//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWCA 104
procedural. The applicant's notice of motion filed 14 May 2026 was dismissed with costs. The Court did not determine the appeal from the penalty judgment or decide whether it had power to grant bail without a...
The Court of Appeal refused to suspend Gazal's indefinite committal while his appeal was pending. It assumed his appeal grounds were arguable and accepted that custody caused some prejudice, but was not satisfied that continuing custody would make the appeal pointless. It also considered the public interest in the contempt order, the procedural history, the lack of a clear timetable for further evidence and the possible consequences of release followed by renewed custody. The Court did not decide whether it could grant bail without a stay. The appeal from the penalty judgment remained unresolved.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,250 words · generated 07/10/2026
In Gazal by his tutor Samadi v Deputy Commissioner of Taxation (No 2) [2026] NSWCA 104, Mitchelmore JA considered an interlocutory motion for a stay pending appeal. The underlying order, made by Black J on 8 April 2026, committed Nahi Nasri Gazal to a correctional facility for an indefinite period until he purged his contempt. Its execution was suspended for 21 days. Gazal was taken into custody on 30 April 2026 ([1], [17]).
5 cited instruments linked from this judgment.
The contempt findings arose from freezing orders made against three companies controlled by Gazal and against Gazal himself. The primary judge found that Gazal knew of the orders, had a duty to take reasonable steps to ensure compliance, and deliberately failed to do so. The contempt orders concerned substantial withdrawals from company accounts, characterised as purported business expenses that were not permitted, bona fide or properly incurred ([4]-[7]). The contempt finding itself was not challenged in the stay proceeding ([30]).
At the penalty stage, Black J treated the contempt as very serious and considered that an indefinite committal served a remedial and coercive, rather than punitive, purpose. The primary judge considered there was no reason to conclude Gazal could not repay funds he had personally received, noting that he had not explained what had happened to the funds despite assertions of impecuniosity ([15]-[17]). The order allowed for an application to discharge it if circumstances changed, including if Gazal could not purge the contempt ([16]-[17]).
Gazal appealed the penalty judgment on grounds concerning the treatment of his health, personal circumstances, alleged aberrant behaviour, representation and ability to participate in the penalty process ([24]). He said the primary judge had not sufficiently considered whether medical issues explained his behaviour or warranted mitigation. His supporting evidence included records of hospital admissions: he had been admitted to St Vincent’s Hospital in a hypoglycaemic coma on 31 March 2026, and later had another medical episode requiring hospital treatment from 2 May 2026 ([13], [19]).
Mitchelmore JA dismissed the stay motion with costs. The decision did not determine the penalty appeal. It also did not decide whether bail could be granted without a stay in a civil contempt matter ([40]-[41]).
The parties accepted the established framework for a stay pending appeal. The applicant had to show serious issues for determination and a real risk of prejudice or damage if relief were refused. If those matters were shown, the Court would then consider the balance of convenience and competing rights ([22]-[23]).
On arguability, Mitchelmore JA was not persuaded that the applicant had a strongly arguable appeal. A central difficulty was that the primary judge had no evidence at the penalty hearing about Gazal’s physical or psychological impairments. The Court also noted that the applicant had previously been given time to file evidence and submissions about penalty, including evidence about his health, before the hearing proceeded ([26]-[28]). Despite that difficulty, Mitchelmore JA assumed for the purpose of the motion that the grounds were arguable ([28]). That was not a finding on the eventual merits of the appeal.
On prejudice, the Court accepted that continued incarceration caused some prejudice and that there was evidence of ongoing medical issues. But it found the evidence insufficient to assess the level of risk associated with detention. The records showed hospital admissions, and Gazal’s discharge from Westmead Hospital supported a reasonable inference that his doctors considered his condition sufficiently stable to be managed at Long Bay Hospital ([31]).
The Court also rejected the submission that the appeal would be futile if Gazal remained in custody while it was heard. The committal was indefinite and directed to purging the contempt. The respondent submitted that purging might not necessarily require repayment of the whole amount: it could involve paying sums still under Gazal’s control or providing a full explanation demonstrating that he no longer controlled the withdrawn funds. The Court considered that the possibility of purging meant continued custody did not make the appeal futile ([30]-[32]).
The balance of convenience then weighed against a stay. The Court took account of the public interest in protecting the administration of justice, given the seriousness of the conduct and the purpose of the committal order ([33]). It also considered the procedural history. Mitchelmore JA referred to late applications and delays, and noted that no procedural step had been taken until the third-last day of the 21-day suspension period, while expressly stating that this was not criticism of the solicitor ([34]).
The Court was also concerned that it was unclear when the applicant would be ready for an appeal hearing. The proposed additional medical evidence was at an early stage, and the psychiatrist engaged to assess Gazal had not yet done so. The Court accepted that custody created practical difficulties, while noting that evidence might still be obtained from doctors who treated Gazal before he entered custody ([35]-[36]). It also considered the impact of release under a stay followed by possible return to custody if the appeal failed ([36]).
The combined conclusion was that the appeal was not shown to be futile without a stay, and the balance of convenience opposed interim release ([37]). The Court nevertheless considered expedition appropriate and identified the next Registrar listing as a point at which directions could facilitate it ([37]).
The judgment did not announce a new general test for stays. It treated the governing principles as well settled and applied the framework stated in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed), as summarised in Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd ([22]). Under that approach, the applicant must establish serious issues and a real risk of prejudice or damage. If both are established, the Court considers convenience and competing rights.
The judgment also referred to the House v The King standard as the applicable standard for reviewing the primary judge’s penalty determination, citing Matthews v Australian Securities and Investments Commission ([26]). The stay hearing was not the appeal itself: the Court did not decide whether Black J’s penalty decision disclosed appellate error.
The potential application of the Bail Act 2013 (NSW), and the existence of a power to grant bail without a stay in a civil contempt case, remained unresolved. Mitchelmore JA discussed earlier observations about the former Bail Act 1978 and the statutory provisions concerning bail and contempt, as well as authorities addressing the connection between bail and a stay. But the Court expressly found it unnecessary to reach a concluded view ([38]-[40]). It assumed a power to grant bail for the purpose of considering the submission, then said it would not be minded to grant bail on the circumstances presented ([40]).
Accordingly, the judgment’s contribution is principally its application of established stay principles to an indefinite civil contempt committal, not a change to the test or a definitive ruling about bail.
At [22], the judgment states that a stay applicant must show “serious issues” and “a real risk” of prejudice if relief is refused. In plain English, an appeal filing alone is not enough. There must be a substantial question for the appeal court to decide and a real practical consequence if the order continues while the appeal is pending.
At [23], the Court explains that it need not conduct a detailed assessment of the appeal grounds at the stay stage, but must be satisfied that at least one serious question is raised. The stay motion is therefore a preliminary assessment, not a substitute for hearing the appeal.
At [28], Mitchelmore JA said, “I am prepared to assume that they are arguable.” This is deliberately limited. The Court had just declined to accept that the appeal was strongly arguable. The assumption allowed it to consider the remaining stay criteria without deciding the appeal’s merits.
At [30], the Court focused on the purpose of the committal. It observed that Gazal’s custody was connected to the opportunity to purge the contempt. The respondent’s suggested possibilities included payment of money still under his control or an explanation showing that he no longer controlled the sums. In plain English, the Court treated the order as capable of being brought to an end through steps addressing the contempt, rather than as a fixed prison term that would necessarily expire before the appeal.
At [32], the Court accepted there was “some prejudice” but found the evidence did not show that it would make the appeal futile. This separates the existence of a hardship from whether that hardship satisfies the relevant stay criterion.
At [37], the Court concluded that “the balance of convenience ultimately weighs against the grant of a stay.” That conclusion reflected the combined weight of the public interest, procedural history, uncertainty about the appeal timetable, and the consequences of release followed by possible return to custody. It did not erase the prejudice accepted by the Court; it found that the competing considerations prevailed.
At [40], the Court said it was “unnecessary” to decide whether bail could be granted without a stay. This passage is important because the judgment should not be read as settling that question.
The decision is relevant to applications for a stay pending appeal where a person is subject to an indefinite committal for civil contempt. It is especially relevant where the applicant argues that continued detention will undermine the practical value of an appeal, but the order is coercive and may be brought to an end if the contempt is purged ([30]-[32]).
It also illustrates the significance of the evidence available at the original penalty hearing. Here, the appeal grounds relied on health and personal circumstances, but the primary judge had not received evidence about those matters. The Court noted the earlier opportunity to file penalty material when assessing whether the appeal grounds raised serious issues ([26]-[28]). The judgment does not decide what result would follow where comparable evidence was properly before the primary judge.
Medical evidence is another relevant factual feature. The applicant had multiple hospital admissions, yet the Court considered that the evidence before it did not establish the level of risk associated with continued detention. It relied in part on the fact of discharge to the correctional complex’s hospital ([31]). The decision therefore shows that evidence of hospitalisation may establish a health concern without necessarily establishing the particular risk or prejudice needed for a stay.
Finally, the decision addresses the interaction between procedural readiness and interim relief. The Court considered an unclear timetable for obtaining further medical evidence and preparing the appeal, as well as the prior procedural history ([34]-[36]). It does not establish that delay alone defeats a stay application. Rather, those matters formed part of the overall balance in this case.
The judgment contains no information about later judicial treatment of Gazal (No 2). Because the decision is dated 4 June 2026, the supplied text cannot establish whether later courts followed, distinguished, or otherwise treated it. No later treatment should be inferred from this judgment alone.
The judgment itself discusses earlier authorities. It applies the stay framework associated with Alexander and presented through Michael Hill ([22]). It cites Nyangbul for the proposition that a detailed merits assessment is unnecessary at the stay stage, provided a serious question is shown ([23]). It refers to House v The King, through Matthews, in identifying the review standard relevant to the penalty appeal ([26]).
For the public-interest aspect, Mitchelmore JA relied on observations in Kazal v Thunder Studios Inc (California) and on Wooldridge v Australian Securities and Investments Commission, as recounted in Kazal ([33]). In the bail discussion, the judgment considered Matthews, Kazal, Vu v New South Wales Police Service and Parker v Director of Public Prosecutions, while leaving the civil contempt bail issue open ([38]-[40]). Those references show the materials considered in this decision, not later treatment of it.
The most explicit unresolved question is whether a court can grant bail without granting a stay in a civil contempt case. Mitchelmore JA did not decide the point. The judgment records competing statutory and case-law considerations, but only assumes the existence of power for the purpose of addressing the submission ([38]-[40]).
The judgment also does not decide the merits of the appeal from the penalty judgment. It says only that the grounds were assumed to be arguable for the stay motion, despite the Court’s view that a strongly arguable case had not been demonstrated ([28]). Whether the primary judge erred by not sufficiently considering health, capacity, representation or personal circumstances remained for the appeal.
The limits of the prejudice analysis are fact-specific. The Court had evidence of hospital admissions but considered it insufficient to assess the risk of continued detention ([31]). The judgment does not state what medical evidence would be sufficient in another case, or how a court should resolve a materially different medical record.
Finally, the meaning of purging the contempt was not finally determined in the stay proceeding. The respondent offered possible examples, including paying funds still controlled or explaining that the applicant no longer controlled them, and the Court relied on the coercive nature of the order when assessing futility ([30]). The judgment does not resolve what steps would satisfy the primary judge’s orders in practice.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Gazal by his tutor Samadi v Deputy Commissioner of Taxation (No 2) [2026] NSWCA 104
Hearing dates: 1 June 2026
Date of orders: 4 June 2026
Decision date: 04 June 2026
Before: Mitchelmore JA
Decision: The applicant’s notice of motion filed 14 May 2026 is dismissed with costs.
Catchwords: APPEALS — stay pending appeal — where primary judge ordered indefinite committal of contemnor — whether grounds of appeal raise serious issues — whether refusal would risk harm or prejudice to applicant — balance of convenience and competing interests — where applicant has ongoing medical issues
APPEALS — stay pending appeal — power to grant bail in respect of committal for civil contempt — whether incident of power to order stay
Legislation Cited: Bail Act 1978 (NSW), ss 62, 64(1) (repealed)
Bail Act 2013 (NSW), s 90(1), cl 11 of Sch 3
Supreme Court Act 1970 (NSW), s 75A
Supreme Court Rules 1970 (NSW), Pt 55, r 13
Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kazal v Thunder Studios Inc (California) [2017] FCA 238
Matthews v Australian Securities and Investments Commission [2009] NSWCA 155
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128
Nyangbul v State of New South Wales [2025] NSWCA 119
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Vu v New South Wales Police Service [2007] FCA 1192
Wooldridge v Australian Securities and Investments Commission [2015] FCA 349; 106 ACSR 551
Texts Cited: Nil
Category: Principal judgment
Parties: Nahi Nasri Gazal (applicant)
Deputy Commissioner of Taxation (respondent)
Representation: Counsel:
C Ford (solicitor) (applicant)
D Barnett SC (respondent)
Solicitors:
Ford Criminal Lawyers (applicant)
K&L Gates (respondent)
File Number(s): 2026/00181584
Publication restriction: Nil
On 8 April 2026, the primary judge, Black J, made orders committing the applicant to a correctional facility until he purges his contempt of court. His Honour suspended the order for committal for a period of 21 days. On 30 April 2026, the applicant was taken into custody.
By notice of motion filed 14 May 2026, the applicant seeks a stay of the primary judge’s orders pending the hearing and determination of his appeal, which was filed on 4 May 2026.
The respondent’s application for the applicant to be dealt with for contempt has an involved history. For present purposes, it is sufficient to summarise the background by reference to the judgment under appeal: Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2026] NSWSC 320 (penalty judgment).
The applicant was the sole director of three companies, Belfield Development Pty Ltd (Belfield), NNG Holdings Pty Ltd (NNG) and NG Sydney Corporation Pty Ltd (NG Sydney). He was also the sole shareholder of NNG and NG Sydney, and NNG was the sole shareholder of Belfield. The evidence established that the applicant controlled each of the company's bank accounts: at [2].
On 24 December 2020, the Supreme Court made a freezing order which applied, inter alia, to Belfield, NNG and the applicant, restraining each from taking any steps to pay, transfer, dispose of, or diminish their assets as set out in the order including, but not limited to, the Belfield bank account and the NNG bank account. On 26 March 2021, the Court made a further freezing order which relevantly extended the restraints in the first freezing order to NG Sydney. The freezing orders were subject to several exceptions. The applicant relied on one of these exceptions (the ordinary course of business exception) to withdraw a substantial amount of money from the bank accounts of the three companies: at [3].
By amended notice of motion and amended statement of charge dated 1 May 2025, the respondent sought orders that the applicant was guilty of contempt of court: at [1]. In a judgment delivered on 24 June 2025, the primary judge concluded that the respondent had established the large part of the charge: Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2025] NSWSC 655 (liability judgment). In summary, his Honour was satisfied that the applicant was aware of the freezing orders and was therefore under a duty to take reasonable steps to ensure that the undertaking was obeyed by each of the companies. His Honour found that the applicant deliberately failed to take those steps and actively took steps to cause each of the companies to make numerous payments in substantial amounts in breach of the freezing orders. The large majority of the invoices supporting withdrawals from the accounts that were the subject of the freezing orders were false.
On 11 July 2025, his Honour made the following orders to give effect to the findings in the liability judgment:
“The Tenth Defendant, Nahi Nasri Gazal (Mr Gazal) is guilty of a contempt of court in that in breach of paragraph 4(a) of the Freezing Order and paragraph 4(a) of the Further Freezing Order (as those terms are defined in the Amended Statement of Charge (ASC)) (together referred to herein as the Orders):
(a) in respect of charge 1(a)(i) of the ASC, he caused the Belfield Account (as defined in paragraph 1(e) of the ASC) to be diminished by the sum of $1,304,963 by deliberately and dishonestly paying purported business expenses between on or about 3 February 2021 and 29 July 2021 (inclusive) that were not permitted by the terms of the Orders and not bona fide or properly incurred;
(b) in respect of charge 1(a)(ii) of the ASC, he caused the NNG Account (as defined in paragraph 2(f) of the ASC) to be diminished by the sum of $2,852,820 by deliberately and dishonestly paying purported business expenses between on or about 21 January 2021 and 13 July 2021 (inclusive) that were not permitted by the terms of the Orders and not bona fide or properly incurred; and
(c) in respect of charge 1(a)(iii) of the ASC, he caused the NG Sydney Account (as defined in paragraph 4(e) of the ASC) to be diminished by the sum of $1,573,770 by deliberately and dishonestly paying purported business expenses between on or about 24 February 2023 and 3 April 2023 (inclusive) that were not permitted by the terms of the Orders and not bona fide or properly incurred.”
His Honour noted in the penalty judgment that following the making of the above orders, he made further orders directed to bringing the penalty stage of the contempt proceedings to a hearing. According to his Honour’s reasons (at [6]), the applicant sought to defer that stage of proceedings, which his Honour addressed in several judgments, including Deputy Commissioner of Taxation v Westmeat Development Pty Ltd as trustee for Westmeat Development Trust [2025] NSWSC 1571 (October 2025 judgment). His Honour dealt in that judgment with an application by the applicant to defer the hearing of the penalty stage and vacate the hearing date in light of an alleged lack of capacity on his part, and in circumstances where the applicant had filed a notice of appeal in relation to the liability judgment. As summarised in the penalty judgment, his Honour concluded in the October 2025 judgment that “Mr Gazal had not established any lack of capacity that would prevent him, or a tutor he had appointed, defending the balance of the contempt proceedings”: at [6]. Nonetheless, his Honour stayed the penalty hearing for a short time to permit the issues to be determined in the Court of Appeal.
The applicant required an extension of time to appeal (or seek leave to appeal) from the liability judgment. The substantive issue raised in the appeal proceedings was whether the primary judge erred in determining the applicant’s guilt without first conducting a hearing regarding his fitness to plead. On 27 February 2026, after a hearing on 18 February 2026, the Court of Appeal dismissed the application for the extension of time: Gazal by his tutor Samadi v Deputy Commissioner of Taxation [2026] NSWCA 16. As the primary judge noted in the penalty judgment, the Court left open the possibility that the applicant could bring a further application seeking to establish a lack of capacity. He did not subsequently do so: at [6].
On 9 February 2026, in advance of the Court of Appeal hearing, the primary judge listed the hearing on penalty for 31 March 2026. In the penalty judgment, his Honour noted that he also extended the time for the applicant to file and serve all further evidence and submissions on which he relied as to penalty: at [7]. The applicant did not file any evidence or make submissions as to penalty. On 12 February 2026, the solicitors then acting for him in the Supreme Court proceedings filed a notice of ceasing to act, although they continued to act for him in the Court of Appeal proceedings: at [7].
On 30 March 2026, the applicant’s wife and his then tutor, Rabiaa Samadi, sent an email to the Court. His Honour set out the body of the email in [8] of the penalty judgment:
“I am Rabiaa Samadi the wife of Nahi Nasri Gazal. I wish to inform the Court that I have resigned as his tutor because he has no lawyers and has no money for lawyers, I am not a lawyer, and I do not know what I am doing.
As you are aware, my husband has very bad health, so I do not know what to do with his case tomorrow as I am not a lawyer. I have asked his trustee in bankruptcy to attend Court tomorrow to answer any questions you have.”
“My husband Nahi Gazal has been at the emergency department at St Vincent’s Hospital.
I have been trying to get him discharged to come to Court but the doctors are refusing as he was not waking up and is hooked up to machines.
I am not sure when and what time they will discharge him.
Feel free to contact the emergency department and I am also available if you wish to speak with me.”
The affidavit of Christopher John Ford, the solicitor currently on the record for the applicant, sworn 14 May 2026, includes a discharge summary referral from St Vincent’s Hospital (Annexure D), which recorded that on 31 March 2026, the applicant was admitted to hospital in a hypoglycaemic coma. The referral noted that the applicant’s blood glucose level stabilised during the admission, there was no further hypoglycaemia episode for 24 hours, and he was discharged on 2 April 2026.
The primary judge noted in the penalty judgment (at [10]) that in response to her email of 31 March 2026, Ms Samadi was advised that the Court would deal with any application to adjourn when the matter was listed. No such application was brought by the applicant or was made on his behalf, and the hearing proceeded on that date.
In determining the appropriate penalty, his Honour relied on r 13 in Pt 55 of the Supreme Court Rules 1970 (NSW), which allows for the punishment of contempt by committal to a correctional centre, or a fine, or both (where, as here, the contemnor is not a corporation): at [13]. His Honour accepted that the contempt in question was of the most serious kind: at [23]. Having regard to the relevant principles in respect of penalties for civil contempt, his Honour also accepted the respondent’s submission that the penalty was to serve a remedial and coercive purpose, not a punitive one: at [28]. Relevantly, his Honour found that there was “no reason to think that Mr Gazal would be incapable of repaying the funds that he had personally received, in a substantial amount, so as to purge or mitigate his contempt”: at [30]. That finding was made on the basis that the applicant had provided no evidence to explain where the funds had gone, although he had “repeatedly asserted impecuniosity”: at [30].
His Honour stated at [31]:
“It seems to me that such an order for the imprisonment of Mr Gazal for an indefinite term is necessary to advance the remedial and coercive purpose of securing compliance with the Court’s previous orders, by seeking to reverse the effects of Mr Gazal’s deliberate breach of those orders. As Darke J held in a similar situation in Xiao at [46], the incentive towards compliance that is inherent in an indefinite term that is terminable upon the purging of the outstanding contempts renders such a term, rather than a fixed term, appropriate in the case of Mr Gazal. As in that case, if it became apparent in [the] future that Mr Gazal lacked the ability to purge the outstanding contempts, so that there was no longer any purpose in keeping him in prison, it would be open to him to seek to have the order for committal discharged pursuant to [Supreme Court Rules] Pt 55 r 14. The orders I will make reserve that possibility. For all the reasons set out above, I accept that the orders sought by the DCT are necessary to uphold and protect the effective administration of justice, and that Mr Gazal should be committed to a correctional centre for an indefinite term until he purges the contempts.”
“1 Pursuant to r 13 of Part 55 of the Supreme Court Rules 1970 (NSW) (SCR), that in respect of the contempts committed by him, the Tenth Defendant, Nahi Nasri Gazal (Mr Gazal) be committed to a correctional centre until such time as the contempts the subject of Charges 1(a)(i), 1(a)(ii) and 1(a)(iii) are purged.
2 The order for committal to a correctional centre be suspended for a period of 21 days from the date of these orders.
3 The order for committal to a correctional centre may be discharged if, within the period of 21 days from the date of these orders, Mr Gazal satisfies the Court that the contempts the subject of Charges 1(a)(i), 1(a)(ii) and 1(a)(iii) have been purged.
4 A warrant for the committal of Mr Gazal to a correctional centre, in the form initialled by Black J and placed in the file, be issued forthwith, such warrant not to be executed until the expiry of the period of 21 days from the date of these orders.
…
6 Liberty to the parties to apply in respect of the execution of the above orders or in respect of any application under r 14 of Part 55 of the SCR on 2 business days' notice, specifying the relief sought.
7 These orders be entered forthwith.”
Mr Ford filed a notice of appearance in the proceedings on 28 April 2026, a day before the expiry of the stay. I was informed by Mr Ford that on the same day, a notice of motion was filed seeking to extend the stay. The return date given for the notice of motion was after the applicant had been taken into custody. The notice of motion was not pressed.
On 2 May 2026, the applicant suffered a further medical episode which resulted in him being taken to Westmead Hospital. Mr Ford deposed that the applicant was initially in the Intensive Care Unit for two days, before being transferred to the Diabetes Ward. The hospital records annexed to Mr Ford’s affidavit for this admission (Annexure F) indicated that the treatment aim was to discharge the applicant to the prison medical facility, “next Monday”, being 11 May 2026. The records also noted that on discharge, the applicant would need a referral to Long Bay Jail. The applicant was discharged to the Long Bay Correctional Complex and he remains in the hospital located at that complex.
I was informed by Mr Ford that Ms Samadi has again accepted appointment as the applicant’s tutor. On 4 May 2026, the applicant, by his tutor, filed a notice of appeal from the whole of the penalty judgment.
As I noted above, the present application was filed on 14 May 2026. The primary relief that the applicant sought was a stay and, as a consequence of the stay, his immediate release from custody.
It was common ground that the principles to be applied in considering the application for a stay were outlined in Alexander v Cambridge Credit Corp**oration Ltd (Receivers A**ppointed) (1985) 2 NSWLR 685 (“Alexander”) at 694-695. Payne JA recently summarised the applicable principles in Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 (“Michael Hill”) at [5]:
“The principles governing the grant of a stay pending an appeal are well-settled, as the parties on this application agreed. They are analogous to those which govern the grant of interlocutory relief before trial: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694-5, Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]. A party applying for a stay must show, first, that the appeal raises serious issues for determination by the appellate court; and secondly, that there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted. If an appellant prevails on those two questions, then the Court is to consider the balance of convenience and the competing rights of the parties: Pamplin v Irwin [2024] NSWCA 112 at [11] per Leeming JA.”
In relation to the first of the matters to which Payne JA referred in Michael Hill, the Court is not required to conduct a detailed assessment of the grounds of appeal for the purposes of granting a stay, but it does need to be satisfied that one or more serious questions are raised by the appeal: Nyangbul v State of New South Wales [2025] NSWCA 119 at [20]. The applicant accepted, in submissions, that the mere filing of an appeal did not demonstrate an arguable case.
The notice of appeal contains the following grounds:
“1. The character, antecedents and personal circumstances of the contemnor were factors important to be taken into account by the Court in imposing [a] penalty for contempt, and the Court was sufficiently aware of the circumstances personal to the contemnor which might have, upon further consideration, given rise to further medical issues which were inadequately, and insufficiently before the Court, but yet capable of further adumbration.
- Further, or in the alternative, the Court failed or refused further or sufficient consideration of the prospect of the apparent aberrant behaviour of the contemnor, demonstrated by him in the curial process, being totally, or partially explicable by his medical circumstances.
- In circumstances where imprisonment is to be regarded by the Court as a punishment of last resort, the Court failed to sufficiently, or at all, consider:
(a) the circumstances in this case of the solicitors for the contemnor ceasing to act for him, in combination with,
(b) the provision to the Court from his wife, of his ‘very bad health’ and hospitalization, and,
(c) the contemnors (sic) aberrant behaviour in Court, of a kind demonstrating an apparent inability to behave appropriately, and in his best interest.
Accordingly, the Court had the ability to examine further these inter-connected factors as relevant to the imposition of penalty and failed to do so.
- The apparent failure by the contemnor to purge his contempt is conceded to be an important factor in penalty consideration, and the Court failed to sufficiently, or at all, take into account the contemnor’s advantage the circumstances described in grounds 1, 2 and 3 herein, which might well have led to significant mitigation.”
The applicant submitted that the focus of the appeal is the primary judge’s failure to take into account a material consideration, being the state of the applicant’s physical and mental health, which resulted in a penalty that was unreasonable or unjust.
In the hearing before me, Mr Ford agreed with the respondent’s submission that the applicable standard of review of his Honour’s determination as to penalty was that set out in House v The King (1936) 55 CLR 499; [1936] HCA 40: see Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 (“Matthews”) at [181]. A difficulty that thus confronts the applicant in regard to his grounds of appeal is that the primary judge did not have any evidence before him in the penalty hearing regarding the applicant’s subjective circumstances, including as to any physical or psychological impairments. The applicant nonetheless submitted that the facts in Mr Ford’s affidavit disclosed a strongly arguable case in circumstances where, due to his lack of legal representation and health status at the time of the penalty hearing, he did not have an opportunity to place any material before the Court, and the Court did not consider alternatives to full time imprisonment.
The discharge summary from St Vincent’s Hospital that is annexed to Mr Ford’s affidavit supports the fact of the applicant’s hospitalisation on the date of the hearing. However, the submission that he had no opportunity to place material as to penalty before the Court will need to confront the directions that were made by his Honour, on 9 February 2026, which extended the time for the applicant to provide evidence and submissions on penalty (noting that the hearing on penalty was to proceed on 24 October 2025 before it was adjourned). The applicant thus had an opportunity, in advance of the penalty hearing, to put on evidence, including as to the state of his health, in circumstances where, according to the primary judge in the October 2025 judgment (at [11]), the respondent’s position had always been that the applicant’s contempt should have custodial consequences.
In those circumstances, I do not accept the applicant’s submission that he has a strongly arguable case on appeal. For the purposes of the present application, I am prepared to assume that they are arguable.
Turning then to the second of the matters to which Payne JA referred in Michael Hill, being the risk of harm or prejudice to the applicant if a stay is not granted, the applicant submitted that the appeal would prove futile if he were successful on the appeal while having remained in prison. In the reply submissions dated 29 May 2026, the applicant submitted that the available evidence indicated that the applicant remains in hospital. A stay, if granted, would preserve the position pending appeal and reduce the likelihood of further irreversible prejudice while the Court considers the appeal.
The notice of motion will be dismissed. The respondent sought its costs of the motion and there is no discernible basis on which the ordinary rule would not apply. Accordingly, I make the following orders:
The applicant’s notice of motion filed 14 May 2026 is dismissed with costs.
**********
Gazal by his tutor Samadi
Deputy Commissioner of Taxation (No 2)
[1936] HCA 40
(1985) 2 NSWLR 685
(1936) 55 CLR 499
(1992) 28 NSWLR 282
(2002) 55 NSWLR 737
The applicant's notice of motion filed 14 May 2026 was dismissed with costs. The Court did not determine the appeal from the penalty judgment or decide whether it had power to grant bail without a stay.
By his Honour’s penalty judgment, the primary judge committed the applicant to custody for an indefinite period, for the purpose of his purging the very serious contempt that his Honour found him to have committed (which finding is not challenged). The continuation of those circumstances while an appeal is heard and determined would not render the appeal futile, assuming for present purposes that it were to succeed. It is significant in this context that the continuation of the applicant’s custody is within his control, given the purpose for which he has been committed. I have set out at [16] above what the primary judge said in this regard at [31] of the penalty judgment. Senior counsel for the respondent submitted that purging the contempt might not entail repaying the whole sum, and that it might involve, for example, paying whatever sum remains within the applicant’s control, or providing a full explanation so as to demonstrate that he no longer has control of any of the sums withdrawn from the various accounts.
It is the case that the applicant is under detention, and there is some evidence that he is experiencing ongoing medical issues. However, there is insufficient evidence currently available for me to assess the level of risk associated with the applicant’s continuing detention. The insufficiency of the evidence was a matter that the applicant relied upon in the reply submissions, but it does not assist him on the present application. I have set out the evidence of his two hospital admissions in [13] and [19] above. As senior counsel for the respondent submitted, the applicant’s discharge from Westmead Hospital grounds the reasonable inference that his treating doctors were satisfied that his condition was sufficiently stable that it could be managed at Long Bay Hospital.
It follows from the above that there is some prejudice to the applicant in his continuing incarceration pending his appeal, but the evidence does not support his submission that it is of a nature that would render the appeal futile if a stay is not granted. Other matters that are relevant to the exercise of the discretion must also be considered, including the balance of convenience and the competing rights of the parties: Alexander at 694.
Senior counsel for the respondent submitted that there is a continuing public interest in the purpose for which the applicant has been committed to custody. The applicant engaged in serious conduct which concerns the public interest in the administration of justice, and it is the public interest that the orders protect: Kazal v Thunder Studios Inc (California) [2017] FCA 238 (“Kazal”) at [75]. In Kazal (at [76]-[77]), which concerned a criminal contempt, Katzmann J referred to Wooldridge v Australian Securities and Investments Commission [2015] FCA 349; 106 ACSR 551, which concerned an application for a stay of disqualification orders. Middleton J there stated (at [16]) that the Court should not give the impression that disqualification orders are provisional until confirmed on appeal, “lest the public purpose of making such orders in the first place be undermined”. Her Honour considered those observations to be applicable when considering a stay of committal to custody for criminal contempt, and they are also applicable in considering a stay of the orders the primary judge made in the present case, having found a civil contempt.
Relatedly, the procedural history of the present case weighs against the grant of a stay. It is apparent from a review of the decisions of the primary judge and the Court of Appeal that the applicant’s conduct of the proceedings involved numerous delays. A number of applications were made at late notice, including for the admission of evidence that the respondent was given no opportunity to consider or respond to (see the October 2025 judgment, at [34]). The circumstances of the applicant’s committal to custody provide another example. As I noted above, the primary judge’s orders were made on 8 April 2026 and stayed for 21 days, to 29 April 2026. The notice of appearance for Mr Ford was not signed until 27 April 2026, and was filed on 28 April 2026. In making this observation, I am not being critical of Mr Ford, who could only enter an appearance when instructed to do so, but rather to indicate that when given a three-week period to take steps that might have precluded his commitment to custody, no procedural step was taken by the applicant until the third-last day of that period.
When I raised the possibility of expedition of the appeal at the hearing, Mr Ford submitted that expedition would be sought, and senior counsel for the respondent accepted that the respondent could not be heard against expedition. However, it is not presently clear when the applicant would be ready for a hearing. Mr Ford submitted that the applicant would be seeking to put on additional evidence as to the applicant’s current mental and physical state, and that this process was underway but at an early stage. (I note in passing that consideration would need to be given in this context to subss (7) to (9) of s 75A of the Supreme Court Act 1970 (NSW).) Mr Ford referred to a psychiatrist having been engaged, who was yet to assess the applicant. In relation to other health conditions, Mr Ford submitted that the applicant’s custodial status has precluded appointments for his examination and the preparation of associated reports. I am prepared to accept that custody does present practical difficulties in this regard, although the applicant’s current status would not preclude obtaining evidence from such doctors as treated him before he was taken into custody, on 30 April 2026.
The history of the applicant’s conduct of the proceedings tells against a stay of the order for committal without any clear indication of what evidence will be adduced and when the matter will be ready for hearing. Relatedly, I am mindful that there is an inevitable impact on the applicant if he is released from custody pursuant to a stay, with the prospect of being returned to custody in the event that his appeal is not successful.
Accepting for present purposes that the grounds of appeal are arguable, and that the applicant’s current detention and health are the cause of some prejudice to him, I am not satisfied that the appeal will be rendered futile if a stay is not granted, and the balance of convenience ultimately weighs against the grant of a stay. That said, the matter is an appropriate one for expedition. The matter is next listed before the Registrar on 10 June 2026, on which occasion directions can be made to facilitate that purpose.
I note that towards the conclusion of the hearing, Mr Ford floated the possibility of my granting the applicant bail pending the appeal, on conditions including that he be confined to his residence and subject to electronic monitoring. That specific order and accompanying conditions was not referred to in the notice of motion. In so far as that submission was effectively an application for bail under the Bail Act 2013 (NSW), the respondent submitted that the Act does not apply to proceedings involving a civil contempt. There is judicial support for that submission. In Matthews at [188], Basten JA observed, without needing to decide, that the Bail Act 1978 (NSW) did not in terms apply to a committal for civil contempt. His Honour also stated that the abolition of common law powers to grant bail in s 62 of that Act (which is continued by cl 11 of Sch 3 of the Bail Act 2013) did not operate in respect of a committal for civil contempt, because the section expressly referred to the power to grant bail “to an accused person in or in connection with criminal proceedings”. Further, the Act did not affect a power to grant bail in relation to criminal proceedings for contempt, with s 64(1) (cf s 90(1) of the Bail Act 2013) providing that nothing in the Act “affects any power or duty that a court, tribunal or person has to grant bail, or to grant relief in the nature of bail, in connection with any contempt or alleged contempt”.
Referring to these observations in Kazal, Katzmann J concluded that the better view was that the Bail Act did not apply: at [52]. Her Honour agreed in this respect with the decision of Rares J in Vu v New South Wales Police Service [2007] FCA 1192, in which his Honour, without referring to the Bail Act, considered that the matter was governed by the Court’s power to stay the operation of a sentence. A number of cases involving criminal contempt, such as Kazal (at [39]), have referred to the link between bail and a stay pending appeal. As Basten JA noted in Matthews, in cases involving criminal contempt, without a stay, the sentence of imprisonment would continue to run, giving rise to difficulties of jurisdiction in terms of substituting a fresh order of commitment for a sentence which expired before the appeal was determined: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 298-299. In Matthews, however, Basten JA observed at [191] that the same issue does not arise in the context of proceedings for a civil contempt. It may also not be determinative in the present case, as the period of commitment is indefinite and subject to the applicant purging his contempt.
It is unnecessary for present purposes to reach a concluded view on these issues. Given the generality at which the submission was put, and the stage of the hearing at which it was made, it is sufficient for present purposes to proceed on the assumption that I would have the power to grant bail without granting a stay. Having regard to the prospects of the appeal, and the other matters to which I have referred above, I would not be minded to make a grant of bail pending the appeal.