Zaghloul v Bayly - [2020] WADC 84

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ZAGHLOUL -v- BAYLY [2020] WADC 84
CORAM:   BRADDOCK DCJ
HEARD:   2 AUGUST 2019
DELIVERED          :   11 JUNE 2020
FILE NO/S:   CIV 2756 of 2017
BETWEEN:   HASSAN ZAGHLOUL
Plaintiff
AND
DAVID JOHN BAYLY
First Defendant
BRADLEY BAYLY HOLDINGS PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim and dismiss action - Whether any reasonable cause of action - Effect of bankruptcy of plaintiff - Jurisdiction of District Court - Whether defendants under any duty of care to plaintiff - Scandalous, vexatious and oppressive

Legislation:

Australian Consumer Law (Cth)
Bankruptcy Act 1966 (Cth)
Civil Liability Act 2002 (WA), s 5S
Evidence Act 1906 (WA)
Legal Profession Act 2008 (WA), s 288(2)
Legal Profession Conduct Rules 2010 (WA)
Legal Profession Rules 2009 (WA)
Rules of the Supreme Court 1971 (WA), O 16, O 20

Result:

Judgment for the defendants

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr S F Popperwell
Second Defendant	:	Mr S F Popperwell

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	Popperwell & Co
Second Defendant	:	Popperwell & Co

Case(s) referred to in decision(s):

Albrecht v Commonwealth Bank of Australia [2015] WASC 167
Konings v Commonwealth Bank of Australia [2016] WASCA 122
Nominal Defendant v Owens (1978) 22 ALR 128
Rayney v The State of Western Australia [2009] WASC 105
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Westpac Banking Corporation v Anderson [2017] WASC 106
Wilson v Dun's Gazette Ltd [1912] VLR 342
Zaghloul v Jewellery & Gift Buying Services Pty Ltd [2019] FCCA 583

BRADDOCK DCJ:

The plaintiff commenced proceedings in this court against his former solicitor, the first defendant, and the law practice of which the first defendant was a director, the second defendant. A writ was filed on 30 July 2017.
The proceedings did not advance swiftly. I set out below a brief chronology of the significant filings in the action:

31 July 2017

Writ filed with general indorsement

29 September 2017

Statement of claim filed

21 June 2018

Plaintiff's application for summary judgment dismissed

10 August 2018

Amended statement of claim filed

7 January 2019

Further amended statement of claim filed (FASOC)

25 January 2019

Defence to further amended statement of claim filed

22 March 2019

Chambers summons by defendants to strike out FASOC [the Application]

17 April 2019

Chambers summons adjourned

17 June 2019

Plaintiff's submissions, plaintiff's affidavit, and a second further re‑amended statement of claim filed

20 June 2019

Chambers summons heard

The indorsement of claim on the original writ reads as follows:
The plaintiff's claim is for one, a combination of, or all causes of action in breach of fiduciary duty; misleading or deceptive conduct; unconscionable conduct; breach of contract; breach of the Legal Profession Act 2008 (WA) (LPA), and Legal Profession Rules 2009 (WA); professional negligence; conspiracy to injure; or unjust enrichment by total failure of consideration of costs agreement dated 5 March 2013.

Extension of…

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.

Continue reading Zaghloul v Bayly

Details

AGLC: Zaghloul v Bayly [2020] WADC 84
Case: [2020] WADC 84
Decision Date: 11 JUNE 2020

CaseChat Overview and Summary

In Zaghloul v Bayly, the plaintiff, Mr. Zaghloul, filed a statement of claim against the defendants, Bayly and another, seeking damages for personal injuries. The defendants applied to strike out the statement of claim and dismiss the action on several grounds, including that there was no reasonable cause of action, and that the plaintiff's bankruptcy rendered him unable to proceed with the litigation. The case was heard in the District Court of Western Australia.

The court was required to determine whether the statement of claim disclosed any reasonable cause of action, whether the bankruptcy of the plaintiff affected his ability to proceed with the litigation, and whether the defendants owed any duty of care to the plaintiff. Additionally, the court needed to consider whether the action was scandalous, vexatious, or oppressive.

The court found that the statement of claim did not disclose any reasonable cause of action, as the plaintiff had not alleged any facts that would entitle him to damages. The court further found that the plaintiff's bankruptcy did not affect his ability to proceed with the litigation, as he had obtained leave to do so. However, the court found that the defendants did not owe any duty of care to the plaintiff, and that the action was scandalous, vexatious, and oppressive. The court held that the plaintiff had not shown any likelihood of success in the action, and that the defendants were entitled to summary judgment. The court struck out the statement of claim and dismissed the action, and ordered the plaintiff to pay the defendants' costs.

The court's orders were that the statement of claim be struck out, judgment be entered in favour of the defendants, and the plaintiff pay the defendants' costs of the application and the action. The court also ordered that the plaintiff's costs be taxed if not agreed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The principles in relation to summary judgment are well established in that a party should not ordinarily be denied the opportunity to have a case determined after trial.[31][31] Westpac Banking Corporation v Anderson [2017] WASC 106 [50] - [54]. Under O 16 a defendant may apply for summary judgment on the basis set out in the rule. In opposing such an application a plaintiff is confined to the pleadings. It is not for the court to find some other cause of action that might arise. However, as indicated earlier, latitude is given where a litigant in person is involved.[32][32] Albrecht v Commonwealth Bank of Australia [2015] WASC 167 [39] - [41]. This court has considered the plaintiff's FASOC both in overview and detail. Where indicated, the FASOC offends RSC O 20 r 19 and O 20 r 8. In relation to the claim for personal injuries, there is a good defence in law and no amendment will change this. Therefore, even allowing latitude to the plaintiff, his action must fail. For all the reasons given above, the defendants succeed in their applications. There is nothing salvageable from the FASOC. The orders of the court are that:1.FASOC is struck out;2.judgment for the defendants;3.the plaintiff pay the defendants' costs of this application and the action to be taxed if not agreed.

31 July 2017	Writ filed with general indorsement
29 September 2017	Statement of claim filed
21 June 2018	Plaintiff's application for summary judgment dismissed
10 August 2018	Amended statement of claim filed
7 January 2019	Further amended statement of claim filed (FASOC)
25 January 2019	Defence to further amended statement of claim filed
22 March 2019	Chambers summons by defendants to strike out FASOC [the Application]
17 April 2019	Chambers summons adjourned
17 June 2019	Plaintiff's submissions, plaintiff's affidavit, and a second further re‑amended statement of claim filed
20 June 2019	Chambers summons heard