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Parties: 2019/00122613
Julia Zhu (Plaintiff)
Dr Penny Lee (First Defendant)
Dr Isaac Mordecai (Second Defendant)
2019/00122643
Julia Zhu (Plaintiff)
Dr Isaac Mordecai (Defendant)
2026/00166847
Julia Zhu (Plaintiff)
Isaac Mordecai (First Defendant)
Shaun Jackson (Second Defendant)
Suzanne Wallace (Third Defendant)
Caroline Brady (Fourth Defendant)

Representation: Counsel:
TA Berberian (Defendants)
Solicitors:
Plaintiff (self-represented)
Moray & Agnew (Defendants)

File Number(s): 2019/00122613;
2019/00122643;
2026/00166847

Publication restriction: Nil

JUDGMENT

1. On 18 April 2019, Julia Zhu commenced proceedings against Dr Penny Lee, a dermatologist, and Dr Issac Mordecai, a general practitioner. She alleged that the defendants failed to appropriately advise and treat her in respect of a condition known as Extramammary Paget’s Disease (“the EMPD claim”). Both defendants denied they were negligent, and continue to defend the proceedings.

2. On the same day, Ms Zhu commenced another set of proceedings against Dr Penny Lee, Dr Mordecai, and Dr David Wong, a dermatologist. In those proceedings Ms Zhu alleged that the defendants were negligent with respect to their diagnosis, advice and treatment of a right foot condition relating to hallux valgus deformity, a dislocated second right toe and some skin issues in respect of that foot (“the Foot claim”). The defendants denied they were negligent. In May 2022, an amended statement of claim confined those proceedings to Dr Mordecai only.

3. In October 2023, after a three day hearing in circumstances I will come to, Weinstein J ordered that Ms Zhu was “A person who is not capable of managing her affairs within the meaning of r 7.13 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) insofar as those affairs concern the conduct of these proceedings”.

4. On 31 October 2025, Garling J ruled, (in the absence of any suitable tutor being available), that both proceedings be stayed until further order, except for any application under r 7.8 of the UCPR for appointment of a tutor, or any application for a declaration the plaintiff is no longer a person under legal incapacity: Zhu v Dr Penny Lee*; Zhu v* Dr Issa**c Mordecai [2025] NSWSC 1326 (“Zhu 2025”).

5. On 16 October 2025, apparently in anticipation of Garling J’s orders, Ms Zhu filed a notice of motion in each proceeding seeking orders that she be found by the Court to have capacity to conduct the proceedings without a tutor, that she be permitted to act on her own behalf in the proceedings, that the proceedings should not be dismissed or stayed, and that the final hearing listed for 17 November 2025 should proceed as scheduled.

6. An amended notice of motion was filed in each proceeding on 12 January 2026 seeking orders to similar effect, but adding an order that her former solicitor Mr Keleher “had no standing to make a capacity application or allegation about his former client…” and that “the insurer’s solicitors have no standing to intervene in the capacity proceedings and that their conduct constituted a misuse of process”. An order was also sought in these terms:

“A finding that the defendants’ capacity allegation relied on Mr Keleher’s affidavits sworn 14 March 2023 and that the plaintiff Julia Zhu, subsequently provided affidavit evidence exposing the defendants’ solicitors’ misconduct in 2021 and 2023, such that the capacity allegation was made without evidentiary foundation”.

7. Also for determination is a notice of motion filed by the defendants on 30 April 2026 in related proceedings that were commenced by Ms Zhu on 23 April 2026 (“the 2026 Proceedings”). The statement of claim commencing those proceedings runs to 41 pages and asserted to be filed in the “Fraud and Medical Fraud” List and names as defendants, Dr Mordecai and three solicitors associated with the conduct of the defence of Ms Zhu’s Foot and EMPD claims.

8. The defendants seek summary dismissal of the 2026 Proceedings, and in the alternative, that the statement of claim be struck out, and/or a ruling that Ms Zhu cannot commence or carry on those proceedings except with a tutor due to legal incapacity.

9. Ms Zhu opposed the orders sought by the defendants.

10. Ms Berberian, counsel for the defendants in all three proceedings, submitted that in addition to the affidavit evidence that I will come to, the Court could and should take into account the conduct of Ms Zhu around the preparation of court documents and her in Court conduct in reaching any conclusions in respect of the notices of motion. I accept that submission and will, later in this judgment make some reference to those matters.

11. For the reasons that follow, I dismiss Ms Zhu’s notices of motion filed in each of her 2019 proceedings with an order that she pay the defendants’ costs.

12. I also dismiss the 2026 Proceedings with an order that Ms Zhu pay the defendants’ costs, and make an order that Ms Zhu is incapable of managing her affairs within the meaning of r 7.13 of the UCPR in so far as those affairs concern the conduct of those proceedings.

Procedural history

13. Both the Foot and EMPD claims were commenced by appropriately formulated statements of claim filed and certified by a solicitor, Sean Keleher. He is an experienced medical negligence practitioner.

14. In July, September and October 2023 over three days, the Court, (Weinstein J), of its own motion under r 7.18(6) of the UCPR heard an application to have a tutor appointed to act for Ms Zhu in the proceedings. Ms Zhu opposed this application.

15. On 3 October 2023, Weinstein J produced a thorough (confidential) judgment which included assessments of the evidence and cross-examination of Ms Zhu’s general practitioner, Dr Vo, and the evidence and submissions of Ms Zhu. He concluded that Ms Zhu was a person under legal incapacity limited to the conduct of the Foot and EMPD proceedings. The order his Honour entered was as follows:

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

16. That hearing occurred in the absence of the legal representatives for the defendants. Mr Keleher had by that stage ceased to act for Ms Zhu, but appeared amicus curiae and to assist the Court with relevant material and legal principles. The judgment remains unpublished although available to me on the Court file. No copy of the judgment has been provided to the solicitor for the defendants. There was no appeal filed from that decision.

17. In August 2025 Garling J heard a number of applications in respect of the proceedings. One concerned permitting Ms Zhu’s son Norman to cease to act as tutor. (He had been appointed tutor in October 2023). That leave was granted on that day: Zhu v Dr Penny Lee; Zhu v Dr I Mordecai [2025] NSWSC 998. Another was an application by the defendants for a stay of proceedings pending the appointment of a new tutor, and in the absence of any such application being made by late November 2025, dismissal of the proceedings under r 12.7 of the UCPR and/or a permanent stay under s 67 of the Civil Procedure Act 2005 (NSW) (“the Act”). A third application was filed by Ms Zhu seeking to add to the proceedings to act as her tutor a known vexatious litigant, and brother of the defendant Dr Mordecai, Michael Bar-Mordecai, and opposing the defendants’ application for a stay: Zhu 2025.

18. Garling J dismissed Ms Zhu’s applications. He granted the defendants’ application for a stay, excepting any application pursuant to r 7.8 of the UCPR for the appointment of a tutor to carry on proceedings for the plaintiff, and/or 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. Garling J also vacated the hearing that was listed to commence on 17 November 2025, and set out his reasons for refusing to allow Mr Bar-Mordecai to act as tutor.

19. Ms Berberian submitted that the stay of proceedings ordered by Garling J is important because Ms Zhu has, in filing the 2026 Proceedings, sought to “circumvent the stay” by commencing other proceedings that seek to ventilate her dissatisfaction with those other proceedings. On my assessment, Ms Zhu’s approach shows the same key difficulties as those identified by Weinstein J in 2023. They include an incapacity to understand what is relevant to her proceedings and what is not, the impact of particular evidence in her case, the Court’s processes and basic rules for conducting her case, Court rulings and their effect, and the role of legal representatives for the defendants. Weinstein J noted evidence of what he described as outrageous allegations of misconduct against the defendants’ solicitors and against her own former solicitor, a lack of insight, a concern that Ms Zhu does not understand that her claims could fail, and the consequences if that occurs. His Honour also found that there was evidence that she has unreasonable beliefs about the value of her claim and that she does not understand her entitlements at law.

20. I hold the same concerns based on what has been presented to me on 13 May 2026.

21. Unfortunately, the contents of Ms Zhu’s statement of claim filed in the 2026 Proceedings in the “Fraud and Medical Fraud” List demonstrates clearly these incapacities and Ms Zhu’s inability to understand these essential things. Instead, she has concluded that there has been collusion and conspiracy, and that she must pursue this litigation “… not only for me now. For my grandchildren, my son, the rest of the people. Yeah. For the community, Yeah”. [1]

The hearing

22. At the hearing of the notices of motion Ms Berberian appeared for the defendants in each of the three proceedings. Ms Zhu appeared for herself. Ms Zhu relied upon a two-volume court book that had been provided to the Court on 6 May 2026. Provision by that date was in accordance with the Court’s directions and some of the court book was at least relevant to the issues.

23. Ms Zhu relied upon volume 1 of her court book and the affidavits contained in it as the principal evidence supporting her application for recognition of legal capacity. Those affidavits were filed 24 February 2026, 16 October 2025, 24 February 2026, (titled fourth affidavit - Errors in the 2023 capacity hearing judgment), and an affidavit filed on 12 January 2026 titled “authorities/case law”. The 16 October 2025 affidavit included observations of a general nature by her general practitioner and accountant that she was able to conduct a business and engage in medical treatment and advice and act on that treatment and advice.

24. The 24 February 2026 affidavit annexed the same psychiatrists’ reports that were before Weinstein J in 2023. Neither were directed to Ms Zhu’s legal capacity. They were assessments of her psychiatric sequalae from her Foot and EMPD claims. In 2020 Dr Teoh found Ms Zhu to be depressed and unable to work. Dr Rees in 2022 concluded Ms Zhu had a major depressive disorder. Only a selected part of Mr Keleher’s affidavit was provided, producing a misleading impression that Mr Keleher thought Ms Zhu held the necessary capacity. A review of his whole affidavit indicates that while Mr Keleher was initially of that view, it changed. A text from a junior barrister stating Ms Zhu would “be a good witness” was also attached. This text establishes nothing in terms of legal capacity. A great deal of the affidavit material comprised misdirected comments and analysis by Ms Zhu in the nature of submissions. Extensive complaint is made by her about Weinstein J’s judgment based on her misunderstandings of the applicable principles and law.

25. Ms Berberian took a practical approach to this material, noting that such divergences were a matter of weight, as opposed to taking technical objections. I embraced that approach.

26. Ms Zhu also relied on her written submissions filed 8 April 2026 titled “Capacity hearing recognition of capacity submissions integrated with standing and jurisdiction” and written submissions titled “Plaintiff’s Responding Submissions”. Ms Zhu also handed up in Court a hard copy of her speaking notes for her oral submissions.

27. The defendants relied upon the court book tendered in the 2025 notices of motion heard by Garling J to provide background information, as well as two affidavits of solicitor Shaun Jackson, sworn 26 March 2026 and 29 April 2026. Reliance was also placed on the helpful outline written submissions of Ms Berberian dated 1 May 2026 which included a chronology of the procedural history.

28. The defendants relied on the same material in respect of their application to strike out the 2026 statement of claim or/and to dismiss those proceedings. Succinct and helpful written submissions of Ms Berberian dated 8 May 2026 were provided in support of that application.

29. In response to the defendants’ application, Ms Zhu informed the Court that she relied on volume 2 of her court book which included what were described as second affidavit setting out the plaintiff’s allegations of the defendants fraud and medical fraud, annexures to the second affidavit - Documentary material supporting the allegations, and her “sixth affidavit” identifying Mr Jackson’s “fabrication of the plaintiff’s mental status in the misleading psychiatric instruction letter”, and her seventh affidavit providing authorities “relevant to fraud, medical fraud corruption and procedural misconduct”.

Relevant principles – legal incapacity

30. There is a presumption at law that a person is capable of managing his or her affairs: Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 at [36] per Handley JA. In other words, the legal capacity of an adult is presumed, unless and until it has been probatively contradicted: Masterman-Lister v Brutton and Co (Nos 1 & 2); Masterman-Lister v Jewell [2003] 1 WLR 1511.

31. Here, that presumption is subject to the order made by Weinstein J in October 2023 that Ms Zhu is under legal incapacity for these proceedings and so the presumption does not apply to Ms Zhu.

32. The task I have to determine is whether that position has changed, and she is now no longer under that incapacity.

33. Section 3 of the Civil Procedure Act defines a person under legal incapacity as including five classes of persons. Ms Zhu does not fit into any of those classes. Weinstein J’s approach was to examine the “affair which must be managed”, (her medical negligence cases), and the key aspects of them, measured against the evidence that suggested that Ms Zhu was not able to carry out those tasks as required.

34. As stated by Hallen J in Rappard v Williams [2013] NSWSC 1279 at [76]:

“Whether a person is under a legal incapacity is always a task, and time- specific matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question at the particular time: Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 at [174] - [175]; Azar v Kathirgamalingan [2012] NSWCA 429, per Campbell JA, at [168]. In this case, whether the Plaintiff is a "person who is under a legal incapacity in relation to the conduct of legal proceedings" must be considered. Thus, even though a party may be able to carry out tasks associated with daily living, she, or he, may lack the capacity to understand and evaluate the matters involved in the conduct of legal proceedings, and for that reason fall within the definition of "person under legal incapacity".”

35. The question of legal incapacity has been recently examined by the NSW Court of Appeal in a slightly different context in Mahmoud v Ghahreman [2026] NSWCA 52. There, the applicant was attempting to persuade the Court that at the time orders were made concerning him in the District Court, he was a person under legal incapacity. Kirk JA (with whom the other members of the Court agreed) collated the following principles:

“[28] 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.

[29] 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 Masterman-Lister at [75]; Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193; [2004] SASC 102 at [26]; Rappard v Williams [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 Slaveski v Victoria (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 “potentially relevant to the question of capacity”: Mao v AMP Superannuation Ltd [2017] NSWSC 987 at [19] (emphasis added).

[30] 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.

[31] 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].”

Ms Zhu’s submissions

36. Ms Zhu’s written and oral submissions showed only limited insight into what is required to demonstrate that she is no longer under the relevant legal incapacity. She submitted incorrectly that the legal test is “understanding, reasoning and decision-making”. Compounding that misunderstanding, she submitted that on 23 April 2026 she made a clear and reasoned decision to file a statement of claim pleading fraud and medical fraud.

37. Ms Zhu showed some understandings that were correct, but only ones that favoured the outcome for which she contended. She submitted that legal incapacity is not necessarily permanent, and if capacity is regained, the need for a tutor falls away. Ms Zhu submitted that the structure of her written material could and should be taken into account to show that she understands well the requirements of the legal proceedings.

38. Ms Zhu raised two preliminary issues. One was that the defendants, in her view, had no standing to appear and oppose the orders sought in her amended notices of motion. She also submitted that the defendants’ notice of motion seeking to strike out the 2026 Proceedings effectively demonstrated their lack of objectivity and bad faith. Ms Zhu asserted that this was in further pursuit of their fraud and medical fraud committed upon her.

39. Second, Ms Zhu submitted that there were errors in the 2023 judgment of Weinstein J in which he found that she was “not capable of managing her affairs insofar as those affairs concerned the conduct of these proceedings”. She submitted that his Honour had not applied the correct legal test and that he had disregarded the opinion of Dr Vo who gave evidence that she had “full capacity”. She submitted that the reports of Dr Teoh and Dr Rees (psychiatrists) indicated that she had full capacity and that correspondence from her solicitor and a junior barrister in 2023 also confirmed that she had capacity. Ms Zhu submitted that Dr Teoh on mental state examination of her in 2020 described her as coherent and not thought disordered. Dr Rees on mental state examination in 2022 made various positive findings regarding absence of any acute psychosis, that her English was good, that she was not showing any errors in cognition and no acute mental illness. Ms Zhu noted that she understood that medical evidence is not required for the capacity issue, but submitted that she thought it was very important that those medical practitioners and those two lawyers considered her to be competent.

The defendants’ submissions

40. Ms Berberian submitted that the material in the court book from the 2025 hearing before Garling J demonstrated the difficulties Ms Zhu was evidently having in dealing with and understanding the litigation. She submitted that Ms Zhu’s notices of motion are not and cannot be an appeal from Weinstein J’s decision as to capacity, and so his Honour’s decision remains authority for what it concluded and that is that the applicant is under a legal incapacity in respect of her medical negligence proceedings and must be treated as such. Ms Berberian noted that the authorities relied on by the applicant were mainly Western Australian authorities that dealt with the definition of a person under a disability under Order 70 r 1 of the Rules of the Supreme Court 1971 (WA), and so none of those authorities are relevant. Order 70 r 1(c) is directed to a person "who, by reason of mental illness, defect or infirmity, … is declared by the Court to be incapable of managing their affairs in respect of any proceedings to which the declaration relates”. Ms Berberian submitted that there were no updating medical or other materials that show any change in Ms Zhu’s capacity to deal with the subject matter of these proceedings. The medical evidence and other matters referred to by Ms Zhu were all before Weinstein J, and could not be considered to be new or different.

Ms Zhu’s reply submissions and the Court’s observations

41. In reply, Ms Zhu read aloud the following conclusion contained in paragraph 74 of the judgment of Weinstein J:

“It is important to make clear that this is not a finding that ZJ lacks capacity to manage all of her affairs. Indeed I accept Dr Vo’s evidence that she functions normally in her daily life. Rather, this is a finding that ZJ lacks capacity to manage her affairs with respect to her two medical negligence claims: see re WS at [48]. This finding is protective. It is a finding that I make in the best interests of the plaintiff.”

42. The fact that Ms Zhu relies on this paragraph as somehow supporting that she has capacity to conduct the proceedings, indicates the level of difficulty she is having in understanding the order that Weinstein J has made in the proceedings and his very clear and considered reasons for that order. Ms Zhu also seems to have trouble understanding that the hearing before me was not an appeal from his Honour’s decision, and in the absence of new evidence, there was no basis for me to now find that she has capacity, other than my observations of her presentation in Court and the written material she tendered, most of which was the same or similar to what Ms Zhu put before Weinstein J.

43. Whilst Ms Zhu started her submissions in a structured and relatively contained fashion, as the morning went on, Ms Zhu became repetitive and perseverant about aspects of her case(s). She became voluble, and her arguments circular and more repetitive. It became increasingly difficult to redirect Ms Zhu to the issues. Some submissions were difficult to decipher. There was a repetitive focus on dates and issues already heard and dealt with. Old grievances and confusion regarding the litigation process, and in particular, those matters relevant to necessary medical assessments and the methodology of retainer of experts for opinion in her medical negligence cases, featured in a repetitive fashion. Ms Zhu insisted that these (standard and unexceptionable) practices had a nefarious intent and were part of a conspiracy and fraud by various persons to try and defeat her medical negligence claim.

44. Without in any way being disrespectful to Ms Zhu, but to illustrate her difficulties, the voluble, tangential and confused nature of the developing submissions led to her conclusion that the conduct of the defendants’ solicitors in investigating her medical negligence claims was: “too dark, too deep, too wild. You couldn’t believe that’s happen in Australia”. [2]

45. This was Ms Zhu’s explanation as to why she commenced the April 2026 proceedings and her understanding of what those proceedings entail:

“PLAINTIFF: They talk about, they talk about ‑ the barrister talk about called vexatious. I think you can use any medical legal team to say that. But it's not match. They didn't provide any evidence in Jackson's affidavit and no material prove their standing. They can, they can allegation, like me, the plaintiff's capacity. They didn't prove anything, nor any evidence in Jackson's affidavit, but I think it's too hard for him. He really has no evidence and it's hard.

In 30 June 2025, the Court made order and the defendants should provide statutory ‑ evidentiary statement and they breached the court order. They didn't provide any evidentiary statement. I think it is they can't provide and they couldn't provide what they can say, what they can do.

They did all this fraud, medical fraud, the medical fraud by Dr Mordecai, not Dr Lee, and they tried to protect their client. They tried to help the medical insurance company. They served their duty in a bad way. This is, I say, fraud.

Fraud. There are several things you have to consider. The motive. The financial. Conspiracy, a group of people can assert together, co‑ordinate, provide three fraudulent reports.

In here, the medical ‑ no. The first report, the fraudulent report, I used many pages, line to line, each sentence in the letter of instruction. They have no base to claim I have kind of disease I have never had. Kelleher or Rees. Dr Mordecai put in my history, say I suffered psoriasis from my fifth year ‑ 51. There is no proof. He just add on, try to cover his medical negligence.

Medical negligence is not that big, that serious, but he drove into deeper. He worked with Ms Brady, made fraudulent peer review report, and made a false medical report. You will see the report, and I couldn't believe a well‑trained doctor will make such a false report.

But I know my case. I have all the materials in my hands. I prove each part, each line. They can't get away. I have sufficient ground to prove my claim. I accept the consequences. I will spend my time. I have to study. I have to do. I have to search. I have to write. Yeah. But that's I am willing to pay. I want to spend the rest of my life better on that. I wait to see the justice come to the horizon not because they are big company, they have money to support them. That's not issue. I want the company or their legal company, their product, no. What they did, it's like an old worn out book they do. Yeah. If I found someone they did it to them, I will go further. I am. These days, I take care of myself. I want to live longer for expose this fraud and medical fraud. I think people should be wise. They should accept their mistake. I will forgive. The community will forgive. They, at one stage, they made a mistake. But you can't further, and further, and further.

Since 2019, the first fraudulent peer review report up to now ‑ now ‑ it's 7 years almost. Yeah. I fight for 7 years. My English has improved. My reading has improved. I was quiet person. Now I want to speak out at any stage. Yeah. I can better on my health. My life, I want clean this one. People should be honest, admit you did wrong. Yeah.

Each step, each step they do, now it's nine. Plus, this Court. And they lodged last motion. Ten fraud action. I gave evidence for each fraud action. There is a consequences when you do a thing wrong. You do wrong thing. Yeah. If I made a mistake, I take. I take consequences. I don't look like very weak person. I will last for another few more years. I will better.” [3]

46. Even making allowance for the fact that English is not Ms Zhu’s first language, those submissions underscore Ms Zhu’s misunderstandings of the medical negligence proceedings and her misguided approach to the 2026 Proceedings and demonstrate why she needs to be assisted by an appropriate tutor.

Decision on legal incapacity in the 2019 proceedings

47. I have concluded that nothing in the evidence tendered by Ms Zhu would provide any basis for making a declaration that she now has the legal capacity to conduct those proceedings without a tutor. If anything, the difficulties identified by Weinstein J in his October 2023 judgment seem to have become more entrenched.

48. The second order sought by Ms Zhu, permitting her to act on her own behalf cannot be made given that the first order fails. An order that a final hearing proceed as listed - so, in effect seeking a lifting of the stay imposed on the proceedings by Garling J - also cannot be made given that there is no tutor. The fourth order requests a finding in relation to Mr Keleher’s standing to have appeared and assisted the Court at the incapacity hearing in 2023. There is no basis to make any such order and I decline to make any such finding.

49. In respect of the defendants’ solicitors having standing to “intervene in the capacity proceedings”, and that their conduct constituted “a misuse of process”, the position taken by the solicitors and counsel for the defendants was confined to providing the Court with documents that inform the background of the proceedings.

50. The defendants have not been provided with a copy of Weinstein J’s decision as to capacity, and so made no comment in respect of it. Relevantly, Ms Berberian drew attention to the 2026 Proceedings commenced by Ms Zhu as a matter to take into account on the question of capacity, given the content of the statement of claim.

51. It seems to me in pursuit of their obligations under s 56 of the Civil Procedure Act, it was incumbent on the defendants to at least assist the Court with relevant documents. This does not amount to “intervening” in the capacity proceedings. It most certainly does not constitute any kind of abuse, or misuse, of process.

52. Prayer 6 of Ms Zhu’s motion is worded as follows: “A finding that the defendant’s capacity allegation relied on Mr Keleher’s affidavit sworn on 14 March 2023 and that the Plaintiff, Julia Zhu, subsequently provided affidavit evidence exposing the defendant’s solicitors misconduct in 2021 and 2023 such that the capacity allegation was made without evidentiary foundation”. This proposed finding is unintelligible. It demonstrates the conceptual difficulty Ms Zhu is having in understanding the components, process and function of her medical negligence proceedings and Weinstein J’s judgment. There is no basis to make any such finding.

53. Prayer 7 sought “such further or other orders as the Court deems appropriate to protect the integrity of the proceedings and ensure the matter proceeds on its merits”. There is no basis to make such an order, or any order of that generality.

54. Prayer 8 sought that costs be reserved. I do not consider it appropriate to reserve costs in the circumstances. The usual order is that costs should follow the event. The plaintiff should pay the costs of the defendants in respect of the amended notices of motion, including counsel’s fees.

The 2026 Proceedings – Statement of Claim

55. Something needs to be said about the content of the 41-page statement of claim filed on 23 April 2026. It is titled “fraud and medical fraud”. There are four defendants. The first is Dr Mordecai, here sued as the general practitioner who treated Ms Zhu between 2003 and 2017, on the apparent basis that he “provided clinical information later used in medicolegal processes”. The second defendant is a solicitor at Moray & Agnew acting for Avant Mutual Group for the defendants in the medical negligence proceedings. The third defendant is the supervising partner at Moray & Agnew acting in the medical negligence proceedings. The fourth defendant is a solicitor at Moray & Agnew who also acted for Avant Mutual Group in the medical negligence proceedings.

56. The pleading is prolix, stating that the causes of action concern “matters of public interest, including fraud, medical fraud, suppression of medical evidence, fabrication of medical history, abuse of process, professional misconduct, conspiracy, retaliation and defamation”.

57. Paragraph 8 states that “the causes of action pleaded are separate and distinct from the Plaintiff’s prior medical negligence claims and proceed under a new case number”.

58. What follows is a list of partially outlined “causes of action” described in the following terms: fraud and medical fraud, conspiracy to set up a false legal foundation and to injure, abuse of process, defamation, improper intervention and professional misconduct, breach of statutory and professional duties, retaliatory capacity allegation, misfeasance in public office, medical fraud and negligence by Dr Mordecai, fabricated medical history and clinical records on the part of Dr Mordecai, fabrication of mental condition and mental history by the solicitors, coordinated fabrication of three medicolegal reports (apparently a reference to the experts engaged on behalf of the defendants in the medical negligence proceedings) and concealments.

59. The pleading then goes on to list nine distinct “fraud actions” which “escalated over time and shape the course of the proceedings”. To the extent that these fraud actions can be understood, they appear to accuse three doctors and two solicitors of acting in concert as part of an agreed plan to generate a fraudulent peer review report and to falsify medicolegal reports. The narrative appears to suggest the defendants, or their solicitors – it is unclear – issued and furnished letters of instruction containing false and misleading medical information. It is then pleaded that these actions were interferences with the administration of justice.

60. There are also allegations that the defendants used court procedures, deploying this misleading material. The statement of claim then goes through various (unexceptionable) notices of motion filed by the defendants at different stages of the medical negligence proceedings. There are allegations against Ms Zhu’s former solicitor, Mr Keleher, although he is not named in the proceedings as a defendant. There is a largely incomprehensible list of items under the headings: “breach of the 2023 capacity court order capacity hearing”, “errors in the judgment”, conspiracy, defamation against the second defendant, Ms Wallace’s responsibilities and institutional liability, and finally, public interest.

61. The claim for damage and loss and the relief sought is expressed in broad terms but includes financial loss, delay in resolution of the proceedings, emotional distress, reputational harm, interference with legal rights, the burden of responding to additional and unnecessary litigation steps and aggravated and exemplary damages. Various extreme declarations are sought involving fraud, deceit, misrepresentation and “retaliatory conduct”. There is also a claim for compensation for wasted time, health complications, emotional distress from alleged personal attacks plus interest, costs and such further orders as the Court suggests is appropriate.

The defendants’ notice of motion in the April 2026 proceedings

62. The defendants seek summary dismissal under UCPR r 13.4 or a striking out of the statement of claim under UCPR 14.28. They also seek a finding by this Court that Ms Zhu is under legal incapacity under UCPR r 7.13.

63. Prayer 3 of the notice of motion seeks an additional order in these terms:

“Order that the plaintiff, being a person who has been declared by the Court on 3 October 2023 to be a person under a legal incapacity within the meaning of Rule 7.13 of the Uniform Civil Procedure Rules 2005 (NSW) is not to commence and/or conduct any legal proceedings without a tutor and without the leave of the Court.”

64. As I pointed out to Ms Berberian, the form of prayer 3 is misconceived because Weinstein J did not declare Ms Zhu to be “a person under a legal incapacity” generally. He confined that incapacity to an incapacity to manage her affairs “in so far as those affairs concerns the conduct of these proceedings”. “These proceedings” was a reference only to her medical negligence proceedings.

65. Ms Berberian submitted that I could, by extension, consider Weinstein J’s order applies to the 2026 Proceedings because they are closely related to the medical negligence proceedings.

66. I accept that these proceedings are closely related, and the statement of claim demonstrates some of the conceptual difficulties Ms Zhu had, (and still has), in understanding the legal processes around her medical negligence claims which led Weinstein J to conclude Ms Zhu needs a tutor. This does not allow the extension of Weinstein J’s order in the way Ms Berberian suggests.

67. I do however conclude that Ms Zhu is a person under a legal incapacity in respect of the 2026 Proceedings for the reasons set out in this judgment and as evidenced in her conduct and arguments made in Court, the nature and content of the 2026 Proceedings statement of claim, and the misapprehensions and basic misunderstandings borne out in Ms Zhu’s affidavit.

68. Dealing with the summary dismissal application, Ms Berberian submitted that UCPR r 13.4 provides a three-pronged basis for dismissal because the proceedings are vexatious, disclose no reasonable cause of action and are an abuse of the process because they have been filed to circumvent the stay imposed by Garling J in August 2025. Whilst I accept the proceedings are vexatious and do not disclose a valid cause of action, they do not seem to be an attempt to circumvent the stay. Ms Zhu seems to view the 2026 Proceedings as a separate and important case about the injustices wrought in the medical negligence proceedings. It is more in the nature of a collateral attack born of her misunderstandings. Her allegations against Dr Mordecai in these proceedings are not framed in medical negligence, but the steps he engaged in to defend the medical negligence proceedings she brought against him.

69. The principles governing summary dismissal are well known, and were helpfully collected and re-stated by Chen J in Martin v Ross*;* Martin v V**ardanega [2023] NSWSC 303 at [38]-[40]:

“[38] A purpose of r 13.4 is to “save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings” and to protect “the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications”: Ugur v Attorney-General for NSW [2019] NSWCA 86 at [70] (White JA, Meagher and Brereton JJA agreeing).

[39] The relevant principles that govern summary relief are well-established*: Dey v Victorian Railways Commissioners* (1949) 78 CLR 62, 84-85; [1949] HCA 1*; General Steel Industries Inc v Commissioner for Railways (NSW)* (1964) 112 CLR 125, 128-129; [1964] HCA 69 (‘General Steel’). In General Steel, Barwick CJ put the matter thus (at 129):

The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.

[40] The Court of Appeal summarised the relevant principles in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200] (per Gleeson JA, Beazley P and Barrett JA agreeing):

[196] It is not in dispute that ‘great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal’: General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ).

[197] More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]:

‘Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’

[198] Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24].

[199] In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]:

‘The question is … whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated.’

[200] Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].”

70. The proceedings are obviously untenable. They are groundless and bound to fail. They are, sadly, a clear illustration of Ms Zhu’s incapacity to understand the processes of litigation that were an ordinary part of her medical negligence claims.

71. There are very serious allegations made against a medical practitioner and three solicitors about their conduct that comprised simply doing what their professional and/or insurance obligations required of them. There are limits around what “taking the plaintiff’s case at its highest” means in these circumstances. It cannot mean that the wild and various allegations Ms Zhu has made should be accepted as true, even if they were stated clearly enough to be fully understood, which they are not.

72. The statement of claim does not plead any duty of care known to law. The nature of the fraud alleged is self-evidently misguided. Stating that the defendants “owed duties under applicable statutes and professional conduct rules” is not an allegation of a duty of care of any relevant content.

73. The proceedings are an abuse of process in that they are a pursuit of Ms Zhu’s apparent fixation on Dr Mordecai and the solicitors’ roles in defending her medical negligence proceedings.

74. I am required to bear in mind s 56 of the Civil Procedure Act and the overriding purpose of the Act and rules of the Court to facilitate the just, quick and cheap resolution of the real issues in dispute. I bear those principles in mind. I also bear in mind s 58 of that Act and my obligation to act pursuant to the dictates of justice.

75. It is a significant matter to deprive a plaintiff of a hearing on the merits of the action she has now filed. It is however unreasonable to put the defendants to the expense of trying to respond to a prolix and baseless statement of claim.

76. The proceedings are accordingly dismissed under UCPR r 13.4(1)(a) and (b) and (c). In those circumstances there is no statement of claim to strike out so a ruling under UCPR r 14.28 is not required.

77. I am not persuaded that an order of the type sought in prayer 3 is appropriate. It is the form of order imposed on persons found to be vexatious litigants. There is no basis to impose such an order in circumstances where Ms Zhu has valid medical negligence proceedings filed and this is her only other proceedings. Whilst I understand the defendants wish to avoid having to meet allegations like those made in the 2026 statement of claim again, I will not make an unfettered order banning her from commencing any proceedings without leave and without a tutor.

78. First, her legal capacity may change and may be different depending on the subject matter and demands of other proceedings. Second, it would be draconian to make an order so wide that Ms Zhu cannot commence any proceedings about anything. That is the effect of an order in the form sought by the defendants. There is no proper basis to make such an order at this stage.

Orders

79. I make the following orders:

80. The plaintiff’s amended notices of motion filed 12 January 2026 in proceedings 2019/00122613 and 2019/00122643 are dismissed with costs.

81. In proceedings 2026/00166847 the plaintiff is a person who is not capable of managing her affairs within the meaning of r 7.13 Uniform Civil Procedure Rules 2005 (NSW) in so far as those affairs concern the conduct of these proceedings.

82. Pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4, proceedings 2026/00166847 are dismissed.

83. The defendants’ notice of motion filed 30 April 2026 is otherwise dismissed.

84. The plaintiff is to pay the defendants’ costs of the 2026 Proceedings.

**********

Endnotes

Tcpt, 13 May 2026, p 33(42)

Tcpt, 13 May 2026, p 29(2)-(3)

Tcpt, 13 May 2026, p 32(34) to p 33(39)