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[2025] NSWSC 1195
respondent. Leave to appeal was refused, the amended summons filed 2 July 2025 was dismissed, and the plaintiff was ordered to pay the defendant’s costs.
The Supreme Court decided that Adams could not appeal the Local Court costs order automatically because appeals from costs orders require leave. It found no sufficiently clear error in the magistrate’s decision. The magistrate had given Adams opportunities to provide documents, was not required to identify omissions or run his case for him, and had sufficiently considered the material despite not naming each email in the reasons. The public-interest argument did not overcome the circumstances that the negligence proceedings were commenced without a required expert report and later discontinued by Adams. The Court refused leave, dismissed the summons and ordered Adams to pay the defendant’s costs.
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2,956 words · generated 02/10/2026
In Adams v Northern Sydney Local Health District [2025] NSWSC 1195, McGuire J considered an application to appeal, or alternatively for leave to appeal, from a Local Court order that Charlie Armstrong Adams pay Northern Sydney Local Health District (the District) $38,471.77 in costs. The Local Court made that lump-sum order on 6 February 2025 after the underlying proceedings were dismissed.
6 cited instruments linked from this judgment.
Adams had commenced proceedings on 21 November 2023. His claim concerned his presentation as a patient at the Hornsby Hospital Mental Health Clinic. Across successive pleadings, he alleged that the District breached a duty of care by failing to confirm a diagnosis of delusional disorder, and sought damages for physical, emotional and financial harm [4]. The proceedings initially named individual medical, nursing and administrative staff as defendants, but the second amended statement of claim removed those individuals [4].
A central procedural issue was that the claim alleged professional medical negligence. The judgment states that UCPR r 31.36 required a plaintiff in such a claim to file and serve an expert report supporting the alleged breach, the general nature and extent of damages, and causation, unless the court ordered otherwise [5]. Adams did not file or serve such a report, either when he commenced the proceedings or after amending the statement of claim [6].
The District drew that failure to his attention and foreshadowed an application under r 31.36(3) [7]. In November 2024, the Local Court dismissed Adams’s application to proceed without an expert report, stayed the proceedings until one was filed and served, and ordered him to pay the costs of that motion [9]. Adams later applied for the proceedings to be dismissed. They were dismissed on 9 January 2025, after which the parties made submissions about costs [10].
At the costs hearing on 6 February 2025, Adams changed his earlier position on paying costs and opposed an order requiring him to do so. The magistrate nevertheless ordered him to pay the District’s costs in the fixed sum of $38,471.77, relying on the costs discretion in s 98 of the Civil Procedure Act 2005 (NSW) and r 42.20 of the Uniform Civil Procedure Rules [11], [35]-[36].
In the Supreme Court, Adams raised four main complaints: that he had been denied procedural fairness because documents he intended to rely on were not tendered; that the magistrate failed to consider emails about a discharge summary; that the magistrate should have provided further assistance because he was self-represented; and that the proceedings raised matters of public interest [13]-[22]. He also argued that the costs amount was disproportionate in light of his financial position and self-represented status [22].
McGuire J refused leave to appeal, dismissed the amended summons and ordered Adams to pay the District’s costs [54]-[55].
The first step was identifying the correct appeal route. Section 39 of the Local Court Act 2007 (NSW) permits an appeal as of right from a General Division decision only on a question of law. Section 40(2)(c), by contrast, requires leave to appeal an order as to costs [32]-[34]. Since Adams challenged a costs order and had not identified a question of law, the Court held that leave was required [34].
The Court then applied principles governing leave to appeal and discretionary costs orders. It noted that leave is ordinarily appropriate where a matter raises an issue of principle, a question of general public importance, or a reasonably clear injustice going beyond what is merely arguable [37]. Since costs are discretionary, a proposed appeal also needs to show an error of the kind described in House v The King, such as taking account of an irrelevant matter, overlooking a relevant matter, or making an error of legal principle or fact [39]-[40].
On procedural fairness, Adams complained that the magistrate did not tell him that a document described in his written submissions as “Exhibit D” had not been attached or tendered. The Supreme Court found that he had been given opportunities to provide documents, including an adjournment during which he could email material to the District [41]. The judgment also records that at an earlier Local Court appearance Adams had said a large bundle he could not print was not to be relied on, and that he was aware he needed to make documents available to the Court [41]. The Court concluded that his failure to attach, serve or tender the disputed document was not caused by procedural unfairness [41].
The Court rejected the argument that the magistrate had an obligation to identify the omission or prompt an adjournment. It held that courts need not give legal advice or conduct a case on behalf of a self-represented litigant. The duty to avoid disadvantage does not extend to taking over the conduct of the litigation or making decisions about which documents to tender [42]. On that basis, Stead v State Government Insurance Commission, which Adams relied on for a natural-justice proposition, did not apply to the circumstances [43].
On the alleged failure to consider emails, the Court explained that judicial reasons do not need to list every item of evidence or every submission. The relevant question is whether the reasons address the critical contested points and important evidence [44]-[46]. Although the magistrate did not expressly name the emails with Ms Shea, McGuire J read the magistrate’s general reference to documents concerning the Crown and the State’s model-litigant obligations in the context of the material that had been tendered. That was enough to reject the claim that the emails had not been considered [47]. The Court also observed that the emails did not support the alleged misconduct, delay or obfuscation [48].
The public-interest argument was rejected because the circumstances differed from Oshlack v Richmond River Council. The proceedings in Oshlack were heard and determined on their merits, and the litigant had pursued an environmental matter in the public interest without a personal interest in the outcome [50]. Adams’s proceedings had not been determined on their merits, had been commenced without the expert report required by the rules, and were discontinued on his own motion [51]. The Court considered that the public also has an interest in avoiding defendants incurring legal costs in proceedings commenced in breach of the rules and later discontinued [52].
Finally, the Court rejected the argument based on impecuniosity. It stated that a litigant’s financial hardship does not prevent a court from making a costs order, and found that the magistrate had taken Adams’s financial position into account [53]. Taken together, the asserted grounds did not reveal a sufficiently clear injustice or a relevant error in the exercise of discretion. Leave was therefore refused [54].
The judgment applies statutory provisions and existing authorities. It does not purport to introduce a new statutory rule or announce a broad change to the law.
On appeal routes, the judgment confirms the distinction drawn by ss 39 and 40 of the Local Court Act. A General Division appeal as of right under s 39 is confined to a question of law. An appeal from a costs order requires leave under s 40(2)(c) [32]-[34]. In this case, the costs character of the order controlled the appeal route, and the plaintiff’s grounds did not convert the application into an appeal as of right.
For leave, the judgment adopts the approach that leave is generally reserved for a matter involving principle, general public importance or reasonably clear injustice beyond a merely arguable complaint [37]. It combines that threshold with the restraint applicable to a discretionary costs decision: the applicant must identify a House v The King error [39]-[40]. The practical effect in this case was that disagreement with the outcome, or a request that the appeal court reassess the exercise of discretion, was not enough without an identifiable error.
For judicial reasons, the decision reiterates that a judge or magistrate need not mention every submission or item of evidence individually. Reasons should expose how critical contested issues were resolved and address important evidence, but the failure to refer expressly to a particular item does not necessarily show it was ignored [44]-[47]. The judgment also notes that the workload of the court below is relevant when assessing extemporaneous reasons [46].
For assistance to self-represented litigants, the judgment applies the boundary between procedural assistance and taking over a party’s case. The court must not allow a self-represented person to suffer disadvantage in the sense discussed in the cited authorities, but that does not require the court to give legal advice, conduct an audit of the litigant’s documents, or make forensic decisions for them [42], [49].
For costs and public interest, the judgment treats Oshlack as factually distinct, rather than laying down a rule that public-interest claims never affect costs. It emphasises the difference between proceedings pursued and determined on their merits in a broader public interest and proceedings commenced without a required expert report and later discontinued [50]-[52]. It also states that impecuniosity alone does not bar a costs order [53].
Accordingly, the “after” position apparent from this judgment is an application of existing principles to the particular facts. The supplied judgment does not establish that any cited precedent was overruled, nor does it identify a change to the governing statutes or rules.
Appeal route, paragraphs [32]-[34]. The Court set out ss 39 and 40 of the Local Court Act and held that the order under challenge was a costs order from the General Division. In plain English, a party cannot appeal this type of order automatically. Leave is required, and the plaintiff had not identified a question of law that could support an appeal as of right.
Leave and discretionary review, paragraphs [37]-[40]. The Court said that leave is generally reserved for issues of principle, public importance or reasonably clear injustice, and that a discretionary costs decision must disclose an error of the kind described in House v The King. In plain English, it is not enough to argue that a different decision could have been made. The applicant must point to a recognisable error in the exercise of discretion.
Documents and procedural fairness, paragraphs [41]-[43]. The Court found that Adams had opportunities to provide documents and that responsibility for making intended evidence available rested with him. It stated that the court does not have to conduct litigation for a self-represented person. In plain English, the fact that someone is representing themselves does not generally require the court to discover missing attachments or decide what evidence should be presented.
Reasons and evidence, paragraphs [44]-[48]. The Court explained that reasons need not provide a line-by-line account of all evidence. It found the magistrate had referred generically to documents about the State’s conduct, read in the context of the material tendered, and therefore rejected the claim that the emails had been ignored. In plain English, an item’s absence from the express wording of reasons does not by itself prove that the decision-maker overlooked it.
Public interest, paragraphs [50]-[52]. The Court distinguished Oshlack because that case involved public-interest proceedings determined on their merits, whereas Adams’s case had not been heard on its merits and was discontinued by him after being commenced without the required expert report. In plain English, the Court did not treat an allegation of public importance as automatically removing the ordinary costs consequences in these different circumstances.
Impecuniosity, paragraph [53]. The Court stated: “There is no rule that the impecuniosity of a litigant prevents a court from making an order that the litigant pay costs.” It also found the magistrate had taken Adams’s financial position into account. In plain English, financial hardship can be relevant to a costs decision, but the judgment says it does not, by itself, prevent a costs order.
The judgment is most directly relevant where a party seeks to challenge a Local Court General Division costs order. Its first practical feature is the statutory route: s 40(2)(c) requires leave for an appeal from an order as to costs, while s 39’s appeal-as-of-right route concerns a question of law [32]-[34].
It is also relevant to applications alleging that a costs discretion was wrongly exercised. The decision treats House v The King error as the necessary framework for identifying a reviewable problem, rather than treating the appeal as a fresh choice about what costs order would have been preferable [39]-[40].
The procedural-fairness discussion may be relevant where a self-represented litigant says the court should have pointed out that a document was missing, unserved or not tendered. The facts mattered: Adams had prior notice about making documents available and received an opportunity to provide documents at the costs hearing [41]. The judgment does not say that assistance is never required; it describes the limits of the obligation on the facts before it [42]-[43].
The reasoning on adequacy of reasons may be relevant where a party relies on the absence of an express reference to an item of evidence. The decision requires attention to the reasons as a whole and to whether the evidence was important to a critical issue, rather than treating silence about any individual item as proof of non-consideration [44]-[47].
The public-interest discussion is relevant where a party relies on Oshlack to resist costs. The judgment contrasts proceedings that were heard and determined on their merits in a public interest with proceedings that were discontinued after being commenced without a procedural requirement [50]-[52]. It does not decide every possible case in which a public-interest dimension may affect costs.
Finally, the decision addresses financial hardship arguments against costs. It says impecuniosity does not automatically prevent an order and notes that the magistrate had considered the plaintiff’s financial position [53]. The decision’s application remains tied to its particular procedural history and evidence.
The supplied judgment was delivered on 13 October 2025. The text provided contains no subsequent decisions that cite or apply Adams v Northern Sydney Local Health District. It is therefore not possible, from this source, to describe how later courts have treated this judgment.
The judgment itself refers to earlier authorities. It cites Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das for the general approach to leave [37], and notes that Owners Strata Plan 43470 v Jameson and Associates Unit Services Pty Ltd had recently referred to that approach with approval [37]. It also relies on Fordham v Fordyce and Dalmar Formwork (Australia) Pty Ltd and Anor v Maricic (No 3) for the caution courts should exercise before granting leave to challenge a costs order [38].
For the relevant restraint on reviewing discretionary decisions, the judgment applies House v The King [39]-[40]. For reasons and evidential findings, it relies on Sweeney v He, Baira v RHG Mortgage Corporation Ltd, Ming v Director of Public Prosecutions (NSW) and Pollard v RRR Corporation Pty Ltd [44]-[46]. It applies Hamod v the State of New South Wales and Anor and R v Zoradd to the limits of assistance to self-represented litigants [42]. It distinguishes Oshlack [50]-[52] and states that Stead does not apply to the particular procedural-fairness complaint [43].
The judgment also refers to Rahman v Rahman [2024] NSWCA 198 on the latitude relevant to extemporaneous reasons, and to Rahman v Rahman [2025] NSWCA 219 in the defendant’s submissions about leave [23], [46]. Those references concern authorities available to McGuire J when deciding Adams, not later treatment of Adams itself.
The judgment resolves the application before it, but its reasoning leaves questions that would depend on different facts or a fuller record.
First, the scope of assistance owed to self-represented litigants may depend on the circumstances of a particular hearing. Here, the Court emphasised the prior notice, the opportunity to email documents, and the plaintiff’s previous experience with a large bundle not being available to the Court [41]-[42]. The judgment does not set out a comprehensive test for every circumstance in which a court may need to clarify a procedural step.
Second, the decision does not determine how a materially different failure to receive or understand an opportunity to tender evidence would affect procedural fairness. The Court found that Adams was not deprived of an opportunity to make submissions on a factual issue and held that Stead did not apply [43]. A case involving a different record or a different kind of lost opportunity would need separate analysis.
Third, the judgment does not establish that a generic reference to documents will always be sufficient reasoning. Its conclusion depended on the magistrate’s reference being read in context and on the nature of the submissions and material before the Local Court [47]. The judgment’s broader explanation is that important evidence and critical points must be addressed, not that express references are never needed [44]-[46].
Fourth, the public-interest costs analysis remains fact-sensitive. McGuire J distinguished Oshlack on the basis that those proceedings were heard and decided on their merits and had been pursued by a person motivated by a broader public interest, while Adams’s proceedings were discontinued after being commenced without the required expert report [50]-[52]. The decision does not specify how a different procedural history or evidential basis would affect that comparison.
Finally, the judgment does not state that financial circumstances are irrelevant to costs. It records that the magistrate took Adams’s financial position into account, while rejecting the proposition that impecuniosity prevents an order [53]. How a litigant’s financial circumstances may affect the exercise of the discretion in another case remains dependent on the relevant evidence and circumstances.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Adams v Northern Sydney Local Health District [2025] NSWSC 1195
Hearing dates: 7 October 2025
Date of orders: 13 October 2025
Decision date: 13 October 2025
Jurisdiction: Common Law
Before: McGuire J
Decision: (1) Leave to appeal is refused.
(2) The amended summons filed 2 July 2025 is dismissed.
(3) The plaintiff is to pay the defendant’s costs.
Catchwords: APPEALS — appeal from Local Court — costs order — whether leave to appeal required — whether magistrate erred by failing to consider relevant evidence — whether procedural fairness was denied in the Local Court — whether the Local Court should have provided additional assistance to a self-represented litigant — whether the proceedings were in the public interest
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Local Court Act 2007 (NSW), ss 39, 40, 98
Uniform Civil Procedure Rules 2005 (NSW), rr 31.36, 42.20
Cases Cited: Baira v RHG Mortgage Corporation Ltd [2012] NSWCA 387; 297 ALR 416
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Dalmar Formwork (Australia) Pty Ltd and Anor v Maricic (No 3) [2008] NSWCA 29
Fordham v Fordyce [2007] NSWCA 129; 154 LGERA 49
Hamod v the State of New South Wales and Anor [2011] NSWCA 375
House v The King (1936) 55 CLR 499; [1936] HCA 50
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Owners Stata Plan 43470 v Jameson & Associates Unit Services Pty Ltd [2025] NSWSC 1028
Pollard v RRR Corporation Pty Ltd (2000) 50 NSWLR 104; [2000] NSWCA 110
R v Zoradd (1990) 19 NSWLR 91
Rahman v Rahman [2024] NSWCA 198
Rahman v Rahman [2025] NSWCA 219
Stead v State of Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Sweeney v He [2023] NSWCA 68
Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337
Category: Principal judgment
Parties: Charlie Armstrong Adams (Plaintiff) (Self-represented)
Northern Sydney Local Health District (Defendant)
Representation: Counsel:
M Best (Defendant)
Solicitors:
Crown Solicitor’s Office (Defendant)
File Number(s): 2025/00167413
The plaintiff, Charlie Armstrong Adams, by amended summons filed 1 July 2025 seeks to appeal a decision made in the Local Court on 6 February 2025. On that day Magistrate Atkinson made an order that the plaintiff pay the defendant’s costs in the lump sum of $38,471.77.
The plaintiff seeks orders that the appeal be allowed, the costs order made in the Court below be set aside, the matter be remitted to the Local Court to be reconsidered according to law, alternatively that each party bear their own costs of the proceedings in the Local Court and that there be no order to costs of this appeal.
The plaintiff asserts that he is entitled to appeal against the decision as of right pursuant to s 39 of the L**ocal Court A**ct 2007 (NSW). In the alternative, he seeks leave to appeal pursuant to s 40 of the L**ocal Court A**ct.
The plaintiff commenced proceedings in the Local Court on 21 November 2023. The cause of action pleaded arose from the plaintiff’s presentation as a patient at the Hornsby Hospital Mental Health Clinic, which was operated by the defendant. An amended statement of claim was filed on 14 December 2023. In addition to the present defendant, the amended statement of claim joined various individual defendants including medical, nursing and administrative staff from the Hornsby Hospital and the Royal North Shore Hospital. A second amended statement of claim was filed on 10 September 2024, which amongst other amendments removed reference to any of the individual defendants. Throughout each iteration of the pleading the plaintiff pleaded that the defendant had breached a duty of care owed to him by failing to confirm a diagnosis of delusional disorder and sought damages for physical, emotional and financial harm.
Rule 31.36 of the Uniform Civil Procedure Rules 2005 (NSW) applied to the plaintiff’s Local Court proceedings because he pleaded a cause of action based on professional medical negligence. Pursuant to that rule, unless the Court orders otherwise, a plaintiff commencing a professional negligence claim other than a claim against a legal practitioner is required to file and serve with the statement of claim an expert report that includes an opinion supporting the breach of duty of care, the general nature and extent of damages alleged and the causal relationship between any such duty and damage.
The plaintiff breached r 31.36 when he commenced the proceedings because he failed to file and serve an expert report in support of the claim. The breach continued upon each amendment to the statement of claim. No expert report was ever filed or served by the plaintiff.
On 8 August 2024 the defendant drew to the plaintiff’s attention that he failed to comply with the rules and put him on notice that an application may be brought to dismiss the proceedings in accordance with r 31.36(3).
The defendant then filed a defence on 1 October 2024 by which it:
(a) admitted that the plaintiff had attended the Hornsby Hospital Mental Health Clinic on various dates; (b) denied that the plaintiff was entitled to the relief claimed; (c) stated that on 22 June 2022 the plaintiff’s treating psychiatrist Dr Orosco made a clinical note recording “chronic delusional disorder” and wrote to the plaintiff’s general practitioner stating “he does have a chronic persecutory delusion … He has delusional disorder”; (d) stated that earlier proceedings in the New South Wales Civil and Administrative Tribunal (NCAT) commenced by the plaintiff in January 2022, April 2022 and June 2022 had been settled pursuant to an agreement that the plaintiff’s discharge summary documents be amended to delete the word “provisional” and replaced with the word “confirmed” before the diagnosis; (e) stated that the defendant sent an email to the plaintiff enclosing a discharge summary dated 22 June 2020 stating that Dr Orosco had concluded that the plaintiff “suffers from confirmed delusional disorder”; and (f) recorded that the plaintiff had failed to serve any expert evidence in support of his claim in breach of r 31.36.
Following service of the defence, the plaintiff filed a notice of motion on 16 October 2024 seeking leave to proceed in the absence of an expert’s report. On 7 November 2024 orders were made in the Local Court dismissing the application, staying the proceedings until the plaintiff filed and served an expert’s report and ordering the plaintiff to pay the defendant’s costs of the motion.
The plaintiff then filed a notice of motion on 15 November 2024 seeking an order that the proceedings be dismissed and that no order as to costs be made. Orders were made in the Local Court on 9 January 2025 dismissing the proceedings and directing the parties to serve submissions in relation to costs. The plaintiff originally consented to the payment of the defendant’s costs but then during the costs hearing on 6 February 2025 he indicated to the Court that he had changed his position and submitted that he should not be ordered to pay the defendant’s costs.
On 6 February 2025, following evidence and submissions on the issue of costs, the magistrate exercised a discretionary power pursuant to s 98 of the C**ivil P**rocedure A**ct 2005 (NSW) and r 42.20 of the Uniform Civil Procedure Rules and determined that the circumstances were appropriate for the imposition of a costs order that the plaintiff pay the defendant’s costs in a fixed amount of $38,471.77. It is from that order that the present application to appeal, or alternatively for leave to appeal, arises.
The plaintiff submits that he is entitled to the relief sought on four bases.
First, the plaintiff asserts that there was a lack of procedural fairness in that the magistrate failed to advise him that certain documents he had intended to rely on during the hearing of the costs application had not been tendered into evidence. The plaintiff emailed written submissions on the issue of costs which he sent to the magistrate on 5 February 2025 [Exhibit A page 36 ff]. Part of the emailed submission refers to various supporting documents. One of the documents referred to is described in the submissions as “Exhibit D: Evidence of (a named solicitor’s) agreement to create a discharge summary without a formal diagnosis, demonstrating fraudulent conduct at NCAT”. Despite being referred to as an attachment, that document was not attached to the submissions, was not sent to the magistrate and was not tendered by the plaintiff during the hearing on 6 February 2025.
The plaintiff concedes that the document was not attached and not tendered during the application due to an omission on his part. However, he submits that the Court had an obligation to bring to his attention that that evidence was “missing” or raise with him that he should seek an adjournment in order to obtain the evidence. He submits that he was denied procedural fairness because he says he was deprived of an opportunity to rectify his omission to tender the evidence.
In this Court the plaintiff conceded that he had also failed to annex the evidence in question to any of his affidavits filed on the appeal or included in the agreed bundle [Exhibit A].
Notwithstanding the absence of evidence of fraudulent conduct at NCAT, the plaintiff submitted that the Local Court had a duty to review the documents which he had filed and emailed, a duty to inform him that the documents referred to in his email as “Exhibit D” were missing and a duty to inform him that they had not been tendered.
The plaintiff relies on Stead v State G**overnment I**nsurance C**ommission (1986) 161 CLR 141; [1986] HCA 54. There, the Court held that a denial of natural justice affecting a party’s entitlement to make submissions on an issue of fact is so fundamental that an appeal court would have difficulty in concluding that compliance with the requirements of natural justice could have made no difference.
Secondly, the plaintiff submits that the magistrate failed to consider relevant evidence. In this regard the plaintiff submits that although a number of emails passing between him and Ms Melanie Shea, Director of Legal and Professional Standards for the defendant, were in evidence, the magistrate failed to refer to those documents in the costs judgment. The emails, dated between 24 June 2022 and 21 December 2022 relate to discussions between the parties concerning the provision of a discharge summary.
Counsel for the defendant submitted that the proceedings do not clearly identify a question of law and accordingly the appeal was to be determined in accordance with s 40 of the L**ocal Court A**ct. Accordingly, it was submitted that the applicant was required to establish an entitlement to leave to appeal. The defendant relied on the recent authority of Rahman v Rahman [2025] NSWCA 219 at [99] where the Court of Appeal held that a grant of leave to appeal required there to be some issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable and that discretionary decisions such as those involving matters of practice or procedure attract the added restraint of the requirements of H**ouse v T**he King (1936) 55 CLR 499; [1936] HCA 50 (House v The King). The defendant submitted that the plaintiff had failed to establish any proper basis for the granting of leave and that the application should be refused. It is not enough that an appeal court consider that, if in the position of the primary judge, it would have taken a different course; it must appear that some error has been made in exercising the discretion.
The defendant submitted that in making the costs order the magistrate did not make any House v The King error in exercising the discretion. Specifically, it was submitted that the magistrate did not take into account any irrelevant facts, fail to take into consideration relevant matters, make any errors of legal principle or any factual mistakes.
In relation to procedural unfairness, the defendant submitted that no such unfairness had been established. The defendant submitted that the plaintiff was not deprived of an opportunity to tender evidence before the magistrate and disputed that the Court had a positive duty to a litigant, self-represented or otherwise, to check to ensure that documents the party may wish to rely on had been tendered. In any event the defendant pointed to a transcript of an earlier appearance in the Local Court on 7 November 2024 where counsel then appearing for the defendant notified the Court and the plaintiff that a 300 page bundle of documents had been provided by the plaintiff but were not apparently being relied on. In the transcript [Exhibit A, page 219 ff] counsel appearing for the defendant enquired if the Court had the plaintiff’s 300 page bundle and when the bench indicated that it did not the plaintiff said that he was unable to print the bundle and that he would only rely on the few documents he had printed and was able to tender. Accordingly, it was submitted that the plaintiff had been on notice since 7 November 2024 that if he intended to rely on documents, he was required to print them, tender them into evidence or otherwise physically provide them to the Court. In addition the defendant referred to the transcript of the costs hearing on 6 February 2025 [Exhibit A page 287 ff] where counsel for the defendant informed the Local Court that he had not received any email from the plaintiff and was unaware of any documents sent by the plaintiff to the magistrate or referred to in any submission sent to the magistrate. Following that disclosure the plaintiff indicated that he would email counsel for the defendant any documents he intended to rely on within half an hour. The matter was then stood down in the list, in part to allow the plaintiff time to serve documents on the defendant and in part because the magistrate was too busy to hear the costs application immediately. During that adjournment the plaintiff emailed the defendant some documents he intended to rely on, but did not send any of the documents the plaintiff now complains others had a duty to ensure he tendered.
39 Appeals as of right
(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.
(2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.
40 Appeals requiring leave
(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.
(2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court--
(a) an interlocutory judgment or order,
(b) a judgment or order made with the consent of the parties,
(c) an order as to costs.
The present proceedings are an appeal from the General Division of the Local Court and are an appeal in relation to an order as to costs. Accordingly, s 40 of the L**ocal Court A**ct applies. The plaintiff requires leave to appeal a costs order made by the Local Court and is not entitled to an appeal as of right. No question of law has been identified. Consequently, a s 39 appeal as of right is not available.
The magistrate’s power to order costs is an exercise of discretionary power pursuant to s 98 of the C**ivil P**rocedure A**ct and r 42.20 of the Uniform Civil Procedure Rules. Section 98 relevantly provides:
98 Courts powers as to costs
(1) Subject to rules of court and to this or any other Act--
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.
(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.
(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to--
(a) costs up to, or from, a specified stage of the proceedings, or
(b) a specified proportion of the assessed costs, or
(c) a specified gross sum instead of assessed costs, or
(d) such proportion of the assessed costs as does not exceed a specified amount.
The order made below by the magistrate was pursuant to the discretion in s 98(1) in a specified gross sum as permitted by s 98(4)(c).
There are no rigid rules as to when leave to appeal will be granted. However the granting of leave is ordinarily only appropriate in matters involving issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Be Financial Pty Ltd as Trustee for Be F**inancial O**perations T**rust v Da**s [2012] NSWCA 164, as recently referred to with approval in O**wners Strata P**lan 43470 v Jameson and A**ssociates U**nit S**ervices Pty Ltd [2025] NSWSC 1028 at [29].
Courts should be “slow to grant leave” in respect of an appeal restricted to a challenge to an order for costs or in a case which raises no particular issue of principle: Fordham v Fordyce [2007] NSWCA 129; 154 LGERA 49 at [7]; Dalmar Formwork (Australia) Pty Ltd and A**nor v M**aricic *(*No 3) [2008] NSWCA 29 at [39].
As an award of costs is an inherently discretionary decision it will always be necessary for an applicant for leave to establish an error of the kind described in H**ouse v T**he King.
The issue then to be considered is whether any of the grounds submitted by the plaintiff amount to an error in exercising the costs discretion by taking into account irrelevant facts, failing to take into consideration relevant matters, making any errors of legal principle or any factual mistakes sufficient to amount to a House v T**he King error.
The first error identified by the plaintiff was an alleged lack of procedural fairness in the magistrate failing to advise him of his omission to tender the documents referred to in his written submissions. A proper reading of the transcript of the hearing on 6 February 2025 shows that the plaintiff was offered every opportunity to tender documents or to otherwise furnish documents to the magistrate in support of his arguments. He was given a specific adjournment, which was also to accommodate the magistrate’s busy list, in order for him to forward by email to the defendant any documents upon which he intended to rely. The plaintiff’s failure to attach documents to his email to the magistrate, his failure to tender documents during the application and his failure to serve those documents on the defendant were not caused by and did not arise from any procedural unfairness. I accept the submission made by the defendant that the plaintiff was on notice as a result of the appearance in the Local Court on 7 November 2024 that if he wished to rely on documents, it was incumbent on him to ensure that they had been photocopied and brought to court so that he could make them available to the magistrate. During the hearing on 7 November 2024 the plaintiff conceded that a large bundle of documents which he was unable to photocopy and bring to court were not to be relied on. As a result of that appearance, at the very least, the plaintiff was aware that the obligation was on him, not on the Court, or the defendant or anyone else, to ensure that any relevant documents upon which he intended to rely were available for tender to the Court.
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Amendment to date of 'decision under appeal' in coversheet
Adams
Northern Sydney Local Health District [2025] NSWSC 1195
(1936) 55 CLR 499
(1985) 159 CLR 550
(2022) 109 NSWLR 604
(2013) 249 CLR 332
(1998) 193 CLR 72
(2000) 50 NSWLR 104
(1990) 19 NSWLR 91
(1986) 161 CLR 141
(2007) 17 VR 100
(2002) 109 NSWLR 604
Leave to appeal was refused, the amended summons filed 2 July 2025 was dismissed, and the plaintiff was ordered to pay the defendant’s costs.
The plaintiff submitted that those emails establish the efforts taken by him to obtain a discharge summary and obstruction and misconduct on the part of the defendant. The plaintiff asserts that the defendant engaged in delays, irregularities and miscommunications in providing a discharge summary and eventually provided a consultation note instead. That document [Exhibit A page 34], although a little blurred and difficult to read in parts, refers to the plaintiff by name and contains reference to a diagnosis of delusional disorder. The plaintiff argued that a consultation note is not the same as a discharge summary although he conceded that it was possible for such a note to form part of a discharge summary. He maintained that the provision of the blurred document established a high degree of irregularity in the defendant’s dealings with him and that the magistrate’s failure to refer to any of the emails or his submissions concerning delay and irregularity established that the Local Court had failed to consider relevant evidence. In support of this submission the plaintiff relied on the authorities of Minister for I**mmigration and C**itizenship v L**i (2013) 249 CLR 332; [2013] HCA 18 and Kioa v W**est (1985) 159 CLR 550; [1985] HCA 81 and submitted that those authorities related to a failure to consider relevant evidence.
Thirdly, the plaintiff submitted that the magistrate ought to have provided additional assistance to him as a self-represented litigant. The plaintiff accepted that a judicial officer is not required to give a self-represented litigant legal advice but asserted that the magistrate should have informed him of his failure to attach or tender evidence of fraud and should have given him an opportunity to rectify his omissions. The plaintiff relied on Tomas**evic v Travaglini (2007) 17 VR 100; [2007] VSC 337 as authority for the proposition that a court has a duty to ensure that self-represented litigants are not disadvantaged by technical rules that they do not understand.
Fourthly, the plaintiff submitted that his appeal raised issues of public interest concerning government and the Crown Solicitor’s conduct and fraud by a solicitor involved in the NCAT proceedings. He submitted that the delay and obfuscation in providing him with the discharge summary and the agreement to create a discharge summary knowing that there had been no “confirmed” diagnosis of delusional disorder were matters of public interest. In support of this submission he relied on the authority of Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.
On the issue of the amount at which costs were fixed the plaintiff submitted that the amount was disproportionate in light of his impecuniosity and his status as a self-represented litigant.
It was submitted by the defendant that the relevant circumstances were that the documents in question were never sent by the plaintiff to the magistrate, were never served by the plaintiff on the defendant, were never the subject of any tender by the plaintiff and were not referred to by the plaintiff in written or oral submissions in anything other than a very broad or generic fashion. The precise nature and content of the documents in question were not known to any of the parties other than the plaintiff. In those circumstances the defendant submitted that the Court had no obligation to bring any of the plaintiff’s omissions to his attention or to take steps to ensure that they were rectified.
In relation to the alleged failure to consider relevant evidence, the defendant submitted that the emails passing between the plaintiff and Ms Shea were before the Local Court on the costs application [Exhibit A, page 26 ff]. It submitted that any failure by the magistrate to refer in detail to the email evidence did not establish that the Court did not have regard to that evidence. It was submitted that the Court should take into account that the magistrate gave extemporised reasons at the conclusion of a busy day. The transcript of 6 February 2025 reveals that the magistrate indicated a number of times that she had a very busy list that day, the matter had to stand down, was given a tentative listing of not before 2:30 pm, was not reached until after 4:00 pm and concluded at about 5:00 pm. Relying on Rahman v Rahman [2024] NSWCA 198 at [62] it was submitted in that context that the degree of latitude must be afforded in considering the adequacy of reasons in the extemporised costs judgment.
On the topic of public interest, the defendant submitted that there was no such public interest in setting aside a costs order made in the circumstances of the present case. Rather it was submitted that the public had an interest in ensuring that plaintiffs do not commence proceedings in breach of the rules and an interest in avoiding defendants incurring unnecessary legal costs for defending proceedings which had been improperly commenced and later discontinued. The defendant submitted that the plaintiff had fully participated in the application which resulted in the proceedings being stayed pending service of an expert report, fully participated in the application brought by him leading to the dismissal of the proceedings and fully participated in the costs hearing. His fulsome participation resulted in the defendant being required to incur substantial legal costs.
The defendant submitted that for those reasons the public interest weighed in favour of the making of a costs order.
Further the defendant submitted that there was no evidence, before the Local Court or this Court, of any misconduct on behalf of any state agency involved in the proceedings or any misconduct or fraud on the part of any solicitor from the Crown Solicitor’s Office.
On the issue of procedural assistance to self-represented litigants, the defendant submitted that the obligation for courts to assist did not extend as far as that contended for by the plaintiff. In particular, there was no duty or obligation to conduct an audit to ensure that all evidence had been tendered and no duty or obligation to provide legal advice in relation to the content of pleadings. Although the plaintiff made frequent references in his written and oral submissions in the Local Court to fraud and misconduct, the defendant relied on the fact that the proceedings were never determined on their merits and that no findings of fraud were ever made. In the context of a costs order being made against the plaintiff who had commenced proceedings in breach of the rules and who had himself applied for those proceedings to be dismissed, any allegations of fraud or misconduct were not proved and were irrelevant.
The Court does not have an obligation to give judicial advice to self-represented litigants and does not have an obligation to conduct a case on behalf of a self-represented litigant: H**amod v the State of New South Wales and A**nor [2011] NSWCA 375 at [312]. The obligation, which is to ensure that a self-represented litigant does not suffer a “disadvantage” (R v Z**oradd (1990) 19 NSWLR 91 at 95), does not extend to requiring the Court to descend into the arena and conduct the litigation on behalf of the litigant. Forensic decisions in relation to what documents to tender were decisions that had to be made by the plaintiff alone.
The plaintiff was not deprived of an opportunity to make submissions on an issue of fact. The authority the plaintiff relies on of Stead v State Government Insurance Commission has no application to the present circumstances.
In relation to the plaintiff’s second ground, namely that the magistrate failed to consider relevant evidence, the plaintiff relies on the express failure in the costs judgment to refer to the exchange of emails with Ms Shea. The requirement of a court to give adequate reasons does not extend to courts being obliged to give a line by line account of every piece of evidence or every submission: Sweeney v He [2023] NSWCA 68 at [142]-[143]. It is insufficient on appeal for an appellant to point to a failure to specifically refer to some evidence in a judgment. Rather it would be necessary to establish a failure to refer to evidence that was of such a quality that seriously called into question the integrity of a finding of fact: Baira v RHG M**ortgage Corporation Ltd [2012] NSWCA 387; 297 ALR 416 at [173].
There is no judicial duty to give voice to every submission or every piece of evidence in a judgment. Rather what is required is that the judgment exposes the reasons for resolving critical points in contest between the parties, refers to critical or important evidence relevant to the proper determination of the matter and generally explains any conclusion on a significant factual or evidential dispute: Ming v Director of Public Prosecutions (NSW) (2002) 109 NSWLR 604; [2022] NSWCA 209 at [43].
It is unnecessary to refer to all relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered: P**ollard v RRR Corporation Pty L**td (2000) 50 NSWLR 104; [2000] NSWCA 110 at [62]. Due regard must be given to the workload of the court below when considering the adequacy of reasons in the magistrate’s extemporised judgment: Rahman v Rahman [2024].
In the present case, although it can be accepted that the magistrate’s judgment on costs did not specifically refer to the emails with Ms Shea, they did refer to them generically. The relevant part of the transcript of the costs judgment [Exhibit A, page 298] indicates that the magistrate took into account “the documents which go to the Crown Solicitors, the Crown and the State of New South Wales obligations as a model litigant”. That generic reference to documents relating to the conduct of litigants must be understood in the context of the material tendered by the plaintiff including the emails with Ms Shea. His complaint concerning those emails was that they established misconduct, delay and obfuscation on the part of the State of New South Wales. Accordingly, I am not satisfied that the plaintiff has established that the magistrate failed to consider relevant evidence.
In any event those emails established that Ms Shea was diligent and responsive in her correspondence with the plaintiff. Typically whenever the plaintiff emailed her Ms Shea responded within 24 hours and when he raised with her his concerns about the blurred document and whether it amounted to a discharge summary, she promptly explained the provenance of the document, explained why it appeared to be in a format different than that which the plaintiff might have expected and confirmed that the document was a discharge summary based on Dr Orosco’s diagnosis letter. Ms Shea also confirmed that the discharge summary stated that the plaintiff had been diagnosed with “confirmed delusional disorder”. Accordingly, none of the documents relied on in the email exchanges assist the plaintiff in establishing fraud, misconduct, delay or obfuscation on the part of the defendant.
In relation to the plaintiff’s third ground, namely that the magistrate ought to have provided additional assistance to him as a self-represented litigant, I have already referred to the relevant principles above. There is no duty or obligation on a court to give a litigant legal advice or to make forensic decisions on behalf of the litigant in relation to what documents should or should not be tendered.
In relation to the plaintiff’s fourth ground, namely that his appeal raised issues of public interest concerning misconduct and fraud by lawyers of the government, the Crown Solicitor and those involved in the NCAT proceedings, the authority relied on of Oshlack v Richmond River Council does not assist the plaintiff. That case arose from proceedings in the Land and Environment Court brought by a member of the public seeking to restrict a development of land which might affect the environment and endangered fauna. That member of the public had no personal interest in the outcome of the proceedings but was motivated by a desire to preserve the habitat of endangered koalas on and around the proposed development site. There the proceedings in the Land and Environment Court were heard and determined on their merits and the application to restrict the development was dismissed with no order as to costs. The High Court upheld that order on the basis that, although unsuccessful, the individual who commenced the proceedings was motivated to act in the public interest and there was evidence that a significant number of other members of the public shared a similar interest.
Unlike the position in Oshlack, in the present case there has been no hearing and no determination on the merits. Additionally, unlike Oshlack, the present proceedings were commenced in breach of the rules and were discontinued on the plaintiff’s own motion.
I accept the submission made on behalf of the defendant that the public has an interest in ensuring that irregular proceedings are not commenced and an interest in avoiding defendants being forced to incur legal costs in defending proceedings commenced in breach of the rules and later discontinued. I find that the public interest weighs in favour of the making of a costs order against the plaintiff in the circumstances of the present case.
There is no rule that the impecuniosity of a litigant prevents a court from making an order that the litigant pay costs. Here the magistrate took the plaintiff’s financial position into account. No error is established.
For the above reasons I am satisfied that the plaintiff should not be granted leave to appeal.
Accordingly, I make the following orders:
leave to appeal is refused;
the amended summons filed 2 July 2025 is dismissed; and
the plaintiff is to pay the defendant’s costs.