Zaghloul v Woodside Energy Ltd
[2013] FCA 426
FEDERAL COURT OF AUSTRALIA
Zaghloul v Woodside Energy Ltd [2013] FCA 426
Citation: Zaghloul v Woodside Energy Ltd [2013] FCA 426 Parties: DR HASSAN ZAGHLOUL v WOODSIDE ENERGY LIMITED (ACN 005 482 986) File number: ACD 62 of 2012 Judge: GILMOUR J Date of judgment: 8 May 2013 Catchwords: PRACTICE AND PROCEDURE – urgent application for discovery – whether discovery is necessary for the fair and just disposition of the respondent’s application for summary judgment Legislation: Federal Court of Australia Act 1976 (Cth) s 51(2)
Workers’ Compensation and Injury Management Act 1981 (WA) ss 93C, 93(4)(c), 93K(4)
Workers’ Compensation and Injury Management Regulations 1982 (WA) reg 22
Workers Compensation Act 1951 (ACT)Date of hearing: 7 May 2013 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Dr H Zaghloul appeared in person Counsel for the Respondent: Mr J Blackburn Solicitor for the Respondent: Ashurst Australia
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 62 of 2012
BETWEEN: DR HASSAN ZAGHLOUL
ApplicantAND: WOODSIDE ENERGY LIMITED (ACN 005 482 986)
Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
7 MAY 2013
WHERE MADE:
CANBERRA VIA TELEPHONE TO PERTH
THE COURT ORDERS THAT:
1.The applicant’s interlocutory application for discovery dated 18 April 2013 be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 62 of 2012
BETWEEN: DR HASSAN ZAGHLOUL
ApplicantAND: WOODSIDE ENERGY LIMITED (ACN 005 482 986)
Respondent
JUDGE:
GILMOUR J
DATE:
8 MAY 2013
PLACE:
CANBERRA VIA TELEPHONE TO PERTH
REASONS FOR JUDGMENT
I made orders on 7 May 2013 dismissing the applicant’s interlocutory application for urgent discovery with costs. The following are my reasons.
This is an interlocutory application by the applicant dated 18 April 2013 for an urgent order that the respondent provide general discovery. It is supported by his affidavits affirmed 16 and 22 April 2013 respectively. He contends that discovery ought be ordered and, I infer, also provided, prior to the hearing of the respondent’s interlocutory application for summary judgment in respect of part of the applicant’s pleaded claims. He asserts that discovery is necessary to enable him to prepare his response to the summary judgment application and that it will demonstrate that a genuine dispute exists. This summary judgment hearing is listed to be heard by me next week on 16 May 2013 at 10.15 am.
The applicant asserts that, because there are disputes of fact, and because, as he puts it, although without specificity, “the law is not well established in such circumstances”, that discovery is necessary in order to meet the demands of justice. He contends that there are documents which, if discovered, will demonstrate that none of his pleaded claims are susceptible to summary judgment.
It is, accordingly, necessary to understand the nature of the summary judgment application brought by the respondent and which is supported by the affidavit of Ms Jacqueline Young sworn 16 April 2013.
The applicant’s claims as pleaded in the statement of claim are varied. The application for summary judgment is concerned principally with the claims of alleged bullying and harassment in breach of express and implied terms in the applicant’s contract of employment and further, in breach of the tortuous duty of care which the respondent owed to the applicant. The claims include further alleged breaches of contract, but these are only relevant to the extent that loss and damage which the applicant claims is for mental or physical injury.
The respondent’s claim for summary judgment depends upon the meaning and effect of certain provisions of the Workers’ Compensation and Injury Management Act 1981 (WA) (the Compensation Act).
Section 93C of the Compensation Act provides that if Div 2 applies a court is not to award damages to a person contrary to the Division.
Division 2 of the Act applies to the claims in respect of which summary judgment is sought.
The respondent, on the hearing of its application for summary judgment, will rely upon the provisions of s 93K(4) of the Compensation Act, which relevantly provides:
Damages in respect of an injury can only be awarded if –
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b)the Director registers the election in accordance with the regulation; and
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election;
. . .
(Emphasis added.)
Regulation 22 of the Workers’ Compensation and Injury Management Regulations 1982 (WA) provides for the means by which an election is made and lodged with the Director, and further provides that once registered, the Director is to complete the relevant section of the election form and give a copy of it to the worker and the employer.
The central proposition of law to be advanced in the summary judgment application by the respondent is that ss 93C and 93K(4) apply to prevent the court awarding damages for an injury as defined in the Compensation Act unless court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election.
It will be common ground, as I understand it, that the applicant commenced these proceedings on 27 August 2012 but that he did not make an election in accordance with s 93K(4) until on or about 25 February 2013. Accordingly, no written notice was given by the Director to the applicant before he commenced the proceeding. The respondent will, in these circumstances, submit by reason of s 93(4)(c), that this Court cannot award damages to the applicant in tort or contract for mental or physical injury, and to that extent, the applicant’s claim has no reasonable prospects of success, and further, that it is therefore also an abuse of process of the Court and, in those respects, ought be summarily dismissed.
The applicant’s written outline of submissions, in opposition to the interlocutory application for summary judgment, propound various legal arguments. He will submit that by reason of alleged inconsistencies between the Compensation Act and Commonwealth legislation, that the Commonwealth legislation should prevail to the extent that no election provided for under the Compensation Act is required in circumstances where proceedings are commenced in this Court, as distinct say, from the Supreme Court of Western Australia.
He will further contend that, in any event, the legislation applicable to his claims the subject of the summary judgment claim is the Workers Compensation Act 1951 (ACT). He also places reliance upon s 51(2) of the Federal Court of Australia Act 1976 (Cth) concerning formal defects or irregularities in proceedings commenced in this Court.
It is of course, premature to say anything about the prospects of the summary judgment application. However, it may be seen that the arguments of the respondent, as well as the counter arguments of the applicant, in relation to the summary judgment application, are arguments of law and not of fact. The respondent will either make good his submissions of law or not. So much also is the case for the applicant. It is apparent that none of these arguments depend upon discovery being given by the respondent. The only possible question of fact may have been whether the election, which the respondent contends is necessary under s 93K(4)(a) of the CompensationAct, was not made until after the applicant commenced the present proceedings. However, from a consideration of the applicant’s outline of submissions this does not appear to be in issue. In any event, if the relevant notice of an election had been given by the Director to the applicant before he commenced his proceeding then the applicant could no doubt produce a copy of it. No discovery from the respondent is necessary in that respect.
Accordingly, for all these reasons, the applicant has failed to establish that discovery is necessary for the fair and just disposition of the respondent’s application for summary judgment. This is not to say that discovery will not be required to be given once the summary judgment application has been determined one way or the other. The issues in respect of which discovery will be required will at that time be confined by the outcome of the summary judgment application.
The applicant submits that because of the imbalance in representation that he should not have to pay the costs of the respondent. I do not accept this submission. The applicant has chosen to represent himself, having terminated the retainer of his lawyers. Self-representation is not, in any event, ordinarily a reason not to award a successful party who is represented, their costs.
The present application for urgent discovery will be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 8 May 2013
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