• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Cases Cited: - Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd [2003] NSWSC 618
- Azar v Kathirgamalingan [2012] NSWCA 429
- Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2025] NSWSC 655
- Eastman v the Queen (2000) 203 CLR 1
- Farr v State of Queensland [2009] NSWSC 906
- Harman v Secretary of State for Home Department [1983] 1 AC 280
- Kesavarajah v The Queen (1994) 181 CLR 230
- Kostov v YPOL Pty Ltd [2018] NSWCA 306
- Masterman Lister v Brutton and Co [2003] 3 All ER 162
- Moubarak by his tutor Coorey v Hol [2019] NSWCA 102
- Nitopi bht Nitopi v Nitopi [2022] NSWSC 1677
- Prothonotary of the Supreme Court of NSW v Chan (No 15) [2015] NSWSC 1177
- R v Presser [1958] VR 45
- R v Ogawa [2009] QCA 307
- R v Rivkin (2004) 59 NSWLR 284
- Sayer Jones v R [2024] NSWCCA 54
- The Owners Strata Plan 21372 v Banovic [2017] NSWSC 177

Category: Procedural rulings

Parties: Deputy Commissioner of Taxation (Plaintiff)
Belfield Development Pty Ltd (Seventh Defendant)
NNG Holdings Pty Ltd (Eighth Defendant)
NG Sydney Corporation Pty Ltd (First Respondent)
Nahi Gazal (Tenth Defendant)

Representation: Counsel:
D Barnett SC / S Scott (Plaintiff)
TF Woods (Tenth Defendant)
Solicitors:
K&L Gates (Plaintiff)
Dib Lawyers (Tenth Defendant)

File Number(s): 2020/365632 (008)

JUDGMENT – ex tempore (Revised 27 October 2025) - Defence application to defer hearing of proceedings; see transcript p 36

Nature of the application and history of the proceedings

1. The Defendant, Mr Gazal, today applies to defer the hearing of the penalty stage of a contempt application, and, in effect, to vacate the hearing date. When I say that application is made, that is something of a shorthand, since no Interlocutory Process was filed, and what was instead done was, at the commencement of the hearing, to urge that course upon the Court, so that much of the day that was allocated to the substantive hearing has been lost to the argument as to whether the substantive hearing would proceed. That is a recurrence of steps that have earlier been taken by Mr Gazal, to similar effect, in these proceedings.

2. I should first say something as to the history of the proceedings, before turning to the two issues which I must address, first, whether it has been established that there is a question as to Mr Gazal's capacity such that, on an assumed basis that the parties ask me to proceed, the Court should not go forward with the penalty hearing in respect of the contempt proceedings. The second is whether, irrespective of the outcome of that matter, the hearing has now been so fragmented by the filing of a purported “appeal”, although the hearing at first instance has not been finally determined, that I should stay these proceedings for a short time to allow the Court of Appeal to determine the status of that purported appeal. I return to that question below.

3. The liability stage of the proceedings was heard, on 6 and 27 May 2025, having continued into the second date when a significant amount of time was lost on the first date to several issues of the same kind as emerged today. On 6 May 2025, Mr Gazal sought to establish that he lacked capacity, in respect of the contempt proceedings, such that the contempt proceedings should not proceed. He sought to rely upon a late affidavit dated 5 May 2025 of his solicitor, Mr Rahal, in order to establish that proposition. That affidavit in turn exhibited expert reports of a Dr Nielssen, which were said to address Mr Gazal's capacity.

4. I observed, on page 8 of my ex tempore judgment dated 6 May 2025, that Mr Gazal's capacity was a matter of real significance and the Court should be alert to the risk that Mr Gazal went to hearing in this matter without capacity. I continue to proceed on the basis that that is a matter of real significance. Having said that, as I observed on that occasion, the significance of that matter emphasises, rather than excludes, the importance of allowing procedural fairness to the Plaintiff, the Deputy Commissioner of Taxation (“DCT”) in respect of that matter, so that a "question" of lack of capacity is not established by mere assertions of that matter, made in a way that is calculated to prevent those assertions being adequately tested.

5. I also there observed, in dealing with matters on that occasion which essentially recurred today, that:

"It seems to me that there would be real unfairness to the [DCT], and real prejudice to the administration of justice, in permitting the late tender of those documents, where the DCT would have no access to the documents on which they relied; no opportunity to subpoena those documents or require their production, because of the lateness of the reference to them, without vacating the hearing irrespective of the merit of Mr Gazal's application seeking to do so; no opportunity to assess their content, or the extent to which they either supported or undermined the views which Dr Nielssen had expressed and which Mr Rahal has in turn expressed relying on Dr Nielssen's views."

6. I there went on to observe that:

“I recognise that the question of capacity is important, but that emphasises why the DCT ought to have been provided a fair opportunity to respond to this information, which could have been done by serving the affidavit in a timely way, or by previously disclosing the documents on which reliance would be based, including other medical reports, so that the DCT would not be left with neither access to those reports nor the opportunity to obtain them by compulsory processes."

7. I recognise that Mr Woods, who appears for Mr Gazal today, relies on that proposition to submit that I had found that a "question" of capacity arose. I do not accept that submission. I had found that an assertion of Mr Gazal’s lack of capacity was made, but in a way that did not allow a fair opportunity to the DCT to respond, by way of procedural fairness, to that assertion. On 6 May 2025, I declined to vacate the hearing date, although the hearing on that date was ultimately adjourned to allow Mr Gazal an opportunity to lead further evidence and make further submissions on 27 May 2025.

8. On 27 May 2025, Mr Gazal led no evidence, and made no submissions, in accordance with the orders that had allowed him a further opportunity to do so. He then served a notice of motion, on the evening before the hearing, that sought to vacate the hearing date, supported by an affidavit dated 26 May 2025, the day before the hearing date, of his tutor, Mr Georges. I accepted, on that occasion, that Mr Gazal should be permitted the opportunity to read that late affidavit, where I concluded that it would ultimately not deprive the DCT of procedural fairness. I then found, in a second judgment delivered on 27 May 2025, that the hearing should not be vacated and should proceed. I referred to the circumstances leading to the then appointment by Mr Gazal of Mr Georges as a tutor, and I note that a tutor is still appointed to Mr Gazal, although the identity of that tutor has now changed.

9. I there made an assumption, expressly on the basis that it was favourable to Mr Gazal, that Mr Georges' evidence indicated a lack of capacity on the part of Mr Gazal, but I observed, also expressly, that I did not reach a finding to that effect, and explained why I could not reach a finding to that effect. I there observed that, first, no objective evidence was led to seek to support a finding of lack of capacity on the part of Mr Gazal and the medical reports on which Mr Gazal had previously relied were not tendered on that occasion. Second, I noted that there were three possible positions, the first being that Mr Gazal lacked capacity; the second being that Mr Gazal was feigning, or exaggerating, a lack of capacity and the third being somewhere between the two. I recognise that Mr Woods again treats that as a finding that a question of lack of capacity had arisen. Again, I do not accept that proposition, where that position was assumed rather than established. There were three possibilities, one of which was that Mr Gazal was feigning, and if Mr Gazal was feigning, then a question of lack of capacity had not arisen. I also there noted that I did not reach a finding that Mr Gazal was feigning a lack of capacity as a matter of fact, but simply recognised it as one of a range of possibilities.

10. I there expressly noted that, although I had assumed, for the purposes of that judgment, a lack of capacity on Mr Gazal's part, I could not reach a finding that a lack of capacity existed, and I also could not reach any quantitative finding as to the extent to which any such lack of capacity was disabling, or prevented his giving instructions, or prevented his engaging in the detail of the proceedings. I there noted that the proceedings had been conducted for some time for solicitors acting for Mr Gazal, presumably with the benefit of his instructions, and before Mr Georges was appointed as Mr Gazal's tutor.

11. Subsequently, following the hearing on 6 and 27 May 2025, and in circumstances where Mr Gazal led no substantive evidence and made no substantive submissions, I delivered a detailed judgment on 24 June 2025 (Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2025] NSWSC 655) (“Liability Judgment”). In the course of that judgment, I referred to the subtle distinctions between, on the one hand, criminal contempt and, on the other, civil contempt, and noted the contentions there put by the DCT that Mr Gazal's conduct in respect of the alleged contempt was fraudulent in character. I also recognised then, and recognise now, that the DCT has always contended that a custodial sentence is appropriate in respect of that conduct. I made orders which contemplated that the parties would bring in short minutes of order, which would deal with a penalty hearing, which was then listed and subsequently adjourned to take place today.

12. Subsequent to the delivery of the Liability Judgment, and prior to the filing of the so called appeal, it appears that Mr Georges ceased to be Mr Gazal's tutor and Mr Gazal’s wife, Ms Samadi, consented to act as his tutor.

13. On 9 October 2025, Mr Gazal filed a notice of appeal in the Court of Appeal in relation to the Liability Judgment. It is not immediately apparent how an appeal could have been brought against that judgment, in circumstances that the proceedings were not then finalised, and the Liability Judgment was, on one view, necessarily interlocutory in nature, because it had not yet reflected itself in a penalty hearing or the making of final orders by way of penalty in the proceedings.

14. Also on 9 October 2025, Mr Gazal filed a notice of motion in the Court of Appeal seeking a stay of the penalty proceedings listed for hearing today until the conclusion of the purported appeal. It appears that motion was not pressed and was not determined in the Court of Appeal, where the parties reached an agreement between themselves, which has not reflected itself in any consensus in the way the proceeding today were conducted, that any orders made by the Court by way of penalty against Mr Gazal would be stayed pending the determination of a final appeal.

15. I will return to the circumstances in which evidence was sought to be led today, in a recurrence of the events which had occurred before me on 6 May 2025, in dealing with the question of Mr Gazal's capacity, and whether any question has arisen as to that capacity, below. It is preferable that I first address the relevant authorities, before doing so, so that that matter can be addressed in its context.

Applicable Principles

16. I should first address the applicable principles, both in their general application, and in the context of a criminal, and possibly a civil contempt. The latter question has been raised for the first time in the course of submissions today.

17. I first turn to the general position, where Division 4 of Part 7 of the Uniform Civil Procedure Rules ("UCPR") proceeds on the basis that if, as a matter of fact, a person is under legal incapacity, that person may not commence or carry on proceedings except by a tutor. While those provisions permit the Court to appoint a tutor, they also provide a mechanism by which a tutor may be appointed on a person's behalf, and I have noted above that that course was adopted by Mr Gazal, initially in appointing Mr Georges and subsequently in appointing Ms Samadi as his tutor.

18. I should also note that the relevant provisions define, in UCPR r 7.13, the concept of a "person under legal incapacity" which includes a person who is incapable of managing his or her affairs, and that s 3 of the Civil Procedure Act 2005 (NSW) in turn provides that a "person under legal incapacity" is "any person who is under a legal incapacity in relation to the conduct of legal proceedings".

19. That concept has been the subject of consideration by earlier authority, and by authority in this Court. In Farr v State of Queensland [2009] NSWSC 906 at [15], Price J referred to observations in Masterman Lister v Brutton and Co [2003] 3 All ER 162 at [75] where the Court observed that

"…the test to be applied...is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of these proceedings".

20. I also note that these provisions were reviewed by the Court of Appeal in Mao v AMP Superannuation Ltd [2015] NSWCA 252 (“Mao v AMP Superannuatio**n”), where Beazley ACJ observed (at [50]) that there is no automatic stay of proceedings simply because a Court had determined that a party is a person under legal incapacity, and also noted that proposition could be critical in circumstances where the relevant party is a defendant. That is, of course, the case in respect of Mr Gazal here.

21. Subsequently, in Nitopi bht Nitopi v Nitopi [2022] NSWSC 1677 at [56] (“Nitopi”), Schmidt AJ referred to the established proposition, which was put by Mr Barnett SC, with whom Ms Scott appeared for the DCT, and as I understood it, not contested by Mr Woods or Mr Gazal, that a person's legal capacity is generally presumed, unless incapacity is established by medical evidence, unless the lack of capacity is so clear that medical evidence is not required. Her Honour also there referred, in that case, to the fact that a consideration of lack of capacity required reference to what was involved in the conduct of particular proceedings: Azar v Kathirgamalingan [2012] NSWCA 429 at [168]. Her Honour also there referred (at [63]) to Mao v AMP Superannuation for the proposition that a lack of capacity did not lead to an automatic stay of the proceedings.

22. I do not understand that any of those propositions, in respect of the conduct of proceedings in this Division generally, were in contest between the parties, although I recognise that limited attention was given in the course of submissions. If these provisions apply in the usual way, it is not apparent that the contempt proceedings should not continue against Mr Gazal, where his interest at all relevant times has been protected by the appointment of a tutor.

23. Here, instead, the parties focused upon the position in respect of the conduct of criminal proceedings, and the application of that position in proceedings for criminal contempt, and the possible application of that position in respect of proceedings for civil contempt. I recognise that, in R v Presser [1958] VR 45 (“Presser”), Smith J reviewed the position in respect of criminal proceedings, and addressed the steps which were to be taken where a "real and serious question as to the fitness, the mental fitness, of the accused to stand his trial" arose in criminal proceedings. I bear in mind that there was clear evidence raising a question of incapacity in that case, by contrast with the position here. First, his Honour noted that two reports had been obtained by the Crown from doctors which indicated the presence of serious mental defects in the accused, and also referred to matters arising from the evidence before his Honour which suggested a lack of capacity. His Honour noted that, once such a real and serious question as to that issue arose he should, in a criminal trial, direct an inquiry as to the accused's fitness to be tried. His Honour also there referred (at [48]), to the matters which are required to establish fitness to be tried, in a criminal context.

24. My attention was also drawn in the course of submissions, to the observations of the Court of Criminal Appeal in R v Rivkin (2004) 59 NSWLR 284 at 300–301 that, under the test in Presser, persons with lesser skills will not necessarily be unfit to be tried and the question of fitness to be tried is to be determined upon a balance of probabilities, without requiring that an accused be able to perform at trial according to his or her maximum potential; and (at [302]), referring to the decision in Eastman v the Queen (2000) 203 CLR 1, that even a higher degree of abnormality does not have the necessary consequence that a person is incapable of following a trial or giving evidence or instructing counsel.

25. In R v Ogawa [2009] QCA 307, the Court of Appeal of the Supreme Court of Queensland in turn referred to the decision in Kesavarajah v The Queen (1994) 181 CLR 230, to which reference was also made in submissions, and observed that in a criminal context, once a "real question as to incapacity is raised", the Court would follow a specified procedure. The Court there noted that that course was not applicable in that case where, rather than there being competing contentions as to the accused's fitness, the trial judge had found, with a proper basis, that there the accused had feigned incapacity. I was also taken to Prothonotary of the Supreme Court of NSW v Chan (No 15) [2015] NSWSC 1177 where, in the context of a claim for a contempt, likely in the nature of a criminal contempt, Schmidt J applied the criteria discussions in Presser in determining whether the accused could be the subject of the continuing contempt proceedings.

26. I also recognise that, in The Owners Strata Plan 21372 v Banovic [2017] NSWSC 177 at [4] (“Banovic”), Darke J recorded his doubts as to whether principles concerning fitness to be tried in criminal proceedings were truly applicable in civil contempt proceedings, notwithstanding that such proceedings shared some of the characteristics of criminal proceedings. His Honour nonetheless adopted a view that was in common between the parties there, and appears to have been more or less in common between the parties here, that the Court should proceed on an assumed basis that such principles were applicable. His Honour there found that the requirements necessary for the defendant in that case to face charges for contempt without unfairness or injustice were not satisfied, where that defendant was not able to understand the nature of the contempt charges brought against him. His Honour there recognised (at [29]) that a presumption undoubtedly existed that the defendant was fit to face the charges for contempt, but held that it was rebutted by the evidence which had been adduced on the application. I will return to the significance of that presumption and the question whether it has been rebutted here below.

27. I also recognise that, in Kostov v YPOL Pty Ltd [2018] NSWCA 306, again, in a case of criminal contempt, the Court of Appeal upheld the finding by Fagan J, at first instance, that the defendant was there under a legal incapacity and, although a tutor had been appointed, he should not proceed to impose a criminal sanction for criminal contempt against her. The Court of Appeal referred (at [17]ff) to matters which were in common between criminal proceedings and proceedings for a criminal contempt, including use of some common safeguards in a civil proceeding for criminal contempt, and observed that the general approach of the common law to the imposition of a criminal sanction upon a person who lacked capacity should be extended to proceedings for criminal contempt. Again, that position appears relatively clear if these proceedings were in truth proceedings for criminal contempt, but I have noted above that the parties here contemplate the possibility that that position may extend to civil contempt proceedings and ask me to proceed on that basis.

28. I recognise that, in Moubarak by his tutor Coorey v Hol [2019] NSWCA 102, Bell P (as the Chief Justice then was) in turn referred to the observations of Campbell J in Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd [2003] NSWSC 618 (“Australian Investors Forum”), where Campbell J had noted (at [33]) that, although the principle in Presser could not be transposed directly to the circumstances of civil proceedings, it:

"Still lists the factors of mental capacity, which it is necessary for someone who is a defendant in civil proceedings to have. It needs to be supplemented to include being able to follow and give instructions about the pre-trial documentation, which is involved in civil proceedings."

29. Bell P there observed that Australian Investors Forum was a civil penalty case and bore a closer relationship to criminal proceedings than a purely civil claim, but also observed (at [107]) that the elements in Presser have relevance to a consideration of the circumstances required for a fair trial.

Applicable evidence

30. With that background, I now turn to the question of the applicable evidence. Here, several features of the conduct of these proceedings become more significant. I have pointed above to the presumption, which applies unless displaced, that Mr Gazal has capacity, as recognised in Nitopi and in Banovic. I have also noted above that, at least since 6 May 2025, Mr Gazal, by his legal representatives, has raised a claim that he lacks capacity and that the proceedings against him should be adjourned or should not continue for that reason. It is notable, however, that when that matter was raised on 6 May 2025, by Counsel asserting that matter, it was done in a manner that would deprive the DCT of procedural fairness, so far as its ability to test the evidence that was relied on for that proposition was concerned. For that reason, the evidence that was then relied on was rejected. When the matter was reagitated before me on 27 May 2025, that proposition was, again, asserted, but the evidence that had previously been relied on was not sought to be read.

31. When the matter was heard today, it was conducted in a manner that had similar features to the conduct of the proceedings on 6 May 2025, although the difficulties which arose then were arguably larger still today. Initially, without notice to the DCT, Mr Woods, who appeared for Mr Gazal, sought to tender a report of Dr Nielssen, which Mr Gazal had previously sought to tender on 6 May 2025, and a report dated 22 October 2025, obtained three days ago from Dr Nielsen, which was directed to correcting an error as to the date of his earlier report.

32. Plainly, at least the legal representatives of Mr Gazal and Ms Samadi as his tutor, and possibly Mr Gazal, had previously directed their attention to the question whether this evidence should be relied on today, because they have gone to the trouble of obtaining an updated report on 22 October from Dr Nielssen, so as to facilitate the reliance on that evidence today. It is striking, however, that, in a recurrence of the practice which was adopted on 6 May 2025, they did not advise the DCT in advance that they proposed to rely on Dr Nielssen's report today, so as to allow the DCT even a minimal opportunity to engage with that report. Instead, that report was deployed without notice to the DCT at the commencement of the hearing today, in circumstances where the DCT would, for example, have no opportunity to cross-examine Dr Nielssen, who the Court was informed would not be available for cross-examination. The report was rejected on that basis and under s 135 of the Evidence Act 1995 (NSW) (“Evidence Act”), and I have set out my concerns with the procedure which was there adopted by Mr Gazal and his representatives in an earlier judgment.

33. The matter did not end there because, half way through the hearing this morning, and again without notice to the DCT, Mr Woods identified the existence of two further reports of Dr O'Dea, apparently obtained by the Commonwealth Director of Public Prosecutions (“DPP”) in criminal proceedings against Mr Gazal, and sought to tender those reports in these proceedings. I put aside any question as to any application of the rule in *Harman v Secretary of State for Home Department [*1983] 1 AC 280 in respect of these documents, where that question was not addressed before me.

34. What was more significant today was that, as had occurred on 6 May 2025, and as had occurred in respect of the reports of Dr Nielssen at the commencement of the hearing today, the reports of Dr O’Dea were also sought to be tendered without notice to the DCT that they would be tendered, and without allowing the DCT an opportunity to respond to them or even an adequate opportunity to absorb them. What is notable about this course is that, although an assertion of Mr Gazal's lack of capacity is made, from the bar table and in the conduct of proceedings on 6 May and again today, it is coupled with a recurrent and continuing approach of causing that assertion to be untestable, by depriving the DCT of the opportunity to respond to it. I reach no conclusion that this course is intentional where, as I noted in my earlier judgment, it is sufficient to observe that it is objectively recurrent. I also rejected the tender of this evidence under s 135 of the Evidence Act.

35. The question, then, where the evidence of Dr Nielssen and Dr O'Dea have now been excluded by reason of s 135 of the Evidence Act and the unfair prejudice to the DCT arising from reliance on those reports in the circumstances in which they were deployed, whether the submissions that have been made, on Mr Gazal's behalf, combined with the evidence that remains, are sufficient to displace the presumption of Mr Gazal’s capacity and raise a question as to his capacity, in the manner noted above. I recognise, as Mr Barnett fairly conceded for the DCT, that in some circumstances the fact that legal advisors raise a concern as to the capacity of a person may be sufficient to raise a question as to that manner. I do not accept that is the case here. I give significantly less weight to the matters raised by Mr Gazal’s legal representatives, where they are raised in a manner that deprives the DCT, repeatedly, of a fair opportunity to respond to them. An inference is plainly available, in those circumstances, although it is not necessary to draw it to determine this aspect of the matter, that the concerns are strategic in character, where they are raised in a way that is calculated, in the sense I have noted above, to deprive the DCT of an adequate opportunity to respond to them.

36. Mr Gazal also reads the affidavit dated 23 October 2025 of his wife, Ms Samadi, now his tutor, which was read by leave although it was also served on the day before the hearing. Ms Samadi's evidence deals only in small part with matters which may give raise any question of lack of capacity on Mr Gazal's part. She refers to his physical deterioration, and his use of a wheelchair, and to a loss of muscle in his legs, and all of those matters are no doubt relevant to Mr Gazal's physical wellbeing, but do not impeach his capacity to deal with a matter of this kind. She refers to a lack of clarity in his speech and that he "sometimes" has trouble expressing himself, in a manner which plainly indicates that is an occasional issue. She notes the need for her to continue to provide emotional support to Mr Gazal, during episodes of confusion or distress, but that does not go so far as to suggest that Mr Gazal lacks capacity, in the relevant sense, particularly when provided with such support. She observes a "more deterioration" in his condition, since a previous affidavit (which was not read), and refers to "frequent" episodes of disorientation and to his "often" not responding to verbal cues, but that again does not indicate a lack of capacity to engage with the legal issues raised by the application. I also bear in mind, of course, that Ms Samadi, with no criticism of her, would also see these issues through the perspective of a spouse, with an understandable concern with her husband's wellbeing, and does not address, and likely is not qualified to address, the more specific question whether Mr Gazal has sufficient capacity to address the legal issues arising in these proceedings.

37. On the other hand, the DCT draws attention to communications between Mr Gazal and the Court, through April and May 2025, indicating an apparently alert involvement of Mr Gazal in respect of his application for legal aid, which was not successful, and his appeal from the refusal of that application. Those communications culminated in an email dated 1 May 2025 to the DCT, sent several days before it was put at the hearing on 6 May 2025 that Mr Gazal lacked capacity. I should quote that email in full, since it is not the kind of email which one would expect to be written by a person who lacked capacity, in the sense of a lack of understanding of or a lack of the ability to engage with the proceedings.

"I confirm that I first submitted my Legal Aid application on 8 November 2024, copy of confirm attached.

I received a further email on 11 November 2024, copy attached.

The application was refused on 2 April 2025, and I was notified on the same date.

I lodged the appeal on 3 April 2025, copy attached.

I received confirmation from Legal Aid after I chased them up about my appeal on 16 April 2025. Copy of reply from Legal Aid when I chased them up stating it would take six - eight weeks is attached.

Would you confirm your consent to vacate the hearing date."

38. Several observations should be made about this email which, obviously and importantly, was sent by Mr Gazal personally. First, it indicates that Mr Gazal had the capacity to, and did, lodge a Legal Aid application; second, he was alert to the dates on which events occurred; third, in April 2025, he had the capacity to lodge an appeal for the dismissal of his Legal Aid application; fourth, he had the capacity to recognise that it would be desirable, in order to obtain an adjournment of the contempt proceedings, to seek to obtain the DCT's consent; and, finally, consistent with the events prior to and during the hearings before me, he had the capacity to appreciate that it would be in his interests to adjourn the contempt proceedings, and likely not only in respect of his unsuccessful Legal Aid application.

39. I also bear in mind that the last email, which I quoted above, is dated 1 May 2025, and that was five days before submissions were put before me, on 6 May 2025, that notwithstanding Mr Gazal's coherent email of 1 May 2025, he lacked capacity in respect of the issues to be determined before me. I also bear in mind, as I observed in my judgment of 6 May 2025, that it is apparent that Mr Gazal, at least before a tutor was appointed, had been engaging with legal advisers, at least in respect of criminal proceedings and that manner is also inconsistent with a lack of capacity.

40. In summary, here, there is, I recognise, a repeated assertion by Mr Gazal’s legal representatives of his lack of capacity. On each occasion on which Mr Gazal seeks to lead evidence to establish that lack of capacity, he does so in a way which is calculated to deprive the DCT of a fair opportunity to respond to it, and that evidence has now been twice rejected on that basis. Mr Gazal is presumed to have capacity; it seems to me that his contemporaneous communications are inconsistent with a lack of capacity, and those contemporaneous communications took place shortly before matters were listed before me on 6 May and 27 May 2025. There is also, as I have noted above, the fact that Mr Gazal has apparently had sufficient capacity to instruct legal representatives, and those legal representatives have been comfortable with accepting his instructions, in a period prior to the appointment of a tutor.

41. In these circumstances, where the issue has been reagitated today, I am now comfortable that I should determine the issue, on the basis of the evidence before me, rather than making the assumption, expressly favourable to Mr Gazal, that I made on the last occasion. I am satisfied that, on the evidence before me, no serious question as to Mr Gazal's lack of capacity arises in the proceedings before me, and there is no basis, by reason of lack of capacity, that the hearing of the proceedings should not be completed.

42. I have, of course, not formed any view as to the question of penalty, which remains to be addressed at this hearing. To the extent that I have reached a view as to liability, as addressed in the Liability Judgment, that is no more than the necessary consequence of a proceeding of a kind where liability and penalty are determined separately.

Whether the Court should defer the hearing pending the resolution of the purported appeal

43. The question remains whether I should now proceed to a hearing of the penalty stage of this application. I first note that, notwithstanding this matter was specially fixed for the penalty hearing, some time ago, it is now 3.20pm on the day that was fixed for the hearing, and the substantive hearing has not yet commenced. That reflects the repetition, today, of the approach which had previously been adopted by Mr Gazal on 6 May 2025, when a significant part of the available hearing time was lost to the same approach.

44. I am satisfied that, in the relevant circumstances, I should not now proceed to a penalty hearing, but should stay the proceedings for a short time, while issues in the Court of Appeal are determined. I reach that view because, here, it seems to me that the steps taken by Mr Gazal to date have already fragmented the proceedings, in a way which the case law deprecates, and that fragmentation cannot be addressed or resolved other than by the Court of Appeal determining the leave application, to the extent that one may ultimately be brought by Mr Gazal, or dismissing the appeal as incompetent, or allowing it, with consequences that I will note below.

45. I bear in mind that, as Mr Barnett emphasises for the DCT, it is the ordinary and appropriate course to hear a conviction appeal, in criminal proceedings, once sentence has been handed down. I also bear in mind that it is not desirable, nor consistent with the just, quick and cheap resolution of the real issues in dispute in the proceedings, that proceedings should regularly be fragmented by the bringing of appeals at the liability stage, and prior to the determination of a penalty. I recognise that, in Sayer Jones v R [2024] NSWCCA 54 at [141], to which Mr Barnett referred, the Court of Appeal pointed to the disadvantageous consequences of bringing an appeal prior to sentence, but nonetheless did not disclaim any jurisdiction to deal with such an appeal or, more precisely, with any application for leave to appeal that may be necessary in that circumstance, and any consequent appeal.

46. Here, it seems to me that there are several possibilities, and those possibilities will likely emerge sooner rather than later when the Court of Appeal deals with the purported appeal brought by Mr Gazal, and any leave application in respect of that purported appeal. The first possibility is that leave to appeal will not be sought, and the appeal may be dismissed as incompetent, where the DCT contends, unsurprisingly, that an appeal against an interlocutory judgment brought without leave is incompetent. In those circumstances, there will be no uncertainty that would prevent the Court proceeding to a penalty determination in these proceedings, particularly where I have now reached an affirmative finding as to the position as to Mr Gazal's capacity.

47. Secondly, Mr Gazal may seek leave to appeal, the Court of Appeal may grant it, and the appeal may be dismissed, either on factual grounds, or because the Court of Appeal is not satisfied that principles applicable to criminal contempt are applicable in proceedings for civil contempt. In doing so, the Court of Appeal will likely be dealing with matters that were not raised before me when the matter was heard on 6 and 27 May 2025, but that is a matter for it.

48. Third, leave to appeal may be granted, and the appeal may be allowed. In those circumstances, a possible consequence is that the proceeding cannot go further, because, implicit in allowing the appeal may be a finding that Mr Gazal, contrary to the view which I have now reached, lacks capacity, or that there is a sufficient question in that respect to require the Court not to proceed further. Alternatively, if the Court of Appeal upholds the appeal, but does not reach an affirmative finding that Mr Gazal lacks capacity, it may well refer the matter to another judge. It may be that, in the present circumstances, given the findings that I have reached, and the hearing that has already occurred before me as to liability, that would be the preferable course, if any rehearing as to liability was required.

49. In these circumstances, it seems to me that the just, quick and cheap resolution of the real issues in dispute in these proceedings will not be promoted by my proceeding with the balance of a penalty hearing, particularly where it will not complete today, given the lateness of the time at which it would commence. It may be that the Court of Appeal will be able to deal with these matters, when they are listed before it on 5 November 2025 and, if so, I will allocate time to complete the penalty hearing in this Court term. It may be that the Court of Appeal will be able to deal with it early in the new year and, if it is able to deal with it early in the new year, I have available hearing dates in March 2026 in order to complete the penalty hearing.

50. In any event, it seems to me that this matter will proceed, on a firmer and clearer basis, an in a manner which is more likely to promote the just, quick and cheap resolution of the real issues in dispute, if the purported appeal, or at least any application for leave to appeal, is determined before the penalty hearing takes place. In reaching that conclusion, I do not depart from the proposition, recognised by the Court of Appeal in Sayer Jones v R, that this is far from a preferable course. It is, however, a consequence of the events which occurred, in particular, the filing of Mr Gazal’s purported appeal after the Liability Judgment and prior to the penalty judgment and the repeated loss of time that has occurred in these proceedings to adjournment applications.

Proposed orders

51. For these reasons, I propose to make the following orders, subject to allowing the parties a brief opportunity to be heard:

52. Stay the penalty phase of this application to 4.00pm on 4 March 2026.

53. List the proceedings before Black J at 9.15am on 4 March 2026 with a view to allocating a hearing date, if the purported appeal or any application for leave to appeal has then been determined.

54. Liberty to apply, on two business days' notice, if the appeal or any application for leave to appeal is determined prior to that date

**********