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The first instance decision in this matter, Australian Securities and Investments Commission v Managed Investments Limited (No 5)  QSC 313; Fryberg J, was considered in  46 QLR. The relevant facts were that ASIC had commenced an action against a company and five persons associated with it. The allegations concerned the improper operation of a managed investment scheme by the company, including allegations of breaches of duty relating to the payment of large sums of money. The allegations against the individuals were based on their derivative liability. Civil penalties were sought against the company and the individuals. The matter had taken some years to prepare for trial and, no doubt, the parties had spent substantial sums. Shortly before the trial was to commence the New Zealand Financial Markets Authority filed two criminal charges against two of the defendants in the action which related to the operation of the managed investment scheme. Those two defendants sought an adjournment / stay of the trial until the determination of the criminal proceedings in New Zealand such that their rights to remain silent in respect of the allegations in the New Zealand Courts would be protected. At first instance Fryberg J refused the stay.
The Court of Appeal refused the appeal and upheld the decision of Fryberg J. The appeal was refused on the day on which it was heard (such that the trial might continue) and the reasons of the Court were delivered a few week’s thereafter. The Court of Appeal reaffirmed that the principles relevant to the exercise of the Court’s discretion to grant a stay were those identified by Wotten J in McMahon v Gould (1982) 7 ACLR 202. It largely accepted the application of those principles by the learned judge at first instance. The Court rejected the suggestion that an applicant for a stay had to, in effect, abandon their privilege by setting out in their evidence on the application precise details of what evidence would or might be given in the trials. That had not been required by the Court below. However, it was observed that there had to be evidence which would show that the applicants would be at a disadvantage were they have to give evidence. It is noted that appellants sought to challenge the correctness of the decision in Gould which has, at times, been questioned. The Court, however, observed that even if the principles were reconsidered, there was no suggestion of “an unconditional right to the stay of civil proceedings, the continuation of which might have the practical result of forcing a defendant in the civil proceedings to take steps which would waive the defendant’s right of silence and thus disadvantage the defendant in criminal proceedings being prosecuted in a different jurisdiction.” In the absence of any such absolute right to a stay the interests of other parties and the public interest have to be taken into account. The Court thereupon determined that the countervailing interests outweighed the protection of the appellants’ right to avoid self incrimination.