Patsantzopoulos by his tutor Naumov v Burrows [2023] NSWCA 79

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: M J Davis (Applicant) C T Barry KC with R Royle (Respondent)