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[2026] NSWCA 16
respondent. Extension of time refused; notice of appeal dismissed; summons for leave to appeal dismissed; Mr Gazal to pay the DCT’s costs in this Court. The parties remain at liberty to appeal from final...
The Court of Appeal did not decide whether Mr Gazal was fit to plead or finally resolve how criminal fitness rules apply to civil contempt where a tutor is appointed. It refused to let the interlocutory appeal proceed out of time. The primary judge had allowed an opportunity to present evidence about capacity, but medical evidence was not put forward at the adjourned hearing. On appeal, additional evidence was included without the required application and supporting affidavit. Because the contempt case was still ongoing and an appeal from final orders remained available, the Court considered an immediate appeal would cause avoidable delay and fragmentation.
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2,449 words · generated 07/10/2026
The Deputy Commissioner of Taxation (DCT) commenced proceedings in 2020 against companies and individuals associated with Nahi Nasri Gazal. The underlying claims concerned alleged improper GST refunds and an asserted risk that more than $20 million would not be recoverable without protective orders. In May 2024, judgment was entered against Mr Gazal and other parties for about $17.36 million, following default under a settlement deed ([5]-[9]). That judgment was not appealed.
16 cited instruments linked from this judgment.
The contempt case arose from a different course of conduct. Freezing orders restrained dealings with funds in accounts held by three companies associated with Mr Gazal. Between January 2021 and March 2023, Mr Gazal presented invoices to banks as business expenses. The primary judge found the invoices fabricated and the withdrawals contrary to the freezing orders. The total withdrawn was about $6.5 million ([12]-[18]). Those findings were not challenged in the Court of Appeal.
The procedural dispute concerned Mr Gazal’s capacity to participate in the contempt hearing. On 6 May 2025, counsel sought to rely on an affidavit by Mr Rahal, together with medical material, suggesting Mr Gazal might lack capacity. The material was provided very late, and the reports relied on documents that had not been produced. The primary judge declined to admit it, principally because the DCT would have no fair opportunity to test the evidence or obtain the underlying records ([59]-[64]).
The primary judge then adjourned the hearing to 27 May, giving Mr Gazal a further opportunity to serve evidence and submissions by 16 May ([74]-[75]). At the adjourned hearing, Mr Gazal sought another adjournment, supported by a newly appointed tutor’s account of one meeting. No medical evidence was tendered. The primary judge proceeded on the favourable assumption that the tutor’s observations might indicate incapacity, but found that the observations could not distinguish incapacity from feigning or exaggeration ([80]-[88]).
The contempt findings were made in June and embodied in orders on 11 July 2025. The case remained part-heard because final orders, including penalty and costs, had not yet been made ([102]-[103]). Mr Gazal filed a notice of appeal on 9 October 2025 and, in case leave was needed, a summons for leave on 20 November 2025. He argued that the findings should not stand because the primary judge had not conducted a hearing into his fitness to plead. He also sought to rely on medical material that had not been properly tendered at first instance.
The Court of Appeal refused an extension of time. It dismissed both the notice of appeal and the summons for leave, while noting that an appeal could be brought from final orders and could include interlocutory orders contributing to them ([189]-[191]).
The Court’s reasoning had two main strands: the substance of the fitness argument, and the procedural basis for the proposed appeal.
On the first, the Court accepted that capacity was important and that the primary judge had treated it as an issue requiring attention. The judge did not simply disregard the concern. After rejecting the late evidence on 6 May, the judge arranged a further hearing and set a timetable for evidence. At that second hearing, counsel did not seek to tender the medical reports or any other medical evidence. The only evidence on capacity came from the newly appointed tutor, who had met Mr Gazal shortly beforehand ([74]-[75], [80]-[88], [94]).
The Court therefore rejected the claim that the primary judge had failed to address an issue that had been properly raised on evidence. It emphasised that determining capacity required a fair process for both sides. The primary judge had allowed time for evidence to be served, and the DCT had a legitimate opportunity to test any expert opinion relied upon. The Court considered that the decision not to tender medical evidence at the adjourned hearing was a forensic choice made while Mr Gazal was legally represented. It was not for the Court, in ordinary circumstances, to second-guess that choice ([130]-[135]).
The Court also distinguished Kostov v YPOL Pty Ltd. In Kostov, psychiatric reports had been received and were accepted as raising a real and substantial question about fitness at the time of conviction. There was no tutor, and the contempt was criminal contempt for which sentence was imposed under criminal sentencing legislation. In Mr Gazal’s case, no medical reports were received at the May hearings, a tutor had been appointed, and the contempt application was civil and coercive in purpose ([125]-[127]). The Court did not hold that criminal fitness principles could never apply in civil contempt proceedings. Rather, it found that Kostov did not determine this case and identified the tutor question as an unresolved issue ([144]-[145]).
The second strand concerned the attempted use of additional evidence in the Court of Appeal. The judgment explains that one of Dr Nielssen’s letters, dated 14 May 2025, had never been offered to the primary judge. It was included in the appeal papers with an incorrect date, without an application to adduce further evidence and without an affidavit explaining the grounds for relying on it ([37]-[48]). UCPR r 51.51 required a motion and affidavit. Supreme Court Act s 75A(8) also required special grounds before evidence available at the original hearing could be received on appeal ([47]-[54]).
The Court stressed that these requirements are not mere technicalities. They distinguish material that was before the primary judge from material that was rejected or never tendered, alert the other party to the case being advanced, and allow the Court to assess whether additional evidence can properly be received ([49]-[54]). The Court did not find a deliberate attempt to mislead. It considered the errors consistent with inadvertence, including the misdating of the letters, but still found the appeal preparation unsatisfactory ([55]-[56], [100]).
Finally, the Court considered why an interlocutory appeal should be permitted before the contempt proceeding was complete. The hearing was scheduled to continue on 31 March 2026. The DCT accepted that Mr Gazal could seek to raise capacity before the primary judge if the evidence were provided in a procedurally fair way. The DCT also consented to a stay of execution of any penalty pending appeal. In those circumstances, an immediate appeal risked duplicating the capacity inquiry, adding delay and expense, and fragmenting the contempt proceeding ([146]-[158]).
The judgment does not announce a broad new rule that criminal fitness-to-plead principles either apply or do not apply to civil contempt. It records that contempt is criminal in nature in the sense that it must be proved beyond reasonable doubt, while also distinguishing punitive proceedings from remedial or coercive proceedings ([126]). The DCT’s application was described as civil and directed to securing compliance with orders, rather than punishing Mr Gazal ([140]).
Before this decision, Kostov had applied safeguards associated with criminal proceedings in a civil proceeding for criminal contempt. The Court of Appeal explained that the circumstances there differed materially: the psychiatric reports were in evidence, the conduct and presentation of the contemnor differed, no tutor had been appointed, and a criminal sentence had been imposed ([125]-[127]). In this case, the Court held that Kostov did not answer the question.
The judgment also records general civil procedure principles concerning a person under legal incapacity. The primary judge’s reasons referred to UCPR provisions allowing a person under legal incapacity to conduct proceedings through a tutor, and to authorities addressing the assessment of capacity in relation to the particular litigation. The Court of Appeal noted that the significance of the tutor’s appointment had not been adequately addressed in argument before it ([119]-[120], [144]-[145]). It therefore left open how those civil procedure principles should be reconciled with criminal fitness safeguards in a civil contempt case.
On appellate evidence, the judgment reinforces the existing procedural requirements rather than changing them. A party seeking to rely on additional evidence must use r 51.51 and address the statutory special-grounds restriction in s 75A(8). The Court made clear that an opposing party’s consent does not itself remove the statutory requirement ([47]-[54]).
The Court also considered s 101 of the Supreme Court Act, which generally requires leave for an appeal from an interlocutory order but gives an appeal in proceedings relating to contempt. It expressed a preliminary view that proceedings begun in 2020 did not become proceedings relating to contempt merely because a contempt motion was later filed within them. It did not determine the issue conclusively ([167]-[188]). The practical result was that the statutory question did not affect the disposition: an extension of time was refused whether leave was required or not.
At [49]-[51], the Court explains why an application for additional evidence must be properly identified. The appeal record must make clear what the primary judge saw, what was offered but rejected, and what is new. In plain English, an appeal bundle is not a place to insert new material and wait to see whether the other side objects.
At [54], the Court says the party seeking to rely on evidence not put before the primary judge should comply with r 51.51, prove the evidence by affidavit and identify the grounds for relying on it. This is both a fairness requirement and a practical requirement for the appellate court.
At [88], the Court explains its reading of the primary judge’s treatment of the tutor’s evidence. Although the transcript could be read inconsistently at first, the Court concluded that the primary judge had treated the evidence as raising a possibility of incapacity, not as proving it. The Court’s focus was that the evidence did not resolve whether Mr Gazal was incapable, exaggerating or feigning incapacity.
At [131], the Court rejects an automatic-stay approach. A person’s assertion that they may not be fit to stand trial does not mean the proceedings must stop indefinitely. The issue must be determined on evidence, with procedural fairness to the parties.
At [134]-[135], the Court focuses on the opportunity actually provided. Mr Gazal had legal representation, an adjournment, and a timetable to put evidence forward. The Court considered that the decision not to rely on available medical material at the adjourned hearing could not simply be recast as a failure by the primary judge to conduct an adequate inquiry.
At [157]-[158], the Court gives its central case-management reason for refusing an extension. The final hearing was close, an appeal after final orders remained available, and the DCT had agreed to a stay pending appeal. An immediate appeal would risk duplicating work and delaying completion of the contempt proceeding.
At [189], the Court clarifies the effect of dismissing the out-of-time appeal: it did not prevent an appeal from final orders, including an appeal that challenges interlocutory orders contributing to those final orders.
The decision is most relevant where a litigant seeks to appeal interlocutory findings in a contempt proceeding before final orders have been made, particularly where a further first-instance hearing is scheduled and the issues can still be addressed there. The Court’s reasoning is strongest where the applicant had a fair opportunity to put evidence forward below but did not use that opportunity to adduce the evidence later relied on in the appeal ([74]-[75], [94]-[95], [146]-[158]).
It is also relevant where a party seeks to introduce evidence on appeal that was available at first instance. The judgment highlights the need to distinguish evidence that was admitted, evidence whose tender was rejected, and evidence never tendered. It also makes clear that a party’s appeal materials should not blur those categories ([47]-[54], [100]).
The capacity analysis is fact-sensitive. The Court did not state that lay evidence can never raise a capacity issue, or that medical evidence is invariably necessary. It recounted the primary judge’s reliance on the presumption of capacity, the limitations of the tutor’s evidence, communications from Mr Gazal, and the litigation history. It also noted that the primary judge had not found incapacity at the May hearings ([85]-[89], [121]).
The decision is not a direct answer for a case involving admitted expert evidence, a completed contempt prosecution, an unrepresented accused, no tutor, or a proposed penal order. Those were among the distinctions the Court drew from Kostov ([125]-[127], [146]). Nor does it settle whether a tutor’s appointment removes the need for a criminal fitness inquiry in a civil contempt proceeding ([144]-[145]).
The supplied judgment is dated 27 February 2026 and does not refer to any later judicial treatment of Gazal. On the material provided, no later court’s application, distinction or criticism of this decision can be identified. The judgment itself discusses earlier authorities, including Kostov, Kesavarajah, Mailes, Witham, Hearne and Gerlach, but those cases are not later treatment of Gazal.
The Court expressly left several questions open, including the relationship between criminal fitness principles and the appointment of a tutor in civil contempt proceedings, and the construction of s 101(5) in the particular interlocutory setting ([145], [188]). Any later decision addressing those questions would need to be considered separately; this judgment alone does not establish how later courts have resolved them.
First, how should the common-law requirement that a criminal trial not proceed unless the accused is fit to plead apply to civil contempt proceedings, especially where the contempt is coercive rather than punitive? The Court identified the tension but did not resolve it ([126]-[127], [144]-[145]).
Second, what legal effect does appointing a tutor have on the need for a separate fitness-to-plead inquiry in a contempt proceeding? The judgment records that a tutor ordinarily has a significant role in civil litigation, while also recognising that Kostov involved criminal safeguards. The Court did not articulate a general test for reconciling those matters ([119]-[120], [144]-[145]).
Third, when will special grounds under s 75A(8) permit an appellate court to receive evidence that was available but not used at first instance following a deliberate forensic decision? The Court noted that it might be possible in some circumstances, particularly after the proceeding had ended, but did not decide the point ([95]-[96], [146]).
Fourth, how should s 101(5) apply when a contempt motion is brought within existing proceedings that were commenced for a different subject matter? The Court gave a preliminary view but expressly left the issue undecided ([176]-[188]).
Finally, the judgment leaves open how a later appeal will treat any evidence properly adduced before the primary judge at the resumed hearing. The Court’s orders preserved the ability to appeal from final orders, including interlocutory decisions that contributed to them ([149], [189]).
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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: Gazal by his tutor Samadi v Deputy Commissioner of Taxation [2026] NSWCA 16
Hearing dates: 18 February 2026
Decision date: 27 February 2026
Before: Leeming JA; Stern JA; Free JA
Decision: 1. Extension of time refused.
2. Notice of appeal filed 9 October 2025 dismissed, noting that the parties are at liberty if advised to appeal from any final orders made, and that such appeal may extend to interlocutory orders which contribute to the final orders.
3. Summons seeking leave to appeal filed 20 November 2025 dismissed.
4. Mr Gazal to pay the costs of the Deputy Commissioner of Taxation in this Court.
Catchwords: CONTEMPT – fitness to plead – primary judge found applicant to have committed contempt – whether real and substantial question of fitness arose before primary judge – significance of proceedings being civil and contempt being civil – significance of appointment of a tutor
PROCEDURE – appeals – fresh evidence – obligations in Supreme Court Act 1970 (NSW), s 75A(8) and UCPR, r 51.51 – failure to include transcript of hearings – documents sought to be relied on wrongly dated – importance of attending to obligation of preparing appeal papers
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56-58
Courts Legislation Amendment Act 1996 (NSW) Schedule 1 item 1.8
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
Criminal Appeal Act 1912 (NSW) s 12
Federal Court of Australia Act 1976 (Cth) s 24
Supreme Court Act 1970 (NSW) ss 75A 101
Supreme Court Rules 1970 (NSW) Pt 55 rr 6, 11
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 51.41, 51.51
Cases Cited: A [a pseudonym] v E Co [a pseudonym] [2018] NSWCA 188
ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (No 2) [2014] NSWCA 431
Attorney-General for New South Wales v John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21
Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2025] NSWSC 655
Deputy Commissioner of Taxation v Westmeat Development Pty Ltd as trustee for Westmeat Development Trust [2024] NSWSC 548
Deputy Commissioner of Taxation v Westmeat Development Pty Ltd as trustee for Westmeat Development Trust [2025] NSWSC 1571
Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340
Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630
Fong bhnf Fong v Weller [2024] NSWCA 46
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Guan v Li (No 2) [2022] NSWCA 261
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002; [2018] NSWCA 306
Mensink v Parbery (2018) 264 FCR 265; [2018] FCAFC 101
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Proietti v Proietti [2025] NSWCA 11
Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277
R v Birks (1990) 19 NSWLR 677
R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155
Re v R [2022] NSWCCA 73
Roberts v R [2023] NSWCCA 187
The Owners Strata Plan 21372 v Banovic [2017] NSWSC 177
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284
Category: Principal judgment
Parties: Nahi Nasri Gazal by his tutor Ruby Samadi (Applicant)
Deputy Commissioner of Taxation (Respondent)
Representation: Counsel:
G O’L Reynolds SC, T Woods (Applicant)
D Barnett SC, S Scott (Respondent)
Solicitors:
Dib Lawyers (Applicant)
K&L Gates (Respondent)
File Number(s): 2025/388090
Publication restriction: N/A
THE COURT: Mr Nahi Nasri Gazal seeks an extension of time so as to permit him to appeal (as he contends) or seeks leave to appeal (as the respondent Deputy Commissioner of Taxation (DCT) maintains) from orders encapsulating findings of criminal contempt made by the primary judge on 11 July 2025: Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2025] NSWSC 655. Those orders followed from reasons given on 24 June 2025 after a hearing on 6 and 27 May 2025. No final orders have as yet been made consequent upon the findings of contempt. There was to have been a hearing last October, but as will be explained below, that was occupied by Mr Gazal’s application to vacate. A hearing for making orders has now been fixed for 31 March 2026.
The substantive issue sought to be raised in this Court is whether the primary judge erred in determining Mr Gazal’s guilt without first conducting a hearing as to his fitness to plead. That is said to arise because, so it is said, there was and is a “real and substantial question” as to Mr Gazal’s fitness to plead. No challenge is sought to be made to any other aspect of the findings of guilt. However, there are two aspects to the challenge. First, there is the way the argument was advanced in the written submissions, which was that “the contempt hearing occurred when there was a real and substantial question about Gazal’s fitness to plead and stand trial”. This turns on what was placed before the primary judge on 6 and 27 May 2025. Secondly, there is a more unyielding submission, only advanced orally in this Court, that irrespective of what was said or not said before the primary judge, the material placed before this Court entitled and required a finding that there had been a real issue as to Mr Gazal’s capacity in May 2025, with the result that the findings of contempt needed to be set aside. Mr Reynolds, who appeared in this Court but not at first instance, made it clear that both submissions were pressed, and that the submissions were independent of one another.
In order to deal with both submissions, it is necessary to explain the factual and procedural background. The factual background of the proceedings, and the conduct giving rise to the alleged contempt, can be described concisely. The procedural history of the DCT’s statement of charge is far more complicated than one might expect. At least in part, that is attributable to the fact that four counsel have appeared for Mr Gazal, and each has adopted a different approach.
From time to time in the parties’ written and oral submissions there were references to “fitness to plead”, “fitness to stand trial”, “capacity” and “competence”. It is important to recognise that distinct considerations apply when assessing fitness to plead and stand trial, as opposed to considering questions of capacity in a civil context, including in relation to the role of a tutor in civil proceedings. Nothing turns for present purposes on this, except perhaps insofar as they reflect issues (which are not fully resolved) as to the applicability of concepts drawn from a criminal prosecution being imported into the civil proceedings for contempt which Mr Gazal faces.
The proceedings were commenced by Summons filed on 24 December 2020, where the DCT sought interim relief and final relief against several companies in respect of specified amounts. The DCT’s submissions in support of ex parte interlocutory relief, at the time the application was filed, identified the corporate entities which were party to the proceedings and individuals who were involved …. The DCT identified its claim that companies and trusts associated with Mr Gazal were not entitled to claim GST refunds and had, through fraud or otherwise, deliberately made false or misleading claims for such refunds and nearly all of the money paid to the companies and trusts had been transferred to other accounts operated by Mr Gazal and his family and associates, or otherwise withdrawn in cash, or spent on goods and services, such that there was a real likelihood that, absent a freezing order, the DCT would be unable to recover more than $20 million in GST refunds paid to the companies and trusts.
That judgment referred to a Settlement Deed entered into by, inter alia, Mr Gazal on around 1 September 2023 in which there was an acknowledgement of taxation liabilities in excess of $44.3 million: at [5]-[7]. The Deed referred to a “Settlement Amount” of $18 million, and made provision for its payment, and for judgment to be entered against certain parties including Mr Gazal in the event of default: at [9].
The judgment given on 6 May 2024 was the result of the DCT’s application based on a default of the obligations in the Settlement Deed. At the hearing of that application, Mr Gazal was represented by solicitor and counsel. The orders made on that day were:
1. Judgment be entered for the Plaintiff jointly and severally against the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, Eleventh and Thirteenth Defendants and the First and Sixth Respondents, in the amount of $17,357,593.94.
2. The First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, Eleventh and Thirteenth Defendants and the First and Sixth Respondents are jointly and severally liable to pay the Plaintiff’s costs of and incidental to this proceeding fixed in the sum of $782,029.89.
Mr Gazal was (and is) the tenth defendant, and two of the other companies involved in this application were the seventh and eighth defendants.
No appeal or application for leave to appeal has been brought from that judgment. Hence the proceedings to date have proceeded on the basis that Mr Gazal is a judgment debtor in an amount exceeding $17 million to the DCT.
The conduct giving rise to the findings of contempt which are the subject of this application is separate from the conduct which has resulted in judgments in excess of $17 million being entered against Mr Gazal and three companies owned directly or indirectly by him, and of which he was the sole director. Two (Belfield Development Pty Ltd and NNG Holdings Pty Ltd) were parties to the 2020 proceedings. The third (NG Sydney Corporation Pty Ltd) was not previously a party to the 2020 proceedings.
Once again, for present purposes, there is no dispute about any of the following.
Belfield Development and NNG Holdings banked with ANZ, and those companies were the subject of the original freezing order made in December 2020. A further freezing order was made on 26 March 2021 against NG Sydney Corporation which banked with Bankwest.
The orders took a familiar form, preventing dealings which would diminish the funds in the account, subject to specified exceptions. Both orders permitted dispositions in the ordinary and proper course of the companies’ businesses.
Between 5 January 2021 and 13 July 2022, Mr Gazal presented invoices to ANZ claiming to be business expenses of two of his companies and ANZ allowed the withdrawal of funds to pay those invoices. The result was that Belfield Development’s funds reduced from $1,486,019.59 to $3,016.39, and NNG Holdings’ from $3,316,123.50 to $3,096.10: see [2025] NSWSC 655 at [62] and [123].
Between 20 February 2023 and 14 March 2023, Mr Gazal (or others acting on his behalf) presented invoices representing that they were business expenses of NG Sydney Corporation and Bankwest permitted withdrawals to pay those invoices, reducing the funds from $1,709,827.46 to $897.54: see [2025] NSWSC 655 at [158].
The invoices were found by the primary judge to have been fabricated by Mr Gazal. The finding was based on a number of factors, including that some of the addresses did not exist, some of the invoices were in identical format, many were in the amount of precisely $99,000, some charged for identical work at the same site on multiple occasions, the developers at some of the sites which were the subject of invoices gave evidence that Mr Gazal’s companies had never been retained on those sites, and so on.
The details do not matter, for there is for present purposes no challenge to any of the findings that the withdrawals of funds in the companies’ accounts were not in the ordinary and proper course of business and were contrary to the freezing orders.
In short, there is an unchallenged finding that Mr Gazal caused his companies to withdraw some $6.5 million, contrary to the extant freezing orders which bound him and his companies.
Nothing was said in this Court to suggest that any of the amounts withdrawn had been repaid, or had been recovered in proceedings brought against third parties. To the contrary, the DCT maintained, without objection from Mr Gazal, that the purpose of the contempt proceeding was to compel Mr Gazal to restore the funds, assuming that were possible.
The DCT moved by notice of motion and statement of charge filed on 4 September 2024. The respondents to the motion were Mr Gazal and his three companies. In this Court, Mr Gazal was the sole appellant and (alternatively) sole applicant for leave to appeal. The companies should have been joined, but nothing turns on that. More importantly, as will be seen below, between the two days of hearing before the primary judge on 6 and 27 May 2025, a tutor (Mr Georges) was appointed to Mr Gazal, and subsequently a different tutor (Ms Samadi) replaced Mr Georges. The proceedings in this Court should have been commenced by Ms Samadi in her capacity as Mr Gazal’s tutor. That occurred pursuant to directions made by the Court on 18 February 2026.
A hearing was listed in November 2024. That was adjourned on the DCT’s application, in part because of late evidence from the DCT, and in part because Mr Gazal was unrepresented.
It is evident from the reasons of the primary judge, which refer to, inter alia, pages 1438, 1475, 1875, 1945-1946 and 1947-1962 of the Court Book, that a large quantity of documentary evidence was tendered against Mr Gazal and his companies. Almost none of that evidence was placed before this Court. As will be explained below, an affidavit of Mr Andreh Georges dated 26 May 2025 of six paragraphs occupying a single page was the only evidence adduced before the primary judge which was supplied to this Court. As will further be explained below, there were four letters from Dr Olav Nielssen which were also contained in the White Folder. None had been tendered before the primary judge in May. Two may be treated as having been the subject of a tender before the primary judge at the outset of the first day of the hearing, but the tender was rejected.
The balance of this section derives from the reasons of the primary judge and the transcripts of the hearings on 6 and 27 May 2025, which were belatedly placed before the Court in circumstances described below.
Evidently in the months between November 2024 and late April 2025 there were communications between the lawyers acting for the DCT and Mr Gazal (who was unrepresented). Some involved the Court. None were placed before the Court as presently constituted. It is clear from the reasons for judgment given on 24 October 2025 that Mr Gazal had claimed that he had sought and had been refused legal aid, and had appealed the refusal. His Honour also reproduced in full an email from Mr Gazal to the DCT dated 1 May 2025, seeking consent to vacate the hearing date. We shall return to the email, and the use made of it by the primary judge in that judgment.
It appears that in April 2025, Mr Rahal was retained by Mr Gazal in relation to the contempt motion.
The adjourned hearing commenced on 6 May 2025. Mr Kelly and Ms Scott of counsel appeared for the DCT, and Mr O’Connor of counsel appeared for Mr Gazal.
One option that is available to the court which I may well adopt subject to other issues is to allow the DCT to proceed with its application today rather than its case in chief, then allow a short adjournment and it is likely to be 27 May or 30 May to give Mr Gazal the opportunity to lead evidence in response, a further opportunity to read evidence in response in circumstances that I had made directions in November for him to do so.
Mr Rahal’s affidavit was not made available to this Court. However, Mr Gazal’s solicitors did include four letters from Dr Olav Nielssen, psychiatrist in the White Folder. They were central to Mr Gazal’s submissions in this Court.
It is necessary to be very careful dealing with them.
First, Dr Nielssen’s letters are dated 7 April 2024, 14 May 2024, 2 July 2024 and 22 October 2025. The first two dates are wrong. The hearing in this Court proceeded on the basis that they were brought into existence on or around 7 April 2025 and 14 May 2025. That is in part because, on their face, those two letters refer to documents and events in June 2024 and events in 2025, and in part because the letter of 22 October 2025 stated that there were errors as to the dates of the interviews conducted by Dr Nielssen, which had been on 1 July 2024 (shortly before the 2 July 2024 report), 7 April 2025 (the date of the 7 April 2025 letter) and 12 May 2025, two days before the 14 May 2025 letter.
The error in the date of the 7 April letter was corrected in the index to the White Folder. The error in the date of the 14 May letter was not corrected in that index. It will be convenient in what follows to refer to “the 7 April letter” and “the 14 May letter”.
Secondly, Mr Rahal’s affidavit of 5 May 2025 attached the wrong letter. The 2 July 2024 letter was attached, not the 7 April letter. The primary judge pointed this out when the affidavit was sought to be read, granted a short adjournment to permit counsel to deal with it, following which counsel sought to tender the 7 April letter and a letter of instruction dated 7 April 2025, which were marked MFI#3 and MFI#4 (the affidavit and its exhibit were MFI#1 and MFI#2). The letter of instruction was not provided to this Court.
The 2 July 2024 letter is seven pages long and follows a familiar form. It refers to an interview on 23 May 2016 in relation to a previous matter, a “health summary and report by Mr Gazal’s general practitioner, Dr Alex Andric, dated 25.6.24”, “Medical records from admissions to Sydney Hospital in January, 2018 and 14.6.24”, and a consultation with Mr Gazal and his wife on 1 July 2024. It said that the possibility of Mr Gazal exaggerating his condition had been raised when he presented to Sydney Hospital, but “it was soon apparent to the doctors who examined him that he had a disabling neurocognitive disorder”. Dr Nielssen expressed the view that Mr Gazal was unfit for prison, in part because Mr Gazal “would not fully comprehend the effect of imprisonment because of the degree of his cognitive impairment, and hence the retributive element of imprisonment would be irrelevant”, and in part because “New South Wales prisons cannot readily provide Mr Gazal with the necessary level of care”.
The 7 April letter referred to the earlier interviews, the documents mentioned in the 2 July 2024 letter, and further documents briefed, namely, an amended court notice with 96 charges of obtain financial benefit by deception from 2018-2020, a statement of facts, a criminal history, and “[a] report by a neurologist, Dr Alessandro Fois, dated 1.7.2024”. None of those documents appears to have been placed before the primary judge. None was provided to this Court. Dr Nielssen relied on those documents, but also upon his own examination of Mr Gazal, to conclude that he was permanently unfit for trial. Dr Nielssen noted that Dr Andric (the general practitioner) had written that he had seen Mr Gazal approximately fortnightly for ten years, and that Dr Fois (the neurologist) wrote that he had reviewed Mr Gazal on 17 occasions over a three year period.
In Roberts, experts were cross-examined in the appeal and the hearing of the appeal took place over the course of two days. The appellate court is entitled to take into account additional evidence (i.e., evidence that was not before the trial court) bearing upon the question of the accused’s fitness at the time of trial. The appellant in the present case may wish to rely upon evidence which was not before the primary Judge.
Those submissions were dated 13 November 2025, a week before the White Folder was filed. It is possible that at the date they were prepared, a decision was in the process of being made to seek to rely on the 14 May letter. It is also possible that there was confusion on the part of those preparing the White Folders and the 14 May letter was included by mistake. The wrong dates on Dr Nielssen’s letters, the fact that the error in the date of the 7 April letter was corrected on the index, but not that of the 14 May letter, and the fact that Mr Rahal had made an affidavit in the proceedings annexing the wrong letter all tend to favour the latter being the position. Indeed, it is possible that the footnote was directed to something quite different, namely, reports in the pending trial in the District Court which had been served but which at that stage either could not be used in this Court, or as to which a final decision had not been made as to their use. Nothing ultimately turns on why the position came about.
The point is that even the careful reader of the White Folder and Mr Gazal’s submissions was not told that the letter dated 14 May 2024 was wrongly dated. Nor was the reader told that it had never been sought to be tendered before the primary judge. Nor was the reader told that Mr Gazal was seeking to rely on it as further evidence in this Court which had not been sought to be placed before the primary judge. Indeed, the careful reader who noticed footnote 12 would think that there was the possibility that an application to adduce further or fresh evidence might be made in the future, rather than that in fact a wrongly dated document which had never been sought to be tendered before the primary judge had been included in the White Folder next to two others which had been sought to be tendered.
When the admissibility of the report was raised by one of us (Free JA), Mr Reynolds’ response was “I don’t understand there to have been any objection by my opponent to [it] being put before your Honours”. We do not regard that as a sufficient answer. The point is of general application. It is also important, given the prominence in Mr Gazal’s oral submissions to the ability to rely afresh on material not before the primary judge. Lest there be some misconception about the position, it is as well to be quite clear.
The position in this Court is well-settled. If evidence additional to that which was before the primary judge is to be relied upon, application is to be made by affidavit identifying the grounds for doing so. Rule 51.51 of the Uniform Civil Procedure Rules 2005 (NSW) provides:
51.51 Additional evidence (cf SCR Part 51, rule 19)
(1) This rule applies to an application to receive additional evidence.
(2) The application must be made by motion returnable on the return day or, with leave of the Court, on a later day.
Note.
Part 18 makes provision with respect to motions and notices of motion.
(3) The grounds must be stated in an affidavit.
(4) Evidence necessary to establish the grounds of the application, and the evidence the applicant wants the Court to receive, must be given by affidavit.
(5) The evidence of any party in response must be given by affidavit filed within the time directed by the Court.
(6) A party must, not later than the time limited for filing an affidavit under this rule—
(a) file as many copies of the affidavit as the Court may direct, and
(b) serve 3 copies of the affidavit on each other interested party.
The rule is in mandatory terms. Neither the motion, nor the affidavit, nor the timing contemplated by the rule occurred. It should have occurred.
Rule 51.51 serves an important purpose. First, it alerts the other side to an attempt to rely on material which was not before the primary judge. That is especially important where, as is not uncommon, a litigant is represented by different lawyers in this Court than at trial. Even if representation is unaltered, counsel who appeared at trial are unlikely to have a clear recollection about every document which was tendered. It is important for all parties, as well as for the Court, for the appeal books clearly to distinguish documents which were part of the record of the trial, and any further evidence which is sought to be adduced for the first time on appeal.
Secondly, in addition to fairness to the parties, r 51.51 is conducive to compliance with s 75A of the Supreme Court Act. In particular, s 75A(7)-(9) provide as follows:
(7) The Court may receive further evidence.
(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.
(9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.
Section 75A(8) makes it clear that the parties’ agreement does not entitle them to have an appeal heard and determined on the basis of evidence available at trial which was not tendered at trial. There remains the mandatory requirement that there be “special grounds”, absent which the evidence may not be received (save in the case of evidence concerning matters after the trial or hearing). The affidavit required by r 51.51 will provide an evidentiary basis for determining whether there are special grounds based on evidence.
We interpolate that some of Mr Reynolds’ submissions on this issue drew upon the practice of the Court of Criminal Appeal. Indeed, he sought leave, twice, to supply a list of decisions of that Court to assist our determination (an invitation which was unaccompanied by any explanation of why they had not been supplied in advance of the hearing). But a more fundamental reason why the invitation was not accepted is that the prohibition in s 75A(8) does not apply to new evidence in the Court of Criminal Appeal (contrast s 12(1)(c) of the Criminal Appeal Act 1912 (NSW)); in a criminal appeal the issue is whether there has been a miscarriage of justice: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10].
Thirdly, compliance with r 51.51 permits members of the Court preparing for and participating in an appeal to distinguish between the material before the primary judge and that which is new. That is very important. One reason is that a common complaint is that the primary judge failed to have regard to certain evidence. It is very important that there be a clear distinction in the materials supplied to this Court between documents before the primary judge which were disregarded or misapprehended, documents sought to be tendered but which were rejected (which ruling is sought to be reviewed on appeal), and documents which were never sought to be placed before the primary judge.
To be quite clear about this point of appellate procedure, it is not for a litigant to include additional material in appeal books, which had not been adduced at first instance, and then to wait and see if the other side objects. The party wishing to rely on material which was not sought to be placed before the primary judge should comply with r 51.51 and prove that material by affidavit, as well as identifying the grounds on which it is relied. This is necessary not least so as to enable the members of the Court to prepare for hearings efficiently. The significance of the obligation to confine appeal books to the materials before the primary judge will be apparent from ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (No 2) [2014] NSWCA 431. If this Court considered that there had been a deliberate attempt to place material in the White Folders which had not been the subject of a tender before the primary judge in order to confuse or deceive the other side or the Court, we would have no hesitation in calling upon one side to explain, on affidavit, how that occurred and why the matter should not be referred to the relevant professional body. The system of conducting appeals will break down if the legal practitioners on both sides cannot trust their counterparts to comply with the rules.
Here, the affidavit of Mr Rahal is sought to be read in support of an application to vacate this hearing, which has already previously been adjourned once in November 2024, by reason of a suggestion that Mr Gazal may lack capacity. I pause there to note that, as I understand the submissions that ultimately will be put by Mr O’Connor, who appears for Mr Gazal in respect of at least this aspect of the hearing, that submission goes to the possibility of a lack of capacity, as a matter requiring further investigation, and not necessarily to the proposition that lack of capacity is established.
My attention has been drawn, in respect of the application for leave to read the affidavit, to four documents, namely the affidavit itself (MFI 1), a bulky exhibit to that affidavit (MFl 2), a letter dated 7 April 2024 from Dr Nielssen (which is said to have been sent in April 2025 notwithstanding its date) and a letter of instructions dated 7 April 2025 from Mr Gazal’s solicitors to Dr Nielssen. It is necessary to have regard to those documents in some detail in order to address the application.
The application for leave to read the affidavit is opposed by the Deputy Commissioner of Taxation (“DCT”), on the basis that it is prejudiced by the attempt to read the affidavit, and tender the associated documents, in circumstances that there is plainly very late notice of the material. Mr O’Connor in turn draws attention to the significance of the question whether Mr Gazal has capacity, but that raises two matters. First, the significance of that question is relevant, not only to the significance of the evidence, but to the potential prejudice to the DCT from not being able to address that evidence. Second, that question must be assessed by reference not only to the significance of the question of capacity but also the cogency of the evidentiary material on which Mr Gazal seeks to rely.
Turning first to Mr Rahal’s affidavit, he refers to the fact that the DCT seeks to make several amendments to the Amended Statement of Charge, but I can put that question aside for the moment, where that issue can likely be addressed by case management, and in any event, the amendments would likely be allowed if they are not prejudicial to Mr Gazal and not allowed if they are prejudicial to Mr Gazal, in a way that cannot be addressed by case management.
Mr Rahal then notes that he was instructed to act for Mr Gazal in criminal proceedings in June 2024, nearly 12 months ago, and was informed of these proceedings, involving an application for contempt, and was provided with documents in relation to the application later in 2024. Mr Rahal submits that Mr Gazal did not have the money to defend the contempt proceedings, and refers to his understanding that Mr Gazal is, and was at that time, a bankrupt. Neither Mr Rahal nor Mr Gazal lead any more detailed evidence as to the financial position of Mr Gazal, or the position of entities associated with Mr Gazal, and the proposition that an individual is bankrupt of course says nothing as to the position of trusts or other entities of which that individual may have control. Mr Rahal indicates that he would not take on the matter unless a third party payer was involved who would pay money into trust and that did not happen at that time so his firm was not engaged. That observation raises more questions than it answers, so far as it appears that Mr Rahal was then engaged for the criminal proceedings, he was not involved in these proceedings and, given his attitude to funding, an inference can readily be drawn that funds were found to fund his engagement in the criminal proceedings but not in these proceedings. Mr Gazal’s choice to take that course is not explained.
Mr Rahal then refers to the circumstances in which Mr Gazal secured funding from an unidentified third-party payer in mid-April, those funds were then frozen for a period, and further funding was provided. It appears that Mr Rahal has done at least some work in respect of the matter, since mid-April, although his involvement in the matter was not disclosed to the Court or, it appears, the DCT until a notice of appearance was filed yesterday, and there was an appearance from Mr O’Connor of Counsel at a directions hearing in another aspect of the matter yesterday, indicating that this application would be brought today.
Mr Rahal in turn refers to an issue having been raised in the criminal proceedings as to Mr Gazal’s capacity to plead to the criminal charges. I bear in mind, of course, that, first, the question I now have to determine is whether late evidence should be permitted in these proceedings, and that question, or the question of capacity, is not to be determined by reference to the views which may have been formed by other courts in other matters on other evidence. Second, I bear in mind that the question is not whether a question has arisen as to Mr Gazal’s capacity, but whether there is evidence of a lack of capacity on his part. I should address the question whether leave should be granted to read Mr Rahal’s late affidavit on the basis that it is directed to whether Mr Gazal lacks capacity, as a matter of fact, not as to the question whether that question might be asked.
Mr Rahal in turn indicates that the basis for a referral on the fitness hearing in the criminal proceedings was a report obtained by his firm from Dr Nielssen, and he referred to exhibiting a report dated 7 April 2025. However, the report exhibited to his affidavit was not dated 7 April 2025, but 2 July 2024. It emerged, when that question as raised with Mr O’Connor, that a further report exists, which is also not dated 7 April 2025, but 7 April 2024, but appears to have been obtained in April 2025 and may have been misdated.
Mr Rahal in turn refers to his impression of Mr Gazal’s capacity, but that impression is plainly informed by Dr Nielssen’s report, to which he refers. Mr Rahal in turn refers to matters which he says he has observed in respect of Mr Gazal, and to the report having raised concerns for him about whether he could accept instructions from Mr Gazal. I appreciate that evidence has not been tested on cross-examination, and the question which now arises is whether leave should be granted to rely on it. There are two possible difficulties with it, the first being that, as Mr Rahal makes clear, he has in fact already accepted instructions from Mr GazaI in respect of the criminal proceedings, for nearly a year; the second being that he has accepted instructions in this matter, and has filed a notice of appearance, and presumably is taking instructions, as he acknowledges, in respect of the application to vacate the proceedings. Mr Rahal also suggests that the proceedings are complex, because the Amended Statement of Charge is 123 pages in length. Without expressing any final view, it is not immediately apparent to me that there is any particular complexity in the matters in issue, which are simple allegations of false invoices, although there are many of them, which explains the length of the Statement of Charge.
Mr Rahal in turn indicates that Mr Gazal is able to, and has, instructed him to vacate the proceedings, and refers to his broader concerns about capacity and his intention to take further steps to investigate capacity. Again, I pause to note a potential difficulty there, that this matter was once before adjourned in November 2024, and the only explanation for any failure to investigate capacity by Mr Rahal in the several months of that adjournment is the fact that Mr Rahal is only now retained, but that is not explained other than by reference to the fact that Mr Rahal has only now been funded to conduct this proceeding as distinct from the criminal proceeding.
Importantly, Mr Rahal in turn exhibits the letter dated 2 July 2024 from Dr Nielssen, which refers to an interview with Mr Gazal on 1 July 2024, now some nine or so months ago. Dr Nielssen there refers to questions asked of Mr Gazal, and to Mr Gazal’s responses, and to information which he was provided by Mrs Gazal. I bear in mind that much of the information there referenced is what Dr Nielssen was told by Mr Gazal or Mrs Gazal, and there is no reference to his having undertaken objective tests in order to assess that information. Dr Nielssen in turn refers to Mr Gazal’s past history, and to a document review, by reference to documents which are not in evidence in respect of his report.
As I noted above, that report is in turn sought to be expanded by a second report, dated 7 April 2024, but apparently received in April 2025, in response to a letter of instructions from Mr Gazal’s solicitors dated 7 April 2025. I note, first, that letter of instructions refers to several medical reports, described as “recent” medical reports (although one of them, from a GP, is dated June 2024 and the second, from Dr Nielssen, is his earlier report dated 2 July 2024) and unidentified previous reports provided by the solicitors to Dr Nielssen. That letter of instructions does not attach, or explain, the obligations under the Expert Witness Code.
Dr Nielssen’s letter dated 7 April 2024, but apparently provided in April 2025, in turn refers to having read and agreed to be bound by the Code of Conduct of Expert Witnesses, and refers to documents which he has been provided, including a report by a neurologist, Dr Fois, dated 1 July 2024, which is not in evidence, although Dr Nielssen places heavy reliance on it. Dr Nielssen in turn refers to a further interview of Mr Gazal, although he does not indicate when it occurred, and to further information provided by Mrs Gazal, again without indicating when that information was obtained. He then sets out Mr Gazal’s past psychiatric history and other medical history, which is largely drawn from his earlier letter of a year before, and undertakes a document review which is also largely drawn from this letter from the year before. He then refers to Dr Fois’ report, and to the fact that Dr Fois had reviewed Mr Gazal on 17 occasions over a period of three years, and provides an indication of what Dr Fois had found in the course of that review, which, as I noted above, is not in evidence.
Dr Nielssen in turn notes a possibility that Mr Gazal was exaggerating his condition, which he notes was raised at his earlier presentation at Sydney Hospital, but expresses the view, by reference to matters that are not in evidence, that others had formed the view that he had a disabling neurocognitive disorder, and notes Dr Fois’ opinion, that is also not in evidence, that the most likely cause was a functional neurological disorder.
The question then arises as to whether, in this context, I should grant leave to read Mr Rahal’s affidavit, which can only have utility in the context that the documents that are exhibited to it are tendered, and the further report of Dr Nielssen dated 7 April 2024 is also tendered, over objection which the DCT has foreshadowed will be made.
I bear in mind that, as Mr O’Connor indicates, Mr Gazal’s capacity is a matter of real significance and that the Court should be alert to the risk that Mr Gazal goes to hearing in this matter, without capacity. Having said that, I have ultimately concluded that, particularly bearing in mind the importance of that issue, I should not grant leave to read this late affidavit. I reach that result only by reason of the further difficulties which exist in respect of the supporting material have become apparent in the course of submissions. Mr Rahal, in expressing his view as to Mr Gazal’s capacity, has obviously heavily relied upon medical evidence, and particularly upon Dr Nielssen’s reports. Dr Nielssen’s first report in turn relies heavily upon matters which he was told by Mr Gazal and Mrs Gazal. Dr Nielssen's second report again relies heavily on those matters, and now relies heavily on evidence of conclusions reached by Sydney Hospital and Dr Fois, notwithstanding that neither those conclusions nor the other medical information provided to Dr Nielssen are disclosed.
It seems to me that there would be real unfairness to the DCT, and real prejudice to the administration of justice, in permitting the late tender of those documents, where the DCT would have no access to the documents on which they relied; no opportunity to subpoena those documents or require their production, because of the lateness of the reference to them, without vacating the hearing irrespective of the merit of Mr Gazal’s application seeking to do so; no opportunity to assess their content, or the extent to which they either supported or undermined the views which Dr Nielssen had expressed and which Mr Rahal has in turn expressing relying on Dr Nielssen’s views.
I recognise that the question of capacity is important, but that emphasises why the DCT ought to have been provided a fair opportunity to respond to this information, which could have been done by serving the affidavit in a timely way, or by previously disclosing the documents on which reliance would be based, including other medical reports, so that the DCT would not be left with neither access to those reports nor the opportunity to obtain them by compulsory processes.
I bear in mind, in all of this, that the only explanation for the lateness of the affidavit and the lateness of the other evidence which is sought to be tendered is effectively that Mr Rahal was retained late, but that in turn reflects observations as to Mr Gazal’s financial position, which are not sought to be established as a matter of fact, and an apparent choice to fund the criminal proceedings but not the defence of these proceedings, until that position was reversed at a very late stage. Even when that position was reversed at that late stage, on 16 April 2025, no step then seems to have been taken to draw the DCT’s attention to any concerns that Mr Rahal had then formed as to Mr Gazal’s capacity, or to the issues which had been raised in the criminal proceedings as to capacity, so that that question and the evidence directed to it was only raised yesterday. Here, there is an overwhelming impression of ambush about Mr Gazal’s approach to this issue, and the prejudicial effects of that ambush seem to me to be real.
For those reasons, I decline leave to read the late affidavit of Mr Rahal. It is obviously likely that, having regard to the views that I have expressed, I would similarly decline leave to tender the documents which are exhibited to Mr Rahal’s affidavit. However, that question would need to be addressed, and I would address it, having regard to any further submissions that the parties may wish to make in that respect, if those documents are sought to be tendered.
Pausing there, the primary judge stated that he bore in mind that Mr Gazal’s capacity was “a matter of real significance”, notwithstanding the defective way in which evidence was sought to be adduced of that capacity. The primary judge also observed that it was necessary for him to proceed in a way that was fair to the DCT. Both of those statements were and are self-evidently correct.
The primary judge further recorded that “there is an overwhelming impression of ambush” in the late retainer of Mr Rahal and the late service of selective medical evidence exhibited to Mr Rahal’s affidavit which had been served the day before the hearing. Something was sought to be made of that and similar statements in submissions in this Court, to which we shall return. However, it was not said that the characterisation disclosed error. Plainly it does not.
The result was the flagging of a disposition to reject the tender of the documents exhibited to Mr Rahal’s affidavit, but in circumstances where it must have been plain that much of the day set down for hearing had been consumed by the application, and where his Honour had previously flagged the possibility of a further day.
No appeal or application for leave to appeal is brought from the refusal to read Mr Rahal’s affidavit.
No attempt was made separately to tender any of Dr Nielssen’s letters. However, in light of the concluding paragraph, it is appropriate to proceed, favourably to Mr Gazal, on the basis that in substance the tender of those letters was rejected.
Mr O’Connor then advised that his brief was to be heard on the application to vacate, and to oppose the amendment to the statement of charge, but not on the “application proper” (ie the hearing of the motion that Mr Gazal be found guilty of contempt which had been fixed for that day). At that point if not before it would have been clear to the primary judge that a decision had been made to brief counsel only in an attempt to avoid the hearing of the charges of contempt which had been set down many months earlier, and not to defend those charges if the application to vacate failed.
The application to vacate was thereafter pressed on the basis of late service of the Court Book. It seems to have been served two days late. The primary judge refused the application, again giving an oral judgment, stating that he did not consider that the late service had much impact on the proceedings, and then stating:
In any event, it seems to me that all of these matters can be addressed by case management. So far as the tender of documents is concerned, Mr Gazal retains the ability to object to them, under s 135 of the Evidence Act, if they would be unfairly prejudicial to him. So far as Mr Chambers’ affidavit and the expression of opinions by Mr Chambers is concerned, Mr Gazal retains the ability to object to those opinions. or to seek to have them admitted with a limiting order under s 135 of the Evidence Act as submission, which is what they appear to be. Third, and perhaps most importantly, we have already lost nearly half of the hearing time available today, in dealing with preliminary matters, and we are likely to lose more in an amendment application. It may well be that the DCT’s evidence does not complete today and, if it does, I had already raised the possibility that the fact that, for whatever reason, Mr Gazal has only recently retained solicitors and counsel, can be addressed by allowing him an opportunity to hear the DCT’s case today, and then lead further evidence and make submissions in response on a second hearing day, on 27 or 30 May 2025, having had a further opportunity to lead that evidence and make submissions beyond that afforded to him in November 2024.
O’CONNOR: The course my learned friend seeks to continue, there may be a way to short circuit this. I just received instructions that the case management suggestion your Honour floated about 27 May is, in my submission, a way of dealing with what I will say is prejudice by reason of the proposed amendment so if the amendment was successful, we would consent to an order that the matter remain part heard with our option to file evidence and come back on the 27th being a date suitable to me of those two dates.
HIS HONOUR: Mr Kelly, while I may not have been as plain about that as I ought to have been in my last judgment, I had dismissed the application to vacate on the basis that I would be adopting case management techniques in respect of any prejudice, including allowing a further opportunity of Mr Gazal to respond. So, dealing with that in turn, I appreciate that the 27th of May may or may not be convenient to you and Ms Scott but I do take the view that this will be a part heard hearing and a part heard hearing with a higher degree of priority than most. Is there any objection to my now setting the 27th of May in place?
KELLY: No, is the short answer
HIS HONOUR: I note this matter will be stood over for a second day of hearing. I will defer till last thing in the hearing any question of evidence in response on the basis that hope springs eternal and you may even be able to reach agreement as to a timetable over lunchtime.
Out of all the customers that I’ve probably dealt with more frequently at ANZ, [Mr Gazal] was definitely the customer that stood out the most to me, mostly just because you don’t have somebody that comes in with Court orders for $40 million of freezing orders every day. So I did get to see him around once a week for a fair while …
Mr Georgopoulos’ evidence was completed before lunch. Mr Rahal did not seek to cross-examine him. At 2pm, Mr Rahal sought the Court’s leave for Mr Gazal to be excused for the remainder of the day. The judge said that Mr Gazal should feel free to come and go as he wished.
The DCT proceeded with its case. There was a great deal of affidavit and documentary evidence, which was read and tendered without objection. No witness was cross-examined. None of that material was before this Court.
Mr Kelly made submissions in relation to the evidence, following which there was a brief adjournment.
KELLY: May it please the court. I have had an opportunity to speak with my learned friend and we believe we agreed on some dates which we hope would be suitable for your Honour.
So, we were going to propose to your Honour that Friday 16 of May Mr Gazal deliver any evidence he wishes to deliver and any submissions and if my side wishes to deliver any evidence or submissions in reply we do so by Friday the 23rd of May, and then the hearing is on the 27th of May.
HIS HONOUR: Thank you. Well let me deal with that now and get that out of the way.
I extend the time for Mr Gazal to file and serve all evidence upon which he relies and his submissions to 4pm on 16 May 2025, no evidence to be filed or served after that date without leave. I direct the Deputy Commissioner of Taxation to file and serve all evidence on which it relies and its submissions in reply by 4pm on 23 May 2025, no evidence to be relied on if not filed and served by that date without leave.
And Mr Kelly you had at least one more transaction to go?
KELLY: I have had second thoughts and decided I won’t go there your Honour.
HIS HONOUR: Thank you. Well in those circumstances, it is likely this is a relatively efficient way to proceed because Mr Gazal will at least now have clear notice of the case he has to meet. I will now adjourn these proceedings to the second hearing date on 27 May 2025 again commencing at 10am.
The hearing continued on Tuesday 27 May 2025. Mr Gazal was represented by Mr Bagley and Mr O’Connor of counsel, while Ms Scott appeared for the DCT.
It was clear that no evidence had been served in accordance with the timetable directed by the primary judge, by consent, on 6 May 2025.
Mr Bagley was granted leave to file in court a motion seeking to vacate the hearing. That application was supported by an affidavit of Mr Andreh Georges. The affidavit had been made the previous day.
At the outset, his Honour made the following inquiry:
HIS HONOUR: Will you be also seeking leave to file in court the affidavit of Mr Rahal?
BAGLEY: No, your Honour.
HIS HONOUR: That is not sought to be filed?
BAGLEY: No, you Honour.
Leave was sought to read Mr Georges’ affidavit. It was acknowledged that it had been served the previous evening. It was said that it could not have been prepared earlier, because Mr Georges had only been appointed tutor the previous Friday, and the events to which he deposed had only occurred in the previous few days. The DCT complained of ambush, and that steps would have been taken to determine when Mr Georges had been approached to act as tutor. Nonetheless, the affidavit was permitted to be read.
Mr Georges deposed to his having been appointed Mr Gazal’s tutor (without the involvement of the Court) on Friday 23 May. He said he had been provided with a large volume of material, he visited Mr Gazal at home to go through the material. In the last (namely, the sixth) paragraph of the affidavit, he said that Mr Gazal was “incoherent”, “had little to no attention span” and when he did answer “it would be to tell me that he does not remember”. He said the longer he was there, the more angry and anxious Mr Gazal would get.
Mr Bagley confirmed that he did not rely on any medical evidence in support of his application.
Mr Bagley thereafter was heard on his application to vacate. The gravamen of his submission was that the tutor Mr Georges found himself unable to give instructions about the charge. He acknowledged that he had no answer by reference to evidence of why Mr Georges had not been appointed earlier. He acknowledged that those instructed by Mr Gazal had not sought to meet the charges faced by their client with appropriate urgency. Ultimately he said that Mr Gazal should nonetheless be provided with further time in order that there be a procedurally fair hearing of the serious charges of contempt.
At the conclusion of his submissions, the primary judge raised with counsel the difficulty with Mr Georges’ evidence, insofar as it was consistent with a lack of capacity, and also a feigned lack of capacity. His Honour also returned to the decision not to adduce medical evidence:
HIS HONOUR: … I should just draw something to your attention and seek your response to it.
So far as Mr Georges gives evidence in paragraphs (b) and (c) of paragraph 6 of what occurred in a meeting with Mr Gazal, there is here no evidence in this application of lack of capacity other than what Mr Georges observed.
BAGLEY: Yes, your Honour.
HIS HONOUR: I appreciate that there have been previous occasions on which attempts have been made to address aspects of that matter, but that evidence is not led.
BAGLEY: It is not.
I will deal with this application on the assumption, favourable to Mr Gazal, that Mr Georges’ evidence indicates a lack of capacity on the part of Mr Gazal. I should, however, note that I do not reach a finding to that effect. It seems to me that there are significant difficulties with reaching such a finding. The first to which I have pointed above, is that no objective evidence is led to seek to support that finding, and the medical reports on which Mr Gazal had previously relied, whatever their deficiencies, are not tendered. The second difficulty is that Mr Georges’ evidence, of what he observed of Mr Gazal, is logically consistent with at least three positions, the first being that Mr Gazal lacks capacity; the second being that Mr Gazal is feigning, or exaggerating, a lack of capacity; and the third being somewhere between the two. I recognise that, in the ordinary course, persons who have capacity do not feign lack of capacity; but I also recognise that, where proceedings of a criminal nature, or proceedings for contempt are brought, it is not unknown for a defendant to rely on illness, or possibly lack of capacity, as a means of avoiding engaging with the proceedings on their merits. I do not reach any finding that Mr Gazal is doing so, and there would be no basis to reach that finding. I simply acknowledge that there are a range of possibilities, and it is not possible to determine from Mr Georges’ evidence, which of them is the fact here.
I have addressed these matters to indicate that, although I have assumed a lack of capacity on Mr Gazal’s part, I cannot reach a finding that that lack of capacity exists, and I also cannot reach any qualitative finding as to the extent to which any lack of capacity is disabling, or prevents his giving instructions, or prevents his engaging in the detail of the proceedings, reflecting itself in any lack of recollection or reluctance to engage with documents. I must bear in mind, in that regard, that the proceedings have now been conducted for some time by solicitors acting for Mr Gazal, presumably with the benefit of instructions, before Mr Georges was appointed as his tutor.
There is a potential difficulty with the opening sentences of each of those passages, and Mr Reynolds sought to make something of it in his oral address. If read strictly, the assumption of a lack of capacity is inconsistent with the ensuing words “I do not reach a finding to that effect” and “I cannot reach a finding that that lack of capacity exists”. It is possible that something was garbled in the transcript, and that his Honour actually said “I have assumed there may be a lack of capacity”. It is possible that the transcript is accurate, but that his Honour’s sense was that he accepted that Mr Georges expressed a lay opinion which was capable of bearing upon the question whether Mr Gazal lacked capacity. There are other possibilities, and we are conscious that a deal of latitude is to be given to ex tempore reasons: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]; Guan v Li (No 2) [2022] NSWCA 261 at [32].
The evident sense is clear. His Honour proceeded on the basis that Mr Georges’ evidence raised the possibility of there being a lack of capacity, but was unable to be satisfied that there was any such lack of capacity, in light of the deliberate decision not to tender medical evidence, or any other evidence save from a man who had seen Mr Gazal the previous Friday evening, and in light of the possibility that Mr Gazal might have been feigning or exaggerating a lack of capacity. This was in a context where his Honour was not dealing with an application for a hearing to determine the fitness to plead of Mr Gazal, based on a contention that a real and substantial question as to his fitness had arisen. The application was confined to an application to vacate the hearing to allow the tutor to clarify matters generally, in relation to which questions of capacity were raised only tangentially.
On that basis, the primary judge returned to the application before him, which was to vacate the date. He rejected it on the basis that there was no good reason to think that Mr Georges’ ability to respond might improve if the date were vacated. He added that there were public interest factors, including that the prompt resolution of a charge of contempt was important to the community’s confidence in the administration of justice.
Pausing there, it is convenient to return to the primary submission advanced in Mr Gazal’s written submissions, namely, that on the basis of what occurred on 6 and 27 May, the primary judge erred in proceeding to make findings of contempt without conducting a hearing into Mr Gazal’s fitness to plead. Those submissions appear to have been prepared without the advantage of reviewing the transcript of 6 and 27 May.
In oral submissions in this Court on behalf of Mr Gazal, the point was made directly, referring to what was required of the hearing which occurred on 27 May 2025:
… where my client knows that this [ie fitness to plead] is an issue and gets a full opportunity, first of all, to adduce all the evidence that he wants to adduce on it, not just an affidavit from Mr Georges; gets to put these reports in where we know that’s the issue and all the experts can be called. There were experts on the other side as well. You can have a full, as it were, trial and determination of fitness to plead by the judge. That’s what needs to happen, and I submit this doesn’t go anywhere near it.
REYNOLDS: … Both principle and common sense suggest that, because one only has to flip through these reports that are in this white folder, not even read them, to see that Dr Nielssen’s gone through what I’ll call the Presser criteria and there's a real issue. So, we need to hunker down, we need to have a hearing, we need to have experts on both sides –
LEEMING JA: Hunkering down has been the problem in this case, because your junior and his predecessor … seem to have adopted the approach of it was good enough to show an expert report on the night before or mid-morning of the hearing.
REYNOLDS: But again, that’s just a matter that the judge needs to handle by saying “Well this isn’t enough time. Mr Commissioner, or counsel for the Commissioner, do you want time to put on a response and adjourn it?” But once this sort of issue is raised - and it may be very irritating, particularly to someone used to [the] commercial list, where you can jam people on and what have you and they’re all big boys and girls. But where there’s an issue about someone who may or may not be fit to plead and there’s a criminal or at least quasi-criminal proceeding, then if it takes time, it takes time.
That submission was not renewed after this Court made a copy of the transcript available to the parties.
In light of what is established to have occurred, the difficulties confronting Mr Gazal’s submission are manifest. It is clear that the primary judge regarded Mr Gazal’s capacity as an important issue. It is clear that the primary judge also rejected Mr Gazal’s reliance on evidence, served only the day before the hearing, in a manner which could not be tested by the DCT. His Honour did so because he was concerned to ensure a procedurally fair hearing. However, in order to accommodate the application which Mr Gazal had flagged, and notwithstanding the sustained non-compliance hitherto with the directions to serve evidence, his Honour adjourned the hearing to a second day, three weeks later, and accommodated directions which Mr Gazal (jointly with the DCT) proposed, for the provision of evidence in response to the amended statement of charge. Thereafter Mr Gazal did not comply with those directions. At the adjourned hearing, where Mr Gazal was represented not only by the solicitor and counsel who had appeared on 6 May, but also by a second (more senior) counsel, there was a deliberate decision not to adduce any medical evidence, including the reports of Dr Nielssen which had been sought to be tendered on 6 May or the further report dated 14 May, let alone any of the evidence available to Mr Gazal’s lawyers (such as the evidence from Dr Fois, the neurologist who had reviewed him on 17 occasions, or Dr Andric, his general practitioner for the last decade). Instead, there was served, late, lay evidence from a newly appointed tutor, based on a single meeting with Mr Gazal the previous Friday, which was evidently incapable of establishing whether Mr Gazal was incapable as opposed to feigning or exaggerating incapacity.
The proposition that this Court should grant leave for an extension of time in order for an appeal based on evidence which was the subject of a deliberate forensic decision not to adduce on the occasion specially fixed for such evidence to be adduced is singularly unattractive, especially in circumstances where no explanation is provided for the decisions taken with the benefit of solicitor and counsel.
Even so, if the prosecution had completed, and especially if Mr Gazal had been committed to a prison, then this Court might perhaps entertain such an application, especially if it were accompanied by a full account, based on evidence, of why the deliberate forensic course adopted by counsel formerly retained had occurred. We mention this because there was an occasion during Mr Reynolds’ submissions when he referred to a potential claim that his predecessors had been incompetent within the meaning of R v Birks (1990) 19 NSWLR 677. Mr Reynolds made it clear that he had not “in fairness to those involved, done a full investigation of it”. It was in this connection that the Court renewed a concern which had been expressed at the outset of the hearing, namely, that the transcript of 6 and 27 May had not been made available.
LEEMING JA: The question is whether an application was made to put [the 14 May letter] into evidence before him.
REYNOLDS: That’s my recollection and as your Honour appreciates, there’s this infuriating lack of precision where they’re stating –
LEEMING JA: There’s two infuriating things: one is [Dr] Nielssen’s inability to get the year right – I’m guilty of that sometimes – and the other is we don’t know by reference to a transcript what happened before the judge on either of those days.
REYNOLDS: Can we deal with it then this way. I’m sure the transcript will clarify that and we will - even if strong means have to be used to create that result, that will happen.
When the hearing resumed after lunch, Mr Reynolds made submissions about what occurred on 27 May 2025. He said, repeatedly, that “the solicitor just sat there”. He then added “I think I’m being informed that I’ve mischaracterised what happened” at which point the Court supplied a copy of the short (12 page) transcript of 27 May 2025, indicating that it had been obtained from the file against the possibility that Mr Gazal’s legal representatives might not do so.
The point of the foregoing is as follows. At the centre of the case put forward by Mr Gazal was the complaint that there had been a real and substantial issue of Mr Gazal’s fitness to plead raised on 6 and 27 May 2025 before the primary judge. As it turns out, the course adopted by counsel appearing on those occasions was unusual and unexpected. This was a case where the transcript was necessary in order to hear and determine the concurrent hearing which Mr Gazal requested and obtained of his application for leave to appeal, as well as of his appeal. The fact that the transcript was not supplied by Mr Gazal’s lawyers, but by the Court after the luncheon adjournment, complicated the resolution of the appeal. In particular, it led to submissions being made that would not have been made had there been a clear record of what had occurred. One indication of this was that at the outset of the hearing Mr Reynolds accepted that “the Nielssen reports were not admitted into evidence by the primary judge, but at some level they were proffered to him and I think he rejected their content” (Transcript, 18 February 2026, p 1); in fact the position is that only two were sought to be tendered on 6 May, none was sought to be tendered on 27 May; two (the 7 April letter and the 22 October letter correcting dates) were sought to be tendered at the hearing on 24 October, and the 14 May letter, the only one prepared with a view to dealing with the amended statement of charge, was never at any stage sought to be tendered.
The failure to include the transcript which was obviously necessary, and the inclusion of the 14 May letter, which had never at any stage been sought to be tendered before the primary judge, without making any application to comply with r 51.51 or to engage with s 75A(8) of the Supreme Court Act, suggests that greater attention was required to prepare the White Folders than occurred in this case.
It is unnecessary to take this any further, because there are further reasons which tell powerfully against the granting of an extension of time necessary for this belated challenge which have not so far been disclosed.
As noted at the outset, his Honour proceeded thereafter by reserved judgment delivered on 24 June 2025 to find that the contempts alleged were made out.
Orders were made on 11 July 2025 incorporating those findings, and setting down a further hearing, on final orders and costs, on 2 September 2025.
That hearing was vacated and instead the further hearing was set down to take place on Friday 24 October 2025. Why that occurred is not apparent on the face of the materials in the White Folders.
An affidavit read in this Court in support of the extension of time stated that Mr Reynolds and Mr Woods were retained on the penalty hearing. It was said that in the course of preparing for that hearing, it was noticed that there was the basis for an appeal. A notice of appeal, including (appropriately) prayers for orders for an extension of time, was filed on 9 October 2025.
There was a hearing in this Court (constituted by Kirk JA) on Monday 20 October 2025, following the DCT promptly disputing the competency of the appeal in accordance with r 51.41 of the UCPR. This aspect of the dispute between the parties was resolved by Mr Gazal filing a summons seeking leave to appeal in the event that leave were needed, and the DCT indicating that it would consent to a stay of execution. The primary judge was apprised of this as follows at the outset of the hearing on 24 October:
WOODS: … Your Honour then made orders on 11 July, and some time after that, in early October, Mr Gazal filed a notice of appeal in relation to your Honour’s decision as to his liability for contempt. After filing the notice of appeal a notice of motion was filed in the Court of Appeal seeking a stay of the proceedings before your Honour pending the appeal. That motion was listed before Justice Kirk on Monday, 20 October – the Monday that’s just gone.
My learned friend and I appeared before Justice Kirk on Monday. I didn’t press the application for a stay of proceedings pending the appeal based on an understanding, which was communicated to his Honour, that the plaintiff in this proceeding would consent to a stay before your Honour of your Honour’s orders. I just give your Honour that background.
HIS HONOUR: I’m sorry. A stay of which orders?
WOODS: Of any orders that your Honour might make in relation to penalty and costs.
HIS HONOUR: Yes.
Returning to the hearing on 24 October, Mr Woods thereafter submitted that “because this issue of fitness to plead remains undetermined, it would not be appropriate for your Honour to impose punishment today, unless and until your Honour has dealt with that issue”. There ensued an exchange, where the primary judge referred to authorities to the effect that once a tutor had been appointed, questions of capacity were addressed, and Mr Woods submitted that there was a “supervening principle” which applied in civil proceedings for contempt, which is that the Court must determine, if an issue of fitness arises, whether the alleged contemnor is fit to plead. Mr Woods took the primary judge to Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002; [2018] NSWCA 306 and (very properly) noted that it was a case of criminal contempt rather than civil contempt. After referring to other cases, he read the affidavit of Ms Samadi (who is Mr Gazal’s wife) which deposed to her having become Mr Gazal’s tutor, and to his medical condition deteriorating.
There followed an attempt to renew the tender of Dr Nielssen’s 7 April 2025 letter, accompanied by the letter of 22 October 2025 correcting some of the errors in dates, but it was rejected:
HIS HONOUR: I reject reliance on the report of Dr Nielssen dated 7 April 2025. It is plain enough that if a late expert report is to be filed then, in this case, the other party, the Deputy Commissioner of Taxation can only give notice that the expert is required for cross-examination at the time it is advised that reliance on that report will be sought. Here it appears the first time it has been indicated that that report will be relied upon is this morning; the Deputy Commissioner of Taxation has, perhaps unsurprisingly, given notice that Dr Nielssen is required for cross-examination; and Dr Nielssen is not available for cross-examination. In those circumstances I reject the expert report of Dr Nielssen, which I will mark MFI 1.
MFI #1 REPORT OF DR NIELSSEN DATED 07/04/25
I add one further thing. It seems to me that, given the obligations of the parties under s 56 of the Civil Procedure Act, it is by no means too much to ask of a defendant in proceedings of this kind that, if it seeks to rely, at the last moment, on any expert report, it should take steps to ensure that the relevant expert will be available for cross-examination, at least by telephone, and I would have permitted cross-examination by telephone, had the expert been available at all.
WOODS: Just so that the defendant’s position is clear about the Court’s obligations when a question of fitness has arisen, in my submission, the appropriate approach for the Court to take is a less adversarial approach to the determination of the issue, and I don’t advance that submission about procedure as some kind of excuse for the late provision of the material, but I want to make clear to your Honour that the explication of principle in the cases is consistent with the resolution of issues as to the accused’s capacity or fitness to be tried, even where neither party is seeking to agitate the issue.
If your Honour were to - and your Honour has - rejected the tender of Dr Nielssen’s reports on this question of fitness today, then it would be appropriate, given that the reports express an opinion by the psychiatrists that Mr Gazal is unfit for your Honour to adjourn the proceedings so that the issue can be resolved and so that your Honour can consider Dr Nielssen’s opinions.
HIS HONOUR: But with the greatest of respect, this is the step I’m still not quite following. I’ve raised it with you on several occasions. All of this turns upon an inference that a question arises as to Mr Gazal’s capacity. At the moment, on every occasion on which your client seeks to raise the question, it does so by the service of evidence at the last possible moment so that the Deputy Commissioner of Taxation will have no capacity to test it, and in those circumstances, perhaps unsurprisingly, that evidence has now been rejected once before on the basis that is was so late that the Deputy Commissioner of Taxation would be deprived procedural fairness, now on the basis that the indication of a wish to rely on it was given so late with the Deputy Commissioner of Taxation having indicated a wish to cross-examine will not have the opportunity to cross-examine.
All of these could readily have been resolved on the last occasion by your client giving notice that the evidence on which it relied a reasonable time before the hearing, as the rules required, on this occasion writing to the Deputy Commissioner of Taxation a week ago saying that Dr Nielssen’s reports would be relied upon so that the Deputy Commissioner of Taxation had the opportunity to indicate a week ago that Dr Nielssen would be required for cross-examination. The difficulty I have is that the question whether a question of capacity arises depends upon the evidence before me. It is up to your client, is it not, to lead evidence in a way that allows procedural fairness to other parties. You cannot, it seems to me, create such a question by a bare assertion and then conduct which deprives the other party of any opportunity to engage with it.
There followed further exchanges on that point, following which something much more serious occurred, which would not be mentioned but for the reliance which was placed upon it by Mr Reynolds in his oral submissions in reply. The primary judge put Mr Woods squarely on notice of the possibility that he might find a “systematic and calculated contravention of s 56 of the Civil Procedure Act in respect of the conduct of these proceedings by your client, amounting to a systematic process of trial by ambush”. An opportunity was provided to respond, and counsel did so, denying the proposition. A further opportunity was given to counsel to respond to the proposition that as a matter of empirical observation, each time where reliance was sought to be placed on medical evidence, that occurred in a way which did not give the DCT a chance to respond. Mr Woods realistically acknowledged the force of the observation.
In this Court, Mr Reynolds relied on what was said during the hearing to support the submission that the matter should not be remitted to the Court constituted by the primary judge.
Mr Woods had not appeared in either of the hearings in May 2025. He may or may not have been briefed with the transcript of those hearings. However, he was plainly aware of the fact that the primary judge had rejected the tender of Dr Nielssen’s 7 April letter, on the basis that it had only been supplied the previous day. He was also armed with instructions that Dr Nielssen was unavailable on 24 October. The likely if not inevitable consequence of seeking to tender Dr Nielssen’s letter without notice coupled with an inability to make him available for cross-examination would be its rejection.
The transcript may not record everything which was apparent to the primary judge on the occasion. The transcript is at least suggestive of the proposition that the rejection of the without notice tender of already-rejected expert evidence from an unavailable psychiatrist was foreseen and expected and was intended to constitute the basis of an application to vacate. If so, that would properly ground the conclusion that there had been a conscious disregard of the ethical and statutory obligations of legal practitioners in conducting civil litigation in the Supreme Court of New South Wales. There is nothing untoward in his Honour raising that potential finding for counsel’s response. Nor, to be clear about it, was a submission made in this Court that there was no basis for his Honour to have done so.
Mr Woods also sought to tender two further reports from Dr O’Dea, who was said to have been retained by the Commonwealth Director of Public Prosecutions to provide a report in criminal proceedings brought against him. Once again, the attempt to rely on the evidence of Dr O’Dea was made without notice and was rejected. No attempt was made to adduce evidence of Dr O’Dea’s reports in this Court. (It is possible that these reports explained the reference in footnote 12 of Mr Gazal’s submission in this Court to the potential of further evidence.) Mr Reynolds mentioned them, and also said that they had been prepared on behalf of the DCT. Mr Barnett said that was not so. If they had been obtained for the purpose of a criminal prosecution in the District Court, then the DCT is unlikely to have been the client. But as they are not before this Court, the dispute cannot be resolved, as well as being entirely academic. Mr Gazal’s application in this Court falls to be determined by reference to the evidence before it, and not statements about other documents which may or may not exist which are not before it.
The primary judge rejected the application to vacate, and found affirmatively that Mr Gazal had capacity: Deputy Commissioner of Taxation v Westmeat Development Pty Ltd as trustee for Westmeat Development Trust [2025] NSWSC 1571. His Honour did not make a finding that there had been a systematic and calculated contravention of s 56 of the Civil Procedure Act. His Honour addressed extensively the consequences of the appointment of a tutor.
The decision recorded on the coversheet of the judgment, which is published on Caselaw, is:
The Court finds that no serious question as to Mr Gazal’s lack of capacity raised by admissible evidence. Matter relisted with a view to allocating a hearing date.
I should first address the applicable principles, both in their general application, and in the context of a criminal, and possibly a civil contempt. The latter question has been raised for the first time in the course of submissions today.
I first turn to the general position, where Division 4 of Part 7 of the Uniform Civil Procedure Rules (“UCPR”) proceeds on the basis that if, as a matter of fact, a person is under legal incapacity, that person may not commence or carry on proceedings except by a tutor. While those provisions permit the Court to appoint a tutor, they also provide a mechanism by which a tutor may be appointed on a person's behalf, and I have noted above that that course was adopted by Mr Gazal, initially in appointing Mr Georges and subsequently in appointing Ms Samadi as his tutor.
I should also note that the relevant provisions define, in UCPR r 7.13, the concept of a “person under legal incapacity” which includes a person who is incapable of managing his or her affairs, and that s 3 of the Civil Procedure Act 2005 (NSW) in turn provides that a “person under legal incapacity” is “any person who is under a legal incapacity in relation to the conduct of legal proceedings”.
That concept has been the subject of consideration by earlier authority, and by authority in this Court. In Farr v State of Queensland [2009] NSWSC 906 at [15], Price J referred to observations in Masterman Lister v Brutton and Co [2003] 3 All ER 162 at [75] where the Court observed that
…the test to be applied...is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of these proceedings.
I also note that these provisions were reviewed by the Court of Appeal in Mao v AMP Superannuation Ltd [2015] NSWCA 252 (“Mao v AMP Superannuation”), where Beazley ACJ observed (at [50]) that there is no automatic stay of proceedings simply because a Court had determined that a party is a person under legal incapacity, and also noted that proposition could be critical in circumstances where the relevant party is a defendant. That is, of course, the case in respect of Mr Gazal here.
Subsequently, in Nitopi bht Nitopi v Nitopi [2022] NSWSC 1677 at [56] (“Nitopi”), Schmidt AJ referred to the established proposition, which was put by Mr Barnett SC, with whom Ms Scott appeared for the DCT, and as I understood it, not contested by Mr Woods or Mr Gazal, that a person’s legal capacity is generally presumed, unless incapacity is established by medical evidence, unless the lack of capacity is so clear that medical evidence is not required. Her Honour also there referred, in that case, to the fact that a consideration of lack of capacity required reference to what was involved in the conduct of particular proceedings: Azar v Kathirgamalingan [2012] NSWCA 429 at [168]. Her Honour also there referred (at [63]) to Mao v AMP Superannuation for the proposition that a lack of capacity did not lead to an automatic stay of the proceedings.
I do not understand that any of those propositions, in respect of the conduct of proceedings in this Division generally, were in contest between the parties, although I recognise that limited attention was given in the course of submissions. If these provisions apply in the usual way, it is not apparent that the contempt proceedings should not continue against Mr Gazal, where his interest at all relevant times has been protected by the appointment of a tutor.
His Honour thereafter turned to the principles applicable in criminal prosecutions, to a concern expressed by Darke J as to whether those principles applied to civil contempt proceedings in The Owners Strata Plan 21372 v Banovic [2017] NSWSC 177 at [4], and to what was said in Kostov v YPOL Pty Ltd by this Court in a civil proceeding for criminal contempt, to which we shall return.
The primary judge then ruled on Mr Gazal’s lack of capacity. His Honour relied, in part, on evidence of communications by Mr Gazal to the Court and the DCT, which were tendered by the DCT and which on their face did not suggest a lack of capacity, and in part upon the history of the litigation. The dispositive reasoning is at [30]-[41]:
With that background, I now turn to the question of the applicable evidence. Here, several features of the conduct of these proceedings become more significant. I have pointed above to the presumption, which applies unless displaced, that Mr Gazal has capacity, as recognised in Nitopi and in Banovic. I have also noted above that, at least since 6 May 2025, Mr Gazal, by his legal representatives, has raised a claim that he lacks capacity and that the proceedings against him should be adjourned or should not continue for that reason. It is notable, however, that when that matter was raised on 6 May 2025, by Counsel asserting that matter, it was done in a manner that would deprive the DCT of procedural fairness, so far as its ability to test the evidence that was relied on for that proposition was concerned. For that reason, the evidence that was then relied on was rejected. When the matter was reagitated before me on 27 May 2025, that proposition was, again, asserted, but the evidence that had previously been relied on was not sought to be read.
When the matter was heard today, it was conducted in a manner that had similar features to the conduct of the proceedings on 6 May 2025, although the difficulties which arose then were arguably larger still today. Initially, without notice to the DCT, Mr Woods, who appeared for Mr Gazal, sought to tender a report of Dr Nielssen, which Mr Gazal had previously sought to tender on 6 May 2025, and a report dated 22 October 2025, obtained three days ago from Dr Nielsen, which was directed to correcting an error as to the date of his earlier report.
Plainly, at least the legal representatives of Mr Gazal and Ms Samadi as his tutor, and possibly Mr Gazal, had previously directed their attention to the question whether this evidence should be relied on today, because they have gone to the trouble of obtaining an updated report on 22 October from Dr Nielssen, so as to facilitate the reliance on that evidence today. It is striking, however, that, in a recurrence of the practice which was adopted on 6 May 2025, they did not advise the DCT in advance that they proposed to rely on Dr Nielssen’s report today, so as to allow the DCT even a minimal opportunity to engage with that report. Instead, that report was deployed without notice to the DCT at the commencement of the hearing today, in circumstances where the DCT would, for example, have no opportunity to cross-examine Dr Nielssen, who the Court was informed would not be available for cross-examination. The report was rejected on that basis and under s 135 of the Evidence Act 1995 (NSW) (“Evidence Act”), and I have set out my concerns with the procedure which was there adopted by Mr Gazal and his representatives in an earlier judgment.
The matter did not end there because, half way through the hearing this morning, and again without notice to the DCT, Mr Woods identified the existence of two further reports of Dr O’Dea, apparently obtained by the Commonwealth Director of Public Prosecutions (“DPP”) in criminal proceedings against Mr Gazal, and sought to tender those reports in these proceedings. I put aside any question as to any application of the rule in Harman v Secretary of State for Home Department [1983] 1 AC 280 in respect of these documents, where that question was not addressed before me.
What was more significant today was that, as had occurred on 6 May 2025, and as had occurred in respect of the reports of Dr Nielssen at the commencement of the hearing today, the reports of Dr O’Dea were also sought to be tendered without notice to the DCT that they would be tendered, and without allowing the DCT an opportunity to respond to them or even an adequate opportunity to absorb them. What is notable about this course is that, although an assertion of Mr Gazal’s lack of capacity is made, from the bar table and in the conduct of proceedings on 6 May and again today, it is coupled with a recurrent and continuing approach of causing that assertion to be untestable, by depriving the DCT of the opportunity to respond to it. I reach no conclusion that this course is intentional where, as I noted in my earlier judgment, it is sufficient to observe that it is objectively recurrent. I also rejected the tender of this evidence under s 135 of the Evidence Act.
The question, then, where the evidence of Dr Nielssen and Dr O’Dea have now been excluded by reason of s 135 of the Evidence Act and the unfair prejudice to the DCT arising from reliance on those reports in the circumstances in which they were deployed, whether the submissions that have been made, on Mr Gazal’s behalf, combined with the evidence that remains, are sufficient to displace the presumption of Mr Gazal’s capacity and raise a question as to his capacity, in the manner noted above. I recognise, as Mr Barnett fairly conceded for the DCT, that in some circumstances the fact that legal advisors raise a concern as to the capacity of a person may be sufficient to raise a question as to that manner. I do not accept that is the case here. I give significantly less weight to the matters raised by Mr Gazal’s legal representatives, where they are raised in a manner that deprives the DCT, repeatedly, of a fair opportunity to respond to them. An inference is plainly available, in those circumstances, although it is not necessary to draw it to determine this aspect of the matter, that the concerns are strategic in character, where they are raised in a way that is calculated, in the sense I have noted above, to deprive the DCT of an adequate opportunity to respond to them.
Mr Gazal also reads the affidavit dated 23 October 2025 of his wife, Ms Samadi, now his tutor, which was read by leave although it was also served on the day before the hearing. Ms Samadi’s evidence deals only in small part with matters which may give raise any question of lack of capacity on Mr Gazal’s part. She refers to his physical deterioration, and his use of a wheelchair, and to a loss of muscle in his legs, and all of those matters are no doubt relevant to Mr Gazal’s physical wellbeing, but do not impeach his capacity to deal with a matter of this kind. She refers to a lack of clarity in his speech and that he "sometimes" has trouble expressing himself, in a manner which plainly indicates that is an occasional issue. She notes the need for her to continue to provide emotional support to Mr Gazal, during episodes of confusion or distress, but that does not go so far as to suggest that Mr Gazal lacks capacity, in the relevant sense, particularly when provided with such support. She observes a “more deterioration” in his condition, since a previous affidavit (which was not read), and refers to “frequent” episodes of disorientation and to his “often” not responding to verbal cues, but that again does not indicate a lack of capacity to engage with the legal issues raised by the application. I also bear in mind, of course, that Ms Samadi, with no criticism of her, would also see these issues through the perspective of a spouse, with an understandable concern with her husband's wellbeing, and does not address, and likely is not qualified to address, the more specific question whether Mr Gazal has sufficient capacity to address the legal issues arising in these proceedings.
On the other hand, the DCT draws attention to communications between Mr Gazal and the Court, through April and May 2025, indicating an apparently alert involvement of Mr Gazal in respect of his application for legal aid, which was not successful, and his appeal from the refusal of that application. Those communications culminated in an email dated 1 May 2025 to the DCT, sent several days before it was put at the hearing on 6 May 2025 that Mr Gazal lacked capacity. I should quote that email in full, since it is not the kind of email which one would expect to be written by a person who lacked capacity, in the sense of a lack of understanding of or a lack of the ability to engage with the proceedings.
“I confirm that I first submitted my Legal Aid application on 8 November 2024, copy of confirm attached.
I received a further email on 11 November 2024, copy attached.
The application was refused on 2 April 2025, and I was notified on the same date.
I lodged the appeal on 3 April 2025, copy attached.
I received confirmation from Legal Aid after I chased them up about my appeal on 16 April 2025. Copy of reply from Legal Aid when I chased them up stating it would take six - eight weeks is attached.
Would you confirm your consent to vacate the hearing date.”
Several observations should be made about this email which, obviously and importantly, was sent by Mr Gazal personally. First, it indicates that Mr Gazal had the capacity to, and did, lodge a Legal Aid application; second, he was alert to the dates on which events occurred; third, in April 2025, he had the capacity to lodge an appeal for the dismissal of his Legal Aid application; fourth, he had the capacity to recognise that it would be desirable, in order to obtain an adjournment of the contempt proceedings, to seek to obtain the DCT's consent; and, finally, consistent with the events prior to and during the hearings before me, he had the capacity to appreciate that it would be in his interests to adjourn the contempt proceedings, and likely not only in respect of his unsuccessful Legal Aid application.
I also bear in mind that the last email, which I quoted above, is dated 1 May 2025, and that was five days before submissions were put before me, on 6 May 2025, that notwithstanding Mr Gazal's coherent email of 1 May 2025, he lacked capacity in respect of the issues to be determined before me. I also bear in mind, as I observed in my judgment of 6 May 2025, that it is apparent that Mr Gazal, at least before a tutor was appointed, had been engaging with legal advisers, at least in respect of criminal proceedings and that manner is also inconsistent with a lack of capacity.
In summary, here, there is, I recognise, a repeated assertion by Mr Gazal’s legal representatives of his lack of capacity. On each occasion on which Mr Gazal seeks to lead evidence to establish that lack of capacity, he does so in a way which is calculated to deprive the DCT of a fair opportunity to respond to it, and that evidence has now been twice rejected on that basis. Mr Gazal is presumed to have capacity; it seems to me that his contemporaneous communications are inconsistent with a lack of capacity, and those contemporaneous communications took place shortly before matters were listed before me on 6 May and 27 May 2025. There is also, as I have noted above, the fact that Mr Gazal has apparently had sufficient capacity to instruct legal representatives, and those legal representatives have been comfortable with accepting his instructions, in a period prior to the appointment of a tutor.
In these circumstances, where the issue has been reagitated today, I am now comfortable that I should determine the issue, on the basis of the evidence before me, rather than making the assumption, expressly favourable to Mr Gazal, that I made on the last occasion. I am satisfied that, on the evidence before me, no serious question as to Mr Gazal’s lack of capacity arises in the proceedings before me, and there is no basis, by reason of lack of capacity, that the hearing of the proceedings should not be completed.
The primary submission advanced in writing was that there was a real and substantial issue as to whether Mr Gazal was fit to plead and stand trial, which the primary judge needed to address. It was said that the primary judge erred in proceeding on 6 and 27 May to find Mr Gazal guilty of contempt in circumstances where there was a real possibility that he lacked capacity. It was said that there was a real and substantial question as to his fitness as at May 2025, which entitled him to have the findings set aside, in accordance with what was said by Hayne J in Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [319] and applied in Re v R [2022] NSWCCA 73 at [7].
Mr Gazal placed heavy reliance on Kostov v YPOL Pty Ltd. There a judge convicted Ms Kostov, who was unrepresented, in her absence, and then received psychiatric evidence which led the judge to conclude she was under a legal incapacity, following which he disposed of the sentence proceeding without imposing penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). This Court constituted by Beazley P, Meagher JA and Simpson AJA allowed an appeal and set aside her conviction. Their Honours observed that although the litigation was civil litigation subject to the rules of procedure applicable to other civil proceedings, that was subject to safeguards in criminal proceedings, including “the common-law requirement that a criminal trial not proceed unless the accused is fit to plead”: at [19]. Their Honours further observed, as was common ground at the appeal, that the psychiatrists’ reports established a real and substantial question of Ms Kostov’s fitness to plead. The dispositive reasoning was at [22]-[23]:
As YPOL accepts, those reports plainly raise a real and substantial question as to Ms Kostov’s fitness to plead as at the date of her conviction hearing. In other words, this Court cannot be satisfied that the primary judge could not reasonably have found Ms Kostov unfit to plead. The immediate consequence is that a miscarriage of justice has occurred. As that miscarriage goes to the root of the proceedings, it is necessarily a “substantial” miscarriage within the applicable “proviso”, namely UCPR, r 51.53. …
It follows that grounds 1 and 3 of Ms Kostov’s appeal should be upheld; that her conviction and sentence should be set aside; and that YPOL’s notice of motion charging her with contempt, unless withdrawn, should be listed before a Judge of the Common Law Division for directions.
There are a number of distinguishing features between Kostov and the present case.
In Kostov, medical reports were received into evidence (albeit after conviction), and it was accepted that they established a lack of fitness to plead. In the present proceedings, no medical reports were received into evidence before the primary judge. On 6 May 2025, two of the reports of Dr Nielssen were sought to be tendered, but because they had been provided less than 24 hours previously, the tender was refused. Nonetheless, because of the course indicated by the primary judge at the outset of the hearing, the hearing proceeded over a second day three weeks later, with directions for Mr Gazal to tender evidence in advance of that hearing bearing upon capacity. Those directions were not complied with, and there was what could only have been a deliberate decision not to seek to rely upon any of Dr Nielssen’s reports or any other medical evidence.
The nature of the alleged contempt in Kostov – communicating to members of a law firm contrary to a restraining order – is quite different from the frauds found to have been committed by Mr Gazal. That is to say, the conduct giving rise to Ms Kostov’s alleged contempt is of itself suggestive of mental disability, while the conduct giving rise to Mr Gazal’s alleged contempt is to the contrary.
Ms Kostov’s cognitive state was apparent to the primary judge. The judgment of the Court of Appeal records at [5] that after the charges were read out to Ms Kostov, who was appearing by telephone, the trial judge had to terminate the call because she was “shouting down the phone line”. In contrast, Mr Gazal has not gone into evidence before the primary judge, and his communications before he was represented were not suggestive of a lack of capacity.
In Kostov, no tutor had been appointed, and the Court dispensed with compliance with r 7.14 of the UCPR. Mr Gazal had appointed a tutor shortly prior to the hearing on 27 May 2025.
In Kostov, sentence for a criminal contempt was imposed pursuant to the Crimes (Sentencing Procedure) Act. In the present case, the contempt is civil, and the purpose of the orders is coercive, not penal. All contempts are criminal in nature, and accordingly must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534; [1995] HCA 3. Nonetheless, the proceeding is a civil proceeding, and the distinction between punitive as opposed to remedial or coercive proceedings remains: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [133]; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [65].
For those reasons, is not necessarily dispositive of the present appeal or application for leave to appeal.
It is well established that when, before a trial begins, the question arises as to the mental fitness of the accused to stand his or her trial, it is the court’s duty to determine the accused’s fitness to be tried notwithstanding that neither the prosecution nor the defence seeks such an inquiry.
As was pointed out in response, in a criminal trial, that duty is more nuanced, and in particular the question of fitness must arise “in good faith”: see R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155. The primary judge was alive to this. In the present case, the primary judge raised at the hearing the possibility that Mr Gazal, whose history includes sustained dishonesty, may have been feigning or exaggerating his cognitive impairment.
But assuming favourably to Mr Gazal that the approach in a criminal trial applied to the present proceedings for contempt, it does not mean that the Court is obliged to second-guess the decisions made by the parties to rely or not rely on medical evidence. It is quite plain from the transcript of 27 May 2025 that the decision not to rely on Dr Nielssen’s report was a deliberate one. Mr Gazal was legally represented, and there may be good reasons for a litigant not to rely on medical evidence, especially if there was a risk of cross-examination. It is not, except perhaps in truly extraordinary cases, for the court to second-guess the forensic decisions made by legally represented litigants.
Thus the premise of the main ground sought to be advanced in writing is not made out. The issue of capacity was raised. The judge gave the parties a procedurally fair opportunity of dealing with it, including by adducing lay and expert evidence. Mr Gazal availed himself of that opportunity, albeit not in a way which might have been expected.
We turn to the stronger submission advanced in this Court, which was only developed in oral submissions. Mr Reynolds said he was entitled to adduce for the first time expert evidence which established a real and substantial question as to Mr Gazal’s fitness to plead and to stand trial as at May 2025, even if it had never been placed before the primary judge, and on that basis set aside the orders incorporating findings of guilt.
There should not be an extension of time in order for Mr Gazal to advance this case on appeal. That is so irrespective of whether Mr Gazal enjoys an appeal as of right or only by way of leave.
First, there is no authority for that proposition. Kostov was a case of sentencing for a criminal contempt, of a contemnor who did not have a tutor. Decisions by courts of criminal appeal are likewise not necessarily controlling.
Secondly, there are the mandatory obligations imposed by statute. This was raised by the primary judge, and not attended to by Mr Gazal’s submissions. It arises even more acutely on appeal.
The DCT’s application is for a civil contempt, which is brought not to punish Mr Gazal, but to seek to achieve compliance with the orders binding him and freezing assets of him and his companies. The DCT seeks to cause Mr Gazal to undo the serious wrong he committed by causing some $6.5 million to be withdrawn from his companies’ bank accounts contrary to freezing orders. The proceedings are civil and the Civil Procedure Act applies. Notwithstanding that Mr Gazal faces charges of contempt, he remains subject to obligations to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(3). His solicitors and counsel are likewise subject to a duty not to cause Mr Gazal to be put in breach of that obligation: s 56(4).
Moreover, in this Court s 75A(8) of the Supreme Court Act forbids the reception of evidence which was available at trial unless special grounds be shown. That prohibition is not avoided even if the other side consents.
All those provisions tell against the proposition sought to be advanced.
To be clear, the foregoing is not to be read as implying that there was a deliberate flouting of the rules, and it is easy to see how, by reason of the misdating of Dr Nielssen’s letters and the failure to obtain the transcript of what occurred, different counsel might have come to make the submissions which were made. As noted, at the outset of the hearing in this Court, senior counsel for Mr Gazal appeared to be proceeding on the basis that all of the letters signed by Dr Nielssen had been the subject of an attempted tender to the primary judge (Transcript, 18 February 2026, T1.46-49).
Thirdly, at relevant times, Mr Gazal had a tutor. As the primary judge observed, ordinarily in civil litigation issues of capacity disappear when a tutor has been appointed. A great deal of litigation in this Court takes place involving litigants who are incapable.
LEEMING JA: …You say they should stay and the proceedings in the Equity Division should continue, but there’s nothing stopping Mr Reynolds’ client from putting forward all the evidence that he says is already before us and is enough, he says, to find a lack of capacity, he says we must find. But he can put all that before the trial judge at the adjourned hearing in any event. Is that right?
BARNETT: In a procedurally fair way.
LEEMING JA: Sure.
BARNETT: But yes. If today he gave notice that these material is to be relied on, and there was sufficient time for the Commissioner to meet it, then I think I’d have to accept, yes, if it could be done in an appropriate procedurally fair way, which would be for Black J to determine, then that question of capacity should be determined because it is fundamental to depriving someone of their liberty, and that can happen at any point in time. Part of what I was submitting is that if that happens and the conclusion is that Mr Gazal was unfit, depending on the extent of that, there might be a setting aside of those earlier orders and a permanent stay of the proceedings.
FREE JA: Implicit in that seems to be that although that might have a number of dimensions, it could include a finding that he had been unfit at the time he was convicted?
BARNETT: Yes, it could, yes.
FREE JA: So that can be revisited?
BARNETT: Yes.
Still further, the DCT consents to a stay of execution of any penalty which is imposed pending appeal.
That is to say, Mr Gazal requires an indulgence, in circumstances where there has already been a great deal of delay, in large measure brought about by his unsuccessful applications for adjournments. And that indulgence is sought in circumstances where the DCT accepts that it remains open to Mr Gazal to seek on the basis of evidence in a procedurally fair way to contend that he lacked competence to plead and to stand trial on the charge of contempt.
Moreover, there have been deficiencies in the way the litigation in this Court has been conducted. This Court does not have the benefit of any considered submissions on the significance of the appointment of a tutor, despite the reasons of the primary judge. Further, this Court has received no submissions on s 75A(8), or evidence supporting the tender of the 14 May letter by Dr Nielssen.
It would be possible to cure those deficiencies by making directions for the parties further to be heard. That would certainly give rise to delay and expense. It might also give rise to the need to retain different lawyers, especially in light of some of the submissions flagged by Mr Reynolds. There would be a need to permit the DCT to respond. If as Mr Reynolds flagged this is truly a case where the special grounds involve failure on the part of counsel, then there may need to be a disclosure of hitherto privileged communications, and the DCT might need an opportunity to communicate with Mr Gazal’s former lawyers.
On the other hand, there is a hearing already fixed before the primary judge for 31 March. Nothing was said to suggest that it would be impossible for Mr Gazal to serve any such application as he may be minded to make sufficiently in advance of that hearing so as to permit a procedurally fair determination of the issue.
The considerations in ss 56 and 58 of the Civil Procedure Act favour the refusal of an extension of time. There is no sound reason to grant the indulgence Mr Gazal seeks when all aspects of the contempt prosecution will shortly be able to be the subject of an appeal as of right, in circumstances where the DCT has agreed to a stay pending appeal. A similar course was adopted in A [a pseudonym] v E Co [a pseudonym] [2018] NSWCA 188. The matter may be tested this way.
If leave is refused now, there is no reason to doubt that a further hearing will take place at the end of March, and the primary judge will make orders shortly thereafter. Both sides are free if they wish to appeal from any decision which contributes to the final orders. If an appeal is filed in say May, it will be heard relatively shortly thereafter.
On the other hand, if this Court extends the time to appeal and to the extent necessary grants leave to appeal, then either it will find error or it will not. If not, then all that will be achieved is delay and expense. If there is error, then it is not suggested that this Court could itself assess fitness to plead, and so there will be a further hearing in the Equity Division, on different evidence but on the same issue. That will lead to the certainty of delay and cost. In circumstances where the DCT consents to a stay of execution pending appeal, and when on any view of the matter the delay which has hitherto occurred is attributable to the applications made without notice by Mr Gazal in May and October last year, there is no sound reason to fragment the prosecution by permitting an out-of-time interlocutory appeal.
For those reasons, nothing turns on whether Mr Gazal enjoys an appeal as of right or only by leave. Nonetheless, in defence to the parties’ submissions, we address the question of leave.
Mr Gazal maintains that there is an appeal as of right from the orders encapsulating the findings of guilt. The DCT maintains that the appeal is incompetent.
Appeals are creatures of statute. Section 101(1) of the Supreme Court Act confers a right of appeal from any judgment or order of the Court in a Division. However, that right is, expressly, “Subject to this and any other Act and subject to the rules”.
Subsection (2) of s 101 provides relevantly that, “An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from … (e) an interlocutory judgment or order in proceedings in the Court”.
Pausing there, if that were all, it would be clear that the purported appeal is incompetent, because final orders have not as yet been made. However, subsection (5) provides:
An appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court.
It is necessary to reconcile the requirement of leave imposed by s 101(2)(e) with the purported appeal by way of right conferred by s 101(5). The position is different in the Federal Court, where s 24(1C) of the Federal Court of Australia Act 1976 (Cth) expressly provides that leave is not required for interlocutory appeals in proceedings related to an alleged contempt of court: see Mensink v Parbery (2018) 264 FCR 265; [2018] FCAFC 101 at [104].
Subsection 101(5) was inserted more recently, by the Courts Legislation Amendment Act 1996 (NSW) Schedule 1 item 1.8 [10]. The second reading speech by the Attorney-General in support of that bill referred to the amendments altering what had hitherto been the position, namely, that all proceedings for contempt were assigned to the Court of Appeal (that reflected s 48(3)(b) of the Supreme Court Act in the form it was initially enacted). The amendments provided for certain proceedings for contempt of Court in a Division being assigned to that Division. Provision was also made for a review of a question of law by the Attorney-General in the event that a person was acquitted of contempt.
The Attorney said:
Appeals from judgments or orders of the Supreme Court in a division or of any other court concerning an alleged contempt, including those for injunctive relief, will lie to the Court of Appeal.
The parties did not point to anything in the extrinsic material which squarely addressed whether s 101(5) extended to interlocutory appeals.
Mr Gazal relied on Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 at [5]–[10] and Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340. Those decisions are directed to whether the right of appeal conferred by s 101(5) is not subject to the $100,000 pecuniary threshold in s 101(2)(r). The dispositive reasoning in both cases was:
First, s 101(5) provides a right of appeal in any proceedings that relate to contempt which, on its face, is independent of the threshold leave requirement in s 101(2)(r) as to the amount or value in issue. Secondly, the punishment which the Supreme Court can impose for contempt is at large and may include imprisonment: Field v New South Wales Crime Commission [2009] NSWCA 144. The threshold amount of value of $100,000 referred to in s 101(2)(r) cannot have been intended to apply when the matter in issue is punishment for contempt.
This does not address the point arising in the present case, concerning interlocutory judgments and orders. It is true that if the right conferred by s 101(5) is unqualified by s 101(2)(r), it would tend to follow that it is also unqualified by s 101(2)(e). But it is clear that those decisions do not suggest that proceedings in which a motion to prosecute for contempt may not relate to contempt.
In short, there is a direct clash between the requirement of leave in s 101(2)(e) for an appeal from an interlocutory order and the entitlement to appeal conferred by s 101(5) from judgment or orders in proceedings relating to contempt. How is that conflict to be resolved?
One consideration favourable to Mr Gazal is that s 101(5) is later in time, making it less likely to be qualified by the extant provision. Another consideration favourable to Mr Gazal is that s 101(2)(e) applies generally to all appeals from interlocutory orders, while s 101(5) is confined to appeals from judgments or orders in proceedings relating to contempt.
That consideration is not as powerful as it may seem. As was pointed out at the hearing, s 101(5) turns on whether the proceedings relate to contempt, rather than the judgment or order itself. Proceedings for contempt may be commenced in a number of ways. In the case of a contempt arising from an alleged breach of orders made by this Court, the moving party should deploy a notice of motion. But there are many species of contempt, including those mentioned in Pt 55 r 11 of the Supreme Court Rules 1970 (NSW), where the Court may order the Registrar to commence proceedings for punishment of contempt. Contempt could once be prosecuted on indictment, but that is obsolete, and a summary procedure is used, as McHugh JA explained in Attorney-General for New South Wales v John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695 at 707. Rule 6 of Part 55 of the Supreme Court Rules requires the filing of a notice of motion in certain cases, but by way of acknowledgement of the existence of alternatives, goes on to say that “if separate proceedings for punishment of contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders”.
In cases where fresh proceedings have been commenced to address an alleged contempt, then those proceedings will “relate to contempt” and fall within s 101(5). The position where a motion and statement of charge are filed in existing proceedings is much less clear.
If s 101(5) outflanks s 101(2)(e) such that there is an appeal as of right from any judgment or order, including an application for an adjournment or the rejection of a tender, then there is the following unlikely result. If the prosecutor commences by summons, then there is an appeal as of right from any interlocutory order. However, if the prosecutor proceeds by way of motion, then there is an appeal as of right only if relate to contempt, which need not be every case. That does not mean that an appeal would not be available. Although the proceedings would not relate to contempt, the order would still be one within the grant of leave in s 101(1) but subject to the requirement to obtain leave pursuant to s 101(2). It seems unlikely that whether or not a party dissatisfied with an interlocutory determination arising out of a contempt prosecution enjoys an appeal as of right or by way should be affected by the mode adopted by the prosecutor to commence the prosecution.
For those reasons, the application for an extension of time should be refused. It does not matter whether Mr Gazal enjoys an appeal as of right or requires leave, because the proposed appeal is contrary to the forensic decisions made before the primary judge. We add that it has been prepared in a way that is less than satisfactory, insofar as the transcript of the hearing was not made available, and no submissions were made concerning the applicability of the rules in criminal trials to prosecutions for civil contempt in cases where a tutor has been appointed, and there has been no compliance with r 51.51, and an attempt has been made to adduce evidence for the first time without attending s 75A(8). We have considered whether it might be best to permit the parties to be heard further so that they may attend to these points. However, in circumstances where both sides will be free to bring an appeal from orders which will be made following a hearing to take place on 31 March 2026 at which the issue of Mr Gazal’s fitness can be raised in a procedurally fair manner, and where the DCT has indicated a consent to a stay of execution, the appropriate course is not to grant the extension of time that is required. It should be noted that the dismissal of the notice of appeal (because it was filed out of time) does not stand in the way of an appeal to this Court from final orders after they have been made.
It was not suggested that costs should not follow the event, and there is no reason to displace the general rule in UCPR r 42.1. The effect of an order that Mr Gazal pay the DCT’s costs is that the tutor Ms Samadi is liable to pay those costs: see Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284 and Fong bhnf Fong v Weller [2024] NSWCA 46 at [46].
The Court’s orders are:
1. Extension of time refused.
2. Notice of appeal filed 9 October 2025 dismissed, noting that the parties are at liberty if advised to appeal from any final orders made, and that such appeal may extend to interlocutory orders which contribute to the final orders.
3. Summons seeking leave to appeal filed 20 November 2025 dismissed.
4. Mr Gazal to pay the costs of the Deputy Commissioner of Taxation in this Court.
Gazal by his tutor Samadi
Deputy Commissioner of Taxation [2026] NSWCA 16
(1985) 6 NSWLR 695
(1999) 198 CLR 334
(2016) 258 CLR 420
(2015) 256 CLR 375
(2018) 99 NSWLR 229
(2000) 203 CLR 1
(2002) 209 CLR 478
(2008) 235 CLR 125
(1994) 181 CLR 230
(2018) 98 NSWLR 1002
(2018) 264 FCR 265
(1990) 19 NSWLR 677
(2001) 53 NSWLR 251
(1995) 183 CLR 525
(2009) 76 NSWLR 148
Extension of time refused; notice of appeal dismissed; summons for leave to appeal dismissed; Mr Gazal to pay the DCT’s costs in this Court. The parties remain at liberty to appeal from final orders, including contributing interlocutory orders.
Mr O’Connor sought to read an affidavit made by Mr Rahal, which was dated 5 May and had been served the previous evening, and which suggested the possibility that his client might lack capacity. The affidavit was not in the materials in the White Folders. There seems to be no dispute that it was made by Mr Rahal, who said he had acted for Mr Gazal in criminal proceedings in June 2024, and that an issue of capacity had arisen in respect of those criminal charges. It contained statements concerning when Mr Rahal had been retained. It said that he had been retained for some time to act for Mr Gazal in pending criminal proceedings in the District Court, but had only recently been retained to appear in the Supreme Court contempt prosecution. The primary judge addressed aspects of that timing in his reasons, to the effect that it did not fully explain the delay in Mr Rahal being retained.
It is also convenient to interpolate that, shortly after being told of the possibility of an adjournment and an issue of capacity and while dealing with Mr Rahal’s affidavit, the primary judge stated that:
Thirdly, the 22 October 2025 letter was, self-evidently, not before the primary judge in May 2025. It was sought to be put before the primary judge at the October hearing. On that occasion, its tender (which accompanied a renewed attempt to tender the 7 April letter) was refused, but it was marked for identification.
Fourthly, and importantly, and counter-intuitively given the adjournment that was granted by the primary judge on 6 May, the 14 May letter (ie that was wrongly dated 14 May 2024 but in fact brought into existence around 14 May 2025) was not only not tendered before the primary judge in the May hearings. It was never sought to be tendered to the primary judge. It is not placed before this Court so as to understand the course of what occurred before the primary judge. It is a document included in the White Folder out of order, with a wrong date, which is sought to be adduced into evidence pursuant to s 75A of the Supreme Court Act 1970 (NSW) without complying with the rules applicable in this Court.
The 14 May letter referred to earlier interviews and reports. The standard wording on the first page was altered. The earlier letters said simply “I have read and agree to be bound by the code of conduct for expert witnesses”. The 14 May letter added a further statement as to Dr Nielssen’s expertise, his qualifications, and an “attached resume”. No resume was attached, but the White Folders contained, separately, a single page undated resume from Dr Nielssen. The letter stated that he had made all inquiries and that no information had been omitted. These changes are consistent with Dr Nielssen having been told that his previous letters fell short of complying with the code of conduct, and the doctor having altered the language of his letter so as to reduce the non-compliance.
The 14 May letter referred to an interview on 12 May 2025 in his office, accompanied by Mr Gazal’s wife and a male carer. Dr Nielssen confirmed the opinion in his most recent report, and then addressed six questions which were said to have been contained in “your letter dated 12.5.24”, the first two of which referred to the amended statement of charge. Dr Nielssen expressed the opinion that Mr Gazal was unable to understand the amended statement of charge, unable to instruct his lawyers, and more generally was unable to understand factual matters, or to communicate in a coherent way. He said that he believed that “he has been deprived of the capacity to understand and communicate his understanding since at least 1.7.24”.
Pausing there, because this letter was never the subject even of an attempted tender before the primary judge, there is nothing in his Honour’s reasons addressing the inconsistency between Dr Nielssen’s views, and the matters upon which his Honour ultimately relied, namely, Mr Gazal’s personal communications with the DCT and the Court, and the seeming ability of Mr Gazal’s solicitors to obtain instructions from him.
This was raised during the hearing, and Mr Reynolds maintained that he had assumed, in the absence of opposition from the DCT, that there was no objection to the tender. Ultimately, nothing turns on this. However, it is important to record that we do not accept that, in the circumstances of this case, that was an appropriate stance to take.
The White Folder was prepared by Mr Gazal’s solicitors and filed on 20 November 2025. The index identified the four letters by Dr Nielssen, and corrected the date of the 7 April letter, but did not correct the 14 May letter. The written submissions do not in terms mention the 14 May letter.
It is true that footnote 12 of the summary of argument states, albeit in a typeface that does little to encourage its being read, following a reference to Roberts v R [2023] NSWCCA 187 at [173]:
We wish to make it quite clear that nothing in the foregoing should be read as implying that there was any deliberate attempt to deceive the Court or the other side by those who prepared any aspect of Mr Gazal’s proceedings in this Court. All of the above is consistent with a series of inadvertent errors, commencing with and at least in part a consequence of the incorrect dates in Dr Nielssen’s letters.
Further, as it happens, no harm came from what occurred, save the wasting of time during the hearing and after judgment was reserved trying to identify precisely what was and what was not placed before the primary judge. In those circumstances, it is unnecessary to take this point any further.
Although much of what is recorded above is derived from the transcript of 6 and 27 May, those transcripts were not available during the entirety of Mr Reynolds’ address in chief. That led to this exchange near the conclusion of his address in chief:
However, the primary judge did permit to be read evidence from Mr Gazal’s wife, who appeared to have become his tutor, which provided some lay evidence of incapacity.
It was repeatedly said by Mr Reynolds that what the primary judge had to do, an issue as to fitness to plead having been raised, was to “hunker down” and deal with it. To be fair, that submission was made before the transcript of 27 May was provided to him. It is apparent from the transcript that that is precisely what occurred, and in a procedurally fair way.
The primary judge was, appropriately, conscious that Mr Gazal was alleged to have participated in a multi-million dollar tax fraud, and further was alleged to have engaged more recently in a sustained fraud upon his companies’ banks and against his judgment creditor the DCT. No differently from any other issue in the trial, whether or not Mr Gazal was fit to plead was to be determined in a procedurally fair way.
Mr Gazal was not, at the time the DCT moved on its amended statement of charge, a litigant in person. As a legally represented respondent, Mr Gazal had expert evidence, which he chose not to tender on the occasion provided for him to do so. In light of what was known to the primary judge from the hearing on 6 May, his Honour raised, twice, with his counsel three weeks later that the decision not to rely on Dr Nielssen’s opinions was a deliberate choice rather than an oversight. Nor did Mr Gazal give evidence, nor did his wife. Instead, lay evidence was given about a meeting with his newly appointed tutor. His Honour gave very clear notice that Mr Georges was unable to give evidence which could distinguish between actual incapacity and feigned incapacity. Ultimately his Honour was not satisfied that an issue about incapacity had been established by the evidence on that occasion. There is no suggestion that any aspect of his Honour’s reasons dealing with the material which was received into evidence disclosed error.
What, it may be asked, was his Honour to have done? It is not the case that if a person accused of contempt states that he or she is not, or may not be, fit to stand trial, then the proceedings are forever stayed. The question falls to be determined like any other issue in litigation. In the first instance, it will turn upon the evidence adduced on each side, that occurring in a procedurally fair way (in some cases, it might also be informed by observations made by the judge of the person in court). The primary judge put in place a regime for that to occur.
Mr Gazal relied on the proposition from Kesavarajah v The Queen (1994) 181 CLR 230 at 244; [1994] HCA 41 that:
There is an issue of how to reconcile what was said in Kostov concerning the application of the criminal rules concerning fitness to plead to the prosecution of a criminal contempt, and the consequences of the appointment of a tutor in proceedings involving a civil contempt. The judge addressed some of the authorities bearing on that issue in his reasons in October 2025. In neither his written nor oral submissions did counsel now appearing for Mr Gazal engage with those matters. Indeed, the significance of the appointment of a tutor was sufficiently under-appreciated that it was not until the hearing in this Court, when it was raised by the Court, that steps were taken to have the proceedings properly constituted.
Notwithstanding all of the above, it is possible that this Court would permit Mr Gazal to rely on evidence which was available to him at first instance but which because of a deliberate forensic decision he chose not to rely on, if the proceedings for contempt had been completed. It is to be noted that Ms Kostov’s prosecution had ended by the time this Court intervened (it was concluded by the exercise of power under s 10A of the Crimes (Sentencing Procedure) Act). But in the present case, the judge is part-heard.
It needs to be borne firmly in mind that Mr Gazal seeks a two month extension of time, for which there is a partial explanation, but in circumstances where there is a fragmentation of proceedings and a continuing entitlement to be heard. The belated filing of the notice of appeal contributed to the October hearing not achieving its intended purpose.
Further, the evidence is likely to be contentious. The DCT has consistently asked for Dr Nielssen to be made available for cross-examination in the event that reliance is sought to be placed on his opinions. And there is as yet no explanation for the apparently deliberate forensic decision not to adduce Dr Nielssen’s evidence on 27 May. The resolution of such contentious issues is best conducted at first instance.
Further, both sides will be entitled to appeal from the final orders which are made disposing of the DCT’s notice of motion. Such an appeal will lie from all orders which have contributed to the final orders, in accordance with Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22. In that way all of the issues now sought to be raised can be raised then, without the fragmentation of the contempt process.
We note that there was an exchange of oral submissions in this Court as to whether it was open to Mr Gazal to revisit the orders made on 24 October 2024. Mr Reynolds maintained that that could not occur, by reference to Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642 and Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [57]. But the passages relied upon were directed to the separate determination of issues on a final basis. They do not stand in the way of the revisiting of an interlocutory order if there is a material change of circumstance (many of the authorities are collected in Proietti v Proietti [2025] NSWCA 11 at [21]). At a criminal trial, a question of fitness can arise later, even if there has already been a determination: Mailes at [7].
On this point, it is as well to record the concession made by the DCT in this Court, which may be more generous than that applicable to ordinary interlocutory findings and orders:
For those reasons, there is an overwhelming case not to grant the extension of time required by Mr Gazal, and instead to permit the Equity Division to complete the hearing of the amended statement of charge.
Mr Reynolds’ submission to the contrary, that there was the potential of a waste of costs and resources in the event that he is right concerning the quashing of the orders incorporating the findings of guilt, is correct so far as it goes. However, the submission neglects the additional costs and delay which would need to be incurred to regularise the proceedings in this Court. Further, the costs of a hearing on 31 March are small, compared to the costs and delay that have been incurred to date, and the latter are very substantially attributable to the forensic decisions and applications which have been made by Mr Gazal.
Finally, it was said, albeit only in submissions in reply, that the resumed hearing should not take place before the primary judge. Strictly speaking, that submission does not even arise until and unless this Court intervenes, and for the reasons already given, it is inappropriate to do so. However, it may assist to note the following.
The submission was founded on what had been put to counsel on 24 October. It is true that the primary judge raised for counsel’s response the possibility of an extremely serious finding. Doing so accorded with the principles of natural justice. After hearing from counsel, the primary judge did not make any such finding. That tends to suggest that his Honour neither has, nor might a reasonable bystander think that he might have, a closed mind to the way the defence has hitherto been conducted.
The forensic decisions made to date have meant that there has been no cross-examination of Mr Gazal, or his wife, or his former tutor Mr Georges, or Dr Nielssen or any other medical practitioner. There is no proper basis for an order preventing the primary judge from completing the task which has so far resulted in more than half a dozen oral judgments as well as the reserved judgment making findings of contempt.
What is more, at this stage nothing is known about what issues will be presented at the remaining hearing.
Nothing in these reasons stands in the way of an application to be made before the primary judge for his Honour to recuse himself, if a sufficient basis for doing so is established, and noting that that may depend upon the issues that arise in the remainder of the proceeding.
Our preliminary view is that the resolution of this issue turns on the meaning of the words “any proceedings that relate to contempt”. Mr Reynolds was driven to insist that once the notice of motion and statement of charge were filed, the proceedings (which were commenced in 2020) became proceedings that relate to contempt. We are disinclined to accept that submission.
An issue of contempt can arise at any stage of proceedings. A not uncommon circumstance is the commencement of proceedings with interlocutory injunctive relief, a claim that those orders have been breached amounting to contempt, which claim is subsequently resolved one way or another. It is unlikely to be the case that once a motion alleging contempt has been filed, every judgment or order thereafter made in the proceedings falls within s 101(5). That would result in parties enjoying a right of appeal in relation to adjournments, timetables, evidentiary rulings and every other judgment or order made in the proceedings. As Mr Reynolds submitted, “any” is a broad word.
The resolution which does least violence to the language, and in fact reflects its ordinary meaning, is that the underlying proceedings do not become “proceedings that relate to contempt” merely because a motion seeking findings of contempt has been filed, or even if the alleged contempt has been made out.
It may be possible to treat the words “proceedings that relate to contempt” to mean “order or judgment that relates to contempt”, or alternatively to proceed on the basis that where there is a dispute over an order or judgment that relates to contempt, then the proceedings relate to contempt. But both of those approaches depart from the natural meaning of the words, which are that the right of appeal turns not on the nature of the order or judgment, but on the nature of the proceedings.
Further, it is to be borne in mind that if s 101(5) has a narrow operation in the case of contempts which are prosecuted by notice of motion, that does not leave a litigant without any appeal. It means only that the appeal available under s 101(1) may be qualified by the need to obtain leave. Accordingly, there is no need to strain to give s 101(5) a broad meaning.
The proceedings commenced by the DCT in 2020 did not in 2020 relate to contempt. We incline to the view that they do not relate to contempt today, even though within them has been filed a motion prosecuting the tenth defendant for contempt. The pleadings were not provided to this Court, but they appear to have been directed to the DCT’s claim that Mr Gazal and his companies were very substantially indebted by reason of their fraud.
The matter may also be tested this way. There was a Settlement Agreement which appears substantially to have resolve the proceedings. But we doubt that the entry into the Settlement Agreement altered the nature of the subject matter to which the proceedings related. Further, when Mr Gazal and some of his companies breached the Settlement Agreement, leading to the application by the DCT to enter judgment against them, that again did not alter the nature of the subject matter to which the proceedings related. The same reasoning leads to the conclusion that although for the last 18 months the DCT and Mr Gazal have been directing attention to the statement of charge which has been filed in the proceedings, that does not alter the nature of the subject matter to which the proceedings related.
On that approach, such rights of appeal as the parties enjoy are conferred by s 101(1), not s 101(5), and thus while Mr Gazal has a right of appeal, it is subject to a grant of leave because the orders so far made are interlocutory. However, it is not necessary to express a concluded view on the issue because irrespective of whether an appeal lies as of right, the extension of time sought by Mr Gazal should be refused.