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District Court 4 October 2022

Burrows v Patsantzopoulos

[2022] NSWDC 442

Sexual offences
PRACTICE AND PROCEDURE

Citation: Burrows v Patsantzopoulos [2022] NSWDC 442
Court: District Court of New South Wales
Date: 4 October 2022
Judge: Weber SC DCJ

Background

The plaintiff brought civil proceedings claiming damages for alleged sexual assault said to have occurred over a 24-month period commencing around 1990, when the plaintiff was a child. The defendant, an 87-year-old man detained in a secure aged care facility, was represented in the civil proceedings by a tutor owing to his cognitive incapacity.

The defendant had suffered a significant stroke in 2014, resulting in persistent neurological damage and, subsequently, a diagnosis of major neurocognitive disorder (vascular dementia). His condition impaired his ability to concentrate, follow proceedings, understand evidence, and give instructions to his legal representatives.

The same alleged conduct had previously been the subject of criminal proceedings. In 2018, the defendant was found unfit to stand trial. A Special Hearing nonetheless took place in 2020, after which a court entered a finding that, on the limited evidence available, the relevant offence was established as having been committed by the defendant. A limiting term of three years was imposed in 2021.

  • Whether the civil proceedings should be permanently stayed on the basis that the defendant's neurocognitive deficits, including dementia, meant he could not receive a fair trial.
  • How the relevant principles governing permanent stay applications apply where a defendant has lost capacity after proceedings commenced.
  • Whether the Special Hearing verdict under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (a qualified finding of guilt) had any effect on the plaintiff's ability to bring a common law damages claim.

Decision

Weber SC DCJ dismissed the defendant's motion for a permanent stay. The court applied the well-established framework from Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218 and related authorities, which makes clear that a permanent stay is an exceptional remedy, granted only in the most exceptional circumstances, and that the onus to justify such a stay rests squarely and heavily on the defendant.

The court assessed the so-called "Chalmers Factors," derived from Moubarak and summarised in Chalmers v Leslie & Anor [2020] QSC 343. Those factors include whether the plaintiff ever confronted the defendant with the allegations, whether the defendant had pre-existing cognitive conditions, whether a police complaint was made, the availability of direct evidence, and the defendant's capacity to give instructions or evidence. The judgment indicates that, weighing all relevant factors, the balance did not favour a stay, notwithstanding the defendant's serious cognitive impairment.

The court also addressed a discrete statutory construction question: whether the Special Hearing verdict constituted a "conviction" capable of affecting the plaintiff's civil claim. Weber SC DCJ held that the reference in s 62(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) to "enabling a victim to make a claim for compensation" relates to statutory victims of crime compensation under the Victims Rights and Support Act 2013 (NSW), not to a common law damages claim. The court concluded that a common law claim does not require a conviction to enable it to be brought, and this construction formed no part of the reasoning on the stay motion itself.

Orders Made

  • The defendant's motion dated 4 October 2022 was dismissed.
  • The defendant was ordered to pay the plaintiff's costs of and incidental to the motion.
  • The matter was relisted before the Judicial Registrar on Friday 14 October 2022.

Key Takeaways

  • A permanent stay of civil proceedings is an exceptional remedy, and the burden of establishing the need for one rests squarely and heavily on the defendant, even where that defendant suffers from serious neurocognitive impairment including dementia.

  • The District Court confirmed that a fair trial is not synonymous with a perfect trial, following Moubarak, and that granting a stay involves balancing the unfairness to the defendant against the unfairness to the plaintiff of denying access to a remedy.

  • Where assessing a stay application based on loss of capacity, courts apply the Chalmers Factors, which examine matters such as the existence of police complaints, prior statements, the defendant's capacity to instruct lawyers, and the availability of direct evidence.

  • Under s 62(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a qualified finding of guilt from a Special Hearing enables a victim to claim statutory compensation under the Victims Rights and Support Act 2013 (NSW), but does not operate as a precondition for, or otherwise affect, a separate common law damages claim.

  • Proceedings may continue against a defendant who has been found unfit to stand trial in related criminal proceedings and who is detained as a forensic patient, provided the civil court concludes the balance of fairness does not require a permanent stay.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 178
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Part 4, Division 3, s 62
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 22
- Uniform Civil Procedure Rules 2005 (NSW), r 7.15
- Victims Rights and Support Act 2013 (NSW)

Cases
- Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218
- The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762
- Connellan v Murphy [2017] VSCA 116
- Chalmers v Leslie & Anor [2020] QSC 343
- Gorman v McKnight [2020] NSWCA 20
- Williams v Spautz (1992) 174 CLR 509
- Goldsmith v Sperrings Ltd (1977) 1 WLR 478
- R v Edwards (2009) 255 ALR 399
- Ellis v Pell [2006] NSWSC 109
- R v Presser (1958) VR 45