McMaster v State of NSW; Karakizos v State of NSW (2012) NSWDC 108

In this matter Greg Walsh acted for the Plaintiffs in proceedings heard before P Taylor SC DCJ.

The Defendant made an application for a stay of proceedings during related criminal proceedings.  An application was also made by the Defendant to restrict access to subpoena documents arising out of related criminal proceedings.

Greg Walsh acted for each of the Plaintiffs in respect of an incident that occurred on Monday 26 September 2011 at Colyton.  Two police officers attended this address when one of the Plaintiffs, Mr McMaster was shot in the abdomen by one of the police officers in the presence of the other two Plaintiffs.

Mr Walsh swore an affidavit opposing that the documents produced by the State of NSW “have not been accessed, uplifted or copied by” he or any of his staff or to his knowledge “any other person on behalf of the Plaintiff.”

In our argument the Plaintiff’s position was supportive of the criminal proceedings which arose out of the invasion of the home of the Plaintiffs and which had occurred just prior to the shooting of the incident in which Mr McMaster was shot by police.

The Defendant asserted that each of the Plaintiffs should not have access even to their own statements.  Further that Mr McMaster had not yet given a formal statement to police.

His Honour held that neither of these reasons could have given rise to a stay of proceedings.  The fact that Mr McMaster had not given a statement to police was not relevant to the proceedings.

The Defendant argued that the documents produced could only be used in the course of the proceedings.  In that context such statements were provided in the criminal proceedings and as such they could not be accessed in the civil proceedings.

His Honour rejected this contention and noted that it was misconceived.  There was no authority provided by Mr Saidy in support of the contentions nor was any privilege claimed in the proceedings on behalf of the Defendant.

His Honour observed that there was no longer, a rule that civil proceedings should be stayed whilst related criminal proceedings are pending.  See Griffin v Sogelease Australia Ltd & Ors [2003] NSWCA 158; Roshfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19.

The Defendant submitted that the Accused in the criminal proceedings would be at risk in terms of self incrimination in seeking to defend themselves in the civil proceedings.

However the problem with such an argument was the offenders are not even parties to the proceedings.  His Honour made a finding that he was not persuaded that it was likely the Defendant would cross-claim against them.

The Defendant further asserted that it would be contrary to the interests of justice or Mr McMaster or the other Plaintiffs to give a priority in pursuing their own interests in the civil proceedings to the detriment of criminal proceedings.  His Honour rejected this assertion.  It was contrary to well established authorities.

His Honour made orders that the proceedings be consolidated and that first access would be granted to defend subpoenaed documents so such documents could be marked “successful by Plaintiff’s solicitors” and grant access to the Plaintiff’s solicitors to those documents on the undertaking not to provide a copy of same to the Plaintiff other than providing to each Plaintiff a copy of their own statements.

The Defendant was ordered to pay the Plaintiff’s costs of the Notice of Motion.