Draoui v Le

[2020] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

DRAOUI v LE & ORS

[2020] SASC 155

Judgment of The Honourable Justice Bleby

21 August 2020

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS

Application for security for costs.

This matter has a complex history. The appellant claimed damages for personal injury and loss sustained in three separate motor vehicle accidents, occurring on 3 December 2001, 4 January 2011 and 26 February 2011. Trials listed in 2015 and 2017 were adjourned after the appellant failed to meet promises to obtain funding for legal representation. The appellant was self-represented at trial, which commenced on 8 July 2019, after an unsuccessful application by the appellant for a further adjournment on the basis 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. The appellant applied for permission to appeal against that refusal.  On 3 July 2019, Kelly J refused that application.

Early in the trial, the appellant presented the Court with a letter from a general practitioner expressing the view that the appellant had suffered an exacerbation of his depressive disorder and that he should be reviewed by a psychiatrist. The trial judge determined to hold a disability inquiry to determine whether the appellant was a person under a disability and requiring a litigation guardian within the meaning of rule 4 of the District Court Civil Rules 2006. On 16 August 2019, the trial judge concluded that the appellant was not such a person.  She ordered the trial to recommence. However, the plaintiff refused to return to the witness box and did not arrange witnesses to give evidence. On 20 August 2019, the trial judge ruled that the plaintiff’s case should be treated as closed.

The defendants opened their case and called witnesses over several days. On 29 August 2019, the appellant filed an interlocutory application in this Court, seeking permission to appeal from Kelly J’s refusal to grant permission to appeal from the decision refusing to adjourn the trial. This Court refused that application on 3 September 2019. On 23 September 2019, after judgment was reserved, the appellant brought an application to re-open his case and call witnesses. The appellant gave evidence on that application and was cross-examined. The judge refused the application, finding that re-opening the appellant’s case at that stage would effectively lead to a complete rehearing requiring six to eight further weeks.

With respect to the first accident, the trial judge found that the appellant had failed to prove that the accident was caused by the negligence of the defendant, Mr Le. With respect to the second accident, the trial judge found that there was no basis for a finding of negligence against the defendant, Mr Lock. With respect to the third accident, the defendants admitted liability, but the trial judge assessed the appellant’s injuries as ‘very modest,’ equating to damages of…