Zhu v Dr Penny Lee; Zhu v Dr Isaac Mordecai

Medium Neutral Citation: Zhu v Dr Penny Lee; Zhu v Dr Isaac Mordecai [2025] NSWSC 1326

Hearing dates: 28 August 2025

Date of orders: 31 October 2025

Decision date: 28 August 2025

Jurisdiction: Common Law

Before: Garling J

Decision: See [100]

Catchwords: CIVIL PROCEDURE – Parties – Persons under legal incapacity – Tutors – Application for appointment of tutor by plaintiff – Application for stay of proceedings in lieu of the pending appointment of a new tutor by defendant – Application made by a vexatious litigant for appointment as tutor – Where pleadings articulate allegations of misconduct and corruption against solicitors – Where applicant for position of tutor deliberately misled the court as to prior rulings which were adverse to him – Where documentation alleged to have been sent to parties by the previous tutor was likely deceptively sent by the prospective tutor – Where applicant for position of tutor was deceptive in his application – Where the appointment of a vexatious litigant as tutor would result in the court being unable to rely on his word in the absence of independent corroborative evidence – Where the pleading alleges similar claims of fraud, conspiracy, deception and criminality of the defendants as the claims in prior litigation which resulted in the determination of the applicant as a vexatious litigant – Where litigation is being conducted in a way which is inconsistent with the objective and reasonable conduct of proceedings for damages for professional negligence – Application for appointment of tutor refused – Order made for stay of proceedings until such time as a tutor is appointed or plaintiff is deemed no longer a person under a legal incapacity

Legislation Cited: National Anti-Corruption Commission Act 2022 (NSW) s 10
Supreme Court Act 1970 (NSW) s 84(1)
Uniform Civil Procedure Rules 2005 (NSW) r 7.14, 7.18
Vexatious Proceedings Act 2008 (NSW) s 8

Cases Cited: Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13
Attorney General v Bar-Mordecai [2005] NSWSC 142
Bar-Mordecai v Hillston [2004] NSWCA 65
Bar-Mordecai v Rotman & Ors [2000] NSWCA 123
Hillston v Bar-Mordecai [2003] NSWSC 89
Zhu v Dr Penny Lee; Zhu v Dr I Mordecai [2025] NSWSC 998

Texts Cited: Not Applicable

Category: Principal judgment

Parties: Julia Zhu (P)
Dr Penny Lee (D1)
Dr Isaac Mordecai (D2)

Representation: Counsel:
Self-represented (P)
T Berberian (D1, D2) (both matters)
Solicitors:
Self-represented (P)
Moray & Agnew (D1, D2) (both matters)

File Number(s): 2019/122613; 2019/122643

Publication restriction: Not Applicable

JUDGMENT

1. On 18 April 2019, Julia Zhu, the plaintiff, commenced proceedings against Dr Penny Lee, and Dr Isaac Mordecai, as first and second defendants respectively, claiming damages for negligence with respect to advice and treatment of a condition diagnosed as “Extramammary Paget’s Disease” (“EMPD”). It will be convenient to refer to these proceedings as the “EMPD claim”.

2. Both defendants deny negligence and defend the proceedings.

3. On 18 April 2019, Ms Zhu as plaintiff, commenced a second set of proceedings against Dr Penny Lee as first defendant, Dr Isaac Mordecai as second defendant, and Dr David Wong as third defendant.

4. In these second proceedings, the plaintiff claimed damages for the negligence of each of the defendants with respect to the diagnoses, advice and treatment of a condition in her right foot relating to a hallux valgus deformity and a dislocated second right metatarsophalangeal joint. It will be convenient to refer to these proceedings as the “foot claim”.

5. Each defendant defends the proceedings and denies any negligence on their part.

6. Both of the proceedings were commenced on behalf of the plaintiff by a solicitor, Mr Sean Keleher of Keleher Lawyers. He is an experienced practitioner in medical negligence claims. No complaint is presently made by any of the defendants about the manner in which the cases have been pleaded by Mr Keleher.

7. On 4 May 2022, in the foot claim, the plaintiff filed an Amended Statement of Claim, by which she discontinued the claims against Dr Lee and Dr Wong. This claim now proceeds only against Dr Isaac Mordecai. He continues to deny any negligence and denies any entitlement of the plaintiff to damages of any kind.

Plaintiff’s Legal Incapacity

8. On 3 October 2023, after a hearing which continued over a number of days, Weinstein J held that he was satisfied that the plaintiff in these proceedings was person under legal incapacity.

9. Weinstein J made:

“A determination that the plaintiff Ms Julia Zhu is a person who is not capable of managing her affairs within the meaning of r 7.13 of the Uniform Civil Procedure Rules 2005 (UCPR) insofar as those affairs concern the conduct of these proceedings.”

10. That determination was made in respect of both of the EMPD claim and the foot claim.

11. His Honour stood the proceedings over to enable the plaintiff to identify an eligible person to act as her tutor, and to enable the relevant and appropriate documents to be filed.

A Tutor for the Plaintiff

12. Thereafter, Mr Norman Zhou, the plaintiff’s son, was appointed as her tutor in both of the proceedings. The appropriate documents were filed.

13. During the period that Mr Zhou was acting as tutor, the proceedings were listed together for a final hearing on 17 November 2025 with an estimate of 10 days.

14. On 18 July 2025, Mr Zhou filed an application to be granted leave to withdraw as the plaintiff’s tutor in both proceedings. That application was heard by me on 28 August 2025.

15. For the reasons which I delivered on that day: see Zhu v Dr Penny Lee; Zhu v Dr I Mordecai [2025] NSWSC 998, I made an order pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), that Mr Norman Zhou be removed, with immediate effect, as the plaintiff’s tutor, in each of the proceedings.

16. Accordingly, the position is that the plaintiff is under a legal incapacity and is, as a consequence, obliged to continue these proceedings by a tutor. Since I ordered the removal of her tutor, at his request, on 28 August 2025, unless and until a tutor is appointed, or else a determination is made that the plaintiff is no longer under a legal incapacity, the proceedings cannot continue.

17. This judgment deals with a number of Motions, and an Application, all of which I heard together on 28 August 2025. On 31 October 2025, I made orders with respect to those Motions. These are the reasons for those orders.

Amended Notices of Motion filed by the Defendant

18. The defendants sought orders in the same terms in each of the proceedings by an Amended Notice of Motion, dated 15 August 2025.

19. In each of those Notices, the following orders remained relevant:

“1. ...

2. The proceedings be stayed pending the appointment of a new tutor pursuant to r 7.18(3) of the UCPR.

3. In the event that an application to appoint a tutor acceptable to the Court is not made by 28 November 2025, the proceedings are to be relisted before the Court at which time the Court will consider whether the proceedings should be dismissed pursuant to rule 12.7 UCPR for want of due despatch and/or permanently stayed pursuant to s. 67 of the Civil Procedure Act 2005 (NSW).

4. Order that pursuant to rule 7.14(2) UCPR, the tutor of the plaintiff (should a person or agency be appointed) may not carry on proceedings except by a solicitor.

5. The hearing listed to commence on 17 November 2025 be vacated.

6. Plaintiff is to pay the Second Defendant’s costs of the Motion and the costs thrown away as a result of the vacation of the hearing date.

7. Any further or other orders as the Court deems fit.”

Amended Notices of Motion filed by the Plaintiff

20. The plaintiff brought an Amended Notice of Motion which had been filed, by her and not by her tutor, on 11 August 2025, in each of the claims.

21. Each of those Amended Notices of Motion sought substantially identical relief. The orders sought were in the following terms:

“1. That the Defendants be found in breach of Court Orders for failing to file and serve their Evidential Statement by the due date of 30 June 2025;

2. That the Hearing scheduled for 17 November 2025 be stayed, noting that proceedings have been ongoing for over five years and litigation will conclude at the final hearing;

3. That the Court reject the Defendants’ request for a permanent stay of the Plaintiff’s claim, which would unjustly terminate her pursuit of justice;

4. That the Plaintiff be granted leave to file and serve her Evidential Statement in each claim by 30 September 2025, noting that the Plaintiff’s only served Evidential Statement on 20 June 2024 and the evidence indicates the claim involves medical fraud rather than simple negligence;

5. That the Plaintiff be permitted to file and serve the Further Amended Statement of Claim in [each] claim by 30 September 2025;

6. That the Plaintiff be permitted to file and serve a new affidavit in [each] claim by 30 September 2025;

7. … the applicant, Mr Michael Bar-Mordecai, be appointed as tutor pursuant to Rule 7.15(5) of the Uniform Civil Procedure Rules 2005 (NSW);

8. That the applicant, Mr Michael Bar-Mordecai, be granted leave to file an affidavit under Rule 7.14(2) of the Uniform Civil Procedure Rules 2005 (NSW), seeking permission to proceed without a solicitor;

9. That the Defendant’s pay the Plaintiff’s costs associated with this Notice of Motion, including preparation and filing;

10. That the Court make any further or other orders it deems fit.”

Application by Michael Bar-Mordecai

22. As well as the plaintiff’s and the defendants’ Amended Notices of Motion, the Court also had before it, for determination, an Application dated 4 August 2025, in which Mr Michael Bar‑Mordecai applied to be appointed as the tutor to act for the plaintiff and to carry on the litigation on her behalf.

23. That application contained the following grounds:

“1. Michael Bar-Mordecai is a suitable person to act as tutor, being:

● A formal medical practitioner with relevant expertise and insight into the subject matter of the proceedings.

● Committed to acting in the Plaintiff’s best interests with integrity and diligence.

2. Michael Bar-Mordecai has no interest adverse to that of the plaintiff and consents to act as tutor.”

24. All of the Motions, and Mr Bar-Mordecai’s Application, were heard together and the evidence tendered was considered with respect to all Motions and the Application.

25. It is convenient to deal first with the application dated 4 August 2025 of Mr Bar‑Mordecai to be appointed as the tutor for the plaintiff.

26. In support of the application, Mr Bar-Mordecai affirmed an affidavit which included the following:

“3. A tutor’s duty is to act in the best interests of the represented party and to help ensure that the conduct of the proceedings remains fair, effective and consistent with procedural and ethical standards.

4. I confirm that I am eligible and able to act as a tutor and will proceed without a solicitor. I understand that I may be reimbursed for reasonable legal costs incurred in the course of fulfilling my duties.

…

9. I contributed substantively to the drafting of the Plaintiff’s Motions and Submissions in these proceedings, with procedural guidance from solicitors who, due to professional constraints, are not publicly identified. The Plaintiff provided all evidentiary content and approved the final documents.

10. The Plaintiff has made extensive and diligent efforts to secure legal representation. These efforts have been unsuccessful due to cost, conflict of interest, or lack of availability. My appointment will support procedural efficiency and safeguard the integrity of these proceedings. The court may assign a tutor to the Plaintiff to maintain fairness and ensure procedural continuation or proper conclusion of the proceedings.”

27. In an affidavit filed on 11 August 2025, by Ms Zhu, the plaintiff, she includes the following material:

“4. The Motion documents and submissions were drafted by Mr Michael Bar‑Mordecai, who has expressed his willingness to confirm authorship, and by solicitors who have chosen to remain anonymous.

5. I take full responsibility for the evidence I have submitted. It is factual, corroborated, and presented in good faith. Its integrity reflects my legal capacity – whether retained or regained – and my commitment to truth and justice.

6. As a citizen of Australia, I bring this matter forward not only as a personal grievance but as a public duty. I stand against fraud and misconduct with courage, conscience, and love for my country.

7. This affidavit is not just a procedural step. It is a declaration of civic responsibility and a call for transparency. I ask the court to consider the substance of the evidence, not the tactics used to suppress it.”

28. The affidavit goes on to articulate allegations of misconduct and corruption against two solicitors, suggesting that they abused their professional power and suppressed key medical evidence to procure false expert reports, and that their actions:

“reflect serious or systemic corruption now within the remit of the National Anti-Corruption Commission under the NACC Act 2022”.

29. The plaintiff avers in her affidavit that she brings her claims:

“… not only to seek redress, but to expose the mechanisms that allow misconduct to persist”.

30. Finally, she includes this paragraph:

“23. I assert my unequivocal right to be heard. The evidence I have submitted is vital to the public interest and the protection of public safety. Any attempt to suppress, ignore or sideline this evidence constitutes a breach of public trust and undermines the integrity of our legal institutions.

…

25. … I speak not only for myself but for others who has been harmed, silenced, or overlooked. My capacity is demonstrated through the evidence I have compiled, the legal process I have followed and the courage with which I continue to act.

26. The issues raised in this matter reflect systemic failures that demand institutional reform. I submit this affidavit not only to seek redress, but to contribute to a broader movement to transparency, accountability and procedural integrity.”

31. In Mr Bar-Mordecai’s affidavit, he refers to being involved in a contested proceedings in the Equity Division, which resolved in his favour in the Court of Appeal. I note that the Court of Appeal judgment in those proceedings was delivered in 2004.

32. Of the 2004 appeal and the underlying proceedings, Mr Bar-Mordecai said:

“The matter involved a contested accusation, which ultimately resolved in my favour by the Equity Court of Appeal in matter No. CA 40225/03, recognising my de facto marriage and overturning prior rulings.”

33. Mr Bar-Mordecai annexed a single page copy of what appears to be a summary of some details of the judgment, although its origins are unclear. It appears to support the statement in his affidavit.

34. What the affidavit of Mr Bar-Mordecai does not reveal is that, in fact, the judgment of the Court of Appeal, Bar-Mordecai v Hillston [2004] NSWCA 65, was in respect of an appeal, by him, in which he sought to set aside judgments which were wholly adverse to him in three separately numbered proceedings, which were heard at the same time for a period of over 40 hearing days by Bryson J in the Equity Division, and subject to one judgment: see Hillston v Bar-Mordecai [2003] NSWSC 89. The proceedings consisted of undue influence proceedings in which the appeal was upheld, in part, with respect to one of a number of impugned transactions. The appeal also concerned Family Provision proceedings in which the appeal was dismissed with costs, and Probate proceedings in respect of which the appeal was also dismissed with costs.

35. It was entirely misleading for Mr Bar-Mordecai to have claimed that a contested accusation was “… ultimately resolved in [his] favour …” by the Court of Appeal, which overturned prior rulings, when the substance and effect of the judgment of the Court of Appeal was that the majority of the appeals were in fact dismissed with costs, and that, in one respect only, a specific gift, was Mr Bar‑Mordecai successful on the appeal.

36. Upon more detailed examination, it is clear that the whole of the judgment of the Court of Appeal does Mr Bar-Mordecai no credit at all. The judgment included these paragraphs:

“185 The appellant’s detailed grounds of appeal and supporting written submissions span 459 pages. There are a further 148 pages of submissions on the credibility of the respondent’s witnesses. There is much overlap and hyperbole. …

186 The remaining grounds have not been overlooked, but they lack any merit. Many return again and again to attacks upon the credibility of the respondents and their witnesses, and allegations of conspiracy and abuse of process. There are also complaints about the trial judge’s well justified refusal to accept the appellant as a witness of credit. There were several strongly-expressed findings as to the appellants credit (see especially at [53]-[66], [69]-[71]). The appellant’s submissions fell very far short of persuading us that the primary judge erred in these assessments.

187 Interspersed with grounds alleging judicial misconduct, denial of natural justice, bias or apprehension of bias, are challenges to procedural directions made during what must have been a particularly difficult trial. These included directions to limit repetitious cross-examination or oral submissions. No error has been demonstrated in these grounds of appeal.

188 The submissions that the primary judge misconducted himself because he did not accept the appellant’s case are contemptuous in both the lay and technical senses of the word. The same can be said about the submission that Bryson J was bound to recuse once the appellant commenced separate proceedings against his Honour claiming damages. …”

37. The credit findings referred to, and which were not overturned by the Court of Appeal at [186] in the above quote, are found in the primary judgment of Bryson J. It is appropriate to record here, some of those findings:

“70 In my evaluation, Mr Michael Bar-Mordecai exhibited extremely unsatisfactory demeanour as a witness. As a witness he was markedly an opportunist. It was extremely difficult, on occasions, to bring him to address directly questions which were important; however he did not have corresponding difficulty in bringing his mind and expression to bear on matters which he perceived to be of assistance to his case. He often gave what were nominally answers which in fact were unresponsive, or instead of answering a question launched into what would perhaps, if the question had been answered, have been an excuse or explanation for an answer adverse to him. He often obtruded references to grievances, including altogether improbable grievances, into answers when the grievances had little or no relation to the matter in hand.

71 I do not believe that Mr Bar-Mordecai is in truth a person whom fate and malignity have exposed to an astonishing number of improbable circumstances, lies and hostilities. When he has given unsupported evidence of something which is improbable, my view is that I should not accept his evidence. In addressing allegations, the evidence for which is solely or substantially evidence of Mr Bar-Mordecai alone, I am unable to find facts on the basis that his evidence is in any way reliable. Written records made by him are also unreliable. It is no use attempting to weigh up degrees of probability and improbability and attempting to assess how much improbability is too much; his evidence is simply unreliable. I do not see any relevant limits to what he would be prepared to say, or to what he would be prepared to accuse somebody else of doing. He would say anything. Some things he has asserted seem like fantasies from the travels of Baron Munchausen. Perhaps some of these are true, but there is no way of concluding that they probably are true. I do not regard any of his evidence as reliable. It is not even appropriate to treat his evidence as reliable when it was, or seemed to be adverse to his own interest, as he had no real perception of what his interest was, and sometimes strongly maintained positions adverse to his apparent interest. Except where his evidence accords with something which is otherwise well-established, … little of what he has himself stated in evidence can be acted on.”

38. The significance of these findings, their affirmation by the Court of Appeal, and the remarks of the Court of Appeal, will be considered in due course.

39. Mr Bar-Mordecai had earlier, in 1994, commenced proceedings in the Equity Division. Those proceedings were determined by a judgment delivered by Einstein J. Einstein J found that Mr Bar-Mordecai was an unreliable and untruthful witness. Mr Bar-Mordecai appealed to the Court of Appeal from the judgment of Einstein J. The Court of Appeal dismissed the appeal with costs, holding that all the findings of fact made by Einstein J were open to him. Other grounds of appeal, including allegations of bias on the part of the trial Judge, and allegations of perjury by witnesses for the respondents to the appeal were dismissed.

40. I note, however, some comments of the Court of Appeal (Sheller, Stein and Giles JJA) in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123, who said this, at [211]-[212]:

“Following the institution of the appeal, the appellant filed a 600 page submission which addressed his Honour’s judgment in the most minute detail. His further written submissions on the appeal, filed prior to the hearing, exceeded 300 pages. During the hearing of the appeal, the appellant handed up three further written submissions totalling 71 pages. On any assessment, the written submissions were prolix. This would be of less concern were it not for the repetitious nature of a great deal of the material. Selective quoting of the evidence was heightened by the frequent reproduction of rejected evidence or evidence not called in the trial or received on appeal. The unnecessarily vituperative nature of much of the almost 1,000 pages, added nothing to its substance.

Many of the frequently repeated submissions were manifestly untenable, and many were manifestly misconceived or lacking in any substance. To address every one of the matters purported to be raised in the submissions of the appellant (written and oral) would be well nigh impossible. …”

41. Again, the significance of these remarks will be considered later.

42. A further matter which Mr Bar-Mordecai does not draw to the Court’s attention is that, on 25 February 2005, an order, pursuant to s 84(1) of the Supreme Court Act 1970 (NSW) (“Supreme Court Act”) was made by Patten AJ, with respect to Mr Bar-Mordecai, in the following terms:

“1. That Michael Jacob Bar-Mordecai shall not, without leave of this court, institute proceedings in any court.

2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any court before the date of this order shall not be continued by him without leave of this court.”

43. There were other consequential orders: see Attorney General v Bar-Mordecai [2005] NSWSC 142.

44. By reason of the introduction on 1 December 2008 of the Vexatious Proceedings Act 2008 (NSW) (“Vexatious Proceedings Act”), orders which had been made prior to commencement of that Act pursuant to s 84 of the Supreme Court Act which were still in existence at that time, were taken to be, and to have effect as if, the order was a Vexatious Proceedings Order made under s 8 of the Vexatious Proceedings Act. The orders made by Patten AJ, although later varied, remain in effect.

45. The basis of the order made by Patten AJ was that Mr Bar-Mordecai habitually instituted and continued to pursue proceedings which were without any legal merit, were manifestly hopeless, and which, in many cases, were reserved for collateral purposes, including the intention of annoying or embarrassing the persons against whom the proceedings were brought.

46. It is apparent from the judgment of Patten AJ that, consequent upon the lack of success of Mr Bar-Mordecai in the proceedings before Einstein J, and on appeal, he instituted further proceedings against a number of witnesses in the proceedings, the two barristers and the solicitor who had acted for the opposing, successful party and against another solicitor who, although not acting for any party in the proceedings, had allegedly purposefully recruited a witness to give perjured evidence for the party opposed to Mr Bar-Mordecai.

47. All of these proceedings were either discontinued or dismissed but clearly represent “satellite litigation” of a kind then regarded as appropriate by Mr Bar‑Mordecai to commence.

48. In 2018, the Attorney-General of NSW sought a variation of the orders made by Patten AJ. The proceedings were determined by Fagan J, who gave reasons in his judgment: Attorney-General for NSW v Bar-Mordecai [2019] NSWSC 13.

49. Fagan J reviewed a large number of proceedings which occurred after the orders made by Patten AJ.

50. With respect to the making of the varied orders, Fagan J made these comments about the manner in which Mr Bar-Mordecai went about defending the proceedings brought by the Attorney-General. He said:

“In my view, these considerations justify the variation to Patten AJ’s order as sought by the plaintiff. Mr Bar-Mordecai has offered no rational argument against this. He filed on 2 October 2018 a written submission opposing the relief claimed by the plaintiff. This comprised 138 pages of discursive diatribe against all members of the New South Wales courts and tribunals who have at any time made decisions concerning him. It commences as follows:

‘The Defendant submits that it is in the public interest to disseminate these submissions and the evidence relied on in support of these submissions, to both the national media and international media, in order to expose the inherent judicial corruption in the State jurisdiction, and in all levels of the Courts in the State of NSW jurisdiction, i.e. the Local Court, the District Court, the Supreme Court, and the Court of Appeal of the Supreme Court of NSW, as well as the former Medical Tribunal of NSW and the newly created, as of 2014, the NSW Civil and Administrative Tribunal.’

The balance of the document is expressed in similarly extravagant language. There is in fact no ‘evidence relied on in support of these submissions’. The numerous decisions adverse to Mr Bar-Mordecai are referred to in his submissions, together with his bald assertions that all these decisions are vitiated by corruption. All decision-makers are referred to as ‘judicial assailants, conspirators, perverts’, ‘demented judicial assailant[s]’, ‘judicial dement[s]’ and the like. Legal representatives of parties who have opposed Mr Bar-Mordecai are the subject of similar name-calling and unsubstantiated allegations.

The document provides no argument pertinent to either the amendment of Patten AJ’s vexatious proceedings order or the stay of Mr Bar-Mordecai’s proceedings commenced in the C&A Tribunal on 31 August 2018. It would not be useful to provide a summary or to attempt an analysis of the 138 pages of submissions. They are a tedious enumeration of presently irrelevant, impassioned assertions of wrongdoing by courts, tribunals and lawyers. The only insight gained from them is that Mr Bar-Mordecai clearly has an obsessive preoccupation with disputing his deregistration. He is incapable of being relevant to matters in issue. He lacks capacity to bring reason to bear upon issues, and he has a disinhibited reflex to deploy vile abuse instead of argument. …”

51. It is also apparent from the evidence that, in these proceedings, with respect to at least the EMPD claim, that there has been significant documentation sent to the defendants, purportedly from the tutor, Mr Norman Zhou. But Mr Zhou informed the defendants these were not emails that he generated or consented to. They were sent from an email address with the title “Associate to Mr Zhou”. His usual and ordinary email address was not used.

52. One such set of documents sent to the defendants, by email, on 2 July 2025, contained 75 pages relating to the EMPD claim which makes allegations that the second defendant fabricated medical records, made false representations in his defence and engaged in conduct which contributed materially to a fraudulent peer review report, which had been served in the proceedings.

53. The allegations suggest that the conduct of the second defendant constitutes grave professional misconduct and may give rise to criminal liability. The documents make an allegation against two other individuals – one a solicitor and the other an expert medical practitioner. Although described as defendants, neither of those individuals are, in fact, defendants. The submissions alleged against the solicitor, that she:

“orchestrated and transmitted fraudulent medical information and falsified clinical history in her letter of instruction”.

54. The submissions claimed that, in so doing, she breached her professional and ethical duties, and she participated in a coordinated scheme of evidentiary fraud and procedural abuse. The submission says:

“Her involvement forms part of a broader conspiracy to conceal negligence, mislead the judiciary and defend the plaintiff’s claim through deceit and misuse of court process.”

55. With respect to the medical expert, it is claimed that he:

“knowingly relied on false instructions to produce a fabricated peer review report”.

56. This prolix document is riddled with unsupported allegations of conspiracy, fraud, deliberate concealment of evidence, coordinated deception and “conspiracy and judicial misconduct”. Extravagant language is used.

57. It is apparent that the submissions are made in support of the plaintiff being granted leave to file a Further Amended Statement of Claim. These are documents, I am satisfied, prepared by, or at least with a significant input from, Mr Bar-Mordecai and well reflect the remarks of Fagan J, to which I have earlier referred.

58. I should also note that Mr Bar-Mordecai has provided a written statement dated 30 January 2023, which is relied upon as part of the proceedings brought by Ms Zhu. In that statement, it provides direct evidence of what occurred at some of the consultations which he attended, he purports to comment on the professional conduct of the doctors at those consultations and gives expert evidence about anomalies which he has derived from clinical notes, and about which he expresses opinions adverse to the defendant practitioner.

59. It is clear from the review of the past behaviour of Mr Bar-Mordecai, in the manner in which he has gone about litigating claims in the Equity Division and the Court of Appeal, that he is a person upon whose word the Court cannot rely, in the absence of independent corroborative evidence. If Mr Bar‑Mordecai was appointed as tutor, and, as he claims he should be able to, was allowed to conduct litigation, including appearing for the plaintiff in Court, the fact that the Court could not trust him to tell the truth to it is a matter of significant concern.

60. As well, it is possible to discern, in the contents of the written submissions and the extravagantly phrased claims of fraud, conspiracy, deception and criminality on the part of the defendants to the litigation, their solicitors and an expert witness, the same pattern of allegations which were engaged in by Mr Bar‑Mordecai in the litigation to which I have referred above.

61. In other words, the Court can have no confidence that any litigation conducted by Mr Bar-Mordecai would be conducted reasonably and rationally. The allegations in the current litigation reflect the same type of unmeritorious allegations which were made in earlier litigation. Many parts of the earlier litigation were held to be vexatious and without proper cause.

62. It is also clear that the manner in which, in recent times, Mr Bar-Mordecai has assisted the plaintiff to make submissions, draft documents, and falsely in the name of the tutor, to attempt to progress this litigation, falls well within the description of the way in which submissions were made, arguments put and documents provided in the earlier litigation.

63. All of these, in combination, are very sound reasons why the Court would not permit Mr Bar-Mordecai to act as the plaintiff’s tutor. They are also very substantial reasons why, even if Mr Bar-Mordecai was permitted to act as tutor, he would not be permitted to conduct the proceedings contrary to the requirements in the UCPR that, where proceedings are conducted by a tutor, the tutor must act by a solicitor.

“abused their professional power, issued tailored letters of instruction, and suppressed key medical evidence to procure false expert reports...”

68. That conduct is described as reflecting:

“serious or systemic corruption, now within the remit of the National Anti-Corruption Commission under the NACC Act 2022.”

69. It is entirely clear from the terms of the National Anti-Corruption Commission Act 2022 (“NACC Act”), that neither of the named private solicitors are a public official within the meaning of s 10 of that Act. Nor is it said that any of their conduct, in the course of this private litigation, adversely affects or could adversely affect, whether directly or indirectly, the honest and impartial exercise of any public official’s powers as a public official, or in the honest or impartial performance of any public official’s functions or duties.

70. The claim that such corruption exists, or else is subject to the provisions of the NACC Act, is simply unsustainable. It should not form any part of these proceedings.

71. I am also satisfied that Mr Bar-Mordecai was dishonest in his application to be appointed as tutor. He pretended that the appeal to the Court of Appeal in 2004, to which I have referred above, resulted in findings in his favour, thereby suggesting that he was able to conduct complex litigation properly and effectively. Nothing could be further from the truth. He conducted litigation in front of Einstein J which was hopeless and unsuccessful. With one exception, his litigation in front of Bryson J was wholly unsuccessful, as was his appeal to the Court of Appeal.

72. None of that was mentioned by Mr Bar-Mordecai in his application, nor did he provide a complete picture to his otherwise misleading contention.

73. Additionally, Mr Bar-Mordecai did not disclose that he had been the subject of vexatious proceedings orders made by Patten AJ, and varied by Fagan J.

74. His failure to disclose these matters, I see as an attempt to ignore them, or conceal them from his opponents to the application, and the Court.

75. The very fact that Mr Bar-Mordecai is the subject of a vexatious proceedings order, which has been maintained for 20 years, during which period it has been broadened and varied, is itself and without more, a very good reason why he would not be appointed as tutor to conduct any proceedings.

76. Because of the vexatious proceedings order, Mr Bar-Mordecai requires the leave of the Court before he can commence proceedings. Here, proceedings have been commenced. To permit Mr Bar-Mordecai to conduct the proceedings in circumstances when he has not first obtained the leave of the Court to take steps in the proceedings, and without any restraint upon the making of extravagant claims, either in interlocutory proceedings, or simply in correspondence and documents sent to the other side, would be to allow him to evade the restrictions created by the vexatious proceedings order.

77. Such an approach to litigation would be inimical to the administration of justice. It cannot be permitted.

78. Accordingly, for these reasons I dismissed Mr Bar-Mordecai’s application to be appointed as tutor.

Status of the Proceedings

79. As a consequence of the order which I made granting leave to Mr Zhu to withdraw as the tutor for the plaintiff, and in light of the conclusion I have reached with respect to the application by Mr Bar-Mordecai to be appointed a tutor, the state of these proceedings is such that the plaintiff remains a person under legal incapacity and she does not have a tutor appointed.

80. Accordingly, r 7.14 of the UCPR prevents the plaintiff from carrying on the proceedings.

81. Rule 7.18(3) of the UCPR provides that, where a Court removes a tutor for a party, the Court may also stay the proceedings pending the appointment of a new tutor.

82. The Amended Notice of Motion brought by the defendants, in each case, seeks an order pursuant to r 7.18(3).

83. It is appropriate for the Court to make such an order.

84. However, any such stay should not prevent a person applying to be appointed tutor for the plaintiff, or else an application being made for a declaration, or other appropriate relief, to establish that the plaintiff is no longer under a legal incapacity.

85. Accordingly, an order staying the proceedings, subject to exceptions to which I have just referred, is the appropriate order.

86. Amongst other reasons why such a stay should be ordered, is that the continuation of the proceedings where the plaintiff is under a legal incapacity, and does not have a tutor appointed, will inevitably cause cost and expense to the defendants. In the present circumstances, it would be contrary to the interests of justice to require the defendant to meet a case in proceedings which are not properly constituted because of the absence of a tutor, and it would be prejudicial to the defendant for them to be obliged to incur costs in any such respect.

87. The consequence of this order for a stay is that the order sought by the defendant in its Notice of Motion, that the hearing of the proceedings listed on 17 November 2025, be vacated.

88. The reason that this is necessary, at this stage, is that it cannot possibly be envisaged that even if a tutor was able to be appointed to conduct the proceedings on behalf of the defendant, it would be necessary for that tutor, as obliged by the UCPR, to retain a solicitor, for that solicitor to then prepare for a hearing to be conducted in November, to find and brief available counsel appropriately, and for proper preparations to occur.

89. There is simply not enough time for all of that to occur and for the Court to expect that the proceedings will be conducted, as they ought be, by reference to the real issues, efficiently and in a cost-effective way.

90. Additionally, it is clear, to the extent that one can take notice of documents filed by the plaintiff, even allowing for her legal incapacity, she has evinced an intention to file an Amended Statement of Claim in each of the proceedings. Put differently, she has evinced an intention not to proceed with any hearing on the current pleadings.

(i) any application pursuant to Rule 7.8 of the Uniform Civil Procedure Rules 2005 (NSW) for the appointment of a tutor to carry on the proceedings for the plaintiff; or (ii) any application for a declaration that the plaintiff is no longer a person under legal incapacity or is a person who is no longer required to carry on these proceedings by a tutor.

5. Order that the hearing listed to commence on 17 November 2025 be vacated.
6. Order that the costs of the Defendant’s Amended Notice of Motion filed 15 August 2025 be reserved.
7. Otherwise dismiss the defendant’s Amended Notice of Motion.
8. List the proceedings for directions before the Common Law Registrar on 10 December 2025 at 9am to ascertain the status of the proceedings.

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