Mohareb v Kelso (No 3) [2021] NSWCA 213

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mohareb v Kelso (No 3) [2021] NSWCA 213 Hearing dates: 6 September 2021 Date of orders: 14 September 2021 Decision date: 14 September 2021 Before: Macfarlan JA at [1]; Leeming JA at [3]; McCallum JA at [7]. Decision: (1) Dismiss Mr Mohareb's notice of motion filed 31 August 2021. (2) Order Mr Mohareb to pay John Kelso's costs of that motion. (3) Appeal allowed in part. (4) Set aside the notation made by order (3) on 16 October 2020. (5) Note instead that the amended summons filed by Mr Mohareb on 13 August 2020 is not taken to have been dismissed by operation of the Vexatious Proceedings Act 2008 (NSW). Catchwords: CIVIL PROCEDURE – where notice of motion dismissed on the basis that it was to be replaced by an amended summons – amended summons filed after the applicant became subject to a vexatious litigant order – whether primary judge in error in determining that the amended summons was taken to be dismissed by the operation of the Vexatious Proceedings Act – whether amended summons was filed as the continuation of the application commenced before the applicant became subject to a vexatious litigant order COURTS AND JUDGES – bias – grounds alleging actual bias and apprehended bias – repeated applications for recusal on substantially the same grounds – no basis for recusal Legislation Cited: Bankruptcy Act 1966 (Cth) s 60(4) Vexatious Proceedings Act 2008 (NSW) Cases Cited: Mohareb v Kelso (No 2) [2021] NSWCA 182 Mohareb v Kelso [2020] NSWCA 105 Mohareb v Kelso [2020] NSWSC 1402 Mohareb v Kelso [2021] NSWCA 103 Mohareb v Palmer (No 2) [2020] NSWCA 324 Palmer v Mohareb [2019] NSWSC 975 R v Kelso [2020] NSWDC 157 Category: Procedural rulings 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) J Prowse (sol) (Second Respondent) Self-represented (Third Respondent)