Royal Commission into institutional abuse implications—the irreducible minimum for a fair trial

10 May 2019

Chris Wood
Consultant
Sparke Helmore Lawyers

Chris Wood
Consultant
Sparke Helmore Lawyers
t: +61 2 9260 2765

Chris is a longstanding insurance lawyer working in both our general liability and professional indemnity teams. He represents and advises professionals on claims that are brought against them and when they face regulatory or disciplinary action.

Gillian Davidson
Partner
Sparke Helmore Lawyers

Gillian Davidson
Partner
Sparke Helmore Lawyers
t: +61 2 9373 3535

Gillian specialises in general commercial insurance with deep expertise in liability claims. As a senior partner, Gillian leads Sparke Helmore’s national liability team of over 50 lawyers. Regularly acknowledged in legal directories, Gillian was most recently recognised in the Legal 500 Asia Pacific edition 2022, where she was valued as "extremely experienced and [someone who] always gets to the crux of the matter". Gillian is passionate about the contribution that policies related to Diversity and Inclusion make to the wellbeing of employees and clients. She is the Chair of the firm's Diversity & Inclusion Advisory Committee. Her commitment to the promotion and development of women is well known. She is the founding partner of the firms Six Degrees Network, which provides leadership, mentoring and networking opportunities highlighting the inclusion of women. She has also been a member of the firm’s Board. Gillian is the current Chair of Global Insurance Law Connect (GILC). GILC is a diverse global network of boutique law firms with insurance expertise. Each member firm is embedded into its own insurance market and has deep local knowledge, aimed at helping clients with complex cross-border legal challenges. Each of the member firms has a real passion for the industry; the network consists of 21 firms in 23 countries spread across five continents, and the footprint touches every area of insurance law.

The Court of Appeal delivered its seminal judgment in Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 yesterday (9 May 2019).

The Applicant/Defendant, Mr Moubarak, is the uncle of the Respondent/Plaintiff, Ms Holt. Ms Holt brought a civil claim against Mr Moubarak in the District Court of NSW for damages for sexual assault alleged to have occurred on four occasions in 1973 or 1974 when she was 12 years old. By April 2019, when the proceedings were due to come on for trial, more than 45 years would have elapsed since the alleged assaults.

The Court of Appeal bench (comprised of Bell P, Leeming JA and Emmett AJA with the lead judgment from Bell P) unanimously granted leave, allowed the appeal, set aside the primary judgment and ordered the stay.

After weighing up relevant authorities, Bell P set out nine salient features, which warranted the permanent stay (see paragraphs [162]–[171]).

Ultimately, a trial in the Defendant’s involuntary absence (due to his advanced dementia) would “produce manifest unfairness to the Defendant and bring the administration of justice into disrepute, notwithstanding that it would result in the unfortunate consequence of the Plaintiff not being able to pursue her claim” [159].

“The (non-culpable) delay that s 6A of the Limitation Act retrospectively permits, carries with it the possibility that a fair trial would not be possible” [160].

In agreement with the President, Leeming JA opines the “distinction between a trial being necessarily unfair and a trial which is so unfairly and unjustifiably oppressive as to constitute an abuse of process, is no doubt a fine one” [190].

This is the first time the NSW Court of Appeal has ordered a permanent stay of proceedings, following the significant amendments to the Limitation Act 1969 (NSW) effected by the introduction of s 6A of that Act in 2016 (post Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015)) and its impact will be far reaching.

You can view the full decision here.

A more detailed case note will follow.

We would like to acknowledge the contribution of Emma Harriott.

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