ZAGHLOUL -v- BAYLY [2026] WADC 43

[2026] WADC 43 [2026] WADC 43 [MLH] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : ZAGHLOUL -v- BAYLY [No 5] [2026] WADC 43 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 29 APRIL & 20 MAY 2026 DELIVERED : 2 JUNE 2026 FILE NO/S : CIV 2756 of 2017 BETWEEN : HASSAN ZAGHLOUL Plaintiff AND DAVID JOHN BAYLY First Defendant AND BRADLEY BAYLY HOLDINGS PTY LTD Second Defendant Catchwords: Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 (WA) - Subpoena for production of documents prior to trial - Turns on its facts -- 1 of 8 -- [2026] WADC 43 [2026] WADC 43 [MLH] Page 2 Legislation: Nil Result: The subpoena issued on 16 November 2025 to Woodside Energy Ltd be set aside Representation: Counsel: Plaintiff : In person First Defendant : No appearance Second Defendant : No appearance Non-party : Mr A Lustig (represented Woodside Energy Ltd who is not a party to the proceedings) Solicitors: Plaintiff : Not applicable First Defendant : Popperwell & Co Second Defendant : Popperwell & Co Non-party : Jackson McDonald (represented Woodside Energy Ltd who is not a party to the proceedings) Case(s) referred to in decision(s): Zaghloul v Bayly [2023] WASCA 64 -- 2 of 8 -- [2026] WADC 43 DEPUTY REGISTRAR HARMAN [2026] WADC 43 [MLH] Page 3 DEPUTY REGISTRAR HARMAN: 1 In its reasons for decision provided in Zaghloul v Bayly [2023] WASCA 64, the Court of Appeal provided the following overview that informs the proceeding presently before the court: 6 In 2008, [the plaintiff] was employed with Woodside as a structural engineer. On 13 April 2011, he suffered a workplace psychiatric injury in the course of his employment. Between May 2011 and February 2013, he retained three law firms with a view to commencing legal proceedings against Woodside. [The plaintiff] developed a perception that his lawyers 'conspired with Woodside' and, as a result, he suffered deterioration of his psychiatric illness. On 27 August 2012, he commenced proceedings in the Federal Court of Australia against Woodside for negligence and breach of contract. On 5 December 2012, he lodged a workers' compensation form with WorkCover WA to recover the prescribed amount under the Workers' Compensation and Injury Management Act 1981 (WA). On 31 January 2013, Woodside declined to pay the prescribed amount. On 5 February 2013, Woodside terminated [the plaintiff's] employment. 7 On 14 February 2013, [the plaintiff] met with the first [defendant] … 8 In or about April 2013, [the plaintiff] signed a retainer agreement to retain the [second defendant] to act for him in relation to his workers' compensation claim. 2 The court outlined allegations of the plaintiff as follows: 3 … that the [defendants] … in their capacity as his former solicitors, had exacerbated his psychiatric illness as a result of their advice and conduct in relation to claims for personal injury against his former employer, Woodside Energy Ltd … … 14 … that by reason of the matters pleaded, he suffered (1) aroused feelings of betrayal, (2) entrenched thoughts of conspiracy with Woodside to sabotage his claim in the Federal Court, (3) further deterioration of his psychiatric illness, and (4) consequential loss of opportunity to future earnings. He alleged that it should have been in the contemplation of the [defendants] that the conduct pleaded was of such a nature that the risk of further deterioration of his psychiatric illness was a natural or probable consequence if reasonable care was not taken, and that the [defendants] breached the duty to avoid the risk of further deterioration of his psychiatric illness. -- 3 of 8 -- [2026] WADC 43 DEPUTY REGISTRAR HARMAN [2026] WADC 43 [MLH] Page 4 3 The court recorded that by their defence, the defendants alleged: 10 … that if any injuries were caused or contributed to by any wrongful conduct of the [defendants], then (1) in the assessment of damages, credit must be given for any amounts recovered by [the plaintiff] from Woodside in the settlement of the Federal Court proceedings, (2) alternatively, if compensation paid by Woodside was less than the amount or value of the damage suffered by [the plaintiff], then [the plaintiff] failed to mitigate his loss, and (3) [the plaintiff’s] action is, further and/or alternatively, an abuse of process in that having recovered compensation for his injuries from Woodside, the present action constituted an impermissible vexation or oppression and unfairness to the [defendants]. 4 On 18 December 2024 this court considered whether a subpoena issued on 6 December 2024 addressed to Woodside Energy Ltd be set aside. By its terms the plaintiff had sought production by Woodside Energy Ltd of the following: 1. Copy of the Retainer by Woodside of Bradley Bayly Holdings (AKA Bradley Bayly Legal). 2. A copy of the investigation report by Meredian Services (The Meridian Report) issued to Woodside (Ian Masson, Woodside HR VP) in December 2011. 3. All recordings of all witnesses (video and audio) associated with the Meridian Services investigations 4. Invoices received from, and payments made to, Bradley Bayly Holdings (or Bradley Bayly Legal or David Bayly). 5. A copy of the Retainer of Dwyer Durack in 2011. 6. A copy of the Retainer of Tottle Partners in 2012. 7. All correspondences between Stephen Brameld and David Bayly 8. All correspondences between Stephen Brameld and all partners at Tottle Partners in 2012. 9. All correspondences between Stephen Brameld and Peter Fraser of Dwyer Durack in 2011. 10. All correspondences between Ian Mason [sic] and Nina Hobson of Meridian Services before Meridian submitted its investigation report. -- 4 of 8 -- [2026] WADC 43 DEPUTY REGISTRAR HARMAN [2026] WADC 43 [MLH] Page 5 5 The court determined that items 2, 3, 4, 5, 6, 8, 9 and 10 be deleted from the subpoena. 6 The issue presently before the court is established upon a subpoena issued to Woodside Energy Ltd on 16 November 2025. By its terms the plaintiff sought production of the following: 1. Copy of the Investigation Report conducted by Meridian Services in or about October - December 2011, dated 19 December 2011 and that was delivered to Ian Masson on or about 19 December 2011 2. Copy of the tape recordings referred to in the report 3. Copy of all transcripts 4. Copy of all emails exchanged between Ian Masson and Nina Hobson 5. Copy of all drafts of the Meridian reports given to Woodside by Meridian Services 6. Terms of engagement of Meridian Services 7 By a letter addressed to the court dated 15 December 2025 solicitors representing Woodside Energy Ltd stated that on 18 December 2024 the court had dealt with items 1, 2, 3 and 4 and that for the plaintiff to issue the subpoena for production of those items had been an abuse of process. They asserted that production of item 5 would not establish any forensic benefit. 8 The solicitors continued as follows: The plaintiff, in his service email, advised: I have obtained a copy of those documents through the discovery process in the [Federal Court of Australia]. The Harman undertaking is observed, hence the subpoena for the records. The plaintiff asserts that he holds these documents, as discovered by our client in different proceedings. Our client submits that requesting these documents by way of the Subpoena is an abuse of process. The plaintiff already holds these documents, and a subpoena should not be issued to a non-party for their production. 9 The action was listed for directions on 29 April 2026 when both the plaintiff and the solicitors for Woodside Energy Ltd made submissions. The hearing was adjourned to 20 May 2026. -- 5 of 8 -- [2026] WADC 43 DEPUTY REGISTRAR HARMAN [2026] WADC 43 [MLH] Page 6 The plaintiff then indicated that he would reduce the scope of the documents the subject of the subpoena to those of which discovery had been given by Woodside Energy Ltd in the Federal Court. 10 The plaintiff did not contest the assertion of Woodside Energy Ltd that items 1 to 4 identify items that by the determination of 18 December 2024 had been deleted from the subpoena issued on 6 December 2024. 11 According to the transcript of the hearing on 18 December 2024 the court had not then received any submission that suggested that the plaintiff had been motivated to issue the subpoena to overcome or circumvent an undertaking provided to the Federal Court. 12 It is open to consider that on 18 December 2024 the plaintiff had not then been alert to any constraint on the use of documents disclosed by Woodside Energy Ltd in the Federal Court; and that by the subpoena issued on 16 November 2025, he would reopen the case he presented on 18 December 2024. 13 That prospect draws some measure of support from the content of a letter of the plaintiff dated 28 April 2026 addressed to the solicitors for Woodside Energy Ltd, a copy of which has been lodged by the plaintiff. By its content the plaintiff states as follows: Harman undertaking - not a fishing exercise The documents sought by the subpoena were previously produced by Woodside in related Federal Court proceedings (ACD 62-2012). Their relevance to the issues in this proceeding is established. The present subpoena is not speculative. It is the procedural mechanism required to comply with the implied undertaking described in Hearne v Street [2008] HCA 36, namely that documents obtained on discovery are not to be used for a collateral purpose without leave or proper process. The subpoena is therefore directed to regularising the use of those documents in this proceeding for a legitimate forensic purpose. It is not a request for speculative or exploratory production, but a targeted step to permit proper use of identified documents. 14 The considerations that emerge from the prospect are that as much as it remains open to the plaintiff to seek leave to appeal the determination made on 18 December 2024, until he obtains leave, Woodside Energy Ltd is entitled to consider that the determination made on that day had been final. -- 6 of 8 -- [2026] WADC 43 DEPUTY REGISTRAR HARMAN [2026] WADC 43 [MLH] Page 7 15 The considerations that would tell against both an extension of time to appeal and an appeal is that if a procedure undertaken in the Federal Court has drawn an undertaking from the plaintiff that remains in place; firstly the appropriate course is to present a case before that court for release; and secondly, it could not be within the prerogative of this court to release a party from an undertaking provided to the Federal Court. 16 In the course of submissions on 20 May 2026, the solicitor for Woodside Energy Ltd conveyed its position in relation to any approach to the task that the plaintiff would present before the Federal Court. 17 Although the letter of the solicitors dated 15 December 2025 distinguishes items 1 to 4 from the balance of the items the subject of the subpoena and directs a particular contention to item 5, the communications of the plaintiff revealed by these reasons do not differentiate items 5 and 6 from the balance. Broadly speaking the same could be said of his submissions. However, at page 535 of the transcript the following is recorded: … if Woodside consents to the use of documents I already have, the other documents- there are a couple of other documents that I sought, which I will not pursue because I would be only focussed on what I have already, what I know. The other documents would be not necessary. 18 Reading that passage in the context established upon the position that was conveyed by Woodside Energy Ltd, it was taken by the court to be the case that by the conclusion of the hearing the plaintiff was content to not seek to enforce production of items 5 and 6. In part that was due to the fact that there had been no suggestion that those items had been revealed to the plaintiff by the Federal Court proceeding, accordingly enforcement of the subpoena would depend upon some foundation that was not articulated. 19 The result of the hearing precipitated by the letter of the solicitors for Woodside Energy Ltd dated 15 December 2025 is that the subpoena issued on 16 November 2025 to Woodside Energy Ltd be set aside. An order will be recorded in those terms unless either the plaintiff or Woodside Energy Ltd contend otherwise or additionally in writing by 9 June 2026. -- 7 of 8 -- [2026] WADC 43 DEPUTY REGISTRAR HARMAN [2026] WADC 43 [MLH] Page 8 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. MB Associate to Registrar 2 JUNE 2026 -- 8 of 8 --