Zhu v Dr Penny Lee; Zhu v Dr Isaac Mordecai

1. [1]

   On 18 April 2019, Julia Zhu, the plaintiff, commenced proceedings against Dr Penny Lee, and Dr Isaac Mordecai, as first and second defendants respectively, claiming damages for negligence with respect to advice and treatment of a condition diagnosed as “Extramammary Paget’s Disease” (“EMPD”). It will be convenient to refer to these proceedings as the “EMPD claim”.

2. [2]

   Both defendants deny negligence and defend the proceedings.

3. [3]

   On 18 April 2019, Ms Zhu as plaintiff, commenced a second set of proceedings against Dr Penny Lee as first defendant, Dr Isaac Mordecai as second defendant, and Dr David Wong as third defendant.

4. [4]

   In these second proceedings, the plaintiff claimed damages for the negligence of each of the defendants with respect to the diagnoses, advice and treatment of a condition in her right foot relating to a hallux valgus deformity and a dislocated second right metatarsophalangeal joint. It will be convenient to refer to these proceedings as the “foot claim”.

5. [5]

   Each defendant defends the proceedings and denies any negligence on their part.

6. [6]

   Both of the proceedings were commenced on behalf of the plaintiff by a solicitor, Mr Sean Keleher of Keleher Lawyers. He is an experienced practitioner in medical negligence claims. No complaint is presently made by any of the defendants about the manner in which the cases have been pleaded by Mr Keleher.

7. [7]

   On 4 May 2022, in the foot claim, the plaintiff filed an Amended Statement of Claim, by which she discontinued the claims against Dr Lee and Dr Wong. This claim now proceeds only against Dr Isaac Mordecai. He continues to deny any negligence and denies any entitlement of the plaintiff to damages of any kind.

Plaintiff’s Legal Incapacity

1. [8]

   On 3 October 2023, after a hearing which continued over a number of days, Weinstein J held that he was satisfied that the plaintiff in these proceedings was person under legal incapacity.

2. [9]

   Weinstein J made:

3. [10]

   That determination was made in respect of both of the EMPD claim and the foot claim.

4. [11]

   His Honour stood the proceedings over to enable the plaintiff to identify an eligible person to act as her tutor, and to enable the relevant and appropriate documents to be filed.

A Tutor for the Plaintiff

1. [12]

   Thereafter, Mr Norman Zhou, the plaintiff’s son, was appointed as her tutor in both of the proceedings. The appropriate documents were filed.

2. [13]

   During the period that Mr Zhou was acting as tutor, the proceedings were listed together for a final hearing on 17 November 2025 with an estimate of 10 days.

3. [14]

   On 18 July 2025, Mr Zhou filed an application to be granted leave to withdraw as the plaintiff’s tutor in both proceedings. That application was heard by me on 28 August 2025.

4. [15]

   For the reasons which I delivered on that day: see Zhu v Dr Penny Lee; Zhu v Dr I Mordecai [2025] NSWSC 998, I made an order pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), that Mr Norman Zhou be removed, with immediate effect, as the plaintiff’s tutor, in each of the proceedings.

5. [16]

   Accordingly, the position is that the plaintiff is under a legal incapacity and is, as a consequence, obliged to continue these proceedings by a tutor. Since I ordered the removal of her tutor, at his request, on 28 August 2025, unless and until a tutor is appointed, or else a determination is made that the plaintiff is no longer under a legal incapacity, the proceedings cannot continue.

6. [17]

   This judgment deals with a number of Motions, and an Application, all of which I heard together on 28 August 2025. On 31 October 2025, I made orders with respect to those Motions. These are the reasons for those orders.

Amended Notices of Motion filed by the Defendant

1. [18]

   The defendants sought orders in the same terms in each of the proceedings by an Amended Notice of Motion, dated 15 August 2025.

2. [19]

   In each of those Notices, the following orders remained relevant:

Amended Notices of Motion filed by the Plaintiff

1. [20]

   The plaintiff brought an Amended Notice of Motion which had been filed, by her and not by her tutor, on 11 August 2025, in each of the claims.

2. [21]

   Each of those Amended Notices of Motion sought substantially identical relief. The orders sought were in the following terms:

Application by Michael Bar-Mordecai

1. [22]

   As well as the plaintiff’s and the defendants’ Amended Notices of Motion, the Court also had before it, for determination, an Application dated 4 August 2025, in which Mr Michael Bar‑Mordecai applied to be appointed as the tutor to act for the plaintiff and to carry on the litigation on her behalf.

2. [23]

   That application contained the following grounds:

3. [24]

   All of the Motions, and Mr Bar-Mordecai’s Application, were heard together and the evidence tendered was considered with respect to all Motions and the Application.

4. [25]

   It is convenient to deal first with the application dated 4 August 2025 of Mr Bar‑Mordecai to be appointed as the tutor for the plaintiff.

5. [26]

   In support of the application, Mr Bar-Mordecai affirmed an affidavit which included the following:

6. [27]

   In an affidavit filed on 11 August 2025, by Ms Zhu, the plaintiff, she includes the following material:

7. [28]

   The affidavit goes on to articulate allegations of misconduct and corruption against two solicitors, suggesting that they abused their professional power and suppressed key medical evidence to procure false expert reports, and that their actions:

8. [29]

   The plaintiff avers in her affidavit that she brings her claims:

9. [30]

   Finally, she includes this paragraph:

10. [31]

    In Mr Bar-Mordecai’s affidavit, he refers to being involved in a contested proceedings in the Equity Division, which resolved in his favour in the Court of Appeal. I note that the Court of Appeal judgment in those proceedings was delivered in 2004.

11. [32]

    Of the 2004 appeal and the underlying proceedings, Mr Bar-Mordecai said:

12. [33]

    Mr Bar-Mordecai annexed a single page copy of what appears to be a summary of some details of the judgment, although its origins are unclear. It appears to support the statement in his affidavit.

13. [34]

    What the affidavit of Mr Bar-Mordecai does not reveal is that, in fact, the judgment of the Court of Appeal, Bar-Mordecai v Hillston [2004] NSWCA 65, was in respect of an appeal, by him, in which he sought to set aside judgments which were wholly adverse to him in three separately numbered proceedings, which were heard at the same time for a period of over 40 hearing days by Bryson J in the Equity Division, and subject to one judgment: see Hillston v Bar-Mordecai [2003] NSWSC 89. The proceedings consisted of undue influence proceedings in which the appeal was upheld, in part, with respect to one of a number of impugned transactions. The appeal also concerned Family Provision proceedings in which the appeal was dismissed with costs, and Probate proceedings in respect of which the appeal was also dismissed with costs.

14. [35]

    It was entirely misleading for Mr Bar-Mordecai to have claimed that a contested accusation was “… ultimately resolved in [his] favour …” by the Court of Appeal, which overturned prior rulings, when the substance and effect of the judgment of the Court of Appeal was that the majority of the appeals were in fact dismissed with costs, and that, in one respect only, a specific gift, was Mr Bar‑Mordecai successful on the appeal.

15. [36]

    Upon more detailed examination, it is clear that the whole of the judgment of the Court of Appeal does Mr Bar-Mordecai no credit at all. The judgment included these paragraphs:

16. [37]

    The credit findings referred to, and which were not overturned by the Court of Appeal at [186] in the above quote, are found in the primary judgment of Bryson J. It is appropriate to record here, some of those findings:

17. [38]

    The significance of these findings, their affirmation by the Court of Appeal, and the remarks of the Court of Appeal, will be considered in due course.

18. [39]

    Mr Bar-Mordecai had earlier, in 1994, commenced proceedings in the Equity Division. Those proceedings were determined by a judgment delivered by Einstein J. Einstein J found that Mr Bar-Mordecai was an unreliable and untruthful witness. Mr Bar-Mordecai appealed to the Court of Appeal from the judgment of Einstein J. The Court of Appeal dismissed the appeal with costs, holding that all the findings of fact made by Einstein J were open to him. Other grounds of appeal, including allegations of bias on the part of the trial Judge, and allegations of perjury by witnesses for the respondents to the appeal were dismissed.

19. [40]

    I note, however, some comments of the Court of Appeal (Sheller, Stein and Giles JJA) in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123, who said this, at [211]-[212]:

20. [41]

    Again, the significance of these remarks will be considered later.

21. [42]

    A further matter which Mr Bar-Mordecai does not draw to the Court’s attention is that, on 25 February 2005, an order, pursuant to s 84(1) of the Supreme Court Act 1970 (NSW) (“Supreme Court Act”) was made by Patten AJ, with respect to Mr Bar-Mordecai, in the following terms:

22. [43]

    There were other consequential orders: see Attorney General v Bar-Mordecai [2005] NSWSC 142.

23. [44]

    By reason of the introduction on 1 December 2008 of the Vexatious Proceedings Act 2008 (NSW) (“Vexatious Proceedings Act”), orders which had been made prior to commencement of that Act pursuant to s 84 of the Supreme Court Act which were still in existence at that time, were taken to be, and to have effect as if, the order was a Vexatious Proceedings Order made under s 8 of the Vexatious Proceedings Act. The orders made by Patten AJ, although later varied, remain in effect.

24. [45]

    The basis of the order made by Patten AJ was that Mr Bar-Mordecai habitually instituted and continued to pursue proceedings which were without any legal merit, were manifestly hopeless, and which, in many cases, were reserved for collateral purposes, including the intention of annoying or embarrassing the persons against whom the proceedings were brought.

25. [46]

    It is apparent from the judgment of Patten AJ that, consequent upon the lack of success of Mr Bar-Mordecai in the proceedings before Einstein J, and on appeal, he instituted further proceedings against a number of witnesses in the proceedings, the two barristers and the solicitor who had acted for the opposing, successful party and against another solicitor who, although not acting for any party in the proceedings, had allegedly purposefully recruited a witness to give perjured evidence for the party opposed to Mr Bar-Mordecai.

26. [47]

    All of these proceedings were either discontinued or dismissed but clearly represent “satellite litigation” of a kind then regarded as appropriate by Mr Bar‑Mordecai to commence.

27. [48]

    In 2018, the Attorney-General of NSW sought a variation of the orders made by Patten AJ. The proceedings were determined by Fagan J, who gave reasons in his judgment: Attorney-General for NSW v Bar-Mordecai [2019] NSWSC 13.

28. [49]

    Fagan J reviewed a large number of proceedings which occurred after the orders made by Patten AJ.

29. [50]

    With respect to the making of the varied orders, Fagan J made these comments about the manner in which Mr Bar-Mordecai went about defending the proceedings brought by the Attorney-General. He said:

30. [51]

    It is also apparent from the evidence that, in these proceedings, with respect to at least the EMPD claim, that there has been significant documentation sent to the defendants, purportedly from the tutor, Mr Norman Zhou. But Mr Zhou informed the defendants these were not emails that he generated or consented to. They were sent from an email address with the title “Associate to Mr Zhou”. His usual and ordinary email address was not used.

31. [52]

    One such set of documents sent to the defendants, by email, on 2 July 2025, contained 75 pages relating to the EMPD claim which makes allegations that the second defendant fabricated medical records, made false representations in his defence and engaged in conduct which contributed materially to a fraudulent peer review report, which had been served in the proceedings.

32. [53]

    The allegations suggest that the conduct of the second defendant constitutes grave professional misconduct and may give rise to criminal liability. The documents make an allegation against two other individuals – one a solicitor and the other an expert medical practitioner. Although described as defendants, neither of those individuals are, in fact, defendants. The submissions alleged against the solicitor, that she:

33. [54]

    The submissions claimed that, in so doing, she breached her professional and ethical duties, and she participated in a coordinated scheme of evidentiary fraud and procedural abuse. The submission says:

34. [55]

    With respect to the medical expert, it is claimed that he:

35. [56]

    This prolix document is riddled with unsupported allegations of conspiracy, fraud, deliberate concealment of evidence, coordinated deception and “conspiracy and judicial misconduct”. Extravagant language is used.

36. [57]

    It is apparent that the submissions are made in support of the plaintiff being granted leave to file a Further Amended Statement of Claim. These are documents, I am satisfied, prepared by, or at least with a significant input from, Mr Bar-Mordecai and well reflect the remarks of Fagan J, to which I have earlier referred.

37. [58]

    I should also note that Mr Bar-Mordecai has provided a written statement dated 30 January 2023, which is relied upon as part of the proceedings brought by Ms Zhu. In that statement, it provides direct evidence of what occurred at some of the consultations which he attended, he purports to comment on the professional conduct of the doctors at those consultations and gives expert evidence about anomalies which he has derived from clinical notes, and about which he expresses opinions adverse to the defendant practitioner.

38. [59]

    It is clear from the review of the past behaviour of Mr Bar-Mordecai, in the manner in which he has gone about litigating claims in the Equity Division and the Court of Appeal, that he is a person upon whose word the Court cannot rely, in the absence of independent corroborative evidence. If Mr Bar‑Mordecai was appointed as tutor, and, as he claims he should be able to, was allowed to conduct litigation, including appearing for the plaintiff in Court, the fact that the Court could not trust him to tell the truth to it is a matter of significant concern.

39. [60]

    As well, it is possible to discern, in the contents of the written submissions and the extravagantly phrased claims of fraud, conspiracy, deception and criminality on the part of the defendants to the litigation, their solicitors and an expert witness, the same pattern of allegations which were engaged in by Mr Bar‑Mordecai in the litigation to which I have referred above.

40. [61]

    In other words, the Court can have no confidence that any litigation conducted by Mr Bar-Mordecai would be conducted reasonably and rationally. The allegations in the current litigation reflect the same type of unmeritorious allegations which were made in earlier litigation. Many parts of the earlier litigation were held to be vexatious and without proper cause.

41. [62]

    It is also clear that the manner in which, in recent times, Mr Bar-Mordecai has assisted the plaintiff to make submissions, draft documents, and falsely in the name of the tutor, to attempt to progress this litigation, falls well within the description of the way in which submissions were made, arguments put and documents provided in the earlier litigation.

42. [63]

    All of these, in combination, are very sound reasons why the Court would not permit Mr Bar-Mordecai to act as the plaintiff’s tutor. They are also very substantial reasons why, even if Mr Bar-Mordecai was permitted to act as tutor, he would not be permitted to conduct the proceedings contrary to the requirements in the UCPR that, where proceedings are conducted by a tutor, the tutor must act by a solicitor.

43. [64]

    The fact that Mr Bar-Mordecai is to play a role as a witness of fact and as an expert in the claim by the plaintiff is a reason to question whether, if he was appointed as tutor, he would be able to engage objectively in the conduct of the litigation.

44. [65]

    As I have said, all of these provide more than a sufficient basis to refuse the application of Mr Bar-Mordecai.

45. [66]

    It is clear from the affidavits of both Mr Bar-Mordecai of 4 August 2025 and of Ms Zhu of 11 August 2025, that Mr Bar-Mordecai has been responsible for the documents relating to Ms Zhu’s amended Motions of 11 August 2025, as well as the documentation referring to his own application.

46. [67]

    I have earlier set out various contents of the affidavit of Ms Zhu. It is clear from those contents that this litigation is being conducted in a way which is inconsistent with the objective and reasonable conduct of proceedings for damages for professional negligence. Extravagantly phrased claims are being made. One example will suffice. It is asserted in the affidavit of Ms Zhu that private solicitors engaged by the defendants to represent them, have:

47. [68]

    That conduct is described as reflecting:

48. [69]

    It is entirely clear from the terms of the National Anti-Corruption Commission Act 2022 (“NACC Act”), that neither of the named private solicitors are a public official within the meaning of s 10 of that Act. Nor is it said that any of their conduct, in the course of this private litigation, adversely affects or could adversely affect, whether directly or indirectly, the honest and impartial exercise of any public official’s powers as a public official, or in the honest or impartial performance of any public official’s functions or duties.

49. [70]

    The claim that such corruption exists, or else is subject to the provisions of the NACC Act, is simply unsustainable. It should not form any part of these proceedings.

50. [71]

    I am also satisfied that Mr Bar-Mordecai was dishonest in his application to be appointed as tutor. He pretended that the appeal to the Court of Appeal in 2004, to which I have referred above, resulted in findings in his favour, thereby suggesting that he was able to conduct complex litigation properly and effectively. Nothing could be further from the truth. He conducted litigation in front of Einstein J which was hopeless and unsuccessful. With one exception, his litigation in front of Bryson J was wholly unsuccessful, as was his appeal to the Court of Appeal.

51. [72]

    None of that was mentioned by Mr Bar-Mordecai in his application, nor did he provide a complete picture to his otherwise misleading contention.

52. [73]

    Additionally, Mr Bar-Mordecai did not disclose that he had been the subject of vexatious proceedings orders made by Patten AJ, and varied by Fagan J.

53. [74]

    His failure to disclose these matters, I see as an attempt to ignore them, or conceal them from his opponents to the application, and the Court.

54. [75]

    The very fact that Mr Bar-Mordecai is the subject of a vexatious proceedings order, which has been maintained for 20 years, during which period it has been broadened and varied, is itself and without more, a very good reason why he would not be appointed as tutor to conduct any proceedings.

55. [76]

    Because of the vexatious proceedings order, Mr Bar-Mordecai requires the leave of the Court before he can commence proceedings. Here, proceedings have been commenced. To permit Mr Bar-Mordecai to conduct the proceedings in circumstances when he has not first obtained the leave of the Court to take steps in the proceedings, and without any restraint upon the making of extravagant claims, either in interlocutory proceedings, or simply in correspondence and documents sent to the other side, would be to allow him to evade the restrictions created by the vexatious proceedings order.

56. [77]

    Such an approach to litigation would be inimical to the administration of justice. It cannot be permitted.

57. [78]

    Accordingly, for these reasons I dismissed Mr Bar-Mordecai’s application to be appointed as tutor.

Status of the Proceedings

1. [79]

   As a consequence of the order which I made granting leave to Mr Zhu to withdraw as the tutor for the plaintiff, and in light of the conclusion I have reached with respect to the application by Mr Bar-Mordecai to be appointed a tutor, the state of these proceedings is such that the plaintiff remains a person under legal incapacity and she does not have a tutor appointed.

2. [80]

   Accordingly, r 7.14 of the UCPR prevents the plaintiff from carrying on the proceedings.

3. [81]

   Rule 7.18(3) of the UCPR provides that, where a Court removes a tutor for a party, the Court may also stay the proceedings pending the appointment of a new tutor.

4. [82]

   The Amended Notice of Motion brought by the defendants, in each case, seeks an order pursuant to r 7.18(3).

5. [83]

   It is appropriate for the Court to make such an order.

6. [84]

   However, any such stay should not prevent a person applying to be appointed tutor for the plaintiff, or else an application being made for a declaration, or other appropriate relief, to establish that the plaintiff is no longer under a legal incapacity.

7. [85]

   Accordingly, an order staying the proceedings, subject to exceptions to which I have just referred, is the appropriate order.

8. [86]

   Amongst other reasons why such a stay should be ordered, is that the continuation of the proceedings where the plaintiff is under a legal incapacity, and does not have a tutor appointed, will inevitably cause cost and expense to the defendants. In the present circumstances, it would be contrary to the interests of justice to require the defendant to meet a case in proceedings which are not properly constituted because of the absence of a tutor, and it would be prejudicial to the defendant for them to be obliged to incur costs in any such respect.

9. [87]

   The consequence of this order for a stay is that the order sought by the defendant in its Notice of Motion, that the hearing of the proceedings listed on 17 November 2025, be vacated.

10. [88]

    The reason that this is necessary, at this stage, is that it cannot possibly be envisaged that even if a tutor was able to be appointed to conduct the proceedings on behalf of the defendant, it would be necessary for that tutor, as obliged by the UCPR, to retain a solicitor, for that solicitor to then prepare for a hearing to be conducted in November, to find and brief available counsel appropriately, and for proper preparations to occur.

11. [89]

    There is simply not enough time for all of that to occur and for the Court to expect that the proceedings will be conducted, as they ought be, by reference to the real issues, efficiently and in a cost-effective way.

12. [90]

    Additionally, it is clear, to the extent that one can take notice of documents filed by the plaintiff, even allowing for her legal incapacity, she has evinced an intention to file an Amended Statement of Claim in each of the proceedings. Put differently, she has evinced an intention not to proceed with any hearing on the current pleadings.

13. [91]

    There is no prospect of appropriate pleadings being prepared prior to a hearing on 17 November 2025, for the defendants to consider those pleadings, nor for the Court to consider any application to grant leave with respect to those pleadings in sufficient time to enable parties to be properly prepared for a 17 November hearing.

14. [92]

    Curiously, the making of this order at the suit of the defendant, although opposed in the course of submissions which the Court took from the plaintiff and from Mr Bar-Mordecai, coincides with the order sought by the plaintiff in each of her Amended Notices of Motion, to the effect that the hearing scheduled for 17 November 2025 be stayed.

15. [93]

    The orders sought in the plaintiff’s Amended Notices of Motion are not appropriate to be made at this point in time. It is not appropriate to grant leave to file and serve a further amended pleading in these proceedings without first seeing a finalised copy of any proposed pleading. No such copy has been provided in a form which could be filed. The other orders fall within the category of case management orders which would only fall to be considered in the context of properly formulated proceedings.

16. [94]

    For those reasons, it is appropriate to dismiss the orders sought in the plaintiff’s Amended Notices of Motion.

17. [95]

    The defendants have also sought other orders in their Amended Notices of Motion. Leaving aside the question of costs, the only substantive order sought which remains extant is an order that the tutor of the plaintiff, when such a person is appointed, may not carry on proceedings except by a solicitor. The position with respect to that seems to me to be that, in accordance with r 7.14(2) of the UCPR, a tutor of a person under legal incapacity may not carry on proceedings except by a solicitor, unless and until a court otherwise orders. There is no need to make the order sought by the defendant in its Amended Notices of Motion with respect to the carrying on of proceedings.

18. [96]

    Firstly, that is because there is no tutor. Secondly, the default position created by r 7.14(2) of the UCPR is that proceedings where a tutor is appointed can only be carried on by a solicitor. Thirdly, it is inappropriate to consider any request to carry on proceedings, other than by a solicitor, unless and until a tutor is appointed, and the proceedings regularised.

19. [97]

    With respect to costs, the plaintiff’s Notices of Motion have also been wholly unsuccessful and, accordingly, costs ought follow the event.

20. [98]

    Whilst the defendants’ Amended Notices of Motion have been successful in part, it is appropriate for those costs to be reserved to abide by the eventual outcome of the proceedings.

21. [99]

    It is for these reasons that I made the orders recorded earlier, and which for abundant clarity are repeated below.

22. [100]

    I make the following orders in each of the EMPD claim and the foot claim:

    1. (1)

       Plaintiff’s Amended Notice of Motion filed on 11 August 2025 is dismissed.

    2. (2)

       Plaintiff to pay the defendant’s costs of the Motion.

    3. (3)

       Application by Mr Michael Bar-Mordecai dated 4 August 2025 is dismissed.

    4. (4)

       Order, until further order, that these proceedings be stayed, except for:

    5. (5)

       Order that the hearing listed to commence on 17 November 2025 be vacated.

    6. (6)

       Order that the costs of the Defendant’s Amended Notice of Motion filed 15 August 2025 be reserved.

    7. (7)

       Otherwise dismiss the defendant’s Amended Notice of Motion.

    8. (8)

       List the proceedings for directions before the Common Law Registrar on 10 December 2025 at 9am to ascertain the status of the proceedings.