Mohareb v Fairfax Media Publications Limited; Mohareb v Harbour Radio Pty Limited (No 2)

[2020] NSWSC 1427

Supreme Court

New South Wales

Medium Neutral Citation:

Mohareb v Fairfax Media Publications Limited; Mohareb v Harbour Radio Pty Limited (No 2) [2020] NSWSC 1427

Hearing dates:

15 October 2020

Decision date:

15 October 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Subject to orders 2, 3 and 4, dismiss the proceedings and order the plaintiff to pay the defendants’ costs of the proceedings.

(2)   The operation of order 1 is stayed pending the determination by the High Court of the plaintiff’s application for special leave to appeal.

(3)   If the application for special leave is unsuccessful, order 1 will apply and the order for dismissal of the proceedings will come into operation.

(4)   If the applicant is successful in his application for special leave, order 1 will be vacated pending the determination of the appeal in the High Court.

(5)   Note Mr Mohareb’s assurance that he has filed, together with the application for special leave, all necessary accompanying material and that he does not propose to file any further application or material, unless at the request of the High Court.

Catchwords:

COSTS — Security for costs — Effect — Dismissal — Order dismissing proceedings stayed pending determination of special leave application

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 42.21

Cases Cited:

Mohareb v Fairfax Media Publications Pty Limited; Mohareb v Harbour Radio Pty Limited [2019] NSWSC 1685

Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231

Category:

Procedural and other rulings

Parties:

Proceedings 2017/35614
Nader Mohareb (Plaintiff)
Fairfax Media Publications Pty Limited (First Defendant)
Louise Hall (Second Defendant)
State of New South Wales (Third Defendant)

Proceedings 2017/25606
Nader Mohareb (Plaintiff)
Harbour Radio Pty Limited (First Defendant)
Ray Hadley (Second Defendant)
State of New South Wales (Third Defendant)

Representation:

Counsel:
Plaintiff (Self-represented)
M Richardson (First and Second Defendants in both proceedings)
S Chrysanthou SC (Third Defendant in both proceedings)

Solicitors:
Banki Haddock Fiora (First and Second Defendants in both proceedings)
Crown Solicitor’s Office (Third Defendant in both proceedings)

File Number(s):

2017/35614; 2017/25606

Judgment (EX TEMPORE)

1. In this matter there are two notices of motion filed on behalf of the defendants: a notice of motion filed on behalf of the first and second defendants for an order dismissing the proceedings pursuant to r 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW) and/or the inherent jurisdiction of the Court; and a notice of motion to the same effect filed on behalf of the third defendant. The plaintiff, Nader Mohareb, has also filed a motion on 10 October 2020 for a temporary stay of the proceedings pending the hearing of his application for special leave to appeal to the High Court. The applications are supported by affidavit evidence which, together with the material in the Court file, establishes the following chronology.

2. On 29 November 2019, I ordered the plaintiff to provide security for costs: Mohareb v Fairfax Media Publications Pty Limited; Mohareb v Harbour Radio Pty Limited [2019] NSWSC 1685. The day on which such security had to be provided was 20 December 2019. As a consequence of the security not being paid, the proceedings were stayed on and from 21 December 2019. Mr Mohareb sought leave to appeal to the Court of Appeal against my order for security for costs. On 24 September 2020, the New South Wales Court of Appeal refused his application for leave to appeal: Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231. On the following day, being 25 September 2020, Mr Mohareb was advised by the defendants of the defendants’ intention to apply for an order dismissing the proceedings. Mr Mohareb has informed me this morning that he consents to the dismissal of the proceedings in this Court if his application for special leave to appeal is unsuccessful.

3. The defendants press for an order for dismissal. They rely on the circumstance that it is some nine and a half months since security was ordered to be paid. The security has not been paid and there is no reason to suppose on the basis of any concrete evidence that it will ever be paid. The proceedings are already three and a half years old and significant amounts have already been spent on costs.

4. In light of Mr Mohareb’s assurance that he has already filed the application for special leave in the High Court, together with all relevant supporting documents, I consider that it is appropriate to make an order for dismissal but suspend the operation of that order pending the outcome of the application for special leave. In that way, effect will be given to Mr Mohareb’s consent to the dismissal of the proceedings if his application for special leave is unsuccessful but the orders will obviate the need for the parties to return to this Court for any further consideration of the matter, which has occupied so much time and resulted in the expenditure of substantial costs.

5. I proposed some draft orders to that effect, which, as I understand it, are acceptable to the parties. For the reasons I have given, I make the following orders:

1. Subject to orders 2, 3 and 4, dismiss the proceedings and order the plaintiff to pay the defendants’ costs of the proceedings.

2. The operation of order 1 is stayed pending the determination by the High Court of the plaintiff’s application for special leave to appeal.

3. If the application for special leave is unsuccessful, order 1 will apply and the order for dismissal of the proceedings will come into operation.

4. If the applicant is successful in his application for special leave, order 1 will be vacated pending the determination of the appeal in the High Court.

5. Note Mr Mohareb’s assurance that he has filed, together with the application for special leave, all necessary accompanying material and that he does not propose to file any further application or material, unless at the request of the High Court.

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Decision last updated: 15 October 2020