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The question in this case was whether a permanent stay should be ordered on the basis that the first defendant was suffering from severe dementia and was unable to follow the proceeding or provide instructions. The proceeding concerned a claim by the plaintiff for damages for personal injuries as a result of alleged historic sexual abuse committed upon him by the first defendant. Martin J considered that a fair trial would not be possible in the circumstances. Accordingly, a permanent stay was ordered.
20 November 2020
The plaintiff seeks damages for personal injuries arising as a result of sexual assaults he alleges were committed against him as a child by his maternal grandfather, the first defendant. . He also seeks damages from his mother, the second defendant, alleging that she knew or ought to have known of the abuse, and taken additional steps to protect him. , .
The defendants sought an order that the proceedings be stayed because a fair trial is not possible, on account of the first defendant’s severe dementia. , . In the result, Martin J agreed to permanently stay the proceedings. .
Why it was appropriate to permanently stay the proceedings
Martin J observed that the first defendant had begun displaying symptoms of dementia in 2009. . Those symptoms had progressed, with expert medical assessments indicating that the first defendant “lacks capacity in all decision making” and “was not able to accurately or reliably answer any questions”. , . As a result, he was represented by a litigation guardian, to whom he was unable to provide instructions in relation to the claim. .
His Honour noted that the New South Wales Court of Appeal had considered a similar set of circumstances in Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218, where it was observed that “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”. . Notably, the allegations had a “strong affinity with a criminal charge of sexual assault”, meaning that similar considerations of fairness arose. . In that context, in R v Presser  VR 45, Smith J had said that a fair trial for an accused included a requirement that they be able to “understand generally the nature of the proceeding … to be able to follow the course of the proceedings”, to be able to understand the “substantial effect of any evidence” against him or her, and be “able to make his defence or answer to the charge”. .
In this case, because of his severe dementia, the first defendant would be unable to do any of those things. . Because the condition was degenerative, there was no prospect of him improving. . Further, there was no record of a response by him to the allegations at any earlier time; there was no earlier police complaint or statement; there was no reliable evidence of any persons who could give direct evidence about the alleged assaults; and there was no supporting documentary evidence. . Those circumstances combined to render it impossible that a trial could be conducted fairly. . Accordingly, the plaintiff could not be permitted to proceed against the second defendant either. .
In the result, “[t]he first defendant’s medical condition would render a trial of this action so unfair to him as to require that the action be stayed”. . His Honour ordered accordingly. .