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Who gives way at the crossroads?

Who gives way at the crossroads?

By Andrew Field and Michael Rancie

Civil Procedure Practice & Procedure 


Should civil proceedings be stayed when an accused is also facing criminal proceedings? Snapshot The 2015 High Court decision in Zhao marked a new approach when the Court granted a stay of civil proceedings to a defendant also facing criminal proceedings. Although previously great weight was placed on a plaintiff's “entitlement to have their action tried”, the High Court focused on an accused's privilege against self-incrimination. The Zhao approach applies broadly, encompassing both litigation and tribunal hearings and also in cases where it is a witness who is facing criminal proceedings. When an accused is facing both criminal and civil proceedings, should the civil proceedings be stayed? Previously, the emphasis was on a plaintiff's “entitlement to have their action tried”. However, in 2015 in Commissioner of the Australian Federal Police v Zhao (Zhao)1 the High Court stated that an accused's privilege against self-incrimination should not be compromised by having to defend civil proceedings.

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