ZAGHLOUL -v- BAYLY [No 4] [2025] WADC 27

[2025] WADC 27
[2025] WADC 27 (PC) Page 1
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION : PERTH
CITATION : ZAGHLOUL -v- BAYLY [No 4] [2025] WADC 27
CORAM : BOWDEN DCJ
HEARD : 17 APRIL 2025
DELIVERED : 7 MAY 2025
FILE NO/S : CIV 2756 of 2017
BETWEEN : HASSAN ZAGHLOUL
Plaintiff
AND
DAVID JOHN BAYLY
First Defendant
BRADLEY BAYLY HOLDINGS PTY LTD
Second Defendant
Catchwords:
Application pursuant to O 70 of the Rules of the Supreme Court 1971 (WA) – Defendants seeking declaration that the plaintiff be declared a person under a disability – Application for an order that plaintiff submit to a psychiatric examination – Application for assistance of the Public Advocate in support of the application – Jurisdiction of District Court to grant applications – Application for a suppression order
[2025] WADC 27
[2025] WADC 27 (PC) Page 2
Legislation:
District Court of Western Australia Act 1969 (WA)
Guardianship and Administration Act 1990 (WA)
Rules of the Supreme Court 1971 (WA), O 70 r 1, O 70 r 3
Supreme Court Act 1935 (WA)
Result:
Applications dismissed
Representation:
Counsel:
Plaintiff
:
In person
First Defendant
:
Mr G P Bourhill SC
Second Defendant
:
Mr G P Bourhill SC
Solicitors:
Plaintiff
:
Not applicable
First Defendant
:
Popperwell & Co
Second Defendant
:
Popperwell & Co
Case(s) referred to in decision(s):
Harold Joseph Martin Cadwallender by his next friend Stavroulla Cadwallender v The Public Trustee [2003] WASC 72
JD v ZYX [2021] WASCA 72
M v P [No 3] [2024] WASC 123
Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511
Slaveski v State of Victoria [2009] VSC 596; (2009) 25 VR 160
Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91
Stewart v Hames [2021] WADC 93
W v S [2025] WASCA 21
Zaghloul v Bayly [2021] WASCA 125
Zaghloul v Bayly [2023] WASCA 64
Zaghloul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 58
Zerjavic v Chevron Australia Pty Ltd [2019] WADC 9
ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164
[2025] WADC 27
BOWDEN DCJ
[2025] WADC 27 (PC) Page 3
BOWDEN DCJ:
1
By chamber summons filed 28 November 2024, the defendants ask the court to make a declaration as to whether the plaintiff is a person under disability by reason of mental illness, defect or infirmity within the meaning of O 70 r 1(c) of the Rules of the Supreme Court 1971 (WA) (RSC). The chamber summons makes three separate but interrelated applications.
2
The first application (the examination application) involves the defendants serving on the plaintiff a notice requiring him to submit to examination by a psychiatrist, Dr Chris Cocks, and the District Court requesting the Office of the Public Advocate to investigate whether the plaintiff has the ability to make reasonable judgments about the conduct of the primary proceedings and whether the Public Advocate should make an application under the Guardianship and Administration Act 1990 (WA) to appoint an administrator to conduct the primary proceedings as the plaintiff’s next friend.
3
The second application (the declaration application) proposed by the defendants’ application would involve a further hearing to determine whether Dr Zaghloul is a person under disability by reason of mental illness, defect or infirmity within the meaning of O 70 r 1(c) of the RSC: Zaghloul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 58.
4
The application also seeks an order that the parties’ identities are to be suppressed in relation to this application until further order by the court (the suppression order application). The suppression order is opposed by the plaintiff.
5
The starting point when considering whether a suppression order should be made is the well-established strong presumption of open justice which favours an open court except in exceptional circumstances.
6
The principle of open justice is a fundamental principle of law, the primary object of which is to promote public confidence in and respect for the administration of justice.
7
An order departing from the fundamental rule that the administration of justice must take place in open court should only be made where it is reasonably necessary to secure the proper administration of justice.
[2025] WADC 27
BOWDEN DCJ
[2025] WADC 27 (PC) Page 4
8
The principles concerning open justice may differ for civil proceedings as opposed to criminal proceedings because the public interest in civil proceedings is narrower than in criminal proceedings and in a civil action there is no filter such as an independent Director of Public Prosecutions to assess a case and decide whether there is a prima facie case based on the evidence. A civil action can be commenced and taken to trial without the prior opportunity of the examination of its merits. A statement of claim containing allegations does not have to be supported by any sworn statement. It can be relatively easily amended and is often in the nature of an ambit claim. The pleading does not amount to an affirmation of the truth of the facts alleged therein.
9
Whilst it is accepted that generally an application for a suppression order must be supported by evidence, the court can in a practical sense act on its own experience and draw appropriate inferences. The inference can be drawn that the allegations founding this action would cause the defendants concern in relation to their professional reputation. However, as stated, mere allegation is not proof of that allegation.
10
In my view, notwithstanding the seriousness of the allegations made, a suppression order would be contrary to open justice and against long-established practice and a suppression order ought not be made: ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164; JD v ZYX [2021] WASCA 72.
Some background matters
11
Dr Zaghloul’s action relates to events occurring while he was employed by Woodside as a structural engineer.
12
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. He developed a perception that his lawyers conspired with Woodside and as a result suffered deterioration of his psychiatric illness.
13
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 claim, with WorkCover WA, pursuant to the Workers’ Compensation and Injury Management Act 1981 (WA) (WCIMA 1981).
[2025] WADC 27
BOWDEN DCJ
[2025] WADC 27 (PC) Page 5
On
14 February 2013 he met the first defendant and another at the offices of the second defendant, subsequently signing a retainer for the second defendant to act for him in relation to his workers’ compensation claim.
14
In April 2013 Woodside brought a summary judgment application in the Federal Court on the basis that under s 93K(4)(c) of WCIMA 1981 the court did not have jurisdiction to award damages because Dr Zaghloul had not elected common law damages before commencing the Federal Court proceedings.
15
On 17 April 2013 the first defendant advised Dr Zaghloul that Woodside would succeed in its application for summary judgment. Dr Zaghloul alleges that the advice was negligent.
16
On 16 May 2013 the defendants filed a writ on behalf of Dr Zaghloul in the District Court against Woodside for negligence and breach of contract. The first defendant advised Dr Zaghloul that the Federal Court and District Court actions were in conflict and the Federal Court proceedings should be dismissed by consent in order to focus on the District Court proceedings.
17
Through July and August 2013, the defendants urged Dr Zaghloul to maintain the District Court proceedings, but he instructed them to discontinue the District Court proceedings.
18
By emails dated July, August and September 2013, Dr Zaghloul maintained that the first defendant had conspired with Woodside to sabotage his claims in the Federal Court by advising him to dismiss the Federal Court proceedings and that the purpose of the District Court action they were recommending was to maximise legal fees.
19
In June and July 2013, the second defendant provided a draft statement of claim for the District Court proceedings which Dr Zaghloul alleges was deficient in a number of respects.
20
Dr Zaghloul’s case is that a reasonably competent lawyer in the position of the defendants would not have commenced District Court proceedings, advised him to focus on those proceedings, prepared or provided an allegedly deficient statement of claim, or advised him to consent to the dismissal of Federal Court proceedings.
[2025] WADC 27
BOWDEN DCJ
[2025] WADC 27 (PC) Page 6
21
Dr Zaghloul says as a result of those matters, he suffered feelings of betrayal, entrenched thoughts of the existence of a conspiracy with Woodside to sabotage his claim in the Federal Court, deterioration of his psychiatric illness, and consequential loss of opportunity for future earnings. He claims damages for loss of chance of future earnings, aggravated damages and exemplary damages: Zaghloul v Bayly [2021] WASCA 125; Zaghloul v Bayly [2023] WASCA 64.
22
Dr Zaghloul’s initial writ of summons filed on 30 July 2017 contained an indorsement of claim based on inter alia breach of fiduciary duty, misleading or deceptive conduct, unconscionable conduct, breach of contract, professional negligence, conspiracy to injure and unjust enrichment.
23
Since the filing of that indorsed writ, Dr Zaghloul has filed an amended statement of claim of 10 August 2018, a further amended statement of claim on 7 January 2019 (which was struck out), a second further amended statement of claim on 17 June 2019, a minute of proposed statement of claim of 8 August 2021, and a minute of proposed statement of claim of 23 December 2021.
24
In Zaghloul v Bayly [2021] WASCA 125, delivered 19 July 2021 the appeal court confined his claim to a claim in negligence based on four specific areas being (1) the defendants’ advice in relation to s 93K of WCIMA 1981, (2) the duplication in the writ of summons and statement of claim filed in the District Court of the plaintiff’s existing claim in the Federal Court, (3) the defendants’ advice to dismiss the Federal Court action and to focus on the action commenced in the District Court and (4) the defendants’ failure to respond to the plaintiff’s correspondence requesting clarification of legal advice.
25
The appeal court remitted to the District Court the question of whether leave should be granted to amend the plaintiff’s claims in terms of the then proposed amended statement of claim, stating that it was inappropriate to allow the plaintiff to replead his claim generally and restricted the ambit to the claim in negligence in relation to the four areas referred to.
26
Subsequent to that decision Dr Zaghloul filed with leave a fresh statement of claim dated 17 January 2022, which set out the four bases of the negligence that the appeal court had permitted.
[2025] WADC 27
BOWDEN DCJ
[2025] WADC 27 (PC) Page 7
27
Dr Zaghloul then filed an amended fresh statement of claim of 13 April 2024 which his Honour Judge Staude found, in his decision of 18 December 2024, had been filed without leave of the court and ordered that it be uplifted from the record.
28
Dr Zaghloul then filed a further proposed expanded statement of claim of some 13 pages, on 21 February 2025 (it appears filed without leave) and then applied for leave to file and serve the second proposed statement of claim dated 10 March 2025. That application was dismissed by his Honour Judge Staude on 27 March 2025 and that decision is subject to an appeal by Dr Zaghloul which has yet to be heard.
29
The issue of whether leave should be granted for filing of the second proposed statement of claim of 10 March 2025 is entirely for the appeal court.
The law
30
Order 70 r 1 of the RSC provides:

1. Terms used
   In this Order unless the contrary intention appears –
   GAA Act means the Guardianship and Administration Act 1990;
   person under disability means –
   (a) a person who is an infant; or
   (b) a represented person; or
   (c) a person not being a person referred to in paragraph (a) or (b), who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the Court to be incapable of managing their affairs in respect of any proceedings to which the declaration relates;
   represented person means a person in respect of whom a guardian or administrator has been appointed under the GAA Act with authority to do either or both of the following –
   (a) as the next friend of the represented person, to commence, conduct or settle on behalf of the represented person specified proceedings, some proceedings or all proceedings;
   [2025] WADC 27
   BOWDEN DCJ
   [2025] WADC 27 (PC) Page 8
   (b) as the guardian ad litem of the represented person, to defend or settle specified proceedings, some proceedings, or all proceedings, that are taken against the represented person
2. Persons under disability suing or defending
   (1) Except as provided in subrule (4) a person under disability –
   (a) cannot bring, or make a claim in, any proceedings except by the person’s next friend; and
   (b) cannot defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order, notice of which has been served on the person, except by the person’s guardian ad litem.
   (2) Subject to the provisions of these rules, anything which in the ordinary conduct of any proceedings is required or authorised by a provision of these rules to be done by a party to the proceedings must or may, if the party is a person under disability, be done by the person’s next friend or guardian ad litem.
   (3) A next friend or guardian ad litem of a person under disability must act by a solicitor.
   (4) A judge may by order permit an infant to sue or defend or take part in any proceedings to which the order relates, without a next friend or guardian ad litem on being satisfied that in the circumstances of the case it is proper to do so.
   (5) If a person under disability is a represented person, the next friend or guardian ad litem of the represented person in any proceedings must be –
   (a) a guardian or administrator of the represented person authorised under the GAA Act Part 5 or 6 to act as next friend or guardian ad litem, as the case may be, in those proceedings; or
   (b) some other person appointed by the Court to be the next friend or guardian ad litem, as the case may be, in those proceedings.
   [2025] WADC 27
   BOWDEN DCJ
   [2025] WADC 27 (PC) Page 9
   (6) An appointment by the Court under subrule (5)(b) may be –
   (a) of its own motion; or
   (b) on an application made under rule 5.
   (7) For the purposes of subrule (6)(b) the Court may vary the requirements of rule 5 as it considers appropriate in the circumstances.
   The jurisdictional issue
   31
   The plaintiff says the application should be dismissed for lack of jurisdiction.
   32
   Dr Zaghloul says the power under s 16(1)(d)(ii) of the Supreme Court Act 1935 (WA) ‘to appoint guardians and committees of the persons and estates of … persons of unsound mind’ are vested exclusively in the Supreme Court pursuant to the Supreme Court Act and the expressed provisions of the Guardianship and Administration Act.
   33
   He says that the District Court jurisdiction is limited to powers expressly conferred under the District Court of Western Australia Act 1969 (WA) (DCA) and s 50 of the DCA does not empower the District Court to make these orders.
   34
   The defendants’ position is that s 16(1)(d)(ii) of the Supreme Court Act gives the Supreme Court the power to appoint a guardian. Section 52 of the DCA provides that the District Court and its judges have the same power and authority of a judge of the Supreme Court and the practice and procedure of the District Court shall be the same as the Supreme Court.
   35
   In Harold Joseph Martin Cadwallender by his next friend Stavroulla Cadwallender v The Public Trustee [2003] WASC 72 [49] (Cadwallender v The Public Trustee) Justice Heenan stated:
   There can be no doubt that the District Court of Western Australia had jurisdiction to entertain and determine Mr Cadwallender’s original action for damages for negligence causing the personal injuries sustained in his motor vehicle accident. That was a personal action for damages in respect of the death of, or bodily injury to a person, in respect of which jurisdiction was granted to the District Court specifically by s 50(2) of the District Court of Western Australia Act (1969). As it was an action within the civil jurisdiction of the court, the court had power to grant such relief, redress or remedy or combination of remedies either absolute or conditional, and to make
   [2025] WADC 27
   BOWDEN DCJ
   [2025] WADC 27 (PC) Page 10
   any order that could be made in relation to any such action and to give such and like effect to every ground of defence or counterclaim equitable or legal in full and ample a manner as might be done in the like case by the Supreme Court – s 55. If such an action had been brought in the Supreme Court, this Court would have all the powers conferred by s 16 and s 23 to make provision for the representation and protection of the interests of infants and disabled persons. Indeed, that is the purpose which authorises the rules contained in O 70, including the provisions obliging a disabled person to sue by a guardian ad litem, requiring prior approval of any compromise of a disabled person’s claim before it will be binding, and then stipulating for the control of moneys recovered by payment to a trustee appointed by, and subject to the direction of the court. This jurisdiction and these powers are, therefore, all ancillary to a claim directly within the civil jurisdiction of the District Court and no issue can possibly arise that, not being ancillary to the principal claim, they are outside the scope of that court’s equity jurisdiction such as led to the decision in Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers Compensation) Ltd (1991) 5 WAR 208.
   36
   I find that the District Court has jurisdiction to deal with this application. It is not in issue that the District Court has jurisdiction to deal with Dr Zaghloul’s claim in negligence. The District Court and its judges have the same powers and authority as a judge in the Supreme Court and therefore have the power to determine an application relating to a person’s legal capacity in respect of actions brought within their jurisdiction: Cadwallender v The Public Trustee; DCA s 52.
   Principles to apply in the declaration application
   37
   As previously indicated the defendants’ chamber summons seeking the declaration anticipates two stages. The second stage is the determination of the declaration. The first stage relates to an examination to assist the court in obtaining medical evidence relevant to the determination of the application.
   38
   Clearly the first issue that arises is whether the examination application should be granted.
   39
   Notwithstanding that I am dealing currently with the examination application, an assessment must be made as to whether the declaration application has a reasonable basis of success as the examination application should only be granted if the court is satisfied that the declaration application has a reasonable basis of succeeding. Absent such a conclusion it would be appropriate to finally determine the chamber summons without delay: M v P [No 3] [2024] WASC 123.
   [2025] WADC 27
   BOWDEN DCJ
   [2025] WADC 27 (PC) Page 11
   40
   It is therefore necessary to examine the principles that apply to determining the declaration application.
   41
   Those principles were considered by the Court of Appeal in W v S [2025] WASCA 21 [41] – [46], Justice Seaward in Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91 and Justice Lundburg in M v P [No 3]. The following principles emerge:
3. The power of the court to appoint a representative to act on behalf of a person under a disability is aimed at ensuring that all parties to the action are afforded the protection of the court’s processes and those processes are themselves protected, and in some cases that the parties to litigation are not pestered by other parties who should be to some extent restrained: Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511
4. There is a presumption that every person of full age has the mental capacity to manage their own affairs and the burden of proving the contrary rests with those asserting incapacity.
5. A declaration that a party lacks legal capacity is not to be made lightly. The court must be mindful of the impact the order will have on the civil rights of an individual concerned. Importantly if the court does make the order the important right to freely prosecute, defend, compromise or otherwise participate in litigation in the litigant’s own name is lost.
6. Although there may be cases where the court is able to make an assessment of the capacity of a party from its own observations the court will usually require the assistance of a medical report before being able to be satisfied that incapacity exists and take the serious steps of declaring the person to be under a disability and may be reluctant to make the order without such medical evidence.
7. Clear evidence that a person has suffered from some form of mental incapacity for a considerable period in the past is not itself determinative, although such evidence may mean that the burden of proof is more easily discharged.
8. Absent medical evidence the court can draw inferences to the plaintiff’s capacity from the available material. The absence of direct medical evidence renders an applicant’s task of
   [2025] WADC 27
   BOWDEN DCJ
   [2025] WADC 27 (PC) Page 12
   discharging its burden of proof more onerous and makes the court’s task more challenging than it might otherwise be, however that may highlight the utility of the examination application being granted and thereby obtaining a medical examination and report.
9. There have been cases where an examination order has been made primarily because of the volume of material adduced, the nature of the serious allegations raised, and the manner in which those allegations have been articulated, going beyond the ordinary language of a passioned or zealous litigant in person.
10. The examination application should only be granted if the court is satisfied that there is a proper and sound basis for the application which requires there to be material before the court which is capable of supporting the declaration and the declaration application must have a reasonable basis of succeeding.
11. The question of whether the litigant has the capacity to understand the issues in the legal proceedings they are involved in and therefore conduct those proceedings is issue specific and relates to the facts, legal character, complexity and subject matter of the particular case.
12. A person can lack the mental capacity to participate in particular legal proceedings yet still be capable of performing the usual activities of daily life.
13. When the court is put on notice that a person may lack the capacity to manage their own affairs in litigation, the court will be bound to consider and decide whether the person has a requisite capacity based on the available evidence.
    What is meant by ‘incapable of managing his own affairs’ in respect of the proceedings
    42
    There is no fixed standard of the mental capacity required at law for a person to be deemed ‘capable’ of managing the proceedings they are involved in.
    43
    The expression ‘incapable of managing his own affairs in respect of the proceedings’ must be construed in a commonsense way as a whole. The question is whether the party is by reason of mental
    [2025] WADC 27
    BOWDEN DCJ
    [2025] WADC 27 (PC) Page 13
    illness, defect, or infirmity, however occasioned, incapable of
    managing his affairs in respect of the current proceedings. This will depend upon whether he is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in such other disciplines as a case may require, the issues in which consent or decision are likely to be necessary during the proceedings.
    44
    It does not call for proof of complete incapacity or (for example) proof that the party should be subjected to involuntary medical treatment under mental health legislation.
    45
    The standard applicable to a self-represented litigant in respect of questions of whether they are incapable of managing their own affairs in respect of the proceedings they are involved in has been described in W v S at [46]:
    [T]he level of mental capacity required to be a ‘competent’ litigant in person … cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.
    46
    It involves more than what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks of costs: W v S; Snook v Magistrate Trevor Darge [No 2]; M v P [No 3].
    47
    To have that capacity requires first the insight and understanding of the fact that the person has a problem in respect of which advice is needed. Secondly, having identified the problem, it will be necessary for the person to seek an appropriate adviser and to instruct that advisor with sufficient clarity to enable the advisor to understand the problem and to advise appropriately. Finally, the person needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as they may receive: Masterman-Lister v Brutton & Co (Nos 1 and 2).
    48
    In Slaveski v State of Victoria [2009] VSC 596; (2009) 25 VR 160 32, Justice Kyrou observed that where a plaintiff is self-represented, the following issues are potentially relevant in determining whether he or she is a person under disability for the purposes of the Victorian equivalent of O 70 of the RSC:
    [2025] WADC 27
    BOWDEN DCJ
    [2025] WADC 27 (PC) Page 14
    …
    (a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?
    (b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?
    (c) Is the plaintiff capable of assessing the impact of particular evidence on his or her case?
    (d) Is the plaintiff able to understand the Court processes and the basic rules for conducting his or her case when these matters are explained to him or her?
    (e) Is the plaintiff able to understand Court rulings made during the trial when they are explained to him or her?
    (f) Assuming the plaintiff is able to understand Court processes, the basic rules of conducting his or her case and Court rulings, is he or she capable of complying with them and directions given by the judge?
    (g) Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse?
    (h) Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)?
    (i) Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her?
    (j) Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her?
    [2025] WADC 27
    BOWDEN DCJ
    [2025] WADC 27 (PC) Page 15
    (k) If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view?
    (l) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submissions and other developments in the proceeding as at the time the proposal is made?
    (m) If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff’s physical or mental health?
    49
    His honour observed at [33]:
    A self-represented person who is incapable of continuing to act as his or her own advocate is not necessarily incapable of managing his or her affairs in relation to the relevant proceeding, as that person may be capable of retaining legal representatives to continue to conduct the proceeding.
    (citations omitted)
    50
    In dealing with applications of this type the personal attributes of the party to whom the application relates and the character of the proceedings they are involved in are so unique that little can be gained by specific results, as opposed to the principles applied, in past cases.
    51
    However, I note that in M v P [No 3], it was observed that a consideration was that a trial was likely to require significant expenditure of legal fees on the defendant’s part and draw considerably on the court’s resources and could be challenged if the plaintiff was later found under a disability.
    52
    Justice Lundberg found the affidavit material dealing with personal accounts of the plaintiff’s life and the like was irrelevant and strikingly demonstrated the plaintiff’s intense focus on those who stand against him and the effect that the defendant’s alleged conduct has had on his life and the belief that there is a network of people coordinating actions against him. His Honour drew an inference from that material observing the issues that were likely to arise in the action would be complex, well beyond any typical piece of commercial litigation (it was a defamation claim).
    [2025] WADC 27
    BOWDEN DCJ
    [2025] WADC 27 (PC) Page 16
    53
    His Honour ordered, to assist the court in determining the defendant’s application as to whether the plaintiff was a person under disability by reason of mental illness or defect within the meaning of O 70 r 1, that the court requests the Office of the Public Advocate pursuant to its function under s 97(1)(c) of the Guardianship and Administration Act investigates (a) whether the plaintiff has the ability to make reasonable judgments about the conduct of proceedings and (b) whether or not the Public Advocate should make an application under the act to appoint an administrator to conduct these proceedings as the plaintiff’s next friend.
    54
    That order was made in circumstances where the plaintiff in that case had indicated he would be prepared to consent to an examination by a medical practitioner if the Public Advocate was able to accommodate the court’s request.
    The parties’ submissions
    55
    The following is a summary of the main submissions of the parties. It is not intended to exhaustively summarise every point they made.
    56
    In addition to the affidavits filed by the parties and their written and oral submissions, I have had recourse to the court file in its entirety including past judgments of the appeal court and District Court judges.
    The defendants’ submissions
    57
    The defendants rely on the affidavits of Mr Popperwell of 28 November 2024, 13 December 2024 and 18 March 2025 and their written submissions dated 18 March 2025 together with their oral submissions at the hearing.
    58
    They are not seeking to establish that the plaintiff is incapable of managing his own affairs but say he is incapable of having the capacity to conduct these proceedings in a way normally expected by the court.
    59
    The matters the defence rely upon in their examination application include:
14. That there have been several interlocutory applications over discovery and the issue of subpoena, and the rulings made in respect of those applications have been the subject of appeals. They note that this matter is not listed for trial and has been ongoing for approximately eight years.
    [2025] WADC 27
    BOWDEN DCJ
    [2025] WADC 27 (PC) Page 17
15. The changing nature of the plaintiff’s allegations since October 2024:
    (i) The defendants say that the plaintiff is now seeking to amend his statement of claim from a claim based in negligence to a claim based in equity as a result of the defendants’ alleged breach of fiduciary duty and allegations that the defendants, and in particular the first defendant, has engaged in fraud, conspiracy and committing grievous bodily harm against the plaintiff. Pursuant to that amendment the plaintiff seeks relief including that the defendants provide a full account of all profits received under the alleged secret retainer agreement and profits from the sale of their business to another entity.
    (ii) The defendants say that the application for leave to amend is despite an appeal decision confining the plaintiff to essentially four particular elements of his negligence claim: Zaghloul v Bayly [2021] WASCA 125.
    (iii) They point out that the plaintiff’s application for leave to amend was dismissed by Judge Staude and is contrary to the decision in Zaghloul v Bayly and is now subject to an appeal.
16. The plaintiff’s allegations of breach of fiduciary duty, perjury, fraud, conspiracy and grievous bodily harm are based on the plaintiff’s belief, unsupported by any foundation in fact that there was a secret retainer between Woodside and the defendants which according to the plaintiff explains why the defendants deliberately sabotaged his claim.
17. The defendants say the plaintiff persistently says that he has evidence to support these allegations and has failed to produce any such evidence.
18. The defendants say the plaintiff’s conclusion that a secret retainer exists are based solely on assumptions which he makes which have no basis in fact or logic.
    [2025] WADC 27
    BOWDEN DCJ
    [2025] WADC 27 (PC) Page 18
19. The defendants point out that the first defendant has sworn on oath that he has not been retained by or acted for Woodside and has never received any money from Woodside in exchange for services and has never met or spoken to a particular employee at Woodside or any other employee except in relation to communications which have been disclosed.
20. The plaintiff’s continual reliance on counsel’s physical destruction of the brief as being something sinister as opposed to accepting that it is normal routine practice.
21. The plaintiff repeatedly asking why the first defendant will not agree to answering interrogatories despite the defendants answering them.
22. The plaintiff’s actions in reporting the first defendant to the police in anticipation of the first defendant’s reaction to how the plaintiff will deal with the defendants’ alleged crimes.
23. The plaintiff’s conduct in relation to the ‘meridian investigation report’ of 19 December 2011 whereby the plaintiff continually asked the defendants for a copy of the report when it was the plaintiff who actually discovered the report and provided a copy of it to the defendants’ lawyers.
24. The plaintiff’s conduct in March 2025 when he denied receiving a letter from the defendants informing him that there was no retainer with Woodside yet responded to that letter in terms that indicate he had read the letter.
25. The defendants say that in combination these matters raise serious questions as to the plaintiff’s capacity to manage his affairs in relation to this litigation as a self-represented litigant and the declaration application has reasonable if not good prospects of success. They say the court would benefit from a medical examination and a report, and the first step in the proceedings of obtaining an expert medical report as to the plaintiff’s capacity should be taken.
    The plaintiff’s submissions
    60
    Dr Zaghloul relies on his affidavit of 1 April 2025, and his written submissions of 4 April 2025 together with his oral submissions at the hearing.
    [2025] WADC 27
    BOWDEN DCJ
    [2025] WADC 27 (PC) Page 19
    61
    Dr Zaghloul said that he is presumed to be of full sanity and capable of handling his own affairs and that burden has not been displaced.
    62
    Dr Zaghloul says an application to appoint a guardian is not in his best interest and he has the right to prosecute litigation as a self-represented litigant.
    63
    He says there is nothing to establish that he has an inability to reason, is emotionally unstable or is easily influenced, has a poor memory or misunderstands financial matters as were the findings which led to a conclusion of incapacity in the decision of Masterman-Lister v Brutton & Co (Nos 1 and 2).
    64
    Dr Zaghloul says an examination of the court file and the history of the matter shows that he understands the substance of the claim, has prepared pleadings and written submissions, has appeared in court to argue his claims, has actively participated in the management of the litigation, and has made informed decisions as to the manner to best progress his case.
    65
    He disputes that there has been a change in his claim. He says that the basis of his application for leave to amend his statement of claim must be considered in light of developments during the prosecution of his claim. When he issued the writ of summons in 2017, he pleaded breach of fiduciary duty, misleading or deceptive conduct, unconscionable conduct, breach of contract, conspiracy to injure as well as other matters. Summary judgment was entered against him. He appealed and the appeal court permitted him to proceed on his claims for negligence.
    66
    From 2017 – 2024 he approached the case on the basis that he thought the courts would not like to hear of conspiracies (ts 475) which would be thrown out of court and he therefore pursued his claim on the basis of negligence.
    67
    In 2024 that position changed when the defendants, in an effort to reduce their liability, subpoenaed Woodside to produce the confidential settlement deed relating to the settling of his Federal Court case.
    68
    He objected to that subpoena, but Woodside did not. He was puzzled by Woodside’s approach and found their lack of objection strange because it was a confidential settlement. He described these events as changing the entire trajectory of the hearing (ts 475). He said
    [2025] WADC 27
    BOWDEN DCJ
    [2025] WADC 27 (PC) Page 20
    the only logical explanation that came to his mind (ts
    475) as to why they took this stance was because they had a secret retainer with the first defendant and were protecting him. He said the discovery of this secret retainer added clarity to his original allegations. Having learnt there was a secret retainer he sought to reframe his litigation by seeking leave to amend the statement of claim to establish the breach of fiduciary duty, fraud, conspiracy and grievous bodily harm and to seek the appropriate equitable remedies.
    69
    On 24 November 2024 he made a request of Mr Popperwell to provide a copy of the secret retainer and the ‘retaliatory response’ (ts 476) was the defendants filing of this application on the 28 November which he says is an effort by the defendants to conceal the existence of the retainer and as such was an abuse of process. He says the application is not about his incapacity but was an attempt to prevent the exposure of a powerful relationship: ts 487.
    70
    He says this new evidence which did not emerge until late 2024 led to his rational conclusion that there was a secret retainer between Woodside and the first defendant and that changed his case from one of mere negligence to a deliberate breach of fiduciary duties.
    71
    He said that his application for leave to amend the statement of claim is relying on the same factual basis as the existing statement of claim however the discovery of the secret retainer has changed the ambit of his claim.
    72
    He says that his claims that there is a secret retainer are supported by the combined weight of the following circumstances:

• Firstly, the first defendant could not honestly have believed the statements in his affidavit dated 15 August 2013 and therefore committed perjury.
• Secondly, the acts of the defendants’ counsel and Woodside in falling to categorically deny the existence of a secret retainer.
• Thirdly, the acts of the first defendant in mentioning in the draft statement of claim the name of a Woodside executive without his instruction.
• Fourthly, the defendants’ possession of the plaintiff’s WorkCover documents in 2014 and 2015 despite their retainer ending in 2013.
  [2025] WADC 27
  BOWDEN DCJ
  [2025] WADC 27 (PC) Page 21
• Fifthly, Woodside’s failure to object to the defendants’ summons to produce the confidential settlement deed relating to the settling of his Federal Court case.
• Sixthly, the timing of the defendants’ application coming immediately after he requested Mr Popperwell provide a copy of the secret retainer as detailed above.
  73
  Dr Zaghloul says his claim for disgorgement of profits following the sale of the defendants’ business is justified because of the principle that the fiduciary must not benefit from breaches of duty, and seeking exemplary damages is consistent with equitable principles relating to damages for grave misconduct.
  74
  Dr Zaghloul seems by his written submissions to accept that counsel’s destruction of the brief occurred as a matter of routine practice however submits that did not make his original suspicion unreasonable but simply established that he was diligently pursuing potential evidence, bearing in mind the defendants’ bill of costs charged over $14,000 for telephone attendance and correspondence with counsel.
  75
  Dr Zaghloul says that any suggestion that his dissatisfaction with the responses to interrogatories reflects an inability to manage the litigation is rejected and just shows his diligent approach to litigation.
  76
  Dr Zaghloul says that any minor lapse of memory he may have had in relation to the meridian investigator’s report does not represent evidence of incapacity.
  77
  Dr Zaghloul points to the medical evidence including:

1. Dr Denz’s report dated 17 May 2019 which refers to Dr Zaghloul suffering several periods between 2011 and 2015 when he was very unwell with mental illness and at those times was significantly disabled and not in a state where he could have made reasonable judgment in respect to himself or his property (Mr Popperwell’s affidavit dated 18 March 2025, page 230).
2. The medical report from Dr Denz of 17 July 2017 which says he suffered severe anxiety and depression over several years with a history of persecutory delusion and paranoid thoughts through most of his illness with transient symptoms of auditory hallucinations. Dr Denz believed that Dr Zaghloul suffered a persecutory delusion disorder as part of his psychiatric
   [2025] WADC 27
   BOWDEN DCJ
   [2025] WADC 27 (PC) Page 22
   disorder. Dr Denz said there was no doubt Dr Zaghloul suffered a very severe depressive illness over the last few years with a delusional disorder and almost certainly a persecutory delusion disorder. Dr Denz said Dr Zaghloul had significantly improved and was no longer paranoid and had recovered from the persecutory delusionary state and was now of sound mind (Mr Popperwell’s affidavit dated 18 March 2025, page 231).
3. The report of Dr Denz dated 12 December 2024 whereby Dr Denz says with confidence that Dr Zaghloul was of sound mind and body when assessed on 12 December 2024 with no anticipated change in the future (Mr Popperwell’s affidavit dated 18 March 2025, page 229).
   78
   Dr Zaghloul says he is presumed to be capable unless the contrary is proven, the burden lies on the defendants and there is medical evidence from Dr Denz confirming he has full cognitive and legal capacity.
   79
   Dr Zaghloul says there is no basis to grant the examination application and to do so would be the first step in unjustly depriving him of his right to conduct his own litigation and contradicts the principle of just, quick and cost-effective resolution and could cause unnecessary delays and additional costs.
   Conclusion
   80
   I reject Dr Zaghloul’s claim that the defendants’ application is an abuse of process. Clearly, there is sufficient material contained in his past medical history, the nature of the allegations, the manner in which the litigation has been conducted to date including the numerous interlocutory applications and what appears to be an attempt by the plaintiff to relitigate matters that the appeal court have previously struck out to justify an application. Some of Dr Zaghloul’s conduct could on one view lead to an inference that irrespective of what orders are made by the court he pursues his own agenda.
   81
   Dr Zaghloul, regrettably has had significant mental health issues in the past. That in itself is not determinative of the application. Dr Denz’s medical report of 12 December 2024 says he was of sound mind and body when assessed on 12 December 2024 with no anticipated change in the future although it fails to specifically deal with Dr Zaghloul’s mental capacity to manage his affairs in respect of these proceedings in the general sense or deal with any of the Slaveski type factors specifically.
   [2025] WADC 27
   BOWDEN DCJ
   [2025] WADC 27 (PC) Page 23
   82
   The defendants have not sought to rely on any current medical evidence specifically addressed to Dr Zaghloul’s current mental state, for example, by providing a psychiatrist with the pleadings and affidavits, Dr Denz’s reports, the correspondence from Dr Zaghloul, the details of the factual basis from which Dr Zaghloul drew his inference and conclusions that there is a secret retainer between Woodside and the defendants and asking the psychiatrist to address the type of issues referred to in Slaveski. There is, of course, no requirement for the defendants to do so.
   83
   The defendants are asking the court to infer that they have a reasonable prospect of success in obtaining a declaration that the plaintiff is by reason of a mental defect incapable of managing his own affairs in respect of these proceedings.
   84
   The defendants are asking the court to draw that inference from the plaintiff’s past medical history, the nature of the evidence he relies upon to support his claims and allegations and his conduct during the course of litigation.
   85
   The making of an examination order and even if at a later date a declaration was granted pursuant to O 70 of the RSC, does not in any way prohibit the claims from being pursued. Dr Zaghoul could still have input into his claim, however, once a guardian is appointed, that guardian has the conduct of the proceedings, including appointing lawyers, providing instructions, determining which witness to call and whether to settle the claim and if so on what terms.
   86
   A fact relied upon in the defendants’ submissions is that Dr Zaghloul by his second proposed statement of claim of 10 March 2025 is seeking to re-introduce the breach of fiduciary duty claim and supplemented that with claims of fraud, conspiracy, perjury and grievous bodily harm.
   87
   The defendants say that Dr Zaghloul is, in an effort to overcome the appeal court decision confining his claim to negligence and to justify his application for leave to amend the statement of claim, claiming there is new evidence from which he infers the existence of a ‘secret retainer’. The defendants say there is no basis in fact to support this inference and the unreasonableness of the inference drawn supports the claim that Dr Zaghloul is incapable of managing his own affairs in respect of these proceedings.
   88
   In short, they say that Dr Zaghloul makes outlandish allegations without any evidence to support those allegations.
   [2025] WADC 27
   BOWDEN DCJ
   [2025] WADC 27 (PC) Page 24
   89
   In relation to the defendants’ submissions relating to the changing nature of Dr Zaghloul’s claims the appeal court will shortly rule on those changes. If the appeal court grants leave for the second proposed statement of claim to be filed, many of the issues raised by the defendants will disappear and the various claims will be assessed on their merits in light of the pleadings allowed by the appeal court.
   90
   If the appeal court refuse leave, then the claim will proceed on the four grounds of negligence previously allowed.
   91
   If Dr Zaghloul seeks to run a case contrary to that appeal court decision, it would be anticipated that the trial judge would confine him to the permissible four grounds of negligence. That is a trial management issue for the trial judge. By trying to introduce evidence outside the four grounds of negligence Dr Zaghloul may well disadvantage himself. An unrepresented litigant has the right to disadvantage himself.
   92
   The defendants’ submissions that Dr Zaghloul’s conclusion that a secret retainer exists is based on assumptions which have no basis in fact or logic and are disputed on oath by the first defendant are not matters which in isolation would not lead to a conclusion that the plaintiff is incapable of conducting this litigation. Issues of credibility and the drawing of inferences from facts are for the trial judge.
   93
   The fact that Dr Zaghloul was somewhat sceptical about counsel’s physical destruction of the brief and drew a sinister conclusion from that act is not that hard to understand. Judicial experience shows that generally when a document of any nature is destroyed, the opposing party draws a sinister conclusion, it is just the nature of litigation.
   94
   Dr Zaghloul’s conduct in repeatedly asking why the first defendant would not agree to answer interrogatories despite the defendant answering them is capable of showing a degree of stubbornness on the plaintiff’s behalf but is not uncommon for litigants.
   95
   Dr Zaghloul’s conduct in reporting the first defendant to the police is not by itself or in combination with other matters, in my view, sufficient to justify the application being granted.
   96
   Dr Zaghloul’s conduct in relation to the meridian investigation report and in denying receiving a letter from the defendants in circumstances where one could reasonably infer from his reply to that letter that he did shows a certain rigidity in thought and lack of detail in the conduct of the litigation but again, that is not uncommon.
   [2025] WADC 27
   BOWDEN DCJ
   [2025] WADC 27 (PC) Page 25
   97
   The defendants refer to the nature of Dr Zaghloul’s claims and the manner in which he prosecutes them in alleging that the defendants acted to destroy his claim, had betrayed him and were involved in systematic collusion. Dr Zaghloul’s correspondence to the Federal Court (Mr Popperwell’s affidavit of 18 March 2025, page 17) of 1 January 2025 claims $13.3 million in disgorgement of profits resulting it appears from the sale in August 2015 of the defendants’ business for approximately $13.27 million to Shine Lawyers (Mr Popperwell’s affidavit of 18 March 2025, page 77). Issues of remoteness of damages and causation are issues for the trial judge.
   98
   The quantum and the manner in which damages are claimed does not itself indicate that Dr Zaghloul is incapable of managing his affairs in this litigation. Similarly, the language that he has used in some of his correspondence indicates a certain zealousness in pursuing his claim, but again that does not establish incapacity.
   99
   The matter must be approached in a commonsense way. The question of whether Dr Zaghloul has the mental capacity to manage his affairs in respect of these proceedings must be considered in light of the court’s experience in dealing with litigation conducted by a self-represented party who has had in the past or currently has mental health issues and the court’s ability to manage those trials: Stewart v Hames [2021] WADC 93; Zerjavic v Chevron Australia Pty Ltd [2019] WADC 9 are just two examples.
   100
   The question at this stage is whether an examination order should be made. The purpose of such an order is to assist the court in the declaration application. Whilst it is important not to conflate the two issues, before an examination order, it must be demonstrated that the declaration application would have reasonable prospects of success.
   101
   The defendants have not satisfied me that Dr Zaghloul does not understand the factual framework of his claim and the type of evidence required to succeed. He clearly has some understanding of what is required in the proceedings although based on the various pleadings and applications to amend pleadings he has issues understanding what is relevant to these proceedings. This is not uncommon with represented and unrepresented litigants and can be trial-managed.
   102
   The defendants have not satisfied me that Dr Zaghloul is not capable of assessing the impact of particular evidence on his case. He is able to understand the court process and the rules for conducting
   [2025] WADC 27
   BOWDEN DCJ
   [2025] WADC 27 (PC) Page 26
   his case and the roles of witnesses. Whilst there have been issues over
   the pleadings he will be confined to the issues relevant to the pleadings allowed by the Court of Appeal. I am not satisfied that Dr Zaghloul is not capable of complying with the basic rules for conducting his case and directions given by the judge. He has demonstrated an understanding of the roles of counsel for the defendants and the judge and he is capable of respecting those roles. Outwardly he is capable of controlling his emotions if adverse rulings are made in the trial or evidence adverse to his case is given by witnesses. There is nothing to indicate that he is not able to control his emotions or behave in a non-abusive and non-threatening manner. Outwardly he has some understanding that he could lose the case and would be required to pay costs if his claim is not successful.
   103
   It has not been demonstrated that Dr Zaghloul is incapable of forming the view that a layperson of reasonable intelligence and commonsense would form if the cumulative effect of the evidence was such that a particular claim would fail.
   104
   There is nothing that demonstrates Dr Zaghloul is incapable of assessing any settlement process or that indicates a long and complex trial would result in stress and pressure that would be harmful to his physical or mental health.
   105
   Dr Zaghloul clearly has a strong sense of entitlement to his claim and believes in the justice of his case.
   106
   There is ample evidence to show that he has a tendency, when a ruling is made against him, to try to relitigate or achieve his aims by different means but that does not lead me to conclude that the application for a declaration has reasonable prospects of success.
   107
   The defendants have failed to satisfy me that the declaration application has a reasonable prospect of success, and accordingly there is no basis for the examination order and I dismiss the application and order that the defendants pay the plaintiff the costs of the application.
   [2025] WADC 27
   BOWDEN DCJ
   [2025] WADC 27 (PC) Page 27
   I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
   IB
   Associate to His Honour Judge Bowden
   6 MAY 2025