12 September 2014
In this recent application for a stay of proceedings Flanagan J was required to consider the circumstances in which a stay of a civil proceeding may be granted, pending the outcome of an allegedly “related” criminal proceeding. This present application arose out of a civil defamation claim brought by Dr Bruce Flegg MP (the “plaintiff”) against his former senior media advisor, Greg Hallett, (the “defendant”). The facts giving rise to the plaintiff’s defamation action, and thus the defendant’s present application, are relatively well-known, and for present purposes only those critical to the Court’s decision will be parsed. Following his dismissal from the plaintiff’s staff, the defendant is alleged to have threatened Anderson, the Director of the Government Media Unit, that he would divulge information about the plaintiff unless he was provided with another job – it is this conversation which is the subject of the criminal charge against the defendant,  – the defendant is charged with threatening an agency of government pursuant to s 54A of the Criminal Code. Subsequently, the defendant conducted a number of interviews in which he allegedly defamed the plaintiff, see –, “carrying out” his threat. The plaintiff then commenced these proceedings against the defendant, and in response, the defendant pleaded a defence of privilege at common law and a defence of qualified privilege pursuant to s 30 of the Defamation Act 2005. –. Pleadings closed, and the defendant subsequently brought the present application for a stay of the defamation proceeding pending the outcome of the criminal proceeding.
As a matter of general principle, an individual the subject of both criminal and civil proceedings, does not have an automatic right to the stay of the civil proceeding simply because its continuation may have the practical effect of forcing them in the civil proceedings to act in a manner which would waive their right of silence and thus disadvantage them in the criminal proceeding. , See generally –. In considering whether to grant a stay, the court must weigh a number of factors including: the effect of publicity upon the subsequent criminal proceeding; the possibility of a miscarriage of justice; the potential impact on the defendant’s right to silence and the burden on the defendant of preparing for the proceedings concurrently and determine whether the circumstances are such that it is just to interfere with a plaintiff’s ordinary rights. See the discussion at –. Upon considering the arguments presented by the defendant, his Honour concluded that Hallett had failed to demonstrate how, “in defending the defamation proceedings at trial, his criminal proceedings [would] be prejudiced, or his right to silence affected”. . Central to this conclusion was that the defendant’s conversation with Anderson, was not “the subject of any pleaded publication of defamatory matter,” , and nor were any material facts related to this conversation pleaded in the current pleadings.  Given that no imputations were pleaded with respect to the defendant’s conversation with Anderson, Flanagan J concluded that it would be unnecessary for the defendant to reveal aspects of his defence to the criminal charge in the process of arguing his pleaded defences, that in presenting his defence he may wish the Court have regard to the surrounding circumstances was not “central to the defences raised” . See –. Further, all that is required for a conviction pursuant to s 54A is evidence of a threat of detriment – that this threat was actually carried out is not required to be proven and thus the “publications” subject of the civil proceeding were not an essential element of the criminal proceeding. . Finally the Court did not consider that the likely publicity surrounding this proceeding would prejudice the criminal proceeding, particularly given the considerable intervening period,  and it was also concerned with the negative impact that delay would have on the plaintiff, and his prospects of obtaining any real relief should the claim be made out,  see . It is for these reasons that the Court considered there was no “real danger of injustice” in the criminal proceeding if the defamation proceeding was not stayed, and thus the defendant’s application was denied.