Draoui v Le, Then & Cock
[2019] SADC 108
•16 August 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DRAOUI v LE, THEN & COCK
[2019] SADC 108
Reasons for Decision of Her Honour Judge Deuter
16 August 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION
DISTRICT COURT PROCEDURE - SOUTH AUSTRALIA
PROCEDURE UNDER RULES OF COURT - PARTIES
SELF-REPRESENTED PLAINTIFF - MENTAL ILLESS
LITIGATION GUARDIAN - PERSON UNDER DISABILITY - APPLICABLE PRINCIPLES
Self-represented plaintiff commenced trial advising court that he was unwell due to relapse of mental illness. Court considered that there should be an Inquiry to consider whether the plaintiff was a person under a disability as defined by Rule 4 of the District Court Rules 2006 and required a Litigation Guardian pursuant to Rule 78. Inquiry proceeded.
Held
1. There was a real apprehension that the plaintiff was a person under a disability as defined by Rule 4 of the District Court Rules 2006 and an Inquiry should proceed to determine whether the plaintiff was a person under a disability under Rule 4 for the purpose of Rule 78 of the District Court Rules 2006.
2. That on review of all of the evidence produced at trial and on the Inquiry the plaintiff is not a person under a disability and does not require a Litigation Guardian.
3. Trial of the primary issues to re-commence.
Criminal Law Consolidation Act 1935 (South Australia); District Court Rules 2006, Rules 4, 78 and 79.; R v Draoui [2015] SASCFC 50; Washington v Washington [2018] SASC 102; Slaveski v State Victoria [2009] VSC 596; Hollidge v Pomeroy & Ors [2014] SASC 45; Manning v Russell [2015] SASC 91; Atkins & Anor v Atkins & Ors [2011] SASC 85, referred to.
DRAOUI v LE, THEN & COCK
[2019] SADC 108Introduction
The plaintiff in this matter, Mr Abdou Nasser Draoui claims damages for personal injuries and consequential financial loss suffered as a result of three motor vehicle accidents. These accidents occurred on 3 December 2001, 4 January 2011, and 26 February 2011.
By order of Judge Slattery made on 23 February 2015, the three motor vehicle accident claims are to be heard together as one trial. That trial commenced on 8 July 2019 and was listed to run for 20 sitting days. The trial date had been set 14 months previously, on 7 May 2018.
An application made by the plaintiff to adjourn the trial was refused by me on 21 June 2019 for the reasons set out in my judgment of 24 June 2019. That judgment sets out the lengthy procedural history in this matter, that I will not repeat in these reasons. I have attached a chart setting out the history. All aspects of the plaintiff’s claim in damages are strongly challenged by the defendants. Liability for the first and second accidents is in dispute. Liability for the third accident is admitted by the defendant. The causation of any injury and loss, and the quantum of any loss proved to have been caused by the collisions is vigorously challenged. However, these are not complex matters, rather they are relatively routine motor vehicle accident claims where the onus is on the plaintiff to prove his injuries and his losses and the causation of those relative to the accidents.
At various times since the commencement of the first action on 3 December 2004, the plaintiff has been represented by solicitors and counsel. On 15 March 2017, the plaintiff filed a Notice of Acting in person and he has been either unwilling or unable to obtain representation for the conduct of the trial since that time. He remains unrepresented.
The Trial
At the commencement of the trial, the plaintiff attended with no papers, and no support persons or witnesses that he intended to call to give evidence on his behalf.
He opened his case by indicating that:
1. he was not feeling well and had an appointment two days later with his General Practitioner;
2. he had rung the psychiatrist who had previously treated him, Dr Bem. He could not see him until August, and only after he paid outstanding gap fees;
3. it was absolutely wrong that he had to conduct his trial without legal representation against the defendants legal team;
4. it was also wrong that he was forced to conduct his trial when he could not read or fully understand English;
5. he had had an appointment arranged with a lawyer for 11.30am that day (the day the trial commenced), but the lawyer would now not see him due to interference from the lawyers for the defendants;
6. he did not have any of his files from his previous solicitors;
7. in relation to his files, Ms Toni Emanuele of Tindall Gask Bentley, had not been honest in her affidavit of 7 June 2019 filed in court, and he maintained that the firm had not provided his files to him;
8. he had not slept for three weeks and he had no idea where to start this trial. He was suffering badly;
9. as a result of his health issues, he was losing his memory; and
10. had made an application to the Supreme Court for permission to appeal my order of 24 June 2019 refusing the application for adjournment and he intended to make application to the Supreme Court for permission to appeal an order of Justice Kelly of 3 July 2019 refusing to stay my order of 24 June 2019.
In response to the plaintiff’s further application to adjourn the trial for the multiple reasons listed above, the defendants counsel indicated that they opposed any adjournment of the trial. They had a number of witnesses booked to give evidence.
In response to the defendant’s position, the plaintiff became very agitated, and told me that he needed to finish the case as it was taking a serious toll on his health and he felt that he and his family had been held hostage to circumstances. He was significantly disadvantaged without lawyers to act for him. The plaintiff then confirmed that:
1. he had arranged no doctors to give evidence as they wanted money in advance that he could not pay;
2. he had not issued any subpoenas for expert witnesses despite my providing leave for him to do so at a hearing on 30 May 2019. This was because if he subpoenaed the doctors they would be hostile to him;
3. he had not arranged for any of his family, his wife or children to attend court to give evidence at trial, and it was not clear if he had spoken to them about doing so;
4. he had not arranged any witnesses to give evidence at trial; and
5. his depression was returning and that this was affecting his memory, and he could not focus.
As a result of the plaintiff’s submission, I asked him if he had any medical evidence or certificate to confirm his worsening mental state. He told me he did not, but he planned to see his General Practitioner at 8.40am on Wednesday 10 July 2019 (two days later), when he would obtain a report regarding his health and his inability to proceed with the trial.
After considering all the circumstances and the lack of any medical evidence to confirm the plaintiff’s health issues, I ruled that the trial should commence, with the plaintiff to give evidence by me guiding him through the matters that he should address. Appropriate breaks would be given to the plaintiff to take account of any health issues and the trial would be adjourned for the morning of Wednesday 10 July 2019 to allow the plaintiff to attend the pre-arranged medical appointment with his General Practitioner.
Plaintiff’s case – Trial
At the commencement of the plaintiff’s case the plaintiff indicated that he had no documents, and for all of the first week he brought no documents to court, even though I am aware from the court files that multiple documents have been served upon him by the defendants solicitors including medical records, medical reports, tax returns, accountants reports and records of previous workers compensation proceedings.
The plaintiff’s case began with me explaining the need for him to give evidence and that I would take him through that process. I explained that he had to tell me how each accident happened and what his injuries were and what his losses were.
The process commenced with me leading the plaintiff’s evidence in chief. He was then cross-examined by the defendant’s counsel. During this process, there were multiple breaks to accommodate the plaintiff’s health issues and medical appointments. The trial was finally suspended at 4.30pm on Thursday 11 July 2019 to allow consideration of the plaintiff’s capacity to continue with the trial.
The plaintiff put to me on multiple occasions during his evidence that he was unwell and could not continue his trial. He complained of severe headaches; dizziness; stomach issues and diarrhea; memory loss and issues with his sight.
The plaintiff raised his previous serious depression and his opinion that he had now suffered a relapse that was impacting his memory. I will come to that further below. I am aware from previous judgements of this and other South Australian Courts that the plaintiff had previously suffered a Major Depressive Illness after he was charged in July 2002 with multiple criminal offences, including false pretences, fraudulent misappropriation, forging and uttering cheques and fraud. After a lengthy process, on 20 November 2006 it was found that on the balance of probabilities the plaintiff was mentally unfit to stand trial in relation to the criminal charges.
Following that finding, and a later finding of 15 May 2007 that the objective elements of 83 offences were established, a declaration was made that the plaintiff was liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA). On 27 September 2007, the plaintiff was released on license pursuant to a supervision order that required regular psychiatric review and treatment, together with supervision by a Community Corrections Officer and Forensic Mental Health Services over a ten year period.
The judgment of the Court of Criminal Appeal in R v Draoui[1] sets out the history of the criminal proceedings, including a history of the plaintiff’s psychiatric illness. The diagnosis of the plaintiff’s mental illness following the criminal charges was Major Depressive Disorder with Psychotic Features.
[1] [2015] SASCFC 50 at para [42] to [62].
There was a recovery by 2008, and in May 2014 Chief Judge Muecke accepted that the plaintiff had sufficiently recovered his mental health, that he no longer required psychiatric supervision. He described the plaintiff as then enjoying good mental health.
The plaintiff is a person who has previously suffered a very serious psychiatric illness. I have taken that into account in determining how to proceed upon the plaintiff’s application that his trial be adjourned due to his worsening mental health.
The plaintiff was finally assessed by a General Practitioner Dr Mascolo on 11 July 2019. On Friday 12 July 2019, the plaintiff presented to me a letter from Dr Mascolo stating that the plaintiff had suffered an exacerbation of his Depressive Disorder and should be reviewed by the psychiatrist, Dr Bem. He provided a referral to Dr Bem.
Person under a Disability
As a result of the plaintiff’s application to adjourn the trial due to his deteriorating mental health, I was of the view that I was required to consider whether he was a person under a disability and therefore not able to continue these proceedings without a Litigation Guardian, pursuant to Rules 78 and 79 of the District Court Rules 2006. These rules are:
78—Representation of party under disability
(1)As a general rule, a person under a disability (a protected person) may only take or defend proceedings through a guardian who has authority to represent the interests of the protected person (a litigation guardian).
Exception—
The Court may, however, permit a protected person to act personally in bringing, or taking any step in, proceedings.
(2)The litigation guardian is responsible for the conduct of the proceedings on behalf of the protected person and may take any step in the proceedings and do anything else that the protected person might have done if of full age and capacity.
(3)A party to an action who becomes aware that another party is a protected person and is not represented by a litigation guardian as required by this rule must inform the Court of that fact.
(4)A judgment or proceeding of the Court is not invalid because a party was not represented by a litigation guardian as required by this rule, but the Court may set aside the judgment or proceeding if satisfied that the party has been substantially prejudiced through the lack of such representation.
79—Litigation guardians
(1)Any of the following may be the litigation guardian of a protected person—
(a) a parent or guardian;
(b) a person who holds an enduring power of attorney authorising the person to act on the person's behalf;
(c) a person who has some other lawful authority to manage or administer the person's affairs;
(d) a person permitted or appointed by the Court to represent the interests of the protected person.
(2)However—
(a) if a person's authority would not (apart from these Rules) extend to representing the protected person in proceedings before the Court—the person requires the Court's permission to act as litigation guardian in the proceedings; and
(b) a person who has an interest in proceedings before the Court (apart from his or her interest as representative of the protected person) cannot act as the protected person's litigation guardian in the proceedings unless the Court directs to the contrary.
(3)The Court may, on application by an interested person or on its own initiative, permit or appoint a suitable person to be a protected person's litigation guardian.
(4)The Court may remove the litigation guardian of a protected person (whether or not appointed by the Court) on any reasonable ground and may permit or appoint some other person to be the litigation guardian.
(5)The Court may require the solicitor for a protected person to inquire into, and give it an assurance about, the suitability of a proposed litigation guardian.
Is the Plaintiff a person under a Disability?
As noted above, following his attendance upon his General Practitioner Dr Mascolo on 11 July 2019, the plaintiff tendered a letter from Dr Mascolo to the court.[2] By that letter Dr Mascolo stated that the plaintiff had been a patient of his for many years, and that he had a history of Major Depressive Disorder, and that most recently he had suffered an exacerbation of his condition. He had presented that day with severe depressed mood, insomnia and poor concentration and memory. In Dr Mascolo’s opinion the plaintiff was not ‘currently fit to go through the legal/motor vehicle claims’ and he recommended further review by the plaintiff’s private psychiatrist.
[2] Exhibit P10.
The plaintiff told me that he intended to go back to see Dr Bem, his psychiatrist, in August and that a new referral had been sent to Dr Bem by Dr Mascolo.
The defendants opposed an adjournment of the trial until the plaintiff was seen by Dr Bem, in August or at a later date. They submitted that the referral attached to Dr Mascolo’s letter simply noted that the plaintiff ‘seems to have slipped back into a depressed state’, and that the doctor sought Dr Bem’s view. The defendants submitted that Dr Mascolo’s opinion was based solely on the plaintiff’s subjective complaints, and was contrary to an opinion of Dr Davis, forensic psychiatrist who had examined the plaintiff at the request of the defendant on 24 June 2019, some two weeks before the trial commenced.
The defendants sought leave to cross-examine Dr Mascolo and to call Dr Bem and Dr Davis to give evidence regarding the plaintiff’s mental state and his capacity to continue participating in the trial in this matter.
I was therefore required to consider the procedure whereby the plaintiff’s ability to continue the trial, and/or the requirement that a Litigation Guardian be appointed, should occur. I determined that if the plaintiff’s depression had returned to such a level that he could not continue to conduct this trial, then this would likely mean that he required a Litigation Guardian.
I then ruled that the procedure for such a review of the plaintiff’s capacity should be as set out by Judge Lunn in Atkins & Anor v Atkins & Ors[3] and adopted and applied by Judge Withers in Hollidge v Pomeroy & Ors.[4]
[3] [2011] SASC 85 at paras [8] – [10].
[4] [2014] SASC 45.
At para [10] in the Atkins case, Judge Lunn stated:
I consider that the course which should be adopted in this matter is that if the plaintiffs wish to ensure that the second defendant will be bound by any judgment or settlement they should apply for an inquiry by a Master of the Court as to whether the defendant is a person under disability for the purposes of this action. If the Court makes the order for the inquiry, directions will then be given about how the inquiry is to proceed, which may include directions about disclosure of documents and medical examinations.
Should an Inquiry Proceed?
The first step in the procedure is to determine whether there should be an Inquiry.
In his decision in Manning v Russell Nicholson J stated:[5]
I am at the stage, not of embarking on any such inquiry but, of determining whether, following the second defendant’s request, an order for such an inquiry should be made. No authority has been drawn to or has come to my attention which sets out the appropriate test for this threshold issue.
[5] [2015] SASC 91 at para [16].
It was noted that an inquiry should not be embarked upon merely on the request of another party. Nicholson J concluded that in seeking an answer to the ‘threshold’ question, it would be helpful to consider whether or not a person is under a disability in the sense identified by the definition of a person under a disability, at Rule 4 of the District Court Rules.
That rule provides a definition of ‘Disability’ relative to the plaintiff as being:
4 (c)a person who is not physically or mentally able—
(i)to manage his or her own affairs; or
(ii)to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others);
Nicholson J then considered comments made by Kyrou J in the Victorian Supreme Court decision of Slaveski v State of Victoria.[6]That discussion is very relevant to the issues in this case, as the plaintiff, Mr Slaveski was self-represented and was bringing a claim for personal damages.
[6] [2009] VSC 596.
Between paragraphs [25] and [33] Kyrou J stated:
There is a presumption that a person of full age is capable of managing his or her own affairs, which must include the management of litigation to which he or she is a party. The person who alleges the contrary bears the onus...
There is no universal test for determining whether a person is capable of managing his or her affairs. Lack of capacity is usually denoted by a person’s inability to understand the nature of an event or transaction when it is explained. In relation to litigation in which a person is a party, the person must be able to understand the nature of the litigation, its purpose and its possible outcomes, including the risks in costs...
The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another...
Where a person is a party to a proceeding and is legally represented, he or she will be incapable of managing his or her affairs in relation to the proceeding if he or she does not have the mental capacity to understand the nature of the acts or transactions in respect of which he or she needs to give instructions to the lawyer...
Where a person is a self-represented party to a proceeding, the level of mental capacity required to be a “capable” litigant will be greater than that required to instruct a lawyer because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation...
In my opinion, where a plaintiff is self-represented, the following issues are potentially relevant in determining whether he or she is a person under disability for the purposes of r 15.01 of the Rules: (my emphasis):
(a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?
(b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?
(c) Is the plaintiff capable of assessing the impact of particular evidence on his or her case?
(d) Is the plaintiff able to understand the Court processes and the basic rules for conducting his or her case when these matters are explained to him or her?
(e) Is the plaintiff able to understand Court rulings made during the trial when they are explained to him or her?
(f) Assuming the plaintiff is able to understand Court processes, the basic rules of conducting his or her case and Court rulings, is he or she capable of complying with them and directions given by the judge?
(g) Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse?
(h) Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)?
(i) Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her?
(j) Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her?
(k) If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view?
(l) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submissions and other developments in the proceeding as at the time the proposal is made?
(m) If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff’s physical or mental health?
A self-represented person who is incapable of continuing to act as his or her own advocate is not necessarily incapable of managing his or her affairs in relation to the relevant proceeding, as that person may be capable of retaining legal representatives to continue to conduct the proceeding.
Having considered the Slaveski matter, Nicholson J concluded that before exercising his discretion to order an inquiry, he needed to be persuaded that in the context of the matter, and considering the evidence, he had a real apprehension that the plaintiff may be a ‘person under a disability’.[7]
[7] [2015] SASC 91 para [20].
The issue in the matter before me has an extra dimension as consideration must also be given to whether the plaintiff is mentally fit to continue conduct of the trial in light of his position that his depression has returned and he cannot proceed with the trial as an unrepresented litigant. The plaintiff put this to me on the basis that there is no balance or fairness in the trial as being unrepresented he cannot compete with the defendant’s ‘army of lawyers’. He also put to me at times that the defendants counsel was torturing him by his cross-examination and destroying his health.
On Monday 15 July 2019, I found that I was persuaded that there was a real apprehension that the plaintiff as an unrepresented person, was a person under a disability with respect to this litigation.
Some of the factors that led to my decision are set out in paragraph 6 above. In particular that on the first day of trial, despite having been involved in this litigation since 2004.
1.the plaintiff:
(i) arrived at court with no documents at all;
(ii)told me he had arranged no witnesses to attend court and give evidence. This included no lay witnesses, not even his wife or children;
(iii) told me he had arranged no expert witnesses for trial;
(iv)had not issued any subpoenas for witnesses to attend trial, despite me giving leave for him to do so.
2.the plaintiff told me consistently throughout the first four days of hearing that he was unwell; could not sleep; had severe and consistent headaches; could not concentrate and his memory was impacted;
3.the plaintiff refused to open his case and did not tell me what he was seeking from his claim by way of damages;
4.for large parts of his cross-examination the plaintiff refused to answer questions or stated he did not remember;
5.the plaintiff on multiple occasions described the defendant’s counsel and instructing solicitor as being corrupt, and that I was biased in their favour
6.the plaintiff was often emotional and agitated at the bar table and in the witness box;
7.the plaintiff did not seek to have an interpreter in court despite claiming he could not read English and could not easily understand spoken English;
8.the plaintiff refused to accept documents provided to him by the defendant’s counsel that were, or were to be tendered as evidence. On one occasion, he described these as ‘poison’, despite them being a copy of his own medical records; and
9.the plaintiff’s General Practitioner, Dr Mascolo had provided a brief letter to the court dated 11 July 2019 stating that the plaintiff was suffering an exacerbation of his previous Major Depressive Disorder and that, in his opinion, he was not currently fit to go through the legal/motor vehicle claims.
In making my decision to proceed with an inquiry into the plaintiff’s capacity, I took into account the fact that the plaintiff is not represented, and the comments of Kyrou J that a person who is self-represented requires a greater level of mental capacity to be a ‘capable litigant’, given the need to manage court proceedings in what is a stressful situation, and one they are not familiar with.[8]
[8] Slaveski v State Victoria [2009] VSC 596 at [31].
I also considered whether the plaintiff had deliberately set about to disrupt the trial in this matter, given he had been unsuccessful in his application to adjourn the trial, and unsuccessful in his application taken in the Supreme Court to stay my order dismissing his application to adjourn the trial.
Counsel for the defendants submitted that the trial should not be adjourned based simply on Dr Mascolo’s brief letter as the referral to the psychiatrist was put no higher than the plaintiff ‘seemed’ to have slipped back into a depressed state, and this was based only on the plaintiff’s subjective complaints. This was in contrast to an opinion of Dr Tony Davis, consultant psychiatrist, who saw the plaintiff on 24 June 2019, that the plaintiff was then suffering no psychiatric illness. The defendants position was that the matters raised by Dr Mascolo meant on the face of them that the trial was to be adjourned again. In their submission, given the previous orders that the trial should proceed, Dr Mascolo’s medical opinion should be tested through cross-examination.
In all the circumstances, and particularly given the plaintiff’s behaviour in court and his complaints of depression as supported to some degree by the letter of Dr Mascolo, I was persuaded that there was an apprehension that the plaintiff may be a person under a disability with respect to the litigation presently before the court. I therefore directed that the trial of the substantive issues in this matter be suspended, and that there be an inquiry as to whether or not the plaintiff is a person under a disability.
The Evidence on Inquiry
The Inquiry proceeded over eight days between 17 July 2019 and 13 August 2019, with adjournments to accommodate witnesses, assessments by forensic psychiatrists and the plaintiff’s medical appointments.
The first evidence given at the enquiry came from Dr Mascolo. He is not the plaintiff’s regular GP, but works at the same clinic. He has seen the plaintiff whenever his regular GP was unavailable. He likely saw the plaintiff six times over the preceding six months, and told me that until the preceding Thursday there had been no concern raised about the plaintiff suffering any relapse into depression.
Dr Mascolo gave evidence that when he saw the plaintiff on Thursday, 11 July 2019 he was with the plaintiff for approximately ten minutes, and during that time had recorded his notes and drawn the referral to Dr Bem. The plaintiff presented as being quite anxious and not his normal relaxed self. His sentence structure was not as it normally was and he was taking more time than he expected to put sentences together. Dr Mascolo also noted that the plaintiff kept clearing his throat, which to him indicated that he was agitated or anxious. The plaintiff expressed his concern at not being able to sleep over the preceding three weeks, and that his concentration had been poor. When asked if there was a trigger for these symptoms the plaintiff told Dr Mascolo that he was going through a legal court case to do with motor vehicle accidents. He did not however tell Dr Mascolo that he was in a trial and under cross-examination. Dr Mascolo gave evidence that he had never prescribed any medication for any psychiatric condition suffered by the plaintiff, although the plaintiff told him that he had seen a specialist in the past and had been prescribed Effexor. Dr Mascolo did not conduct a full mental state examination, explaining that he is a general practitioner, not an expert in depressive mood disorders. This was the reason that he referred the plaintiff onto a psychiatrist.
The plaintiff was given the opportunity to ask questions of Dr Mascolo but refused. Counsel for the defendants then cross-examined him. Under cross examination Dr Mascolo told the court that although it was difficult to assess the extent of the plaintiff’s depression, when he had seen him he was of the view that the plaintiff should not be exposed to further contributors to his distress and anxiety and face a potential relapse into depression by proceeding with his court proceedings. Dr Mascolo also explained that the plaintiff’s behaviour in describing doctors who he had seen for the defendant as being corrupt and/or demented, and the defendant’s counsel and client as being corrupt could all be part of a mood disorder. In relation to the plaintiff’s behaviour at the bar table, namely sitting with his eyes closed for some of the time and then making lengthy objections to questions, Dr Mascolo considered that this could be evidence of a labile mood disorder.
The cross-examination of Dr Mascolo by the defendants’ counsel was interrupted on multiple occasions by the plaintiff who objected to all lines of questioning. The plaintiff put to me that the defendants counsel was trying to discredit Dr Mascolo. I often had to overrule those objections pointing out that counsel was simply testing the evidence, particularly in relation to the extent of the plaintiff’s current mental illness. However, the plaintiff continued his objections, and became critical of the inquiry process being undertaken. The plaintiff criticised the defence counsel for making his mental condition worse, and stated that the trial should stop as it was a mockery.[9] When I indicated that the Inquiry would continue, the plaintiff stated that my decision was not final, and that he would take the matter to the Supreme Court, then the High Court and then the European Human Rights Commission. He then accused the defendant’s counsel of playing with words and asking tricky questions,[10] and suggested that the defendants counsel was making allegations that he had coached Dr Mascolo regarding his opinion.[11] The plaintiff again said that the cross-examination was an ‘absolute mockery’ and that the cross-examination was ridiculous.[12] He put to me that the cross-examination was not fair, that it was completely unjust; that everything was twisted to the insurance company’s benefit and that there was an army of lawyers against somebody who had nothing. The plaintiff then stated he was not really sure what was going on and that the trial was going to be adjourned because of his mental health, even if the matter went to the High Court.
[9] TX p442.
[10]TX p451.
[11] TX p452.
[12] TX p454.
The plaintiff said that he was functioning at 100% until the previous five weeks when he was required to come to court without legal representation. He stated that “I don’t know why do I have to come here. This is wrong, wrong, wrong. This is no balance to this trial.”.[13]The plaintiff told me that his psychiatrist, Dr Bem had put his life back together (after the criminal charges) but that had changed when I had insisted that he run his case when he could not read documents, did not have funds and didn’t have anything. He stated that I had prevented him from getting funds from overseas and, as a result, his depression had relapsed. Everything had gone bad in his life.
[13] TX p456.
It was clear from the ongoing objections being made by the plaintiff that he was of the view that the only relevant issue was the letter of Dr Mascolo stating that he was not fit to currently continue with the proceedings. The plaintiff became upset when the defendants counsel attempted to put some context around the plaintiff’s worsening mental state by referring to previous adjournments of the trial in 2015 and 2017 and my refusal to adjourn this trial prior to its commencement. By his continuous objections, the plaintiff sought to limit cross-examination of Dr Mascolo solely to his recent examination of the plaintiff. He repeatedly put that he was suffering badly, that he had not slept for three and a half weeks, that he was suffering depression and that was all that should be accepted.
The plaintiff also objected to questions on the basis that the defendants counsel was trying to put words in Dr Mascolo’s mouth and was trying to influence Dr Mascolo. When I allowed the cross-examination to continue the plaintiff threatened to go home as the cross-examination was ‘one way traffic’.[14]
[14] TX p448.
In between the continuous objections of the plaintiff, Dr Mascolo confirmed that over the thirteen year period that the plaintiff had been a patient at the clinic where he worked until the commencement of the trial on 8 July 2019, apart from one note of some anxiety of 5 June 2012, the plaintiff had never complained of any psychiatric issues or psychological symptoms. From the bar table the plaintiff confirmed that history. The plaintiff indicated that he did not complain to his doctors of any psychiatric symptoms because he was seeing his psychiatrist, Dr Bem for those. Dr Mascolo said that there were no letters on file from Dr Bem regarding the plaintiff’s progress, and that until he had seen the plaintiff on 11 July 2019, he was not aware that he had any history of severe depression. He therefore based his opinion and letter to the court only on the subjective symptoms put forward by the plaintiff at the consultation and the history that the plaintiff provided. However, his feeling on the day that he examined the plaintiff was that he was not comfortable with him being at court, and going through a legal case without having had a proper assessment from his psychiatrist who had known him for some time. Dr Mascolo did concede that, although the plaintiff was displaying some signs of a psychiatric condition, he did not make any diagnosis in that regard.
Dr Mascolo also conceded that, in coming to his conclusion regarding the plaintiff’s functioning, he was not aware of the extensive procedural history of this case, nor the multiple adjournments of the trial. In those circumstances, he conceded that secondary gain may have potentially been an issue for the plaintiff in making his complaints.
The plaintiff became particularly agitated with this line of questioning.[15] When I overruled the plaintiff’s objections and allowed the defendants counsel to continue with his questions the plaintiff complained that I was always against him. The plaintiff became similarly agitated when Dr Mascolo was asked questions regarding the plaintiff’s level of recent activity and whether that was consistent with depression. The defendants counsel put various scenarios to Dr Mascolo which made it clear that the plaintiff was being surveilled by the defendants. It was suggested that from 24 June 2019 through to 9 July 2019 the plaintiff had spent periods of time in various hotels and gaming rooms, TAB premises, the Vibe Adult Shop and visiting residential and commercial premises. It was suggested that such activity was not consistent with a severe depression and with the plaintiff’s evidence that he had not slept at all for three weeks.[16]
[15] TX p467 and p471.
[16] TX p474-p484.
Dr Mascolo agreed that it was absurd to say that the plaintiff had not slept at all for three weeks and he expected that he had suffered from broken or poor sleep. He also agreed that the level of activity put to him was not consistent with a severe level of depression or melancholy. However, he did give evidence that, as gambling is an addiction it could be part of his mental illness.
The plaintiff again became very agitated by this line of questioning. He described the tactics of the defendants as cheap and the lowest of the low.[17] He put to me that in attending at gaming facilities and hotels he was trying to find some relief from his miseries. He also wanted to make it clear that he attended at the adult shop to visit a friend who owned that establishment. He felt bullied by the fact that he was being followed, and this was worsening his depression.
[17] TX p476.
In relation to the plaintiff’s capacity to conduct the trial, the defendants counsel put to Dr Mascolo several ways in which the plaintiff had responded to procedural issues during the trial. Dr Mascolo agreed this indicated a level of intellectual acuity and cognitive sharpness, and a good long-term memory. Finally, Dr Mascolo agreed that given the plaintiff’s behaviour in court while he was giving evidence, namely taking legal points and paying attention to the proceedings, the plaintiff appeared to have capacity to take action to protect his interests.[18]
[18] TX p491.
Dr Bem, psychiatrist, was the next medical witness to give evidence. He told me that he had not seen the plaintiff since February 2018 but that he had recently received a new referral from Dr Mascolo. Dr Bem treated the plaintiff from September 2004 until February 2018, consulting with him every three to four months.
Dr Bem’s evidence was that as at February 2018 the plaintiff was not suffering a psychiatric illness, and since that time he had not prescribed any medication for him. The plaintiff had remained stable without evidence of clinically significant depression or any other psychopathology between 2013 and February 2018.
Dr Bem told me that the plaintiff had a period where he suffered from severe depression and lacked capacity to provide instructions to lawyers. This was between 2004 and 2007. However, Dr Bem could not comment on the plaintiff’s current psychological or psychiatric status.
The previous psychiatric illness, suffered between 2004 and 2007, was of a severe depressed state with evidence of psychomotor retardation and heightened anxiety. This had led to a loss of energy, motivation, loss of appetite, social withdrawal and cognitive impairment. The plaintiff had also reported psychotic experiences and quite high levels of paranoia with auditory hallucinations and visitations from his deceased parents. At the time, there were reports suggesting that the plaintiff had lost touch with reality and he was using very high levels of alcohol.
In cross-examination, Dr Bem was taken to a report of the psychiatrist Dr Davis of 28 June 2019 where he had noted in relation to the plaintiff (whom he saw on 24 June 2019) that a history had been given that in recent weeks he had become mildly anxious and dysphoric as he prepared for these court proceedings. Dr Bem agreed that that was not particularly unexpected given the stressors attached to such a process. However, he agreed that on the basis of Dr Davis’ findings, which he had no reason to question, it certainly appeared that as at 24 June 2019 the plaintiff was not suffering a clinically diagnosable psychiatric condition, and that he had legal capacity at that stage. Dr Bem went on to give evidence that it would be unusual that any significant impairment to capacity would have developed in the three weeks thereafter. In relation to the procedural history of this matter and the plaintiff’s applications to adjourn the trial, Dr Bem considered that such a background was a relevant factor in reviewing the plaintiff’s presentation during the first week of trial. He agreed that the background and the plaintiff’s behaviour could raise the question of secondary gain.
The defendants counsel put to Dr Bem the plaintiff’s various activities from 24 June 2019 to 9 July 2019, particularly his regular attendance at hotels and gaming establishments, his attendances at an adult shop, the TAB and a friend’s home. Dr Bem agreed that the level of activity set out was not what he would expect if a person was suffering from a disabling psychiatric condition. In particular in the context of a significant depression, there is usually a significant loss of energy and motivation, or pathological anxiety symptoms where there is a tendency to withdraw socially and avoid venturing into public spaces. Dr Bem stated:
…those behaviours would actually be somewhat unusual in an individual with a higher level of depression or anxiety. Saying that, occasionally if someone is in a less severely depressed state, in an attempt to moderate their emotional distress, they will go and gamble, play the poker machines for periods of time as a distraction type technique.[19]
[19] TX p507.
Dr Bem’s evidence was that what was being described to him was a high level of social interaction, which in his opinion was out of character for someone who was suffering a major depressive disorder.[20] In relation to the plaintiff’s activities after days in court on 8 and 9 July 2019, Dr Bem agreed that the level of post-court activities were not characteristic of a person suffering from a significant psychiatric condition, or of someone who was complaining of insomnia, concentration, and memory problems.
[20] TX p508.
Dr Bem also agreed with the defendants counsel that the way the plaintiff had asked questions during the trial, made objections, reserved his rights on some issues, suggested that I disqualify myself on the basis of bias and asked for evidence to be recorded on the transcript, displayed a degree of cognitive sharpness and intellectual acuity. He also agreed that the way the plaintiff had conducted the trial portrayed an understanding of his legal rights and an awareness of what he needed to do to protect his position, when taken by the defendant’s counsel to various parts of the evidence. When taken to evidence where the plaintiff had reserved his right to challenge the admissibility of taxation returns in the future, Dr Bem agreed that that evidence “certainly attests to a relatively sophisticated manner of thinking about the process that is taking place here…”.[21]
[21] TX p515.
The defendants counsel attempted to put questions to Dr Bem regarding the plaintiff’s memory of matters that occurred many years before. The plaintiff objected to those questions and argued with the defendants counsel regarding the evidence and what had been put, displaying a good memory for matters that occurred 17 years previously.[22] Dr Bem agreed that those matters appeared to be an example of an intact long-term memory.[23]
[22] TX p515-p520.
[23] TX p517.
In relation to what Dr Bem had witnessed in court during his evidence, and particularly in relation to submissions made by the plaintiff and his objections to questions put by the defendants counsel, Dr Bem said that, whilst it was a narrow window, there was some credibility to the defendants position that the plaintiff had capacity to understand the trial process. He went on to give evidence that the plaintiff did appear quite distressed, or a bit anxious and agitated but that was quite appropriate given the context of what was happening in court. In relation to the plaintiff’s complaints of loss of memory, headaches, inability to read and loss of concentration suffered since the commencement of trial, Dr Bem’s evidence was that this could be related to the stress associated with preparing himself for trial without him necessarily becoming depressed.
When asked if he had any questions for Dr Bem the plaintiff made a lengthy statement whereby he complained about the stress of the trial and the fact that he was being followed by the defendants investigators, and that he felt bullied and out of control. He said that he went to hotels to run away from home as he does not drink and does not gamble. He went out to visit friends, and his friend who owns the adult shop, who had recently suffered a tragedy with his daughter committing suicide.[24]
[24] TX p524-p526.
The third doctor to give evidence during the Inquiry was Dr Tony Davis, a forensic psychiatrist who had reviewed the plaintiff on four occasions at the request of the defendants. Those occasions were in 2014, 2015, 2017 and on 24 June 2019. Dr Davis gave evidence that the plaintiff did not demonstrate any clinical signs of anxiety or depression, or psychiatric illness at any of those reviews.
In relation to the most recent assessment on 24 June 2019, Dr Davis confirmed that the plaintiff presented in an engaging manner, was articulate and fluent, composed and attentive and there was no impairment of speech, thought process, perception or cognition. However, he reported being more anxious and dysphoric (suffering low mood) in recent weeks, although he was not overtly anxious or depressed. Dr Davis was of the opinion that there was likely some lowering of mood in the context of the stressors related to the trial, however those signs were not of sufficient intensity or duration to meet the diagnostic criteria for a full-blown psychiatric disorder. Dr Davis gave evidence that it was his opinion that when he reviewed the plaintiff on 24 June 2019 he had capacity in the context of the legal proceedings, and that the plaintiff was capable of proceeding with presentation of his case, rationally and carefully.
Dr Davis also said that the plaintiff’s presentation to Dr Mascolo was consistent with his presentation to him on 24 June 2019. That was that he had reported anxiety, insomnia, and being under stress. Dr Davis said that the signs reported by Dr Mascolo were likely an overt lowering of mood and slowing of cognition, and were common reactive symptoms following exposure to stressors. These symptoms were expected given the stress of preparing for trial without legal representation.
Dr Davis was asked in cross examination to comment on the context of the plaintiff’s presentation on 11 July to Dr Mascolo, given the history of adjournments in relation to the trial of this matter, the plaintiff’s failed application before me to obtain an adjournment and his failed application before Justice Kelly to obtain a stay of my order. Dr Davis was asked whether, in assessing the plaintiff’s mental state, it was important to know the background history. He agreed that it was and that it raised a very big red flag about the possibility of a secondary gain associated with the plaintiff’s presentation to his GP on 11 July 2019.
As with the other two medical witnesses, Dr Davis was asked to comment on the level of the plaintiff’s activity between 24 June 2019 and 9 July 2019 in relation to his attendances at hotels, friend’s premises and other places. He agreed that the plaintiff’s level of function and activity was not consistent with a person suffering a depressive disorder, or any other psychiatric disorder.
As with the other medical witnesses, Dr Davis was also taken to the various instances of the plaintiff putting submissions to the court about legal matters, or making objections to evidence during the trial. He agreed that many of the matters put to him suggested that the plaintiff displayed a degree of cognitive sharpness and intellectual acuity. He also agreed that the matters put to him suggested that the plaintiff displayed a reasonably serviceable memory, an understanding of legal proceedings, and the capacity to deal with issues as they were presented, such as the need for me to disqualify myself and whether I had shown a level of apprehended bias. The plaintiff’s statements that he reserved his rights on certain matters demonstrated a familiarity with legal procedures.
Based upon the evidence from Dr Bem; the GP surgery notes and Dr Davis’ own reviews; in addition to the recent matters in relation to the conduct of the proceedings and the plaintiff’s level of recent activity, Dr Davis was satisfied that the plaintiff had capacity to conduct these proceedings.
Dr Davis opined that the plaintiff would have the mental ability to make rational decisions about the prosecution and, resolution of his claim. When asked what he took into account in determining that the plaintiff had capacity, Dr Davis said that he had regard to his mental state, mood state and cognitive state, together with the cognitive capacity to process information, and think through what was happening in the proceedings. He went on to note that from everything that had been put to him, there appeared to be a high level of mental acuity and understanding of the proceedings; a capacity to recall relevant legal information going back about a decade, and a capacity to understand some of the subtleties of process and what points he needed to direct the transcript recording on. In his opinion, this pointed to a high level of cognitive capacity which he would not expect from someone suffering a severe depressive condition. Dr Davis also agreed that the plaintiff interrupting evidence to make objections and to ask questions highlighted mental sharpness and a capacity to talk clearly and to debate and challenge. It did not reflect the mental state of someone who was struggling with disabling psychological symptoms. In summary, Dr Davis stated that from what he had heard the plaintiff was capable of proceeding and conducting the case.
Plaintiff’s Conduct during Inquiry
During the Inquiry the plaintiff generally refused to ask questions of the medical witnesses, but regularly objected to questions put by the defendants counsel. I have set out above some of those objections to the questions put to Dr Mascolo and his responses. On the afternoon of Wednesday 17 July, after the evidence of Dr Bem, there was discussion with counsel for the defendants regarding the evidence of the former solicitor for the plaintiff, Ms Emanuele regarding delivery up of the plaintiff’s file. The defendants counsel submitted that during the trial the plaintiff had at one stage acknowledged that he had material but he could not read it, but then had said on multiple occasions that he didn’t have his file material. Ms Emanuele had filed an affidavit dated 7 June 2019, attesting to the fact that the plaintiff had collected all of his files from her firm, Tindall Gask Bentley.
The plaintiff participated fully in that discussion regarding his file and what had happened to it. He also told me of a conduct complaint which had been made against Ms Emanuele and his ability to obtain file material from other solicitors if he paid $1700 for copying.[25] Some of the relevant transcript is as follows:[26]
[25] TX p529-p534.
[26] TX p531.
HER HONOUR: … Mr Draoui, what Mr Day is recommending - the issue of your file and extent of material you have is a real issue in dispute and to some degree goes to credibility. One suggestion is, and I’ve put it to you before, that we actually called Ms Emanuele to give evidence, and she can give evidence on oath in court as to what has been provided to you and you can put to her your view of that. Mr Day is suggesting that that does go to this issue of mental competence.
MR DRAOUI: … Well your Honour I even contact Mr Flower. I said to him ‘Tindall Gask they don’t give me the file, do you have a copy?’, he said ‘Yeah, well I have to charge you for it. You can make an order for it.’ I even contact Hume & Taylor, he said to me ‘I don’t have’, I contact Georgiadis, they said the only one have Simon Flower.
HER HONOUR:… Does he have the 16 boxes of documents?
MR DRAOIUI:… Yes they have all my files of when he gave it to Gary Inglis he left to photocopy with, which if you can make an order for him to bring the file I am more than happy to. He wanted-… They said I have to pay $1700 for photocopies.
HER HONOUR:… That may be an issue for the trial going forward, but the issue that Mr Day is raising - because what I am looking at is what we need to do further on this application regarding your mental competence to run the trial.
MR DRAOUI:… Okay, we leave it until after this your Honour.
HER HONOUR:… Well, the only thing is there is clearly a credibility issue between you and Ms Emanuele; she says she did provide it to you, you say ‘You haven’t’.
MR DRAOUI:… Your Honour, why should I deny it? I am happy I am sitting here, send someone to my house to see if there was any files.
HER HONOUR:… No, I’m not going to do that
MR DRAOUI:… I only got photocopy the one I have the opportunity to photocopy.
HER HONOUR:… Yes. Mr Draoui, if Ms Emanuele was called to give evidence sometime this week or early next week regarding your file?
MR DRAOUI:… Whatever you please.
The plaintiff also mentioned his Conduct Board complaint against Tindall Gask Bentley, advising me that he had a meeting the following week with the Conduct Board and the boss of Tindall Gask Bentley. The plaintiff told me that the complaint concerned the costs of his case and the fact that the firm withdrew halfway through the trial because he did not have any money. He advised me that the meeting was a negotiation as Tindall Gask Bentley had agreed to reduce or waive their costs.[27]
[27] TX p533.
There was then discussion with the plaintiff regarding the surveillance which had been conducted by the defendants. This was in the context of the defendants counsel calling evidence to prove that surveillance. The plaintiff told me that he was aware of the surveillance and had taken the registration number of the car that followed him.[28]
“… We did and there was something in my car to; they put something in my car. I went to surveillance company - actually I bring them for the trial your Honour - and the other thing, Google, because my phone under my son’s company name, Google, my son requested if this particular firm been requested what am I about, although sorts of things, anyway I can’t understand it, my son follow it up, and they - my son searched if there is any devices in my house or on my daughter’s car, but they legally liable for it.”
[28] TX p534-p535.
From that point through to the end of proceedings on Wednesday 17 July there was much discussion with the plaintiff regarding how the surveillance film was to be proved and whether he would give evidence in relation to his activity and what he had been doing, including attending hotels, gambling establishments etc. Ultimately, the plaintiff refused to be cross-examined by the defendants counsel and agreed that the surveillance operators would need to be called to confirm their evidence, despite admitting that he had attended at the places that the defendants counsel had put to the medical witnesses in cross examination.
At pages 573 to 577 of the transcript the plaintiff asked questions of Dr Davis in relation to his mental capacity as follows:
MR DRAOUI:… I’m not going to bore you with my rubbish. Sometimes you can live without…. but without dignity, without conscience you can’t live. I’m not a lawyer. As you see I’ve got an army of lawyers here against somebody from a non-English background and if you remember when I saw you about two weeks, three weeks ago, I was good isn’t it?
DR DAVIS:… Yes
MR DRAOUI:.. I was mentally stable
DR DAVIS:… Yes
MR DRAOUI:… Yes, and I think I described to you I have lack of sleep and I have short memory and I, physically, is not as good as I used to be. If you remember I said to you I can’t sleep because I’m with no legal representation.
DR DAVIS:… Yes
MR DRAOUI:… It could affect me and you’re asking me if I have a problem with gambling. I said ‘No’. When I come here the only place I feel safe and try to take my mind off, I go to hotel. Whether I gamble or I don’t gamble, when I go there I feel my mind off from this things and he can put the question to you which I don’t know whether he mislead you or he can put the question - because he’s a lawyer. He can put the questions as much as he want or as much as you want. I am sure, I think I said to her Honour you’re the only doctor I like and I love to have conversation with you. Do you believe that depression can trigger at any moment?
DR DAVIS:… At any moment? Yes it can be activated by various circumstances.
MR DRAOUI:… You don’t think that the complex case is where by myself, here, I don’t even - I can’t even read documents; I can speak but I can’t read documents. Do you think it’s that pressure on me could relapse my depression.
DR DAVIS:… Potentially
MR DRAOUI:… When I was under supervision or, no, before the trial finished with my criminal case I got the police visit, sending spies, and… Exactly what they’re doing. Don’t you think that sort of conspiracy behind me could relapse the depression. I, last night, for Mr Day sent helicopter on top of my house. This spying on me and I was terrified all night. I didn’t go anywhere. Then he’s told you I went to West Lakes Boulevard then I went to Costco to do shopping. The other thing when he told you about the WorkCover to come… I remember. Actually, I didn’t say that to her Honour. Her Honour said these two files from WorkCover. One, I said, then I said to your Honour ‘Can I have a copy of it?’ That’s what I said. I never remember what, when or where or - then he talk about the tax return. When I start I have my memory. I said to her Honour not since 1984. Right. I’ve smelled corruption here…….. Then they took my medical notes. I still don’t know how they got it. I don’t know how they got it but her Honour said there is an order from the court and I just - I just feel absolutely terrible. I am not running away from my responsibilities. I’m the one who take them to court and now 2015 he failed to tell you when I… The court, they said I was under supervision; only allowed to travel two weeks from the Parole Board. I went there; two weeks; I was 10 days in the hospital. I suffered from gastro and even the plane cannot carry me. I sent him a copy of the hospital report, the doctor reports and the airline report and to the court. He failed to do… 2017
HER HONOUR:…. Mr Draoui, that’s not correct. Part of that is correct but you do know that after that the case was adjourned a couple of days. You had counsel, you had your solicitors and you dismissed them…It wasn’t just delayed, that wasn’t the sole reason for the adjournment.
MR DRAOUI:… Yeah, I’m glad you remind me…. I did not say to you, just as Judge Tracey, I ask her to - she said I know some of the witnesses; I could disqualify myself. I didn’t say that. I said to you, and Judge Kelly said I can’t run the trial because you don’t have representation and how you going to ….. I’m going to put the case off until you…. And you have the money to run the trial. That’s what she said. I didn’t say that…. Yeah anyhow, I just said I wasn’t allowed to travel. 2006, I wasn’t allowed to travel. 2008, I wasn’t allowed to travel. 2011, I wasn’t allowed to travel. 2013 I wasn’t allowed to travel. 2015, finally they gave me two weeks. Was 10 days in the hospital and come back here. I now try to build my life. I try to - I’m a grandfather as I mentioned to you. I try to, as much as I can. I am very sure, Doctor, somebody like me with an army of lawyers, of course my depression could relapse any minute and I am, as I said last night, sent a helicopter around my house. Enough -
Following that exchange between the plaintiff and Dr Davis there was then further discussion regarding the continuation of the Inquiry into the plaintiff’s capacity to continue the trial without a litigation guardian. The plaintiff insisted that I accept the word of Dr Mascolo regarding his inability to continue with the trial, and his need to be referred to a psychiatrist. The plaintiff became increasingly agitated, alleging that I was acting as a defence lawyer and that the Inquiry was not fair. He said that it was for the psychiatrists to determine capacity and it was not a decision I should make. The plaintiff stated:
“…then I’m in trouble. If all the ultimate decision. Well, I want the ultimate decision to the medical officers not to the judge and this has been challenged.”[29]
[29] TX p583.
When I attempted to explain that there were other factors to take into account over and above medical factors, the plaintiff responded by saying:
“…there is not different factors, same things. When somebody cannot give evidence because he’s not feeling good exactly the same with criminal matters.”[30]
[30] TX p583.
On Friday, 19 July 2019 the matter was adjourned to allow for further review of the plaintiff by Dr Davis, Psychiatrist, to take place on Monday, 28 July 2019. The plaintiff indicated that he was happy to see Dr Davis and that he trusted him and his opinion.[31] However, the plaintiff also put to me that he wanted to see his own psychiatrist, Dr Bem. I indicated to him that he had been referred to Dr Bem and it was open to him to make an appointment to see him. Despite having been referred to Dr Bem by Dr Mascolo on 11 July, the plaintiff had not yet made an appointment.
[31] TX p594.
During this hearing, the plaintiff also indicated to me that he had met with a lawyer friend and he handed to me a piece of paper with a list of items that should be provided to the plaintiff in relation to the defendants surveillance of him. The plaintiff and I had an exchange regarding discovery of reports and film the defendant solicitors held in relation to surveillance.[32] The plaintiff put to me as follows:
MR DRAOUI:… My question here, these investigators been employed by the lawyers or the insurance companies then I have the right to obtain this report, their handwriting, the diaries, when they have been employed, what electric devices they use, all that sort of things. I have the right your Honour, for this.
[32] TX p596.
When I indicated that was not the correct legal position the plaintiff stated
“…well, when I have the lawyer, I think you’ll have a different opinion, your Honour”.[33]
[33] TX p596.
When I took the plaintiff to the Civil Procedure Rules he indicated that his lawyer friend had read the same book to him and told him that the insurance company cannot just lump something on him and the judge agree with them. He went on to tell me, that if I didn’t provide the documents the lawyer had requested, the matter would be taken to the Supreme Court. The plaintiff refused to tell me the name of the lawyer, simply indicating that he was a ‘QC’.[34]
[34] TX p597.
Thereafter, for almost 30 minutes, the plaintiff argued with me about matters such as his ability to give further evidence in the witness box when he is not fit for trial; that I was prepared to adjourn the matter to allow Ms Emanuele to be represented by counsel when I would not allow him to be represented by a lawyer; that I should order a report from Dr Bem to be fair; that I had allowed the defendants counsel to speak with Dr Davis before he gave evidence and that this was coaching a witness; that it is only the sick or the poor that don’t win cases or who go to jail; that if the plaintiff had a lawyer he would be able to defend his case; that he was at a disadvantage because he could not cross-examine Dr Davis or any of the other doctors; and generally in relation to the way the trial had proceeded to date.
The plaintiff put the following to me in relation to disclosure of documents held by surveillance operators:[35]
MR DRAOUI: Whoever I take, he will read it to me and explain it to me. This have to - your Honour, you focus on something which really is not relevant to my question, your Honour. My question here, these investigators been employed by the lawyers or the insurance companies then I have the right to obtain this report, their handwriting, their diaries, when they been employed, what electronic devices they use, all that sort of things. I have the right, your Honour, for this.
HER HONOUR: Well, that's actually not right. Under the rules, discovery actually specifically excludes investigation reports.
MR DRAOUI: Well, when I have the lawyer, I think he'll have different opinion, your Honour.
[35] TX p596.
The discussion regarding discovery continued as follows:[36]
HER HONOUR: Thank you. All right, Mr Draoui, this is what the rule says. It's rule 136, sub-para.(6), in relation to discovery of documents: 'Unless the court otherwise ... of the action.' And then communications in relation to that film and those investigation reports which are provided solely for the purpose of this litigation. That's in the rules.
MR DRAOUI: Yes, but the court have the right to order.
HER HONOUR: Well, I would need to have a -
MR DRAOUI: He read the same book to me, this same solicitor.
HER HONOUR: I need to have special reasons. If you've got a lawyer to put this argument, then he should be here.
MR DRAOUI: Well, it has sooner or later having to be lawyer because, your Honour, I would - fifteen witnesses to come if the trial continue.
[36] TX p597.
The plaintiff then challenged the Inquiry process:[37]
HER HONOUR: Mr Draoui, this is a process we're going through to determine -
MR DRAOUI: This is a process you're inventing for me, especially for me.
HER HONOUR: That's actually not the case. I was trying to tell you of a case where in the Supreme Court it was done this way.
MR DRAOUI: For there the Supreme Court, your Honour here.
HER HONOUR: No, we follow what a higher court does.
MR DRAOUI: What about the Supreme Court 23 August find you wrong?
HER HONOUR: So be it. Well, if they find me wrong we manage it. You always have a right of appeal from this court.
MR DRAOUI: You cost me a lot of money last week to do two applications. Money, I don't have which you can fix this problem on the spot. I have to borrow $6,000 for two applications. It is not fair. I'm a pensioner. You cost me a lot of money. This people can pay whatever money they want.
[37] TX pp610-611.
The plaintiff continued to challenge the process and the weight of the evidence of Dr Davis and Dr Bem and said:[38]
[38] TX pp615-616.
MR DRAOUI: That doesn't apply to me, that does not apply to me, it does not apply to me. What apply to me, every judge in this court, when somebody not fit for trial or his claim or suspicious, order three reports, for the criminal or civil; three - one his own doctor and two independent doctors. Actually neither Dr Davis or somebody from outside should be brought before Dr Bem because Dr Bem he treat me for 13 years.
HER HONOUR: Are you now telling me Mr Draoui that you are refusing to attend -
MR DRAOUI: I didn't say that, I didn't say that.
HER HONOUR: So, your -
MR DRAOUI: I will go to Dr Davis happily, right, but at the same time, and still you put in your transcript, I want you to put to the transcript Mr Draoui should have minimum two reports - not only one report your Honour, this is one-way traffic - not only report, should be two reports.
HER HONOUR: Mr Draoui if -
MR DRAOUI: If you quit calling Mr Draoui - your Honour this is law, I need two reports, not only one-sided.
HER HONOUR: What law?
MR DRAOUI: In any court here. When somebody have problem like me they would have three reports.
HER HONOUR: What law?
MR DRAOUI: Australian law.
HER HONOUR: It's not in the rules of this court -
MR DRAOUI: Well maybe you know the law by yourself different from other judges your Honour.
HER HONOUR: It's very different to the criminal procedures and that's what -
MR DRAOUI: No, in civil procedure. I went through this before your Honour.
and[39]
MR DRAOUI: Thank you, and I want to go to the transcript your Honour, the court have no right to dismiss my treating psychiatrist report.
HER HONOUR: That is your submission, but I am not arranging that. He is -
MR DRAOUI: I am arranging the report, I am pay for the report, I have got money in my pocket.
HER HONOUR: The same questions that I am putting to Dr Davis have to be put to Dr Bem if they are -
MR DRAOUI: Yes, please can you do it, to the doctors -
HER HONOUR: No. You want to call that evidence, I have no problem.
MR DRAOUI: No, I want you to do that letter, we want a draft addressed to Dr Bem and Dr Davis, not only Dr Davis.
[39] TX p617.
and[40]
MR DRAOUI: And the same time to be more fair - acceptable for everybody. Dr Bem is a highly forensic psychiatrist and he so many times write a report I am fit. He is not going to change his mind if I'm not fit - if I'm fit. This is why I ask your Honour to send letter to both doctors.
[40] TX p620.
When the matter next came before the court on 31 July 2018 it was planned that Ms Emanuele would give evidence. She was represented by Mr Roberts who had also been briefed by Tindall Gask Bentley to conduct an appeal in 2015 on the plaintiff’s behalf. Mr Roberts appeared amicus curiae and primarily to ensure that solicitor/client privilege was not breached by Ms Emanuele when giving evidence.
Before Ms Emanuele was called, the plaintiff objected vigorously to her giving evidence submitting:
·that she was not his lawyer at Tindall Gask Bentley, it was Mr Barney Gask and she was just his assistant;
·that in the last 48 hours there had been developments in his Conduct Board Complaint against Tindall Gask Bentley;
·that Ms Emanuel should not give evidence until Dr Davis’ report had been provided to the court; and
·he knew nothing about a subpoena to bring Ms Emanuele to court, and it should be him who called Ms Emanuele as a witness not the defendant.
During Ms Emanuele’s evidence, the plaintiff objected to questions that he believed breached his privacy.[41] He then cross-examined Ms Emanuele regarding delivery up of his file, and the legal obligation of Tindall Gask Bentley to retain a photocopy of electronic copy of all documents.[42] He put matters that demonstrated a memory of what had occurred between him and the law firm over two and a half years between 2015 and 2017. At the same time, he put an argument about the law as to discovery and privileged documents.[43]
[41] TX p627.
[42] TX pp629-632.
[43] TX p630.
After Ms Emanuele’s evidence, the plaintiff argued his application that the court formally order a report from Dr Bem regarding his mental illness and his capacity. He confirmed the application and affidavit had been drafted by a lawyer friend. There was extensive discussion in court with the plaintiff and the defendants counsel regarding arranging a report from Dr Bem.[44] The plaintiff argued that if a report was prepared by Dr Bem, then I was obliged to accept it and several times he asked that matters be put on the transcript for later consideration.[45]
[44] TX p636-644.
[45] TX pp645-649.
On 5 August 2019, the plaintiff made submissions regarding his capacity to give evidence as to his activities between 24 June 2019 and 9 July 2019 as was put by the defendant’s counsel to Dr Mascolo, Dr Davis and Dr Bem during their evidence. The following exchanges occurred:[46]
MR DRAOUI: Mr Day, sorry. Your Honour, put me in the witness box despite whatever in the medical reports and if not he going to proceed with ... that's not a court, your Honour. That's not one way - or one side - not my way or highway your Honour. I think everybody should have a wait for the medical reports and then we proceed accordingly.
Then your Honour you force me to pay for Dr Bem which you have the power to force the other side. If they want me to prove I'm sick or not sick they have to pay for it. However, I make agreement with Mr Bem, we do the payment he accepted we do it on three lots of payments and $2,500 money we don't have, your Honour, and I think I've been treated unfair and I think this thing should be suspended until all inquiry finished and not allow Mr Day to cross-examine witnesses without my lawyer or my somebody represent me and absolutely he tried his hardest to avoid the Supreme Court on 23 August but I think your Honour should be - if you want to have a feeling you should have to - you should have the feeling for two sides not only one side, and on Thursday I have - I lost some of my vision and I've been busy. They want to do sugar test for me. It take about two and a half hours and I've got a problem with my stomach they want to do the bacteria again and if you want to have a look at them?
[46] TX pp652-653.
and[47]
MR DRAOUI: Anyhow, your Honour, whatever you want to do, whatever, it's all in your hand your Honour, I would not - no power whatsoever. I don't have the text book cheque book, I don't have a barrister here, I don't have my file, I don't have ... I don't have a piece of paper, I can't read your comments. Now, if Mr Day want to have his day in court against something like this, I'm pretty sure Conduct Board will interfere, I'm really sure somebody will interfere. I'm really sure the Full Supreme Court on 23 August, it will interfere. This is just - anyhow your Honour do whatever you like if you just can give me back my medical.
HER HONOUR: Firstly, could you tell me what you meant about interfering with the Supreme Court proceedings on 23 August? I understand that they are awaiting the -
MR DRAOUI: No, they are not waiting for this. They, he mislead you. They are going to the three judges on 23 August to - against your decision, this trial will stay or not. It's not because of my medical condition at the moment, it's because of the whole procedure. It's he rushed Dr Davis. Yes, yes, no problem, he even make him cancel appointments because he pay him more. Even he said to you here within one day the report will come here, right, and now one week. Mr Davis cannot be bought by insurance company or by anybody. He is a well respected doctor just as my doctor and when I try to tell you I need to go to my treating psychiatrist, you refuse.
[47] TX pp654-655.
When I did not agree with the plaintiff’s submissions he once again asked me to disqualify myself and made allegations that I was against him because of his race:[48]
MR DRAOUI: I'm leaving here, not coming back until my treating doctor tell me otherwise. Now it's -
HER HONOUR: That's your choice. I want to ask -
MR DRAOUI: That is my choice and I ask you formally again, verbally again, to disqualify yourself from this case because it's impossible. Even if you 100% with me, if somebody tell you to disqualify yourself, you have lost your independence and I beg you to disqualify yourself because I feel I'm getting nowhere with you here. You should be with me, not against me. These people, army of lawyers, and if you take everything they say, whatever I say, 'No, you have to prove this. You have to prove this'. What, it's a race card because my name Abdou and I'm brown colour? I'm sorry.
HER HONOUR: Be careful about that. You are getting very close to contempt of court.
MR DRAOUI: I apologise.
[48] TX p659.
The plaintiff understood the seriousness of what he had said and quickly apologised to the court.
On 7 August 2019, the plaintiff asked me once again to adjourn the Inquiry until 23 August 2019 when the two permissions to appeal (against my order and that of Kelly J) were to be heard:[49]
MR DRAOUI: I was advised by my friend, lawyer, and I ask you on behalf of myself to adjourn this court until 23 August to see all doctors, because they are going to be submitted to her Honour, Kelly J. No lawyer should be cross-examine myself and the surveillance without my medical situation improve and somebody should represent me here. Your Honour, if you granted Mr Day to proceed with the cross-examine witnesses and this afternoon will be an application to stop this. This is absolutely Mr Day try his hardest, as I said before, to avoid 23 August or Mr David, the man there, try to her Honour whatever transcript come from the surveillance people. This is like you send somebody to gaol or lose his case in his absence, and I believe, strongly believe, I am advised, that I ask you formally to adjourn this matter until Dr Davis's report come and 23 August if I have, what they call it, permission to appeal against your decision and should be no witnesses be allowed to cross-examine without my legal - because even when I give evidence here, despite my mental problem Mr Day write every day everything I say and his ... I need the same person to be here when Mr Day cross-examine the, what do you call it, investigator, I don't want to hold investigator up, because that's my problem, wherever I go, whatever I do, that's not Mr Day problem, that's the Motor Accident problem, that's my problem. And this is absolutely - the matter is now become like a battle of will between me and Mr Day, right? He determine to destroy me and my family and I don't think he should be granted to cross-examine anybody. Maybe the law allow him but matter of fairness from your Honour should be this adjourned until 23 August.
[49] TX pp664-667.
On Thursday 8 August and Tuesday 13 August 2019 defendants counsel called evidence from surveillance operators. Before the evidence began the plaintiff made a verbal application to suspend his case until his mental health improved. He also raised the issue of the surveillance officers not being on the witness list and therefore they should not be allowed to give evidence.[50]
MR DRAOUI: I have verbal application, there is two doctors report, both of them agreed and, what you call it, the litigation guardian or whatever you call it, they lots of time and cost lot of money and I should be prepared for this trial in the very near future. I make a verbal application, I want you to rule on it, this case should be suspended until the doctors clear me to I can stand here and examine and cross-examine. I want you to rule on my application now.
HER HONOUR: Mr Day is entitled to make submissions on that application, so I'll ask -
MR DRAOUI: And the other thing -
HER HONOUR: Now you've asked me that, so -
MR DRAOUI: I know but there is one more important thing. The investigator, they are not on the trial and the witness list, and we did a discovery, it's not on the witness list. I feel this is an ambush and you agree with it your Honour. Thank you.
[50] TX p672.
And[51]
MR DRAOUI: And the other thing, this witness has already last week come, they don't provided with the eight witnesses like I prove them with 15 names. This is an ambush by Mr Day, it's enough Mr Day, that is absolutely ambush. Don't run your case by ambush somebody like this, win the case on the merits. That's all. And if I go to the TAB or gambling, what's to do with you anyhow? I can't understand what's to do with my case.
[51] TX p674.
When I refused the plaintiff’s application he responded:[52]
MR DRAOUI: Your Honour, you are wasting everybody's time. It's going to cost me $9,000, it's going to cost me another $6,000 for appealing against your decision. I am a man who can't afford this money. I don't have the taxpayers cheque book. You just absolutely - I feel you're acting as a lawyer not as a judge. You're still thinking how ... defend the motor accident. There's two doctors said the interrogation ... it doesn't need for this and you insist to continue with the investigation. What, to please who? Your Honour, my family can't afford to keep spending money.
[52] TX p676.
And [53]
MR DRAOUI: Of course you're going to refuse my application. What about the witnesses, just now out of the blue they try to ambush me, I don't see the report, they never discover - you discover my medical report just like this (INDICATES) without even my knowledge to them. They didn't show me any report, they don't send to the court ..., what's this ... investigator or something. It's an ambush, your Honour, it's a complete ambush. They ambush you actually.
HER HONOUR: Mr Draoui, we have had this - you have put this to me before and I've explained that these are -
MR DRAOUI: You know I don't worry before, I just worry before. This witness is not on the witness list.
HER HONOUR: That's because they provide privileged information and those witnesses do -
MR DRAOUI: They are not on the witness list.
HER HONOUR: They do not have to be on the witness list under the rules of court. If you can point me to the rule of court that's applicable, I'll consider it further.
MR DRAOUI: Your Honour, I assure you it's not a privilege anymore, it will be forced to handed everything they would to the court. It will be forced, it's not a privilege anymore. This is my life you're talking about. You're destroying me, your Honour, you're destroying my life, you're destroying my family's life. I reckon you should be - disqualify yourself from this case, your Honour. I keep asking you again and again and again. Everything Mr Day granted. For me, nothing, your Honour. Actually you come as managing the case, not as a trial judge.
Suddenly you're managing the case and trial judge. I don't understand this. My family cannot afford to keep cough up money. My friends can't afford to give up money. Now you've got two witnesses, I don't know where they come from, this is an ambush your Honour, it is absolutely ambush. It's not fair, it's not fair and it's going to be appeal against the Supreme Court. Who's going to pay for it, me. You know your Honour's going to appeal - my family cannot afford this money. I list for you all the ... to waive the application fees for me, I can't do it anymore.
[53] TX pp676–677.
The defendants called three surveillance operators to give evidence. My associate provided a pen and paper to the plaintiff and he appeared to write notes for cross-examination. He then proceeded to cross-examine each witness, challenging their background and activities. He put to them that if they were tracking his phone they were breaching Federal law.[54]
[54] TX pp684-685.
Before the third operator gave evidence, the defendant sought provision of a DVD player in court. Notice of this was given to the plaintiff who telephoned my chambers on 12 August 2019 complaining that by playing surveillance footage the defendants had waived privilege.[55] The plaintiff continued his objection to surveillance being played:[56]
MR DRAOUI: If you allow them to run this without waiving their privilege on the matter, it's up to your Honour, but I challenge this video. And in due course will be part of my appeal, and because I refuse to have access to it before the court seen it, or before anybody seen it.
Now, it's up to them if they waive the privilege, then I have the right to look at the video - maybe I challenge it, maybe I let it go - and it's up to them, your Honour. But, your Honour, this video mean nothing to me.
[55] TX pp722-723.
[56] TX p725 and p726.
When I refused the plaintiff’s application to provide the privileged material he responded:[57]
[57] TX p729-p730.
MR DRAOUI: No, your Honour, you are wrong, I'm sorry. No, your Honour, because I been taking advice from lot of people. What you say to me, not related to my case at all, your Honour, at all. Even ex-lawyers being in the bench now, this is absolutely wrong.
From day one, you should said 'Look, go find a lawyer and come back to me', full stop. You not let a barrister and mob of, army of lawyers take advantage of me when I'm unrepresented, I mentally suffer, physically suffer, and you allow this to go ahead without my file, without my legal represented, without anything.
I leave it up to your Honour - whatever you want to do, it's up to your Honour. You could make judgment now, it's whatever you -
HER HONOUR: I'm not going to do that. As I say, this is not about your trial, this is about the inquiry into your capacity.
MR DRAOUI: Inquiry? The both doctors, well-known doctors to the court, they said 'He will be better, very short time, when he manage to get his health back, and then legal represented'. You think, your Honour, when Mr Day, with these witnesses here - I haven't got a lawyer, I haven't got anybody, because he make my blood run cool, he make me sit there. I take heavy drug just to be here, your Honour. I take very heavy drug just to be here. This inquiry should be stopped until both doctors, Dr Davis and Dr Bem, say 'Well, he's good now, he can run his case'.
This is my opinion, but it's -
HER HONOUR: I will consider that. I'm not sure that that is what they say, but -
MR DRAOUI: But your Honour, I'm fighting for, I'm fighting a lost cause, your Honour. Just, I'm fighting - I don't understand anything, I really don't.
HER HONOUR: All right, thank you, Mr -
MR DRAOUI: I'm sure the Supreme Court will not allow this.
He later said in relation to the Inquiry:[58]
MR DRAOUI: Yes I did. Your Honour, I just want to tell you one thing, my case, it's immoral to continue for now, legally and morally wrong, because hear a person on my situation from non-English speaking background, can't speak the language properly, cannot read the language properly, cannot - have no knowledge on law, have no knowledge on cross-examine people, and so many times I try to ask questions, you say this is a statement - you are absolutely right because I don't know how to ask, you need a lawyer to ask, need a lawyer to cross-examine. If I have a lawyer, your Honour, if I have a lawyer here, I am pretty sure probably you change your position, because when I want to talk about the DVD here, I am absolutely certain if I have a lawyer, same level of Mr Day, he not have to stop this, he know how to - you will change your position for sure. But because I have no lawyer, you already have one thing, the other ... did, which is me.
[58] TX p744-p745.
Medical Reports
Following the evidence given by the three medical experts the plaintiff agreed to be formally re-assessed by Dr Davis for the purpose of the Inquiry. He stated that he trusted Dr Davis 100%.[59] I asked the defendant to make enquiries as to his availability, and an appointment was made for 29 July. I then ordered that the plaintiff attend the examination relying upon the court’s parens patriae jurisdiction and its inherent jurisdiction as set out by Parker J in Washington v Washington.[60]
[59] TX p586.
[60] [2018] SASC 102.
The plaintiff once again told me that he was happy to see Dr Davis as he trusted his opinion.[61]
[61] TX pp594 and 609.
As the plaintiff is unrepresented, I directed a process whereby the defendant’s solicitor would draft a letter to go to Dr Davis seeking his opinion as to the plaintiff’s current mental state and whether he is a person under a disability as defined by Rule 4. The plaintiff objected to that process and it was then agreed that I would draft a letter to Dr Davis, to be agreed by both parties. That letter was sent to Dr Davis on the letterhead of the defendant’s solicitors by courier from the court registry on 24 July 2019. Prior to the letter being sent to Dr Davis I checked the contents of the letter and all enclosures to ensure they were correct as the plaintiff had raised concern by email regarding this.
The plaintiff arranged an appointment to see Dr Bem on 2 August 2019. On 31 July 2019, he had sought an order that the court direct Dr Bem to provide a report on the same basis as the report to be provided by Dr Davis. He agreed to pay for that report.
As the plaintiff did not have the facilities to enable him to seek a report from Dr Bem, it was agreed that a letter of request would be sent to him on Courts letterhead in exactly the same terms as the letter that went to Dr Davis. All documents sent to Dr Davis were copied by the defendant’s solicitors and sent to my chambers. After checking the letter and documents, and confirming that they were correct, they were couriered to Dr Bem on 1 August 2019.
Dr Bem was not able to complete his assessment of the plaintiff on 2 August 2019 and arranged a further appointment for 6 August 2019, and he provided a report of that date.
Dr Davis forwarded his report to the defendants solicitors on 7 August 2019. That report is dated 5 August 2019. On 12 August 2019 Dr Davis forwarded an email advising that he had considered Dr Bem’s report and that he found no reason to change his opinion of the plaintiff’s recent mental state as expressed in his report of 5 August 2019.
Dr Davis and Dr Bem were both provided with the plaintiff’s recent medical records; transcript of the evidence given by each of the three medical witnesses; a copy of the court transcript of Friday 19 July 2019; a copy of the plaintiff’s permission to appeal and supporting affidavit dated July 2019 and copies of the definition of Disability, as set out in Rule 4 of the District Court Rules and a copy of Rule 78.
Dr Davis’s Report – 5 August 2019
Dr Davis conducted an in-depth medical examination of the plaintiff who reported that his mental state had declined from the first day of trial. He felt he was treated as a ‘criminal’ and that he was at a great disadvantage because he struggled to read legal documents due to his poor command of the English language. The plaintiff told Dr Davis of ongoing physical ailments and that he was simply unfit to proceed with the trial without a lawyer. He was also worried by costs incurred in the case to date and ongoing court costs.
In relation to the plaintiff’s mental state, Dr Davis reported that the plaintiff said he was feeling agitated and anxious, with difficulties concentrating. He was suffering auditory hallucinations, poor sleep, and poor short-term memory. The plaintiff had just re-commenced taking the anti-depressant Effexor, 150mg twice daily.
Dr Davis recorded that the plaintiff presented as depressed and downcast and that he became distressed and agitated as he spoke about the court proceedings. He was angry, frustrated and aggrieved at the behaviours of the defendants lawyers. However, Dr Davis reported that the plaintiff was ‘articulate and fluent and able to provide a coherent history’. He considered it noteworthy that the plaintiff could recall the names of multiple legal firms that had acted for him and money spent on legal actions since 2004. As such, Dr Davis concluded that the plaintiff’s ‘response to questions did not indicate significant cognitive impairment’. Although Dr Davis noted that the plaintiff reported more severe depressive symptoms since his assessment of him on 24 June 2019. However, he concluded that the plaintiff ‘demonstrated reasonable cognitive function, including an ability to understand questions and express himself in a reasonable manner’.
As to whether the plaintiff was suffering a psychiatric illness, Dr Davis opined that he was suffering from ‘symptoms of a Major Depressive Disorder’. In relation to whether he was suffering a Disability as defined by Rule 4 of the District Court Rules, Dr Davis made the following comments:
a.the plaintiff is currently overwhelmed by his personal circumstance in relation to the court proceedings;
b.the plaintiff reports that he is struggling with reactive depression and anxiety as he cannot adequately represent himself in court;
c.the plaintiff’s current level of depression and agitation may impact on his ability to represent himself in court;
d.he had not identified any physical or mental factors that suggest the plaintiff can’t manage his own affairs or make rational decisions about taking, defending or settling proceedings;
e.the transcript of proceedings and his recent discussions with the plaintiff indicate he has an ability to understand the nature of the current litigation, its purpose, its possible outcome and the risks and costs associated with the litigation;
f.the stress of the plaintiff’s circumstance had given rise to more severe depressive symptoms;
g. previous discussions with the plaintiff had not revealed any significant cognitive impairment or problem with comprehension or expression of the English language.
Dr Davis concluded by recommending that the plaintiff pursue further psychiatric treatment. He anticipated that with stabilisation of his reactive depression he should be in a position to proceed with court proceedings in the near future.
Dr Bem’s Report – 6 August 2019
Dr Bem confirmed that he had diagnosed the plaintiff with a Major Depressive Disorder with psychotic features in September 2004 with a secondary diagnosis of alcohol dependence, that may have caused some of his psychotic symptoms. With treatment, the plaintiff’s various psychiatric symptoms had resolved by 2008, and there were no signs of any psychopathology between 2008 and when he last saw the plaintiff on 6 February 2018. The plaintiff had used anti-depressant medication over that period.
The plaintiff now presented as significantly depressed with impoverished discourse, flat mood, unstable gait and there were reported auditory and visual hallucinations. He reported to Dr Bem that his mood had started to deteriorate one month before the trial, and worsened upon commencement of the trial. As he had to Dr Davis, the plaintiff complained of being disadvantaged in court. He also complained of my unfair conduct, particularly in refusing his application to adjourn the trial. The plaintiff set out a group of symptoms of anxiety and depression the same as reported to Dr Davis.
Dr Bem concluded that the plaintiff had ‘ostensibly re-presented with a relapse of his Major Depressive Disorder with psychotic features’ and noted that his ‘mental status presentation is not dissimilar to that of 2004/2005 when he was acutely unwell, with the same condition’.
In considering whether the plaintiff’s a person under a disability as defined by Rule 4, Dr Bem noted that this was a difficult question to answer with authority, and stated:
…Given the litigation environment, which has perhaps brought on this depressive episode, I am concerned about the possibility of secondary gain, in explaining the onset of symptoms documented earlier. Assuming, however that Mr Draoui’s reported symptoms are genuine and his presentation in my rooms has not been duplicitous, the burden of depression and loss of reality reported, likely affect his capacity to represent himself competently in court. Therefore, I opine he should, on the balance of probabilities, be considered to be suffering “disability” with need for a litigation guardian, at least until his depression has stabilised.
Dr Bem noted that his conclusion assumed ‘that the facts provided and the symptoms described are genuine and honestly stated’. Regarding the future, Dr Bem stated that the plaintiff’s depression may stabilise within six weeks, but opines that ‘the stress attached to the trial process has the potential to undermine his mental state, with a resultant return of various symptoms’.
Discussion
The evidence of the medical experts is that there has been a deterioration in the plaintiff’s mental health since the commencement of the trial in this matter on 8 July 2019, or even from the time that I refused the plaintiff’s application for adjournment on 21 June. The extent of that deterioration is not agreed by the two forensic psychiatrists who have recently examined the plaintiff.
Dr Davis opines that the plaintiff is suffering ‘symptoms’ of a Major Depressive Disorder. He could not however identify factors that suggested the plaintiff could not manage his own affairs or make rational decisions regarding these proceedings. Dr Bem was of the opinion that the plaintiff had ‘ostensibly’ re-presented with a relapse of his Major Depressive Disorder with psychotic features, if he accepted that the plaintiff had described his symptoms honestly.
The decision as to whether the plaintiff is a person under a disability for the purpose of the District Court Rules 78 and 79 is not just a medical question. It is notable that Dr Davis concluded that even with his depressive symptoms, the plaintiff demonstrated reasonable cognitive function and an ability to understand questions and express himself in a reasonable manner. That is my observation of the plaintiff in court during many exchanges between him and the defendants counsel and with me.
During the trial, the plaintiff has been fully engaged in the curial process. On a number occasions he has claimed that I may be biased due to previous work as a barrister and that I should disqualify myself. In cross-examination during the first four days of the trial he argued with defendants counsel regarding the admissibility of documents that did not assist his case including WorkCover documents relating to the first accident and tax returns. As set out above, the plaintiff raised the issue of privilege and waiver in relation to surveillance reports and his medical records. The plaintiff is aware of his right to appeal this ruling and other aspects of the trial, frequently advising me that the Supreme Court or High Court would overturn my decisions. He has already lodged appeals challenging my refusal to adjourn the trial, and about her Honour Justice Kelly’s refusal to stay that order. In addition, during the trial he filed an application and supporting affidavit to seek an order that Dr Bem be directed to provide a report to the court to be considered on this Inquiry. My observation of the plaintiff is that he is consistently aware of questions that may be put, or of evidence led that may be considered detrimental to his case. He then refuses to answer or objects to the questions.
The plaintiff is aware that the proceedings are being recorded and on several occasions, has asked that matters be recorded on the transcript for later reference. He also quickly apologised to the court when on 5 August 2019 I warned him about comments he had made that were close to contempt of court. Although the plaintiff has complained of poor memory and concentration issues throughout the proceedings to date, my observation is that when the plaintiff considers it is beneficial to his case he consistently has a good recall of events as far back as 1994. He frequently mentioned events that had occurred in relation to his previous legal representation, particularly relating to the adjournments of the trials in 2015 and 2017.
In relation to the plaintiff’s memory Dr Davis recorded on 29 July 2019 that the plaintiff had provided a coherent history to him including detail of the law firms who had acted for him since 2004 and what he had paid them. The plaintiff told me the same information and also, on several occasions, gave me a history of his criminal prosecution from 2002 and the lawyers and counsel who had acted for him. He told me the terms of his licence and how this prevented him travelling to Jordan. My observation of the plaintiff during the trial and this Inquiry is that the plaintiff’s absence of memory occurred when he was confronted with evidence that appeared to be detrimental to his case. This was often in cross-examination where evidence was put that went to causation of loss. My observation of the plaintiff is that he understood the risk of responding to the questions put to him.
When giving evidence, the three doctors were all asked questions by the defendants counsel regarding the plaintiff’s conduct during their evidence, particularly his objections to lines of questioning and debates with me regarding those objections. Dr Mascolo on 17 July 2019 agreed that the plaintiff demonstrated the capacity to take action to protect his interests, and to pay attention to the proceedings and take legal points when he wanted to.[62]
[62] TX p491.
On the same day Dr Bem agreed with statements put by the defendants counsel that:
-in asking that matters be recorded on transcript the plaintiff betrayed an awareness of court procedure;
-in foreshadowing further applications the plaintiff showed good awareness of how the court process worked and what was in his best interest;
-by making submissions to me during his evidence and objecting to questions, the issue of the plaintiff’s capacity to understand the legal process was raised;[63]
[63] TX pp519-521.
When giving evidence on 18 July 2019 Dr Davis was also taken by the defendants counsel through the court processes and the plaintiff’s presentation in court. He agreed that the matters put to him regarding the submissions put by the plaintiff, his objections to evidence, his memory of earlier proceedings and the plaintiff’s conduct generally since the trial betrayed:
-a degree of cognitive sharpness and intellectual acuity;
-a not insignificant cognitive capacity;
-a reasonably serviceable memory;
-a fairly intimate understanding of legal proceedings;
-a capacity to deal with legal issues;
-a familiarity with legal procedure and a capacity to deal with such procedures;
-a reasonable recall of past matters and an ability to retrieve memories;
-a reasonably good long-term memory;
-a capacity to deal with the trial.[64]
[64] TX pp567-571.
Dr Davis responded to my questions as to capacity as follows:
HER HONOUR
Q.Just a few questions of my own. When you answered those questions about capacity what do you take into account.
A.I'm thinking about the mental state, the mood state and the cognitive state, the cognitive capacity to process information, think through what's happening in these proceedings and everything I heard suggested that there is a high level of mental acuity and understanding of the proceedings, a capacity to recall relevant legal information going back it sounds like a decade, capacity to understand some of the subtleties of process and at what points he needs to direct the transcript recording and so on. Just points to a high level of cognitive capacity which you would not expect in someone suffering a severe depressive condition.
Q.Would that be supported by what happened yesterday which I'll put to you which is when Dr Mascolo was giving his evidence the plaintiff interrupted and objected - unfortunately I don't have the transcript with me but my memory is probably on at least 25 occasions and would argue with me regarding what Mr Day put to Dr Mascolo, would that come within the same matters you were discussing - put to me as to cognitive ability.
A.Yes, it highlights a mental sharpness, an understanding of process, a capacity to talk clearly and seek to debate and challenge. So it all just points to someone whose cognitive function is reasonable to good, if not superior, and certainly doesn't reflect the mental state of someone who's struggling with disabling psychological symptoms.
Q.There have been times during the trial and probably this morning is an indication where Mr Draoui has indicated that he's not feeling well and he has sat with his head in his hands and just completely not engaged.
A.Right.
Q.How would that be explained.
A.He may be feeling physically unwell. He may be feeling highly anxious about the proceedings and that can give rise to an array of physical symptoms. That's all I can say.
Q.All right. From what you've heard today on the evidence, you would be satisfied that he has capacity to conduct this trial without representation and there's, I suppose, an additional issue in that he's not just giving instructions but he is conducting it on his own.
A.Yes. What I've heard would support that fact that he's capable of proceeding and conducting the case.[65]
[65] TX pp571-573.
The three doctors also had put to them reports of surveillance of the plaintiff that showed him being active just before and during the trial. This included evidence of periods of time in hotels, gaming establishments, and visiting friends. It also included surveillance of the plaintiff not leaving the Maylands Hotel until 11.27pm on the second day of trial, 9 July 2019.
The plaintiff was vigorous in his objections when this evidence was first put to Dr Mascolo and he tried to explain his activities.[66] Dr Mascolo agreed that the level of activity displayed was not consistent with melancholy or a severe level of depression, but rather low level depression at best.[67] Dr Mascolo did raise concern regarding the plaintiff having a gambling addiction,[68] but confirmed that the low level depressive symptoms did not appear to be posing any significant functional difficulties for the plaintiff from a physical point of view or energy point of view.[69]
[66] TX pp475-483.
[67] TX pp479-482.
[68] TX pp482-483l.
[69] TX p483.
The same surveillance evidence of the plaintiff’s activities was put to Dr Bem and Dr Davis. Dr Bem generally agreed that the level of the plaintiff’s activity was not consistent with significant depression, where there is usually significant loss of energy and motivation. With significant anxiety there is usually social withdrawal.[70] He expanded on this noting that the high level of social interaction described was out of character for someone suffering a Major Depressive Disorder.[71]
[70] TX pp506-507.
[71] TX pp508-509.
Dr Davis was of the same opinion as Dr Bem. He gave evidence that the level of activity described was not consistent with someone suffering a psychiatric disorder of a depressive nature.[72]
[72] X pp562-566.
Decision
I have considered all of the evidence both from the trial of this matter, until it was suspended, and of this Inquiry. I have also considered the issues that Kyrou J set out as potentially relevant in Slaveski.[73] These were adopted by Judge Withers in Hollidge v Pomeroy & Ors.[74] However while I am mindful of those criteria, I do not consider that it is necessary to address each one separately in making my findings. The criteria deal with the plaintiff’s capacity to understand the relevant proceedings and the factual framework of his case, the court processes and rules and rulings made during the proceedings, together with the role of counsel, witnesses and the judge. They also address the plaintiff’s capacity to understand adverse consequences of his behaviour in court, including the ongoing costs of proceedings, and what might happen if he is not successful at trial I have considered all of these matters and taken them into account in making my decision.
[73] Slaveski v State Victoria [2009] VSC 596 at [32].
[74] [2014] SASC 45.
The decision of whether the plaintiff is a person under a disability for the purposes of Rules 4 and 78 of the District Court Rules 2006, is a legal decision. Courts are usually guided by medical opinion, which I have taken into account but in the end this is a matter for my judgement. By Rule 4 a person is under a disability if they are not physically or mentally able-
(i)to manage his or her own affairs; or
(ii)to make rational decisions about taking, defending or settling proceedings (or communicate that decision to others).
Kyrou J in Slaveski noted, that while a court will ordinarily decide whether a party has the requisite capacity after receiving medical evidence, the court can make the determination by consideration of the party’s behaviour inside the courtroom.[75]
[75] Slaveski v State Victoria [2009] VSC 596 at [34].
The defendants put to me that the plaintiff’s behaviour in the courtroom to date has demonstrated substantial cognitive acuity; the presence of mind to take issue with the admissibility of evidence; an ability to ensure that his interests are protected; an awareness of the legal process including his right to appeal and a capacity to advocate on his own behalf. They also submitted that the plaintiff displayed capacity to recall information over many years when it was helpful to him.
I find some merit in those submissions, whilst acknowledging the difficulties for the plaintiff in conducting a trial without legal representation, and with English as his second language. Based upon my observations of the plaintiff in court it has not been apparent to me that his medical issues, including his mental health have impacted his ability to make rational decisions regarding the conduct of these proceedings. It is my observation that the plaintiff chooses when to fully engage and when not to, based upon his own decision-making process and capacity. From the first day of trial he has continued to attempt to adjourn the trial following my earlier refusal to do so. The plaintiff has frequently submitted that the trial is unfair and that he is severely disadvantaged because he does not have lawyers acting for him. That is not a mental health or capacity issue.
While this matter has a long procedural history, it is not a complex matter. The plaintiff made a choice not to prepare his case for trial, even after my ruling that the matter was to proceed to trial. I accept that this has caused him additional stress and anxiety, but that has not stopped him arguing multiple procedural and evidentiary points with me as required. Both Dr Bem and Dr Davis in their evidence before me agreed that the plaintiff, while stressed, appeared by his questions and submissions to understand the court process and displayed a degree of cognitive sharpness and intellectual acuity. He had capacity to debate and challenge. Dr Davis opined that the plaintiff displayed the mental ability to make rational decisions about the prosecution and resolution of his claim.
I have also considered the evidence put to the three medical experts in court regarding the plaintiff’s activities as captured on surveillance. This is not a credit issue as the plaintiff was not cross-examined on that surveillance, and on multiple occasions he told me from the bar table that he did gamble and attend hotels and other places. I take into account the evidence from the doctors that the level of activity was not consistent with a significant psychiatric disorder.
I am of the view that this evidence demonstrates that the plaintiff has chosen to participate in other regular activities rather than prepare this matter for trial.
I have considered the opinions of Dr Davis and Dr Bem in their recent reports and the opinion of Dr Mascolo as contained in his letter to the court. I discount Dr Mascolo’s opinion, as he was not aware of the full circumstances of these proceedings when he examined the plaintiff for just ten minutes on 11 July 2019, nor the plaintiff’s full past psychiatric history. He accepts that he does not have the expertise to formally diagnose a psychiatric condition.
Both Dr Bem and Dr Davis outline possible symptoms of a depressive disorder reported by the plaintiff. These are subjective. Dr Davis does not diagnose a psychiatric disorder. Dr Bem diagnoses a relapse of the plaintiff’s previous depression, but does not set out whether he has taken into account the plaintiff’s behaviour in court while he was giving evidence on 17 July 2019 or the matters that were put to him by the defendants counsel regarding the plaintiff’s level of activity between 24 June 2019 and 9 July 2019. When those matters were put to him in court, Dr Bem agreed they were not characteristic of a person suffering a significant psychiatric condition.
Dr Bem also gave evidence that what was being described by him was a high level of social interaction, out of character for someone who was suffering a major depressive disorder.
Dr Davis gave similar, if slightly more conclusive evidence, that the plaintiff’s behaviours both outside of and inside court, were not consistent with a person suffering a depressive, or other psychiatric disorder. He was satisfied that the plaintiff had capacity to conduct the legal proceedings, and this confirmed his opinion from when he examined the plaintiff on 24 June 2019, just before the trial started. This is an advantage that Dr Bem did not have.
Whilst the decision regarding disability and the need for a litigation guardian is not a medical decision, I prefer the evidence of Dr Davis who had the opportunity to review the plaintiff twice within five weeks and could consider the extent and impact of any worsening in the plaintiff’s mental health over that period.
At times in court the plaintiff has been emotional and has shown signs of anxiety and stress. I have made allowances for times that he has told me he is unwell. I find, however that the plaintiff has insight into the trial processes and particularly possible adverse consequences of his behaviour and evidence presented that will not assist his case.
The plaintiff was able to cross-examine each of the surveillance operators as to their past employment, movements and whether they had breached Federal laws. I find that he was aware of the impact that the surveillance may have on the outcome of the Inquiry and these proceedings generally.
Having reviewed all of the evidence, and exercising my discretion, I find that the plaintiff is not a person under a disability and that he does not require a Litigation Guardian for these proceedings.
I order that the trial re-commence. I will be mindful of any necessity for the plaintiff to have additional breaks in the conduct of the trial. I am alert to all of the issues relating to him that I have canvassed in these reasons. I am able to accommodate any reasonable requirements that he may have.
Annexure to Judgment: History of proceedings
· First Motor Vehicle Accident – 3 December 2001. Liability in dispute.
· Second Motor Vehicle Accident – 4 January 2011. Liability in dispute.
· Third Motor Vehicle Accident – 26 February 2011. Liability has been admitted.
· 3 December 2004: Proceedings commenced in relation to the first accident in the Adelaide Magistrates Court.
· History of proceedings in the Magistrates Court:
o 5 December 2005: time for service of proceedings extended to 6 June 2006;
o 8 June 2006: order made further extending the time for service to 3 June 2007;
o 5 June 2007: notice issued by the Adelaide Magistrates Court of an Intent to Inactivate the action;
o 31 July 2007: action dismissed for want of prosecution;
o 7 October 2010: action reinstated;
o 5 November 2010: MAC joined as the defendant as the proceedings could not be served;
o 15 November 2011: defendants filed application seeking an order that the action be struck out for want of prosecution on the basis that;
i.there had been no progress in relation to the claim since it had been reinstated;
ii.the plaintiff had failed to attend a medicolegal assessment;
iii.the plaintiff had failed to provide a formulated claim;
iv.the plaintiff had failed to file required Form 22 Personal Injury Particulars.
o 15 December 2011: a solicitor for the plaintiff, Mr Simon Flower, attended a directions hearing, opposing the application for strike out. The application was adjourned sine die;
· 27 February 2012: proceedings were transferred to the District Court.
History of Proceedings in District Court:
i.1 May 2012: order made that the plaintiff file and serve a statement of loss and a formulated claim;
ii.7 March 2013: order made that the plaintiff file a statement of loss by 12 April 2013;
iii.28 June 2013: proceedings were instituted in relation to the third accident;
iv.28 June 2013: proceedings were instituted in relation to the second accident in the Adelaide Magistrates Court. Those proceedings were transferred to the District Court on 16 January 2015.
v.30 September 2013: Mr Flower for the plaintiff indicated to the court that he had just learned that the plaintiff had had a litigation guardian appointed to act for him since 5 December 2005. Mr Flower had been acting for the plaintiff since late 2011 but was not aware that the plaintiff’s daughter Sharon Lea Nassar Draoui was his litigation guardian;
vi.20 January 2014: an order was made that Sharon Draoui be removed as litigation guardian;
vii.3 April 2014: matter was referred to a listing conference;
viii.1 May 2014: actions were listed for trial commencing 4 May 2015;
ix.January 2015: Mr Flower sought to be removed from the action as solicitor of record and Gary Inglis & Co filed a Notice of Acting soon thereafter;
x.23 February 2015: Judge Slattery ordered that the three actions proceed together through the District Court;
xi.23 February 2015: order made postponing the trial to 5 May 2015 to accommodate the plaintiff’s counsel, Mr Brohier.
xii.23 February 2015: orders made that the plaintiff file and serve a list of special damages by 4 March 2015; a list of any future medical expenses by 17 March 2015 and a written opening by 23 April 2015 in each action. The defendants were ordered to file trial books and tender books;
xiii.The plaintiff did not comply with the trial orders made by Judge Slattery;
xiv.4 May 2015: at a Directions Hearing before Judge Tracey counsel for the plaintiff advised that the plaintiff had travelled to Jordan on 10 April 2015 and his return had been delayed until 6 May 2015. The trial was adjourned to 7 May 2015;
xv.6 May 2015: at a Directions Hearing before Judge Tracey counsel for the plaintiff advised that the plaintiff had yet to return to Australia;
xvi.7 May 2015: trial commenced before Judge Tracey with the plaintiff’s counsel indicating that it was not clear if he had instructions to continue. The trial was adjourned to 8 May 2015;
xvii.8 May 2015: the plaintiff’s solicitor filed an application to cease acting for the plaintiff, and the plaintiff filed a Notice of Acting on his own behalf. The trial was adjourned until further order. Costs orders were made against the plaintiff;
xviii.10 June 2015: the plaintiff lodged an appeal in the Supreme Court in relation to the costs orders;
xix.23 July 2015: appeal heard by Judge Sulan in the Supreme Court and costs orders amended by consent;
xx.10 August 2015: Tindall Gask Bentley file a notice of acting for the plaintiff;
xxi.28 April 2016: order made referring the action to the next available listing conference and that the matter be judge managed;
xxii.17 May 2016: action listed for trial commencing 1 May 2017;
xxiii.6 February 2017: Directions Hearing before Judge Slattery where plaintiff’s counsel indicated that Tindall Gask Bentley were still waiting for funds to be deposited into their trust account before the matter could proceed to trial;
xxiv.15 March 2017: the plaintiff filed a Notice of Acting in person;
xxv.23 March 2017: the plaintiff filed an application to adjourn the trial date so that he could travel to Jordan to obtain funds and then instruct lawyers;
xxvi.6 April 2017: plaintiff’s application to adjourn refused by Chief Judge Evans;
xxvii.12 April 2017: plaintiff filed a further application to vacate the trial date on the basis that Tindall Gask Bentley had not released his file;
xxviii.24 April 2017: plaintiff’s application to adjourn the trial was granted;
xxix.28 July 2017: plaintiff attended a Directions Hearing and indicated that he would represent himself at trial unless he could obtain funding which would allow him to retain legal representation;
xxx.12 February 2018: plaintiff attended a Directions Hearing where he indicated that he was waiting to receive his file from Tindall Gask Bentley and without that file he could not prepare his matter for trial.
xxxi.7 May 2018: the court listed the action for trial commencing 8 July 2019 with 20 days set aside;
xxxii.18 July 2018: Judge Slattery made orders that the parties to file trial documents by 31 October 2018. The plaintiff complied with these orders;
xxxiii.12 April 2019: the defendants agreed to pay the court listing fee when the plaintiff had not paid that;
xxxiv.22 May 2019: plaintiff filed an application to adjourn the trial on the basis of his lack of capacity to conduct the trial given his lack of legal representation; the fact he did not have his files from Tindall Gask Bentley, and his issues with the English language;
xxxv.30 May 2019: Judge Deuter made orders for production of documents held by the Tindall Gask Bentley; affidavits to be filed on discovery issues by Tindall Gask Bentley and the defendants solicitors; an affidavit to be filed by the plaintiff regarding ownership of a property in Jordan and steps taken by him to realise funds by selling that property; and granted leave to the plaintiff to issue subpoenas for witnesses to attend trial or produce documents;
xxxvi.12 June 2019: at a Directions Hearing before Judge Deuter the plaintiff indicated that the trial was to proceed and he was ready to proceed. The plaintiff’s application to adjourn the trial was dismissed;
xxxvii.17 June 2019: plaintiff filed an affidavit stating he had not been able to raise funds for legal representation and he sought an adjournment of the trial to allow him to travel to Jordan;
xxxviii.18 June 2019: at a Directions Hearing before Judge Deuter the plaintiff sought to re-open his application to adjourn the trial;
xxxix.21 June 2019: argument proceeded on the plaintiff’s further application to adjourn the trial. That application was refused by Judge Deuter;
xl.24 June 2019: Judge Deuter published reasons for her refusal to adjourn the trial.
xli.June 2019: plaintiff filed an appeal against the order of Judge Deuter in the Supreme Court;
xlii.2 July 2019: plaintiff filed an application in the Supreme Court seeking a stay of the order of Judge Deuter that the trial should proceed;
xliii.3 July: Justice Kelly refused to grant a stay of the order that the trial should proceed;
xliv.July 2019: plaintiff filed an application in the Supreme Court appealing against the order of Justice Kelly;
xlv.9 July 2019: trial commenced before Judge Deuter
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