Zaghloul v Bayly
[2023] WASCA 64
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.
In general terms, in the primary proceedings, Dr Zaghloul alleged, in effect, that the respondents, in their capacity as his former solicitors, had exacerbated his psychiatric illness as a result of their advice and conduct in relation to claims for personal injury against his former employer, Woodside Energy Ltd (Woodside).
Dr Zaghloul commenced the primary proceedings in 2017. They have a lengthy and difficult history, including an appeal to this court in relation to pleadings issues and an earlier order by Braddock DCJ summarily dismissing Dr Zaghloul's action. In the earlier appeal to this court, the court found, in effect, that whilst numerous claims by Dr Zaghloul were appropriately struck out, Dr Zaghloul should not have had his claim in negligence summarily dismissed on the basis (as found by Braddock DCJ) that the respondents had a good defence to the action under s 5S of the Civil Liability Act 2002 (WA). The result of that appeal was that Dr Zaghloul was given the opportunity to file and serve a minute of proposed amended statement of claim confined (in general terms) to a claim in negligence, with remitter to the District Court to determine whether to grant leave to file and serve an amended statement of claim in accordance with such a minute. This court published reasons: Zaghloul v Bayly [2021] WASCA 125 (2021 Appeal decision).
Ultimately, pursuant to the remitter, Dr Zaghloul filed a minute of proposed amended statement of claim for which the principal registrar of the District Court granted leave on 17 January 2022. On 20 January 2022, Dr Zaghloul, in accordance with the leave granted by the principal registrar, filed a statement of claim designated 'fresh statement of claim'.
The primary proceedings
The claims in the primary proceedings[1]
[1] The following is, in general terms, a summary of what appears to be the principal allegations made in Dr Zaghloul's 'fresh statement of claim' filed 20 January 2022 in the primary proceedings. It does not purport to represent or involve any findings of fact.
In 2008, Dr Zaghloul was employed with Woodside as a structural engineer. On 13 April 2011, he suffered a workplace psychiatric injury in the course of his employment. Between May 2011 and February 2013, he retained three law firms with a view to commencing legal proceedings against Woodside. Dr Zaghloul developed a perception that his lawyers 'conspired with Woodside' and, as a result, he suffered deterioration of his psychiatric illness. On 27 August 2012, he commenced proceedings in the Federal Court of Australia against Woodside for negligence and breach of contract. On 5 December 2012, he lodged a workers' compensation form with WorkCover WA to recover the prescribed amount under the Workers' Compensation and Injury Management Act 1981 (WA) (Workers' Compensation Act). On 31 January 2013, Woodside declined to pay the prescribed amount. On 5 February 2013, Woodside terminated Dr Zaghloul's employment.
On 14 February 2013, Dr Zaghloul met with the first respondent (Mr Bayly) and another person at the offices of the second respondent (Bradley Bayly Holdings) in which, amongst other things, Dr Zaghloul expressed his perception that Woodside had 'bought' his former lawyers. Mr Bayly replied that 'no one could buy him'.
In or about April 2013, Dr Zaghloul signed a retainer agreement to retain Bradley Bayly Holdings to act for him in relation to his workers' compensation claim.
On 16 April 2013, Woodside brought a summary judgment application in the Federal Court on the basis that, under s 93K(4)(c) of the Workers' Compensation Act, the court did not have jurisdiction to award damages because Dr Zaghloul had not elected to seek common law damages before commencing the Federal Court proceedings. On 17 April 2013, Mr Bayly advised Dr Zaghloul that Woodside would succeed in its application for summary judgment. Dr Zaghloul alleges that the advice was negligent.
On 6 May 2013, the respondents filed a writ on behalf of Dr Zaghloul in the District Court of Western Australia against Woodside for negligence and breach of contract. Mr Bayly advised Dr Zaghloul that the two actions - in the Federal Court and in the District Court - were in conflict, and that the Federal Court proceedings should be dismissed by consent in order to focus on the District Court proceedings.
In late July and into August 2013, the respondents urged Dr Zaghloul to maintain the District Court proceedings, but Dr Zaghloul instructed the respondents to discontinue the District Court proceedings.
By emails in late July, August and September 2013 to Mr Bayly, Dr Zaghloul alleged that Mr Bayly had conspired with Woodside to sabotage his claim in the Federal Court by advising him to dismiss the Federal Court proceedings, and that the purpose of the District Court action was to maximise legal fees. Dr Zaghloul requested clarification as to whether his understanding was correct, otherwise he would be 'justified in [his] belief that [Mr Bayly] conspired with Woodside'. The respondents did not reply to these allegations.
In June and July 2013, Mr Bayly provided a draft statement of claim for the District Court proceedings which, according to Dr Zaghloul, was allegedly deficient in a number of respects, including with reference to one of the Woodside managers. Dr Zaghloul alleges that a reasonably competent lawyer in the position of the respondents would not have (1) commenced the District Court proceedings, (2) advised Dr Zaghloul to maintain the focus on the District Court proceedings, (3) provided an allegedly deficient statement of claim, or (4) advised Dr Zaghloul to consent to the dismissal of the Federal Court proceedings. Instead, according to Dr Zaghloul, a reasonably competent lawyer in the position of the respondents would have (1) agreed to represent Dr Zaghloul in the Federal Court proceedings, (2) ensured that any legal advice was properly explained and clarified, (3) acted on Dr Zaghloul's instructions to discontinue the District Court action, and (4) replied to Dr Zaghloul's allegations of conspiracy.
Dr Zaghloul alleged that by reason of the matters pleaded, he suffered (1) aroused feelings of betrayal, (2) entrenched thoughts of conspiracy with Woodside to sabotage his claim in the Federal Court, (3) further deterioration of his psychiatric illness, and (4) consequential loss of opportunity to future earnings. He alleged that it should have been in the contemplation of the respondents that the conduct pleaded was of such a nature that the risk of further deterioration of his psychiatric illness was a natural or probable consequence if reasonable care was not taken, and that the respondents breached the duty to avoid the risk of further deterioration of his psychiatric illness.
In his prayer for relief, Dr Zaghloul included claims for damages for loss of chance of future earnings, aggravated damages and exemplary damages.
The defence
The respondents filed a defence on 18 February 2022.
In their defence, the respondents (amongst other things):
1.Admitted various parts of Dr Zaghloul's fresh statement of claim, including that they owed a duty to exercise reasonable care and skill in the provision of legal services.
2.Contended that the duty did not require them to take care not to cause him mental harm unless they ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
3.Denied material elements of the conversation on 14 February 2023 pleaded by Dr Zaghloul (see [7] above).
4.Denied negligence and pleaded various matters, including the obtaining of counsel's advice, in relation to their alleged negligence in advising Dr Zaghloul regarding the Federal Court proceedings and commencing and focusing on the District Court proceedings, instead of pursuing the Federal Court proceedings.
5.Pleaded that on 21 August 2013, Dr Zaghloul terminated the respondents' retainer by filing a notice of intention to act in person in the District Court action.
6.Denied, with some specificity, that the statement of claim filed in the District Court was deficient as alleged, and pleaded that they had provided drafts for prior comment by Dr Zaghloul.
7.Denied Dr Zaghloul's claims of alleged deterioration of his mental health between April 2013 and late 2016.
8.Alleged that Dr Zaghloul's claim against the respondents, insofar as it alleged a deficient statement of claim was filed in the District Court proceedings (see [13] above), relied on a cause of action struck out by Braddock DCJ, and not revived by the 2021 Appeal decision.
9.Alleged that Dr Zaghloul's claim against the respondents was barred as it had been commenced more than three years after his cause of action arose.
10.Alleged alternatively that if any injuries were caused or contributed to by any wrongful conduct of the respondents, then (1) in the assessment of damages, credit must be given for any amounts recovered by Dr Zaghloul from Woodside in the settlement of the Federal Court proceedings, (2) alternatively, if compensation paid by Woodside was less than the amount or value of the damage suffered by Dr Zaghloul, then Dr Zaghloul failed to mitigate his loss, and (3) Dr Zaghloul's action is, further and/or alternatively, an abuse of process in that having recovered compensation for his injuries from Woodside, the present action constituted an impermissible vexation or oppression and unfairness to the respondents.
Other interlocutory steps
Dr Zaghloul filed a reply on 16 April 2022. Pursuant to a consent order made on 8 March 2022, the parties were ordered to file their respective lists of documents by 27 April 2022.
The respondents were around six weeks late in serving their list of documents, which was served on 10 June 2022. This appears to have led to Dr Zaghloul's application to strike out the respondents' defence and for summary judgment, referred to below.
Dr Zaghloul's application to strike out the defence and for summary judgment
On 10 June 2022, Dr Zaghloul filed a chamber summons seeking orders that the defence be struck out and for summary judgment.
On 22 July 2022, the respondents filed an affidavit in opposition to Dr Zaghloul's application to strike out the defence. The respondents' solicitor (Mr Popperwell) deposed, in effect:
1.As of 9 March 2022, Mr Popperwell's practice had received six lever arch files containing hardcopy documents and a USB stick containing 461 electronic documents.
2.Mr Popperwell instructed a solicitor and a law clerk to review the documents and prepare a list of documents.
3.It was a time-consuming task, given the volume of materials to be analysed.
4.The solicitor was occupied with an unrelated matter between 26 and 28 April 2022, which caused a delay in completing the list of documents.
5.A first draft of the list of documents was completed on 12 May 2022 and sent to the respondents for instructions.
6.Between 16 and 27 May 2022, the solicitor, for reasons associated with COVID‑19, was working at reduced capacity and did not progress the completion of the list of documents.
7.Subsequently, revisions were made with the effect that, on 10 June 2022, the respondents' list of documents was served on Dr Zaghloul electronically.
Also on 22 July 2022, the respondents filed a minute of proposed orders seeking (1) an extension of time to 10 June 2022 for serving their list of documents, and (2) an order that Dr Zaghloul's application be dismissed.
On 9August 2022, Dr Zaghloul filed an affidavit in support of his application to strike out the defence. Dr Zaghloul deposed, in effect that:
1.He served a list of documents on 27 April 2022.
2.Between 27 April and 10 June 2022, he repeatedly requested the respondents to serve their list of documents.
3.On 10 June 2022, he filed the present application to strike out the defence. He was served with a list of documents on the same day.
4.The respondents never sought to confer with him for an extension of time, nor made any applications to that effect.
5.On 15 June 2022, the respondents provided a link to an electronic database of documents reflecting the list of documents. There were 261 files.
6.From 15 June to 25 July 2022, Dr Zaghloul reviewed the documents and formed the view that discovery was incomplete.
7.Dr Zaghloul requested Mr Popperwell to swear or affirm an affidavit to the effect that the respondents provided all documents in their possession or custody. Mr Popperwell refused.
8.It was reasonable to infer that the respondents possessed documents supporting Dr Zaghloul's claim or weakening their defence. This was because Mr Popperwell's firm has represented the respondents since 2017, but Mr Popperwell was only provided with the USB stick of 461 documents on 9 March 2022.
9.There was 'no way' to find out how the respondents 'took advantage' of having Dr Zaghloul's list of documents for '44 days past the date [Dr Zaghloul served a list of documents]'. Further, the 8 March 2022 consent orders extended the deadline for the parties to serve on each other a list of documents to 27 April 2022, in circumstances where Dr Zaghloul had sought a one month extension from the original deadline (13 April 2022), which the respondents had refused.
10.In the circumstances, Dr Zaghloul believed the respondents exposed him to a 'significant increase in the risk of an unfair trial by insisting to withhold [relevant] documents', and that unfairness 'could only be cured by granting the sought orders'.
Also on 9 August 2022, Dr Zaghloul filed a minute of proposed orders seeking orders (1) that the defence be struck out, and summary judgment be entered in favour of Dr Zaghloul, and (2) for damages to be assessed if not agreed.
The hearing before Deputy Registrar Harman
Dr Zaghloul's chamber summons filed 10 June 2022 was heard before Deputy Registrar Harman on 10 August 2022. Dr Zaghloul submitted, in effect, that the respondents' defence filed 18 February 2022 contravened O 20 r 8 and r 14 of the Rules of the Supreme Court 1971 (WA) (RSC) for two reasons. First, the defence simply denied Dr Zaghloul's allegations, rather than also providing 'reason[s]' and 'counterfactual' explanations. Second, allegations in multiple paragraphs were denied in singular paragraphs, instead of there being a separately paragraphed denial for each allegation.[2]
[2] Hearing 10 August 2022, ts 228, 230 - 231.
Dr Zaghloul also relied on the matters deposed to in his affidavit filed 9 August 2022.[3]
[3] Hearing 10 August 2022, ts 232.
The respondents relied on Mr Popperwell's affidavit filed 22 July 2022. The respondents observed that Dr Zaghloul's chamber summons filed 10 June 2022 was filed because of the respondents' delay in serving the list of documents. However, Dr Zaghloul's subsequent documents filed in relation to the chamber summons disclosed a different complaint - that the respondents did not provide proper discovery. The respondents submitted that the proper basis for such a complaint was to make an application for further and better discovery under O 26 r 6 of the RSC, which Dr Zaghloul had not done.[4]
[4] Hearing 10 August 2022, ts 226 - 227.
The deputy registrar found, in effect, that the respondents' defence did not suffer from the departures from the RSC as alleged by Dr Zaghloul. The deputy registrar extended time for the respondents to file their list of documents to 10 June 2022 and dismissed Dr Zaghloul's application.
The appeal to the primary judge
On 19 August 2022, Dr Zaghloul filed a notice of appeal against the deputy registrar's orders, pursuant to pt 2 r 15 of the District Court Rules 2005 (WA) (DCR). The notice of appeal disclosed three grounds. Ground 1 alleged that the deputy registrar erred in law by 'failing to consider' the respondents' 'evasive pleadings and the significant departure from [O 20 of the RSC]'. Ground 2 alleged that the deputy registrar erred in 'mixed fact and law' by 'failing to consider' the respondents' 'significant departure from' discovery obligations under O 26 of the RSC, and rule 46 of the DCR.
Ground 3 alleged that the deputy registrar erred in mixed fact and law by failing to consider whether the respondents' conduct, in totality, prejudiced the possibility of a fair trial, which could not be cured other than by an order striking out a defence and entering default or summary judgment in favour of Dr Zaghloul. Two particulars were advanced. First, Dr Zaghloul alleged that the respondents failed to comply with the 8 March 2022 consent order for discovery for 44 days (the difference between 27 April 2022 and 10 June 2022), in circumstances where Dr Zaghloul's request for a one month extension to comply with programming orders made on 3 March 2022 was refused. Second, the respondents, as officers of the court, failed to assist the court to meet the objects of the RSC, particularly, O 1 r 4A, r 4B and r 4C.
Dr Zaghloul also filed an affidavit on 24 January 2023. This affidavit summarised the various 'phases' of Dr Zaghloul's life, the chronology of the action against the respondents and repeated the allegations made in previous submissions and affidavits.
In general terms, Dr Zaghloul submitted, in effect, that the defence should be struck out for 'contemptuous' disregard to the discovery obligations under O 26 of the RSC, in that (1) the respondents had failed to comply with the order to serve their list of documents by 27 April 2022 'with no conferral or leave', (2) the respondents had Dr Zaghloul's list for six weeks, which gave them an opportunity to check the list and 'screen out documents' that would have harmed the defence or advanced Dr Zaghloul's claim, (3) the respondents did not discover all relevant documents, and (4) the only appropriate order to mitigate the risk of an unfair trial was to strike out the defence.
He also submitted that the defence should also be struck out due to 'onerous' breaches of O 20 r 8, r 14 and r 19(1) of the RSC. He submitted that the defence pleaded evidence, rather than facts, and consisted of bare denials which were therefore 'deemed to be admitted'. He alleged that there was no reasonable defence, and the pleadings were embarrassing or evasive.
He submitted that the pleaded defences were clearly untenable and doomed to fail. He contended that as regards the limitation defence, (1) the respondents did not plead facts to indicate how 'the clock starts' under s 14(1) of the Limitation Act 2005 (WA) (Limitation Act), (2) Dr Zaghloul was under a 'mental disability and with no guardian', thereby 'defeat[ing] the limitation defence' pursuant to s 35(1) of the Limitation Act, (3) Dr Zaghloul did not know he had a cause of action until November 2016, and (4) in any event, the court has discretion to extend time, and Dr Zaghloul seeks leave to extend time under s 39(1) and (4) of the Limitation Act.
Dr Zaghloul contended that the respondents' defence of 'credit' was not supported by the pleading of facts and was arguably embarrassing. If it were a set off claim, then the defence was 'misconceived' and unjustified, because there were no mutual debts between Dr Zaghloul and the respondents.
Dr Zaghloul also submitted that the respondents had failed to plead facts with respect to a plea that he had failed to mitigate his loss, thereby offending the surprise rule: O 20 r 9(1)(b) of the RSC. Also, he said that the respondents had failed to plead any facts to 'stand behind' a defence of abuse of process.
Dr Zaghloul submitted that he had made out a prima facie case, and that the respondents had not demonstrated a triable issue or an arguable defence. He submitted that the court will be 'relieved of the burden of further wasted time', and that the court can, instead, devote time to the 'determination of claims with true legal merit'.
Primary decision
On 24 January 2023, the appeal was heard by Shepherd DCJ. Her Honour dismissed the appeal and gave extempore reasons. Her Honour found, in effect:
1.The appeal was to be heard as an appeal de novo; a hearing 'afresh'.[5] There was no requirement to demonstrate error by the deputy registrar.[6] However, Dr Zaghloul was confined to the matters that were the subject of the application before the deputy registrar.[7]
2.Dr Zaghloul's application before the deputy registrar was to seek an order to strike out the defence on the basis it did not comply with the RSC, particularly, O 20 r 8 and r 14.[8]
3.The assertion that the respondents had 'contemptuous disregard' of their discovery obligations was not argued before the deputy registrar, but it was raised in Dr Zaghloul's chamber summons and was therefore part of the matters to be determined on appeal.[9]
4.The proper remedy for Dr Zaghloul to air his grievance in relation to discovery was to file an application for further and better discovery, pursuant to O 26 r 6 of the RSC.[10]
5.As to the pleading points, the respondents did not commit 'onerous' breaches of the pleading rules in the RSC. 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.[11]
6.Summary judgment may only be granted if the facts are undisputed and the law is clear. That is not this case, as the Court of Appeal observed in the decision in the 2021 Appeal decision.[12]
7.The pleas in relation to the Limitation Act, 'credit', mitigation and abuse of process were properly pleaded.[13] Further, as regards the Limitation Act defence, a finding of fact would need to be made as to when Dr Zaghloul's existing psychiatric injury became exacerbated. This was not a matter that could be determined summarily.[14]
[5] Hearing 24 January 2023, ts 235 - 236, 263. Part 2 r 15(6) of the DCR provides:
The appeal is to be by way of a new hearing of the matter that was before the registrar.
[6] Hearing 24 January 2023, ts 263 - 264.
[7] Hearing 24 January 2023, ts 264.
[8] Hearing 24 January 2023, ts 264.
[9] Hearing 24 January 2023, ts 265 - 266.
[10] Hearing 24 January 2023, ts 264, 273.
[11] Hearing 24 January 2023, ts 272.
[12] 2021 Appeal decision [118]; hearing 24 January 2023, ts 268.
[13] Hearing 24 January 2023, ts 269 - 271.
[14] Hearing 24 January 2023, ts 269.
The appellant's case
The grounds of appeal
The appellant's case, filed on 24 February 2023, contained two grounds of appeal.
Ground 1 alleged, in effect, that the judge erred in law by 'failing to adjudicate, whether adequately or at all, on the application for summary judgment'. This was a 'departure' from O 1 r 4A and r4B (1)(b) - (d) of the RSC.[15] Had the judge 'inquired into the facts' and 'applied [them] to the law', the judge should have found Dr Zaghloul's claim was made out, because:
1.The 'key facts cannot be disputed'. They were identified in the 2021 Appeal decision. The 'evidence supporting each matter [is] unquestioned'.
2.The applicable law, being the 'egg-shell skull principle or foreseeability test' is well established, and if the former were not applicable, the authorities establish that the foreseeability test is undemanding and that this element of negligence is 'almost always satisfied'.
3.The respondents failed to discharge the evidentiary burden to demonstrate the need for a trial. They did not dispute any fact or identify an interpretation of the law that could only be dealt with in a trial.
[15] RSC O 1 r 4A states:
Ground 2 alleged the judge 'erred in law by failing to adjudicate, whether appropriately or at all, on the respondents' conduct (during the retainer and throughout the proceedings) to determine whether a fair trial is now in jeopardy'. This is because:
1.The respondents 'withheld negative evidence' in breach of their discovery obligations under O 26 r 1B of the RSC. The withheld evidence 'likely include[d] one or more smoking guns', which jeopardised the fairness of any trial. The judge should have struck out the defence pursuant to O 26 r 15(1) of the RSC.
2.The respondents' defence was 'sprawling, disorganised and bloated'. Contrary to O 20 of the RSC, the defence was not in 'summary form'. This 'camouflaged and diluted the real issues', causing 'a delay of almost six years'. The defence should have been struck out.
Leave to appeal
In substance, Dr Zaghloul submitted that leave to appeal should be granted for three reasons. First, he submitted that the merits of the appeal are 'determinative' in the grant of leave.[16] Here, the judgment of Shepherd DCJ is 'attended by sufficient doubt to warrant it being reconsidered'.[17] This is because (1) there is a 'prima facie case', the elements of negligence having been established,[18] (2) the respondents bore, but failed to discharge, the evidentiary onus of demonstrating there was an issue or question in dispute which ought to be tried,[19] and (3) the judge's decision 'departs from the overarching purpose' of O 1 r 4B of the RSC, which calls for the consideration of a just but timely and cost effective resolution of the dispute.
[16] Reference was made to BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [14].
[17] Dr Zaghloul's written submissions contained in appellant's case filed 24 February 2023, pars 6, 7.
[18] Dr Zaghloul's written submissions contained in appellant's case filed 24 February 2023, pars 12 - 28.
[19] Dr Zaghloul's written submissions contained in appellant's case filed 24 February 2023, par 28, referring to O 14 r 3(1) of the RSC and Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27 [4].
Secondly, if leave to appeal were refused, Dr Zaghloul would suffer substantial injustice. He would be unable to communicate his case, due to the respondents' 'sprawling defence' and their 'breach' of discovery obligations. There is a 'risk of an unfair trial'.[20] In oral submissions, Dr Zaghloul also referred in this connection to certain procedural matters in the District Court relating to discovery and the reply which have arisen subsequent to the primary decision.
[20] Dr Zaghloul's written submissions contained in appellant's case filed 24 February 2023, par 7.
Thirdly, the respondents are not ordinary litigants. They are officers of the court. Therefore, the case is one of public interest. A judgment in Dr Zaghloul's favour 'sends a clear message to the community' that courts do not 'tolerate strategies to dilute issues, delaying the resolution of proceedings'.[21]
[21] Dr Zaghloul's written submissions contained in appellant's case filed 24 February 2023, par 8.
Leave to appeal - principles
The primary judgment was an interlocutory judgment for which leave to appeal is required: s 79(1)(b) of the District Court of Western Australia Act 1969 (WA) (District Court Act).
In Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd,[22] Mitchell J (as his Honour then was) (Martin CJ & Buss JA relevantly agreeing) said:[23]
[80]… Generally, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains undisturbed[.]
[81]As Martin CJ noted in Waller,[24] the requirement for leave to appeal against an interlocutory decision is no mere technicality or procedural nicety. Rather it is a substantive restriction which advances the administration of justice by preventing procedural disputes distracting the court and the parties from the determination of contested substantive rights. I agree with the following observations made in Waller:
'The grant of leave to appeal from an interlocutory determination is therefore restricted to those exceptional cases in which the decision in question is not only plainly wrong or attended with sufficient doubt to justify the grant of leave, but also in which a substantial injustice would be done if the decision remains in place. It would defeat the purpose of the restriction upon interlocutory appeals if there were to be any departure from the strict satisfaction of these requirements.
In particular, the injustice that must be demonstrated must be properly characterised as 'substantial'. If every infraction of a party's procedural rights were to be regarded as a 'substantial injustice', this aspect of the requirements for the grant of leave would become meaningless, as virtually every erroneous interlocutory decision will involve an infraction of a party's procedural rights. Accordingly, the notion of 'substantial injustice' looks to the substantive rights of the party adversely affected by the order under review, and requires that party to demonstrate that the effect of the order will go beyond mere inconvenience and procedural disadvantage.'
[22] Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374.
[23] Kelbush [80] - [81].
[24] Waller v Waller [2009] WASCA 61 [9] ‑ [10].
Moreover, special restraint must be exercised when the interlocutory order under appeal, as here, is one concerning practice and procedure.[25] That is particularly so given the anomalous nature of an appeal from a District Court judge refusing the grant of summary judgment. In Cristovao v Dutton,[26] this court observed:
No appeal lies in respect of an order of a judge or master of [the Supreme Court] dismissing an application for summary judgment and granting unconditional leave to defend: [Supreme Court Act 1935 (WA), s 60(1)(b)]. There is no such limitation respect of such an order of the District Court and nothing in s 79 of the [District Court Act] precludes such an appeal: see Cardno BSD Pty Ltd v Water Corporation [No 2] [2011] WASCA 161 [95] - [102]. We observe in passing that this anomaly should be corrected.
[25] Dodds v Kennedy [2011] WASCA 32 [5].
[26] Cristovao v Dutton [2016] WASCA 163 [13].
It remains the case that the anomaly identified in Cristovao v Dutton should be corrected.
Further, in considering whether to grant leave in this context, ultimately the paramount consideration is that a case must be very clear indeed to justify the summary intervention of the court to prevent a party from submitting its case for determination in the ordinary way at trial.[27]
[27] Dey v Victoria Railway Commissioners (1949) 78 CLR 62, 91 - 92.
Disposition
As a preliminary point, it might be said (although Dr Zaghloul does not complain of this in his appellant's case) that the primary judge's language, at times, suggested that an appellant in an appeal under pt 2 r 15 of the DCR is confined to arguing points that were argued before the registrar. That is not the case - while the appeal is confined by the scope of the application before the registrar, the hearing is a hearing de novo and it is permissible to advance the application by points which were not advanced before the registrar. In this respect the relevant principles of appellate review were referred to recently by this court in Ogbonna v Programmed Integrated Workforce Ltd [No 2].[28]
[28] Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79 [98].
Be that as it may, this was not a case where leave to appeal should be granted. That was so for two reasons. First, no substantial injustice would be done if the primary judge's orders were left unreversed, and secondly, the judge's orders were correct and are not attended with any doubt.
As to the former matter, the effect of the 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. As this court has recently noted, there is typically no injustice in having a case determined on its merits.[29] That is the position in relation to these proceedings.
[29] Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45 [3].
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.
The above matters also point to the correctness of the primary judge's orders. Moreover, there are plainly issues of fact to be determined at trial. These include (1) the scope and content of the conversation between Dr Zaghloul and Mr Bayly on 14 February 2013, (2) the reasonableness of the respondents' conduct and advice, assessed in the context of the circumstances as a whole, (3) whether, and, if so, when, Dr Zaghloul suffered an exacerbation of his mental illness.
The decision of Brady to which Dr Zaghloul referred does not assist him. In that case, Pullin JA (Wheeler JA agreeing, Buss JA, as his Honour then was, relevantly agreeing) was referring to the statutory regime for workers' compensation at that time. His Honour said that experience was likely to show that, in most cases involving an application for leave to appeal from an arbitrator's decision to a commissioner, the appeal should be heard together with the question of leave, so that the commissioner will then be in a position to decide whether to grant leave and uphold or dismiss the appeal, or refuse leave to appeal. Whilst that may be true for most cases in that statutory context and even in the broader appellate context, there are cases, and this is one, where, having regard to the issues to be raised on appeal, the prospect of leave being given may properly be considered prior to the substantive hearing of the appeal.
The essential cause of the delay in this case since 10 June 2022 has been Dr Zaghloul's persistent pursuit (including by two appeals) of his application to strike out the defence and for summary judgment, when the foundation for that application was always wanting.
Conclusion
For these reasons, we made orders that:
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JL
Associate to the Honourable Justice Murphy
20 APRIL 2023
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
RSC O 1 r 4B(1) relevantly states:
Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of -
…
(b)disposing efficiently of the business of the Court; and
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business[.]
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