Zaghloul v Bayly [No 3] - [2023] WADC 105

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   ZAGHLOUL -v- BAYLY [No 3] [2023] WADC 105
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   4 MAY 2023
DELIVERED          :   15 SEPTEMBER 2023
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 - Western Australia - Practice under the Rules of the Supreme Court 1971 (WA) - Application to strike out parts of a reply - Order 20 r 5(1), r 9(1), r 15, r 19(1)(c) and r 19(1)(d) - Turns on its facts

Legislation:

Nil

Result:

Application successful

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):

Zaghloul v Bayly [2023] WASCA 64
Zaghloul v Bayly [No 2] [2021] WADC 123

DEPUTY REGISTRAR HARMAN:

By reasons for decision in refusing an application for leave to appeal in Zaghloul v Bayly [2023] WASCA 64, the Court of Appeal provided the following overview of the action:
…
3In 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).
4Dr 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).
5Ultimately, 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
6In 2008, Dr Zaghloul was employed with Woodside…

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: [2023] WADC 105
Decision Date: 15 SEPTEMBER 2023

CaseChat Overview and Summary

The case of Zaghloul v Bayly [No 3] involved a legal dispute in Western Australia, with the proceedings being heard in the Supreme Court. The plaintiff, Zaghloul, sought to strike out parts of the defendant Bayly's reply in a legal action, arguing that certain portions were irrelevant, misconceived, or unnecessary. The application to strike out was made under the Rules of the Supreme Court 1971 (WA), specifically referencing Order 20 r 5(1), r 9(1), r 15, r 19(1)(c) and r 19(1)(d).

The central legal issue that the court had to determine was whether the parts of the defendant's reply that the plaintiff sought to strike out were indeed irrelevant, misconceived, or unnecessary, as per the provisions of the relevant rules. The court had to carefully consider the content and relevance of each part of the reply in the context of the overall dispute to make a fair and just decision.

In examining the application, the court focused on the specific provisions of the rules cited. It assessed whether the parts of the reply in question met the criteria set out by Order 20 r 5(1), r 9(1), r 15, r 19(1)(c) and r 19(1)(d). The court concluded that the application was to be determined on its own facts and that the provisions relied upon did not warrant the striking out of the parts of the reply as sought by the plaintiff. Consequently, the application was dismissed, and the court held that the decision was a matter to be considered in the context of the unique circumstances of this case.

Orders