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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.

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