Saigal v Goel

1. [1]

   PRICE AJA: By notice of motion filed on 11 February 2026, the appellant, Shobhit Saigal, seeks an order in the following terms (“the appellant’s motion”):

2. [2]

   There is also a further amended notice of motion filed on 9 March 2026 by the proposed tutor, Shashikanth Mallegowda, which seeks the following orders:

3. [3]

   Mr Mallegowda lacks the requisite legal standing to bring such an application unless the orders sought by the appellant are granted.

4. [4]

   The appellant’s motion is supported by poorly drafted affidavits by the appellant affirmed on 1 February 2026; the solicitor for the appellant, Alexander Attapallil, affirmed on 27 February 2026; and Mr Mallegowda affirmed on 27 February 2026.

5. [5]

   Whilst the appellant refers in his affidavits to being the plaintiff, it should be clarified that he is in fact the appellant having filed on 12 December 2025 a summons in this Court seeking leave to appeal from the judgment of Kunc J delivered on 21 July 2025, where his Honour at [119] made orders that there be judgment in favour of the respondent in the amount of $248,113.61: SNS Petro Pty Ltd v Goel [2025] NSWSC 798.

6. [6]

   Mr Attapallil in his affidavit states that he is the solicitor for the tutor, however, his name also appears on the summons seeking leave to appeal as the appellant’s solicitor. In the solicitor’s certificate filed on 1 March 2026, Mr Attapallil states that he believes the appellant is a person under legal incapacity within the meaning of r 7.13 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) and believes that Mr Mallegowda is a proper and suitable person to act as the tutor and certifies, inter alia, that Mr Mallegowda has no adverse interest to the appellant and is willing and has consented to act as tutor.

7. [7]

   In his affidavit, Mr Mallegowda states that he has known the appellant since May 2025. He states that he instructed Mr Attapallil to file the appellant’s motion and includes the notice of consent filed on 1 March 2026 confirming his consent to act as the appellant’s tutor. He further states at par 8 that:

8. [8]

   Even though the application is not contentious, the principal question on the appellant’s motion remains whether he is under a legal incapacity for the purpose of carrying on his appeal so that an order should be made for the appointment of Mr Mallegowda as his tutor.

Relevant principles

1. [9]

   Rule 7.14 of the UCPR provides:

2. [10]

   Rule 7.13 of the UCPR provides:

3. [11]

   A “person under legal incapacity” is relevantly defined under s 3 of the Civil Procedure Act 2005 (NSW) (“the CPA”) to mean “any person who is under a legal incapacity in relation to the conduct of legal proceedings …”. Even though the appellant does not fall within one of the paragraphs (a)-(e) under the definition in s 3 of the CPA, the question is whether the appellant is under legal incapacity. For resolution of this question, it is well-established that the test to be applied was stated by Chadwick LJ in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162, where his Lordship said at [75]:

4. [12]

   I am mindful that whether the appellant is under a legal incapacity is always a task and time specific matter, dependent upon whether he has the ability to understand and evaluate the matters involved in the conduct of his appeal proceedings: Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [174]-[175] (Campbell JA, Basten JA and Handley AJA agreeing); Rappard v Williams [2013] NSWSC 1279 at [78] (Hallen J). There is also a presumption that a person of full age is capable of managing their own affairs, unless the contrary is proven: Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 at [36] (Handley JA, Tobias JA agreeing).

Determination

1. [13]

   The appellant states in his affidavit at par 3 that he is suffering from severe mental illness (bipolar disorder type 1) and was treated by psychiatrist Dr Raghunath Gupta at Gupta’s clinic for approximately 6 months. A report from Dr Gupta dated 8 December 2025 is annexed to the appellant’s affidavit.

2. [14]

   The appellant also states that he has an appointment with Dr Richa Rastogi, a clinical psychiatrist at Northmead, on 29 April 2026 for ongoing management and treatment and will continue to consult Dr Gupta until he finds a local psychiatrist. Dr Gupta practises in India. An issue that arises, and which the appellant’s solicitor properly acknowledges, is that Dr Gupta’s report does not comply with the Expert Witness Code of Conduct: Sch 7 and r 31.23 of the UCPR. While this does not in and of itself prevent this Court from taking Dr Gupta’s report into evidence, the failure to comply with the code may cause less weight to be given to it: Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 at [728]-[729] (McClellan CJ at CL, Latham and Rothman JJ agreeing); r 31.23(3) of the UCPR. I give modest weight to Dr Gupta’s report.

3. [15]

   In his report, Dr Gupta states that the appellant consulted him on 10 July 2025 for psychiatric assessment which included counselling; diagnosis; examination and treatment. Dr Gupta states that among the main symptoms he identified during assessment were “[m]ood symptoms, including at least one manic episode lasting more than seven days”.

4. [16]

   Under the heading “Mental Status Examination”, Dr Gupta’s said:

5. [17]

   Dr Gupta prescribed medication and administered a number of electroconvulsive therapy sessions. He opined that the appellant is suffering from bipolar disorder type 1 characterised by mood instability, manic episodes, aggression and delusional thinking. Under the heading “Reason for Opinion”, Dr Gupta stated:

6. [18]

   Dr Gupta considered that the appellant was unfit for work, was unable to manage his personal affairs and he should avoid involvement in court matters. Following an assessment on 4 December 2025, Dr Gupta deemed the appellant fit to travel to Australia under the supervision of his wife and provided a referral letter to Dr Rastogi. However, the critical problem in Dr Gupta’s report is that he does not address whether the appellant is presently capable of understanding the issues that may require decisions to be made by him in his appeal.

7. [19]

   Another relevant matter is that in the respondent’s bundle is an affidavit affirmed by the appellant on 9 December 2025 in which he states at par 7:

8. [20]

   The appellant goes on to complain about the conduct of his previous solicitor. He states at par 19:

9. [21]

   The appellant then sought an extension of time. The contents of the affidavit indicate when he returned from India, his manic episodes were mild and he well understood what was necessary to proceed with his appeal.

10. [22]

    In my view, the evidence falls short of establishing that the appellant does not have the capacity to understand that which he needs to understand to pursue his appeal and the appellant has not discharged the onus which he bears. I am not satisfied that the appellant is a person under legal incapacity for the purposes of r 7.14 of the UCPR.

11. [23]

    However, the appellant has an appointment with Dr Rastogi and that issue might be appropriately addressed in a report from her. There is also a referral letter dated 30 December 2025 from the appellant’s General Practitioner, Dr Rakshith Vijaya, to Dr Oliver Burgess seeking his medicolegal assistance. There is nothing preventing the appellant making another application when further medical evidence is obtained by him that more sufficiently establishes he is under a legal incapacity. Furthermore, the appellant’s position so far as legal representation may be clarified.

12. [24]

    A further point that presently stands against appointing Mr Mallegowda as the appellant’s tutor is that he has known the appellant for less than a year having only met him in May 2025. Whilst accepting that Mr Mallegowda is not an ineligible person under r 7.15(2) of the UCPR, the court’s general preference is that when a family member is available to be appointed as a tutor that is to be preferred over a stranger (in the circumstances when that family member does not have an interest adverse to the person under the legal incapacity): Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 at 203-204 (Hodgson J); Saravinovska v Saravinovski (No 5) [2015] NSWSC 128 at [34] (Kunc J). There is nothing in the material before me to suggest that efforts have been made to seek out an available family member.

13. [25]

    Accordingly, I make the following orders:

    1. (1)

       The appellant’s motion is dismissed with the costs of the motion to be costs in the cause.

    2. (2)

       It follows that Mr Mallegowda’s motion is dismissed with no order as to costs.