Zaghloul v Woodside Energy Ltd

REASONS FOR JUDGMENT 1 I gave ex tempore reasons for this matter on 13 February 2014 when I dismissed the applicant's interlocutory application dated 28 December 2013. These are those reasons, edited, but not so as to alter their substance. 2 The applicant, by his interlocutory application, primarily seeks an order that these proceedings be transferred to the District Registry in New South Wales of this Court, and in particular, to the docket of Foster J. 3 It transpires that the applicant is the subject of a sequestration order made by the Federal Circuit Court of Australia on 26 July 2013. The joint trustees in bankruptcy of the applicant, Mr David Lombe and Ms Elizabeth Russell, have made an election in writing dated 10 February 2014, addressed to the respondent's solicitors, pursuant to s 60(2) of the Bankruptcy Act 1966 (Cth), by which they have discontinued the substantive proceeding. This notice, however, does not operate in relation to any claim or claims in the substantive proceeding which are subject to the exception under s 60(4)(a). Accordingly, the application for removal can be taken to refer materially only to those parts of the proceeding which are the subject of the exception. It is unnecessary to identify them more precisely at this stage. 4 The application is supported by an affidavit, containing a considerable number of pages, which was affirmed by the applicant on 16 December 2013. The respondent gave written notice to the applicant that upon the return of the interlocutory application, it would seek to have the application dismissed as an abuse of the processes of the Court. The respondent relies upon three affidavits of Ms Jacqueline Elizabeth Young, affirmed on 5 February, 7 February and 12 February 2014 respectively. 5 In paras 3 to 5 of annexure HZ-1 of the applicant's affidavit titled "Grounds to transfer case back to Justice Foster", the applicant asserts as follows: 3. The grounds of this interlocutory application is based on one act of conspiracy between the applicant's then lawyer and QC and the respondent, which caused the applicant to sign a consent order for a transfer these proceedings to Perth under duress and having been diagnosed with permanent impairment of 57% by WORKCOVER Approved Medical Specialist due to bullying at the workplace. 4. This interlocutory application is to vacate the order and return the case to Justice Foster Court on medical grounds. The applicant's lawyers concealed crucial medico-legal reports by independent forensic psychiatrists from His Honour Justice Foster, who would have most likely denied the application for a transfer if these medico-legal reports were presented. 5. The transfer of the proceedings to Perth allowed the influential respondent to abuse its authority, resources, contacts and connections in its turf (Perth) and deny the applicant natural justice, procedural fairness, fair hearing and expose the applicant to severe bias and conspiracies and perverting the course of natural justice as described below. 6 Each of these grounds was advanced by the applicant in support of a previous application by him to transfer these proceedings to the Victorian Registry of this Court. That application was dismissed on 18 September 2013: Zaghloul v Woodside Energy Ltd (No 2) [2013] FCA 947. In that judgment at [50]-[53], which I have set out below, I dealt with the very issues upon which the applicant now yet again relies for this removal application. The only difference between the present application and the application which was dismissed last year is that in this case the application seeks that the matter be transferred to the New South Wales Registry rather than the Victorian Registry. [50] 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. [51] 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. [52] 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. [53] There is no evidence to support these scandalous allegations. 7 Moreover, the applicant has applied for an extension of time to seek leave to appeal from the dismissal decision concerning his application to transfer the proceedings to the Victorian Registry, and this is listed to be heard before Barker J on 28 March 2014. 8 It is against this background that the respondent submits that this application constitutes an abuse of process because it seeks in substance to re-litigate the same issues which were litigated upon the previous removal application. That course of conduct in my view constitutes a clear case of an abuse of process: see, for example, Rana v Goldney (No 2) [2008] FCA 1553 at [26]. Neither the resources of the Court, nor those of the respondent should be further engaged in dealing with this interlocutory application in circumstances where, as I have found it to be, it constitutes an abuse of the process of the Court. 9 In all of the above circumstances, the interlocutory application dated 28 December 2013 should be dismissed. The application should never have been brought. The applicant should pay the respondent's costs on an indemnity basis to be taxed if not agreed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.