Zaghloul v Bradley Bayly Holdings Pty Ltd
[2025] WASCA 58
•16 APRIL 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 58
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 16 APRIL 2025
DELIVERED : 16 APRIL 2025
PUBLISHED : 16 APRIL 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
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : CIV 2756 of 2017
Catchwords:
Appeal - Practice and procedure - Appeal from an order of the primary court refusing a permanent stay of the respondents' application for a declaration as to whether the appellant is a person under a disability for the purposes of O 70 of the Rules of the Supreme Court 1971 (WA) - Whether the primary proceedings ought to be stayed pending the determination of the appeal
Legislation:
Rules of the Supreme Court 1971 (WA), O 28 r 1, O 70 r 1
Result:
Application for a stay of the primary proceedings dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | S F Popperwell |
| Second Respondent | : | S F Popperwell |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Popperwell & Co |
| Second Respondent | : | Popperwell & Co |
Case(s) referred to in decision(s):
Barrett v King [2024] WASCA 169
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141
Lee v The State of Western Australia [2023] WASCA 97
Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45
Thomson v Young [2013] NSWCA 300
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
W v S [2025] WASCA 21
Zaghloul v Bayly [2021] WASCA 125
Zaghloul v Bayly [2023] WASCA 64
REASONS OF THE COURT:
On 16 April 2025, we heard the appellant's application in an appeal filed on 10 April 2025 for an order that the primary proceedings be stayed pending the determination of this appeal and that a hearing date in the primary proceedings be vacated. At the conclusion of that hearing, we dismissed that application and ordered that the appellant pay the respondents' costs of the application. We said that we would publish our reasons for making those orders later. These are our reasons for making those orders.
Procedural history
In the primary proceedings, which were commenced in 2017, the appellant sues the respondents in negligence. In broad terms, he alleges 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.
The primary proceedings have been the subject of two previous decisions of this court.
In Zaghloul v Bayly [2021] WASCA 125, the court set aside summary judgment which had been granted to the respondents and made orders providing for the appellant to file a minute of proposed statement of claim which pleaded a negligence claim. The court upheld a decision to strike out other aspects of the appellant's claim in the primary proceedings without leave to replead. The court's orders remitted to the District Court the question of whether to grant the appellant leave to file and serve a statement of claim in accordance with that minute.
In Zaghloul v Bayly [2023] WASCA 64, the court refused leave to appeal and dismissed the appeal against orders dismissing the appellant's application to strike out the respondents' defence in the primary proceedings and for summary judgment to be entered in the appellant's favour. The nature of the claims made in, and the procedural history of, the primary proceedings up to that point are summarised in that decision.
The genesis of the current appeal lies in an application which the respondents made in the primary proceedings by chamber summons filed on 28 November 2024 (respondents' application). The respondents' application asks the court to make, subject to paragraphs that follow, 'a declaration whether the [appellant] 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) (Rules).
The respondents' application proposes a two-stage process for the making of such a declaration. In the first stage, it is proposed that:
1.the respondents 'must each serve on the [appellant] any notice requiring the [appellant] to submit himself for examination' by a psychiatrist, Dr Chris Cocks; and
2.the District Court request the Office of the Public Advocate to investigate whether:
(a)the appellant has the ability to make reasonable judgments about the conduct of the primary proceedings; and
(b)whether or not 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 appellant's next friend.
The second stage proposed by the respondents' application will involve a further hearing at a date to be fixed for the District Court to determine whether the appellant 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.
Orders have been made in the primary proceedings programming the respondents' application for hearing on 17 April 2025.
By further amended chamber summons filed on 9 March 2025, the appellant relevantly applied for a permanent stay of the respondents' application as an abuse of process. On 27 March 2025, the primary judge made orders relevantly dismissing the appellant's application for a permanent stay of the respondents' application. The primary judge gave the following substantive reasons for making that order:[1]
The [appellant] sought the stay on the basis that the [respondents'] application lacked merit. The [appellant] argued that his capacity to conduct the proceedings was demonstrated by, amongst other things, the second proposed statement of claim.
I will deal with the issue of whether leave should be given to permit that document to stand as the statement of claim shortly, but as far as the question of capacity is concerned, I consider that it is the very subject of the [respondents'] application, the merits of which should be determined by a hearing. The hearing has been listed. It is imminent. I find there are no grounds to stay the application for [abuse of] process or any other reason.
By refusing the stay, I am not expressing a view as to the merits of the application. My finding is simply that there is no procedural reason to stay the application. It is not an abuse of process. Legitimate concerns ground the application. The [respondents] have an interest in ensuring that the action against them is conducted by a person who has the capacity to do so.
[1] ts 27/03/2025, 451 - 452.
The orders made on 27 March 2025 also dismissed the appellant's application for discovery and for leave to file an amended statement of claim in the primary proceedings.
The appeal to this court
By an appeal notice filed on 8 April 2025, the appellant appeals from the order dismissing his stay application in the primary proceedings and other interlocutory procedural orders made by the primary judge on 27 March 2025.
By an application in an appeal filed on 10 April 2025 (stay application), the appellant seeks orders staying the primary proceedings pending determination of the appeal and vacating the hearing date for the respondents' application. This is the application which is the subject of these reasons.
Because the respondents' application is listed for hearing on 17 April 2025, the court made orders programming the stay application for hearing on 16 April 2025.
Pursuant to those orders, the appellant filed a minute setting out his draft ground of appeal, which is in the following terms:
The learned judge erred in law (Order 2(d) made on 27 March 2025) by refusing to stay a chambers summons which was:
• Jurisdictionally incompetent, as it sought a declaration of incapacity and the appointment of a Public Advocate - relief that the District Court of Western Australia had no statutory power to grant under either section 50 of the District Court of Western Australia Act 1969 (WA) or any provision of the Guardianship and Administration Act 1990 (WA);
• Pursued in defiance of the statutory presumption of capacity under section 4(3) of the Guardianship and Administration Act 1990 (WA), which the respondents failed to rebut, and which was affirmatively reinforced by their counsel's concession on 18 December 2024 that the appellant clearly 'understands' how to run the litigation;
• Improperly motivated, having been filed four days after the appellant sought discovery of a secret Retainer with Woodside, and plainly designed to frustrate the appellant's ability to pursue unconstrained equitable remedies for serious breaches of core fiduciary duties of loyalty and conflict avoidance.
The submissions filed by the appellant in support of the stay application generally concerned the merits of the proposed grounds of appeal.
In his affidavit in support of the stay application, the appellant in effect expresses a concern that, if a stay is not granted, he may be deprived of his right to self-representation if the Public Advocate is appointed as his next friend in the primary proceedings. He claims that this would cause irreparable harm by fundamentally compromising his ability to present and manage his case, both at the appellate and primary court levels. The appellant says:[2]
This harm is not merely inconvenience or financial burden but would constitute permanent detriment, affecting the fairness and integrity of the appeal process. By contrast, an order for stay would facilitate the just, efficient, timely, and cost-effective resolution of the real issues in dispute. Granting the stay would prevent the complication and potential prejudice that would arise if conflicting orders were made by the District Court while the appeal is pending.
[2] Appellant's affidavit sworn 10 April 2025, par 6.
The appellant submits that the appeal has a reasonable prospect of succeeding, describing the 'key issues' in the appeal as being whether the primary judge 'erred by dismissing [the appellant's] applications for discovery and pleading new events and ramifications in [the appellant's] minute of proposed statement of claim filed on 10 March 2025.' The appellant asserts a belief that the respondents' application was 'retaliatory', aimed at obstructing his claim in the primary proceedings.[3]
[3] Appellant's affidavit sworn 10 April 2025, pars 14 - 17.
General principles
The relevant general principles were summarised in the recent decision of this court in Lee v The State of Western Australia.[4] The substance of that summary is repeated here for ease of reference.
[4] Lee v The State of Western Australia [2023] WASCA 97 [22] - [26]. See also, to similar effect, Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [47] - [55].
Whether there are special circumstances justifying a stay of the judgment or order of a primary court normally involves assessment of three things:
1.Is the stay necessary to preserve the subject matter or the integrity of the litigation?
2.Does the appeal have reasonable prospects of success?
3.Does the balance of convenience favour the grant of the stay?
This court recognises the need to exercise special restraint when considering challenges to interlocutory orders concerning practice and procedure. Moreover, it is recognised that where, in aid of such an appeal, an appellant seeks a stay of pending proceedings - as is sought by the current application for a stay - the order sought involves the exercise of an 'exceptional jurisdiction'. An applicant has to demonstrate a 'high threshold' in making out a special case to warrant such appellate interference. [5]
[5] Thomson v Young [2013] NSWCA 300 [13] (approved in Hancock Prospecting [52].
In Nikolaidis v Legal Services Commissioner, [6] Bryson JA stated in the context of an application to stay ongoing proceedings in the Administrative Decisions Tribunal of New South Wales:
Judicial decisions relating to the enforcement of judgments which are under appeal cannot be readily applied to an interlocutory stay of proceedings, but in principle the inherent power of the court [to grant such a stay of proceedings] extends to appeals in interlocutory proceedings. The power exists because it is necessary for the administration of justice, and it is to be exercised where it is necessary to exercise it. The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy, or otherwise so adversely severe in its impact, that intervention by the Court of Appeal should take place notwithstanding that there has not been an opportunity for full consideration. (emphasis added)
[6] Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 [18] (approved in Hancock Prospecting [53] - [55]).
On the issue of such appellate intervention, Bryson JA stated that the question for consideration was a 'test of necessity' not simply a balance of convenience. [7]
[7] Nikolaidis [20].
Disposition
It may be accepted that, if a stay is not granted by this court, the appeal might not be determined before the determination of the respondents' application. However, if this court ultimately determined that the primary judge ought to have granted a permanent stay of the respondents' application then the court could make consequential orders setting aside any orders made on the respondents' application. It cannot be said at this stage that the appeal will be rendered nugatory, in the sense that term is used in this context,[8] if this court does not grant a stay pending determination of the appeal.
[8] See Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22].
Further, the appellant's prospects of success in the appeal are not sufficiently strong to justify the grant of a stay by this court. Leave to appeal is required to appeal against interlocutory orders on matters of practice and procedure. The particular caution which the court exercises in granting leave to appeal against orders of this kind was discussed in the recent decision of this court in Mineralogy Pty Ltd v CITIC Ltd.[9] In the course of that discussion, the court observed:[10]
The statutory restriction on appeals from an interlocutory order or judgment recognises at least three matters which individually and collectively have the consequence that the due administration of justice is not served by appellate review of interlocutory orders or judgments as a matter of course.
First, interlocutory orders and judgments do not commonly tend to cause substantial injustice or adversely affect a litigant's legal rights, interests or liabilities. In any case, an appellate court may, on an appeal from a final order or judgment, correct any interlocutory order or judgment which affected the final result. Second, uncontrolled appellate review from an interlocutory order or judgment has the potential to fragment or fracture the timely and efficient determination of disputes to the disadvantage of the parties. Third, the Court of Appeal has limited judicial and administrative resources which must be maximised and used efficiently. The requirement of leave to appeal is a preliminary procedure enabling the court to control in some measure the volume of appellate work requiring its attention.
[9] Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168 [56] - [63].
[10] Mineralogy [57] - [58].
The court in Mineralogy recognised that 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.
In the present case, the only consequence of refusing leave to appeal would be that the respondents' application would be determined on its substantive merits. There is typically no injustice in a matter being determined on its merits.[11] In the present case there would be no substantive injustice to the appellant by allowing an order in the District Court refusing to stay the respondents' application, which does not determine his substantive rights, to stand. No question of principle or general public importance is raised by the appeal. Nor is there any obvious error in the primary judge's approach of refusing a stay in the District Court so that the respondents' application can be determined on its merits. In these circumstances, the prospects of the appellant obtaining leave to appeal in the current appeal do not appear to be sufficiently strong to justify the grant of a stay pending the determination of the appeal.
[11] Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45 [3]; Zaghloul v Bayly [2023] WASCA 64 [52]; Barrett v King [2024] WASCA 169 [61].
In any event, a stay of the District Court proceedings is not necessary for the administration of justice in the sense described in Nikolaidis. If an order is made on the respondents' application, then that order may be the subject of an interlocutory appeal to this court. If orders made on the respondents' application had the effect, for example, of permanently precluding the appellant from prosecuting the primary proceedings then those orders might be the subject of a grant of leave to appeal. There is no imperative at this stage to prevent the hearing of the respondents' application from proceeding.
Further, it is highly unlikely that any orders will be made on 17 April 2025 going beyond those contemplated as the first stage of the respondents' application.
This might first involve providing a time for the respondents to serve a notice under O 28 r 1(1) of the Rules[12] requiring the appellant to attend a medical examination. Such an order would not have the legal effect of compelling the appellant to attend a medical examination. If a notice was served and the appellant objected to complying with the notice, then it would be necessary for the respondents to apply for the court to make an order as to whether or not the appellant shall submit himself for examination under O 28 r 1(2A) of the Rules. Even if an order for the appellant to submit himself for examination were made, failure by the appellant to submit himself for examination could only lead to the court ordering that the primary proceedings are stayed until the examination has taken place or that a pleading be struck out, under O 28 r 1(3) of the Rules.
[12] Order 28 of the Rules applying in the District Court with an immaterial modification by virtue of r 47A of the District Court Rules 2005 (WA).
The first stage proposed by the respondents' application also proposes the court asking the Public Advocate to investigate identified matters. This would involve the Public Advocate considering whether to exercise statutory powers which the Public Advocate has in any event, and which would require the Public Advocate to make an application to the State Administrative Tribunal before the appellant's interests would be affected.[13]
[13] See W v S [2025] WASCA 21 [59] - [60].
Therefore, even if the orders proposed at the first stage of the respondents' application were made, there would still need to be further applications to and orders by the District Court or the State Administrative Tribunal before the appellant's interests would be affected. Particularly in these circumstances, there is no imperative for this court to prevent the hearing of the respondents' application on 17 April 2025 from proceeding in order to protect the effective exercise of this court's appellate jurisdiction.
Nothing in the above discussion should be taken as the expression of any view by this court about the merits of the respondents' application. The question of whether any orders should be made on the respondents' application, and if so the kind of orders which should be made, is properly a matter for the judge hearing that application in the District Court.
In all of these circumstances, we were not satisfied that it was in the interests of justice for the court to stay the primary proceedings, or vacate the hearing of the respondents' application, at this stage.
Orders
For the above reasons, at the hearing on 16 April 2025, we made orders that:
1.The appellant's application in an appeal filed on 10 April 2025, seeking an order that the primary proceedings be stayed, is dismissed.
2.The time for the appellant to file and serve his appellant's case is extended to 4pm on 13 May 2025 and the appellant must file an appellant's case that complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) by that time.
3.The appellant is to pay the respondents' costs of the application in an appeal filed on 10 April 2025, to be assessed if not agreed, in any event.
Order 2 granted in part an extension of time which the appellant had sought in a letter to the Court of Appeal registrar which counsel for the respondent indicated was not opposed. We made order 3 because we were satisfied that the costs of the application should follow the event.
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
16 APRIL 2025
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