ABDOU KHALIL NASSAR DRAOUI In Person v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA [2024] SASCA 128

On Appeal from SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL (HIS HONOUR DEPUTY PRESIDENT JUDGE GILCHRIST, HIS HONOUR DEPUTY PRESIDENT JUDGE CRAWLEY AND HER HONOUR AUXILIARY DEPUTY PRESIDENT MAGISTRATE CARREL) [2024] SAET 56 Applicant: ABDOU KHALIL NASSAR DRAOUI In Person Respondent: RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA Counsel: MR P D’ASSUMPCAO - Solicitor: MINTERELLISON Hearing Date/s: On the papers File No/s: CIV-24-007347 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. DRAOUI v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA [2024] SASCA 128 Judgment of the Court of Appeal (The Honourable Justice S Doyle and the Honourable Justice Bleby) 4 November 2024 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA This is an application for leave to appeal from a decision of the Full Bench of the South Australian Employment Tribunal, dismissing an appeal from a decision of a single judge of the Tribunal, refusing an application to reopen earlier proceedings which were before the Workers Compensation Tribunal in 2010. The applicant has generally been unrepresented during the course of the proceedings, although he has at times had some legal assistance. The applicant now complains that the Tribunal: (1) failed to take into account a psychiatric report regarding his mental capacity; (2) did not offer him an interpreter or other person to assist his understanding of the law; (3) took into account an irrelevant fact; (4) gave insufficient weight to his level of capacity; and (5) gave insufficient attention to his submissions. Held, (per the Court), refusing leave to appeal: 1. In circumstances where no question of law arises from the matters raised by the applicant, the proposed appeal has no arguable merit and does not give rise to any issue of principle or general importance, and refusing to entertain the appeal will not give rise to any substantial injustice, it is appropriate that leave be refused. 2. The applicant is to pay the respondent’s costs of the application for leave to appeal, fixed in the amount of $1,500. South Australian Employment Tribunal Act 2014 (SA) s 68, referred to. Draoui v Return to Work Corporation of South Australia [2023] SAET 42; Draoui v Return to Work Corporation of South Australia [2024] SAET 56, considered. -- 1 of 6 -- -- 2 of 6 -- DRAOUI v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA [2024] SASCA 128 Court of Appeal – Civil: S Doyle and Bleby JJA 1 THE COURT: In June 2023, Dolphin PJ refused Mr Draoui’s application to reopen earlier proceedings before the Workers Compensation Tribunal.1 In July 2024, the Full Bench dismissed his appeal on the basis that Mr Draoui had neither demonstrated error nor identified any question of law.2 2 Mr Draoui now seeks leave to appeal from this Court. For the reasons which follow, leave to appeal is refused. Background 3 The detailed background to this application has been set out in the reasons of the Full Bench, and need not be repeated. It is sufficient to note the following matters by way of overview. 4 In December 2001, Mr Draoui sustained injuries in a motor vehicle accident, which he claimed occurred in the course of his employment. His claim for compensation was rejected by the WorkCover Corporation, and so he commenced proceedings. In August 2010, his claim was resolved by consent orders and a redemption agreement. He was represented by solicitors. 5 In June 2015, Mr Draoui sought to reopen his claim for compensation. He claimed that he had been pressured into the settlement by his legal representatives, and that he lacked the mental capacity to understand the settlement and to provide proper instructions. In 2017, his application to reopen was dismissed by Hannon DPJ. His Honour accepted the evidence, including a report from the applicant’s treating psychiatrist, Dr Bem, dated 1 February 2017, to the effect that Mr Draoui had suffered a significant mental illness over a period of about four years, up to about December 2008, which rendered him unfit to provide instructions during that time. His Honour also noted that during this period, some criminal proceedings involving Mr Draoui had been stayed on account of his mental state, and his wife had been appointed as his litigation guardian in other civil proceedings. However, Hannon DPJ found that Mr Draoui was mentally competent to provide instructions over the period from June to September 2010 when his workers compensation claim was negotiated and finalised, and settlement monies paid. 6 In 2019, Mr Draoui’s appeal to the Full Bench was dismissed. Mr Draoui did not seek leave to appeal to this Court. 1 Draoui v Return to Work Corporation of South Australia [2023] SAET 42. 2 Draoui v Return to Work Corporation of South Australia [2024] SAET 56. -- 3 of 6 -- [2024] SASCA 128 The Court 2 7 In November 2022, Mr Draoui filed a second application to reopen his claims for compensation, this time relying upon what he contended was fresh evidence in support of his asserted limited English language skills and lack of capacity to instruct at the time of the settlement and consent orders in 2010, and the consequentially erroneous failure to appoint a litigation guardian to protect his interests. 8 Mr Draoui relied upon three items of contended fresh evidence: a further report from Dr Bem, dated 25 May 2020; a report from a professor of linguistics, Professor Zuckermann, dated 14 May 2020; and a decision of a Master of the District Court, dated 30 September 2013, to the effect that Mr Draoui was not mentally fit to provide instructions and ought to be represented through a litigation guardian. 9 The application was heard by Dolphin PJ. Whilst initially unrepresented, Mr Draoui was represented by the time of the oral hearing of his application. 10 In June 2023, Dolphin PJ dismissed the second application to reopen. His Honour concluded that none of the evidence relied upon was ‘fresh’ in the relevant sense. The matters relied upon did not advance the evidence before Hannon DPJ and hence were unlikely to have made any difference and, in the case of the District Court judgment, was available to Mr Draoui at the time of the first application to reopen. There being no admissible fresh evidence, the second application to reopen was dismissed as an abuse of process on the basis that it was an impermissible attempt to relitigate the first application to reopen. 11 Mr Draoui attempted to appeal Dolphin PJ’s decision directly to this Court. When that attempt failed, he filed an appeal to the Full Bench of the Tribunal. His notice of appeal did not identify any question of law, but relied instead on grounds which in substance complained that Dolphin PJ failed to give sufficient weight to the fresh evidence upon which Mr Draoui had sought to rely. Mr Draoui was generally unrepresented before the Full Bench, although he had some legal assistance at times in the course of the proceedings below. 12 In July 2024, the Full Bench dismissed Mr Draoui’s appeal. Their Honours undertook a thorough review of the history of the matter, and gave detailed reasons for their decision. In summary, they agreed with Dolphin PJ’s reasons and decision. Their Honours concluded that Mr Draoui had failed to demonstrate any error in Dolphin PJ’s reasons or decision, and that the appeal raised no question of law and must be dismissed. Application for leave to appeal 13 Mr Draoui now seeks leave to appeal to this Court on the following grounds: 1. The Tribunal ignored a report ordered by Judge Muecke in 2008. The report said that I still needed treatment so Judge Muecke ordered that my wife remain litigation guardian, however somehow Hannon DPJ found that I was mentally competent from December 2008. In 2010, Judge Muecke ordered another report from an independent -- 4 of 6 -- [2024] SASCA 128 The Court 3 psychiatrist which also said I was unfit to give instructions. Again in 2012 the judge refused to give me instructions and said my wife had to remain as litigation guardian. 2. At no time did the Tribunal or judge ask me if I needed an interpreter or someone to assist me in my understanding of the law. 3. Judge Dolphin also mentioned my background although the fact that I am Palestinian is irrelevant to my case as I am an Australian Citizen. 4. Insufficient weight was given to my level of incapacity, although I provided extensive medical records. 5. Insufficient attention to my submissions. 14 Mr Draoui is unrepresented before this Court. 15 In determining whether to grant leave to appeal, this Court acts in the interests of justice, having regard to considerations such as whether there is arguable merit in the appeal, whether it raises any issue of principle or general importance, and whether there would be any substantial injustice to the applicant in leaving the decision below to stand. In the context of a proposed appeal from the Full Bench of the Tribunal under s 68 of the South Australian Employment Tribunal Act 2014 (SA), a consideration of whether there is any arguable merit in the appeal necessarily includes consideration of whether the applicant has articulated any question of law; or, in the case of an unrepresented litigant who may not have the legal skills to articulate a question, whether the matters sought to be ventilated give rise to any question of law. Consideration 16 To the extent that he seeks merely to reagitate the matters relating to his mental capacity and limited English skills, and the failure to appoint a litigation guardian, which have already been addressed by Dolphin PJ and the Full Bench (and, indeed, in the context of Mr Draoui’s first application to reopen), there is no merit in Mr Draoui’s application for leave to appeal. For the reasons given by the Full Bench, those arguments are without merit and do not, in any event, give rise to any question of law. 17 Focussing more directly upon Mr Draoui’s five proposed grounds of appeal, these are similarly unmeritorious. 18 Ground 1 appears to involve a complaint that a December 2008 report from his treating psychiatrist, Dr Bem, was ignored by the Tribunal. There is no merit in this complaint. Dolphin PJ specifically referred to this report in his reasons, and it is clear that both he and Hannon DPJ (on the earlier application) gave detailed consideration to the views expressed by Dr Bem. Whilst this proposed ground also refers to other steps taken in other civil proceedings in the District Court before Judge Muecke, it is not entirely clear what is being referred to, and not at all clear how it might be permissibly relied upon, or relevant to, an appeal to this Court. -- 5 of 6 -- [2024] SASCA 128 The Court 4 The matters raised appear to be a yet further attempt to reagitate the matters already dealt with at length by the Tribunal, and Full Bench, on both applications to reopen. 19 Ground 2 involves a complaint that Mr Draoui was not offered an interpreter, or someone to assist him in understanding the law. It overlaps with Ground 4, which complains that insufficient weight was attached to his level of capacity. Once again, Mr Draoui’s asserted lack of capacity, limited English skills and lack of assistance through a litigation guardian or (at times) legal representation, are matters that were addressed in detail in the course of the reasons of the Tribunal, and Full Bench, on both applications to reopen. No error has been identified in the reasoning or decisions below in relation to these matters. Nor do the complaints give rise to any question of law. These grounds have no arguable merit. 20 The same may be said of Ground 5 which complains merely that Mr Draoui’s submissions were afforded insufficient attention. 21 Finally, Ground 3 complains that Dolphin PJ made an irrelevant reference to Mr Draoui’s Palestinian background, given that he is an Australian citizen. The reference was a mere aside in the context of considering Mr Draoui’s fluency in English, and provides no basis for complaint. 22 In summary, the proposed appeal does not give rise to any issue of principle or general importance. Nor would refusal to entertain it give rise to any substantial injustice given the procedural history that has been outlined. More fundamentally, however, the proposed appeal does not have arguable merit. No question of law has been identified, or otherwise arises from the matters sought to be raised. 23 Leave to appeal is refused. 24 The Court was assisted by submissions which were provided by the respondent at the Court’s request. The applicant is to pay the respondent’s costs of the application for leave to appeal, fixed in the amount of $1,500. -- 6 of 6 --