Mohareb v Kelso [2021] NSWCA 103

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mohareb v Kelso [2021] NSWCA 103 Hearing dates: 21 May 2021 Date of orders: 24 May 2021 Decision date: 24 May 2021 Before: Macfarlan JA at [1]; McCallum JA at [20] Decision: (1) Grant leave to Mr Mohareb to appeal in respect of the orders made by Ierace J on 16 October 2020, limited to the issues of whether Mr Mohareb's notice of motion of 1 February 2018 should have been dismissed by the Registrar and whether Mr Mohareb's Amended Summons filed on 13 August 2020 was taken to be dismissed by operation of the Vexatious Proceedings Act. (2) Otherwise dismiss Mr Mohareb's summons seeking leave to appeal. (3) Order that Mr Mohareb's and Mr Alexander Kelso's costs of the summons seeking leave to appeal be costs in the appeal. (4) Order that Mr Mohareb pay the costs of the other respondents to his summons seeking leave to appeal. Catchwords: APPEALS – leave to appeal – applicant's notice of motion dismissed by Registrar – whether primary judge in error in refusing to set aside that dismissal – whether applicant's amended summons was taken to be dismissed by operation of the Vexatious Proceedings Act – relevant vexatious proceedings order later set aside on appeal – arguable basis for challenging those orders demonstrated – leave to appeal granted on a limited basis COURTS AND JUDGES – bias – application for recusal – ground of apprehended bias – applicant unable to identify any reason why a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues arising on the application – judge declined to recuse herself Legislation Cited: Vexatious Proceedings Act 2008 (NSW) Cases Cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 Category: Principal judgment Parties: Mr Nader Mohareb (Applicant) Mr Alexander Edward Kelso (First Respondent) Mr John Alexander Kelso (Second Respondent) Mr Roderick Gerrard Smith (Third Respondent) Representation: Counsel: Self-represented Applicant Ms I King (Second Respondent) Self-represented Third Respondent