Citation: Levis v Stavropoulos [2020] NSWDC 296
Court: District Court of New South Wales
Date: 12 June 2020
Judge: Judge Levy SC
Background
The plaintiff brought proceedings in the NSW District Court claiming damages for assault and battery allegedly committed by the defendant at a restaurant on the Greek island of Mykonos on 2 July 2016. Both parties are NSW residents. The defendant holds dual Australian and Greek citizenship.
The plaintiff had previously reported the alleged events to Greek police, which prompted a lengthy and inconclusive criminal investigation in Greece. That investigation had been running for approximately four years at the time of the hearing, without any current charge having been laid against the defendant.
The court was required to deal with two competing notices of motion. The defendant sought a stay of the NSW civil proceedings, relying on the existence of the Greek investigation. The plaintiff sought orders compelling the defendant to file a defence and providing for case management of the proceedings.
Legal Issues
- Whether the civil proceedings should be stayed under s 67 of the Civil Procedure Act 2005 (NSW) pending the outcome of an alleged parallel criminal investigation or prosecution in Greece
- Whether the Greek investigation constituted sufficiently active and related criminal proceedings to justify a stay
- What case management orders were appropriate to advance the civil proceedings
Decision
The court dismissed the defendant's application for a stay. Judge Levy SC found that the defendant had not established the existence of relevantly active parallel criminal proceedings in Greece. Despite the plaintiff having lodged a complaint with Greek authorities in July 2016, no charge was currently on foot against the defendant. The Council of Judges of the Magistrates Court in Greece had decided in April 2019 that no charges should be laid, and although the Greek Prosecutor subsequently appealed that decision at the plaintiff's instigation, the outcome of that review remained entirely unresolved.
The court characterised the procedural position in Greece as a "procedural fog," noting that any possible trial date was speculative and indeterminate. Against that background, granting a stay of NSW civil proceedings for 12 months, or until the Greek proceedings concluded, could not be justified. The court was not satisfied that the defendant's procedural rights in the NSW proceedings were genuinely at risk from the continuation of the civil case.
The plaintiff's notice of motion was substantially resolved by the defendant filing his defence electronically on the eve of the hearing. The court nonetheless made orders requiring the defendant to serve medical and liability reports and related witness materials within three months, and imposed a suite of case management directions to advance the matter toward trial.
The court also noted that Greek law, as the lex loci delicti (the law of the place where the wrong occurred), would apply as the substantive law, though the lex fori (NSW law) might supplement it where evidence of relevant aspects of Greek law was not adduced. This remained a matter for the parties to address before trial.
Orders Made
On the defendant's notice of motion (filed 23 March 2020):
- The defendant's motion for a stay was dismissed
- The defendant is to pay the plaintiff's costs of the motion on the ordinary basis
- Those costs may proceed to assessment forthwith
On the plaintiff's notice of motion (filed 7 May 2020):
- The court noted the defendant filed his defence on 10 June 2020, making further orders for filing unnecessary
- Within 3 calendar months, the defendant is to serve medical and liability reports, related documents, and witness statements (excluding his own statement for the time being)
- The defendant is to pay the plaintiff's costs of the motion on the ordinary basis
- Those costs may proceed to assessment forthwith
Case management orders:
- Proceedings re-listed for directions on 18 September 2020
- Within 28 days, the plaintiff is to serve evidence-in-chief affidavits and those of any other factual witnesses
- Within 28 days, the plaintiff is to serve all medical evidence she intends to rely upon
- At the September directions hearing, the defendant is to provide the best available current evidence of the procedural status of the Greek criminal investigation
- By 18 September 2020, the parties are to inform the court of the date, time, and mediator appointed for mediation; failing agreement, the court will nominate a mediator and date
Key Takeaways
- The District Court refused a stay where the asserted parallel proceedings amounted to no more than an unresolved prosecutorial review in Greece, with no current charge and no determinate trial date.
- A defendant seeking a stay on the ground of parallel foreign criminal proceedings must demonstrate that those proceedings are genuinely active and related, not merely that an investigation or review process is ongoing.
- Refusing the stay, the court balanced the defendant's procedural concerns against the plaintiff's entitlement to have her civil claim progressed without unreasonable delay.
- This was the defendant's second unsuccessful stay application: an earlier motion had already been dismissed on 27 February 2020 by a different judge on forum non conveniens grounds.
- Where Greek law applies as the lex loci delicti, the court noted that NSW law may supplement it in areas where no evidence of the relevant Greek law is adduced at trial.
Legislation and Cases Referenced
Legislation:
- Civil Procedure Act 2005 (NSW), ss 26, 67
- Uniform Civil Procedure Rules 2005 (NSW), rr 12.11(1)(h), 31.4(1)
Cases:
- Damberg v Damberg & Ors (2001) 52 NSWLR 492; [2001] NSWCA 87 (choice of law: lex loci delicti and lex fori)
- Gipsy Fire v Truth Newspapers Pty Ltd (1987) NSWLR 382
- Levis v Stavropoulos, unreported, 27 February 2020 (Judge Dicker SC) (prior stay application dismissed on jurisdiction grounds)