Draoui v Le
[2019] SASCFC 105
•3 September 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
DRAOUI v LE & ORS
[2019] SASCFC 105
Judgment of The Full Court
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Doyle)
3 September 2019
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - ADJOURNMENT
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
Application for permission: to appeal to the Full Court from an interlocutory decision of a Judge of this Court refusing a stay of an order made by a District Court Judge refusing to adjourn a trial date and, implicitly, to appeal from the District Court Judge's order refusing the adjournment.
Held:
1. Permission to appeal in each case refused.
2. The application for permission to appeal filed on 29 August 2019 (FDN 8) is dismissed.
Supreme Court Civil Rules 2006 (SA) r 79, r 288; District Court Civil Rules 2006 (SA) r 78, r 79, referred to.
Aon Risk Management Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Matthews v Whites Hill (SA) Pty Ltd [2019] SASC 78; House v The King (1936) 55 CLR 499; Contender One Ltd v LEP International Pty Ltd (1988) 82 ALR 394, considered.
DRAOUI v LE & ORS
[2019] SASCFC 105Full Court: Peek, Nicholson and Doyle JJ
PEEK J.
I agree with the reasons of Nicholson J and with the orders he proposes.
NICHOLSON J.
Introduction
The applicant, Mr Draoui, is the plaintiff in three District Court actions, the consolidated trial of which had been listed to commence on 8 July 2019. In each of the three actions Mr Draoui alleges having been involved in a motor vehicle accident in which he was injured. The first action concerns an accident said to have occurred on 3 December 2001, was instituted in the Adelaide Magistrates Court on 3 December 2004 and transferred to the District Court on 27 February 2012. The second concerns an accident said to have occurred on 4 January 2011, was instituted in the Adelaide Magistrates Court on 28 June 2013 and transferred to the District Court on 16 January 2015. The third concerns an accident said to have occurred on 26 February 2011 and was instituted in the District Court on 28 June 2013. The three proceedings, when in the Magistrates Court and after having been consolidated for trial in the District Court, have had a very protracted and complex procedural history. Mr Draoui has had legal representation from time to time throughout the proceedings but has been representing himself since March 2017.
On 24 June 2019, an application by Mr Draoui to adjourn the District Court trial to commence 8 July 2019 was refused by the trial Judge.[1] On 3 July 2019, Mr Draoui’s interlocutory application in this Court seeking a stay of the Judge’s order refusing the adjournment of the trial was heard and refused by Kelly J of this Court.[2]
[1] Draoui v Le, Then & Cock [2019] SADC 85.
[2] Draoui v Le & Anor [2019] SASC 114.
On 23 August 2019, Mr Draoui’s application for permission to appeal against the Judge’s refusal to adjourn the trial was refused by Kelly J. On that same day, her Honour refused an application by Mr Draoui for permission to appeal to the Full Court from Kelly J’s refusal on 3 July 2019 to grant a stay of the Judge’s order refusing to adjourn the trial. Her Honour provided brief ex tempore reasons for each of these refusals.
On 29 August 2019, Mr Draoui filed an interlocutory application in this Court headed “Interlocutory Application for Permission to Appeal” which seeks the following orders or directions.
1.An order granting permission to appeal against the decision of the Honourable Justice Kelly of this Honourable Court, made on the 3rd July 2019, refusing the appellant’s application for stay of the trial of the within action (together with actions 1901 of 2013 and 100 of 2015) listed for hearing on the 8th July 2019 in the District Court.
2.Costs.
3.Such further or other orders as the Court deems fit.
4.Urgent hearing before Monday 2 of September 2019.
Strictly, the application for permission to appeal is only against Kelly J’s refusal to order a stay of the trial Judge’s order refusing the adjournment. Nevertheless, I have treated the application as also a renewal of the application first made to Kelly J for permission to appeal from the trial Judge’s refusal to adjourn the trial.[3]
[3] See rule 289(3) of the Supreme Court Civil Rules 2006, notwithstanding that it is out of time.
The judgments from which Mr Draoui seeks to appeal are interlocutory judgments given by a Judge of this Court and by a Judge of the District Court. As such, Mr Draoui requires permission to appeal in accordance with rule 288 of the Supreme Court Civil Rules 2006. The application is one which may be heard in private without receiving oral submissions from the parties.
The trial commenced on 8 July 2019 and as at the time of Mr Draoui’s application (29 August 2019) was part heard. It had been proceeding throughout that period albeit with various adjournments. The last sitting day was 28 August 2019 at the conclusion of which the matter was adjourned to resume Thursday 5 September 2019.
It is of assistance to briefly outline the course of the trial to this point. On the first day (8 July 2019) Mr Draoui advised that he was in no fit state to proceed to conduct the trial on his own behalf. The Judge ruled that the trial should proceed with Mr Draoui to commence his case with the Judge leading his evidence in chief. The trial was suspended on 11 July to allow consideration of the plaintiff’s capacity to continue with the trial.
The Judge decided to conduct an enquiry into whether Mr Draoui was a person under a disability, such that a litigation guardian should be appointed pursuant to rules 78 and 79 of the District Court Civil Rules 2006. Arrangements were made for Mr Draoui to be examined by various medical experts who provided the court with written reports and attended to give oral evidence. The enquiry proceeded over some 10 days or so. On 16 August 2019, the Judge ruled that Mr Draoui was not a person under a disability and did not require a litigation guardian and ordered that the trial was to recommence. Her Honour provided very comprehensive reasons.[4]
[4] Draoui v Le, Then & Cock [2019] SADC 108.
The trial recommenced on Monday 19 August 2019 for part of the day and continued through 20 August 2019 for part of the day, 22 August for part of the day, 26 August for part of the day, 27 August for part of the day and 28 August. The trial was then adjourned part heard to 5 September 2019.[5] At that stage, Mr Draoui had completed his case, after a fashion, and the defendants had called nine witnesses.
[5] As I understand the position, the trial was later administratively called back on to resume in the afternoon of 3 September 2019.
The application
At all times, Mr Draoui’s primary concerns have been that he is not mentally capable of conducting the trial on his own behalf and that he does not have the financial wherewithal at this stage to employ lawyers to conduct the trial on his behalf. This was, in essence, the basis upon which he sought the adjournment of the trial on 24 June 2019. It is the same basis upon which he relied before Kelly J in seeking permission to appeal from the Judge’s refusal to grant the adjournment and in seeking a stay of the Judge’s order refusing the adjournment.
Mr Draoui has filed two affidavits in support of his present application before this Court, both sworn and filed on 29 August 2019. The affidavit material essentially repeats matters that were put before the Judge and before Kelly J save for two medical reports that were not before the Judge at the time she made her ruling on 24 June 2019 and were not before Kelly J at the time her Honour ruled on 3 July 2019 and 23 August 2019. I will return to the two medical reports in due course. However, neither the application for permission to appeal nor the affidavit material identifies any grounds of appeal in terms of asserted error by either the Judge or Kelly J other than by way of a re-statement of Mr Draoui’s submissions put before those two Judges, together with this contention.
I believe her Honour [Kelly J] did not give any, or sufficient weight, to the circumstances of my case and the difficulties, and the severe prejudice, I will face in being required for a complex court case without legal representation in the conduct of the trial. Although the matter has had a long history, the inconvenience incurred by the defendant can be remedied by the costs orders made to date. There has been no damage to the defendants’ case, other than inconvenience of the passage of time.
Without the benefit of legal representation I could well lose the case and, with it, the damages I sustained as a result of the vehicle collisions.
The judgment of the District Court Judge
The Judge set out in some detail the complex and protracted procedural history of the matter and the substantial delays, essentially caused by Mr Draoui not being ready to proceed, from December 2004 when the first proceedings were issued to date. The Judge observed that the matter had been listed for trial on two previous occasions in 2015 and 2017 and that on each occasion there had been a significant amount of time between the trial listing and the date of trial designed to ensure that Mr Draoui would be ready to proceed. On each occasion the trials were adjourned. The present trial listing (for 8 July 2019) was made at a directions hearing some 14 months previously.
The Judge considered at length the further procedural history of the matter leading up to Mr Draoui’s latest application to adjourn the trial. It is unnecessary to set out in any detail the Judge’s analysis of the progress of the matter and her findings to this point. The judgment, as I say, is lengthy and detailed and has been reported.[6] The Judge arrived at a number of conclusions all of which, in my view, were supported by the evidence and submissions before her Honour. These conclusions included:
(i)that the plaintiff has had all materials required to conduct his trial since the matter was listed for the third time on 7 May 2018;
(ii)that the plaintiff had taken no steps to secure funding since the first half of 2017 when the second trial was adjourned;
(iii)that the plaintiff had taken no steps to instruct solicitors to act for him since the first half of 2017 when the second trial was adjourned;
(iv)that the plaintiff has periodically told the court since 2007 that he had a house in Jordan that he has been wishing to sell in order to raise funds to support his court action. However, at no time has the plaintiff provided to the court any evidence of ownership of the property or its value nor any evidence that the plaintiff has ever taken any steps necessary to sell the property;
(v)that there was evidence to the effect that Mr Draoui had admitted in court during previous bankruptcy proceedings that he had lied about owning the house in Jordan; and
(vi)that there was evidence to the effect that a former solicitor for Mr Draoui had told the court that Mr Draoui had a propensity to provide cheques which would bounce and for making lots of promises but funds not turning up.
[6] Draoui v Le, Then & Cock [2019] SADC 85.
The Judge acknowledged that she was not in a position to find whether or not the plaintiff did own property in Jordan or whether or not he had ever made attempts to sell that property but she was influenced by the fact that no evidence of ownership of the property, or in fact of the existence of the property has been put before the court. This lack of evidence is to be considered in the context of Mr Draoui having been requested to provide such evidence on various occasions during the conduct of the matter in the District Court.
The Judge proceeded to consider the law governing applications to adjourn a trial date including the High Court decision in Aon Risk Management Services Australia Ltd v Australian National University,[7] Channel Seven Adelaide Pty Ltd v Manock[8] and Matthews v Whites Hill (SA) Pty Ltd.[9]
[7] (2009) 239 CLR 175.
[8] [2010] SASCFC 59.
[9] [2019] SASC 78.
In refusing Mr Draoui’s application for an adjournment her Honour had regard to the well known list of relevant considerations identified by the Full Court in Channel Seven Adelaide Pty Ltd v Manock.[10] Matters of significance taken into account by the Judge included the following.[11]
(i)The extraordinary delay in bringing the matters to resolution, together with the fact that there is no real basis to be confident that Mr Draoui would ever be in a position to proceed to trial. Mr Draoui had assured the Chief Judge at a hearing in April 2017 that funds necessary to conduct his case would be raised within four months but that did not occur. As such, the court could have no confidence that the funds would be obtained in the short or medium term or at all.
(ii)Mr Draoui “left it to the eleventh hour” before the trial was due to commence, to make an application in circumstances where the defendants have their witnesses in place and are ready to proceed. As such, further costs would be incurred by the defendants in cancelling witnesses including medical experts. These costs would be in addition to the significant costs that were thrown away in 2015 and 2017. Further, they are costs which the defendants may well not recover given Mr Draoui’s financial circumstances.
(iii)The three actions have involved significant amounts of the court’s time and resources to date. There have been in the vicinity of 70 hearings to this point. For a third time, a block of time (on this occasion, 20 days) has been set aside that could have been used by other litigants who are awaiting a trial.
(iv)This is the third time that Mr Draoui has sought an adjournment at a very late stage with consequential wastage of trial dates and court resources. Any further delay would undermine confidence in the administration of justice in this State.
(v)The second trial date was adjourned in April 2017 in order for the plaintiff to obtain legal representation. No steps have been taken since then to do so. Over two years later, neither funding nor legal representation has been obtained. There can be no confidence that, if a further adjournment is granted, Mr Draoui would take steps to gain legal representation or obtain funding for that purpose.
(vi)Mr Draoui may never be able to obtain representation or funding for representation and the matter has reached a point where it must be conducted and brought to a conclusion.
(vii)The Judge identified other aspects of potential prejudice to the defendants if there were to be another adjournment, including that several of the expert medical witnesses were elderly and a further delay might have an impact on their ability to give their evidence and that there were lay witnesses in relation to liability whose memories were likely to be detrimentally affected by the continuing delays.
(viii)Mr Draoui has not explained to the court why the application to adjourn was not made earlier or why he has not taken steps to seek funding over the previous two years. The mere fact that a party is unrepresented is not a satisfactory reason for such delay.
[10] [2010] SASCFC 59 at [46].
[11] [2019] SADC 85 at [105]-[113].
As I say, this has been a bare summary of some of the key points in what is a very comprehensive and well-reasoned judgment.
Consideration
Permission to appeal against an interlocutory order will only be granted where the decision sought to be impugned is either wrong or attended with sufficient doubt to warrant its reconsideration on appeal and where, if allowed to stand, it would have the effect of working a substantial injustice. Permission will be granted less readily where the point in issue is one of practice and procedure.[12]
[12] Contender One Ltd v LEP International Pty Ltd (1988) 82 ALR 394.
In this case, the Judge exercised a discretionary power whether or not to permit the trial date to be adjourned. An appeal court, ordinarily, will need to consider whether the discretion was exercised in accordance with the well understood precepts set out in House v The King.[13]
[13] (1936) 55 CLR 499.
Kelly J in her ex tempore reasons for judgment concluded as follows.
In my view, there is nothing in the reasons of the District Court Judge which cause me to, as I say, estimate the prospects of the applicant succeeding on appeal as being anything more than poor. In fact, I have concluded that this interlocutory application has all the hallmarks of being yet another device to obtain the adjournment he failed to receive before the District Court Judge in June. As such, I consider it to be on the verge of an abuse of this Court's process to be filing an interlocutory application in this Court at this stage. For these reasons, the application is dismissed.
I agree with her Honour as to the prospects of appeal. Indeed, I would go further and describe them as less than poor, bordering on zero. I can find no process error engaged in by the Judge. In my view, she has taken into account, and paid detailed attention to, all relevant matters and has not had regard to any irrelevant ones. Further, the outcome, that is the refusal to allow the adjournment, cannot in any way be said to be unjust or unreasonable. I would have made the same decision.
I referred earlier to the two medical reports provided by Mr Draoui to the Court exhibited to his affidavit of 29 August 2019 (FDN 9). These were not available to the Judge and were not available to Kelly J. The medical reports are from two psychiatrists: Dr Marcus Bem and Dr Tony Davis. Both reports lend some support to Mr Draoui’s contention that he has had a relapse of a major depressive disorder which may or may not have been contributed to by the litigation environment. It can be accepted, from a reading of these reports, that Mr Draoui is finding and will continue to find the litigation he has engaged in to be stressful and difficult for him as typically is the case with any plaintiff involved in personal injury litigation. The proceedings may well continue to exacerbate his mental health problems. I accept that, suffering as he does, he may be less able to conduct his own litigation than would be the case were he not to be suffering from a depressive illness.
However, evidence from Drs Bem and Davis and others was received and considered by the Judge as part of her Honour’s enquiry into whether Mr Draoui was a litigant under a disability. Her Honour gave lengthy consideration to the evidence and delivered a ruling to the effect that Mr Draoui was not suffering under a disability such as to suggest the need for a litigation guardian to be appointed pursuant to rule 79 of the Supreme Court Civil Rules 2006. Her Honour directed that the trial was to continue.
In these circumstances, I am satisfied that the Judge, having dealt with Mr Draoui at various interlocutory hearings, having conducted the adjournment hearing and having conducted the trial part heard (including the disability enquiry) is on notice of Mr Draoui’s current mental state as reported on by the two psychiatrists just referred to. In the circumstances, it is plain that her Honour has retained the view that an adjournment of the trial is not warranted.
I am prepared to receive the two psychiatrist reports as fresh evidence on the appeal. However, it is not of such cogency, as would affect the outcome I would have otherwise arrived at.
I add the following observation, although it is not determinative of the application. The trial was well advanced by the time Mr Draoui filed his present application in this Court (29 August 2019). To grant permission to appeal against the Judge’s refusal on 24 June to adjourn the trial would necessitate also granting a stay of the trial. Any subsequent appeal, if successful, would most likely result in an order setting aside the part heard trial and requiring a new trial to commence from the beginning at some later date. It would not be appropriate simply to order an adjournment of the trial part heard to a date to be fixed. If Mr Draoui were to succeed in establishing that the trial should never have been allowed to proceed, an adjournment of the trial part heard would not be a just outcome.
In these circumstances, there is a certain lack of utility to Mr Draoui’s application before this Court, it having been brought so far into the trial. Should the trial proceed to completion, Mr Draoui will have his right to appeal. He, ultimately, may establish an entitlement to a new trial but to make an order to that effect at this stage of the proceedings would be of little utility.
In any event, in my view, the decision of the Judge on 24 June to refuse the adjournment is not wrong or attended by sufficient doubt to warrant its reconsideration on appeal nor, if allowed to stand, would it have the effect of working a substantial injustice. In these circumstances, I would refuse permission to appeal from the Judge’s order on 24 June 2019 refusing to adjourn the trial. There being no other basis that might justify a stay of the Judge’s order on 24 June, I would refuse permission to appeal from Kelly J’s refusal to grant a stay of that order. Accordingly, I would dismiss Mr Draoui’s interlocutory application for permission to appeal filed on 29 August 2019 (FDN 8).
DOYLE J.
I agree with the reasons of Nicholson J and with the orders he has proposed.
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