Draoui v Le, Then & Cock - [2019] SADC 85

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 85
The 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;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] SADC 85
Decision Date: 24 June 2019

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, Draoui, to set aside an order of the court that had been made by consent. The defendant, Le, sought an adjournment of the hearing of the application. The case was heard in the Federal Circuit Court of Australia by Justice Edelman.

The legal issues before the court were whether the application to set aside the consent order should proceed and whether the application for an adjournment should be granted. The court had to consider whether the plaintiff's application was made in the interests of justice and whether there were exceptional circumstances justifying an adjournment.

The court found that the application to set aside the consent order should proceed, as the plaintiff had demonstrated that there were circumstances that justified the setting aside of the order. The court also found that the application for an adjournment should be refused, as the defendant had not demonstrated that there were exceptional circumstances that justified the adjournment. The court held that the defendant's application was an abuse of process, and that the plaintiff's application should be heard as scheduled.

The court ordered that the application to set aside the consent order proceed, and that the application for an adjournment be dismissed. The court further ordered that the plaintiff's application to set aside the consent order be listed for hearing on the scheduled date.

Orders