Adams v Northern Sydney Local Health District

[2025] NSWSC 1195

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Adams v Northern Sydney Local Health District [2025] NSWSC 1195

Hearing dates:

7 October 2025

Date of orders:

13 October 2025

Decision date:

13 October 2025

Jurisdiction:

Common Law

Before:

McGuire J

Decision:

(1) Leave to appeal is refused.

(2) The amended summons filed 2 July 2025 is dismissed.

(3) The plaintiff is to pay the defendant’s costs.

Catchwords:

APPEALS — appeal from Local Court — costs order — whether leave to appeal required — whether magistrate erred by failing to consider relevant evidence — whether procedural fairness was denied in the Local Court — whether the Local Court should have provided additional assistance to a self-represented litigant — whether the proceedings were in the public interest

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Local Court Act 2007 (NSW), ss 39, 40, 98

Uniform Civil Procedure Rules 2005 (NSW), rr 31.36, 42.20

Cases Cited:

Baira v RHG Mortgage Corporation Ltd [2012] NSWCA 387; 297 ALR 416

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Dalmar Formwork (Australia) Pty Ltd and Anor v Maricic (No 3) [2008] NSWCA 29

Fordham v Fordyce [2007] NSWCA 129; 154 LGERA 49

Hamod v the State of New South Wales and Anor [2011] NSWCA 375

House v The King (1936) 55 CLR 499; [1936] HCA 50

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Owners Stata Plan 43470 v Jameson & Associates Unit Services Pty Ltd [2025] NSWSC 1028

Pollard v RRR Corporation Pty Ltd (2000) 50 NSWLR 104; [2000] NSWCA 110

R v Zoradd (1990) 19 NSWLR 91

Rahman v Rahman [2024] NSWCA 198

Rahman v Rahman [2025] NSWCA 219

Stead v State of Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Sweeney v He [2023] NSWCA 68

Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337

Category:

Principal judgment

Parties:

Charlie Armstrong Adams (Plaintiff) (Self-represented)
Northern Sydney Local Health District (Defendant)

Representation:

Counsel:
M Best (Defendant)

Solicitors:
Crown Solicitor’s Office (Defendant)

File Number(s):

2025/00167413

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

6 February 2025

Before:

Atkinson LCM

File Number(s):

2023/00420475

JUDGMENT

1. The plaintiff, Charlie Armstrong Adams, by amended summons filed 1 July 2025 seeks to appeal a decision made in the Local Court on 6 February 2025. On that day Magistrate Atkinson made an order that the plaintiff pay the defendant’s costs in the lump sum of $38,471.77.

2. The plaintiff seeks orders that the appeal be allowed, the costs order made in the Court below be set aside, the matter be remitted to the Local Court to be reconsidered according to law, alternatively that each party bear their own costs of the proceedings in the Local Court and that there be no order to costs of this appeal.

3. The plaintiff asserts that he is entitled to appeal against the decision as of right pursuant to s 39 of the Local Court Act 2007 (NSW). In the alternative, he seeks leave to appeal pursuant to s 40 of the Local Court Act.

Procedural background

4. The plaintiff commenced proceedings in the Local Court on 21 November 2023. The cause of action pleaded arose from the plaintiff’s presentation as a patient at the Hornsby Hospital Mental Health Clinic, which was operated by the defendant. An amended statement of claim was filed on 14 December 2023. In addition to the present defendant, the amended statement of claim joined various individual defendants including medical, nursing and administrative staff from the Hornsby Hospital and the Royal North Shore Hospital. A second amended statement of claim was filed on 10 September 2024, which amongst other amendments removed reference to any of the individual defendants. Throughout each iteration of the pleading the plaintiff pleaded that the defendant had breached a duty of care owed to him by failing to confirm a diagnosis of delusional disorder and sought damages for physical, emotional and financial harm.

5. Rule 31.36 of the Uniform Civil Procedure Rules 2005 (NSW) applied to the plaintiff’s Local Court proceedings because he pleaded a cause of action based on professional medical negligence. Pursuant to that rule, unless the Court orders otherwise, a plaintiff commencing a professional negligence claim other than a claim against a legal practitioner is required to file and serve with the statement of claim an expert report that includes an opinion supporting the breach of duty of care, the general nature and extent of damages alleged and the causal relationship between any such duty and damage.

6. The plaintiff breached r 31.36 when he commenced the proceedings because he failed to file and serve an expert report in support of the claim. The breach continued upon each amendment to the statement of claim. No expert report was ever filed or served by the plaintiff.

7. On 8 August 2024 the defendant drew to the plaintiff’s attention that he failed to comply with the rules and put him on notice that an application may be brought to dismiss the proceedings in accordance with r 31.36(3).

8. The defendant then filed a defence on 1 October 2024 by which it:

1. admitted that the plaintiff had attended the Hornsby Hospital Mental Health Clinic on various dates;

2. denied that the plaintiff was entitled to the relief claimed;

3. stated that on 22 June 2022 the plaintiff’s treating psychiatrist Dr Orosco made a clinical note recording “chronic delusional disorder” and wrote to the plaintiff’s general practitioner stating “he does have a chronic persecutory delusion … He has delusional disorder”;

4. stated that earlier proceedings in the New South Wales Civil and Administrative Tribunal (NCAT) commenced by the plaintiff in January 2022, April 2022 and June 2022 had been settled pursuant to an agreement that the plaintiff’s discharge summary documents be amended to delete the word “provisional” and replaced with the word “confirmed” before the diagnosis;

5. stated that the defendant sent an email to the plaintiff enclosing a discharge summary dated 22 June 2020 stating that Dr Orosco had concluded that the plaintiff “suffers from confirmed delusional disorder”; and

6. recorded that the plaintiff had failed to serve any expert evidence in support of his claim in breach of r 31.36.

9. Following service of the defence, the plaintiff filed a notice of motion on 16 October 2024 seeking leave to proceed in the absence of an expert’s report. On 7 November 2024 orders were made in the Local Court dismissing the application, staying the proceedings until the plaintiff filed and served an expert’s report and ordering the plaintiff to pay the defendant’s costs of the motion.

10. The plaintiff then filed a notice of motion on 15 November 2024 seeking an order that the proceedings be dismissed and that no order as to costs be made. Orders were made in the Local Court on 9 January 2025 dismissing the proceedings and directing the parties to serve submissions in relation to costs. The plaintiff originally consented to the payment of the defendant’s costs but then during the costs hearing on 6 February 2025 he indicated to the Court that he had changed his position and submitted that he should not be ordered to pay the defendant’s costs.

11. On 6 February 2025, following evidence and submissions on the issue of costs, the magistrate exercised a discretionary power pursuant to s 98 of the Civil Procedure Act 2005 (NSW) and r 42.20 of the Uniform Civil Procedure Rules and determined that the circumstances were appropriate for the imposition of a costs order that the plaintiff pay the defendant’s costs in a fixed amount of $38,471.77. It is from that order that the present application to appeal, or alternatively for leave to appeal, arises.

The plaintiff’s submissions

12. The plaintiff submits that he is entitled to the relief sought on four bases.

13. First, the plaintiff asserts that there was a lack of procedural fairness in that the magistrate failed to advise him that certain documents he had intended to rely on during the hearing of the costs application had not been tendered into evidence. The plaintiff emailed written submissions on the issue of costs which he sent to the magistrate on 5 February 2025 [Exhibit A page 36 ff]. Part of the emailed submission refers to various supporting documents. One of the documents referred to is described in the submissions as “Exhibit D: Evidence of (a named solicitor’s) agreement to create a discharge summary without a formal diagnosis, demonstrating fraudulent conduct at NCAT”. Despite being referred to as an attachment, that document was not attached to the submissions, was not sent to the magistrate and was not tendered by the plaintiff during the hearing on 6 February 2025.

14. The plaintiff concedes that the document was not attached and not tendered during the application due to an omission on his part. However, he submits that the Court had an obligation to bring to his attention that that evidence was “missing” or raise with him that he should seek an adjournment in order to obtain the evidence. He submits that he was denied procedural fairness because he says he was deprived of an opportunity to rectify his omission to tender the evidence.

15. In this Court the plaintiff conceded that he had also failed to annex the evidence in question to any of his affidavits filed on the appeal or included in the agreed bundle [Exhibit A].

16. Notwithstanding the absence of evidence of fraudulent conduct at NCAT, the plaintiff submitted that the Local Court had a duty to review the documents which he had filed and emailed, a duty to inform him that the documents referred to in his email as “Exhibit D” were missing and a duty to inform him that they had not been tendered.

17. The plaintiff relies on Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. There, the Court held that a denial of natural justice affecting a party’s entitlement to make submissions on an issue of fact is so fundamental that an appeal court would have difficulty in concluding that compliance with the requirements of natural justice could have made no difference.

18. Secondly, the plaintiff submits that the magistrate failed to consider relevant evidence. In this regard the plaintiff submits that although a number of emails passing between him and Ms Melanie Shea, Director of Legal and Professional Standards for the defendant, were in evidence, the magistrate failed to refer to those documents in the costs judgment. The emails, dated between 24 June 2022 and 21 December 2022 relate to discussions between the parties concerning the provision of a discharge summary.

19. The plaintiff submitted that those emails establish the efforts taken by him to obtain a discharge summary and obstruction and misconduct on the part of the defendant. The plaintiff asserts that the defendant engaged in delays, irregularities and miscommunications in providing a discharge summary and eventually provided a consultation note instead. That document [Exhibit A page 34], although a little blurred and difficult to read in parts, refers to the plaintiff by name and contains reference to a diagnosis of delusional disorder. The plaintiff argued that a consultation note is not the same as a discharge summary although he conceded that it was possible for such a note to form part of a discharge summary. He maintained that the provision of the blurred document established a high degree of irregularity in the defendant’s dealings with him and that the magistrate’s failure to refer to any of the emails or his submissions concerning delay and irregularity established that the Local Court had failed to consider relevant evidence. In support of this submission the plaintiff relied on the authorities of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and Kioa v West (1985) 159 CLR 550; [1985] HCA 81 and submitted that those authorities related to a failure to consider relevant evidence.

20. Thirdly, the plaintiff submitted that the magistrate ought to have provided additional assistance to him as a self-represented litigant. The plaintiff accepted that a judicial officer is not required to give a self-represented litigant legal advice but asserted that the magistrate should have informed him of his failure to attach or tender evidence of fraud and should have given him an opportunity to rectify his omissions. The plaintiff relied on Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 as authority for the proposition that a court has a duty to ensure that self-represented litigants are not disadvantaged by technical rules that they do not understand.

21. Fourthly, the plaintiff submitted that his appeal raised issues of public interest concerning government and the Crown Solicitor’s conduct and fraud by a solicitor involved in the NCAT proceedings. He submitted that the delay and obfuscation in providing him with the discharge summary and the agreement to create a discharge summary knowing that there had been no “confirmed” diagnosis of delusional disorder were matters of public interest. In support of this submission he relied on the authority of Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.

22. On the issue of the amount at which costs were fixed the plaintiff submitted that the amount was disproportionate in light of his impecuniosity and his status as a self-represented litigant.

The defendant’s submissions

23. Counsel for the defendant submitted that the proceedings do not clearly identify a question of law and accordingly the appeal was to be determined in accordance with s 40 of the Local Court Act. Accordingly, it was submitted that the applicant was required to establish an entitlement to leave to appeal. The defendant relied on the recent authority of Rahman v Rahman [2025] NSWCA 219 at [99] where the Court of Appeal held that a grant of leave to appeal required there to be some issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable and that discretionary decisions such as those involving matters of practice or procedure attract the added restraint of the requirements of House v The King (1936) 55 CLR 499; [1936] HCA 50 (House v The King). The defendant submitted that the plaintiff had failed to establish any proper basis for the granting of leave and that the application should be refused. It is not enough that an appeal court consider that, if in the position of the primary judge, it would have taken a different course; it must appear that some error has been made in exercising the discretion.

24. The defendant submitted that in making the costs order the magistrate did not make any House v The King error in exercising the discretion. Specifically, it was submitted that the magistrate did not take into account any irrelevant facts, fail to take into consideration relevant matters, make any errors of legal principle or any factual mistakes.

25. In relation to procedural unfairness, the defendant submitted that no such unfairness had been established. The defendant submitted that the plaintiff was not deprived of an opportunity to tender evidence before the magistrate and disputed that the Court had a positive duty to a litigant, self-represented or otherwise, to check to ensure that documents the party may wish to rely on had been tendered. In any event the defendant pointed to a transcript of an earlier appearance in the Local Court on 7 November 2024 where counsel then appearing for the defendant notified the Court and the plaintiff that a 300 page bundle of documents had been provided by the plaintiff but were not apparently being relied on. In the transcript [Exhibit A, page 219 ff] counsel appearing for the defendant enquired if the Court had the plaintiff’s 300 page bundle and when the bench indicated that it did not the plaintiff said that he was unable to print the bundle and that he would only rely on the few documents he had printed and was able to tender. Accordingly, it was submitted that the plaintiff had been on notice since 7 November 2024 that if he intended to rely on documents, he was required to print them, tender them into evidence or otherwise physically provide them to the Court. In addition the defendant referred to the transcript of the costs hearing on 6 February 2025 [Exhibit A page 287 ff] where counsel for the defendant informed the Local Court that he had not received any email from the plaintiff and was unaware of any documents sent by the plaintiff to the magistrate or referred to in any submission sent to the magistrate. Following that disclosure the plaintiff indicated that he would email counsel for the defendant any documents he intended to rely on within half an hour. The matter was then stood down in the list, in part to allow the plaintiff time to serve documents on the defendant and in part because the magistrate was too busy to hear the costs application immediately. During that adjournment the plaintiff emailed the defendant some documents he intended to rely on, but did not send any of the documents the plaintiff now complains others had a duty to ensure he tendered.

26. It was submitted by the defendant that the relevant circumstances were that the documents in question were never sent by the plaintiff to the magistrate, were never served by the plaintiff on the defendant, were never the subject of any tender by the plaintiff and were not referred to by the plaintiff in written or oral submissions in anything other than a very broad or generic fashion. The precise nature and content of the documents in question were not known to any of the parties other than the plaintiff. In those circumstances the defendant submitted that the Court had no obligation to bring any of the plaintiff’s omissions to his attention or to take steps to ensure that they were rectified.

27. In relation to the alleged failure to consider relevant evidence, the defendant submitted that the emails passing between the plaintiff and Ms Shea were before the Local Court on the costs application [Exhibit A, page 26 ff]. It submitted that any failure by the magistrate to refer in detail to the email evidence did not establish that the Court did not have regard to that evidence. It was submitted that the Court should take into account that the magistrate gave extemporised reasons at the conclusion of a busy day. The transcript of 6 February 2025 reveals that the magistrate indicated a number of times that she had a very busy list that day, the matter had to stand down, was given a tentative listing of not before 2:30 pm, was not reached until after 4:00 pm and concluded at about 5:00 pm. Relying on Rahman v Rahman [2024] NSWCA 198 at [62] it was submitted in that context that the degree of latitude must be afforded in considering the adequacy of reasons in the extemporised costs judgment.

28. On the topic of public interest, the defendant submitted that there was no such public interest in setting aside a costs order made in the circumstances of the present case. Rather it was submitted that the public had an interest in ensuring that plaintiffs do not commence proceedings in breach of the rules and an interest in avoiding defendants incurring unnecessary legal costs for defending proceedings which had been improperly commenced and later discontinued. The defendant submitted that the plaintiff had fully participated in the application which resulted in the proceedings being stayed pending service of an expert report, fully participated in the application brought by him leading to the dismissal of the proceedings and fully participated in the costs hearing. His fulsome participation resulted in the defendant being required to incur substantial legal costs.

23. The defendant submitted that for those reasons the public interest weighed in favour of the making of a costs order.

24. Further the defendant submitted that there was no evidence, before the Local Court or this Court, of any misconduct on behalf of any state agency involved in the proceedings or any misconduct or fraud on the part of any solicitor from the Crown Solicitor’s Office.

25. On the issue of procedural assistance to self-represented litigants, the defendant submitted that the obligation for courts to assist did not extend as far as that contended for by the plaintiff. In particular, there was no duty or obligation to conduct an audit to ensure that all evidence had been tendered and no duty or obligation to provide legal advice in relation to the content of pleadings. Although the plaintiff made frequent references in his written and oral submissions in the Local Court to fraud and misconduct, the defendant relied on the fact that the proceedings were never determined on their merits and that no findings of fraud were ever made. In the context of a costs order being made against the plaintiff who had commenced proceedings in breach of the rules and who had himself applied for those proceedings to be dismissed, any allegations of fraud or misconduct were not proved and were irrelevant.

Consideration

32. Appeals from certain decisions made by the Local Court are dealt with in Pt 3, Div 4 of the Local Court Act. Only ss 39 and 40 of that Act presently have possible relevance. Section 39 which relates to appeals as of right, is as follows:

39 Appeals as of right

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

(2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.

33. Section 40, which relates to appeals requiring leave, states as follows:

40 Appeals requiring leave

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.

(2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court--

(a) an interlocutory judgment or order,

(b) a judgment or order made with the consent of the parties,

(c) an order as to costs.

34. The present proceedings are an appeal from the General Division of the Local Court and are an appeal in relation to an order as to costs. Accordingly, s 40 of the Local Court Act applies. The plaintiff requires leave to appeal a costs order made by the Local Court and is not entitled to an appeal as of right. No question of law has been identified. Consequently, a s 39 appeal as of right is not available.

35. The magistrate’s power to order costs is an exercise of discretionary power pursuant to s 98 of the Civil Procedure Act and r 42.20 of the Uniform Civil Procedure Rules. Section 98 relevantly provides:

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act--

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to--

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

36. The order made below by the magistrate was pursuant to the discretion in s 98(1) in a specified gross sum as permitted by s 98(4)(c).

37. There are no rigid rules as to when leave to appeal will be granted. However the granting of leave is ordinarily only appropriate in matters involving issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164, as recently referred to with approval in Owners Strata Plan 43470 v Jameson and Associates Unit Services Pty Ltd [2025] NSWSC 1028 at [29].

38. Courts should be “slow to grant leave” in respect of an appeal restricted to a challenge to an order for costs or in a case which raises no particular issue of principle: Fordham v Fordyce [2007] NSWCA 129; 154 LGERA 49 at [7]; Dalmar Formwork (Australia) Pty Ltd and Anor v Maricic (No 3) [2008] NSWCA 29 at [39].

39. As an award of costs is an inherently discretionary decision it will always be necessary for an applicant for leave to establish an error of the kind described in House v The King.

40. The issue then to be considered is whether any of the grounds submitted by the plaintiff amount to an error in exercising the costs discretion by taking into account irrelevant facts, failing to take into consideration relevant matters, making any errors of legal principle or any factual mistakes sufficient to amount to a House v The King error.

41. The first error identified by the plaintiff was an alleged lack of procedural fairness in the magistrate failing to advise him of his omission to tender the documents referred to in his written submissions. A proper reading of the transcript of the hearing on 6 February 2025 shows that the plaintiff was offered every opportunity to tender documents or to otherwise furnish documents to the magistrate in support of his arguments. He was given a specific adjournment, which was also to accommodate the magistrate’s busy list, in order for him to forward by email to the defendant any documents upon which he intended to rely. The plaintiff’s failure to attach documents to his email to the magistrate, his failure to tender documents during the application and his failure to serve those documents on the defendant were not caused by and did not arise from any procedural unfairness. I accept the submission made by the defendant that the plaintiff was on notice as a result of the appearance in the Local Court on 7 November 2024 that if he wished to rely on documents, it was incumbent on him to ensure that they had been photocopied and brought to court so that he could make them available to the magistrate. During the hearing on 7 November 2024 the plaintiff conceded that a large bundle of documents which he was unable to photocopy and bring to court were not to be relied on. As a result of that appearance, at the very least, the plaintiff was aware that the obligation was on him, not on the Court, or the defendant or anyone else, to ensure that any relevant documents upon which he intended to rely were available for tender to the Court.

42. The Court does not have an obligation to give judicial advice to self-represented litigants and does not have an obligation to conduct a case on behalf of a self-represented litigant: Hamod v the State of New South Wales and Anor [2011] NSWCA 375 at [312]. The obligation, which is to ensure that a self-represented litigant does not suffer a “disadvantage” (R v Zoradd (1990) 19 NSWLR 91 at 95), does not extend to requiring the Court to descend into the arena and conduct the litigation on behalf of the litigant. Forensic decisions in relation to what documents to tender were decisions that had to be made by the plaintiff alone.

43. The plaintiff was not deprived of an opportunity to make submissions on an issue of fact. The authority the plaintiff relies on of Stead v State Government Insurance Commission has no application to the present circumstances.

44. In relation to the plaintiff’s second ground, namely that the magistrate failed to consider relevant evidence, the plaintiff relies on the express failure in the costs judgment to refer to the exchange of emails with Ms Shea. The requirement of a court to give adequate reasons does not extend to courts being obliged to give a line by line account of every piece of evidence or every submission: Sweeney v He [2023] NSWCA 68 at [142]-[143]. It is insufficient on appeal for an appellant to point to a failure to specifically refer to some evidence in a judgment. Rather it would be necessary to establish a failure to refer to evidence that was of such a quality that seriously called into question the integrity of a finding of fact: Baira v RHG Mortgage Corporation Ltd [2012] NSWCA 387; 297 ALR 416 at [173].

45. There is no judicial duty to give voice to every submission or every piece of evidence in a judgment. Rather what is required is that the judgment exposes the reasons for resolving critical points in contest between the parties, refers to critical or important evidence relevant to the proper determination of the matter and generally explains any conclusion on a significant factual or evidential dispute: Ming v Director of Public Prosecutions (NSW) (2002) 109 NSWLR 604; [2022] NSWCA 209 at [43].

46. It is unnecessary to refer to all relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered: Pollard v RRR Corporation Pty Ltd (2000) 50 NSWLR 104; [2000] NSWCA 110 at [62]. Due regard must be given to the workload of the court below when considering the adequacy of reasons in the magistrate’s extemporised judgment: Rahman v Rahman [2024].

47. In the present case, although it can be accepted that the magistrate’s judgment on costs did not specifically refer to the emails with Ms Shea, they did refer to them generically. The relevant part of the transcript of the costs judgment [Exhibit A, page 298] indicates that the magistrate took into account “the documents which go to the Crown Solicitors, the Crown and the State of New South Wales obligations as a model litigant”. That generic reference to documents relating to the conduct of litigants must be understood in the context of the material tendered by the plaintiff including the emails with Ms Shea. His complaint concerning those emails was that they established misconduct, delay and obfuscation on the part of the State of New South Wales. Accordingly, I am not satisfied that the plaintiff has established that the magistrate failed to consider relevant evidence.

48. In any event those emails established that Ms Shea was diligent and responsive in her correspondence with the plaintiff. Typically whenever the plaintiff emailed her Ms Shea responded within 24 hours and when he raised with her his concerns about the blurred document and whether it amounted to a discharge summary, she promptly explained the provenance of the document, explained why it appeared to be in a format different than that which the plaintiff might have expected and confirmed that the document was a discharge summary based on Dr Orosco’s diagnosis letter. Ms Shea also confirmed that the discharge summary stated that the plaintiff had been diagnosed with “confirmed delusional disorder”. Accordingly, none of the documents relied on in the email exchanges assist the plaintiff in establishing fraud, misconduct, delay or obfuscation on the part of the defendant.

49. In relation to the plaintiff’s third ground, namely that the magistrate ought to have provided additional assistance to him as a self-represented litigant, I have already referred to the relevant principles above. There is no duty or obligation on a court to give a litigant legal advice or to make forensic decisions on behalf of the litigant in relation to what documents should or should not be tendered.

50. In relation to the plaintiff’s fourth ground, namely that his appeal raised issues of public interest concerning misconduct and fraud by lawyers of the government, the Crown Solicitor and those involved in the NCAT proceedings, the authority relied on of Oshlack v Richmond River Council does not assist the plaintiff. That case arose from proceedings in the Land and Environment Court brought by a member of the public seeking to restrict a development of land which might affect the environment and endangered fauna. That member of the public had no personal interest in the outcome of the proceedings but was motivated by a desire to preserve the habitat of endangered koalas on and around the proposed development site. There the proceedings in the Land and Environment Court were heard and determined on their merits and the application to restrict the development was dismissed with no order as to costs. The High Court upheld that order on the basis that, although unsuccessful, the individual who commenced the proceedings was motivated to act in the public interest and there was evidence that a significant number of other members of the public shared a similar interest.

51. Unlike the position in Oshlack, in the present case there has been no hearing and no determination on the merits. Additionally, unlike Oshlack, the present proceedings were commenced in breach of the rules and were discontinued on the plaintiff’s own motion.

52. I accept the submission made on behalf of the defendant that the public has an interest in ensuring that irregular proceedings are not commenced and an interest in avoiding defendants being forced to incur legal costs in defending proceedings commenced in breach of the rules and later discontinued. I find that the public interest weighs in favour of the making of a costs order against the plaintiff in the circumstances of the present case.

53. There is no rule that the impecuniosity of a litigant prevents a court from making an order that the litigant pay costs. Here the magistrate took the plaintiff’s financial position into account. No error is established.

54. For the above reasons I am satisfied that the plaintiff should not be granted leave to appeal.

55. Accordingly, I make the following orders:

1. leave to appeal is refused;

2. the amended summons filed 2 July 2025 is dismissed; and

3. the plaintiff is to pay the defendant’s costs.

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Amendments

13 October 2025 - Amendment to date of 'decision under appeal' in coversheet

Decision last updated: 13 October 2025