ASX Perpetual Registrars Ltd v Golubovic [2003] NSWSC 1157

New South Wales Supreme Court

CITATION : ASX Perpetual Registrars Ltd v Golubovic [2003] NSWSC 1157 HEARING DATE(S) : 2 December 2003 JUDGMENT DATE : 2 December 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Stay of civil proceedings because pendency of criminal investigation refused.

CATCHWORDS : CRIMINAL LAW [102] - General matters - Stay of civil proceedings pending criminal proceedings - Generally - Right to silence - Substantial prejudice. McMahon v Gould (1982) 7 ACLR 202 CASES CITED : Phillipine Airlines v Goldair (Australia) Pty Ltd [1990] VR 385 Sogelease v Griffin [2002] NSWSC 1099 PARTIES : ASX Perpetual Registrars Limited (P) John Frank Golubovic FILE NUMBER(S) : SC 4923/03 COUNSEL : C D Freeman (P) M K Rollinson (D) SOLICITORS : Henry Davis York (P) B J Murphy Angelovski & Assocs (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 2 DECEMBER 2003

4923/03 ASX PERPETUAL REGISTRARS LIMITED v JOHN FRANK GOLUBOVIC JUDGMENT 1 HIS HONOUR: This is an application for a stay of civil proceedings on the ground of the potential commencement of criminal proceedings arising against the same defendant out of the same subject matter. The criminal investigation is taking place in Victoria. It has proceeded to this stage. A named police officer in Victoria has interviewed the defendant in September of this year. The defendant has engaged, on a direct access basis, a barrister to assist him in relation to that investigation and contemplates travelling to Victoria with the barrister for further discussions with the Victorian police concerning the possibility of criminal charges. There is a statement in the defendant's affidavit in the most general terms that the police investigation arises out of the same matters as the civil proceedings. 2 Both Mr Rollinson, of counsel for the defendant, and Mr C Freeman, of counsel for the plaintiff, have put their respective submissions to me succinctly and effectively. The relevant principles are stated in what is becoming the classic judgment of Wootten J in McMahon v Gould (1982) 7 ACLR 202. I have also been referred to the judgment of Sir John Young CJ in Phillipine Airlines v Goldair (Australia) Pty Ltd [1990] VR 385 and to the judgment of Barrett J in this Division of this Court in Sogelease v Griffin [2002] NSWSC 1099. Mr Freeman, in arguing against a stay, has pressed on me the portions of the judgment of Wootten J in which his Honour emphasised the plaintiff's prima facie right to have his civil action tried in the ordinary course and the fact that the court should consider whether there is a real and not merely a notional danger of injustice in the criminal proceedings. 3 This matter really seems to me to fall in much the same class as the Sogelease case supra as analysed by Barrett J at [13] and [14]: "[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.