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 Solicitors: MCW Lawyers (Second Respondent) File Number(s): 2020/313168 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 1402 Date of Decision: 16 October 2020 Before: Ierace J File Number(s): 2020/174984 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. MACFARLAN JA: This is an application by Mr Nader Mohareb for leave to appeal from a decision dated 16 October 2020 of Ierace J of the Common Law Division ([2020] NSWSC 1402). 2. As to the background to the application, it is sufficient to note the following. 3. In 2014 Mr Mohareb commenced District Court proceedings against Mr Alexander Kelso, the present first respondent. (Mr Kelso was notified of the hearing in this Court on 21 May 2021 but did not appear.) 4. On 4 December 2017 Mr Kelso assaulted Mr Mohareb, leading to Mr Kelso's conviction of an offence of causing grievous bodily harm with intent. 5. On 1 February 2018 Mr Mohareb filed a notice of motion in the Court of Appeal seeking orders that Mr Kelso be punished for criminal contempt of court and pay damages to Mr Mohareb in respect of that contempt. Mr Mohareb also claimed damages from other persons (the second to sixth respondents to that notice of motion) but subsequently did not pursue that claim. Mr Mohareb's statement of charge alleged that the contempt of court by Mr Kelso was the criminal assault upon Mr Mohareb which he alleged had been motivated by the District Court proceedings he had brought against Mr Kelso. 6. On 5 June 2020 Simpson AJA remitted the 1 February 2018 notice of motion to the Common Law Division and ordered Mr Mohareb to pay the respondents' costs of it to that date ([2020] NSWCA 105). 7. On 13 August 2020 Registrar Jones of the Common Law Division ordered (1) that the remitted notice of motion be dismissed but (2) that Mr Mohareb have leave to file and serve an Amended Summons (presumably described as such because she treated the remitted notice of motion as a summons filed in the Common Law Division). The Registrar also, by her Order (3), ordered Mr Mohareb to pay the costs of the second respondent to the 1 February 2018 motion (this was a reference to Mr John Kelso, who is also the second respondent to the present summons) in relation to the remittance of the motion to the Common Law Division. 8. A motion by Mr Mohareb for an order setting aside Orders (1) and (3) made by the Registrar was addressed by Ierace J in his judgment of 16 October 2020 as follows. 9. His Honour rejected the challenge to Order (1), stating: "The applicant challenges the Registrar's first order on the basis that, subsequent to the orders of Simpson AJA and prior to the hearing before the Registrar, the notice of motion had ceased to exist and, therefore, it could not be dismissed. The evidentiary basis of this proposition is the terms of the notice of listing of the Registrar's initial directions hearing for this matter on 23 June 2020 ('the notice of listing'). It stated: 'Notice of Motion filed on 2017/301930 (Court of Appeal) remitted to Common Law to be filed as Summons.' In the proceedings before the Registrar and before me, the applicant submitted that the notice of listing is to be understood as meaning that the notice of motion had been 'filed into the Common Law Division as a summons'. The applicant has not advanced any further evidence or argument in support of his challenge to the Registrar's first order." (Emphasis in original.) 1. As to Order (3), his Honour considered the reasons given by the Registrar for making the costs order and rejected the challenge to it. 2. In addition, his Honour stated that the Amended Summons filed by Mr Mohareb pursuant to the leave granted by the Registrar by Order (2) "could not reasonably be considered to be a continuation of the same proceedings" ([29]) and was in consequence filed in contravention of an order made on 7 August 2019 by Fagan J in Palmer v Mohareb [2019] NSWSC 975 pursuant to the Vexatious Proceedings Act 2008 (NSW). That order was in the following terms: "(2) The defendant, Nader Nabil Sedra Mohareb, is prohibited from instituting any new proceeding against any person in New South Wales, this order not to affect the filing of any interlocutory process in proceedings that have been commenced at the date of this order or any appeal or application for leave [to] appeal from a decision in any such proceeding." 1. That order was set aside by this Court on 11 December 2020 in Mohareb v Palmer (No 2) ([2020] NSWCA 324) but was operative at the time that Ierace J gave his judgment of 16 October 2020. As a consequence of Fagan J's order, Ierace J added the following to his orders of 16 October 2020: "(3) It is noted that the amended summons that was filed by the applicant on 13 August 2020 was taken to be dismissed on 10 September 2020, by the operation of s 13(3) of the Vexatious Proceedings Act 2008 (NSW)." 1. By the summons that is presently before this Court, Mr Mohareb seeks leave to appeal against the whole of Ierace J's decision. 2. I have concluded that leave to appeal should be granted in respect of Ierace J's refusal to set aside the Registrar's dismissal of Mr Mohareb's notice of motion of 1 February 2018 and in respect of what was in effect a declaration by his Honour that Mr Mohareb's Amended Summons of 13 August 2020 was taken to be dismissed by operation of the Vexatious Proceedings Act. In my view Mr Mohareb has two arguable bases for challenging these orders which, if they stand, have the effect of bringing his contempt proceedings against Mr Kelso to an end. 3. First, it is arguable that his Honour's view that the Amended Summons constituted in its entirety the commencement of new proceedings in contravention of the Vexatious Proceedings Act order was incorrect. Of particular significance in this regard is that the first order sought in both the Amended Summons and the 1 February 2018 notice of motion was to the same effect, namely, that Mr Kelso be punished for criminal contempt of court pursuant to Pt 55 Div 3 of the Supreme Court Rules 1970 (NSW) (the notice of motion also added a reference to s 326 of the Crimes Act 1900 (NSW)). Further, both processes sought an order that Mr Kelso be "held liable for damages (both aggravated and punitive) caused to [Mr Mohareb] as a result of his above mentioned act of Criminal Contempt of Court". 1. At least in these respects, the Amended Summons was arguably a continuation of proceedings commenced by Mr Mohareb prior to the making of the Vexatious Proceedings Act order, and therefore not a fresh proceeding precluded by it. 2. Secondly, it is arguable that if, as Ierace J considered to be the case, Mr Mohareb's Amended Summons was ineffectual by reason of the Vexatious Proceedings Act order, he was nevertheless entitled to continue his existing proceedings as formulated in his 1 February 2018 notice of motion remitted by the Court of Appeal to the Common Law Division, whether that process was to continue to be called a notice of motion or was properly to be regarded as a summons. When the Vexatious Proceedings Act order was set aside, Mr Mohareb became arguably entitled to amend that notice of motion / summons, subject only to the normal constraints on amendment. 3. I do not consider any basis has been shown for a grant of leave to appeal in respect of Ierace J's refusal to set aside the Registrar's costs order which appears to have been a proper exercise of her discretion. 4. For these reasons I propose the following orders: 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. 1. McCALLUM JA: As to the application for leave to appeal, I agree with the orders proposed by Macfarlan JA for the reasons his Honour has stated. 2. At the outset of the hearing of the application, I refused a separate application by Mr Mohareb that I recuse myself from hearing the matter. My reasons for refusing that application are as follows. 3. The basis for the application was set out in a written outline of submissions dated 20 May 2021 provided by Mr Mohareb in advance of the hearing. As I understood those submissions, the basis for the application was the existence of an apprehension of bias on my part. While Mr Mohareb contended that the findings of the primary judge in the present appeal were affected by actual bias, he does not appear to level that accusation at me. In case that is wrong, and the accusation is one of actual bias, I reject it. 4. Mr Mohareb's submissions focussed primarily on the judgment of Simpson AJA, with whom I agreed, in Mohareb v Palmer (No 2) [2020] NSWCA 324. Those were the proceedings to which Macfarlan JA has referred, in which Mr Mohareb sought leave to appeal from the judgment of Fagan J making orders under the Vexatious Proceedings Act 2008 (NSW) prohibiting him from initiating fresh proceedings without leave of the court. The question raised by the present application for leave to appeal did not arise in those proceedings. The result of the appeal was that leave to appeal was granted and the appeal was allowed in part. However, Mr Mohareb contends that, in her judgment, Simpson AJA made deliberately false findings which he relies on as part of a "wider deliberate and concerted pattern" calculated to sabotage his proceedings against Mr Kelso and to rid the Court of what (so Mr Mohareb submits) the Court views as his "inconvenient and even pestilent presence in Court". Mr Mohareb explained that, as I agreed with Simpson AJA in that case, I was precluded from hearing the present matter "by association with Simpson AJA". 5. Assuming the application was based on an allegation of apprehended bias, the test is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues arising on the application: Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 at 293, [6]. In the present case, the fair-minded observer would be taken to have read the whole of the judgment in Mohareb v Palmer (No 2). Nothing in the judgment would conduce the reader to accept Mr Mohareb's allegations against Simpson AJA. The allegations are without foundation and must be rejected. 6. The only other reference to me in Mr Mohareb's written submissions concerned my delay in producing my judgment in the matter of Mohareb v Harbour Radio; Mohareb v Fairfax Media Publications Pty Ltd [2018] NSWSC 1992. It is regrettable that I was not able to produce that judgment in a timely way. However, the alleged connection between the delay and any apprehension that I might not decide the present case on its merits is not clear: cf Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The reference to delay in the submissions is incidental to a strident complaint about the later decision of Hoeben CJ at CL (after his Honour took over the Defamation List upon my appointment to the Court of Appeal) to transfer the proceedings to the District Court. Many proceedings in the Defamation List were dealt with in the same way at that time; Mr Mohareb should not feel that his proceedings were singled out in that respect. 7. If the suggestion is that the delay in itself gives rise to an apprehension of bias against Mr Mohareb, it may be noted that the fair-minded observer would be taken to be aware of Mr Mohareb's complete experience in the Defamation List during my time as the Defamation List Judge. During that period (from 2014-2018), in addition to my decision in Mohareb v Harbour Radio [2018] NSWSC 1992, I determined six other applications in proceedings brought by Mr Mohareb. In three of those, the judgment was given ex tempore; in the remaining three, the judgment was given within three weeks: Mohareb v Jankulovski [2014] NSWSC 767; Mohareb v Harbour Radio Pty Ltd [2017] NSWSC 353; Mohareb v Fairfax Media Publications Pty Limited [2017] NSWSC 288; Mohareb v Fairfax Media Publications Pty Ltd (No 2) [2017] NSWSC 546; Mohareb v Harbour Radio Pty Ltd (No 2) [2017] NSWSC 676; Mohareb v Fairfax Media Publications Pty ltd (No 3) [2017] NSWSC 645. Having regard to those additional matters, the fair-minded lay observer would not apprehend any campaign of deliberate delay of Mr Mohareb's action in the Harbour Radio proceedings. 8. For those reasons, I was not persuaded that there was any basis to recuse myself in the present matter. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 May 2021