Draoui v Le - [2019] SASCFC 105

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 105
Full 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…

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.

Continue reading Draoui v Le

Details

AGLC: Draoui v Le [2019] SASCFC 105
Case: [2019] SASCFC 105
Decision Date: 3 September 2019

CaseChat Overview and Summary

This matter concerned an application for permission to appeal an interlocutory order made by a District Court Judge in South Australia. The applicant, Mr Draoui, sought to appeal the Judge's refusal to grant an adjournment of his trial. The respondents were Mr Le and others.

The primary legal issue before the Full Court of the Supreme Court of South Australia was whether permission to appeal should be granted. This required the Court to consider whether the decision sought to be impugned was wrong or attended with sufficient doubt to warrant reconsideration, and whether its refusal would result in substantial injustice. A further issue was whether the District Court Judge had exercised her discretion to refuse the adjournment in accordance with the established principles, particularly those outlined in *House v The King*.

The Court, comprising Peek, Nicholson and Doyle JJ, ultimately dismissed the application for permission to appeal. The reasoning focused on the limited prospects of success on appeal, with one judge describing them as "less than poor, bordering on zero." The Court found no process error by the District Court Judge, who had carefully considered all relevant matters and disregarded irrelevant ones. The refusal to grant the adjournment was deemed neither unjust nor unreasonable. While acknowledging the existence of two new medical reports supporting Mr Draoui's claim of a depressive relapse exacerbated by litigation, the Court found that these reports did not alter the assessment of the prospects of appeal, nor did they demonstrate that the Judge's discretion had been wrongly exercised. The Court also noted the protracted history of the proceedings, Mr Draoui's repeated failures to be ready for trial, and concerns raised about his financial probity and previous statements to the court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J NICHOLSON J

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.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J, NICHOLSON J

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.