(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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Draoui v Le [2021] SASCA 33
Case
[2021] SASCA 33
Decision Date
CaseChat Overview and Summary
The appellant, Mr Draoui, appealed the dismissal of his earlier appeal by Bleby J. Mr Draoui also sought leave to appeal to the extent necessary and made an application to adduce further evidence regarding his ability to pay security for costs that had been ordered. The underlying dispute concerned claims for damages for personal injury and loss arising from three motor vehicle accidents.
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
Full text does not contain this section.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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.