Mohareb v Kelso

[2021] NSWCA 103

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

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…