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[2025] NSWCA 207
respondent. Application for leave to appeal refused with costs.
The Court of Appeal refused permission to appeal the dismissal of Ergashova's defamation case for delay. It accepted that the primary judge had made some mistakes in describing related proceedings, but decided those mistakes did not affect the key reasoning. The evidence available to the primary judge did not establish that Ergashova's health prevented her from giving instructions or adequately explain the repeated delays and failures to meet court requirements. The Court therefore found no sufficiently clear injustice or material error to justify leave, and ordered costs.
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2,126 words · generated 06/10/2026
Narghiza Ergashova brought defamation and injurious falsehood proceedings against Dina Jamil Hamid Aslan. She filed a statement of claim on 22 September 2023, and Aslan filed a defence on 9 November 2023 ([12]). Aslan then applied to have the proceedings dismissed. The primary judge, Rothman J, ultimately dismissed them for want of due despatch under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), and ordered Ergashova to pay costs ([1], [42]).
The application that reached the Court of Appeal was not a full appeal. Because the dismissal was interlocutory, Ergashova needed leave under s 101(2)(e) of the Supreme Court Act 1970 (NSW) ([2]). The Court, comprising Mitchelmore JA and Price AJA, refused leave on 9 September 2025, with costs ([60]).
The proposed appeal focused mainly on factual findings. Nine of ten proposed grounds challenged conclusions about Ergashova’s medical and mental health, her capacity to give instructions, and what she did in other proceedings during the same period ([4], [45]-[48]). She argued that some findings were not reasonably open on the evidence. The Court accepted that certain details about other proceedings were wrong, but held that the errors did not change the primary judge’s central conclusions ([6], [49]-[51]).
The procedural history mattered. The primary judge had considered repeated adjournments, missed steps, late or absent evidence, and failures to comply with orders. The Court of Appeal’s task was to assess whether the proposed appeal showed an error warranting leave, not to decide the underlying defamation allegations. Its reasons therefore concern case management, the evidentiary basis for explaining delay, and appellate restraint in reviewing discretionary procedural decisions.
The judgment records a date inconsistency that should be noticed rather than silently resolved: paragraph [27] says the defamation proceedings were listed for directions on 15 December 2024, while the surrounding chronology and later references concern events in December 2023. The Court’s decision does not turn on resolving that apparent inconsistency.
The Court began from the position that leave is required for an interlocutory appeal and that appellate courts exercise particular caution when asked to review decisions about practice and procedure ([2]). It also noted that refusing leave would leave the dismissal in place at a point when the one-year limitation period for defamation proceedings had practical significance. That consequence tempered, but did not displace, the usual reluctance to intervene ([3]).
The applicable focus was whether the proposed appeal disclosed an injustice that was reasonably clear and went beyond what was merely arguable ([3]). Ergashova accepted that, because the primary judge had exercised a discretion, she needed to establish an error of the kind identified in House v The King ([45]). The Court did not treat disagreement with the primary judge’s assessment as enough. It examined whether the challenged findings were materially affected by error.
The Court considered the medical evidence available to the primary judge. It recorded evidence of genuine medical events, including thyroid investigations and surgery, but distinguished that evidence from proof that Ergashova could not provide instructions or that the events explained the subsequent course of the litigation. The applicant’s own characterisation of the thyroid lump as malignant was not supported by the documents identified in the appeal reasons. A report relied on by the applicant described the lesion as benign, and scan reports recorded no significant change ([52]-[55]). The Court also observed that Ergashova had not put all the detailed submissions about the scans and surgery to the primary judge ([53]).
The key issue was not whether she had medical problems in general. It was whether the material before Rothman J supported the claimed degree of incapacity and explained the delay and non-compliance. The Court concluded it did not. It referred to the absence of supporting medical evidence for some asserted difficulties, the unpursued tutor application, and later failures to meet procedural steps ([29]-[34], [56]). It also noted that additional medical material not before the primary judge could not establish that the primary judge had erred on the material then available ([57]).
The comparison with other proceedings was relevant in a limited way. The Court accepted that the applicant was not the moving party in the Local Court apprehended domestic violence proceedings and was not present when that matter was heard. It also accepted that the primary judge’s description of those proceedings was inaccurate. But the Court considered the wider significance to be that other proceedings were progressing while the defamation proceedings were not. It pointed to filed documents and medical certificates in those matters as context for evaluating the claim that Ergashova was unable to give instructions in the defamation case ([49]-[51]). The errors did not undermine that comparison sufficiently to make them material.
Finally, the Court situated the primary decision within the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW): facilitating the just, quick and cheap resolution of the real issues ([7]). The reasons endorsed the relevance of “constructive activity”, not just whether a party was entirely inactive ([44]). The Court concluded that the pattern of delay and non-compliance, combined with insufficient evidence to explain it, supported the primary judge’s concern that the case remained on foot without being advanced in a significant way ([59]).
The judgment does not announce a new test for dismissal or alter the approach to applications under UCPR r 12.7. It applies the existing framework. The Court describes the r 12.7 discretion as broad and not confined by rigid formulae, citing Ghosh v NineMSN Pty Ltd ([43]). It also refers to the established relevance of the explanation for delay, its credibility and adequacy, and any prejudice to the other party, through a passage from Witten v Lombard Australia Ltd quoted in Ghosh ([43]).
The appeal decision’s contribution is an application of that framework to this record, alongside the leave threshold. It confirms that the consequences of dismissal, including the practical effect of a limitation period, can temper appellate reluctance to intervene, but do not themselves establish error or entitlement to leave ([3]). The applicant still had to show a sufficiently clear injustice and, given the discretionary nature of the underlying decision, an error of the kind described in House v The King ([3], [45]).
The judgment also illustrates the significance of the material actually before the primary judge. Later evidence or more detailed submissions on appeal do not, without more, establish that the earlier decision was erroneous on its record ([53], [57]-[58]). Likewise, factual errors in a primary judgment do not necessarily justify appellate intervention if they are not material to the reasoning that supports the result ([6], [49]-[51]).
The decision should therefore be read as applying, not expanding, the procedural principles it cites. It does not establish that particular medical evidence will always be insufficient, or that participation in one proceeding necessarily proves capacity in another. Its conclusion is expressly tied to the evidence and procedural history in this case.
At [2], the Court says it exercises “particular caution” in granting leave from a decision about practice and procedure. In plain English, case-management decisions are ordinarily made by the judge managing the proceeding, and an appeal court does not automatically reconsider them simply because a party disagrees.
At [3], the Court recognises that dismissal could practically prevent a fresh defamation claim because of the limitation period, subject to s 56A of the Limitation Act 1969 (NSW). It nevertheless says the proposed appeal raised no issue of principle or general public importance. The practical seriousness of the consequence mattered, but it did not remove the need to show a sufficiently clear error or injustice.
At [43], the Court describes the r 12.7 discretion as broad and not subject to rigid formulae. That means the court considers the circumstances as a whole rather than applying a mechanical checklist. The quoted passage from Witten, adopted through Ghosh, identifies the explanation for delay, its credibility and adequacy, and prejudice as relevant matters.
At [44], the Court explains that delay can include a “want of constructive activity”. Put simply, a proceeding may be delayed even if some steps are being taken, where those steps do not meaningfully advance resolution.
At [51], the Court explains why progress in other proceedings mattered: documents and medical certificates had been provided there, by contrast with non-compliance in the defamation case. The Court treated that as context relevant to the capacity explanation, not as a conclusive rule that activity elsewhere proves a person could have taken every step in this proceeding.
At [56], the Court states that the applicant had not demonstrated material factual error concerning the evidence of capacity. This captures the distinction between having medical issues and having evidence that those issues prevented instructions or explained the litigation delays.
At [59], the Court links the pattern of non-compliance and insufficient explanation to the primary judge’s concern that the proceeding was being kept alive without significant progress. It found no error of a kind that warranted leave.
The judgment is most relevant where a party seeks leave to challenge an interlocutory dismissal for want of due despatch, particularly when the dismissal followed missed deadlines, repeated adjournments, failure to provide material, or little progress after pleadings. The court will examine the whole procedural history and the quality of the explanation, not merely count periods of inactivity ([43]-[44], [56], [59]).
It may also be relevant where illness or incapacity is offered to explain delay. The case illustrates the importance of distinguishing evidence of a medical condition from evidence connecting that condition to an inability to give instructions or comply with particular steps at particular times. Here, the Court focused on the evidence that had been before the primary judge and whether it supported the explanation advanced ([28]-[34], [55]-[57]).
A further relevant pattern is where an appellant identifies mistakes in the primary judge’s description of related proceedings. Ergashova shows that such mistakes must be assessed for materiality. The Court accepted inaccuracies but considered whether they affected the reasoning that supported dismissal ([6], [49]-[51]).
The judgment should not be treated as deciding that activity in separate proceedings defeats an incapacity explanation, or that any particular number of missed steps justifies dismissal. The Court repeatedly tied its reasoning to the evidence and circumstances before the primary judge.
The judgment was decided on 9 September 2025. The supplied text contains no later judicial decisions discussing or applying Ergashova v Aslan. Accordingly, no account of its subsequent treatment can be grounded in this source.
The authorities discussed in the judgment are earlier authorities, not later treatment of this case. They include Ghosh, House v The King, Khoury, Be Financial, Re Will of Gilbert, Adam P Brown Male Fashions and PPK Willoughby. The Court uses those cases to explain the approach to leave, discretionary decisions, the r 12.7 discretion and delay ([2]-[3], [43]-[45]). Any claim about how later courts have treated Ergashova would require additional legal sources beyond the judgment provided.
The judgment does not decide the merits of the defamation or injurious falsehood allegations. The appeal concerned the procedural dismissal and whether leave to appeal should be granted ([1], [45]-[48]). It therefore provides no conclusion about the truth, meaning, publication, harm or other substantive elements of the underlying claims.
Nor does it set out a general evidentiary threshold for proving that illness prevents a party from giving instructions. Its conclusion is that the material before the primary judge in this case did not support the claimed degree of incapacity or adequately explain the pattern of delay ([56]). The judgment does not prescribe what evidence would be sufficient in a different procedural or medical context.
The Court also does not determine how s 56A of the Limitation Act would apply to any fresh proceeding. It refers to that provision only when describing the practical effect of the one-year limitation period ([3]). The decision therefore recognises a potential limitation consequence without resolving its application.
There is a textual chronology issue at [27]: the judgment states that a directions listing occurred on 15 December 2024, although the surrounding history refers to events in December 2023. The decision does not expressly address that inconsistency. Readers considering the precise procedural chronology should distinguish the date as printed from the apparent context.
Finally, the source does not provide later authorities or subsequent procedural history. The judgment’s future significance beyond its application of the established principles will depend on later decisions, which cannot be assessed from this text alone.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ergashova v Aslan [2025] NSWCA 207
Hearing dates: 12 August 2025
Date of orders: 09 September 2025
Decision date: 09 September 2025
Before: Mitchelmore JA; Price AJA
Decision: (1) The application for leave to appeal is refused with costs.
Catchwords: APPEAL — dismissal of proceedings for want of due despatch — application for leave to appeal from an interlocutory decision on matter of practice and procedure — limitation period for defamation proceedings now expired — no issue of principle or question of general public importance — no material error of fact
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), r 12.7
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334
House v The King (1936) 55 CLR 499; [1936] HCA 40
Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371
Re Will of Gilbert (1946) 46 SR (NSW) 318
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Category: Procedural rulings
Parties: Narghiza Ergashova (self-represented) (Applicant)
Dina Jamil Hamid Aslan (self-represented) (Respondent)
File Number(s): 2025/00137488
Publication restriction: Nil
THE COURT: The applicant, Narghiza Ergashova, has applied for leave to appeal from the decision of Rothman J, delivered on 14 March 2025, in which his Honour dismissed defamation proceedings (the defamation proceedings) for want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and awarded costs to the respondent, Dina Jamil Hamid Aslan.
As his Honour’s decision was interlocutory, the applicant requires leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(e). This Court exercises particular caution in granting leave to appeal from a decision on a matter of practice and procedure: Re Will of Gilbert (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]. Referring to the leave requirement in s 101(2)(e) in Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371, Basten JA stated at [9]:
“… A decision as to whether to grant or refuse leave in a particular case must have regard to the guiding principles set out in Pt 6 of the Civil Procedure Act, as discussed in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[39]. Some considerations are specific to the circumstances of the particular case; some operate generally in relation to the control of the court's workload and the impact of a particular practice or procedure on other litigants. Again echoing modern concerns, Jordan CJ in Will of Gilbert abjured an approach which would ‘in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a court of appeal.’”
The Court’s reluctance to intervene is tempered to some degree in circumstances where the primary judge’s order put an end to the defamation proceedings and the 1-year limitation period in s 14B of the Limitation Act 1969 (NSW) has the practical effect of precluding the applicant from commencing fresh proceedings (subject to s 56A of that Act): Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 (“Ghosh”) at [39]. Nonetheless, the applicant’s proposed appeal does not raise any issue of principle or question of general public importance. The focus of the application for leave to appeal was that the primary judge’s decision was affected by an injustice that was reasonably clear in the sense of going beyond what is merely arguable: see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [33].
Nine of the ten proposed grounds of appeal in the draft notice of appeal sought to challenge findings that his Honour made on two broad issues:
the applicant’s medical and mental health status at various times, which the primary judge did not accept was such that she was unable to give instructions or justified the delay in the progress of the defamation proceedings; and
steps that were taken by the applicant around the same time in other proceedings, which the primary judge considered were inconsistent with the applicant being unable to give instructions in the defamation proceedings (as was said in support of adjournments of those proceedings).
The applicant contended that factual findings that the primary judge made on these issues were not reasonably open to his Honour on the evidence. A number of the submissions that the applicant made in support of her proposed grounds sought to put a different complexion on aspects of the medical material and the other proceedings in which she was involved as compared to what was put to the primary judge, which she frankly acknowledged.
It is the case that certain aspects of the findings that the primary judge made in relation to other proceedings involving the applicant that were on foot at the same time as her defamation proceedings were not correct. However, the errors his Honour made were not material to his Honour’s critical conclusions that:
there was insufficient evidence to support the seriousness or extent of the medical issues on which the applicant relied as significantly impeding her capacity to give instructions at various times; and
by contrast, the applicant had been able to progress other proceedings at such times.
For the reasons set out below, the Court does not consider that the applicant has demonstrated that his Honour’s decision, which was guided by the overriding purpose in s 56 of the (NSW) (described in at [43] as being “of fundamental importance” in determining an application of the kind that was before the primary judge), was affected by an injustice going beyond what is merely arguable such as to warrant a grant of leave to appeal.
The applicant represented herself on the application for leave to appeal, as did the respondent. The Court was provided with a White Folder that the applicant prepared. On reviewing the contents of the White Folder, it became apparent that it did not include evidence that was central to the application for leave to appeal, to which the primary judge referred in his Honour’s reasons and to which both parties referred in their written submissions. At the outset of the hearing, the Court raised this with the applicant and the respondent and they were given an opportunity to supplement the material in the White Folder with any further affidavits or submissions that were before the primary judge that each considered relevant to the application for leave to appeal.
Both parties took up this opportunity and provided the following further material to the Court, which it has reviewed:
For the applicant: affidavits of the solicitor on the record in the proceedings below, Andrew Stewart, sworn 14 August 2024, 24 February 2025, 13 March 2025 and 14 March 2025; and two affidavits of the applicant, sworn 25 July 2024 and 5 September 2024.
For the respondent: the defence filed in the proceedings, together with affidavits that she affirmed on 8 December 2023, 22 March 2024, 24 May 2024, 17 September 2024, 26 February 2025 and 13 March 2025, and written submissions dated 26 July 2024 and 11 December 2024.
These materials were filed in the defamation proceedings and were before the primary judge. As is apparent from the dates of the documents to which we have just referred, although the hearing before the primary judge took place in August 2024, evidence continued to be filed after the hearing date when judgment was reserved. According to the primary judge’s reasons at [50], this occurred without leave.
The additional material most squarely relevant to the current application was the affidavit of the applicant sworn 5 September 2024 and exhibit “NE-1” to that affidavit, and the respondent’s affidavit in response, filed 17 September 2024. In giving judgment, the primary judge referred in some detail to both affidavits and the material that was respectively exhibited and annexed.
On 22 September 2023, the applicant commenced the defamation proceedings against the respondent by way of a statement of claim, seeking relief for defamation and injurious falsehood. On 9 November 2023, the respondent filed a defence.
After filing a defence, the respondent filed a notice of motion on 12 December 2023, seeking dismissal of the defamation proceedings on a number of bases as the primary judge understood it, including failing to state a valid claim or cause of action, insufficient evidence, abuse of process, vexatious litigation, malicious intent, and failing to particularise the claim: at [2]. His Honour noted that the motion was subsequently extended to rely on the applicant’s failure to prosecute the claim “in a timely manner or appropriately”: at [2]. The particular focus of his Honour’s consideration was the following: at [5]
“During the period since the filing of the Statement of Claim, apart from a short delay associated with the appointment of different lawyers, the plaintiff has claimed illness which has prevented her from complying with orders of the court, attending Court and providing instructions.”
In setting out the background, the primary judge referred at [4] to an affidavit of the plaintiff (the applicant in these proceedings) and an affidavit of the defendant (the respondent in these proceedings). Although his Honour did not refer to the dates of those affidavits, having regard to what he went on to describe it is tolerably clear that his Honour was referring to the applicant’s affidavit of 5 September 2024 (filed 6 September 2024) and the respondent’s affidavit of 17 September 2024.
His Honour outlined a chronology of the defamation proceedings and the applicant’s medical history. The primary judge observed that in June 2023, before the proceedings were commenced, the applicant had undergone a thyroid biopsy, with the applicant perceiving a lump in that region to be enlarged. His Honour stated that the lump was later removed although it had not enlarged further: at [6].
In the same paragraph, his Honour described the biopsy as finding “that which was to be examined to be benign”: at [6]. The source of this description was a report of Dr Clayton Smith, dated 7 August 2023, which was included in Exhibit NE-1 to the applicant’s 5 September 2024 affidavit. Dr Smith referred in his report to a note of the applicant’s general practitioner, Dr Jonathon Moore, dated 28 June 2023, which Dr Smith summarised as recording that the applicant had been found to have a thyroid lesion and was awaiting a thyroid biopsy, “suggesting a cancer scare”, before stating: “This was later found to be benign.”
The primary judge noted that shortly after the first directions hearing in the defamation proceedings on 23 September 2023, at which her application for interim relief was denied, the applicant underwent a further thyroid scan on 1 October 2023. His Honour considered the report of that scan, dated 5 October 2023 (also included in Exhibit NE-1) as indicating that there were no significant changes and seemingly no urgency. Specifically in relation to the left thyroid nodule, that report noted that the patient “feels [it] has increased in size” but on comparison with the previous study it did “not appear significantly change (sic) in size”.
The proceedings were listed on 5 October 2023 for the hearing of the applicant’s motion for interlocutory injunctions. According to the reasons of the primary judge, the relief sought was denied: at [9].
The primary judge next referred to what the applicant described, in her 5 September 2024 affidavit at [8], as an “urgent referral to a specialist” that was made on 23 October 2023 “as my nodule grew in size” and was on her vocal cords “rendering my (sic) unable to speak”. The referral of Dr Moore of that date, included in Exhibit NE-1, described the applicant as “starting to have some obstructive symptoms, (dysphagia) and some changes in her voice, mostly the pitch”.
Between October 2023 and the next medical event in the chronology, the primary judge referred to an apprehended domestic violence order having been “issued by the plaintiff against the defendant” in proceedings in the Local Court (the Local Court proceedings): at [9]. The reference to an order having been “issued” was incorrect. This error appears to have been inadvertent because in the next paragraph his Honour observed that a hearing for the order occurred in the Local Court on 17 October 2023. No order was made on that occasion and the application was scheduled for a full hearing in November 2023: at [10]. In addition to this error, the person who applied for the order was not the applicant but her husband, Enrico Pucci. However, the applicant was included in the application as a protected person. On 2 November 2023, she signed a statement in the Local Court proceedings: at [12].
“[45] … The plaintiff has failed to appear on a number of occasions; failed to abide by orders of the Court; failed to abide by timetables which were set by agreement; and the matter has not proceeded beyond the filing of the defence in November 2023. The plaintiff, through her legal representative, seems to have misled the Court as to her state: claiming malignancy; claiming an incapacity which did not eventuate or was not extant or for which there is no evidence.
[46] While each case depends upon its own facts, the Court is required to abide by the overriding purpose as previously described. I have considered the explanations offered for the delay and the failure to abide by the steps ordered by the Court.
[47] Each of those steps was ordered having taken into account the agreement as to the timetable ordered. The explanations that have been given do not withstand scrutiny.
[48] That the plaintiff has had medical issues is evidenced. However, that which is not evidenced is that the medical issues have prevented the plaintiff from providing instructions, notwithstanding the submission that was put to the Court in relation thereto. Further, the medical issues do not, on examination, provide a sufficient basis for a delay in the proceedings from November 2023.”
His Honour stated that in the context of defamation proceedings, which are intended to be dealt with expeditiously, no proper excuse had been given for the delay in providing documents, filing applications, and dealing with the matters before the Court: at [49]. Instead, his Honour had the distinct impression that the applicant was “more concerned with ensuring that the proceedings remain on foot, without being resolved, than with the resolution of the matters or the determination of the respective rights of the parties to the litigation”: at [50]. His Honour referred in this regard at [51] to other proceedings in which the applicant was involved, as to which his Honour had at [33] observed that at times when the Court was informed that she was too unwell to attend to matters in the defamation proceedings, she was involved in hearings or preparing and filing material in those other proceedings.
His Honour ordered that the defamation proceedings be dismissed and the applicant pay the respondent’s costs of the proceedings.
“Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.”
Macfarlan JA further observed that “relevant delay in this context is not confined to that which is caused by a lack of activity, it extends to a delay arising out of a ‘want of constructive activity’”: at [41].
The applicant accepted that for the purposes of the application for leave to appeal, as his Honour’s decision was discretionary she would need to demonstrate an error of a kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40. The applicant focused on the primary judge having made material errors of fact, with nine of the ten proposed grounds of appeal seeking to challenge findings of fact that his Honour made. Proposed ground 10 related to the orders that the applicant contended his Honour should have made, which would only arise for consideration in the event that one or more of the other grounds were made out.
A number of the proposed grounds of appeal took issue with findings the primary judge made in relation to the applicant’s physical and mental health at various points in time on the basis that these findings were not reasonably open on the medical evidence. The applicant alleged that his Honour erred:
in finding that the applicant’s thyroid nodule was benign (ground 2);
in not finding that she was medically or mentally unfit to provide instructions (grounds 4 and 9), and instead finding that the Court had been misled as to her capacity to provide instructions (ground 6) and as to the state of her health (ground 8); and
in relying on a report attached to Mr Pucci’s affidavit to find that she had no previous psychiatric history and was not unable to provide instructions, where the report was not compliant expert evidence in the defamation proceedings (ground 5).
Two of the proposed grounds of appeal were directed to his Honours factual findings in relation to the other proceedings his Honour considered the applicant was involved in at or around the same time as the defamation proceedings:
proposed ground 1 alleged that his Honour erred in finding that the applicant had obtained an apprehended domestic violence order against the respondent, when the evidence did not indicate she was a party to the Local Court proceedings; and
proposed ground 3 alleged that his Honour erred in “finding” that she attended a mediation in the employment proceedings on 15 December 2023.
Finally, by proposed ground 7, the applicant alleged that the primary judge erred in characterising the dispute as petty, in circumstances where the Court had not made findings in relation to the substantive claim.
In relation to the applicant’s complaints about the use that his Honour made of the other proceedings in which she was involved, it is the case, as she pointed out in the context of proposed ground 1, that the applicant was not the moving party for the apprehended domestic violence order in the Local Court proceedings and was not present in that Court when the matter was heard. So much may be accepted. However, the material significance of the Local Court proceedings, and the other proceedings in which the applicant was involved including the employment proceedings (the subject of proposed ground 3), was that they were ongoing at the same time as the defamation proceedings. In the case of the Local Court proceedings, for example, in early November 2023 the applicant prepared a statement in support of her status as a protected person.
The application for leave to appeal is refused. The respondent is entitled to such costs as are properly claimable having represented herself. Accordingly, the Court makes the following order:
The application for leave to appeal is refused with costs.
**********
Ergashova
Aslan [2025] NSWCA 207
(2015) 90 NSWLR 595
(1936) 55 CLR 499
(1981) 148 CLR 170
Application for leave to appeal refused with costs.
On 3 November 2023, the applicant published a three-paragraph LinkedIn post about the respondent: at [12]. An image of the LinkedIn post was annexed to an affidavit of the respondent affirmed 21 March 2024.
Between 4 and 7 November 2023, the applicant was admitted to Cumberland Hospital: at [12]. The discharge summary for this admission, which was included in Exhibit NE-1, indicated that the applicant was admitted to the mental health unit in relation to an attempted suicide. She was described in the discharge summary as a “well-educated/intelligent woman”, with the document recording in some detail the circumstances leading to the actions for which she was hospitalised. The summary noted that the applicant was discharged on 7 November 2023 into the care of her husband.
The primary judge observed that around mid to late November 2023, the applicant commenced proceedings in relation to her dismissal from her employment (the employment proceedings), with the respondent pointing in her evidence to the public record of the proceedings disclosing a number of documents being filed around this time. In her affidavit of 5 September 2024, the applicant acknowledged that she was involved in other proceedings against her former employer, claiming loss and damage as a result of her dismissal (at [21]). However, she took issue with the respondent’s reliance on these proceedings as demonstrating that she had capacity to give instructions, stating that she did not attend the mediation in the matter and ultimately accepted an offer in April 2024 (at [22]-[23]).
On 30 November 2023, the applicant underwent a further thyroid scan: at [13]. The report for this scan (included in Exhibit NE-1) stated that there did not appear to be any significant change from the previous study (in October 2023).
The applicant recounted the next events concerning her thyroid condition in her affidavit of 5 September 2024, stating that:
on 4 December 2023, she received a letter from her specialist, Associate Professor Niles, confirming an “urgent appointment for surgery on 12 December 2023” (at [9]). A letter dated 4 December 2023 (included in Exhibit NE-1) referred to an appointment with the specialist on 12 December and made no reference to surgery; and
on 15 December 2023, she was “urgently admitted to Sydney Southwest Private Hospital as the lump in my thyroid was deemed malignant” (at [10]). The document the applicant exhibited to her affidavit in this context was a document titled “Admission Checklist” for 15 December 2023.
Neither the admission checklist nor the two medical certificates that the applicant exhibited to her affidavit, respectively dated 19 December 2023 (signed by Dr Moore) and 22 December 2023 (signed by Associate Professor Niles), expressly or otherwise supported the characterisation of the lump in the applicant’s thyroid as malignant. The medical certificate of 19 December 2023, which referred to a mediation that was to have been held in the employment proceedings on 8 December 2023, stated that the thyroid nodule compromised the applicant’s “swallowing, speech, voice and capacity to speak especially for prolonged periods” and that she was unfit to attend a mediation session “that was anticipated to be of a significant duration”. The medical certificate from Associate Professor Niles related to a listing in the Civil and Administrative Tribunal on 8 January 2024, and stated that the applicant would “find it difficult to undergo extensive dialogue as planned on that date”.
The defamation proceedings were listed for directions on 15 December 2024 but were adjourned on the basis that the applicant was ill: at [16]. As the primary judge noted, no prior notice was given to the Court or the respondent that it would be necessary to adjourn on that date, which had been set by consent: at [17]. His Honour noted that the Court on that occasion made it clear that future adjournments on the basis of ill health would need to be supported by a medical certificate: at [17].
When the matter was next listed, on 23 February 2024, it was again adjourned on the basis of the applicant’s ill health: at [20]. The primary judge recorded that written submissions filed on behalf of the applicant on the respondent’s dismissal motion described her at that time as “suffering from psychological issues including severe depression, anxiety and stress”. Notwithstanding what the Court indicated on 15 December 2023 about the need for medical evidence, his Honour noted that there was no medical evidence to support the submission that the applicant was “incapable of attending Court or providing instructions”: at [37].
The only evidence that suggested such a difficulty was, as his Honour noted at [37], an affidavit of Mr Pucci affirmed on 21 March 2024 (nearly a month after the directions hearing on 23 February 2024). The applicant exhibited Mr Pucci’s affidavit to her 5 September 2024 affidavit. Mr Pucci gave evidence in that affidavit that he called police to conduct a welfare check on the applicant on a number of occasions when she was not answering her phone, including on 15 February 2024 and 20 February 2024; and that when he arrived home she appeared to him to be “extremely disorientated and scared”. There was no suggestion that Mr Pucci was medically qualified.
In terms of other evidence about medical events occurring around this time, included in Exhibit NE-1 was a referral to a gastroenterologist, Dr Raghu Gill, dated 14 January 2024. The date of the appointment with the specialist was not in evidence. An email dated 8 February 2024 from Western Sydney Gastro confirmed that a procedure at Norwest Private Hospital with Dr Gill was booked for 11 March 2024.
In the context of her interlocutory application, the respondent issued a subpoena to Cumberland Hospital for the applicant’s medical records. At a return of the subpoena on 19 March 2024, the applicant notified the Court that she would seek to set aside the subpoena and orders were made for any motion to be filed within a week of that date. As the primary judge noted, no motion was ever filed: at [23].
Instead, on 22 March 2024, the Court was informed by the applicant’s solicitor that the applicant was incapable of providing instructions and the solicitor was contemplating the appointment of a tutor: at [24]. According to his Honour’s reasons at [38], it was also said that the applicant was suffering from “stress induced stomach ulcers which required ‘surgery for stomach tissue lacerations on 11 March 2024’ from which, it is said, the plaintiff spent ‘a few weeks recovering and was unable to provide instructions’”. As his Honour noted at [39], there was no medical evidence in support of this latter issue apart from the document recording the appointment for a procedure on 11 March 2024.
As to the applicant’s capacity to give instructions, his Honour stated that an application for a tutor which had not been filed and was irregular in form was presented on 22 March 2024: at [24]. The application was supported by Mr Pucci’s affidavit, to which reference has been made above, in which he gave lay opinion evidence about the applicant’s stress and said that she had asked him to provide instructions on her behalf (at [6]).
Ultimately, the application for appointment of a tutor was not pursued. His Honour stated that the Court was not provided with any material supporting the submission that the applicant was so unwell or sufficiently ill to warrant consideration of such an appointment: at [33].
According to the applicant, the employment proceedings were resolved in April 2024. At the next listing in the defamation proceedings on 24 May 2024, the applicant’s solicitor declared that the applicant was fit to attend to the matter: at [25]. However, the applicant failed to file written submissions on the respondent’s motion for dismissal on 5 July 2024 as required by the Court’s orders: at [25].
On 26 July 2024, the applicant’s solicitor informed the Court that the applicant wished to file proceedings against the respondent for contempt. His Honour noted that the Court informed the solicitor on that occasion that such proceedings would not interfere with the progress of the defamation proceedings. The applicant was ordered to file any application for contempt or any other interlocutory application by 31 July 2024, and any affidavit on which the applicant sought to rely for any interlocutory application by 2 August 2024: at [26]-[27]. No interlocutory application or affidavit was filed by 31 July 2024 and no affidavit was filed by 2 August 2024: at [28].
Also on 26 July 2024, the respondent served a notice to produce on the applicant which was to be answered by 29 July 2024: at [28]. The notice to produce, a copy of which was included in Exhibit NE-1, sought medical records supporting the adjournment of the proceedings on 23 February 2024, as well as “any and all documents supporting all other adjournments requested in this matter”.
By 12 August 2024, with the dismissal motion listed for hearing on 14 August 2024, the applicant still had not answered that notice to produce: at [29]. Instead, on 12 August 2024 the applicant applied to adjourn that hearing. The application was stood over to the hearing and was refused.
According to the primary judge, on the last day of the hearing, 16 August 2024, the applicant provided what his Honour described as “confidential and restricted access” to medical documents which were made available to the respondent in Court for a short period: at [31]. On 6 September 2024, after the hearing of the dismissal motion had concluded and judgment was reserved, the applicant filed the 5 September 2024 affidavit to which reference has been made, with copies of those same documents exhibited: at [32]. The respondent filed her responsive affidavit on 17 September 2024. Written submissions were filed by both parties in relation to this evidence in December 2024.
In relation to the employment proceedings, the applicant submitted in this Court that she was not substantially involved in giving instructions because her representatives in those proceedings were liaising directly with her medical specialists. She also stated that her husband was acting as her tutor in the employment proceedings. However, she accepted that she had not put such submissions to the primary judge in relation to the conduct of those proceedings.
As was put to the applicant in the hearing in this Court, the fact of progress in those proceedings, in which documents were filed and medical certificates were provided, highlighted by contrast the non-compliance in the defamation proceedings. This difference told against ready acceptance on his Honour’s part of the submissions put on the applicant’s behalf that she was so unwell as to be incapable of giving her solicitor instructions for the purposes of his appearing at directions hearings that were adjourned due to her ill health. The evidence on which the applicant relied did not otherwise support a finding to that effect.
It was the case that on 15 December 2023, the applicant underwent surgery to remove a nodule from her thyroid. The applicant took issue with the primary judge’s description of the nodule that was removed on this occasion as benign, submitting that there was no reference to this in the evidence. She submitted that contrary to his Honour’s inference that there was no change between the scans and thus no urgency with the surgery, the scans indicated slightly different dimensions of the nodule and that its pathology was undefinable and represented a risk of malignancy. She also submitted that his Honour’s reliance on no change as a positive indication was incorrect, as in her submission this reflected that the nodule was in fact not responding to treatment. The applicant submitted that the procedure on 15 December 2023 went for six hours and was significant surgery (however otherwise classified) because it involved operating near her vocal chords.
On the material before this Court it does not appear that the applicant advanced to the primary judge submissions of the detail she put to this Court about the scans and what could be drawn from them, or evidence going specifically to the length of the surgery or what it entailed. The respondent, on the other hand, had called attention to the material in the reports regarding there being no significant change from the previous scans. The respondent also called attention to the reference to the lump being benign in the report of Dr Smith (see [15] above), which was annexed to Mr Pucci’s affidavit and formed part of Exhibit NE-1.
It was thus not the case that there was no evidence before his Honour to support his finding regarding the lump being benign and the absence of significant changes in the nodule on the face of the scan reports. In so far as proposed ground 5 took issue with Dr Smith’s report not being compliant expert evidence that was prepared for the purposes of the defamation proceedings, this was a report on which the applicant relied, as part of the material annexed to Mr Pucci’s 21 March 2024 affidavit. Having put the report into evidence, the applicant cannot complain that it was relied on in the manner that it was.
In any event, what was of material significance to his Honour in relation to this episode was that in circumstances where the December 2023 date was agreed between the parties, there was no evidence or submissions to explain why the surgery was scheduled at such short notice. The evidence in relation to that issue was in the applicant’s own affidavit, where the lump was described by her as malignant, a characterisation that was not supported by the documents annexed to that affidavit or otherwise in evidence in the defamation proceedings. There was also no explanation as to why, with the surgery being organised on 12 December 2023 (accepting the applicant’s submission in this regard for present purposes), the applicant could not have notified the Court and the respondent in advance or given instructions to her solicitor in advance (with the medical certificates around this time referring only to the applicant being unable to speak for extended periods).
Further, as the respondent submitted, even allowing for this medical episode in December 2023, in terms of the progress of the defamation proceedings what followed thereafter was a series of non-compliances, including further adjournments of directions hearings (and an application to adjourn the respondent’s dismissal application), failures to file material in accordance with court deadlines and a failure to respond to a notice to produce (ultimately making responsive material available for the first time at the hearing in August 2024 and only providing copies of that material in an affidavit filed several weeks after the hearing concluded). Although a number of the proposed grounds of appeal took issue with his Honour’s assessment that the evidence before him did not demonstrate that she lacked capacity to give instructions at any relevant time (in particular when the matter was listed for directions in February 2024 and in March 2024, when a tutor application was floated), the material before his Honour did not support the applicant being impeded either physically or mentally to any such degree. The applicant has not demonstrated any material error of fact in this regard.
In this regard the applicant had foreshadowed in her written submissions on the leave application that she would provide a significant volume of medical material that was additional to what was before the primary judge. However, as was explained to the applicant during the hearing, such additional material would not assist in establishing House v The King error in the decision of the primary judge, when his Honour did not have that material. Ultimately, the applicant did not press for its reception.
The applicant also took issue with the primary judge’s reliance on an article about her that was published in the Ritz Herald on 4 February 2024, which she submitted was a pre-written article published by a third party she engaged for search engine optimisation of her website, and in which she was not involved at the time of its publication. Again, however, as the applicant accepted, she did not place any evidence of this before the primary judge.
The applicant challenged the primary judge’s conclusions that she had misled the Court as to the status of her mental and physical health and that the proceedings were petty in nature. The issue for his Honour was that the manner in which the applicant prosecuted the proceedings that she commenced was not commensurate with them having the level of significance that they should have had. Having regard to the need for defamation proceedings to be heard expeditiously, as Macfarlan JA stated in Ghosh, there was a want of constructive activity, with the various delays and non-compliances and the insufficiency of evidence relied upon to explain them giving rise to a justifiable sense of disquiet on the part of the primary judge that the applicant was seeking to keep the proceedings on foot without advancing them in any significant respect. Although his Honour’s conclusion that the applicant misled the Court as to the status of her mental and physical health was stern, the applicant has not established that the underlying findings that his Honour made were affected by error of a nature that would warrant a grant of leave to appeal.