Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mohareb v State of New South Wales (No 2) [2022] NSWCA 45 Hearing dates: On the papers Decision date: 29 March 2022 Before: Meagher JA and Leeming JA Decision: Notice of motion filed 29 November 2021 dismissed with costs Catchwords: PROCEDURE – application to reopen judgment – no basis shown – application dismissed Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), Pt 36 rr 15, 16, 17 Vexatious Proceedings Act 2008 (NSW) Cases Cited: Mohareb v Kelso [2021] NSWCA 103 Mohareb v Kelso (No 2) [2021] NSWCA 182 Mohareb v Kelso (No 3) [2021] NSWCA 213 Mohareb v Kelso (No 4) [2021] NSWCA 336 Mohareb v Palmer (No 3) [2021] NSWCA 39 Mohareb v State of New South Wales [2021] NSWCA 278 Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324 Category: Procedural rulings Parties: Nader Mohareb (Applicant) State of New South Wales (First Respondent) Northern Beaches Council (Second Respondent) Dr Michael Bowler (Third Respondent) Nine Entertainment Co Holdings Ltd (Fourth Respondent) Representation: Counsel: Applicant in person AN Williams (First Respondent) JP Guihot (Second Respondent) AJ Bowen (Third Respondent) M Richardson (Fourth Respondent) Solicitors: Crown Solicitor for NSW (First Respondent) Moray & Agnew Solicitors (Second Respondent) Meridian Lawyers (Third Respondent) Banki Haddock Fiora (Fourth Respondent) File Number(s): 2021/00167239 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2021] NSWDC 177; [2021] NSWDC 215 Date of Decision: 14 May 2021, 31 May 2021 Before: Abadee DCJ File Number(s): 2018/221230 [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. THE COURT: In late 2021, Mr Nader Mohareb sought leave to appeal from aspects of two interlocutory decisions of the District Court. The first followed a two day procedural hearing, concerning joinder of new parties (the third respondent Dr Michael Bowler and the fourth respondent Nine Entertainment Co Holdings Ltd), amendments to and the striking out of parts of Mr Mohareb's existing claim against the State (the first respondent) and the Council (the second respondent) and consequential costs orders: Mohareb v State of New South Wales & Ors [2021] NSWDC 177. The second followed Mr Mohareb's application to re-open the first decision pursuant to Pt 36 of the Uniform Civil Procedure Rules 2005 (NSW), and was determined on the papers: Mohareb v State of New South Wales & Ors (No 2) [2021] NSWDC 215. The Court as presently constituted dismissed his application for leave on 18 November 2021: Mohareb v State of New South Wales [2021] NSWCA 278. 2. As described in that judgment, Mr Mohareb supplied more than 1500 pages of material in support of his application, his proposed notice of appeal contained 86 grounds, and the proposed District Court pleading was 55 pages long with more than 250 pages of annexures. There were extensive written submissions in support of his application for leave, and when the matter was listed on 12 November 2021, we heard oral submissions, mostly from Mr Mohareb in reply, before reserving our decision. 3. Promptly after judgment was delivered, Mr Mohareb filed on 29 November 2021 a notice of motion seeking the following relief: "In relation to the Court's orders of Thursday 18th November 2021, and pursuant to UCPR 36.15 to 36.17, the Applicant seeks the following orders: 1. Set aside the order dismissing the applicants summons seeking leave to appeal. 2. In place of the above, order granting the applicant leave to appeal." 1. The affidavit in support attached the transcript of the hearing on 12 November 2021, an extract from the transcript of the District Court and some correspondence with the Registrar concerning filing fees. The Registrar made directions for the exchange of written submissions and directed that the motion be heard and determined on the papers. The submissions of Mr Mohareb were filed on 6 January 2022 and 16 February 2022 (although the latter is dated 17 February 2022). The respondents also supplied submissions. Paragraph 8 of Mr Mohareb's submissions in chief submitted that his motion should be heard and determined in open court. 2. With respect, Mr Mohareb misapprehends the power to set aside or vary a final judgment such as that delivered by this Court on 18 November 2021. That is not the first time this has occurred. 3. It will have been noted that Mr Mohareb applied under the same provisions to the District Court, and his application was refused. After a limited grant of leave in different proceedings (see Mohareb v Kelso [2021] NSWCA 103), he filed no fewer than three applications seeking to reopen parts of the decision refusing leave. The first was dismissed on 20 August 2021: Mohareb v Kelso (No 2) [2021] NSWCA 182 (dismissing an amended notice of motion filed 1 June 2021). The second was filed on 31 August 2021 and dismissed on 14 September 2021: Mohareb v Kelso (No 3) [2021] NSWCA 213. The third was filed on that day, 14 September 2021, and it too was dismissed: Mohareb v Kelso (No 4) [2021] NSWCA 336. 4. In the judgment delivered 20 August 2021, it was noted at [3] that: "As the motion was filed within 14 days of the judgment, this Court has power to entertain it under the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 36.16(3A). It is however only in limited circumstances that the Court will act under that rule to vary an earlier judgment (see Zepinic v Health Care Complaints Commission (No 2) [2020] NSWCA 320 at [3]-[4], referring to Lawrence v Ciantar (No 2) [2020] NSWCA 186 at [7], Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; [1993] HCA 6 and Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72 at [7])." 1. Earlier in 2021, a further application to reopen a judgment was dismissed by Basten JA in Mohareb v Palmer (No 3) [2021] NSWCA 39. His Honour noted at [19]: "It is convenient to note that the written submissions filed by the applicant in support of his motion on 17 March 2021 contained seven major headings (and a conclusion) addressing specific paragraphs in the leading judgment of Simpson AJA and taking issue with either underlying premises (for example whether there was evidence of a particular matter) or alleging a misunderstanding of the arguments put, both in writing and orally, or simply disagreeing with the reasoning. These are precisely the kind of matters which could form the basis of an appeal; even were the application made in time, they are not the kind of matters which would attract an order which had the substantive effect of reopening the whole of the appeal and challenging each of the dispositive findings." 1. There is no need to summarise most of the submissions supplied by Mr Mohareb in any detail. He is dissatisfied with the reasoning and result refusing leave to appeal from the interlocutory decision of the District Court. He says that some of his submissions have not been addressed (including that "the outcome of my leave application was based on the determination of only 30% of my proposed appeal grounds with the remaining 70% having been left undetermined"). He submits that there is a duty on the other parties to assist him, and casts aspersions against the conduct of some of the legal practitioners retained by the respondents. 2. If there were anything in these submissions, they could be raised on appeal. They do not fall within the limited power of this Court to reopen its earlier judgments. 3. There is however one aspect which we should elaborate. Mr Mohareb submits that we disregarded material placed before the Court and that he was denied procedural fairness. We did not address all of the material Mr Mohareb placed before the Court in support of his application for leave, because there was no need to do so. We did not address all of his 86 proposed grounds of appeal for the same reason. We did address his complaint that the primary judge was biased, and had himself disregarded the voluminous material Mr Mohareb had placed before him, and had not erred by imposing some time constraints on Mr Mohareb's oral submissions at [32]-[34]: "32 Mr Mohareb maintained in writing and in oral submissions that the primary judge did not sufficiently carefully examine his case, that there was "bias & denial of procedural fairness", and indeed that: "virtually all the errors and/or misunderstandings resulted, at least in part, from the primary judge's excessive anxiety & obsessiveness about the clock and consequently his failure – for 'case-management' time and cost-control expediency (ie cutting corners) – to take the time to thoroughly familiarize himself, not only with the acts referred to here but, as will be demonstrated below, with almost all the other relevant facts." 33 We do not agree. The claim of bias – which Mr Mohareb makes repeatedly of judicial officers (see most recently Mohareb v Kelso (No 3) [2021] NSWCA 213) – is groundless. It is to be borne in mind that the primary judge dismissed the Council's motion for the summary dismissal of the entirety of his claim against it. That is the opposite of a judicial officer with a mind pre-determined to rule against Mr Mohareb. 34 We also do not agree with the claim that the trial judge erred by reason of the constraints of time. The large majority of a very long interlocutory hearing was occupied by Mr Mohareb. It is true that the judge asked Mr Mohareb to move onto his next point, because he was repeating himself. We did the same. The fact of the matter is that Mr Mohareb has a tendency to repeat himself, and has a demonstrated capacity to write and speak at unnecessary length. Mr Mohareb was asked, twice, in the hearing in this Court that if the two day hearing he had enjoyed was unduly rushed, how many days should have been set aside for three interlocutory motions. On both occasions he declined to answer." 1. Mr Mohareb submits that a review of the transcript "shows that I did not – as is asserted at [34] of this Court's judgment – 'twice' decline to answer the questions of whether the two days hearing was 'unduly rushed'". The transcript to which we referred is italicised below (it is reproduced in full context to address Mr Mohareb's submissions): "APPLICANT: … So, so as I said your Honour I make my intention clear. The judge, I'm saying the error of the judge is that, is that she's completely ignoring what went before as if nothing has happened before, there was no orders by Judge Wass or anything, but there was a full history about it and that's - what I'm saying, that, that reveals the hurry with which the primary judge, you know, dealt with the matter. He was supposed to, first of all, you know, he came into the matter not knowing anything about it because it was referred to him on the spot, despite the fact that it was given a special fixture, you know, three month before, so I'm not sure how that happen. It was supposed to be referred to the judge, you know, long in advance, so the judge can have a chance to familiarise themselves with the, with it, but it did happen. LEEMING JA: How long were the two motions from the first and second defendants set down for? For just one day? APPLICANT: One day, and we told the, the judicial registrar that it needed two days. Even, even Mr Guihot said that. LEEMING JA: And then-- APPLICANT: That's before, before, before I filed my, my notice of motion for joinder, joinder for notice of motion, for joinder of the third and fourth respondents. So, so it's just - there was no, like, you know, it's, you know, I've given evidence and shown evidence of how the - that paramount in the judge's mind was time, time, time, time. LEEMING JA: How long should you have had? APPLICANT: Well it's not a matter of how long, it's, it's several, several, several, there's, there's a lot of evidence that the judge don't even read the, the statement of claim. LEEMING JA: What I'm trying to say is that you complain that the judge cut corners, cut you off because he was concerned about time. APPLICANT: Yes, your Honour. LEEMING JA: There were almost the entirety of two whole days dealt with on motions. You say you were entitled to have more time. APPLICANT: But your Honour-- LEEMING JA: I would like to know how long do you say was necessary, do you say, in order for your application fairly to have been dealt with? APPLICANT: Well it, it's not just the time allocated - like for example Judge Wass didn't, didn't, like didn't require much time, but she used the time that was available to her judiciously to establish what, what really mattered. And for example, your Honour-- LEEMING JA: Is the fact of the matter you're not able to answer the question I've asked you twice? APPLICANT: No, no, what I'm saying to your Honour that time is not the only factor. LEEMING JA: I accept that completely. APPLICANT: Sorry? LEEMING JA: I accept that completely. APPLICANT: What I'm saying is that, like, like for example your Honour I give your Honour an example, you know, like the, the part of – there's a paragraph in the proposed further amended statement of claim that, that is particulars, have particulars of the injuries, and, and the attachments, the attachments show the, the expenses I've, I've gone through and, and the doctors and the specialists I've seen and the circumstances I went through. All that is part of the injuries that is part of my original claim against the first and second respondents. Why is, why was that, why was that dismissed? It's part of my negligence claim, and he just assume - he didn't even read it - he assumed that this is part of, of the medical, medical negligence claim. It's not part of the medical negligence claim. It's, it's essentially, it's essentially part of the, of the negligence, and there isn't negligence, and, plus the medical negligence claim. I've given many indications that indicate, like, you know, for example he's, he keeps, for example it was second day, second day through the hearing and he's still not aware that I was given leave to, to file the proposed - show me where's she's given you leave to file the proposed further amended statement of claim? And we're in the second day, halfway through the second day. So, so he, he came in with an expectation to finish quickly and he was frustrated that it was not finishing quickly and he, and your Honour-- MEAGHER JA: Mr Mohareb, these observations are not directed to any of the matters which we really have to consider. You should focus on the subjects and the respects in which you say his Honour erred, not why you think he may have erred." 1. Mr Mohareb's submission that the transcript does not record his failure to answer the question how long he should have had is wrong. Mr Mohareb's further submission that "[w]hen I tried … to spell out what my contention really was, Meagher JA cut me off" is also wrong. We do not accept that there was any denial of procedural fairness to Mr Mohareb. 2. There is no basis for the oral hearing sought by Mr Mohareb, an undischarged bankrupt, subject to an order under the Vexatious Proceedings Act 2008 (NSW) and who has repeatedly brought applications under these provisions without foundation. The notice of motion filed on 29 November 2021 must be dismissed with costs. 3. Mr Mohareb has a demonstrated capacity to make groundless applications pursuant to UCPR Pt 36 after judgments and orders have been entered against him. It would be open to the Court to make an order resembling that made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324 to the effect that if Mr Mohareb files a motion under UCPR Pt 36, the Registrar should promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mr Mohareb should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process. However, we do not propose in this judgment to make such an order. ********** 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: 29 March 2022