SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
DRAOUI v LE & ORS
[2021] SASCA 33
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Livesey)
14 May 2021
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - FURTHER EVIDENCE
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS
On 21 August 2020, a Judge of the Supreme Court ordered that Mr Draoui’s appeal against the effective dismissal of his damages claims for personal injury be stayed pending payment into court of $20,000 by way of security for the respondents’ costs of the appeal. Mr Draoui did not make this payment, and on 4 December 2020, the same Judge dismissed his appeal on account of his failure to do so.
Mr Draoui appeals the dismissal of his appeal. He seeks leave to appeal to the extent necessary, and has brought an application to adduce further evidence as to his ability to now pay the security that was ordered. He has also made an application to have his appeal reinstated.
Held, per Doyle JA, Lovell and Livesey JJA agreeing, refusing leave to appeal, dismissing the appeal, refusing the application to adduce further evidence, and refusing the application to reinstate the appeal:
1. Mr Draoui requires leave to appeal, the dismissal of his appeal on account of a failure to provide security being a species of dismissal for want of prosecution, and thus being an interlocutory order. Leave is refused, as the decision of the Judge was not attended by sufficient doubt to warrant its reconsideration on appeal, and allowing his Honour’s decision to stand would not occasion Mr Draoui substantial injustice.
2. Mr Draoui has not established any error on the part of the Judge in the exercise of his discretion to dismiss his appeal. His Honour plainly took into account both the timing of the dismissal application, and the limited nature of the prejudice likely to be occasioned to the respondents by an adjournment of the dismissal application, in balancing the competing considerations relevant to the exercise of his discretion against the broader context of the proceedings.
3. The present case is not an appropriate case to exercise the Court’s discretion to receive further evidence, having regard to the limited and inadequate evidence adduced by Mr Draoui before the Judge, the inconsistencies between Mr Draoui’s fresh evidence and the evidence earlier adduced, and the public interest in finality.
4. In light of the history of the proceedings, the very limited prospects of Mr Draoui succeeding in his substantive appeal, and the disproportionality between what Mr Draoui is likely to obtain and the costs required to secure that outcome, there are not special reasons in this case to warrant the reinstatement of the appeal.
Uniform Civil Rules 2020 (SA) rr 1.5, 115.1, 213.1(a), 215.1, 215.3, 218.13, 218.15, 218.17, referred to.
Draoui v Le [2020] SASC 155; Draoui v Le, Then & Cock (No 3) [2020] SADC 23; Hall v The Nominal Defendant (1966) 117 CLR 423; Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Re Luck (2003) 78 ALJR 177; Hughes v Gales (1995) 14 WAR 434; Western Australia v Fazeldean (No 2) (2013) 211 FCR 150; Beverage Bottlers (SA) Ltd v Abode Enterprises Pty Ltd [2009] SASC 272; Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572; Mandeville v Better Lending Pty Ltd [2021] SASCA 28; Goodman v Lorenzen [2000] QCA 11; Harris Scarfe Ltd v Ernst & Young (No 2) [2005] SASC 168; Commonwealth of Australia v Saadat [2019] SASCFC 124; Ulowski v Miller [1968] SASR 277; BQ & HM Doe Pty Ltd v National Australia Bank [1999] SASC 124; Ramstrom v Baldino (No 2) [2014] SASC 71; Porter v Gordian Runoff Ltd (No 3) [2005] NSWCA 377; R V Investments (Aust) Pty Ltd v ACN 110 769 929 Pty Ltd [2014] VSCA 210; Farnell v Penhalluriack (2010) 29 VR 727; House v The King (1936) 55 CLR 499; Eustice v Channel Seven Adelaide Pty Ltd [2021] SASC 48; CDJ v VAJ (No 2) (1998) 197 CLR 172; Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361; Collex Waste Management Services Pty Ltd v Corporation of the City of Enfield (No 2) [2000] SASC 140; R v Skinner (2016) 126 SASR 120; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; Mitchell v The Queen (1996) 184 CLR 333; Leach v The Queen (2007) 230 CLR 1; Psevdos v Commonwealth Bank of Australia [2018] SASC 9; Baskerville v Martin [1967] SASR 156; Barwick v Crichton (1983) 36 SASR 142; Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238; R v Barnett (2009) 198 A Crim R 251, considered.
DRAOUI v LE & ORS
[2021] SASCA 33
Court of Appeal - Civil: Lovell, Doyle and Livesey JJA
LOVELL JA: I agree with the reasons of Doyle JA and the orders he proposes.
DOYLE JA: On 21 August 2020, a Judge of this Court ordered that Mr Draoui’s appeal against the dismissal[1] of his damages claims be stayed pending payment into Court of $20,000 by way of security for the respondents’ costs of the appeal. Mr Draoui did not make this payment, and on 4 December 2020 the same Judge dismissed his appeal on account of his failure to do so.
[1] Subject only to a very modest award of damages in respect of one of those claims.
Mr Draoui has appealed the dismissal of his appeal. He seeks leave to appeal to the extent necessary. Mr Draoui has also brought an application to adduce further evidence as to his ability to now pay the security that was ordered. During the course of argument he also made an oral application to have his appeal reinstated.
Background
The present appeal has a long and unfortunate history.[2] It has its genesis in claims for damages for personal injury and loss brought by Mr Draoui in respect of three separate motor vehicle accidents, occurring on 3 December 2001, 4 January 2011 and 26 February 2011. The three claims were brought separately but ultimately heard together in one trial. The defendants to those claims were the three drivers who were said to have negligently caused the three accidents. All defendants were represented by one set of legal representatives, retained by their insurer.
[2] Recounted in more detail in Draoui v Le [2020] SASC 155 (Bleby J’s security for costs reasons).
The trial
Trials listed in 2015 and 2017 were adjourned after Mr Draoui failed to make good his assurances that he would obtain funding for legal representation.
The trial ultimately commenced on 8 July 2019, with Mr Draoui representing himself. However, the trial commenced only after an unsuccessful application by Mr Draoui for a further adjournment on the bases that he was not mentally capable of conducting the trial on his own behalf, and that he did not have the financial capacity to engage lawyers to do so. Mr Draoui applied for permission to appeal that refusal to further adjourn the trial, but Kelly J refused that application.
Early in the trial, Mr Draoui provided the trial Judge (Deuter DCJ) with a letter from a general practitioner expressing the view that he had suffered an exacerbation of his depressive disorder and that he should be reviewed by a psychiatrist. This led to Deuter DCJ holding a disability inquiry to determine whether Mr Draoui was a person under a disability who required a litigation guardian. On 16 August 2019, her Honour concluded that Mr Draoui was not such a person. She ordered that the trial recommence. However, Mr Draoui refused to return to the witness box and did not arrange any witnesses to give evidence in his case. On 20 August 2019, Deuter DCJ ruled that Mr Draoui’s case should be treated as closed.
The defendants opened their case and called witnesses over several days. On 29 August 2019, Mr Draoui filed an interlocutory application seeking permission to appeal from Kelly J’s refusal to grant permission to appeal from Deuter DCJ’s refusal to adjourn the trial. The Full Court of this Court refused that application for permission on 3 September 2019.
On 23 September 2019, after judgment was reserved, Mr Draoui brought an application to reopen his case and call witnesses. He gave evidence on that application and was cross-examined. Deuter DCJ refused the application, finding that reopening the case at that stage would effectively lead to a complete rehearing requiring six to eight further weeks of hearing time.
Deuter DCJ published her reasons for judgment on 19 March 2020.[3] With respect to the first accident, her Honour found that Mr Draoui had failed to prove that the accident was caused by the negligence of the defendant, Mr Le. This conclusion depended in significant part on her Honour’s preference for the evidence of this defendant and a neutral third-party witness, Ms Lucas.
[3] Draoui v Le, Then & Cock (No 3) [2020] SADC 23; the summary that follows is taken from Draoui v Le [2020] SASC 155 at [19]-[24].
With respect to the second accident, her Honour found that there was no basis for a finding of negligence against the defendant, Mr Lock. The evidence was to the effect that Mr Lock had been driving his scooter behind the car in which Mr Draoui was a passenger. As the traffic was slowing, a utility approached him from behind and did not appear to be braking. The impact caused the scooter to be pushed into Mr Draoui’s car. No contrary evidence was led, and Mr Draoui did not cross-examine Mr Lock. Mr Draoui had been on notice of the defendant’s case from early in the proceedings. Her Honour therefore dismissed the claim against this defendant.
The third accident involved a rear-end collision. The defendant, Ms Then, admitted liability, but her Honour assessed Mr Draoui’s injuries as “very modest”, awarding general damages of $4,340 (using a scale value of 3). Mr Draoui had also claimed damages for loss of earning capacity. However, Deuter DCJ found that Mr Draoui had not proved that he suffered any reduction in his earning capacity as a result of his injuries from this accident. Her Honour made no award for economic loss, or for any of the other heads of loss claimed by Mr Draoui.
The appeal
Mr Draoui filed an appeal from the decision of Deuter DCJ to the Full Court of the Supreme Court of South Australia. The notice of appeal was settled by counsel and identified 13 grounds of appeal.[4] Grounds 1 to 9 complained of matters of process going to the fairness of the trial. They included complaints that the trial Judge erred:
·in finding that Mr Draoui was mentally fit to undertake the trial (ground 2);
·in finding that there was no need to appoint a litigation guardian (ground 3);
·in not adjourning the trial, having regard to Mr Draoui’s inability to represent himself, lack of financial resources, lack of English fluency and inability to comprehend the necessities of the trial (ground 4); and
·in finding against Mr Draoui on the second accident by reason of the wrong defendant being sued, which fact should have been brought to his attention at the outset with an opportunity to join the correct party (ground 8).
[4] The summary of these grounds that follows is again taken from Bleby J’s reasons in Draoui v Le [2020] SASC 155 at [25]-[27].
The other grounds in this category variously related to the manner in which the trial Judge addressed Mr Draoui’s mental health, English language capacity and lack of legal skills.
Grounds 10 to 13 complained of substantive matters concerning the trial Judge’s findings in respect of the three separate claims.
The order for security for costs
By application filed 3 June 2020, the respondents[5] to Mr Draoui’s appeal sought an order for security for their costs of the appeal, in the amount of $20,000. The application was brought under r 115.1 of the Uniform Civil Rules 2020 (SA), which, by reason of r 215.3, applies with any necessary changes to an application for security for the costs of an appeal.
[5] Being the defendants below and the Motor Accident Commission (joined as a respondent on the appeal).
The affidavit evidence in support of that application made reference to the long and difficult history of the matter, including the fact that the trial had run for some 24 sitting days spread over approximately 10 weeks. It also included reference to the respondents’ insurer having incurred in excess of $600,000 in costs associated with the litigation (including $311,176 in solicitor costs, $207,750 in counsel fees, $12,467 in court fees, $95,351 in investigation fees, and $53,285 in expert report and witness fees).
Argument on the application for security for costs was heard on 31 July 2020, and Bleby J delivered his reasons for judgment on that application on 21 August 2020.[6] His Honour commenced those reasons with a recitation of the history of the proceedings and a summary of Deuter DCJ’s findings. He noted the (limited) evidence as to Mr Draoui’s finances, and the various costs orders against him (including in respect of the trial). Bleby J said that he had no difficulty in finding that Mr Draoui was impecunious. His Honour also found that he would not be able to meet the costs orders already made against him by Deuter DCJ. Nor would he be able to meet any adverse costs order against him should his appeal to the Full Court be unsuccessful.
On the topic of Mr Draoui’s prospects of success on the appeal, Bleby J noted the observations of Kelly J and the Full Court as to the limited prospects of the appeal brought by Mr Draoui during the course of the trial. While there was an overlap between the matters sought to be raised in that appeal and the appeal to which the application for security for costs related, Bleby J acknowledged that these earlier assessments of the merits were of limited utility given that they related to the position before the trial started.
Bleby J proceeded to undertake his own analysis of the merits of Mr Draoui’s appeal, in respect of both the procedural and substantive complaints made in his grounds of appeal. His Honour ultimately reached the conclusion that Mr Draoui had only very limited prospects of success. His Honour explained:[7]
I find that the appellant has no realistic prospect of succeeding on appeal in respect of the determination of the claim on the second accident, very low prospects in respect of the first accident and some prospect of increasing his damages in respect of the third accident. However, I do not find that he has any significant prospect of increasing those damages by any substantial amount. The appellant has not identified any basis for attacking the trial judge’s finding on the basis of the expert reports, to the effect that the appellant sustained minor and limited aggravation to his already degenerative neck and spine, and that he had recovered to his pre-accident state within a few weeks.[8]
[7] Draoui v Le [2020] SASC 155 at [73].
[8] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [567] (Deuter DCJ).
After considering various other matters relevant to the exercise of his discretion to order security for costs, Bleby J concluded that it was appropriate to order that Mr Draoui provide security in the amount of $20,000. His Honour made an order in terms that Mr Draoui’s appeal be stayed until he paid into Court the amount of $20,000 by way of security for the respondents’ costs of the appeal. Strictly speaking, the terms of his Honour’s order did not require the payment of security; the order merely provided for the appeal to be stayed pending payment of the security. However, as nothing turns on the form of the order in the present case, I shall for convenience refer to the order as an order for security.
Subsequent correspondence as to the failure to provide security
On 31 August 2020, the solicitor for the respondents (Mr Ward of Finlaysons Lawyers) wrote to the solicitor for Mr Draoui (Mr Turon of Turon Legal) noting the order for security that had been made on 21 August 2020, and requesting that security be provided within 28 days of that order. The letter advised that in the absence of that occurring, Mr Ward expected to receive instructions to apply to have the appeal dismissed.
Having received no response to this letter, Mr Ward sent an email to Mr Turon on 21 September 2020. The email sought confirmation of whether Mr Draoui was willing and able to pay the security contemplated by Bleby J’s order, and indicated that in the absence of a response with adequate evidence of these matters, he expected to be instructed to apply to have the appeal dismissed. The email sought a response by 5.00 pm on 23 September 2020.
Mr Turon responded by email on 23 September 2020 in the following terms:
I am instructed that my client continues with his endeavours to raise the necessary funds which were ordered to be paid into Court.
As you know, my client is a pensioner and, as a consequence, his ability to raise the funds is limited by reason of that circumstance.
He has had to borrow funds from his children and friends to enable him to prosecute his Appeal in the matter thus far, and so his avenues for raising the funds have narrowed.
However, he instructs me that he is exploring further avenues of funding and he feels confident that he will be successful in raising the funds required in the near future; the reality is that he will need further time to achieve this goal.
Accordingly, I am instructed to request that he be given a further 60 days to raise the required funds.
At this juncture, it is noted that, notwithstanding the time limit of 28 days as stated in your letter of 31 August 2020, Justice Bleby’s order did not include any time limit for the payment into Court of the required funds, and so a further extension of the time for the funds to be paid into Court would not be inappropriate, given my client’s financial circumstances.
The application for dismissal of Mr Draoui’s appeal
On 25 September 2020, the respondents filed an application under r 115.1(4) of the Uniform Civil Rules seeking an order that the appeal be dismissed on account of the failure to provide security. The application was accompanied by an affidavit of Mr Ward in which he deposed to the order for security and the fact that it had not been paid, and exhibited the correspondence referred to above.
A responding affidavit of Mr Draoui was filed on 30 September 2020. In addition to some matters by way of submission (including pointing out the absence of any timeframe for the provision of security in Bleby J’s order), Mr Draoui deposed that his financial difficulties were well known to the respondents, referring in that respect to the email from Mr Turon dated 23 September 2020. He then reiterated that he was a pensioner and had no realisable or other assets in Australia. He said he had had to borrow funds from family, friends and acquaintances to enable him to prosecute the appeal to that point. He added that “I will raise the required funds to provide the security ordered, but for the reasons outlined I will need some further time to do so.”
Mr Draoui went on to state that he was suffering from depression and anxiety attacks, for which he was taking medication. He concluded his affidavit by stating:
I will continue with my endeavours to raise the necessary funds to be paid into Court and I am confident that I will be able to do so on or before the 1st December 2020. I would therefore seek an extension of time to enable that to happen.
The respondents’ application came on before Livesey J in the chamber list on 2 October 2020. Picking up on Mr Draoui’s statement in his affidavit that he was confident that he would be able to pay the security by 1 December 2020, counsel for the respondents sought a self-executing order to the effect that the appeal be dismissed unless the security was paid into Court by that date. Mr Turon, who appeared on behalf of Mr Draoui, reiterated some of the matters set out in Mr Draoui’s affidavit, but confirmed his instructions that his client was confident he could raise the security by 1 December 2020. While it seems that he was opposing the making of a self-executing order, he acknowledged that by 1 December 2020 “the court would have lost patience if Mr Draoui is not able to raise the necessary funds as he has indicated and thereafter the time would be very limited.”
Livesey J indicated that he was not prepared to make a self-executing order. His Honour added that, whilst the timeframe sought to be imposed in correspondence by Mr Ward was not determinative, there would come a point when dismissal for want of prosecution was a realistic prospect. His Honour then explained:
So what I’m proposing to do is adjourn this matter to the chamber list on 4 December. That will give Mr Turon’s client the time that he says he needs, and if the funds are not in place at that time, then he will need to explain himself with proper evidence. As you’ll appreciate … dismissal for want of prosecution is a conclusion that needs to be reached after sufficient facts are apparent to the court.
His Honour later added:
I am not prepared to make a self-executing order and I’m not yet prepared to dismiss this matter for want of prosecution. I am going to adjourn this matter to 4 December 2020 into the chamber list, to allow the appellant the timeframe which he says he requires, in order to raise funds.
If the appellant does not raise the funds within the timeframe that he predicts, he will appreciate that not only will evidence be required from him, but he is at serious risk of the matter being dismissed for want of prosecution.
Livesey J then made an order adjourning the respondents’ application for dismissal to the chamber list on 4 December 2020.
Mr Draoui did not pay the security that had been ordered. He filed an affidavit sworn 1 December 2020. After referring to the hearing before Livesey J, he relevantly deposed:
4.Since the 2nd October 2020 I have made every endeavour to raise the necessary funds, but at the date of this my affidavit my efforts have not thus far proved successful.
5.As late as the 30th November 2020 my approach to my most promising source of funds has not so far been met with a commitment to loan me the funds, although the door to that source has not completely been closed. The party involved in that source of funds has indicated that he is still willing to provide the funds, but that he would need some more time to be in a position to make the funds available. However, it appears unlikely that he will be able to do so before the 4th December 2020, when this matter is due to come on again before the Court.
6.My family has also not been able to assist me in the matter. I have 5 children, all of whom have variously got young families, or job insecurity because of the Covid19 pandemic, and are all experiencing financial pressures of their own and therefore unable to help me in this matter.
7.I have also approached long-time acquaintances and friends who I thought might be able to assist me as much as they were able but these contacts have also had their personal or business incomes affected by the Covid19 restrictions and the business downturn as a result of those restrictions.
8.I am hopeful that the promised lifting of restrictions due for December will see a change of fortunes for my potential sources of the necessary funds. However, any recovery of those fortunes will depend on the continued suppression and control of the pandemic and if that continues as hoped by the Government, there may not be any immediate change to the current economic circumstances until the beginning of the New Year.
9.Currently I am still under the supervision of my psychiatrist Dr Marcus Bem for my depression and anxiety attacks for which I have been prescribed anti-depression medication … and sleeping tablets … My inability thus far to raise the necessary funds in time has also had a worsening effect on my mental ill health.
10.I will continue with my endeavours to raise the necessary funds to be paid into Court and I am hopeful that I will be able to do so on or before the 28th February 2021.
11.In all the circumstances, I would therefore respectfully seek an extension of time to enable me to raise the necessary funds.
12.I submit that to dismiss my Appeal on the basis of the Respondents’ application would work an injustice which was not the thrust of His Honour Justice Bleby’s order, as no time limit, as sought to be imposed by the Respondents, was contained in His Honour’s order.
The dismissal of Mr Draoui’s appeal
The chamber list on 4 December 2020 was heard by Bleby J. Submissions on the respondents’ application for the dismissal of Mr Draoui’s appeal were made on behalf of the parties. The parties relied upon their respective affidavits (as summarised above). The submissions put by Mr Turon on behalf of Mr Draoui included a request to adjourn the respondents’ application. A draft application for an extension of the time within which to provide security was handed up on behalf of Mr Draoui. That application was never filed, and it would seem that it was not formally dealt with on the basis that it was overtaken by his Honour’s decision on the respondents’ application.
At the conclusion of the hearing on 4 December 2020, Bleby J made an order granting the respondents’ application and dismissing Mr Draoui’s appeal. His Honour delivered some relatively brief ex tempore reasons for the decision he had reached.
His Honour commenced those reasons by noting his order staying the appeal until Mr Draoui paid into court the amount of $20,000 by way of security for costs. He noted that the respondents’ application to dismiss the appeal on account of the failure to pay the security was brought under r 115.1(4) of the Uniform Civil Rules. His Honour noted that r 115.1(5) provided for the appeal to be automatically dismissed for want of prosecution on 21 February 2021 (being the date six months after the appeal was stayed) if the security were not paid by that date.
Bleby J proceeded to outline the history of the respondents’ application, referring to the affidavits that had been filed and the hearing before Livesey J. When he came to Mr Draoui’s 1 December 2020 affidavit, Bleby J described it as providing a general description of his endeavours to raise the funds necessary to provide security, but noted that it did not identify the inquiries that had been made, the potential sources of funds, or whether information about the appeal had been provided to the lender. His Honour noted Mr Draoui’s statement that he would continue his endeavours, and that he was hopeful of raising the funds by 28 February 2021.
Bleby J referred to his findings in his earlier security for costs judgment as to Mr Draoui’s prospects of success on the appeal, which were “limited to varying degrees in respect of the three underlying actions.”
As to the timing of the respondents’ application, Bleby J acknowledged that he had not set any time limit in his order for the payment of security, adding that he “did not think at the time that [he] had sufficient information to make that a worthwhile part of the orders.” However, his Honour considered that the respondents were within their rights to bring the application under r 115.1(4), and that they did so against the background of the “very long history of this matter and … a degree of history of the appellant expressing optimism in his ability to meet his obligations and then failing to do so.”
His Honour then reasoned:
I put less weight on that history. I am more concerned about the fact that the affidavit in opposition to this application does not detail or provide any useful information that allows me to assess the prospects of the appellant raising the funds. I have given consideration to Mr Turon’s request for further time to address that difficulty. The problem is that to do so would incur yet more costs, which the appellant has no realistic prospect of meeting, should an order be made for costs in favour of the respondent on the appellant’s application to adjourn this application.
The appellant can be taken to have put the evidence in opposition to the application as he was minded to do so. I am not minded to adjourn this application for him to, in effect, have another go.
Against the history of this matter, I have very little confidence that I have any information before me that allows me to conclude that the appellant has any reasonable prospect of raising the necessary security. He has been given a chance following his previous affidavit and being on notice of this application being adjourned to today, that the respondents were pursuing the dismissal of the appeal. If anything, the only thing I can conclude from the most recent affidavit is that his prospects, on his own assessment, have diminished.
In those circumstances, to accede to the application for him to put further evidence on and have this application adjourned would in my view, unfairly burden the respondents. I am not prepared to accede to that. In the circumstances of the history of this matter and the apparently diminishing prospects of him raising the security, I am prepared to grant the application. I dismiss the appeal.
Mr Draoui’s appeal against the dismissal decision
On 21 December 2020, Mr Draoui filed an appeal against the 4 December 2020 order of Bleby J dismissing his appeal. His notice of appeal contained four grounds of appeal:
1. By reason of UCR 215.3 and 11.5.1 the usual time for provision of security for costs, and dismissing an appeal if security was not provided, was six months.
2. The learned Justice erred in dismissing the appeal before that six month period by failing to give any or, alternatively, sufficient, weight to the Appellant’s impecuniosity as a cause of his difficulties in being able to raise the necessary funds for the security for costs.
3. The learned Justice erred in finding that the costs prejudice the Respondent would suffer if a short adjournment of the matter was ordered, to allow the Appellant to provide the objective details of his actions and endeavours to raise the necessary funds as aforesaid, outweighed the injustice to the Appellant in having his appeal dismissed.
4. The Appellant has been able to raise the funds required for security for costs and is ready, willing and able to pay the said funds into Court by way of a bank cheque for the sum of $20,000 as previously ordered.
While the grounds are not entirely clear, it is apparent that in Grounds 1 and 2 Mr Draoui challenges the appropriateness of Bleby J’s decision to dismiss his appeal under r 115.1(4) in light of the six month timeframe set by r 115.1(5) for automatic dismissal on account of a failure to provide security.
Ground 2 also complains that his Honour erred in failing to attach any, or alternatively sufficient, weight to Mr Draoui’s impecuniosity.
Ground 3 challenges the weight that Bleby J attached to the costs prejudice on the part of the respondents, although it appears to do so in the context of a challenge to Bleby J’s refusal to adjourn the application rather than as a direct challenge to the dismissal decision.
Ground 4 relies upon Mr Draoui’s ability, subsequent to Bleby J’s decision on the dismissal application, to raise the security that he had been ordered to provide. This ground was ultimately supported by an application to adduce further evidence on the appeal.
The application to adduce further evidence
On 1 February 2021, Mr Draoui filed an application under r 215.1(2)(i) of the Uniform Civil Rules to adduce further evidence at the hearing of the appeal.
The application was accompanied by an affidavit of Mr Draoui sworn 25 January 2021. After referring to Bleby J’s order of 4 December 2020 dismissing his appeal, Mr Draoui relevantly deposed:
4. I was unable to provide the requisite information at the relevant time because any sources of funds for the security for costs were potentially from family, friends or acquaintances who did not wish to have their names disclosed in the proceedings.
5. …
6. Despite my difficulties in raising the funds as I had indicated in my affidavit of 1 December 2020 … I was, nevertheless, able to raise the required funds from a business acquaintance during the weekend following Justice Bleby’s order referred to above. The person, who was the source of these funds, had not been available prior to the hearing on the 4th December 2020, for me to discuss with him the possibility of his providing to me the said funds. After my meeting with him he agreed to provide the funds to me for the security for costs. That person also does not wish to have his name disclosed in the proceedings.
7. I am now in possession of a bank cheque in the amount of $20,000 arising from the said funds provided to me. Now produced and shown to me marked “AD2” is a true copy of the said cheque.
8. I am ready willing and able to deposit the sum of $20,000 into the suitors’ fund as security for costs for the substantive appeal, if that appeal is reinstated.
By letter dated 1 February 2021, Mr Ward wrote to Mr Turon advising him that the respondents opposed the application for fresh evidence, and generally criticising the lack of specificity in the evidence sought to be relied upon by Mr Draoui, including as to the source of the funds now available to him.
In response to this letter, Mr Draoui filed a further affidavit, sworn 10 February 2021. In that affidavit, he relevantly deposed:
4. In light of the respondents’ refusal to consent to the admitting of the fresh evidence on the grounds outlined in their solicitor’s letter … I have again approached those who I asked to assist me in providing the necessary funds for the security for costs, to ask them to permit me to disclose their names for the purposes of resolving the dispute as to that issue. I have now received that permission.
5. The persons who I approached over the period prior to the hearing before Justice Bleby on 4 December 2020 were the following:
1. My son Omar Nassar;
2. My daughter Aysha Nassar;
3. Peter Geddes.
6. At the time neither my son nor daughter were able to assist me with providing the necessary funds.
7. I had also approached Mr Geddes for the funds, but he advised me that he wanted to wait and see if my family could provide those funds. In the end I was not able to raise the funds before the 1st December 2020 as I had believed I could, and on 4 December 2020 Justice Bleby dismissed my substantive appeal.
8. Following Justice Bleby’s order of 4 December 2020, and in my desperation, I again approached Mr Geddes, informed him of Justice Bleby’s order, and once again asked him to provide me the necessary funds. At that time, he agreed to lend me the required $20,000 for the security for costs. Now produced and shown to me and marked “AD4” is a true copy of the letter from Mr Geddes confirming the loan for the $20,000 for the security for costs.
This Court was informed that Mr Geddes is Mr Draoui’s accountant and friend. The letter that Mr Draoui exhibited as AD4 to his affidavit was dated 1 February 2021, on the Geddes & Co letterhead, and apparently signed by Mr Geddes. It was in the following terms:
The issue of the Security Cost deposit was first discussed on 26 November 2020. At the time Peter Geddes resisted this request hoping that another member of [Mr Draoui’s] family would be able to cover this issue and that I was unable to access such funds at that time.
On the Friday 4 December 2020 [Mr Draoui] indicated that any alternative funding was not possible and could Peter Geddes & Smartdog Investment Pty Ltd cover the amount of $20,000 as a loan. The Supreme Court had indicated that the funds would be held on account in the Supreme Court.
On Wednesday 9 December 2020 a value of $20,000 was transferred to [Mr Draoui’s] Westpac account so that a bank cheque could be drawn in time for the SA Supreme Court. See attached bank transfer document.
It is curious that Mr Geddes refers to himself in the third person in this letter, but neither party sought to make anything of this and so it may be put to one side.
Mr Draoui’s application to adduce further evidence on the appeal was referred for hearing and determination on the hearing of the appeal.
Further applications for leave to appeal and to reinstate the appeal
At a callover hearing on 19 February 2021, it was brought to Mr Turon’s attention that the order dismissing Mr Draoui’s appeal might be interlocutory in nature, and hence that Mr Draoui might require leave to appeal. The Court made orders that provided for the filing of any application for leave to appeal, and indicated that any such application would be referred for hearing and determination on the hearing of the appeal.
On 23 February 2021, Mr Draoui filed an application for leave to appeal.
At the commencement of the hearing of the appeal (and applications for leave to appeal and to adduce fresh evidence), counsel for Mr Draoui made an oral application for the reinstatement of the appeal pursuant to r 115.1(6) of the Uniform Civil Rules. For pragmatic reasons the respondents did not object to that application being entertained by the Court of Appeal on the hearing of the appeal, as opposed to it being heard by a single Judge on some other occasion.
Matters to be addressed by this Court
It is apparent from the above description of the background to the hearing before the Court of Appeal that, in addition to the appeal from the decision of Bleby J dismissing Mr Draoui’s substantive appeal on the ground of a failure to provide the security that had been ordered, the Court will need to address Mr Draoui’s applications for leave to appeal, to adduce further evidence, and to reinstate the appeal.
Leave to appeal
At the hearing of the appeal, counsel for Mr Draoui conceded that leave to appeal was required under r 213.1(a) of the Uniform Civil Rules. While observing that the practical effect of Bleby J’s dismissal of the appeal was to bring about the end of Mr Draoui’s appeal, and hence the pursuit of his claims the subject of the appeal, he acknowledged that there was authority to support the proposition that the order was nevertheless interlocutory in nature.
In my view, this concession was properly made. Whether or not an order is final or interlocutory turns upon its legal effect rather than its practical effect; that is, whether the legal effect of the order is a final determination of the rights of the parties in a principal cause pending between them.[9]
[9] Hall v The Nominal Defendant (1966) 117 CLR 423 at 443 (Windeyer J); Licul v Corney (1976) 180 CLR 213 at 225 (Gibbs J); Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 (Gibbs CJ), 256 (Mason J); Re Luck (2003) 78 ALJR 177 at [4] (the Court).
There is clear High Court authority to the effect that an order that involves dismissal of an action by reason that it is an abuse of the process of the Court or does not disclose a reasonable cause of action is interlocutory.[10] There are also a number of intermediate appellate authorities to the effect that the dismissal of an action for want of prosecution is an interlocutory order.[11] The rationale for this view is that the dismissal of an action for want of prosecution does not involve any determination on the merits; it is founded primarily upon a determination that the action has not been prosecuted with due diligence. Further, subject to considerations of abuse of process and time limitations, and whatever conditions the court might impose in terms of costs, it is possible to commence fresh proceedings based upon the same cause of action. These authorities include the decision of the Queensland Court of Appeal in Goodman v Lorenzen[12] in which McPherson JA (with whom Thomas JA and Byrne J agreed) held that an order striking out or dismissing proceedings for a failure to provide security for costs that had been ordered by a court was a species of dismissal for want of prosecution, and interlocutory in nature.
[10] Re Luck (2003) 78 ALJR 177 at [6], [9] (the Court).
[11] Hughes v Gales (1995) 14 WAR 434 at 437-439; Western Australia v Fazeldean (No 2) (2013) 211 FCR 150 at [27]-[28]; Beverage Bottlers (SA) Ltd v Abode Enterprises Pty Ltd [2009] SASC 272 at [115]. See also the decisions of this Court to the effect that a dismissal for want of prosecution is not final for the purposes of the principles of res judicata in Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572 at 594-595 and Mandeville v Better Lending Pty Ltd [2021] SASCA 28 at [42], [74].
[12] Goodman v Lorenzen [2000] QCA 11 at [10]-[11].
While the above-mentioned authorities were in the context of the dismissal of an action for want of prosecution prior to a trial judgment being entered, I consider that similar considerations apply in respect of the dismissal of an appeal for want of prosecution. Again, the dismissal decision is founded primarily upon a determination that the appeal has not been prosecuted with due diligence, rather than a determination that it is without merit. I do not think the fact that there has been an earlier determination by a trial Judge makes any material difference. Although that judgment would prevent the appellant commencing fresh first instance proceedings, the appellant may nevertheless be entitled to have their appeal reinstated (subject to establishing “special reasons” in the case of appeals that have been treated as discontinued and lapsed (rr 218.13 and 218.15) or that that have been dismissed by reason of a failure to provide security for costs (rr 115.1(4)-(6) and 215.3(2)).
In determining whether to grant leave to appeal, the Court must consider both (a) whether the decision sought to be impugned is attended by sufficient doubt to warrant it being reconsidered on appeal, and (b) whether allowing the decision to stand would result in substantial injustice to the applicant.[13]
[13] Harris Scarfe Ltd (in Liq) v Ernst & Young (No 2) [2005] SASC 168 at [4]-[11]; Commonwealth of Australia v Saadat [2019] SASCFC 124 at [50]-[52].
For the reasons developed later, I do not consider that Mr Draoui has established error in Bleby J’s decision dismissing his appeal. In my view, that is so even bearing in mind his application to adduce fresh evidence which, for the reasons I shall also develop later, I do not think should succeed. Addressing the merits of the appeal through the prism of the criteria for leave to appeal, and while the appeal was not entirely unarguable, I am ultimately not persuaded that the decision of Bleby J was attended by sufficient doubt to warrant its reconsideration on appeal.
Further, and in any event, I am also not persuaded that allowing Bleby J’s decision to stand would occasion Mr Draoui substantial injustice. I accept that while, in a sense, the decision was one going to a matter of practice and procedure, in another very real sense it had the practical effect of bringing Mr Draoui’s pursuit of his substantive rights to an end. Ordinarily that practical effect might be sufficient to establish the requisite substantial injustice. Here, however, there is the additional consideration that even if Mr Draoui were successful in this appeal, the outcome would be merely to leave him in a position to pursue his substantive appeal against the decision of the trial Judge, Deuter DCJ. In circumstances where, on the findings of Bleby J in his reasons on the security for costs application, Mr Draoui’s substantive appeal has very limited prospects of success, it is difficult to see how the loss of the right to pursue that appeal gives rise to substantial injustice. Particularly in circumstances where, as counsel for Mr Draoui conceded in this Court, Mr Draoui’s best outcome on the substantive appeal would be to obtain an order for a retrial, it would seem that permitting Mr Draoui to continue to pursue his substantive appeal, far from preventing a substantial injustice, would almost inevitably cause the parties to incur significant further legal costs with very little, if any, prospect of Mr Draoui ever achieving an outcome of any practical benefit to him.
In circumstances where the respondents have, as outlined earlier, already incurred an extraordinary level of costs which they will never recover from Mr Draoui, the Court should be reluctant to permit this additional expenditure of time, cost and effort. To do so would be contrary to the overarching object of the Uniform Civil Rules to facilitate the just, efficient, timely, cost-effective and proportionate determination of proceedings.[14]
[14] Uniform Civil Rules, r 1.5.
The appeal from the dismissal decision
Mr Draoui’s appeal is against the order of Bleby J dismissing his appeal pursuant to r 115.1(4) of the Uniform Civil Rules.
By reason of r 215.3(1) of the Uniform Civil Rules, the Court may order that an appellant provide security for the respondent’s costs of an appeal. And under r 215.3(2), subrules (2) to (6) of r 115.1 (being the rule that governs the provision of security for costs in actions more generally) apply, with any necessary changes, to an application for security for costs pending appeal.
The terms of r 115.1 are relevantly as follows:
115.1 – Security for costs
(1) …
(2) The Court may order a stay of the action until security is given.
(3)The Court may vary or revoke an order for security for costs and may order further security.
(4) If security is not given, the Court may dismiss the action.
(5) If the action has been stayed under subrule (2) for 6 months without security having been given, the action is automatically dismissed for want of prosecution.
(6) If the action is dismissed under subrule (4) or (5), the Court may, for special reasons, reinstate the action.
Before addressing Mr Draoui’s complaints the subject of this appeal, it is convenient to first mention some of the authorities governing the general approach to the Court’s discretion to dismiss an appeal on account of a failure to provide security. As mentioned earlier, a dismissal for this reason is a species of dismissal for want of prosecution, and as such is governed by similar considerations. In this jurisdiction, those principles are as set out in Ulowski v Miller.[15] As explained in subsequent authorities,[16] they involve the exercise of a discretion involving the balancing of all material circumstances, but in particular the five paramount considerations identified by Bray CJ in the following passage from his reasons in Ulowski v Miller:[17]
It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.
[15] Ulowski v Miller [1968] SASR 277.
[16] Including BQ & HM Doe Pty Ltd v National Australia Bank [1999] SASC 124 at [98]-[102]; Beverage Bottlers (SA) Ltd v Abode Enterprises Pty Ltd [2009] SASC 272 at [153]-[159].
[17] Ulowski v Miller [1968] SASR 277 at 280.
While these principles remain apposite in modern litigation, they must be understood and applied in the context of the overarching object of the Uniform Civil Rules, which, as mentioned, is to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of proceedings.[18]
[18] Uniform Civil Rules, r 1.5.
Further, in the present case, these principles must also be understood and applied in the context of a failure to provide security for costs in respect of an appeal proceeding. In that context, the authorities suggest that the relevant considerations include (a) the period that has elapsed since the security was ordered, (b) whether the appellant has been provided with notice of the application for dismissal, (c) the appellant’s ability to fund the appeal (including the security), (d) the likely prejudice to the respondent associated with further delay in the resolution of the appeal, and (e) the position of the Court (in the sense of the impact of the delay upon the efficient management of the Court’s business in the interests of not only the parties, but also litigants more generally).[19]
[19] Ramstrom v Baldino (No 2) [2014] SASC 71 at [38]-[39]; Porter v Gordian Runoff Ltd (No 3) [2005] NSWCA 377 at [24]-[25]; R V Investments (Aust) Pty Ltd v ACN 110 769 929 Pty Ltd [2014] VSCA 210 at [8]-[10]; Farnell v Penhalluriack (2010) 29 VR 727 at [18]-[20].
To these I would add a further consideration, namely the likely hardship to the appellant associated with a dismissal of the appeal. In this respect it has sometimes been said that it is a significant, if not radical, step to shut an appellant out of the pursuit of an appeal. Of course, and consistently with the authorities to which I have referred, there may also be other considerations that emerge from an assessment of the circumstances of the particular case, including the merits of the proposed appeal, the explanation from the appellant as to the efforts made to raise the security, the likelihood and likely timing of the appellant being able to provide the security if given further opportunity to do so, and any matters arising out of the conduct of the parties in connection with the appeal or the history of the litigation more generally. Ultimately the issue is one of whether it is in the interests of justice that the Court take the significant step of shutting an appellant out of the pursuit of their appeal.
The starting point for consideration of the merits of Mr Draoui’s appeal from the order of Bleby J dismissing his appeal is that the impugned order involved an exercise of his Honour’s discretion. As such, the appeal is subject to the principles of appellate restraint in House v The King.[20] In accordance with these principles, an appellate court may intervene in two broad categories of case. First, if it is established that the judge below has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect them, has mistaken the facts, or has not taken into account some material consideration. Secondly, if it is established that the result embodied in the order made is, upon the facts, unreasonable or plainly unjust, such that it can be inferred that there has been a failure to properly exercise the relevant discretion, despite the precise nature or source of the error not being identifiable. These two categories of case are sometimes distinguished from each other by referring to them as process and outcome errors, or as specific and inferred errors.
[20] House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
I have earlier set out Mr Draoui’s four grounds of appeal. Putting to one side for the moment the application to adduce fresh evidence, and as refined in oral argument, Mr Draoui’s challenge to Bleby J’s decision focussed upon his Honour’s failure to take into account, or at least appreciate the significance of, both the six month timeframe for automatic dismissal under r 115.1(5), and the absence of any material prejudice to the respondents if Mr Draoui were to be given additional time to raise the funds necessary to provide the required security. Counsel for Mr Draoui contended that both of these failures involved process or specific errors on the part of Bleby J. In the alternative, he contended that, bearing in mind these considerations, his Honour’s decision was unreasonable and hence infected by outcome or inferred error.
To the extent that Mr Draoui’s counsel did not abandon any independent challenge to Bleby J’s consideration of Mr Draoui’s impecuniosity, or to his Honour’s decision to refuse an adjournment of the dismissal application, I do not think these complaints add anything to the matters considered below or otherwise have any independent merit.
Turning to the issue of the timing of the dismissal in the present case, Mr Draoui complains that the order for security did not provide a time for the provision of security, and that the order dismissing the appeal was made less than four months after the order for security, and hence more than two months before the expiry of the six month timeframe for the automatic dismissal of proceedings under r 115.1(5).
There is no dispute as to the factual accuracy of these matters relied upon by Mr Draoui, and that they were relevant considerations in the exercise of Bleby J’s discretion. The difficulty for Mr Draoui is that they do not reveal any error on the part of his Honour. It is true that r 115.1(5) contemplates an automatic dismissal in the event of a six month delay in the provision of security. However, r 115.1(4) plainly confers the Court with a discretion to order the dismissal of an action (here, an appeal) at an earlier point in time. Further, I do not think that the specification of a six month timeframe in r 115.1(5) should be regarded as some form of presumptive or prima facie period for the provision of security.[21] While it is relevant that a period of six months was chosen for the automatic dismissal of an action, I consider it to be more in the nature of a ‘backstop’ than an indicator of the period that would ordinarily be required to pass before the failure to provide security might warrant the dismissal of the action.
[21] See, for example, Eustice v Channel Seven Adelaide Pty Ltd [2021] SASC 48 at [13]-[15], where it was held that it would ordinarily be expected that security would be provided within a couple of weeks.
It will very much depend upon the circumstances of the individual case. But there will often be circumstances in which a dismissal might be warranted well ahead of the expiration of that timeframe. In my view, that is particularly so in the case of orders requiring the payment of security for the costs of an appeal, as opposed to security for the costs of an action more generally.
When proceedings are first issued, and before there has been any judicial consideration or determination of the plaintiff’s claim, the courts are understandably reluctant to dismiss a claim for a want of prosecution without having given the plaintiff ample opportunity to explore their ability to provide the required security. While delay and prejudice to the defendant are relevant considerations even in that setting, the hardship to the plaintiff of being shut out of their claim will often be a relatively weighty consideration.
However, once the parties have had the benefit of a judicial determination of their rights, the balance shifts somewhat. While it is important that parties have the ability to pursue rights of appeal, and they are not lightly to be shut out of those rights, nevertheless the Court ordinarily proceeds on the basis that judgments are correct, and able to be acted upon, unless and until overturned on appeal. Further, given the interests of the successful party, and of the administration of justice more generally, in giving effect to that judgment, it is appropriate to expect that the unsuccessful party pursue any appeal with reasonable expedition. The Uniform Civil Rules, both through their overarching object, and their prescriptive approach to the timeframes and procedures governing appeals, demand that expedition.
It is also relevant to observe in this regard that r 218.13(2) provides the Court with a discretion to order that an appeal be treated as discontinued in the event of defaults in respect of the prescribed timeframes, and that r 218.13(3) provides for appeals to be treated as having been discontinued in the event of default for a period of three months. In these circumstances, it is hardly to be expected that a respondent who obtains an order for security in their favour must always, or even ordinarily, wait six months before being able to achieve equivalent certainty as to the outcome of their appeal.
It follows that Bleby J was correct to proceed on the basis that the respondents were entitled to pursue their application for dismissal ahead of the expiration of the six month backstop period, and indeed that there was no need for them to overcome any presumption that Mr Draoui had up to six months to provide the security contemplated by Bleby J’s order. As his Honour indicated in his ex tempore dismissal reasons, he did not consider that he had sufficient information at the time of making the order for security to set an appropriate timeframe for the provision of that security. However, this did not mean that Mr Draoui enjoyed an open-ended opportunity to provide the security whenever he wished or was able to do so.
The timing of the order for dismissal was, of course, a relevant consideration. However, it cannot be said that Bleby J failed to take account of this timing. He plainly took it into account in balancing all of the competing considerations relevant to the exercise of his discretion.
While the respondents were not entitled to determine the period for compliance with the order for security, and properly understood did not purport to do so, it is relevant that they did, through the correspondence from Mr Ward, put Mr Draoui on notice from the outset that they expected him to act with expedition, and that they intended to bring an application for dismissal in the event that he did not do so. Further, even if it might be said that the respondents issued their application for dismissal relatively early in the scheme of things, it is relevant that Mr Draoui was given a further warning as to the need to proceed with expedition at the hearing before Livesey J on 2 October 2020. In addition to this, in granting Mr Draoui an adjournment beyond the date that he indicated he expected to be able to provide the security, Livesey J gave him a clear warning as to the need to either provide the security by that date or put on evidence giving a proper explanation for any inability to do so.
The timing of Bleby J’s dismissal order also needs to be seen in the broader context of these proceedings, including the history of Mr Draoui making unfulfilled assurances about his ability to come up with funding, and the extraordinary cost and delays in the progress of the proceedings more generally.
In the circumstances, I do not accept that Mr Draoui has established any error in Bleby J’s approach to the issue of the timing of the application.
I turn now to consider Mr Draoui’s contention that Bleby J failed to take into account that permitting a further period of time to provide security – for example, through to the expiration of the six month period in late February 2021 – would not have occasioned the respondents any material prejudice.
The first point to make in response to this contention is that I do not accept that there would be no material prejudice to the respondents. While the respondents acknowledge that they would not have incurred significant prejudice, I accept their submission that they would have incurred some, albeit limited, prejudice as a result of the continued uncertainty and costs associated with the appeal remaining on foot.
The second point is that I do not consider that it can be said that Bleby J failed to take into account the limited nature of the prejudice likely to be occasioned to the respondents. He expressly referred in his reasons to the “burden” that the proceedings represented to the respondents. There is no reason to think that his Honour misunderstood the nature and extent of the burden that the respondents would have to bear if the appeal remained on foot and in particular that he somehow overestimated its significance.
To the extent that Mr Draoui also relies upon a contention that Bleby J did not take into account the hardship to Mr Draoui associated with him being shut out of his appeal, I do not think this contention has merit. While his Honour made no express reference to hardship on the part of Mr Draoui, it of course needs to be borne in mind that his Honour’s reasons were ex tempore in nature. More fundamentally, on a fair reading of his Honour’s reasons as a whole, it is plain that they are premised upon an understanding that it would be a significant step to dismiss Mr Draoui’s appeal. The caution which his Honour expressed before being satisfied as to the appropriateness of making an order dismissing the appeal reflects that understanding.
I would also add in this context that Bleby J did expressly refer to Mr Draoui’s very limited prospects of success on his appeal. Given that those prospects of success were relevant to an assessment of the extent of the likely hardship to Mr Draoui in being shut out of his appeal, this supports my view that his Honour did have regard to that consideration.
For the reasons set out, I am not satisfied that Mr Draoui has established any process or specific error on the part of Bleby J. His Honour did not make any error of principle, and had regard to all relevant considerations.
I am also not satisfied that Bleby J’s decision was otherwise unreasonable, or plainly unjust, in the sense contemplated by House v The King.
Counsel for Mr Draoui referred in this context to the decision of Nicholson J in Ramstrom v Baldino (No 2).[22] In that case, the appellant (who was the unsuccessful applicant in proceedings against the respondent in the Equal Opportunity Tribunal) commenced an appeal on 24 January 2014. On 7 March 2014, Nicholson J ordered that the appeal be stayed pending payment of security in the amount of $25,000. The appellant did not pay the security, and indeed accepted that she was not presently in a financial position to do so. Nicholson J was faced with competing applications by the appellant (for a two year extension of the time within which to provide security and set down the appeal) and by the respondent (for the dismissal of the appeal on account of the failure to provide the security that had been ordered).
Nicholson J was not prepared to grant the extension of time sought by the appellant given the lack of certainty about the appellant’s ability to raise the funds necessary to provide security. At the same time, his Honour was not prepared at that point in time (being early June 2014) to dismiss the appeal. His Honour reasoned that, given the time that had elapsed, and the lack of certainty as to the appellant’s ability to pay the security and fund the appeal, the application for dismissal was “not without some merit.”[23] However, despite his Honour’s acceptance that the respondent might suffer some prejudice from delay in the determination of the appeal, and that there was uncertainty about the appellant’s capacity to raise the funds necessary to provide security, his Honour was not prepared to dismiss the appeal. His Honour explained:[24]
It is now early June, the appeal will lapse on or about 23 July 2014, in accordance with Rule 296(2). Notwithstanding that it appears highly unlikely that the appellant will be able to satisfy the security for costs order by that date, such is not necessarily impossible bearing in mind her access to the credit card facility.
I am satisfied, in the circumstances, that the appellant should be given the opportunity to review her position with a view to seeing what further steps might be open to her to enable her to satisfy the security for costs order. Any prejudice that the respondent might suffer as a consequence of a further delay of less than two months or so is not, in my view, of such significance that the appellant should be deprived of this opportunity. The respondent’s interlocutory application that the appeal be dismissed is refused.
[23] Ramstrom v Baldino (No 2) [2014] SASC 71 at [40].
[24] Ramstrom v Baldino (No 2) [2014] SASC 71 at [42]-[43].
Counsel for Mr Draoui sought to contrast the decision of Nicholson J in that case with the decision of Bleby J in this case. He noted the similarity in timing in the two cases, and contended that it was thus significant that Nicholson J was not prepared to dismiss the appeal despite the uncertainty about the appellant’s ability to raise the funds necessary to provide the security and the likelihood of at least some prejudice on the part of the respondent. He also contended that it was significant that Nicholson J was of this view despite having acknowledged that there were at least some difficulties associated with the merits of the appellant’s appeal.
While I have been assisted by Nicholson J’s approach to, and analysis of, the considerations relevant to an application to dismiss an appeal on account of failure to provide security, there is a limit to what can be gleaned from a comparison of outcomes in other cases where what is at issue is the exercise of a discretion informed by a wide range of considerations. It is trite to observe that, in such a context, each case very much turns on its own facts.
I am not sure that there is any tension between the outcomes in the two cases given the full context of the present case (as summarised below). But even if it might be said that the approach of Nicholson J was slightly more favourable to the appellant in that case than the approach of Bleby J in the present case, that of course does not mean that either erred in the exercise of their discretion. It is in the very nature of a discretion that there is room for differences of view as to the relative weight to attach to the various considerations relevant to the exercise of that discretion.
Here, it was relevant that the proceedings had been plagued by a significant history of delay and cost, including by reason of various unfulfilled assurances by Mr Draoui as to his ability to raise the funds necessary to pursue his claims. It was also relevant that, following a careful review of the merits of Mr Draoui’s proposed appeal in the context of his security for costs reasons, Bleby J was of the view that the appeal had very limited prospects of success. Further, as mentioned earlier, any meaningful success on the part of Mr Draoui would be dependent upon him establishing an entitlement to, and then successfully prosecuting, a retrial. Without a retrial, the appeal against the damages award made against the third defendant was, in the view of Bleby J, unlikely to increase the damages “by any substantial amount where he had recovered to his pre-accident state within a few weeks.” Any ‘success’ on the part of Mr Draoui could only come after incurring very significant costs in circumstances where the costs were already well out of proportion to the issues at stake in the litigation.
I have already addressed the significance of the timing of the order for dismissal, and the fact that it was only made after ample warning to Mr Draoui of the need to provide security, and after the expiration of the timeframe he had himself nominated as realistic for him to provide the security.
The order for dismissal was also made after an express warning from Livesey J, at the hearing on 2 October 2020, to the effect that the evidence that Mr Draoui had put forward to that point to explain his efforts to obtain the required security was not sufficiently detailed or precise, and that if he did not pay the security in the contemplated timeframe he would be at “serious risk” of his appeal being dismissed, and would, at the very least, need to “explain himself with proper evidence.” While Mr Draoui did file an additional affidavit sworn 1 December 2020, Bleby J was entitled to find, as he did, that this additional evidence still fell short of providing any clear indication of the steps that Mr Draoui had taken to obtain security, and how, from whom and when he would be able to obtain that security.
It is true that the respondents would only have incurred limited prejudice had the appeal been left on foot through to the end of February 2021, and that the evidence (and Bleby J’s findings) left open at least some possibility that the security might be provided within that timeframe. However, in the context of all of the circumstances, I am satisfied that Bleby J’s decision to order the dismissal of Mr Draoui’s appeal was a reasonable and appropriate exercise of his discretion under r 115.1(4) of the Uniform Civil Rules.
Application to adduce further evidence
As outlined earlier, Mr Draoui seeks to adduce further evidence on the appeal. He seeks to adduce evidence both to supplement his earlier evidence as to the steps he had taken to obtain security, and to establish that he now has the funds (in the form of a bank cheque) necessary to pay the security ordered by Bleby J. The respondents oppose the receipt of this evidence on the appeal.
The Court has a broad discretion under r 218.17(1)(c) to receive “further evidence” on the hearing of an appeal. The discretion is not circumscribed by the common law principles governing the reception of “fresh evidence” on appeal,[25] although similar considerations will often be relevant. In particular, it will generally be relevant to consider:[26]
·Whether the evidence was available at the hearing below, or could with reasonable diligence have been obtained for use at that hearing.
·Whether the evidence is such that it would have had an important influence on the result. While it need not necessarily be decisive, it must be more than merely useful.
·The likely impact of the evidence in terms of whether it is controversial or contested, and if so, whether its receipt is likely to require cross-examination, further responding evidence or that the matter be remitted for rehearing.
·The public interest in the finality of litigation.
[25] CDJ v VAJ (No 2) (1998) 197 CLR 172 at [52] (Gaudron J), [104]-[108] (McHugh, Gummow and Callinan JJ).
[26] CDJ v VAJ (No 2) (1998) 197 CLR 172 at [55] (Gaudron J), [111]-[116] (McHugh, Gummow and Callinan JJ) and [186]-[189] (Kirby J).
The relevance of the last two considerations, and in particular the public interest in there being an end to litigation, was emphasised by the Full Court of this Court in both Chakravarti v Advertiser Newspapers Ltd[27] and Collex Waste Management Services Pty Ltd v Corporation of the City of Enfield (No 2).[28]
[27] Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361 at 372-373.
[28] Collex Waste Management Services Pty Ltd v Corporation of the City of Enfield (No 2) [2000] SASC 140 at [17], [27]-[28].
In Chakravarti v Advertiser Newspapers Ltd[29] the appellant sought to adduce further evidence on appeal in support of his claim for economic loss as a result of the respondent having defamed him. This included evidence of the appellant’s post-trial difficulties in obtaining remunerative work. The Court considered the distinction between further evidence as to facts occurring before and after the trial, with a more liberal approach taken to the receipt of the latter. Further, the Court also emphasised the distinction between evidence bearing upon an area of uncertainty in respect of which the judge below has made an estimate, and evidence that tends to falsify a basic assumption underlying that judge’s approach. While the courts will often exercise the discretion favourably in respect of the latter, they will not ordinarily do so in respect of the former. The Court also emphasised the public interest in finality, and the breadth of the discretion.
It is instructive to set out in full the relevant passage from the reasons of Doyle CJ and Perry J (with whom Williams J agreed):[30]
[30] Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361 at 372-373.
The essence of that approach is that usually fresh evidence will not be admitted if it bears on an area of uncertainty in which the trial judge has made an estimate, but that usually fresh evidence will be admitted if a basic assumption underlying the trial judge's approach has been falsified: see Peterhaensel (at 336-337) per Bray CJ. However, we emphasise that what is involved is the exercise of a broad discretion.
In our opinion it is not enough to say that matters relevant to the assessment of damages may have changed since trial, or that further evidence will enable a confident finding of fact to be made about a matter that otherwise would be the subject of inferences, or even worse of speculation. More than that must be shown to justify the reception of further evidence. The need for a more restrictive approach than that arises from the public interest in there being an end to litigation, and from the need, as a matter of practical justice, to put an end at some point to the process of factual enquiry.
It fell to the trial judge to assess damages for loss of earning capacity on the basis of findings made by him on the evidence then before him. Throughout Australia an appeal against the assessment of damages is usually determined on the basis of the facts as they were before the trial judge. This is so, even though in many cases further events will have occurred between trial and appeal which are relevant to the assessment of damages. That this is so is illustrated by the many personal injury cases in which the application of the above principles has been considered. The reception of further evidence on appeal is the exception rather than the rule.
…
The present case is not one in which some event has occurred which falsifies an assumption upon which the trial judge's assessment was made. The effect of the proposed evidence is, broadly, to show that the plaintiff has continued to have great difficulty in obtaining employment to which he is suited. That is a matter on which the judge has already made a finding. He expected the difficulty to continue. He did not say for how long. The further evidence that is sought to be led does no more than provide a basis for a specific finding on a matter on which the judge had to make a prospective assessment. Granted, it suggests that the plaintiff's difficulty obtaining suitable employment has continued. It tends to dispel any cause for optimism about the plaintiff's prospects. But in almost every case the judge has to make a prospective assessment making the best of what is available. This is part of the process of assessing damages.
If that evidence were to be admitted in the present case, it seems to us that it would equally follow that had the plaintiff obtained a good position soon after trial, the defendant would be entitled to prove that in reduction of the damages awarded to the plaintiff. To allow further evidence merely because it removes a necessary element of prediction and assessment would tend to erode the finality of the trial judge's decision on damages.
As we have already said, this is not a case in which the proposed evidence falsifies an assumption upon which the trial judge acted. Nor is it a case in which the proposed evidence establishes a fact which, while perhaps consistent with the judge's award, could hardly have been contemplated by the trial judge. There was no reason at all for the trial judge to think that the plaintiff's difficulty in obtaining employment would quickly come to an end. He did not so find.
Nor do considerations of commonsense and fairness, to our minds, require the admission of the evidence: see Doherty v Liverpool District Hospital (at 297) per Gleeson CJ. In an ideal world it is always better to act on fact rather than speculation or inferences from facts. But there is a real public interest in the finality of litigation, and in a limit to the scope of the inquiry undertaken as part of the judicial process. The admission of the evidence would require, as a matter of fairness, at the least that the defendant have the opportunity to cross-examine the plaintiff on the evidence. It might also require that the defendant be at liberty to adduce any evidence that it might wish to lead in relation to the plaintiff's further attempts to obtain employment. Nor is this a case in which our own sense of justice is offended by not admitting the evidence.
For those reasons we joined in the decision of this Court, during the hearing of the appeal, to refuse to admit the further evidence.
In the present case, the proposed further evidence reveals that within a relatively short period following the dismissal order (indeed, a matter of less than a week), Mr Draoui had obtained the funds necessary to provide the security that had been ordered. The evidence is clear in this respect and is not something that would require that the respondents be afforded any opportunity to cross-examine Mr Draoui or to otherwise adduce any additional evidence of their own. It may also be accepted that had Bleby J known, at the time of the hearing of the dismissal application, that the security would be available within a matter of days, then this would almost inevitably have led to the application for dismissal being refused (or at least adjourned). Finally, it may also be accepted that the receipt by Mr Draoui of the bank cheque from Mr Geddes for $20,000 was a matter that occurred after the dismissal order, and hence was not a matter in respect of which he could, with reasonable diligence, have adduced evidence before Bleby J.
These matters weigh in favour of receipt of the fresh evidence. However, the difficulty for Mr Draoui lies in the fact that, while the receipt of the bank cheque from Mr Geddes was a fact that occurred after Bleby J’s orders, this did not occur ‘out of the blue’. This was not a case where the funds suddenly became available from some unexpected source.[31] Rather, the receipt of the bank cheque was merely the successful outcome of a process that Mr Draoui had put in train prior to the hearing, and about which he adduced some evidence and the Judge made some assessment of the chances of it being successful. In this respect, there is some analogy with the position of the appellant in Chakravarti v Advertiser Newspapers Ltd.[32]
[31] As was pointed out by counsel for the respondents, Mr Draoui’s affidavit evidence was inconsistent on this topic. However, as I will explain, the balance of the evidence suggests that the provision of funds by Mr Geddes was not unexpected.
It is true that Bleby J formed the view that the prospect of Mr Draoui being successful in obtaining the necessary funds in any appropriate timeframe was very low. Against the history of the proceedings, and on the very general state of the evidence before his Honour as to Mr Draoui’s efforts to obtain the funds, this was a reasonable view to form. Indeed, counsel for Mr Draoui did not seek to impugn the conclusion the Judge reached on the information available to him. However, the point remains that there is a tension between what the Judge held and what in fact occurred. While Mr Draoui might characterise this as the falsification of a basic assumption made by the Judge, I do not think the present case should be described in that way or is otherwise an appropriate case to exercise the Court’s discretion to receive further evidence.
I say this for a combination of two reasons. The first is that, to the extent there is a tension in the evidence, it is a product of the limited and inadequate evidence adduced by Mr Draoui before Bleby J. Mr Draoui was given ample opportunity to put on evidence, and was warned of the need to descend to specificity and adduce “proper evidence.” While apparently constrained to some extent by a desire to keep some of the detail of his efforts confidential, he was legally represented at the time, and must be taken to have made a forensic choice as to the evidence he sought to rely upon.
The further evidence reveals that Mr Draoui could have led evidence as to his communications with Mr Geddes, and (at least on Mr Geddes’ version of those communications, as set out in his letter of 1 February 2021) could have informed the Court that he had a person prepared to provide him with the necessary funds in the event that his efforts to obtain the funds from his family did not succeed. It is not possible to predict what Bleby J would have made of this evidence, but the point is that this Court should be reluctant to permit an appellant to adduce further evidence on appeal in relation to a topic about which it could have led additional and more detailed evidence at first instance.
There is, in addition, the related concern that the further evidence now sought to be relied upon not only points up the inadequacy of the detail and specificity of the evidence led below, but also raises concerns about the accuracy of Mr Draoui’s evidence. Significantly, in paragraph [6]-[7] of his 25 January 2021 affidavit, Mr Draoui said that he had not been in communication with Mr Geddes prior to the hearing before Bleby J on 4 December 2020, whereas it is apparent from paragraph [5] of his 10 February 2021 affidavit, and the letter from Mr Geddes exhibited to that affidavit, that they had been in contact before the hearing and from at least 26 November 2020. No satisfactory explanation for this inconsistency was provided to this Court.
The second, and overarching, consideration is the public interest in finality. This concern looms particularly large in the present litigation given its unfortunate and protracted history, and the entirely disproportionate time and cost it has occasioned. To the extent the Court is prepared to intrude upon the finality of the decision of a Judge to dismiss an appeal on account of a failure to provide security ordered by the Court, this should generally be confined to a consideration of whether it is appropriate to order the reinstatement of the appeal, under r 115.1(6), upon satisfaction that there are “special reasons” to do so.
Application to reinstate the appeal
As mentioned earlier, counsel for Mr Draoui made an oral application at the commencement of the hearing of the appeal to reinstate his appeal pursuant to r 115.1(6). That rule applies to appeals by virtue of r 215.3(2).
Ordinarily such an application should be made in writing and to a single Judge. However, in circumstances where the respondents took the pragmatic attitude of consenting to this Court entertaining the application, it is appropriate that it do so.
The Court’s discretion to reinstate an action (here, an appeal) pursuant to r 115.1(6) is conditioned upon satisfaction that there are “special reasons” for so doing. On one view, it might be said that r 115.1(6) contemplates a two-stage process; namely satisfaction that there are special reasons and then the exercise of a separate or residual discretion (as indicated by the use of the word “may”). In my view, the preferable approach is to treat the rule as contemplating a single discretion, predicated upon the Court forming the view that there are special reasons which, in all the circumstances, warrant the Court reinstating the action. This reflects an approach, taken in various other contexts, that construes the word “may” as conferring a power which is to be exercised upon the Court being satisfied of a certain matter, and not as conferring a separate or residual discretion as to the exercise of that power.[33]
[33] R v Skinner (2016) 126 SASR 120 at [1], [5] and [80]-[81]; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135 (Windeyer J); Mitchell v The Queen (1996) 184 CLR 333 at 345 (Dawson, Toohey, Gaudren, McHugh and Gummow JJ); Leach v The Queen (2007) 230 CLR 1 at [38] (Gummow, Hayne, Heydon and Crennan JJ).
As to what might suffice to establish special reasons, I note that the Court’s discretion (under r 218.15) to reinstate an appeal that is taken to have been discontinued by reason of a procedural default (under r 218.13) is also conditioned upon satisfaction that there are special reasons to do so.
In the context of the predecessor rules to rr 218.15 and 115.1(6), Stanley J in Psevdos v Commonwealth Bank of Australia[34] provided the following assistance as to the meaning of special reasons:[35]
What constitutes “special reasons” for the purposes of SCR 296 and 194 has not been authoritatively decided, but the expression is used in other legislation where it has been held that it is constituted by reasons that are extraordinary, unusual or atypical or beyond the contemplation of Parliament.[36]
The requirement for “special reasons” as a condition precedent to the exercise of a discretion to permit a party to reinstate an action lies in public policy considerations surrounding the need for finality in litigation. Given the importance of the principle of finality, the rules erect a significant obstacle to the exercise of the Court’s discretion to reinstate an action. Once an action or appeal stands dismissed, parties are entitled to arrange and conduct their affairs accordingly. Courts should not change this situation unless special reasons to do so are found to exist.
[35] Psevdos v Commonwealth Bank of Australia [2018] SASC 9 at [47]-[48].
[36] Baskerville v Martin [1967] SASR 156 at 160-161; Barwick v Crichton (1983) 36 SASR 142 at 144; Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238 at 243-244; R v Barnett (2009) 198 A Crim R 251.
While the rules to which his Honour refers differed to some degree in their terms to those presently under consideration, I would adopt the approach suggested by Stanley J, and caution against any attempt to be more prescriptive as what may constitute special reasons.
In a case, such as the present, where the dismissal of the appeal was on account of a failure to provide security, similar considerations will inform the Court’s discretion to reinstate, albeit with extra weight to be afforded to the interests of finality as a result of the Court having made a dismissal order. The fact that the applicant is in a position to provide the security that had been ordered will likely be necessary to establish special reasons, but I do not think that it will ordinarily be sufficient.
Here, Mr Draoui points to the additional considerations that the security became available relatively soon after the dismissal order and that the respondents cannot point to any significant prejudice that would flow from the appeal being reinstated. These are relevant considerations, but in my view do not carry the weight that Mr Draoui seeks to attach to them. Given the history of these proceedings, the very limited prospects of Mr Draoui succeeding in his substantive appeal, and the disproportion between what Mr Draoui is likely to obtain and the costs required to secure that outcome, I do not think there are special reasons warranting the reinstatement of the appeal.
In my view, the present case is one in which the object of the Uniform Civil Rules and the public interest in finality are ultimately decisive. I would therefore refuse the application to reinstate Mr Draoui’s appeal.
Conclusion
For the reasons above, I would refuse leave to appeal. To the extent necessary, I would refuse the application to adduce further evidence and dismiss the appeal. I would refuse the application to reinstate the appeal.
LIVESEY JA: Can it be said that a Judge has erroneously exercised the discretion to dismiss an appeal for want of prosecution[37] because of the appellant’s failure to give security for the respondents’ costs of the appeal, where the appellant then shows that, a few days later, he can give security?
[37] Pursuant to r 115.1(4) which applies to appeals by virtue of r 215.3(2) of the Uniform Civil Rules 2020 (SA).
In my opinion, the answer in this case must be “no”: the appellant has failed to demonstrate any error in the exercise of discretion by Bleby J based on the material put before the Court on 4 December 2020.
The appellant’s three appeals were stayed in August 2020 pending the giving of security. The appellant was then warned in October 2020 about the risk that his appeals may be dismissed for want of prosecution, and consequently of the need to lead good evidence of his attempts to obtain funding, if he did not give security by 1 December 2020. It must be recalled that this was the date when the appellant said he expected to be able to give security.
Notwithstanding the warning in October, by December 2020 the appellant’s evidence suggested, at best, only some prospect of being able to give security before the rules operated to automatically dismiss the appeal for want of prosecution in February 2021.[38]
[38] Being the six-month period during which the appeal is stayed, as specified by r 115.1(5) of the Uniform Civil Rules 2020 (SA).
Accordingly, it cannot be said that the decision to dismiss for want of prosecution was indicative of any error in the exercise of discretion. The six-month period specified under the rules is a “default” position, and the exercise of discretion to dismiss for want of prosecution is not constrained by it. The Court expects the parties to an appeal to act with expedition and to meet the time-frames specified by the rules or any direction that may be given at the callovers at which appeals are now managed by the Court of Appeal. Here, though no order was made that security be given within a specified time-frame, the parties appreciated that for so long as security was not given and the appeals were stayed, the appeals were not being prosecuted and the appellant was at risk on any application to dismiss for want of prosecution. An appellant cannot expect to have any extended period of time in which to give security: whilst each case must depend on its facts, and the terms of any order made by the Court, in many cases a period of 14 days is reasonable.[39]
[39] See for example, Eustice v Channel Seven Adelaide Pty Ltd & Ors [2021] SASC 48, [13]-[16] (Livesey JA).
By the time of the hearing before Bleby J, the appellant had had well over three months in which to give security. Certainly, no specific error can be discerned in the ex tempore reasons given on 4 December 2020.
The application to lead further evidence before this Court raises some difficulties. On one view, there is no question but that proof that the appellant was placed in funds sufficient to enable him to give security was not evidence which could have been led before Bleby J on 4 December 2020. However, on the whole of the evidence put forward by the appellant, it is now clear that he, for whatever reason, did not reveal to Bleby J all that he knew about his prospects of raising funding in November and December 2020.
If the appellant is now permitted to do no more than adduce evidence that he had the requisite funding soon after the order for dismissal was made, that would effectively allow him to undermine the basis upon which the order for dismissal was made in circumstances where he did not to reveal all that he knew. Parties are obliged to act with diligence and candour when putting evidence before the Court, particularly when they know that the Court will exercise its discretion based on that evidence. Parties cannot expect to be permitted to later “shore up” their evidence, depending upon how the discretion is exercised by the Court.
Though the issue might be thought to be finely balanced, I would not regard it as being in the interests of justice to allow the appellant to lead the further proposed evidence on the appeal.
On the question of reinstatement of the appeal for special reasons, the discretion must be exercised having regard to the requirement that the parties to an appeal in this Court must act with expedition. The discretion must also be exercised having regard to the public interest in finality in the conduct of litigation more generally.
The appellant in this case had three opportunities to pursue a trial and, if security was given, he had the opportunity to pursue his appeals. Given the large number of adverse credit findings made by the trial judge, there are formidable obstacles confronting any attempt to secure a fourth opportunity for a trial.[40] As well, in my opinion, very important considerations in this case concern the paucity of the evidence led by the appellant regarding his attempts to raise security throughout the whole of the period between August and December 2020, together with the very large disproportion between the cost of this litigation and any outcome which the appellant could reasonably expect to achieve on appeal.[41]
[40] Draoui v Le; Draoui v Then; Draoui v Cock (No 3) [2020] SADC 23, [91]-[120] (Deuter DCJ). See for example the findings based on the comparison between the surveillance evidence and the appellant’s presentation in Court: “The extent of the plaintiff’s activity in the days prior to the trial and after the first two days of hearing is difficult to reconcile with his complaints of feeling extremely unwell; having a massive headache and not sleeping. I am particularly concerned that despite these complaints, the plaintiff could attend a hotel and other premises for lengthy periods after court had concluded…”: at [106]. In addition: “The defendants did not get the opportunity to cross-examine the plaintiff on the issues of credit relative to the surveillance footage as he refused to re-enter the witness box”: at [113].
[41] See r 1.5 of the Uniform Civil Rules 2020 (SA).
Bleby J has carefully and clearly outlined the appellant’s prospects of success on appeal and demonstrated that, short of a complete rehearing on different evidence, the appellant likely faces adverse costs orders in respect of two of his appeals and, as to the third, at best he may recoup a few thousand dollars more.
In these circumstances, it is difficult to regard the belated capacity to give security for costs as, of itself, sufficient to constitute special reasons warranting reinstatement of these largely unmeritorious appeals.
In my opinion, leave to appeal should be refused, the applications to lead further evidence and to reinstate the appeals refused, and the appeal dismissed.
- AGLC
- Draoui v Le [2021] SASCA 33
- Case
- [2021] SASCA 33
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the dismissal of Mr Draoui's appeal by Bleby J was appropriate, particularly in light of the rules concerning the time for providing security for costs. The court was also required to determine whether to grant leave to appeal, whether to admit further evidence regarding Mr Draoui's financial capacity to meet the security for costs order, and whether to reinstate his appeal.
The court considered Mr Draoui's application to adduce further evidence, which included an affidavit detailing his subsequent ability to raise the $20,000 security for costs from a business acquaintance, supported by a letter from that acquaintance. However, the court found that the history of the matter and the diminishing prospects of Mr Draoui raising the necessary security led it to have little confidence in his ability to do so. The court reasoned that granting an adjournment to allow for further evidence would unfairly burden the respondents and that it was not prepared to accede to such a request.
Ultimately, the court dismissed Mr Draoui's appeal against the decision of Bleby J. The court was not satisfied that Mr Draoui had any reasonable prospect of raising the necessary security for costs, given the history of the proceedings and the apparently diminishing prospects of him doing so.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
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Ratio Decidendi
Legal Principle Established
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