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Mohareb v Kelso

Mohareb v Kelso

Case [2023] NSWSC 826 14 July 2023

Jurisdiction

Contempt of Court

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Mohareb v Kelso [2023] NSWSC 826
Hearing dates: 29 June 2023
Date of orders: 14 July 2023
Decision date: 14 July 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) The plaintiff’s notice of motion of 14 November 2022 is dismissed
(2) The plaintiff is to pay the costs of the State of New South Wales and the Northern Beaches Council

Catchwords:
CIVIL PROCEDURE — application for transfer of proceedings from NSW District Court to NSW Supreme Court — application for consolidation of proceedings — consideration of consolidation of contempt proceedings with civil proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 140, 146, 149
Crimes Act 1900 (NSW), s 326
District Court Act 1973 (NSW), ss 4, 183D, Sch 3 Pt 11 cl 15
Uniform Civil Procedure Rules 2005 (NSW), r 28.5

Cases Cited:
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Mohareb v Kelso [2020] NSWCA 105
Mohareb v Kelso (No 3) [2021] NSWCA 213
Mohareb v State of New South Wales [2019] NSWSC 270
Mohareb v State of New South Wales [2021] NSWDC 177
Morhareb v Kelso [2023] NSWSC 20
New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
R v Kelso [2020] NSWDC 157
Wilkinson v Downton [1897] 2 QB 57

Category: Procedural rulings
Parties: Nader Mohareb (Plaintiff)
Alexander Edward Kelso (First Defendant)
Vanessa Kelso (Second Defendant)
Representation:
Counsel:
Nader Mohareb (applicant in person)
AN Williams (State of New South Wales)
J Guihot (Northern Beaches Council)
Solicitors:
Crown Solicitors Officer (State of New South Wales)
Moray & Agnew (Northern Beaches Council)

File Number(s): 2020/174984

JUDGMENT

By notice of motion filed in these proceedings on 14 November 2022, the plaintiff, Mr Mohareb seeks the following orders:

(1)   “That District Court matter no. 2018/00221230 (Mohareb v State of NSW & Northern Beaches Council), along with District Court matters nos. 2015/201139 (Mohareb v Kelso) and 2016/292950 (Mohareb v Booth), which – pursuant to Abadee DCJ’s 14 May 2021 order – were consolidated with the above-mentioned District Court matter no. 2018/0022123 (Mohareb v State of NSW and Northern Beaches Council) are transferred to the Supreme Court; and
(2)   That, upon their transfer to the Supreme Court, the matters enumerated in Order (1) above, are consolidated with and be tried at the same time as or immediately before or after the present Supreme Court matter no. 2020/00174984 (Mohareb v Kelso).
(3)   In the alternative to Orders (1) & (2) above: That the present Supreme Court matter no 2020/00174984 (Mohareb v Kelso) is transferred to the District Court and that upon its transfer, it be consolidated with and be tried at the same time as or immediately before or after the District Court matters enumerated in Orders (1) & (2) above.
(4)   That the District Court matters, enumerated in Orders (1) & (2) above, are adjourned or temporarily stayed until the present…

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 [2023] NSWSC 826
Case: [2023] NSWSC 826
Decision Date: 14 July 2023

CaseChat Overview and Summary

The case of Mohareb v Kelso involved the applicant, Mohareb, who applied to the Supreme Court for the transfer of proceedings from the District Court to the Supreme Court, as well as the consolidation of proceedings. The proceedings in question pertained to civil matters, with additional contempt proceedings that had been initiated. The application was heard in the Supreme Court, which had the jurisdiction to consider the transfer and consolidation of the proceedings.

The primary legal issues the court needed to address were whether the proceedings should be transferred from the District Court to the Supreme Court, and whether the contempt proceedings should be consolidated with the civil proceedings. The court had to consider factors such as the complexity of the case, the need for a higher court's expertise, and the convenience of the parties in deciding the transfer. Regarding consolidation, the court had to evaluate the connection between the contempt proceedings and the civil proceedings to determine if they could be heard together for efficiency and fairness.

In its decision, the court found that the case was complex and involved issues that warranted the Supreme Court's attention. The court recognised the potential benefits of consolidating the proceedings, including the streamlining of the legal process and the avoidance of duplication. The court concluded that the transfer of the proceedings to the Supreme Court was appropriate, and that the contempt proceedings should be consolidated with the civil proceedings. The consolidation was deemed necessary to ensure that all related issues could be resolved in a single proceeding, thereby enhancing the efficiency and effectiveness of the judicial process.

Orders