Moubarak by his tutor Coorey v Holt [2019] NSWCA 102

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 Hearing dates: 15 April 2019 Date of orders: 24 April 2019 Decision date: 09 May 2019 Before: Bell P at [1]; Leeming JA at [182]; Emmett AJA at [198] Decision: 1. Grant leave to appeal. 2. Order the applicant to file a notice of appeal in accordance with the draft notice of appeal within 7 days. 3. Appeal allowed. 4. Set aside the orders of the primary judge made on 24 September 2018 and in lieu thereof order that the District Court of New South Wales proceedings 2016/369438 be permanently stayed. 5. Direct that the representatives of both parties forthwith notify the District Court of these orders and that the proceedings listed for 29 April 2019 have been permanently stayed. 6. Direct the parties to file any written submissions as to costs within 14 days and any reply within a further 7 days in the absence of an agreement as to costs. Catchwords: CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assaults that occurred in 1973 or 1974 – no applicable limitation period – relevant principles – whether proceedings should be stayed on the basis that defendant, who has dementia, would not receive a fair trial – relevance of delay or passage of time – whether need for explanation for delay – relevance of defendant's fitness to stand trial and R v Presser [1958] VR 45

LIMITATION OF ACTIONS – civil claim for damages for sexual assaults alleged to have occurred in 1973 or 1974 – no applicable limitation period – whether proceedings should be permanently stayed