Weedbrook v Partlin[2024] QDC 194

DISTRICT COURT OF QUEENSLAND

Contents

Summary4

Background4

Mr Weedbrook’s claims4

The stay application6

Mr Partlin’s second outline11

Unsworn statements about the MHC proceedings11

The law12

Analysis14

Overlap between the civil and criminal proceedings15

Disclosure of defence case17

The state of the criminal proceedings18

Media attention19

Pressure of pursing two proceedings19

Witness influence and financial incentives20

Other matters raised by Mr Partlin20

Prospects in the civil proceeding21

Conclusion22

Conduct of the civil proceedings22

Summary

1. [1]
   The plaintiff (Mr Weedbrook) by his litigation guardian and son (Marc) sues the defendant (Mr Partlin) on two written loan agreements for a total of $350,000. Mr Partlin seeks a stay of those proceedings until pending criminal proceedings are resolved or, in the alternative, that the proceedings continue as if started by claim, and the plaintiff be directed to deliver a statement of claim.
2. [2]
   For the reasons which follow, I refuse the stay application, but order the proceedings continue as if by claim on conditions directed to preserving Mr Partlin’s self incrimination privilege, so far as is consistent with the refusal of the stay.

Background

Mr Weedbrook’s claims

3. [3]
   The affidavits filed in support of the Originating Application articulate the claims as follows.
4. [4]
   The plaintiff is 98 years old. In about 2018, Mr Weedbrook met Mr Partlin’s mother through a community organisation. Mr Weedbrook and Mr Partlin shared a background in the Air Force. A friendship developed between the two men.
5. [5]
   On 20 June 2020, Mr Weedbrook entered into a written loan agreement with Mr Partlin pursuant to which Mr Weedbrook lent $330,000 on interest-only terms at 3% interest for a term of six months to 22 December 2020, and with interest payable fortnightly in arrears (the June Agreement). Clause 1.6 provided the loan was to be used^[1]:

…ONLY for the purpose of settling current securities registered to the Borrower on the … (ASX). The loan is not to be used to settle any high risk or contract investments, such as options contracts, contracts for difference or futures contracts…

6. [6]
   Clause 1.7 went on in the same theme:

The loan is to be considered as transient financial aid. The Borrower must attempt to actively pursue alternative financial arrangements, with the intent of repaying the principle [sic] prior to the end date of the agreement.

7. [7]
   Part 2 of the June Agreement is headed “Security” and provides for funds from the sale of securities held by Mr Partlin to be paid into a certain account and held there until repayment of the loan. It also charged the whole of the cash in that account and securities held by Mr Partlin as security for repayment of the loan. The June Agreement was executed, and formally witnessed. There is compelling evidence that the loan was paid from Mr Weedbrook’s bank account (the June advance). Mr Partlin’s various emails in 2021 do not dispute either the authenticity of the June Agreement or the fact of the advance.
8. [8]
   It is alleged that Mr Weedbrook lent a further $300,000 to Mr Partlin to allow Mr Partlin to buy shares on 27 July 2020 (the July advance). That is raised only by the solicitor’s letter of 29 March 2021, summarised below. It is not a subject of this proceedings.
9. [9]
   On 11 August 2020, Mr Partlin signed a memorandum of loan of $50,000 to Mr Partlin by Mr Weedbrook (the August memorandum). It is dated 11 August 2020 and is brief, stating^[2]:

I, NATHAN PARTLIN, Borrow

$50,000, short-term, to be returned on Monday 17 August, before close of business, if not sooner.

[Signature of Mr Partlin]

The money is to be held only, and not to be used for any purposes.

10. [10]
    There are some other annotations on the bottom of the copy of the document. A bank statement exhibited appears to show the advance of that sum (the August loan). Once again, Mr Parlin does not dispute the document or the advance in his various emails.
11. [11]
    There is a further payment from Mr Weedbrook of $20,000 raised only in the solicitor’s letter of 29 March 2021, summarised below. It is also not a subject of this proceeding. However, it is alleged in the solicitor’s letter that that sum was transferred by Mr Partlin from Mr Weedbrook’s bank account.
12. [12]
    Mr Partlin appears to have made regular interest payments of $380 to Mr Weedbrook from 8 July 2020, though in increasing irregularity from about March 2021. The fortnightly sum approximates the amount of interest due under the June Agreement. A total of about $15,940 was repaid in this manner.
13. [13]
    Mr Weedbrook alleges none of the four payments set out above were repaid when due.
14. [14]
    On 30 December 2020, Marc sent an email to Mr Partlin on behalf of his father, raising the failure to repay the loan made on 20 June 2020, and seeking information about advances made and modes of proposed repayment. Mr Partlin responded by email on 3 March 2021. His email covers three pages. It does not cavil with the demands for repayment in the 30 December 2020 email. Rather, it covers the following matters:

    1. It gives a detailed account of Mr Partlin’s challenges in his share trading activities from August to December 2020, detailing a tale of ill luck and misfortune;
    2. It records that Mr Weedbrook made clear that he expected to be repaid;
    3. It articulates his problems in share trading to recover his losses caused by stress;
    4. He lists his attempts to improve Mr Weedbrook’s quality of life; and
    5. He seeks to be relieved from demands and to be given time to make the money back.
15. [15]
    On 10 March 2021, Marc and his sister were appointed as enduring attorneys for the financial and personal matters of their father under an Enduring Power of Attorney, consistent with the step foreshadowed in the 30 December 2020 email.
16. [16]
    Thereafter, solicitors became involved. On 29 March 2021, Mr Weedbrook’s solicitors wrote the letter referred to in paragraphs [8] and [11] above. It recited the four advances described above, and the failure to repay any of them, and called on Mr Partlin to provide information about his financial affairs to consider Mr Partlin’s proposal for repayment over a longer period, as contained in the 3 March email in paragraph [14] above.
17. [17]
    Mr Partlin responded on 19 April 2021. The email, again, tells a story of personal stress, trading challenges and statements that, given time, Mr Partlin believes he will be able to meet his obligations. The tenor of the emails emerges from the following excerpt^[3]:

Mr King, I am a weak man at the moment, having been eroded by this situation over the past 9 months. For the sake of further (and expressed) patience, I will devote all my efforts to making this right, efforts that are currently being wasted by days of incapacity or seeking assistance from elsewhere. In addition to patiently trading, I would continue to search for other modes of finance and/or support, hopefully in a much more efficient manner (without the stress fo what’s coming next.

I have devoted all my time in the past 8 weeks to writing letters, seeking support; however, given the delay in postal services, particularly international mail, many letters are still in transit (including the most promising prospects).

18. [18]
    On 29 July 2024, these proceedings were commenced by Originating Application. They were made returnable on 21 August 2024.

The stay application

19. [19]
    On 5 September 2024, Mr Partlin filed the stay application, supported by an affidavit by him and an outline of argument.
20. [20]
    That application came before me on Monday, 10 September 2024. Mr Partlin’s affidavit swore to the following matters.
21. [21]
    First, (consistently with his emails in 2021), he said that when the two agreements were signed, he was suffering mental illness and that, as a consequence, he “did not have capacity to fully understand the the nature and consequences of the agreement due to [his] mental health condition”. He says he has a medical report to confirm his assertion, which he will not disclose because it contains irrelevant personal and medical information.
22. [22]
    Second, he alleged that in June and August 2020 he was suffering extreme financial duress from his financial institution, seemingly from a margin call or some similar process. He also was suffering stress from the letters seeking repayment of the funds advanced by Mr Weedbrook and “could not make clear or informed decisions or act with sound judgment”.
23. [23]
    Third, he alleged he was facing criminal charges related to “the same transactions and events that are the basis of these civil proceedings.” He said the charges involved allegations of fraud, theft and computer hacking made by Mr Weedbrook and Marc, and have been on-going since 2022. He claimed:

    1. Any evidence or aguments in the civil proceedings could prejudice his defence, particularly if “sensitive information regarding [his] mental health or financial position is revealed prematurely”; and
    2. The charges were publicised in mainstream and social media, and he is concerned media coverage of the matter may influence witnesses or jury members.
24. [24]
    The specific evidence of the criminal proceedings consisted only of his bail undertaking given to the Magistrates Court in about March 2022. That undertaking listed five charges in the following terms:

25. [25]
    Fourth, Mr Partlin set out the factual disputes in the proceedings (despite his concerns about his criminal defence) as follows:

    1. His capacity at the time of contract;
    2. The financial pressure from his bank and from his obligation to repay the plaintiff;
    3. Mr Weedbrook’s “role in overseeing and influencing [Mr Partlin’s] trading activities, and [Mr Weedbrook’s] acceptance of risk in providing financial support”;
    4. Mr Weedbrook’s statements which led him to believe repayment was dependent on success of the investments.
26. [26]
    Fifth, he is concerned that he does not have the funds to defend both proceedings. He is concerned that defending the civil proceedings could affect his mental health and compromise his ability to defend himself.
27. [27]
    Mr Partlin also filed an outline of submissions which, despite his affidavit, included very extensive unsworn allegations. Nonetheless, they were included in a document adopted by Mr Partlin in Court. The outline is capable of giving rise to admissions. Even if it does not, it gives more detail on his position on the circumstances of obtaining the two loans sued upon.
28. [28]
    It is necessary to set out the further extensive statements:

    1. The Applicant first met the Respondent in or around December 2018. At no point has the Respondent’s mother ever been the Applicant’s carer. Their relationship was purely one of friendship, where she occasionally offered assistance as friends typically do. She has never held any formal caregiving role, nor has she been affiliated with any organisation that provides carer services to the Applicant or otherwise.
    2. The Applicant only formed a friendly relationship with the Respondent in June 2020, shortly after the funds in dispute were provided. The Applicant's history in the German Luftwaffe was largely irrelevant to their relationship. Around that time, the Applicant and Respondent entered into a written “loan agreement.” The Respondent entered this agreement with the understanding that the purpose of the contract was to document that the funds were not a gift but were intended exclusively for investment purposes.
    3. During discussions about the funds, the Applicant did not make it clear to the Respondent that repayment of the funds was an absolute requirement. In fact, the Applicant made statements suggesting that they accepted the substantial risk of loss inherent in the investment use of the funds.
    4. The loan agreement was later amended under significant duress experienced by the Respondent, stemming from both their financial institution, which pressured him to finalise the agreement, and the Applicant’s son, who insisted on modifications. Due to the Respondent's altered mental state, they did not fully understand several terms within the contract, despite believing they did at the time and using similar terms himself. The Applicant and their family fully knew the Respondent’s extreme lack of investment experience.
    5. Throughout the amendment process, the Applicant’s position regarding providing funds to the Respondent remained unchanged, though they became agitated, feeling that parties were attempting to govern what they could or couldn’t do with their money.
    6. On or about 11 August 2020, the Applicant transferred additional funds to the Respondent. The Respondent wrote a statement acknowledging receipt of the money, again believing that the purpose of the statement was merely to confirm that the funds were received and not a gift. No terms regarding the additional funds were discussed or agreed upon before or after this transfer.
    7. The Respondent believed they would be able to return the funds shortly thereafter and wrote the statement with that belief; however, this belief was never communicated to the Applicant except in the written statement. The Applicant neither requested, reviewed, nor signed the statement at the time; instead, they simply placed it in their filing cabinet. The Applicant did not attempt to enforce the statement until at least five months after the stated return date.
    8. Despite completing the transfer in person at a branch, the Applicant later reported to police that the Respondent had hacked their accounts and stolen the funds. The Applicant recanted this statement one day after the Applicant’s son provided a conflicting statement to the police (20 days after the original statement). The statement addendum changed the accusation from stealing to the implication of fraud, including several factual changes to support the new accusation.
    9. During the investment period, the Applicant frequently shared stories of their extensive experience in business and investing, while also providing criticisms, investment advice, recommendations and feedback. Though broad in nature, this criticism and guidance significantly influenced the Respondent’s investment decisions.
29. [29]
    Further Mr Partlin asserts, relevantly, that he was briefly interviewed and charged in connection with “the matter” in late December 2021, with the contracts being central to the interview.
30. [30]
    Despite those broad allegations, the only specific evidence of the content and stage of the criminal proceedings was the bail undertaking from over two years before. Mr Weedbrook’s counsel raised the lack of evidence on the overlap of the issues, and of the stage of the proceedings, in his submissions at the return of the stay application on 10 September 2024.
31. [31]
    At that time, I was concerned that Mr Partlin had not put before the Court material on the content and stage of the criminal proceedings, which were relevant to the application and might have substantially assisted him. I adjourned the application to 13 September 2024 to give him an opportunity to put material on that issue before the Court.
32. [32]
    He filed a further affidavit of some nine pages, and a further outline of argument. The further affidavit contained the following additional allegations.
33. [33]
    It exhibited a QPS Charge List containing each of the charges as follows^[4]:

    1. Charge 1:

Criminal Code (CC) – [CC] 408C(1)(c)&(2)(d) Fraud – dishonestly induces delivery of property value of/over $30 000 but less than $100000

That on the 22nd day of June 2020 at Cleveland in the State of Queensland one Nathan Partlin dishonestly induced Olaf WEEDBROOK to deliver $330,000 to Nathan James PARTLIN and the yield to Nathan PARTLIN caused from the dishonesty was of a value of at least $30000 but less than $100000 namely $330,000.

2. Charge 2:

Criminal Code (CC) – [CC] 408C(1)(c)&(2)(d) Fraud – dishonestly induces delivery of property value of/over $30 000 but less than $100000

That on the 27th day of June 2020 at Cleveland in the State of Queensland one Nathan Partlin dishonestly induced Olaf WEEDBROOK to deliver $300,000 to Nathan James PARTLIN and the yeild [sic] to Nathan PARTLIN casued [sic] from the dishonesty was of a value of at least $30000 but less than $100000 namely $300,000.

3. Charge 3:

Criminal Code (CC) – [CC] 408C(1)(c)&(2)(d) Fraud – dishonestly induces delivery of property value of/over $30 000 but less than $100000

That on the 11th day of August 2020 at Cleveland in the State of Queensland one Nathan Partlin dishonestly induced Olaf WEEDBROOK to deliver $50,000 to Nathan James PARTLIN and the yeild [sic] to Nathan PARTLIN casued [sic] from the dishonesty was of a value of at least $30000 but less than $100000 namely $50,000.

4. Charge 4:

Criminal Code (CC) – [CC] 398.9 Stealing property of value exceeding $5000

That on the 10th day of November 2020 at Birkdale in the State of Queenlsand one Nathan Partlin stole $20,000 the property of Olaf Weedbrook of which was more than $5 000.

5. Charge 5:

Criminal Code (CC) – [CC] 408E(1)&(2) Computer hacking and misuse and cause detriment/damage/gain/benefit

That on the 10th day of November 2020 at Birkdale in the State of Queenlsand one Nathan Partlin used a restricted computer without the consent of Commonwealth Bank of Australia its controller and Nathan Partlin caused detriment and the value of the detriment was more than $5,000 gained benefit namely $20,000

34. [34]
    It can be seen from these charges that the debts sued for in this Court correspond with the debts in Charges 1 and 3 (despite the oddity in the amount in Charge 1). It can also be seen that the other two sums raised in Mr Weedbrook’s material appear to correlate with Charges 2, 4 and 5 (Charges 4 and 5 appear to be two charges arising out of the alleged taking of $20,000 from Mr Weedbrook’s account). How the claims for the June and August loans give rise to charges of fraud remains unexplained. No particulars are given.
35. [35]
    Mr Partlin also introduced the allegation that the civil case would force him to disclose financial records and details critical to his defence. He alleges discrepancies, unknown to the Police, would be revealed, thereby prejudicing his defence.
36. [36]
    He further:

    1. Alleges a strategy by the applicants in the civil proceedings to extract information to assist the criminal prosecution;
    2. Alleges he cannot afford to pay for both civil and criminal defences;
    3. Resiles from the admissions in the email sent by him on 12 March 2021 on the basis they were written in circumstances of stress; and
    4. Asserts a wish to maintain his right to silence.
37. [37]
    Importantly, he swears that his criminal matter is currently before the Mental Health Court (MHC) but provides did not explain in the affidavit when his matter was referred to that Court or when a resolution is likely. Oddly, he discounts the relevance of the MHC hearing. Rather, he alleges that his defence at trial for both civil and criminal proceedings will be “partial or impaired capacity”. He also alleges that forcing him to proceed with the civil proceeding will force him to disclose matters “not yet addressed by the MHC”.

Mr Partlin’s second outline

38. [38]
    Mr Partlin also filed a second outline. For the most part, that outline advanced the same points as previously raised. They will be dealt with in the analysis below. However, the second outline was notable for its references to passages seemingly sourced in authorities which could not be located in authentic cases, and to cases which could not be located at all.
39. [39]
    When asked at the second hearing whether he had had assistance from a solicitor with his second outline, Mr Partlin only said he had had assistance. When asked later by email to provide copies of the cases which could not be located, he responded that he could not verify the “recommended references using non-official search tools” and took those references at face value because he struggled to find any cases through official sources. Although he did not say so directly, I infer from the form of his second outline and nature of the errors (i.e. non-existent references) that the erroneous references were recommended by some form of aritifical intelligence (AI) model. At least four authorities cited did not exist.^[5] Very few of the citations were fully correct. The erroneous citations appear to be hallucinations derived from a large language AI model.
40. [40]
    This incident reflects the damaging effect of using such models to generate legal submissions. The errors in Mr Partlin’s submissions took up the time of counsel for Mr Weedbrook. It also took up considerable Court time in checking the authorities. This kind of error impacts on the fairness and efficiency of legal proceedings. The use of large language models to generate submissions is unwise and should only be relied upon if the writer has personally checked both the citiation and the passage referred to in the response to the prompt.
41. [41]
    It is obvious that legal practitioners have a professional duty not blindly to rely on the output of any research tool. While litigants in person do not have the same professional duties, I do not think that gives them a free pass to uncritically adopt the output of AI models. As awareness builds in the community of the potential for hallucinations in output from large language models, a time will come where uncritically placing such output before a Court in circumstances where a litigant is reckless as to its accuracy could amount to contempt of court, in the form of interference in the administration of justice by the litigant in person.^[6]
42. [42]
    To be clear, though, I do not suggest Mr Partlin has acted improperly in this matter.

Unsworn statements about the MHC proceedings

43. [43]
    Although Mr Partlin swore to very little detail about the MHC proceedings, he revealed the following matters in the course of submissions.
44. [44]
    During the first hearing, he said:

    1. That he believed those proceedings were coming to ‘the pointy end’ and that a determination would “probably be likely by the end of this year”;
    2. That the primary aspect was soundness of mind during the period of the charges, rather than being a dispute of whether Mr Partlin was fit to stand trial;
    3. That he expected the hearing to be resolved in late October or, failing that, early next year;
    4. That there had not yet been a committal on the charges; and
    5. That he does not have solicitors in the MHC proceedings but does have solicitors in the criminal proceedings.
45. [45]
    At the second hearing, he added that a dispute of fact had been identified in respect of the alleged offences, and the MHC had said that it could not deal with the matter, though it appears that a formal decision to that effect has not been made.

The law

46. [46]
    A Court has a discretion to stay civil proceedings pending determination of related criminal proceedings; however, such a stay is not granted as of right. The leading case on the approach to the exercise of the discretion to stay remains Wotton J’s judgment in McMahon v Gould (1982) 7 ACLR 202. His Honour rejected the argument that the discretion to stay emerged as a development of the ancient “felonious tort rule,” and placed the power firmly in a discretion to stay in the interest of justice. In a well known passage, his Honour expressed guidelines relevant to the exercise of that discretion as follows:

I approach the decision of this matter with the following guidelines:

1. Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court (Rochfort v John Fairfax & Sons Ltd at 19);
2. It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid);
3. The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with (Jefferson v Bhetcha at 905);
4. Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons Ltd at 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;
5. The court's task is one of “the balancing of justice between the parties” (Jefferson Ltd v Bhetcha at 904), taking account of all relevant factors (ibid at 905);
6. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid at 905);
7. One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's “right of silence”, and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding (ibid at 904). I return to this subject below;
8. However, the so-called “right of silence” does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibid at 904–5);
9. The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid at 905);

47. [47]
    His Honour then identified a non-exhaustive list of factors which might inform the issue he identified in (i) of his reasons, as follows:

10. In this regard factors which may be relevant include:

1. the possibility of publicity that might reach and influence jurors in the civil proceedings (ibidat 905);
2. the proximity of the criminal hearing (ibidat 905);
3. the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (ibidat 905);
4. the burden on the defendant of preparing for both sets of proceedings concurrently (Beecee Group v Barton);
5. whether the defendant has already disclosed his defence to the allegations (Caesar v Somner at 932; Re Saltergate Insurance Co Ltd at 736);
6. the conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re Saltergate Insurance Co Ltd at 735–6);

48. [48]
    He continued:

11. The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff;
12. In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed Beecee Group v Barton).

49. [49]
    His Honour then turned to considering, further, the place of the right to silence in a stay application. Having reviewed the nature of that right, he observed, at page 208:

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.

50. [50]
    It has been suggested from time to time that the approach in McMahon v Gould gives insufficient weight to the importance of self-incrimination privilege as substantive common law right: Reid v Howard (1995) 184 CLR 1. Mr Partlin repeated that submission. However, the Queensland Court of Appeal did not reconsider the principles in McMahon, despite that argument: White v Australian Securities and Investment Commission [2013] QCA 357 at [22]. It might be thought that that case provides some basis for a Court, in the exercise of its discretion, to give additional weight or emphasis to preservation of the privilege in the appropriate case: see [23]. Plainly, though, the Court applied the core principle from McMahon, that a defendant has no absolute right to a stay. Muir JA, with whom Gotterson JA and Applegarth J agreed, held (footnotes omitted):

1. [24]
   The appellant’s argument did not attempt to identify the extent to which the evidence in the proceedings might coincide with or bear upon the evidence in the New Zealand proceedings. The primary judge accepted that there were “substantial areas of factual overlap between the present proceedings and the New Zealand proceedings”. The appellant relied on that finding, which was uncontested, to advance the proposition, in effect, that his privileges against self-incrimination and exposure to a civil penalty were so fundamental that they outweighed competing considerations. I am unable to accept the appellant’s argument in this regard.

1. [25]
   Once it is accepted, as it must be, that the appellant has no absolute right to a stay of the proceedings in the circumstances under consideration and that the rights and interests of ASIC, the other respondents and also the public interest must be taken into account, it becomes apparent that the considerations in favour of staying the proceedings are outweighed by the considerations against.

51. [51]
    The principle in McMahon v Gould in this respect was approved again by the Court of Appeal in Smith v Kelsey [2020] 4 Qd R 1 at [84] to [85].
52. [52]
    It might be thought that there is a lessening of support for Wotton J’s observations about tactical advantage. The point was made by the learned trial judge in White, and recognised by Applegarth J in concurring reasons, adopted by Gotterson JA, as follows (footnotes omitted):

1. [39]
   There was no elevation of case management principles above the appellant’s fundamental common law right. The primary judge was assisted by the guidelines stated in McMahon v Gould and appreciated that later authorities refined those guidelines by affirming that it is legitimate for a party in the appellant’s position to deprive the prosecution of an early opportunity to check his story and obtain evidence to refute it. The primary judge did not engage in a case management exercise. His concern was with the interests of justice. The principles stated in McMahon v Gould and later authorities identified the court’s task as balancing competing interests and deciding whether the interests of justice warranted a stay.

53. [53]
    I intend to adopt the same approach.

Analysis

54. [54]
    It is convenient to consider the various factors relied upon by the parties as relevant to the stay application.

Overlap between the civil and criminal proceedings

55. [55]
    Such evidence as there is before the Court supports the conclusion that the June and August loans are the subject of the charges laid against Mr Partlin in 2021:

    1. The claim on the June 2020 loan correlates with Count 1. That seems to be so, even though the charge articulated for Count 1 relates to an amount of less than $100,000; and
    2. The claim on the August 2020 loan correlates with Count 3.
56. [56]
    Charge 2 appears to relate to the alleged advance of $300,000 in July 2020, referred to in Mr Weedbrook’s solicitor’s letter. Charges 4 and 5 appear to relate to the $20,000 amount referred to in Mr Weedbrook’s solicitor’s letter. I do not consider Charges 2, 4 and 5 provide a basis for overlap in the issues in dispute in this proceeding. Mr Weedbrook does not advance claims on those two amounts. While it is theoretically possible that the circumstances of those advances might come up collaterally, there is no suggestion on the evidence before the Court that they play any material part in the claims by Mr Weedbrook. The possibility of Mr Partlin being compelled to waive privilege in relation to facts connected to those specific charges is speculative at best, as it appears the facts in connection with them would go to credit, only.
57. [57]
    Turning to Charges 1 and 3, they allege offences against ss. 408C(1)(c) and (2)(d) of The Criminal Code. For Charge 1, the elements of the offence as charged are:

    1. That Mr Partlin induced Mr Weedbrook to deliver $330,000 on 22 June 2020;
    2. That Mr Partlin did so dishonestly; and
    3. (By way of aggravation, pursuant to s. 408C(2)(d)) that Mr Partlin obtained a yield from his dishonestly of between $50,000 and $100,000, namely $330,000.
58. [58]
    The reliance s. on 408C(2)(d) for Charge 1 might be an error, or might reflect a decision by police only to charge Mr Partlin with the lesser aggravating circumstance, as compared to s. 408C(2A)(a), which provides for a maximum sentence of 20 years where the yield is over $100,000.
59. [59]
    For Charge 3, the elements of the offence as charged are:

    1. That Mr Partlin induced Mr Weedbrook to deliver $50,000 on 11 August 2020;
    2. That Mr Partlin did so dishonestly; and
    3. (By way of aggravation) That Mr Partlin obtained a yield from his dishonestly of between $50,000 and $100,000.
60. [60]
    There are no other particulars provided of those charges by Mr Partlin. In particular, the Court remains uninformed as to what acts are alleged to haved been done dishonestly, and as to the facts said to support the inference of that state of mind. That is the position despite the fact that Mr Partlin has solicitors in the criminal proceedings and despite him having had a second opportunity to put on evidence about the nature and stage of those proceedings.
61. [61]
    Despite that, I am willing to infer that there is an overlap between the civil and criminal proceedings (assuming that any indictment eventually pursued will advance the same charges). Both are concerned with the June and August loans and are presumably concerned with acts done by Mr Partlin to obtain those loans. At a high level of generality, that overlap gives rise to a risk that, if the civil proceedings go ahead before the criminal proceedings, participation in the civil proceedings might require Mr Partlin to reveal matters which would otherwise be covered by self-incrimination privilege. In the absence of further details of the crown case, I can infer no more than that.
62. [62]
    Mr Weedbrook submits that there is nothing about Mr Weedbrook’s case in chief which would compel Mr Partlin to waiver privilege if he wished properly to defence. Mr Weedbrook submits that his case is that:

    1. He advanced the June and August loans on the terms alleged.
    2. Those terms are in writing, contained in apparently credible documents.
    3. He can establish the fact of the advances largely from apparently credible bank statements.
    4. The fact of lack of repayment is a simple question of fact.
63. [63]
    None of those propositions are genuinely in dispute, and nothing in this case, he submits, gives rise to any question of acts by Mr Partlin to obtain the loans, nor of dishonesty in those acts. Those circumstances suggest it is difficult to discern the real danger of injustice arising from Mr Weedbrook’s civil case proceeding.
64. [64]
    Mr Partlin submits that his defence of the civil proceedings would require him to give disclosure of financial records and details regarding the circumstances of the two transactions which would reveal critical information relevant to his defence. It is difficult to assess this prospect in the abstract. However, one might infer, from the fact that he has been charged with dishonestly inducing Mr Weedbrook to pay him the two loans, that the prosecution case will involve evidence of statements by Mr Partlin in relation to the advances which the prosecution rely on as dishonestly made. How that would give rise to any defence to a claim in debt on the two loans was not explained by Mr Partlin. Mr Weedbrook relies on no such statements.
65. [65]
    I suppose it is possible that, by way of defence, however, Mr Partlin would seek to advance terms of the loans or discussions about use of the loans and repayment of the loans which meant the funds were not repayable. And, in doing so, he might tend to incriminate himself on the basis that those statements revealed matters from which dishonesty might also be inferred.
66. [66]
    In Smith v Kelsey (2020) 4 QR 1, Morrison JA, with whom Philippides JA and Brown J (as her Honour then was) agreed, undertook a close analysis of the civil and criminal proceedings before the Court, and drew a distinction based on absence in the civil proceedings of an issue going to the honesty of conduct in the civil case. His Honour observed, after analysing the two proceedings:

1. [54]
   In my view, there is a substantial difference between the issues to be determined in the civil proceedings in the IRC, and the criminal proceedings. In the IRC proceedings, the entitlement to relief is grounded simply by a finding that s 285 of the IR Act has been contravened. Neither s 285 nor any individual part of it requires consideration of, let alone a finding about, whether the person was dishonest when they took the adverse action. The adverse action must merely be because the other person has exercised a workplace right.

1. [55]
   By contrast, the offence under s 408C cannot be established without proving dishonesty. Proving that one person caused another a detriment for whatever reason does not establish the offence of fraud. The detriment must be caused dishonestly.

67. [67]
    It must be kept in mind, however, that that distinction was drawn in circumstances where the trial of the civil proceedings was completed and the issue before the Court was whether the delivery of reasons by the Industrial Relations Commission would involve findings of dishonesty. That is a different question from whether the conduct of the civil proceedings might require the defendant to disclose documents, give evidence, and cross examine in a manner which discloses facts which might otherwise tend to incriminate in relation to dishonesty.
68. [68]
    An unduly narrow view of the scope of self-incrimination privilege should not be adopted. While it is not obvious exactly how defending the civil proceedings would require Mr Partlin to waive self-incrimination privilege when providing his version of the dealings relating to the advances in defending the debt claims, I am willing to assume that it might.
69. [69]
    Mr Partlin also submitted that there was an overlap in the issues as between the criminal and civil proceedings in relation to his mental health at the time of the loans. He swore that his mental health at that time is relevant, both to his civil defence and to his defence of his criminal proceedings. However, his mental health in the criminal proceedings seems to have been said to be relevant because of the issues as to unsoundness of mind before the MHC. Accepting Mr Partlin’s unsworn statements in that regard, it appears that the MHC proceedings are not going to proceed in substance. Other than that, I cannot see how questions of civil capacity at the time of the loan impact on the issues likely to arise in the criminal trial, except possibly on sentence, unless Mr Partlin intends to run an insanity defence. The prospect of him doing so is entirely speculative at this stage.

Disclosure of defence case

70. [70]
    Mr Weedbrook submits that, by his emails of 3 March and 19 April 2021, Mr Partlin has already substantially disclosed his case on the circumstances of the loans and his mental health issues over 2020. There is merit in this proposition, if indeed Mr Partlin’s defence relates to alleged conversations with Mr Weedbrook about undertaking risk of share trading with the loan funds and statements as to whether and when funds would be repayable. Over the course of his two affidavits and two outlines, he discloses a great deal about his dealings with Mr Weedbrook. He variously says:

    1. That he misunderstood the loan agreement terms and thought that they did not impose a “strict repayment obligation”;
    2. That he intends to allege duress, unconscionability and mistake, both mutual and unilateral, arising out of his mental state, and mistake as to the repayment obligation;
    3. That he was suffering from limited mental capacity at the time of the loan agreements (though later he denies he lacked capacity, at common law); and
    4. That Mr Weedbrook had a role in overseeing and influencing his trading activites, and accepted “risk in providing financial support”.
71. [71]
    It is difficult to determine exactly how much he has disclosed that is relevant to his potential defence to the criminal proceedings. That is due, in part, to the confused, voluable and ambiguous way that Mr Partlin articulates his propositions. The best I can do is to note that he has already provided the prosecutor with very significant insights into his likely case at trial, and considerable material for cross examination, should he give evidence.

The state of the criminal proceedings

72. [72]
    Mr Partlin’s sworn material does not explain the state of the criminal proceedings in any detail. As explained above, he said various things about MHC proceedings on the first return date. However, it was on the second return date that he informed the Court that the MHC was unlikely to deal with his matter because of a factual dispute. This appears likely to be correct. The MHC must not make a decision about soundness of mind if there is reasonable doubt that the person committed the alleged offence: s. 268(1) Mental Health Act 2000 (MHA). Accordingly, if the MHC is dealing with a referral as to soundness of mind, it must be on the basis that the MHC is satisfied beyond reasonable doubt that the offences were committed, though disclosures to the MHC are confidential and cannot be given in evidence. If so satisfied, and unsoundness of mind is established before the MHC, however, then the criminal proceedings are discontinued: see s. 281 MHA. If that occurred, that would make the stay unnecessary, because no criminal proceedings will be taken to trial. On the other hand, if the MHC is not satisfied of unsoundness of mind or that the offences were committed, the criminal proceedings continue according to law: s. 272 MHA.
73. [73]
    Assuming the accuracy of Mr Partlin’s statements on the second hearing, the MHC proceedings will come to an end soon, if that has not already occurred. The criminal proceedings, therefore, will take their ordinary course. They are presently not at committal stage it seems; so, if there is to be a trial, it is unlikely to occur for at least a year, based on my experience of the criminal lists, and likely longer.
74. [74]
    The extent of the likely delay in the civil proceedings, if they are stayed, will be considerable. That tells against the grant of a stay.

Media attention

75. [75]
    Mr Partlin submits that there has been media interest in both mainstream and social media at the time of his criminal charges. He submits that gives rise to a prospect of media interest in the civil proceedings which could affect the fairness of any future criminal trial.^[7] I am not persuaded that this submissions supports a stay. Mr Partlin did not provide any evidence of the nature or extent of publications relating to his criminal proceeding, much less the civil proceedings. Accordingly, it is not possible to form a view as to whether conduct of the civil proceedings are likely to be reported at all, much less that it is likely to impact a future criminal trial. Certainly, there is is no evidence of any media interest in the civil proceedings.
76. [76]
    And even if there was, there is nothing about the allegations in this case which seem to me to imperil a fair trial if a jury is properly directed about ignoring any media coverage which might occur and come to the attention of a juror (noting that media interest in the charging of Mr Partlin, if any, occurred more than 2 year ago).
77. [77]
    Mr Partlin relied on R v Glennon (1992) 173 CLR 592 at [603]. There, Mason CJ and Toohey J state that there must be a sound basis made out on a prima facie footing to anticipate the probability of prejudice on the part of an individual juror. That a juror may acquire knowledge before the verdict of a defendant’s prior conviction is a matter of mere conjecture or speculation. Something more must be shown to then conclude the accused did not have a fair trial, or there was a miscarriage of justice. The law acknowledges the existence of the possibility but proceeds on the footing the jury acts in conformity with instructions to render a true verdict in accordance with the evidence. To conclude otherwise is to underrate the integrity of the system. This passage does not really apply to this situation, but it does broadly support my view on this issue.

Pressure of pursing two proceedings

78. [78]
    Mr Partlin submits that having to deal with both the civil and criminal proceedings creates an undue personal and financial burden.^[8]
79. [79]
    Mr Partlin’s evidence does not persuade me that refusing the stay would impose too great a financial burden on him. He has not sworn to whether he is legally aided in his criminal proceedings. However, he swears he has very limited financial resources which, if true, means he is likely to be legally aided. He is acting for himself in his civil proceedings, and it appears he will have to do so whether his criminal proceedings continue or not, given his otherwise limited means. I have not overlooked his evidence which suggests he is funding his own criminal and civil proceedings.^[9] In the circumstances of his evidence as a whole, I do not find the broad statements as to financial burden persuasive.
80. [80]
    As to the personal burden, it can be accepted that conducting the civil proceedings will involve stress, especially as it appears he will act for himself. I also accept that there is stress arising from his criminal proceedings. However, based on the material before me, it seems unlikely he will be forced to run both proceedings at the same time. Further, Mr Partlin confirmed from the bar table that he was legally represented in the criminal proceedings, though not the MNC proceedings, so the conduct of any criminal proceedings will be with legal assistance. If it turns out that the two proceedings converge as to hearing dates, he could persuasively make submissions to stagger the trial dates.
81. [81]
    I am not persuaded on the evidence before me that this factor supports a stay.

Witness influence and financial incentives

82. [82]
    Mr Partlin submits that giving evidence and hearing his case in the civil proceedings might cause witnesses to give inaccurate evidence, influenced by that case, in the criminal proceedings.
83. [83]
    That will not be relevant in relation to Mr Weedbrook, because it appears he died recently.
84. [84]
    The potential evidence of other members of the family in the criminal proceedings, or indeed the civil proceedings, is otherwise unclear. Certainly, Marc’s evidence in his affidavit in support of the Originating Application appears largely uncontroversial.
85. [85]
    Mr Partlin submits that, in both proceedings, issues will arise as to discussions involving Mr Weedbrook’s family about the obligation to repay the loans and about use of the loan funds. There is some possibility if he advances such a case in the civil proceedings that Marc, and perhaps his sister, will ultimately give evidence about such matters.
86. [86]
    But there is no compelling reason identified by Mr Partlin which would cause one to think there is a risk of that affecting their evidence in the criminal proceedings (if there ever is a trial). And if their evidence is relevant to the criminal proceedings, it is likely that statements have already been taken such that a revision in their account would give rise to inconsistencies upon which they could be cross examined.
87. [87]
    He submits the family members would have an interest in altering their evidence to facilitate a criminal compensation order if he is found to be guilty at trial. However, that possibility is entirely speculative and, in any event, the family are best served in pursuing recovery on the loan agreements, if they wish to recover.
88. [88]
    I am not persuaded that this is a factor which materially supports a stay.

Other matters raised by Mr Partlin

89. [89]
    Mr Partlin raised other matters in his affidavits and submissions. I do not intend to deal with all of them in detail. None of them provided a persuasive basis for granting a stay.

Prospects in the civil proceeding

90. [90]
    In my view, in this particular case, it is relevant to the discretion to consider the prospects of success in the civil proceeding. A firm view about prospects cannot be reached at an interlocutory stage. However, in this case, I think it possible to form a view that Mr Weedbrook’s claim on the two loan agreements prima facie have good prospects, for the following reasons:

    1. The loan agreements are in writing and not challenged as inauthentic by Mr Partlin;
    2. The bank statements demonstrate the advances were made, and that interest was paid broadly consistent with the June 2020 loan agreement;
    3. Mr Partlin’s extensive emails, evidence and submissions do not challenge the proposition that the funds were advanced, nor that they have not been paid back;
    4. Mr Partlin’s defence as explained in his material appears weak, even allowing for his circumspection in providing evidence to preserve his right to silence. His case as to his lack of capacity to contract would not provide a substantive defence, even if established, because Mr Weedbrook would have a restitutionary claim for the loan funds paid over, in any event. His arguments based on a misunderstanding of the loan agreements appears to amount to the submission that he wrongly thought he did not have to repay the loan at a particular time, and wrongly thought he could use the money for purposes that were in fact not permitted. But neither matter of itself seems likely to provide a defence to a claim pressed at this stage on the loan agreements. Further, his extensive emails are inconsistent with any such argument; and
    5. He also foreshadowed a defence based on the allegation that Mr Weedbrook oversaw and influenced Mr Partlin’s trading and led him to believe repayment was conditional on success of Mr Partlin’s trading. These propositions are inconsistent with the words of both agreements and not relied upon at any point in the emails sent by Mr Partlin. Mr Partlin’s explanation for this is that he conceded more than he should have because he was under pressure. That appears an unpersuasive proposition.
91. [91]
    To be clear, I do not assume that Mr Weedbrook will succeed. However the prospects of success appear good at this stage. That is a factor of some weight in this particular case where Mr Partlin has disclosed so much about his potential defences. Linked to that is the consideration that the loans are substantial and remain unrepaid some four years after they were due for repayment. That is a long time to be kept out of funds.
92. [92]
    I do not accept Mr Partlin’s suggestion that the timing of the pursuit of the civil proceedings is calculated to put pressure on him. That timing is equally consistent with Mr Weedbrook waiting to see if the criminal proceedings would be promptly resolved. To my mind, the gentle inquiry from Mr Weedbrook’s solicitors about the state of the criminal proceedings is more consistent with the latter inference.

Conclusion

93. [93]
    Ultimately this case comes down to whether these proceedings should be stayed so that Mr Partlin can keep his right to silence intact up to the end of the Crown case in the criminal proceedings against him, in circumstances where there is likely to be some factual overlap between one of the defences he might wish to run in the civil proceedings, and the defence he might run in his criminal proceedings.
94. [94]
    On balance, I do not think that a stay should be granted, in the interests of justice.
95. [95]
    In my view, the only factor favouring a stay is that, if refused, Mr Partlin might have to waive his right to silence to put forward his version of events, in relation to discussions with Mr Weedbrook relating to the circumstances in which he is said to have dishonestly induced him to advance the two loans, prior to the conduct of his criminal trial and in respect of meeting his disclosure obligations. None of the other matters raised by Mr Partlin are at all persuasive.
96. [96]
    On the other hand, the factors favouring refusal of the stay can be summarised as follows:

    1. First, prima facie, Mr Weedbrook is entitled to pursue his civil proceedings;
    2. Second, the civil proceedings are not complex proceedings, and they appear to have good prospects of success;
    3. Third, it is impossible to determine how long the civil proceedings would be stayed on the evidence before the Court, nor is the Court properly informed of the state of the criminal proceedings. But such inferences as I can reasonably draw suggests a delay of at least a year or more; and
    4. Fourth, while Mr Partlin might not have disclosed the details of conversations he had which might justify a defence to both proceedings, he has disclosed already the gravamen of his case such that the prosecution is already armed with a good idea of what that case is likely to be.
97. [97]
    Further, Mr Partlin’s self-incrimination privilege will not be affected by the duty of disclosure (as explained below) and can be preserved until close of the plaintiff’s trial by adjustments I intend to make to the pleading obligations on Mr Partlin under the UCPR.
98. [98]
    I dismiss the application to stay the proceedings.

Conduct of the civil proceedings

99. [99]
    Mr Partlin seeks an order that the proceeding proceed as if commenced by claim, and for an order for the plaintiff to file a statement of claim. The plaintiff’s case in chief is straightforward. It is understandable that an Originating Application was initially filed. However, it is plain that Mr Partlin disputes the debts, and does so on rather complicated grounds, even putting to one side the matters which he considers he might wish to raise only at his criminal trial.
100. [100]
     In my view, both parties and the Court will be best served by pleadings to distill out the issues which truly arise at trial. I therefore order that matter proceed as if started by claim and direct the plaintiff to file a statement of claim within 28 days. The rules can thereafter apply to the conduct of the proceedings. The next question is whether there ought to be variation to the rules to prevent Mr Partlin from being compelled to incriminate himself. No variation is required in respect of disclosure. Claims for privilege are provided for in rr. 212 and 213 UCPR. If Mr Partlin wishes not to produce any relevant document on the basis that it would tend to incriminate him, he may do so, provided he does so in accordance with those rules.
101. [101]
     Variation is required in respect of his obligations on pleading. Rules 166(1) to (5) impose positive obligations on a party responding to a pleading to admit, not admit or deny each allegation, and to accompany a denial or non-admission with a direct explanation. Those provisions impose obligations inconsistent with self-incrimination privilege. It has been determined that they do not inevitably do so, being subject to modification under r. 371 UCPR: Commissioner of Taxation v Price [2006] QCA 108. The scope of necessary modifications where self-incrimination privilege might arise was considered in Anderson v ASIC [2013] 2 Qd R 401. In that case the Court ordered that the obligations in pleading a defence be modified as follows.
102. [102]
     The defendant’s defence must, at a minimum:

     1. state, with respect to each allegation of fact in the statement of claim, whether that allegation is admitted, not admitted or denied; and
     2. give notice of any intention by the defendant to rely upon any relevant statutory defence or ground of dispensation.
103. [103]
     Mr Partlin is not otherwise required to comply with rr. 149(1)(b), (c). 150, 157, 165 and 166 UCPR, until the close of the plaintiff’s case.
104. [104]
     At the close of the plaintiff’s case, if Mr Partlin intends to give or call evidence, he must immediately file a defence which complies with the UCPR including which alleges any material facts upon which he wishes to rely which are not contained in the statement of claim.
105. [105]
     A principal consequence of such orders is in this case is that Mr Partlin may plead a bare admission, denial, or non-admission, unaccompanied by an explanation. While it might be that to provide such relief in respect of the whole of the plaintiff’s pleading might go somewhat beyond the scope of matters in respect of which Mr Partlin could claim self-incrimination privilege, it is impractical in all the circumstances of this case to try to carve out parts of the likely statement of claim from the exception. I form that view in light of the issues likely to arise at trial: compare LM Investment Management Ltd v Drake [2017] QSC 34; Connelly and Harris v McGrath (2019) 3 QR 99.
106. [106]
     I emphasise two further points.
107. [107]
     First, Mr Partlin is free to pleading more fully if he chooses.
108. [108]
     Second, if on the close of the plaintiff’s case, Mr Partlin wishes to give or call evidence in his defence of the proceedings, he must file a defence which fully complies with all pleading rules including r. 166 UCPR and must be in a position to do so at that point in the trial. Notably, such a pleading should plead any facts he relies upon in defence of the claim which are not alleged already in the statement of claim. Whether and to what extent there should then be an adjournment of the trial is a matter for the trial judge.
109. [109]
     Of course, should Mr Partlin’s criminal proceedings be resolved, the plaintiff might properly seek the review of these orders.