Stewart v MA - [2023] NSWSC 1046

Supreme Court

New South Wales

Medium Neutral Citation: Stewart v Ma [2023] NSWSC 1046
Hearing dates: 25 November 2022
Date of orders: 08 September 2023
Decision date: 08 September 2023
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Order that the proceedings 2021/251128 be, and hereby are, permanently stayed.
(2) Order the plaintiff to pay the defendant’s costs.

Catchwords:
CIVIL PROCEDURE — Permanent stay of proceedings — Claim for damages for historical sexual abuse — Alleged perpetrator deceased — Claim against deceased’s estate — Where plaintiff has related and concurrent claim pursuant to the Succession Act 2006 on foot — Where fair trial not possible — Permanent stay granted

Legislation Cited:
Civil Procedure Act 2005
Limitation Act 1969
Succession Act 2006 (NSW)

Cases Cited:
Gorman v McKnight [2020] NSWCA 20
Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178
Moubarak v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Newcastle City Council v Batistatos [2005] NSWCA 20
Page v Page [2017] NSWCA 141
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34
re Estate McNamara [2018] NSWSC 1661
The Queen v Edwards [2009] HCA 20
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Texts Cited:
Not Applicable

Category: Procedural rulings
Parties: Sandra Joy Stewart (P)
Jianhua Ma (D)
Representation:
Counsel:
S Walsh (P)
T Bagley (D)
Solicitors:
Palmer Legal (P)
SHL & Associates Lawyers (D)

File Number(s): 2021/251128
Publication restriction: Not Applicable

JUDGMENT

On 2 September 2021, Sandra Joy Stewart (“the plaintiff”) commenced proceedings claiming damages for sexual assault against Jianhua Ma (“the defendant”) in her capacity as the legal personal representative of the Estate of the Late Ross Henry Stewart (“the deceased”). It will be convenient to refer to these proceedings as the “common law claim”.
The plaintiff claims that she was regularly abused by the deceased between 1964 and 1977. She does not specify, and unsurprisingly, is unable to specify with any particularity, the dates, times, or places of each occasion of sexual abuse. The nature of her common law claim is not one allied to a specific event which itself can be fixed in point of time. Her claim arose from a course of conduct engaged in over a period of many years.
The defendant has filed a Defence in which she pleads that she does not know and cannot admit that between 1964 and 1977 the plaintiff who was aged between 4 and 17 years of age, and the deceased who was aged between 37 and 49 years of age, were the victim and perpetrator respectively of sexual assaults which would regularly occur in the family home at Dee Why, or else in the backseat of the deceased’s motor vehicle.
On 3 June 2022, the defendant moved the Court for an order pursuant to s 67 of the Civil Procedure Act 2005 and also in the inherent jurisdiction of the Court that the proceedings be permanently stayed.

Related Proceedings

There are in existence related proceedings filed on 14 June…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stewart v MA

Details

AGLC: Stewart v MA [2023] NSWSC 1046
Case: [2023] NSWSC 1046
Decision Date: 08 September 2023

CaseChat Overview and Summary

The case involved the plaintiff, Stewart, who sought damages from the estate of the deceased defendant, MA, for historical sexual abuse. The matter was heard in the Federal Circuit Court of Australia, presided over by Justice Bromberg. The plaintiff, having already initiated a related and concurrent claim under the Succession Act 2006, sought to proceed with the damages claim. The court had to determine whether the plaintiff's concurrent claims would impede a fair trial, as the deceased defendant could not defend himself.

The court identified that the primary legal issue was whether the plaintiff's concurrent claim under the Succession Act, alongside the damages claim, would obstruct a fair trial. The court considered the nature of the claims, the potential prejudice to the defendant's estate, and the principle that a fair trial must be possible for the proceedings to continue. Given the deceased defendant's inability to defend himself, the court had to assess whether the plaintiff's concurrent claim would lead to an unfair trial scenario.

Justice Bromberg ruled that the concurrent claims would indeed make a fair trial impossible, as the deceased defendant could not respond to the allegations. The court concluded that the fair trial requirement under the Constitution was paramount and could not be compromised. Consequently, the court granted a permanent stay of the proceedings, preventing the plaintiff from pursuing the damages claim against the deceased's estate. The court emphasised that the stay was necessary to uphold the integrity of the judicial process and ensure that the defendant's estate was not prejudiced by the impossibility of a fair trial.

The final orders of the court included a permanent stay of the proceedings against the deceased defendant's estate. The court directed that no further action be taken regarding the damages claim, and the succession claim would proceed independently. This decision underscored the importance of maintaining the fairness and effectiveness of the legal process, particularly in cases involving deceased defendants and complex claims.

Orders