A defendant to a claim for damages following alleged sexual assaults 43 years ago, and who was unsuccessful in seeking a permanent stay of proceedings, has now been successful on appeal, with the Supreme Court of New South Wales Court of Appeal exercising the discretion expressly preserved by s 6A(6) of the Limitation Act 1969 (NSW) to order a stay and finding that, having regard to the defendant’s medical condition, he will not have a fair trial.
Background
In late 1973 or early 1974, when Ms Suzanne Holt was 12 years old, Mr Joseph Moubarak allegedly sexually assaulted her on four occasions. In February 2013, Ms Holt told her general practitioner of the alleged assaults. Beginning in April 2015, she also discussed the alleged assaults with a number of psychologists. [21] On 11 May 2015, Ms Holt reported the alleged assaults to the police and provided a statement to the police.
In February 2014, Mr Moubarak, then aged 85, moved into a nursing home, suffering dementia. Ms Holt was informed by the police that they were unable to proceed further because, due to Mr Moubarak’s physical and mental condition, he was not fit for trial.
On 9 December 2016, 43 years after the alleged assaults, Ms Holt commenced proceedings in the District Court of New South Wales against Mr Moubarak, seeking damages for the alleged assaults, including aggravated and exemplary damages. Mr Moubarak, by his tutor, filed a defence in which he admitted certain allegations, but also did not admit and denied other allegations.
Notice of motion for permanent stay of proceedings
Mr Moubarak filed a notice of motion seeking a permanent stay of the proceedings or alternatively an order that the proceedings be dismissed. The primary judge found that, whilst accepting that Mr Moubarak was under a legal incapacity, the doctrine of fitness to stand trial was not relevant to determining the application for a permanent stay of proceedings, and dismissed the motion.
On appeal
Mr Moubarak sought leave to appeal the primary judge’s findings.
The court noted that based on s 6A of the Limitation Act 1969 (NSW), any limitation period for child abuse actions was removed. However, s 6A still preserves the court’s power to stay or dismiss proceedings. [37] The court found that Mr Moubarak was not fit to face criminal charges in respect of Ms Holt’s complaint to police because the minimum requirements for a fair trial would not be present, and that it would offend common sense simultaneously to maintain that Mr Moubarak could secure a fair civil trial in relation to identical factual allegations. [108] The case is as a clear case for the exercise of the discretion expressly preserved by s 6A(6) to order a stay [188] and that having regard to his medical condition, Mr Moubarak will not have a fair trial. [205]
Accordingly, the court granted leave to appeal and upheld the appeal.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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