Gazal by his tutor Samadi v Deputy Commissioner of Taxation

1. [1]

   THE COURT: Mr Nahi Nasri Gazal seeks an extension of time so as to permit him to appeal (as he contends) or seeks leave to appeal (as the respondent Deputy Commissioner of Taxation (DCT) maintains) from orders encapsulating findings of criminal contempt made by the primary judge on 11 July 2025: Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2025] NSWSC 655. Those orders followed from reasons given on 24 June 2025 after a hearing on 6 and 27 May 2025. No final orders have as yet been made consequent upon the findings of contempt. There was to have been a hearing last October, but as will be explained below, that was occupied by Mr Gazal’s application to vacate. A hearing for making orders has now been fixed for 31 March 2026.

2. [2]

   The substantive issue sought to be raised in this Court is whether the primary judge erred in determining Mr Gazal’s guilt without first conducting a hearing as to his fitness to plead. That is said to arise because, so it is said, there was and is a “real and substantial question” as to Mr Gazal’s fitness to plead. No challenge is sought to be made to any other aspect of the findings of guilt. However, there are two aspects to the challenge. First, there is the way the argument was advanced in the written submissions, which was that “the contempt hearing occurred when there was a real and substantial question about Gazal’s fitness to plead and stand trial”. This turns on what was placed before the primary judge on 6 and 27 May 2025. Secondly, there is a more unyielding submission, only advanced orally in this Court, that irrespective of what was said or not said before the primary judge, the material placed before this Court entitled and required a finding that there had been a real issue as to Mr Gazal’s capacity in May 2025, with the result that the findings of contempt needed to be set aside. Mr Reynolds, who appeared in this Court but not at first instance, made it clear that both submissions were pressed, and that the submissions were independent of one another.

3. [3]

   In order to deal with both submissions, it is necessary to explain the factual and procedural background. The factual background of the proceedings, and the conduct giving rise to the alleged contempt, can be described concisely. The procedural history of the DCT’s statement of charge is far more complicated than one might expect. At least in part, that is attributable to the fact that four counsel have appeared for Mr Gazal, and each has adopted a different approach.

4. [4]

   From time to time in the parties’ written and oral submissions there were references to “fitness to plead”, “fitness to stand trial”, “capacity” and “competence”. It is important to recognise that distinct considerations apply when assessing fitness to plead and stand trial, as opposed to considering questions of capacity in a civil context, including in relation to the role of a tutor in civil proceedings. Nothing turns for present purposes on this, except perhaps insofar as they reflect issues (which are not fully resolved) as to the applicability of concepts drawn from a criminal prosecution being imported into the civil proceedings for contempt which Mr Gazal faces.

Background to the proceedings

1. [5]

   The prosecution for contempt was by notice of motion filed in the underlying proceedings, which were commenced in late 2020. The background to those proceedings was summarised by the primary judge in earlier reasons for judgment given on 6 May 2024: Deputy Commissioner of Taxation v Westmeat Development Pty Ltd as trustee for Westmeat Development Trust [2024] NSWSC 548 at [2]:

2. [6]

   That judgment referred to a Settlement Deed entered into by, inter alia, Mr Gazal on around 1 September 2023 in which there was an acknowledgement of taxation liabilities in excess of $44.3 million: at [5]-[7]. The Deed referred to a “Settlement Amount” of $18 million, and made provision for its payment, and for judgment to be entered against certain parties including Mr Gazal in the event of default: at [9].

3. [7]

   The judgment given on 6 May 2024 was the result of the DCT’s application based on a default of the obligations in the Settlement Deed. At the hearing of that application, Mr Gazal was represented by solicitor and counsel. The orders made on that day were:

4. [8]

   Mr Gazal was (and is) the tenth defendant, and two of the other companies involved in this application were the seventh and eighth defendants.

5. [9]

   No appeal or application for leave to appeal has been brought from that judgment. Hence the proceedings to date have proceeded on the basis that Mr Gazal is a judgment debtor in an amount exceeding $17 million to the DCT.

Background to the prosecution for contempt

1. [10]

   The conduct giving rise to the findings of contempt which are the subject of this application is separate from the conduct which has resulted in judgments in excess of $17 million being entered against Mr Gazal and three companies owned directly or indirectly by him, and of which he was the sole director. Two (Belfield Development Pty Ltd and NNG Holdings Pty Ltd) were parties to the 2020 proceedings. The third (NG Sydney Corporation Pty Ltd) was not previously a party to the 2020 proceedings.

2. [11]

   Once again, for present purposes, there is no dispute about any of the following.

3. [12]

   Belfield Development and NNG Holdings banked with ANZ, and those companies were the subject of the original freezing order made in December 2020. A further freezing order was made on 26 March 2021 against NG Sydney Corporation which banked with Bankwest.

4. [13]

   The orders took a familiar form, preventing dealings which would diminish the funds in the account, subject to specified exceptions. Both orders permitted dispositions in the ordinary and proper course of the companies’ businesses.

5. [14]

   Between 5 January 2021 and 13 July 2022, Mr Gazal presented invoices to ANZ claiming to be business expenses of two of his companies and ANZ allowed the withdrawal of funds to pay those invoices. The result was that Belfield Development’s funds reduced from $1,486,019.59 to $3,016.39, and NNG Holdings’ from $3,316,123.50 to $3,096.10: see [2025] NSWSC 655 at [62] and [123].

6. [15]

   Between 20 February 2023 and 14 March 2023, Mr Gazal (or others acting on his behalf) presented invoices representing that they were business expenses of NG Sydney Corporation and Bankwest permitted withdrawals to pay those invoices, reducing the funds from $1,709,827.46 to $897.54: see [2025] NSWSC 655 at [158].

7. [16]

   The invoices were found by the primary judge to have been fabricated by Mr Gazal. The finding was based on a number of factors, including that some of the addresses did not exist, some of the invoices were in identical format, many were in the amount of precisely $99,000, some charged for identical work at the same site on multiple occasions, the developers at some of the sites which were the subject of invoices gave evidence that Mr Gazal’s companies had never been retained on those sites, and so on.

8. [17]

   The details do not matter, for there is for present purposes no challenge to any of the findings that the withdrawals of funds in the companies’ accounts were not in the ordinary and proper course of business and were contrary to the freezing orders.

9. [18]

   In short, there is an unchallenged finding that Mr Gazal caused his companies to withdraw some $6.5 million, contrary to the extant freezing orders which bound him and his companies.

10. [19]

    Nothing was said in this Court to suggest that any of the amounts withdrawn had been repaid, or had been recovered in proceedings brought against third parties. To the contrary, the DCT maintained, without objection from Mr Gazal, that the purpose of the contempt proceeding was to compel Mr Gazal to restore the funds, assuming that were possible.

Proceedings for contempt

1. [20]

   The DCT moved by notice of motion and statement of charge filed on 4 September 2024. The respondents to the motion were Mr Gazal and his three companies. In this Court, Mr Gazal was the sole appellant and (alternatively) sole applicant for leave to appeal. The companies should have been joined, but nothing turns on that. More importantly, as will be seen below, between the two days of hearing before the primary judge on 6 and 27 May 2025, a tutor (Mr Georges) was appointed to Mr Gazal, and subsequently a different tutor (Ms Samadi) replaced Mr Georges. The proceedings in this Court should have been commenced by Ms Samadi in her capacity as Mr Gazal’s tutor. That occurred pursuant to directions made by the Court on 18 February 2026.

2. [21]

   A hearing was listed in November 2024. That was adjourned on the DCT’s application, in part because of late evidence from the DCT, and in part because Mr Gazal was unrepresented.

3. [22]

   It is evident from the reasons of the primary judge, which refer to, inter alia, pages 1438, 1475, 1875, 1945-1946 and 1947-1962 of the Court Book, that a large quantity of documentary evidence was tendered against Mr Gazal and his companies. Almost none of that evidence was placed before this Court. As will be explained below, an affidavit of Mr Andreh Georges dated 26 May 2025 of six paragraphs occupying a single page was the only evidence adduced before the primary judge which was supplied to this Court. As will further be explained below, there were four letters from Dr Olav Nielssen which were also contained in the White Folder. None had been tendered before the primary judge in May. Two may be treated as having been the subject of a tender before the primary judge at the outset of the first day of the hearing, but the tender was rejected.

4. [23]

   The balance of this section derives from the reasons of the primary judge and the transcripts of the hearings on 6 and 27 May 2025, which were belatedly placed before the Court in circumstances described below.

5. [24]

   Evidently in the months between November 2024 and late April 2025 there were communications between the lawyers acting for the DCT and Mr Gazal (who was unrepresented). Some involved the Court. None were placed before the Court as presently constituted. It is clear from the reasons for judgment given on 24 October 2025 that Mr Gazal had claimed that he had sought and had been refused legal aid, and had appealed the refusal. His Honour also reproduced in full an email from Mr Gazal to the DCT dated 1 May 2025, seeking consent to vacate the hearing date. We shall return to the email, and the use made of it by the primary judge in that judgment.

6. [25]

   It appears that in April 2025, Mr Rahal was retained by Mr Gazal in relation to the contempt motion.

7. [26]

   The adjourned hearing commenced on 6 May 2025. Mr Kelly and Ms Scott of counsel appeared for the DCT, and Mr O’Connor of counsel appeared for Mr Gazal.

8. [27]

   Mr O’Connor sought to read an affidavit made by Mr Rahal, which was dated 5 May and had been served the previous evening, and which suggested the possibility that his client might lack capacity. The affidavit was not in the materials in the White Folders. There seems to be no dispute that it was made by Mr Rahal, who said he had acted for Mr Gazal in criminal proceedings in June 2024, and that an issue of capacity had arisen in respect of those criminal charges. It contained statements concerning when Mr Rahal had been retained. It said that he had been retained for some time to act for Mr Gazal in pending criminal proceedings in the District Court, but had only recently been retained to appear in the Supreme Court contempt prosecution. The primary judge addressed aspects of that timing in his reasons, to the effect that it did not fully explain the delay in Mr Rahal being retained.

9. [28]

   It is also convenient to interpolate that, shortly after being told of the possibility of an adjournment and an issue of capacity and while dealing with Mr Rahal’s affidavit, the primary judge stated that:

10. [29]

    Mr Rahal’s affidavit was not made available to this Court. However, Mr Gazal’s solicitors did include four letters from Dr Olav Nielssen, psychiatrist in the White Folder. They were central to Mr Gazal’s submissions in this Court.

11. [30]

    It is necessary to be very careful dealing with them.

12. [31]

    First, Dr Nielssen’s letters are dated 7 April 2024, 14 May 2024, 2 July 2024 and 22 October 2025. The first two dates are wrong. The hearing in this Court proceeded on the basis that they were brought into existence on or around 7 April 2025 and 14 May 2025. That is in part because, on their face, those two letters refer to documents and events in June 2024 and events in 2025, and in part because the letter of 22 October 2025 stated that there were errors as to the dates of the interviews conducted by Dr Nielssen, which had been on 1 July 2024 (shortly before the 2 July 2024 report), 7 April 2025 (the date of the 7 April 2025 letter) and 12 May 2025, two days before the 14 May 2025 letter.

13. [32]

    The error in the date of the 7 April letter was corrected in the index to the White Folder. The error in the date of the 14 May letter was not corrected in that index. It will be convenient in what follows to refer to “the 7 April letter” and “the 14 May letter”.

14. [33]

    Secondly, Mr Rahal’s affidavit of 5 May 2025 attached the wrong letter. The 2 July 2024 letter was attached, not the 7 April letter. The primary judge pointed this out when the affidavit was sought to be read, granted a short adjournment to permit counsel to deal with it, following which counsel sought to tender the 7 April letter and a letter of instruction dated 7 April 2025, which were marked MFI#3 and MFI#4 (the affidavit and its exhibit were MFI#1 and MFI#2). The letter of instruction was not provided to this Court.

15. [34]

    The 2 July 2024 letter is seven pages long and follows a familiar form. It refers to an interview on 23 May 2016 in relation to a previous matter, a “health summary and report by Mr Gazal’s general practitioner, Dr Alex Andric, dated 25.6.24”, “Medical records from admissions to Sydney Hospital in January, 2018 and 14.6.24”, and a consultation with Mr Gazal and his wife on 1 July 2024. It said that the possibility of Mr Gazal exaggerating his condition had been raised when he presented to Sydney Hospital, but “it was soon apparent to the doctors who examined him that he had a disabling neurocognitive disorder”. Dr Nielssen expressed the view that Mr Gazal was unfit for prison, in part because Mr Gazal “would not fully comprehend the effect of imprisonment because of the degree of his cognitive impairment, and hence the retributive element of imprisonment would be irrelevant”, and in part because “New South Wales prisons cannot readily provide Mr Gazal with the necessary level of care”.

16. [35]

    The 7 April letter referred to the earlier interviews, the documents mentioned in the 2 July 2024 letter, and further documents briefed, namely, an amended court notice with 96 charges of obtain financial benefit by deception from 2018-2020, a statement of facts, a criminal history, and “[a] report by a neurologist, Dr Alessandro Fois, dated 1.7.2024”. None of those documents appears to have been placed before the primary judge. None was provided to this Court. Dr Nielssen relied on those documents, but also upon his own examination of Mr Gazal, to conclude that he was permanently unfit for trial. Dr Nielssen noted that Dr Andric (the general practitioner) had written that he had seen Mr Gazal approximately fortnightly for ten years, and that Dr Fois (the neurologist) wrote that he had reviewed Mr Gazal on 17 occasions over a three year period.

17. [36]

    Thirdly, the 22 October 2025 letter was, self-evidently, not before the primary judge in May 2025. It was sought to be put before the primary judge at the October hearing. On that occasion, its tender (which accompanied a renewed attempt to tender the 7 April letter) was refused, but it was marked for identification.

18. [37]

    Fourthly, and importantly, and counter-intuitively given the adjournment that was granted by the primary judge on 6 May, the 14 May letter (ie that was wrongly dated 14 May 2024 but in fact brought into existence around 14 May 2025) was not only not tendered before the primary judge in the May hearings. It was never sought to be tendered to the primary judge. It is not placed before this Court so as to understand the course of what occurred before the primary judge. It is a document included in the White Folder out of order, with a wrong date, which is sought to be adduced into evidence pursuant to s 75A of the Supreme Court Act 1970 (NSW) without complying with the rules applicable in this Court.

19. [38]

    The 14 May letter referred to earlier interviews and reports. The standard wording on the first page was altered. The earlier letters said simply “I have read and agree to be bound by the code of conduct for expert witnesses”. The 14 May letter added a further statement as to Dr Nielssen’s expertise, his qualifications, and an “attached resume”. No resume was attached, but the White Folders contained, separately, a single page undated resume from Dr Nielssen. The letter stated that he had made all inquiries and that no information had been omitted. These changes are consistent with Dr Nielssen having been told that his previous letters fell short of complying with the code of conduct, and the doctor having altered the language of his letter so as to reduce the non-compliance.

20. [39]

    The 14 May letter referred to an interview on 12 May 2025 in his office, accompanied by Mr Gazal’s wife and a male carer. Dr Nielssen confirmed the opinion in his most recent report, and then addressed six questions which were said to have been contained in “your letter dated 12.5.24”, the first two of which referred to the amended statement of charge. Dr Nielssen expressed the opinion that Mr Gazal was unable to understand the amended statement of charge, unable to instruct his lawyers, and more generally was unable to understand factual matters, or to communicate in a coherent way. He said that he believed that “he has been deprived of the capacity to understand and communicate his understanding since at least 1.7.24”.

21. [40]

    Pausing there, because this letter was never the subject even of an attempted tender before the primary judge, there is nothing in his Honour’s reasons addressing the inconsistency between Dr Nielssen’s views, and the matters upon which his Honour ultimately relied, namely, Mr Gazal’s personal communications with the DCT and the Court, and the seeming ability of Mr Gazal’s solicitors to obtain instructions from him.

22. [41]

    This was raised during the hearing, and Mr Reynolds maintained that he had assumed, in the absence of opposition from the DCT, that there was no objection to the tender. Ultimately, nothing turns on this. However, it is important to record that we do not accept that, in the circumstances of this case, that was an appropriate stance to take.

23. [42]

    The White Folder was prepared by Mr Gazal’s solicitors and filed on 20 November 2025. The index identified the four letters by Dr Nielssen, and corrected the date of the 7 April letter, but did not correct the 14 May letter. The written submissions do not in terms mention the 14 May letter.

24. [43]

    It is true that footnote 12 of the summary of argument states, albeit in a typeface that does little to encourage its being read, following a reference to Roberts v R [2023] NSWCCA 187 at [173]:

25. [44]

    Those submissions were dated 13 November 2025, a week before the White Folder was filed. It is possible that at the date they were prepared, a decision was in the process of being made to seek to rely on the 14 May letter. It is also possible that there was confusion on the part of those preparing the White Folders and the 14 May letter was included by mistake. The wrong dates on Dr Nielssen’s letters, the fact that the error in the date of the 7 April letter was corrected on the index, but not that of the 14 May letter, and the fact that Mr Rahal had made an affidavit in the proceedings annexing the wrong letter all tend to favour the latter being the position. Indeed, it is possible that the footnote was directed to something quite different, namely, reports in the pending trial in the District Court which had been served but which at that stage either could not be used in this Court, or as to which a final decision had not been made as to their use. Nothing ultimately turns on why the position came about.

26. [45]

    The point is that even the careful reader of the White Folder and Mr Gazal’s submissions was not told that the letter dated 14 May 2024 was wrongly dated. Nor was the reader told that it had never been sought to be tendered before the primary judge. Nor was the reader told that Mr Gazal was seeking to rely on it as further evidence in this Court which had not been sought to be placed before the primary judge. Indeed, the careful reader who noticed footnote 12 would think that there was the possibility that an application to adduce further or fresh evidence might be made in the future, rather than that in fact a wrongly dated document which had never been sought to be tendered before the primary judge had been included in the White Folder next to two others which had been sought to be tendered.

27. [46]

    When the admissibility of the report was raised by one of us (Free JA), Mr Reynolds’ response was “I don’t understand there to have been any objection by my opponent to [it] being put before your Honours”. We do not regard that as a sufficient answer. The point is of general application. It is also important, given the prominence in Mr Gazal’s oral submissions to the ability to rely afresh on material not before the primary judge. Lest there be some misconception about the position, it is as well to be quite clear.

28. [47]

    The position in this Court is well-settled. If evidence additional to that which was before the primary judge is to be relied upon, application is to be made by affidavit identifying the grounds for doing so. Rule 51.51 of the Uniform Civil Procedure Rules 2005 (NSW) provides:

29. [48]

    The rule is in mandatory terms. Neither the motion, nor the affidavit, nor the timing contemplated by the rule occurred. It should have occurred.

30. [49]

    Rule 51.51 serves an important purpose. First, it alerts the other side to an attempt to rely on material which was not before the primary judge. That is especially important where, as is not uncommon, a litigant is represented by different lawyers in this Court than at trial. Even if representation is unaltered, counsel who appeared at trial are unlikely to have a clear recollection about every document which was tendered. It is important for all parties, as well as for the Court, for the appeal books clearly to distinguish documents which were part of the record of the trial, and any further evidence which is sought to be adduced for the first time on appeal.

31. [50]

    Secondly, in addition to fairness to the parties, r 51.51 is conducive to compliance with s 75A of the Supreme Court Act. In particular, s 75A(7)-(9) provide as follows:

32. [51]

    Section 75A(8) makes it clear that the parties’ agreement does not entitle them to have an appeal heard and determined on the basis of evidence available at trial which was not tendered at trial. There remains the mandatory requirement that there be “special grounds”, absent which the evidence may not be received (save in the case of evidence concerning matters after the trial or hearing). The affidavit required by r 51.51 will provide an evidentiary basis for determining whether there are special grounds based on evidence.

33. [52]

    We interpolate that some of Mr Reynolds’ submissions on this issue drew upon the practice of the Court of Criminal Appeal. Indeed, he sought leave, twice, to supply a list of decisions of that Court to assist our determination (an invitation which was unaccompanied by any explanation of why they had not been supplied in advance of the hearing). But a more fundamental reason why the invitation was not accepted is that the prohibition in s 75A(8) does not apply to new evidence in the Court of Criminal Appeal (contrast s 12(1)(c) of the Criminal Appeal Act 1912 (NSW)); in a criminal appeal the issue is whether there has been a miscarriage of justice: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10].

34. [53]

    Thirdly, compliance with r 51.51 permits members of the Court preparing for and participating in an appeal to distinguish between the material before the primary judge and that which is new. That is very important. One reason is that a common complaint is that the primary judge failed to have regard to certain evidence. It is very important that there be a clear distinction in the materials supplied to this Court between documents before the primary judge which were disregarded or misapprehended, documents sought to be tendered but which were rejected (which ruling is sought to be reviewed on appeal), and documents which were never sought to be placed before the primary judge.

35. [54]

    To be quite clear about this point of appellate procedure, it is not for a litigant to include additional material in appeal books, which had not been adduced at first instance, and then to wait and see if the other side objects. The party wishing to rely on material which was not sought to be placed before the primary judge should comply with r 51.51 and prove that material by affidavit, as well as identifying the grounds on which it is relied. This is necessary not least so as to enable the members of the Court to prepare for hearings efficiently. The significance of the obligation to confine appeal books to the materials before the primary judge will be apparent from ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (No 2) [2014] NSWCA 431. If this Court considered that there had been a deliberate attempt to place material in the White Folders which had not been the subject of a tender before the primary judge in order to confuse or deceive the other side or the Court, we would have no hesitation in calling upon one side to explain, on affidavit, how that occurred and why the matter should not be referred to the relevant professional body. The system of conducting appeals will break down if the legal practitioners on both sides cannot trust their counterparts to comply with the rules.

36. [55]

    We wish to make it quite clear that nothing in the foregoing should be read as implying that there was any deliberate attempt to deceive the Court or the other side by those who prepared any aspect of Mr Gazal’s proceedings in this Court. All of the above is consistent with a series of inadvertent errors, commencing with and at least in part a consequence of the incorrect dates in Dr Nielssen’s letters.

37. [56]

    Further, as it happens, no harm came from what occurred, save the wasting of time during the hearing and after judgment was reserved trying to identify precisely what was and what was not placed before the primary judge. In those circumstances, it is unnecessary to take this point any further.

38. [57]

    Taking a generous view, favourably to Mr Gazal, an attempt was made to tender the 2 July 2024 and 7 April letter on 6 May 2025. As will shortly be seen, the tender was rejected because Mr Gazal had only served them the previous evening, and they relied heavily on other documents and reports which were not served, but the primary judge recognised the potential importance of the issue, and extended the hearing into a second day, and made directions for Mr Gazal to serve such late evidence in advance of that hearing. At that adjourned hearing, on 27 May 2025, no attempt was made to tender any medical evidence. Mr Gazal (then appearing by Mr Bagley who now led Mr O’Connor, and in the presence of Mr Rahal) did not seek to read Mr Rahal’s affidavit nor to tender any of the letters of Dr Nielssen, or to read any medical evidence bearing on capacity.

The hearing on 6 May 2025

1. [58]

   It is necessary to describe in some detail how those two days of hearing unfolded.

2. [59]

   The primary judge refused to admit Mr Rahal’s affidavit. His Honour gave ex tempore reasons. He relied on ss 56-58 of the Civil Procedure Act 2005 (NSW), and then addressed the evidence in a manner that warrants reproduction extensively, bearing in mind that it is said that the primary judge had erred in proceeding to find Mr Gazal guilty without first determining his fitness to plead.

3. [60]

   Pausing there, the primary judge stated that he bore in mind that Mr Gazal’s capacity was “a matter of real significance”, notwithstanding the defective way in which evidence was sought to be adduced of that capacity. The primary judge also observed that it was necessary for him to proceed in a way that was fair to the DCT. Both of those statements were and are self-evidently correct.

4. [61]

   The primary judge further recorded that “there is an overwhelming impression of ambush” in the late retainer of Mr Rahal and the late service of selective medical evidence exhibited to Mr Rahal’s affidavit which had been served the day before the hearing. Something was sought to be made of that and similar statements in submissions in this Court, to which we shall return. However, it was not said that the characterisation disclosed error. Plainly it does not.

5. [62]

   The result was the flagging of a disposition to reject the tender of the documents exhibited to Mr Rahal’s affidavit, but in circumstances where it must have been plain that much of the day set down for hearing had been consumed by the application, and where his Honour had previously flagged the possibility of a further day.

6. [63]

   No appeal or application for leave to appeal is brought from the refusal to read Mr Rahal’s affidavit.

7. [64]

   No attempt was made separately to tender any of Dr Nielssen’s letters. However, in light of the concluding paragraph, it is appropriate to proceed, favourably to Mr Gazal, on the basis that in substance the tender of those letters was rejected.

8. [65]

   Mr O’Connor then advised that his brief was to be heard on the application to vacate, and to oppose the amendment to the statement of charge, but not on the “application proper” (ie the hearing of the motion that Mr Gazal be found guilty of contempt which had been fixed for that day). At that point if not before it would have been clear to the primary judge that a decision had been made to brief counsel only in an attempt to avoid the hearing of the charges of contempt which had been set down many months earlier, and not to defend those charges if the application to vacate failed.

9. [66]

   The application to vacate was thereafter pressed on the basis of late service of the Court Book. It seems to have been served two days late. The primary judge refused the application, again giving an oral judgment, stating that he did not consider that the late service had much impact on the proceedings, and then stating:

10. [67]

    His Honour dismissed the motion filed on 5 May 2025 seeking to vacate the hearing. No appeal or application for leave to appeal has been filed from that order.

11. [68]

    The DCT commenced its application to amend its statement of charge. Neither the original nor the amended statement of charge was placed before this Court. It seems from the tenor of the submissions that the amendments were relatively minor, but that is merely an inference. Nothing turns on that, because, shortly after that application commenced, Mr Gazal’s attitude to it changed. It will be recalled that before the application to read Mr Rahal’s affidavit commenced, the primary judge had twice indicated the possibility of a second day’s hearing on 27 or 30 May 2025. There was the following exchange:

12. [69]

    Mr O’Connor confirmed that he would not be attending Court for the rest of the day, and was excused shortly thereafter, after which Mr Gazal was represented by Mr Rahal.

13. [70]

    The DCT sought to adduce evidence from Legal Aid, but there was no response to a subpoena to produce. The DCT did adduce evidence from a witness who gave evidence on a subpoena ad testificandum, Mr Charles Georgopoulos, to the effect that he had met with Mr Gazal repeatedly during around 2021 when he worked at ANZ and sought approval from the ANZ Statutory Compliance Team to make withdrawals pursuant to invoices supplied by Mr Gazal. He said he had a clear recollection of meeting with Mr Gazal, week after week, at which Mr Gazal explained that he had another business expense to pay, which led to Mr Georgopoulos having to unblock the account, get approval from Melbourne, cause the funds to be withdrawn, and then reblock the account. The reason his recollection was clear was:

14. [71]

    Mr Georgopoulos’ evidence was completed before lunch. Mr Rahal did not seek to cross-examine him. At 2pm, Mr Rahal sought the Court’s leave for Mr Gazal to be excused for the remainder of the day. The judge said that Mr Gazal should feel free to come and go as he wished.

15. [72]

    The DCT proceeded with its case. There was a great deal of affidavit and documentary evidence, which was read and tendered without objection. No witness was cross-examined. None of that material was before this Court.

16. [73]

    Mr Kelly made submissions in relation to the evidence, following which there was a brief adjournment.

17. [74]

    After a short adjournment, the Court resumed, and there was then this exchange:

18. [75]

    Thus Mr Gazal was given a further opportunity, notwithstanding his non-compliance with directions for the service of any evidence, including evidence bearing upon his fitness to plead, to serve such evidence. This was done in circumstances where he now knew the entirety of the case that was put against him.

The hearing on 27 May 2025

1. [76]

   The hearing continued on Tuesday 27 May 2025. Mr Gazal was represented by Mr Bagley and Mr O’Connor of counsel, while Ms Scott appeared for the DCT.

2. [77]

   It was clear that no evidence had been served in accordance with the timetable directed by the primary judge, by consent, on 6 May 2025.

3. [78]

   Mr Bagley was granted leave to file in court a motion seeking to vacate the hearing. That application was supported by an affidavit of Mr Andreh Georges. The affidavit had been made the previous day.

4. [79]

   At the outset, his Honour made the following inquiry:

5. [80]

   Leave was sought to read Mr Georges’ affidavit. It was acknowledged that it had been served the previous evening. It was said that it could not have been prepared earlier, because Mr Georges had only been appointed tutor the previous Friday, and the events to which he deposed had only occurred in the previous few days. The DCT complained of ambush, and that steps would have been taken to determine when Mr Georges had been approached to act as tutor. Nonetheless, the affidavit was permitted to be read.

6. [81]

   Mr Georges deposed to his having been appointed Mr Gazal’s tutor (without the involvement of the Court) on Friday 23 May. He said he had been provided with a large volume of material, he visited Mr Gazal at home to go through the material. In the last (namely, the sixth) paragraph of the affidavit, he said that Mr Gazal was “incoherent”, “had little to no attention span” and when he did answer “it would be to tell me that he does not remember”. He said the longer he was there, the more angry and anxious Mr Gazal would get.

7. [82]

   Mr Bagley confirmed that he did not rely on any medical evidence in support of his application.

8. [83]

   Mr Bagley thereafter was heard on his application to vacate. The gravamen of his submission was that the tutor Mr Georges found himself unable to give instructions about the charge. He acknowledged that he had no answer by reference to evidence of why Mr Georges had not been appointed earlier. He acknowledged that those instructed by Mr Gazal had not sought to meet the charges faced by their client with appropriate urgency. Ultimately he said that Mr Gazal should nonetheless be provided with further time in order that there be a procedurally fair hearing of the serious charges of contempt.

9. [84]

   At the conclusion of his submissions, the primary judge raised with counsel the difficulty with Mr Georges’ evidence, insofar as it was consistent with a lack of capacity, and also a feigned lack of capacity. His Honour also returned to the decision not to adduce medical evidence:

10. [85]

    His Honour gave oral reasons dismissing the motion. He referred to the earlier attempt to tender two medical reports of Dr Nielssen, and noted that Mr Gazal did not seek to lead medical evidence to establish any lack of capacity on any objective basis. His Honour then addressed Mr Georges’ evidence, including the lack of explanation for why he was appointed on the Friday before the adjourned hearing, and the difficulty which had been raised in terms with counsel:

11. [86]

    His Honour also referred to the failure by Mr Gazal, or his wife, to give evidence, and added:

12. [87]

    There is a potential difficulty with the opening sentences of each of those passages, and Mr Reynolds sought to make something of it in his oral address. If read strictly, the assumption of a lack of capacity is inconsistent with the ensuing words “I do not reach a finding to that effect” and “I cannot reach a finding that that lack of capacity exists”. It is possible that something was garbled in the transcript, and that his Honour actually said “I have assumed there may be a lack of capacity”. It is possible that the transcript is accurate, but that his Honour’s sense was that he accepted that Mr Georges expressed a lay opinion which was capable of bearing upon the question whether Mr Gazal lacked capacity. There are other possibilities, and we are conscious that a deal of latitude is to be given to ex tempore reasons: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]; Guan v Li (No 2) [2022] NSWCA 261 at [32].

13. [88]

    The evident sense is clear. His Honour proceeded on the basis that Mr Georges’ evidence raised the possibility of there being a lack of capacity, but was unable to be satisfied that there was any such lack of capacity, in light of the deliberate decision not to tender medical evidence, or any other evidence save from a man who had seen Mr Gazal the previous Friday evening, and in light of the possibility that Mr Gazal might have been feigning or exaggerating a lack of capacity. This was in a context where his Honour was not dealing with an application for a hearing to determine the fitness to plead of Mr Gazal, based on a contention that a real and substantial question as to his fitness had arisen. The application was confined to an application to vacate the hearing to allow the tutor to clarify matters generally, in relation to which questions of capacity were raised only tangentially.

14. [89]

    On that basis, the primary judge returned to the application before him, which was to vacate the date. He rejected it on the basis that there was no good reason to think that Mr Georges’ ability to respond might improve if the date were vacated. He added that there were public interest factors, including that the prompt resolution of a charge of contempt was important to the community’s confidence in the administration of justice.

Summary of the position after the hearing on 6 and 27 May 2025

1. [90]

   Pausing there, it is convenient to return to the primary submission advanced in Mr Gazal’s written submissions, namely, that on the basis of what occurred on 6 and 27 May, the primary judge erred in proceeding to make findings of contempt without conducting a hearing into Mr Gazal’s fitness to plead. Those submissions appear to have been prepared without the advantage of reviewing the transcript of 6 and 27 May.

2. [91]

   In oral submissions in this Court on behalf of Mr Gazal, the point was made directly, referring to what was required of the hearing which occurred on 27 May 2025:

3. [92]

   The submission continued:

4. [93]

   That submission was not renewed after this Court made a copy of the transcript available to the parties.

5. [94]

   In light of what is established to have occurred, the difficulties confronting Mr Gazal’s submission are manifest. It is clear that the primary judge regarded Mr Gazal’s capacity as an important issue. It is clear that the primary judge also rejected Mr Gazal’s reliance on evidence, served only the day before the hearing, in a manner which could not be tested by the DCT. His Honour did so because he was concerned to ensure a procedurally fair hearing. However, in order to accommodate the application which Mr Gazal had flagged, and notwithstanding the sustained non-compliance hitherto with the directions to serve evidence, his Honour adjourned the hearing to a second day, three weeks later, and accommodated directions which Mr Gazal (jointly with the DCT) proposed, for the provision of evidence in response to the amended statement of charge. Thereafter Mr Gazal did not comply with those directions. At the adjourned hearing, where Mr Gazal was represented not only by the solicitor and counsel who had appeared on 6 May, but also by a second (more senior) counsel, there was a deliberate decision not to adduce any medical evidence, including the reports of Dr Nielssen which had been sought to be tendered on 6 May or the further report dated 14 May, let alone any of the evidence available to Mr Gazal’s lawyers (such as the evidence from Dr Fois, the neurologist who had reviewed him on 17 occasions, or Dr Andric, his general practitioner for the last decade). Instead, there was served, late, lay evidence from a newly appointed tutor, based on a single meeting with Mr Gazal the previous Friday, which was evidently incapable of establishing whether Mr Gazal was incapable as opposed to feigning or exaggerating incapacity.

6. [95]

   The proposition that this Court should grant leave for an extension of time in order for an appeal based on evidence which was the subject of a deliberate forensic decision not to adduce on the occasion specially fixed for such evidence to be adduced is singularly unattractive, especially in circumstances where no explanation is provided for the decisions taken with the benefit of solicitor and counsel.

7. [96]

   Even so, if the prosecution had completed, and especially if Mr Gazal had been committed to a prison, then this Court might perhaps entertain such an application, especially if it were accompanied by a full account, based on evidence, of why the deliberate forensic course adopted by counsel formerly retained had occurred. We mention this because there was an occasion during Mr Reynolds’ submissions when he referred to a potential claim that his predecessors had been incompetent within the meaning of R v Birks (1990) 19 NSWLR 677. Mr Reynolds made it clear that he had not “in fairness to those involved, done a full investigation of it”. It was in this connection that the Court renewed a concern which had been expressed at the outset of the hearing, namely, that the transcript of 6 and 27 May had not been made available.

8. [97]

   Although much of what is recorded above is derived from the transcript of 6 and 27 May, those transcripts were not available during the entirety of Mr Reynolds’ address in chief. That led to this exchange near the conclusion of his address in chief:

9. [98]

   When the hearing resumed after lunch, Mr Reynolds made submissions about what occurred on 27 May 2025. He said, repeatedly, that “the solicitor just sat there”. He then added “I think I’m being informed that I’ve mischaracterised what happened” at which point the Court supplied a copy of the short (12 page) transcript of 27 May 2025, indicating that it had been obtained from the file against the possibility that Mr Gazal’s legal representatives might not do so.

10. [99]

    The point of the foregoing is as follows. At the centre of the case put forward by Mr Gazal was the complaint that there had been a real and substantial issue of Mr Gazal’s fitness to plead raised on 6 and 27 May 2025 before the primary judge. As it turns out, the course adopted by counsel appearing on those occasions was unusual and unexpected. This was a case where the transcript was necessary in order to hear and determine the concurrent hearing which Mr Gazal requested and obtained of his application for leave to appeal, as well as of his appeal. The fact that the transcript was not supplied by Mr Gazal’s lawyers, but by the Court after the luncheon adjournment, complicated the resolution of the appeal. In particular, it led to submissions being made that would not have been made had there been a clear record of what had occurred. One indication of this was that at the outset of the hearing Mr Reynolds accepted that “the Nielssen reports were not admitted into evidence by the primary judge, but at some level they were proffered to him and I think he rejected their content” (Transcript, 18 February 2026, p 1); in fact the position is that only two were sought to be tendered on 6 May, none was sought to be tendered on 27 May; two (the 7 April letter and the 22 October letter correcting dates) were sought to be tendered at the hearing on 24 October, and the 14 May letter, the only one prepared with a view to dealing with the amended statement of charge, was never at any stage sought to be tendered.

11. [100]

    The failure to include the transcript which was obviously necessary, and the inclusion of the 14 May letter, which had never at any stage been sought to be tendered before the primary judge, without making any application to comply with r 51.51 or to engage with s 75A(8) of the Supreme Court Act, suggests that greater attention was required to prepare the White Folders than occurred in this case.

12. [101]

    It is unnecessary to take this any further, because there are further reasons which tell powerfully against the granting of an extension of time necessary for this belated challenge which have not so far been disclosed.

Subsequent events

1. [102]

   As noted at the outset, his Honour proceeded thereafter by reserved judgment delivered on 24 June 2025 to find that the contempts alleged were made out.

2. [103]

   Orders were made on 11 July 2025 incorporating those findings, and setting down a further hearing, on final orders and costs, on 2 September 2025.

3. [104]

   That hearing was vacated and instead the further hearing was set down to take place on Friday 24 October 2025. Why that occurred is not apparent on the face of the materials in the White Folders.

4. [105]

   An affidavit read in this Court in support of the extension of time stated that Mr Reynolds and Mr Woods were retained on the penalty hearing. It was said that in the course of preparing for that hearing, it was noticed that there was the basis for an appeal. A notice of appeal, including (appropriately) prayers for orders for an extension of time, was filed on 9 October 2025.

5. [106]

   There was a hearing in this Court (constituted by Kirk JA) on Monday 20 October 2025, following the DCT promptly disputing the competency of the appeal in accordance with r 51.41 of the UCPR. This aspect of the dispute between the parties was resolved by Mr Gazal filing a summons seeking leave to appeal in the event that leave were needed, and the DCT indicating that it would consent to a stay of execution. The primary judge was apprised of this as follows at the outset of the hearing on 24 October:

6. [107]

   In this Court, the DCT confirmed that that continued to be its approach. The result is that if a penalty is imposed at or after the hearing on 31 March (being less than six weeks from when the hearing before this Court took place), then Mr Gazal will enjoy a right of appeal from that order, any orders contributing to it including the findings of guilt made on 11 July 2025, and a stay of execution while that appeal is prosecuted with reasonable diligence.

7. [108]

   Returning to the hearing on 24 October, Mr Woods thereafter submitted that “because this issue of fitness to plead remains undetermined, it would not be appropriate for your Honour to impose punishment today, unless and until your Honour has dealt with that issue”. There ensued an exchange, where the primary judge referred to authorities to the effect that once a tutor had been appointed, questions of capacity were addressed, and Mr Woods submitted that there was a “supervening principle” which applied in civil proceedings for contempt, which is that the Court must determine, if an issue of fitness arises, whether the alleged contemnor is fit to plead. Mr Woods took the primary judge to Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002; [2018] NSWCA 306 and (very properly) noted that it was a case of criminal contempt rather than civil contempt. After referring to other cases, he read the affidavit of Ms Samadi (who is Mr Gazal’s wife) which deposed to her having become Mr Gazal’s tutor, and to his medical condition deteriorating.

8. [109]

   There followed an attempt to renew the tender of Dr Nielssen’s 7 April 2025 letter, accompanied by the letter of 22 October 2025 correcting some of the errors in dates, but it was rejected:

9. [110]

   The response to the rejection of the tender was to maintain that it was appropriate to adjourn so that the issue of competence could be resolved, as may be seen in the following exchange:

10. [111]

    There followed further exchanges on that point, following which something much more serious occurred, which would not be mentioned but for the reliance which was placed upon it by Mr Reynolds in his oral submissions in reply. The primary judge put Mr Woods squarely on notice of the possibility that he might find a “systematic and calculated contravention of s 56 of the Civil Procedure Act in respect of the conduct of these proceedings by your client, amounting to a systematic process of trial by ambush”. An opportunity was provided to respond, and counsel did so, denying the proposition. A further opportunity was given to counsel to respond to the proposition that as a matter of empirical observation, each time where reliance was sought to be placed on medical evidence, that occurred in a way which did not give the DCT a chance to respond. Mr Woods realistically acknowledged the force of the observation.

11. [112]

    In this Court, Mr Reynolds relied on what was said during the hearing to support the submission that the matter should not be remitted to the Court constituted by the primary judge.

12. [113]

    Mr Woods had not appeared in either of the hearings in May 2025. He may or may not have been briefed with the transcript of those hearings. However, he was plainly aware of the fact that the primary judge had rejected the tender of Dr Nielssen’s 7 April letter, on the basis that it had only been supplied the previous day. He was also armed with instructions that Dr Nielssen was unavailable on 24 October. The likely if not inevitable consequence of seeking to tender Dr Nielssen’s letter without notice coupled with an inability to make him available for cross-examination would be its rejection.

13. [114]

    The transcript may not record everything which was apparent to the primary judge on the occasion. The transcript is at least suggestive of the proposition that the rejection of the without notice tender of already-rejected expert evidence from an unavailable psychiatrist was foreseen and expected and was intended to constitute the basis of an application to vacate. If so, that would properly ground the conclusion that there had been a conscious disregard of the ethical and statutory obligations of legal practitioners in conducting civil litigation in the Supreme Court of New South Wales. There is nothing untoward in his Honour raising that potential finding for counsel’s response. Nor, to be clear about it, was a submission made in this Court that there was no basis for his Honour to have done so.

14. [115]

    Mr Woods also sought to tender two further reports from Dr O’Dea, who was said to have been retained by the Commonwealth Director of Public Prosecutions to provide a report in criminal proceedings brought against him. Once again, the attempt to rely on the evidence of Dr O’Dea was made without notice and was rejected. No attempt was made to adduce evidence of Dr O’Dea’s reports in this Court. (It is possible that these reports explained the reference in footnote 12 of Mr Gazal’s submission in this Court to the potential of further evidence.) Mr Reynolds mentioned them, and also said that they had been prepared on behalf of the DCT. Mr Barnett said that was not so. If they had been obtained for the purpose of a criminal prosecution in the District Court, then the DCT is unlikely to have been the client. But as they are not before this Court, the dispute cannot be resolved, as well as being entirely academic. Mr Gazal’s application in this Court falls to be determined by reference to the evidence before it, and not statements about other documents which may or may not exist which are not before it.

15. [116]

    However, the primary judge did permit to be read evidence from Mr Gazal’s wife, who appeared to have become his tutor, which provided some lay evidence of incapacity.

16. [117]

    The primary judge rejected the application to vacate, and found affirmatively that Mr Gazal had capacity: Deputy Commissioner of Taxation v Westmeat Development Pty Ltd as trustee for Westmeat Development Trust [2025] NSWSC 1571. His Honour did not make a finding that there had been a systematic and calculated contravention of s 56 of the Civil Procedure Act. His Honour addressed extensively the consequences of the appointment of a tutor.

17. [118]

    The decision recorded on the coversheet of the judgment, which is published on Caselaw, is:

18. [119]

    It is necessary to summarise his Honour’s reasons, notwithstanding Mr Reynolds’ primary submission was that the judgment should be ignored in its entirety (Transcript, 18 February 2026, T14.15), and his repeatedly stated preference not to engage with it until his address in reply (Transcript, 18 February 2026, T14.31-34; 15.26; 25.46-26.1). But what occurred in October bears directly upon the indulgence to extend time which Mr Gazal seeks. Even when Mr Reynolds did address those reasons, no attention was given to what his Honour recorded at [16]-[22]:

19. [120]

    His Honour thereafter turned to the principles applicable in criminal prosecutions, to a concern expressed by Darke J as to whether those principles applied to civil contempt proceedings in The Owners Strata Plan 21372 v Banovic [2017] NSWSC 177 at [4], and to what was said in Kostov v YPOL Pty Ltd by this Court in a civil proceeding for criminal contempt, to which we shall return.

20. [121]

    The primary judge then ruled on Mr Gazal’s lack of capacity. His Honour relied, in part, on evidence of communications by Mr Gazal to the Court and the DCT, which were tendered by the DCT and which on their face did not suggest a lack of capacity, and in part upon the history of the litigation. The dispositive reasoning is at [30]-[41]:

21. [122]

    It was not possible to hear and determine penalty on that day. The matter was stood over for directions on 4 March 2026. A further adjourned hearing date of 31 March 2026 has now been allocated.

Consideration

1. [123]

   Irrespective of whether Mr Gazal enjoys a right of appeal or needs to obtain leave to appeal, he needs an extension of time. In assessing whether an extension of time should be given, it is necessary to have regard to the strength of the case sought to be advanced.

2. [124]

   The primary submission advanced in writing was that there was a real and substantial issue as to whether Mr Gazal was fit to plead and stand trial, which the primary judge needed to address. It was said that the primary judge erred in proceeding on 6 and 27 May to find Mr Gazal guilty of contempt in circumstances where there was a real possibility that he lacked capacity. It was said that there was a real and substantial question as to his fitness as at May 2025, which entitled him to have the findings set aside, in accordance with what was said by Hayne J in Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [319] and applied in Re v R [2022] NSWCCA 73 at [7].

3. [125]

   Mr Gazal placed heavy reliance on Kostov v YPOL Pty Ltd. There a judge convicted Ms Kostov, who was unrepresented, in her absence, and then received psychiatric evidence which led the judge to conclude she was under a legal incapacity, following which he disposed of the sentence proceeding without imposing penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). This Court constituted by Beazley P, Meagher JA and Simpson AJA allowed an appeal and set aside her conviction. Their Honours observed that although the litigation was civil litigation subject to the rules of procedure applicable to other civil proceedings, that was subject to safeguards in criminal proceedings, including “the common-law requirement that a criminal trial not proceed unless the accused is fit to plead”: at [19]. Their Honours further observed, as was common ground at the appeal, that the psychiatrists’ reports established a real and substantial question of Ms Kostov’s fitness to plead. The dispositive reasoning was at [22]-[23]:

4. [126]

   There are a number of distinguishing features between Kostov and the present case.

   1. (1)

      In Kostov, medical reports were received into evidence (albeit after conviction), and it was accepted that they established a lack of fitness to plead. In the present proceedings, no medical reports were received into evidence before the primary judge. On 6 May 2025, two of the reports of Dr Nielssen were sought to be tendered, but because they had been provided less than 24 hours previously, the tender was refused. Nonetheless, because of the course indicated by the primary judge at the outset of the hearing, the hearing proceeded over a second day three weeks later, with directions for Mr Gazal to tender evidence in advance of that hearing bearing upon capacity. Those directions were not complied with, and there was what could only have been a deliberate decision not to seek to rely upon any of Dr Nielssen’s reports or any other medical evidence.

   2. (2)

      The nature of the alleged contempt in Kostov – communicating to members of a law firm contrary to a restraining order – is quite different from the frauds found to have been committed by Mr Gazal. That is to say, the conduct giving rise to Ms Kostov’s alleged contempt is of itself suggestive of mental disability, while the conduct giving rise to Mr Gazal’s alleged contempt is to the contrary.

   3. (3)

      Ms Kostov’s cognitive state was apparent to the primary judge. The judgment of the Court of Appeal records at [5] that after the charges were read out to Ms Kostov, who was appearing by telephone, the trial judge had to terminate the call because she was “shouting down the phone line”. In contrast, Mr Gazal has not gone into evidence before the primary judge, and his communications before he was represented were not suggestive of a lack of capacity.

   4. (4)

      In Kostov, no tutor had been appointed, and the Court dispensed with compliance with r 7.14 of the UCPR. Mr Gazal had appointed a tutor shortly prior to the hearing on 27 May 2025.

   5. (5)

      In Kostov, sentence for a criminal contempt was imposed pursuant to the Crimes (Sentencing Procedure) Act. In the present case, the contempt is civil, and the purpose of the orders is coercive, not penal. All contempts are criminal in nature, and accordingly must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534; [1995] HCA 3. Nonetheless, the proceeding is a civil proceeding, and the distinction between punitive as opposed to remedial or coercive proceedings remains: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [133]; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [65].

5. [127]

   For those reasons, Kostov is not necessarily dispositive of the present appeal or application for leave to appeal.

6. [128]

   It was repeatedly said by Mr Reynolds that what the primary judge had to do, an issue as to fitness to plead having been raised, was to “hunker down” and deal with it. To be fair, that submission was made before the transcript of 27 May was provided to him. It is apparent from the transcript that that is precisely what occurred, and in a procedurally fair way.

7. [129]

   The primary judge was, appropriately, conscious that Mr Gazal was alleged to have participated in a multi-million dollar tax fraud, and further was alleged to have engaged more recently in a sustained fraud upon his companies’ banks and against his judgment creditor the DCT. No differently from any other issue in the trial, whether or not Mr Gazal was fit to plead was to be determined in a procedurally fair way.

8. [130]

   Mr Gazal was not, at the time the DCT moved on its amended statement of charge, a litigant in person. As a legally represented respondent, Mr Gazal had expert evidence, which he chose not to tender on the occasion provided for him to do so. In light of what was known to the primary judge from the hearing on 6 May, his Honour raised, twice, with his counsel three weeks later that the decision not to rely on Dr Nielssen’s opinions was a deliberate choice rather than an oversight. Nor did Mr Gazal give evidence, nor did his wife. Instead, lay evidence was given about a meeting with his newly appointed tutor. His Honour gave very clear notice that Mr Georges was unable to give evidence which could distinguish between actual incapacity and feigned incapacity. Ultimately his Honour was not satisfied that an issue about incapacity had been established by the evidence on that occasion. There is no suggestion that any aspect of his Honour’s reasons dealing with the material which was received into evidence disclosed error.

9. [131]

   What, it may be asked, was his Honour to have done? It is not the case that if a person accused of contempt states that he or she is not, or may not be, fit to stand trial, then the proceedings are forever stayed. The question falls to be determined like any other issue in litigation. In the first instance, it will turn upon the evidence adduced on each side, that occurring in a procedurally fair way (in some cases, it might also be informed by observations made by the judge of the person in court). The primary judge put in place a regime for that to occur.

10. [132]

    Mr Gazal relied on the proposition from Kesavarajah v The Queen (1994) 181 CLR 230 at 244; [1994] HCA 41 that:

11. [133]

    As was pointed out in response, in a criminal trial, that duty is more nuanced, and in particular the question of fitness must arise “in good faith”: see R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155. The primary judge was alive to this. In the present case, the primary judge raised at the hearing the possibility that Mr Gazal, whose history includes sustained dishonesty, may have been feigning or exaggerating his cognitive impairment.

12. [134]

    But assuming favourably to Mr Gazal that the approach in a criminal trial applied to the present proceedings for contempt, it does not mean that the Court is obliged to second-guess the decisions made by the parties to rely or not rely on medical evidence. It is quite plain from the transcript of 27 May 2025 that the decision not to rely on Dr Nielssen’s report was a deliberate one. Mr Gazal was legally represented, and there may be good reasons for a litigant not to rely on medical evidence, especially if there was a risk of cross-examination. It is not, except perhaps in truly extraordinary cases, for the court to second-guess the forensic decisions made by legally represented litigants.

13. [135]

    Thus the premise of the main ground sought to be advanced in writing is not made out. The issue of capacity was raised. The judge gave the parties a procedurally fair opportunity of dealing with it, including by adducing lay and expert evidence. Mr Gazal availed himself of that opportunity, albeit not in a way which might have been expected.

14. [136]

    We turn to the stronger submission advanced in this Court, which was only developed in oral submissions. Mr Reynolds said he was entitled to adduce for the first time expert evidence which established a real and substantial question as to Mr Gazal’s fitness to plead and to stand trial as at May 2025, even if it had never been placed before the primary judge, and on that basis set aside the orders incorporating findings of guilt.

15. [137]

    There should not be an extension of time in order for Mr Gazal to advance this case on appeal. That is so irrespective of whether Mr Gazal enjoys an appeal as of right or only by way of leave.

16. [138]

    First, there is no authority for that proposition. Kostov was a case of sentencing for a criminal contempt, of a contemnor who did not have a tutor. Decisions by courts of criminal appeal are likewise not necessarily controlling.

17. [139]

    Secondly, there are the mandatory obligations imposed by statute. This was raised by the primary judge, and not attended to by Mr Gazal’s submissions. It arises even more acutely on appeal.

18. [140]

    The DCT’s application is for a civil contempt, which is brought not to punish Mr Gazal, but to seek to achieve compliance with the orders binding him and freezing assets of him and his companies. The DCT seeks to cause Mr Gazal to undo the serious wrong he committed by causing some $6.5 million to be withdrawn from his companies’ bank accounts contrary to freezing orders. The proceedings are civil and the Civil Procedure Act applies. Notwithstanding that Mr Gazal faces charges of contempt, he remains subject to obligations to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(3). His solicitors and counsel are likewise subject to a duty not to cause Mr Gazal to be put in breach of that obligation: s 56(4).

19. [141]

    Moreover, in this Court s 75A(8) of the Supreme Court Act forbids the reception of evidence which was available at trial unless special grounds be shown. That prohibition is not avoided even if the other side consents.

20. [142]

    All those provisions tell against the proposition sought to be advanced.

21. [143]

    To be clear, the foregoing is not to be read as implying that there was a deliberate flouting of the rules, and it is easy to see how, by reason of the misdating of Dr Nielssen’s letters and the failure to obtain the transcript of what occurred, different counsel might have come to make the submissions which were made. As noted, at the outset of the hearing in this Court, senior counsel for Mr Gazal appeared to be proceeding on the basis that all of the letters signed by Dr Nielssen had been the subject of an attempted tender to the primary judge (Transcript, 18 February 2026, T1.46-49).

22. [144]

    Thirdly, at relevant times, Mr Gazal had a tutor. As the primary judge observed, ordinarily in civil litigation issues of capacity disappear when a tutor has been appointed. A great deal of litigation in this Court takes place involving litigants who are incapable.

23. [145]

    There is an issue of how to reconcile what was said in Kostov concerning the application of the criminal rules concerning fitness to plead to the prosecution of a criminal contempt, and the consequences of the appointment of a tutor in proceedings involving a civil contempt. The judge addressed some of the authorities bearing on that issue in his reasons in October 2025. In neither his written nor oral submissions did counsel now appearing for Mr Gazal engage with those matters. Indeed, the significance of the appointment of a tutor was sufficiently under-appreciated that it was not until the hearing in this Court, when it was raised by the Court, that steps were taken to have the proceedings properly constituted.

24. [146]

    Notwithstanding all of the above, it is possible that this Court would permit Mr Gazal to rely on evidence which was available to him at first instance but which because of a deliberate forensic decision he chose not to rely on, if the proceedings for contempt had been completed. It is to be noted that Ms Kostov’s prosecution had ended by the time this Court intervened (it was concluded by the exercise of power under s 10A of the Crimes (Sentencing Procedure) Act). But in the present case, the judge is part-heard.

25. [147]

    It needs to be borne firmly in mind that Mr Gazal seeks a two month extension of time, for which there is a partial explanation, but in circumstances where there is a fragmentation of proceedings and a continuing entitlement to be heard. The belated filing of the notice of appeal contributed to the October hearing not achieving its intended purpose.

26. [148]

    Further, the evidence is likely to be contentious. The DCT has consistently asked for Dr Nielssen to be made available for cross-examination in the event that reliance is sought to be placed on his opinions. And there is as yet no explanation for the apparently deliberate forensic decision not to adduce Dr Nielssen’s evidence on 27 May. The resolution of such contentious issues is best conducted at first instance.

27. [149]

    Further, both sides will be entitled to appeal from the final orders which are made disposing of the DCT’s notice of motion. Such an appeal will lie from all orders which have contributed to the final orders, in accordance with Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22. In that way all of the issues now sought to be raised can be raised then, without the fragmentation of the contempt process.

28. [150]

    We note that there was an exchange of oral submissions in this Court as to whether it was open to Mr Gazal to revisit the orders made on 24 October 2024. Mr Reynolds maintained that that could not occur, by reference to Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642 and Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [57]. But the passages relied upon were directed to the separate determination of issues on a final basis. They do not stand in the way of the revisiting of an interlocutory order if there is a material change of circumstance (many of the authorities are collected in Proietti v Proietti [2025] NSWCA 11 at [21]). At a criminal trial, a question of fitness can arise later, even if there has already been a determination: Mailes at [7].

29. [151]

    On this point, it is as well to record the concession made by the DCT in this Court, which may be more generous than that applicable to ordinary interlocutory findings and orders:

30. [152]

    Still further, the DCT consents to a stay of execution of any penalty which is imposed pending appeal.

31. [153]

    That is to say, Mr Gazal requires an indulgence, in circumstances where there has already been a great deal of delay, in large measure brought about by his unsuccessful applications for adjournments. And that indulgence is sought in circumstances where the DCT accepts that it remains open to Mr Gazal to seek on the basis of evidence in a procedurally fair way to contend that he lacked competence to plead and to stand trial on the charge of contempt.

32. [154]

    Moreover, there have been deficiencies in the way the litigation in this Court has been conducted. This Court does not have the benefit of any considered submissions on the significance of the appointment of a tutor, despite the reasons of the primary judge. Further, this Court has received no submissions on s 75A(8), or evidence supporting the tender of the 14 May letter by Dr Nielssen.

33. [155]

    It would be possible to cure those deficiencies by making directions for the parties further to be heard. That would certainly give rise to delay and expense. It might also give rise to the need to retain different lawyers, especially in light of some of the submissions flagged by Mr Reynolds. There would be a need to permit the DCT to respond. If as Mr Reynolds flagged this is truly a case where the special grounds involve failure on the part of counsel, then there may need to be a disclosure of hitherto privileged communications, and the DCT might need an opportunity to communicate with Mr Gazal’s former lawyers.

34. [156]

    On the other hand, there is a hearing already fixed before the primary judge for 31 March. Nothing was said to suggest that it would be impossible for Mr Gazal to serve any such application as he may be minded to make sufficiently in advance of that hearing so as to permit a procedurally fair determination of the issue.

35. [157]

    The considerations in ss 56 and 58 of the Civil Procedure Act favour the refusal of an extension of time. There is no sound reason to grant the indulgence Mr Gazal seeks when all aspects of the contempt prosecution will shortly be able to be the subject of an appeal as of right, in circumstances where the DCT has agreed to a stay pending appeal. A similar course was adopted in A [a pseudonym] v E Co [a pseudonym] [2018] NSWCA 188. The matter may be tested this way.

    1. (1)

       If leave is refused now, there is no reason to doubt that a further hearing will take place at the end of March, and the primary judge will make orders shortly thereafter. Both sides are free if they wish to appeal from any decision which contributes to the final orders. If an appeal is filed in say May, it will be heard relatively shortly thereafter.

    2. (2)

       On the other hand, if this Court extends the time to appeal and to the extent necessary grants leave to appeal, then either it will find error or it will not. If not, then all that will be achieved is delay and expense. If there is error, then it is not suggested that this Court could itself assess fitness to plead, and so there will be a further hearing in the Equity Division, on different evidence but on the same issue. That will lead to the certainty of delay and cost. In circumstances where the DCT consents to a stay of execution pending appeal, and when on any view of the matter the delay which has hitherto occurred is attributable to the applications made without notice by Mr Gazal in May and October last year, there is no sound reason to fragment the prosecution by permitting an out-of-time interlocutory appeal.

36. [158]

    For those reasons, there is an overwhelming case not to grant the extension of time required by Mr Gazal, and instead to permit the Equity Division to complete the hearing of the amended statement of charge.

37. [159]

    Mr Reynolds’ submission to the contrary, that there was the potential of a waste of costs and resources in the event that he is right concerning the quashing of the orders incorporating the findings of guilt, is correct so far as it goes. However, the submission neglects the additional costs and delay which would need to be incurred to regularise the proceedings in this Court. Further, the costs of a hearing on 31 March are small, compared to the costs and delay that have been incurred to date, and the latter are very substantially attributable to the forensic decisions and applications which have been made by Mr Gazal.

38. [160]

    Finally, it was said, albeit only in submissions in reply, that the resumed hearing should not take place before the primary judge. Strictly speaking, that submission does not even arise until and unless this Court intervenes, and for the reasons already given, it is inappropriate to do so. However, it may assist to note the following.

39. [161]

    The submission was founded on what had been put to counsel on 24 October. It is true that the primary judge raised for counsel’s response the possibility of an extremely serious finding. Doing so accorded with the principles of natural justice. After hearing from counsel, the primary judge did not make any such finding. That tends to suggest that his Honour neither has, nor might a reasonable bystander think that he might have, a closed mind to the way the defence has hitherto been conducted.

40. [162]

    The forensic decisions made to date have meant that there has been no cross-examination of Mr Gazal, or his wife, or his former tutor Mr Georges, or Dr Nielssen or any other medical practitioner. There is no proper basis for an order preventing the primary judge from completing the task which has so far resulted in more than half a dozen oral judgments as well as the reserved judgment making findings of contempt.

41. [163]

    What is more, at this stage nothing is known about what issues will be presented at the remaining hearing.

42. [164]

    Nothing in these reasons stands in the way of an application to be made before the primary judge for his Honour to recuse himself, if a sufficient basis for doing so is established, and noting that that may depend upon the issues that arise in the remainder of the proceeding.

Is there an appeal as of right?

1. [165]

   For those reasons, nothing turns on whether Mr Gazal enjoys an appeal as of right or only by leave. Nonetheless, in defence to the parties’ submissions, we address the question of leave.

2. [166]

   Mr Gazal maintains that there is an appeal as of right from the orders encapsulating the findings of guilt. The DCT maintains that the appeal is incompetent.

3. [167]

   Appeals are creatures of statute. Section 101(1) of the Supreme Court Act confers a right of appeal from any judgment or order of the Court in a Division. However, that right is, expressly, “Subject to this and any other Act and subject to the rules”.

4. [168]

   Subsection (2) of s 101 provides relevantly that, “An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from … (e) an interlocutory judgment or order in proceedings in the Court”.

5. [169]

   Pausing there, if that were all, it would be clear that the purported appeal is incompetent, because final orders have not as yet been made. However, subsection (5) provides:

6. [170]

   It is necessary to reconcile the requirement of leave imposed by s 101(2)(e) with the purported appeal by way of right conferred by s 101(5). The position is different in the Federal Court, where s 24(1C) of the Federal Court of Australia Act 1976 (Cth) expressly provides that leave is not required for interlocutory appeals in proceedings related to an alleged contempt of court: see Mensink v Parbery (2018) 264 FCR 265; [2018] FCAFC 101 at [104].

7. [171]

   Subsection 101(5) was inserted more recently, by the Courts Legislation Amendment Act 1996 (NSW) Schedule 1 item 1.8 [10]. The second reading speech by the Attorney-General in support of that bill referred to the amendments altering what had hitherto been the position, namely, that all proceedings for contempt were assigned to the Court of Appeal (that reflected s 48(3)(b) of the Supreme Court Act in the form it was initially enacted). The amendments provided for certain proceedings for contempt of Court in a Division being assigned to that Division. Provision was also made for a review of a question of law by the Attorney-General in the event that a person was acquitted of contempt.

8. [172]

   The Attorney said:

9. [173]

   The parties did not point to anything in the extrinsic material which squarely addressed whether s 101(5) extended to interlocutory appeals.

10. [174]

    Mr Gazal relied on Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 at [5]–[10] and Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340. Those decisions are directed to whether the right of appeal conferred by s 101(5) is not subject to the $100,000 pecuniary threshold in s 101(2)(r). The dispositive reasoning in both cases was:

11. [175]

    This does not address the point arising in the present case, concerning interlocutory judgments and orders. It is true that if the right conferred by s 101(5) is unqualified by s 101(2)(r), it would tend to follow that it is also unqualified by s 101(2)(e). But it is clear that those decisions do not suggest that proceedings in which a motion to prosecute for contempt may not relate to contempt.

12. [176]

    In short, there is a direct clash between the requirement of leave in s 101(2)(e) for an appeal from an interlocutory order and the entitlement to appeal conferred by s 101(5) from judgment or orders in proceedings relating to contempt. How is that conflict to be resolved?

13. [177]

    One consideration favourable to Mr Gazal is that s 101(5) is later in time, making it less likely to be qualified by the extant provision. Another consideration favourable to Mr Gazal is that s 101(2)(e) applies generally to all appeals from interlocutory orders, while s 101(5) is confined to appeals from judgments or orders in proceedings relating to contempt.

14. [178]

    That consideration is not as powerful as it may seem. As was pointed out at the hearing, s 101(5) turns on whether the proceedings relate to contempt, rather than the judgment or order itself. Proceedings for contempt may be commenced in a number of ways. In the case of a contempt arising from an alleged breach of orders made by this Court, the moving party should deploy a notice of motion. But there are many species of contempt, including those mentioned in Pt 55 r 11 of the Supreme Court Rules 1970 (NSW), where the Court may order the Registrar to commence proceedings for punishment of contempt. Contempt could once be prosecuted on indictment, but that is obsolete, and a summary procedure is used, as McHugh JA explained in Attorney-General for New South Wales v John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695 at 707. Rule 6 of Part 55 of the Supreme Court Rules requires the filing of a notice of motion in certain cases, but by way of acknowledgement of the existence of alternatives, goes on to say that “if separate proceedings for punishment of contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders”.

15. [179]

    In cases where fresh proceedings have been commenced to address an alleged contempt, then those proceedings will “relate to contempt” and fall within s 101(5). The position where a motion and statement of charge are filed in existing proceedings is much less clear.

16. [180]

    If s 101(5) outflanks s 101(2)(e) such that there is an appeal as of right from any judgment or order, including an application for an adjournment or the rejection of a tender, then there is the following unlikely result. If the prosecutor commences by summons, then there is an appeal as of right from any interlocutory order. However, if the prosecutor proceeds by way of motion, then there is an appeal as of right only if the proceedings relate to contempt, which need not be every case. That does not mean that an appeal would not be available. Although the proceedings would not relate to contempt, the order would still be one within the grant of leave in s 101(1) but subject to the requirement to obtain leave pursuant to s 101(2). It seems unlikely that whether or not a party dissatisfied with an interlocutory determination arising out of a contempt prosecution enjoys an appeal as of right or by way should be affected by the mode adopted by the prosecutor to commence the prosecution.

17. [181]

    Our preliminary view is that the resolution of this issue turns on the meaning of the words “any proceedings that relate to contempt”. Mr Reynolds was driven to insist that once the notice of motion and statement of charge were filed, the proceedings (which were commenced in 2020) became proceedings that relate to contempt. We are disinclined to accept that submission.

18. [182]

    An issue of contempt can arise at any stage of proceedings. A not uncommon circumstance is the commencement of proceedings with interlocutory injunctive relief, a claim that those orders have been breached amounting to contempt, which claim is subsequently resolved one way or another. It is unlikely to be the case that once a motion alleging contempt has been filed, every judgment or order thereafter made in the proceedings falls within s 101(5). That would result in parties enjoying a right of appeal in relation to adjournments, timetables, evidentiary rulings and every other judgment or order made in the proceedings. As Mr Reynolds submitted, “any” is a broad word.

19. [183]

    The resolution which does least violence to the language, and in fact reflects its ordinary meaning, is that the underlying proceedings do not become “proceedings that relate to contempt” merely because a motion seeking findings of contempt has been filed, or even if the alleged contempt has been made out.

20. [184]

    It may be possible to treat the words “proceedings that relate to contempt” to mean “order or judgment that relates to contempt”, or alternatively to proceed on the basis that where there is a dispute over an order or judgment that relates to contempt, then the proceedings relate to contempt. But both of those approaches depart from the natural meaning of the words, which are that the right of appeal turns not on the nature of the order or judgment, but on the nature of the proceedings.

21. [185]

    Further, it is to be borne in mind that if s 101(5) has a narrow operation in the case of contempts which are prosecuted by notice of motion, that does not leave a litigant without any appeal. It means only that the appeal available under s 101(1) may be qualified by the need to obtain leave. Accordingly, there is no need to strain to give s 101(5) a broad meaning.

22. [186]

    The proceedings commenced by the DCT in 2020 did not in 2020 relate to contempt. We incline to the view that they do not relate to contempt today, even though within them has been filed a motion prosecuting the tenth defendant for contempt. The pleadings were not provided to this Court, but they appear to have been directed to the DCT’s claim that Mr Gazal and his companies were very substantially indebted by reason of their fraud.

23. [187]

    The matter may also be tested this way. There was a Settlement Agreement which appears substantially to have resolve the proceedings. But we doubt that the entry into the Settlement Agreement altered the nature of the subject matter to which the proceedings related. Further, when Mr Gazal and some of his companies breached the Settlement Agreement, leading to the application by the DCT to enter judgment against them, that again did not alter the nature of the subject matter to which the proceedings related. The same reasoning leads to the conclusion that although for the last 18 months the DCT and Mr Gazal have been directing attention to the statement of charge which has been filed in the proceedings, that does not alter the nature of the subject matter to which the proceedings related.

24. [188]

    On that approach, such rights of appeal as the parties enjoy are conferred by s 101(1), not s 101(5), and thus while Mr Gazal has a right of appeal, it is subject to a grant of leave because the orders so far made are interlocutory. However, it is not necessary to express a concluded view on the issue because irrespective of whether an appeal lies as of right, the extension of time sought by Mr Gazal should be refused.

Conclusion and orders

1. [189]

   For those reasons, the application for an extension of time should be refused. It does not matter whether Mr Gazal enjoys an appeal as of right or requires leave, because the proposed appeal is contrary to the forensic decisions made before the primary judge. We add that it has been prepared in a way that is less than satisfactory, insofar as the transcript of the hearing was not made available, and no submissions were made concerning the applicability of the rules in criminal trials to prosecutions for civil contempt in cases where a tutor has been appointed, and there has been no compliance with r 51.51, and an attempt has been made to adduce evidence for the first time without attending s 75A(8). We have considered whether it might be best to permit the parties to be heard further so that they may attend to these points. However, in circumstances where both sides will be free to bring an appeal from orders which will be made following a hearing to take place on 31 March 2026 at which the issue of Mr Gazal’s fitness can be raised in a procedurally fair manner, and where the DCT has indicated a consent to a stay of execution, the appropriate course is not to grant the extension of time that is required. It should be noted that the dismissal of the notice of appeal (because it was filed out of time) does not stand in the way of an appeal to this Court from final orders after they have been made.

2. [190]

   It was not suggested that costs should not follow the event, and there is no reason to displace the general rule in UCPR r 42.1. The effect of an order that Mr Gazal pay the DCT’s costs is that the tutor Ms Samadi is liable to pay those costs: see Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284 and Fong bhnf Fong v Weller [2024] NSWCA 46 at [46].

3. [191]

   The Court’s orders are: