Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Patsantzopoulos by his tutor Naumov v Burrows [2023] NSWCA 79 Hearing dates: 17 April 2023 Decision date: 26 April 2023 Before: Ward P at [1];
Leeming JA at [2];
Adamson JA at [46]Decision: 1. Grant leave to appeal.
2. Direct the applicant within 7 days to file a notice of appeal in accordance with the draft notice of appeal, and otherwise dispense with the rules as to service.
3. Appeal dismissed, with costs.
Catchwords: CIVIL PROCEDURE – permanent stay – action for damages for historical sexual assault more than 30 years ago – defendant suffered severe stroke in 2014 and now suffers from dementia – defendant prosecuted for same conduct – defendant found unfit to stand trial – following special hearing, defendant found on limited evidence to have committed offence against plaintiff pursuant to s 22(1)(c) of Mental Health (Forensic Provisions) Act 1990 (NSW) – whether defendant’s inability to provide instructions and cognitive decline made a fair trial impossible – whether primary judge failed to address substantive submission advanced by defendant – significance of defendant being confronted with allegations before his cognitive decline – significance of being unfit to stand trial on criminal charges and application for permanent stay of civil proceedings – discretion to grant a permanent stay re-exercised but appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 6E(1), 578A
Evidence Act 1995 (NSW), ss 91, 92
Felons (Civil Proceedings) Act 1984 (NSW), s 4
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2
Limitation Act 1969 (NSW), s 6A
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW), s 22
Cases Cited: BRJ v The Corporate Trustees of The Diocese of Grafton [2022] NSWSC 1077
Burrows v Patsantzopoulos [2022] NSWDC 442
Chalmers v Leslie [2020] QSC 343
House v The King (1936) 55 CLR 499; [1936] HCA 40
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292
Category: Principal judgment Parties: Dimitrios Patsantzopoulos by his tutor Anastasia Naumov (Applicant)
Lauren Burrows (Respondent)Representation: Counsel:
Solicitors:
M J Davis (Applicant)
C T Barry KC with R Royle (Respondent)
IBT Law (Applicant)
Wyatts Lawyers (Respondent)
File Number(s): 2022/348357 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Civil
- Citation:
- Date of Decision:
- 4 October 2022
- Before:
- Weber SC DCJ
- File Number(s):
- 2021/91282
JUDGMENT
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WARD P: I agree with Leeming JA.
-
LEEMING JA: The applicant, Mr Dimitrios Patsantzopoulos who appears by his tutor, seeks leave to appeal from the dismissal by the District Court of his application for a permanent stay of civil proceedings brought by the respondent, Ms Lauren Burrows. She alleges that he assaulted her, including sexual assault, over a two year period in around 1990 when he was in a relationship with…
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- AGLC
- Patsantzopoulos by his tutor Naumov v Burrows [2023] NSWCA 79
- Case
- [2023] NSWCA 79
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether Mr Burrows' inability to provide instructions and his cognitive decline rendered a fair trial in the civil proceedings impossible. It also considered whether the primary judge had failed to address a substantive submission advanced by the defendant, and the significance of Mr Burrows being confronted with the allegations before his cognitive decline and his unfitness to stand trial on criminal charges. The central question was whether the discretion to grant a permanent stay should have been exercised.
The Court of Appeal reasoned that the primary judge had erred in failing to address a substantive submission made by the defendant regarding the impact of the plaintiff's delay in commencing proceedings. However, the Court found that this error did not necessitate setting aside the primary judge's decision to grant a permanent stay. The Court re-exercised the discretion, taking into account Mr Burrows' cognitive decline, his inability to participate in his defence, and the fact that he had been found unfit to stand trial in the criminal proceedings. The Court concluded that a fair trial was impossible in the circumstances.
Leave to appeal was granted, and the appeal was dismissed. The Court directed the applicant to file a notice of appeal within 7 days and dispensed with the rules as to service. The appeal was dismissed with costs.
Orders
Orders of the court
1. Grant leave to appeal.
2. Direct the applicant within 7 days to file a notice of appeal in accordance with the draft notice of appeal, and otherwise dispense with the rules as to service.
3. Appeal dismissed, with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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