Zaghloul v Woodside Energy Ltd (No 2)
[2013] FCA 947
FEDERAL COURT OF AUSTRALIA
Zaghloul v Woodside Energy Ltd (No 2) [2013] FCA 947
Citation: Zaghloul v Woodside Energy Ltd (No 2) [2013] FCA 947 Parties: HASSAN ZAGHLOUL v WOODSIDE ENERGY LIMITED File number: ACD 62 of 2012 Judge: GILMOUR J Date of judgment: 18 September 2013 Catchwords: PRACTICE AND PROCEDURE – allegation of apprehended bias – relevant principles
PRACTICE AND PROCEDURE – application by the applicant to transfer proceeding to the Victorian District Registry – relevant principles
PRACTICE AND PROCEDURE – suppression order – whether a suppression order and a non-publication order should be made pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) in relation to affidavits and submissions made by the applicant and the transcripts of the hearings – whether allegations are scandalous in natureLegislation: Federal Court of Australia Act 1976 (Cth) ss 31A, 37AG, 50
Workers’ Compensation and Injury Management Act 1981 (WA) s 93K(4)Cases cited: Australian Competition & Consumer Commission v Pauls Ltd [2002] FCA 71
Bahonko v Nurses Board of Victoria [2008] FCAFC 29
Embertec Pty Limited v Energy Efficient Technologies Pty Limited (No 2) [2013] FCA 347
Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd [2012] FCA 1383
Hogan v Australian Crime Commission (2010) 240 CLR 651
Zaghloul v Woodside Energy Ltd [2013] FCA 426Date of hearing: 13 June 2013, 5 July 2013 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 79 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr J Blackburn Solicitor for the Respondent: Ashurst Australia
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
ACD 62 of 2012
BETWEEN: HASSAN ZAGHLOUL
ApplicantAND: WOODSIDE ENERGY LIMITED
Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
18 SEPTEMBER 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The interlocutory application dated 1 June 2013 be dismissed.
2.The affidavit of the applicant affirmed and filed on 15 July 2013 be uplifted from the Court file and returned to the applicant.
3.The applicant pay the respondent’s costs.
The following documents are not to be published or disclosed without the leave of the Court:
(a)the applicant’s affidavits affirmed 29 May and 20 June 2013 respectively;
(b)the submissions of the applicant filed 3 and 12 July 2013 respectively; and
(c)the transcripts of the hearings which occurred on 13 June 2013 and 5 July 2013.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
ACD 62 of 2012
BETWEEN: HASSAN ZAGHLOUL
ApplicantAND: WOODSIDE ENERGY LIMITED
Respondent
JUDGE:
GILMOUR J
DATE:
18 SEPTEMBER 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
The applicant, Dr Zaghloul, by his interlocutory application dated 1 June 2013 makes, in effect, two applications. The first is for an order that I recuse myself from further hearing this matter. The second is for an order that this matter be transferred to the Victorian Registry of the Court. The applicant was content for me to hear both applications together.
The application first came on for hearing on 13 June 2013 but I adjourned it to 5 July 2013 because the respondent, Woodside Energy Limited (WEL) had served several affidavits late the evening before on the applicant. I granted the applicant liberty to file and serve responsive affidavits. He filed none but did file a 228 page set of submissions with additional documents.
Accordingly, the applicant relies upon his affidavit affirmed on 29 May 2013. However, counsel for WEL accepted that the applicant could treat these additional documents annexed to his submissions as evidence.
WEL relies upon affidavits of Ms Jacqueline Young, a lawyer assisting with the day to day conduct of this matter. These were affirmed on 12 and 27 June 2013 respectively. WEL also relies upon the affidavit affirmed on 12 June 2013 by Ms Shae Francis, another lawyer acting for it.
Recusal
The general principles concerning recusal of a judge for apprehended bias are well established. They were collected in a recent judgment of this Court by Foster J: Embertec Pty Limited v Energy Efficient Technologies Pty Limited (No 2) [2013] FCA 347.
The applicant, in his affidavit, asserts a number of complaints in this respect. They are, in substance, that I:
(a)have denied the applicant natural justice;
(b)have displayed obvious impatience, rushed proceedings and raised unrelated, irrelevant or confusing issues to deny the applicant discovery prior to the date set for the hearing of a summary judgment application by WEL;
(c)not granted the applicant adequate time to effectively prepare his case;
(d)deprived him of his right to be heard;
(e)deprived him of the fullest information and access to documents;
(f)denied the applicant’s request to transfer the case to another State to reduce the enormous influence and power of WEL in Perth;
(g)denied him reasons for such decision;
(h)ought to have ordered this case to be tried by a jury given its obvious complexity;
(i)should have denied WEL any opportunity to apply for summary judgment and, rather, allowed the case to go to trial in its entirety;
(j)declined to set trial dates prior to the conduct of a Court ordered mediation;
(k)rushed a directions hearing in relation to the summary judgment application lodged by WEL;
(l)denied the applicant the opportunity to examine the proposed tight schedule relating to the summary judgment application, allowing no time for discovery and interrogatories or other requirements for natural justice and a fair hearing at trial;
(m)altered the hearing date of the applicant’s discovery application from 23 April 2013 to 7 May 2013;
(n)acted as the respondent and the judge;
(o)have already pre-judged the summary judgment application in favour of WEL because after giving my decision refusing discovery I informed him that he could re-apply for discovery after the summary judgment application;
(p)informed WEL, by implication secretly, that I had already decided the summary judgment application in its favour;
(q)awarded costs of the discovery application against the applicant; and
(r)also awarded costs against the applicant when he obtained an adjournment of the summary judgment hearing when counsel appeared for him on that day and advised the Court she had only just been briefed and needed time to consider the papers. Further, that in awarding such costs, I was disappointed to have missed an opportunity to announce a pre-judged case regardless of the applicant’s position.
This affidavit is full of material, which on any objective view is irrelevant to this application, as for example, a recitation of the merits of his case as well as what he characterises as acts in bad faith by WEL. His later written submissions contain quite scandalous assertions not only against myself, but also WEL, my associate and staff of the Registry of the Court. I will return to this aspect of the application later.
I reject the assertions made against me. The applicant, as a self represented litigant, has been granted considerable indulgences across the various hearings in this case. He has been allowed to appear by telephone although WEL’s representatives appear in court: this in order to alleviate his asserted psychological difficulties of being in the same room as even the lawyers for WEL. He has been granted adjournments, where appropriate, although for longer periods than would be the case if he had been represented.
The applicant complains that at the directions hearing on 19 February 2013, I did not list this matter for trial but rather made directions to cater for a foreshadowed summary judgment application by WEL. This, he submits, demonstrates an apprehension of bias on my part as he was, in effect, ambushed because the reason for the directions hearing, namely, to list the matter for trial, was derailed by my acceding to WEL’s request for directions related to its proposed application. This complaint is without any merit, as an examination of the following facts discloses.
The applicant emailed the Court on 9 February 2013 seeking dates for a 10 day trial of his matter.
My associate responded by email dated 11 February 2013, noting that the matter was listed for a mediation before a Registrar of the Court on 20 March 2013 and that, pursuant to an order I had made on 17 December 2012, if the matter was not resolved at mediation it would be listed for further directions at which the progress and programming of the matter would be discussed.
The applicant responded by email dated 13 February 2013. He pressed for “tentative” trial dates, asserting this would aid his mental condition. He also requested an interstate mediator.
My associate responded by email dated 14 February 2013 in terms that in light of his concerns a directions hearing would be heard on 19 February 2013.
The solicitors for WEL emailed the applicant on 15 February 2013 advising him that, in the event mediation was unsuccessful, WEL would apply to strike out his claim for common law damages relying upon certain provisions in the Workers’ Compensation and Injury Management Act 1981 (WA) (the Act).
This drew a response from the applicant. It is unnecessary to detail its content except to say that it was scandalous in nature.
WEL’s solicitors replied by email to the applicant on 18 February 2013 putting him on notice that it would be referring some of the above correspondence to the Court the following day, including the email of 15 February 2013, which foreshadowed the “strike out” of the applicant’s common law claim.
The directions hearing was adjourned by me to 26 March 2013 to enable the Court ordered mediation to take place on 20 March and to then review the case in light of its outcome. In so ordering, I advised the applicant that I did not propose to set the matter down for trial until the results of the mediation were known, including, for example, a possible reduction in the number of issues to be resolved. The applicant did not attempt to resist this course or the reasons underlying it.
By email dated 22 March 2013, WEL’s solicitors informed the applicant that rather than apply to strike out parts of his application the preferable course was to apply for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). They summarised the legal argument they would contend for to that end. It concerned his common law damages claim. They invited the applicant to discontinue that part of his application by 2.00 pm on 25 March 2013 failing which they had instructions to apply for summary judgment. It attached a number of proposed consent orders for the directions hearing scheduled for 26 March 2013. These included directions programming a summary judgment application. I made orders 1-6 from that Minute at the hearing on 26 March 2013. These orders programmed the foreshadowed summary judgment application through to a hearing date after 10 May 2013, a minimum of more than 7 weeks from date of order.
The summary judgment application was filed by WEL’s solicitors on 17 April 2013.
The applicant, on 18 April 2013, filed an interlocutory application in terms for discovery to be given before the hearing of the summary judgment application. The application was stated to be for hearing on 23 April 2013.
By email dated 19 April 2013, WEL’s solicitors wrote to the Court seeking an adjournment of the hearing of the discovery application as they had not yet been served with any supporting affidavit and were unable to assess the nature or scope of the discovery sought. Moreover, the instructing principal solicitor and counsel were unavailable on the day stated in the discovery application.
The summary judgment application had been listed for hearing on 16 May 2013.
The applicant then emailed the Court concerning this request by WEL for an adjournment. For various reasons, he opposed the request that the date be adjourned.
On 21 April 2013, the applicant sought an extension of time until after the discovery application had been heard, in effect, for complying with the order I made concerning the summary judgment application requiring him to file reply submissions.
My associate emailed the parties on 22 April 2013 asking whether they would be available to argue the discovery application on 30 April 2013, conducted by teleconference as I would be interstate.
The applicant emailed that he was available, but not between 10.00 am and 1.30 pm on that date. He repeated his earlier request for an extension of time to file his submissions concerning the summary judgment application.
However, WEL’s counsel was unavailable on that date. Eventually the discovery application was listed to be heard on 7 May 2013 at 3.00 pm (WST) at which time I was due to be in Canberra.
The applicant advised he would be available at that time and provided a mobile phone number at which he could be contacted for the hearing. WEL’s counsel was also available. WEL consented to the extension of time requested by the applicant.
There is nothing untoward in any of the foregoing. Nonetheless, the applicant submitted orally on the hearing of this application that the application for discovery had been “mysteriously delayed” to 30 April then 7 May 2013.
The discovery application was heard by me on 7 May 2013 whilst I was in Canberra after a day of sitting on the Court of Criminal Appeal of the ACT Supreme Court. No transcription service was available as I heard the matter over the phone in my Canberra chambers. Any objective reading of the notes of that hearing taken by one of WEL lawyers, and which is in evidence, discloses that the applicant was heard in full and courteously.
Written reasons for dismissing the applicant’s application for discovery were published the following day: Zaghloul v Woodside Energy Ltd [2013] FCA 426 (the discovery judgment). They explain clearly why it was unnecessary for discovery to be ordered as the summary judgment application was based on a legal argument where the few relevant facts were not in issue.
On 16 May 2013, the day of the hearing of the summary judgment application, a notice of acting was filed by O’Keefe Lawyers, on behalf of the applicant. Ms Feeley appeared at the hearing and sought an adjournment to give them time to go through the material, seek instructions and brief counsel. The hearing of WEL’s summary judgment application was then adjourned to 17 June 2013. On 13 June 2013, when the current application came on for hearing, the hearing of the summary judgment application listed for 17 June 2013 was adjourned indefinitely to allow the present application to be heard and determined.
I did not state, as the applicant alleges, that he could re-apply for discovery after the summary judgment application and which is his basis for accusing me of pre-judging the summary judgment application in WEL’s favour. What I said in the discovery judgment is set out at [16] as follows:
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.
That the applicant has accused me of informing WEL, presumably secretly, that I had already decided the summary judgment application in their favour, is just another scandalous assertion. It is utterly without foundation and should never have been made.
The applicant has been afforded every opportunity to prepare for hearings and where he was served late with affidavits or other documents by WEL he has been granted more than enough time by way of an adjournment. The adjournment granted to him in relation to the present application, because of late service of affidavits, was from 13 June 2013 to 5 July 2013. Although the applicant did not take up the liberty granted to file responsive affidavits, he did file lengthy written submissions to which I have referred. The submissions comprise 332 paragraphs on 71 pages with 157 pages of annexed additional documents. Yet, at the hearing of the application, he wanted a further adjournment to put on additional affidavit material which I refused. This led to a further complaint that he was being denied natural justice and this despite the fact that counsel for WEL, as I mentioned, agreed that the annexed additional documents could be treated by me as evidence even although not forming part of an affidavit.
Despite this ruling, the applicant filed a further affidavit on 15 July 2013. It comprises 52 pages of the affidavit and 492 pages of annexures. It should not have been filed. I will order that it be uplifted from the Court file and returned to the applicant.
The applicant has not been denied his “right to be heard”. He has been heard at length; even where much of what he has put has been irrelevant.
I have not, until this judgment, denied his request to transfer the case to another State.
The applicant’s discovery application was heard in full, orders were made and reasons published. Indeed, the Court conducted an interstate hearing after normal Court hours in Canberra to enable the applicant’s urgent application to be heard. The applicant made no application for leave to appeal.
The applicant’s complaint that I have acted as counsel for WEL is scandalous. As with almost all of his complaints against myself and others, there was no attempt by him to point to any evidence. What seems to be the case is that the applicant does not like the fact that the Court does not accept all of his submissions or accede to all his applications.
I do not accept that there is any evidence to support the applicant’s claims of denial of natural justice, beyond mere assertion. His contentions as to a jury trial, my permitting WEL to apply for summary judgment and failure to press on to a trial of all the issues in the case stem from the applicant’s lack of understanding of the law and the procedures of the Court.
For these reasons, I will not recuse myself from hearing this matter.
Application to transfer to Victorian Registry
This proceeding was first instituted in the ACT Registry of this Court because, according to the applicant, a Perth based lawyer with competency in the field would likely be influenced by the power, resources and connections of WEL to deprive him having natural justice. He has since deposed that he has retained several firms of solicitors in Canberra and Perth and twice retained the same solicitors in Canberra, but he is of the opinion that they are under the influence of WEL and cannot be trusted. As he put it in oral submission, he has been “double-crossed” by five firms of solicitors.
WEL applied to transfer the proceedings from the ACT Registry to the Western Australian Registry of the Court. The applicant consented to this and orders to that effect were made by Foster J on 21 November 2012.
Nonetheless, on 6 May 2013, the day before the discovery hearing to which I have referred, he lodged a writ of summons in the District Court of Western Australia signed by David Bayly, a director of Bradley Bayly Legal, a Perth law firm. The general indorsement is in the following terms:
INDORSEMENT OF CLAIM
The Plaintiff claims damages from the Defendant for personal psychological injuries arising out of the Plaintiff’s employment with the Defendant from 18 March 2008 with such injuries caused by the Defendant’s negligence, breach of statutory duty and breach of contract.
AND THE PLAINTIFF CLAIMS:
[1] damages;
[2]interest on damages at the rate of 6% per annum computed from 18 May 2008 to judgment pursuant to Section 32 of the Supreme Court Act;
[3] costs.
Counsel for WEL submitted that the fact that the applicant had commenced this common law claim using Perth lawyers in the District Court at Perth was at odds with his claims that he cannot find Perth lawyers who are beyond the reach of the influence of WEL and that his health would improve if proceedings were run in Victoria.
In reply, the applicant said that he trusted his new lawyers but was keeping a close watch on them. He then advised the Court that the proceedings could be instituted only in Perth as they were workers’ compensation claims under Western Australia State legislation and not common law claims. He reaffirmed that they were purely workers’ compensation claims on a number of occasions. However, that is not what the general indorsement states. Moreover, as I stated in the discovery judgment at [12], on or about 25 February 2013, the applicant made an election to claim common law damages under s 93K(4) of the Act. Nonetheless, the applicant insisted that his District Court action was not for common law damages. Later, he said he might be wrong about that. I granted him 7 days to put on submissions concerning this question even although it had only become an issue because of his submission that the action was not for common law damages. WEL could not reasonably have anticipated this.
The applicant filed written submissions on 12 July 2013. He submitted that it was unnecessary to determine the question whether his claim was for common law damages or for workers’ compensation because his lawyer and he had “agreed to get into discussion with Respondent’s [WEL’s] lawyers to narrow down or resolve issues”. He also sought an adjournment for 30 days for this purpose. This answer is unsatisfactory. I decline to grant such an adjournment. I find that the District Court proceedings are for common law damages and not workers’ compensation.
In those circumstances, it is difficult to reconcile the applicant’s claims concerning his health and the institution of those proceedings in Perth.
The applicant acknowledged that when WEL applied to transfer the proceeding to Perth his then lawyer advised him to consent to that course. He did so, but now says that because of his psychological state he was not in a fit state to challenge that legal advice and felt pressured to sign the consent order. These were the same lawyers he engaged to apply on 16 May 2013 for an adjournment of the summary judgment hearing which I granted to enable them to read the papers and prepare for the hearing. They have, since then, had their retainer terminated for a second time.
In any event, his consent to the transfer was made by letter signed by him, and addressed to his then lawyers in response to advice conveyed to him by those lawyers emanating from his then senior counsel to the effect that it was in his interests to agree to the transfer to avoid the prospect of his psychiatrist being cross-examined at the hearing of the transfer application. It was his psychiatrist’s report which was being advanced to oppose the transfer application. The advice was also to the effect that he should enter the forthcoming mediation with the unchallenged psychiatric opinion that he was 57% permanently impaired. It is difficult to discern any evidence of pressure upon him to consent to the transfer to Western Australia.
Indeed, in his written submissions the applicant stated, at [244], in effect, that the Canberra solicitor and senior counsel had been in negotiations with WEL to obtain monies unlawfully and used his consent to transfer the proceedings as a bargaining chip, which was successful. As he put it:
The Applicant was, once again, used as a fair game to extract money from the Respondent.
There is no evidence to support these scandalous allegations.
It is unnecessary to address the scandalous allegations against several well-known law firms in Perth and Canberra who have acted for the applicant. I will illustrate the baseless nature of these assertions in respect of one Perth law firm which I do not propose to name. The applicant deposed in an affidavit that the firm had signed a contract with WEL at about the end of April 2012 agreeing “on the Respondent’s [WEL’s] terms and conditions”. He further deposed that this “conspiracy”, evidenced by the contract, was admitted by the law firm in a letter dated 30 May 2012. A letter of that date addressed to the applicant was annexed to the affidavit.
In that letter and under the rubric of “The allegation of conflict” the senior partner of the firm advised the applicant that the firm had no conflict of interest involving WEL. It stated relevantly:
This firm is not affected by any conflict of interest of the nature alleged in your letter or of any other nature.
At the time you instructed us in August 2011 we had no professional association with Woodside.
An event occurred in late April 2012 (involving one of my other partners) which required me to consider whether there was any conflict of interest. I was then, and I remain, satisfied that there is no conflict of interest which prevents or impedes us from acting on your behalf.
The applicant contended that the “event” referred to was the contract to which he had deposed. The applicant’s contentions, self-evidently, are without merit.
The applicant considers that his psychological state has been adversely affected by the denial of natural justice he feels he has experienced through the Western Australian Registry of this Court.
I have already explained why this complaint is wholly without foundation. I can say nothing about his present psychological condition or the causes of it. His psychiatrist, Dr Bruce Westmore, in a report dated 8 November 2012, together with his earlier report of 25 June 2012, has identified certain psychiatric issues including “a strong persecutory and paranoid nature of his thought content in relation to various individuals, lawyers, previous work colleagues and the legal process itself”. He also noted that the applicant had said that one psychiatrist in Perth whom he had consulted would not take him on “because it was against Woodside”.
It was the 8 November report which was advanced by the applicant in support of his opposition to the matter being transferred to Western Australia. Dr Westmore opined that he would anticipate a further exacerbation of his symptoms of depression and anxiety and possibly a need to have him hospitalised. Indeed, he was hospitalised for a period in March this year. Despite this, the applicant, upon advice which was strategic in nature and aimed at avoiding any cross-examination of Dr Westmore, consented to the matter being transferred to the Western Australian Registry. There is no current psychiatric report available. I cannot say whether his psychiatric condition has altered since early November last year.
What I do know is that he has again briefed a Perth law firm and instituted fresh proceedings, claiming common law damages against WEL. The subject matter of those proceedings, judging by the indorsement of claim, is very similar to the present proceedings.
The applicant also submitted that there was an unspecified pool of Victorian lawyers who were national leaders in anti-bullying cases as that the legislation in Victoria was also advanced by comparison with the situation in Perth.
I can say nothing about the asserted prominence of this unnamed group. However, the applicant’s claims rest upon Commonwealth legislation in proceedings instituted in a national court. These submissions are without force.
The legislative foundation enabling this Court to transfer proceedings, together with a discussion of relevant principles, are to be found in the judgment of Besanko J in Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd [2012] FCA 1383. They are well known.
There must be sound reasons for a transfer order to be made. They do not exist in this case. The relevant facts are that:
(1)The applicant ordinarily resides in Western Australia.
(2)WEL carries on business in Western Australia and its Head Office is located in Perth.
(3)All of the conduct giving rise to this proceeding took place in Western Australia and concerned projects conducted by WEL in Western Australia or waters off Western Australia.
(4)The applicant’s claim is a substantial one. Given the size of the claim and the number and breadth of the applicant’s allegations, the case is certain to involve a large number of witnesses.
(5)The allegations in the statement of claim (SOC) are numerous and broad.
(6)Paragraph [30] of the SOC alleges that on 27 August 2009, WEL’s employees commenced a campaign of harassment, intimidation and bullying against the applicant which continued until April 2011 (i.e. almost 20 months).
(7)Paragraph [31] of the SOC alleges that during the period 27 August 2009 until 11 April 2011, the applicant was subjected to verbal abuse and shouting by his superiors, his opinions and his work were discredited in private and in public and before other employees, by his superiors, he was improperly excluded from meetings and denied information concerning his duties, he was denied access to the support of other employees and he was intimidated and threatened by his superiors and his work performance was adversely manipulated in order to damage his promotional opportunities and his career. Particulars to paragraph [31] are provided in Annexure C.
(8)Paragraphs [37]-[39] and [46] of the SOC generally allege that WEL failed to administer and apply its policies, guidelines, Code of Conduct and “standard” (sic) with care, in good faith and in a fair and non-discriminatory manner.
(9)Together, the SOC and Annexure C contain at least 44 separate allegations against WEL’s employees.
(10)Ten individuals are named in the SOC and Annexure C as having engaged in acts of bullying or harassment against the applicant (some are named several times).
(11)WEL proposes to call each of these persons to give evidence disputing the allegations against them.
(12)On the current state of the pleadings, WEL proposes to call, in addition to the 10 employees named in the SOC:
(a)at least eight further employees, to give evidence in relation to the allegations in the SOC.
(b)Two employees in relation to WEL’s policies, steps taken by WEL to promote a safe and non-discriminatory workplace and steps taken by WEL to investigate and address the applicant’s complaints; and
(c)A witness in relation to an independent investigation conducted into the applicant’s complaints by Meridian Security and Investigation.
(13)All of the proposed witnesses so far identified by WEL are ordinarily resident in Western Australia. Eighteen of them work in Perth. The other two are now retired.
(14)In addition, all of the relevant records in WEL’s possession are in Perth.
(15)There is a strong likelihood that additional witnesses will have to be called.
(16)Seven allegations in Annexure C to the SOC have been made against unnamed persons and three of these relate to conduct which is alleged to have continued for between 9 and 16 months.
(17)It is likely, once these allegations are fully particularised and/or when the applicant gives his evidence that further names will emerge and that WEL will have to call further witnesses.
(18)The applicant has made allegations in the SOC concerning his current medical condition. It is likely that both parties will need to adduce evidence from relevant medical specialists in relation to those allegations. To date, the reports provided to WEL by the applicant concerning his fitness for work are from medical specialists based in Perth.
(19)Given the number and breadth of the allegations and the likely number of witnesses, it is likely that a trial will occupy several weeks.
(20)While the convenience of counsel and solicitors is generally not regarded as a significant factor (the selection of solicitors and counsel being a matter for the parties: Australian Competition & Consumer Commission v Pauls Ltd [2002] FCA 71 at [13]), it is nonetheless the case that WEL’s advisors, including relevant lawyers from Ashurst Australia and counsel, all currently reside in and work in Western Australia.
(21)WEL’s solicitors, Ashurst Australia, at its Perth office, has had conduct of this matter since the proceeding was first commenced and has accumulated considerable knowledge and documentation in relation to the subject matter of the present dispute.
(22)If the proceeding continued in the Victorian District Registry, WEL may be required to brief new solicitors and counsel in Melbourne for the matter, which would cause further inconvenience and cost to WEL. Alternatively, WEL would incur the cost of travelling expenses associated with Ashurst Australia lawyers and counsel travelling between Perth and Victoria.
(23)There is no connection between the proceedings and Victoria.
(24)The applicant consented to these proceedings being transferred from the ACT Registry of the Court to the Western Australian Registry shortly after the proceedings were instituted.
In the premises, the residence of the parties and of the witnesses, the expense to the parties, the inconvenience to the witnesses and the place where the alleged cause of action arose all favour an order that the conduct of the proceedings remain in Perth.
Indeed, these were the very reasons advanced in written submissions, provided to the applicant’s then solicitors in Canberra, which understandably enough in combination with the strategic reason led them to advise their client to consent to the proceeding being transferred to Perth.
Nothing has changed other than the applicant’s unsubstantiated and unfounded assertions that he has been denied natural justice and that no Perth law firm is beyond the alleged corrupting influence of WEL.
I will not accede to the transfer application.
Accordingly, for all these reasons, the applicant’s interlocutory application will be dismissed with costs.
Non-publication and suppression orders
I have given consideration to whether, pursuant to s 37AG(1)(a) of the FCA Act, a non-publication order and a suppression order should be made in relation to affidavits and submissions made by the applicant as well as the transcript of the hearings because of the scandalous nature of unsubstantiated allegations made against a number of law firms in Perth and in Canberra. The documents are as follows:
(a)the applicant’s affidavits affirmed 29 May and 20 June 2013 respectively;
(b)the submissions of the applicant filed 3 and 12 July 2013 respectively; and
(c)the transcripts of the hearings which occurred on 13 June 2013 and 5 July 2013.
Section 37AG(1)(a) of the FCA Act provides:
Grounds for making an order
(1)The Court may make a suppression order or non-publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
Such an issue was considered by the Full Court in Bahonko v Nurses Board of Victoria [2008] FCAFC 29 where the applicant in that case filed a document scandalising not only judges of the Court but a number of other persons. Orders were made pursuant to the then s 50 of the FCA Act.
Section 50 provided relevantly that:
50 Prohibition of publication of evidence etc.
(1)The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.
. . .
This Court, as was found in Bahonko at [10], must have a steady insistence that proceedings are not used as a means of sullying the reputation of other parties to the proceedings or third parties who are not directly involved in the proceedings at all.
Section 50 of the FCA Act was repealed in 2012. However, a non-publication order and a suppression order are available under s 37AG of the FCA Act. The first is an order that prohibits or restricts the publication of information. The second prohibits or restricts the disclosure of information.
The rationale for making its orders under s 50 of the FCA Act, which so far as is material to the conditioning criteria is, in substance, the same relevantly in s 37AG.
This criterion was the implicit basis for the Court in Bahonko making the orders. The same is the position in this case. Nothing said by the High Court in Hogan v Australian Crime Commission (2010) 240 CLR 651 detracts from this.
The scandalous, unwarranted and baseless attacks upon non-parties, namely the five law firms, by the applicant, in my opinion, undermines the proper administration of justice. The Court does not exist as a vehicle for these personal assaults upon non-parties. These scandalous allegations have nothing to do with the applicant’s substantive application. They have been made as part of the applicant’s attempt to obtain an order transferring this matter to the Victorian Registry of the Court.
Accordingly, both orders should be made.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 18 September 2013
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