Zaghloul v Bayly

[2023] WASCA 64

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Application to strike out defence and enter summary judgment
4. › Whether defence adequately pleaded
5. › Whether discovery default warranted striking out defence
6. › Whether genuine issues of fact existed requiring trial
1. Practice and Procedure
2. › Appeal
3. › Interlocutory appeal
4. › Leave to appeal
5. › Whether substantial injustice demonstrated
6. › Whether decision attended by sufficient doubt
7. › Anomaly between Supreme Court Act 1935 (WA), s 60(1)(b) and District Court of Western Australia Act 1969 (WA), s 79(1)(b)
1. Practice and Procedure
2. › Appeal
3. › Appeal from registrar to judge
4. › De novo hearing
5. › Scope of appeal confined to matters in application before registrar
6. › Whether new arguments may be advanced
7. › District Court Rules 2005 (WA), pt 2 r 15(6)

Quick Take

There is typically no substantial injustice in requiring a party to prove its case at trial, and an application to strike out a defence based on a delay in discovery or alleged pleading deficiencies will not succeed where the proper remedy is an application for further and better discovery. The anomaly between s 60(1)(b) of the Supreme Court Act 1935 (WA) and s 79(1)(b) of the District Court of Western Australia Act 1969 (WA) — permitting appeals from District Court refusals of summary judgment but not from equivalent Supreme Court refusals — remains uncorrected and warrants special restraint in granting leave.