Chalmers v Leslie

[2020] QSC 343

SUPREME COURT OF QUEENSLAND

CITATION:

Chalmers v Leslie & Anor [2020] QSC 343

PARTIES:

TIMOTHY BRUCE CHALMERS

(plaintiff)

v
HAMILTON WILLIAM NATION LESLIE
(first defendant)
HELEN FRANCES CHALMERS

(second defendant)

FILE NO:

BS No 5039 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2020

JUDGE:

Martin J

ORDER:

1. Pursuant to r 16(g) of the Uniform Civil Procedure Rules 1999 (Qld), the proceeding is permanently stayed.

2.   The plaintiff pay the defendants’ costs of the application.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the first defendant is the plaintiff’s maternal grandfather – where the second defendant is the plaintiff’s mother and the second defendant’s daughter – where the plaintiff claims damages for personal injuries as a result of intentional unlawful sexual assaults committed upon him by the first defendant – where the first defendant has severe dementia – where the first defendant is incapable of providing instructions or giving evidence – where the defendants apply for a permanent stay on the grounds that a fair trial of the proceeding is not possible – whether the proceeding should be permanently stayed

Limitation of Actions Act 1974

Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218, applied
R v Presser [1958] VR 45, applied
Williams v Spautz (1992) 174 CLR 509, cited

COUNSEL:

BF Charrington for the applicant/defendants

SD Anderson for the respondent/plaintiff

SOLICITORS:

Creevey Russell Lawyers for the applicant/defendants

Restore Legal for the respondent/plaintiff

1. The defendants seek an order that these proceedings be stayed because a fair trial of the proceeding is not possible.

   The parties

2. The plaintiff was born in 1990.

3. The first defendant was born in 1926 and is the maternal grandfather of the plaintiff.

4. The second defendant is the daughter of the first defendant and mother of the plaintiff.

   The claim

5. The plaintiff seeks damages for personal injuries for consequential loss as a result of intentional unlawful sexual assaults committed upon him by the first defendant.

6. The plaintiff seeks damages against the second defendant on the basis that she owed him a duty of care at all material times to avoid him suffering harm, and in particular, harm in the form of psychiatric injury arising from physical and sexual abuse.

7. The plaintiff alleges that over a period of time commencing in 1995, the second defendant caused the plaintiff to be placed in the sole care of the first defendant for extended periods of time. During those times, the plaintiff alleges that the first defendant sexually abused him.

8. The plaintiff alleges that the second defendant knew, or ought to have known, that the first defendant had sexually abused other young boys and that, with this knowledge, placed the plaintiff in the first defendant’s care. It is also alleged that the second defendant knew, or ought reasonably to…