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[2026] NSWCA 52
respondent. Time for filing the summons seeking leave to appeal was extended to 14 October 2025; the application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent’s costs.
The Court of Appeal extended the time for Mahmoud to file his leave application but refused leave to appeal. It considered whether he could conduct the case himself, despite his stated cognitive difficulties and the contents of his filings. The Court was not positively satisfied that he lacked capacity, applying a task-specific test focused on whether he could understand and make decisions about this litigation, not whether he could represent himself well. The Court also refused his late request for an adjournment to seek a lawyer, citing the low likelihood of obtaining representation and the further cost and delay to the respondent. Finally, an appeal would not achieve Mahmoud's apparent goal of progressing the separate Supreme Court case, and his allegations of bias did not establish a reason to grant leave.
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2,486 words · generated 08/10/2026
10 cited instruments linked from this judgment.
The dispute arose from spinal surgery performed by Dr Ali Ghahreman on Mohamad Mahmoud on 14 December 2023. The operation was described as a lumbar discectomy/decompression at L4/5 and L5/S1. Mahmoud's central allegation was that he had agreed to decompression but not to the removal of bony overgrowth by laminectomy. Ghahreman's account, set out in his response to Mahmoud's complaint, was that the operation performed was the procedure to which Mahmoud had consented, and that a minimal amount of bone removal was routine to provide decompression and access to the nerve: [7]-[9].
The NSW Health Care Complaints Commission decided not to take action on Mahmoud's complaint. It told him that the medical records indicated that he had consented to and undergone an uneventful laminectomy: [9]. Mahmoud then pursued proceedings in several courts. His District Court statement of claim focused on questions about documents, the HCCC response and the surgery, and asked for opportunities to cross-examine people. It did not expressly claim damages for medical negligence: [11], [52]-[55].
On 23 April 2025, the District Court struck out the statement of claim and summarily dismissed the proceedings. It also ordered Mahmoud to pay $12,000 in gross sum costs. A later application concerning the costs order was dismissed on 28 April 2025: [13]. In separate Supreme Court proceedings, which included claims in negligence, assault and battery and sought $2.5 million in damages, Rothman J ordered a stay pending satisfaction, staying or quashing of the District Court orders: [14].
Mahmoud sought leave to appeal the District Court orders. He filed the summons on 14 October 2025, outside the 28-day period in UCPR r 51.10, so he needed an extension of time: [4]. The Court of Appeal extended time to that date. It nevertheless dismissed leave, refused a hearing adjournment that Mahmoud had requested to seek representation, and ordered him to pay the respondent's costs: [40]-[49], [68].
The judgment addresses three main questions: whether Mahmoud had capacity to conduct the Court of Appeal proceeding; whether the hearing should be adjourned so he could seek a lawyer; and whether leave to appeal should be granted.
On capacity, Kirk JA began with UCPR rr 7.13 and 7.14. Rule 7.13 includes a person incapable of managing their affairs within the definition of a person under legal incapacity. Rule 7.14 provides that a person under legal incapacity may not commence or carry on proceedings except by a tutor: [23]-[25]. The Court recognised a presumption that a person of full age can manage their affairs. It said the court would not find legal incapacity unless positively satisfied of it: [26].
The test was not whether Mahmoud was generally capable of managing his life, or whether he could represent himself effectively. The relevant task was conducting this litigation. Capacity for that task meant an ability to understand, evaluate and make decisions about the issues and possible consequences of the proceedings: [28]-[30]. A self-represented litigant commonly requires a somewhat greater level of capacity than someone who only needs to instruct a lawyer, because a self-represented person has to manage the court process in an unfamiliar and stressful setting: [30].
The Court considered both the material Mahmoud filed and his conduct in court. His documents were often poorly drafted and included paranoid beliefs, which raised a legitimate question about capacity: [16]-[18], [37]. But the Court also observed that he had identified the need for leave to appeal and an extension, engaged with procedural rules and directions, understood the possible consequences of appointing a tutor, and maintained a reasonably clear account of his central complaint: [34]-[38]. His recognition that running an appeal without a lawyer involved risk was also relevant to whether he understood the possible consequences: [38]. The Court's conclusion was limited: it was not positively satisfied that he lacked capacity to conduct this application: [33], [39].
The Court refused the adjournment after considering the likelihood that it would secure representation and the effect on the respondent. Mahmoud had been referred to pro bono services previously, but the solicitor-client relationship ended, and a later referral was not taken up. The Court also considered Mahmoud's account of difficulties with other solicitors and that he had made no effort to obtain representation in the six weeks between the hearing being set down and it taking place: [43]-[46]. It accepted that representation could improve the presentation of his case, but considered that the likelihood of obtaining a lawyer was low.
Cost and delay also mattered. The respondent's solicitor reported costs of about $61,000 in the Court of Appeal proceedings. The Court considered it likely that an adjournment would generate further written material and require additional preparation, and that a costs order would not remove the practical prejudice because Mahmoud was unlikely to be able to meet it: [47]. It also treated the continuing burden of responding to proceedings in different courts as relevant: [48]. In that context, the adjournment was not warranted: [49].
On leave to appeal, the Court applied the interests-of-justice approach described in Mohareb v Local Court of New South Wales. It noted that the usual considerations include an issue of principle, public importance or reasonably clear injustice beyond mere arguability, but those considerations are not rigid or exhaustive. The utility of the appeal can also matter: [50]-[51].
The Court examined the District Court claim and Mahmoud's apparent purpose in seeking leave. It considered that the District Court pleading was primarily about access to and questions concerning documents, rather than a pleaded claim for medical negligence damages: [52]-[55]. Mahmoud appeared chiefly to want the appeal to remove an obstacle to proceeding in the Supreme Court: [56]-[57]. But he had accepted that his District Court statement of claim was deficient. The Court reasoned that the strike-out order and a costs order would remain even if the summary dismissal order were overturned. It therefore found that granting leave would not achieve his apparent purpose and would have no practical utility: [58].
The Court separately considered the allegations of apprehended bias. It applied the fair-minded lay observer test from Ebner: whether such an observer might reasonably apprehend that the judge might not bring an impartial mind to the decision: [59]. Kirk JA reviewed the transcript and the particular complaints. The exchanges showed the primary judge responding to topics Mahmoud raised, testing the respondent's arguments and trying to identify why the case should not be ended. The Court did not regard interruption, the disputed use of the word “thieves”, or the judge's “devil's advocate” approach as establishing bias or other error: [60]-[67].
The judgment did not present the capacity question as a new legal test. It drew together existing authorities on the presumption of capacity, task-specific assessment and capacity to conduct litigation. It referred to Murphy v Doman for the presumption that an adult can manage their affairs, and to authorities including Azar v Kathirgamalingan and Guthrie v Spence for the task-specific nature of capacity: [26], [28]. It also referred to Masterman-Lister and other cases on the abilities involved in conducting litigation: [29]-[30].
The judgment's contribution is its clear application of that approach to a self-represented litigant whose material raised genuine concerns. It distinguishes legal capacity from competence as an advocate. A person may lack the skill to draft good documents or present a case effectively while still having the capacity to understand and evaluate the litigation: [30], [37]-[39]. The Court did not treat the existence of unusual or paranoid beliefs, without more, as conclusive proof of incapacity. Rather, it weighed those matters alongside Mahmoud's demonstrated procedural understanding and decision-making.
For self-represented litigants, the Court said the required level of capacity will commonly be somewhat greater than the level needed to instruct a lawyer: [30]. This does not mean that poor advocacy itself establishes incapacity. The issue remains the person's ability to understand, evaluate and make decisions about the proceedings and their consequences.
The decision also illustrates that the court itself must decide capacity. Medical evidence is likely to assist but is not always available and need not determine the issue. The court may take account of its observations: [31]. Here, there was no medical report, and the Court made its assessment from the filed material and its interaction with Mahmoud: [32]-[39].
On leave to appeal, the Court reiterated that practical utility is relevant to the interests-of-justice assessment. It did not replace the established approach with a fixed checklist. Instead, it applied the proposition that leave may be refused where the appeal could not produce the practical result sought: [50]-[58].
At [26], Kirk JA said: “the court would not hold that a litigant was under legal incapacity unless positively satisfied of that conclusion.” In plain English, a court needs a firm basis for finding an adult unable to conduct the relevant legal task. Concern, poor presentation or a party's own assertion does not itself settle the question.
At [28], the judgment states that capacity “is always a task-specific matter”. The question is not whether someone has capacity in the abstract. It is whether they can understand and evaluate the particular task at issue. Here that task was conducting the appeal application.
At [30], the Court explained that a self-represented person commonly needs “somewhat greater” capacity than a person instructing a lawyer. The reason is practical: without a lawyer's explanations and assistance, the litigant must manage the unfamiliar court process personally. But the Court immediately distinguished this test from the ability to represent oneself well.
At [37], Kirk JA said: “the issue is not whether he can draft the requisite court documents well.” In plain English, weak drafting is not the same as legal incapacity. The Court considered whether Mahmoud could understand what had happened in his litigation, articulate his core complaint and make decisions about how to proceed.
At [49], the Court concluded that an adjournment was not warranted because of prejudice to the respondent, the low likelihood that it would secure representation and the absence of recent efforts to find a lawyer. This was a case-specific balancing of the likely benefit of delay against its costs and consequences.
At [58], the Court said leave would not achieve Mahmoud's purpose and had no apparent practical utility. In plain English, even a successful challenge to the summary dismissal would not remove the strike-out order or the costs consequence that formed the practical obstacle to the separate Supreme Court proceeding.
The judgment is relevant where a question arises about whether a self-represented adult can commence or continue litigation without a tutor under UCPR Part 7 Division 4. It is particularly useful where the party's own statements, filings or conduct raise concerns about mental capacity, but there is no medical report or the evidence is equivocal. The decision makes clear that the court may raise capacity of its own motion and must determine it for itself: [26]-[31].
The capacity analysis is most pertinent when the concern is not simply that the litigant is inexperienced or performs poorly. A court assessing capacity will look at the particular litigation task: understanding the issues, evaluating them, deciding how to proceed and appreciating possible consequences: [28]-[30]. The judgment indicates that filing documents, engaging with directions, understanding the significance of a tutor and making choices in light of explained consequences may be relevant evidence: [34]-[38].
The adjournment reasoning is relevant to applications made late in the process to seek representation. The Court considered the party's history of referrals and solicitor relationships, the steps taken before the hearing, the prospects that further time would produce a lawyer, and the likely impact on the other party: [43]-[49]. The result does not establish a general rule against adjournments for unrepresented litigants. It shows that the prospects and costs of the particular adjournment were central.
The utility analysis may be relevant where a proposed appeal would not change the practical position because other orders or consequences would remain. In this case, the Court reasoned that the strike-out order and some costs order would survive even if the summary dismissal order were overturned: [58]. It also considered whether the proceeding under appeal was actually the vehicle for the relief the applicant wanted: [52]-[58].
The supplied judgment does not provide any later judicial treatment of Mahmoud v Ghahreman. It is dated 13 April 2026, and the text contains no subsequent decisions discussing, applying, distinguishing or departing from it. No conclusion about its later reception can therefore be drawn from this source.
The authorities the Court itself cited are not later treatment of Mahmoud. They are authorities the Court used in reaching its decision. For capacity, these include Murphy v Doman, Azar v Kathirgamalingan, Guthrie v Spence, Masterman-Lister and Drummond v Canberra Institute of Technology (No 3): [26]-[30]. For leave, utility and apprehended bias, they include Mohareb, Ample Skill, House v The King and Ebner: [50]-[51], [59]. The judgment also distinguished R v Zhang, which concerned fitness to stand trial in criminal proceedings: [64].
The decision itself presents its capacity analysis as an application of existing authorities, not as a departure from them. Any account of later developments would require sources beyond this judgment, which are not included here.
The judgment leaves open how the capacity assessment would apply in a different proceeding with different issues, greater complexity or a different level of assistance available. It emphasises that capacity is task-specific and that factors vary with the circumstances: [28]-[31]. It does not prescribe a fixed list of factors or a numerical threshold.
The role of medical evidence also remains context-dependent. The Court said it is likely to assist but is not always available or determinative: [31]. It had no report before it and made its own assessment. The judgment does not specify when a report would be necessary, who would fund one in other circumstances, or how a conflict between medical opinion and the court's observations should be resolved.
The Court also did not decide whether Mahmoud's District Court claim could have been treated as a preliminary discovery application. It said only that this was “just possible”: [55]. Nor did it decide whether re-filing the same claim in a different court would amount to an abuse of process. It identified that as a possible issue if that was what Mahmoud intended: [54].
Finally, the judgment's conclusion on practical utility depended on the particular relationship between the District Court orders, the costs order and the separate Supreme Court stay. It does not resolve how utility should be assessed where an appeal could alter the practical barrier to another proceeding, or where the relevant orders would not independently remain in force: [56]-[58].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Mahmoud v Ghahreman [2026] NSWCA 52
Hearing dates: 17 March 2026
Date of orders: 13 April 2026
Decision date: 13 April 2026
Before: Mitchelmore JA at [1]
Kirk JA at [2]
Griffiths AJA at [69]
Decision: (1) Time for filing the summons seeking leave to appeal is extended to 14 October 2025.
(2) The application for leave to appeal is dismissed.
(3) The applicant is to pay the costs of the respondent.
Catchwords: CIVIL PROCEDURE — parties — persons under legal incapacity — court must be positively satisfied as to legal incapacity — incapacity a task-specific matter — considerations relevant to capacity in context of conducting litigation — level of capacity required commonly greater where person self-represented
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3, 56, 57, 58, 59, 60
District Court Act 1973 (NSW), s 127(2)(a)
Uniform Civil Procedure Rules 2005 (NSW), rr 3.5, 7.13, 7.14, 7.15, 7.18, 51.10
Cases Cited: Ample Skill Ltd v Reidy [2026] NSWCA 32
Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462
Banks v Goodfellow (1870) LR 5 QB 549
Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193; [2004] SASC 102
Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627
Drummond v Canberra Institute of Technology (No 3) (2022) 294 FCR 346; [2022] FCAFC 169
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] UKHL 7
Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369
House v The King (1936) 55 CLR 499; [1936] HCA 40
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Mahmoud v Ghahreman trading as Prime Neurosurgery [2025] NSWSC 1124
Mao v AMP Superannuation Ltd [2017] NSWSC 987
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249
Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398; [2006] FCA 900
Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241
R v Zhang [2000] NSWCCA 344
Rappard v Williams [2013] NSWSC 1279
Slaveski v Victoria (2009) 25 VR 160; [2009] VSC 596
TA v IA [2017] NSWSC 1597
Zhang v R (No 4) [2026] NSWCCA 8
Category: Principal judgment
Parties: Mohamad Mahmoud (applicant)
Ali Ghahreman (respondent)
Representation: Counsel:
Applicant self-represented
K Burke (respondent)
Solicitors:
HWL Ebsworth (respondent)
File Number(s): 2025/398526
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The respondent performed spinal surgery on the applicant in late 2023 following an occupational injury. The applicant asserted that during this surgery the respondent performed a procedure to which he had not consented. The applicant initiated more than one proceeding against the respondent based on this belief. One such proceeding was filed in the District Court. The primary judge struck out the statement of claim filed by the applicant and summarily dismissed the proceedings, on the application of the respondent. His Honour also made a gross sum costs order in the respondent’s favour. Another proceeding was subsequently filed in the Supreme Court. A judge of the Supreme Court stayed the Supreme Court proceedings “pending the satisfaction, or staying or quashing of the orders made by the District Court between these parties on 23 April 2025”.
The applicant filed a summons seeking leave to appeal against the orders made in the District Court. The applicant required an extension of time for the filing of the summons.
An issue arose as to the applicant’s capacity to institute and maintain his application. The applicant raised his own legal capacity in terms and numerous documents filed by the applicant were also such as to raise a concern.
The applicant also sought an adjournment in the course of the hearing for the purpose of seeking legal representation. The Court refused the adjournment application and indicated that reasons for so doing would be provided in due course.
The Court (Kirk JA, Mitchelmore JA and Griffiths AJA agreeing) held, extending time for filing the summons seeking leave to appeal and dismissing the application for leave to appeal:
(1) The court would not hold that a litigant was under legal incapacity unless positively satisfied of that conclusion: [26]. Whether a person is under a legal incapacity is always a task-specific matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question: [28]. Where the affair which must be managed is the conduct of litigation, legal capacity to undertake that task involves the ability to understand, evaluate and make decisions about the issues involved in, and the possible consequences of, the conduct of the proceedings: [29]. Where a person is self-represented, the level of capacity required will commonly be somewhat greater than that required to instruct a lawyer: [30]. The issue involves an evaluative assessment in which various factors may be relevant depending on the circumstances of the individual case. The issue is one for the Court itself to determine: [31].
Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17; Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369; Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627; Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462; Banks v Goodfellow (1870) LR 5 QB 549; Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162; Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] UKHL 7; Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193; [2004] SASC 102; Rappard v Williams [2013] NSWSC 1279; Drummond v Canberra Institute of Technology (No 3) (2022) 294 FCR 346, referred to.
(2) In all the circumstances, the Court was not positively satisfied that the applicant did not have capacity to conduct his application: [33]-[39].
(3) There would likely be prejudice to the respondent in terms of further costs and delay in granting an adjournment. There was also a low likelihood that an adjournment would make any difference to the applicant’s lack of representation. Granting the adjournment belatedly sought by the applicant was therefore not warranted: [40]-[49].
(4) Leave to appeal should be refused. Granting leave to appeal would not achieve the applicant’s purpose of allowing the claim in the Supreme Court to progress, and there did not appear to be any practical utility in leave to appeal being granted: [50]-[58]. In any event, none of the errors in the nature of apprehended bias alleged by the applicant were established: [59]-[67].
House v The King (1936) 55 CLR 499; [1936] HCA 4; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Mohareb v Local Court of New South Wales [2024] NSWCA 235; Ample Skill Ltd v Reidy [2026] NSWCA 32; Zhang v R (No 4) [2026] NSWCCA 8, referred to.
MITCHELMORE JA: I agree with the orders that Kirk JA proposes for the reasons his Honour has given. His Honour’s reasons on the applicant’s capacity and the adjournment application reflect the views that I formed as to those matters at the hearing.
KIRK JA: The respondent, Dr Ali Ghahreman, performed spinal surgery on the applicant, Mr Mohamad Mahmoud, in late 2023 following an occupational injury. The applicant asserts that during this surgery the respondent performed a procedure to which he had not consented. The applicant has initiated more than one proceeding against the respondent based on this belief. One such proceeding was filed in the District Court. The primary judge, Newlinds DCJ, struck out the statement of claim filed by the applicant and summarily dismissed the proceedings, on the application of the respondent. His Honour also made a gross sum costs order in the respondent’s favour.
The applicant has sought leave to appeal against those orders. In this Court the applicant represented himself, as he did in the Court below. Leave is required to appeal from an interlocutory judgment or order of the District Court: District Court Act 1973 (NSW), s 127(2)(a). The applicant queried whether a decision summarily to dismiss proceedings is interlocutory. That point is well-established: eg Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [10]-[13]; Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 at [24]. The applicant thus requires leave to appeal. The application for leave and the appeal were heard concurrently.
A summons commencing an appeal must be filed within 28 days after the “material date”, relevantly being the date on which formal orders were made in the proceeding: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.10. The orders of the District Court against which the applicant seeks leave to appeal were made on 23 and 28 April 2025. The applicant filed his summons seeking leave to appeal on 14 October 2025 (an amended summons was filed on 19 December 2025). He thus requires an extension of time to proceed with the application for leave. The respondent did not identify any specific prejudice resulting from this delay and it is appropriate to grant an extension of time for the filing of the applicant’s summons.
An issue arose as to the applicant’s capacity to institute and maintain this application. Despite his evident difficulties in engaging with the legal process, I am not persuaded that he does not have sufficient capacity to do so in the context of this application. In the course of the hearing the applicant also sought an adjournment, which the Court refused for reasons to be provided.
In all the circumstances of this matter leave to appeal should be dismissed with costs. In what follows I first set out the factual and procedural background ([7]-[15]), then address the issue of the applicant’s capacity ([16]-[39]), then give reasons for refusing the adjournment application ([40]-[49]), before considering the issue of leave to appeal ([50]-[68]).
The applicant had been a tow truck driver. He suffers from lower back issues which he says were sustained in the course of his employment. He was referred to the respondent by a general practitioner. They had several consultations between November 2019 and December 2023. On 14 December 2023 the respondent performed a surgical procedure described as a “lumbar discectomy/ decompression at L4/5 and L5/S1” on the applicant. The purpose of this procedure was to decompress a nerve in the applicant’s spine. The applicant subsequently complained that the respondent had performed surgery beyond that to which he had consented. This complaint appears to have formed part of a broader concern of the applicant that the police and organised crime elements were protecting the applicant’s employer by, amongst other things, influencing the treatment and advice given to the applicant by healthcare workers and other professionals.
The applicant filed a complaint with the NSW Health Care Complaints Commission (HCCC) in respect of the respondent. The respondent provided a detailed written response. Amongst other things he said:
On 5 December 2023, I consulted with Mr Mahmoud. … I informed Mr Mahmoud, once again, about his pathology, being combined LS compression at L4/5 and S1 compression at LS/S1. As part of this discussion, I outlined the cause of the nerve compression which included chronic longstanding disc extrusions, and bone overgrowth (facet joint arthropathy with bony spur contributing to the narrowing the S1 and L5 nerves). This overgrowth of bone reflected some facet arthropathy, previously reported on Mr Mahmoud's imaging and calcification in the area of the disc protrusions. I explained to him that this is a response to having a disc injury where the facet joints develop changes over time after loss of disc shock-absorption capacity. I discussed with him surgical treatment and explained that removal of the bony overgrowth, which is an essential part of decompressive surgery, may be sufficient in achieving good nerve decompression and if the disc annulus is sufficiently firm, healed (fibrosed/scarred/calcified), it may be unnecessary and detrimental to excise the disc as I [sic – it] could lead to further future disc herniations and instability. I told him excision of the disc would be considered at the time of surgery. …
Mr Mahmoud had been provided with written formal consent twice for, and verbally consented to, L4/5 and L5/S1 decompression which was the procedure that was performed, and a minimal amount of bone was removed as a routine part of decompressive surgery to provide decompression and access to the nerve.
The applicant’s core complaint then and now seems to be that he did not consent to the removal of the bony overgrowth by laminectomy. Rather, he says he only consented to L4/5 and L5/S1 decompression. However, in June 2024 the HCCC determined not to take any action on the complaint. It said in its correspondence with the applicant that “[t]he medical records indicate that you consented and underwent an uneventful laminectomy”.
The applicant commenced proceedings in the Local Court in April 2024. In the amended version of his pleading he alleged a non-consensual laminectomy. The relief sought involved gaining access to unredacted copies of certain documents concerning the operation and the applicant’s subsequent complaint to the HCCC; obtaining pictures and video recordings of his back operation; and nominal damages for pain and suffering and “time spent”. It appears the proceedings were dismissed by a Registrar of the Local Court in August 2024.
In September 2024 the applicant commenced proceedings in the District Court. His statement of claim contained the same core allegation about the laminectomy. The relief sought is set out below at [52]. In brief, this included being given the opportunity to cross-examine another doctor involved in the operation, and to have questions answered in relation to who authored the respondent’s response to the HCCC, and to have the chance to “taint” that response. The relief claimed section included the statement that it “needs to be noted that the plaintiff is still in discovery mode”. No claim was made in terms for damages for medical negligence.
The applicant was referred to the pro bono panel by a registrar of the District Court in November 2024. In February 2025 the Judicial Registrar indicated he had received correspondence from the solicitor who had picked up the referral advising that he and the applicant had mutually agreed he would not continue to act for the applicant. In relation to that referral the applicant said in an affidavit that he spoke to two separate people at the firm: the first “didnt introduce himself or give his name, and sounded like a 30-40 yo”; the second “was a senior man” but “recommended that I withdraw the case” (all quotations from the applicant’s materials are as written).
Later in February 2025 the respondent filed a notice of motion seeking that the applicant’s claim be struck out or dismissed and for the applicant to pay costs on a gross sum basis. That motion was heard by Newlinds DCJ on 23 April 2025. In an ex tempore judgment his Honour made orders that day striking out the statement of claim and dismissing the proceedings. His Honour made a gross sum costs order in favour of the respondent, assessed at $12,000. The applicant was granted leave to apply to set aside or vary the costs order, which he subsequently did. His Honour dismissed that application in chambers on 28 April 2025, giving written reasons. It is from the dismissal and costs orders that the applicant now seeks leave to appeal.
The applicant raised his legal capacity in terms, referring to r 7.14 of the UCPR. In his various written submissions the applicant said he was “mentally and cognitively challenged”, “not Coherent [and] mentally unfit, and not legally minded” and “slow in the brain”. His submissions raised the issue of a person under legal incapacity being required to carry on proceedings by a tutor, although it was not clear that he had understood the function of a tutor. The applicant made further oral submissions to the same effect, including stating that “the left and right side of the brain … doesn’t communicate”.
Independently of his own assertions regarding his cognitive abilities, documents filed by the applicant in the various proceedings raise concerns about his mental capacity. He has filed numerous documents which are somewhat rambling and repetitious. He also seems to hold paranoid beliefs; for example:
The applicant has in the past worked as a rideshare driver. He said that “[m]y personal honest opinion is there is police sitting inside the uber dispatch centre profiling and selecting people to get into my car, and ruin my uber rating”.
He asserted that the police “incited hatred and tension between me and bikies after written a letter to crime stoppers in regards to alleged police corruption”, and in that context he referred to an encounter with an “executioner”.
He suggested that police officers have broken into his vehicle at least twice, once to steal a can of soft drink and once to place a SIM card in the vehicle with which to track him.
He said that the District Court proceeding “was scripted” and “allegedly orchestrated by the police”. The applicant also said that the advice he obtained from at least one solicitor was possibly “scripted”, with the solicitor having been “spoon-fed by the police”. This allegation formed part of the applicant’s broader complaint, discussed below, that past solicitors have consistently acted against his own interests.
He believed that he had been attacked with a “microwave beam machine” by an unknown party, causing some sort of cerebral injury.
In this context, an email was sent to the parties by the Registrar of this Court the day prior to the hearing in the following terms:
Mr Mahmoud has raised an issue about whether he has capacity to commence or carry on the proceedings, pursuant to UCPR rule 7.14.
In that context the Court would be assisted if the parties could also consider and address the following issues:
1. Should Mr Mahmoud be referred to a doctor to obtain a medical report about his capacity to commence or carry on these proceedings? If so, who should pay for that report?
2. If Mr Mahmoud is not referred to a doctor, should the Court make its own assessment of his capacity?
If Mr Mahmoud does not have that capacity, then the following further issues arise:
3. Is there any person who could be appointed his tutor for the proceedings, pursuant to UCPR rules 7.15 and 7.18 (noting that any such person would in general be personally liable to pay any costs orders made against them in the proceedings)?
4. If there is no such person, should the NSW Trustee be asked to consider whether it is prepared to act as his tutor pursuant to Chapter 4 of the NSW Trustee and Guardian Act 2009 (NSW)? As the Court understands the position, the NSW Trustee would usually require that it take management of the person’s financial affairs as a condition of acting as a tutor.
5. If there is no person willing or able to be appointed as tutor, should the proceedings be adjourned for an extended period, or subject to a stay, or dismissed?
I would like to be referred to a No win No fee Solicitor …
I don’t feel comfortable with what the registrar says in his email, we have already addressed these issues …
Just appoint me a No win No fee Solicitor, and instruct him not to adhere to out side influence …
Do not adhere to what the registrar said of referring me to the NSW trustee and Guardian Act 2009.
Thus he appeared to reject any suggestion of having a tutor appointed, and certainly not the NSW Trustee. During the hearing, by contrast, he initially stated that he was in favour of seeking the appointment of a tutor pursuant to a psychiatrist’s report. However, when the role of a tutor was explained to him and a brief adjournment was given to allow him time to consider the issue, he indicated he did not wish for the NSW Trustee to act as his tutor. He also stated that he had no friends or family available to act in this capacity. The applicant’s ultimate position, as I understood it, was that he was not under a legal incapacity warranting the appointment of a tutor; that there was no one upon whom he could call to act in that capacity in any event; and that he would not consent to the intervention of the NSW Trustee.
The applicant’s complaints about his capacity mixed together issues of his mental capacity and his lack of legal abilities. His refrain in this Court – as in the Court below – was that he wanted a solicitor appointed, albeit one that he did not have to pay for. That was made clear in his submission filed in response to the Registrar’s email. And he had earlier said in one written submission to this Court that “im not legally minded and im not mentally fit to be representing myself”, and “you can tell im not capable of representing myself mentally and legally, the hearing should have been stopped and a solicitor appointed”.
The respondent also filed a supplementary submission in response to the Registrar’s email. That submission said that the respondent should not have to pay for a medical examination of the applicant. It also made the following points:
[T]he applicant has had no difficulty attending to the daily tasks associated with running proceedings, such as filing proceedings in the court registry, filing submissions, including submissions in reply, emailing the registrar of the Court, be it the court below or the Court of Appeal Registry, as well as emailing the Court of Appeal researcher, as late as 14 March 2026 regarding ‘presentation submissions’.
He has followed the Registrar’s orders with respect to filing and serving submissions in reply and has had the ability to familiarise himself with various parts of the Act and the UCPR, some of which is potentially relevant, such as s 183 of the Act and Rule 7.14 of the UCPR. …
Whilst concerns may exist with respect to the applicant’s concerns about being followed around by police and his inter-reactions with solicitors, doctors and others being interfered with, on its face, the respondent, appears capable of conducting and/or carrying on the proceedings.
Part 7 Div 4 of the UCPR is titled “Persons under legal incapacity”. Rule 7.13 defines legal incapacity. It provides that “[i]n this Division, person under legal incapacity includes a person who is incapable of managing his or her affairs”. This definition supplements the definition contained in s 3 of the Civil Procedure Act 2005 (NSW) (CPA).
Rule 7.14 restricts the ability of persons under legal incapacity to institute or conduct legal proceedings. It provides:
(1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.
(2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.
(1) In any proceedings in which a party is or becomes a person under legal incapacity—
(a) if the person does not have a tutor, the court may appoint a tutor …
(6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor.
An application for such an order must include evidence that the relevant party is under legal incapacity and that the proposed tutor consents to the appointment: r 7.18(5). As is implicit in that rule, there is a presumption that a person of full age is capable of managing their affairs: Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 at [36]. A person asserting incapacity thus bears a burden of proof and persuasion to establish the point: note Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398; [2006] FCA 900 at [66]; Slaveski v Victoria (2009) 25 VR 160 at 176; [2009] VSC 596 at [25]; Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162 at [17]. Given that the court can raise the issue of its own motion it will not always be the case that some party bears an onus. Nevertheless, the court would not hold that a litigant was under legal incapacity unless positively satisfied of that conclusion.
Here, the issue of capacity has been raised – if, ultimately, in equivocal terms – by the applicant. In the context outlined there is in any event a basis for questioning his capacity. It is thus appropriate to consider the issue. That is so notwithstanding that no formal application for the appointment of a tutor was in the end made by either party, and that it did not appear there was anyone known to the applicant who was available to act in that capacity. If the applicant does lack legal capacity then his rights and interests might be prejudiced by his current litigation. The court may stay proceedings where a person is under legal incapacity where no tutor can be appointed.
The question to be addressed here is whether the applicant is “incapable of managing his … affairs” (quoting r 7.13). In context, the term should not be understood to refer to his ability to manage his affairs in general: note Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627 at [155]. Whether a person is under a legal incapacity “is always a task-specific matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question”: Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462 at [168]; see also Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [174]-[175]; and note analogously Banks v Goodfellow (1870) LR 5 QB 549; Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17; Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 169 and 188-189; [1985] UKHL 7.
The task at hand here – the affair which must be managed – is the conduct of this litigation: note similarly Masterman-Lister at [18], [27] and [62]-[64]. Legal capacity to undertake that task involves the ability to understand, evaluate and make decisions about the issues involved in, and the possible consequences of, the conduct of the proceedings: see eg at [75]; (2004) 88 SASR 193; [2004] SASC 102 at [26]; [2013] NSWSC 1279 at [78]. This involves an evaluative assessment in which various factors may be relevant depending on the circumstances of the individual case. In (2009) 25 VR 160 at 176; [2009] VSC 596 at [32] an extensive list of such factors was posited. The list is best seen as a collection of matters “ relevant to the question of capacity”: [2017] NSWSC 987 at [19] (emphasis added).
The applicant indicated in the course of the hearing that he had previously had some consultations with a psychiatrist, who had prescribed him a certain medication. He said he had a consultation booked with another psychiatrist later this month. He suggested that perhaps he could obtain a report from a psychiatrist as to his capacity. It was not apparent how he would be able to afford to pay for such a report in circumstances where he informed the Court that he only had some $2000-$3000 in his bank account. In any case, once the nature and role of a tutor had been explained to the applicant he indicated he did not wish to pursue that course. The adjournment that he ultimately sought – which the Court refused – was in order for him to seek legal representation, not a medical report.
Despite the lack of medical evidence the Court must do the best it can to make its own assessment, where the starting presumption is that the applicant does have capacity. In all the circumstances I am not positively satisfied that the applicant does not have capacity to conduct his application before this Court.
The applicant has shown a reasonable ability to grasp rules, legal principles, directions and court rulings. As the respondent submitted, the applicant has been able to attend to the tasks associated with running the proceedings. His amended summons correctly identifies that he requires leave to appeal and an extension of time. He raised a reasonable query as to whether summary dismissal constitutes an interlocutory decision. When a tutor’s role was explained to him during the hearing – in particular, the fact that the appointment of a tutor would not necessarily lead to him securing legal representation and may lead to the matter being discontinued – he took an apparently rational decision not to apply for such.
His statement of claim filed in the concurrent Supreme Court proceedings pleads, in broadly comprehensible terms, a claim in medical negligence. Indeed, his core factual allegations against the respondent have remained relatively clear and consistent over the course of the HCCC complaint and the various court proceedings. One of the submissions he made to this Court was that he needed to “finalise my appeal matter” so he could return to conducting his Supreme Court proceedings. That submission manifested that he understood that Rothman J had stayed that case pending payment of the costs ordered by the primary judge.
The applicant demonstrated an understanding of proper procedure and etiquette. He addressed the bench correctly and respectfully throughout proceedings, including when his application for an adjournment was refused. He was not discourteous to the respondent’s counsel. His correspondence with the respondent’s solicitors does not appear to have been offensive or abusive: cf TA v IA [2017] NSWSC 1597 at [107].
These matters suggest the applicant understands what has occurred in his litigation to date; has the ability to understand the manner in which his claims must be articulated and prosecuted; has been able to make rational decisions about the conduct of the litigation; and has been able to file and serve relevant documents. As indicated above, those documents are in general poorly drafted and manifest paranoid thoughts. But the issue is not whether he can draft the requisite court documents . And even given the nature of the documents, he has managed to convey in an understandable way what his criticisms are of the decision of the primary judge.
After the applicant indicated that he did not want to have a tutor appointed, and it was suggested to him that we should proceed to deal with his application, he said: “I wouldn’t know how to. I wouldn’t know how to argue, I haven't got the capacity or the intellect to argue.” He then requested an adjournment of “maybe two weeks, three weeks” for the purpose of attempting to locate a solicitor who would represent him. It was implicit in the applicant’s various written and oral submissions that he is impecunious and so requires representation on a pro bono or speculative basis. So much was also apparent from his statement in court that he has already spent much of his “life savings” on the matter.
The application was opposed by the respondent. Counsel for the respondent submitted that further costs would be incurred both as a result of having to re-prepare for an adjourned hearing and from having to consider the further written submissions and correspondence the applicant would likely produce in the meantime. She referred to the guiding principles articulated in ss 56-60 of the CPA, giving particular emphasis to the principle that practice and procedure should be such that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute: CPA, s 60.
After adjourning briefly to consider its position the Court refused the application for adjournment and indicated that reasons would be published subsequently. The following are my reasons for having joined in making that order.
There can be little doubt that the presentation of Mr Mahmoud’s application to this Court would be aided by him having the benefit of legal representation. However, there seems to be a low likelihood of him obtaining any such representation. Even if he did, an issue would then arise about whether he would maintain the representation. As noted above, the applicant was referred to the pro bono panel during the District Court proceedings and successfully secured lawyers to advise him, but they parted ways shortly thereafter. Another referral was made in the Supreme Court proceedings but was not picked up by any practitioner.
By his account, the applicant has met with some five or six further solicitors in relation to his various proceedings and potential claims. He declined to instruct, or continue to instruct, the solicitors each time. He said in one written submission that “it is my belief that the prospective relationship has been disrupted so the solicitors don’t help me, I strongly believe the police are involved”. In oral submissions the applicant described one solicitor with whom he consulted as “a smart alec”, and stated that another solicitor terminated the relationship “because I don’t listen”. The applicant said that “[i]f I approach a solicitor and, you know, the police get involved, what's going to happen, they're going to drop it, so I want [the Court] to appoint one for me” and direct that solicitor not to be influenced. The applicant indicated that if there was “no disruption” then he would listen to the solicitor’s advice. At least on one view that suggests the applicant is only prepared to follow advice he likes, which might explain some of his apparent difficulty in maintaining relationships with solicitors.
[26] There are no “rigid and exhaustive criteria” as the “circumstances of different cases are infinitely various”: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177. The ultimate issue is the interests of justice, taking into account both the circumstances of the particular case and broader interests in resolving matters of public importance and clarifying the law. A range of considerations may be relevant. …
[28] As with any exercise of a discretionary power by a court, the utility of what is sought may be significant.
Similarly, in Ample Skill Ltd v Reidy [2026] NSWCA 32 it was held that leave should not be granted in that case because there was “no practical utility in the appeal” (at [18]). Much the same conclusion applies here.
The proceedings in the District Court appear to have concerned, at core, access to and questions about documents regarding the applicant’s operation. The “relief claimed” was articulated in the statement of claim as follows:
1. Answer questions in relation to who is the author and who articulated the Health care complaint commission response that was presented by the defendants Lawyers to the Plaintiff.
2. The plaintiff is not satisfied with the Response to the Healthcare complaint commission and redacted medical records, given to the plaintiff and is seeking to cross-examine the authenticity and credibility of all Documents given to the Plaintiff.
3. The plaintiff is seeking the court to taint the health care complaint commission response by the defendant and accept It as misleading and deceptive.
4. The plaintiff would like to cross-examine Dr Samaual Rajaduri Letter Dated 10/04/2024 attesting to his presence at the pre-operation consultation on the 14/12/2023, which I refute completely.
5. be given a Fair chance to present my case with out any bias.
6. It needs to be noted that the plaintiff is still in discovery mode, I have a strong belief that the operation was allegedly intentionally changed.
7. This matter may escalate Due to having a Fusion operation in the near future.
8. This District court matter is In relation to the Local court matter 2024/00132315 and Im asking the honourable court o refer this matter to the district court.
9. The plaintiff will be relying on District Court NSW Chambeyron vs Redgment [2021] NSW DC 795 a order was made for the Defendant to pay the Plaintiffs cost of the application and arguments where the plaintiff was waiting on reports.
10. The Plaintiff will be relying on a Supreme Court Ruling Dymocks vs Capral [2013] NSWSC 130 Letter not admissible to prove suggested admission by party .
No claim for damages was articulated in that statement of claim, nor was any amount identified as being sought. So much was noted by the primary judge at the hearing below. Instead, it appears that the Supreme Court proceedings are the vehicle through which the applicant seeks damages for medical negligence. In his written submissions the applicant seemed to distinguish between the present application and the Supreme Court proceedings in this manner. His reply submissions refer to “this matter, Defamation case, and the Medical Negligence case” (I understand that the applicant has issued a defamation concerns notice). Another submission states “I have still got my medical negligence case”, seemingly referring to the Supreme Court proceedings.
The Court sought to clarify the difference between the two proceedings in the course of the hearing. The applicant’s responses were somewhat inconsistent. At one stage he accepted the proposition put to him that “[t]his case is not your medical negligence proceeding”. At another stage he said that he had tried to improve the quality of his statement of claim in the Supreme Court proceedings, perhaps indicating that he viewed those proceedings as a continuation of the claim summarily dismissed in the District Court. To the extent that the applicant was simply attempting to re-file the same claim in a different court, an issue of abuse of process may well arise (perhaps amongst other issues).
Whatever the applicant may have intended, the better view is that the District Court proceedings did not involve a tortious claim for damages for negligence given that no such claim was made. Rather, it was concerned with access to documents and the other range of claims quoted above. It is not apparent that the claims listed there are ones that the District Court could have granted, although it is just possible that it was an attempt to make something like a preliminary discovery application under UCPR r 5.3.
A question thus arises as to the utility of the present application for leave to appeal. As noted above (at [14]), the Supreme Court proceedings are stayed pending satisfaction, or the staying or quashing, of the costs order made in the District Court. In his summary of argument the applicant states:
I need to finalise my appeal matter so I can return in front of His Honour Judge Rothman and File a Notice Of Motion so the court can refer me to a Medical examination. JUSTICE NEEDS TO BE SERVED AND PREVAILED.
Similarly, in the course of the hearing when he was asked what this case was about he said: “I am trying to question the judgment of Newlinds J and the costs order. So, I can move on to Rothman J’s case.” The reason why the applicant cannot “return” to the Supreme Court to prosecute his medical negligence claim is that he has not complied with the District Court costs order. The applicant’s primary purpose in filing this application seems to be his desire to allow the claim in the Supreme Court to progress by overturning the costs order, rather than any desire for the District Court proceeding itself to continue. The proceedings that he wishes to progress now appear to be the Supreme Court proceedings, not those in the District Court.
However, the applicant accepted in the Court below that his statement of claim had to be struck out. He continued to accept as much in this application, saying in one of his submissions that “I know the SOC is Deficient, I need a solicitor to fix it up”. There is no doubt that his concession was rightly made. As such, it was inevitable that an order would be made that the statement of claim be struck out and that the applicant would become subject to a consequential costs order. That is so regardless of whether or not the proceeding was also summarily dismissed. Therefore, even if leave to appeal were granted and the summary dismissal order overturned, the strike-out order made below and a costs order of some sort would be upheld. The applicant has shown no intention or ability to pay such costs. In this context, granting leave to appeal would not achieve the applicant’s purpose and there does not appear to be any practical utility in leave to appeal being granted.
In any event the applicant did not point to any error of the type described in House v The King (1936) 55 CLR 499 at 504-5; [1936] HCA 40, as was required given the nature of the impugned decisions. He did not indicate that he sought leave to challenge the gross sum assessment itself. Rather, the gravamen of the applicant’s complaint seemed to be that the primary judge acted inappropriately and was biased in determining the application, as manifest in a number of specific allegations of error. I will treat the allegations of bias as suggesting apprehended bias, for which the relevant test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]–[8]. The applicant made a range of complaints in a multitude of documents. In what follows I will focus on what I understand to be his main grievances. Neither these nor any of the other points made by the applicant indicate error warranting orders granting leave to appeal and the upholding of the appeal.
The applicant contended that while he was attempting to explain the issues he had encountered with past solicitors the primary judge changed the subject. The error alleged appears to be failure to engage with a material aspect of the applicant’s case. A review of the impugned portion of the transcript demonstrates that the applicant in fact introduced a new topic himself:
HIS HONOUR: But how are you going to get to a position where if you see another solicitor you don't think that's - the conversation you're having with them is being taped?
PLAINTIFF: Well, how come some other solicitor, he signed me up, and then he told me once he has the medical operation report and the medical record, I can't look at them. Why is it a secret? Why is it confidential? I'm the primary person involved. Why is that? And about the medical legal report, I've tried in August 2024, a few places, to get a medical legal report, expert report, and they only work for solicitors and insurance companies. So they—
HIS HONOUR: And presumably they want to be paid, I would imagine. Getting a doctor to give a report for a Court case, I would expect there aren't many out there who will do that for free.
PLAINTIFF: Well—
HIS HONOUR: But regardless of what the rules say about there being a medical report by an expert filed at the time statement of claim. Let's put that to one side. Unless you get an expert to give some evidence in your case, I can't imagine you're going to get anything other than - the best you would ever get would be some sort of modest victory …
The applicant had been speaking about solicitors but then raised his attempts to obtain an expert report. The transcript reflects the primary judge endeavouring to address that issue. These interactions do not manifest bias or inappropriate behaviour.
Even if the primary judge had improperly cut short discussion of these issues it would nevertheless have made no difference to the issue being decided. The applicant’s claim in the District Court did not hinge on him not having been able to find a lawyer. The question for decision was whether the respondent’s motion for strike out and summary dismissal should succeed. Much the same conclusion applies in respect of the applicant’s complaint that the primary judge did not “believe that I was experiencing difficulties in getting a lawyer to represent me”. And the same applies in relation to the applicant’s complaint that his “personal honest opinion” as to police interference with his life was not accepted by the primary judge. Further, parties are not entitled to have their evidence or beliefs automatically accepted by the court. No error is shown in the primary judge not accepting that claim.
The applicant also argued that bias is demonstrated by the fact the primary judge incorrectly stated that the applicant had called solicitors “thieves”. This interaction occurred in the context of his Honour attempting to understand the difficulties the applicant said he had encountered with past solicitors. The applicant denies he ever referred to those solicitors as thieves. That may well be the case. But even if the word was misattributed its use does not manifest anything approaching apprehended bias. The submissions and evidence before the primary judge made clear that the applicant holds strong, critical views about the character and ulterior motivations of solicitors with whom he has consulted. That was, in substance, the point that was being made by the primary judge. The applicant did not explain the relevance of his contention that he was “entrapped” by the primary judge through this alleged misattribution.
The applicant placed weight on the fact that the motion was heard despite his not having secured legal representation and where his capacity should have been doubted. He said: “Noticing my mental health and cognitive State [the primary judge] kept on going with the hearing, Im not mentally fit to be representing myself”. He sought to rely on R v Zhang [2000] NSWCCA 344, a case concerning fitness to stand trial in criminal proceedings. I am not persuaded that the applicant lacks capacity to conduct this proceeding, as set out above, and that lack of persuasion extends to his ability to conduct the proceedings in the Court below. Moreover, there was no reason his Honour should not have proceeded to hear the respondent’s motion despite the lack of legal representation in circumstances where the applicant had already sought to retain numerous solicitors, without success.
HIS HONOUR: … [T]he defendant is entitled, if there is a case to answer, to have that case heard quickly or to get rid of it. And what [counsel for the respondent] has said is having regard to the history of the matter I should be satisfied that today is the day where I get rid of it. Now why is she wrong? I need you to tell me. You don 't have to worry about legal terms, just tell me why I shouldn't do that, if you can.
PLAINTIFF: Because I strongly believe the operation was changed last second. When I walked into the hospital at around 6.30 in the morning, they told me I was staying there for four to five days. Dr Ali told me in his room I 10 would go home - going home on the same day. And then at 7 o'clock, Dr Kingel, the anaesthetist, had on his paperwork that I'm doing a laminectomy. It's the first time I heard the word laminectomy. And I signed my name wrong and here's the emails and the paperwork if you want to have a look.
HIS HONOUR: No, I don't need to see any - well there's two documents. One you say you signed under duress, the other one you say you signed without reading it?
PLAINTIFF: Yes. Yeah, that's right. I—
HIS HONOUR: They only showed you the signature part. So that's, the lawyers would call that non-est factum, or something. That's a Latin jargon for, even though I signed it, I shouldn't be bound by it.
PLAINTIFF: I signed it on the basis of Dr Ali's verbal instruction that he's going to enter through the left side, remove bone where the S1 nerve exits, and then do a discectomy, but--
HIS HONOUR: Okay. All right , so can I just cut you off without being impolite? Well, can I just cut you off? I know it's impolite. But what you're saying at the moment, in answer to my question, why should I not bring it to an end today? Your answer is because you strongly believe you have a case.
PLAINTIFF: Yeah.
HIS HONOUR: Right. I accept that you strongly believe that you have a case, but why is that a reason to not kill it off today? Because the real question for me is what's going to happen if I give you time to improve the current situation in a way that's fair to everyone. …
Leave to appeal should be refused. There is no reason that costs should not follow the event. The orders of the Court should be:
Time for filing the summons seeking leave to appeal is extended to 14 October 2025.
The application for leave to appeal is dismissed.
The applicant is to pay the costs of the respondent.
GRIFFITHS AJA: I agree with Kirk JA. My observations of the applicant’s legal capacity accord with those of Kirk JA.
**********
Mahmoud
Ghahreman [2026] NSWCA 52
(2012) 62 MVR 462
(2004) 88 SASR 193
(2009) 253 ALR 627
(2022) 294 FCR 346
(2000) 205 CLR 337
(1954) 91 CLR 423
(2009) 78 NSWLR 225
(1936) 55 CLR 499
(2003) 58 NSWLR 51
(2006) 153 FCR 398
(2009) 25 VR 160
(1981) 148 CLR 170
Time for filing the summons seeking leave to appeal was extended to 14 October 2025; the application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent’s costs.
In June 2025 the applicant, again representing himself, commenced a third set of proceedings, this time in the Supreme Court. The statement of claim filed in that matter opened new ground insofar as it identified causes of action in negligence, assault and battery, with a claim made for damages of $2.5 million. Pursuant to an order made by Rothman J on 25 September 2025, the Supreme Court proceedings currently are stayed “pending the satisfaction, or staying or quashing of the orders made by the District Court between these parties on 23 April 2025”: Mahmoud v Ghahreman trading as Prime Neurosurgery [2025] NSWSC 1124. The reference to “satisfaction” of the orders made by the District Court presumably refers to payment of the $12,000 in costs ordered by that Court. At the same time, Rothman J made an order again referring the applicant to the pro bono panel with respect to both the Supreme Court and the foreshadowed Court of Appeal proceedings. No practitioner picked up that referral.
In October 2025 the respondent filed a summons in this Court seeking leave to appeal from the decision of the District Court. An amended summons was then filed with leave in December 2025. The applicant has filed a series of documents in the nature of submissions, including the amended summons and the draft notice of appeal themselves. The core of the applicant’s complaint appears to concern alleged bias and procedural unfairness on the part of the primary judge. Another consistent element of the applicant’s argument was that he lacked capacity to conduct the proceedings himself.
Where a person is self-represented, the level of capacity required will commonly be somewhat greater than that required to instruct a lawyer because the person must manage court proceedings themselves in an unfamiliar and stressful situation: Murphy at [35]; Drummond v Canberra Institute of Technology (No 3) (2022) 294 FCR 346; [2022] FCAFC 169 at [107]. They will lack “the assistance of such proper explanation from legal advisers … as the case may require”, which is a matter otherwise relevant to assessing capacity: Masterman-Lister at [75]. As just explained, the issue to be addressed is the litigant’s capacity to understand (etc) issues involved in the litigation. It is not whether or not they have the ability to represent themselves well. Many litigants in person lack that ability whilst having full legal capacity.
The issue is one for the Court itself to determine. Medical evidence is always likely to be of assistance but is not always available and, in any event, may not be determinative. The Court can take account of what it has observed: note Drummond at [105]; Slaveski v Victoria (2009) 25 VR 160 at 176; [2009] VSC 596 at [34]; Masterman-Lister at [17].
The consistency and vehemence of the applicant’s statements about requiring legal representation in fact tend to support a conclusion that he has capacity to conduct this proceeding. For example, the applicant frankly acknowledged during the hearing that he was taking a “risk” by appearing in person because “to run an appeal you need someone that knows what he’s doing, someone like a barrister or a solicitor”. That the applicant acknowledges that he is “not legally minded” and cannot effectively represent himself suggests that the fact that his ideation appears disordered in some respects does not substantially impair his ability to understand and evaluate the matters involved in a legal proceeding. His reference to the risk he was undertaking manifests an understanding of the possible consequences of the litigation.
No doubt the applicant would be able to present his case more effectively if he were legally represented. But that is not the test. The question is whether the material before the Court, and its observation of him, is enough positively to establish that the applicant lacks the capacity to conduct this proceeding. In my view it is not.
These are all matters which suggest that the applicant would not succeed in finding a legal practitioner to act on his behalf in the next few weeks. Even if he was successful in doing so, it is open to doubt that he would continue the relationship if the advice given did not accord with his own views.
It is also relevant that the applicant made no effort to secure legal representation in this Court prior to the hearing. The matter was set down for hearing on 2 February 2026 and heard some six weeks later on 17 March 2026. When asked whether he had taken any steps in the intervening period to obtain legal representation the applicant stated that he had not. This was said to be because there would be “no point” in seeking representation owing to the inevitability of “disruption”.
Furthermore, there is force in the respondent’s submission as to delay and proportionality of costs, taking account of ss 56-60 of the CPA. I accept that even if the adjournment was only for, say, two weeks, counsel for the respondent would still need additional time to re-prepare for the hearing. Moreover, the applicant has filed numerous “submissions” documents in this Court. In that context, it is likely that the applicant would produce more submissions and correspondence were the matter to be adjourned, which would require further consideration and expenditure of resources on behalf of the respondent. No doubt owing in part to the volume of this material and associated correspondence, the solicitor with conduct of the matter for the respondent states in her affidavit of 16 March 2026 that the respondent has incurred costs in these proceedings in the order of $61,000. It seems unlikely that the applicant will be in a position to meet any costs order made against him. Thus a costs order would not salve the prejudice of the additional costs likely to be incurred by the respondent.
It is also relevant that the respondent has been burdened with having to respond to multiple proceedings filed by the applicant in different courts. The costs of having to do so are not limited to the financial. Prolonging the resolution of this application is itself a form of detriment to the respondent.
In light of the prejudice to the respondent from granting an adjournment, the low likelihood that it would make any difference to the applicant’s lack of representation, and the fact that the applicant has not taken steps in recent times to seek such representation, granting the adjournment belatedly sought by the applicant was not warranted.
The applicant complained that a portion of the transcript demonstrates bias because the primary judge was “instructing the defendants on what the Dr can say as an excuse to elevate [alleviate?] any liability on the Dr”. Review of the transcript demonstrates that his Honour was testing the respondent’s arguments on the motion by expressly playing “devil’s advocate” during the respondent’s submissions, and giving his views about what “a good lawyer” acting for the applicant might do with the case. His Honour was certainly not acting against the applicant’s interest by so doing.
The applicant contended that he was interrupted by the primary judge in a manner which demonstrates bias or a failure to consider material arguments. The complaint focused on the following exchange: