Zaghloul v Bradley Bayly Holdings Pty Ltd
[2025] WASCA 81
•28 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ZAGHLOUL -v- BRADLEY BAYLY HOLDINGS PTY LTD [2025] WASCA 81
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 23 MAY 2025
DELIVERED : 28 MAY 2025
FILE NO/S: CACV 21 of 2025
BETWEEN: HASSAN ZAGHLOUL
Appellant
AND
BRADLEY BAYLY HOLDINGS PTY LTD
First Respondent
DAVID JOHN BAYLY
Second Respondent
FILE NO/S: CACV 22 of 2025
BETWEEN: HASSAN ZAGHLOUL
Appellant
AND
BRADLEY BAYLY HOLDINGS PTY LTD
First Respondent
DAVID JOHN BAYLY
Second Respondent
FILE NO/S: CACV 23 of 2025
BETWEEN: HASSAN ZAGHLOUL
Appellant
AND
BRADLEY BAYLY HOLDINGS PTY LTD
First Respondent
DAVID JOHN BAYLY
Second Respondent
ON APPEAL FROM:
For File No: CACV 21 of 2025
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : CIV 2756 of 2017
For File No: CACV 22 of 2025
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : CIV 2756 of 2017
For File No: CACV 23 of 2025
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : CIV 2756 of 2017
Catchwords:
Appeals against procedural orders dealing with matters of practice and procedure - Whether it is in the interests of justice to grant leave to appeal - Turns on own facts
Legislation:
District Court of Western Australia Act 1969 (WA), s 79
Result:
Leave to appeal refused
Appeals dismissed
Category: B
Representation:
CACV 21 of 2025
Counsel:
| Appellant | : | In person |
| First Respondent | : | G P Bourhill SC |
| Second Respondent | : | G P Bourhill SC |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Popperwell & Co |
| Second Respondent | : | Popperwell & Co |
CACV 22 of 2025
Counsel:
| Appellant | : | In person |
| First Respondent | : | G P Bourhill SC |
| Second Respondent | : | G P Bourhill SC |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Popperwell & Co |
| Second Respondent | : | Popperwell & Co |
CACV 23 of 2025
Counsel:
| Appellant | : | In person |
| First Respondent | : | G P Bourhill SC |
| Second Respondent | : | G P Bourhill SC |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Popperwell & Co |
| Second Respondent | : | Popperwell & Co |
Case(s) referred to in decision(s):
ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2025] WASCA 38
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Mineralogy Pty Ltd v CITIC Limited [2024] WASCA 168
North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146
Ogbonna v CTI Logistics Ltd [2021] WASCA 25
Poli v Poli [2021] WASC 247
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148
Raindale Holdings Pty Ltd v Hundermark [2019] WASC 276
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218
Wainohu v The State of New South Wales [2011] HCA 24; (2011) 243 CLR 181
Zaghloul v Bayly [2020] WADC 84
Zaghloul v Bayly [2021] WASCA 125
Zaghloul v Bayly [2023] WASCA 64
Zaghloul v Bayly [No 4] [2025] WADC 27
Zaghloul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 58
Table of Contents
Introduction
Background
Relationship between the appellant and respondents
Striking out pleading and award of summary judgment in 2020 - 2021
Statement of claim filed in 2022
Appellant's summary judgment application and appeal in 2022 - 2023
Steps in primary proceedings relevant to current appeals
Documents filed prior to 18 December 2024
Hearing on 18 December 2024
Documents filed prior to 10 March 2025
Hearing on 10 March 2025
Reserved decision on 27 March 2025
Steps after 27 March 2025
The appeals to this court
CACV/22/2025
CACV/23/2025
CACV/21/2025
Leave to appeal: general principles
Leave to appeal: disposition
The appellant's constitutional argument
Reasonable apprehension of bias
Reasons
Amendment of the statement of claim
Statement of Claim as at 2019
Strike out of pleading in FASOC
The decision in Zaghloul 2021
Whether the appellant required leave to further amend his pleading
Dismissal of the appellant's application for leave to amend
Procedural fairness
Subpoenas issued to Woodside
Subpoena issued to Mr Popperwell
Specific discovery
Respondents' O 70 application
Costs
Orders
CACV/21/2025
CACV/22/2025
CACV/23/2025
JUDGMENT OF THE COURT:
Introduction
We are dealing with three applications for leave to appeal from interlocutory decisions made by the primary judge in the primary proceedings, as well as certain other matters. The three appeals, CACV/21/2025, CACV/22/2025 and CACV/23/2025, are against interlocutory orders of the primary judge made in the primary proceedings on 27 March 2025, 18 December 2024 and 10 March 2025 respectively. For the following reasons, leave to appeal should be refused in each of the appeals and it is unnecessary to deal with the other matters.
Background
The primary proceedings were instituted by the appellant against the respondents in 2017. The nature of the claims made in, and the procedural history of, the primary proceedings can be found in three prior decisions of this court: Zaghloul v Bayly [2021] WASCA 125 (Zaghloul 2021); Zaghloul v Bayly [2023] WASCA 64 (Zaghloul 2023) and Zaghloul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 58 (Zaghloul 2025).
Relationship between the appellant and respondents
The appellant was an engineer employed by Woodside Energy Ltd (Woodside). He claims to have suffered a workplace psychiatric injury while working at Woodside. The appellant engaged the first respondent, Bradley Bayly Holdings Pty Ltd trading as Bradley Bayly Legal (BBL) in relation to a legal claim against Woodside. BBL is an incorporated legal practice of which the second respondent, Mr David Bayly, was director at all material times.
The alleged circumstances of the appellant's engagement of the respondents are described in the following summary of the appellant's statement of claim in Zaghloul 2023.[1]
[1] Zaghloul 2023 [6] - [13].
In 2008, the appellant was employed with Woodside as a structural engineer. In 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. The appellant formed the perception that his lawyers 'conspired with Woodside' and as a result, he suffered deterioration of his psychiatric illness.
In August 2012, the appellant commenced proceedings in the Federal Court of Australia against Woodside for negligence and breach of contract. In December 2012, the appellant 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 the appellant's employment.
On 14 February 2013, the appellant met with Mr Bayly at the offices of BBL. At this meeting, the appellant expressed his perception that Woodside had 'bought' his former lawyers, to which Mr Bayly replied that he could not be bought. In or about April 2013, the appellant signed a retainer agreement to retain BBL to act for him in relation to his workers' compensation claim.
In April 2013, Woodside brought a summary judgment application in the Federal Court proceedings. Mr Bayly advised the appellant that Woodside would succeed in its application. In May 2013, the respondents filed a writ on behalf of the appellant in the District Court of Western Australia against Woodside for negligence and breach of contract. Mr Bayly advised the appellant that the action in the Federal Court and the action 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 June and July 2013, Mr Bayly provided a draft statement of claim for the District Court proceedings to the appellant.
In July and August 2013, Mr Bayly urged the appellant to maintain the District Court proceedings, but the appellant instructed the respondents to discontinue them.
By emails in late July, August and September 2013 to Mr Bayly, the appellant 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. The appellant 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.
Striking out pleading and award of summary judgment in 2020 - 2021
As the appellant's claim against the respondents was initially formulated, it sought to plead causes of action for breach of fiduciary duty, misleading or deceptive conduct, unconscionable conduct, breach of contract, breach of the legislation concerning the regulation of legal practitioners in Western Australia, negligence and unjust enrichment. On 11 June 2020, Braddock DCJ struck out the pleading, granted the respondents' summary judgment application, and dismissed the action.[2]
[2] Zaghloul v Bayly [2020] WADC 84.
Zaghloul 2021 was the appellant's appeal against the grant of summary judgment in the respondents' favour. In that appeal, the appellant accepted that his statement of claim was deficient and sought leave to replead only two causes of action. Those were a claim in negligence and for misleading or deceptive conduct. This court concluded that Braddock DCJ erred in granting summary judgment in respect of the negligence claim, and that the appellant should have limited leave to replead that claim. The court made orders setting aside the entry of summary judgment for the respondents, and gave the appellant liberty to file and serve a minute of proposed statement of claim which was to be conformable with the negligence claim described in the court's reasons. The question of whether the appellant should have leave to file and serve a statement of claim in the form of that minute was remitted to the District Court.
In making those orders, this court observed that it was inappropriate for the appellant to have leave to replead generally. The appellant's success entitled him to have leave to replead but only as to the negligence claim. The intention of the remitter was partly to allow the District Court to determine whether the minute of proposed statement of claim was 'conformable with a negligence claim of the type described by the appellant before this court at the appeal hearing'.[3]
[3] Zaghloul 2021 [129], [131].
The negligence claim described in this court's reasons in Zaghloul 2021, with which the appellant's minute of proposed statement of claim was to conform, was:[4]
[4] Zhaghloul 2021 [47] - [49], [130.3].
On the negligence action, the appellant said that the respondents' advice and conduct: (1) constituted professional negligence; and (2) caused or materially contributed to him suffering an injury as it exacerbated his pre‑existing psychiatric illness. More specifically, insofar as the respondents' advice and conduct caused the appellant to become perplexed and confused - causing him to fear the loss of his action against Woodside - it cemented the appellant's perception that there was a conspiracy against him and thus aggravated his psychiatric illness. The appellant continued with his apprehension until the summary judgment application in the Federal Court was finally disposed of on appeal.
The appellant contended that the professional negligence as alleged against the respondents manifested in five ways …:
1.The respondents' advice in relation to s 93K of the [Workers' Compensation Act].
…
3. The circumstance that the writ and statement of claim in the District Court duplicated the claim made in the Federal Court.
4.The respondents' advice to dismiss the claim in the Federal Court and instead maintain and focus on the claim in the District Court.
5. The respondents' failure to respond to the appellant's correspondence requesting clarification about the legal advice provided and steps taken by the respondents.
The appellant relied on these [matters] as having either individually or collectively caused or materially contributed to the exacerbation of his pre-existing psychiatric illness.
(citations omitted)
Statement of claim filed in 2022
The appellant subsequently obtained leave in the District Court to file a substituted statement of claim, which was filed on 20 January 2022. The negligence claim pleaded in that statement of claim was summarised by this court in Zaghloul 2023 in the following terms.
The appellant alleged the advice given by Mr Bayly in 2013 that Woodside would succeed in its summary judgment application in the Federal Court was negligent.[5]
[5] Zaghloul 2023 [9].
In June and July 2013, Mr Bayly provided a draft statement of claim for the District Court proceedings which the appellant alleges was deficient in a number of respects, including with reference to one of the Woodside managers. The appellant alleges that a reasonably competent lawyer in the position of the respondents would not have (1) commenced the District Court proceedings, (2) advised the appellant to maintain the focus on the District Court proceedings, (3) provided an allegedly deficient statement of claim, or (4) advised the appellant to consent to the dismissal of the Federal Court proceedings. Instead, according to the appellant, a reasonably competent lawyer in the position of the respondents would have (1) agreed to represent the appellant in the Federal Court proceedings, (2) ensured that any legal advice was properly explained and clarified, (3) acted on the appellant's instructions to discontinue the District Court action, and (4) replied to the appellant's allegations of conspiracy.[6]
[6] Zaghloul 2023 [13]
The appellant 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.[7]
[7] Zaghloul 2023 [14].
In his prayer for relief, the appellant included claims for damages for loss of chance of future earnings, aggravated damages and exemplary damages.[8]
Appellant's summary judgment application and appeal in 2022 - 2023
[8] Zaghloul 2023 [15].
On 10 June 2022, the appellant applied to strike out the respondents' defence to his negligence claim in the primary proceedings and sought summary judgment against the respondents. In part, the appellant's application relied on what he contended to be the respondents' 'contemptuous' disregard for their discovery obligations including by not discovering all relevant documents.[9] That application was refused by a District Court registrar and then a judge of that court. Zaghloul 2023 was the appellant's appeal against those orders, which was dismissed by this court. In the course of dismissing the appeal, this court observed that there was no proper basis for the appellant's contention that the respondents had improperly withheld documents on discovery in order to prejudice the appellant's case.[10]
[9] Zaghloul 2023 [32].
[10] Zaghloul 2023 [53].
Steps in primary proceedings relevant to current appeals
Documents filed prior to 18 December 2024
The appellant filed an 'Amended Fresh Statement of Claim' on 13 April 2024. This was a long and discursive document which significantly expanded upon the appellant's previously pleaded case.
On 10 September 2024, the appellant issued a subpoena to Sean Popperwell (who acts as solicitor for the respondents in the primary proceedings) to produce all correspondence and/or documents relating to the appellant from February 2013 except for documents protected by legal professional privilege. On 11 September 2024, the appellant issued a subpoena to Woodside to produce 'all correspondence and/or documents (where the [appellant] was the subject)' between the respondents and Woodside or its employees. Subpoenas to a number of other persons were issued at about this time, including Mr Stephen Brameld, an employee of Woodside.
On 28 November 2024, the respondents made an application for orders that might have ultimately led to the court declaring the appellant to be 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) (SC Rules) (respondents' O 70 application). This is the application which is referred to in Zaghloul 2025.
One of the affidavits filed in support of the respondents' O 70 application was an affidavit sworn by Mr Bayly on 28 November 2024. Mr Bayly annexed copies of documents which he was informed by his solicitors and verily believed comprised or evidenced all communications which he had with employees, servants or agents of Woodside in relation to the appellant. He deposed that all of those documents had been discovered by the respondents. Mr Bayly also deposed:[11]
I do not recall having any other communications with employees, servants or agents of Woodside in relation to the [appellant] beyond those as may be identified in the annexures to this affidavit. I have not met or spoken to Stephen Brameld nor any other employee, servant or agent of Woodside in relation to the [appellant] other than those identified in the annexures hereto.
I have not been retained by or acted for Woodside and I have never received any money from Woodside in exchange for services.
[11] Affidavit of David Bayly filed 28 November 2024 pars 7 - 8.
On 6 December 2024, the appellant issued a further subpoena to Woodside seeking documents which included:
1. Copy of the Retainer by Woodside of [BBL].
…
7.All correspondences between Stephen Brameld and David Bayly[.]
Hearing on 18 December 2024
At a hearing on 18 December 2024, the primary judge relevantly dealt with a number of matters:
1.The primary judge ordered that the 'Amended Fresh Statement of Claim' filed on 13 April 2024 be uplifted on the ground that it was filed without leave. In doing so, the primary judge indicated that the appellant could bring an application to amend the statement of claim filed on 20 January 2022 but would need to support that application with an affidavit showing why amendments were required.[12]
2.The primary judge made orders programming the respondents' O 70 application for hearing on 17 April 2025, and indicated that his Honour was not prepared to strike out that application on the basis that there was no evidential basis for the respondents' concern that the appellant may lack the relevant capacity.[13]
3.The primary judge set aside the subpoena issued to Mr Popperwell on the ground that the only purpose of that subpoena was to require the production of documents which should have been discovered, which was an abuse of process.[14] His Honour set aside subpoenas which the respondents had issued to Woodside for the same reason.[15]
4.The primary judge dealt with the appellant's subpoenas to Woodside in the manner discussed below.
5.The primary judge dismissed a second application for summary judgment by the appellant.[16]
[12] Primary ts 322 - 327.
[13] Primary ts 327 - 336.
[14] Primary ts 348 - 349.
[15] Primary ts 363.
[16] Primary ts 410.
In relation to the appellant's subpoenas issued to Woodside, the appellant indicated that he only sought a copy of the retainer between Woodside and BBL and correspondence between Mr Brameld and Mr Bayly.[17] Counsel for Woodside indicated that it would not object to that so long as the search was confined to email correspondence passing between Mr Brameld and Mr Bayly using their business email addresses, and the time for compliance with the subpoena was extended.[18] The appellant made extensive objections to the search for correspondence being confined in that way. Counsel for Woodside proposed that a proper officer of Woodside swear an affidavit as to the search methodology.[19]
[17] Primary ts 351.
[18] Primary ts 352.
[19] Primary ts 370 - 371.
The primary judge made orders setting aside the subpoena issued by the appellant on 11 September 2024, extending the time for Woodside to comply with the subpoena issued on 6 December 2024 and confining the documents to be produced pursuant to that subpoena to the following documents:
1. Copy of the Retainer by Woodside of [BBL].
7.All correspondences between Stephen Brameld and David Bayly and [BBL] using their respective business email address.
The primary judge also made an order requiring a proper officer of Woodside to depose by affidavit to the methodology of searching for and retrieving, if applicable, the documents designated in item 7 of the subpoena.[20]
Documents filed prior to 10 March 2025
[20] Primary ts 372.
On 31 January 2025, Ms Jasmine Brain, an officer of Woodside, swore a detailed affidavit describing Woodside's electronic record keeping system and searches of that system for the documents required by the 6 December 2024 subpoena as modified by the court's orders. Those searches did not locate any documents which fell within the scope of the subpoena. The officer also deposed that she had been unable to access the electronic records of Mr Brameld's emails as he had left Woodside in 2018, which was prior to the migration to Woodside's current email platform.
On 2 January 2025, the appellant issued a further subpoena to Woodside requiring production of a 'List of Vendors Approved for Legal Services or Consultancy during the period 1 May 2011 to 31 December 2016', and various other documents.
On 8 January 2025, the appellant filed a document titled 'Notice to Woodside under Order 36B Rules 5A RSC' which stated:
You are hereby notified that I have sought directions from the Associate of the Honourable Judge Staude to vary Order 11 made on 18/12/2024. There will be no benefit in what appears to be significant expenditure to discover documents where a much simpler alternative to achieve the purpose of the discovery - namely List of Vendors qualified for legal services or consultancy between May 2011 to December2016 - exists[.]
It may be noted that this notice is not provided for by O 36B r 5A of the SC Rules, and the notice does not appear to have any legal effect.
On 7 February 2025, the appellant filed a chamber summons seeking various orders requiring Woodside to produce the alleged retainer and communications between Mr Brameld and the respondents. An amended chamber summons was filed on 20 February 2025.
On 7 March 2025, Ms Brain swore a supplementary affidavit deposing that, since swearing her earlier affidavit, she had been able to gain access to Woodside's email archives prior to 2018. She deposed to searches of that database for the documents required by the 6 December 2024 subpoena as modified by the court's orders. Those searches did not locate any documents which fell within the scope of the subpoena.
On 9 March 2025 the appellant applied for leave to file and serve his minute of 'Second Proposed Amended Statement of Claim' dated 10 March 2025. In very general terms this minute sought to plead a claim that the respondents had knowingly breached their fiduciary duty to the appellant. The following paragraphs of that proposed pleading illustrate the general nature of the proposed claim:
5. The [respondents], under the guise of legal advice, knowingly breached their Duty of Loyalty and their Duty to Avoid Conflicts of Interest by (i) advising the [appellant] to consent to the dismissal of his stronger claim (ACD 62-2012) in the Federal Court of Australia (FCA) in favour of a doomed claim in the District Court of Western Australia (DCWA), and (ii) suppressing critical evidence and legal authority that exposed Woodside's misconduct, thereby prioritising Woodside's interests to secure a Retainer.
6. The [appellant] did not provide the [respondents] with consent to the Retainer, in breach of the duty not to profit from their fiduciary position without informed consent.
7. The [respondents] knowingly breached their Duty of Good Faith and Fair Dealing by exploiting the [appellant's] vulnerability - during a period of severe psychiatric illness and financial hardship - to mislead him into abandoning his stronger FCA claim.
8. Neither Woodside nor the [respondents] denied the existence of the Retainer, indicating a consciousness of guilt. Further evidence - including Bayly's reference to 'Stephen Brameld' in the draft SOC, the [respondents'] possession of the [appellant's] post‑retainer WorkCover documents, and Woodside's refusal to produce routine business records - strongly supports an inference that the Retainer existed and is being concealed.
9. But for these deliberate breaches, the [respondents] would not have obtained the Retainer, nor derived any increase in turnover, profit, or value, all of which flowed directly from their misconduct. The [appellant] seeks a full account and disgorgement of all profits linked to the breach of fiduciary duties.
(original emphasis)
The appellant also applied for orders that Woodside 'complies with all subpoenas issued to it' and that the respondents provide 'proper discovery' of documents including the alleged retainer.
Hearing on 10 March 2025
The matter came back before the primary judge on 10 March 2025.
At that hearing the primary judge discharged the appellant's subpoena to Woodside issued 6 December 2024 as amended by the court's orders of 18 December 2024. His Honour also dismissed the appellant's applications seeking the alleged retainer and correspondence. The primary judge made these orders on the basis that he was satisfied that Woodside had complied with the subpoena.[21] In later reasons, the primary judge indicated that the evidence of Ms Brain satisfied him that a proper and thorough search was done and did not turn up the documents the appellant expected.[22]
[21] Primary ts 420 - 421.
[22] Primary ts 447 - 448.
The hearing on 10 March 2025 then turned to deal with Woodside's objections to the appellant's subpoena issued on 2 January 2025. Counsel for Woodside objected to the subpoena on the basis that it effectively sought the same documents as the earlier subpoena and so was either an abuse of process or redundant. Counsel also indicated that the documents sought by the subpoena included highly sensitive confidential documents.[23] After hearing from the appellant, the primary judge reserved his decision on Woodside's objection to that subpoena.[24] His Honour ordered that compliance with the subpoena be stayed pending the court's decision.[25]
[23] Primary ts 421 - 422.
[24] Primary ts 424.
[25] Primary ts 427.
The primary judge then dealt with the appellant's application for further discovery by the respondents, by which he again sought discovery of the alleged retainer between Woodside and BBL. The primary judge proposed to resolve that issue by requiring the respondents to give formal discovery by affidavit, but indicated he would first deal with the proposal to amend the statement of claim.[26]
[26] Primary ts 433 - 434.
The primary judge indicated that, in view of the oral and written submissions which had already been advanced, he would not give the appellant any further opportunity to make oral submissions on the question. His Honour reserved his decision on the application to amend.[27]
[27] Primary ts 434 - 437.
The appellant then sought a permanent stay of the respondents' O 70 application, which the primary judge refused. That application and the primary judge's refusal to grant a permanent stay is described in Zaghloul 2025.
Reserved decision on 27 March 2025
On 27 March 2025, the primary judge delivered his reserved reasons on Woodside's objections to the subpoena issued on 2 January 2025, the appellant's application for further discovery and the appellant's application to file an amended statement of claim.
The primary judge gave the following reasons for upholding Woodside's objections to the subpoena issued on 2 January 2025 and setting aside that subpoena:[28]
This subpoena requires production of the following items, which I describe in summary form as follows: (1) List of vendors approved for legal services or consultancy during the period 1 May 2011 to 31 December 2016. (2) Pre-qualification and sponsorship documents. (3) Vendor performance and financial details. (4) [Role] of supply chain team and individuals. (5) Internal policies and procedures. (6) Communications relating to vendor approvals. (7) A document management system and data extraction.
Woodside objects to the production of these documents on the grounds that the subpoena is an abuse of process and that it is oppressive having regard to the nature and volume of the documents sought to be produced. It is submitted that they would likely include commercially confidential documents. Woodside submits that the [appellant] has no legitimate forensic purpose in seeking production of these documents, or any within the scope of the subpoena.
It was made clear by the [appellant] at the directions hearing on 18 December last year, and again at the hearing on 10 March this year, that he is only concerned to locate a legal services retainer agreement between Woodside and the [respondents], or one of them. The search process described by [Woodside's officer] in her first affidavit, and the searches that she deposed to having made, constitute the only reasonable means by which Woodside could comply with the request to produce a retainer agreement between itself and the [respondents], or either of them.
I am not satisfied that there is any legitimate forensic purpose in requiring Woodside to produce the documents described in the schedule to 2 January 2025 subpoena. The court's processes should not be allowed to be used for a fishing expedition. In circumstances where the court is satisfied that a previous subpoena to produce, that was issued for the same purpose, and which was more likely to lead to production of the document that the [appellant] believes to exist than the subpoena objected to, has been complied with satisfactorily. There is no basis on which to require compliance with a further subpoena.
I am further satisfied that it would be oppressive to require Woodside's compliance with such a far-reaching subpoena in terms of the breadth of document sought and the time period, the purpose of which is to locate a document for which a reasonable search has already been made. The range of the subpoena is vast, and includes documents that have no relevance at all to matters in issue in its action.
I am satisfied, moreover, that the likely confidential nature of such documents counts against their production. The subpoena objected to is superfluous, and, in any event, not tailored to locate the document sought by the [appellant]. The [respondents'] position is that there is no such retainer.
[Mr Bayly], in an affidavit sworn 28 November 2024, has [deposed] to not ever having met Stephen [Brameld], and further to not ever having acted for, or been retained by, Woodside, or having received any payment for any services to Woodside. So the objections of Woodside are upheld, and I order that the subpoena to produce dated 2 January 2025 be set aside.
[28] Primary ts 448 - 450.
The primary judge refused to order specific discovery of the alleged retainer in circumstances where Mr Bayly had previously deposed to the absence of any retainer agreement with Woodside. His Honour also indicated that he was not prepared to make an order for discovery of a brief to counsel which had been discovered as a document that was in the respondents' possession, but which had been destroyed.[29]
[29] Primary ts 452 - 453.
The primary judge noted that the appellant was entitled to discovery on affidavit under the SC Rules.[30] His Honour indicated that if that had not already been provided, he would order the respondents to provide discovery by affidavit by 11 April 2025.[31]
[30] The primary judge referred to O 24 of the SC Rules at primary ts at 452. The error in the identification of the rule number is not material for present purposes.
[31] Primary ts 452.
The primary judge gave the following reasons in relation to the appellant's application to amend his statement of claim in terms of the 'Second Proposed Amended Statement of Claim' dated 10 March 2025. After noting that the relevant rules arguably allowed amendment of a statement of claim without leave, the primary judge said:[32]
[32] Primary ts 454 - 455.
By seeking in his chamber summons an order for leave to file and serve a second proposed statement of claim dated 10 March 2025, the [appellant] would seem to have conceded that leave is required to amend a statement of claim that has previously been amended with leave, and it was on that basis that I heard the [appellant's] application.
I consider that the ruling of the Court of Appeal that permitted the [appellant] to replead his statement of claim conformably with the court's reasons for decision, subject to leave being granted by the principal registrar, restricted the [appellant] to a cause of action in negligence, and that the order of the principal registrar granting leave to the [appellant] to amend in terms of the fresh statement of claim dated 17 January 2021 is in the nature of a case management direction, as defined by rule 24(1) of the Rules of the District Court. It follows, in my view, that any further amendment of the statement of claim also requires leave.
The second proposed statement of claim, which I will describe as the proposed statement of claim, can be seen to raise a new claim that is beyond the scope of the limited position to replead given by the Court of Appeal on 19 July 2021. Pursuant to that decision, the [appellant] was given leave to amend in terms of a fresh statement of claim, dated 17 January 2022, that I will call the 2022 statement of claim.
In the proposed statement of claim, the [appellant] grounds his claim not in negligence but in terms of a breach of fiduciary duty. See paragraph 5. And [prays] for relief in terms that I have paraphrased for the sake of clarity as follows. Declarations that Woodside retained the [respondents] and that Woodside retained his previous lawyers. On the basis that the [respondents] breached their fiduciary duty to the [appellant], a declaration of a constructive trust in favour of the [appellant] in respect of funds or property linked to the breach, an account by the [respondents] of all profits received and any financial gain arising from the breach, including profits from the acquisition of [BBL] by [a holding company], and exemplary damages and interest.
As I pointed out earlier in these reasons, the Court of Appeal recognised that the [appellant] had a right to plead a claim for damages based on an alleged aggravation of his pre-existing psychiatric illness caused by professional negligence on the part of the [respondents]. This is not the claim made in the proposed pleading.
Rather, the proposed statement of claim focuses on the alleged retainer by Woodside of the [respondents'] for the purpose of sabotaging the [appellant's] claim for damages for psychiatric injury against Woodside. In paragraph 41, the [appellant] pleads that the [respondents'] alleged conduct was not merely negligent but was done deliberately.
It then goes on to plead in paragraph 42, a litany of allegations of misconduct that are, in any view, scandalous, frivolous and vexatious. Moreover, the allegations in the proposed statement of claim are, in my opinion, liable to prejudice, embarrass or delay the fair trial of the action. It is now nearly eight years since the action was commenced.
The Court of Appeal has made it clear on what basis the action can proceed to go beyond what the Court of Appeal has permitted. The [appellant] to plead [sic] would amount to an [abuse of] process. For these reasons, which are necessarily expressed in summary terms, I would refuse the application for leave to amend the statement of claim. If I am in error in concluding that leave is required, these reasons will demonstrate why the proposed pleading should be struck out in any event.
Further, pursuant to Rule 26 of the [SC Rules], I make, as a case management order, an order that no minute of proposed amended statement of claim may be filed without leave and that any application for leave to amend the statement of claim be supported by a minute of proposed amended statement of claim marked to show the amendments sought and an affidavit deposing to the reasons for the application.
Steps after 27 March 2025
On 11 April 2025, the respondents filed an affidavit of Mr Bayly verifying their discovery.
On 17 April 2025, Bowden DCJ heard the respondents' O 70 application and reserved his decision at the conclusion of that hearing. On 7 May 2025, his Honour dismissed the respondents' O 70 application and published written reasons for making that order.[33]
[33] Zaghloul v Bayly [No 4] [2025] WADC 27.
The appeals to this court
The current appeals are from various interlocutory orders made by the primary judge on 18 December 2024, 10 March 2025 and 27 March 2025. Below we identify the orders which are the subject of each appeal, the appellant's grounds of appeal in each appeal, and applications which have been made in each appeal.
CACV/22/2025
On 8 April 2025 the appellant filed an appeal notice in CACV/22/2025 against the following orders made by the primary judge on 18 December 2024:
1. The [appellant's] fresh statement of claim dated 13 April 2024 be uplifted.
6. The [appellant's] subpoena to produce documents addressed to Mr Sean Popperwell dated 10 September 2024 be set aside.
7. The [appellant] do pay Mr Popperwell's costs of and incidental to his objection to the subpoena to be taxed if not agreed.
11.In respect of the [appellant's] subpoena to produce documents addressed to [Woodside] dated 6 December 2024:
(b)the subpoena be amended to delete items 2, 3, 4, 5, 6, 8, 9 and 10 of the schedule and to add the words 'and Bradley Bayly Legal by email using their respective business email address' to item 7; …
12. The [appellant] do pay the costs of the objections of [Woodside] to the [appellant's] two subpoenas to be taxed if not agreed.
As the appeal was commenced out of time, the appellant requires an extension of time in which to appeal.
The appellant appeals against these orders on two grounds.
Ground 1 contends that the primary judge erred in making order 1 despite no application being before the court, no notice being given to the appellant, no opportunity being given to the appellant to be heard, no defect appearing on the face of the pleading and a defence to the pleading already having been filed by the respondents, thereby waiving any irregularity. The appellant contends that the order substantially impaired his lawful right to present his case and pursue equitable claims, and amounted to jurisdictional error and a denial of natural justice.
Ground 2 contends that the primary judge erred in law and denied the appellant procedural fairness by making orders 11(b) and 11(c). The appellant contends that those errors deprived him of a fair opportunity to obtain evidence necessary to advance his claim for equitable remedies, and thereby constituted a jurisdictional error that undermined the proper administration of justice.
Order 11(c) of the orders made by the primary judge on 18 December 2024 is not the subject of the appeal as it is not identified as an order being appealed against in the appeal notice. Order 11(c) was the order in respect to the appellant's subpoena to Woodside of 6 December 2024 that:
(c)a proper officer of [Woodside] to depose by affidavit to the methodology of searching for and retrieving, if applicable, the documents designated in item 7 of the subpoena, such affidavit to be filed and served by 31 January 2025.
The document entitled 'appellant's grounds of appeal' contained in the appellant's case filed on 23 April 2025 includes the following text:
Preliminary Note: The appellant respectfully advances the following grounds of appeal without prejudice to, and to be read in coherent conjunction with, the constitutional grounds raised in CACV 21 of 2025. The appellant submits that the procedural decisions challenged in this appeal form part of a broader pattern of judicial conduct which, when considered cumulatively, give rise to jurisdictional error and support a breach of the constitutional limitations identified in the Kable doctrine. (original emphasis)
By application in an appeal filed on 24 April 2025 the appellant applies for orders consolidating the three appeals, giving him leave to uplift and refile his appellant's case and for the 'refund' of certain costs and fees. The supporting affidavit for that application explains why the appellant says the appeals should be consolidated but does not explain why he needs to uplift and refile his appellant's case.
On 28 April 2025, the acting Court of Appeal registrar issued a notice to the parties to attend on 23 May 2025 for the court to consider:
(a)the appellant's application in the appeal filed on 24 April 2025 to, among other things, consolidate the three appeals;
(b)the appellant's application for an extension of time in which to appeal; and
(c)the appellant's application for leave to appeal.
CACV/23/2025
On 8 April 2025, the appellant filed an appeal notice in CACV/23/2025 against the following order made by the primary judge on 10 March 2025:
1. [Woodside] be discharged from the subpoena to produce dated 6 December 2024, having complied with the subpoena.
As the appeal was commenced out of time, the appellant requires an extension of time in which to appeal.
The appellant appeals against the above order on one ground, which contends that the primary judge erred in law 'by relying on inadmissible and procedurally defective affidavits to discharge Woodside from compliance with subpoenas with no determination of the core issue - the existence of a secret Retainer'. The appellant contends that the affidavits:
• Contained legal conclusions by a non-lawyer (RSC O 37 r 6(1));
• Included 'verily believe' assertions with no basis (RSC r 6(3A));
• Contained hearsay, contrary to RSC r 6(3);
• Employed unduly narrow Boolean search logic (“AND”);
• Omitted search results necessary to assess compliance;
• Disregarded the appellant's formal notice under RSC O 36B r 5A; and
• Ignored counsel's express undertaking (T 18/12/2024, p 353).
The appellant's ground of appeal contends that by 'failing to determine the real controversy, the judge obstructed access to critical evidence, a jurisdictional error'.
The document entitled 'appellant's grounds of appeal' contained in the appellant's case filed on 23 April 2025 includes the same text as is quoted at [56] above.
On 28 April 2025, the acting Court of Appeal registrar issued a notice to the parties to attend on 23 May 2025 for the court to consider:
(a)the appellant's application for an extension of time in which to appeal; and
(b)the appellant's application for leave to appeal.
CACV/21/2025
On 8 April 2025, the appellant filed an appeal notice in CACV/21/2025 against the following orders made by the primary judge on 27 March 2025:
2. Each of the [appellant's] applications for:
(a) Leave to file and serve the minute of second proposed statement of claim dated 9 March 2025;
(b) Compliance by [Woodside] with all subpoenas to produce issued to it;
(c) Specific discovery by the [respondents] of Mr Droppert SC's brief and of a retainer between [Woodside] and the [respondents] or either of them; and
(d) A permanent stay of the [respondents'] application by chamber summons dated 28 November 2024, be dismissed.
3. Pursuant to Rule 26 of the District Court Rules 2005, no minute of proposed amended statement of claim be filed without leave and any application for leave to amend the statement of claim be supported by an affidavit and filed with a minute of proposed amended statement of claim marked to show the proposed amendments.
4. The [appellant] do pay the [respondents'] costs of the chamber summons including costs reserved on 10 March 2025[.]
The appellant appeals against those orders. His appellant's case filed on 13 May 2025 contains the following two grounds:[34]
[34] We have reformatted to some extent for ease of comprehension and added paragraph numbering for ease of later reference.
1.The learned judge erred in law by abandoning the defining characteristics of a court under Chapter III of the Constitution. In breach of the Kable doctrine and its progeny, His Honour:
(a)Misapplied [Zaghloul 2021] to bar the appellant from pleading any equitable claim for breach of fiduciary duty - specifically, a claim alleging that the respondents acted under a secret retainer with Woodside to sabotage the appellant’s proceedings in the Federal Court of Australia against that company - despite fresh and materially different evidence emerging in late 2024, which reframed the case from professional negligence to a deliberate and knowing breach of fiduciary duty (Order 2(a));
(b)Reordered the sought orders in the Chambers Summons (9 March 2025) by considering items 2 and 3 (retainer subpoena and discovery) before Item 1 (leave to file the Statement of Claim), concluding there was 'no evidence' of a retainer despite overwhelming circumstantial evidence to the existence of the secret Retainer, then relying on that flawed finding to dismiss the proposed Statement of Claim as 'abuse of process' and 'scandalous.' This inverted the proper order of determination foreclosed the pleading before testing its evidentiary foundation;
(c)Allowed Woodside to withhold critical evidence of a suspected secret Retainer with [BBL] by dismissing subpoenas and denying discovery of documents central to the fiduciary claim based on affidavits laden with hearsay and Legal conclusions (Orders 2(b) - 2(c)).
(d)Condoned the use of a protective legislation (Guardianship and Administration Act 1990 (WA)) to be weaponised against the appellant, with no medical evidence of incapacity and in the face of medical evidence that the appellant was of 'sound mind and body', to displace him and eliminate the claim (Order 2(d));
(e)Withheld written reasons for strikeout/summary judgement with substantively FINAL effect, shielding the rulings from proper appellate scrutiny (Order 5) (Wainohu).
This cumulative conduct concealed the protection of Woodside's interests beneath the veneer of judicial legitimacy (Totani), stripping the proceeding of both the appearance and reality of impartial adjudication. If a democratically elected Parliament cannot lawfully compromise a court's institutional integrity, then a fortiori a single judge cannot. The resulting orders were constitutionally invalid and, in law, no decisions at all (Bhardwaj).
2.The learned judge erred in law by conducting the proceeding in a manner that gave rise to a reasonable apprehension of bias and constituted jurisdictional error, contrary to the principles established in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. A fair-minded lay observer might reasonably apprehend that His Honour might not have brought an impartial mind to the resolution of the dispute, as evidenced by:
(a)Selectively quoted passages from [Zaghloul 2021] without context to bar the appellant’s fiduciary duty claim, ignoring that fresh and materially different evidence - emerging in October - November 2024 and unavailable to the Court of Appeal in 2021 - fundamentally altered the claim's trajectory from negligence to deliberate breach of fiduciary duty motivated by a secret retainer with Woodside, thereby giving rise to a reasonable apprehension of bias (Order 2(a)).
(b)Refusing to consider key new evidence and substantial circumstantial evidence to the existence of the secret Retainer, including
(i) lack of a response in open court to the appellant's challenge to the lawyers representing Woodside and the respondents to 'categorically deny the existence of the Retainer' between Woodside and [BBL];
(ii) pleading Stephen Brameld with his exact title ('General Manager of Supply Chain') at Woodside (draft statement of claim dated 11 July 2013) with no instructions; and
(iii) possession of WorkCover documents (dated 2014 - 2016) post retainer (August 2013).
(c)Shielding the respondents from any claim for breach of fiduciary duty via:
(i) estoppel and res judicata by describing the claim for breach of fiduciary duty as 'abuse of process', and
(ii) imposing procedural restrictions barring any future pleading (Order 3),
thereby functionally granting immunity to the respondents without proper adjudication;
(d)Improper characterisation of the (10 March 2025) pleadings as an 'abuse of process' to strike the pleadings out with no application, no submissions, and no hearing, totally denying procedural fairness;
(e)Restricting any amendment to the statement of claim, which unlawfully shackled the appellant's right - to amend under Order 21 rule 3 of the [SC Rules] - while simultaneously accepting 135 days delay filing the Amended Defence (Order 3);
(d)Condoning an application - to displace the appellant and instate Public Advocate - manifestly brought for an improper collateral purpose despite the presumption of capacity and no medical evidence to rebut the presumption, contrary to:
(i) the purpose of the legislation (a shield for the vulnerable), and
(ii) well-established principle that courts must not allow their processes to be abused;
(e)Dismissive treatment of the appellant's submissions regarding the suspicious timing of the application to displace the appellant and appoint Public Advocate (filed just four days after seeking disclosure of the alleged secret retainer), while accepting the respondents' submissions without equivalent scrutiny;
(f)Imposing asymmetric procedural burdens by holding the appellant to heightened evidentiary and procedural standards, while accepting the respondents' bare denials - particularly regarding the suspected retainer - without testing;
(g)Failing to provide written reasons for the strike-out of the appellant's pleadings on 10 March 2025 (Order 5), despite the order having final effect, thereby depriving the appellant of meaningful appellate review and breaching the principle in Wainohu.
These circumstances, individually and collectively, demonstrate a failure to accord procedural fairness to the appellant and might lead a fair-minded lay observer to reasonably apprehend that His Honour might not have brought an impartial mind to the resolution of the questions before the Court. This cumulative conduct constituted jurisdictional error and rendered the resulting orders, in law, no decisions at all (Ebner, Bhardwaj).
(original emphasis)
The document entitled 'appellant's grounds of appeal' contained in the appellant's case filed on 13 May 2025 includes the following text:
Preliminary Note: The appellant respectfully advances the following grounds of appeal without prejudice to, and to be read in coherent conjunction with, the constitutional grounds raised in CACV 22 and CACV 23 of 2025. (original emphasis)
On 16 May 2025, the acting Court of Appeal registrar issued a notice to the parties to attend on 23 May 2025 for the court to consider:
(a)the appellant's application for leave to appeal; and
(b)whether the appellant's case lodged on 13 May 2025 should be struck out on the ground that it does not comply with r 32 of the SC Rules.
Leave to appeal: general principles
Each of the orders which is the subject of these appeals is clearly interlocutory in character. As the appeals are not from a final judgment, the appellant requires the leave of this court under s 79(1)(b) of the District Court of Western Australia Act 1969 (WA).
The general principles governing applications for leave to appeal were summarised by this court in Mineralogy Pty Ltd v CITIC Limited.[35] We adopt that summary without repeating it. For present purposes, the following points may be emphasised:
1.Appellate courts exercise particular caution (sometimes referred to as 'special restraint') in reviewing interlocutory decisions on matters of practice and procedure.
2.Leave to appeal from a discretionary decision involving a matter of practice and procedure will not ordinarily be granted unless the application raises an issue of principle, a question of general public importance or the applicant for leave can demonstrate that significant injustice is likely to result if leave is not granted
3.Ordinarily, while not being rigid or exhaustive criteria, the considerations to be taken into account by this court upon an exercise of the discretion to grant or refuse leave to appeal are:
(a)first, whether the decision was wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered; and
(b)second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong.
[35] Mineralogy Pty Ltd v CITIC Limited [2024] WASCA 168 [56] - [63].
It is, however, well established that leave to appeal may be granted whenever the interests of justice require it.
Leave to appeal: disposition
It is convenient to address the applications for leave to appeal before turning to other matters. Given the way the grounds are expressed and the relationship between the appeals, it is convenient to address the issues raised by the grounds in the three appeals thematically rather than separately dealing with each ground of each appeal.
The appellant's constitutional argument
The appellant's proposed constitutional argument is entirely misconceived. The decision in Kable v Director of Public Prosecutions (NSW)[36] establishes that a State Parliament lacks legislative power to confer a power on a State court which is repugnant to or incompatible with the court's exercise of the judicial power of the Commonwealth.[37] State Parliaments lack legislative power to confer functions which deprive a Supreme Court of its defining characteristics as a Supreme Court or deprive another court of the State of its defining characteristic as a court.[38] Those defining characteristics include that the court be and appear to be an independent and impartial tribunal,[39] an obligation to accord procedural fairness[40] and to give reasons for their decisions.[41]
[36] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
[37] See, for example, Assistant CommissionerCondon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [123] (Hayne, Crennan, Kiefel & Bell JJ).
[38] Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 [41], [63]; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [153]; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [96].
[39] North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146 [29].
[40] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319.
[41] Wainohu v The State of New South Wales [2011] HCA 24; (2011) 243 CLR 181.
However, in the present case there is no legislation which arguably impairs the institutional integrity of the District Court, so the Kable limitation has no role to play. If the primary judge had acted in circumstances giving rise to a reasonable apprehension of bias, had resolved the case in a manner that was procedurally unfair, or failed to give reasons so as to compromise the exercise of this court's appellate jurisdiction, then he would have made an error of law which could justify appellate interference with his decision. In any of those cases there could be no need to invoke constitutional limitations of the kind discussed in the previous paragraph.
Not only is the appellant's constitutional argument without merit, it is properly characterised as being incapable on its face of legal argument. As such, the present case does not involve a matter arising under the Constitution or involving its interpretation,[42] so that s 78B of the Judiciary Act 1903 (Cth) does not impose a duty on this court not to proceed in the case unless satisfied that notice has been given to Australian Attorneys General.
[42] Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 [35].
We will consider the matters identified in grounds 1(a) - (e) of the grounds of appeal in CACV/21/2025 to determine whether the primary judge erred in making the impugned orders. But there is no occasion in these appeals to resort to any constitutional limitation.
For the above reasons there was no merit in the appellant's submission that the appeals in this court should be stayed pending an application to the Federal Court of Australia to determine the constitutional question. Further, contrary to the appellant's submission, the Federal Court does not have exclusive jurisdiction to determine matters arising under the Constitution, or involving its interpretation, under s39B(1A)(b) of the Judiciary Act. This court is also invested with that federal jurisdiction under s 39(2) of the Judiciary Act read with s 76(i) of the Constitution. There is no question that this court has jurisdiction to determine the merits of the appellant's constitutional argument which, for the reasons noted above, is entirely misconceived.
Nor is there any merit in the appellant's submission that, if the orders made by the District Court were infected by jurisdictional error for constitutional or other reasons, there could be no appeal against those orders. In this case s 79(1)(b) of the District Court of Western Australia Act gives, subject to the grant of leave to appeal, a right of appeal against a 'judgment which is not a final judgment'. When a statute confers a right of appeal against a judgment or order of a court the right conferred is not confined to a judgment or order which is unaffected by jurisdictional error.[43] Jurisdictional errors by a court, like other errors, may be corrected on appeal but do not deprive a litigant of a right of appeal against the relevant order.
Reasonable apprehension of bias
[43] See, for example, ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2025] WASCA 38 [91] and cases there cited.
It is convenient next to consider the appellant's contention that the primary judge's conduct of the primary proceedings gave rise to a reasonable apprehension of bias.
Reasonable apprehension of bias will be established if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said that might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.[44] The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[45] However, the observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-makers.[46]
[44] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 [37] - [38], [67], [162], [194], [225].
[45] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].
[46] Ebner [8]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 [28]; QYFM [47], [70], [171].
Most of the appellant's contentions as to apprehended bias concern the merits of the primary judge's decision. As this court has previously noted in Ogbonna v CTI Logistics Ltd:[47]
[T]he question of whether there has been a failure to comply with the rules of natural justice is not answered by reference to the outcome of the exercise of the relevant power. The principles of natural justice are not concerned with the merits of a particular exercise of power, but with the procedure that must be observed in its exercise. The focus of attention must therefore be on the position as it stood before the impugned decision is taken.
Grounds 2(a) - (e) of the grounds of appeal in CACV/21/2025 are without merit for this reason.
[47] Ogbonna v CTI Logistics Ltd [2021] WASCA 25 [26].
We have reviewed the transcript of the hearings before the primary judge on 18 December 2024, 10 March 2025 and 27 March 2025. There is no arguable basis on which the primary judge's conduct of those hearings could give rise to any reasonable apprehension of bias. The trial judge heard from all parties and adopted an even-handed approach. There is no arguable basis in the manner in which the primary judge conducted the hearings for an allegation of apprehended bias.
Reasons
There is no merit in grounds 1(e) and 2(g) of the grounds of appeal in CACV/21/2025, alleging that the primary judge withheld reasons for his critical decisions. As noted above, the primary judge provided reasons for those decisions. There was no legal requirement for the primary judge to give written reasons for decision. The primary judge's oral reasons were legally adequate and plainly met the functional requirements of judicial reasons for the orders that the primary judge was making.
Amendment of the statement of claim
Statement of Claim as at 2019
It is instructive to note the pleadings in the appellant's Further Amended Statement of Claim dated 7 January 2019 (FASOC) which were struck out without leave to replead by Braddock DCJ in 2020.
The appellant pleaded that Mr Bayly owed the appellant a fiduciary duty.[48]
[48] FASOC par 18.
The appellant pleaded that the statement of claim filed by the respondents on his behalf in the District Court proceedings against Woodside repeatedly showed the name of Stephen Brameld as Woodside's 'General Manager of Supply Chain'. He contended that the respondents had no way of knowing of Mr Brameld and his role at Woodside unless there was communication between the respondents and Woodside which was undisclosed to the appellant. He pleaded that it was reasonable to infer that the respondents met with Mr Brameld without the appellant's knowledge 'to commit a lawful act: giving legal advice to the [appellant] with the predominant purpose of causing harm and denying him any remedy'.[49]
[49] FASOC pars 58 - 64.
The appellant pleaded that Mr Bayly resisted the appellant's claim to inspect his file, and when the appellant did see his file he found Workcover documents on it. He pleaded that there was no reason for Woodside to provide BBL with the Workcover documents. The appellant pleaded that it was reasonable to infer that Mr Bayly's resistance of the appellant's request to inspect his file was to avoid the risk of the appellant finding evidence of undisclosed communication with Woodside.[50]
[50] FASOC pars 65 - 70.
The appellant pleaded that on various dates he emailed Mr Bayly and alleged that Mr Bayly's advice to dismiss the Federal Court proceedings and focus on the District Court proceedings was in Woodside's benefit and to the appellant's detriment. He pleaded that Mr Bayly did not reply to the appellant's allegations. The appellant pleaded that it was reasonable to infer that the respondents benefited from their relationship with Woodside at the expense of the appellant.[51]
[51] FASOC pars 71 - 74.
The appellant pleaded that by reason of matters including the above pleadings, the respondents breached their contract with the appellant.[52]
[52] FASOC par 93.
In pleading that the respondents engaged in unconscionable conduct in contravention of the Australian Consumer Law, the appellant contended:
100It is reasonable to infer that there was an agreement between the [respondents] and Woodside to work towards denying [the appellant] any remedy in causes of action for negligence and breach of contract. that the [respondents] acted on that agreement for a direct or indirect benefit.
…
101. The benefits of the agreement between the [respondents] and Woodside flowed from the breach of duty or by reason or use of the breach.
The relief sought by the appellant included an order for an account of profit 'flowing directly or indirectly from [Woodside] to the [respondents] or any of them'. The prayer for relief included the following particulars:
(i)Before [the appellant] first met with Mr Bayly on 14 February 2013, BBL was not in Woodside's approved vendor list and did not provide any legal services to Woodside.
(ii)By reason of the matters pleaded in Parts B to E it is reasonable to infer, or alternatively there is a possibility, that the [respondents] gained from Woodside and that a profit has been made.
(iii)Any benefit received was as a result of participation in a dishonest breach of fiduciary duty and should be recoverable in equity.
(iv)It is presently impossible, without an account being taken, for the [appellant] to ascertain whether in fact money was gained by the [respondents] or the quantum of the amount.
Strike out of pleading in FASOC
Braddock DCJ struck out the paragraphs of the FASOC pleading the respondents' relationship with Woodside. Her Honour characterised the paragraphs as pleading a 'guess theory or conjecture' involving an overall allegation that Mr Bayly conspired with Woodside to harm the appellant. Her Honour concluded that these paragraphs were a scandalous allegation, unsupported by facts, which disclosed no reasonable cause of action. She struck out the paragraphs together with the associated pleas for relief.[53]
[53] Zaghloul v Bayly [2020] WADC 84 [114] - [121].
With the addition of an allegation of the existence of a 'secret Retainer' between Woodside and BBL, the allegations of breach of fiduciary duty in the appellant's 'Second Proposed Amended Statement of Claim' dated 10 March 2025 closely reflect the allegations in the FASOC which were struck out by Braddock DCJ in 2020.
The decision in Zaghloul 2021
This court did not address the breach of fiduciary duty pleadings in Zhaghloul 2021 because the appellant did not seek to resurrect that claim on appeal. In allowing the appeal, this court did not give the appellant general leave to replead his case. Rather, it confined the appellant to pleading a case in negligence which conformed to the type of claim described at [14] above. This court's orders implicitly restricted the appellant from filing a further statement of claim without leave, despite general provisions in the SC Rules which generally allow for the amendments of pleadings without leave prior to trial.
Whether the appellant required leave to further amend his pleading
In these circumstances, the primary judge correctly recognised that the pleading filed by the appellant on 13 April 2024 without leave was irregularly filed and should be uplifted. In any event, the order requiring that pleading to be uplifted does not occasion any substantial injustice to the appellant as the 13 April 2024 pleading was overtaken by the proposed 10 March 2025 pleading. Leave to appeal against order 1 of the orders made on 18 December 2024 should be refused on the basis that the case management order is not attended by sufficient doubt to justify the grant of leave to appeal and even if it were made in error there would be no substantial injustice to the appellant in leaving it uncorrected.
In the above circumstances, it was well-open to the primary judge to make an order expressly preventing the appellant from filing a further statement of claim without leave. That requirement was implicit in this court's orders and, the requirement having previously been ignored by the appellant, it was appropriate to make an express order in the form of order 3 of the orders made on 27 March 2025. The appellant has not advanced any arguable grounds for impugning the primary judge's discretionary decision on a matter of practice and procedure. The order could not give rise to any substantive prejudice to the appellant, and the appeal against that order does not involve any question of general principle. It is not in the interests of justice to grant leave to appeal against order 3 of the orders made on 27 March 2025.
Dismissal of the appellant's application for leave to amend
The primary judge was plainly correct to dismiss the appellant's application to amend his statement of claim to reintroduce the claim of breach of fiduciary duty. A pleading in very similar terms had been struck out by Braddock DCJ in 2020. There was no challenge to the correctness of that decision. This court's decision in Zaghloul 2021 determined that the appellant should be given leave to replead a specific type of cause of action in negligence. The appellant sought to amend his statement of claim to reintroduce the allegation of breach of fiduciary duty with the added element of a 'secret Retainer'. Apart from the reference to a 'secret Retainer', the cause of action which the appellant sought to plead in March 2025 had the same essential elements as the earlier cause of action for breach of fiduciary duty which had been struck out in 2020. There is no cogent evidence that the alleged retainer existed. The appellant's belief that there was a 'secret Retainer' was drawn from the facts referred to in ground 2(b) of the grounds of appeal in CACV/21/2025 quoted at [65] above but did not logically follow from those facts. Mr Bayly had sworn an affidavit that he had not entered into such a retainer. A search of Woodside's electronic storage facility had produced no evidence of such a retainer. To have allowed the appellant to reintroduce the plea of breach of fiduciary duty in these circumstances would have brought the administration of justice into disrepute. The primary judge correctly characterised the proposed reintroduction of such a claim as an abuse of process. His Honour's decision to refuse leave to the appellant to reintroduce his claim of breach of fiduciary duty is not attended by sufficient doubt to justify the grant of leave to appeal against order 2(a) of the orders made on 27 March 2025.
Procedural fairness
We note that there is also no merit in the appellant's contention that the primary judge denied him procedural fairness in not giving him an opportunity to make further submissions on the issue (see [40] above). By that time the appellant had taken the opportunity to make extensive oral and written submissions on his proposed claim of breach of fiduciary duty and why he should be permitted to advance that claim despite this court's decision in Zaghloul 2021. The nature of the claim, and the reasons why the appellant contended he should be allowed to advance it, were clearly apparent. The appellant does not identify any further submission which he could usefully have made. The primary judge's approach did not deny the appellant a reasonable opportunity to present his case.
Subpoenas issued to Woodside
The appellant agreed to confine the documents which he sought Woodside to produce to the alleged retainer and communications between Mr Brameld and either Mr Bayly or BBL. Given the position adopted by the appellant, there could be no reasonable complaint about the primary judge's decision to set aside or amend the subpoenas so far as they sought other documents. The primary judge adopted a sensible and pragmatic approach of requiring Woodside to search for the requested documents and file an affidavit explaining the search methodology. When that was done, and no documents were located, the primary judge was reasonably satisfied that all reasonable searches had been undertaken and that Woodside had complied with the subpoena.
Contrary to the appellant's submission, there was no arguable requirement for the primary judge to 'determine the existence or non‑existence' of the retainer as a condition of the existence of his jurisdiction to set aside the subpoena. Nor is there any merit to the appellant's submission that he was denied procedural fairness when the court amended the subpoena issued on 6 December 2024. The primary judge gave the appellant an opportunity to make oral submissions on the only contentious amendment - reducing the scope of the search for correspondence - before ruling on that issue.
While the appellant's fixation on the existence of a 'secret Retainer' appears immutable, the primary judge appropriately allowed for the possibility that, as Mr Bayly had deposed, there was actually no retainer in existence. The primary judge's decision to confine the scope of the appellant's subpoenas to Woodside was a reasonable decision on a matter of practice and procedure.
In any event, the alleged retainer would not be relevant to any issue on the appellant's negligence claim, which is the only claim properly before the District Court.
There is no merit in the appellant's complaints about the admissibility of Ms Brain's affidavits, set out in the particulars to ground 1 of the grounds of appeal in CACV/23/2025. Ms Brain generally deposes to facts within her own knowledge and, in any event, an affidavit made for the purposes of interlocutory proceedings may contain statements of information and belief under O 37 r 6(2)(c) of the SC Rules. The only significant statements of information and belief in Ms Brain's affidavit sworn on 31 January 2025 were of the results of the review by Woodside's lawyers of documents returned by the electronic searches. Those paragraphs were properly included in compliance with order 11(c) of the orders made on 18 December 2024, which required that the affidavit depose to the search methodology adopted. Contrary to the appellant's submissions, Ms Brain's statements about whether the electronic searches returned any document within the scope of the subpoena, which as amended was expressed in very specific terms, did not involve the expression of any unqualified legal opinion. Nor is there any substance to the appellant's assertion that Ms Brain ignored any undertaking given by counsel for Woodside.
In the above circumstances, it is not in the interest of justice to grant leave to appeal against order 11(b) of the orders made on 18 December 2024, order 1 of the orders made on 10 March 2025, or order 2(b) of the orders made on 27 March 2025. Nor would it be in the interests of justice to grant leave to appeal against order 11(c) of the orders made on 18 December 2024 were the appellant to appeal against that order.
Subpoena issued to Mr Popperwell
The respondents, through Mr Popperwell's firm acting as solicitors, have now filed a list of discoverable documents verified by affidavit. In those circumstances, there could be no utility in requiring Mr Popperwell to answer a subpoena for the production of discoverable documents. It is not in the interest of justice to grant leave to appeal against order 6 of the orders made on 18 December 2024.
Specific discovery
Generally, an affidavit of discovery is conclusive of the relevant documents in the possession, custody or power of a party unless the insufficiency of discovery appears from the affidavit itself or some other document.[54] While specific discovery may be ordered under O 26 r 6 of the SC Rules or in the court's inherent jurisdiction, the court will generally only do so where it has reasonable grounds for being fairly certain that the documents sought are in existence. The relevant general principles are helpfully summarised by Smith J in Raindale Holdings Pty Ltd v Hundermark,[55] and Archer J (as her Honour then was) in Poli v Poli.[56]
[54] See the discussion by Murphy JA in Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218 [3] - [14].
[55] Raindale Holdings Pty Ltd v Hundermark [2019] WASC 276 [15] - [22].
[56] Poli v Poli [2021] WASC 247 [34] - [35].
The respondents have now given discovery on affidavit. Mr Bayly has deposed that there was no retainer. There is no cogent evidence as to the existence of a 'secret Retainer'. The primary judge could not have been fairly certain that the document existed on the evidence before his Honour. There is no arguable basis for impugning the primary judge's discretionary decision not to require specific discovery in relation to the alleged retainer. Nor was there any utility in requiring specific discovery of counsel's brief which has been discovered and specifically deposed to having been destroyed. It is not in the interests of justice to grant leave to appeal against order 2(c) of the orders made on 27 March 2025 in these circumstances.
Respondents' O 70 application
In circumstances where the respondents' O 70 application has been dismissed, there is no utility in granting leave to appeal against order 2(d) of the orders made on 27 March 2025, refusing a permanent stay of that application.
Costs
The impugned costs orders followed the event, and there is no basis for granting leave to appeal against those orders independently of the procedural orders to which they relate. It is not in the interests of justice to grant leave to appeal against the costs orders made in orders 7 and 12 of the orders made on 18 December 2024 or order 4 of the orders made on 27 March 2025.
Orders
For the above reasons, it is not in the interests of justice to grant leave to appeal in relation to any of the interlocutory orders which are the subject of the current appeals. Given that conclusion, there is no utility in granting an extension of time in CACV/22/2025 and CACV/23/2025.
Given these conclusions, it is unnecessary for us to deal with the merits of the other matters referred to in the registrars' notices to attend. As the appeals are to be dismissed, there is no utility in the application in an appeal dated 24 April 2025 filed in appeal CACV/22/2025 to consolidate the three appeals. However, for completeness we will make an order in appeal CACV/22/2025 that the appellant's application in an appeal dated 24 April 2025 is dismissed.
For the above reasons, the orders which should be made in each appeal are:
CACV/21/2025
1.Leave to appeal is refused.
2. The appeal is dismissed.
CACV/22/2025
1.The appellant's application in an appeal dated 24 April 2025 is dismissed.
2.The appellant's application for an extension of time in which to appeal is dismissed.
3.Leave to appeal is refused.
4. The appeal is dismissed.
CACV/23/2025
1.The appellant's application for an extension of time in which to appeal is dismissed.
2.Leave to appeal is refused.
3. The appeal is dismissed.
We would hear from the parties on questions of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
28 MAY 2025
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