After A Life Of Misfortune, A Last Chance To Make Amends Is Lost In Court

Sydney Morning Herald

Thursday June 15, 2006

Michael Pelly Legal Reporter

LIFE has not been fair to Andrew Batistatos. His mother died in childbirth when he was two and he and his brother and sister were split up when his father could not cope.

At five, he ended up in the Newcastle Mental Asylum. There he remained for the next 18 years, handicapped by dyslexia and an IQ of only 69.

At 22, he went to work as a cleaner in the NSW Public Works Department. In the first two years there he saved $10,000 and took pride in becoming self-sufficient.

However, in August 1965 Mr Batistatos was returning from a party when his van overturned, leaving him a quadriplegic.

He lived for 14 years, confined and friendless, in a hospital and, later, a nursing home.

In 1979, his luck turned when his brother, Democratos, tracked him down. Democratos still recalls the day they took Andrew away to the asylum and how he tried to climb the fence and run after him.

The visits from Mr Batistatos's siblings brought him joy and in 1992 his sister invited him to stay in her Sydney home. She started asking questions for him and found Mr Batistatos's accident had occurred on a notorious stretch of road on Fullerton Street at Stockton.

He lodged negligence claims against Newcastle Council and the Roads and Traffic Authority in 1994 and they resisted him all the way to the High Court.

Yesterday they won - and he lost his last chance for justice.

The reason? It wouldn't be fair.

The decision came down by 4-3, with Justice Michael Kirby championing his cause along with Ian Callinan and Dyson Heydon.

Justice Kirby said: "I will not be a party to orders of this court that impose on the appellant a third, exceptional, burden - the burden of injustice."

However, the Chief Justice, Murray Gleeson, and Justices Bill Gummow, Ken Hayne and Susan Crennan held sway, saying that after 40 years there were so many evidentiary problems that a fair trial was impossible.

The decision upheld a NSW Court of Appeal decision. Earlier, the Supreme Court's Justice Clifford Hoeben had ruled the case should proceed.

Justice Kirby noted that claims arising from the Melbourne-Voyager collision had proceeded more than 40 years later.

"Simply because a case appears to be difficult to prove or has evidentiary weaknesses ... does not mean that a trial, in the normal way, would necessarily be unfair." He said that "to stop the trial without a hearing on the merits is truly exceptional".

Justice Callinan said there was "quite good evidence" available and a witness who could describe the stretch of road where the accident occurred: a dogleg with vision obscured by bushes. The road has since been straightened.

Mr Batistatos's solicitor, Tim Kelly, said his client was "obviously disappointed, especially with the closeness of the decision".

"We'd all be celebrating if one judge changed his mind."