2. The Applicant's Notice of Motion is otherwise dismissed. 3. The proceedings are listed for directions on 10 August 2023 at 10.00am. 4. The parties may apply to have the matter relisted prior to 10 August 2023. ********** Amendments 04 July 2023 - Minor correction at paragraph [23]: A capital "I' at the beginning of the paragraph. 19 July 2023 - Typographical errors: [26] First sentence "… and she is ultimately successful in her substantive application…." [60] Second sentence "or otherwise waive any privilege …." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2023