Sasterawan v Molla

[2026] NSWSC 1116

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. PRACTICE AND PROCEDURE — persons under legal incapacity — capacity of a self-represented litigant to conduct proceedings — question to be determined separately under UCPR r 28.2 — opposing party also becomes self-represented — Court declines to read evidence of its own motion — presumption of capacity not displaced — comments on procedure — application for stay as an alternative — UCPR rr 7.14, 7.18

Where a court raises the question of a self-represented litigant's capacity of its own motion under UCPR r 7.18, the presumption of capacity operates in the litigant's favour and the court should not, absent independent medical evidence, read into evidence material from the opposing party's solicitor, as doing so risks compromising the court's neutrality and procedural fairness.
A finding of incapacity to conduct proceedings usually requires expert medical evidence and cannot ordinarily be established solely from a litigant's conduct of proceedings unless an extreme level of irrationality or obsession is demonstrated; the parens patriae jurisdiction may apply where incapacity is in doubt, but must be properly raised.
Where a defendant wishes to challenge a self-represented plaintiff's capacity without identifying a proposed tutor, a more direct procedural route than UCPR r 7.18 may be an application for a stay of proceedings under CPA s 67 on the ground that the proceedings are being conducted in contravention of UCPR r 7.14.