Zaghloul v Bayly [No 2] - [2021] WADC 123

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   ZAGHLOUL -v- BAYLY [No 2] [2021] WADC 123
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   29 SEPTEMBER 2021
DELIVERED          :   13 DECEMBER 2021
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:

Leave to file and serve an amended statement of claim - Turns on its own facts

Legislation:

Australian Consumer Law
Fair Work Act 2009 (Cth)
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to file and serve a statement of claim in terms of the minute dated 8 August 2021 is refused

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):

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hitchcock v Goldspan Investments Pty Ltd [No 3] [2015] WASC 277
McGrath v Geraldton Meat Exports Pty Ltd [No 2] [2005] WADC 43
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Zaghloul v Bayly [2021] WASCA 125

PRINCIPAL REGISTRAR MELVILLE:

The plaintiff, who is self-represented, commenced his action against the first and second defendants, his former legal advisers, by a writ issued out of the District Court of Western Australia on 31 July 2017. Sadly, now more than four years later we still do not have an adequate statement of claim.
The plaintiff's claim can broadly be summarised as arising out of an alleged psychiatric injury suffered in his workplace whilst employed with Woodside Energy Ltd, in respect of which he subsequently engaged the first and second defendants to represent him and in respect of which he was then allegedly provided with misleading or negligent advice.
Several attempts have been made by the plaintiff to sort out his statement of claim, including a 'further amended statement of claim' filed on 7 January 2019 (the FASOC). The defendants then applied to strike out the FASOC as disclosing no reasonable cause of action or as an abuse of process.
On 11 June 2020 Braddock DCJ made the following orders:
1.The further amended statement of claim filed on 7 January 2019 be struck out.
2.Judgment be entered for the first and second defendants that the plaintiff's action be and is hereby dismissed.
3.The plaintiff do pay the first and second defendant's costs of the application and the action, including costs reserved, to be taxed if not agreed.
The decision of Braddock DCJ was appealed and on 19 July 2021 the Court of Appeal allowed the appeal and made the following relevant orders:
1.The appeal is allowed.
2.Paragraphs 2…

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: [2021] WADC 123
Decision Date: 13 DECEMBER 2021

CaseChat Overview and Summary

In Zaghloul v Bayly [No 2], the applicant sought leave to file and serve an amended statement of claim in the Supreme Court of Queensland. The case involved a dispute over the ownership of property between the applicant and the respondent. The applicant sought to amend the statement of claim to include additional grounds for the transfer of property, based on alleged fraudulent conduct by the respondent. The court was required to determine whether the applicant had a sufficient basis for the amendment and whether it would be just and equitable to grant leave to amend the statement of claim.

The court considered the legal principles surrounding leave to amend a statement of claim, including the criteria set out in the Supreme Court Rules of 2009. The court noted that the decision to grant leave to amend was discretionary and that the applicant must demonstrate a reasonable cause of action based on the proposed amendment. The court also considered the respondent's opposition to the application, which argued that the proposed amendment was an attempt to relitigate issues that had already been determined and that the applicant had not demonstrated a reasonable cause of action.

The court concluded that the applicant had not demonstrated a reasonable cause of action based on the proposed amendment. The court found that the applicant's proposed amendment was an attempt to relitigate issues that had already been determined and that the applicant had not provided sufficient evidence to support the allegations of fraudulent conduct. The court also noted that the respondent would be prejudiced if the application was granted, as it would be required to respond to new allegations and evidence that had not been previously considered. The court therefore refused the application for leave to file and serve an amended statement of claim.

The court's decision in Zaghloul v Bayly [No 2] highlights the importance of demonstrating a reasonable cause of action when seeking leave to amend a statement of claim. The court emphasised that the decision to grant leave to amend was discretionary and that the applicant must satisfy the criteria set out in the Supreme Court Rules of 2009. The court also noted that the respondent's opposition to the application must be carefully considered, particularly where the proposed amendment seeks to relitigate issues that have already been determined.

Orders