Patsantzopoulos by his tutor Naumov v Burrows

The appeal concerned an action for damages for historical sexual assault brought by the plaintiff, Mr Patsantzopoulos, against the defendant, Mr Burrows. Mr Burrows, who had suffered a severe stroke in 2014 and subsequently developed dementia, was found unfit to stand trial for the same conduct in criminal proceedings. Following a special hearing, he was found to have committed an offence against the plaintiff pursuant to s 22(1)(c) of the *Mental Health (Forensic Provisions) Act 1990* (NSW), based on limited evidence. The primary judge had granted a permanent stay of the civil proceedings.

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.