FEDERAL COURT OF AUSTRALIA
Sebastian v Day [2020] FCA 1089
File number: | NSD 1341 of 2018 |
Judge: | THAWLEY J |
Date of judgment: | |
Legislation: | |
Cases cited: | Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 964 Commissioner of the Australia Federal Police v Zhao (2015) 255 CLR 46 |
Registry: | New South Wales |
Division: | General Division |
National Practice Area: | Commercial and Corporations |
Sub-area: | Commercial Contracts, Banking, Finance and Insurance |
Category: | No Catchwords |
Number of paragraphs: | |
Counsel for the Respondents: | Mr T Jones |
Solicitor for the Respondents: | Law Partners Australia |
ORDERS
First Applicant GUYTUNES PTY LTD Second Applicant | ||
AND: | First Respondent 6 DEGRESS MANAGEMENT PTY LTD Second Respondent NEXDIUS LIMITED Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The proceeding be stayed until the final determination of Regina v Titus Day (Local Court proceedings 2020/00194883) or further order.
2. The proceeding be listed for a case management hearing within 28 days of the determination of the proceedings referred to in Order 1.
3. The parties have liberty to apply on 3 days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THAWLEY J:
1 Mr Day applied for a stay of this proceeding at a case management hearing on 22 July 2020. The applicants consented to a stay.
2 The reason a stay has been sought is that, on 1 July 2020, Mr Day was charged with 61 counts of conduct contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), namely, that he dishonestly caused a financial disadvantage to Mr Sebastian. This has resulted in criminal proceedings in the Local Court of NSW.
3 It is common ground that there is factual overlap between the subject matter of this proceeding and the criminal proceedings. This proceeding concerns, amongst other things, a claim that Mr Day withheld from the applicants, or fraudulently misappropriated, various identified amounts.
4 It is in the interests of justice to grant a stay. That is because Mr Day would be at real risk of prejudice in the conduct of his defence in the criminal trial if this proceeding were not stayed – see: Commissioner of the Australia Federal Police v Zhao (2015) 255 CLR 46 at [35]; Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 964 at [55]. This risk is not outweighed by any other consideration.
5 For these reasons, the Court makes the following orders:
(1) The proceeding be stayed until the final determination of Regina v Titus Day (Local Court proceedings 2020/00194883) or further order.
(2) The proceeding be listed for a case management hearing within 28 days of the determination of the proceedings referred to in Order 1.
(3) The parties have liberty to apply on 3 days’ notice.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. |
Associate:
