Mohareb v Kelso - [2020] NSWSC 1402

Supreme Court

New South Wales

Medium Neutral Citation: Mohareb v Kelso [2020] NSWSC 1402
Hearing dates: 24 September 2020
Decision date: 16 October 2020
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) The amended notice of motion filed on 3 September 2020 is dismissed.
(2) The applicant to pay the costs of the ex-third respondent, John Kelso, on this notice of motion.
(3) It is noted that the amended summons that was filed by the applicant on 13 August 2020 was taken to be dismissed on 10 September 2020, by the operation of s 13(3) of the Vexatious Proceedings Act 2008 (NSW).

Catchwords:
CIVIL PROCEDURE – Registrars – Review of Registrar’s decision – rr 36.16 and 49.19 of the UCPR – Registrar’s decision to dismiss the applicant’s notice of motion and order costs for the ex-third respondent – whether the applicant’s notice of motion had been transformed into a summons – whether the ex-third respondent’s appearance at the hearing before the Registrar was necessary
CIVIL PROCEDURE - Miscellaneous procedural matters - Vexatious litigants and proceedings – where applicant has been declared a vexatious litigant – where proceedings on foot were not subject to Vexatious Proceedings Act 2008 (NSW) orders – where applicant’s notice of motion in proceedings on foot was dismissed – where applicant filed a summons substantively different from previous notice of motion – summons taken to be dismissed where the applicant has not complied with leave requirements under the Vexatious Proceedings Act 2008 (NSW)

Legislation Cited:
Crimes Act 1900 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:
Mohareb v Kelso [2020] NSWCA 105
Palmer v Mohareb [2019] NSWSC 975
R v Kelso [2020] NSWDC 157

Category: Principal judgment
Parties: Nader Mohareb (Applicant)
Alexander Edward Kelso (Respondent)
John Alexander Kelso (Ex-Third Respondent)
Roderick Smith (Ex-Sixth Respondent)
Representation:
Counsel:
In Person (Applicant)
I King (Ex-Third Respondent)
In Person (Ex-Sixth Respondent)
Solicitors:
MCW Lawyers (Ex-Third Respondent)

File Number(s): 2020/174984

Judgment

HIS HONOUR: By an amended notice of motion filed on 3 September 2020, the applicant, Nader Mohareb, seeks that certain orders made by the Common Law Registrar on 13 August 2020 be set aside and that other orders be made in their stead. The applicant also seeks access to a court file, leave to issue two subpoenas, and an order for the arrest and detention in custody of the respondent pursuant to Pt 55, Div 3, r 10 of the Supreme Court Rules 1970 (NSW). I will consider this latter aspect of the notice of motion after separately considering the challenge to the Registrar’s orders.

Background

In 2014, the applicant commenced proceedings against the respondent in the District Court by way of a statement of claim. On 4 December 2017, the respondent assaulted the applicant. The respondent was arrested, charged and ultimately pleaded guilty to a count of causing grievous bodily harm with the intention of causing grievous bodily harm, pursuant to s 33(1)…

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] NSWSC 1402
Case: [2020] NSWSC 1402
Decision Date: 16 October 2020

CaseChat Overview and Summary

The matter before the court involved an application by Mohareb to review a decision made by a Registrar under the Civil Procedure Rules of the Supreme Court of New South Wales. The dispute centred on the dismissal of Mohareb's notice of motion, and the subsequent order for costs against the ex-third respondent. Mohareb contested the Registrar's decision on the grounds that the notice of motion had been improperly transformed into a summons and that the ex-third respondent's appearance at the hearing was unnecessary.

The key legal issues that the court had to address were whether the applicant's notice of motion had indeed been transformed into a summons, and if so, whether the ex-third respondent's appearance at the hearing was mandatory. The court also considered whether the applicant, who had been declared a vexatious litigant, could proceed with a summons that differed substantively from the notice of motion without first obtaining leave under the Vexatious Proceedings Act 2008 (NSW).

In its decision, the court held that the notice of motion had been transformed into a summons, which was dismissed because the applicant had not complied with the leave requirements under the Vexatious Proceedings Act 2008 (NSW). The court found that the ex-third respondent's appearance was not necessary, given that the proceedings were not subject to the Vexatious Proceedings Act 2008 (NSW) orders. The court affirmed the Registrar's decision to dismiss the notice of motion and order costs against Mohareb.

The final orders of the court confirmed the dismissal of the applicant's notice of motion and upheld the costs order against the ex-third respondent. The court emphasised that the applicant, having been declared a vexatious litigant, must comply with statutory requirements when initiating proceedings that differ substantively from previous motions.

Orders