Mahmoud v Ghahreman trading as Prime Neurosurgery

Catchwords: CIVIL PROCEDURE — stay of proceedings until plaintiff satisfies District Court costs order — where District Court dismissed proceedings and ordered costs — UCPR r 12.10 — summary dismissal sought in the alternative — orders sought under Vexatious Proceedings Act 2008 (NSW) — stay granted — referral to pro bono panel — plaintiff to appeal District Court decision

Legislation Cited: Uniform Civil Procedure Rules 2005, rr 7.36, 12.10, 13.4, 31.36

Cases Cited: Sullivan v The Secretary of the Department of Transport (1978) 20 ALR 323

Category: Procedural rulings

Parties: Mohamad Mahmoud (Plaintiff) (self-represented)
Ali Ghahreman trading as Prime Neurosurgery (Defendant)

Representation: Counsel:
Ms K Burke (Defendant)
Solicitors:
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2025/237628

Publication restriction: Nil.

EX TEMPORE JUDGMENT

1. HIS HONOUR: Before the Court is a Notice of Motion by the defendant in the substantive proceedings who trades under the name Prime Neurosurgery.

2. The Notice of Motion was filed and served on or about 28 July 2025. The Notice of Motion by the defendant against the plaintiff, Mr Mahmoud, is, in relation to the first order, a stay of proceedings until the plaintiff satisfies the gross sum costs ordered by the District Court on 23 April 2025.

3. In essence, that order relies upon the Uniform Civil Procedure Rules 2005 (NSW) r 12.10 and relies upon the principle associated with compliance with Court orders prior to the commencement of other proceedings and the use of the authority of the courts.

4. Alternative remedies are also sought. One of them is summary dismissal.

5. The opportunity that the Court has had to look at the material certainly suggests that much of the substantive proceedings sought to be commenced by the Statement of Claim in these proceedings relies upon the same factual matrix as that which underpinned the substantive proceedings in the District Court. The orders by the District Court on 23 April 2025 were orders dismissing the proceedings in that Court summarily.

6. The defendant, on its motion, also seeks orders relating to the Vexatious Proceedings Act 2008 (NSW). For such an order to issue, the Court would need to be satisfied that there have been vexatious proceedings frequently instituted or conducted by the plaintiff. For proceedings to be “vexatious” they would need to be an abuse of process; or instituted to harass or annoy, or to cause delay or detriment, or for some other wrongful purpose; or instituted or pursued without reasonable ground.

7. Further, the proceedings must have resulted in a judgment against the person who the Court is being asked to describe as vexatious. If, as I have been informed, the intention of the plaintiff in these proceedings is to appeal the summary judgment of the District Court, and if that application for leave and extension of time (of course the application would be out of time) were successful and the appeal was ultimately heard and granted, the application under the Vexatious Proceedings Act 2008 (NSW) would at least, in relation to these proceedings, or the proceedings in the District Court, fall away. The abuse of process issue, which is requesting the Court to act in a manner which would be inconsistent with an extant proceeding or order of another court, would also fall away.

8. This proposition, of course, relies upon a number of possibilities. The Court, as presently constituted, does not make any comment on the likelihood that there would be an extension of time, that there would be a grant of leave to appeal, or that there would ultimately be a successful appeal.

9. Nevertheless, if those avenues are still available and are sought to be availed of by the plaintiff in these proceedings, then it seems to me that that opportunity ought be given. I hasten to add that the principles associated with natural justice require a court, or tribunal acting judicially, to provide to every party a reasonable opportunity to prepare and to present the case that is desired.

10. To the extent that authority is needed for that proposition, it is contained in a judgment of his Honour Justice Deane, then a member of the Full Court of the Federal Court of Australia, in Sullivan v The Secretary of the Department of Transport (1978) 20 ALR 323; and it has been cited with authority in the High Court. Notwithstanding, or because of, the requirement to provide a party with a reasonable opportunity to prepare and to present its case, the court or tribunal does not have the duty of ensuring that the party uses such a reasonable opportunity to its best advantage.

11. In this case, Mr Mahmoud has been given an opportunity on some occasions to obtain legal advice. He says, and I accept, that he needs legal advice in order to agitate the appeal and his claim appropriately. I accept that, as earlier stated, fully.

12. I will, in the orders that I now make, make an order under Uniform Civil Procedure Rules r 7.36, and provide short separate reasons, referring the matter to the pro bono panel. Whether he obtains advice from that panel, given that, on my understanding, it has before been referred, is a matter between Mr Mahmoud and members of the panel.

13. Having made those comments and made clear that, at first blush at least, and without dealing with it to finality at this point in time, my preliminary view is that the proceedings in this Court (and I am not referring now to any appeal from the District Court) seek to agitate the same, or claims based upon the same facts as those agitated in the District Court, I reserve any part of the motion relating to vexatious proceedings orders, or the striking out of the proceedings on the basis of abuse of process or otherwise to the defendant. I deal only at this stage with the first order sought to be agitated by the motion, or by the defendant in the motion, that being the stay of proceedings.

14. As earlier stated, it probably is appropriate for me to set out some facts, which I do very briefly. In about March 2024. the plaintiff lodged a complaint with the Health Care Complaints Commission (herein after "the Commission"), alleging that the defendant had done a number of things for which a complaint arises.

15. It is unnecessary for me to set out the allegations. The plaintiff also alleged that the defendant had failed to provide an appropriate operation report and had succumbed to external influences.

16. On 7 June 2024, the Commission advised that they had reviewed the complaint and had determined not to take further action, which is a course available to them under the statute that governs their procedures.

17. On 9 April 2024, the plaintiff commenced proceedings in the Local Court. He amended a Statement of Claim by filing it on 2 May 2024, seeking production of various documents. Apparently, the defendant supplied, or complied with, the request for documents.

18. On 16 August 2024, the Local Court ordered that the claim be dismissed, and a couple of other procedures which are unnecessary to deal with at the moment. At the time the defendant did not seek costs.

19. On 3 September 2024, the plaintiff filed a motion seeking to have the Local Court proceedings, which had been dismissed, transferred to the District Court. The motion alleged certain imputations against the defendant and some other parties, including an allegation that the plaintiff was being followed.

20. On 4 September 2024, the Local Court made orders, in effect, that the motion to transfer to the District Court must be lodged with the District Court, which the plaintiff sought to do on 12 September 2024. On that date the plaintiff also sought answers to questions about the author and who articulated the Commission’s response.

21. On 28 September 2024, officers of the District Court sent an email to the parties notifying the plaintiff of serious issues with the form and content of the pleadings. On 22 October 2024 the proceedings came before the Registrar, who explained to the plaintiff the deficiencies in his pleadings, pursuant to UCPR r 31.36. The plaintiff then requested a referral to a solicitor and the Registrar made that order.

22. On 19 November 2024, the matter was listed for directions. An Assistant Registrar referred the matter to the pro bono panel. There was correspondence between the Court and the parties.

23. On 16 January 2025 and 11 January 2025, there was further correspondence between the Registrar and the plaintiff and other parties. On 11 February 2025, the matter was listed for further directions.

24. The Registrar noted the receipt of correspondence from a pro bono solicitor to the effect that he would not be continuing with the matter. The Registrar then made orders for proceedings relating to any strikeout motion, about which the Registrar had been informed.

25. On 14 February 2025, there was a threat of appeal if the matter were dismissed. On 28 February 2025, the defendant filed a Notice of Motion and supporting affidavit in the District Court.

26. The motion was heard by a District Court Judge on 23 February 2025, who delivered an ex tempore judgment striking out the Statement of Claim, dismissing the proceedings pursuant to UCPR r 13.4 and ordering the plaintiff to pay the defendant's costs. The defendant's costs were assessed as a gross sum at $12,000 which, I hasten to say from where I sit, does not seem like an unreasonable amount.

27. The plaintiff was granted leave to apply to set aside or vary the sum. In any event, that is the order which has not yet been complied with, that being 23 April 2025. It is now the middle of September.

28. The time for compliance has well passed. Nevertheless, I am informed from the Bar table, and otherwise from some of the documentation before the Court on this motion, that the plaintiff seeks to appeal the judgment of the District Court dismissing his proceedings. Such an appeal would now be out of time. The plaintiff apparently was informed of that by the Registrar of this Court.

29. The plaintiff is required, as a consequence, to seek an extension of time. Given that the summary dismissal is an interlocutory proceeding, which the Court of Appeal recently confirmed even though it results in the finalisation of the matter, the plaintiff would also need leave to appeal. So, the plaintiff needs to file both an application for extension of time in the Court of Appeal, an application for leave to appeal, and the substance of the appeal itself.

30. These matters are not uncomplicated. The matters are further complicated by the circumstance leading to the dismissal of the proceedings by the District Court. Apparently, the plaintiff emailed the defendant's solicitors on 8 May 2025, noting his intention to appeal.

31. On 14 May 2025 the defendant sent a letter to the plaintiff requesting payment of costs. They have not been paid.

32. On 22 June 2025, the plaintiff commenced the proceedings, with which the Court is currently dealing; although I am not dealing with the substantive proceedings. I am only - and I do not use the word only deprecatingly - dealing with the motion, to which earlier reference has been made.

33. The defendant has read on the motion the affidavit of Brit Mainhoff of 28 July 2025 and the further affidavit of Brit Mainhoff of 12 August 2025. The further affidavit annexes the transcript in the District Court.

34. The first affidavit sets out, essentially, the procedural history, as I have summarised very briefly already. There is a table of proceedings at paragraph 42, which was most helpful and sets out the significant amount of time and resources that have already been incurred in relation to the purported justiciable controversy that the plaintiff seeks to agitate.

35. For all of the foregoing reasons, but mostly because of the non-compliance with the orders already made and extant, the Court will make the orders in Prayer 1 of the motion. The Court makes the following orders:

36. Proceedings No 2025/00237628, being proceedings before the plaintiff and defendant in these proceedings are stayed, pending the satisfaction or staying or quashing of the orders made by the District Court between these parties on 23 April 2025.

37. All other prayers in the Notice of Motion filed 28 July 2025 are stood over and may be listed on seven days' notice to the Court.

38. Pursuant to the Uniform Civil Procedure Rules 2005 (NSW, r 7.36, I refer the plaintiff to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance, such assistance being advice in relation to the proceedings; representation on directions hearings, interlocutory or final hearing or the like; drafting and settling of documents to be filed and used in these proceedings and in the Court of Appeal in relation to the District Court proceedings; and representation generally in the conduct of the justiciable controversy that is sought to be agitated.

39. Costs of this application are reserved.

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