FEDERAL COURT OF AUSTRALIA

Zaghloul v Woodside Energy Limited (No 8) [2019] FCA 971

ORDERS

THE COURT ORDERS THAT:

1.    Summary judgment be given for the respondent in relation to:

(a)    all of the claims in paragraphs 48 to 61, the first paragraph 62(c), the second paragraph 62(c) and paragraph 62(d); and

(b)    the claims made pursuant to the Australian Consumer Law in paragraphs 62(b) and 62(e);

of the concise statement of claim, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

2.    Paragraphs 30, 32, 33, 38, 39 and 42 of the concise statement of claim be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth).

3.    Order 5 of the orders made on 4 June 2019 is set aside and in lieu thereof, the applicant pay the respondent’s costs of the respondent’s interlocutory application dated 28 November 2018 and of the case management hearing on 3 December 2018.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    On 4 June 2019, I published reasons for allowing a summary judgment and strike out application pursued by the respondent, Woodside Energy Limited (ACN 005 428 986): Zaghloul v Woodside Energy Limited (No 7) [2019] FCA 818.

2    By its application, Woodside sought the following relief:

1.    Pursuant to section 31A(2) of the Federal Court of Australia Act 1976 (Cth) and Rule 26.01 of the Federal Court Rules 2011 (Cth) judgment be given for the respondent in relation to claims in paragraphs 48 to 62 of the concise statement of claim.

2.    Pursuant to Rule 16.21 of the Federal Court Rules 2011 (Cth) paragraphs 30, 32, 33, 38, 39 and 42 of the concise statement of claim be struck out.

3.    Costs.

3    For reasons set out in Zaghloul (No 7), I considered that the application should be allowed and that the relief pursued should be granted.

4    I made orders that Woodside provide a minute of orders giving effect to the reasons and Dr Zaghloul have leave to raise any objections to the minute.

5    Woodside’s minute substantially mirrors its application and is in the following terms:

1.    Summary judgment be given for the respondent in relation to:

(a)    all of the claims in paragraphs 48 to 61, the first paragraph 62(c), the second paragraph 62(c) and paragraph 62(d); and

(b)    the claims made pursuant to the Australian Consumer Law in paragraphs 62(b) and 62(e);

of the concise statement of claim, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

2.    Paragraphs 30, 32, 33, 38, 39 and 42 of the concise statement of claim be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth).

3.    Order 5 of the orders made on 4 June 2019 is set aside and in lieu thereof, the applicant pay the respondent’s costs of the respondent’s interlocutory application dated 28 November 2018 and of the case management hearing on 3 December 2018.

6    The variation between the minute and the orders sought in the application is due to Woodside not pressing its application for summary judgment in respect of para 62(a) and para 62(f): see Zaghloul (No 7) (at [110]).

7    Upon receipt of Woodside’s minute, Dr Zaghloul inquired by email as to whether I would be minded to consider, as part of his objections, an amendment to the proposed concise statement of claim. The parties were advised by reply email that I only intended to consider entering orders giving effect to Zaghloul (No 7), not programming orders or requests for further amendments to pleadings. I considered it inappropriate to do so in circumstances where I am not the docketed judge.

8    Dr Zaghloul has now filed his objections to Woodside’s minute complaining that Woodside seeks to expand the judgment to summarily dismiss all of the claims. He says that Woodside’s success in its objection to the jurisdiction was not on the grounds that Dr Zaghloul had no reasonable prospects of success in prosecuting all of the claims based on the facts, but that the pleaded causes of action should be struck out.

9    In large measure, this contention misconceives the reasons for allowing Woodside’s application. Most claims were fundamentally flawed. The objections raised by Dr Zaghloul are accompanied by a request seeking leave to re-plead all the matters which were struck out. This is despite the parties being advised that I would not be entertaining such requests.

10    The order sought for leave to re-plead is supported by the following information:

Woodside is yet to file and serve a defence. Until then, “generally speaking … the facts alleged in the statement of claim should be accepted as true and, as a general rule, a plaintiff is entitled as of right to have her case heard, to have the facts found and then to argue the question of law as it arises before the trial Judge upon the facts as found. The pleading should only be struck out where it can be seen from the outset that, however the facts might be found, there is no basis for the legal conclusion contended for by the plaintiff.” [Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270 at [29] per Steytler P (Citations omitted) [Emphasis added] ]

This Honourable Court has not found that the facts themselves in paragraphs 48, 49, 52 to 61, 62(a), 62(b) had no prospect of success, and Zaghloul seeks leave to re-plead those facts under causes of action in negligence or breach of contract:

•    Fact: the EMAIL conveyed findings of fault and a political opinion; how a corporate citizen should conduct itself in society (paragraphs 48, 49). A summary judgement of this fact could be used by Woodside to prohibit Zaghloul from relying on the EMAIL as the trigger for the alleged wrongs and pursuing a claim for victimisation in breach of contract;

•    Fact: Woodside dismissed Zaghloul at the heels of his claim for workers’ compensation and commencement of this proceeding (paragraph 50). A summary judgement of this fact could be used by Woodside to prohibit Zaghloul from pursuing a claim for victimisation by dismissal following his legal actions in breach of breach of its Code of Conduct;

•    Fact: Woodside organised to dismiss Zaghloul using its (inapplicable) salary continuance policy and insisting on the psychiatric examination at a time when he had clearly not reached maximum medical improvement (paragraph 52). A summary judgement of this fact could be used by Woodside to prohibit Zaghloul from pursuing a claim in breach of its Code of Conduct and operating Standards and Policies;

•    Fact: Woodside injured Zaghloul by causing a recognised psychiatric injury or its aggravation; reduction of pay; or removal of his workload (paragraph 53). A summary judgement of this fact could be used by Woodside to prohibit Zaghloul from pursuing a claim in negligence and breach of contract;

•    Fact: Woodside removed Zaghloul’s Technical Authority role without consultation or agreement, reduced his job security, status, rank, or prestige and disappointed his expectations of an extended career in engineering (paragraph 54). A summary judgement of this fact could be used by Woodside to prohibit Zaghloul from pursuing a claim in breach of contract;

•    Fact: Woodside subjected Zaghloul to protracted bullying conduct (paragraph 55, 62(b)). A summary judgement of this fact could be used by Woodside to prohibit Zaghloul from pursuing a claim for victimisation in breach of its Code of Conduct or Diversity Guidelines;

•    Fact: Woodside dismissed Zaghloul by an email (paragraph 56). A summary judgement of this claim could be used by Woodside to prohibit Zaghloul from pursuing a claim in breach of its Code of Conduct;

•    Fact: Woodside ceased Zaghloul’s salary continuance payment after he refused to attend psychiatric examination because of the “high risk” of return to suicide thoughts, and dismissed him using that report (paragraphs 57, 58, 59),

•    Zaghloul is now prohibited from relying on the Disability Discrimination Act as a cause of action for indirect discrimination (paragraph 59). But, the facts below establish the element of foreseeability in a cause of action for negligent infliction of mental harm [Woodside submitted (reasons for the judgement at [143](33) that “There was no medical opinion provided to Woodside suggesting that attending an examination … would be detrimental”. But in the letter dated 24 May 2012. Zaghloul’s former lawyer had proposed obtaining such medical opinion and had had no reply from Woodside. Instead, Woodside ceased his salary continuance payment on 1 June 2012 to force him to attend the psychiatric examination] As the High Court of Australia said in Koehler v Cerebos (Australia) Ltd, “the question of reasonable foreseeability [in a claim for mental harm] is determinative.”:

•    On 25 May 2012, Zaghloul’s former lawyer advised Woodside of the “high risk” of deterioration of the psychiatric injury, and stated that “Our client is willing to attend to see a psychiatrist who is not currently part of his medical team to obtain an opinion that there is risk of deterioration of his health … Please let us know if you would like our client to obtain this opinion.”

•    On 28 May 2012, Dr Campbell, Woodside’s occupational physician who had examined Zaghloul on monthly basis between July 2011 to December 2012, advised Woodside that Zaghloul was “finding it threatening due to the association with Woodside and concerns this will compromise his recover”;

•    Woodside ceased Zaghloul’s salary continuance payment effective 1 June 2012 because he refused to attend the psychiatric examination;

•    On 7 June 2012, Zaghloul reluctantly agreed to attend the psychiatric examination and complained about the breach of duty;

•    On 7 August 2012, Zaghloul attended the psychiatric examination;

•    On 9 August 2012, Zaghloul was admitted to a psychiatric hospital and underwent Electro Convulsive Treatment (ECT) and suffered cardiac arrhythmia and severe memory loss, defined as serious adverse events from ECT in s 201 of the Mental Health Act 2014 (WA).

•    A summary judgement of those facts (at paragraphs 57 to 59) could be used by Woodside to prohibit Zaghloul from pursuing a claim for breach of its Code of Conduct as well as establishing foreseeability as a key element of negligence;

•    Fact: Woodside failed to enforce its Policies and the long delay in the investigation of his allegations of bullying (paragraphs 60, 61). A summary judgement of this claim could be used by Woodside to shut the door for a breach of contract altogether.

Paragraph 30: Zaghloul did not plead the contents of the Meridian report due to the limitation on the number (5) of pages in a Concise Statement of Claim. He seeks leave to re-plead this paragraph, not as a claim for defamation but to establish elements of foreseeability, Zaghloul’s technical credibility as the Technical Authority, and elements of breach of contract, in the following terms:

On 19 December 2011, Woodside advised the receipt of a “quite extensive report” from Meridian. In the Meridian report:

•    “Ms Melissa Hill … discussed [with Mr van Lent] both Dr Zaghloul’s mental state and his technical capabilities.”;

•    “Mr van Lent stated ‘I do know and I had heard he was not mentally stable. I think that came out even before I joined the company [in 1999].”;

•    “Mr van Lent … stated that in his opinion, based on the evidence he had seen, Dr Zaghloul was rightly rated as a low performer.”

•    “Ms Crofts … had been present in meetings when Dr Zaghloul had made inappropriate comments indicating to her that he had no practical knowledge of issues and his knowledge all seemed theoretical … she was aware that there was ‘bad blood’ Between Dr Zaghloul and … Transfield Worley. In her opinion … Dr Zaghloul used his position to make things difficult for Transfield Worley. “;

•    “Mr Haggerty… discussed Dr Zaghloul with Mr Hamblin … if Dr Zaghloul was qualified to do the job that he was employed to do … eventually the TA role was taken off him and given to Mr Male”

•    “Mr Hamblin required the competency test as he had doubts around Dr Zaghloul’s technical ability which he stated he believed had been fuelled by Mr Male but this was a routine process at Woodside.”;

•    “Mr Haggerty … stated that there was recognition that it [Performance Improvement Plan] could also be used to get rid of people and used to just tick the box.”

•    “Mr Haggerty … stated that whatever decision had been made [by the assurance panel], if it was a negative one they would blame Dr Zaghloul … even when decisions had been made by the whole panel if the decision was not the one that was required Dr Zaghloul was the one who got the blame … ‘they picked on Hassan … they just needed someone to blame I suppose.’

•    “Mr Male stated that … two members of staff were leaving Woodside because of … Hassan Zaghloul … on one occasion in front of a number of senior personnel (Mr Hamblin was present), Dr Zaghloul has raised a point regarding safety on the North Rankin Platform which highlighted a lack of basic understanding. Mr Male stated that had been amazed at the comment made by Dr Zaghloul and … had suggested to Mr Hamblin that Dr Zaghloul should complete a competence check … Mr Male then completed some background checks … and spoke to staff from companies that had employed Dr Zaghloul … raised further concerns about Dr Zaghloul’s ability in his role.”

•    “Mr Brameld stated that … Dr Zaghloul had been terminated from his employment at Transfield Worley … it was very obvious that he had a strong dislike for Transfield Worley and he believed a lot of his challenges were due to the dislike of Transfield Worley … throughout 2010 (he could not recall the exact dates) Dr Zaghloul had made some bad decisions in his role as TA … . Mr Brameld described him as ‘a grenade thrower … he raises the issue and thinks that is the right thing to do, whilst he needs to … guide and push it through to a conclusion’.”

•    “According to Ms Hill … the issues around Dr Zaghloul had got to a crisis point and that she had to sort him out … Dr Zaghloul had … withheld some information and not brought the risk to the attention of the appropriate people.’

•    “Ms Mellisa Hill … stated that she had observed and believed that the way that Dr Zaghloul had dealt with other people, was in itself quite serious bullying … she could not continue having senior engineers almost in tears as they were so distressed due to the behaviour that they received from him … engineers … bullied by Dr Zaghloul would have just left Woodside rather than do anything about it”;

•    “Mr Charlton explained that … Mr Male had been concerned that Dr Zaghloul could not grasp some very fundamental engineering concepts … probably on the NRA.”;

•    “According to Mr Davies, Dr Zaghloul had not agreed with world experts … at one point a project was delayed for three years to Dr Zaghloul’s … he had not left Woodside because of Dr Zaghloul but he described him as ‘a pebble in my shoe … he stopped me walking’.”

(Emphasis in original, footnotes omitted.)

11    Woodside is entitled to the relief it seeks. I am not satisfied that Dr Zaghloul should have leave to re-plead as set out. This is in part based on the fact that Dr Zaghloul has now attempted unsuccessfully to advance his various claims on several occasions before various judges and the Full Court of this Court. He does still have remaining claims in the concise statement of claim which have not been struck out. No good reason is shown why Dr Zaghloul should be permitted indefinitely to use the processes of this Court to advance claims which cannot be sustained, either as a matter of substantive law, or which have no realistic prospects of success within the meaning of s 31A of the Federal Court of Australia Act 1976 (Cth).

12    If Dr Zaghloul wishes to apply for leave to amend by way of further pleading, that is a matter for the docketed judge who would no doubt require, at the very least, to see a minute of any proposed further pleading. I am not intending to encourage such a course.

13    The submissions by Dr Zaghloul would have the effect, pointlessly, of reopening entirely the contentions in Zaghloul (No 7). That is not a course that is permissible.

14    The Woodside minute mirrors almost precisely the successful terms of its application as amended. As Woodside entirely succeeded, the relief it seeks is appropriate.

Associate:

Dated:    20 June 2019