Draoui v Le, Then & Cock
[2019] SADC 85
•24 June 2019
District Court of South Australia
(Civil)
DRAOUI v LE, THEN & COCK
[2019] SADC 85
Ruling of Her Honour Judge Deuter (ex tempore)
24 June 2019
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - ADJOURNMENT
The plaintiff has commenced three separate actions relating to three motor vehicle accidents, the first of which occurred more than 17 years ago. The three matters are joined for the purposes of trial, and two trial dates have already been set (in 2015 and 2017) and adjourned on late applications by the plaintiff. The third trial date, set for 20 days, was set to commence 8 July 2019, with more than 14 months notice. The plaintiff again made a late application to adjourn the trial date.
Held:
The plaintiff's application to adjourn the trial date is refused. The plaintiff is to pay the costs of the defendants for the application.
District Court Civil Rules 2006 (SA) r 6R3, referred to.
Aon Risk Management Services Australia Limited v Australian National University (2009) 239 CLR 175; Channel 7 v Manock [2010] SASCFC 59; Matthews v Whites Hill Pty Ltd [2019] SASC 78, discussed.
DRAOUI v LE, THEN & COCK
[2019] SADC 85The plaintiff’s application
The plaintiff initially sought an adjournment of the trial of this matter set for 20 days commencing on 8 July 2019, by application dated 22 May 2019. This application was supported by an affidavit of the same date.
The basis of the plaintiff’s application was:
·That he did not have legal representation;
·That the matter is too complex for him to conduct the trial without representation;
·He intends to call 8 witnesses and the defendant intends to call 13 witnesses, indicating how complex the matter is;
·He is not fluent in English, it not being his first language, and his English is not sufficient to allow him to conduct his own trial and to understand the legal technicalities;
·It is critical that he be able to instruct solicitors to conduct the trial and he needs to raise funds to do so;
·The only means of him raising funds is by selling a house situated in Amman, Jordan of which he has a share (although currently he does not know the extent of that share);
·That he would be at a significant disadvantage if the trial proceeds without him having legal representation;
·He requires an adjournment of the trial for a period of 10 months.
The application was opposed by the defendants, primarily on the basis of extensive and extraordinary delay in the plaintiff prosecuting his case. At a hearing on 30 May 2019, they relied on the affidavits of Mr John Ward, solicitor for the defendants, dated 4 April 2017 and 27 May 2019. These affidavits set out the lengthy history of this matter, noting that it involves three separate actions for three different motor vehicle accidents in which the plaintiff has been involved. The dates of these accidents are:
·3 December 2001;
·4 January 2011; and
·26 February 2011.
There are three separate actions in relation to each accident, and all are to proceed together at trial.
The proceedings
Proceedings were commenced in relation to the first motor vehicle accident in the Adelaide Magistrates Court on 3 December 2004. Those proceedings were transferred to the District Court on 27 February 2012.
Proceedings were instituted in relation to the second motor vehicle accident in the Adelaide Magistrates Court on 28 June 2013 and those proceedings were transferred to the District Court on 16 January 2015.
Proceedings were instituted in relation to the third accident in the District Court on 28 June 2013.
A review of the proceedings indicates that liability is disputed by the defendants in relation to the first and second motor vehicle accidents, but that liability has been admitted in relation to the third accident.
On 23 February 2015, an order was made by Judge Slattery that the three actions proceed together through the District Court, as the defendants in all matters are represented by the Motor Accident Commission (MAC) and their lawyers.
It is to be noted at the outset that the first of the accidents involving the plaintiff occurred in 2001, 17.5 years ago. The proceedings in relation to that accident were commenced 14.5 years ago.
A review of the Magistrates Court file in relation to the first accident[1] shows that the proceedings were issued with solicitors acting for the plaintiff. There has been considerable delay in relation to the pursuit of those proceedings, and the subsequent two actions.
[1] DCCIV-12-429.
The history is as follows:
1.On 5 December 2005 (12 months after the issue if the proceedings), the time for service of the proceedings was extended to 6 June 2006;
2.On 8 June 2006, an order was made further extending the time for service for another 12 months to 3 June 2007;
3.On 5 June 2007, a notice was issued by the Adelaide Magistrates Court of an Intent to Inactivate the action;
4.On 31 July 2007, the action was dismissed for want of prosecution;
5.On 7 October 2010, the action was reinstated, this being more than three years after it had been dismissed, and nearly 6 years after it was initially issued;
6.On 5 November 2010, the court, noting that the proceedings could not be served on the defendant, joined the MAC as a defendant;
7.On 15 November 2011, another 12 months later, the defendants’ solicitors filed an application seeking an order that the action be struck out for want of prosecution. This was supported by an affidavit sworn by Mr David Blyth, solicitor for the defendant, on 14 November 2011 raising concerns that there had been no progress in relation to the claims since it had been reinstated; that the plaintiff had failed to attend a medicolegal assessment; and had failed to provide a formulated claim or the required Form 22 Personal Injury Particulars. It was also noted that the plaintiff appeared to have changed solicitors on at least three occasions;
8.On 1 December 2011, the plaintiff filed an affidavit addressing the multiple changes of solicitors and his failure to attend a medicolegal assessment. He indicated that he had been travelling in the Middle East and he had not read his mail upon his return. Limited information was provided regarding his travel;
9.On 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 with liberty to apply;
10.On 1 May 2012, an order was made that the plaintiff’s solicitors file and serve a statement of loss and a formulated claim;
11.On 7 March 2013, by consent, the court ordered that the plaintiff file a statement of loss by 12 April 2013;
12.On 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;
13.On 20 January 2014, an order was made that Sharon Draoui be removed as litigation guardian;
14.On 3 April 2014, the matter was referred to a listing conference;
15.On 1 May 2014, the actions were listed for trial commencing 4 May 2015;
16.In late 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;
17.On 23 February 2015, an order was made postponing the trial to 5 May 2015 to accommodate the plaintiff’s counsel Mr Brohier. Judge Slattery also ordered 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;
18.A review of the files indicates that the plaintiff did not comply with the trial orders made by Judge Slattery;
19.On 8 May 2015, the trial was adjourned until further order;
20.On 10 August 2015, Tindall Gask Bentley filed a notice of acting for the plaintiff;
21.On 28 April 2016, an order was made referring the actions to the next available listing conference with an order that the matter be judge managed;
22.On 17 May 2016, the actions were listed for trial commencing 1 May 2017;
23.On 15 March 2017, the plaintiff filed a Notice of Acting in person;
24.On 23 March 2017, the plaintiff filed an application to adjourn the trial date of 1 May 2017. This application was refused by Chief Judge Evans on 6 April 2017;
25.On 12 April 2017, the plaintiff filed a further application to vacate the prior trial date. This application was granted on 24 April 2017;
26.On 28 July 2017, the plaintiff attended a directions hearing before Master Blumberg and indicated that he would represent himself at trial unless he could obtain funding which would allow him to retain legal representation;
27.On 12 February 2018, the plaintiff attended a directions hearing before Master Blumberg 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. Master Blumberg ordered that the plaintiff file an application pursuant to s 39 of the Legal Practitioners Act on or before 30 April 2018 to seek delivery up of his file. The plaintiff did not file that application;
28.On 7 May 2018, the court listed the actions for trial commencing 8 July 2019 with 20 days set aside. The plaintiff was in court on that occasion;
29.On 12 April 2019, at a further directions hearing, Master Blumberg noted that the plaintiff had not paid the listing fee as was required and the matter could therefore not proceed further. The MAC on behalf of the defendants agreed to pay that fee, and have done so.
Adjournment of the 2015 and 2017 trials
Before giving consideration to the application that is currently before me, I note that this action has been listed for trial on two previous occasions. On each occasion, there has been a significant amount of time between the trial listing and the date of the trial.
In relation to the first trial, it was listed on 1 May 2014 for a trial commencing 4 May 2015. That is 12 months later. In relation to the second trial, an order was made on 17 May 2016 that the matter be listed for trial commencing 1 May 2017. Again, 12 months later.
In relation to the trial listing that is currently before me, the trial date of 8 July 2019 was set by Master Blumberg on 7 May 2018. That is, the current trial date has been in place for 14 months.
In the circumstances put to me in relation to the need for an adjournment, it is necessary to consider what took place in relation to the previous two trial adjournments.
Trial commencing 4 May 2015 – application to adjourn
Mr John Ward, now solicitor for the defendants, filed an affidavit in this court of 4 April 2017 in relation to the adjournment of the second trial date, setting out what had occurred in relation to the adjournment of the 2015 trial.
In that affidavit, at JMW2, there is annexed an email of 30 April 2015 from the plaintiff’s then solicitors, Gary Inglis & Co, advising that the plaintiff had been overseas seeking finance to pay for the upcoming trial. It was stated in that email that the plaintiff had successfully obtained that finance and that he was due to return to Australia on 29 April 2015 but had been delayed by ill health. In a further email of 1 May 2015, it was indicated that the plaintiff was returning to Adelaide in the early morning of 5 May 2015, and it was again confirmed that he had “sufficient funds to conduct his trial”.
The matter came on for a directions hearing before Judge Tracey on 4 May 2015, where the plaintiff’s counsel indicated that the plaintiff had travelled overseas on or about 10 April 2015 with plans to return on 29 April 2015, but he had been delayed until 6 May 2015. At T3.32, Judge Tracey was told that the plaintiff had funds to provide to his solicitors so that the trial could be conducted.
Mr Inglis advised Judge Tracey, that he had not yet formally briefed counsel Mr Brohier, who was available to conduct the trial for the plaintiff. He would not do so until he had received funds from the plaintiff into his trust account to cover Mr Brohier’s fees and other legal costs. Judge Tracey was to be the trial judge in the matter, and she adjourned the matter until 7 May 2015 to enable the plaintiff to return to Australia.
On 6 May 2015, there was a further directions hearing before Judge Tracey where Mr Brohier as counsel for the plaintiff indicated that the plaintiff had still not returned to Adelaide, and that he had not provided any funds to his solicitor for the conduct of the trial. The court was advised that the plaintiff knew the matter was to commence for trial the next day.
At the commencement of the trial on 7 May 2015, an adjournment was sought by the plaintiff’s solicitor for one week as funds to conduct the trial had not yet been provided by the plaintiff. Mr Inglis told the court that they were expected to be provided that afternoon by bank cheque.
At the hearing on 7 May 2015 Judge Tracey noted that the plaintiff had not provided evidence to the court of his pre-planned travel arrangements, including that he had booked a return to Adelaide for 29 April 2015, despite her request on 4 May 2015 that this be provided. She ordered that an affidavit be filed within 24 hours outlining the plaintiff’s travel arrangements and the reasons for his delay in returning, including documentary proof of these matters.
I have reviewed the file and there is no evidence of any affidavit being filed by the plaintiff, or evidence handed to the court at any hearing regarding the matters Judge Tracey asked to be addressed.
At the commencement of the trial on 7 May 2015, there were issues in relation to whether the plaintiff would accept Mr Brohier as his counsel, and the matter was adjourned for a further day, that is, the trial was now to commence on 8 May 2015.
On the morning of 8 May 2015, Mr Inglis filed an application and supporting affidavit seeking orders to cease to act for the plaintiff as, contrary to his retainer, the plaintiff had not provided funds for the conduct of the trial. The plaintiff attended court and confirmed that he had terminated Mr Inglis’ instructions. He filed a Notice of Acting on his own behalf. He also told Judge Tracey that his intention was to engage another solicitor with a view to securing the services of alternative counsel. In the circumstances, Judge Tracey adjourned the trial with an order for costs thrown away to the defendants. The plaintiff did not oppose that order, nor the order made by Judge Tracey that those costs be taxed and that no further action be taken in relation to the plaintiff’s matter until the costs had been paid by him.
The plaintiff later, on 10 June 2015, lodged an appeal in the Supreme Court of the order in relation to immediate payment of the taxed costs and the stay of proceedings. That matter was heard before Justice Sulan on 23 July 2015. There was no judgment, but the transcript of the hearing indicates that it was agreed that the order of Judge Tracey would be rescinded, with the order made that the plaintiff pay the defendants’ costs thrown away of the adjourned trial, in any event, to stand. The plaintiff was represented at this hearing by counsel engaged by his new solicitors, Tindall Gask Bentley.
Trial commencing 1 May 2017 – application to adjourn
After the Supreme Court hearing, the matter was returned to the District Court. A directions hearing was conducted before Judge Slattery on 6 February 2017. Mr Roberts, counsel for the plaintiff, indicated that the matter could proceed to trial once the plaintiff had provided his solicitors with funds into their trust account to cover the costs of the trial. Mr Roberts made submissions that the plaintiff had given an assurance that would occur in the coming weeks.
On 15 March 2017, the plaintiff filed an application to act in person and on 23 March 2017 he filed an application to vacate the May 2017 trial date.
At a hearing on 6 April 2017 before Chief Judge Evans, the plaintiff stated that he required an adjournment of three to four months to enable him to raise funds from a property that he owned in Amman, Jordan, so that he could instruct solicitors and counsel to act for him at trial. The plaintiff told Chief Judge Evans that he would have such funding within four months and that he had arranged this with his sister, who owned part of the house in Jordan.
At this hearing, the Chief Judge raised concerns that the position being put by the plaintiff was the same that had been put at the time of the adjournment of the first trial in 2015. He raised concerns that the funds may not be obtained in a timeframe to allow a trial to proceed in three or four months.
On 6 April 2017, the application to adjourn the trial was refused.
The plaintiff then filed a further application on 12 April 2017. On that occasion, he raised an issue that his former solicitors, Tindall Gask Bentley, were not prepared to release his file until all outstanding accounts had been paid. At that time, the Chief Judge was concerned about the prejudice to the plaintiff in not having his legal documents, and that he would not be able to prepare adequately for a trial, particularly if he was to conduct the trial on his own account. On that basis, he adjourned the trial.
The plaintiff also again raised the issue of funding, and the need to travel to Jordan to obtain funds from a property that he owned there. At the hearing on 12 April 2017, the Chief Judge raised concerns regarding the lack of evidence in relation to the plaintiff’s property in Jordan and his ability to access funds from it. He noted at T7.13:
…You have only made assertions in the material you put before the court. You haven’t put any correspondence from your sister, or any record to reveal the title or the interest that you have in the land, or even really what the likelihood is that you will be able to realise money. I am just putting you on notice that if, in future, the question of funding is still outstanding when the matter is listed for trial, you could expect that the court will require you to file detailed affidavits setting out all the material in relation to all the steps you have taken to obtain funding and all of the material you have in relation to the property in Jordan.
Trial listing 8 July 2019
The matter was listed for trial to commence on 8 July 2019 at a directions hearing on 7 May 2018, some 14 months ago. That listing was set by Master Blumberg at a directions hearing where he indicated that he was providing a significant period of time to allow the parties to be ready for trial. He raised concerns about the delays to date in resolving this matter by negotiation or trial.
Following the listing for trial, on 18 July 2018, Judge Slattery made orders for trial documents to be filed by the plaintiff with responses by the defendant to be received by the court by 31 October 2018. As a result of these orders, the plaintiff filed the following:
1. A schedule of special damages to be sought at trial, on 15 August 2018;
2. A notice of evidence to be produced at trial, on 31 August 2018;
3. A schedule of future medical expenses as damages to be claimed, on 12 September 2018; and
4. A future medical care plan as future damages, on 13 October 2018.
The defendant responded to these documents, and the defendant thereafter filed the trial books for each action separately.
As I set out above, the plaintiff was not financially able to file the required trial fee, and the defendants paid this to the court in April 2019.
I note from this history in relation to the 2019 trial date that, until the application on 22 May 2019, and despite not having solicitors acting for him from March 2017, the plaintiff has been able to attend court at hearings and to file documents in preparation for trial. From the court’s perspective, the matter is ready to proceed to trial, and 20 days has been set aside.
The application to adjourn the trial first came on before me on 30 May 2019. The plaintiff once again raised concerns regarding his capacity to conduct the trial and told me that he could not retain solicitors as he required funds to do so that he currently did not have. He also told me that he required his file from his previous solicitors Tindall Gask Bentley and that he was concerned that Tindall Gask Bentley had released confidential and/or privileged documents to the defendant. This was denied by the defendant’s counsel Mr Day.
The plaintiff once again told the court that he owned a house in Amman that he needs to sell to raise funds to instruct lawyers. There was no evidence put before me as to the value of the house; whether the plaintiff owned the house in his sole name or jointly with another; and what steps, if any, he had taken to prepare for the sale of the property.
On 30 May 2019, I made the following orders:
Upon the plaintiff’s application to adjourn the trial of these matters set for 8 July 2019, and upon hearing the plaintiff’s submissions regarding his concerns regarding privileged material contained within his files held by his former solicitors I make the following orders:
1. Pursuant to s39(1) and s39(3) of the Legal Practitioners Act 1981, and on application of the plaintiff, Tindal Gask Bentley: -
a. To deliver to the Civil Registry of the District Court by 4.00 pm Friday 7 June 2019, documents that they hold on the plaintiff’s behalf and concerning the plaintiff, including documents that may have been provided by other solicitors who have acted for the plaintiff and notwithstanding any lien that may be placed upon any documents held by Tindall Gask Bentley.
b. To file in court by 4.00 pm Friday 7 June 2019 a document in the form of a List of Documents pursuant to Rules 136 and 137, setting out all documents that are contained in the files delivered to the Court pursuant to Order 1(a).
2. Defendants to file an affidavit setting out all documents received from the plaintiff and/or any solicitor acting for the plaintiff that are in their possession including all medical evidence, medical records, financial information. The affidavit is to set out the documents in the form of a List of Documents pursuant to Rule 136 and 137 and is to be filed and served upon the plaintiff on or before 4.00 pm Friday 7 June 2019.
3. The defendants to contact Ms Emanuele of Tindall Gask Bentley to seek an affidavit from her setting out the circumstances relating to the provision of the plaintiff’s file(s) to the plaintiff and/or to the defendant if that occurred before today’s hearing. This affidavit to be filed and served by 4.00 pm Friday 7 June 2019.
4. In relation to the affidavit referred to in paragraph 3 above, I direct that the affidavit of Ms Emanuele set out whether any confidential or privileged information and/or documents provided by the plaintiff to Tindall Gask Bentley or the plaintiff’s previous solicitors have been released to the defendant or any other person other than the plaintiff.
5. Plaintiff to file an affidavit and serve it upon the defendants by 4:00 pm Friday 7 June 2019, setting out and attaching all material in relation to:
a. Any property that he owns in Jordan (‘the property’);
b. The nature of that ownership including the percentage share of ownership in the property;
c. The ability for the property to be sold;
d. The valuation of the property;
e. Attempts that have been made between 2012 and the current time to sell the property, and the steps taken in this regard;
f. All documentation evidencing ownership in the property;
g. All steps taken by the plaintiff since April 2017 to obtain funds from Jordan or otherwise to enable him to instruct lawyers.
6. If the plaintiff wishes to issue subpoenas for witnesses to attend at the trial of these matters listed to commence on 8 July 2019, or to produce documents at trial, I grant leave for any such subpoenas to be issued.
7. That the transcript of today’s hearing be provided to the plaintiff via email as soon as it is available. I order that the fees for providing that transcript to the plaintiff be waived.
8. All parties to this action and Tindall Gask Bentley have liberty to apply.
9. Costs Reserved.
10. Trial date confirmed for 8 July 2019.
Matter adjourned to Tuesday 12 June 2019 at 9.00 am.
After those orders were made, the following occurred:
1. Tindall Gask Bentley provided two files to my chambers in sealed envelopes. One was marked as “Privileged Documents” and the other as “Non-privileged Documents”;
2. A List of Documents was filed by Tindall Gask Bentley listing each of the privileged and non-privileged documents contained in the files as delivered to the court;
3. An affidavit of Ms Antonietta Emanuele was filed dated 7 June 2019 in relation to the plaintiff’s files;
4. An affidavit of Mr John Ward was filed dated 7 June 2019, setting out all documents held by the defendant and indicating those forwarded to the plaintiff and when; and
5. An affidavit of the plaintiff was filed dated 6 June 2019.
In her affidavit of 7 June 2019, Ms Emanuele, senior associate of Tindall Gask Bentley, attested to the fact that on 11 April 2017, the plaintiff collected from the firm all the files that they had held that had been provided by his previous solicitors, including all medical reports and other discoverable evidence. The firm had been left with items of correspondence, legal advice and file notes. These were now provided to the Court by way of the two separate envelopes.
It is my view that this affidavit confirmed that there were no additional documents contained in the files provided by Tindall Gask Bentley that the plaintiff did not already have in preparation for the trial. The plaintiff had been in possession of these documents since 11 April 2017. That is, before the adjournment of the second trial on 12 April 2017. It appears that Chief Judge Evans was not advised at this time, that the plaintiff had collected these documents from Tindall Gask Bentley.
Ms Emanuele also confirmed by her affidavit that there were never any privileged documents of the plaintiff provided to the defendants by Tindall Gask Bentley. I have no reason not to accept the information contained in Ms Emanuele’s affidavit.
Mr Ward in his affidavit of 7 June 2019 set out in a schedule 204 documents (or in some cases bundles of documents) that have been provided to the defendants either by the plaintiff personally or by his solicitors; or provided to the plaintiff or his solicitors by the defendants’ solicitors, between April 2011 and June 2019. I pause to note that all of this material was obtained or provided before the matter was listed for trial in May 2018.
This list sets out both liability and quantum documents for all three motor vehicle accidents and includes 7 bundles of medical records; 33 medical reports prepared by medical experts; the plaintiff’s files from Workcover and SAPOL; the plaintiff’s tax returns for the past 14 years; the plaintiff’s Centrelink file; accounting reports; and the plaintiff’s Medicare statements. It is a very large amount of material. The plaintiff has not indicated what other material he believes exists, and which he requires to conduct his trial.
In relation to the plaintiff’s property in Jordan, I had ordered that the plaintiff file an affidavit. As at 30 May 2019, the court had not been provided with any evidence that the house existed; its ownership details; its value; or its ability to be sold. No documentation in relation to any of those matters had been provided. The existence and ownership of the property had only been put before the court by assertions in affidavits sworn by the plaintiff.
In this regard, I note that the plaintiff has been promising to provide funding for trial since before the adjournment of the 2015 trial relative to a property in Jordan. When he appeared before the Chief Judge on 6 April 2017, the plaintiff told him, as is recorded on transcript, that he would have funds in “the next four months”.
That issue was not assisted by the plaintiff’s affidavit of 6 June 2019. There is nothing contained therein for me to determine ownership of any property in Jordan. The plaintiff asserts that his property was held jointly with his sister who has now died. He believes that her share has been left to her children. However, he has no information as to what share that is or how it can be realised.
In relation to the death of the plaintiff’s sister, it is not even clear when this occurred, as I was only advised in court on 30 May 2019 that this was in 2015. However, in court on 21 June 2019, I was advised by the plaintiff that this was a mistake and she had died in 2017. I struggle to accept that the plaintiff can confuse when his sister died.
In any event, despite my order of 30 May 2019 and the comments of Chief Judge Evans on 12 April 2017, the plaintiff has not provided any documentary proof, or any independent proof at all, that he has any interest in any property in Jordan, or if he has any interests, whether that can be realised; and if so, how long that would take. The court since 2015 has been asked to simply accept that there is a property from which funds can be accessed.
Hearing 12 June 2019
The matter next came before me on Wednesday 12 June 2019. I was advised on that occasion, at the very start of the proceedings, of the following by the plaintiff:
…looks like we’re not going to reach an agreement. We go ahead with the trial with my children and my kind friend to decide to fund the case and we’re going to see a lawyer.
Having heard this, I asked the plaintiff directly whether he would be proceeding to trial, and he said “yes”. On that indication, I dismissed the plaintiff’s application to adjourn the trial set for 8 July 2019 and made an order that the defendant was to have the costs of, and incidental to, that application including attendances at the hearings.
At the directions hearing on 12 June 2019, there was discussion regarding the affidavit of Ms Emanuele, the List of Documents that had been filed by Tindall Gask Bentley, and the Schedule of Documents provided by Mr Ward within his affidavit. These were all filed pursuant to my orders of 30 May 2019.
I proceeded to make an order that the two files from Tindall Gask Bentley which had been in my chambers, be delivered to the Civil Registry and that the plaintiff have leave to inspect those documents and be provided with copies of any documents that he required, at no cost to him. I also ordered that copies of the List of Documents filed by Tindall Gask Bentley, which I noted were in summary form and did not breach any legal professional privilege, be provided to the defendants’ solicitors.
At the conclusion of the hearing, I adjourned the matter for a directions hearing at 9.15am on Tuesday 18 June 2019 to ensure that the parties were procedurally ready to proceed to trial on 8 July 2019, and, given that the plaintiff was not represented by solicitors, to enable him to obtain any consequential orders he required to proceed to trial.
In noting that the plaintiff had not provided the name of any solicitors he was instructing, I asked him whether he had yet approached solicitors. He advised me that he had not. However, my final question to him on 12 June 2018 was whether he was ready to proceed to trial on 8 July 2019. His answer was “yes”.
Further application to adjourn
On 17 June 2019, the plaintiff filed a further affidavit stating that “in regard to my efforts to raise the necessary funds to be able to instruct lawyers to conduct my case, I advise that as of the date of this my affidavit I have not been able to raise those funds.”
The plaintiff set out that he had asked his three children to apply to their banks for an increase in their mortgages so that they could make funds available to him, but that only one of his children was successful in obtaining funds of $20,000. As those funds were insufficient to instruct lawyers to conduct his case, the plaintiff intended to use the money to travel to Jordan to resolve the issue of his interest in the property in Amman. He stated that he had made travel arrangements to leave for Amman on Friday 14 June 2019, however he later called my chambers to advise that he in fact meant the date to be 24 June 2019. In any event, his intention was to meet with his nieces and nephews, who he says are the other owners of the property following the death of his sister, to resolve the matter of the sale and purchase of his interest in the property to them. He indicated that if that could not be agreed then he would apply to the competent court in Amman to resolve the matter.
The plaintiff sought time from the court to allow him to resolve the matter of his interest in the Jordanian property and then obtain the necessary legal representation to prepare and present his case before this court.
In reviewing this affidavit, I note that the plaintiff has still not provided any independent evidence to the court of the existence of any property in Jordan that he has an interest in, either legally or in equity. It was indicated by Chief Judge Evans in 2017 that this detail would be required if the court was to consider a further adjournment of the matter as a result of lack of funding. Despite the orders I made on 30 May 2019, the plaintiff has not provided any documentation at all. He has not provided any letters, notes or anything at all from his sister or her family since he first advised the court that he had travelled to Jordan in 2015, before the first trial, to secure funds.
In any event, following the filing of the affidavit of 17 June 2019, which was only five days after the plaintiff had indicated he would be proceeding to trial before me on 8 July 2019, I set the matter for argument on 21 June 2019.
At this hearing on 21 June 2019, the plaintiff provided a copy of a quotation for flights to Jordan, leaving Adelaide on 25 June 2019 at 5.30am and returning to Adelaide on 30 July 2019 at 8.00pm. He indicated to me that those flights had not yet been paid for, but that his daughter was to pay for them that afternoon by bank cheque. This means that the plaintiff misled the court when stating in his affidavit of 17 June 2019, that he had made arrangements to travel to Jordan on 24 June. He had not. He had not then paid for any travel.
The plaintiff again sought an adjournment upon the basis that he is significantly prejudiced in having to conduct the trial without legal representation, particularly in the face of the representation for the defendant by way of a barrister and solicitors and the defendant’s ability to call multiple expert witnesses. In response to a position put by the defendants that the plaintiff had conducted a trial and an appeal in the South Australian Employment Tribunal, the plaintiff indicated that while he had done so he had not been successful. The plaintiff submitted that he will be highly prejudiced in relation to the matter if he is required to conduct the trial without legal representation.
When asked about his clear advice to the court on 12 June 2019 that he would proceed to trial on 8 July 2019, he stated that his children could not provide funding and that his friend who had been in court with him was now no longer able to provide funding. He provided to me a letter, not attached to any affidavit, from a Mr Peter Charles Geddes of Geddes & Co Accountants dated 14 June 2019 where he indicated he was not in a position to fund the legal costs of the plaintiff’s barrister and lawyers for the forthcoming trial.
It is clear to me that when the plaintiff appeared before me in court on 12 June 2019, despite what he had told me, he had not secured funding to engage lawyers. Whether that was a delaying tactic is something I must consider.
The plaintiff also told me that his mental health was now poor and that for many years he had been suffering from very serious depression. He was reliant upon high doses of anti-depressant medication, and this impacted his capacity to understand legal proceedings.
I advised the plaintiff that I was aware of other proceedings where he had challenged evidence that he still suffered a psychiatric illness as at 2010 (these being criminal proceedings concerning an application made pursuant to s269P of the Criminal Consolidation Act 1935, for revocation of a Supervision Order)[2]. I told the plaintiff that I was aware that his treating psychiatrist, Dr Bem, via a medical report, was of the view that by early 2008 he had recovered from his very serious psychiatric condition, and he had remained symptom free. The plaintiff confirmed he no longer saw Dr Bem, although he remained under the care of his GP. In any event, I was not provided with any medical evidence by the plaintiff, such as medical records, a medical certificate or a medical report to support his submission that his capacity to conduct these proceedings was impacted by any mental illness.
[2] Draoui v R [2014] SADC 103.
In any event, I note that between 2010 and 2015 the plaintiff argued in both this Court and the Supreme Court that he had recovered from his mental illness such that supervision orders made on 27 September 2007 (resulting from a finding that the plaintiff was not fit to stand trial on 20 November 2006) could be lifted. It is my view that he cannot now argue that this is not the case, without providing medical evidence to support his case.
I further note the findings of Judge Hannon in the South Australian Employment Tribunal on 26 October 2017.[3] This was put before me by the defendant and referred to by the plaintiff. The decision was attached to the affidavit filed in this court of John Ward of 20 June 2019.
[3] Draoui v Return to Work SA [2017] SAET 135.
In this matter, the plaintiff was challenging consent orders approved by the Tribunal in August 2010, relevant to a claim for worker’s compensation arising from the first motor vehicle accident in 2001. The plaintiff alleged in the matter before Judge Hannon that, on account of long-standing mental illness, he was not mentally fit to give instructions to resolve his claim. Judge Hannon stated:
He said that at the time of the settlement in question, and continuing up to the present, he was taking a significant amount of anti-depressant medication daily to assist in keeping an underlying mental illness in remission. He said that the effects of the medication impaired his capacity to represent himself and to fully understand the terms of the settlement and the legal issues he had to deal within the proceedings.[4]
[4] At para 8.
I pause to note that this was the case put by the plaintiff before me on 21 June. The plaintiff’s submissions were not accepted by Judge Hannon who found as follows:
I consider that the applicant presented as an intelligent person, who was alert and appeared to be cognitively intact. He appeared to be able to adequately represent himself, accepting that he had difficulty with the legal concepts involved, and as to how to best present his case.[5]
[5] At para 9.
This finding was based on the following (at paragraphs 18-26):
On 18 December 2008, the applicant filed an affidavit in which he asserted he had recovered from his mental illness and was capable of giving instructions and providing evidence in the proceedings. He said that he no longer sought the appointment of a litigation guardian. Exhibited to the affidavit was a medical report of Dr Bem dated 10 December 2008 following his review of the applicant on 31 October 2008. Dr Bem was of the opinion that the applicant presented favourably without evidence of psychosis or depression, that he had been mentally well for several months, and was competent to give evidence in court.
On 16 February 2009 the applicant filed a further and more detailed affidavit with the Tribunal in which he set out details of the physical and mental effects on him of his alleged injuries. He stated that from 2007 he had made a conscious decision to become healthy and described the various steps he had taken in that regard, and their beneficial effect. He said that as at 16 February 2009, he understood his legal situation, and felt in control of his life, and was fully capable of giving instructions, and of providing evidence in court. Again, he stated that he did not feel that he needed a litigation guardian for any assistance or supervision. Exhibited to the affidavit was a copy of a further report of Dr Bem dated 19 January 2009 following an assessment on 13 January 2009. Dr Bem confirmed his opinion that over the previous months the applicant appeared extremely well and that his depressive disorder was in remission.
On 17 February 2009, on the basis of this material, the applicant’s counsel advised the Tribunal that, on his instructions, the applicant was capable of giving instructions and evidence, and that the application for appointment of a litigation guardian would no longer be pressed. On 21 April 2009 the applicant’s application for directions dated 27 November 2007 for appointment of a litigation guardian was dismissed by consent.
The material the applicant provided in support of his set aside application included a book of documents containing the order appointing Mrs Draouias litigation guardian in the personal injury proceedings, transcripts of a directions hearing in those proceedings on 30 September 2013, and extracts of the transcript of various directions hearings in these proceedings over the period from 2006 to 2009.
The impression gained from the documents provided was that the question as to the applicant’s mental capacity to instruct in these proceedings was unresolved at the time of the negotiations in 2010. That was a quite misleading impression given the applicant’s affidavits of late 2008 and early 2009 and the supporting reports of Dr Bem. Those affidavits only came to light upon my own research of the Tribunal file after the applicant filed his book of documents.
When the applicant was presented with the affidavits during his evidence, he acknowledged that he swore them, and that Dr Bem believed he was then fit to give instructions and to give evidence. He sought to explain why he had sworn the affidavits. He said he had no idea why he said that he was then mentally well. He said that he made the statements in the December 2008 affidavit only because his lawyers asked him to, and that he did not know what he was signing. He said that although he gave instructions to his solicitors to prepare the February 2009 affidavit stating that he did have mental capacity to instruct, he was not fit to give those instructions due to the effect of the medication he was taking for his mental illness.
The report of Dr Bem dated 1 February 2017 contained a comprehensive summary of a history of a long standing Major Depressive Disorder suffered by the applicant, which had deteriorated from 2004 on account of various stressors, and which had significantly improved by mid-2008. By that time, Dr Bem said there was no evidence of any obvious mood disturbance, perceptual abnormalities, paranoia or other features of psychosis. His opinion was that the applicant had been symptom free from that time, whilst noting that he needed to take 300mg daily of the antidepressant Venlafaxine. He stated that since 2008 the applicant had presented as a person who was bright and reactive in affect, well groomed, non-psychotic and cognitively intact. He was confident the applicant had mental capacity to provide instructions in relation to his claim in 2008 and beyond.
The applicant took no issue with the opinion of Dr Bem and spoke glowingly of him in terms of the help he had given the applicant in restoring his mental health. However, the applicant maintained that the ongoing medication intake had rendered him incapable of understanding the advice he was given and of acting in his interests.
I reject the evidence of the applicant on these matters. The history given by the applicant in his February 2009 affidavit as to the extent of his recovery from his mental difficulties, and the many factors which contributed to his improvement over 2008, was detailed and compelling. It is consistent with his having mental capacity at that time and since as described by Dr Bem despite his ongoing drug intake.
No new evidence has been provided by the plaintiff as to any deterioration in his mental state since these findings were made. For all of the reasons outlined above, I do not find that the plaintiff’s mental capacity or any mental illness restricts him from proceeding to trial on 8 July 2019.
The defendants’ position as set out in detailed submissions, is that they are ready to proceed to trial and are now taking steps for its preparation. This is the same situation as they had been in, in 2015 and 2017.
The defendants raised concerns regarding the question of the plaintiff raising funds against a property in Jordan and noted that this was the issue before the court when the plaintiff sought an adjournment of the first trial in 2015, some 4 years previously. It was also an issue raised before Chief Judge Evans when seeking an adjournment of the trial in 2017.
Counsel for the defendant submitted that the only evidence before the court with regard to the issue of the property in Jordan was the plaintiff’s own assertions, and despite the order made by me regarding the filing of an affidavit in relation to the property, no documentation or any material apart from the plaintiff’s assertions had been provided. I was asked to approach the plaintiff’s assertions as to the prospect of raising funds with scepticism, particularly given that the plaintiff appears to have taken no steps to raise funds despite having told the Chief Judge two years ago that he would absolutely raise those funds “within four months”. The defendants submitted that in the circumstances, the court could have no confidence that the plaintiff would be able to raise any funds in the short or long term.
The defendants are concerned about the delay in this matter and submitted that since the adjournment of the original trial in May 2015, the plaintiff’s claims for damages have not progressed at all. No new evidence has been provided since that time. The defendants point to an extraordinary delay given that the first accident occurred over 17.5 years ago.
In addition to the delay as a result of the adjournment of two earlier trials, the defendants asked me to consider the procedural history of this matter, which was put by counsel as being characterised by extensive delay, and default in relation to orders and procedures of the court. Of course, with the plaintiff not having legal representation, some allowance must be made in that regard. However, the defendant raised concern that despite indulgences granted to the plaintiff to address his funding issues, no progress has been made since before the first trial was listed in 2015.
The defendant submitted that both parties were entitled to justice in relation to the progress of this matter and that the defendant is also entitled to their day in court. Counsel, Mr Day, indicated that costs thrown away, yet to be paid by the plaintiff, of the 2015 adjournment were in excess of $60,000. A lesser amount was incurred in relation to the 2017 trial adjournment, but there are now additional costs being incurred in relation to the preparation for the 2019 trial and the hearings upon the plaintiff’s applications to adjourn. Recoverable costs incurred by the defendant to date could well exceed $100,000, given the multiple costs orders against the plaintiff in relation to the delay. There is no indication that these costs will ever be paid, with the plaintiff telling the court that he now lives in rental accommodation, and his only income being a disability support pension.
The defendants asked me to consider the impact of the effect of the adjournments on court resources and to take into account that delay impacts memory in relation to the accidents. Further, delay strikes at the root of efficient and fair disposal of litigation within this court. The defendant submitted that in the interest of justice the matter must be brought to conclusion, and that insofar as the plaintiff finds himself in a difficult position it is one of his own making.
Finally, in relation to the issues raised by the plaintiff regarding his lack of fluency in the English language and his inability to comprehend legal technicalities, Mr Day noted that the plaintiff has resided in Australia for 45 years, and that available records indicated that English is the language spoken at home. He advised that to date, the plaintiff has not required the assistance of an interpreter at medicolegal assessments or when appearing in court.
In relation to the issue of comprehending legal technicalities, Mr Day told me that the plaintiff had substantial experience in litigation. In particular, the plaintiff has been involved in a number of other proceedings including a personal injuries claim in 1996; a criminal injuries compensation claim in 1998; criminal proceedings leading to the plaintiff being placed on a licence; applications to the District Court and the Court of Criminal Appeal with regard to revocation of that licence; bankruptcy proceedings in the Federal Court and personally conducting proceedings at first instance and on appeal in the South Australia Employment Tribunal.
The defendants submit that the plaintiff’s belated application to adjourn the trial should be refused.
Conclusion
From the documents provided to me, I am satisfied that the plaintiff has had all materials required to conduct his trial since the matter was listed for the third time on 7 May 2018. This is confirmed by evidence provided to the court by his previous solicitors, Tindall Gask Bentley.
I find that the plaintiff has taken no steps to secure funding since at least 8 May 2015, when the second trial date was adjourned. I also find that the plaintiff has taken no steps to instruct solicitors to act for him since 24 April 2017, when the second trial was adjourned
The plaintiff has advised me and has attested to in his affidavit that he is on a pension of $550 per fortnight and therefore has no funds to instruct solicitors until he sells a house, which he says he owns, or at least partly owns, in Amman, Jordan. The plaintiff has provided no evidence at any time to prove to this court that he in fact owns any property in Amman or has taken any necessary steps to sell any property.
That the plaintiff has a house in Jordan that he has been going to sell has been raised in this court since 2007. Judge Muecke, as he then was, when sentencing the plaintiff on criminal charges on 27 September 2007, noted that the plaintiff had told a supplier of product that he was in the process of selling his house in the Middle East for about $US300,000, and therefore finance for a purchase was not a problem. Judge Muecke then records that the plaintiff told the supplier that the money that was coming from the Middle East had been held up because of increased security on such transfers of money due to the events of September 11. There was no evidence in those proceedings of the plaintiff owning property in the Middle East.[6]
[6] Sentence of Judge Muecke dated 27 September 2007 at page 4.
Of greater concern is the transcript of Bankruptcy proceedings before Justice von Doussa on 21 December 1994[7]. At page 21 of that transcript the plaintiff gave evidence in relation to telling a creditor that he had a house in Jordan. As follows:
I did lie to him when I told him I’ve got the house in Jordan and some commission come to me. The only reason I lie to him was I wanted to get him off my back because he rang my house and talked to my wife and upset my children; I have got five children.
[7] Annexed as exhibit JMW 4 to affidavit of John Michael ward of 4 April 2017.
At page 22 of the transcript the plaintiff says further,
I have got nothing to lose. I have no assets; I have got nothing, absolutely nothing. My assets are I have got five children and my wife. This is my assets… I’ve got nothing, Your Honour’
In this court, before Judge Tracey on 4 May 2015, the plaintiff’s then solicitor, Mr Inglis told the court in relation to the plaintiff providing funds, that there is a “…propensity to provide cheques which will bounce and lots of promises being made and the funds are actually not turning up.”[8]
[8] T5.13.
I am not in a position to find whether or not the plaintiff owns property in Jordan, or whether he has ever made attempts to sell any property. However, no evidence of ownership of property, or in fact the existence of property has been put before the court.
Before Chief Judge Evans on 30 March 2017 there were the following exchanges:
Mr Draoui: when I went to Jordan, I did not, like what Mr Inglis claimed to raise funds – I have a sister, she insist I have to see her before she die. She was on her death bed. I went there and three hours I arrive she passed away.
His Honour: So, was it you and your sister that owned that property?
Mr Draoui: no, this separate, different one. I’ve got three sisters, your Honour. Two die and one still alive. [9]
…
His Honour: you’ve known, for a long time this matter has been listed and you’ve known for a long time that you would need representation.
Mr Draoui: yes, but at the same time I was fighting my criminal case, my children, they spend every single cent they have to fight that case, my friends, and we’re not right family, we are just like anybody else to survive[10]
[9] T10.11.
[10] T11.12.
Before Chief Judge Evans on 6 April 2017 the plaintiff said as follows:
…. you probably don’t believe my story but I’m going to put it to you. I’m going to bring all these documents you ask for, not only just for my sister, it’s signed by the local court and the land title over there, my parents’ property, I own half of it.[11]
No documents have been put before the court.
[11] T36.
The defendants’ position is that they are ready to proceed to trial as they have been on the former two occasions when the matter was listed for trial in 2015 and again in 2017.
In determining this application to adjourn the trial date set for 8 July 2019, I begin by having regard to the rules of this court and the Supreme Court in relation to the conduct of civil disputes. They are as follows:
[6R3] Objects
The objects of these Rules are—
(a) to establish orderly procedures for the just resolution of civil disputes; and
(b) to facilitate and encourage the resolution of civil disputes by agreement between the parties; and
(c) to avoid all unnecessary delay in the resolution of civil disputes; and
(d) to promote efficiency in dispute resolution so far as that object is consistent with the paramount claims of justice; and
(e) to minimise the cost of civil litigation to the litigants and to the State.
The conduct of litigation in this Court should proceed with these principles in mind. In all matters the interests of justice is paramount. However, the Rules also require a balancing of efficiency, and an orderly resolution of matters.
That balance was considered by the High Court in Aon Risk Management Services Australia Limited v Australian National University.[12] That case concerned an action in the ACT Supreme Court where the plaintiff was seeking recovery from its insurers and insurance brokers. On the third day of a four-week trial, the plaintiff sought an adjournment after negotiating a settlement with several parties, but not others. As a result of the settlements, the plaintiff applied to amend its Statement of Claim in a significant way that changed its case against the defendant insurance broker. A lengthy adjournment would be required.
[12] (2009) 239 CLR 175.
After several hearings and appeals, the matter reached the High Court, where the Court was asked to consider the relevant ACT Supreme Court rules and the impact of the rigors of case flow management upon principles of ensuring justice for the parties. The High Court allowed the appeal against the ACT Supreme Court’s decision to allow the plaintiff to amend its claim. French CJ stated as follows:
The ACT Rules, like their precursors, confer the discretion to give leave to amend and impose the duty to make amendments for the purpose of deciding the real issues in, and avoiding multiplicity of, proceedings. The discretion is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct in the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules …[13]
[13] Ibid 155.
Gummow, Hayne, Crennan, Kiefel and Bell JJ for the majority stated as follows at [111]-[114]:
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of case. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and police. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable, and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost, and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.
The Aon decision and the comments of High Court were considered by the Full Court of the Supreme Court in Channel 7 v Manock[14] where the impact of delay was examined when a late application by the defendant was made to amend its defence. The Full Court considered that there were a number of factors to now be considered when determining the interests of justice. The Court distilled the following from the Aon decision:
[14] [2010] SASCFC 59.
… there are a number of relevant matters that will need to be taken in to account in determining whether a late application for permission to amend should be granted. Those matters include:
(1) Whether there has been undue delay in making the application;
(2) The extent to which there will be wasted public resources in granting the amendment;
(3) Whether there will be inefficiency occasioned by the need to revisit interlocutory processes;
(4) Whether a trial date would need to be vacated or a trial adjourned;
(5) Whether there is any satisfactory reason for the delay in applying;
(6) Whether the point to be raised by the amendment would be raised in any event at the trial;
(7) The likelihood of strain and uncertainty being imposed on the litigants;
(8)Whether any further delay would undermine confidence in the administration of civil justice;
(9) Any other prejudice likely to be suffered by the other party;
(10) The additional costs likely to be incurred.[15]
[15] Para 46.
These matters were recently considered by Justice Hughes in Matthews v Whites Hill Pty Ltd[16] in an application by defendants to vacate a trial set for 5 days, made 6 days before the trial was to commence. She considered that the paramount consideration for her determination was the “just resolution of the proceedings”.[17] Justice Hughes agreed with the applicant that the just resolution of the proceedings required consideration of the factors determined by the High Court in the Aon case, as distilled into a list by the Full Court in Channel 7 v Manock.[18]
[16] [2019] SASC 78.
[17] Para 3.
[18] Para 3 and 4.
In considering those matters, the defendants before me, by their counsel Mr Day pointed to the extraordinary delay in bringing the matter to resolution and the fact that there was no certainty or evidence that if the July trial was adjourned that the plaintiff would be in a position to proceed to trial in the future. He submitted that the plaintiff assured the Chief Judge in April 2017 that the funds would absolutely be raised within 4 months, and that did not occur. He submitted that the court could have no confidence that funds would be obtained in the short to medium term, or at all. Having reviewed all of the evidence over the history of this matter, and the plaintiff’s other matters in the court, as I have set out above, I share that view.
There are other matters that I take into account. The plaintiff has left it to the eleventh hour before commencement of trial to make an application for adjournment of the trial date. The defendants have witnesses in place and are ready to proceed. There will be further costs incurred by the defendants in cancelling such witnesses, and especially medical experts. These are costs that will be addition to the significant costs that they incurred in 2015 and 2017. These are costs which the defendant could well not recover given the plaintiff’s financial circumstances.
The plaintiff’s three actions have involved significant amounts of the court’s time and resources to date. I have calculated to somewhere in the vicinity of 70 hearings to date. The matter is currently listed for 20 days. That is time that could have been used by other litigants who are awaiting a trial date. This is the third time that the plaintiff seeks an adjournment at a very late stage, meaning that trial dates are wasted, and court resources cannot be used for other litigants. In the circumstances, it is my view that any further delay would undermine confidence in the administration of justice of this state.
As French CJ noted in Aon, the courts can no longer ignore undue delay and the waste of public resources occasioned by multiple interlocutory processes and vacated trial dates. I cannot be satisfied that if a further adjournment is granted, the plaintiff will take steps to gain legal representation or obtain funding for the representation. He has not taken those steps since Tindall Gask Bentley ceased to act for him in March 2017, over two years ago. This is despite indicating he would do so when the second trial was adjourned in April 2017. The trial set for May 2017 was adjourned so that the plaintiff could obtain legal representation. Now, over two years later, this has not occurred.
I am not satisfied that if this matter is again adjourned, the plaintiff will be able to obtain such representation without funding. I am not satisfied that he has capacity to obtain that funding. I find that the matter has reached a point where it must be conducted to trial once and for all. I am satisfied that the plaintiff has all the materials required to conduct the trial on the issues in this matter.
I also note that the plaintiff has had access to considerable legal advice. In court before me on 21 June he set out all the payments he had made to lawyers acting on his behalf. I am satisfied that he and his lawyers had all documents necessary to conduct his case at least from the time the matter was listed for trial a second time in May 2017. In 2018, he has been able to file documents in court in preparation for trial as ordered by the court.
The plaintiff has not explained to the court why his application to adjourn trial was not made earlier, or why he has not sought funding for trial over the last two years. The mere fact that a party is not represented is not a satisfactory reason for delay.
The defendants argue that they are entitled to justice in this matter. Several of their expert medical witnesses are now elderly, and further delay may impact on their ability to conduct its case. Further, there are lay witnesses in relation to liability, and concerns regarding memories of events fading. The defendants submit that in the interests of justice, this matter must be concluded.
It is my view that leave should not be granted to the plaintiff to further adjourn this matter. The plaintiff has been granted the indulgence of the court on two previous occasions when trials have been adjourned at a very late stage. Despite those two previous adjournments, the plaintiff has taken no steps to obtain the funding he says that he needs to instruct lawyers to act for him. I am not satisfied that if this adjournment is granted that he will take those steps, or in fact whether he is in a position to secure the required funds. No evidence of any of that has been provided to the court, despite request for evidence of an asset in Jordan that can be liquidated.
The plaintiff’s application to adjourn the trial set for 8 July 2019 was made at a very late stage, with no explanation why it was not made before. In my view, the just resolution of the matter demands that the trial proceed as scheduled.
The plaintiff’s application for adjournment of the trial is refused. I order that the trial proceed at 10.00am on Monday 8 July 2019, with 20 days set aside
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