FEDERAL COURT OF AUSTRALIA

Zaghloul v Woodside Energy Limited (No 7) [2019] FCA 818

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interlocutory application be allowed.

2.    Within 7 days of the publication of these reasons, the respondent provide a minute of proposed orders giving effect to these reasons.

3.    Within a further 7 days, the applicant has leave to raise any objections to the minute contemplated in order 2.

4.    Any dispute as to orders giving effect to these reasons be determined on the papers.

5.    The applicant pay the respondent’s costs of this interlocutory application, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Table of contents

MCKERRACHER J:

1    The applicant, Dr Zaghloul, is dissatisfied with the treatment he received as a former senior employee of Woodside Energy Limited. He has attempted to articulate his complaints in a significant body of material put before the Court on a number of occasions. Most recently, in a proposed concise statement of claim (CSOC), he foreshadows a number of claims entitling him to damages exceeding $10 million. By an interlocutory application, Woodside seeks judgment in its favour in relation to several paragraphs of the CSOC and orders striking out a substantial portion of the CSOC. For reasons set out below, Woodside is entitled to that relief. Some claims remain. It would be highly disadvantageous to all involved if Mr Zaghloul were to concentrate only on the arguable claims.

THE PROPOSED CONCISE STATEMENT OF CLAIM

2    By orders of Justice Colvin made on 17 July 2018, Dr Zaghloul filed a CSOC in respect of which the parties have been conferring for some time. The CSOC is in these terms:

1.    [Dr Zaghloul] was employed as [Woodside’s] Technical Authority (‘TA’) for structures and lifting with statutory and contractual duties and responsibilities to ensure that the risk level was As Low As Reasonably Practicable (‘ALARP’).

2.    [Woodside] was a duly incorporated entity in Australia under the Corporation Act 2001 (Cth). It operated North Rankin Alpha (‘NRA’) gas facility in the NWS of Australia.

3.    On 3 March 2008, the parties entered an employment contract.

4.    In July 2008, [Dr Zaghloul] assessed that the risk level-of the then proposed increase in loads-on NRA piles was not ALARP.

5.    [Woodside] disregarded all warning signs of the unacceptable risk level on NRA piles and escalated its commitment made in 2006 to increase the loads on the piles irrespective of the ‘catastrophic consequences’ of failure to life, the environment, and billions of dollars in loss of revenue and royalties to the State of Western Australia.

6.    On 25 August 2009, [Dr Zaghloul] advised [Woodside’s] offshore managers or operators that the risk of increasing loads on NRA piles was not ALARP (‘the EMAIL’). Nelson, the operations manager, supported [Dr Zaghloul’s] “stance”.

7.    On 27 August 2009, Brameld told [Dr Zaghloul] that the EMAIL upset Hamblin which would not help his career. The following day, Dr Denz provided a note for sick leave.

8.    In September 2009, Hamblin demanded that [Dr Zaghloul] sit a “difficult test”, threatened dismissal if he did not pass, and cast doubt on his undergraduate qualifications.

9.    On 14 October 2009, [Dr Zaghloul] complained of stress that “buggered” his immune system and caused strong flu. Hamblin provided names of psychologists.

10.    On 24 October 2009, Dr Denz diagnosed that [sic] [Dr Zaghloul] with “reactive depression with anxiety” and prescribed anti-depressant.

11.    In or about November 2009, Hamblin overruled [Dr Zaghloul’s] advice that a heavy life crane was unstable. In the eleventh hour, Nelson stopped the installation. An internal investigation revealed that the crane was unstable. Within two weeks, Nelson was no longer employed by [Woodside].

12.    In or about November 2009, Male criticised [Dr Zaghloul’s] (Bridge Supporting Structure) concept without providing reasoned basis. [Woodside] later adopted that concept; it saved tens of millions of dollars and increased safety during offshore construction.

13.    Commencing in December 2009, Thain blamed [Dr Zaghloul] for millions of dollars increase [sic] in subsea inspection costs. That increase resulted from a decision to replace the inspection vessel where Thain was party; [Dr Zaghloul] had no involvement.

14.    In or about mid December 2009, Hamblin and Brameld yielded to Male’s “push” to downrate [Dr Zaghloul’s] performance rating to Meets Most, and disregarded [Dr Zaghloul’s] report showing his work that saved tens of millions of dollars.

15.    On 7 January 2011, 17, 25 September 2010, and 9, 15, 22, 29 March 2011, Hill, Hamblin, Anderson, Brameld, or Mehta turned a blind eye to [Dr Zaghloul’s] complaint of the hostile work environment and stress that required him to take anti-depressant.

16.    Commencing in January 2010, Hamblin, Brameld or Pockcok removed [Dr Zaghloul’s] TA duties-first for onshore then floating followed by fixed structures then as a contract sponsor and finally for lifting-with no consultation or agreement.

17.    During 2010, Hamblin, Male, or Brameld took credit for [Dr Zaghloul’s] work, excluded him from meetings related to his TA role, and denied him technical training.

18.    On or about 28 May 2010, [Dr Zaghloul] told Brameld that he could no longer take stress and that NOPSA, the Commonwealth Regulator, offered him a structural inspector position. Brameld promised an improvement in the work environment. Around that time, Brameld had attempted to gather evidence to prove [Dr Zaghloul’s] poor performance. In reasonable reliance on Brameld’s promise, [Dr Zaghloul] declined the job offer. But for that advice, [Dr Zaghloul] would have avoided catastrophic consequences to his life.

19.    On 17 September 2010, Hill falsely blamed [Dr Zaghloul] for delaying a mooring chain replacement project and disregarded evidence to the contrary.

20.    In October 2010, Hill or van Lent blamed [Dr Zaghloul] for a delay in strengthening NRA drilling rig clamps and ignored that Hamblin took over that project.

21.    For the year 2010 performance rating, Brameld breached the performance management operating standard in its entirety and rated [Dr Zaghloul’s] performance as Meets Less (‘ML’). As a result, [Dr Zaghloul] was denied tens of thousands of dollars.

22.    On 9 March 2011, Habets threatened to impose a performance improvement plan (‘PIP’) to dismiss [Dr Zaghloul] if he did not volunteer to resign. Two weeks later, Brameld, on [Dr Zaghloul’s] request, provided reasons for the ML rating and declined to discuss a complaint that those reasons were fabricated, telling him that it was Hill’s decision.

23.    On 13 April 2011, Howard told [Dr Zaghloul] that the decision to terminate his employment had been made at the “very top” and that there was no point resisting it. [Dr Zaghloul] was devastated, and it downed [sic] upon him that his career was over.

24.    On 13 April 2011, [Dr Zaghloul] emailed Brameld, Habets, and Howard a grievance letter and complained that the rating was punitive and a set up for dismissal. Within seconds, [Dr Zaghloul] was “overwhelmed with anxiety”. In the first medical report, Dr Yip diagnosed “reactive anxiety and depression.” [Dr Zaghloul] went on sick leave and never returned to work ever since.

25.    On 18 April 2011, Habets advised [Dr Zaghloul] that the PIP would commence upon his return to work without addressing the grievance letter. [Woodside] has been known to have employed PIP to dismiss its employees.

26.    On 14 May 2011, [Dr Zaghloul] suffered a breakdown as he contemplated a return to work the day before and was hospitalised under the care of Dr Fischer. During hospitalisation, [Dr Zaghloul] closed down his small business; being unable to manage it.

27.    On 26 May 2011, [Woodside] applied its ‘salary continuance’ policy. That policy excluded workplace injury. [Woodside’s] job-related insurance policy was the applicable policy. [Dr Zaghloul] was denied statutory and contractual benefits.

28.    On 19 September 2011, four month after his request for an investigation of bullying, [Dr Zaghloul] completed his witness statement to Meridian investigators, [Woodside’s] consultant. Three weeks later, he was hospitalised for “re-living the trauma”.

29.    On 15 March 2012, Masson advised [Dr Zaghloul] that three out of 47 allegations were proven, and refused to provide the Meridian report for comment on the unproven 44 allegations. He did not inform [Dr Zaghloul] that the Meridian report included findings that [Woodside] (a) was on notice that [Dr Zaghloul] was at risk of a psychiatric injury and took no action; (b) breached its performance management operating standard, and (c) breached the Occupational Health and Safety Act 1984 (WA).

30.    The Meridian report contained statements that blackened [Dr Zaghloul’s] technical, professional and personal reputation. [Woodside’s] employees made those statements with malicious intent to ridicule [Dr Zaghloul’s] advice in the EMAIL.

31.    On 23 April 2012, Masson demanded that [Dr Zaghloul] attend a psychiatric examination, disregarded his former lawyer’s advice of the “high risk” of return to suicide thoughts and falling further into depression, and ceased his pay. [Dr Zaghloul] reluctantly submitted to the psychiatric examination. The following day after the examination, [Dr Zaghloul] was hospitalised, underwent electro-convulsive therapy (‘ECT’) and suffered cardiac arrhythmia, a serious adverse effect of ECT as defined in s 201 (2)(b) of the Mental Health Act 2014 (WA).

32.    In or about late April 2012, [Woodside] retained [Dr Zaghloul’s] law firm. Within a week, [Dr Zaghloul] was advised that he was “very likely to lose” an action against it.

33.    On 16 November 2012, Feeley, [Dr Zaghloul’s] former lawyer, pressured him to consent to transfer these proceedings to Perth after she received an independent forensic psychiatrist’s opinion that the transfer would potentially “significantly damage his mental health with very uncertain unpredictable outcomes.” Later, he was hospitalised.

34.    On 22 November 2012, [Woodside] advised [Dr Zaghloul] of its intention to dismiss him using its salary continuance policy and Dr Edwards-Smith’s report, and ignored his reply in a letter dated 28 December 2012 and email dated 4 February 2013.

35.    On 31 January 2013, [Woodside] accepted liability for “anxiety and/ or depressive disorder ... resulting from unsatisfactory management of your work performance.”

36.    Five days later, Santostefano dismissed [Dr Zaghloul] by email. He was not provided with a program to return to work and had no adjustment made to his role. The dismissal came at the heels of this action and his 5 December 2012 application to WorkCover.

37.    On 6 March 2013, [Dr Zaghloul] was involuntarily admitted to Sir Charles Gairdner emergency unit. The following day, he was transferred to Perth Clinic by ambulance.

38    Commencing in April 2013 and for the following 30 months, [Woodside] advanced a defence on the basis s 93K(4)(c) of the Compensation Act. That provision applied to workers with whole of person impairment up to 25%; [Dr Zaghloul’s] was 57%.

39.    On or about 7 May 2013, Bayly, another former lawyer of [Dr Zaghloul], duplicated this action with another, statute-barred, at the District Court, and advised [Dr Zaghloul] to consent to dismiss this action by consent and “focus on the District Court proceedings.”

40.    On 26 July 2013, [Dr Zaghloul] was declared bankrupt by a sequestration order. He lost his family home in a mortgagee auction and all assets accumulated through his life.

41.    On 23 September 2013, [Dr Zaghloul] left Australia on medical advice to arrest further deterioration of the psychiatric illness after suffering severe agoraphobia and paranoia.

42.    Since November 2015, [Woodside] refused to comply with costs order of its appeal. As a result, [Dr Zaghloul’s] lawyers declined to represent him in this action.

WHEREFORE, [Dr Zaghloul] seeks damages for breach of contract.

43.    It was a term and condition that the parties would comply with the Code of Conduct, Guidelines, Procedures, Operating Standards, and Controlled Documents (‘Policies’).

44.    [Woodside] substantially breached the terms or the conditions of the contract by failing to strictly monitor, detect, or take corrective action from deviations from; command or enforce obedience of its Policies to protect [Dr Zaghloul] from the foreseeable risk of a psychiatric injury or its aggravation, deterioration, or exacerbation.

45.    In breach of the contract, amongst others, it (a) dismissed [Dr Zaghloul] using its (inapplicable) salary continuance policy, or by removing the duties of the TA, which constituted dismissal under s 386(c) of the FW Act; (b) reduced [Dr Zaghloul’s] FAR without agreement; (c) denied PBP without a review of his performance-which was an incentive bonus linked to and conditional on the performance of both parties-against the performance agreement; (d) failed to reply to his grievance against the ML performance rating; (e) took unreasonable (11 months) time to advise the outcome of the investigation; and (f) did not honestly report the outcome of the investigation.

Further or in the alternative, [Dr Zaghloul] seeks an order for damages as a result of [Woodside’s] breach of the statutory duty owed to him.

46.    [Woodside] failed to perform positive duties in its Policies to avoid the risk of a psychiatric injury or its aggravation, and [Dr Zaghloul] suffered an injury of the kind that the duty was designed, and that harm was caused by the breach of duty.

47.    By failing to take positive steps, [Woodside] breached s 19(1) of the Occupational Safety and Health Act 1984 (WA) in circumstances of gross negligence.

Further or in the alternative, [Dr Zaghloul] seeks an order for compensation pursuant to s 545(2)(b) of the Fair Work Act 2009 (Cth) for unjustified or unlawful adverse actions.

48.    The EMAIL conveyed findings of fault and constituted a complaint in relation to employment and a workplace right within the meaning of s 341(1)(c)(i) of the FW Act.

49.    Further or in the alternative, the EMAIL conveyed a political opinion within the meaning of s 351(1) of the FW Act; how a corporate citizen should conduct itself in society.

50.    Further or in the alternative, the commencement of this action, and/ or the compensation application was a workplace right.

51.    [Woodside] breached ss 340(1)(a)(ii), or 351(1) of FW Act by taking adverse action against [Dr Zaghloul] because he exercised workplace right(s) in six ways.

52.    First, it organised to dismiss, within the meaning of s 342(2)(b), [Dr Zaghloul] using its (inapplicable) salary continuance policy and insisting on the psychiatric examination at a time when [Dr Zaghloul] had clearly not reached maximum medical improvement.

53.     Second, it injured, within the meaning of s 342(1)(b), him by causing a recognised psychiatric injury or its aggravation; reduction of pay; or removal of his workload.

54.    Third, it altered [Dr Zaghloul’s] role to his prejudice, within the meaning of s 342(1)(c), in that the manner of removing the TA duties by reducing his job security, status, rank, or prestige and disappointing his expectations of an extended career in engineering.

55.    Fourth, it discriminated against [Dr Zaghloul] for making a political opinion s 342(1)(d) by the substantial breach of terms of the contract and subjecting him to bullying within the meaning of s 789FD of the FW Act.

56.    Fifth, it dismissed [Dr Zaghloul] by email in contravention of s 117 of the FW Act.

57.    Sixth, by ceasing salary continuance payment, [Woodside] contravened s 343 of the FW Act in that the action was taken with an intent to coerce [Dr Zaghloul] to attend the psychiatric examination, and the exertion of the pressure was unlawful.

Further or in the alternative, [Dr Zaghloul] seeks an order for damages pursuant to s 46PO(4) of Australian Human Rights Commission Act 1986 (Cth) for discrimination.

58.    The dismissal without making reasonable adjustment constituted direct discrimination against [Dr Zaghloul] on the ground of disability and in breach of s 15(2)(b), (c) or (d) of the Disability Discrimination Act 1992 (Cth). Because the psychiatric examination was based on a discriminatory conduct, it follows that the dismissal was unlawful.

59.    The demand to attend a psychiatric examination constituted indirect discrimination against [Dr Zaghloul] in breach of s 15(2)(d) of the Disability Discrimination Act.

60.    [Woodside’s] failure to enforce its Policies constituted discrimination in contravention of s 56(1)(d)(iii) of Occupational Safety and Health Act 1984 (WA).

61.    The significant (11 months) delay to provide [Dr Zaghloul] with the outcome of the investigation constituted discrimination for the purposes of s 56 (1)(d) and in breach of ss 23K(2)(a) or (b) of the Occupational Safety and Health Act 1984 (WA).

Further or in the alternative, [Dr Zaghloul] seeks damages pursuant to ss 243(e), 236, or 237(1), (2) of the Australian Consumer Law 2010 (Cth) (‘ACL’) or equitable compensation for conduct, which was in all the circumstances, unconscionable.

62.    It was unconscionable to, among others (a) promise an improvement of the workplace environment while preparing for PIP; (b) impose a protracted bullying campaign; (c) elongate these proceedings; (c) interfere with [Dr Zaghloul’s] contract with his lawyers; (d) coerce him to attend a psychiatric examination with the dismissal in mind; (e) fail to discipline the perpetrators of conduct which constituted offences under the laws, and (f) fund their defence in other proceedings.

Further or in the alternative, [Dr Zaghloul] seeks an order for damages in Common Law for intentional infliction of emotional harm.

63.    [Woodside] owed [Dr Zaghloul] a duty for the purposes of s 19(1) of Occupational Safety and Health Act 1984 (WA) not to expose him to foreseeable risk of physical or mental injury and provide, maintain and enforce a safe system of work and environment to ensure that he performed his duties without risk of psychological hazards.

64.    It should have been obvious to, or in the contemplation of, a reasonable employer in the position of [Woodside], that the referral to a psychologist, [Dr Zaghloul’s] complaints of stress, the multiple sick leave after the EMAIL, the adverse performance rating, the threats of dismissal, and the substantial breach of its Policies were of such nature that a psychiatric injury or its aggravation was a natural or probable consequence.

65.    [Woodside’s] actions or failure to enforce its Policies operated as a substantial cause of foreseeable risk of psychiatric injury or its aggravation. Being an employment relationship, the harm was within [Woodside’s] scope of liability. But for the breach, [Dr Zaghloul] would not have suffered loss and damage.

66.    [Woodside’s] actions or omissions were calculated to induce the psychiatric injury.

IN CONSEQUENCE TO THE SAID CAUSES OF ACTIONS, collectively or in the alternative individually or in combination, [Dr Zaghloul] has suffered severe and chronic recognised psychiatric injury or its aggravation and disabilities, loss and damage and seeks damages for:

(Emphasis in original, citations omitted.)

WOODSIDE’S COMPLAINTS CONCERNING THE CSOC

3    Woodside applies for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) in relation to claims in paras 48 to 62 of the CSOC. Woodside’s concerns about the statutory claims are advanced mainly on a jurisdictional basis. The claims it attacks are those brought under:

(a)    the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and Disability Discrimination Act 1992 (Cth) (DD Act);

(b)    the Occupational Safety and Health Act 1984 (WA) (OSH Act);

(c)    the Fair Work Act 2009 (Cth) (FW Act); and

(d)    the Australian Consumer Law (ACL), sch 2 of the Competition and Consumer Act 2010 (Cth) (CCA) and the doctrine of unconscionable conduct,

on the ground that each of those claims has no reasonable prospects of success and, in relation to claims suggesting misconduct by Dr Zaghloul’s former lawyers, on the additional ground that the claims are an abuse of process.

4    Woodside also applies to strike out paras 30, 32, 33, 38, 39 and 42 of the CSOC on the grounds that they fail to disclose a reasonable cause of action and are likely to cause embarrassment and delay in the proceedings.

EVIDENCE

5    Woodside relies on an affidavit of Ms Young, sworn 26 February 2019. Dr Zaghloul relies upon two affidavits he has affirmed in these proceedings. The first was affirmed on 12 September 2018 and the second on 8 February 2019.

6    It is unnecessary to summarise in any detail Ms Young’s evidence. It goes to various formalities and produces certain correspondence and pleaded documents.

7    Dr Zaghloul’s evidence, on the other hand, is far more wide ranging. Although, given the nature of this interlocutory proceeding, which essentially relies upon legal grounds for opposition to the claims advanced by Dr Zaghloul, much of that evidence is unnecessary.

Dr Zaghloul’s 12 September 2018 affidavit

8    In his affidavit affirmed on 12 September 2018, Dr Zaghloul annexed correspondence by which Woodside accepted liability on 31 January 2013 under its Self-Insurers Policy for:

anxiety and/or depressive disorder causing total incapacity for work with effect from 13 April 2011, resulting from unsatisfactory management of [Dr Zaghloul’s] work performance.

He says that on 28 April 2011, he advised certain people that the psychiatric injury was caused by workplace bullying. He also annexed correspondence from the Mechanical/Structural/Civil Engineering Manager for Woodside, dated 26 May 2011, confirming that Woodside would provide ongoing financial assistance to support Dr Zaghloul’s recovery and return to work in the form of Salary Continuance payments.

9    The 12 September 2018 affidavit also annexed correspondence from Mr Ian Masson, Vice President Human Resources of 23 April 2012, addressed to Dr Zaghloul’s former solicitors by which Mr Masson had requested Meridian Services provide copies of requested materials to him and following receipt of the material he would forward them onto the solicitors. That correspondence also recorded:

In accordance with the Salary Continuance Documentation, we request that Dr Zaghloul participate in a full medical assessment by the Company’s Designated Occupational Physician. This assessment is likely to require appropriate independent medical specialist opinion.

10    Dr Zaghloul continued to refuse to be examined by an independent medical specialist, notwithstanding his ongoing obligation to do so in response to receipt of the Salary Continuance payments.

11    There was much correspondence on this topic. Ultimately, it did become clear that the requirement was for Dr Zaghloul to attend an examination by a psychiatrist to be recommended by Dr Heather Campbell, Woodside’s Designated Occupational Physician, who had been endeavouring to assist Dr Zaghloul. Dr Zaghloul did not make himself available for examination, such that Salary Continuance payments ceased and he suffered anxiety and panic attacks.

12    On 7 August 2012, Dr Zaghloul deposes to having been examined by Dr Gemma Edwards-Smith, Woodside’s nominated psychiatrist. He goes on to describe further attendances at treatment and advice from Woodside’s solicitors that it was considering dismissal on the basis of the Salary Continuance policy. On 5 February 2013, Dr Zaghloul received notice of the termination of his employment.

13    Dr Zaghloul’s affidavit then turns to the Meridian investigation report and an investigation of bullying behaviour that he deposed ‘caused the psychiatric injury’. The affidavit records that he did not know of the witness statements and findings in the Meridian report at the time he filed his statement of claim on 27 August 2012.

14    Dr Zaghloul then raised his complaints concerning what he defines as ‘the EMAIL’ within his CSOC. Dr Zaghloul deposes that the witness statements and findings in the Meridian report:

… makes it necessary to plead matters behind the EMAIL and explain the pretext of the alleged adverse action in order to determine the real reason for [Woodside’s] conduct.

15    He deposes that the EMAIL records him as identifying a stability problem during onshore load testing of a heavy lift crane and that the correctness of his assessment was confirmed by the Operations Manager of the North Rankin Facility.

16    The discomfort surrounding subsequent events, Dr Zaghloul deposes, led to his mental condition. He also deposes to applying online for a job with the National Offshore Petroleum Safety Authority (NOPSA), now the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). He declined to accept a job offer from NOPSA, which he described as a Commonwealth statutory agency regulating, amongst other things, the structural integrity of all offshore petroleum facilities in Commonwealth waters. Dr Zaghloul deposes that a Woodside officer ‘promised improvement of the work environment’ when Woodside learned of the NOPSA job offer.

17    Dr Zaghloul makes a number of points as to why his advice in the EMAIL was correct. He speaks of the criticisms of him in the Meridian report by Woodside’s officers, who he says asserted that he ‘lacked [a] basic understanding of fundamental engineering concepts and deserved poor performance rating’.

18    Dr Zaghloul deposes to closing down a small business on or about 10 August 2011 at a time when he was an in-patient at the Hollywood Hospital mental health unit under the care of his former psychiatrist. He also deposes to events concerning: his subsequent bankruptcy following an adverse judgment in an unconnected commercial dispute; the sale of his home property by a bank; his incurrence of wasted legal costs; and the consequences of taking the course advocated for by legal representatives he retained. He describes the history of these proceedings, including the 2013 interlocutory applications which will be referred to further below.

19    I note there can be little doubt that the picture painted is unfortunately of a sad state of affairs, but whether any of this gives rise to a cause of action against Woodside is quite a different question.

Dr Zaghloul’s 8 February 2019 affidavit

20    By his affidavit of 8 February 2019, Dr Zaghloul summarises the history of Woodside’s defence under s 93K of the Workers’ Compensation and Injury Management Act 1981 (WA), which is discussed further below. This history is principally discussed in relation to Dr Zaghloul’s contention that Woodside has unnecessarily extended these proceedings.

21    Dr Zaghloul deposes to his summary judgment application filed on 25 March 2014 and the fact that he made an application to the Australian Human Rights Commission (AHRC) for the unlawful dismissal in breach DD Act on 23 April 2014. He refers to attempts to resolve the dispute, the imposition of a psychiatric examination and the nature of his dismissal from Woodside.

22    This affidavit also refers to the provision and content of the Meridian report, saying that he believed that Woodside’s managers and employees circulated statements made about him and contained in the Meridian report to others in the organisation to ridicule his opinion and undermine his credibility. He refers to an earlier transfer application and the circumstances leading to his belief as to interference by Woodside with various legal representatives retained by Dr Zaghloul.

APPLICABLE PRINCIPLES

23    The relevant test to be met under both s 31A(2) of the FCA Act and r 26.01(1)(a) of the Rules requires Woodside to satisfy the Court that Dr Zaghloul ‘has no reasonable prospect of successfully prosecuting ... part of the proceeding’. It is unnecessary to refer extensively to the relevant procedural cases. The principles are well established and have been previously considered in detail: see, for example, Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 (at [3]), where I said:

Without reference to all the well-known authorities, the parties agree that it is well established that the Court may give judgment for a defending party in relation to the whole or any part of a proceeding where the Court is satisfied that the prosecuting party has no reasonable prospects of successfully prosecuting the proceeding or a part of the proceeding. Further:

•    the claim need not be hopeless or bound to fail for it to have no reasonable prospects of success: s 31A of the Federal Court Act;

•    a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]);

•    there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: Ship “Sam Hawk” v Reiter Petroleum Ltd (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]);

•    s 31A is amenable to resolving straightforward questions of law: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [16]). However, summary judgment may still be appropriate if a question raised is of some complexity: SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]);

•    if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]);

•    it is clear that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment, including summary dismissal, below that fixed by previous authorities: Spencer v Commonwealth of Australia (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ; Jefferson Ford per Gordon J (at [127]);

•    s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial: McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited);

•    summary dismissal will not apply to ‘a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel’: Nichol v Discovery Africa Ltd (2016) 343 ALR 594 per Greenwood, McKerracher and Moshinsky JJ (at [134]);

•    the moving party bears the onus of persuading the Court the application has no reasonable prospects of success. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of a value judgement in the absence of a full and complete factual matrix and argument, with a result that the provision vests a discretion in the Court. That discretion includes whether to deal with the motion at once or at some later stage in the proceedings, when the legal and factual issues have been more clearly defined: Kimber v The Owners of Strata Plan No 48216 [2017] FCAFC 226 per Logan, Kerr and Farrell JJ (at [62]) quoting with approval Eliezer v University of Sydney (2015) 239 FCR 381 per Perry J (at [37]);

•    despite the threshold for summary dismissal having been lowered, it must still be exercised with caution. The power is not to be exercised lightly: Spencer v Commonwealth per Hayne, Crennan, Kiefel and Bell JJ (at [60]);

•    the Court does not, in such an application, conduct a ‘mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial’. Rather, it ‘requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial’: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [46]); and

•    each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant facts and circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect materials available to the Court for considering the application, for example, where the pleadings have been exchanged, or discovery of documents has occurred: Cassimatis per Reeves J (at [46]).

OVERVIEW OF THE PARTIES’ POSITIONS

24    Woodside submits there are strong discretionary reasons why the issues raised by this application should be dealt with summarily.

25    First, to do so will save costs and time and narrow the ambit of what is likely to be a protracted trial. Most of the questions are questions of law which can be decided without the need for a trial. Woodside says:

(a)    some of the objections, such as whether Dr Zaghloul is entitled to bring claims under the DD Act without having complied with s 46PO of the AHRC Act or has standing to prosecute offences under the OSH Act, can be dealt with quickly. All of the jurisdictional objections will have to be dealt with in any event;

(b)    if such objections not dealt with now and the claims are allowed to proceed, the parties will be required to prepare fully to deal with the claims in case the jurisdictional objections are not upheld. Discovery will have to be given in relation to the additional matters to which the causes of action relate, additional evidence will have to be led and each cause of action will have to be considered in detail and addressed in submissions; and

(c)    work will be wasted and an already long trial will be unnecessarily prolonged if the objections are ultimately upheld.

26    Woodside points out that some of the claims to which objection is taken are unrelated to and/or removed in time from Dr Zaghloul’s allegations of bullying in the workplace between August 2009 and April 2011. If such claims are allowed to remain it will require additional witnesses to be called. Specifically, Woodside points to the claims made by Dr Zaghloul that Woodside:

(a)    acted unconscionably in or about late April 2012 by interfering with the Dr Zaghloul’s contract with his lawyers (which Woodside says is a scandalous allegation);

(b)    organised to dismiss or dismissed Dr Zaghloul in 2012 and 2013 for a prohibited reason, contrary to the general protection provisions in the FW Act; and

(c)    in 2016 and 2017, funded the defence of its employees and former employees in other proceedings brought by Dr Zaghloul.

27    Further, Woodside argues:

(a)    other peripheral issues, such as whether Woodside has acted unconscionably by elongating these proceedings, can readily be seen to have no reasonable prospects of success and ought be dispensed with summarily; and

(b)    whether the Fair Work claims are dismissed or allowed to remain in whole or in part will determine whether s 570 of the FW Act will apply to the proceedings in respect of costs going forward and, potentially, costs incurred to date. Until that question is determined, the parties and the Court will not know the basis on which costs of interlocutory applications are to be awarded. It is important that the position is clarified, if possible, so that the parties can better understand their entitlement or exposure to costs.

28    Dr Zaghloul stresses that although s 31A of the FCA Act lowers the bar to grant summary judgment, there must be a ‘clean kill’, otherwise justice demands that the issues raised by the litigant in person’s application should be tried, referring to Kimber v Owners of Strata Plan No. 48216 (2017) 258 FCR 575 per Logan, Kerr and Farrell JJ (at [73] and [78]). He argues that the Court should not engage in preliminary examination of the evidence and should await the trial. He asserts that Woodside should file a defence before any application for summary judgment is determined, otherwise its position is unknown.

29    Dr Zaghloul cites the 1890 decision of Lawrence v Lord Norreys (1890) 15 AC 210 (at 219-220), where Lord Herschell said the House of Lord’s inherent jurisdiction to dismiss an action as an abuse of process would not be enlivened merely because the story told in the pleadings was highly improbable and one which was difficult to believe. Dr Zaghloul argues that Woodside is dragging out the proceedings with recycled arguments. He contends that Woodside should never have run the s 93K defence as he has asserted in his CSOC, seemingly asserts that he was defamed by the Meridian report and that Woodside should have disciplined its employees. He argues that Woodside has failed to comply with costs orders.

30    Dr Zaghloul rejects the argument that summary judgment could save costs and time. Particularly, in relation to witnesses to be called, Dr Zaghloul contends the claims that will necessitate the most witnesses are not those the subject of this application. Regarding the FW Act and the general protections therein afforded against court applications in relation to a dismissal, he stresses that he did not previously seek a remedy for the dismissal as an adverse action under the FW Act. Rather, he seeks a remedy on the ground that the dismissal constituted unlawful discrimination because it was on the ground of disability in contravention of the DD Act. Hence, Dr Zaghloul contends the prohibition under the FW Act does not arise such that the summary judgment application reliant on the prohibition should fail.

31    Further, Dr Zaghloul contends that the requirement for leave to commence a proceeding concerning contraventions of the AHRC Act is procedural, not jurisdictional, citing Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1.

32    In relation to unconscionable conduct, Dr Zaghloul stresses that where Woodside is yet to file a defence to the CSOC, it remains to be seen whether it would deny the allegations contained within it. Woodside’s application for summary judgment should be dismissed, not the least because it is not yet known if there will be any contested facts. Dr Zaghloul submits, assuming Woodside would deny the allegations, the evidence needs to be tested for its reliability and, if so, whether the conduct would reveal bullying. He cites Australian Competition And Consumer Commission v Simply No-Knead (Franchising) Pty Ltd (2000) 104 FCR 253, in which Sundberg J considered behaviour he characterised as ‘unreasonable, unfair, bullying and thuggish’ to amount to unconscionable conduct.

33    Dr Zaghloul stresses in relation to each of his respective former legal representatives, the circumstances and evidence in support gives rise to the inference that they have allowed their advices to be interfered with by Woodside. He has filed affidavit evidence in support of those suggestions contending tortious interference.

CLAIMS UNDER THE DD ACT

34    In para 58 and para 59 of the CSOC, Dr Zaghloul pleads causes of action and claims damages for discrimination under the AHRC Act and the DD Act. Paragraph 58 relates to Dr Zaghloul’s dismissal from employment. Paragraph 59 relates to Dr Zaghloul being required to attend an independent psychiatric examination (pleaded in para 31). Those events concerning the psychiatric examination occurred between 23 April and 7 August 2012 according to Dr Zaghloul’s affidavit affirmed on 11 September 2018.

35    Woodside argues (correctly) that the AHRC Act contains an exclusive regime for remedying contraventions of federal discrimination laws, including the DD Act: see Picos v Australian Federal Police [2015] FCA 118 per Perry J (at [34]-[38] and the authorities therein cited) and RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 per Perry J (at [122]).

36    Prior to amendments which commenced on 13 April 2017, s 46PO of the AHRC Act relevantly stated:

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE or 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

…

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

37    The Court has no jurisdiction to hear an allegation of unlawful discrimination under the DD Act unless the conditions in Pt IIB of the AHRC Act have been met: Picos (at [34]-[38]). Amongst other things, that requires:

(a)    a complaint to have been made to the AHRC alleging unlawful discrimination;

(b)    the complaint to have been terminated; and

(c)    an application to this Court or the Federal Circuit Court of Australia to be made within 60 days of the notice of termination of the complaint or such further time as the Court allows.

38    Dr Zaghloul did make a complaint to the AHRC on 23 April 2014 against Woodside. The subject matter of the complaint included both Dr Zaghloul’s dismissal and the requirement that he attend a psychiatric examination. That complaint was terminated by the AHRC on 4 June 2014 under s 46PH(1)(b) of the AHRC Act on the ground that the complaint was lodged more than 12 months after the alleged unlawful discrimination took place. The dates of the correspondence and the termination notice from the AHRC are also in evidence.

39    Under the legislation in force at that time (set out above) any application to the Court had to be made within 60 days of the notice of termination of the complaint or within such further time as the Court allows. It is noted that s 46PO was amended with effect from 13 April 2017 to impose further restrictions on the ability to bring an application before the Court. Among other things, where a complaint is terminated on the ground that it is lodged more than six months after the alleged unlawful discrimination took place, the application must not be made, even within 60 days after the issue of the termination notice, unless the Court grants leave to make the application: see s 46PH(1)(b) and s 46PO(3A) of the amended AHRC Act.

40    Woodside says that Dr Zaghloul did not apply to the Court within 60 days of the notice of termination nor did he apply for leave to make the application out of time. The Court, therefore, has no jurisdiction to deal with Dr Zaghloul’s claims under the AHRC Act and DD Act. Woodside contends the claims in para 58 and para 59 of the CSOC should be dismissed because Dr Zaghloul has no reasonable prospect of successfully prosecuting that part of the proceeding.

41    It is to be noted that Dr Zaghloul did file a further complaint to the AHRC against Mr Masson. This complaint was received by the AHRC on 27 October 2016. The complaint made reference to similar conduct requiring Dr Zaghloul to attend a psychiatric examination by a Woodside nominated psychiatrist, but was terminated by the AHRC on 25 May 2017 under s 46PH(1)(b) of the AHRC Act. The complaint and the related documentation is in evidence. It is of no relevance to the present issue because Woodside was not a respondent to that complaint. As Woodside contends, a Court proceeding can only be brought against persons who were respondents to the terminated complaint in the AHRC. Section 46PO does not authorise an affected person to bring a proceeding against anyone other than a respondent to the terminated complaint: see Grigor-Scott v Jones (2008) 168 FCR 450 per Emmett, Lander and Tracey JJ (at [18]-[20] and [69]).

42    Dr Zaghloul has submitted that he complied with s 46PO when he filed his summary judgment application in this proceeding on 25 March 2014. Dr Zaghloul argues that the requirement in s 46PO for an application to be made within 60 days after the date of issue of a notice terminating the complaint does not preclude the making of an application before the issue of a notice.

43    Dr Zaghloul’s contention cannot be accepted. The entitlement to make an application to the Court conferred by s 46PO(1) is contingent upon the complaint having been terminated by the President of the AHRC and the President having issued a notice in relation to the termination. This is clear on the face of the section. It is only a person ‘who was an affected person’ in relation to the complaint who may make an application. The relevant application is the application alleging unlawful discrimination by the respondent to ‘the terminated complaint’. With one exception (see s 46PP regarding applications for interim injunctions) there is no entitlement to apply to the Court under the AHRC Act without the complaint first having been terminated and the requisite notice issued. This is apparent also from s 46PO(3), which places limitations on the nature and scope of applications that may be made to the Court to those which are the subject of a terminated complaint. The termination requirement accords with the policy of the AHRC Act in ensuring that there exists an opportunity for the attempted conciliation of complaints by the AHRC before they are litigated: see, for example, s 11(1)(aa) and s 11(1)(f)(i) of the AHRC Act. This is fundamental to the legislation: see the discussion in Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 per Katz J (at [42]).

44    Dr Zaghloul makes the point that the word ‘within’ has been interpreted in some other statutory contexts to mean ‘not later than’. That does not assist Dr Zaghloul in the case of s 46PO(1) and s 46PO(3), which make it clear that an application may only be made after a complaint has been terminated and a notice issued.

45    Further, in respect of Dr Zaghloul’s reliance on his summary judgment application, the application referred to in s 46PO(2) is an application alleging unlawful discrimination by one or more of the respondents to the terminated complaint. This does not apply in this instance. The summary judgment application filed in this proceeding on 25 March 2014 was not an application alleging unlawful discrimination. It was not application seeking relief under the DD Act. It was an application for summary judgment of Dr Zaghloul’s pleaded claims at that time, which were then confined to claims for damages under the Trade Practices Act 1974 (Cth) (TPA), in contract and in tort. It is not sufficient that in his affidavit in support, affirmed on 2 June 2014, Dr Zaghloul made references to reliance upon various other claims, including claims under the DD Act.

46    I am satisfied that judgment for Woodside ought to be given in relation to para 58 and para 59.

CLAIMS UNDER THE OSH ACT

47    In relation to Dr Zaghloul’s claims under the OHS Act, there is a ‘standing’ difficulty. Paragraph 60 and para 61 of the CSOC plead contraventions of s 23K(2) and s 56(1) of the OSH Act. Both sections are offence provisions. Dr Zaghloul lacks standing to bring a prosecution for an offence under s 52(1) of the OSH Act, which provides that proceedings for an offence against this Act may be instituted by persons authorised by the Worksafe Western Australia Commissioner. Woodside says the claims in para 60 and para 61 should be dismissed because Dr Zaghloul has no reasonable prospect of successfully prosecuting that part of the proceeding due to his lack of standing to prosecute any contraventions.

48    Dr Zaghloul concedes that he has no standing to prosecute contraventions of the OHS Act. He says that the point of those pleadings was to ‘shed a light’ on the seriousness of the conduct, conduct which the Parliament of Western Australia considered fit to constitute offences. This may be a matter for submission, but it is embarrassing to remain in a pleading as it is clear that Dr Zaghloul does not have standing to prosecute for the alleged offences. Judgment will be given for Woodside.

CLAIMS UNDER THE FW ACT

49    Paragraphs 48 to 57 of the CSOC plead and seek compensation for alleged contraventions of general protections afforded in the FW Act. The FW Act provisions alleged to have been contravened are ss 340(1)(a)(ii), 351(1) and 343. Each provision is in Pt 3-1 of the FW Act entitled ‘General protections’.

50    An application to a court for orders in relation to a contravention of any of these provisions is a ‘general protections court application’ within the meaning of s 368(4) of the FW Act, which provides ‘A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part’ (emphasis in original).

51    Dr Zaghloul alleges that Woodside breached s 340(1)(a)(ii) or s 351(1) by taking adverse action against Dr Zaghloul because he exercised workplace rights (para 51, the workplace rights are pleaded in para 48 and para 50) and/or because of his political opinion (pleaded in para 49).

52    Dr Zaghloul alleges Woodside took adverse action against him in six ways. These are detailed in the CSOC, but are worth detailing again:

52.    First it organised to dismiss, within the meaning of s 342(2)(b), [Dr Zaghloul] using [Woodside’s] (inapplicable) salary continuance policy and insisting on a psychiatric examination at a time when [Dr Zaghloul] had clearly not reached maximum medical improvement.

53.    Second, it injured, within the meaning of s 342(1)(b), him by causing a recognised psychiatric injury or its aggravation; reduction of pay; or removal of his workload.

54.    Third, it altered [Dr Zaghloul’s] role to his prejudice, within the meaning of s 342(1)(c), in that the manner of removing the TA duties by reducing his job security, status, rank or prestige and disappointing his expectations of an extended career in engineering.

55.    Fourth, it discriminated against [Dr Zaghloul] for making a political opinion s 342(1)(d) by the substantial breach of terms of the contract and subjecting him to bullying within the meaning of a [sic] 789FD of the FW Act.

56.    Fifth, it dismissed [Dr Zaghloul] by email in contravention of s 117 of the FW Act.

57.    Sixth, by ceasing salary continuance payment, [Woodside] contravened s 343 of the FW Act in that the action was taken with an intent to coerce [Dr Zaghloul] to attend the psychiatric examination, and the exertion of the pressure was unlawful.

Woodside’s arguments

53    Woodside argues that Dr Zaghloul is precluded from making his Fair Work claims by Div 3 of Pt 6-1 of the FW Act. Section 725 of that Division of the FW Act provides:

725    General rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any of those sections applies.

54    The effect of the section is to bar a person from bringing multiple actions in relation to the same dismissal.

55    Section 728 refers to a ‘general protections court application … in relation to the dismissal’. Section 732 provides:

732    Applications and complaints under other laws

(1)    This section applies if:

(a)    an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(b)    the application or complaint has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction.

(2)    An application or complaint under another law is an application or complaint made under:

(a)    a law of the Commonwealth (other than this Act); or

(b)    a law of a State or Territory.

(3)    For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.

(Emphasis added.)

56    As can be seen from s 732(3), it explicitly contemplates a complaint under the AHRC Act.

57    Woodside contends that it follows, reading ss 725, 728 and 732 together, that if a person makes a complaint ‘in relation to’ a dismissal under the AHRC Act and that complaint is not withdrawn or has not failed for want of jurisdiction, the person cannot then make a general protections court application under the FW Act in relation to the dismissal. At least two of the general protections claims which Dr Zaghloul now seeks to make are in relation to his dismissal (those in para 52 and para 56 of the CSOC).

58    Section 734(1) of the FW Act also provides:

734    General rule

(1)    A person must not make a general protections court application in relation to conduct that does not involve the dismissal of the person if:

(a)    an application or complaint under an anti-discrimination law has been made by, or on behalf of, the person in relation to the conduct; and

(b)    the application or complaint has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction.

…

59    It follows, Woodside says, that if an application or complaint has been made by a person in relation to certain conduct and the application or complaint has not been withdrawn or failed for want of jurisdiction, then:

(a)    by reason of ss 725, 728 and 732, if the application or complaint is in relation to a dismissal; or

(b)    by reason of s 734, if the application or complaint under an anti-discrimination law is in relation to conduct not involving a dismissal;

the person ‘must not’ make a general protections court application in relation to that conduct.

The FWC applications

60    Prior to lodging his AHRC complaints, Dr Zaghloul had previously filed two applications in the Fair Work Commission (the FWC) in relation to his dismissal. However, for the reasons which follow, they did not preclude him from making his subsequent applications to the AHRC:

(1)    Section 727 provides:

727    General protections FWC applications

(1)    This section applies if:

(a)    a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b)    the application has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction; or

(iii)    resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(1A)    This section also applies if:

(a)    a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b)    the application has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction; and

(c)    a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

(d)    a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

(2)    A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.

(1)    It follows from ss 725, 727 and 732 that if a person makes a ‘general protections FWC application’ in relation to a dismissal that has not been withdrawn or failed for want of jurisdiction or resulted in the issue of a certificate under s 368(3)(a), the person cannot then make a complaint under the AHRC Act.

(2)    On 5 February 2013, Woodside gave Dr Zaghloul notice of the termination of his employment to take effect on 5 March 2013.

(3)    On 27 February 2013, Dr Zaghloul lodged a s 365 application in the FWC. On 5 April 2013, Dr Zaghloul filed a notice of discontinuance withdrawing that application. Having been withdrawn, that application was not an application of a kind referred to in s 727. It did not prevent Dr Zaghloul from subsequently making an application or complaint under the AHRC Act.

(4)    After withdrawing his initial application, Dr Zaghloul had to make any new application under s 365 within 21 days after the dismissal took effect: s 366(1)(a) of the FW Act.

(5)    Dr Zaghloul’s subsequent application was lodged 17 days out of time. His application for an extension of time was dismissed, as was his appeal from that decision to a Full Bench of the FWC: Zaghloul v Woodside Energy Ltd [2013] FWCFB 7905. Dr Zaghloul’s second s 365 application also did not preclude him from subsequently making an application or complaint under the AHRC Act. That is because a s 365 application which is out of time is not made within the meaning of s 725 of the FW Act unless and until an extension of time has been granted by the FWC: cf ABC Transport Pty Ltd [2012] FWAFB 3212; approved in Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 (at [43]). As such an application does not fall within s 725 it does not preclude a subsequent application or complaint under the AHRC Act.

The first AHRC complaint

61    On 23 April 2014, Dr Zaghloul made a complaint to the AHRC under the AHRC Act alleging race and disability discrimination in relation to his dismissal and other matters (the first AHRC complaint).

62    In relation to the first AHRC complaint, Woodside notes that as well as a covering email and the complaint form, Dr Zaghloul attached as part of his complaint an affidavit affirmed 11 March 2014 which he had filed in this proceeding. The affidavit was 29 pages in length, with some 230 pages of annexures.

63    The complaint form under the heading ‘Part C – What are you complaining about’ recorded:

(1)    Under the subheading ‘I am complaining because I believe’, it is stated:

I have been discriminated against because of my disability

This includes disability, association with a person with a disability, being a carer or an assistant of a person with a disability, use of an assistance animal, harassment because of a disability and contravention of a disability standard. and ‘I have been treated unfairly because of another reason, including victimisation’;

I have been treated unfairly because of another reason, including victimisation.

(2)    Under the sub-question ‘When did the alleged event(s) happen?’, Dr Zaghloul records 5 February 2013.

(3)    Under the subheading ‘What happened?’, Dr Zaghloul stated:

1.    Detailed account of events is attached as an Affidavit.

2.    [Woodside] terminated my employment following whistle-blowing regarding safety of 153 offshore workers on an offshore platform (NRA).

3.    I was exposed to intense bullying in a toxic work environment for 22 months for refusing to approve offshore installation work that threatens lives of 153 workers offshore.

4.    The chronic bullying caused severe psychiatric injury and the injury was exacerbated, aggravated, deteriorated and accelerated through acts in bad faith and conspiracies and defraud to pervert the course of natural justice.

5.    [Woodside] accepted liability for the psychiatric injury on 31 January 2013 and terminated my employment 5 days later. Further, [Woodside] accepted that I am entitled to be treated according to its policy titled Workers’ Compensation at Woodside as per WORKCOVER Certificate of Outcome dated 8 February 2013 but employed an irrelevant policy titled Salary Continuance to justify terminating my employment. Please refer to attached correspondences.

64    Woodside notes that Dr Zaghloul’s affidavit dated 11 March 2014, attached to his complaint, also deposes to the conduct which he now complains of in paras 52 to 57 of the CSOC, namely:

(a)    bullying causing him psychiatric injury;

(b)    Woodside applying its salary continuance policy;

(c)    Woodside (through Mr Masson) insisting on Dr Zaghloul attending a psychiatric examination by a Woodside nominated psychiatrist;

(d)    Woodside reducing Dr Zaghloul’s salary;

(e)    Woodside removing Dr Zaghloul’s ‘Technical Authority’ duties and workload; and

(f)    Woodside’s terminating Dr Zaghloul’s employment.

65    Woodside notes on 4 June 2014, a delegate of the President of the AHRC sent Dr Zaghloul a notice of termination of his complaint issued under s 46PH(2) of the AHRC Act together with a letter setting out her reasons for the decision to terminate the complaint. The notice and the letter indicated the delegate had decided to terminate the complaint in accordance with s 46PH(1)(b) of the AHRC Act on the discretionary ground that the complaint was lodged more than 12 months after the unlawful discrimination took place. That the delegate’s decision was discretionary in nature, Woodside contends can be seen from the terms of s 46PH. It is also evident in the letter which sets out the factors which the delegate took into account in arriving at her decision.

66    The letter noted that Dr Zaghloul had claimed he had been subjected to workplace bullying and harassment ‘around August 2009 onwards’, that the complaint related to events which occurred in Dr Zaghloul’s employment during the period of August 2009 to March 2013 and that ‘the last act of alleged unlawful discrimination, namely, [Woodside’s] decision to terminate your employment, took place on 5 February 2013’.

67    Woodside contends, in these circumstances:

(1)    It is clear that the first AHRC complaint by Dr Zaghloul included, in addition to his dismissal described by the AHRC as the ‘last act of alleged unlawful discrimination’, all of Dr Zaghloul’s bullying and harassment allegations to that point in time (or at least those allegations in the 11 March 2014 affidavit), including the alteration to his role and removal of duties, Woodside’s application of the salary continuance policy and Woodside’s request that Dr Zaghloul attend a psychiatric examination.

(2)    The complaint did not fail for want of jurisdiction nor was it withdrawn. It was terminated.

(3)    Accordingly, Dr Zaghloul is precluded:

(a)    by ss 725, 728 and 732 of the FW Act from now making a general protections court application in relation to the dismissal under the FW Act; and

(b)    by s 734 of the FW Act, from now making a general protections court application in relation to conduct included in his 2014 complaint which did not involve a dismissal.

68    Woodside says that the claims in paras 51 to 57 of the CSOC (which also incorporate paras 48 to 50) should be dismissed because Dr Zaghloul has no reasonable prospect of successfully prosecuting those claims.

The second AHRC complaint

69    It is also common ground that on 27 October 2016, the AHRC received a second complaint from Dr Zaghloul (the second AHRC complaint). The second AHRC complaint concerned Mr Masson.

70    As already noted, Woodside was not a respondent to the second complaint. However, Woodside argues:

(1)    The prohibitions in s 725 and s 734 of the FW Act are not limited to cases where a respondent to a second complaint or application is the same as the respondent to the complaint or application already made: see the decision of the FWC Full Bench (per Drake SDP, Dean DP and Saunders C) in Hazledine v Wakerley (2017) 266 IR 118 (at [19]-[22] and [39]-[41]) in relation to s 725.

(2)    The prohibition in each case is personal, acting to prevent an applicant ‘double dipping’ when they have multiple potential remedies in relation to a dismissal or other conduct.

(3)    The prohibition imposed by s 734 of the FW Act bars an applicant from making a general protections court application ‘in relation to conduct’ (not involving dismissal) if an application or complaint has been made under an anti-discrimination law ‘in relation to the conduct’ and has not been withdrawn or failed for want of jurisdiction.

71    Dr Zaghloul’s second AHRC complaint (which was in evidence) was narrower in its scope than the first AHRC complaint. It alleged victimisation by Mr Masson against Dr Zaghloul in the period April to August 2012, specifically by requiring him to attend a psychiatric examination and by ceasing his Salary Continuance payments until Dr Zaghloul agreed to be examined.

72    Woodside notes that in the second AHRC complaint, under the heading ‘Part C – What are you complaining about’, it is recorded:

(1)    Under the subheading ‘I am complaining because I believe’, Dr Zaghloul stated ‘I have been treated unfairly because of another reason, including victimisation’. The complaint continued under ‘Please state the other reason(s)’:

I exercised a workplace right in that I refused to approve unsafe design in my role as Technical Authority for my former employer, Woodside[.]

My managers and other managers turned against me and I ended up suffering a psychiatric injury on 13 April 2011[.]

The injury was exacerbated, accelerated, deteriorated and aggravated by my former employer actions, one of which is the subject of my complaint[.]

Basically, the various arms of the organisation, including HR, lined up against me.

(2)    Under the sub-question ‘When did the alleged event(s) happen?’, Dr Zaghloul records ‘The alleged event happened in June 2012’.

(3)    Under the subheading ‘What happened?’, Dr Zaghloul stated:

In April 2012, Mr Masson demanded that I undergo psychiatric examination by Woodside nominated psychiatrist.

At the time, my mental state was unstable and I developed panic attack every time I saw someone from Woodside.

Mr Masson insisted that I see the psychiatrist and disregarded explicit warning about risk of deterioration from my former lawyer and me personally.

By email dated 25 May 2012, my former lawyer advised that I refused to attend the examination due to risk of deterioration and requested deferment until my condition stabilised.

By email dated 1 June 2012, Mr Masson ceased payment of my salary while I was extremely ill with high medical costs.

By email dated 7 June 2012, I reluctantly accepted to attend the psychiatric examination to restore my salary and made it clear that he was breaching his duty of care towards me by insisting I saw the psychiatrist at the time and refusing to defer the examination until my condition stabilised. I emailed him saying that I would hold him personally liable if the risk of deterioration materialised.

On 7 August 2012, I attended the psychiatric examination.

On 8 August 2012, I was admitted to Perth Clinic (psychiatric hospital) under the care of my psychiatrist for development of severe depression and suicide thoughts. The depression was so severe that I had to undergo Electro-Convulsive Therapy course (ECT).

On 17 August 2012, I suffered what appeared to be a heart attack and was rushed to Charles Gairdner hospital by ambulance. It turned out to be symptoms like heart attack but were side effect of ECT course.

I was discharged from hospital on 25 August 2012 with double the medication that I was prescribed in April 2012.

Woodside dismissed me as a result of the illness on 5 February 2013.

Please note: I have multiple medical reports from my psychiatrist, general practitioner, independent forensic psychiatrists and WorkCover Approved Medical Specialist who assessed WPI of 57%. I can provide a copy of these reports on request.

The events narrated above are documented in emails and letters. The date of the psychiatric examination, the admission to hospital, the ECT course are all documented.

All documents in support of my allegations will be emailed to newcomplaints@humanrights.gov.au marked Hassan Zaghloul v Ian Masson on the subject.

73    On 25 May 2017, a delegate of the President of the AHRC sent Dr Zaghloul a notice of termination of his complaint issued under s 46PH(2) of the AHRC Act and a letter setting out the delegate’s reasons for her decision to terminate the complaint. The notice and the letter indicated the delegate had decided to terminate the complaint in accordance with s 46PH(1)(b) of the AHRC Act on the ground that the complaint was lodged more than 12 months after the unlawful discrimination took place. That decision was again discretionary.

74    The letter recorded:

(1)    Under the heading ‘Other issues raised by you’ said:

In the circumstances, your [complaint] has been considered and progressed as one alleging disability discrimination under the [DD Act] in relation to the alleged events involving Mr Masson in the period April 2012 to August 2012, a summary of which is outlined below.

(2)    Under the heading ‘Your complaint’ said:

You were previously employed by [Woodside]. You say that during your employment, you refused to approve what you considered to be an unsafe design. You claim that this led to your manager and other managers “turning against” you and as a result, you experienced a psychiatric injury on 13 April 2011.

You claim that in April 2012, Mr Masson, in his then capacity as the Vice President Human Resources of Woodside, required you to undergo a psychiatric examination by Woodside’s nominated psychiatrist. You state that you refused to attend the examination due to the risk of deterioration and requested deferment until your condition was stabilised. You say that Mr Masson then ceased your entitlement to Salary Continuance by email of 1 June 2012. You state that in an email of 7 June 2012 to Mr Masson, you reluctantly accepted to attend the examination in order to restore your entitlement to Salary Continuance. You say that you attended the examination on 7 August 2012 and that this led to deterioration of your condition, including an admission to a psychiatric hospital on 8 August 2012 due to developing severe depression and suicidal thoughts.

I understand that your employment with Woodside was finalised on or around 5 February 2013.

(3)    The letter noted:

The affidavit you lodged with your complaint in 2014, specifically refers to alleged actions by Mr Masson in forcing you to attend an appointment with [Woodside’s] psychiatrist – which is also the subject of your current complaint. Therefore, it appears that you raised the same issues in 2014.

75    Woodside says it is evident from this letter that Dr Zaghloul’s complaint at the time of termination was a complaint of disability discrimination under the DD Act in relation to Mr Masson’s conduct in the period April 2012 to August 2012 requiring Dr Zaghloul to undergo a psychiatric examination by Woodside’s nominated psychiatrist. That is consistent with the facts alleged under the heading ‘What happened’ in the first AHRC complaint.

76    Dr Zaghloul then, within the required period of 60 days, commenced a proceeding in the Federal Circuit Court (PEG389/2017), which was subsequently transferred to this Court (WAD336/2018). That proceeding remained on foot until dismissed by consent orders made on 23 November 2018.

77    Woodside says:

(1)    The second AHRC complaint, being confined to events in the period April to August 2012, was a complaint in relation to conduct that did not involve a dismissal, was made under an anti-discrimination law and was not withdrawn or dismissed for want of jurisdiction. It therefore fell within s 734 of the FW Act.

(2)    Accordingly, Dr Zaghloul was precluded by his second AHRC complaint from making a general protections court application in relation to the same conduct.

78    On that basis also, the claims in para 52 and para 57 (read together with para 51) should be dismissed because Dr Zaghloul has no reasonable prospect of successfully prosecuting those claims.

No s 368(3)(a) certificate

79    Further, Woodside argues that at least two of the above general protections claims which Dr Zaghloul now seeks to make relate to his dismissal.

80    Woodside says Dr Zaghloul is therefore a person who has been dismissed and who alleges in the CSOC (at para 51) that he was dismissed in contravention of s 340(1)(a)(ii) or s 351(1), both of which appear in ‘Pt 3-1 – General Protections’ of the FW Act.

81    Woodside refers to the observations of Dodds-Streeton J in Shea v TruEngergy Services Pty Ltd (No 1) (2012) 204 FCR 456, where her Honour noted (at [81]):

The regime established in Subdiv A of Div 8 aims, where possible, to avoid litigation about allegedly contravening dismissals by mandating (as a prerequisite to litigation) a preliminary, less costly and relatively informal process in the FWC to facilitate conciliation and non-curial resolution.

82    Section 365 relevantly provides:

365    Application for the FWC to deal with a dismissal dispute

If:

(a)    a person has been dismissed; and

(b)    the person ... alleges that the person was dismissed in contravention of this Part;

the person … may apply to the FWC for the FWC to deal with the dispute.

83    Section 368 relevantly provides:

368    Dealing with a dismissal dispute (other than by arbitration)

(1)    If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

…

(3)    If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a)    the FWC must issue a certificate to that effect; and

(b)    if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4)    A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

84    Section 370 provides:

370    Taking a dismissal dispute to court

A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a)    both of the following apply:

(i)    the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii)    the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b)    the general protections court application includes an application for an interim injunction.

…

85    Section 370 of the FW Act (subject to paragraph (b)) prohibits absolutely the making of a general protections court application in relation to a dispute concerning a dismissal allegedly in contravention of Pt 3-1 without a certificate. A certificate under subs 368(3)(a) is a precondition of the Court’s jurisdiction to deal with such a dispute: Ward v St Catherine’s School [2016] FCA 790 per Pagone J (at [6]-[7]); Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 per Cowdroy J (at [28]-[31]); Shea (at [26] and [61]).

86    It should be noted that Hill and Shea were decided prior to amendments to Div 8 of Pt 3-1 which commenced on 1 January 2014: s 3 and Sch 4A item 4 of the Fair Work Amendment Act 2013 (Cth). The amendments repealed former ss 368, 369, 370 and 371 and replaced them with new sections 368, 369 and 370. The purpose of the amendments was to set out a new compliance framework for contraventions of Pt 3-1 involving dismissal to take account of the new consent arbitration jurisdiction exercisable by the FWC: see the Revised Explanatory Memorandum to the Fair Work Amendment Bill 2013 (at [203]). However, the provisions requiring a certificate as a precondition of the Court’s jurisdiction to deal with a dispute were reproduced in materially the same terms and with no change in effect: see Halls v KR & MA McCardle & Sons Pty Ltd [2014] FCCA 316 per Judge Lindsay (at [36]-[38]).

87    In relation to new s 370 the Revised Explanatory Memorandum said at [218]:

New section 370 sets out the two circumstances in which a dismissed employee can make a general protections court application in relation to a dismissal. They are:

•    if the FWC has issued a certificate under new paragraph 368(3)(a) in relation to the dispute and the court application is made within 14 days of the certificate being issued unless the court allows otherwise (paragraph 370(a)); or

•    the court application includes an application for an interim injunction (paragraph 370(b)). This recognises that applicants may decide not to involve the FWC where urgent relief is sought and the allegations are particularly serious, the facts in dispute are particularly complex, or the employer is unlikely to agree to consent arbitration.

88    As the FWC has not issued a certificate in relation to the dispute, Woodside argues Dr Zaghloul is precluded by s 370 from making a general protections court application in relation to his dismissal.

89    It is on this basis, the absence of a certificate, that Woodside also submits the claims in para 52 and para 56 (read together with para 51) should be dismissed because Dr Zaghloul has no reasonable prospect of successfully prosecuting those claims.

Dr Zaghloul’s arguments

90    Dr Zaghloul contends that Woodside’s reliance on ss 725, 732 and 369 of the FW Act is misconceived as he is not seeking an order for damages resulting from dismissal under the FW Act, rather under the DD Act. This does not accord with the introductory words appearing above para 48 of the CSOC, stating Dr Zaghloul ‘seeks an order for compensation pursuant to s 545(2)(b) of the [FW Act] for unjustified or unlawful adverse actions’, nor does it sit with those words read together with para 52 and para 56 of the CSOC set out above, which expressly raised complaints of contravention of the FW Act.

91    In relation to Dr Zaghloul’s general protection claims concerning the conduct which did not involve a dismissal, Dr Zaghloul relies on s 734(2) of the FW Act, which provides as follows:

Subdivision C—General protections applications that do not relate to dismissal

734    General rule

…

(2)    A person must not make an application or complaint under an anti-discrimination law in relation to conduct that does not involve the dismissal of the person if:

(a)    a general protections court application has been made by, or on behalf of, the person in relation to the conduct; and

(b)    the application has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction.

92    Dr Zaghloul refers the Court to the application for summary judgment he filed in these proceedings on 25 March 2014. Dr Zaghloul argues that a summary judgment application he filed in this proceeding on 25 March 2014 enlivened s 734 of the FW Act so as to prohibit the making of the first AHRC complaint, such that it is not open to Woodside to rely on the making of the first AHRC complaint to prevent Dr Zaghloul from now making a general protections court application under the FW Act.

93    It is clear that the summary judgment application by Dr Zaghloul was not a ‘general protection court application as defined in s 368(4)’. When the application was made and heard, Dr Zaghloul’s pleaded claims were for damages against Woodside pursuant to s 82 of the TPA, as well as in contract and in tort. As noted above, the fact that his 2 June 2014 affidavit (filed on 8 July 2014) made reference to the DD Act and the FW Act, did not convert his claim into a general protections court application. The summary judgment application was necessarily limited to the matters raised in the statement of claim.

94    That application was not an application under Div 2 of the Pt 4-1 of the FW Act, nor an application for orders in relation to a contravention of Pt 3-1 of that Act. It could not enliven s 734 of the FW Act or preclude the making of the first AHRC complaint.

Conclusion

95    For those reasons, in my view, the arguments advanced by Woodside are correct in relation to all of the Fair Work claims. That is, in summary:

(a)    the lodging of the first AHRC complaint against Woodside under the AHRC Act alleging race and disability discrimination; and

(b)    the lodging of the second AHRC complaint against Mr Masson.

mean that Dr Zaghloul is precluded by the double-dipping provisions in ss 725, 728, 732 and 734 of the FW Act from now making a general protections court application in relation to those matters.

96    It follows that judgment will be given for Woodside in relation to paras 48 to 57.

ADDITIONAL CONTENTIONS MADE AT THE HEARING

97    At the hearing of the interlocutory application Dr Zaghloul appeared to argue, by what purported to be an amended statement of claim (ASOC), that the ASOC enlivened the double dipping provisions in the FW Act precluding him from making any subsequent applications to the AHRC, such that the AHRC applications which he did make on 23 April 2014 and 27 October 2016 were of no effect and could not now be relied upon by Woodside to defeat the FW Act claims made in his CSOC. It appeared that Dr Zaghloul was also asserting that the requirements of s 46PO of the AHRC Act were satisfied by the purported ASOC so as to allow him to make the claims under the DD Act in his CSOC. Similar arguments appear to have been advanced in Dr Zaghloul’s written outline of submissions in support of his 2014 summary judgment application. However, as it was not clear from Dr Zaghloul’s written submissions in relation to the application presently before this Court that he was repeating the same or similar arguments based on his alleged ASOC as he had previously appeared to advance, Woodside did not address these in its written reply submissions.

98    Woodside submits that there is no ASOC as alleged. It was sought to be filed without leave on 19 May 2014, being 24 pages long, but accompanied by 253 pages of annexures. It was discussed in proceedings before Gilmour J on 23 July 2014. When Dr Zaghloul raised the alleged ASOC on that occasion for the first time, Gilmour J said that there was ‘only one statement of claim’ and that Dr Zaghloul had never applied for leave to amend his statement of claim. Dr Zaghloul said that he relied upon subrule 16.51(4) of the Rules in support of the submission that he could amend at any time under that subrule without leave. However, Woodside submitted that the subrule did not apply for reasons now dealt with below, following which his Honour indicated that he would deal with the question of amendment in the course of his reasons.

99    It appears that Gilmour J was of the view that the remarks he had made as to the lack of any existing amended statement of claim under the Rules during the course of the hearing on 23 July 2014 dealt with the situation because the matter was not otherwise mentioned in his Honour’s reasons in Zaghloul v Woodside Energy Ltd (No 5) [2014] FCA 1042 in any express terms. It was clear from the reasons that his Honour was only considering the statement of claim as it stood at the time and that his Honour did not regard the original statement of claim as having been amended. He referred in several places to the statement of claim. By reference to various paragraph numbers, it is clear that his Honour was clearly referring to the original statement of claim and not the alleged ASOC.

100    Dr Zaghloul applied for leave to appeal Gilmour J’s decision in Zaghloul (No 5). I refused Dr Zaghloul leave in Zaghloul v Woodside Energy Ltd [2014] FCA 1262.

101    There is no further amended statement of claim in my view. There is no contest that it was filed without leave on 19 May 2014. Such filing was contrary to rr 16.51, 16.52 and 16.53 of the Rules which provide as follows:

16.51    Amendment without needing the leave of the Court

(1)    A party may amend a pleading once, at any time before the pleadings close, without the leave of the Court.

(2)    However, a party may not amend a pleading if the pleading has previously been amended in accordance with the leave of the Court.

(3)     A party may further amend a pleading at any time before the pleadings close if each other party consents to the amendment.

(4)    An amendment may be made to plead a fact or matter that has occurred or arisen since the proceeding started.

Note 1:    The object of this rule is to ensure that all necessary amendments may be made to enable the real questions between the parties to be decided and to avoid multiplicity of proceedings.

Note 2:    For when the pleadings close, see rule 16.12.

(Emphasis added.)

16.52    Disallowance of amendment of pleading

(1)    If a party amends a pleading under rule 16.51(1), another party may apply to the Court for an order disallowing the amendment.

(2)    If a party purports to amend a pleading under rule 16.51(3) without obtaining the consent of another party, any other party may apply to the Court for an order disallowing the amendment.

(3)    A party applying for an order under subrule (1) or (2) must apply by interlocutory application within 14 days after the date on which the amended pleading was served on the party.

Note:    The Court will disallow the amendment if the Court is satisfied that it would not have given leave on the date on which the amendment was made.

16.53    Application for leave to amend

Unless rule 16.51 applies, a party must apply for the leave of the Court to amend a pleading.

102    Dr Zaghloul argued before Gilmour J that he did not need leave because the Rules allowed amendment of a statement of claim without leave of the Court where the amendment was made to plead a fact or matter that has occurred or arisen since the proceeding started. As Woodside contended on that occasion before Gilmour J, there were two difficulties with the proposition. First, the purported ASOC contained numerous amendments that referred to matters that predated the proceedings. Secondly, Dr Zaghloul’s reliance on r 16.51(4) was, in any event, misconceived.

103    The only parts of r 16.51 which allow a party to amend a pleading without leave are r 16.51(1) and r 16.51(3), which apply only in each case before pleadings close. At the relevant time in these proceedings, pleadings had closed. It is clear that subrule 16.51(4) is not in itself a source of entitlement to amend without leave. Rather, it is explanatory of r 16.51(1) and r 16.51(3). That is clear from the language and structure of r 16.51 and particularly clear when regard is had to r 16.52, which allows the other party, once an amendment has been made under r 16.51 to apply to the Court for an order disallowing amendment. Rule 16.52(1) refers to amendment made under r 16.51(1). Rule 16.52(2) refers to amendment made under r 16.51(3). There is no provision in r 16.52 for a party to apply to the Court for an order disallowing amendment made under r 16.51(4). This is because subrule (4) is not in itself a source of any entitlement to amend. This is also consistent with the observations made by Mortimer J in Friends of Leadbeater’s Possum Inc v VicForests (No 2) [2018] FCA 532, where her Honour said (at [39]):

Two aspects of r 16.51 should be noted. The first is that sub rule (1) is clearly expressed to confer an entitlement to amend without the Court’s leave. The only constraint on that entitlement operates by reference to the close of pleadings. Second, sub rule (4) expressly contemplates that amendments may include amendments to introduce “facts or matters” that have arisen since the proceeding started. The first note to r 16.51 states that:

The object of this rule is to ensure that all necessary amendments may be made to enable the real questions between the parties to be decided and to avoid multiplicity of proceedings.

104    Similarly, Markovic J said in Fewin Pty Limited v Prentice [2018] FCA 852 (at [15]):

A party may amend a pleading once without the leave of the Court at any time before the pleadings close. An amendment may also be made to plead a fact or matter that has occurred or arisen since the proceeding started: see r 16.51(1) and (4) of the Rules. Where the pleadings are closed, as is the case here, a party needs the Court’s leave to amend: r 16.53.

105    Following this, her Honour proceeded to consider whether the applicant should have leave to amend. It was apparent that her Honour considered (correctly, in my view, with respect) that the applicant required leave to amend even in respect of amendments falling within r 16.51(4): see, for example, Fewin (at [42]). Amendments were allowed, but her Honour did not suggest that leave was not required. Indeed, her Honour explicitly gave leave.

106    In this instance, leave was required. The amendment was very expansive. Clearly it would have been opposed. The ASOC has no standing.

107    In any event, if it be the argument, I do not accept that the alleged ASOC, if valid, could have precluded the AHRC claims. As noted, Dr Zaghloul’s argument appears to be that the alleged ASOC filed by him on 20 May 2014 enlivened s 734 of the FW Act so as to prohibit the making of his AHRC complaints so that Woodside cannot rely on the making of those complaints and the double dipping provision to prevent Dr Zaghloul from now making a general protections court application under the FW Act in his CSOC. If this be the argument, it has already, in effect, been addressed.

108    Section 734(2) of the FW Act applies only if there is a ‘general protections court application’. This is a defined provision. The alleged ASOC was not such an application. The only statutory claim in the alleged ASOC was for damages under the CCA and ‘breach of statutory duty of care’. It did not pertain to general protections. Rather, it contained an assertion that members of the AHRC had conspired with Woodside against Dr Zaghloul to defeat the general protections claim which Dr Zaghloul had sought to bring in the AHRC in 2013. The allegation was the tort of conspiracy. No claims were made under the FW Act. It did not enliven s 734 of the FW Act or preclude the making of the AHRC complaints.

In any event, it could not possibly have done so, given that the first AHRC complaint was first in time, having been made on 23 April 2014. The supposed ASOC was filed on 19 May 2014. If Dr Zaghloul was suggesting that the alleged ASOC satisfied the requirements of s 46PO of the AHRC Act so as to allow him to make the DD Act claims which he has made in his CSOC, again, such an argument has already been addressed. It would fail for substantially the same reasons. The entitlement to make an application to the Court conferred by s 46PO(1) arises only after a complaint has been terminated and the President has issued a notice in relation to the termination. The ASOC was filed on 19 May 2014, the first AHRC complaint was terminated and a notice issued on 4 June 2014. The second AHRC complaint was terminated and a notice issued on 25 May 2017. The application referred to in s 46PO(2) must be made within 60 days. The alleged ASOC was not an application alleging unlawful discrimination in any material sense. It was not an application seeking relief under the DD Act. It contained no reference whatsoever to the DD Act. There were references in the extensive annexures to broad allegations of conspiracy and breach of contract. There can be no reliance on the alleged ASOC which is deemed not to have been filed.

CLAIMS UNDER THE ACL AND IN EQUITY

109    By para 62 of the CSOC Dr Zaghloul seeks damages pursuant to the ACL or equitable compensation for conduct which he says was unconscionable. He pleads it was unconscionable for Woodside to:

    promise an improvement of the workplace environment while preparing for performance improvement plan (PIP) (at para 62(a) of the CSOC);

    impose a protracted bullying campaign (at para 62(b) of the CSOC);

    elongate these proceedings (at para 62(c) of the CSOC);

    interfere with Dr Zaghloul’s contract with his lawyers (at para 62(c) of the CSOC);

    coerce him to attend a psychiatric examination with the dismissal in mind (at para 62(d) of the CSOC);

    fail to discipline the perpetrators of conduct which constituted offences under the laws (at para 62(e) of the CSOC); and

    fund their defence in other proceedings (para 62(f)).

110    In summary, it may be seen that Dr Zaghloul, by para 62 of the CSOC pleads, seven categories of conduct said to be unconscionable within the meaning of the ACL and the general law. Woodside seeks summary judgment in respect only of the following matters:

(a)    Dr Zaghloul’s ACL claims in para 62(b), the first para 62(c), para 62(d) and para 62(e) on the ground that there is no reasonable prospect that the alleged conduct will be found to have been in trade or commerce; and

(b)    Dr Zaghloul’s ACL and general law claims in both paragraphs of 62(c) and para 62(d) on the ground that there is no reasonable prospect, having regard to the evidence, that the claims will be upheld.

The other claims in para 62, to which Woodside had originally raised objection, are not taken issue with at a summary judgment level. However, Woodside preserves its position on the issues regarding whether the pleadings falling within ‘trade or commerce’.

111    Unconscionable conduct is dealt with in ss 20-22 of the ACL.

112    Section 20 and s 21 relevantly provide:

20    Unconscionable conduct within the meaning of the unwritten law

(1)    A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.

(2)    This section does not apply to conduct that is prohibited by section 21.

Note:    A pecuniary penalty may be imposed for a contravention of this subsection

21    Unconscionable conduct in connection with goods or services

(1)    A person must not, in trade or commerce, in connection with:

(a)    the supply or possible supply of goods or services to a person (other than a listed public company); or

(b)    the acquisition or possible acquisition of goods or services from a person (other than a listed public company);

engage in conduct that is, in all the circumstances, unconscionable.

…

Conduct in ‘trade or commerce’

113    The alleged conduct pleaded in paras 62(b), 62(d) and 62(e) relates to events between 2009 and 2012 while Dr Zaghloul was still employed by Woodside (his employment being terminated with effect from 5 March 2013). The conduct pleaded in each of those paragraphs relates to Woodside’s internal relations with Dr Zaghloul and its other employees and, Woodside says, did not occur in trade or commerce, as required by s 20 and s 21 of the ACL: Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 per Heerey J (at 212-213 and 242); Barker v Commonwealth Bank of Australia (2012) 296 ALR 706 per Besanko J (at [380]-[385]) and Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505 per Buchanan J (at [181]-[196] and [334]).

114    It is clear that the conduct at paras 62(b), 62(d) and 62(e) is conduct which occurred in the course of employment, namely, the alleged bullying (at para 62(b)), the psychiatric examination (at para 62(d)) and the failure to discipline (at para 62(e)). All these alleged matters occurred during Dr Zaghloul’s employment by/at Woodside.

115    Whether each category of conduct was in trade or commerce is a question of law which may be capable of being determined summarily. In this instance, the answering of those questions does not depend on further evidence being adduced or findings of fact being made. It is open to take Dr Zaghloul’s pleadings and affidavit at their highest with such reasonable inferences as may be drawn. Resolution of those questions will be important to limiting the issues to be dealt with at a future trial, if the submissions by Woodside are correct.

116    The leading case on this topic is Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, which has been cited and followed on numerous instances. In Concrete Constructions, the majority (Mason CJ, Deane, Dawson and Gaudron JJ) identified (at 602-603)

The phrase “in trade or commerce” in s. 52 has a restrictive operation. It qualifies the prohibition against engaging in conduct of the specified kind. As a matter of language, a prohibition against engaging in conduct “in trade or commerce” can be construed as encompassing conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business. If the words “in trade or commerce” in s. 52 are construed in that sense, the provisions of the section would extend, for example, to a case where the misleading or deceptive conduct was a failure by a driver to give the correct handsignal when driving a truck in the course of a corporation’s haulage business. It would also extend to a case, such as the present, where the alleged misleading or deceptive conduct consisted of the giving of inaccurate information by one employee to another in the course of carrying on the building activities of a commercial builder. Alternatively, the reference to conduct “in trade or commerce” in s. 52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. So construed, to borrow and adapt words used by Dixon J. in a different context in Bank of N.S.W. v. The Commonwealth, the words “in trade or commerce” refer to “the central conception” of trade or commerce and not to the “immense field of activities” in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business.

(Emphasis added, citations omitted.)

117    Applying that test, in my view, it cannot possibly be said that the matters pleaded in paras 62(b), 62(d) and 62(e) are aspects or elements of activities or transactions which of their nature bear a trading or commercial character. It is quite clear, as held in Wittenberg by Buchanan J (see the analysis at [181]-[196] with which I agreed at [334]), that the focus must be on the conduct in question.

118    There are certainly cases since Concrete Constructions, including those on which Dr Zaghloul relies, where specific elements of the pleaded conduct have led courts to conclude that pleadings should not be struck out on a summary basis because of the manner in which conduct fell within the employment relationship sphere. But those cases have invariably involved features taking the conduct outside of the key realm of employment activities or transactions which, of their nature, bear a trading or commercial character. So, for example, differing views, mainly at a summary judgment level, have been expressed in relation to activities which are negotiations with an existing employee about a variation to an employment contract or negotiations with a prospective employee: Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 per Wilcox J (at 393-394), Stoelwinder v Southern Health Care Network (2000) 177 ALR 501 per Finkelstein J (at [6]), David Walker v Salomon Smith Barney Securities Pty Ltd [2003] FCA 1099 per Kenny J (at [185]-[188]) and McCormick v Riverwood International (Australia) Pty Ltd (1999) 167 ALR 689 per Weinberg J (at [28]-[31]).

119    The other category of exception pertains to conduct which would clearly have been conduct in trade or commerce had it been engaged in with a third party such as representations made by an employer in the course of taking a loan from an employee, that is to say, conduct not part of the employment relationship but to a separate commercial transaction: Chaplin v Birdogan (1998) 146 FLR 243 per Ashley J (at 249).

120    Other cases have also reinforced the need for the conduct itself to have a trading or commercial character, as reflected in the following discussion in Bride v Shire of Katanning [2016] FCA 65 (at [20]-[26]):

22    Mr Bride made clear that reliance is placed upon the ACL, which is Sch 2 of the CCA. The question which follows is whether any of the conduct asserted against the Shire was conduct ‘in trade or commerce’. It is essential that the conduct, the subject of complaint, referred to in those provisions be conduct ‘in trade or commerce’. Section 2 of the ACL effectively defines ‘trade and commerce’ as being trade or commerce within Australia or trade and commerce between Australia and places outside of Australia, including any business or professional activity (whether or not carried on for profit). This is a well-travelled area of the law. It was reviewed in some detail by the Full Court last year in Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153 per Middleton, McKerracher and Davies JJ. In particular, the Full Court set out the observations of the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 (at [30]) and said (at [31]):

It has been observed that the High Court made a deliberate choice in Concrete Constructions between a wide and narrow view of the expression “in trade or commerce” in s 52 and chose the narrow view: see Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449 per Gyles J at [44]. As such “in trade or commerce” would have a restrictive operation and confine the effect of the provision to conduct which “is itself an aspect or element of activities or transactions which, of their nature, bear a trading or a commercial character”: Concrete Constructions at 603. In Concrete Constructions, focus was placed upon “the central conception” of trade or commerce and not the “immense field of activities” in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business. As Yates J noted in Toben v Jones (2012) 298 ALR 203 at [40] and the authorities there cited, conduct “in relation to” or “in connection with” trade or commerce is not sufficient to engage the provision.

23    Concrete Constructions made clear that s 52 (the predecessor of s 18) was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage for the purpose of its overall trading or commercial business. Rather, the reference to conduct ‘in trade or commerce’ can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which of their nature bear a trading or commercial character.

24    This point was also noted by the Full Court in Nextra and in Hearn v O’Rourke (2003) 129 FCR 64, where Dowsett J said (at [29]):

… [T]he focus must be upon the conduct in question and not upon the range of activities in which a relevant corporation may be engaged. In other words, one does not simply identify the conduct in question, note that the relevant corporation is engaged in commercial activity of some kind, then look for a connection between the two. Because corporations are usually formed to engage in commercial activities, it will rarely be difficult to find such a connection. The correct approach is to determine whether or not the relevant conduct can, according to ordinary usage, be described as having occurred in the course of dealings “which, of their nature, bear a trading or commercial character”. The commercial undertakings of the corporation in question may be relevant to the exercise. However, the more important question will be whether the conduct is of a kind which is usually of a commercial nature.

25    As noted by Siopis J in Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294 (at [383]-[386] and [388]):

383    The question of whether conduct was “in trade or commerce” was considered by the High Court in Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594. In that case, it was pleaded that a foreman employed by a corporation had made a statement to another employee of the corporation about safety aspects of an air-conditioning grate on which the second employee was working, that the statement was untrue and that as a consequence of relying on the statement, the second employee had been injured and suffered loss and damage. It was contended that those circumstances gave rise to a contravention of s 52 of the Trade Practices Act. The High Court had to determine whether a statement made in those circumstances could comprise conduct “in trade or commerce” for the purpose of determining whether the prohibition in s 52 of the Trade Practices Act applied to that conduct.

384    The High Court drew a distinction between conduct “in trade or commerce” and conduct “in connection with” or “in relation to” trade or commerce. The distinction was succinctly expressed by Toohey J at 614:

Even taking such a broad view of s 52(1), the preposition “in” clearly operates by way of limitation. The question is not whether the conduct engaged in was in connexion with trade or commerce or in relation to trade or commerce. It must have been in trade or commerce. (Original emphasis)

…

26    There is nothing in the pleaded case which has any element of commerciality in the sense demanded by the expression ‘trade and commerce’. All of the allegations are either allegations concerning the Shire’s conduct in litigation or allegations concerning the Shire’s conduct in the pursuit of Mr Bride for rates.

121    The conduct pleaded in paras 62(b), 62(d) and 62(e) is conduct purely relating to internal relations between Dr Zaghloul as an employee and Woodside as his employer. It does not satisfy the Concrete Constructions test and is incapable of being characterised as conduct in trade or commerce.

122    Dr Zaghloul correctly makes the point that summary processes should not be used to stultify the development of the law and that existing authority may be overruled, qualified or further explained. This, however, is no longer a developing area of the law. There are no signs of likely changes. The concept of ‘trade or commerce’ is clear and reflects a firm policy decision taken by the High Court of Australia almost 30 years ago to adopt a specific rather than a broad ranging approach to the characterisation of such conduct. Certainly, the statutory provision will capture a great deal of conduct in trade or commerce, but it will not capture alleged bullying, psychiatric examination and discipline which arose during employment, at least in this context.

123    Similarly, in respect of the first numbered para 62(c) of the CSOC (there being two), where it is alleged that Woodside unconscionably elongated these proceedings, Woodside submits that conduct by a party in the course of litigation is also not conduct in trade or commerce, as required by s 20 and s 21 of the ACL: Little v Law Institute of Victoria (No 3) [1990] VR 257 per Kaye and Beach JJ (at 273), quoted with approval in LT King Pty Ltd v Besser (2002) 172 FLR 140 per Osborn J (at [27]).

124    In Bride, I summarily dismissed claims under ss 18, 20 and 21 of the ACL on the basis that carrying on litigation was ‘certainly not’ conduct in trade or commerce (at [31] and [33]). But there are ample similar cases upon which support can be drawn for this conclusion in addition to those relied upon by Woodside: see, for example, Augment Communications Pty Ltd v Sedgwick [2008] NSWDC 251 (at [80], [85], [87]-[99] and the cases therein cited).

125    It may be accepted that there is no absolute bright line rule of exclusion or principle to the effect that litigious conduct cannot be conduct engaged in trade or commerce. The appropriate characterisation depends on the context. It may be that in some circumstances companies in the building and construction industry could seek to use litigation as a tool or an instrument to pursue commercial gain. While I would personally doubt, with respect, whether doing so falls into the Concrete Constructions category, an alternative view is open: see Probuild Constructions (Aust) Pty Ltd v Shade Systems Ltd [2018] NSWSC 540 per McDougall J (at [21]-[24]). This proceeding, however, is certainly not a case on any view in which it could be said that Woodside, in raising a defence designed to shorten litigation, was conducting it as a means of carrying on a commercial aim. It follows that the factually hopeless claim of elongating these proceedings, whether made under s 20 and s 21 of the ACL or the general law, must be summarily dismissed.

126    It follows that I accept Woodside’s arguments that it is appropriate that summary judgment be granted in respect of the claims pleaded in para 62(b), the first para 62(c), para 62(d) and para 62(c) on the basis that there is no reasonable prospect the alleged conduct will be found to have been in trade or commerce.

Absence of evidence

127    The second basis upon which Woodside challenges the pleadings in para 62, specifically both paragraphs of 62(c) and para 62(d), is on the basis that the claims have no reasonable prospect of success when regard is had to the evidence as it stands.

128    There is no doubt, as Dr Zaghloul stresses, that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that part of the proceeding will have no prospect of success. In examining whether this is so, the Court should draw all reasonable inferences in favour of the non-moving party, but only reasonable inferences.

129    This area was covered exhaustively by the Full Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Finkelstein J (at [23]) and per Gordon J (at [132]-[134]). It has separately been examined by the Full Court in George v Fletcher [2010] FCAFC 53 per Ryan and Logan JJ (at [75]).

130    In Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171, Gilmour J also reviewed the authorities and noted (at [20]) that the mere existence of a factual dispute is not necessarily a bar to a grant of summary judgment. Rather, the Court is required to evaluate the quality and weight of the evidence. When this leads to a conclusion that the version of the facts asserted by the party resisting the motion is either so improbable, or fanciful, or trifling, or implausible, or tenuous, then summary judgment must be granted. So understood, there is, in such a case, no real issue of fact. Here the contentions raised are entirely fanciful.

131    Woodside says as to the first para 62(c), there is nothing pleaded and no evidence to suggest that Woodside has ‘elongated these proceedings’, let alone in a manner that is unconscionable. The only conduct to which Dr Zaghloul seemingly points to is Woodside’s advancing a defence based on s 93K(4)(c) of the Compensation Act, pleaded in para 38 of the CSOC. Dr Zaghloul says the argument should never have been run because the section did not apply to him.

132    Woodside makes the point that its argument regarding s 93K had considerable merit. In Zaghloul (No 5) (at [120]-[123]) in deciding the application in Dr Zaghloul’s favour, Gilmour J concluded that he agreed with the minority decision of Newnes JA and with Woodside but was not able to say that the majority (Pullin and Murphy JJA) in St John of God Health Care Inc v Austin (2014) 46 WAR 208 were ‘plainly wrong’ and so was bound to follow the majority decision.

133    On appeal in Woodside Energy Ltd v Zaghloul (2015) 234 FCR 198, the Full Court (per Siopis, Rares and McKerracher JJ) said (at [29]) that although there was ‘much to be said’ in support of the alternative view (i.e. Woodside’s argument), it also was not persuaded that the decision of the majority in Austin was ‘plainly wrong’. Woodside contends that while their arguments as to s 93K were unsuccessful at first instance and on appeal, the argument they ran was not unmeritorious. Further Dr Zaghloul raised several contentions which were abandoned only at the commencement of the appeal hearing on 4 March 2015. Woodside suggests, in light of this background, their conduct regarding the s 93K of the Compensation Act cannot be characterised as an unconscionable elongation of these proceedings.

134    The assertion about elongating these proceedings contained in the first section of para 62(c), plainly, will never be made out. I have set out the reasons as to why this is so in relation to the principles regarding ‘trade and commerce’, but even more so, pleading a contention designed to shorten proceedings such as the ‘s 93K defence’, whether successful or not, and it was certainly regarded as being arguable, could neither be misleading or deceptive conduct or unconscionable conduct. The paragraph ought to be struck out.

135    Paragraph 38 relates to the allegation that Woodside acted unconscionably by elongating the proceedings. It will also be struck out for the reasons given.

136    As to the claim under the second paragraph of 62(c)(ii) and also the related paras 32, 33 and 39 of the CSOC, alleging interference with Dr Zaghloul’s former lawyers by Woodside, this claim is entirely unsustainable. In short, Woodside’s contention is that Dr Zaghloul’s claims alleging misconduct by his former solicitors should be dismissed on the basis that he has no reasonable prospect of success. There is no evidence to support them and such serious allegations cannot be sustained without evidence and in circumstances where the allegations, with the exception of those concerning one firm, have previously been made and roundly rejected as an abuse of process.

137    Woodside stresses that in the course of these proceedings, Dr Zaghloul has made a number of scandalous allegations against various solicitors and counsel engaged by him, generally to the effect that they conspired with or were influenced by Woodside to act against his interests. In Zaghloul v Woodside Energy Ltd (No 2) [2013] FCA 947, Gilmour J also dealt with those allegations finding that there was no evidence to support them. He described them as ‘scandalous, unwarranted and baseless attacks’ and as ‘undermin[ing] the proper administration of justice’: (at [78]). His Honour made suppression orders because of the scandalous nature of the allegations against the law firms: (at [70] and [78]). Dr Zaghloul was refused an extension of time for leave to appeal from that decision by Barker J (Zaghloul v Woodside Energy Limited [2014] FCA 306), ordering Dr Zaghloul to pay Woodside’s costs on an indemnity basis and making further suppression orders.

138    Further, Dr Zaghloul has previously attacked the conduct of Woodside’s lawyers in relation to the proceedings by making an interlocutory application seeking to restrain the lawyers from continuing to act for Woodside. On 22 December 2017, in dismissing that application, Gilmour J found the application was ‘wholly devoid of merit’, that there was ‘not a scintilla of material to support the allegations’ and that the material before the Court disclosed that the solicitors and senior counsel had ‘at every turn ... displayed high standards of legal competence and integrity’: Zaghloul v Woodside Energy Limited (No 6) [2017] FCA 1504 (at [2]-[3]). Gilmour J also found that some of Dr Zaghloul’s submissions had misrepresented the position as to what issues had been before the Court earlier in the proceedings as well as the position taken in relation to them by Woodside through its lawyers (at [4]).

139    Dr Zaghloul submits that the Court should draw inferences from the fact that lawyers ceased acting on his behalf after communicating with Woodside’s representatives. Dr Zaghloul says that because his then lawyer (whom I do not propose identifying), advised him to consent to a transfer of the proceedings to Perth, it is open to infer that Woodside interfered with Dr Zaghloul’s contract with that lawyer’s firm. I firmly reject the contention that any such inferences are open to be drawn or are appropriate for the Court to draw.

140    Dr Zaghloul alleges that because his former lawyers when drafting a statement of claim made reference to a Woodside employee whom Dr Zaghloul had not previously mentioned, it is reasonable to infer his former lawyers met with the Woodside employee to Dr Zaghloul’s detriment. However, Woodside notes, it is not likely that the former lawyers would have mistakenly described the position of the employee had they met with him. These errors were identified by Dr Zaghloul and suggest against any prior interaction, let alone interference.

141    Dr Zaghloul also contends that it is open to infer that Woodside interfered with his contract with another firm of solicitors, causing them to give the advice it did. He bases this on a letter, which he received from those solicitors on 30 May 2012, stating ‘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’. Notwithstanding the fact that in the very same letter those solicitors advised him that there was no conflict of interest which impeded them from acting on behalf of Dr Zaghloul. This topic was expressly considered by Gilmour J in Zaghloul (No 2) (at [54]-[56]) and roundly rejected as constituting any possible form of misconduct.

142    Woodside’s submissions on this point are persuasive:

(1)    The particular allegation that in late April 2012 Woodside had retained Dr Zaghloul’s then lawyers was considered by Gilmour J and found to be, self-evidently, without merit: Zaghloul (No 2) (at [54]-[56]).

(2)    The allegation has also been denied by Woodside.

(3)    The allegation contained in para 32 of the CSOC suggests serious misconduct by Dr Zaghloul’s then lawyers and senior counsel retained by that law firm. The allegation has already been found to be baseless. It is an abuse of process for Dr Zaghloul to seek to make the same allegation without evidence. Woodside cites Chan v Harris (No. 2) [2010] FCA 1393 (at [66]-[68]), where Cowdroy J accepted that the making of allegations of misconduct against solicitors in the absence of any evidence was scandalous and was tantamount to an abuse of the Court’s process.

(4)    Dr Zaghloul’s claims alleging misconduct by his former solicitors should be dismissed either on the basis that he has no reasonable prospect of success or on the basis that the claims are an abuse of process.

143    I accept the submissions for Woodside that the inferences which Dr Zaghloul asks the Court to draw in this case and which allege serious misconduct by several law firms are not only unreasonable, but they are also implausible. Indeed, the serious allegations totally lack clear and cogent evidence which would be necessary for such inferences to be drawn. It is an abuse of process to make such scandalous allegations without evidence: see, for example, Chan (at [66]-[68]). This is particularly so where most of the allegations have previously been considered and roundly rejected. The allegations under para 62(c)(ii) will be struck out and summarily dismissed. The remaining related paragraphs, paras 32, 33 and 39, should also be struck out.

144    As to para 62(d) concerning Dr Zaghloul’s attendance at psychiatric examinations, Woodside’s submissions are also persuasive:

(1)    It is hardly unconscionable for an employer to seek to have an employee (who has been absent from work through illness for more than a year) medically assessed for the purpose of determining the employee’s fitness and ability to return to work and their future employment status.

(2)    Dr Zaghloul has not pleaded to any facts from which it may be inferred that he was under a special disability that was sufficiently evident to Woodside to make it prima facie unfair or unconscientious to require him to attend an independent psychiatric examination.

(3)    Dr Zaghloul pleads (at para 31 of the CSOC) only that Woodside disregarded ‘his former lawyer’s advice’. There is no plea or suggestion that Woodside was provided with medical advice as to the risk of requiring Dr Zaghloul to attend a psychiatric examination.

(4)    It is notable in this regard that two of the medical opinions annexed to Dr Zaghloul’s affidavit affirmed on 12 September 2018 were obtained by him at the same time that he was objecting to being examined by a psychiatrist nominated by the Woodside. It does not appear from those opinions that Dr Zaghloul expressed any concerns to those specialists about having to attend Woodside’s nominated psychiatrist.

(5)    There was no medical opinion provided to Woodside suggesting that attending an examination by a psychiatrist nominated by it would be detrimental to Dr Zaghloul. Further, Dr Zaghloul attended monthly appointments with Woodside’s nominated consultant occupational physician, Dr Campbell, without issue.

145    Woodside argues that there is nothing from which an inference could be drawn that Mr Masson and through him, Woodside, acted unconscionably in the sense identified by the High Court (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) in Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392. There it was observed (at [161]):

Equitable intervention to deprive a party of the benefit of its bargain on the basis that it was procured by unfair exploitation of the weakness of the other party requires proof of a predatory state of mind. Heedlessness of, or indifference to, the best interests of the other party is not sufficient for this purpose. The principle is not engaged by mere inadvertence, or even indifference, to the circumstances of the other party to an arm’s length commercial transaction. Inadvertence, or indifference, falls short of the victimisation or exploitation with which the principle is concerned.

(Emphasis added.)

146    I accept that even if any of the claims in para 62 of the CSOC could be brought within s 20 or s 21 of the ACL or the unwritten law, most of them are not supported by any material facts to establish the conduct was unconscionable and, therefore, would have no reasonable prospects of success in any event.

147    For all these reasons, Dr Zaghloul’s identified claims under the ACL and the unwritten law should be dismissed on the basis that they have no reasonable prospects of success.

FURTHER CHALLENGES

148    The surviving paragraphs include a plea for defamation in para 30. There is clearly no defamation and certainly no defamation identified. No material facts are pleaded. It is at least doubtful whether it is open to conclude on the bare material facts that the Court would have jurisdiction. While defamation claims are not uncommonly pursued in this Court, there needs to be a necessary federal link and/or a common substratum of facts. No attempt has been made to identify the jurisdictional foundation. Woodside separately contends there could not be a claim in defamation without leave of the Court pursuant to s 23 of the Defamation Act 2005 (WA), given the defamation claim will be struck out. In light of the hopelessness of the claim for other reasons, it is unnecessary to determine this particular, but quite interesting, point. Dr Zaghloul has previously sought to pursue Woodside in defamation as is apparent from the Supreme Court of Western Australia Court of Appeal decision in Zaghloul v Woodside Energy Ltd [2018] WASCA 191.

149    Paragraph 42 does not relate to any cause of action or set out any material facts. Dr Zaghloul accepts that the relevant costs have not been taxed in his affidavit affirmed on 11 September 2018. Those are the costs of the Full Court decision in which Dr Zaghloul did succeed. Until they are assessed, Woodside is not required to pay them: r 40.12 of the Rules.

CONCLUSION

150    It follows that Woodside has succeeded on all aspects of its application as slightly modified in the course of argument. In those circumstances, it is appropriate for Woodside to produce a minute of the orders it says it is entitled to as a result of these reasons.

Associate:

Dated:    4 June 2019