FEDERAL COURT OF AUSTRALIA Zaghloul v Woodside Energy Limited [2014] FCA 306 Citation: Zaghloul v Woodside Energy Limited [2014] FCA 306 Parties: DR HASSAN ZAGHLOUL v WOODSIDE ENERGY LIMITED ACN 005 482 986 DR HASSAN ZAGHLOUL v WOODSIDE ENERGY LIMITED ACN 005 482 986 File numbers: WAD 492 of 2013 WAD 40 of 2014 Judge: BARKER J Date of judgment: 28 March 2014 Catchwords: PRACTICE AND PROCEDURE – application for extension of time for leave to appeal – application for leave to appeal – whether proceeding should be transferred to New South Wales district registry – allegation of apprehended bias – whether applications are an abuse of process – whether suppression and non-publication orders should be made COSTS – whether indemnity costs should be ordered Legislation: Federal Court of Australia Act 1976 (Cth) s 37AG Federal Court Rules 2011 (Cth) Cases cited: Zaghloul v Woodside Energy Limited (No 2) [2013] FCA 947 Zaghloul v Woodside Energy Limited (No 3) [2014] FCA 173 Date of hearing: 28 March 2014 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 45 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr J Blackburn Solicitor for the Respondent: Ashurst Australia IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 492 of 2013 BETWEEN: DR HASSAN ZAGHLOUL Applicant AND: WOODSIDE ENERGY LIMITED ACN 005 482 986 Respondent JUDGE: BARKER J DATE OF ORDER: 28 MARCH 2014 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The interlocutory application of the applicant filed 31 December 2013 in WAD492/2013 be dismissed with indemnity costs, to be taxed if not agreed. 2. The following documents or materials are the subject of a suppression order and non-publication order hereby made prohibiting the publication or other disclosure of the material therein that relates to these proceedings before the Court or information lodged with or filed in, or held by the Court on the ground that the orders are necessary to prevent prejudice to the proper administration of justice: (a) The affidavit of Dr Hassan Zaghloul in the matter of WAD492/2013 dated 27 September 2013 and filed in the Court on 31 December 2013. (b) The affidavit of Dr Hassan Zaghloul in the matter of WAD492/2013 dated 16 December 2013 and filed in the Court on 31 December 2013. (c) The transcript of the hearing before Justice Barker in these matters of 28 March 2014. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 40 of 2014 BETWEEN: DR HASSAN ZAGHLOUL Applicant AND: WOODSIDE ENERGY LIMITED ACN 005 482 986 Respondent JUDGE: BARKER J DATE OF ORDER: 31 MARCH 2014 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The interlocutory application of the applicant filed 26 February 2014 in WAD40/2014 be dismissed with indemnity costs, to be taxed if not agreed. 2. The following documents or materials are the subject of a suppression order and non-publication order hereby made prohibiting the publication or other disclosure of the material therein that relates to these proceedings before the Court or information lodged with or filed in, or held by the Court on the ground that the orders are necessary to prevent prejudice to the proper administration of justice: (a) The affidavit of Dr Hassan Zaghloul in the matter of WAD40/2014 dated 24 February 2014 and filed in the Court on 26 February 2014. (b) The transcript of the hearing before Justice Barker in these matters of 28 March 2014. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 492 of 2013; WAD 40 of 2014 BETWEEN: DR HASSAN ZAGHLOUL Applicant AND: WOODSIDE ENERGY LIMITED ACN 005 482 986 Respondent JUDGE: BARKER J DATE: 28 MARCH 2014 PLACE: PERTH REASONS FOR JUDGMENT 1 In 2012, Dr Zaghloul commenced a proceeding in the Australian Capital Territory (ACT) district registry of the Court, which may be called the main proceeding, against Woodside Energy Limited alleging misleading and deceptive conduct, bullying and harassment in breach of express and implied terms of an employment contract, as well as other breaches of contract and breach of a tortious duty of care owed to him. 2 On 21 November 2012, Foster J made orders in the ACT district registry that the whole of the proceeding be transferred to the Western Australian (WA) district registry of the Court. The matter was allocated to the docket of Gilmour J. 3 On 17 April 2013, Woodside applied for summary judgment in the proceeding. 4 Soon after Dr Zaghloul applied for urgent discovery in relation to Woodside's summary judgment application. 5 The summary judgment application was listed to be heard on 16 May 2013. However on that day a notice of the appointment of new solicitors acting for Dr Zaghloul was filed and an adjournment of the summary judgment application was sought on that basis. An adjournment was granted to 17 June 2013. 6 Then, on 1 June 2013 Dr Zaghloul filed an application for orders that Gilmour J recuse himself from the proceeding and for the proceeding to be transferred to the Victorian district registry of the Court. 7 On 18 September 2013, Gilmour J dismissed that application. See Zaghloul v Woodside Energy Limited (No 2) [2013] FCA 947. 8 So far as the application to transfer the matter to the Victorian district registry was concerned, Gilmour J noted that Dr Zaghloul's consent to the transfer to the WA district registry was made by letter signed by him and addressed to him by his then lawyers and it was difficult to discern any evidence of pressure upon him to consent to the transfer. His Honour found there was no sound reason for a transfer order to be made to Victoria, in light of the residence of the parties and the witnesses, the expense to the parties, inconvenience to the witnesses and the place where the alleged cause of action arose. 9 So far as the application to recuse himself was concerned, Gilmour J rejected the numerous assertions made against him and observed that Dr Zaghloul had been granted considerable indulgences across the various hearings in the case and that many of the allegations made stemmed from his lack of understanding of the law and the procedures of the Court. 10 Gilmour J also concluded that a non-publication and suppression order should be made in light of scandalous allegations in affidavits, submissions and the transcript in relation to the interlocutory application made against various non-parties. 11 Dr Zaghloul subsequently, as a self-represented party, sought to appeal against the decision of Gilmour J made 18 September 2013. In the event he was just out of time under the Federal Court Rules 2011 (Cth) for making an application for leave to appeal against the interlocutory judgment. Instead of applying to extend the time for seeking leave to appeal, Dr Zaghloul brought proceedings for judicial review of the decision of a Deputy District Registrar of the Court in the WA district registry refusing to receive the leave to appeal application out of time. 12 Ultimately, on 16 December 2013, I dismissed Dr Zaghloul's judicial review proceeding, effectively with his consent, on the basis that he would file and serve an interlocutory application to extend the time for applying for leave to appeal the earlier decision of Gilmour J, and for leave to appeal. 13 On 31 December 2013, Dr Zaghloul duly filed an application for extension of time and leave to appeal. That application is opposed by Woodside and now comes before me for hearing and determination in WAD492/2013. 14 It also transpires, however, that on 28 December 2013, three days before Dr Zaghloul filed the extension application in WAD492/2013, he again applied in the main proceeding before Gilmour J for an order that the proceeding be transferred, this time to the New South Wales (NSW) district registry, and in particular into the docket of Foster J, the judge who made the initial transfer order. 15 On 13 February 2014, Gilmour J dismissed this second transfer application. See Zaghloul v Woodside Energy Limited (No 3) [2014] FCA 173. His Honour found it was an abuse of process for Dr Zaghloul to again apply to the Court for the proceeding to be transferred, especially as he relied on the same grounds as in his earlier application. His Honour ordered indemnity costs against Dr Zaghloul in these circumstances. 16 On 26 February 2014, Dr Zaghloul sought leave to appeal against the decision of Gilmour J of 13 February 2014 refusing to transfer the main proceeding to the NSW district registry. That application is also opposed by Woodside and now also comes before me for hearing and determination in WAD40/2014. 17 The primary question is whether Dr Zaghloul should have the extension of time and leave to appeal in WAD492/2013 and leave to appeal in WAD40/2014. 18 Secondary questions of indemnity costs and suppression and non-publication orders arise in the event the applications are refused. Should there be an extension of time and leave to appeal? 19 In WAD492/2013, the grounds for application for extension of time and leave to appeal are stated to be: (1) Misconduct. (2) Conspiracy. (3) Perverting the course of natural justice. 20 The application is supported by an affidavit of Dr Zaghloul affirmed 27 September 2013 and filed in the Court 31 December 2013, as well as a further affidavit made 16 December 2013 in Egypt and filed 31 December 2013. 21 In a written outline of submissions dated 2 March 2014 in WAD492/2013, Dr Zaghloul says that he seeks to amend the orders sought in order to transfer the main proceeding to the docket of Foster J in New South Wales, instead of Victoria. He gives reasons concerning legal fees for the change of preference for the proceeding to be dealt with in New South Wales, rather than Victoria. 22 He says that the orders he seeks would be best rationalised to docket the case back to Foster J "which reverses the outcome of the conspiracy to transfer the case to Perth and enable misconducts and denial of natural justice, procedural fairness and fair hearing in the Court of Justice Gilmour". 23 He adds that "in the best interest of natural justice, it is prayed that the Appellant's request to kindly amend the transfer of these proceedings to his Honour, Justice Foster Court". 24 In effect, the applications made in WAD492/2013 and WAD40/2014 are one and the same, as Dr Zaghloul recognises by seeking to amend the order that he seeks in WAD492/2013. 25 The grounds of the application for leave to appeal in WAD40/2014 are in summary that: (1) Gilmour J erred by taking into account extraneous and irrelevant matters and by overlooking the evidence he should have considered. (2) The decision of Gilmour J is attended with sufficient doubt to warrant reconsideration on appeal. (3) Substantial injustice would result if leave were refused "allowing conspiracy perpetrators to get away with it". (4) Reconsideration of the matter to appeal the decision "would hopefully have the benefit of arresting the appellant deteriorating psychiatric and physical injuries, which the respondent accepted liability for". (5) Granting leave to appeal "is in the best interest of the public as it exposes bullying which costs the Australian economy up to $36 billion a year in addition to the abuse of authority when perpetrators are senior executives". 26 Dr Zaghloul seeks to rely on matters set out in his affidavit dated 24 February 2014 and filed in WAD40/2014. 27 In that affidavit, Dr Zaghloul repeats the ground that Gilmour J erred in making his decision by failing to take into account some relevant considerations and taking into account extraneous and irrelevant matters by overlooking the evidence and ignoring the matter which he should have considered and taken into account a matter which he should have ignored. 28 Dr Zaghloul says that "the objective of the hearing was to determine, based on facts and evidence, if conspiracy took place between the respondent and the applicant's lawyer…". He says Gilmour J erred by taking the irrelevant consideration, being the respondent's irrelevant affidavit, which had to do with his recent bankruptcy, into account in the exercise of power. 29 He makes further allegations in his affidavit about the bullying allegations in the main proceeding. 30 He further alleges the case is of the "greatest public interest". He says it may even attract worldwide publicity. 31 He further alleges bias on the part of Gilmour J. 32 He repeats a number of assertions which were put to Gilmour J at the earlier hearing at which his Honour refused to recuse himself. 33 In my view, the reasons given by Gilmour J refusing first a transfer of the main proceeding to the Victorian district registry and then refusing a transfer to the NSW district registry are not attended by any doubt. No injustice at all is likely to arise if an extension or leave is refused. Dr Zaghloul will have his day in court in the WA district registry of the Court in the main proceeding. 34 The allegations made by Dr Zaghloul concerning bias on the part of Gilmour J are scandalous. There is not a skerrick of evidence to support the allegations. Indeed, Dr Zaghloul also asserts that the Deputy District Registrar conspired with Gilmour J to refuse the timely filing of the leave to appeal application in WAD492/2013 so as to prevent review of the primary judge's decision. Dr Zaghloul makes assertions. He presents no evidence in support. I give the assertions absolutely no weight. Gilmour J has already published reasons refusing to recuse himself on various bases alleged by Dr Zaghloul. Those reasons properly deal with the allegations made. 35 It is not open to any party to a proceeding in this Court to make scandalous allegations against a judge or officer of the Court and then, in effect, rely upon them to assert that a proceeding should be transferred out of a particular court because the party considers the judge or court officer is or will be biased against them when the proceeding comes on for hearing. The Court controls the practice and procedure of the Court, not a party at their election. Dr Zaghloul's attempt to do so is an abuse of process. 36 The application in WAD492/2013 for extension of time to appeal and leave to appeal should be dismissed with costs because the grounds upon which leave is sought are not made out. The appeal, if an extension were granted, has no merit at all. 37 Similarly the application for leave to appeal in WAD40/2014 should be dismissed with costs because the grounds upon which leave is sought are not made out. There is no doubt about the primary decision and no injustice at all will arise, let alone substantial injustice, from refusal of leave. should indemnity costs be ordered? 38 There is no doubt, in light of the above, that Dr Zaghloul must meet the costs of Woodside upon the dismissal of his two applications. The question is whether he should be ordered to pay Woodside's costs on an indemnity basis. 39 In this case, in my view, the applications were bound to fail, having regard to the merits of any appeal if leave were to be granted. Additionally, in this case, Dr Zaghloul has been primarily motivated to bring his applications for leave to appeal on the ground that there has been conspiracy, misconduct, perversion of the course of justice and denial of natural justice involving not only the primary judge but also a Deputy District Registrar of the Court, without having a skerrick of evidence to support the allegations made. 40 In those circumstances, there is no doubt that an indemnity costs order should be made against Dr Zaghloul on the dismissal of each of the applications. Should suppression and non-publication orders be made? 41 The Court has the power, under s 37AG of the Federal Court of Australia Act 1976 (Cth) to make suppression and non-publication orders. 42 In this case it is appropriate for such orders to be made in respect of the three affidavits made and filed by Dr Zaghloul in respect of his two applications and also in respect of the transcript of the hearing before the Court on 28 March 2014. 43 The affidavits and the transcript are riddled with unsubstantiated, allegations of conspiracy, misconduct and the like against the primary judge, a Deputy District Registrar of the Court and non-parties who are considered by Dr Zaghloul to be guilty of a range of misconduct so far as the main proceeding is concerned. To allow such unfounded, scandalous allegations to be communicated to others or published would be contrary to the proper administration of justice. 44 There should therefore be suppression and non-publication orders made in respect of those materials on the ground that the order is necessary to prevent prejudice to the proper administration of justice. order 45 For these reasons, on 28 March 2014, the Court ordered that: 1. The interlocutory application of the applicant filed 31 December 2013 in WAD492/2013 be dismissed with indemnity costs, to be taxed if not agreed. 2. The interlocutory application of the applicant filed 26 February 2014 in WAD40/2014 be dismissed with indemnity costs, to be taxed if not agreed. 3. The following documents or materials are the subject of a suppression order and non-publication order hereby made prohibiting the publication or other disclosure of the material therein that relates to these proceedings before the Court or information lodged with or filed in, or held by the Court on the ground that the orders are necessary to prevent prejudice to the proper administration of justice: (a) The affidavit of Dr Hassan Zaghloul in the matter of WAD492/2013 dated 27 September 2013 and filed in the Court on 31 December 2013. (b) The affidavit of Dr Hassan Zaghloul in the matter of WAD492/2013 dated 16 December 2013 and filed in the Court on 31 December 2013. (c) The affidavit of Dr Hassan Zaghloul in the matter of WAD40/2014 dated 24 February 2014 and filed in the Court on 26 February 2014. (d) The transcript of the hearing before Justice Barker in these matters of 28 March 2014. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 31 March 2014