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
Category: Principal judgment Parties: Nader Mohareb (Applicant)
Alexander Edward Kelso (Respondent)
John Alexander Kelso (Ex-Third Respondent)
Roderick Smith (Ex-Sixth Respondent)Representation: Counsel:
Solicitors:
In Person (Applicant)
I King (Ex-Third Respondent)
In Person (Ex-Sixth Respondent)
MCW Lawyers (Ex-Third Respondent)
File Number(s): 2020/174984
Judgment
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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
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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)…
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- AGLC
- Mohareb v Kelso [2020] NSWSC 1402
- Case
- [2020] NSWSC 1402
- Decision Date
CaseChat Overview and Summary
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.
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Background
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