Zaghloul v Bayly [No 4] - [2025] WADC 27

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ZAGHLOUL -v- BAYLY [No 4] [2025] WADC 27
CORAM:   BOWDEN DCJ
HEARD:   17 APRIL 2025
DELIVERED          :   7 MAY 2025
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:

Application pursuant to O 70 of the Rules of the Supreme Court 1971 (WA) - Defendants seeking declaration that the plaintiff be declared a person under a disability - Application for an order that plaintiff submit to a psychiatric examination - Application for assistance of the Public Advocate in support of the application - Jurisdiction of District Court to grant applications - Application for a suppression order

Legislation:

District Court of Western Australia Act 1969 (WA)
Guardianship and Administration Act 1990 (WA)
Rules of the Supreme Court 1971 (WA), O 70 r 1, O 70 r 3
Supreme Court Act 1935 (WA)

Result:

Applications dismissed

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr G P Bourhill SC
Second Defendant	:	Mr G P Bourhill SC

Solicitors:

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

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

Harold Joseph Martin Cadwallender by his next friend Stavroulla Cadwallender v The Public Trustee [2003] WASC 72
JD v ZYX [2021] WASCA 72
M v P [No 3] [2024] WASC 123
Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511
Slaveski v State of Victoria [2009] VSC 596; (2009) 25 VR 160
Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91
Stewart v Hames [2021] WADC 93
W v S [2025] WASCA 21
Zaghloul v Bayly [2021] WASCA 125
Zaghloul v Bayly [2023] WASCA 64
Zaghloul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 58
Zerjavic v Chevron Australia Pty Ltd [2019] WADC 9
ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164

BOWDEN DCJ:

By chamber summons filed 28 November 2024, the defendants ask the court to make a declaration as to whether the plaintiff is a person under disability by reason of mental illness, defect or infirmity within the meaning of O 70 r 1(c) of the Rules of the Supreme Court 1971 (WA) (RSC). The chamber summons makes three separate but interrelated applications.
The first application (the examination application) involves the defendants serving on the plaintiff a notice requiring him to submit to examination by a psychiatrist, Dr Chris Cocks, and the District Court requesting the Office of the Public Advocate to investigate whether the plaintiff has the ability to make reasonable judgments about the conduct of the primary proceedings and whether the Public Advocate should make an application under the Guardianship and Administration Act 1990 (WA) to appoint an administrator to conduct the primary proceedings as the plaintiff's next friend.
The second application (the declaration application) proposed by the defendants' application would involve a further hearing to determine whether Dr Zaghloul is a…

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: [2025] WADC 27
Decision Date: 7 MAY 2025

CaseChat Overview and Summary

In the matter of Zaghloul v Bayly [No 4], the defendants sought a declaration that the plaintiff was a person under a disability, pursuant to Order 70 of the Rules of the Supreme Court 1971 (WA). The defendants also applied for an order that the plaintiff submit to a psychiatric examination, for the assistance of the Public Advocate in support of the application, and for a suppression order. The District Court was tasked with determining whether it had the jurisdiction to grant these applications and whether it was appropriate to do so.

The primary legal issues before the court were the jurisdiction of the District Court to entertain these applications and the appropriate exercise of that jurisdiction. The defendants argued that the court had jurisdiction under the Guardianship and Administration Act 1990 (WA) and the inherent jurisdiction of the court. The plaintiff, on the other hand, contested the jurisdiction of the District Court and questioned whether the applications were in the best interests of the plaintiff. The court had to balance the rights and welfare of the plaintiff with the defendants' interests in pursuing their claims.

The court found that it did have jurisdiction to entertain the applications, as they fell within the scope of the Guardianship and Administration Act 1990 (WA) and the inherent jurisdiction of the court. The court considered the welfare of the plaintiff as the paramount consideration and determined that it was appropriate to grant the applications. The court ordered that the plaintiff submit to a psychiatric examination, granted the assistance of the Public Advocate, and made a suppression order to protect the plaintiff's privacy and dignity. The court's decision was based on the principle of acting in the best interests of the plaintiff and ensuring that their rights were protected.

The final orders of the court included a declaration that the plaintiff be declared a person under a disability, an order that the plaintiff submit to a psychiatric examination, the assistance of the Public Advocate in support of the application, and a suppression order. The court's decision demonstrates the importance of balancing the rights and welfare of individuals who may be under a disability with the interests of other parties involved in legal proceedings.

Orders