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Zaghloul v Bayly

Zaghloul v Bayly

Case [2023] WASCA 64 20 April 2023

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Appeal

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ZAGHLOUL -v- BAYLY [2023] WASCA 64
CORAM:   MURPHY JA
VAUGHAN JA

HEARD:   20 APRIL 2023
DELIVERED          :   20 APRIL 2023
PUBLISHED           :   20 APRIL 2023
FILE NO/S:   CACV 10 of 2023
BETWEEN:   HASSAN ZAGHLOUL
Appellant
AND
DAVID JOHN BAYLY
First Respondent
BRADLEY BAYLY HOLDINGS PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SHEPHERD DCJ
File Number            :   CIV 2756 of 2017

Catchwords:

Practice and procedure - Appeal - Appeal against primary judge's decision on appeal against a deputy registrar's orders - Where deputy registrar dismissed application to strike out defence and enter summary judgment for appellant

Practice and procedure - Appeal to primary judge under pt 2 r 15(6) of District Court Rules 2005 (WA) - De novo review

Practice and procedure - Interlocutory appeal - Whether leave required to appeal from primary orders - Anomaly between s 60(1)(b) of Supreme Court Act 1935 (WA) and s 79(1)(b) of the District Court of Western Australia Act 1969 (WA) - Leave to appeal to Court of Appeal required - Where effect of primary orders was to allow trial on merits - No demonstration of substantial injustice

Legislation:

District Court Rules 2005 (WA), pt 2 r 15(6)
Supreme Court Act 1935 (WA), s 60(1)(b)
District Court of Western Australia Act 1969 (WA), s 79(1)(b)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	S F Popperwell
Second Respondent	:	S F Popperwell

Solicitors:

Appellant	:	In person
First Respondent	:	Popperwell & Co
Second Respondent	:	Popperwell & Co

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

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Cristovao v Dutton [2016] WASCA 163
Dey v Victoria Railway Commissioners (1949) 78 CLR 62
Dodds v Kennedy [2011] WASCA 32
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27
Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79
Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45
Waller v Waller [2009] WASCA 61
Zaghloul v Bayly [2021] WASCA 125

REASONS OF THE COURT:

Introduction

This matter came to a hearing on 20 April 2023 to consider the application by the appellant (Dr Zaghloul) for leave to appeal. We refused the application for leave to appeal and dismissed the appeal and said we would provide written reasons. These are our reasons.
The appeal was against the orders of Shepherd DCJ dated 24 January 2023, pursuant to which her Honour dismissed Dr Zaghloul's appeal against the orders of Deputy Registrar Harman dated 10 August 2022. The deputy registrar had dismissed Dr Zaghloul's application to strike out the respondents' defence and for summary judgment to be entered in his favour in the primary proceedings.

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 [2023] WASCA 64
Case: [2023] WASCA 64
Decision Date

CaseChat Overview and Summary

In the Court of Appeal of Western Australia, Dr. Zaghloul appealed against the decision of Shepherd DCJ, who dismissed Dr. Zaghloul's appeal against the orders of Deputy Registrar Harman, who dismissed Dr. Zaghloul's application to strike out the respondents' defence and for summary judgment in the primary proceedings. In the primary proceedings, Dr. Zaghloul alleged that the respondents, as his former solicitors, exacerbated his psychiatric illness through their advice and conduct in relation to claims for personal injury against his former employer, Woodside Energy Ltd. The appeal to the Court of Appeal was heard on 20 April 2023, and the Court refused the application for leave to appeal and dismissed the appeal.

Dr. Zaghloul submitted that the primary judge's orders were plainly wrong and that there was sufficient doubt to warrant reconsideration of the judgment. The primary judge dismissed the appeal and gave extemporaneous reasons. The primary judge found that the appeal was to be heard as an appeal de novo; a hearing 'afresh'. There was no requirement to demonstrate error by the deputy registrar. However, Dr. Zaghloul was confined to the matters that were the subject of the application before the deputy registrar. The primary judge found that the respondents did not commit 'onerous' breaches of the pleading rules in the Rules of the Supreme Court. The defence was properly pleaded. Admissions and denials were made where the respondents considered it appropriate. The respondents set out their position in respect of each paragraph of the 'fresh' statement of claim. The defence went beyond mere denials. Summary judgment may only be granted if the facts were undisputed and the law was clear. That was not this case.

The Court of Appeal found that the effect of the primary judge's orders is that Dr. Zaghloul will need to prove his case in the usual way. Dr. Zaghloul bears the onus of proof on the issues of duty, breach, causation and damage. There is typically no injustice in having a case determined on its merits. Although the six-week delay in giving discovery ought not to have occurred, the respondents' explanation was sufficient in the circumstances and the delay provided no proper basis upon which to strike out the defence or to enter summary judgment against the respondents. Insofar as Dr Zaghloul contended that discovery by the respondents was inadequate, the proper remedy was to make an application under O 26 r 6. That is the conventional course to be undertaken by a party complaining of the inadequacy of discovery. An application of that kind would not occasion any injustice to Dr Zaghloul. Further, there was no proper basis for the contention that the respondents had improperly withheld documents on discovery in order to prejudice Dr Zaghloul's case. Nor was there any proper basis to contend that the respondents' defence would or may inhibit a fair trial of the action. The defence is adequately pleaded and, to the extent that Dr Zaghloul reasonably requires further particularity, he may seek particulars.

For these reasons, the Court of Appeal made orders that: 1. Leave to appeal is refused. 2. The appeal is dismissed.

Orders