As we all may know, permanent stay of proceedings of historical abuse claims is currently a live topic in this area of law, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.  

On 26 April 2023, the NSW Court of Appeal provided a decision in the matter of Patsantzopoulos by his tutor Naumov v Burrows [2023] NSWCA 79. In this matter, the defendant (Mr Dimitrios Patsantzopoulos by his tutor Ms Anastasia Naumov) filed an application seeking a permanent stay of the plaintiff’s (Ms Lauren Burrows) proceedings.  

In summary, the plaintiff commenced court proceedings in April 2021 against the defendant for alleged sexual abuse suffered by the plaintiff at the hands of the defendant over a two year period from around 1990, whilst the defendant was in a relationship with the plaintiff’s mother. The plaintiff sought damages for trespass to person by the defendant. No defence has been filed to date by the defendant.  

The plaintiff first reported the incidents to the police in October 2013. In October 2018, the Court determined that the defendant was unfit to be tried in the criminal proceedings. The defendant was referred to the Mental Health Review Tribunal, and ultimately a special hearing took place in which it was found that, on the limited evidence available, the defendant had committed the majority of the offences.  

On 4 October 2021, the defendant filed an application to permanently stay the plaintiff’s proceeding and on 4 October 2022, the Court rejected the defendant’s application for the plaintiff’s proceeding to be permanently stayed, despite the defendant being 87 years old and that he was detained in 2021/2022 pursuant to Mental Health Review Tribunal orders following a stoke in 2014.  

The defendant submitted that the primary judge was in error on the following grounds: 

  1. erred in principle in so far as his Honour had applied the decision in Chalmers v Leslie [2020] QSC 343 at [25] as though it contained the relevant principles of law, whereas in fact those “principles” were merely factual matters which arose in that particular case.
  2. erred by failing to take into account a material consideration, namely, the extent to which the incoherence of (a) a finding that the applicant did not meet the minimum standards for a fair trial in criminal proceedings, and (b) a finding that the applicant can obtain a fair trial in civil proceedings involving identical factual allegations, would bring the administration of justice into disrepute. 

In response the defendant’s appeal, on each ground the Court of Appeal found (adopting the above numbering): 

  1. Not made out – “I am unpersuaded that the reasoning, which the applicant fairly conceded was relevant, discloses appellable error because the relevant factual considerations are described as “principles”” (at [26]). 
  2. Made out as the primary judge never returned to the original submission based on coherence which had been made by the defendant. 

Simply put, the Court of Appeal determined that, whilst the discretion exercised by the primary judge miscarried, the defendant’s appeal was dismissed. The defendant’s application failed notwithstanding the “incongruity in the applicant not being fit to stand trial on the indictment but being amenable to civil proceedings” (at [36]). The Court of Appeal further ordered that the defendant pay “a substantial fraction” the plaintiff’s costs.  

Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website written by Emily Wright and our office.  

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today. 

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