Moubarak by his Tutor Coorey v Holt - [2019] NSWCA 102

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Moubarak by his tutor Coorey v Holt [2019] NSWCA 102
Hearing dates: 15 April 2019
Date of orders: 24 April 2019
Decision date: 09 May 2019
Before: Bell P at [1];
Leeming JA at [182];
Emmett AJA at [198]
Decision:
1. Grant leave to appeal.
2. Order the applicant to file a notice of appeal in accordance with the draft notice of appeal within 7 days.
3. Appeal allowed.
4. Set aside the orders of the primary judge made on 24 September 2018 and in lieu thereof order that the District Court of New South Wales proceedings 2016/369438 be permanently stayed.
5. Direct that the representatives of both parties forthwith notify the District Court of these orders and that the proceedings listed for 29 April 2019 have been permanently stayed.
6. Direct the parties to file any written submissions as to costs within 14 days and any reply within a further 7 days in the absence of an agreement as to costs.

Catchwords:
CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assaults that occurred in 1973 or 1974 – no applicable limitation period – relevant principles – whether proceedings should be stayed on the basis that defendant, who has dementia, would not receive a fair trial – relevance of delay or passage of time – whether need for explanation for delay – relevance of defendant’s fitness to stand trial and R v Presser [1958] VR 45

LIMITATION OF ACTIONS – civil claim for damages for sexual assaults alleged to have occurred in 1973 or 1974 – no applicable limitation period – whether proceedings should be permanently stayed
TORTS – claim for compensation for historical sexual assault – alleged assaults occurred in 1973 or 1974 – no applicable limitation period – application for a permanent stay of proceedings – defendant suffers from dementia – defendant unable to give instructions or participate in trial
Legislation Cited: Civil Procedure Act 2005 (NSW)
Limitation Act 1969 (NSW)
Limitation Amendment (Child Abuse) Act 2016 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Abdulla v Birmingham City Council [2012] UKSC 47; [2013] 1 All ER 649
Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Anderson v Council of Trinity Grammar School [2018] NSWSC 1633
Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd [2003] NSWSC 618
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Be Financial Pty Ltd v Das [2012] NSWCA 164
Blatch v Archer (1774) 1 Cowp 63
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Clark v R [2008] NSWCCA 122; 185 A Crim R 1
Clarkson v R [2007] NSWCCA 70; 209 FLR 387
Connellan v Murphy [2017] VSCA 116
Eastman v R (2000) 203 CLR 1; [2000] HCA 29
Estate Judd v McKnight (No 4) [2018] NSWSC 1489
Feili v R [2015] NSWCCA 43
Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)
Herron v McGregor (1986) 6 NSWLR 246
Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
JM v R [2017] NSWCCA 138
Kesavarajah v R (1994) 181 CLR 230; [1994] HCA 41
Longman v R (1989) 168 CLR 79; [1989] HCA 60
McFee v Reilly [2018] NSWCA 322
M(K) v M(H) [1992] 3 SCR 6; (1993) 96 DLR (4th) 289
Newcastle City Council v Batistatos [2005] NSWCA 20
Ngatayi v R (1980) 147 CLR 1; [1980] HCA 18
Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210
Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197; [1988] HCA 32
Owners Strata Plan 21372 v Banovic [2017] NSWSC 177
R v Adler (Unreported, New South Wales Court of Criminal Appeal, 11 June 1992)
R v Davis (1995) 57 FCR 512
R v Edwards [2009] HCA 20; 255 ALR 399
R v Goldburg (Unreported, New South Wales Court of Criminal Appeal, 23 February 1993)
R v Hatfield [1999] NSWCCA 340
R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155
R v McCarthy (Unreported, New South Wales Court of Criminal Appeal, 12 August 1994)
R v Presser [1958] VR 45
R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7
R v Stringer [2000] NSWCCA 293; 116 A Crim R 198
R v Tier [2001] NSWCCA 53; 121 A Crim R 509
R v Tolmie (Unreported, New South Wales Court of Criminal Appeal, 7 December 1994)
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42
Robinson v R [2008] NSWCCA 64
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
State of New South Wales v Plaintiff A [2012] NSWCA 248
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Watson v Foxman (1995) 49 NSWLR 315
Watt v Assets Company Ltd [1905] AC 317
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Wills v R [2007] NSWCCA 160; 173 A Crim R 208
Texts Cited: J Goudkamp, ‘Delay in Commencing Proceedings within the Limitation Period in Australia’ (2007) 26 Civil Justice Quarterly 185
J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015)
New South Wales, Parliamentary Debates, Legislative Assembly, 16 February 2016 (Gabrielle Upton, Attorney General)
Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015)
Category: Principal judgment
Parties: Joseph Moubarak (Applicant)
Suzanne Holt (Respondent)
Representation:
Counsel:
P R Boulten SC, S J Stanton (Applicant)
J E Maconachie QC, T J Ryan (Respondent)
Solicitors:
Sparke Helmore Lawyers (Applicant)
Sydney Lawyers & Associates (Respondent)

File Number(s): 2018/327586
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

28 September 2018

Before:

Wilson DCJ

File Number(s):

2016/369438

Judgment

BELL P:

Introduction

The applicant, Mr Moubarak, is the uncle of the respondent, Ms Holt, who has brought a civil claim against him in the District Court of New South Wales for damages for sexual assault alleged to have occurred on some four occasions in 1973 or 1974 when she was 12 years old.
The alleged assaults occurred some 42 or 43 years prior to the commencement of proceedings in 2016. By April 2019, when the proceedings were due to come on for trial, more than 45 years would have elapsed since the alleged assaults.
The bringing of a civil claim for compensation so long after the events in question has been made possible by amendments to the Limitation Act 1969 (NSW) (Limitation Act), effected by the introduction of s 6A of that Act in 2016. Section 6A(1) relevantly provides that:

“An action for damages that relates to… personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under [the Limitation] Act …” (Emphasis added)

“Child abuse” is defined to include sexual abuse.

By a notice of motion filed in the District Court on 5 June 2018, the applicant, by his tutor, Mr George Coorey, sought a permanent stay of the proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) or, alternatively, an order that the proceedings be dismissed pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW), on the basis that, as was common ground, the applicant had advanced dementia and could not participate in the proceedings, either through the giving of instructions or evidence. As such, it was contended that a fair trial would not be possible in this exceptional circumstance with the consequence that the continuation of proceedings would amount to an abuse of process.
The primary judge did not consider that the circumstances of the case were sufficiently exceptional to warrant permanently staying the proceedings or dismissing the claim and thus dismissed the notice of motion with costs. It was from that order that leave to appeal was sought.
As frequently occurs in this Court for reasons of efficiency, on 15 April 2019, the application for leave to appeal was heard concurrently with the appeal (as if leave to appeal had been granted). It was not until shortly before the luncheon adjournment on 15 April 2019, however, that the Court was informed that the trial in the District Court had been set down for three to five days commencing on 29 April 2019. This fact had not been disclosed to the Registrar at the time the summons seeking leave to appeal was set down for hearing. This was not only regrettable but in apparent breach of a direction of the District Court to seek expedition of the hearing of the application for leave to appeal as a condition of vacating an earlier trial date which had been set for late January 2019. No expedition was sought. If it had been, it would have been granted.
At the conclusion of argument on 15 April 2019, the Court reserved its decision. On 24 April 2019, given the imminence of the trial date in the District Court and the Court having reached a view that leave to appeal should be granted and the appeal allowed, the Court made the following orders:

“1.   Grant leave to appeal.
2.   Order the applicant to file a notice of appeal in accordance with the draft notice of appeal within 7 days.
3.   Appeal allowed.
4.   Set aside the orders of the primary judge made on 24 September 2018 and in lieu thereof order that the District Court of New South Wales proceedings 2016/369438 be permanently stayed.
5.   Direct that the representatives of both parties forthwith notify the District Court of these orders and that the proceedings listed for 29 April 2019 have been permanently stayed.
6.   Stand the matter over for the publication of reasons and directions as to costs both of the appeal and the notice of motion in the District Court on a date to be fixed.”

What follows are my reasons for those orders. I will refer to the applicant, Mr Moubarak, as the defendant and to the respondent, Ms Holt, as the plaintiff.

Issues arising

The central issue in the present case concerns the impact of the defendant’s severe dementia on his ability to obtain a fair trial in civil proceedings of the kind here in question.
Resolution of this central issue requires a consideration of at least the following sub-issues:

What role, if any, does delay in bringing proceedings play (both as a matter of general principle and in the particular circumstances of this case) in an assessment of whether the defendant would be deprived of a fair trial, and what is the significance, if any, of the existence or absence of any explanation for such delay?

Does a fair trial require as an essential element that the defendant be able to participate in the proceedings (in the sense of giving instructions and having the ability to give evidence) or could a fair trial nonetheless be possible where an otherwise incompetent defendant is represented by a tutor who is empowered to conduct a defence of the proceedings?

What relevance, if any, does the public interest in allowing claims for damages for historical sexual assault to be heard have in assessing whether or not a fair trial is available?

Leave to appeal

The principles governing leave to appeal in this court are well known. Generally, it is necessary to establish that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]–[38]; Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
In my opinion, the current application raises questions of significant public importance. The amendments to the Limitation Act effected by the introduction of s 6A, eliminating any limitation period for cases of sexual abuse of a minor, has opened the way for claims to be brought such as the present, many, many years after the alleged events in question. In those circumstances, it may readily be expected that some defendants will be elderly, frail and in various stages of mental and physical decline, matters which may bear directly upon their ability to obtain a fair trial. This is the first such case to reach this Court but filings of such claims in the Common Law Division of this Court (in excess of 200 since 2017) and, it may readily be assumed, a large number of such claims in the District Court suggest that appellate consideration by this Court of the various issues that have been identified in [11] above is timely.
In addition to the undoubted questions of public importance that arise, for reasons which will be developed below, the reasoning of the primary judge discloses some errors of principle which open his decision up for appellate review.
For these reasons, I granted leave to appeal.

Factual background

The following section is drawn both from findings made by the primary judge and the evidence that was before him, which included various medical reports relating both to the plaintiff and the defendant, as well as the police file which came into existence following the plaintiff’s complaint to the police in 2015. The file was subpoenaed for the purposes of the proceedings.
In late 1973 or early 1974, when the plaintiff was 12 years old and, as it transpired, temporarily in Australia – she had come with her parents from Lebanon, to which she returned in 1974 – the defendant allegedly sexually assaulted her on four occasions. The defendant was an adult at the time of the alleged assaults.
Three of the assaults were alleged to have taken place in the defendant’s bedroom at the plaintiff’s grandparents’ house. According to the statement of claim, the defendant and the plaintiff resided in the same house at all material times. These assaults were not said to have been witnessed by anybody. The fourth assault was alleged to have occurred in an unspecified park in the city.
Although, as noted at [17] above, the plaintiff returned to Lebanon with her parents in 1974, she returned to Australia in 1977, aged 16, having eloped with a man who was to become her first husband.
In 1987, the plaintiff claims to have told her friend, Ms Maria Evans, of the alleged assaults. In 1991, she says she told her second husband (her fiancé at the time) about the assaults, as well as her sisters. Notwithstanding these facts, according to a 2017 report of a psychiatrist, Dr Richa Rastogi, it was only in 2012 that the plaintiff “felt something was not right in her life … and it dawned on her about her own upbringing”.
In February 2013, the plaintiff told her general practitioner of the alleged assaults and, beginning in April 2015, the plaintiff discussed the alleged assaults with a number of psychologists.
In February 2014, the defendant moved into the Holy Spirit nursing home. He was then 85 years of age. In the same month, Mr Coorey was appointed his legal guardian and financial manager pursuant to the NSW Trustee and Guardian Act 2009 (NSW). Mr Coorey is the defendant’s tutor in these proceedings.
On 11 May 2015, the plaintiff reported the alleged assaults to the police and, on 30 May 2015, she provided a statement to the police. Ms Evans provided a statement to the police on 20 July 2015. Mr Coorey also provided a statement to the police on 25 August 2015. All three of these statements were in evidence before the primary judge.
According to Ms Evans’ police statement, the plaintiff disclosed to her in about 1987 that her uncle had assaulted and raped her when she was 12 years old. Ms Evans also referred to a telephone call she had with the plaintiff in 2012 in which the plaintiff recounted that she had confronted her uncle and “asked him why” and that her uncle had said that “he couldn’t remember and that he couldn’t change the past, but if there was anything he could do”. Ms Evans recounted that the plaintiff said that she had told her uncle that “she needed financial help because her business was going down”. This was a reference to the financial status of the plaintiff’s shop in Wagga Wagga which, on the evidence, failed in or about 2012 or 2013, resulting in the plaintiff’s bankruptcy.
Mr Coorey’s police statement of 25 August 2015 referred to the fact that he had known the defendant for 50 years, having first met him when he, Mr Coorey, was aged six. The defendant had been a friend of his father. In his police statement, Mr Coorey states that he was contacted in early 2013 by a person who subsequently identified herself as the plaintiff. Mr Coorey said that after about a month of calling and refusing to identify herself, the plaintiff identified herself as the niece of the defendant and asked him on a number of occasions for a copy of the defendant’s will and about Mr Coorey’s relationship with the defendant.
Paragraph 7 of Mr Coorey’s police statement was in the following terms:

“Suzie [the plaintiff] said that Joe [the defendant] took the family assets and he had no right to them and he should look after his nephews and nieces. She told me she was in trouble with her business in Wagga Wagga, which was furniture business, she said she was losing money. She said Joe had promised her $50,000. She had already taken Joe to the Arab Bank Campsie where Joe was very well known staff became suspicious and Joe said to the staff that Suzie wanted a loan for $50,000 not that he was going to give Suzie that. Joe and Suzie both told me this at different times. Suzie at this point became very agitated, angry and embarrassed and humiliated that Joe did not give her the money.”

Mr Coorey also referred to a meeting with the plaintiff in about March or April 2014 in which he says the plaintiff produced a copy of the defendant’s cheque book and suggested to him that the defendant had been “scammed” to the tune of $11,500.
Relevantly, for present purposes, in paragraph 16 of his police statement, Mr Coorey stated that the plaintiff “did not disclose at any time any allegations of sexual assault on her by [the defendant] from when she was a child”. Mr Coorey’s police statement also asserted that the only contact he had ever had with anyone from the defendant’s family was when he was contacted by the plaintiff (in early 2013) and then (in early 2015) by a man by the name of Mr Joseph Saad. It appears from the police file which was subpoenaed and in evidence before the primary judge that Mr Saad was the plaintiff’s brother. No statement was obtained from him.
The police were not able to obtain a statement from the defendant. The police file recorded that, on 6 November 2015, the police received a fax from the Sydney Local Health District (Mental Health Services). In that fax, Dr Robyn McGregor, a staff specialist in Psychiatry of Old Age, stated:

“Joseph Moubarak has been resident at Holy Spirit since 26.02.2014. He was transferred following an admission to Canterbury Hospital. He had been living in squalor and unable to care for himself, secondary to dementia.
Background medical problems are ischaemic heart disease with bypass grafts in 1994, diverticular disease of the bowel, hypertension, hypercholesterolaemia, benign paroxysmal vertigo, resolved right lower lobe pneumonia, renal calculi, gastro-oesophageal reflux and recurrent falls.
Mr Moubarak is now severely demented. On entering residential care he scored 13/30 on the RUDAS, an assessment scale for dementia, with 30 being a normal score. He is unable to be tested now, implying a score of 0/30.
I first saw Mr Moubarak on 18.05.2014. He was referred by his general practitioner, Dr La, due to behavioural problems of screaming, aggression and resistance to care. On that date Mr Moubarak was not oriented to place or time, gave his age as 73, had difficulty understanding instructions, was unable to give any history, unable to name his friend and guardian and had little spontaneous speech. His responses to most questions were consistently about humans being unhappy. I thought Mr Moubarak was depressed and prescribed escitalopram, an antidepressant.

I reviewed Mr Moubarak on 06.06.2014 and increased the antidepressant dose. Mr Moubarak remained stable until September 2015. A further request for a consultation from Dr La resulted in Mr Moubarak being seen by my registrar on 15.10.2015. My registrar suggested behavioural strategies for use to manage Mr Moubarak's regular yelling.
I then reviewed Mr Moubarak on 30.10.2015. He was unable to respond to any commands or questions and thus unable to complete a RUDAS. However, I doubt that he comprehends English anymore as the responses he did give had no relation to the questions asked.
In summary, Mr Moubarak is now severely demented, probably no longer comprehends English, is unable to walk independently and needs assistance with all personal activities. He would be unable to be interviewed.”

On 13 April 2016, the plaintiff and Ms Evans met with two police officers who informed them that the police were “unable to proceed further and put the alleged offender before the Court” because, due to the defendant’s physical and mental condition, he was not fit for trial. The police file records that, having been told by the police about the Royal Commission into Institutional Responses to Child Sexual Abuse but that the police’s understanding was that “they can’t offer money or compensation”, the plaintiff said “[w]ell, I’ll have to go after his estate then.” Later that month, the plaintiff sent an email to one of the police officers with whom she met, stating “I’ve taking [sic] your advise [sic] and have been to see a lawyer in civil law”.
The meeting between the plaintiff and the police referred to above occurred less than a month after the amendments to the Limitation Act referred to in [4] of these reasons were introduced. It is appropriate at this juncture to note the legislative background to the amendments.

Legislative background to the Limitation Act amendments

On 17 March 2016, s 6A was introduced into the Limitation Act, removing any limitation period for child abuse actions: see Limitation Amendment (Child Abuse) Act 2016 (NSW). Section 6A provides as follows:

“6A   No limitation period for child abuse actions
(1)   An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act.
(2)   In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age:
(a)   sexual abuse,
(b)   serious physical abuse,
(c)   any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse).
(3)   To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age.
(4)   This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise.
(5)   This section extends to the following causes of action:
(a)   a cause of action that arises under the Compensation to Relatives Act 1897,
(b) a cause of action that survives on the death of a person for the benefit of the person’s estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944.
(6)   This section does not limit:
(a)   any inherent jurisdiction, implied jurisdiction or statutory jurisdiction of a court, or
(b)   any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.
Note. For example, this section does not limit a court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.”

Similar, albeit not identical, reforms have been enacted in all other Australian states and territories: see Limitation Act 1985 (ACT), s 21C; Limitation Act 1981 (NT), s 5A; Limitation of Actions Act 1974 (Qld), s 11A; Limitation of Actions Act 1936 (SA), s 3A; Limitation Act 1974 (Tas), s 5B; Limitation of Actions Act 1958 (Vic), ss 27O–27R; and Limitation Act 2005 (WA), s 6A.
The reforms were enacted in response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. In September 2015, the Commission released its Redress and Civil Litigation Report, recommending as follows:

“85.   State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child.
86.   State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past.
87.   State and territory governments should expressly preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period.”

The Attorney General referred to a number of the Commission’s findings in her second reading speech. She emphasised that existing limitation periods posed a barrier to victims of child abuse seeking redress, stating that:

“The Royal Commission found ‘limitation periods are a significant, sometimes insurmountable, barrier to survivors pursuing civil litigation.’ It is now widely understood that, due to the injuries inflicted on them by their abusers, survivors of sexual and other child abuse often take decades to understand and act on the harm arising from the abuse. The royal commission's research has revealed that the average time to disclose childhood sexual abuse is around 22 years. As the applicable limitation period is currently between three and 12 years, depending on when the abuse occurred, many survivors find the statutory period in which to commence a claim for damages has passed by the time they are able to commence proceedings.”

The Commission further observed that:

“When survivors are able to disclose their abuse, their first needs may be counselling and psychological care and the assistance provided through various support services. They might also wish to report to police and consider options for seeking justice through the criminal law. It cannot be assumed, or expected, that considering whether to commence civil litigation will be their first priority.
If a claimant does not know that they may have a claim or they face substantial psychological barriers in disclosing the essential elements of their claim, it makes little sense to talk of them ‘sleeping’ on their rights.”

Critically, for the purposes of the present case, s 6A preserves the court’s power to stay or dismiss proceedings. In this regard, the Attorney General noted that:

“It is a fundamental tenet of the rule of law that all parties receive a fair trial. These amendments preserve the existing powers of a court to safeguard the right to a fair trial. They do not restrict a court from dismissing or staying proceedings where it determines that a fair trial is not possible; for example, where the passage of time has led to a loss of evidence capable of establishing a case to be tried.”

Similar observations were made by the Commission, which stressed that the court’s power “to prevent unfair trials should not be limited”. The Commission stated that:

“It seems to us that the objective should be to allow claims for damages that arise from allegations of institutional child sexual abuse to be determined on their merits. The claimant has no incentive to delay commencing proceedings. The claimant will still need to prove their case through admissible evidence. The defendant will be protected from unfair proceedings as a result of the passage of time by preserving the court’s power to stay proceedings.”

Commencement of proceedings

On 9 December 2016, the plaintiff filed a statement of claim seeking damages for the alleged assaults, including aggravated and exemplary damages.
Following an interlocutory application for further particulars (which was granted and which disclosed that the other residents of the house in which the assaults were alleged to have occurred were the plaintiff’s grandparents, parents and sister) and an application for interrogatories (which was not granted), the defendant filed a defence on 12 April 2018, the preamble to which stated as follows:

“In answer to the whole of the Statement of Claim filed on 9 December 2016 (SOC), the Defendant’s tutor says, owing to the Defendant’s medical condition (dementia), he believes and understands that the Defendant does not know or cannot recall and therefore cannot admit the allegations contained in the whole of the SOC. Notwithstanding, the Defendant is required to file a Defence to the SOC and accordingly, relies on the following facts and assertions in answer to the SOC…”.

Notwithstanding the terms of the preamble to the defence, the defence contained numerous denials, including denials that the defendant “indecently and/or sexually assaulted the [p]laintiff, as pleaded or otherwise”.
At [54] of his judgment, the primary judge said that it was “not without significance” that the defendant had filed a defence in which certain matters were admitted, not admitted and denied. His Honour stated that “there must be some source of instructions which permitted the solicitor to complete the defence in that manner”. As his Honour’s apparent reliance on this matter is the subject of grounds 1–4 of the notice of appeal, it is useful to set out [7]–[9] of the primary judge’s judgment:

“[7] Notwithstanding [the preamble], the defence goes on to answer the Statement of Claim by making what appears to be informed admissions, non-admissions and denials to the allegations made against the defendant in the Statement of Claim. This causes the Court to question the source and reliability of the matters contained in the defence if what is claimed by the defendant concerning his medical condition is accurate.
[8] Furthermore, the veracity of [the] defendant’s position as clearly articulated in the defence is the subject of certification by the solicitor for the defendant:
‘I certify under clause 4 of schedule 2 to the Legal Profession Uniform Law Application Act 2014 that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the defence to the claim for damages in these proceedings has reasonable prospects of success.’

[9]   The clear inferences arising from this certification by an experienced solicitor are:
(a)   there are provable facts based on instructions; and
(b)   those facts give rise to a belief in the solicitor and the defence (which denies liability) has reasonable prospects of success.”

As has already been noted, the defendant’s notice of motion seeking a stay or dismissal of the proceedings was filed on 5 June 2018 and came on for hearing on 1 August 2018. Judgment dismissing the motion was delivered on 28 September 2018.

Primary judge’s reasoning

The primary judge accepted, based on various medical reports tendered without objection, that the defendant was “not a competent witness” and therefore “would not by his evidence be able to defend the claim brought against him”. His Honour made reference to the report of Dr McGregor, set out above at [29].
Further, at [25], the primary judge observed as follows:

“Dr Walsh provided the opinion that the defendant was not competent (s 13 Evidence Act 1995) to give evidence ‘due to both not having the capacity to understand questions adequately and also due to not having the capacity to appropriately give answers’ (report page 2). He referred to the practical effects of such a person being called as a witness, including ‘poor recall of past events’ (report page 3). Dr Walsh stated ‘(the defendant) is now non-verbal due to his severe dementia and is unable to engage with and comprehend his surroundings’. In respect of the matter, the subject of the proceedings, Dr Walsh opined that the defendant ‘is unable to provide instructions or give evidence’ and ‘is unable to verbally recount details of matters the subject of the claim’.”

Notwithstanding this evidence and the findings as to the defendant’s condition, none of which were challenged or put in issue, the primary judge dismissed the defendant’s notice of motion.
The primary judge said that whilst he accepted that the defendant was under a legal incapacity and that “[p]lainly, assessed in the context of criminal proceedings, a Court would most likely find that the defendant is not fit to stand trial by reason of his medical and other conditions”, he did not consider that the doctrine of fitness to stand trial was relevant to determining the application for a permanent stay of proceedings.
In the court below, counsel then appearing for the defendant referred the Court to the well-known decision of Smith J in R v Presser [1958] VR 45 at 48 (Presser), where the question before the court was whether the accused in criminal proceedings, because of mental defect, failed to come up to certain minimum standards “which he needs to equal before he can be tried without unfairness or injustice to him” (emphasis added). Smith J continued:

“He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.”

Presser and, in particular, the observations of Smith J in relation to the minimum standards required before an accused can be tried “without unfairness or injustice”, has been picked up, applied or approved in a number of subsequent decisions in both the High Court (Ngatayi v R (1980) 147 CLR 1 at 8; [1980] HCA 18 (Ngatayi); Kesavarajah v R (1994) 181 CLR 230 at 245–246; [1994] HCA 41 (Kesavarajah); Eastman v R (2000) 203 CLR 1; [2000] HCA 29 (Eastman)) and the New South Wales Court of Criminal Appeal: see, for example, JM v R [2017] NSWCCA 138; Feili v R [2015] NSWCCA 43; Robinson v R [2008] NSWCCA 64; Clark v R [2008] NSWCCA 122; 185 A Crim R 1; Wills v R [2007] NSWCCA 160; 173 A Crim R 208; Clarkson v R [2007] NSWCCA 70; 209 FLR 387 (Clarkson); R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 (Rivkin); R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155; and R v Tier [2001] NSWCCA 53; 121 A Crim R 509.
It will be necessary to return to the significance and relevance or otherwise of the Presser test later in these reasons. Its relevance forms the basis of ground 9 of the notice of appeal. It is sufficient for present purposes to note that the primary judge did not consider it to have any relevance to the application before him, and said so in terms.
Under the heading “Disposition”, the primary judge commenced his analysis by noting, at [55], that it was important to have regard to the nature of the proceedings. He then continued:

“Whilst the offending took place some time ago, it is of more recent times that the plaintiff became fully aware of the conduct of the defendant and, more particularly, the effect it has had upon her life. On one view of her evidence, it might be said that it was not until she was aware of those facts that the elements essential to the cause of action were known to the plaintiff.”

If, by “more recent times”, the primary judge was referring to the plaintiff’s recounting to Dr Rastogi that, in 2012, “it dawned on her about her own upbringing” (see [20] above), that evidence may not sit comfortably with other evidence that she told Ms Evans about the assaults in 1987 and her sisters in 1991.
Putting that matter to one side, whether or not the plaintiff fully appreciated the significance of the alleged conduct or its effect on her until relatively recent times does not appear to me logically to be capable of bearing upon whether the defendant will get a fair trial. The consequence of the amendments to the Limitation Act and the introduction of s 6A, in particular, is that the plaintiff was “within time” and did not need to seek any extension of time or to justify any delay in the commencement of proceedings.
Returning to the primary judge’s judgment, his Honour next referred, at [56]–[57], to changing community standards and expectations in respect of permitting actions for child abuse to be brought without the limitations ordinarily applied in proceedings for damages. His Honour referred to portions of the Attorney General’s second reading speech, including the passages set out above at [35] and [37]. Earlier, at [49], his Honour had accepted the plaintiff’s submission that “it is in the interests of the public that litigants be allowed to have their cases determined by the Court”.
His Honour then said, at [59], that “[t]he nature of the trial in the present matter would predominantly rely upon the sworn evidence of the plaintiff”. He said that the plaintiff would “no doubt” be cross-examined on her evidence and any inconsistences between her evidence and her police statement or any statements she made to other persons “would be the subject of emphasis which may bear upon her credibility or reliability”. His Honour also noted, at [60], that there was no evidence that the other occupants of the house where the offending allegedly took place were “not available or cannot assist in determining the facts in dispute at trial”. He said “[w]hilst the evidence of such a witness may not necessarily support the defendant’s case, it would, I expect, be informative as to other matters which will assist the Court in the fact finding process.”
His Honour then continued as follows:

“[61]   Whilst, from the perspective of the defendant, the trial will be more challenging than if he was able to give evidence, the evidence before the Court presently does not permit a finding that allowing the matter to proceed will necessarily lead to an unfair hearing.
[62]   Having regard to the public interest in advancing claims of this type and the evidence of prior complaint, I am not satisfied that the defendant has discharged his onus justifying the Court to exercise the discretion sought. There is no evidence before the Court of the unavailability of any pertinent witness (save for the limitations on the defendant) or any documentary evidence which may assist either party in obtaining a fair trial.
[63]   I am not satisfied that the circumstances which exist here are sufficiently exceptional to stay the proceedings, or to dismiss the claim.”

The reference in [62] to the absence of any evidence of the unavailability of any pertinent witness would appear to be a reference back to [60], which I have referred to in [55] above. It is the subject of challenge in ground 8 of the notice of appeal.

Grounds of appeal

The defendant’s notice of appeal raised the following issues:

whether the primary judge failed to have proper regard to the preamble of the defendant’s defence in making the findings that he did at [7]–[9] and whether, in so finding, the defendant was denied procedural fairness: appeal grounds 1–4;

whether the proceedings should be permanently stayed or dismissed as an abuse of process on the basis that the defendant would not receive a fair trial: appeal grounds 5–8; and

whether considerations of fitness to plead or stand trial are relevant to the defendant’s application to permanently stay or dismiss the proceedings: appeal ground 9.

Principal focus in oral submissions in this Court was placed on the second issue. Appeal grounds 5–8 to which that issue related were stated in the following terms:

“5   The learned judge erred in holding that the evidence of complaint was sufficient to warrant the Defendant being required to stand his trial in circumstances where the evidence of complaint was but a factor in the consideration of the application for a stay and, as such, raised belatedly in circumstances where its late notification was a further aspect that would render the proceedings an abuse of process and in respect of which his discretion miscarried by failing to so hold.
6   The learned judge erred in failing to hold that the Applicant's case was suitably able to be seen as a case of extreme circumstances warranting the finding of exceptional circumstances where the trial would amount to an abuse of process if he were required to defend the proceedings by reason of the fact that he could not give evidence to defend himself and the proceedings had been brought in circumstances where the institution of civil proceedings after the report and investigation by the police who determined that a trial could not take place was indicative of the selection of the civil proceedings as a tactical procedure by the Respondent in circumstances that warranted the matter being properly classified as an abuse of process and not otherwise.
7   The learned judge further erred in holding that whilst the trial would be more challenging for the Defendant; this was insufficient to warrant a finding that the matter being allowed to proceed would not amount to an unfair hearing. This was clearly a further miscarriage of the exercise of the discretion of the learned application judge insofar as he failed to properly weigh and assess the trial that the Applicant must face was a trial that he could have no effective participation in, and he was the sole if not principal witness in respect of the allegations and was unable to be heard in circumstances where the delay afforded to him has occurred clearly after it was known to the Respondent that he was medically unable to effectively participate and defend himself.
8   The learned trial judge erred in holding that there was no evidence before the Court as to the unavailability of any pertinent witness insofar as the affidavit evidence filed for both the Applicant and the Respondent did not allow such a finding to be made.”

It is convenient to deal first with appeal ground 8 which is essentially an attack on [60] and [62] of the primary judge’s judgment before turning to appeal grounds 5–7, which raise the larger issues of principle to which I drew attention in [11] of these reasons for judgment.

Appeal ground 8

This ground of appeal is essentially a challenge to the primary judge’s factual conclusion that there was “no evidence … of the unavailability of any pertinent witness (save for the limitations on the defendant)”.
Putting to one side the fact that to describe the defendant’s ability to give evidence as involving “limitations” was a gross understatement in light of his Honour’s unqualified and dramatic conclusion about the defendant’s unfortunate mental state to which reference has been made at [44] and [47] above, it would appear that the “pertinent” witnesses to whom he was referring but did not in terms identify were those whom he referred to in [60] of the judgment, namely, the occupants of the house in which three of the alleged assaults were said to have occurred. If this be the case, his Honour’s statement was not only in error but the evidence (together with obvious inferences) disclosed that at least three, and more likely four, of the occupants of the residence were unavailable to give evidence.
It will be recalled that the five occupants apart from the plaintiff and, on her case, the defendant were the plaintiff’s grandparents, parents and sister (see [40] above).
As to her grandmother, there was evidence that she died in or about 1990 or 1991. Given that the plaintiff is 57 years of age, it is highly likely that her grandfather is also now deceased. Senior counsel for the plaintiff did not seriously cavil with this likelihood.
In relation to the plaintiff’s parents, the plaintiff’s police statement recorded that the last time she saw her parents was when she was 16 (over 40 years ago). It can be inferred from the terms of her statement that this was in Lebanon, where the plaintiff and her parents had returned in 1974. This evidence rendered it highly unlikely that the plaintiff’s parents would be available to give evidence, even if they were still alive and had any meaningful evidence to give, it being recalled that the assaults were said to have been unwitnessed and the plaintiff gave no evidence of ever mentioning them to her parents.
Whilst the primary judge was correct to say that there was no evidence as to the unavailability of the plaintiff’s sister, the final occupant of the house, his Honour plainly erred in his statements in [60] and [62] of his reasons. These paragraphs formed a significant component of the primary judge’s relatively terse reasoning process and the error which has been identified necessarily affects the exercise of discretion that he ultimately exercised in declining a stay.
The vitiation of that exercise of discretion leads to the need for this Court to re-exercise it. Both as part of that task and for the purposes of considering appeal grounds 5–7, it is necessary to consider the principles applicable to the grant of permanent stays of proceedings, particularly in the context of a significant delay between the events in question and the commencement of proceedings and the defendant’s mental state and its implications for the availability of a fair trial.

Principles governing permanent stays of proceedings

Section 67 of the Civil Procedure Act provides that “[s]ubject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.”
In State of New South Wales v Plaintiff A [2012] NSWCA 248 at [15], Basten JA noted that:

“Section 67 does not identify any particular criteria as relevant to the exercise of the power but, at least in the Supreme Court, it may be understood to cover a variety of circumstances in which the Court’s inherent jurisdiction to prevent abuse of its process may be invoked.”

In Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 (Jago), Gaudron J put the inherent power on an even broader footing, indicating that a permanent stay of proceedings may be granted when the “interests of” the administration of justice so demand. Abuse of process which, as shall be seen, is itself a concept that may manifest itself in numerous forms, is but one circumstance where the interests of the administration of justice will warrant the grant of a permanent stay of proceedings.
From a brace of decisions of the High Court between 1989 and 2006 (Jago; Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 (Spautz); Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 (Walton); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (Batistatos)), the following uncontroversial propositions may be derived:

The onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant: Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ);

A permanent stay should only be ordered in exceptional circumstances: Jago at 31 (per Mason CJ), 76 (per Gaudron J); Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ); Walton at 388 (per Mason CJ, Deane and Dawson JJ);

A permanent stay should be granted when the interests of the administration of justice so demand: Jago at 30 (per Mason CJ), 74 (Gaudron J); Spautz at 520 (per Mason CJ, Dawson, Toohey and McHugh JJ); Batistatos at [12] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);

The categories of cases in which a permanent stay may be ordered are not closed: Jago at 74 (per Gaudron J); Batistatos at [9] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);

One category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive: Jago at 74 (per Gaudron J); Walton at 393 (per Mason CJ, Deane and Dawson JJ);

The continuation of proceedings may be oppressive if that is their objective effect: Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);

Proceedings may be oppressive where their effect is “seriously and unfairly burdensome, prejudicial or damaging”: Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 at 247 (per Deane J); [1988] HCA 32 cited in Jago at 74 (per Gaudron J); Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);

Proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); and

Proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ).

Significance of delay or passage of time

In Abdulla v Birmingham City Council [2012] UKSC 47; [2013] 1 All ER 649 (Abdulla) at [41], Lord Sumption observed that:

“Limitation reflects a fundamental and all but universal legal policy that the litigation of stale claims is potentially a significant injustice. Delay impoverishes the evidence available to determine the claim, prolongs uncertainty, impedes the definitive settlement of the parties' mutual affairs and consumes scarce judicial resources in dealing with claims that should have been brought long ago or not at all.”

Legislatures, through the enactment of statutes of limitation, and equity, in the form of the doctrine of laches, have recognised the unfairness that may be generated as a consequence of the passage of time between the events giving rise to a civil claim and the resolution of that claim in curial proceedings: see, for example, Watt v Assets Company Ltd [1905] AC 317 at 329, 333; J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) at [38-025].
Unfairness in this context may manifest itself in different ways. As Lord Sumption observed, there is unfairness in prolonging uncertainty (whether commercial or personal or both) in relation to unresolved claims and as yet unarticulated future claims. This first form of unfairness cannot be complained of in the relatively rare circumstances of the present case where the legislature has seen fit not to impose any limitation period at all. Where no limitation period applies to a civil claim, the certainty that would otherwise be secured by a limitation period is subordinated to the desirability, as a matter of public policy and legislative choice, of claims being permitted to be made at a time of the claimant’s choosing.
The absence of a limitation period for a particular type of claim also means that a plaintiff with such a claim will generally not be able to be criticised for any delay in bringing such a claim (at least where it is not credibly suggested that the delay was deliberate or in some way colourable). Because a claim is not precluded, either absolutely or contingently, by a limitation period or a limitation period subject to discretionary extension, no occasion arises for an explanation for any delay.
To the extent that “delay” connotes a measure of culpability, the use of that term is inapt in circumstances where the legislature has removed any limitation period within which proceedings of a particular kind may be brought. As explained below, however, “delay”, when used in an objective or non-value laden sense to denote the passage of time between a particular event or events and the commencement of proceedings, has continuing potential significance even where a limitation period has been removed by the legislature.
A second form of unfairness that may arise from the effluxion of time is the effect of delay on the trial process. This involves what Lord Sumption in Abdulla referred to as the impoverishment of the evidence available to determine the claim. This consequence and its significance will inevitably vary from case to case. It is less likely to be a critical factor where the resolution of a case turns predominantly on documentary evidence, particularly in an age of extensive data retention. Delay in such a case is unlikely to have a bearing on the fair and just resolution of such a dispute at trial, however long after the events in question that trial occurs. By way of contrast, the impoverishment of evidence will be more acute where a trial is exclusively or heavily dependent on oral evidence and the quality of witnesses’ memory and recollection. The fallibility of human memory and the capacity of the human mind for ex post rationalisation of events long since passed are the subject of the frequently cited observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318–319. See also McFee v Reilly [2018] NSWCA 322 at [42] and the discussion of the phenomenon of false memories honestly believed by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), noted by Davies J in Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 at [169].
The corrosive effect of the passage of time and its consequences for the quality and integrity of the trial process have also been the subject of typically penetrating insight and analysis by McHugh J, first as a member of this Court in Herron v McGregor (1986) 6 NSWLR 246 at 253–255 and then as a member of the High Court in Longman v R (1989) 168 CLR 79; [1989] HCA 60 (Longman) and Brisbane South RegionalHealth Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 (Taylor).
In Herron v McGregor, McHugh JA (as he then was) said, at 255:

“Because delay creates prejudice and injustice, the policy of the law for over 300 years has been to fix definite time limits for prosecuting civil claims (usually a maximum of six years) and for 150 years to fix definite time limits for prosecuting summary criminal offences. Equity, though not bound by the common law limitations, applied them by analogy. The reasons which have impelled the legislature to fix time limits in civil and many criminal cases are equally applicable to disciplinary proceedings. When a number of years has elapsed since the conduct occurred, the lodging of a complaint prima facie needs justification although, of course, there can be no fixed rule.”

In Longman, at 107–108, McHugh J said:

“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person's ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev.ed.(1964), at pp 269-270.
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant's attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, ‘I don't hate him but I do hate what he's done and the problems it's caused in my life’. However, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant's honest recollection of events concerning the applicant was not distorted by this hatred.
To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.”

The fact that these observations were made in the context of a criminal case where the accused was charged with sexual offences which were allegedly committed more than 20 years before the trial does not, in my opinion, render them any less pertinent to a consideration of the consequences of a lengthy passage of time on the fairness of a civil trial heavily dependent on oral evidence. That this is so is reflected in the similar observations made by McHugh J in Taylor, at 551, which was a civil suit:

“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists.” (Footnote omitted)

In the context of applications for a permanent stay of proceedings by reference to the passage of time, the High Court’s decisions in Jago and Batistatos, the former a criminal case, the latter a civil case, are of particular relevance.
In Jago, Mason CJ held, at 34, that to justify a permanent stay of criminal proceedings:

“… there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’ … Where delay is the sole ground of complaint, an accused seeking a permanent stay must be ‘able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute’ …” (Footnotes omitted)

In Batistatos, the plaintiff, who suffered from intellectual disabilities prior to a motor vehicle accident, brought proceedings some 29 years after the accident, alleging that he was severely injured because of the negligent design and marking of a road. He alleged that the municipal council and the Roads and Traffic Authority of New South Wales were responsible for the construction and maintenance of the road and were thus liable to pay damages to him for the alleged negligence. The proceedings were brought within what was, by reason of the plaintiff’s intellectual disability, a 30 year limitation period.

In the joint judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ, their Honours made extensive reference to the judgment of Bryson JA in this Court. They said, at [54], that his Honour correctly emphasised that statutory time bars speak to the consequence of the passage of time, regardless of other considerations. In holding that there was no error of principle in the decision of this Court to grant a permanent stay of proceedings, their Honours cited with apparent approval the following passage from the decision of Bryson JA:

“Delay is not what the [Limitation Act] authorises, literally or in substance. It operates in quite another way, by preventing proceedings being brought after prescribed times, irrespective of whether or not the proceedings can be fairly adjudicated. Some statutory time limits are quite short, for example time limits of two years or three are sometimes prescribed, and there must be many cases where a fair hearing could be conducted even if those statutory limits have not been observed. The present case is one at the extremes, as almost three decades passed before the proceedings were commenced, and four decades will have passed before the proceedings ever go to trial. The [Limitation Act] cannot in my view close the court's eyes to the practical inability of reaching a decision based on any real understanding of the facts, and the practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest them or, if it should be right to do so, to admit liability on an informed basis.” (Emphasis added)

Their Honours then quoted, at [55], what they described as the “critical holding” by Bryson JA as follows:

“No more than a formal enactment of the process of hearing and determining the plaintiff's claim could take place; it cannot be expected that the process would be just.”

The consequences of a lengthy passage of time between the events giving rise to a claim and its resolution may, as the foregoing discussion illustrates, generate unfairness in the second of the senses in which I have used the term in [77] above. As such, it may feed into an analysis of the availability or otherwise of a fair trial and the circumstances in which such unfairness may warrant a permanent stay of proceedings. It is to this topic that I now turn.

Fair trial

One circumstance in which a permanent stay will be appropriate is where it is demonstrated, on the balance of probabilities, that it will not be possible to obtain a fair trial. A question may arise as to whether a permanent stay can be granted where such a conclusion may not be drawn but there remains a real risk that a fair trial will not be possible. Such a circumstance may render the continuation of proceedings “manifestly unfair” even though the court could not be satisfied on the balance of probabilities that a fair trial would not be possible. Because of the conclusion I have come to and which I explain below, namely that a fair trial would not be possible in the circumstances of the present case, it is unnecessary to resolve this question.
In the context of discussing the possibility or otherwise of a fair trial, it should be noted that a fair trial is not synonymous with a perfect trial. Thus, one of the points made in Rivkin at [298] was that, although an accused may have conducted his or her defence in a better way had suitable medical treatment or medication been provided, or had the accused had greater intelligence or acuity of mind, this did not carry the consequence that a trial would not be fair. So, too, the absence of a witness or witnesses who may be regarded by a party as important, whether through death, illness, loss of memory or inaccessibility (for example, because the witness is overseas and thus beyond the reach of a subpoena) will not mean that a fair trial cannot be obtained: see R v McCarthy (Unreported, New South Wales Court of Criminal Appeal, 12 August 1994) (McCarthy) per Gleeson CJ.
Similar observations have been made with regard to the loss or unavailability of other evidentiary material: R vStringer [2000] NSWCCA 293; 116 A Crim R 198 at [11] citing R v Adler (Unreported, New South Wales Court of Criminal Appeal, 11 June 1992), R v Goldburg (Unreported, New South Wales Court of Criminal Appeal, 23 February 1993), McCarthy, R v Tolmie (Unreported, New South Wales Court of Criminal Appeal, 7 December 1994), and R v Hatfield [1999] NSWCCA 340.
In R v Edwards [2009] HCA 20; 255 ALR 399, the High Court, in a joint judgment, observed, at [31], that:

“Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.” (Footnote omitted; emphasis added)

None of the cases referred to above concerned a circumstance where the witness who was or may have been unavailable or dead was the defendant in civil proceedings, and I am not aware of any authority which in terms suggests that a fair trial of a civil claim will always be possible notwithstanding the death or absence through incapacity of a defendant, at least where the defendant’s oral evidence goes to a critical aspect of liability, as in the present case.
Further, whilst the absence of a witness or witnesses or the loss of documents will not necessarily preclude the possibility of a fair trial, in certain circumstances, they may. R v Davis (1995) 57 FCR 512 (Davis) is a case in point. There, Dr Davis was charged, in 1994, with acts of assault on some 13 complainants between 1960 and 1974 inclusive. Ten of the 13 complainants were less than 18 years old at the time of the alleged assaults. There was unchallenged evidence that before he was charged, in 1993, after he had left the general medical practice where he worked, the secretary/receptionist culled and destroyed the medical records of people who were no longer patients of the practice. In this process, the medical records of all but one of the complainants were destroyed. Dr Davis applied for a permanent stay of the committal proceedings. The case was approached on the basis that the medical records had in fact been destroyed, by someone acting independently of Dr Davis and for reasons that had nothing to do with the case, at a time when Dr Davis had no reason to believe that there was a possibility of proceedings being brought against him.
In relation to the loss of the medical records, the Full Court of the Federal Court said, at 520–521:

“Without the medical notes, it would be impossible for Dr Davis to check whether he made an internal examination of any particular complainant or why he did so or to say how he carried it out. It would be impossible for him to give instructions to his counsel regarding aspects of the general treatment of the complainant, or the particular incident, that should be put to her in cross-examination and which might reveal the incident in a different light.
There is a further problem arising out of the loss of the records. We have already mentioned the failure of all but one of the complainants to report her experience to anyone in an official position until after the Canberra Times article. We can understand this. However frustrating it may be to law enforcement officers and courts, a low reporting rate is a characteristic of sexual offences. But it also seems to be a characteristic of sexual offences, equally understandable, that victims thereafter try to avoid the offender or, at least, placing themselves in a situation where the offence may be repeated. So the subsequent behaviour of an alleged victim may provide insight into what happened on the occasion in issue. In this context, it is most unfortunate that the medical records are lost. It is clear from their own statements that some of the complainants consulted Dr Davis again after the alleged incident. The fact that they did so does not necessarily undermine their versions of the incident. The power inequality has to be taken into account. However, information about subsequent visits (when, how often and for what reason) might throw some light on what happened on the critical day. Without his records, Dr Davis is unable to say anything about these matters or even to give instructions to his counsel regarding subsequent visits which, for all anyone can now say, might have been significant to his defence.”

After referring to the observation of Mason CJ, Dawson, Toohey and McHugh JJ in Spautz at 519 that “the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed”, the Full Court went on to say as follows:

“The point, no doubt, is that, although there is a public interest in bringing allegations of serious criminal conduct to trial, there is no public interest in doing so under circumstances of irreparable unfairness. It is more important to retain the integrity of our justice system than to ensure the punishment of even the vilest offender. We do not say this because the justice system is some precious preserve of the judges; it is not. We say this because the integrity of the justice system is a fundamental and essential element in the maintenance of a free society. Our society should not buy the conviction of its guilty at the cost of allowing trials which would inevitably risk convicting also the innocent.
We are satisfied that this unusual case meets even the demanding tests we have quoted. Having regard to the nature of the allegations and the surrounding circumstances, there is nothing a trial judge could do that would overcome the unfairness caused to Dr Davis by the delay that has occurred, with the regrettable consequence of the loss of the medical records. To apply a telling phrase used by Toohey J in Ridgeway v The Queen (1995) 69 ALJR 484 at 507, taken from a Canadian case, to force Dr Davis to stand trial on these charges under these circumstances, ‘would offend the court's sense of justice’.
Some people, rightly anxious that sexual offenders be brought to account, may be disappointed by our decision. They may think that it allows a guilty man to escape justice. But that conclusion necessarily involves the assumption that Dr Davis is in fact guilty of the offences with which he has been charged. The correctness of that assumption could only be determined by a fair trial. It is not enough to say, as some might be tempted to do, that the allegations would not have been made unless Dr Davis was guilty. That argument assumes there can only be one side to the story. Everyday experience in the courts shows this is rarely so. Nor is the situation really changed by the number of the complainants especially when it is remembered that all except one of them emerged as a result of a newspaper article. We do not for a moment suggest deliberate concoction, but there is always a possibility that the newspaper article induced a degree of unconscious reconstruction. Time, too, may have obliterated memories of inconsistent facts and qualifications, leaving a deceptively clear impression. That is why it is essential to have the facts surrounding each case.
Because a fair trial is not now possible in this case, it is necessary to uphold the stay order.”

Whilst a review of the foregoing cases demonstrates that a fair trial is not synonymous with a perfect trial, it does not follow, as Davis illustrates, that every imperfect trial is necessarily fair. It is in this context that it is necessary to consider Presser, referred to above at [48] and the subject of appeal ground 9.

Appeal ground 9: Presser and its relevance

The key passage from Presser has been set out at [48] above. In Rivkin, at [298], Mason P, Wood CJ at CL and Sully J, in a joint judgment, observed that the “Presser test is directed to the minimum requirement for a fair trial”.
It is true that the decision in Presser was concerned with the availability of a fair trial in a criminal context, but that fact alone does not mean that it can or should be put to one side as irrelevant as the primary judge did (see [47] above), at least without a consideration of its claims to relevance.
As noted at [49] above, Presser has been considered by the High Court on three occasions. The decision was approved by Gibbs, Mason and Wilson JJ in Ngatayi. It was subsequently applied in Kesavarajah. At 245, Mason CJ, Toohey and Gaudron JJ summarised the test set out in Presser as follows:

“In Reg. v. Presser, Smith J. elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. Those standards, which are based on the well-known explanation given by Alderson B. to the jury in R. v. Pritchard, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.” (Footnotes omitted)

Their Honours stated, at 246, that “[i]n the context of a trial, fitness to be tried is to be determined by reference to the factors mentioned by Smith J. in Presser and by reference to the length of the trial”.
The High Court also applied Presser in the more recent decision of Eastman. For the purposes of the present case, it is instructive to consider Gaudron J’s observations regarding the broader context in which the principle articulated in Presser operates. Her Honour stated, at [64], that:

“Traditionally, an accused person has not been put on trial unless fit to plead because of ‘the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed, that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing’. That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead.” (Footnote omitted)

As noted above, in this Court, in Rivkin, Mason P, Wood CJ at CL and Sully J emphasised that the test in Presser “is directed to the minimum requirements for a fair trial”. Their Honours continued, at [298], as follows:

“So long as the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried. The fact that the accused may have done so in a better way, had suitable medical treatment or medication been provided, or had that accused possessed greater intelligence or acuity of mind, does not seem to us to be relevant to the question of fitness.”

A detailed review of the authorities regarding fitness to plead was undertaken by Beazley JA (as her Honour then was) in Clarkson at [127]–[144].
The application of Presser in a civil context has been considered on two occasions. In Owners Strata Plan 21372 v Banovic [2017] NSWSC 177, the plaintiff filed a motion seeking orders that the first defendant be held in contempt of court for failing to comply with certain interlocutory orders. The first defendant sought a permanent stay, claiming that he was not fit to be tried. The parties agreed that the test to be applied was that articulated in Presser. Although Darke J applied Presser, his Honour, at [4], expressed some doubt “as to whether the principles concerning fitness to be tried were truly applicable in civil contempt proceedings, notwithstanding that such proceedings share some of the characteristics of criminal proceedings”.
In Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd [2003] NSWSC 618 (Australian Investors Forum), ASIC brought proceedings against numerous defendants, seeking orders disqualifying certain people from managing corporations, compensation orders and orders winding up various corporations. The former managing director of the first defendant applied for the hearing against him to be vacated, on the basis that he was not fit to be tried. In relation to the application of Presser, Campbell J stated as follows:

“[32] The essence of the test which the Court needs to apply in deciding whether an application for adjournment should be granted, is one to do with whether it would be an abuse of process for the proceedings to continue. In the related question of fitness to plead, in criminal proceedings, the applicable tests have been propounded in Presser, (1958) VR at 45–48 …
[33] That test, while it cannot be transposed directly to the circumstances of civil proceedings, still lists the factors of mental capacity which it is necessary for someone who is a defendant in civil proceedings to have. It needs to be supplemented to include being able to follow and give instructions about the pre-trial documentation which is involved in civil proceedings.”

Australian Investors Forum was a civil penalty case and, as such, bore a closer relationship to criminal proceedings than a purely civil claim: see Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 at [32] (per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ), [41], [43], [48]–[58] (per McHugh J). That having been said, claims for civil liability for damages for sexual assault – questions of the standard of proof apart – bear a strong affinity with a criminal charge of sexual assault.
I agree with the observations of Campbell J in Australian Investors Forum that, whilst Presser cannot be translated directly into a civil context, it nonetheless has relevance to a consideration of the circumstances required for a fair trial. In this context, it is to be noted that in Jago, at 26, Mason CJ, having observed that “the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context”, went on to say that:

“… for the purpose of applying the principles of abuse of process, the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one. It is the nature of the proceedings, not their formal classification, that is important …” (Citation omitted)

Coherence is a quality that the common law values. An incoherent legal system is one that is apt to undermine respect for the rule of law and bring the administration of justice into disrepute. It would, in my opinion, tend towards incoherence to maintain that what constitutes a fair trial should differ in cases involving identical factual allegations. If the defendant was not fit to face criminal charges in respect of the plaintiff’s complaint to police because “the minimum requirements for a fair trial” (see Rivkin at [97] above) would not be present, it would, in my opinion, offend commonsense simultaneously to maintain that the defendant could secure a fair civil trial in relation to identical factual allegations.
In my opinion, the primary judge erred in dismissing the relevance of Presser out of hand. It provides powerful insight into matters going to the very essence of a fair trial, including the ability to give instructions, to decide what defence will be relied on, and to make the defendant’s version of facts known to the court and his counsel

His Honour concluded, at [133], that:

“The Court … must deal with the evidence that Trinity has sought to adduce. While it is accurate that such material (i.e. as to the conduct or circumstances of the activities during which these assaults were said to have occurred) is not included in the evidence adduced, there is, nevertheless, no evidence that such material does not exist.”

Appeal grounds 5–7: permanent stay

As noted at [60] above, these grounds went to the central and ultimately discretionary question of whether the proceedings should be permanently stayed or dismissed on the basis that the defendant would not receive a fair trial.

Parties’ submissions

The defendant submitted that the plaintiff’s delay in commencing proceedings, with the consequence that the defendant, a principal witness, would not be able to give evidence or otherwise participate in any trial having “succumbed to the frailties of many people his age”, rendered the proceedings an abuse of process.
It was not in contention between the parties that the defendant would not be able to give evidence at any trial. However, the plaintiff submitted that this did not render the case an exceptional one, such that the proceedings should be permanently stayed or dismissed.
The plaintiff submitted that the evidence did not demonstrate that the defendant would not receive a fair trial. The plaintiff relied on a number of factors in support of this submission. First, the plaintiff pointed to the evidence that would be available at trial, including the plaintiff’s evidence and Ms Evans’ and Mr Coorey’s police statements. In particular, the plaintiff submitted that there must be available to the defendant evidence which would enable the defendant to test what the plaintiff asserted was a key feature of the plaintiff’s case, namely whether or not the defendant and the plaintiff resided in the same house at all material times. The plaintiff also called in aid the maxim associated with Blatch v Archer (1774) 1 Cowp 63 at 65, namely that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”
Secondly, the plaintiff relied on the defendant’s failure to make enquiries of: the neighbours in the vicinity of where the alleged assaults occurred; the members of the church attended by the defendant; the police officers involved in the matter; the persons mentioned in Mr Coorey’s police statement with whom the defendant and Mr Coorey corresponded, including the plaintiff’s brother; and any other social and professional acquaintances. The plaintiff submitted that the only evidence before the primary judge in relation to the unavailability of witnesses was a statement in an affidavit of Ms Sarah Winter-Irving, the defendant’s solicitor, that “many, if not all, acquaintances of the Defendant who may have knowledge of his whereabouts or other events at the time, are probably deceased” (emphasis added). The plaintiff submitted that no attempts had been made by the defendant to contact these potential witnesses and that, in any event, Ms Winter-Irving’s statement was qualified.
Thirdly, the plaintiff submitted that her delay in commencing proceedings was explained by the nature of the abuse alleged to have been suffered by her. The plaintiff pointed out that the defendant had accepted in the court below that, in the context of child sexual assault claims, there are many reasons why the bringing of proceedings might be delayed.
Finally, the plaintiff submitted that there was a public interest in permitting claims for damages for historical sexual assault to be brought at any time.

A permanent stay was warranted

The defendant’s submission recorded at [150] above focussed on the consequences of the plaintiff’s delay, rather than attributing any culpability for it to the plaintiff. In so doing, the defendant’s submissions appropriately recognised the phenomenon referred to by the Attorney General when introducing the amendments to the Limitation Act noted at [35] above, namely that “[i]t is now widely understood that, due to the injuries inflicted on them by their abusers, survivors of sexual and other child abuse often take decades to understand and act on the harm arising from the abuse”. Appropriate sensitivity to that phenomenon does not, however, mean that the consequences of the passage of time cease to be relevant when assessing whether or not a permanent stay of proceedings is appropriate.
So, too, in my opinion, the public interest in permitting claims for damages for historical sexual assault to be brought at any time (see [155] above), and which is reflected in the important amendments made to the Limitation Act, does not operate to preclude the possibility in an appropriately exceptional case that proceedings ex hypothesi brought within time might be permanently stayed. So much was also made plain in the Attorney General’s second reading speech and in the Royal Commission’s Redress and Civil Litigation Report: see [37]–[38] above.
Whilst it is correct that a number of forensic steps would have been open to the defendant’s tutor in defending the proceedings, such as cross-examining the plaintiff, exploring potential inconsistencies in her accounts to the police, Ms Evans and her various doctors, cross-examining Ms Evans if she were called by the plaintiff, and himself giving evidence (for what it would be worth) to the effect that the defendant had never mentioned the plaintiff to him, none of these matters, in my opinion, would make up for the fact that the defendant was, because of his mental condition, at all relevant times utterly in the dark about the allegations made against him and quite unable to give instructions in relation to them. Nothing that a trial judge could do in the conduct of the trial could, in my opinion, relieve against these consequences. Nor would such unfairness be remedied by the invocation of maxims such as that associated with Blatch v Archer.
Notwithstanding the existence of his tutor and his tutor’s ability to participate in the trial in the way I have described above, in substance, on the particular facts of this case, the trial would be taking place in the defendant’s involuntary absence and that would, in my opinion, produce manifest unfairness to the defendant and bring the administration of justice into disrepute, notwithstanding that it would result in the unfortunate consequence of the plaintiff not being able to pursue her claim.
Such a conclusion does not imply any level of culpability on the plaintiff’s part in bringing her claim when she did or in making her complaint to the police at the time she did. But the (non-culpable) delay that s 6A of the Limitation Act retrospectively permits carries with it the possibility (realised, in my opinion, on the facts of the present case) that a fair trial will not be possible. A similar consequence was recognised by the High Court in Batistatos and by the Victorian Court of Appeal in Connellan.
Even accepting that each case necessarily turns upon its own facts, it may still be said that the present case is a fortiori that which the Victorian Court of Appeal considered to warrant a permanent stay of proceedings in Connellan. Even though the delay in that case, at 50 years, was slightly longer than that in the present case, and the defendant in Connellan was himself a minor at the time of the alleged abuse, nonetheless the defendant was not only alive at the time of the stay application but there was no suggestion that he was mentally incapable or unable to participate in the proceedings and give evidence, if he so chose.
The salient features of the present case which, in my opinion, warrant a permanent stay of proceedings are as follows.
First, at no time prior to the onset of his dementia does it appear that the defendant was ever confronted by the plaintiff with the detail of the allegations of sexual assault (and there is thus no meaningful record of his response to them). The position may be contrasted with Judd and Anderson where there was no doubt that the physical assaults had occurred. Indeed, in Anderson, a criminal conviction had been obtained.
Second, the defendant had advanced dementia prior to the report of the alleged assaults to the police in 2015 (and thus no police statement was obtained from him nor was any police interview conducted).
Third, the defendant had advanced dementia at the time of the commencement of proceedings.
Fourth, the nature of the allegations is such that there were no eyewitnesses to the alleged assaults. This makes the value of the enquiries of the kind the plaintiff submitted the defendant’s tutor could or should have made (see [153] above) of extremely limited potential significance, rendered even less likely to be of value because of the passage of time since the alleged assaults. In this context, the present case is materially different, in my opinion, from Anderson where, as noted above, what was in issue was not the fact of the sexual assaults but the school’s legal responsibility for them in respect of which Rothman J concluded, on the material before him, there was no necessary or inevitable paucity of evidence.
Fifth, because of his mental condition, the defendant in the present case was necessarily unable to give instructions as to the allegations for the purposes of the defence.
Sixth, because of his mental condition, the defendant would be utterly unable to give evidence in the proceedings. By way of contrast, in Judd, it will be recalled, although Mr Judd had died by the time proceedings had been commenced against his estate, there was no issue that the conduct complained of had in fact occurred (although whether or not there had been consent was not the subject of any prior admission).
Seventh, because of his mental condition, the defendant in the present case would be utterly unable to give instructions during the course of the trial.
Eighth, the events the subject of the allegations occurred approximately 45 years ago and other potentially relevant witnesses are now dead or unavailable (it being noted that, whilst this fact alone would, in my opinion and on the facts of this case, be unlikely to warrant a permanent stay of proceedings, it is of some significance in collocation with the other matters I have listed above).
Ninth, there was no credible suggestion that some documentary evidence may be in existence that would bear upon the likelihood or otherwise of the alleged sexual assaults having occurred.

Other grounds of appeal

As noted in [58] above, one issue raised by grounds 1–4 of the notice of appeal concerned whether the primary judge failed to have proper regard to the preamble of the defendant’s defence in making the findings that he did at [7]–[9] and whether, in so finding, the defendant was denied procedural fairness.
Paragraphs [7]–[9] of the primary judge’s decision have been set out at [42] above. Also relevant is his Honour’s statement at [54] of his reasons that:

“It is also not without significance in the present case that, presumably acting upon instructions, a defence has been filed in which certain matters have been admitted, others not admitted and some denied. There must be some source of instructions which permitted the solicitor to complete the defence in that manner.”

His Honour did not make explicit what significance he placed upon this matter but it is plain from his other findings that the instructions to which he referred cannot have emanated from the defendant.
The defendant submitted that the primary judge erred in failing to construe the preamble of the defence as a “reservation” or “qualification” and submitted that, accordingly, his Honour erred in making the findings that he did at [7]–[9].
The defendant also submitted that he was denied procedural fairness because the primary judge did not put to the defendant in the court below that he took issue with the manner in which the defence had been drafted and did not afford the defendant’s solicitor an opportunity to explain the manner in which it had been drafted.
The plaintiff submitted that the preamble of the defence did not serve as a “reservation” or “qualification”. The plaintiff pointed out that the defence contained a number of replies to matters in the plaintiff’s statement of claim – for example, that the defendant “does not know”, “does not admit” or “denies” certain matters – that were inconsistent with the preamble.
The plaintiff also submitted that, to the extent that the primary judge asked the defendant for the basis of the replies in the defence, the defendant was not denied procedural fairness. The plaintiff drew the Court’s attention to the following exchange in the court below:

“HIS HONOUR:   … What I found interesting in the pleadings was that despite the fact that … the defendant says, he does not know and cannot answer, you then go onto make specific denials in relation to the allegations. I’m just curious to know what instructions permit you to make those denials?
HUTCHINGS:   I anticipated we’d be coming to that argument …
…
HIS HONOUR:   Should it just be that your client has no recollection therefore cannot deny or admit and therefore not admit the matters referred to in the statement of claim?
HUTCHINGS:   If I can frankly say so, my personal view is I wouldn’t have filed a defence, I would’ve just made an application at an earlier point in time.
HIS HONOUR:   Yes, very well. Well I’ll overlook that for now. Sorry, I assume therefore that the denial is not based upon instructions provided to your instructing solicitor by her client?
HUTCHINGS:   Indeed. So there’s no question at all that Mr Coorey the tutor for the [defendant] has some strong views in relation to the probability of these events but that’s hardly here nor there. The [defendant] is incapable of providing any sensible instruction at all.”

The defendant contended that the primary judge’s statement that “I’ll overlook that for now” coupled with the fact that he did not return to it in the course of argument made his Honour’s reasons at [7]–[9] and [54] procedurally unfair to both the defendant and his legal representatives.
Because of my conclusions in relation to appeal grounds 5–9, it is unnecessary to consider grounds 1–4 and the alleged denial of procedural fairness in any detail. That is especially so given that these grounds were not the subject of any detailed elaboration in argument. It is sufficient to record that on the basis of the extract of the transcript set out above, the instructions on which the defence was based did not emanate either directly or indirectly from the defendant. Even on the plaintiff’s evidence, the defendant was not aware of these allegations until approximately 2012 when he was already suffering advanced dementia.

Conclusion

For all of the foregoing reasons, the facts of the present case were sufficiently exceptional to warrant a permanent stay of proceedings.
LEEMING JA: I agree with the President’s reasons. In particular, I agree that House v The King error was established in relation to grounds 5-9, that it is unnecessary and, in circumstances where almost no attention was given in the parties’ submissions, inappropriate to address grounds 1-4, and that this Court in the re-exercising of the discretion should grant a permanent stay. It is unnecessary to consider whether, as suggested by Basten JA in State of New South Wales v Plaintiff A [2012] NSWCA 248 at [22], a less circumscribed approach to the identification of error is required.
What follows, on the re-exercise of the discretion to grant a permanent stay, presupposes familiarity with, and is intended to supplement rather than to qualify, what Bell P has written.
The appeal is to be determined on the basis that there was no suggestion of culpable delay by Ms Holt. There are two reasons for that. The first is that at first instance Mr Moubarak’s counsel expressly refrained from making any criticism of Ms Holt’s delay, and the forensic consequences of that course are obvious. The second is that on one view it may be argued that there has not been any material delay at all. Until 2016, any cause of action Ms Holt had against Mr Moubarak was not only barred (in the sense of being liable to be met by a pleaded limitation defence) but was also extinguished by s 63 of the Limitation Act 1969 (NSW). That in turn was subject to the possibility (unexplored in the evidence) that Ms Holt might be able to obtain an extension of time under Part 3 of that statute carrying with it (by s 60M) the retrospective removal of the extinction. On 17 March 2016, all that changed with the commencement of the Limitation Amendment (Child Abuse) Act 2016 (NSW), and with retrospective force. The retrospective removal of any limitation period effected by s 6A applied to causes of action which had previously been subject to a limitation period which had expired and which had been extinguished: see Limitation Act, Schedule 5, Part 3, cl 9. It is hard to see how there was material delay between March 2016 and December 2016, when the statement of claim was filed.
Ms Holt’s new entitlement to bring civil proceedings was not unqualified. It was subject to the powers of the court at general law and under statute (notably, Civil Procedure Act 2005 (NSW), s 67) to grant a stay. New s 6A(6) expressly preserved the discretionary power to grant a stay. It is naturally to be read as picking up the state of the law at the time it was enacted.
The preservation effected by s 6A(6) reflected the firm and urgent recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse, whose 2015 interim report “Redress and Civil Litigation” stated at p 444, citing Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 and Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27:

“Even if the limitation period is relaxed, the interests of the defendant are protected by the court’s jurisdiction to stay proceedings if any delay has made the chances of a fair trial unlikely.” (emphasis added)

I am conscious that elsewhere in this part of the report there are references to a fair trial not being possible, including at pp 456 (“could not be fair”) and 458 (“the courts’ powers to prevent unfair trials should not be limited”). Nothing turns on the different language. The report, no differently from the second reading speech, proceeded on the basis that the existing jurisdiction was unaltered and preserved by the retrospective change in the law. The basis on which stays were granted was and is established by decisions of the High Court.
I regard this as a clear case for the exercise of the discretion expressly preserved by s 6A(6) to order a stay. A fair adjudication of the serious allegations made against Mr Moubarak is not possible. So far as the evidence discloses, Mr Moubarak was never confronted with the detail of those allegations while of sound mind. He cannot admit or not admit or deny them. He cannot give testimonial evidence. He cannot give instructions as to the conduct of his defence. Batistatos is significant because in circumstances where (a) there was no suggestion of any personal fault on the part of Mr Batistatos in his 29 year delay prior to the expiry of a 30 year limitation period, and (b) it was accepted that his claim was not so tenuous that it should be struck out, a permanent stay was ordered.
I would also reject Ms Holt’s submission that the impossibility of a fair trial is the applicable test. Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 is illustrative. Disciplinary proceedings were commenced against three medical practitioners around a decade after the event. This Court granted a stay, rejecting the submission that “jurisdiction is confined to cases where the court is satisfied either that any hearing before the Tribunal would necessarily be unfair or that the proceedings in the Tribunal have been brought for an improper purpose”. An appeal to the High Court was dismissed. Mason CJ, Deane and Dawson JJ, approving of the approach of Gleeson CJ and Kirby P in the Court of Appeal, said at 392:

“the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be ‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct.”

The distinction between a trial being necessarily unfair and a trial which is so unfairly and unjustifiably oppressive as to constitute an abuse of process is no doubt a fine one. Nevertheless, it was the ratio of Walton v Gardiner as well as being the test which was extant when s 6A was enacted. Further, the joint judgment in Walton v Gardiner represented a synthesis of the different views expressed in Jago. Accepting for present purposes that s 6A(6) is to be construed as always speaking, it should be followed until and unless the High Court holds to the contrary. Indeed, that test framed in terms of unfair and unjustifiable oppression was applied in Connellan v Murphy [2017] VSCA 116 at [61], [62], [64] and [65].
A slightly different focus may be seen when Walton v Gardiner was followed by this Court in Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20. The leading judgment was that of Bryson JA, with whom Mason P and Giles JA agreed. Speaking of the 29 year delay which fell just short of the 30 year limitation period applicable, his Honour said at [80]:

“The Limitation Act 1969 cannot in my view close the Court’s eyes to the practical inability of reaching a decision based on any real understanding of the facts, and the practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest them or, if it should be right to do so, to admit liability on an informed basis. No more than a formal enactment of the process of hearing and determining the plaintiff’s claim could take place; it cannot be expected that the process would be just.”

The joint judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ in the High Court described the concluding sentence of that passage as “the critical holding by Bryson JA” at [55] and concluded at [72] that there was no error of principle. The present case is a fortiori.
There will be other cases which are different and less clear-cut. There will be cases where the defendant is not incapable, but many decades have passed, like Batistatos. There will be cases where there is evidence of actual prejudice, in the loss of documents or the death of witnesses. There will be cases where the plaintiff has the advantage of admissible tendency evidence. There will be cases against defendants which are said to be vicariously liable (whether under a traditional or a novel statutory basis) for the sexual assault of employees or agents; these claims may give rise to different considerations. There will be cases where the alleged perpetrators are long since deceased. Separately from all of the above are cases where there has been delay by the plaintiff which is culpable. The exercise of the discretionary power preserved by s 6A(6) will fall to be worked out case by case.
Delay arises in many contexts in civil litigation, and the relationship between historic child sexual abuse and limitation periods has been considered in litigation in other common law jurisdictions, notably in North America. However, as presently advised, I would doubt that much assistance is likely to be obtained from North American authorities. In particular, while some Canadian provinces (such as British Columbia) relaxed limitation periods in the 1990s, the body of law is coloured by M(K) v M(H) [1992] 3 SCR 6; (1993) 96 DLR (4th) 289, which does not reflect the law of Australia in what it holds as to either the common law or the equitable causes of action.
It also seems to me that care is to be taken in relying on United Kingdom authorities. Batistatos confirms that the limitation statute does not impliedly authorise a plaintiff to bring a triable claim at any time prior to the expiry of a limitation period (or, at any time at all if there is no limitation period). Indeed, the submissions advanced by Ms Holt echoed those made on behalf of Mr Batistatos recorded at 226 CLR at 258-259 (“[t]he plaintiff brought his case within the time allowed and there is a real and genuine controversy which he is entitled to submit to the courts. The fact that the passage of time, for which he is not responsible, causes prejudice to the defendant is irrelevant”) and in reply at 261 (“Once [a plaintiff has a tenable case] and there is no fault of the plaintiff, there is no ground for the court to intervene”). Those submissions were rejected in Batistatos. Even where the plaintiff has a tenable case and there is no culpable delay and he or she commences within time there remains a discretion to stay the proceedings (cf Callinan J’s dissenting views at [220]-[221]). It has been pointed out that the position is probably different in the United Kingdom: J Goudkamp, “Delay in Commencing Proceedings within the Limitation Period in Australia” (2007) 26 Civil Justice Quarterly 185.
None of the foregoing is to deny that the power to stay a claim is “exceptional” and should only be exercised in “extraordinary” cases. But that is this case. Mr Moubarak cannot speak, understand or communicate, let alone instruct or give evidence, in circumstances where decades have passed and he has never been confronted with the detail of the allegations. A fair trial is impossible.
Those are my reasons for participating in the Court’s orders on 24 April 2019.
EMMETT AJA: The question in this appeal was whether proceedings brought in the District Court against the appellant, Mr Joseph Moubarak, by the respondent, Ms Suzanne Holt, should be permanently stayed. In the proceedings in the District Court (the Proceedings), the respondent alleged that the appellant, her uncle, committed sexual assaults upon her in 1973 or 1974 when she was 12 years old. The Proceedings were commenced in 2016, some 42 or 43 years after the alleged assaults.
The appellant suffers from severe dementia and is incapable of giving evidence or giving instructions in relation to the conduct of the Proceedings. Accordingly, by notice of motion filed on 5 June 2018 (the Stay Motion), the appellant, by his tutor, George Coorey (the Tutor), sought a permanent stay of the Proceedings or alternatively an order that the Proceedings be dismissed. The tutor contended that a fair trial would not be possible having regard to the medical condition of the appellant and that the continuation of the Proceedings would constitute an abuse of process. On 24 September 2018, a judge of the District Court (the primary judge) dismissed the Stay Motion with costs and the Proceedings were then fixed for hearing in the District Court in the week commencing 29 January 2019.
In the meantime, the appellant, by the Tutor, applied for leave to appeal from the orders made by the primary judge on 24 September 2018. As a consequence, the District Court ordered that the hearing of the Proceedings be vacated and fixed the Proceedings for hearing on 29 April 2019, on the assumption that the leave application and any appeal were not successful. The District Court directed the appellant, through the Tutor, to prosecute the application for leave with appropriate dispatch.
The leave application was fixed for hearing on 15 April 2019 and the President directed that the appeal be heard concurrently with the application for leave, if leave were to be given. Notwithstanding the District Court’s direction, no indication was given to this Court of the fact that the Proceedings had been relisted for hearing by the District Court on 30 April 2019 until late in the morning of the hearing of the leave application on 15 April 2019. An application for an interlocutory stay made ore tenus by the Tutor in the course of the hearing was refused. After hearing argument, the Court reserved its decision.
However, on 24 April 2019, following consideration of the issues, the Court unanimously ordered that leave to appeal should be granted and that the appeal should be allowed. The Court set aside the orders of the primary judge made on the hearing of the Stay Motion and, in lieu thereof, ordered that the Proceedings be permanently stayed. At that stage, no reasons were published and the appeal was stood over to a date to be fixed for the publication of reasons and directions as to costs.
The commencement of the Proceedings by the respondent was barred by the operation of the Limitation Act 1969 (NSW) (Limitation Act) following the expiration of six years after she attained her majority. However, the Limitation Act was amended in 2016 by the insertion of s 6A, which relevantly provides that an action for damages that related to child abuse, including sexual abuse, may be bought at any time and was no longer subject to any limitation period under the Limitation Act. However, s 6A preserves the court’s power to safeguard the right to a fair trial and the amendment does not restrict the court from dismissing or staying proceedings where it determines that a fair trial is not possible.
Section 67 of the Civil Procedure Act 2005 (NSW) relevantly provides that a court may at any time and from time to time stay any proceedings before it, either permanently or until a specified day. Section 67 does not identify any particular criterion that is necessary for the exercise of that power. However, a permanent stay of proceedings may be granted when the interests of the administration of justice so demand, although the principles and criteria for the grant of a permanent stay in circumstances such as these are by no means settled [1] . Accordingly, this is an appropriate case for the grant of leave to appeal.
1. See State of New South Wales v Plaintiff A [2012] NSWCA 248 at [15] and Jago v District of New South Wales (1989) 168 CLR 23.
It is clear that, having regard to his medical condition, the appellant will not have a fair trial, in so far as he is incapable of giving evidence and giving instructions to the Tutor and his legal representatives. The notion of a fair trial involves a balancing exercise in so far as it is necessary to assess whether the unfairness to a moving party by reason of a stay outweighs the unfairness to a defending party by reason of the continuation of the proceedings. The question is whether the unfairness to the appellant outweighs the unfairness to the respondent in being deprived of the opportunity of compensation if she is able to establish that the alleged assaults occurred. In that regard it is significant that one of the factors that resulted in unfairness to the appellant is the delay since the occurrence of the alleged assaults. Even assuming that there is a perfectly good explanation for the respondent’s delay, the delay has had that effect. That is a consideration in weighing the balance.
The principles concerning a fair trial in criminal proceedings may have some relevance to the question raised in the appeal. The relevant balancing exercise is between the unfairness to the present appellant, if the Proceedings were to go to trial, and the unfairness to the respondent in losing the opportunity of compensation, if the Proceedings are stayed. That comparison is different from the comparison between the unfairness to the Crown and the community in losing the opportunity to punish and deter, in the event of a stay of criminal proceedings, and the unfairness to an accused in the position of the present appellant, if a trial of criminal charges were to proceed.
I have had the advantage of reading in draft form the reasons of the President and of Leeming JA for joining in the orders made on 24 April 2019. In particular, I agree that the primary judge erred in the exercise of the court’s discretion in relation to the grant of a stay and that this Court in the re-exercise of the discretion should grant a permanent stay. The reasons of the President and Leeming JA reflect my reasons for joining in the orders made on 24 April 2019.

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Endnote

Decision last updated: 09 May 2019

Medium Neutral Citation:	Moubarak by his tutor Coorey v Holt [2019] NSWCA 102
Hearing dates:	15 April 2019
Date of orders:	24 April 2019
Decision date:	09 May 2019
Before:	Bell P at [1]; Leeming JA at [182]; Emmett AJA at [198]
Decision:	1. Grant leave to appeal. 2. Order the applicant to file a notice of appeal in accordance with the draft notice of appeal within 7 days. 3. Appeal allowed. 4. Set aside the orders of the primary judge made on 24 September 2018 and in lieu thereof order that the District Court of New South Wales proceedings 2016/369438 be permanently stayed. 5. Direct that the representatives of both parties forthwith notify the District Court of these orders and that the proceedings listed for 29 April 2019 have been permanently stayed. 6. Direct the parties to file any written submissions as to costs within 14 days and any reply within a further 7 days in the absence of an agreement as to costs.
Catchwords:	CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assaults that occurred in 1973 or 1974 – no applicable limitation period – relevant principles – whether proceedings should be stayed on the basis that defendant, who has dementia, would not receive a fair trial – relevance of delay or passage of time – whether need for explanation for delay – relevance of defendant’s fitness to stand trial and R v Presser [1958] VR 45 LIMITATION OF ACTIONS – civil claim for damages for sexual assaults alleged to have occurred in 1973 or 1974 – no applicable limitation period – whether proceedings should be permanently stayed TORTS – claim for compensation for historical sexual assault – alleged assaults occurred in 1973 or 1974 – no applicable limitation period – application for a permanent stay of proceedings – defendant suffers from dementia – defendant unable to give instructions or participate in trial
Legislation Cited:	Civil Procedure Act 2005 (NSW) Limitation Act 1969 (NSW) Limitation Amendment (Child Abuse) Act 2016 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Abdulla v Birmingham City Council [2012] UKSC 47; [2013] 1 All ER 649 Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Anderson v Council of Trinity Grammar School [2018] NSWSC 1633 Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd [2003] NSWSC 618 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Be Financial Pty Ltd v Das [2012] NSWCA 164 Blatch v Archer (1774) 1 Cowp 63 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Clark v R [2008] NSWCCA 122; 185 A Crim R 1 Clarkson v R [2007] NSWCCA 70; 209 FLR 387 Connellan v Murphy [2017] VSCA 116 Eastman v R (2000) 203 CLR 1; [2000] HCA 29 Estate Judd v McKnight (No 4) [2018] NSWSC 1489 Feili v R [2015] NSWCCA 43 Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) Herron v McGregor (1986) 6 NSWLR 246 Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 JM v R [2017] NSWCCA 138 Kesavarajah v R (1994) 181 CLR 230; [1994] HCA 41 Longman v R (1989) 168 CLR 79; [1989] HCA 60 McFee v Reilly [2018] NSWCA 322 M(K) v M(H) [1992] 3 SCR 6; (1993) 96 DLR (4th) 289 Newcastle City Council v Batistatos [2005] NSWCA 20 Ngatayi v R (1980) 147 CLR 1; [1980] HCA 18 Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197; [1988] HCA 32 Owners Strata Plan 21372 v Banovic [2017] NSWSC 177 R v Adler (Unreported, New South Wales Court of Criminal Appeal, 11 June 1992) R v Davis (1995) 57 FCR 512 R v Edwards [2009] HCA 20; 255 ALR 399 R v Goldburg (Unreported, New South Wales Court of Criminal Appeal, 23 February 1993) R v Hatfield [1999] NSWCCA 340 R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 R v McCarthy (Unreported, New South Wales Court of Criminal Appeal, 12 August 1994) R v Presser [1958] VR 45 R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 R v Stringer [2000] NSWCCA 293; 116 A Crim R 198 R v Tier [2001] NSWCCA 53; 121 A Crim R 509 R v Tolmie (Unreported, New South Wales Court of Criminal Appeal, 7 December 1994) Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 Robinson v R [2008] NSWCCA 64 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 State of New South Wales v Plaintiff A [2012] NSWCA 248 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Watson v Foxman (1995) 49 NSWLR 315 Watt v Assets Company Ltd [1905] AC 317 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 Wills v R [2007] NSWCCA 160; 173 A Crim R 208
Texts Cited:	J Goudkamp, ‘Delay in Commencing Proceedings within the Limitation Period in Australia’ (2007) 26 Civil Justice Quarterly 185 J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) New South Wales, Parliamentary Debates, Legislative Assembly, 16 February 2016 (Gabrielle Upton, Attorney General) Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015)
Category:	Principal judgment
Parties:	Joseph Moubarak (Applicant) Suzanne Holt (Respondent)
Representation:	Counsel: P R Boulten SC, S J Stanton (Applicant) J E Maconachie QC, T J Ryan (Respondent) Solicitors: Sparke Helmore Lawyers (Applicant) Sydney Lawyers & Associates (Respondent)
File Number(s):	2018/327586
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 28 September 2018 Before: Wilson DCJ File Number(s): 2016/369438