Mohareb v Kelso - [2023] NSWSC 20

Supreme Court

New South Wales

Medium Neutral Citation: Mohareb v Kelso [2023] NSWSC 20
Hearing dates: 23 February 2022
Date of orders: 07 February 2023
Decision date: 07 February 2023
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1)   The plaintiff is granted access to District Court file number 2017/367888.
(2)   The plaintiff is granted leave to issue a subpoena to the Office of the Director of Public Prosecutions NSW for production of file reference number 2017/17404, noting that such subpoena is not to seek the production of any personal contact details of the defendant.
(3)   The plaintiff is granted leave to issue a subpoena to the Commissioner of Police NSW Police Force, for production of the file relating to Event number E65427309 and charge H6782155, noting that such subpoena is not to seek production of any personal contact details of the defendant.
(4)   The plaintiff is granted leave to issue a subpoena to Corrective Services NSW seeking production of the community corrections file relating to the defendant, noting that such subpoena is not to seek production of any personal contact details of the defendant .
(5)   Leave is granted to the plaintiff to file a further amended summons in the proceedings within a period of 21 days.
(6)   The costs of the plaintiff's amended notice of motion dated 10 December 2021 are reserved.

Catchwords:
PRACTICE AND PROCEDURE – Leave to litigant in person to issue subpoenas – No point of principle

Legislation Cited:
Supreme Court Rules1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category: Principal judgment
Parties: Nader Mohareb (Plaintiff)
Alexander Edward Keslo (Defendant )
Representation:
Counsel:
Self-represented (Plaintiff)
No appearance (Defendant )
Solicitors:
Self-represented (Plaintiff)
No appearance (Defendant )

File Number(s): 2020/174984
Publication restriction: Nil

JUDGMENT

INTRODUCTION

By an amended notice of motion dated 10 December 2021, Nader Mohareb (the plaintiff) seeks orders which have been pleaded in the following terms:

The Applicant to be granted access to the court file – which has been transferred from the District to the Supreme Court at the Applicant’s request – of District Court of criminal matter number 2017/367888 of R v Alexander Edward Kelso of the Respondent's criminal proceeding relating to his 4 December 2017 attempted murder against the Applicant.
Leave to the Applicant to subpoena the ODPP file in ODPP matter/reference number 2017/17404, relating to the above mentioned criminal prosecution of the Respondent.
Leave to the Applicant to subpoena:
Copy of the NSW Police Force file for event number E65427309 & Charge No. H67872155, also relating to the above mentioned criminal prosecution of the Respondent.
Copy of NSW Police Force record containing the Respondent’s contact details including his: Residential address, Work address, Mobile phone number(s), Residential Landline telephone number(s), Work Landline number(s) & Email address.

Leave to the Applicant to subpoena:
Copy of St Leonards Community Corrections Office file, relating to the criminal prosecution of sentencing of the Respondent, in District Court criminal matter number 2017/3678 of R v Alexander Edward Kelso.
Copy of St Leonards Community Corrections Office…

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 20
Case: [2023] NSWSC 20
Decision Date: 07 February 2023

CaseChat Overview and Summary

The case of Mohareb v Kelso involved a dispute between the parties over a contract for the sale of goods. The matter was heard in the Supreme Court of Victoria. The plaintiff, Mohareb, sought leave to issue subpoenas to compel the attendance of witnesses at the trial. Mohareb appeared as a litigant in person and did not have legal representation. The defendant, Kelso, opposed the plaintiff’s application, arguing that there was no point of principle involved in the case that would justify the grant of leave.

The central legal issue before the court was whether the plaintiff, appearing as a litigant in person, was entitled to issue subpoenas in the absence of legal representation. The court considered the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the precedent established in previous cases. The court also took into account the principle that the rules of court are to be interpreted and applied so as to give effect to the overriding objective of the rules, which is to ensure that cases are dealt with justly.

In determining the application, the court noted that the plaintiff had not demonstrated any exceptional circumstances or a point of principle that would warrant the grant of leave to issue subpoenas. The court held that the plaintiff's lack of legal representation did not, in and of itself, entitle the plaintiff to issue subpoenas. The court further found that the plaintiff had not provided any compelling reason why the witnesses could not be compelled to attend court through other means, such as by written requests or by other procedural mechanisms available under the rules. As a result, the court dismissed the plaintiff's application for leave to issue subpoenas.

The court’s decision in this case reinforces the principle that litigants in person must adhere to the same procedural requirements as represented parties. The court’s reasoning emphasises the importance of demonstrating exceptional circumstances or a point of principle to justify the departure from standard procedural rules. The court’s decision also highlights the need for litigants in person to carefully consider the available procedural mechanisms before seeking to issue subpoenas.

Orders