Draoui v Le & Anor

[2019] SASC 114

Supreme Court of South Australia

(Civil: Application)

DRAOUI v LE & ANOR

[2019] SASC 114

Judgment of The Honourable Justice Kelly (ex tempore)

3 July 2019

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY

Interlocutory application.

The applicant seeks a stay of the orders made by Judge Deuter in the District Court on 24 May 2019, refusing an application to adjourn a District Court trial, an action in which the applicant is the plaintiff.

Held:

1.  The interlocutory application is dismissed.

2.  The applicant is to pay the respondents' costs on the hearing of the application, to be taxed in the absence of agreement between the parties.

DRAOUI v LE & ANOR
[2019] SASC 114

Civil Application

KELLY J:

1. In this matter, the applicant is the plaintiff in a District Court action which has been listed to commence for trial on 8 July 2019 for 20 days.  He has filed an interlocutory application in this Court, together with a supporting affidavit, on 1 July 2019, seeking a stay of an order made by a District Court Judge on 24 June 2019 refusing him an adjournment of the trial for a period of approximately 10 months.  He has also filed a notice of appeal in this Court dated 1 July 2019 seeking orders that the order made by the District Court Judge on 24 June 2019 be quashed and that the trial be adjourned to a date to be fixed in early 2020.

2. I have considered the material filed by the applicant together with the affidavit.  I have read the reasons of the District Court Judge which were published on 24 June 2019.  In my view, the prospects of success in respect of the applicant's appeal are poor.  The District Court Judge set out in comprehensive detail all of the background which led up to the latest application for an adjournment by the applicant.  I am aware and conscious of the fact that if the applicant succeeds on appeal, then, of course, the result of any trial that took place would be set aside and he would be successful in gaining a retrial.

3. If, on the other hand, the applicant fails in his appeal to this Court, then in effect he has succeeded in obtaining de facto the adjournment he unsuccessfully sought in the District Court.  That is one of the considerations that I have had regard to when deciding what the interests of justice really require in this matter.  The matters put to me today by the applicant have been put in the court below.  It is evident from the reasons of the District Court Judge below that the applicant relies on essentially the same matters as he relied on in the court below.

4. 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. 

5. There will be an order that the applicant pay the respondents’ costs of today's attendance.  Such costs to be taxed in the absence of any agreement between the parties.