Mahmoud v Attorney General of New South Wales [2017] NSWCA 12

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 Hearing dates: 4 November 2016 Decision date: 15 February 2017 Before: Beazley P at [1]; Macfarlan JA at [2]; Payne JA at [3]. Decision: (1) Grant leave under order 1 of the amended notice of motion filed 13 September 2016 to file the notice of motion in Court together with an affidavit in support;

(2) Otherwise dismiss the motion;

(3) Mr Mahmoud pay the costs of the Attorney General (as agreed or assessed) of the amended notice of motion;

(4) Grant leave to appeal from the judgment of Rothman J dated 24 September 2015;

(5) Allow the appeal;

(6) Vary order 1 of the orders made by the primary judge by adding the words "save that this order does not apply to Mr Mahmoud instituting proceedings within the meaning of the Vexatious Proceedings Act 2008 (NSW):

(a) in criminal proceedings brought against Mr Mahmoud as an accused; or (b) seeking relief in the nature of a writ of habeas corpus."

(7) Mr Mahmoud pay 50% of the costs of the Attorney General (as agreed or assessed) of the hearing before the primary judge and of the appeal. Catchwords: PRACTICE AND PROCEDURE – vexatious proceedings orders – formulation of orders – need to consider effect on defence of criminal proceedings – whether "blanket" orders desirable

PRACTICE AND PROCEDURE – vexatious proceedings orders –need to identify which proceedings were in fact vexatious Legislation Cited: Civil Procedure Act 2005 (NSW) s 56 Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 99 Supreme Court Act 1970 (NSW) ss 75A, 101 Uniform Civil Procedure Rules 2005 (NSW) r 51.53 Vexatious Proceedings Act 2008 (NSW) ss 4, 5, 6, 8, 14 Cases Cited: Attorney-General v Tareq Altaranesi [2013] NSWSC 63 Cachia v Hanes (1994) 179 CLR 403 Dietrich v The Queen (1992) 177 CLR 292 Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Martin v Attorney General for the State of New South Wales [2014] NSWCA 189 McInnis v R (1979) 143 CLR 575 Pascoe v Liprini [2011] NSWSC 1484 Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 Viavattene v Attorney General (NSW) [2015] NSWCA 44 Category: Principal judgment Parties: Tosson Mahmoud (applicant) Attorney General of New South Wales (respondent) Representation: Counsel: Applicant in person Mr J Emmett (respondent)