Mahmoud v Ghahreman

1. [1]

   MITCHELMORE JA: I agree with the orders that Kirk JA proposes for the reasons his Honour has given. His Honour’s reasons on the applicant’s capacity and the adjournment application reflect the views that I formed as to those matters at the hearing.

2. [2]

   KIRK JA: The respondent, Dr Ali Ghahreman, performed spinal surgery on the applicant, Mr Mohamad Mahmoud, in late 2023 following an occupational injury. The applicant asserts that during this surgery the respondent performed a procedure to which he had not consented. The applicant has initiated more than one proceeding against the respondent based on this belief. One such proceeding was filed in the District Court. The primary judge, Newlinds DCJ, struck out the statement of claim filed by the applicant and summarily dismissed the proceedings, on the application of the respondent. His Honour also made a gross sum costs order in the respondent’s favour.

3. [3]

   The applicant has sought leave to appeal against those orders. In this Court the applicant represented himself, as he did in the Court below. Leave is required to appeal from an interlocutory judgment or order of the District Court: District Court Act 1973 (NSW), s 127(2)(a). The applicant queried whether a decision summarily to dismiss proceedings is interlocutory. That point is well-established: eg Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [10]-[13]; Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 at [24]. The applicant thus requires leave to appeal. The application for leave and the appeal were heard concurrently.

4. [4]

   A summons commencing an appeal must be filed within 28 days after the “material date”, relevantly being the date on which formal orders were made in the proceeding: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.10. The orders of the District Court against which the applicant seeks leave to appeal were made on 23 and 28 April 2025. The applicant filed his summons seeking leave to appeal on 14 October 2025 (an amended summons was filed on 19 December 2025). He thus requires an extension of time to proceed with the application for leave. The respondent did not identify any specific prejudice resulting from this delay and it is appropriate to grant an extension of time for the filing of the applicant’s summons.

5. [5]

   An issue arose as to the applicant’s capacity to institute and maintain this application. Despite his evident difficulties in engaging with the legal process, I am not persuaded that he does not have sufficient capacity to do so in the context of this application. In the course of the hearing the applicant also sought an adjournment, which the Court refused for reasons to be provided.

6. [6]

   In all the circumstances of this matter leave to appeal should be dismissed with costs. In what follows I first set out the factual and procedural background ([7]-[15]), then address the issue of the applicant’s capacity ([16]-[39]), then give reasons for refusing the adjournment application ([40]-[49]), before considering the issue of leave to appeal ([50]-[68]).

Background

1. [7]

   The applicant had been a tow truck driver. He suffers from lower back issues which he says were sustained in the course of his employment. He was referred to the respondent by a general practitioner. They had several consultations between November 2019 and December 2023. On 14 December 2023 the respondent performed a surgical procedure described as a “lumbar discectomy/ decompression at L4/5 and L5/S1” on the applicant. The purpose of this procedure was to decompress a nerve in the applicant’s spine. The applicant subsequently complained that the respondent had performed surgery beyond that to which he had consented. This complaint appears to have formed part of a broader concern of the applicant that the police and organised crime elements were protecting the applicant’s employer by, amongst other things, influencing the treatment and advice given to the applicant by healthcare workers and other professionals.

2. [8]

   The applicant filed a complaint with the NSW Health Care Complaints Commission (HCCC) in respect of the respondent. The respondent provided a detailed written response. Amongst other things he said:

3. [9]

   The applicant’s core complaint then and now seems to be that he did not consent to the removal of the bony overgrowth by laminectomy. Rather, he says he only consented to L4/5 and L5/S1 decompression. However, in June 2024 the HCCC determined not to take any action on the complaint. It said in its correspondence with the applicant that “[t]he medical records indicate that you consented and underwent an uneventful laminectomy”.

4. [10]

   The applicant commenced proceedings in the Local Court in April 2024. In the amended version of his pleading he alleged a non-consensual laminectomy. The relief sought involved gaining access to unredacted copies of certain documents concerning the operation and the applicant’s subsequent complaint to the HCCC; obtaining pictures and video recordings of his back operation; and nominal damages for pain and suffering and “time spent”. It appears the proceedings were dismissed by a Registrar of the Local Court in August 2024.

5. [11]

   In September 2024 the applicant commenced proceedings in the District Court. His statement of claim contained the same core allegation about the laminectomy. The relief sought is set out below at [52]. In brief, this included being given the opportunity to cross-examine another doctor involved in the operation, and to have questions answered in relation to who authored the respondent’s response to the HCCC, and to have the chance to “taint” that response. The relief claimed section included the statement that it “needs to be noted that the plaintiff is still in discovery mode”. No claim was made in terms for damages for medical negligence.

6. [12]

   The applicant was referred to the pro bono panel by a registrar of the District Court in November 2024. In February 2025 the Judicial Registrar indicated he had received correspondence from the solicitor who had picked up the referral advising that he and the applicant had mutually agreed he would not continue to act for the applicant. In relation to that referral the applicant said in an affidavit that he spoke to two separate people at the firm: the first “didnt introduce himself or give his name, and sounded like a 30-40 yo”; the second “was a senior man” but “recommended that I withdraw the case” (all quotations from the applicant’s materials are as written).

7. [13]

   Later in February 2025 the respondent filed a notice of motion seeking that the applicant’s claim be struck out or dismissed and for the applicant to pay costs on a gross sum basis. That motion was heard by Newlinds DCJ on 23 April 2025. In an ex tempore judgment his Honour made orders that day striking out the statement of claim and dismissing the proceedings. His Honour made a gross sum costs order in favour of the respondent, assessed at $12,000. The applicant was granted leave to apply to set aside or vary the costs order, which he subsequently did. His Honour dismissed that application in chambers on 28 April 2025, giving written reasons. It is from the dismissal and costs orders that the applicant now seeks leave to appeal.

8. [14]

   In June 2025 the applicant, again representing himself, commenced a third set of proceedings, this time in the Supreme Court. The statement of claim filed in that matter opened new ground insofar as it identified causes of action in negligence, assault and battery, with a claim made for damages of $2.5 million. Pursuant to an order made by Rothman J on 25 September 2025, the Supreme Court proceedings currently are stayed “pending the satisfaction, or staying or quashing of the orders made by the District Court between these parties on 23 April 2025”: Mahmoud v Ghahreman trading as Prime Neurosurgery [2025] NSWSC 1124. The reference to “satisfaction” of the orders made by the District Court presumably refers to payment of the $12,000 in costs ordered by that Court. At the same time, Rothman J made an order again referring the applicant to the pro bono panel with respect to both the Supreme Court and the foreshadowed Court of Appeal proceedings. No practitioner picked up that referral.

9. [15]

   In October 2025 the respondent filed a summons in this Court seeking leave to appeal from the decision of the District Court. An amended summons was then filed with leave in December 2025. The applicant has filed a series of documents in the nature of submissions, including the amended summons and the draft notice of appeal themselves. The core of the applicant’s complaint appears to concern alleged bias and procedural unfairness on the part of the primary judge. Another consistent element of the applicant’s argument was that he lacked capacity to conduct the proceedings himself.

The applicant’s capacity

1. [16]

   The applicant raised his legal capacity in terms, referring to r 7.14 of the UCPR. In his various written submissions the applicant said he was “mentally and cognitively challenged”, “not Coherent [and] mentally unfit, and not legally minded” and “slow in the brain”. His submissions raised the issue of a person under legal incapacity being required to carry on proceedings by a tutor, although it was not clear that he had understood the function of a tutor. The applicant made further oral submissions to the same effect, including stating that “the left and right side of the brain … doesn’t communicate”.

2. [17]

   Independently of his own assertions regarding his cognitive abilities, documents filed by the applicant in the various proceedings raise concerns about his mental capacity. He has filed numerous documents which are somewhat rambling and repetitious. He also seems to hold paranoid beliefs; for example:

   1. (1)

      The applicant has in the past worked as a rideshare driver. He said that “[m]y personal honest opinion is there is police sitting inside the uber dispatch centre profiling and selecting people to get into my car, and ruin my uber rating”.

   2. (2)

      He asserted that the police “incited hatred and tension between me and bikies after written a letter to crime stoppers in regards to alleged police corruption”, and in that context he referred to an encounter with an “executioner”.

   3. (3)

      He suggested that police officers have broken into his vehicle at least twice, once to steal a can of soft drink and once to place a SIM card in the vehicle with which to track him.

   4. (4)

      He said that the District Court proceeding “was scripted” and “allegedly orchestrated by the police”. The applicant also said that the advice he obtained from at least one solicitor was possibly “scripted”, with the solicitor having been “spoon-fed by the police”. This allegation formed part of the applicant’s broader complaint, discussed below, that past solicitors have consistently acted against his own interests.

   5. (5)

      He believed that he had been attacked with a “microwave beam machine” by an unknown party, causing some sort of cerebral injury.

3. [18]

   In this context, an email was sent to the parties by the Registrar of this Court the day prior to the hearing in the following terms:

4. [19]

   The applicant’s position in response to these queries varied. Shortly after receiving the email he filed a supplementary submission headed “Submission re: no win no fee solicitors”. Amongst other things he said in that document:

5. [20]

   Thus he appeared to reject any suggestion of having a tutor appointed, and certainly not the NSW Trustee. During the hearing, by contrast, he initially stated that he was in favour of seeking the appointment of a tutor pursuant to a psychiatrist’s report. However, when the role of a tutor was explained to him and a brief adjournment was given to allow him time to consider the issue, he indicated he did not wish for the NSW Trustee to act as his tutor. He also stated that he had no friends or family available to act in this capacity. The applicant’s ultimate position, as I understood it, was that he was not under a legal incapacity warranting the appointment of a tutor; that there was no one upon whom he could call to act in that capacity in any event; and that he would not consent to the intervention of the NSW Trustee.

6. [21]

   The applicant’s complaints about his capacity mixed together issues of his mental capacity and his lack of legal abilities. His refrain in this Court – as in the Court below – was that he wanted a solicitor appointed, albeit one that he did not have to pay for. That was made clear in his submission filed in response to the Registrar’s email. And he had earlier said in one written submission to this Court that “im not legally minded and im not mentally fit to be representing myself”, and “you can tell im not capable of representing myself mentally and legally, the hearing should have been stopped and a solicitor appointed”.

7. [22]

   The respondent also filed a supplementary submission in response to the Registrar’s email. That submission said that the respondent should not have to pay for a medical examination of the applicant. It also made the following points:

8. [23]

   Part 7 Div 4 of the UCPR is titled “Persons under legal incapacity”. Rule 7.13 defines legal incapacity. It provides that “[i]n this Division, person under legal incapacity includes a person who is incapable of managing his or her affairs”. This definition supplements the definition contained in s 3 of the Civil Procedure Act 2005 (NSW) (CPA).

9. [24]

   Rule 7.14 restricts the ability of persons under legal incapacity to institute or conduct legal proceedings. It provides:

10. [25]

    No formal instrument of appointment or court order is required for a person to become the tutor of a person under legal incapacity: r 7.15(1). Rule 7.18 gives the court a power to appoint a tutor for a party to proceedings:

11. [26]

    An application for such an order must include evidence that the relevant party is under legal incapacity and that the proposed tutor consents to the appointment: r 7.18(5). As is implicit in that rule, there is a presumption that a person of full age is capable of managing their affairs: Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 at [36]. A person asserting incapacity thus bears a burden of proof and persuasion to establish the point: note Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398; [2006] FCA 900 at [66]; Slaveski v Victoria (2009) 25 VR 160 at 176; [2009] VSC 596 at [25]; Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162 at [17]. Given that the court can raise the issue of its own motion it will not always be the case that some party bears an onus. Nevertheless, the court would not hold that a litigant was under legal incapacity unless positively satisfied of that conclusion.

12. [27]

    Here, the issue of capacity has been raised – if, ultimately, in equivocal terms – by the applicant. In the context outlined there is in any event a basis for questioning his capacity. It is thus appropriate to consider the issue. That is so notwithstanding that no formal application for the appointment of a tutor was in the end made by either party, and that it did not appear there was anyone known to the applicant who was available to act in that capacity. If the applicant does lack legal capacity then his rights and interests might be prejudiced by his current litigation. The court may stay proceedings where a person is under legal incapacity where no tutor can be appointed.

13. [28]

    The question to be addressed here is whether the applicant is “incapable of managing his … affairs” (quoting r 7.13). In context, the term should not be understood to refer to his ability to manage his affairs in general: note Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627 at [155]. Whether a person is under a legal incapacity “is always a task-specific matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question”: Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462 at [168]; see also Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [174]-[175]; and note analogously Banks v Goodfellow (1870) LR 5 QB 549; Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17; Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 169 and 188-189; [1985] UKHL 7.

14. [29]

    The task at hand here – the affair which must be managed – is the conduct of this litigation: note similarly Masterman-Lister at [18], [27] and [62]-[64]. Legal capacity to undertake that task involves the ability to understand, evaluate and make decisions about the issues involved in, and the possible consequences of, the conduct of the proceedings: see eg Masterman-Lister at [75]; Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193; [2004] SASC 102 at [26]; Rappard v Williams [2013] NSWSC 1279 at [78]. This involves an evaluative assessment in which various factors may be relevant depending on the circumstances of the individual case. In Slaveski v Victoria (2009) 25 VR 160 at 176; [2009] VSC 596 at [32] an extensive list of such factors was posited. The list is best seen as a collection of matters “potentially relevant to the question of capacity”: Mao v AMP Superannuation Ltd [2017] NSWSC 987 at [19] (emphasis added).

15. [30]

    Where a person is self-represented, the level of capacity required will commonly be somewhat greater than that required to instruct a lawyer because the person must manage court proceedings themselves in an unfamiliar and stressful situation: Murphy at [35]; Drummond v Canberra Institute of Technology (No 3) (2022) 294 FCR 346; [2022] FCAFC 169 at [107]. They will lack “the assistance of such proper explanation from legal advisers … as the case may require”, which is a matter otherwise relevant to assessing capacity: Masterman-Lister at [75]. As just explained, the issue to be addressed is the litigant’s capacity to understand (etc) issues involved in the litigation. It is not whether or not they have the ability to represent themselves well. Many litigants in person lack that ability whilst having full legal capacity.

16. [31]

    The issue is one for the Court itself to determine. Medical evidence is always likely to be of assistance but is not always available and, in any event, may not be determinative. The Court can take account of what it has observed: note Drummond at [105]; Slaveski v Victoria (2009) 25 VR 160 at 176; [2009] VSC 596 at [34]; Masterman-Lister at [17].

17. [32]

    The applicant indicated in the course of the hearing that he had previously had some consultations with a psychiatrist, who had prescribed him a certain medication. He said he had a consultation booked with another psychiatrist later this month. He suggested that perhaps he could obtain a report from a psychiatrist as to his capacity. It was not apparent how he would be able to afford to pay for such a report in circumstances where he informed the Court that he only had some $2000-$3000 in his bank account. In any case, once the nature and role of a tutor had been explained to the applicant he indicated he did not wish to pursue that course. The adjournment that he ultimately sought – which the Court refused – was in order for him to seek legal representation, not a medical report.

18. [33]

    Despite the lack of medical evidence the Court must do the best it can to make its own assessment, where the starting presumption is that the applicant does have capacity. In all the circumstances I am not positively satisfied that the applicant does not have capacity to conduct his application before this Court.

19. [34]

    The applicant has shown a reasonable ability to grasp rules, legal principles, directions and court rulings. As the respondent submitted, the applicant has been able to attend to the tasks associated with running the proceedings. His amended summons correctly identifies that he requires leave to appeal and an extension of time. He raised a reasonable query as to whether summary dismissal constitutes an interlocutory decision. When a tutor’s role was explained to him during the hearing – in particular, the fact that the appointment of a tutor would not necessarily lead to him securing legal representation and may lead to the matter being discontinued – he took an apparently rational decision not to apply for such.

20. [35]

    His statement of claim filed in the concurrent Supreme Court proceedings pleads, in broadly comprehensible terms, a claim in medical negligence. Indeed, his core factual allegations against the respondent have remained relatively clear and consistent over the course of the HCCC complaint and the various court proceedings. One of the submissions he made to this Court was that he needed to “finalise my appeal matter” so he could return to conducting his Supreme Court proceedings. That submission manifested that he understood that Rothman J had stayed that case pending payment of the costs ordered by the primary judge.

21. [36]

    The applicant demonstrated an understanding of proper procedure and etiquette. He addressed the bench correctly and respectfully throughout proceedings, including when his application for an adjournment was refused. He was not discourteous to the respondent’s counsel. His correspondence with the respondent’s solicitors does not appear to have been offensive or abusive: cf TA v IA [2017] NSWSC 1597 at [107].

22. [37]

    These matters suggest the applicant understands what has occurred in his litigation to date; has the ability to understand the manner in which his claims must be articulated and prosecuted; has been able to make rational decisions about the conduct of the litigation; and has been able to file and serve relevant documents. As indicated above, those documents are in general poorly drafted and manifest paranoid thoughts. But the issue is not whether he can draft the requisite court documents well. And even given the nature of the documents, he has managed to convey in an understandable way what his criticisms are of the decision of the primary judge.

23. [38]

    The consistency and vehemence of the applicant’s statements about requiring legal representation in fact tend to support a conclusion that he has capacity to conduct this proceeding. For example, the applicant frankly acknowledged during the hearing that he was taking a “risk” by appearing in person because “to run an appeal you need someone that knows what he’s doing, someone like a barrister or a solicitor”. That the applicant acknowledges that he is “not legally minded” and cannot effectively represent himself suggests that the fact that his ideation appears disordered in some respects does not substantially impair his ability to understand and evaluate the matters involved in a legal proceeding. His reference to the risk he was undertaking manifests an understanding of the possible consequences of the litigation.

24. [39]

    No doubt the applicant would be able to present his case more effectively if he were legally represented. But that is not the test. The question is whether the material before the Court, and its observation of him, is enough positively to establish that the applicant lacks the capacity to conduct this proceeding. In my view it is not.

Adjournment application

1. [40]

   After the applicant indicated that he did not want to have a tutor appointed, and it was suggested to him that we should proceed to deal with his application, he said: “I wouldn’t know how to. I wouldn’t know how to argue, I haven't got the capacity or the intellect to argue.” He then requested an adjournment of “maybe two weeks, three weeks” for the purpose of attempting to locate a solicitor who would represent him. It was implicit in the applicant’s various written and oral submissions that he is impecunious and so requires representation on a pro bono or speculative basis. So much was also apparent from his statement in court that he has already spent much of his “life savings” on the matter.

2. [41]

   The application was opposed by the respondent. Counsel for the respondent submitted that further costs would be incurred both as a result of having to re-prepare for an adjourned hearing and from having to consider the further written submissions and correspondence the applicant would likely produce in the meantime. She referred to the guiding principles articulated in ss 56-60 of the CPA, giving particular emphasis to the principle that practice and procedure should be such that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute: CPA, s 60.

3. [42]

   After adjourning briefly to consider its position the Court refused the application for adjournment and indicated that reasons would be published subsequently. The following are my reasons for having joined in making that order.

4. [43]

   There can be little doubt that the presentation of Mr Mahmoud’s application to this Court would be aided by him having the benefit of legal representation. However, there seems to be a low likelihood of him obtaining any such representation. Even if he did, an issue would then arise about whether he would maintain the representation. As noted above, the applicant was referred to the pro bono panel during the District Court proceedings and successfully secured lawyers to advise him, but they parted ways shortly thereafter. Another referral was made in the Supreme Court proceedings but was not picked up by any practitioner.

5. [44]

   By his account, the applicant has met with some five or six further solicitors in relation to his various proceedings and potential claims. He declined to instruct, or continue to instruct, the solicitors each time. He said in one written submission that “it is my belief that the prospective relationship has been disrupted so the solicitors don’t help me, I strongly believe the police are involved”. In oral submissions the applicant described one solicitor with whom he consulted as “a smart alec”, and stated that another solicitor terminated the relationship “because I don’t listen”. The applicant said that “[i]f I approach a solicitor and, you know, the police get involved, what's going to happen, they're going to drop it, so I want [the Court] to appoint one for me” and direct that solicitor not to be influenced. The applicant indicated that if there was “no disruption” then he would listen to the solicitor’s advice. At least on one view that suggests the applicant is only prepared to follow advice he likes, which might explain some of his apparent difficulty in maintaining relationships with solicitors.

6. [45]

   These are all matters which suggest that the applicant would not succeed in finding a legal practitioner to act on his behalf in the next few weeks. Even if he was successful in doing so, it is open to doubt that he would continue the relationship if the advice given did not accord with his own views.

7. [46]

   It is also relevant that the applicant made no effort to secure legal representation in this Court prior to the hearing. The matter was set down for hearing on 2 February 2026 and heard some six weeks later on 17 March 2026. When asked whether he had taken any steps in the intervening period to obtain legal representation the applicant stated that he had not. This was said to be because there would be “no point” in seeking representation owing to the inevitability of “disruption”.

8. [47]

   Furthermore, there is force in the respondent’s submission as to delay and proportionality of costs, taking account of ss 56-60 of the CPA. I accept that even if the adjournment was only for, say, two weeks, counsel for the respondent would still need additional time to re-prepare for the hearing. Moreover, the applicant has filed numerous “submissions” documents in this Court. In that context, it is likely that the applicant would produce more submissions and correspondence were the matter to be adjourned, which would require further consideration and expenditure of resources on behalf of the respondent. No doubt owing in part to the volume of this material and associated correspondence, the solicitor with conduct of the matter for the respondent states in her affidavit of 16 March 2026 that the respondent has incurred costs in these proceedings in the order of $61,000. It seems unlikely that the applicant will be in a position to meet any costs order made against him. Thus a costs order would not salve the prejudice of the additional costs likely to be incurred by the respondent.

9. [48]

   It is also relevant that the respondent has been burdened with having to respond to multiple proceedings filed by the applicant in different courts. The costs of having to do so are not limited to the financial. Prolonging the resolution of this application is itself a form of detriment to the respondent.

10. [49]

    In light of the prejudice to the respondent from granting an adjournment, the low likelihood that it would make any difference to the applicant’s lack of representation, and the fact that the applicant has not taken steps in recent times to seek such representation, granting the adjournment belatedly sought by the applicant was not warranted.

Leave to appeal

1. [50]

   Principles relevant to the grant of leave to appeal were summarised in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [25]-[36]. As has been said innumerable times, in general an applicant must establish that the proposed appeal involves an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable. However, that tripartite formulation does not exhaust the considerations that may be relevant to assessing whether leave to appeal should be granted. As was said in Mohareb:

2. [51]

   Similarly, in Ample Skill Ltd v Reidy [2026] NSWCA 32 it was held that leave should not be granted in that case because there was “no practical utility in the appeal” (at [18]). Much the same conclusion applies here.

3. [52]

   The proceedings in the District Court appear to have concerned, at core, access to and questions about documents regarding the applicant’s operation. The “relief claimed” was articulated in the statement of claim as follows:

4. [53]

   No claim for damages was articulated in that statement of claim, nor was any amount identified as being sought. So much was noted by the primary judge at the hearing below. Instead, it appears that the Supreme Court proceedings are the vehicle through which the applicant seeks damages for medical negligence. In his written submissions the applicant seemed to distinguish between the present application and the Supreme Court proceedings in this manner. His reply submissions refer to “this matter, Defamation case, and the Medical Negligence case” (I understand that the applicant has issued a defamation concerns notice). Another submission states “I have still got my medical negligence case”, seemingly referring to the Supreme Court proceedings.

5. [54]

   The Court sought to clarify the difference between the two proceedings in the course of the hearing. The applicant’s responses were somewhat inconsistent. At one stage he accepted the proposition put to him that “[t]his case is not your medical negligence proceeding”. At another stage he said that he had tried to improve the quality of his statement of claim in the Supreme Court proceedings, perhaps indicating that he viewed those proceedings as a continuation of the claim summarily dismissed in the District Court. To the extent that the applicant was simply attempting to re-file the same claim in a different court, an issue of abuse of process may well arise (perhaps amongst other issues).

6. [55]

   Whatever the applicant may have intended, the better view is that the District Court proceedings did not involve a tortious claim for damages for negligence given that no such claim was made. Rather, it was concerned with access to documents and the other range of claims quoted above. It is not apparent that the claims listed there are ones that the District Court could have granted, although it is just possible that it was an attempt to make something like a preliminary discovery application under UCPR r 5.3.

7. [56]

   A question thus arises as to the utility of the present application for leave to appeal. As noted above (at [14]), the Supreme Court proceedings are stayed pending satisfaction, or the staying or quashing, of the costs order made in the District Court. In his summary of argument the applicant states:

8. [57]

   Similarly, in the course of the hearing when he was asked what this case was about he said: “I am trying to question the judgment of Newlinds J and the costs order. So, I can move on to Rothman J’s case.” The reason why the applicant cannot “return” to the Supreme Court to prosecute his medical negligence claim is that he has not complied with the District Court costs order. The applicant’s primary purpose in filing this application seems to be his desire to allow the claim in the Supreme Court to progress by overturning the costs order, rather than any desire for the District Court proceeding itself to continue. The proceedings that he wishes to progress now appear to be the Supreme Court proceedings, not those in the District Court.

9. [58]

   However, the applicant accepted in the Court below that his statement of claim had to be struck out. He continued to accept as much in this application, saying in one of his submissions that “I know the SOC is Deficient, I need a solicitor to fix it up”. There is no doubt that his concession was rightly made. As such, it was inevitable that an order would be made that the statement of claim be struck out and that the applicant would become subject to a consequential costs order. That is so regardless of whether or not the proceeding was also summarily dismissed. Therefore, even if leave to appeal were granted and the summary dismissal order overturned, the strike-out order made below and a costs order of some sort would be upheld. The applicant has shown no intention or ability to pay such costs. In this context, granting leave to appeal would not achieve the applicant’s purpose and there does not appear to be any practical utility in leave to appeal being granted.

10. [59]

    In any event the applicant did not point to any error of the type described in House v The King (1936) 55 CLR 499 at 504-5; [1936] HCA 40, as was required given the nature of the impugned decisions. He did not indicate that he sought leave to challenge the gross sum assessment itself. Rather, the gravamen of the applicant’s complaint seemed to be that the primary judge acted inappropriately and was biased in determining the application, as manifest in a number of specific allegations of error. I will treat the allegations of bias as suggesting apprehended bias, for which the relevant test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]–[8]. The applicant made a range of complaints in a multitude of documents. In what follows I will focus on what I understand to be his main grievances. Neither these nor any of the other points made by the applicant indicate error warranting orders granting leave to appeal and the upholding of the appeal.

11. [60]

    The applicant contended that while he was attempting to explain the issues he had encountered with past solicitors the primary judge changed the subject. The error alleged appears to be failure to engage with a material aspect of the applicant’s case. A review of the impugned portion of the transcript demonstrates that the applicant in fact introduced a new topic himself:

12. [61]

    The applicant had been speaking about solicitors but then raised his attempts to obtain an expert report. The transcript reflects the primary judge endeavouring to address that issue. These interactions do not manifest bias or inappropriate behaviour.

13. [62]

    Even if the primary judge had improperly cut short discussion of these issues it would nevertheless have made no difference to the issue being decided. The applicant’s claim in the District Court did not hinge on him not having been able to find a lawyer. The question for decision was whether the respondent’s motion for strike out and summary dismissal should succeed. Much the same conclusion applies in respect of the applicant’s complaint that the primary judge did not “believe that I was experiencing difficulties in getting a lawyer to represent me”. And the same applies in relation to the applicant’s complaint that his “personal honest opinion” as to police interference with his life was not accepted by the primary judge. Further, parties are not entitled to have their evidence or beliefs automatically accepted by the court. No error is shown in the primary judge not accepting that claim.

14. [63]

    The applicant also argued that bias is demonstrated by the fact the primary judge incorrectly stated that the applicant had called solicitors “thieves”. This interaction occurred in the context of his Honour attempting to understand the difficulties the applicant said he had encountered with past solicitors. The applicant denies he ever referred to those solicitors as thieves. That may well be the case. But even if the word was misattributed its use does not manifest anything approaching apprehended bias. The submissions and evidence before the primary judge made clear that the applicant holds strong, critical views about the character and ulterior motivations of solicitors with whom he has consulted. That was, in substance, the point that was being made by the primary judge. The applicant did not explain the relevance of his contention that he was “entrapped” by the primary judge through this alleged misattribution.

15. [64]

    The applicant placed weight on the fact that the motion was heard despite his not having secured legal representation and where his capacity should have been doubted. He said: “Noticing my mental health and cognitive State [the primary judge] kept on going with the hearing, Im not mentally fit to be representing myself”. He sought to rely on R v Zhang [2000] NSWCCA 344, a case concerning fitness to stand trial in criminal proceedings. I am not persuaded that the applicant lacks capacity to conduct this proceeding, as set out above, and that lack of persuasion extends to his ability to conduct the proceedings in the Court below. Moreover, there was no reason his Honour should not have proceeded to hear the respondent’s motion despite the lack of legal representation in circumstances where the applicant had already sought to retain numerous solicitors, without success.

16. [65]

    The applicant complained that a portion of the transcript demonstrates bias because the primary judge was “instructing the defendants on what the Dr can say as an excuse to elevate [alleviate?] any liability on the Dr”. Review of the transcript demonstrates that his Honour was testing the respondent’s arguments on the motion by expressly playing “devil’s advocate” during the respondent’s submissions, and giving his views about what “a good lawyer” acting for the applicant might do with the case. His Honour was certainly not acting against the applicant’s interest by so doing.

17. [66]

    The applicant contended that he was interrupted by the primary judge in a manner which demonstrates bias or a failure to consider material arguments. The complaint focused on the following exchange:

18. [67]

    His Honour did cut the applicant off, and acknowledged as much. That fact by itself does not establish error. The CPA charges courts to facilitate the just, quick and cheap resolution of the real issues in disputes. Courts are not required to grant unlimited indulgence to a party, especially where that party seeks to make repetitious or irrelevant submissions: see eg Zhang v R (No 4) [2026] NSWCCA 8 at [118]-[119]. His Honour was clearly aware of the applicant’s contention that the form on which he had incorrectly signed his name did not undermine his case, and was aware of his core contention that he had not consented to the procedure performed. He was trying to give the applicant the opportunity to explain why the case should not be summarily dismissed despite the manner in which it had been pleaded and the nature of the issues raised. Doing so was by no means unfair.

Orders

1. [68]

   Leave to appeal should be refused. There is no reason that costs should not follow the event. The orders of the Court should be:

   1. (1)

      Time for filing the summons seeking leave to appeal is extended to 14 October 2025.

   2. (2)

      The application for leave to appeal is dismissed.

   3. (3)

      The applicant is to pay the costs of the respondent.

2. [69]

   GRIFFITHS AJA: I agree with Kirk JA. My observations of the applicant’s legal capacity accord with those of Kirk JA.