Mohareb v Kelso - [2020] NSWCA 105

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mohareb v Kelso [2020] NSWCA 105
Hearing dates: 1 June 2020
Date of orders: 05 June 2020
Decision date: 05 June 2020
Before: Simpson AJA
Decision:
1. The applicant’s notice of motion of 1 February 2018 is remitted to the Common Law Division of the Supreme Court.
2. The applicant is to pay any costs of the respondents incurred by the notice of motion having been filed in this Court.

Catchwords:
CIVIL PROCEDURE – Court of Appeal – application –assignment to the Court of Appeal for the punishment of contempt of the Court – assignment to the Court of Appeal of such matters as are necessary or convenient for the discharge of functions of the Court – notice of motion remitted to the Common Law Division of the Supreme Court
CONTEMPT – Criminal contempt – contempt in the face of the court – here appellant was assaulted by first respondent at the appellant’s home far away from the court
Legislation Cited: Crimes Act 1900 (NSW), s 326
Supreme Court Act 1970 (NSW), ss 48, 51, 53
Supreme Court Rules 1970 (NSW), Pt 55, Div 3
Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited: Fraser v The Queen [1984] 3 NSWLR 212
R v Kelso [2020] NSWDC 157
Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682
Category: Procedural and other rulings
Parties: Nader Mohareb (Applicant)
Alexander Edward Kelso (First Respondent)
John Alexander Kelso (Second Respondent)
Saratoga Marine Pty ltd (Third Respondent)
Laurence Leeson (Fourth Respondent)
Leetec Pty Ltd (Fifth Respondent)
Roderick Gerrard Smith (Sixth Respondent)
Taylor Booth (Seventh Respondent)
Representation: Applicant self-represented
Sixth Respondent in person

File Number(s): 2017/301930

Judgment

SIMPSON AJA: Before the court is a notice of motion filed by the applicant (Nader Mohareb) on 1 February 2018 in which he names seven respondents. The first respondent is Alexander Edward Kelso.
The notice of motion first came before me on 25 May 2020. I was not satisfied that the respondents had been given notice of the listing and stood the proceeding over to 1 June 2020. I directed the applicant to provide evidence that the respondents had been given notice of the adjourned hearing date; I also directed that he provide submissions why the notice of motion should not be remitted to the Common Law Division of the Supreme Court for hearing.
On 1 June 2020 the applicant provided evidence that satisfied me that each of the respondents had been given the appropriate notice. One only, the sixth respondent, appeared.
The orders sought by the applicant in the notice of motion fall into two categories:

(i) an order that the first respondent be punished for “Criminal Contempt of Court”. The applicant identifies Pt 55, Div 3 of the Supreme Court Rules 1970 (NSW) and s 326 of the Crimes Act 1900 (NSW) as the source of power for that order;

(ii) orders that the remaining respondents be “held liable in negligence for damages caused…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mohareb v Kelso

Details

AGLC: Mohareb v Kelso [2020] NSWCA 105
Case: [2020] NSWCA 105
Decision Date: 05 June 2020

CaseChat Overview and Summary

Mohareb v Kelso concerned an application brought by the appellant, Mohareb, seeking to punish the first respondent for criminal contempt of court. The alleged contempt involved an assault by the first respondent upon the appellant at the appellant's home, which occurred at a location remote from any court. The matter came before the Court of Appeal of the Supreme Court of New South Wales.

The central legal issue before the Court of Appeal was whether it possessed the jurisdiction to hear and determine an application for criminal contempt when the alleged contemptuous conduct did not occur in the face of the court, nor in any way directly interfere with the administration of justice. Specifically, the Court had to consider the scope of its powers under the *Supreme Court Act 1970* (NSW) concerning the punishment of contempt and the assignment of matters to the Court of Appeal.

Simpson AJA determined that the Court of Appeal's jurisdiction to punish contempt was limited to contempts committed in the face of the court or those that directly obstructed the administration of justice. The alleged assault, occurring at the appellant's home, did not fall within these categories. Consequently, the Court concluded that it lacked the appropriate jurisdiction to hear the application for contempt.

Accordingly, the Court ordered that the applicant's notice of motion be remitted to the Common Law Division of the Supreme Court for determination. The applicant was also ordered to pay the costs of the respondents incurred by the filing of the notice of motion in the Court of Appeal.

Orders

Orders of the court

1. The applicant’s notice of motion of 1 February 2018 is remitted to the Common Law Division of the Supreme Court.

2. The applicant is to pay any costs of the respondents incurred by the notice of motion having been filed in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Mohareb v Kelso [2020] NSWCA 105
Hearing dates:	1 June 2020
Date of orders:	05 June 2020
Decision date:	05 June 2020
Before:	Simpson AJA
Decision:	1. The applicant’s notice of motion of 1 February 2018 is remitted to the Common Law Division of the Supreme Court. 2. The applicant is to pay any costs of the respondents incurred by the notice of motion having been filed in this Court.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – application –assignment to the Court of Appeal for the punishment of contempt of the Court – assignment to the Court of Appeal of such matters as are necessary or convenient for the discharge of functions of the Court – notice of motion remitted to the Common Law Division of the Supreme Court CONTEMPT – Criminal contempt – contempt in the face of the court – here appellant was assaulted by first respondent at the appellant’s home far away from the court
Legislation Cited:	Crimes Act 1900 (NSW), s 326 Supreme Court Act 1970 (NSW), ss 48, 51, 53 Supreme Court Rules 1970 (NSW), Pt 55, Div 3 Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited:	Fraser v The Queen [1984] 3 NSWLR 212 R v Kelso [2020] NSWDC 157 Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682
Category:	Procedural and other rulings
Parties:	Nader Mohareb (Applicant) Alexander Edward Kelso (First Respondent) John Alexander Kelso (Second Respondent) Saratoga Marine Pty ltd (Third Respondent) Laurence Leeson (Fourth Respondent) Leetec Pty Ltd (Fifth Respondent) Roderick Gerrard Smith (Sixth Respondent) Taylor Booth (Seventh Respondent)
Representation:	Applicant self-represented Sixth Respondent in person
File Number(s):	2017/301930